Good news on the people's right to use the initative and referendum process--emergency order for the Sevier power plant referendum--SB 53 under review

Good news yesterday. The Utah Supreme Court issued an emergency order putting the referendum in Sevier County back on the ballot. The referendum could overturn the zoning decision by the county commission allowing a coal-fired power plant to be built where many residents feel it will affect their homes.

Referendum supporters had initially gathered enough signatures to put the referendum on the ballot. However, the county first quibbled about which acronym of zoning law was on the petition, and then the developers succeeded in convincing a lower judge to remove the referendum based on SB 53, despite the fact that SB 53 took effect after the referendum drive had been successfully completed. (The link in the first paragraph contains articles detailing all of this.) The interested Sevier citizens then appealed the decision to the state supreme court. The Utah Supreme Court issued the decision of emergency extraordinary relief the same day as the first oral arguments in the case.

The court battle will continue and address the bigger issue of whether SB 53 is constitutional. (Please read it--the text is only 6 lines long.) This is huge folks. Can the legislature ban certain types of laws from the processes of public redress? I want to plug my post last month on referendum restrictions passed by the legislature in the session this year. It's so long that I think people were discouraged from reading it. (It also references the Bernick/legislature blow-up over whether he made up a story about referendum laws. You can skim over the initial paragraphs if you want because I just use that dispute to highlight what the legislature is claiming vs. what they really did.) Please take 10 minutes and read through it. You can follow the numerous links to original information or not, but educate yourself on what the legislature is doing to our right to affect their decisions.

I'm going to post links to some articles and the text of the KSL and Tribune articles. I'm underlining a passage in each article detailing how the State Attorney General's office has already issued an opinion that SB 53 is unconstitutional, and that SB 53 would set precedent allowing the legislature to disallow other types of laws from the referendum process...education laws for example?

http://www.deseretnews.com/article/1,5143,700265108,00.html

http://www.ksl.com/?nid=148&sid=4469842

Court rules residents should be allowed to vote on power plant
October 8th, 2008 @ 5:40pm
By John Hollenhorst

This afternoon, the State Supreme Court issued an emergency order allowing Sevier County citizens to vote on an issue that's got a lot of them riled up. It's a case with a narrow focus but broad implications. The Supreme Court's emergency order allows citizens to vote on a controversial power plant.

A lower court previously took the initiative off the ballot. It's an issue with statewide significance: Should "The People" have the right to vote on key issues?

The court has shot down an effort by power plant attorneys to block an Election Day voter initiative. Those attorneys were using a legal argument the Legislature could have used to prohibit voter initiatives on any topic.
Before a coal-burning plant is built in Sevier County, many residents want the right to say "Yea" or "Nay" on Election Day. But power plant attorneys persuaded a judge to remove the initiative from the ballot. The Legislature last session passed a bill forbidding voter initiatives on zoning issues. Fred Finlinson, counsel for Sevier Power, said, "Zoning law is supposed to be uniform and equal."

But Jeffery Owens, a lawyer for Sevier citizens told the Supreme Court, the new law flies in the face of the state constitution, which guarantees citizens the power of the ballot through initiative and referendum. He said, "Certain decisions made by voters are the wrong decision. But they should still, in this democratic society, should still be able to make that determination."

He added, "It's basically a check on the power of the Legislature. And that's especially important in a state like Utah that's heavily Republican."

"I think they're trying to create an even playing field across the entire state, as they do across the nation, and say that votes are not part of the zoning process," Finlinson said.

But another lawyer for the power plant admitted, if the court were to uphold the new law, it could set precedent for the Legislature to ban the initiative and referendum process on other issues from tax cuts to school vouchers. Owens said, "Yes, I think it will have an impact far beyond Sevier County."

We asked Finlinson, "Are you fearful that if it's put to a vote, you'll lose?" He replied, "No, I think we would win."

Owens said, "This is an important enough issue for the citizens of Sevier County that it is worth turning the election upside down."

Now, Sevier County officials will be scrambling to get the initiative back on the ballot. They had already started mailing out ballots without it.

So far, we don't know the Supreme Court's reasoning. They've issued the emergency order, but they'll issue their actual ruling sometime later.

E-mail: hollenhorst@ksl.com

http://www.sltrib.com/ci_10674635

Power plant up to voters
Utah high court says Sevier County initiative should be on ballot, may
rule on constitutional issue later
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 10/09/2008 12:53:16 AM MDT

Within hours of hearing oral arguments, Utah's Supreme Court ruled
Wednesday to place a Sevier County citizens initiative back on
November's ballot.
That order overturned a mid-September 6th District Court decision
to yank it off.
Proposition 1 will allow voters to weigh in on a proposed
coal-fired power plant to be built near Sigurd. Plans for the 299-acre
facility have been progressing through the county's planning process
for more than two years and the concept has driven an emotional wedge
between opponents and supporters.
According to its terse order, the high court's full opinion will
come later, "in due course." The complete ruling is expected to
address whether SB53, passed by the 2008 Legislature to put some
restrictions on local initiatives, is constitutional.
"It's quite remarkable," attorney Jeff Owens said of the court's
decision to grant his clients' petition for extraordinary relief. For
Owens, 30, it was his first time arguing a case before the state
Supreme Court.
Power plant opponents applauded the news as a victory for democracy.
"We're elated," Jim Kennon with Sevier Citizens for Clean Air and
Water said in a statement. "It's a good thing we now have the right to
vote on something like a power plant that will have a long-term impact
on our quiet, peaceful community."
The brisk court order stunned attorneys representing the Sevier Power Co.
"I'm not only puzzled, I'm surprised," said Fred Finlinson, a
Saratoga Springs land-use attorney. "We're looking at our options for
a rehearing."
At the heart of this case is Sen. Brent Goodfellow's SB53, which
sailed through the Legislature with broad support and took effect May
5.
The new law prohibits the use of local initiatives to enact or
change land-use ordinances. It also prohibits initiative efforts
related to a city or county's implementation of land-use laws.
In April, the Attorney General's Office said that courts would
likely strike down SB53 because it restricts a fundamental right
guaranteed by the Utah Constitution.
On May 2, a group dubbed the Right To Vote committee submitted
more than enough signatures to Sevier County, but Sevier Power's
attorneys argued that SB53 nullifies that effort because county
officials failed to validate the signatures until June 20.
Owens argued that SB53 is overly broad and unconstitutional.
Cass Butler, an attorney representing Sevier Power, argued that
Article 6 of the state Constitution has limits.
What's more, Butler added, Sevier County has already mailed out
175 absentee ballots without Proposition 1.
"Perhaps they mailed those ballots out at their own risk," Justice
Michael Wilkins responded during Wednesday's hearing.
Proposition 1 would amend the county's conditional use ordinance
to require a public vote before permits are approved for any
coal-fired power plant.
Finlinson, pointing to the county's approval of a planned unit
development overlay zone in June 2006 - enacted specifically for this
facility - said initiative proponents are two years too late and seek
to amend the wrong section of the law.
"It's a heavy burden to make [the county] change all the ballots
for this election," he added.
cmckitrick@sltrib.com

Public Referendum in Sevier County disallowed because of SB 53 which took effect AFTER the signatures were submitted. UPDATE: Ruling is being appealed

The Tribune details the reasoning for the power plant referendum being taken off the ballot. (Why is the Tribune the only one covering referendums in Utah? I can't find anything in the Deseret News about the disputes about Sevier County, Beaver County, or Box Elder County.) How does this decision benefit anyone? Seriously? Besides those with a financial stake in building the power plant in Sevier County, who does SB 53 benefit?

The legal reasoning seems faulty to me as well since the petitioning group turned in their signature two days before the new SB 53 law took effect. The judge in the case about the Box Elder Referendum (2nd article down dated 5/17) rejected all arguments against a public referendum "The court finds that the issue . . . is one of great potential impact upon the county's environment, resources and citizens and very appropriate for voter participation."

Does anyone else care? Can an appeal be expedited to take place before the November elections? Once again--why was this bill, apparently written by wealthy lobbyist, Steve Barth, proposed and passed? Did our state Representatives and Senators of both parties actually read the bill and question what need it was addressing?

Here's the full text of the article:

http://www.sltrib.com/News/ci_10422169
Judge knock's people's vote on power plant off the ballot
Sevier County citizens considering an appeal
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 09/09/2008 08:09:59 PM MDT

Posted: 8:09 PM- A 6th District Court Judge ruled Tuesday to pull a power-plant referendum off Sevier County's ballot.
"We're quite pleased with the judge's decision," said Fred Finlinson, one of the attorneys for Sevier Power Co.
According to Finlinson, Judge Wallace Lee ruled from the bench shortly after hearing oral arguments at the Richfield courthouse, using a new state law as the basis for his decision.
With SB53, "the Legislature determined that the initiative process does not apply to the changing of a zoning ordinance," Finlinson said.
For several months, Sevier County residents - led by Elaine Bonavita's Right to Vote Committee - fought to put construction of the proposed coal-fired power plant to a public vote.
The Right To Vote committee submitted over 1,500 signatures two days before SB53 took effect on May 5. In July, Sevier County Commissioners allowed the referendum to advance to the ballot, but juggled terminology in a way that could have rendered it invalid.
"It was an unexpected and disappointing result," said Jeff Owen, the attorney representing the Right To Vote effort.
"Judge Lee felt that SB53 was in effect at the time of our initiative because the County Commission took no action on it until July 7," Owens said. "I disagree. On May 3, my clients did the last thing they could possibly do and it was out of their hands at that point."
Judge Lee did not rule on whether SB53 is constitutional, choosing instead to leave that up to the state Supreme Court, which will deal with the BRAVE v. Beaver County case concerning the proposed Mt. Holly ski and golf resort.
Before SB53 took effect, the state attorney general's office advised that courts might strike the new law down as being unconstitutional because of its limits on local initiative and referendum powers.
Sevier County residents associated with the Right To Vote effort are considering an appeal, Owens said.
In the meantime, Sevier Power Co. will pursue further county approvals and also faces a state Supreme Court battle with the Sierra Club over air quality issues. That appeal is scheduled for early October, Finlinson said.
cmckitrick@sltrib.com

UPDATE:
The Sevier Referendum petitioners are appealing on two different grounds: One, SB 53 is an unconstitutional (Utah State Constitution) restriction on the public's right to redress government. Two, even if you find that SB 53 is not a sham, they submitted their petition two days before the law took effect. The new law should be irrelevant to the legal petition. They're right on both counts I believe.

http://www.sltrib.com/news/ci_10433603

http://deseretnews.com/dn/view/0,5143,700257775,00.html

Articles about the Box Elder County referendum where a 2-1 vote of a 3-member county commission authorized the sale of the county landfill

This KSL article has an explanation of the initial positions, pictures, and some horrible arguments for disallowing referendums:

http://www.ksl.com/?nid=148&sid=3046883

The 2nd article down describes the court decision allowing the referendum--very applicable to the importance of referendums overall.

http://www.sltrib.com/news/ci_9028866
Box Elder residents want more say in landfill suit
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 04/23/2008 03:21:32 PM MDT

Posted: 3:22 PM- BRIGHAM CITY - Box Elder County residents who
successfully petitioned for a right to vote on selling the county
landfill are now asking a judge to let them have a say in the lawsuit
challenging the referendum.
Eight residents, including several sponsors of the petition, say
in a 1st District Court filing that they have both a constitutional
and a statutory interest in seeing that the landfill vote remains on
the Nov. 4 ballot.
The Northern Utah Regional Landfill Authority, comprised of
garbage districts covering most of northern Utah, wants to turn Box
Elder County's Little Mountain Landfill southwest of Tremonton into a
large regional dump.
The three-member County Commission, two of whom also serve on the
authority's board, agreed last December to sell the landfill to the
authority.
But residents were angry over what they considered a lack of
public debate and circulated petitions to force a referendum on the
sale. They gathered far more signatures than were necessary, and
County Recorder LuAnn Adams certified the petitions and put the matter
on the ballot.
In its lawsuit against the county and Adams, the landfill
authority argues that the Box Elder Commission's decision to sell the
landfill was administrative, not legislative, and thus not subject to
a referendum.
Ron Germer, a Brigham City resident who is among the eight trying
to intervene in the case, said they are trying to protect the
constitutional rights of the 4,400 residents who signed petitions.
"It is unbelievable that NURLA would try to infringe upon the
rights of the people," he wrote in an e-mail. "If this is what we can
expect from them, I am not sure we should have anything to do with
them."
Some of petition signers have said that, although they eventually
may support selling the landfill, they want a more public process
before the decision is made.
NURLA was organized last year by four entities that handle all the
garbage - except Bountiful's - in Davis, Morgan, Weber, Box Elder and
Cache counties.
Participants are Wasatch Integrated Waste Management System, Weber
County, Box Elder County and Logan.
kmoulton@sltrib.com

http://www.sltrib.com/news/ci_9290468
Little Mountain facility
Box Elder landfill sale decision appears headed for the ballot
Judge Hadfield rejects arguments seeking to quash the referendum
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 05/17/2008 12:34:41 AM MDT

BRIGHAM CITY - Box Elder County residents will get to vote after all on the sale of their Little Mountain Landfill to a regional landfill authority.
First District Court Judge Ben Hadfield has rejected arguments from the Northern Utah Regional Landfill Authority (NURLA) to keep a voter referendum off the Nov. 4 ballot.
Reggie Petersen of Penrose cheered the judge's decision.
"I'm happy the judicial system protected the Constitutional right of the people to have a say," he said.
The Box Elder County Commission voted last December to sell the landfill southwest of Tremonton to NURLA, formed in 2007 by garbage districts covering five northern Utah counties. The plan is to line and enlarge the landfill to eventually accommodate garbage from Davis County on the south to Cache County on the north.
Unhappy with the sale, county residents gathered more than 4,000 signatures to put a referendum on the ballot.
NURLA sued, asking the judge to rule that Box Elder County Clerk LuAnn Adams was wrong to certify the petitions.
The landfill authority argued that the commission's decision was administrative, not a policy-making decision open to referendum. It also argued that the sale fell under Utah's Interlocal Cooperation Act, which prohibits referendum - and that the matter was too complex to entrust to voters.
The judge rejected all three arguments.
"The court finds that the issue . . . is one of great potential impact upon the county's environment, resources and citizens and very appropriate for voter participation."
Weber County Commissioner Craig Dearden, the chairman of NURLA, said the authority board will meet June 5 to discuss its options.
The lawsuit, he said, was more about clarification than preventing the public from voting, he said.
Nonetheless, "We felt like the County Commissioners represent the people and were elected by the people and they made their decision to sell it."
kmoulton@sltrib.com
www.sltrib.com

http://www.sltrib.com/news/ci_9630930
Election issue
Landfill authority to make case for dump sale on ballots
The agency previously had opposed putting the matter before voters
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 06/19/2008 12:44:28 AM MDT

BRIGHAM CITY - The board representing garbage districts in five
northern Utah counties decided unanimously Wednesday to drop its
challenge of a voter initiative in Box Elder County.
The Northern Utah Regional Landfill Authority board (NURLA),
comprised of elected officials from Davis to Cache County, instead
turned its attention to defeating the initiative on November's ballot.
Opponents of selling Box Elder County's Little Mountain Landfill
to NURLA gathered more than 4,000 signatures last winter, giving
voters a shot at reversing a Box Elder County Commission decision made
last December.
The NURLA board this spring sued in 1st District Court, arguing
the matter was not open to a referendum, but Judge Ben Hadfield ruled
against NURLA.
"We communicated as a body that our intent was to refer to the
court to have its opinion," said Box Elder County Commissioner Clark
Davis, who added that the board should "live with the decision."
The board now has to figure out how it will campaign for the sale
because it is illegal to use public money to do so.
Attorney Patrick Malone said NURLA can use public money to explain
its reasoning, but must give opponents the opportunity to explain
their positions as well.
Brigham City Mayor Lou Ann Christensen told the board its plan for
a regional landfill would save the city $90,000 to $150,000 a year in
tipping fees. She encouraged the board to organize independent
supporters to raise money for the publicity campaign.
Opponents of selling the landfill told the board it should
consider other options.
Dean Anderson, of Bear River City, said the Little Mountain site
is too small for the five counties' garbage, while a site on
Promontory Point is better suited.
"They just need to look at the big picture," said Anderson. "They
need to super-size."
The board settled on expanding the landfill at Little Mountain,
southwest of Tremonton, as the best choice after a feasibility study
last year.
Resident Bonnie Germer, who was involved in the petition drive,
said she doesn't want her county partnering with others in the
regional landfill authority.
"If you lose in November, don't come back suing us, because we
will fight you again," said Germer.
kmoulton@sltrib.com

Bob Bernick is not trustworthy…but Urquhart, Killpack, and co. are not telling the whole story about referendums either. A look at SB 53 and SB 54.

Bob Bernick is biased and unreliable and is correctly being called on it by Rep. Urquhart, BUT…our state legislators are also using his dishonesty to dance around the important issue of citizen redress because they ALREADY made major changes in referendums and initiatives this past session, making most submission dates even more difficult to meet and eliminating any land use referendums as another bone to powerful developers.

Bernick:

I first saw Bernick’s sloppiness clearly in his February story on conflicts of interest (Not saying it wasn't there before—I just wasn't paying attention to individual reporters until recently). I think it is a legitimate and very important issue, but Bernick lazily mixed the lesser number of substantive conflicts with broad accusations of conflict on very flimsy grounds (e.g. any lawyer proposing any bill having to do with law was conflicted and similar claims about other professions), even accusing Senate President Valentine of having conflicts on 3 completely empty "boxcar" bills. When the Senate leaders responded, Bernick threw a fit at being called lazy and unethical and counter-attacked Senators Dmitrich and Bramble for the extensive amounts of lobbyist gifts they accepted. Once again, I 100% agree with his position that Dmitrich and Bramble compromised their public trust and showed a continuing lack of ethics by accepting those trips and gifts (During a January Q&A session, Bramble tried to browbeat attending teachers in defense of his trips and Jazz games, daring us to “Raise your hand if you think that was a conflict of interest. Anyone? Anyone?” as he glowered around the room inviting some poor teacher to take him on.), but it has absolutely nothing to do with whether Bernick fabricated conflicts of interest about empty bills or not. Bernick’s latest claim that the legislature intended to make the signature gathering process for referendums more difficult, but then reversed course, is apparently another instance of “creative reporting” judging from the callout by Senator Killpack and Rep. Urquhart’s confidence that the tapes of the discussion will vindicate the legislators.

SB 53 and SB 54—Citizens’ rights of redress

That said, I feel Rep. Urquhart and Senator Killpack are being disingenuous as well. They didn’t make that one, specific change to the signature gathering requirements that Bernick is claiming, but they did pass two new laws restricting certain referendums and making the hoops more difficult for every type of referendum and initiative except statewide referendums—and I believe that is only because they were wary of just such an attack as Bernick made. So they left out the type of referendum they lost on to provide themselves some false moral high ground while simultaneously restricting the right of their constituents to affect the decision making process at all other levels of government. I don’t think there was a problem with the former requirements that needed to be addressed or any defensible rationale for the new restrictions on citizen redress. I personally asked Senator Bramble about his opinion on referendum law and the signature gathering requirements in the January meeting, heard his disdain for it as he explained similar points to what Bernick quotes him as saying (the people aren't informed, ancient pure democracies failed, California is worst state, etc.), and finally got his statement that he thought the bar for signatures was probably high enough so they wouldn’t change it this session. I feel he wasn’t quite straight with me on legislative intent since he didn’t mention the other crucial changes they were planning for referendum law.

Let’s look at the two laws. I want to start with the fact that both of these bills enjoyed near unanimous support from both Democrats and Republicans. Insulating elected officials from those pesky citizens seems to be a bipartisan issue.

First, SB 53. The only legislators to vote against this boon to developers were Rep.’s Kiser and Newbold. I don’t know either well, but neither has previously voted against the Republican grain much, especially Newbold. I would love to hear their reasoning.

Here is pretty much the entire text of the bill. It’s one page, short and deadly. The law changes the previous text of state code which only referred to budgets (new stuff in italics).

Highlighted Provisions:
This bill:
prohibits the use of local initiatives for land use ordinances or changes in land use ordinances; and prohibits voters from requiring the implementation of a land use ordinance to be submitted to voters.
(1) The legal voters of any county, city, or town may not initiate [budgets]: (a) a budget or [changes] a change in [budgets.] a budget; or_(b) a land use ordinance or a change in a land use ordinance.
(2) The legal voters of any county, city, or town may not require any budget adopted by the local legislative body or the implementation of a land use ordinance adopted by the local legislative body to be submitted to the voters.

Why?! What purpose does this serve? I can see why changing an established budget would be problematic. Planning would be impossible and many companies would not contract with the city, county, etc. if they thought the rug could be pulled from them on a vote in a couple of months. And as important a duty as the budget is for a council or legislature, it is relatively short-term and impermanent. A newly elected administration can easily make changes to the next year’s budget.

Other laws and policies, however, have much more long-lasting effects that can be difficult or impossible to change after the fact. Land use laws seem to fit squarely in that category. City or county bodies making those important decisions can be as small as three people. If they change the zoning and allow a company or subdivision to be built, the government can’t go back and tear down those structures if the decision makers or general population have regrets afterwards. Now, there’s a philosophical argument against zoning and land use laws in general in favor of increased private property rights, but that’s a different issue. If zoning laws in general were to be refuted, that would affect both legislative and public decisions. But as long as we as a society have decided that some form of land use regulation is legal and in our best interest, and those decisions have irreversible, permanent effects, then why shouldn’t the people be able to hold initiatives or referendums on land use ordinances?! I can honestly see no other reason than to appease developers.

I suspect the true motivation behind this bill came specifically from Wendell Gibby, the controversial developer trying to build a subdivision on land Mapleton City contends is environmentally sensitive. Gibby is extremely well-connected and high-ranking state legislators have communicated their ability to curtail the powers of local government and written letters threatening the job of the judge of the lawsuit. Concerned citizens at one point tried to hold a referendum overturning a decision by Mapleton officials allowing Gibby to build, but were not allowed to contest "an administrative action." There may actually be some legitimate concerns and debate over the proper use of the government’s eminent domain powers in the Mapleton case, but why should the people’s right to question officials’ land use decisions in general be taken away? Who does that serve?

Another current example is the upcoming and hotly disputed referendum in Sevier County where many residents are trying to overturn a county commission’s decision to allow a coal power plant to be built in a certain valley. This referendum was grandfathered since the process began before the passage of SB53, but would currently be illegal. The fundamental question is whether a county’s general population should be able to decide whether to allow a power plant? Or should some maneuvering and designations of different acronyms allow a small number of county commissioners to make this irreversible decision?

As illustrated in the last link, the power company is using SB53, which passed after the referendum process had begun, to justify a lawsuit attempting to halt the referendum. A Beaver County development group is using the same tactic to try and stop a vote on their project as well.

Knowing some of the recent history of the legislature helps. The Realtor Association and PAC and property development lobbyists are by far the best-connected and influential special interest groups on Capital Hill and in my opinion behind some horrible laws and tax breaks. The most egregious example of literally taking away the voting rights of ordinary citizens is HB 466, commonly known as “The Developer’s Dream Bill," which the legislators unanimously passed in 2007 with little debate. This bill honestly gave a large land owner permission to start their own town, include other property owners against their wishes as long as the cumulative amount of their property was low, and then appoint the city council for the first two years, while the other US citizens who were annexed received no vote on their public officials for two years. The famous Ruby’s Inn right outside the entrance to Bryce Canyon National Park immediately incorporated, and now this literal “company town” where 73 of the 138 residents are relatives of the inn’s owner gets to pay itself $300,000 in taxes that used to help provide public services in sparsely populated Garfield County. There were at least two contentious attempts to incorporate towns of barely 100 people in Wasatch County, (Aspen, Utah unsuccessfully and Independence, Utah) and a contentious process is still going on today over the grandfathered incorporation of Powder Mountain as its own town with again the large corporation getting to hand-pick the mayor and city council of the town of under 150 people. The Weber County Forum and Ogden Valley Forum have frequently addressed this topic and examined the ridiculous nature of the bill’s process of incorporation:
http://wcforum.blogspot.com/2008/08/powder-mountain-update-last-chance-for.html
http://wcforum.blogspot.com/2008/08/powder-mountain-update-two-more.html
http://wcforum.blogspot.com/2008/08/powder-mountain-update-81908-commission.html
http://wcforum.blogspot.com/2008/08/powder-mountain-update-standard.html
http://ogden-valley.blogspot.com/2008/08/standard-examiner-steps-up-again.html

The legislature soon recognized how stupid their unanimous vote looked with the law’s “variety of unintended, and unpleasant, consequences” (This is a Senate Site post written by two senators and titled “The Unintended Consequences of 2007’s HB 466." Be sure to read the comments from angry residents of Daniel, Utah in Heber Valley, victims of one of the aforementioned incorporation attempts.) and “clearly” it needed amending. They passed a new law this year, HB 164, that changes the incorporation rules to not allow wealthy land owners to take away the vote of other citizens, but refused to make it retroactive, claiming it would be “unfair” to the developers. If you’re going to read only one of these links, read this WCF post on the amendment process, where Senator Christensen is quoted “I had no idea it was wrong at the time,” he said. “I think it flew past all of us.” I think that sums up why us citizens question the legislature anytime they want to take away our ability to vote on their decisions because they are so much better informed than us. As I said in a post earlier today, we often don't know as much about the inner-workings of many laws and processes, but we are just as capable of getting informed when something becomes very important to us. Many residents of Eden who are getting scooped up into Powder Mountain Kingdom know plenty about HB 466 now; many Beaver and Sevier County residents could tell you all about the flaws of SB 53; and it happened in the voucher debate. The elected representatives should gather information and legislate the majority of the time, but not feel territorial when the people want a say or try and protect their work from us.

SB 54 is a quieter bill that just tightens the screws a little bit, making it more unlikely that any of the above county or municipal referendums could ever happen. Speaker of the House Greg Curtis is the only legislator who voted against this bill on the floor. My negative opinion of Curtis leads me to believe this was some kind of stunt, and I did hear this mentioned once as “proving his independence” (on a bill he almost certainly knew would be passed unanimously before he allowed it onto the floor), but I don’t know for sure. I would love to hear his reasoning if indeed he disagrees with this bill.
The bill’s text is pages and pages long. Here’s the summary at the beginning of the bill—I’m leaving in the line numbers as I cut and paste this time because I don’t feel like deleting them all:

8 General Description:
9 This bill modifies provisions that govern requirements for state and local initiative
10 petitions and local referendum petitions.
11 Highlighted Provisions:
12 This bill:
13 . requires that a law that is proposed through a state or local initiative contain a title
14 that clearly expresses the subject of the proposed law;
15 . requires that a law proposed through a state or local initiative contain only one
16 subject;
17 . changes the deadline for submitting signature packets for statewide initiative
18 petitions from June 1 to April 15;
19 . changes the deadline for submitting signature packets for local initiatives and local
20 referenda from 120 days before the election to April 15;
21 . changes signature verification deadlines, circulation finance disclosure deadlines, and
22 appeal deadlines to accommodate the change in the deadline for submitting the
23 signature packets;
24 . moves referenda provisions related to the imposition of a county option sales tax
25 ordinance from Title 59, Revenue and Taxation, to the Election Code;
26 . provides that uniform signature verification timelines be applied to all local
27 referenda; and
28 . makes technical changes.

First, a side note. Think about the omnibus education bill lawsuit and notice the mind-boggling irony of lines 13-16. This is an addition, requiring the initiatives or referendums to have “a title that clearly expresses the subject of the proposed law” and that the proposal “contain only one subject.” It was specifically added under the sections for both state and local initiatives. Wouldn’t it have been funny if someone had filed an initiative with a broad title this year and the Attorney General’s office had to sue the filers for breaching this law while simultaneously defending SB2 on the same charges of breaking the Utah Constitution’s requirements for a clear title and single subject?

More on point, SB 54 moved the filing deadlines up almost 3 months for county and municipal referendums and initiatives (sometimes lumped together as “local” referendums and initiatives) and from July 1 to April 15 for statewide initiatives. I repeat my question: Why? What purpose does this bill serve or what problem does it address? The justifications used were to make it easier on county clerks and to make things “uniform.” I don’t see either one of those as justification for making an already onerous, difficult process even harder. As I understand it, an initiative or referendum drive has to gather signatures of 10% of the registered voters in a county or municipality to hold a local initiative or referendum. (And 10% of the registered voters in 26 of the 29 Utah counties for a state wide item. It was an amazing feat for the education community to gather those signatures in roughly 40 days. Does anyone reasonable think that is too long?) An occasional stressful period for clerks notified by the previous deadline, 120 days (4 months) before an election, is worth empowering the people to affect the legislative process. I can see the legislator’s arguments that there should be a relatively high bar to avoid crank legislation being on the ballot, but I see no evidence that frequent, “frivolous” referendums or initiatives have been on the ballot in Utah. I can personally remember a handful of initiatives, all in Salt Lake County, most dealing with some form of funding for public transportation, ZAP tax, and the like. I don’t agree with the outcome of all of those votes, but I feel the public is certainly justified in voting on the issue. Is there a list somewhere of what state, county, and local initiatives have been swamping our system with frivolity? (Here's a list of the 18 state wide initiatives and 2 state wide referendums in the last 48 years.)

And what about referendums? Again, I haven’t always been following the topic closely, but I don’t remember hearing about a public referendum on any level until the voucher vote last November. I certainly feel that vote was important and vindicating for the voice of the people, and the bar’s adequacy, or possibly overly rigorous nature, is illustrated by the fact that Referendum 1 was the first statewide referendum to successfully make it to the ballot in over 30 years. In fact the successful Referendum 1 on vouchers in 2007 and one other land use referendum in 1974 that failed to overturn the law it challenged are the only state wide referendums to make the ballot since 1960. Ballotpedia claims that hunters scared of animal rights initiatives were largely responsible for Utah's restrictive initiative and referendum laws. I don’t know enough to evaluate that assertion, but I don't view one successful referendum in 50 years as excessive. One could easily argue the opposite. I also agree with the premise that the Sevier County power plant referendum, the Beaver County zoning referendum, and the Box Elder County referendum on the sale of a county landfill approved by two possibly conflicted commissioners out of a three member county commission, are all appropriate and important exercises of the public’s right of ultimate authority over those voted into office to represent them, not rule them. These are the first local referenda I can recall hearing about and definitely not frivolous. If these important votes were the impetus for SB54, I think that making these local referenda more difficult was a corrupt decision from a bill largely designed and pushed by powerful development interests through their lobbyist, Steve Barth. Another argument for the too high bar is the difficulty of getting these referendums off the ground without some sort of organization. The forced stadium funding, where the state legislature passed a new law about county-assessed taxes in order to bypass the decision of the locally elected government body with which they disagreed and fund the Sandy soccer stadium (to benefit, of course, a very well-connected and wealthy developer, Dave Checketts) was an even more unpopular decision than vouchers. The referendum to overturn the law barely got off the ground and couldn't get close to the required number of signatures by the former, easier deadline because it was too hard to get volunteers and action organized. If something as stinky and top-down as the stadium funding switcharoo can’t get access to the ballot, that bar is very, very high. In their supposed quest to guard the process from "special interests," legislators may have effectively barred the process to all but those organizations with large numbers of motivated volunteers.

And finally, my argument about the relative hypocrisy of the legislator’s impassioned defense of current law. Notice they changed both referendum and initiative requirements at the municipal and county level, and also the state wide initiative requirements. If the new dates are so important and justified by the overworking of the clerks, why omit state wide referendums, which require a much higher number of signatures and verification work than local referendums? Political cover. The legislature can’t justify the new requirements because of any actual problems, but they are willing to restrict the voice of the people anyway, understanding that 99% of the population will never notice or think about a low-flying law like SB54. As long as they don't touch the current lightning rod of state referendums, they feel safe in cutting the people out of the process more and more.

So when an editorial claims that “Bramble, Valentine, and Rep. Steve Urquhart, of St. George, unequivocally told the D-News from the start that there was nothing wrong with Utah's referendum system and it wasn't up for change.” take it with a large grain of salt. I totally agree the Deseret News should release the recording and that Bernick is often an inaccurate blowhard, but I don’t take the righteous chest thumping of vote-restricting legislative leadership figures at face value.

Articles about Sevier County power plant referendum and SB 53--power company tries to switch zoning acronyms to avoid referendum

A few lines underlined by me.

http://www.sltrib.com/news/ci_9813736
Sevier County plant will be on ballot
Residents will vote on the coal-fired power facility in November
By Patty Henetz
The Salt Lake Tribune
Article Last Updated: 07/08/2008 12:21:40 AM MDT

A referendum that would allow Sevier County residents to vote on
construction of a coal-fired power plant will be on the November
ballot, thanks to agreement Monday of the County Commission to take no
action on it.
That allowed the measure to go to the public vote without the
commission actually endorsing it, said Commission Chairman Gary Mason.
"I have no trouble [with] it going to the voters," Mason said.
"That takes the monkey off my back."
The commission validated the citizens' referendum petition, which
had more than the necessary number of signatures, Mason said. The
measure would amend the county's conditional-use permit ordinance to
require voter approval prior to issuing such permits for coal-fired
power plants.
It also would revoke any conditional-use permit issued - specific
language likely to further snarl the long-simmering dispute, because
the county is now considering Sevier Power's permit request as a
planned unit development request, said County Attorney Dale Eyre.
The terminology switch, said coal-plant opponent Elaine Bonavita,
was "a smooth move."
Everybody thought the commission's decision was a victory, said
Bonavita, chairwoman of the Right-to-Vote Committee. "But I must tell
you this: It was a victory clouded in deceit," she said.
" 'Conditional-use permit' is on the ballot, and if they change
the wording, they've pulled a fast one," she said. "We will go to
litigation."
A planned unit development typically is a residential project that
features relatively dense clusters of houses, which are usually
surrounded by areas of commonly owned open space maintained by a
nonprofit community association. A conditional-use permit is a
variance to allow a project otherwise prevented by zoning.
Mason said the commission always considered the Sevier Power
request to be for a PUD. Right-to-Vote Committee attorney Jeff Owens
says that's not so.
The county previously changed its zoning to allow the power plant.
A lawsuit on that decision is pending, Eyre said. There also is the
matter of SB53, a possibly unconstitutional law passed during this
year's legislative session, which bans voter initiatives on land-use
ordinances.
"SB53 will always be out there," Eyre said. "But unless someone
approaches a court or maybe the attorney general's office, we're not
going to take any action to stop the ballot."
No matter which way the November vote goes, Eyre said, he expects
to go to court.
Sevier Power co-owner Bruce Taylor sounded an ominous note about
the referendum after the commission meeting.
"We do not believe it will get to the vote," he said.

History of the Sevier Power Project

Nevco, a Nevada limited liability corporation with offices in
Bountiful, for seven years has sought to build the Sevier Power
Project near Sigurd, about midway between Richfield and Salina. The
$600 million plant would burn about 940,000 tons of coal per year
using a technology called fluidized bed combustion to produce enough
power for 135,000 homes. As a so-called merchant plant, it would sell
the power on the open market. The Sevier County Commission had four
options Monday: Adopt the petition and put it on the ballot; adopt it
without putting it to the vote; reject it; or take no action, which
means the referendum goes to the ballot if no further action is taken
during the next 30 days.

http://www.sltrib.com/news/ci_10321401

Coal plant sues to get rid of ballot initiative
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 08/28/2008 12:06:43 AM MDT

Attorneys for Sevier Power Company have sued Sevier County officials to get a citizens' initiative kicked off the ballot. They also seek an expedited decision as ballots have to go to print by mid-September.
"I feel confident the judge will rule in our favor," says Fred Finlinson, a Saratoga Springs attorney representing Sevier Power.
Finlinson notes that the proposed coal-fired power plant falls under the county's planned unit development (PUD) ordinance, not the conditional-use permit (CUP) section of county law.
Last spring, more than 1,500 voters signed petitions provided by Elaine Bonavita's Right To Vote (RTV) committee, specifically targeting Sevier County's conditional use ordinance as it relates to coal-fired power plants.
Known as Proposition 1, the measure would require voter approval before the county can issue conditional-use permits for such facilities. It would also revoke any permits already approved for pending power-plant construction.
"That becomes fairly critical," Finlinson, a former state senator, adds, ''because the conditional use in Sevier County simply doesn't apply to any commercial or industrial development.''
In early July, Sevier County commissioners allowed the initiative over the hotly contested power plant to advance to the ballot - then switched labels and began referring to Sevier Power's CUP request as a PUD.
The switch in terminology means the ballot measure no longer applies, says Finlinson.
RTV's attorney disputes that reasoning.
"This is a conditional-use permit they're seeking. Whether you call it a pig, horse or cow, it is what it is," asserts Jeff Owens, a land-use attorney with the Salt Lake City-based firm of Strong and Hanni.
Owens intends to argue that a recently passed state law, SB53, restricting local initiatives is unconstitutional, a legal battle he said he is eager to fight.
"Our suspicions that they were trying to skirt our initiative are confirmed, and I don't think that will sit well with the people of Sevier County."
cmckitrick@sltrib.com

New Utah law being put to test
SB53, which took effect in May, limits local initiative and referendum rights pertaining to land-use ordinances and their implementation. While the state Constitution protects those rights, a large body of case law prohibits putting administrative land-use actions to a public vote. In late April, the attorney general's office gave its opinion that courts might strike down the new law. So far, two cases involving SB53 await legal action, including the Sevier Power case and another involving a proposed development in Beaver County.

http://www.sltrib.com/opinion/ci_10207373
Sevier subterfuge: County out to foil efforts of its citizens
Tribune Editorial
Article Last Updated: 08/14/2008 07:16:09 PM MDT

It seems that since Sevier County officials failed to keep a citizen initiative that they don't like off the ballot, they're willing to try subterfuge to make the vote meaningless.
At the least, the county attorney and County Commission are engaged in a campaign of aggressive obfuscation apparently aimed at frustrating the democratic right of their constituents to have a voice in determining the county's future health and welfare.
The complicated conflict began when a grass-roots group of citizens objected to construction of the Sevier Power Project near Sigurd. The $600 million plant would burn about 940,000 tons of coal per year and spew CO2 and other pollution over the region.
When the County Commission went ahead and approved the plant anyway, the Right to Vote Committee managed to gather more than enough signatures in just over a week to put the proposal on November's ballot.
Their initiative would stop the power plant by revoking the current permit and requiring that voters approve any conditional-use permit for a coal-fired power plant. The group acted quickly, before a constitutionally suspect state law that bans initiatives and referendums on land-use issues went into effect.
At that point, the County Commission members decided not to object to the voter initiative. Instead, they contrived another tack. The initiative as written amends the "conditional-use permit ordinance." So these public servants labeled the project a "planned-unit development," which requires a different kind of permit. Even if voters approve the initiative, it would not block the Sigurd plant. Cute.
The planned-unit development label is ordinarily applied to residential projects that feature clustered housing and areas of open space. A power plant is no PUD. A conditional-use permit, on the other hand, is a variance to allow a project to go forward in a zone where it would otherwise be prohibited.
Sevier County Attorney Dale Eyre contends that the Sigurd plant was always referred to as a PUD, but an attorney for the citizens group disputes that in a complaint to the Utah Attorney General's Office, and says he has documents referring to a conditional-use permit for the plant. He also says Eyre did not notify the group of the time period when it could contest wording of the initiative.
Even if the county is innocent of skulduggery in this dispute, which seems highly unlikely, it is obviously guilty of standing in the way of citizens exercising their constitutionally protected right to legislate by initiative. That alone pollutes the atmosphere of Sevier County.

http://www.sltrib.com/ci_9597737
Muzzling the people: Legislature should not take lawmaking petitions away
Tribune Editorial
Article Last Updated: 06/15/2008 10:47:56 PM MDT

The Utah Constitution says that two groups can make laws: the
Legislature and the people. The first group is trying to cut the
second group out of the process. That isn't right, and the Utah
Supreme Court should put a stop to it.
This year, the Legislature passed Senate Bill 53, which says that
the voters of any county, city or town may not initiate a land use
ordinance or a change in a land use ordinance. That's the right of
initiative we all learned about in school.
For good measure, the Legislature also said that the people may
not require a land use ordinance passed by the local legislative body
(city council or county commission) to be submitted to the voters for
approval before it can take effect. That latter process is called a
referendum.
This bill, which was passed virtually without opposition in the
Legislature and signed quickly into law by Gov. Jon Huntsman, is an
insult to the plain wording of the Utah Constitution, which reserves
the rights of both initiative and referendum to the people.
In 2002, the Utah Supreme Court commented that "the power of the
Legislature and power of the people to legislate through initiative
and referenda are coequal, coextensive and concurrent and share 'equal
dignity.'" It follows that the Legislature can't take that power away
from the people in defiance of the Utah Constitution.
Why would the Legislature do this? To help developers, of course.
In the delicate balance between private property rights and community
interests, the Legislature is putting its thumb on the scale to favor
property.
Private property rights are a foundation of the republic. But when
one property owner does something that profoundly affects his
neighbors, and their property, there's got to be a balancing process.
That's where local planning and zoning laws come in.
SB53 passed during a bitter fight in Beaver County over the
redevelopment of Elk Meadows Resort into the $3.5 billion Mount Holly
Club. The citizen effort to make that project the subject of a
referendum will provide the test case for SB53 before the Utah Supreme
Court. The outcome of that case also will affect an initiative
petition in Sevier County targeting a proposed 270 megawatt coal-fired
power plant near Sigurd. Both of these projects will have far-reaching
effects on the neighboring communities.
In both fights, the people should have the right to seek a direct
voice at the ballot box, and the Legislature should not be allowed to
muzzle that voice.

Collection of articles on the Beaver County referendum fight and the Attorney General's office gives the opinion that SB53 is unconstitutional

Do you believe Governor Huntsman actually read SB53 before signing it? What about legislators? What about Senator Goodfellow? Was it just cut and pasted from an email from Steve Barth? And this is the shorter of the two referendum change bills...

I am posting these articles with a few things underlined by me.

http://www.sltrib.com/ci_9175754

Utah AG has doubts about new law banning voter initiatives on land issues
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/06/2008 11:22:19 PM MDT

Posted: 9:42 PM- The Utah Attorney General's Office believes there's a good chance that a new law banning voter initiatives on land-use ordinances is unconstitutional.
In an April 29 letter to Sevier County Attorney Dale Eyre - obtained by The Tribune today through an open-records request - Assistant Attorney General Thom Roberts said there is "a serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
Roberts wrote that by banning initiatives and referenda on land-use ordinances, the law "appears in direct conflict with the Utah Supreme Court cases" on such voting rights.
A group of Sevier County residents, dubbed the Right to Vote committee, turned in 1,536 signatures last Friday to put plans for a coal-fired power plant to a public vote. SB53 took effect Monday.
The bill's sponsor, along with the lobbyist credited as the brains behind the developer -friendly measure, defended its purpose.
"My legislation was in no way intended to take away the right of the people to petition their government," said Sen. Brent Goodfellow, D-West Valley City. "But I think that right applies to legislative matters, not administrative or executive. I was trying to put into statute what is already in case law."
Lobbyist Steve Barth agrees.
"The court has been very consistent in drawing that line and this was to save people the time and money of a wasted referendum effort," Barth said.
One of Barth's clients, Mount Holly Partners, faces extended litigation brought by Beaver County residents who oppose the multi-billion-dollar Mount Holly Club project planned for 1,800 acres in the Tushar Mountains.
A 5th District Court judge ruled last July against the residents and their desire to put that development to a public vote. Their attorney, Joel Ban, appealed the case to the Utah Court of Appeals and briefs are expected to be filed this week.
Ban said he suspected - but did not know - that developers had turned to the Legislature to try to cut off such citizen ballot movements.
"That's typical of these kind of developers," Ban added. "I'm not surprised by anything they've done."
Goodfellow's SB53, touted as mostly housekeeping during the recent Legislative session, sailed through with little opposition
"No one asked for our opinion on its constitutionality until now," said Attorney General spokesman Paul Murphy.
Eyre, the Sevier County Attorney dislikes SB53. And he agrees with the AG's opinion.
"It will help the county make its decision," Eyre said, noting that commissioners can either enact the Right to Vote committee's ordinance themselves, place it on November's ballot or reject it.
That ordinance would require that all future power plant applications go to a public vote and would also revoke any power permit granted between the filing date of the initiative and the time of the vote.
Gov. Jon Huntsman Jr. signed SB53 in mid-March.
"It's fair to say that we don't get an AG opinion on every bill that passes," said Lisa Roskelley, the Governor's spokeswoman.
"Considering it passed with such an overwhelming majority, we thought it was appropriate to sign it into law and if it came to this situation, any judicial clarification would be beneficial."
cmckitrick@sltrib.com

http://www.sltrib.com/news/ci_9200987
Beaver County: New law put to the test by developer
Attorneys argue that it renders a citizens referendum on a development moot
By Cathy McKitrick
The Salt Lake Tribune

A law that took effect Monday - a law the state Attorney General's Office believes could be unconstitutional - is being used as a developer's argument to get a voting-rights case tossed out of court.
When SB53 was going through the Legislature earlier this year, backers called it a "housekeeping" measure that simply put into code established case law.
Attorneys for a planned $3.5 billion Mount Holly Club development in Beaver County, however, argue the new law is much more than a technicality.
On Tuesday, one day after the new law took effect, lawyers representing Mount Holly Partners LLC, CPB Development LC and Beaver County, filed briefs in the Utah Court of Appeals asking that a lawsuit brought by a group of Beaver residents be dismissed.
The attorneys argued that SB53 renders a citizens referendum on the project moot and that the case belongs in the state Supreme Court, not the Court of Appeals.
Steve Barth, a lobbyist who claimed credit for the bill, lists Mount Holly as a client.
"The 2008 Utah Legislature has enacted revisions to the Utah Elections Code, effective May 5, 2008, which make land-use ordinances of the nature at issue in this case not subject to a referendum vote," the briefs state. In other portions of the documents, the attorneys specifically identify SB53 as the basis of their argument.
A message left for the Mount Holley attorneys was not returned Thursday.
Attorney Joel Ban, who represents the residents group, said he has 10 days to file his response.
"I don't think SB53 is constitutional - that's what I'm sure about," Ban said Thursday. "But in terms of its effect on this case, that's up in the air right now."
A letter released by the Utah Attorney General's Office Tuesday in a different voting-rights case - this one in Sevier County - said there is "serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
The Beaver County dispute heated up last spring when county commissioners passed an ordinance authorizing the county to enter into a developer's agreement, paving the way for phased construction of 2,000 multimillion-dollar homes around a ski resort and premiere golf course.
Members of a long-standing homeowners association went to court to halt the project and gathered 845 signatures to put it to a public vote. Last June, a 5th District judge ruled in favor of the developer, deeming the commission's decision administrative and therefore not subject to referendum.
The residents' group is appealing that ruling.
The original version of SB53 introduced in the Legislature stated that the voting ban applied to a land-use or zoning matter "administrative in nature." However, before it's first floor vote, that was replaced with broader language.
Lincoln Shurtz, legislative analyst for the Utah League of Cities and Towns, helped to craft the substitute version, which passed with minimal opposition.
The bill was changed out of concern the original went too far in trying to "draw a bright line between administrative and legislative" actions, Shurtz said.
"That line is quite blurry at times," Shurtz acknowledged.
cmckitrick@sltrib.com


What does SB53 do?

Lobbyist Steve Barth pushed for legislation to help his client, Mount Holly Partners LLC. In the recent legislative session, Sen. Brent Goodfellow, D-West Valley City, sponsored SB53 and Rep. Kevin Garn, R-Layton, co-sponsored it in the House. Here's what SB53 does:
* Bars legal voters of any town, city or county from initiating a land-use ordinance or a change to a land-use ordinance.
* Also bars the aforesaid voters from requiring the implementation of a land-use ordinance to be submitted to a public vote.

http://www.sltrib.com/news/ci_9342999
Mount Holly
Lawyer urges project to go to referendum
Developers, on their part, say the appeal should be dismissed
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/22/2008 01:05:32 AM MDT

A developer's legal battle to block a public vote on its plans for a
pricey ski-and-golf resort in Beaver County took a circuitous and
"desperate" detour through the state Legislature, charges an attorney
for resort opponents.
"In what can only be described as a series of desperate acts,
[developers] have taken extraordinary measures to try and avoid a
legal review of the trial court's conclusions," Joel Ban, attorney for
a grass roots group trying to put the Mount Holly project to a vote,
wrote in appeal briefs filed Wednesday.
"[Developers] hired a lobbyist, pursued an amendment to the
referendum statute and then filed a request to extend the briefing
schedule. Knowing that SB53 had been signed by the governor and would
become effective May 5, they nonetheless waited until the last day to
act," Ban wrote.
Sen. Brent Goodfellow's SB53 - a new law confusing to the point
state lawyers say it could be unconstitutional - took effect May 5.
A day later, CPB Development LC and Mount Holly Partners LLC used
it as the basis to ask that a resident group's appeal get tossed out
of court.
Ban wants the Utah Court of Appeals to allow the Mount Holly
project to go to a referendum vote. A lower court, in a complex
decision, ruled it could not.
Ban claims the issue is subject to referendum because the county
decision constituted legislative action - the enacting of an ordinance
establishing the details of the Mount Holly Club development
agreement.
Developers say the appeal should be dismissed, arguing that SB53
bans referendums on all local land-use issues. It also claims the
state Supreme Court is the proper forum for an elections dispute.
In late April the state Attorney General's Office questioned
SB53's constitutionality in a letter sent to Sevier County Attorney
Dale Eyre - concerning another right-to-vote effort, this one over a
controversial coal-fired power plant.
Assistant Attorney General Thom Roberts cited Article 6 of the
state Constitution, which provides for the people's fundamental right
to legislate through initiative and referenda.
That right - viewed as sacrosanct - bucks up against individual
property rights, said Dan McDonald, an attorney with Smith Hartvigsen,
the firm representing CPB and Mount Holly.
"More and more, citizen groups who dislike a landowner or
development organize themselves to challenge land-use decisions,"
McDonald said.
"The Supreme Court has repeatedly recognized that individual
property rights are important as well as deference to local land-use
authority."
McDonald intends to file a quick answer to Ban's brief today -
although the court could rule without it.
The weighty issues of SB53's constitutionality - and application
to this case - cannot be ignored, McDonald said.
"This has statewide impact and is important enough that we think
it will percolate to the Supreme Court, no matter who loses in the
Court of Appeals."
cmckitrick@sltrib.com

http://www.sltrib.com/ci_9597737
Muzzling the people: Legislature should not take lawmaking petitions away
Tribune Editorial
Article Last Updated: 06/15/2008 10:47:56 PM MDT

The Utah Constitution says that two groups can make laws: the
Legislature and the people. The first group is trying to cut the
second group out of the process. That isn't right, and the Utah
Supreme Court should put a stop to it.
This year, the Legislature passed Senate Bill 53, which says that
the voters of any county, city or town may not initiate a land use
ordinance or a change in a land use ordinance. That's the right of
initiative we all learned about in school.
For good measure, the Legislature also said that the people may
not require a land use ordinance passed by the local legislative body
(city council or county commission) to be submitted to the voters for
approval before it can take effect. That latter process is called a
referendum.
This bill, which was passed virtually without opposition in the
Legislature and signed quickly into law by Gov. Jon Huntsman, is an
insult to the plain wording of the Utah Constitution, which reserves
the rights of both initiative and referendum to the people.
In 2002, the Utah Supreme Court commented that "the power of the
Legislature and power of the people to legislate through initiative
and referenda are coequal, coextensive and concurrent and share 'equal
dignity.'" It follows that the Legislature can't take that power away
from the people in defiance of the Utah Constitution.
Why would the Legislature do this? To help developers, of course.
In the delicate balance between private property rights and community
interests, the Legislature is putting its thumb on the scale to favor
property.
Private property rights are a foundation of the republic. But when
one property owner does something that profoundly affects his
neighbors, and their property, there's got to be a balancing process.
That's where local planning and zoning laws come in.
SB53 passed during a bitter fight in Beaver County over the
redevelopment of Elk Meadows Resort into the $3.5 billion Mount Holly
Club. The citizen effort to make that project the subject of a
referendum will provide the test case for SB53 before the Utah Supreme
Court. The outcome of that case also will affect an initiative
petition in Sevier County targeting a proposed 270 megawatt coal-fired
power plant near Sigurd. Both of these projects will have far-reaching
effects on the neighboring communities.
In both fights, the people should have the right to seek a direct
voice at the ballot box, and the Legislature should not be allowed to
muzzle that voice.