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
Showing posts with label Steve Barth. Show all posts
Showing posts with label Steve Barth. Show all posts
Wednesday, September 10, 2008
Wednesday, September 3, 2008
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).
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:
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.
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.
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.
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.
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