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

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.