Agenda - Planning Commission - 02/05/2009

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t, December 10; 20081 Volume 21 No. 23 (-'J legal requirements, the Board of County- Commissioners (the "Board") placed the initiative on the general election ballot. If passed by voters, the initiative would make two changes to the county zoning ordinance. It would: (1) reqillre voter approval of con- ditional use permits requested for a coal-fired power generation facility; and (2) require'revocation of any conditional use permit for a coal-fired power generation facility that had been issued in the interim period after the application for the initiative petition had been filed with the clerk and before the vote. SPC brought an action in district court against the clerk and the Board (hereinafter, collectively, the "County"). It asked the court to prohibit the inclusion of the initiative on the ballot. In support of its request, it cited Utah Code S 20A-7-401(b), which expressly prohibited voters from initi- ating "a land use ordinance or a change in a land use ordinance." The County contended S 20A-7-401 was unconstitutional in that it directly conflicted with the initiative rights of the people provided under TJtah's Constitution. Thus, the County argued, the ballot initiative was legally proper and should be permitted. SPC countered that even if the court found that voter initiation of a land use ordinance was permitted, Hansen's initiative was administrative in nature and thus outside the scope of the voter's legislative power. The district corn;t found for SPC. It ordered the initiative be removed from the ballot. - Hansen, who had intervened in the case, appealed. ~ / \. DECISION: Reversed. The court reinstated the initiative to the ballot after finding that: (1) S lOA-7401's ban on voter initiation of a land use ordinance was un- constitutional; and (2) Hansen's initiative was legislativ:e in nature and therefore susceptible to the initiative process. ' In reaching its conclusion, the court noted that Article Iv, Section 2(b) of the Utah Constitution specifically provided for initiative legislation at the cOunty level. Although the legislature was the usual instrument by whicI1the, people expressed their collective will on matters of public pol- icy, 1Jle Utah Constitution clearly gave citizens an equivalent legislative pow:er. The Constitution also authorized the legislature to establish by law:the process to be followed, and to "provide the conditions, the man- , ney and the time within which the initiative power is to be exercised." Section 20A-7-401's direct prohibition on the subject of an initiative that vjaf'/otherW:ise within the conditions, manner, and time restrictions im- posed by law was peyond that power. The legislature's authority to pro- vide "conditions" did not mean, as SPChad asserted, that the legislature had the power to foreclose any subject from initiative action. If that was @ 2008 Thomson Reuters/West 5 49'