Agenda - Planning Commission - 04/02/2009

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Zoning Bulletin March 10, 2009 I Volume 3 I No.5 --') Subsequently, multiple people completed and submitted referendum petitions to the county clerk. The petitions had enough signatures to require a referendum. Meanwhile, Save Beaver County, The Beaver River, and Varied Es- tates (BRAVE), an alliance of county citizens, filed an administrative appeal, challenging the adoption of the Ordinance. The county Com- missioners denied the appeal, noting a "lack of jurisdiction." BRAVE then filed a complaint against the county in district court. The parties agreed to an expedited trial to determine, among other is- sues: whether the Ordinance was subject to a referendum vote. The court ruled that because the county had deni€d jurisdiction to hear BRAVE's administrative appeal on the grounds that it had acted legislatively iD. adopting the Ordinance, it was judicially estopped (le- gally prohibited from) now taking the position that it acted adminis- tratively. However, the court found that such "judicial estoppel" could only be applied to BRAVE; it could not be applied to Mt. Holly and its developer~who had intervened in the case. Therefore, the court continued its analysis of the issue. It found that the county's action in adopting the Ordinance was administrative. It concluded that the Or- dinance was therefore not subject to referendum. . ) BRAVE appealed. DECISION: Affirmed in part and reversed in part. The Supreme Court of Utah held that the Ordinance was subject to referendum. The court explained that although administrative zoning matters were not referable, the state constitution guaranteed a right to referenda if an' ordinance was enacted legislatively. The court found that in enacting the ordinance, the county clearly intended to act legis- latively. This was clear given that: (1) language in numerous provisions of the Ordinance referred to its adoption as a "legislative action;" and (2) the county affirmed that it had acted legislatively when it denied BRAVE's administrative appeal, citing "lack of jurisdiction." The court held that the county was estopped (legally prohibited) from now as- serting that its action was administrative. Finding the adoption of the Ordinance was legislative, the court concluded that the Ordinance was subject to referendum. Disagreeing with the lower court, the Supreme Court also held that the presence of intervening parties (i.e., Mt. Holly and its developer) did not affect BRAVE's challenge. In so holding, the court emphasized the significance of the constitutional right to referen- dum and the court's duty to protect that right. The court said that al- ) though Mt. Holly and its developer could be impacted by the outcome -/' of the referendum, they had no stake in the actual controversy between the citizens and the county. . @ 2009 Thomson Reuters 9 111