Agenda - Planning Commission - 12/06/2012

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November 25, 2012 1 Volume 6 1 Issue 22 Zoning Bulletin Citizens filed an appeal to the Council's decision with the Grand County Board of Adjustment (the "Board"). The Board determined that it lacked ju- risdiction to consider the appeal. It concluded that Ordinance 454 was a legislative act and therefore could only be reviewed by the district court. Citizens had already filed a challenge to Ordinance 454 in district court, arguing that the Ordinance should be set aside because it had been adopted illegally. Citizens amended their complaint to argue that the Council's adop- tion of Ordinance 454 was administrative, rather than legislative, and that the matter must therefore be remanded to the Board so that Citizens could exhaust their administrative remedies, as required by § 17-27a-801(1) of the County Land Use, Development, and Management Act ("CLUDMA"). The district court ruled that the council had acted legislatively in enacting Ordinance 454, that the ordinance furthered the purpose of CLUDMA, and that it was not otherwise illegal. Citizens appealed, again arguing that the Council's approval of Ordinance 454 was administrative and therefore should be heard by the Board, not the district court. DECISION: Judgment of district court affirmed. The Supreme Court of Utah held that Ordinance 454 was a legislative act and therefore properly before the court. The court explained the difference between administrative and legislative acts: "[L]egislative power gives rise to new law, while [administrative] power implements a law already in existence." Legislative power generally: 1? involves the promulgation of laws of general applicability; and is based on the weighing of broad, competing policy considerations." In its decision, the court recognized that some "zoning decisions are more difficult to classify, as they involve acts in the gray area between the clearly legislative and the clearly [administrative]." The court provided another guideline: when land use decisions "are at least arguably legislative," the court will "give understandable deference to the formal nature of the govern- ment body involved in making them and the formal nature of the zoning ordinance Under these two guidelines, the court concluded that the County acted in its legislative capacity in adopting Ordinance 454 because: (1) it was a new law of general applicability that the Council adopted after weighing policy considerations; and (2) it had the formal nature of a legislative act. Citizens had contended that, rather than weighing policy considerations and creating new law, Ordinance 454 simply implemented law already in existence. Specifically, they contended that the 2002 Resolution created the PUD and granted the approvals associated with the project; thus, Ordinance 454 merely implemented existing law by allowing minor deviations from the approvals granted in the 2002 Resolution. Citizens also argued that as a "site -specific land use decision," Ordinance 454 was not a law of general applicability. In other words, because Ordinance 454 governed one parcel of property owned by a single owner, Citizens contend that it could not be ) considered a law of general applicability. 10 ©2012 Thomson Reuters