Riverton citizens fighting for rights, justices told

The fight over a proposed Wal-Mart in Riverton isn't about Wal-Mart at all, an attorney told the state Supreme Court Monday. It's about citizens' right to direct democracy.

Attorney James K. Tracy, representing a handful of Riverton residents opposed to a 100-acre land development first passed by a lame-duck City Council in a rare Saturday morning vote in January, told justices the city has attempted to thwart residents' efforts to put the issue to a vote.

Officials did that, he said, by repealing the January ordinance after development opponents gathered more than 5,000 signatures — thousands more than necessary — to get the issue on the ballot but before it went to a vote. They then passed a set of four ordinances in May that he said are substantively identical to the January ordinance.

"Riverton cannot evade the referendum process by repealing the . . . ordinance" only to repass it, he said.

But City Attorney David L. Church said the residents have a misunderstanding of the reasoning behind the repeal of the old ordinance and the creation of four new ones.

"The May ordinances are significantly different from the January ordinance," he told the justices.

The January ordinance, he said, was a full-fledged development plan. It not only changed zoning designations for the chunk of land just east of Bangerter Highway south of 11800 South, but also specified how the newly designated commercial property would be developed.

The new ordinances, he said, are a set of zoning changes only that do not specify what will go into the project. He said individual zoning changes are considered administrative, not legislative, and are therefore not subject to the referendum process, but even if they were, the differences between the January ordinance and the new ordinances mean the city did not violate any procedures.

"The question we are arguing today is, 'Should the January plan be placed on the ballot?' " he said. "I could respond, 'What placed on the ballot?' " because the January ordinance has been repealed and is moot.

The residents, in their petition to the high court, seek to have the January and May ordinances placed on the ballot together in a special election or, if they can't get that, they want the court to invalidate the May ordinances by clarifying the repeal-and-repass ban and to put the January ordinance on the ballot alone.

Rep. David L. Hogue, R-Riverton, is one of the Riverton residents who petitioned the court for intervention. He told the justices Monday, "I can appreciate what they (council members) were trying to do and recognize they thought they were doing the right thing. But I don't think they were."