Case could hurt small-town government

Municipal governments and several previous Utah Supreme Court decisions would be threatened if the high court rules in favor of a group of Mapleton residents attempting to reverse a rezoning of Maple Mountain, an attorney for Mapleton argued Thursday.

A key question in the Supreme Court case regarding Wendell Gibby's mountain development plans is whether the Mapleton City Council's action to rezone the property was legislative or administrative. Legislative action allows for a referendum, but administrative decisions do not.

Most small cities and towns in Utah have a mayor and council form of government, which makes both administrative and legislative decisions. Larger cities have an administrative form of government in which the council makes legislative rulings and the mayor handles administrative decisions.

The Friends of Maple Mountain sued to be allowed a referendum vote about whether the City Council should have rezoned Gibby's mountain property two years ago to allow 47 homes overlooking the south Utah County city.

In February 2008, 4th District Judge Darold McDade ruled that the decision to rezone Gibby's 120-acre property would not be turned over to voters for a referendum, saying "the newly enacted zoning change constitutes an administrative change and is therefore not subject to referendum." The Friends of Maple Mountain appealed.

The group's attorney, Anthony Schofield, argued that the rezone was an appeasement to settle five lawsuits Gibby had lodged against the city and that the residents should have been given a say.

Schofield said 29 percent of registered voters in Mapleton signed a petition for the referendum, and the lower court erred in disallowing it.

Eric Johnson, Mapleton's attorney, said the rezoning from a critical-environmental zone, which would have allowed 23 homes, to the new planned-development zone was mostly an issue of density. Johnson said his office once considered just changing the text of the zone, but instead created a new zone so only Gibby's property would be affected.

Schofield argued that the new zone was about more than density. It also reduced lot sizes from 3 acres to 1/2 acre, allowed sheds and barns to be built where they weren't permitted before and sanctioned construction up to the edge of the Bonneville Shoreline Ridge.

Gibby's attorney, Dayle Jeffs, said many of the members of Friends of Maple Mountain live near Gibby's property. They had their say in hours of testimony before the Planning Commission and City Council, Jeffs said.

Whether a decision is administrative or legislative depends on the facts, he said.

"There's volumes of evidence why this is administrative," Jeffs said.

If other rulings are overturned by the Friends of Maple Mountain case, the form of government in many smaller municipalities could also be threatened, he indicated.

The memorandum of understanding signed by Gibby and Mapleton officials in May 2008 to resolve the lawsuits is being challenged, as well, Johnson said.

"Not every ordinance is legislative, but all legislation must be by ordinance," he said, calling the Friends of Maple Mountain lawsuit "a tactical attack" on Mapleton's form of government.

e-mail: rodger@desnews.com