PROVO A court ruling will allow a Mapleton man to take a huge step in an "uphill battle" to develop his property on Maple Mountain, but the dispute isn't over just yet.
In a trial that pitted Mapleton residents against elected city officials, 4th District Judge Darold McDade ruled last Friday the decision to rezone Wendell A. Gibby's 120-acre property won't be turned over to voters for a referendum. Based on findings examined over a five-day bench trial, McDade stated, "the newly enacted zoning change constitutes an administrative change and is therefore not subject to referendum."
Jim Lundberg, a Mapleton resident who led the call for a referendum, said he's disappointed with McDade's decision because it would be in the city's best interests to let citizens give a thumbs up or down on the new zoning ordinance.
"At least, whatever the outcome, they would have had an opportunity to have a voice in the matter," he said.
The dispute came before the court after local residents and Mapleton city officials disagreed over whether voters should get a say on the move to upgrade Gibby's property at 2000 E. Dogwood Drive from critical environment zone to a planned development on which 47 single-family residential units could be built.
In September 2007, Friends of Maple Mountain Inc. gathered a petition with more than 1,100 signatures requesting a referendum, but city officials disregarded their behest, calling the rezone an administrative act. The group responded Oct. 15 by obtaining a temporary restraining order, blocking any City Council action on the rezone until a judge ruled.
Lundberg said his group is still uncertain whether they will appeal McDade's ruling. Anthony Scofield, the group's attorney, said they will have to decide soon because the deadline for appeal ends 30 days after a court order is filed.
Though an appeal has not yet been filed, other unresolved issues could stall the rezone.
Gibby and Mapleton have sparred for nearly six years over issues ranging from civil rights to eminent domain. To avoid litigation, the parties entered a memorandum of understanding May 15, 2007, in which both agreed to several terms, including a rezone of Gibby's property to allow development of 47 units.
Gibby said the court case between Mapleton and Friends of Maple Mountain has delayed development and cost him a substantial amount of money. Now he wants 13 more units.
"I think that's a fairly generous offer to the city," he said.
Gibby's attorney, Dayle Jeffs, said the city has not lived up to its part of the bargain. As part of the MOU, the city promised to grant permits to move power lines that run through Gibby's land and that hasn't happened, he said.
"Anytime you don't meet time frames, there's a cost that goes with them," Jeffs said.
City Attorney Eric Todd Johnson said the city officials are genuine in their desire to resolve the matter, but the court forbade them from taking action on any aspect of the rezone while the trial was in play.
"The delay was beyond the city's control," he said.
Johnson also said it would be ill-advised to make any sweeping changes to the rezone because city officials would have to start over on the rezone process which would give Friends of Maple Mountain time to appeal McDade's ruling and obtain another stay on the rezone.
Though the city hasn't made a counter offer yet, Gibby expects there will be some give and take on the issue. He also called his struggles with Mapleton a long, difficult road."I honestly wouldn't wish it on anyone," he said. "It's a very painful process."