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Kristin Murphy, Deseret News
FILE - Site of the closed down Cottonwood Mall in Holladay on Monday, Sept. 10, 2018. Amid Utah's creeping housing crisis and frustrations with the Wasatch Front's wild growth, a resistance of residents fed up with high-density developments have harnessed the power of the referendum to block two major projects.

HOLLADAY — Amid Utah's creeping housing crisis and frustrations with the Wasatch Front's wild growth, a resistance of residents fed up with high-density developments have harnessed the power of the referendum to block two major projects.

Voters in two Utah cities have the chance to weigh in — but in one case, the vote may not stand.

In Orem, voters will decide the fate of a 1,600-bed student housing development near Utah Valley University.

For Holladay, the project in question includes 775 high-rise apartments, more than 200 homes, and dozens of shops and restaurants on the 57-acre site of the shuttered Cottonwood Mall.

The two referendum questions have been printed on Orem and Holladay ballots — but in Holladay's case, whether voters' decision is valid will be up to the Utah Supreme Court.

But as of Friday, days away from the election, the court hadn't yet handed down a ruling.

While the fate of the Orem project truly does lie in voters' hands, the Holladay case is muddled, both with frustration that a ruling hasn't yet come and with fear that — whichever way the vote swings — it will set a "dangerous" precedent.

For developers, they worry what kind of impact a ruling in favor of the referendum could have on future or even existing projects. For residents opposed to the project, they fear a negative ruling will send a message that their voices don't matter.

Holladay case

"It's kind of an uncomfortable situation," said Holladay Mayor Rob Dahle. "I think everybody involved … expected that we would have a decision by now."

Kristin Murphy, Deseret News
FILE - Site of the closed down Cottonwood Mall in Holladay on Monday, Sept. 10, 2018.

In mid-September, the court heard arguments but didn't rule on whether Holladay residents could vote down the Cottonwood Mall development.

At question is whether the decision being challenged is even referable to a ballot question under the Utah Constitution and whether the decision is "administrative," as city officials and developers argue.

On one hand, justices wondered whether a ruling in favor the developers would encourage city governments to create "anything goes" zones in which voters would lose their right to challenge new land uses.

On the other hand, justices wondered whether the approval of the plan — which developers Ivory Homes and Woodbury Corp. submitted this spring under a loosely defined zone that won legislative approval in 2007 — differs from other land-use decisions that are commonly considered administrative.

Ivory Homes and Woodbury Corp. have proposed a blend of high-rise apartments, single-family homes, shops and restaurants on a plot that has remained dormant for more than a decade.

The Holladay City Council unanimously approved the plan earlier this year, but citizens opposed to the project's density as it relates to surrounding neighborhoods and its potential impact on traffic collected about 6,500 certified signatures to put two questions on the Nov. 6 ballot: whether residents approve of the plan and whether they approve of an agreement to give the developers a tax increment subsidy.

City officials, arguing their vote was administrative, rejected the referendum, but stillput the issue on the ballot in case it would be challenged in court. Sure enough, it was.

Referendum organizers sued, and 3rd District Judge Richard McKelvie ruled the first question should be on the ballot but decided the second question amounted to an administrative act and ruled it was correctly rejected. Holladay officials and developers appealed the rulings to the Utah Supreme Court.

Paul Baker, referendum organizer and a member of the group Unite for Holladay, said his group has been lobbying voters to vote down the project, arguing the development would bring uncharacteristic density and "dramatic changes to our city."

Laura Seitz, Deseret News
FILE - Paul Baker, a member of Unite for Holladay, stands outside the property of the former Cottonwood Mall site in Holladay on Thursday, Sept. 6, 2018.

"This is our chance to be heard. And really be heard, " Baker said, expressing frustration that Holladay city officials chose to approve the project, despite residents' protests.

If the court rules against the referendum, "frankly, why do we have zoning at all?" Baker said.

"We feel like our vote matters," he added. "The right to vote is sacred in our country, and the courts should protect it."

But for Mack Woodbury, of Woodbury Corp., the ramifications of a ruling in favor of the referendum would be "kind of scary" to developers across Utah because it would "put into question land use policy and really what is referable."

Woodbury said he's "not against the referendum process," but he noted residents already weighed in on the issue during numerous public hearings on the development, and the City Council voted unanimously in favor of it because developers worked hard to address concerns.

"Regardless of what you do as a developer, there's always going to be very few ways to make people comfortable with something new, especially development near their homes, especially in this climate," Woodbury said, so "taking it to the ballot is just a really difficult thing."

Dahle said whichever way the court rules, "we will respect that and we will abide by that — and I would hope (opposition) would too."

Ivory Homes
Artist rendering of proposed Cottonwood Mall redevelopment plan. Ivory Homes and Woodbury Corporation are proposing to build a mixed-use development featuring of upscale housing types on about two-thirds of the property located in Holladay, with retail and office on the remaining one-third.

"Regardless of the outcome … we should come together as a community and move forward," the mayor said.

A trend of frustrated residents resorting to the power of the referendum isn't isolated to Holladay or even other parts of Salt Lake County (including Herriman, where residents were poised to fight a dense development until Salt Lake County Mayor Ben McAdams vetoed the project).

It's a symptom of the strain that growth is putting on Utah residents. According to an estimate from the University of Utah's Kem C. Gardner Policy Institute, Utah's population will grow from 3.2 million to 5 million by 2050, and much of it will be concentrated along the Wasatch Front, where undeveloped land is in short supply and higher-density proposals are in natural conflict with single-family neighborhoods.

Dane Waters, founder of the Initiative & Referendum Institute at the University of Southern California, told the Deseret News recently that the institute has received many more calls about local issues over the last two years, and that residents are more often using their constitutional powers to stop developments, particularly in the housing-starved West Coast.

He isn't an attorney and isn't familiar with the particulars of Utah's law, but as somebody who has literally written a book on direct democracy, he was surprised to hear the argument that a city council can perform an administrative function.

"I would argue that any action taken by a city council is a legislative act," Waters said. "If an elected body acts, that's a legislative act."

Orem

The fight's also happening in Utah County where a 1,600-bed student housing development near Utah Valley University, being built by the same developers, will also be on the ballot Nov.6.

Though the Holladay case wasn't seen as likely to have any bearing on that referendum effort, those behind the Orem referendum effort fear the Holladay case might set another precedent: If the court decided that the approval of the site plan wasn't legislative, then local governments could simply approve "anything goes" zones where voters will have lost their power to challenge land use by the time any details are known.

But as it appears now, the Orem vote will stand.

It's a similar story as in Holladay: opposition groups such as Let Orem Vote fear the project will bring too much density and traffic to an area where single-family homes once stood. Developers argue they worked hard to earn approval from city leaders for a project that will accommodate growth expected at the university.

The referendum, said Mark Tippets, director of Let Orem Vote, is "about sending a message to the City Council and the city that we don't want to have apartments in our neighborhoods."

"Let's say that we win," Tippets said. "It sends a message to Orem city that you shouldn't be approving or encouraging developers to develop land that is residential, regardless of where it is."

The referendum was placed on the ballot after organizers collected about 9,000 signatures.

"I think there's a place for high density, but it's not in the middle of a neighborhood — and not where you have to tear down homes," Tippets said.

"I think a lot of cities in Utah who are seeing this and see what the governments are saying, and they want to say, 'I want a role in how my city looks," Tippets added.

Taylor Woodbury, also of Woodbury Corp., argued the project is wanted in the community — by Utah Valley University officials who know their student housing already doesn't accommodate its growing population.

Jeffrey D. Allred, Deseret News
FILE - Utah Valley University students walk through the food court of the Sorensen Student Center on campus in Orem Wednesday, Jan. 21, 2015.

"We spent 18 months working with the university and (city leaders) refining the final plan to come up with something that would really benefit students," Taylor Woodbury said. "It's important for people to remember this isn't something that just happened out of nowhere. This is something (the university) spent a lot of time working toward."

Taylor Woodbury argued the project won't have as much of an impact on traffic as residents fear since students will be mostly walking to and from campus. He noted traffic engineers concluded the project would be beneficial to Orem traffic and that it would be the best use for the site.

"After so many people have spent so much time studying this project and making sure that it addresses the known issues, we need to trust the City Council to do their job," Taylor Woodbury said. "And they've done it really effectively."

But Tippets argued Utah Valley University is "more of a commuter school," and he worried there still will be a massive impact on traffic since students won't have to be enrolled full time to live there.

Taylor Woodbury urged voters who still haven't weighed in on the issue to visit www.uvush.com before casting their ballots to educate themselves about the project.

But even if voters shoot it down, that likely won't be the end of it.

Taylor Woodbury said the Utah Valley University Board of Trustees recently instructed the university to buy the ground in the event it fails at the ballot.

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"We would start working with (the university) to acquire the ground, and I believe this property's going to become student housing one way or the other," Taylor Woodbury said. "It doesn't change the fact that (the school) wants and needs this project, and I think one way or the other it's going to get built."

Contributing: Matthew Piper

Correction: An earlier version of this story incorrectly reported the number of units contained in the proposed student housing development in Orem as 1,600 units. The project would contain 1,600 beds. The proposed unit count is 450.