The push for a public vote to prevent a coal-fired power plant in Sevier County could flame out amid new fears that last fall's successful ballot measure, seeking to pave the way for such an initiative, may not apply to the proposed facility after all.

In November, voters approved Proposition 1, which amended the county's conditional-use process and mandated that approval of coal-fired plants go to voters.

However, county commissioners in January sought advice on the issue from the state's property-rights ombudsman. Late last month, independent attorney Stephen Christensen, on behalf of the ombudsman, issued a nonbinding opinion that declared Sevier Power Co.'s application to build a 270-megawatt facility on nearly 300 acres in Sigurd was complete on Dec. 19, 2007 -- well before the grass-roots Right to Vote Committee filed its initiative petition on March 18, 2008.

"That decision says we're vested," argues Bruce Taylor, co-owner of Sevier Power. "Although it's nonbinding, it is based on Utah land-use law."

It gives Sevier Power an important edge, Taylor notes. Within 30 days of the opinion's release, commissioners must decide whether to approve the plant.

"If they choose not to sign," Taylor vows, "we will pursue litigation."

Eric Johnson, an attorney representing county officials, says Christensen ruled only on a portion of the issue, skirting a still-pending lawsuit filed in July 2006 by Sevier Citizens for Clean Air and Water.

"There's this line of cases from the Utah Supreme Court that suggests that the county not take action because of the pending lawsuit," Johnson said, citing the Midvale Family Center as an example.

The ultimately successful Midvale suit stretched well over a decade, long after the shopping center was built.

"We sued [Sevier County] over how the zoning happened," says Jim Kennon, president of Sevier Citizens, adding that county officials failed to follow their own procedures.

And if his group has to, Kennon says, it will fight all the way to the state Supreme Court. If successful, the land's zoning would revert to agricultural.

Kennon dismisses the latest twist with the ombudsman's opinion.

"It's not binding on either party," he says, "so all [the commissioners] have to say is they don't accept it."

Last October, Sevier Citizens filed a related suit over a federal law that allows only 18 months between the time an air-quality permit is issued and construction begins. Sevier Power's permit is past the four-year mark.

In addition, Elaine Bonavita, who heads up the Right to Vote Committee, bucks the company's argument that this dispute isn't about conditional-use zoning.

"Our position all along is that Sevier Power is in the midst of the conditional-use-permit process," Bonavita says, "even though they've removed that label from all their documents."

Part of the conundrum facing Sevier County commissioners is the potential backlash from constituents if they ax a public vote on the power plant, says Salt Lake City lawyer David Irvine, an advocate of citizen initiatives.

"People said they wanted a voice," Irvine says. "The commission would put themselves in a bad political spot by denying that vote."

cmckitrick@sltrib.com