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Power plant up to voters

Published October 9, 2008 12:18 am

Utah high court says Sevier County initiative should be on ballot, may rule on constitutional issue later
This is an archived article that was published on sltrib.com in 2008, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Within hours of hearing oral arguments, Utah's Supreme Court ruled Wednesday to place a Sevier County citizens initiative back on November's ballot.

That order overturned a mid-September 6th District Court decision to yank it off.

Proposition 1 will allow voters to weigh in on a proposed coal-fired power plant to be built near Sigurd. Plans for the 299-acre facility have been progressing through the county's planning process for more than two years and the concept has driven an emotional wedge between opponents and supporters.

According to its terse order, the high court's full opinion will come later, "in due course." The complete ruling is expected to address whether SB53, passed by the 2008 Legislature to put some restrictions on local initiatives, is constitutional.

"It's quite remarkable," attorney Jeff Owens said of the court's decision to grant his clients' petition for extraordinary relief. For Owens, 30, it was his first time arguing a case before the state Supreme Court.

Power plant opponents applauded the news as a victory for democracy.

"We're elated," Jim Kennon with Sevier Citizens for Clean Air and Water said in a statement. "It's a good thing we now have the right to vote on something like a power plant that will have a long-term impact on our quiet, peaceful community."

The brisk court order stunned attorneys representing the Sevier Power Co.

"I'm not only puzzled, I'm surprised," said Fred Finlinson, a Saratoga Springs land-use attorney. "We're looking at our options for a rehearing."

At the heart of this case is Sen. Brent Goodfellow's SB53, which sailed through the Legislature with broad support and took effect May 5.

The new law prohibits the use of local initiatives to enact or change land-use ordinances. It also prohibits initiative efforts related to a city or county's implementation of land-use laws.

In April, the Attorney General's Office said that courts would likely strike down SB53 because it restricts a fundamental right guaranteed by the Utah Constitution.

On May 2, a group dubbed the Right To Vote committee submitted more than enough signatures to Sevier County, but Sevier Power's attorneys argued that SB53 nullifies that effort because county officials failed to validate the signatures until June 20.

Owens argued that SB53 is overly broad and unconstitutional.

Cass Butler, an attorney representing Sevier Power, argued that Article 6 of the state Constitution has limits.

What's more, Butler added, Sevier County has already mailed out 175 absentee ballots without Proposition 1.

"Perhaps they mailed those ballots out at their own risk," Justice Michael Wilkins responded during Wednesday's hearing.

Proposition 1 would amend the county's conditional use ordinance to require a public vote before permits are approved for any coal-fired power plant.

Finlinson, pointing to the county's approval of a planned unit development overlay zone in June 2006 - enacted specifically for this facility - said initiative proponents are two years too late and seek to amend the wrong section of the law.

"It's a heavy burden to make [the county] change all the ballots for this election," he added.

cmckitrick@sltrib.com