Beaver County: New law put to the test by developer

A law that took effect Monday - a law the state Attorney General's Office believes could be unconstitutional - is being used as a developer's argument to get a voting-rights case tossed out of court.
    When SB53 was going through the Legislature earlier this year, backers called it a "housekeeping" measure that simply put into code established case law.
    Attorneys for a planned $3.5 billion Mount Holly Club development in Beaver County, however, argue the new law is much more than a technicality.
    On Tuesday, one day after the new law took effect, lawyers representing Mount Holly Partners LLC, CPB Development LC and Beaver County, filed briefs in the Utah Court of Appeals asking that a lawsuit brought by a group of Beaver residents be dismissed.
    The attorneys argued that SB53 renders a citizens referendum on the project moot and that the case belongs in the state Supreme Court, not the Court of Appeals.
    Steve Barth, a lobbyist who claimed credit for the bill, lists Mount Holly as a client.
    "The 2008 Utah Legislature has enacted revisions to the Utah Elections Code, effective May 5, 2008, which make land-use ordinances of the nature at issue in this case not subject to a referendum vote," the briefs state. In other portions of the documents, the attorneys specifically identify SB53 as the basis of their argument.
    A message left for the Mount Holley attorneys was not returned Thursday.
    Attorney Joel Ban, who represents the residents group, said he has 10 days to file his response.
    "I don't think SB53 is constitutional - that's what I'm sure about," Ban said Thursday. "But in terms of its effect on this case, that's up in the air right now."
    A letter released by the Utah Attorney General's Office Tuesday in a different voting-rights case - this one in Sevier County - said there is "serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
    The Beaver County dispute heated up last spring when county commissioners passed an ordinance authorizing the county to enter into a developer's agreement, paving the way for phased construction of 2,000 multimillion-dollar homes around a ski resort and premiere golf course.
    Members of a long-standing homeowners association went to court to halt the project and gathered 845 signatures to put it to a public vote. Last June, a 5th District judge ruled in favor of the developer, deeming the commission's decision administrative and therefore not subject to referendum.
    The residents' group is appealing that ruling.
    The original version of SB53 introduced in the Legislature stated that the voting ban applied to a land-use or zoning matter "administrative in nature." However, before it's first floor vote, that was replaced with broader language.
    Lincoln Shurtz, legislative analyst for the Utah League of Cities and Towns, helped to craft the substitute version, which passed with minimal opposition.
    The bill was changed out of concern the original went too far in trying to "draw a bright line between administrative and legislative" actions, Shurtz said.
    "That line is quite blurry at times," Shurtz acknowledged.
    cmckitrick@sltrib.com
   
   
   What does SB53 do?
   
    Lobbyist Steve Barth pushed for legislation to help his client, Mount Holly Partners LLC. In the recent legislative session, Sen. Brent Goodfellow, D-West Valley City, sponsored SB53 and Rep. Kevin Garn, R-Layton, co-sponsored it in the House. Here's what SB53 does:
    * Bars legal voters of any town, city or county from initiating a land-use ordinance or a change to a land-use ordinance.
    * Also bars the aforesaid voters from requiring the implementation of a land-use ordinance to be submitted to a public vote.