"In what can only be described as a series of desperate acts, [developers] have taken extraordinary measures to try and avoid a legal review of the trial court's conclusions," Joel Ban, attorney for a grass roots group trying to put the Mount Holly project to a vote, wrote in appeal briefs filed Wednesday.

"[Developers] hired a lobbyist, pursued an amendment to the referendum statute and then filed a request to extend the briefing schedule. Knowing that SB53 had been signed by the governor and would become effective May 5, they nonetheless waited until the last day to act," Ban wrote.

Sen. Brent Goodfellow's SB53 - a new law confusing to the point state lawyers say it could be unconstitutional - took effect May 5.

A day later, CPB Development LC and Mount Holly Partners LLC used it as the basis to ask that a resident group's appeal get tossed out of court.

Ban wants the Utah Court of Appeals to allow the Mount Holly project to go to a referendum vote. A lower court, in a complex decision, ruled it could not.

Ban claims the issue is subject to referendum because the county decision constituted legislative action - the enacting of an ordinance establishing the details of the Mount Holly Club development agreement.

Developers say the appeal should be dismissed, arguing that SB53 bans referendums on all local land-use issues. It also claims the state Supreme Court is the proper forum for an elections dispute.

In late April the state Attorney General's Office questioned SB53's constitutionality in a letter sent to Sevier County Attorney Dale Eyre - concerning another right-to-vote effort, this one over a controversial coal-fired power plant.

Assistant Attorney General Thom Roberts cited Article 6 of the state Constitution, which provides for the people's fundamental right to legislate through initiative and referenda.

That right - viewed as sacrosanct - bucks up against individual property rights, said Dan McDonald, an attorney with Smith Hartvigsen, the firm representing CPB and Mount Holly.

"More and more, citizen groups who dislike a landowner or development organize themselves to challenge land-use decisions," McDonald said.

"The Supreme Court has repeatedly recognized that individual property rights are important as well as deference to local land-use authority."

McDonald intends to file a quick answer to Ban's brief today - although the court could rule without it.

The weighty issues of SB53's constitutionality - and application to this case - cannot be ignored, McDonald said.

"This has statewide impact and is important enough that we think it will percolate to the Supreme Court, no matter who loses in the Court of Appeals."

cmckitrick@sltrib.com