As Election Day approaches, Utah’s Supreme Court still hasn’t decided if Holladay voters can decide the fate of the Cottonwood Mall development

Friday came and went without answering big questions for voters on a controversial high-density development planned for the old Cottonwood Mall site in Holladay.

Nor is it clear if those answers will come before polls open Tuesday.

And that means some voters will likely weigh in without knowing for sure if their votes will be counted, and if they are counted, if that vote will mean anything.

Six weeks ago, the Utah Supreme Court expedited its hearings and seemed to signal a quick ruling on the legality of a ballot initiative to overturn the city’s approval of the massive planned housing, office tower and retail project near 4800 S. Highland Drive.

Holladay’s elected leaders, builders with Ivory Homes and Woodbury Corp. and residents in support of and opposed to the 57-acre, $500 million development known as Holladay Quarter left a packed courtroom in Salt Lake City all but sure the high court would issue its ruling well before Election Day.

But the justices have been silent, keeping those key players and observers of the high-profile zoning dispute guessing.

(Eli Lucero | Pool photo) Chief Justice Matthew Durrant, center, asks a question as Associate Chief Justice Thomas Lee, left, and Justice Deno Himonas listen, during the oral arguments of State v. Van Huizen on Monday, March 19, 2018, in Logan. The Utah Supreme Court has yet to rule on a crucial election case in Holladay, even as Election Day is fast approaching.

“People ask me all the time about what’s taking so long. I can think of a dozen theories, but the fact is that I have no clue,” said Alan Sullivan, a top attorney in the case. “That’s totally up to the Supreme Court.”

And this is no legal softball. The case in question, called Baker v. Carlson, pits issues of property rights and city authority to regulate land use in Utah against rights of citizens to hold their elected officials accountable.

Still, Salt Lake County Clerk Sherrie Swensen, whose office oversees elections, said Friday she was “kind of surprised” the high court hadn’t rendered an opinion, as her staff and city officials explored their options for last-minute maneuvers should the court rule Monday or Tuesday.

Though there’s every reason to think the vote will go ahead as scheduled, Swensen said should a legal order come down even late Tuesday, election officials had the ability to block invalidated counts from being released.

During the delay, only one side has been campaigning. The city and developers haven’t reached out to voters these six weeks, even as an energized opposition group called Unite for Holladay has pressed its message with yard signs, mailers and automated calls urging residents to vote the city’s Proposition 14 down and essentially force a restart to the planning process.

“We’re advocating the position we’ve always advocated, that this project doesn’t make sense for Holladay,” said lead organizer Brett Stohlton.

‘It’s frustrating’

Holladay Quarter would bring a spread of retail outlets, restaurants and office towers over a choice piece of empty land where the Cottonwood Mall once stood. Those commercial buildings would be combined with a 775-unit high-rise apartment complex and 210 single-family homes, including what Ivory Homes says will be luxury condos, brownstones and manor houses.

“It’s taken a lot of time, a lot of effort,” said Clark Ivory, CEO of Ivory Homes, Utah’s largest homebuilder. “It’s been a little more challenging than any development we’ve ever done.”

Unite for Holladay has been fighting the project for almost a year, claiming it is too big, too dense and too heavy on housing for Holladay’s economic and community needs.

After more than 18 months of public hearings, community rancor, zoning and legal minutiae, and, more recently, lawsuits and countersuits, to say folks at Holladay City Hall are a little perturbed at the Supreme Court’s inaction is putting it mildly.

“We all thought that we’d have a decision by now and we would have been able to put the issue to rest and move forward one way or the other,” a dejected Mayor Rob Dahle said as the election neared. “I don’t know what else to say about it, other than it’s frustrating.”

Legally, the case boils down to whether the Holladay City Council made new and more widely applicable law when it voted to approve the plan to develop Holladay Quarter, or narrowly applied its existing zoning rules.

New lawmaking, or “legislative” actions, can be second-guessed by citizens at the polls through the initiative process, while using zoning already on the books is considered “administrative” and not legally subject to referendum.

Thousands of Holladay residents signed petitions over the summer seeking a citywide ballot to challenge the City Council’s approvals, but the city invalidated them, saying the council’s decisions were administrative. Residents Paul Baker and Stuart Stephens sued City Clerk Stephanie Carlson over that call, and, with election deadlines for mail-in ballots already looming, 3rd District Judge Richard McKelvie heard the case in early September.

Turning aside the city’s arguments, McKelvie found Holladay’s site master plan vote was legislative and subject to the referendum, while approval of its contract with Ivory, he agreed, was administrative. That decision confirmed Proposition 14′s spot on the ballot, but it was also appealed to the Utah Supreme Court, the state’s legal venue for emergency ballot issues.

Whatever happens now with a vote, said Todd Godfrey, attorney for Holladay, “We’ve got to have that legal answer. The worst circumstance I can think of is for something to happen where we didn’t get an answer to that question.”

‘Move ahead or move on’

Developers thought they had a deal clinched in May with the council’s go-ahead — only to see an attempt at “zoning by referendum” potentially kill it, Clark Ivory said Friday.

“We get approval. We get tenants. We get everyone working with us in a direction helping to make it successful — then we are delayed by a petition on a project we thought was already zoned,” Ivory said.

The company fielded its own legal team in arguments in 3rd District and the Supreme Court, backing the city’s claims.

Ivory and Jeff Woodbury, executive vice president of Woodbury Corp., issued a joint statement in late October saying they hoped the high court would rule soon, nixing the public vote. Now, with the prospect of the referendum going ahead Tuesday, Clark Ivory said Holladay Quarter could fall through even with a court ruling in Ivory’s favor.

(Al Hartmann | The Salt Lake Tribune) Signs in the front yards of homeowners in the area of the old Cottonwood Mall site near 4800 S. Highland Drive in Holladay on Tuesday, March 13, 2018.

“What we’re looking for is clarity so we can have confidence to move ahead — or know that we need to move on,” he said. “If we believe we’re going to be delayed too much and that the citizenry is against the project, then we are likely to just say we’re done, even if we receive a decision from the court.”

In their statement, the developers said they chose not to publicly lobby for their positions in favor of Proposition 14. “We do not want to cause more division or contention in Holladay,” they wrote. “This is now a legal matter with implications much larger than this development.”

“It’s true we haven’t run a campaign and haven’t had the ability to impact individual thinking when it comes to a vote,” Ivory added in an interview. “But that doesn’t change the fact that a lot of people want to see a development happen at the Cottonwood Mall and are very excited about our particular development.”

‘We’re cool’

Stohlton, with Unite for Holladay, said the group has mounted a hard but thoughtful campaign since McKelvie, the district judge, upheld one part of the referendum petition.

As the last legal word on the matter until Supreme Court justices chime in, Stohlton said McKelvie’s decision gave Unite for Holladay what it needed to rally community support. Instead of worrying about a high court reversal, he said, “we’re encouraging everyone to get out and vote and if they feel like we do, to vote against Proposition 14.

“We can control what we can control,” Stohlton said. “We’re here and until somebody tells us otherwise, we’re cool.”

According to recent reports filed with state election authorities, Unite for Holladay has taken in over $160,000 in campaign donations.

The group’s opposition doesn’t just spring from the project’s high density or taller buildings, Stohlton said. Given the loss of Cottonwood Mall to online shopping, Holladay Quarter — with its prospect of adding up to 3,000 new city residents to a population of 33,000 — represents the wrong mix of homes and commercial development to keep the city’s tax base afloat.

“We’re effectively converting our best development opportunity and transitioning into high-density residential housing while giving developers a subsidy to do that,” he said, adding that the referendum is also about public accountability.

“We wouldn’t be having this Supreme Court conversation if city officials took a breather and said, ‘I actually represent these people. This is a substantial part of my community that wants to be heard on this Cottonwood Mall plan.’ ”

‘Dragged through the mud’

Early voting records as of a week before Election Day showed at least 4,600 Holladay residents had already mailed in ballots. If there’s not a last-minute ruling, Salt Lake County will handle the vote count Tuesday night, with the result later certified by the Holladay City Council.

“I can’t imagine them ruling on Monday,” Dahle said. “It’s just a mess.”

The mayor acknowledged that with the prospect of a high court decision dangling these past six weeks, there’s been little public effort in support of Prop. 14, which appears on the city ballot as a for-or-against vote on “the amended Site Development Master Plan.”

And though city leaders believe in the economic promise of Holladay Quarter and feel strongly the council’s 6-0 approval of the plan should be upheld, the mayor said state law prevents the city from spending taxpayer funds on persuading voters.

“Almost certainly the vote will go against the project now,” he predicted, “because there just hasn’t been any activity on the part of the developer or any citizens to campaign for the changes or the approved project.”