Date: March 3rd 2010

Mapleton residents have won a victory in a long-running dispute between
the city and Wendell Gibby. Last Friday the Utah Supreme Court ruled
that rezoning of Gibby's property was a legislative act, thus giving
residents the right to proceed with a referendum that, if successful,
would revert the rezone. The Court reversed a trial court ruling that
found the rezoning was an administrative act not subject to a referendum.

Utah citizens have a constitutionally guaranteed right to legislate
directly, through referenda, to challenge and overrule action taken by a
legislative body. Administrative matters, however, are not referable.
While this black letter law is easy to state, determining whether a
particular act is legislative or administrative has proven difficult,
particularly given the confused state of case law on the subject. The
Court admitted as much saying, "In our effort to facilitate appropriate
citizen action while not unduly fettering the activities of municipal
government, we continue to adjust our approach to the
legislative/administrative determination based on the concerns brought
before us in the cases."

If the nature of an ordinance is not "readily discernable," then "courts
must look to the substance of the city council's action to determine if
it is legislative or administrative." The 1994 case of Citizens
Awareness Now v. Marakis, established a four-part test to make this
determination: (1) whether the threshold requirement of proper notice to
affected citizens is satisfied, (2) whether the new zoning ordinance is
consistent with the general purpose and policy of the original zoning
ordinance, (3) whether the new zoning ordinance is a material variation
from the basic zoning law of the governmental unit, and (4) the
appropriateness of citizen participation in the matter.

Relying on this test the trial court held that the Gibby property
rezoning was administrative. The Supreme Court reversed and announced a
new rule: adoption of a new zoning classification is per se legislative
action. "Such action requires a balancing of policy and public interest
factors which is the essence of legislating."

The Court adopted this bright line rule "contemplating that it will
reduce confusion in this area of law and put municipalities on clearer
notice of when they are choosing to act legislatively as opposed to
administratively." However, the Marakis analysis still will be required
because "when a municipality acts to adjust an existing zone it more
likely acts administratively." In explaining what it meant by
"adjusting an existing zone" the Court said: "Adjustment of the
existing zone includes routine changes such as variances, conditional
use, and density changes. Action within the framework of the existing
zone may still require some Marakis analysis, primarily in cases where
the city is attempting to affect a change outside of the routine."
Later, the Court said this adjustment also includes "tinker[ing] with an
existing zoning classification beyond what is common and ordinary." No
further analysis is provided to explain these statements, so one is left
to guess at what they mean.

The Court also concluded that the Marakis test does not discriminate
against smaller cities whose city councils typically possess both
legislative and administrative power. By contrast, all acts of a
council in a city with a council-mayor form of government are per se
legislative, and thus referable, as the Court decided last year in Mouty
v. Sandy. Apparently, this would include an administrative appeal of a
zoning action to the council, such as a conditional use permit
decision. Thus what is usually regarded as an
administrative/quasi-judicial act would be converted to a legislative
one, at least for purposes of a referendum.

The holding of the case is clear: adoption of a new zone is a per se
legislative act subject to referendum. But the Court's dicta about
"zoning adjustment" and "change outside of the routine" has blurred and
complicated the line between legislative and administrative acts. You
can read it here:
http://www.utcourts.gov/opinions/supopin/Friends2022610.pdf

Neil Lindberg
Chair, Utah APA Legal Committee
(801) 553-6416