Tooele County made an error when they told referendum sponsors for the Tooele Valley Temple Subdivision Planned Community rezone that they needed 9.5% of the signatures of active voters registered in the county, or 2,445 verified signatures.
But, they are sticking with that number for that referendum.
Utah State Code requires a petition with signatures of 9.5% of the active voters for a referendum to overturn a “local law” and 16% for a referendum to overturn a “land use law.”
Tooele County Clerk Marilyn Gillette said she consulted with the County Attorney and the state Lieutenant Governor’s office and was told that a rezone of a piece of property was a local law, because a land use law is defined in state code as “a law of general applicability.”
That interpretation, it turns out, was “most likely” not correct, according to a legal opinion from Tooele County Attorney Scott Broadhead dated August 13, 2020.
Broadhead said the error was discovered as he helped Rep. Merrill Nelson, R-Granstville, prepare legislation that would have allowed an election for the Temple Subdivision referendum to take place in November 2020, if the petition was certified as having sufficient signatures.
Utah Code defines a local law as “an ordinance, a resolution, a land use law or other legislative action of a local legislative body.”
It also includes a recent change. The definition includes a specific exclusion that a “local law does not include an individual property zoning decision,” according to Broadhead.
The definition of a land use law includes “a law of general applicability” or “a comprehensive zoning ordinance or resolution,” states Broadhead in his legal opinion.
A state Supreme Court decision handed down in 2005 held that an individual rezone is not a land use law because it is not generally applicable, but instead it is specific to a piece of property, according to Broadhead.
However, in 2018, in the Cottonwood Mall referendum case, the state Supreme Court held that decisions affecting a single piece of property are generally applicable if “they apply to all present and future parties that meet [their] terms.”
The Court wrote that a site-specific zoning was generally applicable because all present and future owners of the site would be bound by the decision to rezone the property, according to Broadhead.
Under that decision a rezoning of one piece of property can arguably be a law of “general applicability,” Broadhead said.
Broadhead said he consulted with several attorneys who gave him differing opinions as to which standard should apply.
The most likely correct interpretation of both statutory and case law, according to Broadhead is; “based upon the most recent changes to the referendum statutes and the Baker v. Carlson case, the change in zoning for a particular property made by the request of the property owner is a “land use law” and should be subject to the higher number of signatures required under UCA §20A-7-601(3),” he wrote in the conclusion of his legal opinion.
That means instead of 2,445 signatures, the sponsors of the Temple Subdivision referendum should have been told they needed a total of approximately 4,110 signatures.
Broadhead said after discovering the error, the County, including the County Commission, considered options, and decided that they would stay with the 2,445 number that the referendum sponsors were told they needed.
All future referendums to overturn a land use law — including a site specific rezone — will be required to collect the signatures from 16% of the registered voters, according to Broadhead.