Tooele Transcript Bulletin – News in Tooele, Utah

December 3, 2019
Judge denies motion on Skywalk petition

Court finds county's action to be administrative but leaves door open for challenges of zoning and permitted use changes 

Opponents of the proposed 246-acre Skywalk development west of Tooele Valley Airport in Erda were handed a setback by a district court judge on Monday.

Third District Court Judge Matthew Bates handed down a memorandum decision denying the petition to declare that the adoption of the development agreement for Skywalk by the Tooele County Commission was a legislative decision and is subject to a referendum petition.

Bates’ decision upheld the Tooele County Clerk’s finding that the County Commission’s decision was an administrative act and is not subject to a referendum.

However, Bates’ decision leaves the door open to a new referendum process if the county makes a legislative decision to change permitted uses on the property covered by the development agreement in the future.

“The Court agrees with Respondents that the Development agreement is not a legislative act and is not therefore referable. … Importantly, the Agreement does not change the zoning or change permitted use for density of the land in question,” wrote Bates in his decision denying the petitioners’ request.

However, Bates also wrote that the development agreement suggests that the developer will apply for any needed changes in zoning or permitted uses in the normal fashion.

“Paragraph eight thus contemplates that the Developer will submit applications for zoning and plat approval as required by Tooele’s Land Use Ordinance,” wrote Bates. “But those plans do not and cannot change the permitted uses of the land … Rather, if a proposed development is inconsistent with permitted uses for the area, the developer must seek an amendment to the County Land Use Ordinance through normal channels.”

Those channels, according to the county’s land use ordinance, involve an application with the Tooele County Planning Commission, a public hearing by the planning commission, and another public hearing by the County Commission before considering the zoning amendment, wrote Bates.

The decision by the County Commission to amend the zoning would be a legislative decision and would most likely be subject to a referendum, according to Tooele County Attorney Scott Broadhead.

Skywalk is a 246-acre planned unit development south of state Route 138 and east of Sheep Lane and west of Tooele Valley Airport.

The plans for Skywalk, as approved by county planning commission, include a row of four-story buildings that run parallel with the future Midvalley Highway. The first floor of the buildings will be occupied by commercial and service businesses with office space in the top three floors. Landmark buildings, such as a library, town hall, town hall, church, theater, and museum could be included in this area, according to Jay Nielsen, partner in West Valley City-based Skywalk Utah, LLC.

South of the commercial and office buildings will be another row of four-story buildings with commercial businesses on the ground floor with up to 684 high-density residential units on the top floors.

The next row of four-story buildings will be for up to 186 medium-density townhouses.

A third residential area would be north of a 300-foot wide green space from the Golden Acres subdivision with access through Golden Acres using Palmer Road. This space would be for up to 116 detached-homes with a minimum lot size of 0.25-acres.

The county planning commission held a series of hearings and meetings that ended with the final approval of a PUD-CUP for the Skywalk Development on Nov. 7, 2018, after conditions that were set by the planning commission during its June 20, 2019, meeting were met.

The County Commission approved a development agreement with Skywalk’s developers on Oct. 30, 2018.

Following the County Commission’s approval, Erda residents collected signatures for a  referendum petition to put the Skywalk development agreement on a ballot for a public vote.

After verifying enough valid signatures to certify the referendum, Gillette declared the referendum “not legally sufficient” after receiving an opinion from County Attorney Scott Broadhead that stated the Skywalk development agreement was an administrative act and is not subject to a referendum. 

Only legislative acts are subject to a referendum, according to state code.

Five Erda citizens filed a lawsuit challenging Tooele County’s determination that the Skywalk development agreement is not subject to a referendum.

Diane Haney, Mark Haney, Kathleen Mallis, Kyle Matthews, and Solomon Smith are listed as petitioners in a complaint filed Feb. 4 with the 3rd District Court. The complaint asked the court to issue an order that the Skywalk referendum as submitted by the petitioners be declared valid and placed on the ballot.

After reviewing the judges memorandum, Haney said the petitioners will explore options to continue to pursue their challenge to the Skywalk development agreement.

“We maintain the development agreement’s commitment that ‘zoning changes, shown in Exhibit C and further detailed in the PUD Concept Plan, SHALL take effect in time for each plat approval’ is legislative with ‘shall’ being the critical word, making the zoning changes obligatory,” Haney said. “At this time, we are exploring all legal options. I will add that the entire process has brought the community together and proves that people working together can bring about change.

The headline and subhead on this story were edited on Dec. 4, 2019

Tim Gillie

Editor at Tooele Transcript Bulletin
Tim has been writing for the Transcript Bulletin since October 2017. In February 2019 he was named as editor. In addition to being editor, Tim continues to write about Tooele County government, education, business, real estate, housing, politics and the state Legislature.A native of Washington state and a graduate of Central Washington University, Tim became a journalist after a 20 year career with the Boy Scouts of America.

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