Baker v. Carlson , 437 P.3d 333 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 59
IN THE
SUPREME COURT OF THE STATE OF UTAH
PAUL BAKER and STEPHEN D. STUART,
Petitioners/Appellees and Cross-Appellants,
v.
STEPHANIE CARLSON, HOLLADAY CITY RECORDER, and HOLLADAY CITY,
Respondents/Appellants and Cross-Appellees,
and
IVORY DEVELOPMENT, LLC,
Intervening-Respondent/Appellant and Cross-Appellee.
No. 20180717
Filed November 28, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Richard D. McKelvie
Case No. 180905777
Attorneys:
J. Craig Smith, Kathryn J. Steffey, Clayton H. Preece, Salt Lake City,
for petitioners/appellees and cross-appellants
Troy L. Booher, Beth E. Kennedy, Salt Lake City, Todd J. Godfrey,
Jayme L. Blakesley, Holladay, for respondents/appellants and
cross-appellees
Alan L. Sullivan, Wade R. Budge, Salt Lake City, for
intervening-respondent/appellant and cross-appellee
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.
BAKER v. CARLSON
Opinion of the Court
JUSTICE HIMONAS, opinion of the Court: 1
INTRODUCTION
¶1 Since the old Cottonwood Mall closed its doors more than
ten years ago, the City of Holladay has been looking for a way to
redevelop the land on which the mall once stood. In May 2018, the
City approved two resolutions, Resolution 2018-16 and
Resolution 2018-17, that would enable Ivory Development, LLC to
develop that land. In response, a group of citizens from Holladay
petitioned to subject the Resolutions to a public vote by referendum.
The district court held that Resolution 2018-16 was approved
pursuant to the City’s legislative power and is therefore referable.
The district court also held that Resolution 2018-17 was approved
pursuant to the City’s administrative power and is therefore not
referable. We affirm.
BACKGROUND
¶2 In the mid-2000s, and after more than 40 years in business,
the Cottonwood Mall shuttered its doors. Soon thereafter, the City
began searching for a way to redevelop the land on which the
Cottonwood Mall stood (the Site). In 2007, Cottonwood Mall, LLC,
the owner of the Site, engaged the City in redevelopment talks and
asked the City to rezone the Site to permit mixed uses. In response,
the City approved the creation of a new zoning district, the
Regional/Mixed-Use (R/M-U) zone, and rezoned the Site as R/M-U.
_____________________________________________________________
1 We wish to acknowledge upfront the time-sensitive nature of
this case and explain why we did not issue an order or opinion prior
to the election. This court endeavors to resolve election matters in a
way that provides clarity to those involved in the timeliest manner
possible. In this case we suspended certain rules of appellate
procedure and expedited the briefing and oral argument in an effort
to reach a timely resolution. In these cases we also strive to quickly
issue an order following oral argument outlining the outcome of the
case with detailed opinions to follow. Unfortunately, there was not
sufficient consensus among us regarding the correct outcome to
issue such an order. And we determined that a perceived delay in
issuing this decision was less objectionable than issuing a premature
order that might not reflect the ultimate disposition of the case. We
regret any uncertainty that this course of action has created and
reaffirm our ongoing commitment to resolving these matters as
quickly as possible.
2
Cite as: 2018 UT 59
Opinion of the Court
¶3 In creating the R/M-U zone, the City also created the means
by which development of an R/M-U zone is controlled. Specifically,
any person wishing to build in an R/M-U zone must submit a site
development master plan (SDMP) to the City for approval. The
SDMP controls the development of all property within an R/M-U
zone and is meant to serve as a guide for the overall development
and design of the entire site—much in the same way the City’s
general plan functions in the context of the larger community. See
HOLLADAY, UTAH, CODE §§ 13.65.030, .060. Once an SDMP has been
approved, the City and the developer must enter into an Agreement
for the Development of Land (ADL), which grants specific rights
pursuant to the SDMP and addresses additional development-
related issues. See id. § 13.65.070.
¶4 Pursuant to this framework, Cottonwood Mall, LLC
submitted, and the City approved, an SDMP (the 2007 SDMP) and
an ADL (the 2008 ADL) that contemplated redevelopment of the
Site. Ultimately, Cottonwood Mall, LLC abandoned the project and
nothing relevant to this case happened for nearly a decade.
¶5 In 2016, Cottonwood Mall, LLC and Ivory began negotiating
the terms of a possible purchase of the Site and Cottonwood Mall,
LLC’s rights in the redevelopment project. In November 2017, Ivory
submitted a proposal to the City to amend the 2007 SDMP. Two
months later, after holding two public hearings and four work
meetings to discuss the proposal, the City’s Planning Commission
voted 5-1 against recommending approval of the proposal to the City
Council. As a result, Ivory revised its proposal and submitted a
second proposal to amend the 2007 SDMP. The second proposal was
considered by the City Council after a final public hearing and
debate in May 2018. At the same time, the City also considered
Ivory’s proposal to amend the 2008 ADL. On May 17, 2018, the City
Council passed Resolutions 2018-16 and 2018-17. Resolution 2018-16
approved Ivory’s second proposal to amend the 2007 SDMP, as
reflected in the 2018 SDMP. Resolution 2018-17 approved Ivory’s
proposal to amend the 2008 ADL, as reflected in the Amended ADL.
¶6 On May 22, 2018, Petitioners and several other sponsors
(collectively, the Sponsors) filed an application with the City
Recorder seeking to put the Resolutions to a public vote. The City
provided the Sponsors with signature sheets as required by statute,
but cautioned that providing the Sponsors with the signature sheets
should not be interpreted to mean that the City considered the
Resolutions to be referable. Nonetheless, the City scheduled a special
election for November 6, 2018, in the event that the Resolutions were
referable. Eventually, the Sponsors gathered and submitted enough
3
BAKER v. CARLSON
Opinion of the Court
signatures to have the referenda placed on the ballot. Upon receiving
the signed petitions, the City determined that the Resolutions were
administrative in nature—and therefore not referable—and declined
to place the referenda on the ballot.
¶7 In response, Petitioners initiated this action on August 13,
2018, by filing a petition for extraordinary writ in the district court
seeking: (1) an order declaring the Resolutions to be legislative in
nature and therefore referable, and (2) an extraordinary writ
ordering the City to place the referenda regarding the Resolutions on
the ballot. Soon after Petitioners filed suit, Ivory filed an unopposed
motion to intervene, which the district court granted. Both Ivory and
the City filed motions to dismiss Petitioners’ claims.
¶8 At the request of the parties, and given the urgency of the
matter, the district court agreed to hear the case on an accelerated
schedule. The district court converted the motions to dismiss to
motions for summary judgment 2 and, only ten days after Ivory and
the City filed their motions to dismiss, the district court heard oral
argument on the motions and issued its decision. In a thorough and
thoughtful opinion, the district court held that Petitioners were
entitled to summary judgment as to the claims related to
Resolution 2018-16 (approval of the 2018 SDMP), while Ivory and the
City were entitled to summary judgment as to the claims related to
Resolution 2018-17 (approval of the Amended ADL). Accordingly,
the district court ordered that the City place the referendum petition
on Resolution 2018-16 on the ballot, putting the City’s approval of
the 2018 SDMP to a public vote. All parties appealed.
¶9 We have jurisdiction under Utah Code section 78A-3-
102(3)(j).
STANDARD OF REVIEW
¶10 “We review a district court’s grant of summary judgment
for correctness, giving no deference to its conclusions of law.” Flowell
Elec. Ass’n, Inc. v. Rhodes Pump, LLC, 2015 UT 87, ¶ 8, 361 P.3d 91.
_____________________________________________________________
2 All parties agreed that the only issue presented to the district
court was the purely legal question of whether the Resolutions were
administrative or legislative in nature. The district court also notified
the parties that it would consider entering summary judgment in
favor of Petitioners as the nonmoving party, if warranted, pursuant
to Utah Rule of Civil Procedure 56(f). Nobody objected.
4
Cite as: 2018 UT 59
Opinion of the Court
ANALYSIS
¶11 Ivory and the City contend that the district court erred in
granting summary judgment in favor of Petitioners with respect to
Resolution 2018-16. Conversely, Petitioners contend that the district
court erred in granting summary judgment in favor of Ivory and the
City with respect to Resolution 2018-17. Because we agree with the
district court that Resolution 2018-16 is legislative in nature and
Resolution 2018-17 is administrative in nature, we affirm.
I. RESOLUTION 2018-16 IS LEGISLATIVE IN NATURE
AND THEREFORE REFERABLE
¶12 Ivory and the City advance a number of arguments as to
why they believe the district court erred in holding that
Resolution 2018-16 adopting the 2018 SDMP is legislative in nature.
The common theme of these arguments, however, is that the district
court incorrectly applied our precedent in Carter v. Lehi City, 2012 UT
2, 269 P.3d 141, in determining that Resolution 2018-16 is legislative
in nature.
¶13 In Carter, this court was tasked with defining the “nature
and extent” of the people’s power to legislate. 2012 UT 2, ¶ 32. In
doing so, this court identified two “key hallmarks” of legislative
power. Id. ¶ 34. Specifically, “[l]egislative power generally
(a) involves the promulgation of laws of general applicability; and
(b) is based on the weighing of broad, competing policy
considerations.” Id.
¶14 This court also noted that this power is distinguishable from
the executive—or administrative—power, which involves “applying
the law to particular individuals or groups based on individual facts
and circumstances.” Id. Drawing on this distinction, we noted that
enactment of a broad zoning ordinance constitutes a legislative act,
while application of that zoning ordinance to individuals through
conditional use permits or variances would constitute an executive
act. Id. ¶ 71.
¶15 Here, the district court found Resolution 2018-16 to be
generally applicable and its approval to have involved the weighing
of broad, competing policy considerations. We agree.
A. Resolution 2018-16 Is Generally Applicable
¶16 “A ‘generally applicable rule’ . . . sets the governing
standard for all cases coming within its terms.” Id. ¶ 36. In the
context of land use, we have held that decisions affecting only one
piece of property are generally applicable if “they apply to all
present and future parties that meet [their] terms.” Krejci v. City of
5
BAKER v. CARLSON
Opinion of the Court
Saratoga Springs, 2013 UT 74, ¶ 32, 322 P.3d 662 (citation omitted)
(internal quotation marks omitted). In Krejci, we concluded that,
even though it would only affect one piece of property, a site-specific
rezoning was generally applicable because all present and future
owners of the site would be bound by the decision to rezone the
property. Id. 3 Despite Ivory’s and the City’s arguments to the
_____________________________________________________________
3 Ivory and the City argue that this court should distance itself
from the notion that a decision that “runs with the land” is one of
general applicability. Ivory and the City correctly point out that all
(or nearly all) land use decisions, even those that we have deemed
administrative such as conditional use permits and variances,
necessarily run with the land. And while it may be true that all land
use decisions run with the land, and are therefore generally
applicable under the Carter and Krejci framework, Ivory and the City
have not carried their burden in asking us to disavow this language.
Most importantly, Ivory and the City have not demonstrated that
Carter and Krejci are not entitled to stare decisis respect.
This court has provided a framework by which litigants can
argue that our precedent is not entitled to stare decisis respect.
Specifically, those seeking to overturn our precedent must make a
showing that the precedent is (1) unpersuasive and/or (2) not firmly
established in Utah law. See Eldridge v. Johndrow, 2015 UT 21, ¶ 22,
345 P.3d 553. While the City argues that none of our decisions in this
area have turned on whether a land use decision runs with the land,
it does not address the fact that we have recurred to this language in
every one of our land-use-decision opinions since Carter. In doing so,
we have signaled to the public that they may challenge land use
decisions as legislative under a certain theory of general
applicability, see id. ¶ 35, a reality that Ivory and the City fail to
confront. Additionally, neither Ivory nor the City have carried their
burden in demonstrating that Carter is unpersuasive because it was
decided based on weak authority or relied on unsound reasoning.
See id. ¶ 24. Instead, Ivory and the City simply argue that their
interpretations of what constitutes general applicability in land use
decisions are preferable to the test we announced in Carter. Ivory’s
and the City’s failure to adequately address either of the Eldridge
factors is fatal to their call to abandon our language in Carter and
Krejci. We wish to emphasize, however, that we are not opposed to
revisiting this issue should it properly come before us.
Furthermore, the second part of the Carter framework goes a long
way toward eliminating any confusion Ivory and the City claim may
be caused by our equating general applicability to running with the
(continued . . .)
6
Cite as: 2018 UT 59
Opinion of the Court
contrary, Resolution 2018-16 adopting the 2018 SDMP is generally
applicable under this framework.
¶17 The 2018 SDMP undoubtedly applies to all present and
future parties that meet its terms. Holladay City Code
section 13.65.030 provides that “[an SDMP] specific to any
development and approved by the city council shall control the
development of all property within an R/M-U zoning district.” As
Petitioners point out, the definition of “development” in the
Holladay City Code omits any reference to a specific developer. See
§ 13.04.040. The import of these sections is that an SDMP does not
rise or fall with one developer. Rather, any approved SDMP controls
the development of the relevant R/M-U zone without regard to the
identity of the developer.
¶18 As Ivory acknowledges in its supplemental briefing, any
developer could develop land under an already-approved SDMP if
the developer could also execute the required ADL with the City. So
while Ivory was the developer that both sought approval of the
SDMP and executed the required ADL in this instance, nothing in
the Holladay City Code prohibits an unrelated developer from
obtaining an ADL permitting it to develop the land in accordance
with the 2018 SDMP. That is, the 2018 SDMP applies to all parties,
present and future, 4 that meet its terms by executing a
land. As discussed above, see supra ¶ 14, we have announced that the
adoption of a zoning ordinance is legislative but issuance of a
conditional use permit or variance is administrative. While both
conditional use permits and variances run with the land, and are
therefore generally applicable under our precedent, they do not
involve the weighing of broad, competing policy considerations that
accompanies the enactment of a zoning ordinance. Rather, the
decision to issue a conditional use permit or variance depends on the
application of law to the specific facts of the request for a conditional
use permit or variance. See Krejci, 2013 UT 74, ¶¶ 34–36. So although
all land use decisions may be generally applicable, this alone “does
not compel the conclusion that a certain action is legislative,” and the
second part of the Carter framework can be used to separate those
decisions that are legislative from those that are administrative. Id.
¶ 33.
4 Ivory agrees that an approved SDMP does not terminate unless
and until a new or amended SDMP is submitted and approved by
the City. In this sense, the 2018 SDMP is generally applicable because
(continued . . .)
7
BAKER v. CARLSON
Opinion of the Court
corresponding ADL with the City. Therefore, the 2018 SDMP is
generally applicable.
B. The City Weighed Broad, Competing Policy
Considerations on Approving Resolution 2018-16
¶19 Having established that Resolution 2018-16 is generally
applicable, we must now “evaluate whether [Resolution 2018-16]
implicates the weighing of broad, competing policy considerations.”
Krejci, 2013 UT 74, ¶ 33. Instead of applying existing law to the
specific facts of an individual case, as would be done in an
administrative act, the exercise of legislative power involves the
weighing of “[a]ny and all considerations.” Id. ¶ 34. For example, in
Suarez v. Grand County, we found that the Grand County Council
weighed broad policy considerations when it considered, among
other things: (1) the suitability of the development based on
environmental and scenic quality impacts, (2) the consistency of the
proposed use with the character of existing land uses in the area,
(3) the mitigation of any potential adverse effects of the
development, and (4) the ability of the public infrastructure to serve
the development. 2012 UT 72, ¶ 39, 296 P.3d 688.
¶20 Here, the City weighed similarly broad considerations in
deciding to approve the 2018 SDMP. Specifically, Resolution 2018-16
states that the City found that:
(1) the [2018 SDMP] meets the intended vision for
the R/M-U Zone and addresses the technical items
required by the Zone Regulations; (2) submitted traffic
studies show that the Project will have a reduced
overall impact, when compared to the [2007 SDMP],
and very little modification or improvement of existing
streets and related infrastructure is required; (3) the
proposed residential densities, while increased, in
respect to the [2007 SDMP], are compatible with the
existing residential development in the area and are
necessary to support the commercial and retail aspects
of the Project; (4) the proposed building heights are an
integral part of the overall design and function of the
Project and are warranted in this area of the City;
(5) the proposed residential and commercial
any future developer looking to develop the Site would be subject to
the 2018 SDMP unless and until they submitted, and the City
approved, a new or amended SDMP.
8
Cite as: 2018 UT 59
Opinion of the Court
development will foster redevelopment and increase
property values of surrounding properties; and (6) the
proposed commercial/retail development is a needed
component of the City’s economic stability and
represents viable and sustainable development given
current economic conditions.
¶21 It is obvious from the face of Resolution 2018-16 that the
City considered broad, competing policy considerations in
approving the 2018 SDMP. Findings two through six clearly
contemplate how approval of the 2018 SDMP would affect the City
as a whole. The City seems to have considered everything from
traffic impact in the area surrounding the Site to the City’s economic
stability as a whole. Indeed, it is difficult to imagine a more broad
policy consideration than the economic stability of an entire city.
These broad considerations are unsurprising given the City’s stated
purpose for an SDMP.
¶22 Utah’s Municipal Land Use, Development, and
Management Act (MLUDMA) requires the legislative body of every
municipality to adopt a general plan outlining the needs of and
proposed growth and development strategy for that municipality.
UTAH CODE §§ 10-9a-401, -404. Pursuant to MLUDMA, the City has
adopted a general plan that “provides an overall picture of what the
community values, both now and in the future, and how those
values will be protected and implemented.” See General Plan, CITY OF
HOLLADAY, http://cityofholladay.com/departments/community-de
velopment/general-plan/ [http://perma.cc/3XG9-N2GE] (last
visited Nov. 21, 2018). According to the City, the City’s general plan
is “primarily used when the Planning Commission and Council are
making land use decisions like rezones and changes to the zoning
ordinance that shape the growth of the city.” Id.
¶23 Holladay City Code section 13.65.060 states that an “SDMP
will serve in the same way as the city’s general plan does . . . ; it is a
comprehensive but flexible guide for the overall development and
design of the entire site.” It makes sense, then, that the City would
weigh broad policy considerations in approving the 2018 SDMP.
Because the 2018 SDMP must serve as a guide for the overall
development and design of the site, the City could not just apply
existing law to a narrow set of individualized facts, as it would when
9
BAKER v. CARLSON
Opinion of the Court
considering a conditional use permit or a variance. 5 Instead, the City
had to weigh broad, competing policy considerations in deciding to
adopt Resolution 2018-16.
¶24 Amici in this case 6 raise concerns that our decision today
could wreak widespread havoc with respect to other large,
master-planned communities that have been built across Utah.
Amici fear that these communities—which are developed using
flexible, long-term site development plans as authorized by
MLUDMA—will become the targets of citizen referenda,
jeopardizing the sizable investments of landowners, developers, and
local governments. Should every one of these types of developments
be potentially subject to referendum, amici argue, the existing
relationship between land development and government regulation
will be upended and interest in the land development market will
subside.
¶25 We are sensitive to these concerns and wish to reiterate that
it is this structure of the R/M-U zoning ordinance and the policy
decisions the City made when adopting the 2018 SDMP that drive
our conclusion that Resolution 2018-16 is legislative in nature. We
are particularly persuaded by the fact that the SDMP effectively
_____________________________________________________________
5 This is confirmed by Appendix A of the City’s Land Use and
Development Code. Appendix A provides a table of conditional,
permitted, and disallowed uses for every zone in the City except the
R/M-U zone. See HOLLADAY, UTAH, CODE § 13.100.010. Instead,
Appendix A simply refers the reader to the SDMP to determine
whether a use is conditional, permitted, or disallowed in the R/M-U
zone. Therefore, it would be impossible for the City to simply apply
existing law to individualized facts in approving the SDMP because
the SDMP itself is the document that creates the relevant underlying
law.
Appendix A also confirms that the 2018 SDMP acts very similarly
to a zoning ordinance, whose adoption we have conclusively
declared to be a legislative act. Carter, 2012 UT 2, ¶ 71 (stating that
“enacting a broad zoning ordinance is a legislative act”). In effect,
the R/M-U zone contemplates the subsequent adoption of a second
general plan in the form of an SDMP to fill in the wide gaps left by
the R/M-U zoning ordinance.
6 Amici curiae here consist of the Utah Homebuilders
Association, Northern Wasatch Association of Realtors, Salt Lake
Board of Realtors, and Utah Property Rights Coalition.
10
Cite as: 2018 UT 59
Opinion of the Court
serves as a general plan for the R/M-U zone. See supra ¶ 23 & n.5. In
so holding, we do not mean to suggest that every site development
plan approved pursuant to a zoning ordinance will be legislative in
nature. Indeed, it is entirely possible that many site development
plan approvals (and, more generally, land use application approvals)
will constitute administrative acts. Such a determination, however, is
entirely dependent on how the municipality reaches its decision.
¶26 If the municipality’s decision is “open-ended” and made
without reference to “fixed criteria,” then the decision may be
legislative. Krejci, 2013 UT 74, ¶ 34. But if the municipality’s decision
involves the “application of existing law to the facts presented by an
individual applicant” or is “limited to the evaluation of specific
criteria fixed by law,” then the decision is administrative. Id.
¶27 In the instant case, the fact that the R/M-U zoning
ordinance calls for a subsequent SDMP does not tell us whether
Holladay acted in a legislative or administrative capacity. The
question turns on what the City considered in approving the
2018 SDMP. If the R/M-U zoning ordinance provided specific
criteria which bound the City’s discretion in approving an SDMP,
and Ivory’s compliance with those criteria would have been
sufficient to approve the application, then the City’s approval could
very well have been administrative. But that is not what happened
here. Instead, the R/M-U zoning ordinance provides that “[the City]
shall only approve an SDMP for those projects that comply with the
vision and purpose of [the R/M-U zoning ordinance].” HOLLADAY,
UTAH, CODE § 13.65.070. Rather than giving the City specific criteria
to evaluate in approving an SDMP, the R/M-U zoning ordinance
conditions approval on the City’s determination that the SDMP
complies with the amorphous vision and purpose sections of the
ordinance, leaving the City to determine whether an SDMP does
things such as “anticipate[] development of a vibrant community” or
“allow[] flexibility [and] creative expression.” See id. §§ 13.65.010,
.020. In other words, the R/M-U zoning ordinance expressly invites
the weighing of broad, competing policy considerations that the City
undertook in approving Resolution 2018-16.
II. RESOLUTION 2018-17 IS ADMINISTRATIVE IN
NATURE AND THEREFORE NOT REFERABLE
¶28 The district court found that Resolution 2018-17 exhibited
neither of the hallmarks of legislative power as described in Carter v.
Lehi City, 2012 UT 2, 269 P.3d 141, in that it is not generally
11
BAKER v. CARLSON
Opinion of the Court
applicable and its adoption did not involve the weighing of broad,
competing policy considerations. 7 We agree.
A. Resolution 2018-17 Is Not Generally Applicable
¶29 As we explained in Carter, “[g]overnment decisions to enter
into a contract with a specific entity . . . are not legislative.” 2012 UT
2, ¶ 67. The decision to enter a contract alone cannot constitute
legislative action.
¶30 As opposed to the 2018 SDMP, which governs the
development of the Site without regard to the identity of the
developer, the Amended ADL is simply a contract between four
parties setting forth the obligations of those parties. 8 Unlike the
2018 SDMP, an unrelated third party could not come in after
approval of the Amended ADL and avail itself of the terms of the
Amended ADL because it was not one of the contracting parties (nor
would it be a successor or assignee of these parties). So while an
unrelated developer could develop the Site in accordance with the
_____________________________________________________________
7 The district court also acknowledged that it believed
Resolution 2018-17 presented a close call in line drawing between
administrative and legislative acts and that, pursuant to Carter, 2012
UT 2, ¶ 75, any doubt would be resolved by giving “controlling
significance” to the form of the City’s decision. Because we do not
view Resolution 2018-17 as presenting a close call in line drawing,
we do not need to resolve such doubts in reaching our decision.
However, we note that giving controlling significance to the form of
a municipality’s decision could be troublesome in some instances.
While we have noted that a municipality’s own characterization of
its action and the formal process by which the municipality acts are
relevant considerations in this inquiry, Suarez v. Grand County, 2012
UT 72, ¶ 41, 296 P.3d 688, these factors present the potential for
abuse by the proverbial fox guarding the henhouse. That is, a
municipality wishing to have its actions found to be legislative or
administrative could characterize and process its own actions in a
way that leads to its desired result. Accordingly, we submit that the
more relevant inquiry in determining the form of an underlying
decision is “the substance of [the decision].” Id.
8 For example, the Amended ADL describes the specific
obligations of Ivory and the City as they relate to issues such as tax
subsidies, the construction and installation of site improvements,
prohibitions against transfer and assignment, and remedies in the
event of breach by either party.
12
Cite as: 2018 UT 59
Opinion of the Court
2018 SDMP, that same developer would not be able to take
advantage of the terms negotiated in the Amended ADL. Rather, the
new developer would have to negotiate the terms of its own ADL. In
this sense, the Amended ADL has very limited and specific
applicability in that it applies only to those parties that negotiated its
terms.
¶31 Petitioners argue that, in Suarez v. Grand County, 2012 UT 72,
296 P.3d 688, we held a development agreement between Grand
County and a developer to be legislative. Petitioners suggest that
Suarez stands for the proposition that contracts that claim to run with
the land, like the Amended ADL, 9 create laws of general
applicability. Petitioners’ argument comes close, but narrowly misses
the mark.
¶32 In Suarez, this court considered “whether the [Grand
County] Council acted in its legislative or administrative capacity
when it adopted Ordinance 454.” 2012 UT 72, ¶ 2. The sequence of
events leading to the adoption of Ordinance 454 closely parallels the
sequence of events leading to the approval of Resolution 2018-17.
¶33 In 2002, the Grand County Council adopted a resolution
approving a rezoning for a large parcel of land. Id. ¶ 3. The
resolution also provided that the preliminary master plan for the
development was subject to a development agreement between the
county and the developer. Id. The original developer eventually
abandoned the project and a new developer, Cloudrock, succeeded
to the original developer’s interest in the development. Id. ¶ 6.
Cloudrock submitted an application to Grand County Planning
Commission to begin the process of amending the approvals granted
to the original developer in 2002. Id. As part of this process, the
Planning Commission recommended certain changes, including
changes to the original development agreement. Id. ¶ 7. Cloudrock
later submitted an application including an amended development
agreement, an amended master plan, and an amended preliminary
plat. Id. ¶¶ 9–10. The Grand County Council voted to approve
Ordinance 454, which approved Cloudrock’s application. Id. ¶ 10. A
group of citizens then brought a challenge to Ordinance 454. Id. ¶ 1.
Where Suarez and the instant case diverge is in the contents of the
_____________________________________________________________
9Section 4.2 of the Amended ADL provides, in part, that the
“covenants provided in [the Amended ADL] shall be covenants
running with the land.”
13
BAKER v. CARLSON
Opinion of the Court
respective development agreements and in the nature of the actions
brought.
¶34 Unlike the Amended ADL, the amended development
agreement in Suarez contained an exhibit called the Cloudrock Code.
Id. ¶ 12. The Cloudrock Code “create[d] zones within the
[development], provide[d] maps depicting the locations of these
zones, and put[] forth regulation within these zones.” Id. ¶ 27. The
Cloudrock Code also provided the means by which administrative
deviations from the ordinance could be granted. Id. ¶ 33. The
contents of the Cloudrock Code are very similar, then, to the
contents of the 2018 SDMP. However, unlike the 2018 SDMP, which
is a document that exists separately from the Amended ADL, the
Cloudrock Code was adopted contemporaneously with the amended
development agreement as an exhibit thereto. See id. ¶ 10.
(“Ordinance 454 explains that Cloudrock had submitted . . . the
[amended development agreement], which [was] incorporated
[t]herein by reference, including all exhibits thereto.” (internal
quotation marks omitted)). In other words, the Cloudrock Code was
adopted by the Grand County Council as part and parcel of the
amended development agreement.
¶35 And unlike the current action, which challenges two
separate documents approved in two separate resolutions,
Ordinance 454 was challenged in its entirety. See id. ¶ 45 n.55 (noting
that the court was only considering Ordinance 454 as a whole and
that the citizens did not provide “an analysis of why [the court]
should conclude that any individual component of [Ordinance 454]
is administrative rather than legislative”). That is, this court
considered Ordinance 454 as a cohesive whole in reaching the
determination that it was legislative as opposed to determining
whether each individual component—the agreement, the master
plan, and the subdivision plat—of Ordinance 454 was legislative or
administrative.
¶36 These two differences inform our understanding of the
pronouncement in Suarez that Ordinance 454 was generally
applicable. Specifically, we said that, “because the [amended
development agreement] states that it will run with the land, and the
Cloudrock Code allows administrative deviations from the general
rules imposed by the ordinance, we conclude that Ordinance 454 is a
law of general applicability.” Id. ¶ 34. Here, Petitioners argue that
“with respect to general applicability, the Amended ADL runs with
the land as did the Suarez agreement.”
14
Cite as: 2018 UT 59
Opinion of the Court
¶37 Petitioners, however, overextend our conclusion in Suarez.
First, we held that Ordinance 454 was a law of general applicability,
not that the amended development agreement itself was a law of
general applicability. In fact, we explicitly declined to address
whether individual components of Ordinance 454 were legislative or
administrative. Id. ¶ 45 n.55. Second, to the extent our statement in
Suarez linked the amended development agreement’s proclamation
to run with the land to general applicability, this statement is
inextricably tied to the concomitant adoption of the Cloudrock Code.
Because the Cloudrock Code was adopted as part of the amended
development agreement, any statement about the general
applicability of the amended development agreement cannot be
divorced from the Cloudrock Code, which itself announced
generally applicable laws such as zoning ordinances for the
development. Because our holding in Suarez applied only to
Ordinance 454 as a whole, and because there the amended
development agreement also included the Cloudrock Code, we
cannot say that the Amended ADL is generally applicable simply on
the basis that it purports to run with the land. 10
B. The City Did Not Weigh Broad, Competing Policy
Considerations in Approving Resolution 2018-17
¶38 When the time came to approve Resolution 2018-17, the City
had already done most of the heavy lifting in adopting
Resolution 2018-16. Instead of weighing broad, competing policy
considerations in approving the Amended ADL, the City was
“grant[ing] specific rights pursuant to an approved [SDMP].”
HOLLADAY, UTAH, CODE § 13.65.070 (emphasis added). While an
ADL must address certain development considerations, see id., the
primary purpose of the Amended ADL is to spell out the obligations
of the contracting parties pursuant to the 2018 SDMP. In this sense,
the Amended ADL involves the application of the 2018 SDMP to the
_____________________________________________________________
10Furthermore, as Ivory points out, even if the covenants in the
Amended ADL did run with the land, they would only bind
strangers to the contract to the extent that the law of contracts
permits it. See, e.g., Stern v. Metro. Water Dist. of Salt Lake & Sandy,
2012 UT 16, ¶ 40, 274 P.3d 935 (discussing the four requirements for
a restrictive covenant to bind successive owners of burdened or
benefited land). This stands in stark contrast to a legislative action,
such as enacting a broad zoning ordinance, which applies to all
persons without the need to first consult other areas of law such as
contract law.
15
BAKER v. CARLSON
LEE, A.C.J., concurring
specific circumstances of the parties negotiating the Amended ADL.
While the City may have weighed important considerations in
negotiating the Amended ADL, they were nonetheless unique to the
specific facts of this individual case. This type of action is
“fundamentally administrative” and does not implicate the
weighing of broad, competing policy considerations. Krejci v. City of
Saratoga Springs, 2013 UT 74, ¶ 34, 322 P.3d 662.
CONCLUSION
¶39 We agree with the district court that the City was exercising
its legislative powers when it approved Resolution 2018-16. The
Amended SDMP promulgates a law of general applicability and its
approval required the weighing of broad, competing policy
considerations. Resolution 2018-16 is therefore referable.
¶40 We also agree with the district court that the City was
exercising its administrative powers when it approved
Resolution 2018-17. The Amended ADL applies only to the
contracting parties and its approval involved the application of law
to specific facts. Resolution 2018-17 is therefore not referable.
ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶41 I agree with and accordingly concur in the majority opinion
as far as it goes. I write separately only to say that I would go a step
further than the court does in clarifying the role that the “running
with the land” factor plays in assessing whether a land use decision
is legislative or administrative. The majority acknowledges that “all
(or nearly all) land use decisions, even those that we have deemed
administrative such as conditional use permits and variances,
necessarily run with the land.” Supra ¶ 16 n.3. It also concedes that
we have said that variances and conditional use permits are
administrative decisions despite the fact that they “run with the
land.” And it notes that our decision in Krejci v. City of Saratoga
Springs, 2013 UT 74, 322 P.3d 662, identified grounds for treating
variances and conditional use permits as administrative despite the
fact that they run with the land.
¶42 Notwithstanding the foregoing, the court stops short of
“disavow[ing]” the “runs with the land” factor as an element of our
analysis in this field. Supra ¶ 16 n.3. It faults the parties for not
presenting argument under factors set forth in Eldridge v. Johndrow,
2015 UT 21, 345 P.3d 553. And it concludes that this failure “is fatal”
to the parties’ request that we disavow our law’s consideration of
whether a land use decision “runs with the land.” Supra ¶ 16 n.3.
16
Cite as: 2018 UT 59
LEE, A.C.J., concurring
¶43 I see no barrier to open disavowal of this factor. The parties’
briefs have highlighted the fact (noted by the majority) that the “runs
with the land” factor isn’t doing any work in this field. That is
enough to convince me of the merits of an open acknowledgment of
this reality. And I do not think that that acknowledgement requires
the same kind of stare decisis analysis that would be required if we
were outright overruling a prior decision, or completely
reformulating a legal doctrine. In owning up to the fact that the
“running with the land” factor plays no role in our decisions we
would not be overruling Carter or Krejci. We would just be stating a
reality. I would do that here, and I see no barrier to that move in the
doctrine of stare decisis.
17