Seventh District Judge Lyle Anderson issued a summary judgment May 8 in favor of the City of Moab in the suit over a decision relating to the proposed Lionsback Resort.
Eight landowners and the nonprofit Living Rivers filed the suit in March, claiming that the city deprived them of their right to a public hearing by categorizing a change in the developer’s plan as a minor change rather than a major change.
The city entered into a zoning status agreement last year with the developer LB Moab Land Company, LLC and the Utah Schools and Institutional Trust Lands Administration, on Feb. 28, 2017. The zoning status agreement was a compromise between the city and SITLA, which classified a change to the development plans as a “minor change” subject to administrative approval rather than a “major change,” which under city code would be subject to further public hearings and would have to be approved by the Moab City Council.
The case hinged on the fact that SITLA has threatened to withdraw completely from city oversight.
“One of the issues that was settled by the city and the SITLA parties entering into this agreement ... was whether the city could in fact regulate this project ... We hope to have resolved that question with this agreement,” said Robert Keller, the attorney for SITLA and LB Moab, the company developing the property.
“My reasoning is that the city must have, under the ordinance, some flexibility to resolve issues in the gray area by negotiation,” Anderson said. “Emphatically more so in a situation where their authority to legislate or regulate at all is dubious and therefore my review of their decision needs to be very generous … I think my review is probably going to be limited to those cases where it looks like there’s been an attempt to use a settlement process to completely eviscerate the enforcement of the ordinances.”
Keller said that the court only needed to review the case for evidence of collusion, which he said did not exist.
“If there was some evidence of collusion, if the court was able to determine from the record that there wasn’t really a dispute, that the parties were just trying to get around ordinances, then I think that would be a case where the court would step in and say, this is wrong,” Keller said. “But that is not this case. We have abundant evidence in the record that there was a genuine dispute on both sides on at least two major issues. The first one, of course, was whether this change ... was a major or minor change ... that was one of the major disputes that the parties resolved. The other one, of course, was the ability of the city to continue to regulate this development or whether SITLA would just take it out of the city entirely pursuant to state processes.”
City Attorney Christopher McAnany said that the zoning status agreement had been a difficult one for the city.
“The city might have been on thin ice had it decided to enforce its ordinances in the face of recalcitrant state agencies that might have wanted to withdraw completely from city jurisdiction ... it’s well substantiated in the record that this was an arms-length agreement that was negotiated,” McAnany said.
McAnany added the agreement benefitted the city not only because SITLA agreed not to withdraw from city oversight, but also because it was agreed that expensive, necessary sewer improvements for the project would be privately owned and maintained. The zoning status agreement also specified the need for further traffic studies. The city reserved the right to require additional traffic improvements.
The attorney for the plaintiffs, Barbara Polich, said that the defendant’s arguments beside the point.
“This is not about the issue of a settlement agreement. The plaintiffs’ challenge is very narrow. It is whether or not the proposed amendments to the amended planned development agreement are minor changes or major changes. I do believe this is a land-use decision. It requires exhaustion of remedies ... and I think it’s mandatory ... under the Moab zoning ordinances that land use decisions go before a board of appeals. We are here because we have been denied that right,” Polich said.
Polich asked for the judge to order the matter to go back to the city board of adjustment. Polich also said that SITLA had previously agreed to abide by Moab ordinances when the Lionsback property was annexed into the city.
John Weisheit, the conservation director of Living Rivers, explained the rationale behind the plaintiff’s decision to appeal.
“We’re disappointed in the judge’s decision. The reason mostly is because this is a really important case because of SITLA’s involvement and how the state legislature has given preference to SITLA upon zoning issues … The people of Grand County and the City of Moab need to know how important this case is because now that we’re running out of water and we’re having sewer issues and traffic problem, this is a test case and it’s really, really important so we’re going to appeal … It’s about maintaining the democratic process and it’s also about making sure as we run out of natural resources and have infrastructure stresses in Moab, we need to keep this focused on planning ordinances in the future,” Weisheit said.
McAnany said that he was happy with the judge’s decision.
“I think Judge Anderson did the right thing. I think the decision was legally correct,” McAnany said. “The city clearly has the authority to resolve a dispute with a state agency and that’s really what the case hung on, the ability of a local government when faced with a state agency that can withdraw from local zoning, do they have the discretion to enter into an agreement resolving a dispute. What the judge here said today was yes, you can do that.”
“[The summary judgment] effectively disposes of the case but [the first Lionsback case] went to the [Utah] Supreme Court,” McAnany added. “It could go up. It just remains to be seen.”