Wilson v. Manning

657 P.2d 251, 1982 Utah LEXIS 1090

Opinions

OAKS, Justice:

In Bird v. Sorenson, 16 Utah 2d 1, 394 P.2d 808 (1964), this Court held unanimously that a city ordinance rezoning properties from residential to commercial was not subject to referendum. The issue in this case, on virtually identical facts, is whether that decision should be followed or overruled.

The City of Fruit Heights, whose area is 1.92 square miles and whose population is approximately 2,760, has a single page “Masterplan & Zoning Map” approved February 14, 1980. This document, which consists of a map with symbols and legend but no explanatory text, is the City’s master plan for zoning. On June 3, 1980, the City Council, acting at the instance of a commercial real estate developer who desired to erect a shopping center, and on a favorable recommendation from its planning commission, adopted an ordinance rezoning ten acres of property. This property, which abuts Highway 89 in the northern part of the City, was rezoned from “residential suburban (12,000 sq. ft. lots min.)” to “commercial highway.”

Appellants, whose homes are located within a quarter mile of the property, thereupon presented the City Council with a timely referendum petition containing the required number of verified signatures, but the City Council refused to allow the petition to be submitted to a referendum vote. Appellants sought a writ of mandamus to compel respondent, the City Recorder, to submit the ordinance to a vote. The district court dismissed the petition on the authority of Bird v. Sorenson, supra, and this appeal followed.¹ Citing changes in the trend of case law and important policy arguments in favor of increased public participation in land use decision making, see, e.g., Note, “The Proper Use of Referenda in Rezoning,” 29 Stan.L.Rev. 819 (1977), appellants urge us to overrule Bird v. Sorenson and permit the referendum.

The annotation, “Adoption of Zoning Ordinance or Amendment Thereto as Subject of Referendum,” 72 A.L.R.3d 1030 (1976), is useful in analyzing the plethora of cases on various aspects of this subject. It makes clear that the question posed here turns on a construction of the disparate provisions of the constitutions and statutes of the various states. In this area, judicial opinions from other states have limited value as precedents, except insofar as they identify the public policy considerations that illuminate constitutional and statutory construction. On the one hand, the public policy underlying the right to a voter referendum would apply that right to almost all government actions that affect citizens in vital areas of concern, including the enactment and change of zoning laws, and ordinances. On the other hand, the importance of professional expertise and community-wide perspective in zoning matters, given effect in common requirements for public hearings, planning commission recommendations, and the establishment of comprehensive plans, weighs against the piecemeal changes that can result from allowing voters to veto zoning actions by referenda. Whatever the merit of these contrasting policies, they are not applied in the abstract, but against the background of the various constitutional provisions and statutes each state has adopted on the subjects of zoning and referendum.

Article VI, § 1 of our Constitution provides that a fraction of the voters of any legal subdivision of the state, as provided by law, “may require any law or ordinance passed by the law making body of said legal subdivision to be submitted to the voters thereof before such law or ordinance shall take effect.” Similar language has been enacted in our statutes. U.C.A., 1953, § 20-11-21. The meaning of this guarantee was definitively construed in Keigley v. Bench, 97 Utah 69, 89 P.2d 480 (1939), and Shriver v. Bench, 6 Utah 2d 329, 313 P.2d 475 (1957).

In Keigley, the Court rejected the argument that the right to a referendum applied to all ordinances enacted by the city. Relying on the participial phrase, the Court held that the entire provision “clearly expresses the intention to limit the referendum to the acts of the governing body performed in the execution of its function as a ‘law making’ body.” That is, the referendum statute was meant “to apply only to laws, ordinances, resolutions or motions which are legislative in character.” 97 Utah at 75-76, 89 P.2d at 483 (emphasis added). This qualification was doubtless made necessary by the fact that some lawmaking bodies, like the city commission in the Keigley case, act in an executive or administrative as well as a legislative capacity.

In Keigley, the city commission had adopted an ordinance authorizing the issuance of bonds to finance a municipal power system, and that ordinance had been approved by the voters in a referendum. Later, the commission amended the bonding ordinance, and voters sought to submit the amendments to a referendum. In ordering the second referendum, the Court gave this explanation of the determinative test:

Does the later ordinance make a new law or execute one already in existence? The answer to the question should, we think, be sought by inquiring whether such changes may reasonably be viewed as clearly within the ambit of the voters’ intention when the original ordinance was adopted by them.

* ⅝: * * * ⅜

... If it is clearly deducible that the variation is pursuant to the intended purpose and policy expressed by the voters then such variation is administrative; if not, then it is to that extent legislative.

97 Utah at 78-79, 89 P.2d at 484. This same principle is applicable to amendments to original laws or ordinances not “adopted” by the voters in a referendum. In that event, the governing consideration is the “intended purpose and policy” expressed by the enacting authority, as disclosed in the terms of its enactment and any other acceptable evidence of intent.

The Keigley case was reaffirmed and applied in Shriver v. Bench, supra, which held that an ordinance fixing salaries for police and fire personnel was administrative and not subject to referendum. In making that classification, the Court relied on the fact that the fixing of salaries “presents a problem of such complexity that it is not practical for the public to give it sufficient time and attention to make a proper determination of the matter,” 6 Utah 2d at 333, 313 P.2d at 478, and, further, that the need for continual changes in salaries made it highly desirable to have an expeditious means of decision making. After citing these considerations as “practical exigencies of the operation of city government,” the Court explained:

This is one of the bases of reasoning relied on by the courts in passing on whether a proposed action is legislative or administrative. If the result would be to impair the efficient administration of the municipality, the courts tend toward the conclusion that initiative and referendum provisions are not applicable.

Id. Cf. Riverton Citizens for Constitutional Government v. Beckstead, Utah, 631 P.2d 885 (1981) (requiring strict compliance with referendum procedures to avoid superseding lawmaking power of governmental unit). The Shriver decision did not deprive the voters of control over basic policy making, the Court concluded. It only compelled them to work their will through their elected representatives:

It entrusts to those who are given that duty under the charter the responsibility of either functioning in accordance with the will of the electorate or being held accountable at the next election.

6 Utah 2d at 335, 313 P.2d at 479.

How do the foregoing principles apply to zoning ordinances? This Court has frequently stated that the enactment of zoning laws and ordinances is the exercise of a legislative function. Gayland v. Salt Lake County, 11 Utah 2d 307, 310, 358 P.2d 633, 635 (1961); Dowse v. Salt Lake City Corp., 123 Utah 107, 110, 255 P.2d 723, 724 (1953); Walton v. Tracy Loan & Trust Co., 97 Utah 249, 253, 92 P.2d 724, 726 (1939). Consequently, the original enactment of a zoning ordinance would generally be subject to referendum.² However, ordinances implementing the basic zoning enactment, such as by exceptions and variances, would generally be administrative acts not subject to referendum. Walton v. Tracy Loan & Trust Co., 97 Utah at 259, 92 P.2d at 728-29. Cf. Thurston v. Cache County, Utah, 626 P.2d 440, 446 (1981). The question before us falls between these two extremes.

Bird v. Sorenson, supra, our only decision on the applicability of referendum to amendments to a zoning ordinance, phrases the determinative question as whether the amendment “was administrative or legislative.” Relying principally on Keigley and Shriver, we held in Bird v. Sorenson that the changes of zoning from residential to commercial in that case were “administrative acts.” Although the opinion is not lengthy, its reliance upon these authorities and their relevance to the issue before the Court is unmistakable. The Court’s special reliance upon the need for “efficient administration of the municipality,” cited in Shri-ver, supra, is also evident from this sentence in the Bird v. Sorenson opinion: “If each change in a zoning classification were to be submitted to a vote of the city electors, any master plan would be rendered inoperative.” 16 Utah 2d at 2, 394 P.2d at 808.

Although other states (perhaps a discernible trend or even a majority) admittedly have decisions to the contrary of Bird v. Sorenson on zoning amendments as administrative acts, see Annot., 72 A.L.R.3d 1030 (1976), there are other cases supporting its reasoning. E.g., Leonard v. City of Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976). Bird v. Sorenson is, in any event, a reasoned determination persuasively based on prior Utah authorities and, in its own right, now embedded in the law of this state for many years. Such precedents should not be overruled except for the most compelling reasons, which are lacking here. We therefore reaffirm the rule in Bird v. Sorenson, supra.

This ruling does not mean that an amendment to a zoning ordinance can never be the subject of a referendum. Some amendments can constitute such a material variation from the basic zoning law of the governmental unit as to constitute, in effect, the making of a new law rather than merely, as this Court said in Bird v. Sorenson, “implementing the comprehensive plan and adjusting it to current conditions.” 16 Utah 2d at 2, 394 P.2d at 808. But the effort to characterize this amendment as such a variation is unavailing. Appellants’ brief refers to the rezoning of this ten acres as “a basic departure from the [City’s] contemplated zoning policy” to “de-emphasize commercial establishments along the length of Highway 89,” but there is no evidence of such a policy in the “Masterplan & Zoning Map,” in the stipulated facts, in appellants’ complaint, or elsewhere in the record.

Nor does this decision leave those who oppose zoning changes which are not subject to referendum without a remedy apart from the political one cited in Shriver. County and city zoning ordinances can be set aside in the courts if they are confiscatory, discriminatory, arbitrary, capricious, or otherwise without basis in reason. Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967). Cases stating but not applying this rule include: Thurston v. Cache County, 626 P.2d at 444-45; Naylor v. Salt Lake City Corp., 17 Utah 2d 300, 302, 410 P.2d 764, 765-66 (1966); Naylor v. Salt Lake City Corp., 16 Utah 2d 192, 398 P.2d 27 (1965); Gayland v. Salt Lake County, 11 Utah 2d at 311, 358 P.2d at 636; Phi Kappa Iota Fraternity v. Salt Lake City, 116 Utah 536, 212 P.2d 177 (1949); Dowse v. Salt Lake City Corp., 123 Utah at 110-11, 255 P.2d at 724. One way to make that showing, under these authorities, is to demonstrate that the amendment runs counter to the terms of or the policy established in the underlying law or ordinance or the zoning master plan. Cf. U.C.A., 1953, § 10-9-3 (zoning regulations must be in accordance with master plan), § 10-9-12(3) (board of adjustment variances must not “substantially affect” the comprehensive plan), § 10-9-21 (city streets, parks, or other public spaces must conform to master plan).

The judgment dismissing the petition is affirmed. Costs to respondent.

HALL, C.J., and STEWART, JJ., concur.

Footnotes

1

. For an earlier opinion in this same case, involving a defect in the perfection of the appeal (now cured), see Wilson v. Manning, Utah, 645 P.2d 655 (1982).

2

. Dewey v. Doxey-Layton Realty Co., 3 Utah 2d 1, 277 P.2d 805 (1954), which held that voters could not rezone a tract of land by initiative, is not to the contrary. There the Court held that the procedural requirements applicable to the enactment of zoning ordinances and changes limited the availability of direct legislation by initiative. Specifically, the requirement that the exercise of municipal zoning authority be preceded by notice and public hearing prevented voters (who could not proceed in this manner) from initiating rezoning. Most courts agree. Annot., 72 A.L.R.3d 993 (1976). This rationale does not apply to referendum, however, since in that circumstance the proponents of the direct legislation do not seek to initiate and secure the adoption of their own new measure, but rather to secure a veto to the measures enacted (presumably pursuant to the required notice and hearing) by the lawmaking authority.