December 10, 2013, Utah Supreme Court Case Summaries

Krejci v. Saratoga Springs, 2013 UT 74, No. 20130607 (December 10, 2013)

ISSUE: Procedural requirements for acceptance of an extraordinary writ; the voters’ right to submit site-specific rezoning for a referendum vote.

This case presents an important constitutional question we recently reserved without resolving—whether site-specific rezoning is legislative action subject to referendum. See Carter v. Lehi City, 2012 UT 2, ¶ 75 n.52, 269 P.3d 141. We now answer that question in the affirmative.

At ¶ 1.

Acceptance of Extraordinary Writ

By statute, “any voter” may bring a petition for an extraordinary writ when a “local clerk refuses to accept and file any referendum petition.” UTAH CODE § 20A-7-607(4)(a). Capital Assets asks us to construe the statute to apply only in circumstances where the local clerk independently determines that the petition is legally deficient. Perhaps such a scenario is more common than the present one. But that is no reason to construe the statute to be limited to that circumstance. Here, the clerk first accepted the petition and then rejected it after the district court entered its order. The presence of a court order does not make the clerk’s ultimate rejection of the petition any less of a refusal; it was still a refusal, and on that basis it must be deemed to fall under the clear terms of the statute.

At ¶ 8.

The statute provides no exception for cases where the local clerk refuses to file the petition because she is ordered by a court to do so—or any criterion by which the basis for the refusal would be relevant. By its terms the statute applies to all refusals. We cannot append additional conditions to the statutory framework by judicial fiat.

At ¶ 9.

The decision to grant or deny a petition for extraordinary writ is discretionary. Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 03 P.3d 127. Petitions for extraordinary writ are appropriate only where “no other plain, speedy, or adequate remedy exists.” UTAH R. APP. P. 19(b)(4); see also Carpenter, 2004 UT 68, ¶ 4 (“[T]his court typically limits itself to addressing only those petitions that can-not be decided in another forum.”). Thus, where “the petition is presented on hotly disputed material allegations of fact and there is no record below,” it is more appropriate and practical for litigants to assert their claim in the district court. Carpenter, 2004 UT 68, ¶ 4. And where a petitioner had an opportunity to file an appeal but failed to do so, it cannot use an extraordinary writ to gain a second shot at an appeal. Friends of Great Salt Lake v. Utah Dept. of Natural Res., 2010 UT 20, ¶ 23, 230 P.3d 1014 (“Before we can ad-dress a petition for extraordinary relief, the petitioning party must have exhaust[ed] all available avenues of appeal.” (alteration in original, internal quotation marks omitted)). These limitations keep litigants from bypassing traditional avenues for judicial relief, or in other words from substituting the extraordinary writ process for what should have been ordinary litigation—i.e., as a remedy for self-imposed emergencies.

At ¶ 10.

None of the above stands in the way of our hearing this petition. The petition asks us to resolve a question of law that does not depend on unresolved questions of fact. And petitioners were not parties in the district court proceeding, and thus had no opportunity for an appeal.

At ¶ 11.

Because petitioners failed to intervene in the district court proceedings, and thus have no standing to appeal, Capital Assets insists that they should likewise be foreclosed from pressing the matter on an extraordinary writ. We see the matter differently. We see no basis for a hard-and-fast rule requiring intervention as a prerequisite to the filing of a petition for extraordinary writ. The governing standard is Utah R. App. P. 19(b)(4), which calls for a showing that “no other plain, speedy, or adequate remedy exists.” And that flexible standard leaves room for a decision to forgo intervention, while subsequently seeking an extraordinary writ, in the circumstances of this case.

At ¶ 12.

Our liberal joinder rules afford ample discretion to the parties—to choose amplified litigation involving multiple claims and multiple parties, or to opt instead for a narrower suit involving fewer claims and fewer parties. Thus, the joinder decision is generally permissive. See UTAH R. CIV. P. 19, 20, 24. Parties are generally free to litigate in a piecemeal fashion if they so choose. Absent a motion for joinder of a necessary party, our rules leave joinder and intervention up to the discretion of litigants. And if an outsider is not joined in an action, it is not bound by the judgment and not precluded from filing a separate proceeding to resolve the same or similar issues.

At ¶ 15.

These principles sustain petitioners’ standing before us, and foreclose Capital Assets’ argument that their failure to intervene bars their pressing the matter further. No rule of preclusion forecloses outsiders not joined in a proceeding (and not in privity with someone who was joined) from having their own day in court. Indeed, any provision for such preclusion would run afoul of a core principle of due process. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971) (due process requires that “litigants . . . who never appeared in a prior action . . . may not be collaterally estopped without litigating the issue”). Outsiders like petitioners are free to file their own separate suit. They are thus likewise free to seek relief via a petition for extraordinary relief—subject to the standards for issuance of such a writ. See UTAH R. APP. P. 19(b)(4).

At ¶ 16.

Legislative Nature of Site-specific Rezoning

Article VI of the Utah Constitution vests legislative power in the people, to be exercised by petition for ballot initiatives and referenda. Carter v. Lehi City, 2012 UT 2, ¶ 17, 269 P.3d 141. That power is limited to actions constituting “a valid exercise of legislative rather than executive or judicial power.” Id. ¶ 18. Thus, when a city council exercises its legislative authority, voters retain the constitutional prerogative of challenging its decisions by referendum. But where the city council is acting pursuant to its administrative authority, the voters have no such right.

At ¶ 21.

By statute, Utah voters are authorized to pursue a petition for a law “to be submitted to . . . a vote of the people if it is a local law.” UTAH CODE § 20A-7-102. A “local law” is statutorily defined as “an ordinance, resolution, master plan, and any comprehensive zoning regulation adopted by ordinance or resolution,” but “individual property zoning decision[s]” are excluded. Id. § 20A-7-101(12).

At ¶ 23.

As Capital Assets indicates, site-specific rezoning decisions are statutorily ineligible for referendum under the terms of this provision. But the people’s power to legislate is not a creature of statute. It is inherent power—authority reserved by the people in our constitution. Carter, 2012 UT 2, ¶ 83. So the legislature’s failure to delegate referendum power is not the end of the inquiry. We must proceed to consider the question whether the legislature’s regulation overrides the people’s authority as reserved in the constitution. And if it does, it is the people’s constitutional prerogative that must control.

At ¶ 24.

The constitutional question turns on the distinction between legislative authority on one hand and administrative or executive power on the other. That is the sum and substance of our inquiry. If the site-specific zoning decision at issue is legislative in nature, then the matter is properly referable—regardless of any statutory determination to the contrary.

At ¶ 25.

Our Carter opinion clarified the standards dictating the scope of the people’s legislative power. It started with the proposition that “legislative power gives rise to a new law, while executive power implements a law already in existence.” Carter, 2012 UT 2, ¶ 57 (internal quotation marks omitted). And it articulated the core hallmarks of legislative power: “Legislative power generally (a) involves the promulgation of laws of general applicability; and (b) is based on the weighing of broad, competing policy considerations.” Id. ¶ 34.

At ¶ 26.

Carter articulated two bright-line rules for marking certain decisions as conclusively legislative as a matter of law. First, we indicated that decisions made by a governmental body possessing “only legislative power” are conclusively legislative. Id. ¶¶ 73, 75. And second, we held that the adoption of a broad zoning ordinance or a new zoning classification would also be a conclusively legislative act. Id. ¶¶ 71, 74. Neither of those bright lines is implicated here. Saratoga Springs has a six-member council, which “jointly exercises both legislative and executive powers over the municipality.” And both the R-3 and R-6 classification “already existed as part of the City Code at the time Capital Assets submit-ted its rezone application.”

At ¶ 28.

The bright-line rules in Carter were aimed at clarifying the grounds for resolving easy cases, not for marking the outer bounds of the people’s constitutional power in the hard ones. . . .

At ¶ 29.

In two prior decisions, we have denominated site-specific rezoning as administrative and therefore non-referable. See Bird v. Sorenson, 394 P.2d 808 (Utah 1964); Wilson v. Manning, 657 P.2d 251 (Utah 1982). But the cited cases are based on standards and considerations that were repudiated in Carter. 2012 UT 2, ¶ 75 n. 52 . . . .

At ¶ 30. 

The chief hallmarks of legislative action under Carter are the adoption of rules of general applicability and the “weighing of broad, competing policy considerations.” Carter, 2012 UT 2, ¶ 34. Site-specific zoning fits both of these criteria.

At ¶ 31.

We acknowledged in Carter that site-specific zoning decisions “affect only one piece of property.” Id. ¶ 72. Thus, they are not generally applicable in the sense that they “do not result in the announcement of a rule that applies generally to other pieces of property.” Id. But they are generally applicable in a more important sense, in that they apply “to all present and future parties that meet its terms.” Id. We conclude that this is the appropriate formulation of “general applicability.” Any future owner of the rezoned property would be subject to the new zoning classification. And in this particular case, Capital Assets plans to develop the property into seventy-seven individual residential units. All future owners would be bound by the decision to rezone the property. Therefore, we conclude that site-specific rezoning creates a generally applicable law.

At ¶ 32.

That said, general applicability, standing alone, does not compel the conclusion that a certain action is legislative. We must also evaluate whether the action in question implicates the weighing of broad, competing policy considerations. Id. ¶ 34. Reference to established analogies—decisions granting variances and conditional use permits—helps to illustrate this distinction. In Carter, we treated those decisions as administrative. See id. ¶ 71. We reached that conclusion even though they, like site-specific rezoning, are often generally applicable in that they “run with the land” and apply equally to present and future owners of the property.

At ¶ 33.

The analogy between rezoning, on one hand, and variances and conditional use permits, on the other, breaks down on further scrutiny. Variances and conditional use permits are fundamentally administrative acts because they involve application of existing law to the facts presented by an individual applicant. And the decision on variances and conditional use permits is limited to the evaluation of specific criteria fixed by law. A rezoning decision, by contrast, is open-ended. No fixed criteria are required to be met as a prerequisite for a rezone. Any and all considerations are on the table, such that rezoning decisions are made by “consider[ing] the wide range of policy considerations of relevance to all who fall within the scope of a particular law.” Id. ¶ 38.

At ¶ 34.

[W]hen a conditional use permit is approved, no new law is created. Instead, existing law has been applied to the particular facts presented by the applicant. That is the essence of administrative—not legislative—action.

At ¶ 35.

Similar considerations are in play in the decision whether to grant a variance. . . .

At ¶ 36.

A site-specific rezoning decision, by contrast, does not involve an application of existing law to a new set of facts. It involves the establishment of new law out of whole cloth. Such a decision is unconstrained by statutory requirements. No showing that “the spirit of the [previous] land use ordinance is observed” is required, for example. See UTAH CODE § 10-9a-702(2)(a)(v). The municipality is free to amend its zoning requirements in a fundamental way. Or in a merely minor fashion. The question is a matter of legislative policymaking.

At ¶ 37.

Rezoning is fundamentally different from the matter of granting a variance or a conditional use permit. It creates a generally applicable law and calls for the broad weighing of all relevant public policy considerations. And on that basis we deem site-specific rezoning a legislative act—and thus subject to referendum. Our contrary decisions in Bird v. Sorenson, 394 P.2d 808 (Utah 1964), and Wilson v. Manning, 657 P.2d 251 (Utah 1982), are accordingly overruled.

At ¶ 38.

We uphold the procedural propriety of the extraordinary writ petition that is before us in this case. We also find the site-specific rezone of Capital Assets’ property a legislative matter, and thus subject to referendum. It is on this basis that we have granted the petition for extraordinary writ and ordered the Sara-toga Springs city recorder to place the referendum that is the subject of the petition on the November 2013 ballot.

At ¶ 39.