Paul Baker and Stephen D. Stuart, Petitioners/Appellees and Cross-Appellants,
Stephanie Carlson, Holladay City Recorder, and Holladay City, Respondents/Appellants and Cross-Appellees, and Ivory Development, LLC, Intervening-Respondent/Appellant and Cross-Appellee.
Direct Appeal Third District, Salt Lake The Honorable Richard
D. McKelvie Case No. 180905777
Craig Smith, Kathryn J. Steffey, Clayton H. Preece, Salt Lake
City, for petitioners/appellees and cross-appellants
L. Booher, Beth E. Kennedy, Salt Lake City, Todd J. Godfrey,
Jayme L. Blakesley, Holladay, for respondents/appellants and
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.
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.
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.
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.
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.
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.
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 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
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'
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 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
We have jurisdiction under Utah Code section 78A-3-102(3)(j).
"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.
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.
RESOLUTION 2018-16 IS LEGISLATIVE IN NATURE AND THEREFORE
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 ...