BRAVE v. Beaver Co.

2009 UT 8
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Save Beaver County, The Beaver 	No. 20070656
River, and Varied Estates (BRAVE),
a Utah non-profit corporation,
Plaintiff and Appellant,
v.
Beaver County, Beaver County
Planning Commission, and the
Beaver County Board of County
Commissioners, Beaver County
Governmental Entities,
Defendants and Appellees.
___________________________________
CPB Development, LC; and
Mount Holly Partners, LLC, 	F I L E D
Intervenors, Defendants
and Appellees. 	February 3, 2009
---
Fifth District, Beaver Dep’t
The Honorable John J. Walton
No. 070500036
Attorneys: 	Joel Ban, Salt Lake City, for plaintiff
Barton H. Kunz II, Craig V. Wentz, Salt Lake City,
for defendants
Earl Jay Peck, J. Craig Smith, Daniel J. McDonald,
Salt Lake City, for intervenors
---
WILKINS, Justice:
¶1 	Appellant Save Beaver County, The Beaver River, and
Varied Estates (BRAVE) appeals from a ruling of the district
court holding that Beaver County Ordinance 2007-04 was enacted
administratively and therefore is not subject to a referendum
vote by the citizens of Beaver County. 	BRAVE also appeals the
district court’s ruling that the citizens of Beaver County were
provided proper notice of a hearing held on April 2, 2007 to

No. 20070656 	2
discuss the County’s proposed development agreement with CPB
Development and Mount Holly Partners. 	Appellees Beaver County,
Beaver County Planning Commission, the Beaver County
Commissioner, and Beaver County Governmental Entities
(collectively Beaver County) and Intervenors CPB Development and
Mount Holly Partners bring two motions suggesting that the issues
in this case are moot. 	We hold that the issues are not moot. 	We
affirm the district court’s ruling as to notice but reverse the
ruling on referability.
BACKGROUND
¶2 	Mount Holly Partners and CPB Development (collectively,
Intervenors) are the landowners and developers, respectively, of
a 1,826 acre, long-term, mixed use, master-planned development in
Beaver County known as “Mt. Holly Club.” 	As planned, Mt. Holly
is a gated club with an 18-hole golf course, a private ski
resort, and up to 1,204 residential units.
¶3 	Mt. Holly’s concept plan was approved by the Beaver
County Planning Commission on November 15, 2006, conditioned on
the adoption of a comprehensive development agreement. 	After a
public hearing on March 21, 2007, the Planning Commission
formulated a development agreement recommendation. 	A public
hearing to receive comment on this recommendation was scheduled
for April 2, 2007. 	On March 16, 2007, Beaver County posted
notice of the hearing in three public locations: the Beaver
County courthouse, Minersville City Hall, and Milford City Hall.
Additionally, on March 22 and 29, the County ran a notice of the
hearing in The Beaver Press, a local, generally circulating
newspaper which is published once a week. 	Both the posted and
published notices stated that the hearing was for the purpose of
receiving public comment on the (1) “Mount Holly Development
Agreement and . . . Site Development Plan,” (2) “Amendments to
the Beaver County Zoning Ordinance for the Mount Holly
Development Agreement and . . . Site Development Plan,” and (3)
“Amendments to the Beaver County Subdivision Ordinance for the
Mount Holly Development Agreement and . . . Site Development
Plan.” 	A copy of the most current draft of the development
agreement was posted on the County’s website in the late
afternoon of March 30, 2007. 	The hearing was held as scheduled
and was followed by a one week period for written public comment,
during which the County received and reviewed more than two
hundred comments. 	The resulting development agreement was
executed on April 25, 2007. 	Five days later, the County
Commission enacted Ordinance 2007-04, which adopted the
development agreement “as a Land Use Ordinance of Beaver County
. . . .”

3 	No. 20070656
¶4 	On May 10, 2007, Beaver County published a “Notice of
Adoption of Ordinance” in The Beaver Press. 	That same day, at
least twelve people requested applications for referendum
petitions from the county clerk. 	The completed petitions
requested that the County’s adoption of the development agreement
be referred “to the voters for their approval or rejection at the
regular general election to be held on November 4, 2008.”
Ultimately, 845 signatures were submitted to the county clerk,
more than sufficient to require a referendum.
¶5 	BRAVE, an alliance of Beaver County citizens, filed an
administrative appeal to the adoption of Ordinance 2007-04 on May
2, 2007. 	On May 7, 2007, the Board of County Commissioners voted
to deny the appeal. 	In a letter to BRAVE, it stated that the
denial was based on “lack of jurisdiction” and indicated that the
“proper forum for resolving the dispute appears to be in the
District Court.”
¶6 	BRAVE filed its first complaint against Beaver County
in the district court on May 5, 2007. 	On May 25, 2007, BRAVE
filed an amended complaint requesting that the court invalidate
the development agreement, or, alternatively, enjoin the
implementation of the ordinance due to the pending petition for
referendum by the citizens. 	In response, the court issued a
temporary restraining order enjoining implementation of the
ordinance until a referendum vote could take place. 	On June 13,
2007, the parties stipulated in open court to an expedited trial
to determine, among other issues, whether the notice provided by
the County for the April 2, 2007 meeting was sufficient and
whether Ordinance 2007-04 was subject to a referendum vote. 	Also
on June 13, the court granted CPB and Mount Holly’s motion to
intervene as defendants, subject to a restriction that they would
not expand the issues presented.
¶7 	The trial was held on July 21-22, 2007. 	The district
court ruled that the notice provided for the April 2 hearing
complied with the requirements of the relevant statute and zoning
ordinance and was therefore proper. 	As to the issue of
referability, the district court ruled that, as the County had
denied jurisdiction to hear BRAVE’s administrative appeal on the
grounds that it had acted legislatively in adopting Ordinance
2007-04, it was now judicially estopped from taking the position
that it had acted administratively. 	However, the district court
determined that there was no basis for applying judicial estoppel
to Intervenors. 	Instead, it applied our test in Citizen’s
Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994) and found
that the County’s action was administrative and therefore not
referable. 	BRAVE appealed to this court.

No. 20070656 	4
¶8 	On May 6, 2008 Intervenors filed a Motion for Summary
Disposition and Suggestion of Mootness which suggested that the
issue of referendum is moot due to the adoption of Utah Code
section 20A-7-401(2) which limited the citizens’ rights to
initiate a referendum in the case of land use ordinances.
Finally, Beaver County, later joined by Intervenors, filed a
Suggestion of Partial Mootness on November 13, 2008 arguing that
the completion of the November 4, 2008 general election rendered
the referendum issue moot.
STANDARD OF REVIEW
¶9 	First, whether notice was proper is a question of law,
which this court reviews for correctness, giving deference to the
facts on which the lower court’s decision was based. 	Low v. City
of Monticello, 2004 UT 90, ¶ 11, 103 P.3d 130. 	Second, estoppel
is a “mixed question of law and fact of an extremely fact-
sensitive nature to which we grant significant deference.” 	Glew
v. Ohio Sav. Bank, 2007 UT 56, ¶ 19, 181 P.3d 791. 	Lastly, “the
district court’s determination that [an ordinance] is not subject
to referendum is a legal conclusion to which we give no
particular deference and which we review for correctness.”
Citizens for Responsible Transp. v. Draper City, 2008 UT 43, ¶ 8,
190 P.3d 1245.
ANALYSIS
¶10 	We first address the Suggestions of Mootness, followed
by the issue of notice. 	Finally, we discuss the question of
referability, including the application of estoppel.
I. 	NEITHER UTAH CODE SECTION 20A-7-401(2) NOR THE COMPLETION OF
THE NOVEMBER 4, 2008 ELECTION RENDER THE ISSUE OF REFERABILITY
MOOT
¶11 	Intervenors’ Suggestion of Mootness contends that the
Utah Legislature resolved the issue of referability in Utah Code
Section 20A-7-401(2), which limits citizens’ rights to initiate a
referendum in the case of land use ordinances. 	This court found
that statute to be unconstitutional in Sevier Power Co. v. Bd. of
Sevier County Comm’rs, 2008 UT 72, ¶¶ 10-11, 196 P.3d 583.
Intervenors’ claim is therefore without merit.
¶12 	Beaver County’s Suggestion of Mootness contends that
with the passing of the November 2008 election, BRAVE’s petition
to have ordinance 2007-04 submitted “to the voters for their
approval or rejection at the regular general election to be held
on November 4, 2008” and to prevent Ordinance 2007-04 from taking

5 	No. 20070656
effect until such referendum had taken place is now rendered
moot. 	We disagree. 	The purpose behind BRAVE’s petition for
referendum is to bring the issue of the County’s adoption of the
Mount Holly Development Agreement as law before the voters of
Beaver County. 	The date “November 4, 2008” is not an essential
or even significant element of that petition. 	Thus we hold that
the issue of referendum is not rendered moot by the completion of
the November election. 	Pursuant to our ability to fashion a
remedy according to the circumstances of a particular case, we
hold that BRAVE’s referendum can be included on the ballot of a
future Beaver County election.
II. 	NOTICE OF THE APRIL 2, 2007 HEARING WAS SUFFICIENT UNDER THE
RELEVANT STATUTE AND ZONING ORDINANCE
¶13 	Utah law requires that “[e]ach county shall give . . .
notice of the date, time, and place of the first public hearing
to consider the adoption or modification of a land use ordinance”
by causing notice to be “posted . . . in at least three public
locations within the county; or . . . published in a newspaper of
general circulation in the area at least ten calender days before
the public hearing . . . .” 	Utah Code Ann. § 17-27a-205(1)-(2)
(2005). 	Notice of subsequent hearings must be posted in at least
three public locations or on the county’s website at least 24
hours prior to the hearing. 	Id. § 17-27a-205(3). 	Beaver County
posted notice of the April 2, 2007 hearing in three public
locations on March 16, 2007, seventeen days in advance. 	As the
April 2 hearing was not the first hearing on the Mount Holly
Development Agreement, only twenty-four hours notice was
required. 	Even had it been the first hearing, notice was
sufficient under the statute as it was published in the Beaver
Press on March 22, ten days before the hearing.
¶14 	Further, Beaver County Zoning Ordinance section
10.02.140 requires “[r]easonable notice of the public hearing” on
any amendment to the zoning ordinance be given “at least fourteen
(14) days before the date of the hearing.” 	Although the County’s
usual method of notice is publication in the local newspaper,
publication is not required by the zoning ordinance. 	As posting
in three locations is allowed under the Utah statute, we find
this form of notice “reasonable.”
¶15 	Neither Utah Code section 17-27a-205 nor Beaver County
Zoning Ordinance section 10.02.140 requires that the latest draft
of a development agreement be made available to the public within
a given time frame or that notice include a specific listing of
all proposed changes to existing ordinances to be discussed.
Therefore, BRAVE’s claims that (1) the County’s posting of a

No. 20070656 	6
newly revised version of the development agreement on the
County’s website less than one full business day before the
hearing and (2) that lack of specificity in the County’s posted
and published notices as to the changes to be discussed in the
meeting rendered notice insufficient are without merit.
III. 	BEAVER COUNTY ORDINANCE 2007-04 WAS ENACTED LEGISLATIVELY
AND IS THEREFORE REFERABLE
A. 	The Citizens’ Right of Referenda is a Significant
Constitutional Right
¶16 	As we have recently explained in our opinion in Sevier
Power Co. v. Board of Sevier County Commissioners, 2008 UT 72,
¶ 5, 196 P.3d 583, “the legislative power retained by the people
[to] enact laws or modify them by initiative, or to reject them
by referendum, is an important one.” 	2008 UT 72, ¶ 7. 	The
powers of government are granted to the officers and institutions
of this state by the people of Utah through the Utah
constitution. 	See Utah Const. pmbl. 	Any powers not enumerated
in that grant may be presumed retained by the people. 	Some of
those retained powers, however, are deemed so significant that
they are specifically identified in the text of the Constitution.
Id. 	One such power is that of creating legislation. 	Article VI
section 1 vests the legislative power in both the Legislature of
the State of Utah and the people of the State of Utah:
(1) The Legislative power of the State shall
be vested in:
(a) a Senate and House of
Representatives which shall be
designated the Legislature of the
State of Utah; and
(b) the people of the State of Utah
as provided in Subsection (2).
Utah Const. art. VI § 1(1). 	Subsection (2) describes the
legislative power wielded by the people, including the
referendum power which BRAVE seeks to exercise in this case:
(2)(b) The legal voters of any county, city,
or town, in the numbers, under the
conditions, in the manner, and within the
time provided by statute, may:
. . . .

7 	No. 20070656
(ii) require any law or ordinance passed
by the law making body of the county, city,
or town to be submitted to the voters
thereof, as provided by statute, before the
law or ordinance may take effect.
Id. § 1(2)(b). 	Because the power of the people to legislate
directly through referenda is a constitutionally guaranteed
right, it is the responsibility of this court to “defend it
against encroachment and maintain it inviolate.” 	Gallivan v.
Walker, 2002 UT 89, ¶¶ 25, 27, 54 P.3d 1069.
¶17 	The right to referenda, however, is a constitutionally
guaranteed right only when the law or ordinance the voters seek
to challenge was enacted legislatively as opposed to
administratively. 	“Only matters of a legislative nature are
contemplated by the constitutional language.” 	Sevier, 2008 UT
72, ¶ 13. 	Thus, “administrative zoning matters are not referable
to the voters as a matter of constitutional right while
legislative zoning matters are referable.” 	Mouty v. The Sandy
City Recorder, 2005 UT 41, ¶ 22, 122 P.3d 521.
B. 	Having Labeled Its Action Legislative, Beaver County Is
Estopped from Asserting that It Acted Administratively
¶18 	We are not required in this case to engage in an
analysis of whether Ordinance 2007-04 was enacted
administratively or legislatively. 	Beaver County clearly
intended to act legislatively. 	Numerous provisions in the
ordinance itself attest to this fact, three of which we list as
illustrative of the intent of the whole. 	Section 43(1) of the
ordinance states:
This Agreement is adopted and shall be
recognized as a Land Use Ordinance of the
County, duly enacted and adopted as a
legislative action of the Board of County
Commissioners, pursuant to the Act. 	Any
legal action brought challenging the adoption
or validity of this Agreement shall be
brought in the Fifth District Court for the
State of Utah, identified hereby as the
Appeal Authority for final legislative
decisions of the Board of County
Commissioners.
Plaintiffs’ Ex. 16 at 0637 § 43(1) (emphasis added). 	Further, in
the twelfth “Whereas” clause of the ordinance, Beaver County
states: 	“Whereas, the Beaver County Board of County

No. 20070656 	8
Commissioners now finds that it represents sound legislative
action by the Board of County Commissioners to adopt, as a Land
Use Ordinance of Beaver County, Utah, the document attached
hereto . . . .” 	Id. at 0574 (emphasis added). 	Additionally, in
the Recitals of the Agreement, Beaver County states:
The County, in furtherance of its public
policies including its land use policies,
goals, and other requirements, and to promote
the public health, welfare and safety has
made certain determinations with respect to
the Site Development Plan and in the exercise
of its legislative powers and in its sole
discretion has elected to enter into this
Agreement.
Id. at 0585, ¶ 19 (emphasis added).
¶19 	Although the language on the face of Ordinance 2007-04
may be enough alone to establish the enactment of the ordinance
as legislative, Beaver County went further. 	It denied BRAVE’s
administrative appeal, citing “lack of jurisdiction” and
indicating that the “proper forum for resolving the dispute
appears to be in the District Court.” 	By closing the door to
administrative review, Beaver County affirmed that it had acted
legislatively.
¶20 	Beaver County is surely aware of the constitutional
ramifications of choosing to act legislatively rather than
administratively. 	Therefore, we will honor the County’s choice
to label its enactment of Ordinance 2007-04 legislative and hold
that the County is estopped from now asserting that its action
was administrative. 	Once determined to be legislative in
character, an act becomes subject to action through referendum.
As such, no further protection of the rights of citizens need be
applied. 	However, when deemed administrative by the enacting
body, or when unlabeled, questions may arise that require court
interpretation to protect the legislative rights of citizens.
Consequently, if a county labels an action administrative, the
citizens would certainly have a right to challenge that label and
prove that the action is in fact legislative. 	If a county does
not label its action either legislative or administrative, then a
determination under the test we set forth in Citizen’s Awareness
Now v. Marakis, 873 P.2d 1117 (Utah 1994) would be appropriate.

9 	No. 20070656
C. 	Estoppel Is Unaffected by the Intervention of CPB Development
and Mount Holly Partners
¶21 	Absent the intervention of CPB Development and Mount
Holly Partners, no further discussion would have been required.
The appropriate remedy would have been for BRAVE’s referendum to
have been included on the Beaver County election ballot. 	See
Gallivan v. Walker, 2002 UT 89, ¶ 95, 54 P.3d 1069 (holding that
a multicounty signature requirement for placing an initiative on
the ballot was unconstitutional and a violation of equal
protection of the laws and that the challenged initiative must
therefore be placed on the ballot). 	The presence of Intervenors
does not change the required analysis, given the significance of
the constitutional right to referendum and our duty as a court to
protect it.
¶22 	A challenge to a legislatively adopted ordinance
through referendum is between the citizens and their government.
Although third parties may be impacted by the outcome of that
referendum, they have no stake in the actual controversy.
Although the permissible intervention of third parties is
appropriate, and may in fact be helpful to the court in the
determination of such cases, the role of the intervenors is to
advance the position of one of the original parties, not to
introduce an independent third position. 	Intervention in a
challenge to referendum is not the forum for determining the
independent rights of third parties. 	Here, CPB Development and
Mount Holly Partners were limited to defending (or for that
matter, attacking) the position of Beaver County. 	While the
intervention is appropriate, it is of no consequence to the
dispute between BRAVE and Beaver County.
CONCLUSION
¶23 	We deny both Intervenors’ Motion for Summary
Disposition and Suggestion of Mootness and Beaver County’s
Suggestion of Partial Mootness and hold that the issue of
referability is not moot. 	We affirm the district court’s ruling
that notice of the April 2, 2007 hearing was proper as it
complied with both the relevant Utah statute and Beaver County
ordinance. 	Because of the significance of the constitutional
right of referenda, we affirm the district court’s decision that
Beaver County is precluded from now asserting that it acted
administratively in enacting Ordinance 2007-04. 	Having so
decisively deemed the matter as legislative in nature, and
consequently denying administrative review, the County is bound
by its pronouncement, and may not reverse itself to the detriment
of the constitutionally protected rights of its citizens.

No. 20070656 	10
Moreover, Intervenors are without sufficient stake to review the
issue and challenge the determination.
¶24 	The challenged ordinance is legislative in nature, and
may therefore be referred for voter approval at the next general
election. 	By law, it cannot take effect until so approved.
Affirmed in part and reversed in part.
---
¶25 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion