CRT v. Draper City

2008 UT 43
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Citizens for Responsible No. 20070677
Transportation,
Plaintiff and Appellant,
v.
Draper City, a municipal
corporation,
Defendant and Appellee.
F I L E D
Utah Transit Authority,
Intervenor. July 11, 2008
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Third District, Salt Lake
The Honorable L. A. Dever
No. 070902056
Attorneys: Justin D. Heideman, Daniel W. McKay, Justin R.
Elswick, Provo, for plaintiff
Douglas J. Ahlstrom, Benjamin C. Rasmussen, Draper,
for defendant
W. Cullen Battle, Bruce T. Jones, Jennifer R. Kohler,
Timothy K. Clark, Salt Lake City, for intervenor
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DURHAM, Chief Justice:
INTRODUCTION
¶1 In this case, Citizens for Responsible Transportation
(CRT) appeals from an order of the district court denying CRT’s
motion for summary judgment and granting Draper City’s motion to
dismiss. The district court dismissed CRT’s claim on the basis
that Draper City Resolution No. 06-71 was not subject to
referendum. CRT asks that we reverse the dismissal and remand
the claim to the district court. We affirm.
BACKGROUND
¶2 In 2004, five counties and thirty-five cities entered
into an agreement with UTA entitled Master Interlocal Agreement
Regarding Fixed Guideway Systems (Interlocal Agreement). The

1 The Interlocal Agreement grants UTA the “right to plan,
design, construct, own, operate, and maintain” the commuter rail
system without being subject to city zoning, planning, and
regulatory authority “to the extent that (A) such UTA activities
are governed by federal or State laws, rule or regulations,
(B) the exercise of such authority by one or more communities
would materially adversely affect the uniform operation of the
System, (C) the exercise of such authority by one or more
Communities would impose a cost on UTA which constitutes a
Betterment under the terms of this Agreement, or (D) the exercise
of such authority by one or more communities would be
inconsistent with the terms of this Agreement.” None of these
limitations apply to this case, and none of them required Draper
City to pass Resolution No. 06-71.
No. 20070677 2
Interlocal Agreement grants UTA the “right to plan, design,
construct, own, operate and maintain” a commuter rail system
along a specifically identified corridor without obtaining
permits or paying administrative fees to the city. Additionally,
the Interlocal Agreement exempts UTA from city zoning and
planning regulations with a few exceptions.1 The corridor
designated by the agreement for the commuter rail system is land
that UTA owns or in which it has an interest. On February 3,
2004, pursuant to the Interlocal Cooperation Act (ICA), under
Utah Code section 11-13-101 to -314 (2007), Draper City Council
passed Resolution No. 04-12, which adopted and approved the
Interlocal Agreement. The ICA provides that any agreement made
under the authority of the ICA is not subject to referendum. See
Utah Code Ann. § 11-13-219(2).
¶3 On November 14, 2006, the Draper City Council passed
Resolution No. 06-71, endorsing the same corridor designated in
the Interlocal Agreement as the “Locally Preferred Alternative”
for the proposed commuter rail system. Following Draper City’s
adoption of Resolution No. 06-71, CRT filed an application for
referendum proceedings with the Draper City Recorder requesting
Resolution No. 06-71 be placed on the public ballot. CRT’s
application was accepted, and petition and signature sheets were
issued pursuant to statutory procedure. The Salt Lake County
clerk’s office reviewed the signatures contained in the petition,
and invalidated a number of them. When the petition was
subsequently submitted to the Draper City Recorder, it was
rejected because the number of remaining signatures was
insufficient to place it on the ballot.
¶4 Later, following a recount of the signatures, the
Draper City Recorder again denied CRT’s petition. On February 5,
2007, CRT initiated a declaratory judgment action in district

3 No. 20070677
court to compel the Draper City Recorder to accept certain
signatures which had been declared invalid and to place
Resolution No. 06-71 on the public ballot. The next day, CRT
filed a motion for a temporary restraining order against Draper
City and requested that the court enjoin Draper City from
beginning construction on the TRAX commuter rail system. The
district court denied CRT’s motion for a temporary restraining
order and request for a preliminary injunction on February 20,
2007. On March 13, 2007, CRT filed a second motion for a
temporary restraining order and a preliminary injunction against
Draper City and requested a hearing before the district court.
¶5 On April 4, 2007, the district court heard arguments,
and on April 23, 2007, it issued an order denying CRT’s motion
for a temporary restraining order and preliminary injunction.
The district court held that Resolution No. 06-71 was an
administrative action that did not create law and therefore was
not subject to referendum. Additionally, the district court
found that Resolution No. 06-71 was not subject to referendum
pursuant to the ICA.
¶6 On May 31, 2007, Draper City filed a motion to dismiss
based on the district court’s April 23, 2007 order. On July 18,
2007, the district court granted Draper City’s motion to dismiss
based on the April 23 order, which contained two grounds for
dismissal. First, the district court found that Resolution No.
06-71 was not subject to referendum because it was merely Draper
City Council’s expression of a preference and did not have the
force of law. Second, the district court found that Resolution
No. 06-71 was enacted pursuant to the ICA and was not, therefore,
subject to referendum. CRT now appeals the district court’s
grant of dismissal. We affirm the district court’s ruling on the
basis that Resolution No. 06-71 is not law and therefore not
subject to referendum.
¶7 We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(j) (2008).
STANDARD OF REVIEW
¶8 The district court’s decision to grant a motion to
dismiss presents a question of law that we review for
correctness. See Ellis v. Estate of Ellis, 2007 UT 77, ¶ 6, 169
P.3d 441. Additionally, the district court’s determination that
Resolution No. 06-71 is not subject to referendum is a legal
conclusion to which we give no particular deference and which we
review for correctness. See Grayson Roper Ltd. P’ship v.
Finlinson, 782 P.2d 467, 470 (Utah 1989).

No. 20070677 4
ANALYSIS
I. RESOLUTION NO. 06-71 IS NOT A LAW AND IS NOT REFERABLE
¶9 CRT argues that the district court erroneously
determined that Resolution No. 06-71 did not have the force of
law and therefore erred in granting the motion to dismiss. We
disagree. Article VI of the Utah Constitution vests the
sovereign legislative power in both (1) the State Legislature and
(2) the people of the State of Utah. Utah Const. art. VI,
§ 1(1); see also Low v. City of Monticello, 2002 UT 90, ¶ 23, 54
P.3d 1153. The power of the people to legislate can be exercised
at the local and state level through initiatives and referenda.
See Utah Const. art. VI, § 1(2); Utah Code Ann. § 20A-7-102
(2007); Low, 2002 UT 90, ¶ 23. Therefore, citizens of the State
of Utah may refer acts by the Legislature, and citizens of a city
or county may refer legislative acts by their city council or
county commission. If a petition for referendum is properly
presented to public officials, those officials are required by
law to present the issue to the public for a vote. See Utah Code
Ann. §§ 20A-7-607 to -608; Low, 2002 UT 90, ¶ 23. A petition,
however, may be rejected if it is directed at a matter that is
not subject to referendum. Low, 2002 UT 90, ¶ 23; Salt Lake on
Track v. Salt Lake City, 939 P.2d 680, 682 (Utah 1997).
¶10 The Utah Constitution grants the people power to refer
“any law or ordinance passed by the law making body.” Utah
Const. art. VI, § 1(2)(b)(ii). The “law making body” of a city,
however, often performs administrative and executive
responsibilities in addition to its legislative functions. See
Keigley v. Bench, 89 P.2d 480, 483 (Utah 1939) (stating that the
legislature contemplated that a governing body of a city has
administrative as well as legislative functions, and they
intended to limit referendum proceedings to legislative acts).
We have repeatedly held that legislative actions of the law
making body are referable, while administrative actions are not.
See Low, 2002 UT 90, ¶ 24; Citizen’s Awareness Now v. Marakis,
873 P.2d 1117, 1122 (Utah 1994); Keigley, 89 P.2d at 483. If
Resolution No. 06-71 is legislative in nature, then it is subject
to referendum; if it is an administrative action, then it is not
referable.
¶11 The determinative test in deciding whether an action is
legislative or administrative in nature is whether it creates new
law on the one hand, or merely executes or implements existing
law on the other. Low, 2002 UT 90, ¶ 24; Keigley, 89 P.2d at
484. In determining whether an action creates new law or
implements or executes existing law we look at the general
purpose and policy of the original law, the material variance

2 CRT seems to contradict its own argument that Resolution
No. 06-71 is a law and therefore subject to referendum by also
arguing in its brief that Resolution No. 06-71 does not fall
under the ICA because it is not a law.
5 No. 20070677
between the new provisions and the original law, and the general
appropriateness of voter participation. See Citizen’s Awareness
Now, 873 P.2d at 1122-23. In Citizen’s Awareness Now, this
court, in reviewing city actions related to zoning, said:
If the zoning change falls within the general
purpose and policy of the original ordinance,
it constitutes an administrative change and
is not subject to referendum. However, if
the zoning change does not comport with the
general purpose and policy of the original
ordinance, a legislative presumption attaches
and the trial court must then consider the
final two elements, material variance and
appropriateness of voter participation.
873 P.2d at 1124.
¶12 CRT contends that all resolutions are legislative
actions and therefore subject to referendum because the statutory
definition for referable “local law[s]” includes
“resolution[s].”2 Utah Code Ann. § 20A-7-101(10)(a). The title
of an action, however, is not dispositive; rather, what an action
accomplishes determines if it is legislative or administrative in
nature. See Low, 2002 UT 90, ¶ 24. If we look only at the
formal label a city council assigns to a particular action, then
a city council could avoid the referral process merely by
carefully selecting that label, regardless of a measure’s actual
import.
¶13 On its face, Resolution No. 06-71 has no effect beyond
expressing Draper City’s preference for a particular rail
location and therefore does not constitute a law or ordinance.
The city’s preference has no legal effect and is not enforceable.
The authority for UTA to construct a commuter rail system on the
corridor designated by Resolution No. 06-71 is clearly within the
intended purpose and policy of the Interlocal Agreement. The
Interlocal Agreement and Resolution No. 04-12 already grant UTA
“the right to plan, design, construct, own, operate and maintain”
a commuter rail system in the same location that Resolution No.
06-71 later declared the “Locally Preferred Alternative.” The
Interlocal Agreement specifically states that UTA is not required
to obtain a permit, pay any administrative fees, and is not

3 Resolution No. 06-71 merely expresses a preference
pursuant to the general purpose and policy of the Interlocal
Agreement. As such, it is administrative in nature. In Keigley
we held that even when a city council makes changes to a law,
those changes could still be considered administrative if made
“pursuant to the intended purpose and policy” of the original
law. 89 P.2d at 484.
No. 20070677 6
subject to “planning, zoning, and regulatory authority” under
Draper City’s police power. Absent Resolution No. 06-71, UTA
would still have the authority to move forward with the
construction of the commuter rail system.3 Therefore, we hold
that Resolution No. 06-71 does not have the force of law.
Rather, it is merely Draper City’s declaration of support for the
proposed location for the commuter rail system and, as such, is
not subject to referendum.
¶14 Citizens who are unhappy with the execution or
implementation of laws are not without recourse, but their
remedies lie in the political arena. If every dissatisfied
citizen were allowed to invoke the referendum process for
administrative actions, the “‘efficiency and economy in the
business administration of a city would be seriously affected.’”
Keigley, 89 P.2d at 483 (quoting Dooling v. City Council of
Fitchburg, 136 N.E. 616, 617 (Mass. 1922)). Citizens’ recourse
is the opportunity to vote their executive officials out of
office. See Ricker v. Bd. of Educ., 396 P.2d 416, 420 (Utah
1964) (holding that although citizens may not directly intrude
into school board administration, their remedy is the “power of
the future ballot”).
II. INTERLOCAL COOPERATION ACT
¶15 CRT also argues that Resolution No. 06-71 does not fall
under the ICA and that the ICA is unconstitutional, and therefore
the district court erred in determining that the ICA excluded
Resolution No. 06-71 from the referral process. Having
determined that Resolution No. 06-71 is not law and therefore not
subject to referendum, we need not determine whether it falls
under the ICA. Additionally, we decline to address the
constitutionality of the ICA because “‘this court should avoid
addressing constitutional issues unless required to do so.’”
State ex rel. Z.C., 2007 UT 54, ¶ 5, 165 P.3d 1206 (quoting Lyon
v. Burton, 2000 UT 19, ¶ 10, 5 P.3d 616).

7 No. 20070677
CONCLUSION
¶16 In conclusion, a citizen’s right to refer government
action to a public vote is available for legislative actions but
not for administrative actions. The determinative test of
whether an action is administrative or legislative is whether it
creates new law or whether it is an implementation or execution
of existing law. The Interlocal Agreement and Resolution No. 04-
12 gave UTA the authority to construct a commuter rail system in
the same location that Resolution No. 06-71 declared the “Locally
Preferred Alternative” for the rail system. Therefore, we hold
that Resolution No. 06-71 did not have the force of law but was
merely Draper City’s declaration of a “Locally Preferred
Alternative” for the commuter rail system. As an administrative
action, Resolution No. 06-71 is not subject to referendum.
Affirmed.
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¶17 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Judge Thorne concur in Chief Justice
Durham’s opinion.
¶18 Justice Nehring does not participate herein; Court of
Appeals Judge William A. Thorne, Jr., sat.