VIRGIN — The Zion Sunset Resort continues to fight to build a resort in Virgin Town, adding a lawsuit against the town to their efforts against a referendum election that may keep them from building.
In a special election June 23, Virgin citizens decided whether or not they thought the Town Council should have rezoned an 80-acre parcel of land owned by Zion Sunset Resort and its out-of-state owners, Duane and Susan Munn.
Waiting until they could count 23 provisional ballots, the town announced the official results July 1.
The final result ended in 131 voting against the rezone and 116 voting in favor of it. Only four of the provisional ballots counted, resulting in a voter turnout of almost 80 percent.
Despite the fact that he is disappointed with the results as he is in favor of the resort, Virgin Mayor Bruce Densley said, the Town Council will abide by the will of the people.
“That’s our whole purpose in having a local government is that we listen to the will of the people,” he said. “If people don’t agree with what we do as a council, here in the United States, we have ways that we can make our voices heard.”
It’s hard to say, however, which side came out the “winner,” Densley said, considering the referendum election was so close.
“The impressive thing to me was that we had an approximately 80 percent turnout for the vote,” he said, “which is almost unheard of so it indicates that there’s a lot of interest and the whole thing is a great concern to the citizens.”
Lawsuit against Virgin Town
As much as the council wants to abide by the people’s decision, however, it’s possible they may not get the choice.
Zion Sunset Resort’s owners haven’t given up, as they had already filed a suit against Virgin before the referendum passed, asking for an injunction to stop the vote while the court made a decision, or to hold the votes if the court did not stop the election from moving forward as planned.
However, as the vote proceeded as planned, Zion Sunset Resort is now looking for ways to overturn the referendum.
What they aren’t doing, the resort’s lawyer, Justin Heideman, said, is going after the town.
“The answer is nothing could be further from the truth,” he said. “The city is named as a defendant, that’s true, but that’s because that’s what the law requires. The city, really, is on our side, that’s the thing that’s so unique about this lawsuit, is that the city approved what it is that we’re seeking to do twice, and now we’re in a position that we’re having to sue the entity that wants us to do what we want to do.”
Their argument against the town is three-pronged, Heideman said.
The first prong is whether the rezone was even eligible for referendum.
Under current law and tradition, Heideman said, actions that are legislative in nature can be vetoed by referendum. Actions that are administrative, however, cannot be.
Heideman contends that the referendum should be overturned because part or all of the process to rezone the property for the resort was an administrative action.
The rezone was actually approved twice, he said, but the first time, the town failed to assign an ordinance number to the rezone, so it was brought back and approved again.
“At least one of those changes is absolutely administrative,” Heideman said. “And if an act is even partially administrative, under current law, it is not eligible for referendum action.”
The case would have to go through a hearing, Heideman said, but if the judge decides that the act was completely legislative, then the resort will move on to the next prong, which is to claim that the original zoning ordinance is unconstitutional.
The original ordinance restricted where highway resort zones could go in Virgin, placing them on the edge of town, while the contested land is in between two residential areas.
However, Heideman says the ordinance singles out Zion Sunset Resort, giving the same benefits to similarly situated properties but denying the resort the same right.
If both of those arguments should fail, Heideman said, the third prong is that the referendum was obtained through nefarious action.
Lawsuit against referendum sponsors
While it’s a different case, the third prong parallels a separate lawsuit the resort has against three of the five sponsors of the referendum.
The lawsuit against the sponsors and the third prong of the suit against Virgin claim that the sponsors used lies and defamation to convince 115 people to sign the petition for referendum.
The resort sued the sponsors at the end of April, with the three sponsors named making a counterclaim in June.
The sponsors claim the original suit against them was to silence their participation in local government.
They claim they only opposed the rezone and did not defame the resort, and claim also that their speech during the legal process is protected by the Utah Constitution, the First Amendment to the U.S. Constitution and Utah common law privileges.
In response, the resort argued that defamation is not protected under those laws and provided declarations from three witnesses who claimed that the sponsors had come to them with specific statements that the resort contends were untrue.
The declarations specifically state that the sponsors told them the resort would have traffic through the middle of town, interfere with the town’s dark sky ordinance, overload the town’s wastewater and water abilities and increase crime. The declarations also say the sponsors claimed that the rezone would affect zoning on other properties and that the Town Council could not or should not make the change without the town voting on it.
One of the sponsors, Mark Savee, said the sponsors believe the accusations are unfounded, but could not comment more due to the still-pending litigation.
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