IVINS — A group of Ivins residents is taking their city to court over a September decision by the Ivins City Council to rezone 113 acres in southeast Ivins for a commercial-residential resort that is planned to include short-term rentals.
The group of about 200 Ivins residents calling itself Defenders of Greater Ivins is looking for a judge to overturn the 3-2 vote that took place at the Ivins City Council’s Sept. 1 meeting. The decision took the “SITLA 120” land at the corner of Puerto Drive and 400 South from strictly low-density residential properties to a mix of residential, commercial and resort zones.
The land is owned by the Utah School and Institutional Trust Lands Administration (SITLA) and is being developed by Rize Capital, which has said it wants to use the land for a development known as “The Retreat.” A feature of the retreat, which will include townhomes, single-family residences and a commercial element, is what the developer called a horizontal hotel consisting of short-term rental homes.
Many of those in the Defenders of Greater Ivins group, which also is known by its acronym DOGI and pronounced “doggy,” spoke during public comment at the Sept. 1 meeting. In the hearing, every seat in the chamber was full even after extra seats were added, and the line to speak at the podium trailed to the back of the chamber. Of the 13 residents who spoke, one spoke in support of the rezoning.
Attorney Justin Heideman represents DOGI and said while the group’s primary effort is an overall opposition to the project, the thrust of the move in the courts was the contention that the council failed to follow the correct procedure.
“The reason is because the city of Ivins violated their own code,” Heideman said.
The procedure in question within the Ivins City Code is Section 2.06.401, which covers the reconsideration of an item on a council’s agenda. Heideman said the same motion was considered twice, which was in violation of that section of city code.
“The same person that brought that second motion brought the same motion again a second time during the same meeting,” Heideman said. “There was no new evidence presented that could not have been presented at the meeting. There was nothing that was illegal, arbitrary, capricious about the way the vote was done. And you can’t do that. So they violated their own ordinances in four different ways.”
During the Sept. 1 meeting, there were three motions concerning the rezoning of the property. The first, made by council member Mike Scott, called for rejecting the rezoning. That vote failed 2-3.
The second, by council member Adel Murphy, was to approve the rezoning. That vote also failed, 2-3, after council member Jenny Johnson switched her vote saying she wanted “more clarification” on adding conditions to the rezoning.
At that point, Mayor Chris Hart warned that conditional zoning is a “gray area” that could open the city to a lawsuit by the developer as it is not clear if conditional zoning is legal.
In the most recent Utah case concerning conditional zoning, the city of Moab tried to put conditions on a developer proposing a similar resort that was also on SITLA-owned land. The Utah Court of Appeals ruled Moab was in the wrong for placing conditions on the developer.
After additional appeals in support of the rezoning by Rize attorney Matt Ence, who also serves as the Santa Clara City attorney, and SITLA representative Gregg McArthur, who also is a St. George City councilman, Murphy made a third motion, which was verbatim to the second motion to approve the rezoning.
The third motion received 3-2 approval, with Johnson again flipping her vote.
Dale Coulam, who serves as both the city attorney and city manager for Ivins, was asked by St. George News if he had any concerns that the process for making motions on a city action wasn’t properly followed.
“No, not on my part, but we have defense counsel handling the matter at the current time and we’ll just see how it proceeds,” Coulam said.
That counsel is Bryan Pattison, who told St. George News his general policy is not to comment on any litigation and added he was recently retained and is getting up to speed with the case.
“It’s not often you see zone change applications,” Pattison said. “Usually, the city has a lot of discretion.”
Besides DOGI and Ivins, there is a third party looking to play a role in the case: the developer.
Rize, under the name EWD, LLC, has filed a motion to intervene to become a party to the court case. Such a motion is used when a party that is not a part of a case wants to become one.
Heideman said he views Rize’s attempt to become a party in the case as unusual and is the developer trying to get in between the city and its citizens.
“What typically happens is you have a citizen’s group like ours, and they see the city do something like this, and so they file for review with the judge and ask the judge to determine whether or not what the city did was inappropriate,” said Heideman, who added he opposes the motion. “What’s happened here is (the developer has) filed a motion to intervene, and the reason they’ve done so is because they want to oppose the request that my clients have made. So in essence, they want to be on the other side of the appeal, and typically that’s not permissible.”
Jerry Miyahara, the chief operating officer of Rize Capital, did not respond to a request for comment.
The motion as to whether the developer can be added as a party to the case will be decided during the first hearing of the case in Judge Keith Barnes’ courtroom at 5th District Court on Dec. 6.
As far as the city of Ivins is concerned, Pattison said the city isn’t taking a position. However, he said Ivins is “not opposed to the developer defending their interest.”
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