PROVO — With one lawsuit already pending, the Provo City Council apparently invited a second one Tuesday night when it voted 7-0 to turn down a developer's request for a zoning change.

"Within a few days a lawsuit will be filed," said attorney Mike Hutchings, who represents Anderson Development, which wants to build 117 homes near Utah Lake in southwest Provo. "Fortunately, the Provo City Council doesn't have the final say on this. The final decision will be made by a judge and jury."

Before Anderson can seek approval from the council for the Harbor Estates subdivision, the council must change the status of 34 acres from agricultural to residential. Anderson sought the zone change in June but was stunned when the council voted 4-3 against it.

The company felt the decision was capricious and filed the suit within 30 days, as required by law. It didn't serve the suit on Provo until November, on the next-to-last day allowed by law, because it hoped to negotiate a resolution, said Rondo Fehlberg, who represented Anderson at Tuesday's council meeting.

"We don't want to fight with Provo," Fehlberg said. "I'm still optimistic we'll get to a point where this will work."

Tuesday's unanimous vote appeared to be a bigger blow to the proposed development, but there are indications that negotiations aren't over. Meanwhile, Hutchings said the company would move toward a legal solution.

"We have a new denial," he said. "Because of the new denial, we'll be forced to file a second claim against the city."

Several council members repeated their belief Tuesday night that the area — 1560 South between 600 and 800 West — isn't ready for the proposed 117 new homes. They have said the area needs more roads first and that they want to see more areas developed that are already designated as residential zones before they approve another large chunk of the city's dwindling raw land for additional housing developments.

Hutchings said the council did not let those concerns thwart others who have developed in the area.

"It's all very unfortunate, but Anderson Development does not back down when it knows it's right," he said. "We're only asking to be treated fairly and the same way other developers have been for developments of adjoining pieces of property."

Hutchings and Fehlberg said other developers have complained about Provo's treatment of landowners and proposed developments, but most remain silent.

"It's amazing that in the most conservative county in the most conservative state in America that you have a city council that doesn't recognize landowner rights," Hutchings said. "It's not a landowner-friendly environment in Provo."

Provo is in the midst of litigation in its attempt to take one landowner's property through eminent domain so it can complete a road connecting Canyon Road and University Avenue in northeast Provo. The City Council recently authorized Mayor Lewis Billings to use the same power to take a hotel on Center Street to make way for the city's new performing arts center, but negotiations with the owner are still an option.

Anderson sent Utah House Speaker Greg Curtis, R-Sandy, to ask for the rezone in June. On Tuesday, the developer dispatched Fehlberg, a former Brigham Young University athletic director and oil attorney.

Provo expects Curtis to introduce a bill during the legislative session that would shift the burden of proof on a zone change from the developer to the city. If a city wanted to deny a zone change, it would have to show why the proposed development isn't in the city's best interests.

Anderson Development is a major development company that bought the Geneva Steel property and most of the rest of the acreage in Vineyard. It also is expected to propose at least two larger developments in Provo in the future.

The company is no stranger to litigation, either. It recently settled for $50,000 with a Salt Lake County woman it had sued for alleged interference with a proposed project.

Anderson officials were stunned by the Provo City Council's original denial because the city planning commission had voted in April to recommend the council approve changing the zone to residential. Much of the area is now used for cattle grazing.

Two council members who voted in favor of Anderson the first time remain on the council, but Midge Johnson and Steve Turley changed their votes.

"The bar for development in Provo is extremely high," Turley said.

The planning commission has also changed its mind, voting 4-0 in September to recommend denial of Anderson's second proposal for a rezone.

The land in question is known for its radio towers and is the former home of radio station KOVO. Neighbors would like to see the station torn down, but some have opposed the Anderson development because of traffic and safety concerns and are put off by the potential for litigation.

Anderson officials say the proposed homes would start at $170,000 and range from 1,600 square feet to 2,400. That would fill a recognized need on Provo's west side for larger homes. The city has a problem with "family flight," losing families who move out of the west side to other cities when they outgrow their starter homes.


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