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High court rules in favor of Friends of Maple Mountain

MAPLETON, Utah County — The Utah Supreme Court ruled Friday that a grass-roots group can hold a referendum election on the rezoning of 120 acres of Maple Mountain.

The Mapleton City Council created the new zone in May 2008 to allow landowner Wendell Gibby to develop 47 lots, carving it out of a critical environmental zone that was to protect the mountainside. The previous zone allowed him to develop just 23 lots, but Gibby received final plat approval to develop all 47 lots in December.

The issue for the Supreme Court was whether the council action was legislative or administrative. Legislative actions allow referendums, while administrative decisions do not.

The court ruled the rezone was legislative because the city tinkered "with an existing zoning classification beyond what is common and ordinary." The decision overturns a decision by 4th District Judge Darold McDade, who ruled the zone change was administrative.

Friends of Maple Mountain can now attempt to undo the council's action through a referendum. The group likely will make a formal application with the city within the next week to set an election, attorney Anthony Schofield said.

"The end result is exactly what we wanted," Schofield said.

If the election is held and the referendum prevails, the zoning would revert to the former zone that protected the mountain.

"I would hope the parties would come together and avoid the referendum," Mayor Brian Wall said. "To revert back would be an incredible waste of time and money."

All activity on the mountain should stop while the details are worked out, Wall said. However, Gibby said the original zone allows him to continue building a utility road.

Gibby said he likely won't appeal to the U.S. Supreme Court.

The city created the new zone in September 2007, spurring the Friends of Maple Mountain's lawsuit in October, with the lower court's decision coming in February 2008. The rezone wasn't applied until May 2008. Then came the appeal to the Utah Supreme Court in September 2009.

The fight has been going on for eight years, with Gibby and the city suing and countersuing.

In an effort to stop the lawsuits, the two agreed on a memorandum of understanding in May 2007 that included Gibby giving up an easement to the Bonneville Shoreline Trail and providing a waterline to the city in exchange for the new zone. That no longer applies, Gibby said.

"I haven't gotten anything, so I don't have to give anything," he said. "We're back to square one."

The court's decision "wraps the (agreement) in a big question mark," city attorney Eric Johnson said.

Gibby said he also hasn't been compensated for what he describes as other wrongs by the city, including violations of his civil rights and condemnation of his land. The city offered to buy the trail easement but he refused to sell so the city attempted to condemn it.

Friends of Maple Mountain may use the high court decision to "cut a deal with (Gibby)," said Mapleton resident David Nemelka.

Although Nemelka says he never officially joined Friends of Maple Mountain and advised against appealing McDade's ruling, he worked to gather signatures for the referendum. About 29 percent of Mapleton's residents signed it.

"I wish it would end and he'd drop his lawsuits," Nemelka said, characterizing the long battle as sad.

"The city hurt him first," he said.

e-mail: rodger@desnews.com