In a special Kanab City Council session on September 29, lawyers representing Kanab City, David Elmont; the Planning and Zoning Commission (PC), Gregory Hardman and Tyson Horrocks; and the Kane County Taxpayers Association (TPA), John Barth, debated the validity of the city council to grant approval of Viresco Energy’s Site Plan (SP) for the coal gasification plant in Kanab.

Barth, on the phone from Colorado, argued the Resolution 8-4-11 passed on August 23 allowing the city council to assert jurisdiction over the TPA’s site plan appeal is not the appropriate body to make that decision. He stated the Kanab Zoning Ordinance Section 3-2 directs that all land use ordinance appeals be heard before the City Appeals Officer (CAO), and as such the city council has no jurisdiction over this appeal.

This resolution was enacted three months after the TPA filed its site plan appeal. Attorney Hardman, on the staff of the city-retained law firm of Snow, Jensen and Reece, asked Barth where he was getting this information, stating the city had not adopted any separate appeals process and could rule for or against the TPA appeal as they saw fit. The 8-4-11 resolution intended to give the city council and mayor, who acted as the judicial officer in these proceedings, the power to review and act on this appeal, effectively bypassing the CAO.

“It should have been titled the ‘Land Use Authority Appeals Chapter,” quipped Hardman “as it eliminates the CAO as the only appeal reviewer.”

Barth brought up other procedural issues as part of his request to render the site plan “de novo,” meaning to start the review process anew.

He pointed out Councilman Jim Sorensen was also a PC member during four public PC meetings from January to May of this year. The PC was the land use authority that approved the Viresco site plan. State code prohibits a member of an appeal authority from entertaining an appeal if that person first acted as a land use authority. Sorensen was not present at this meeting and is not participating as a city council member in this appeal, but it does not absolve his initial involvement in the process.

Barth went on to say information obtained via the Government Records Access Management Act (GRAMA) indicated the law firm of Snow, Jensen and Reece assisted the city in formulating Res. 8-4-11 granting appeal decision making powers to the city council and mayor.

“The city council should have been consulting their attorney in this matter, David Elmont of the law firm Barney, McKenna and Olmstead in St. George, and not the attorneys for the PC. This in effect created an ex parte action, meaning the favoring of one of the parties to this appeal (PC) over the other (TPA) in formulating the rules and procedures governing this appeal.

Hardman retorted that any input from his firm was only housekeeping and procedural issues, and that no alteration in the substance of the resolution was made by his firm. “It is not inappropriate to assist the city in non-substantive matters. My conversations were with the city manager and not directly to the city council,” Hardman contended.

In substantive issues, Barth argued the city council never conducted a required public hearing on the contested Viresco application. He also stated the PC could only render site plan decisions on uncontested applications and the site plan is a component of the Conditional Use Permit (CUP) process, which was contested in writing by the TPA early on. Next, Barth named a number of application deficencies present at the time the PC approved the zoning changes.

Hardman retorted that the TPA’s appeal did not specify reasons for the appeal, including any procedural complaints, and therefore, it could be summarily dismissed by the Judicial Officer, Mayor Laycook. He further asserted the TPA initially sought out the city council to determine their appeal status, thereby consenting to the city council jurisdiction in this matter.

Hardman concluded his time by saying, “The TPA is concentrating on technicalities and not substance and municipal law requires due process not perfect process. Jim Guthrie and Viresco have land use entitlements that have been suspended due to these appeals. The TPA bears the burden of proof that the PC was inappropriate in approving the Viresco site plan. The PC had sufficient evidence before it to rule favorably for the applicant (Guthrie), who met all of the existing requirements. Furthermore, no public hearing was required as the state has no requirements unless the city general plan is amended or a land use ordinance is adopted.”

The PC attorney reasserted his belief that the city council’s judicial power is legitimate and admonished the city council to vote in favor of the PC approval of Viresco’s plan even if that judgement is close.

Attorney Barth finished by asking, “Why was the conditional use permit appeal before the CAO and the site plan appeal was being heard before the city council judicial panel. “Only the appeals officer has jurisdiction and is the proper venue for both appeals. Subject matter jurisdiction applies here and both the conditional use permit and site plan appeals are similar in nature. Jurisdictional issues need to be resolved and this appeal authority needs to relinquish its recently asserted authority in this matter to the CAO or explain why there are two separate appeal entities.”

Mayor Laycook, after each of the 11 TPA requests to rule the hearing de novo, have the city council vacate its authority or relinquish its jurisdiction and allow the TPA to re-file an appeal after a final site plan is signed by all parties, repeatedly stated that as the judicial officer she would not make a decision on these matters at this time.

After closing statements concluded, the city council, mayor and attorney Eaton retired to deliberate their ruling returning in a half hour with the mayor announcing, “no decision has been made tonight secondary to the need to consider additional information.”

Laycook closed the proceedings by saying, “We will give the attorneys five working days for rebuttals and make our decision within a couple of weeks.”