ST. GEORGE — A judge ruled in favor of the city of Ivins and a developer planning a mixed residential/commercial resort with short-term rentals in a lawsuit brought on by a group of Ivins residents.

At the 5th District Courthouse in St. George on Tuesday afternoon, Judge Keith Barnes said the city did not break the law when it broke normal city council procedure when, after a vote to approve the rezoning of the developer’s land failed, the motion to approve it was repeated in the same meeting, and it passed. 

Last Sept. 1, the Ivins City Council approved a rezoning of the “SITLA 120” land owned by the Utah School and Institutional Trust Lands Administration. The land is being developed by Rize Capital from low-density residential properties to a mix of residential, commercial and resort zones to be called “The Retreat.”

In a public hearing before the vote, 12 of 13 residents spoke out against the proposal saying its inclusion of short-term rentals was bad for the city. Since then, residents have formed a group, Defenders of Greater Ivins (DOGI), to oppose the rezoning. And they filed a lawsuit in November to have the rezoning overturned. 

After deliberating for about 30 minutes, Barnes ruled that the decision was ultimately based on whether city council procedures, such as how motions are made, are decorum or binding law and whether a court can reverse the decision if a city council makes an error in that procedure.

In this case, the judge said a council can’t be penalized if it makes a mistake in procedure if it didn’t ultimately affect the final decision. 

“The petitioners say the alleged procedural errors during the council meeting mandate reversal. The court disagrees,” Barnes said. “They have not convinced this court to establish a reasonable likelihood that this technical defect changed the outcome of the proceeding. The court is persuaded that whatever technical defects may have occurred, there is simply no basis to conclude that there is a reasonable likelihood that the motion to approve the zone change would not have passed absent the procedural error.”

Rize can now proceed to develop the 113-acre property at the corner of Puerto Drive and 400 South. Rize’s attorney Jeff Miles told St. George News outside the courtroom the lawsuit had no merit in the first place.

“I think the developer did everything that it should have done to bring it before the City Council. And the City Council sure did its best,” Miles said. “If you look at the record, they did a whole lot of work here to make a decision that’s in the best interest of the city, and that’s what they did. So I think the court made a good decision.”

While the lawsuit was originally against just the city, Barnes ruled in December that Rize Capital could join with the city as a defendant.

Every seat in the gallery of the courtroom was full for the hearing. Judging by those gathered outside the courtroom before the hearing, a majority were members of DOGI and those opposed to the development.

Ivins resident Michael Cook, who along with Michael Barton and DOGI were the co-plaintiffs in the case, said the city went to court because it didn’t want its residents to vote on it.  

“We didn’t ask for them to go out and hire an attorney and fight this so hard. All they needed to do was understand the problem with the procedure in which they took this vote,” Cook said, adding that by not nullifying its original decision, the city avoided kicking in a process that would have allowed for a resident referendum. 

“They could have just invalidated the vote and motioned it up for the next meeting, taking the same vote. But what they don’t want is the citizens to have a referendum, which is all we’ve ever wanted.”

Barton’s wife Sharon, as well as fellow DOGI leader Sharon Gillespie, are among the eight candidates for two seats in the fall City Council election that also includes incumbent Jenny Johnson. 

Johnson was the only member of the Ivins City Council in the courtroom for the hearing, as was Ivins Mayor Chris Hart. 

Attorney Justin Heideman, who represented DOGI and the plaintiffs, said it would be up to them to appeal the decision, but he will be advising them to do so.

“There are no prior precedents in the state of Utah on this issue. There are very few precedents on this issue in the United States,” Heideman said. “So it would surprise me greatly if this is not an issue that the Court of Appeals would be interested in.”

Heideman also said he rejected the assertion by both the defendants and the judge’s ruling that because council members are “laypersons,” they can make procedural mistakes. He said they are obligated to be educated on the law.

“I doubt seriously any police officer that pulls me over on my way home today is going to allow me to say, ‘Hey, I made a mistake,’” he added. 

In his opening argument in court, Heideman argued that after a motion to approve the rezoning failed 2-3, one of the council members who voted for it, Adel Murphy, remade the same motion, and it was approved 3-2. Murphy’s motion came after Johnson, a previous “no” vote, said she was reconsidering that vote. 

Only three people could make that motion, and it wasn’t Councilwoman Murphy or Councilman (Lance) Anderson,” Heideman responded. “We have an obvious violation. The citizens of Ivins were robbed because of this irregularity.”

Barnes then mentioned to Heideman that the people of Ivins had a chance to be heard during the public hearing before the Sept. 1 vote and that all of the motions during the meeting were open to the public and not behind closed doors. 

Heideman responded that residents were still not afforded due process.

“Otherwise, Murphy and Anderson could keep making motions until the vote goes their way,” Heideman said. “The very definition of capricious has been met when they say they didn’t have to follow their own rules.”

In his argument that followed, attorney Bryan Pattison, representing Ivins City, said the city code cited by the plaintiffs isn’t meant to be a listing of citizen rights, noting how Heideman mentioned a portion of one of the American founding documents in his argument.

“We’re not talking about the Declaration of Independence; we’re talking about rules of decorum,” Pattison said. “These are not substantive rights. This is not an open records issue. They want the court to strike down a legislative act from a democratically-elected body because of a legal ‘gotcha.’”  

Barnes did not have questions for Pattison.

Miles, the attorney representing the developer Rize Capital then rose to speak and reiterated that no law was violated by any non-adherence to meeting procedure. 

“If there’s no violation of state or federal law, there’s not even an argument to whether a motion was made right or not … under that standard, there’s not a lot to talk about here.”

Barnes also didn’t have questions for Miles.

In his rebuttal, Heideman said that Councilmember Johnson could have made a motion to reconsider but did not.

“She said no,” Heideman said. 

That drew a response from the judge.

“She said no, but she had more to say and was still considering,” Barnes said from the bench. “Wasn’t it reasonable that she was considering their position?”

“You’re holding council members to every word they say,” Barnes added to audible groans from DOGI members in the courtroom.

“It’s not decorum,” Heideman said. “Those rules mean something. This court ultimately is going to look at the people of Ivins and say your voice matters or it didn’t.”

After the hearing, Heideman said he considered it unusual that the judge took an adversarial tone with the plaintiffs but not the defendants.

“I was very surprised at the tone of some of the questions,” Heideman said. “Based on the questions, I was not surprised at what the ruling was.”

But Mills told St. George News outside the courtroom that there is always someone opposed to most votes a city council will make, but they do not always represent the views of a majority of residents or the city’s best interests.

“The people did win, I think. there’s always an individual when you’re talking about a whole city or even a group of individuals that don’t agree with a city council decision,” Mills said. “But on the whole, I think they made the decision that was in the best interest of the city.”

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