Litigation Actions Supported by Erda CA

Updated November, 2021

Since the inception of Erda CA in 2018, we have been involved in 8 legal actions that support our goal to preserve and protect Erda’s rural lifestyle. WE ARE NOT opposed to development. We support common-sense commercial development and rural residential development that falls within the current rural residential zoning.

The following provides information regarding the ongoing litigation actions funded/supported by the Erda Community Association.

Skywalk Annexation (as of November 19, 2021)

Background: On or about July 31, 2020, Skywalk submitted to Grantsville City a notice of intent to annex the Skywalk Property into Grantsville City. On January 21, 2021, Skywalk submitted to Grantsville City a petition to annex the Skywalk Property into Grantsville
City (the “Skywalk Annexation). On February 17, 2021, Grantsville City Council held a public meeting and formally accepted Skywalk’s annexation petition. On March 17, 2021, the Grantsville City Recorder issued a Notice of Certification certifying that Skywalk’s annexation petition satisfies the requirements of applicable Utah code. Erda CA counsel filed a Petition for Judicial Declaratory Judgement and Injunctive Relief on April 12, 2021.

Grantsville City has persisted in approving annexation requests for property that is identified in the voter approved Erda City boundaries. The lawsuit was filed in an attempt to get Grantsville to agree to take no further action to complete annexation pending the lawsuit, but it refused. As a result, the Erda CA counsel filed a Motion for Preliminary Injunction served on April 30, 2021. On April 23, 2021, Skywalk filed an emergency Motion to Intervene, which allows them to become a part of the lawsuit. Several court actions were filed by all, pending hearings to be held by the court.

While all of these filings were pending for court hearings, Grantsville City set a city council meeting on May 19, 2021, to try to finalize the Skywalk annexation. Erda CA counsel moved for an emergency Temporary Restraining Order (TRO) which both Skywalk and Grantsville opposed. Just one hour before the start of the Grantsville annexation hearing, the judge granted the motion for the TRO, effectively stopping the annexation until further court hearing could be scheduled and conducted.

Update as of November 19, 2021: A court hearing was scheduled for July 1, 2021, to hear the Erda CA Motion for Preliminary Injunction and the Motions to Dismiss filed by Grantville City and the Skywalk developers. The hearing was continued and more evidence was presented on August 21, 22, and 25, 2021. On October 25, 2021, the court issued it’s ruling. The ruling stated:

“Having considered the parties’ arguments and the evidence presented, the Court GRANTS Petitioners’ (Erda CA) Motion for Preliminary Injunction and DENIES Respondents’ (Grantsville City and Skywalk) Renewed Motion to Dismiss. Given the multiple legal issues presented, the Court requires more time to finalize the analysis supporting this Ruling and Order. Based on the Court’ Ruling, Respondent are hereby enjoined from taking further steps to annex the Skywalk Development parcel into Grantsville City.” The Courts finalized analysis of the ruling was issued on November 8, 2021.

Three appeals opposing the Courts’ decision were filed by Grantsville City and Skywalk immediately following the Courts’ ruling. These actions are still pending as of November 19, 2021.

Brown Annexation (Completed)

Background: In October 2020, the Tooele County Boundary Commission, despite multiple protests and violations of Utah Code, approved a pending action to move real property known as the “Brown” parcel into Grantsville City. The property was within the boundaries of the proposed Erda City which had been certified and placed on the November ballot by the Utah State Lieutenant Governor. Even though the violations were cited by the Erda CA attorney, Grantsville City intended to move forward with approving the Brown annexation. It included approximately 60 homes and 100 + residents without gaining approval from the affected homeowners. The Grantsville application contained two fatal deficiencies, in failing to include all of the required property owners’ signatures, and being filed during a period where it was statutorily prohibited due to Erda’s pending incorporation.

The Erda CA attorney filed a motion for a Temporary Restraining Order until after the November 2020 election. The request was granted by the Court on October 21, 2020. Therefore, Grantsville City was not allowed to proceed. A Tooele County Boundary Commission created for just this case, obtained opinions from 3 outside attorneys who reported that several laws had been ignored. Since Grantville City could not do anything because of the restraining order, they asked and were given permission by Erda CA counsel to hold a meeting. They held the meeting where they rejected the annexation application. Additionally, as a result of the vote to incorporate, Grantsville City could not proceed further.
Current Status: Litigation completed.

North Annexation (as of November 19, 2021)

Background: Separate from the Brown annexation, and while the Erda City incorporation initiative was pending the November vote, Grantsville City annexed 548.85 acres of A-20 zoned real property out of Erda’s finalized boundaries. On October 9, 2020, the Court held a hearing on a petitioners Motion for Preliminary Injunction filed by the Erda CA attorney. There are 4 factors the petitioners are required to meet: 1) serious question on the merits, 2) an injunction in public interest, 3) petitioners have been irreparably harmed, and 4) and balance of harms requires
injunction. The court found that an order to reverse Grantsville’s action could also irreparably harm Grantsville. Since the court could not tilt the balance scale of harm, the injunction was denied.

Erda CA Counsel respectfully requested the Court to grant a summary judgement and to enter a writ of mandamus ordering Grantsville to repeal their Ordinance, 2020-23, which illegally annexed land from Erda’s boundaries. Petitioners are entitled to judgement as a matter of law. The summary judgement suggests that Grantsville’s annexation of the North Parcel was illegal, because it is based on 1) an invalid application due to material alteration, 2) an untimely filing due to Erda’s pending incorporation, 3) annexed A-20 property within parcel without land-owners’ consent, and 4) resulted in an unconstitutional application of statutes, irreparably harming Petitioners. Grantsville filed a motion to dismiss the Erda CA’s lawsuit and a court hearing was held in late February. Grantsville also asked the Court to delay consideration of the summary judgement requested by Erda CA counsel. The Court indicated that it will provide instructions for moving forward with summary judgement proceedings when it issues a decision on Grantsville’s motion to dismiss. A decision could be rendered by the Court within 1 to 3 months.

On April 6, 2021, the court issued its ruling denying Grantsville’s motion to dismiss. It also denied Erda CA counsel’s motion for summary judgement since Grantsville argued that it did not have a chance to gather discovery to prepare an opposition to the motion. The court made it clear that Erda CA counsel may re-file the motion. On April 19, Grantsville filed its answer to the complaint, and on April 26, our counsel served initial disclosure. To date, Grantsville has not attempted to obtain discovery and further, they refused to file the record until discovery is completed. The case has been dormant since the judge issued the order on April 6. Grantsville’s deadline to serve initial disclosures is June 1.

Update as of November 19, 2021: The Discovery process closes on November 27, 2021. On completion of Discovery, Erda CA Counsel will file a Motion for Summary Judgement.

Sunset Acres Development (as of November 19, 2021)

Background: Sunset Acres was one of the Erda Brothers 3 referendums completed in the fall of 2018. In late December, just prior to seating two new commissioners, the Tooele County Commission held an unplanned commission meeting on December 29, 2018 where the developer requested a recission of the resolution allowing withdrawal of the 3 parcels so they would not be subject to the referendum. The developer indicated that he would wait 1 year before re-submitting the parcels for development. During the Planning and Zoning public meeting on September 4, 2019, a resubmission of Sunset Acres was approved. The development includes 109 residential lots and 3 farm lots. The residential lots include four approximately 1.25 to 1.5 acre lots, 29 approximately one acre, and 76 approximately a half-acre. The average is approximately 0.66 acres. The proposed development is surrounded by developed properties zoned as RR-5 (rural residential, 5 acres).

In mid-June, 2020, an Appeal was presented to the County Commission by Erda residents asking them to deny the Sunset Acres development. The development was ultimately approved by the County Commission and the Appeal was denied. In early July, 2020, Erda CA counsel filed a Petition for Judicial Review of a Land-Use Decision and Declaratory Relief. The Petition points out that the County violated its own ordinances relating to restrictions in the developer’s rezone applications, and treatment of its PUD-CUP ordinance as bypassing Chapter 3 requirements. These violations deprive the petitioners the right to seek a referendum for a legislative act to challenge zoning amendment decisions.
The developer submitted a Summary Judgement and Erda CA responded with a Cross-Motion for Summary Judgement and Response to Ironwood Real Estate’s (developer) Motion for Summary Judgement. A hearing was held before the Court in February of 2021. The Judge could take 2 to 5 months to render a decision.
On April 28, 2021, the court issued its ruling denying Tooele County’s motion substantively on certain issues, and otherwise denied both sides’ motions for summary judgement on the ultimate issue on technical grounds. The court provided direction on matters it expects to be corrected when new motions for summary judgement are filed. In May, the developer withdrew his Planned Unit Development (PUD) application from Tooele County, and is now requesting stipulation to dismiss the lawsuit on the basis it is moot (no pending PUD exists therefore there is no legal challenge to the PUD application process).

Update as of November 19, 2021: On September 1, 2021, Erda CA Counsel filed a Memorandum in Opposition to Respondent’ Motion to Dismiss. The Petitioners assert that the Court should deny Respondents’ motion to dismiss in its entirely. Respondents’ motion centers on the argument that this Court has been divested of subject matter jurisdiction because Ironwood withdrew its PUD application after the Court denied Ironwood’s motion for summary judgement. Tooele County may not render Petitioners’ action moot at this late stage in the proceedings, because it may believe it will lose at trial, by taking actions that unlawfully interfere with this Court’ jurisdiction, Respondents present no meritorious basis for dismissal of this action.

Petition assert that Ironwood’s withdrawal of its PUD application does not render moot the relief sought in Petitioners’ motion, which is for this Court to find Tooele County violated the law in its interpretation of a repealed PUD ordinance and continues to do so. For these reasons, Petitioners respectfully request the Court to deny Respondents’ Motion to Dismiss. The Judge has heard oral arguments and the decision is pending at this time.

Suburban Land Reserve (SLR) Residential Development (Completed)

Background: In April 2019, construction of a temple in the Tooele Valley was announced and in September the site location was identified as a parcel in Erda. In April of 2020, SLR presented to the public the plans for the Tooele Valley Temple, which included a high-
density residential community (higher density than what is permitted in the RR-1 zone). Tooele County approved the SLR’s rezone application on June 2, 2020 for the high-density residential community.

As a result of this action, an application for a referendum was filed on June 9, 2020 and signature gathering began. After the petitioners submitted a number of signatures that was well over the required amount, the County rejected a certain number of the signatures as invalid. Therefore, the County rejected the referendum for insufficient signatures on August 26, 2020. Legal action was filed challenging the County’s decision and sought judicial review of the 660 rejected signatures, and declaratory relief that the signature verification process utilized by the Tooele County Clerk violated petitioners’ due process rights.

In light of the Petition, the relatively small number of rejected signatures and narrow margins apparent in the signature count, the County determined to re-evaluate and recount certain challenged signatures identified in the Petition. Based on the re-evaluation and recount, the County determined that Petitioners had submitted sufficient valid signatures so it qualified the referendum to be placed on the November ballot. The County notified the land owner of this decision, and invited them to intervene in this action if it desired to challenge the County’s re-evaluation and recount, but the land owner expressly declined to intervene and indicated that it would not challenge the County’s decision. SLR ultimately withdrew their land use actions and a vote was not necessary.

Current Status: Litigation complete.

Skywalk II Development (as of November 19, 2021)

Background: Skywalk filed a rezone application on April 17, 2020. On September 15, 2020, Tooele County passed Ordinance 2020-25, to effectuate the rezoning of 246 acres from A-20 to P-C zoning with the highest-density mixture of residential and commercial permitted in the zoning code. A referendum application was filed and granted by the County so signature gathering began. However, despite the county requiring 9.5% signatures from registered voters on the first Skywalk referendum, and most recently requiring 9.5% on a referendum, the county now required 16%. Even though the petitioners formally objected, the County indicated that their position would not change.

In March, 2020, Governor Herbert issued his first sweeping restrictions on regular activities due to COVID. He also recognized that the restrictions prevented Utah citizens full exercise of the initiative process and issued an Executive Order suspending in-person gathering requirements, and provided that “a referendum sponsor may distribute and gather referendum packets and physically signed signature sheets electronically, including by fax or e-mail”. The order expired on August 20, 2020. Even though signature gathering was extremely difficult during October and November 2020 due to COVID-19, the State indicated to the signature gatherers, that “electronic” mechanisms were no longer allowed for signature gathering. At the close of the signature gathering deadline, petitioners had turned in 3,376 valid signatures, just 763 signatures short of obtaining 16%.

A Complaint and Petition for Extraordinary Writ and Judgement was filed with the Court by Erda CA counsel on December 7, 2020. The complaint specifically cited that Tooele County’s rejection of the referendum for insufficient signatures violated the Petitioners due process rights. Additionally, Governor Herbert’s refusal to issue a COVID executive order for electronic signatures after he issued his November 9, 2020 State of Emergency and Executive Order implementing COVID-19 restrictions and a specific plea to people to avoid contact until November 23, 2020 (the exact deadline to gather signatures for referendum) violated petitioners constitutional rights. In response, Tooele County filed a Motion to Dismiss claims re: 9.5% vs 16%, while the State of Utah answered the complaint. Court actions are ongoing.

The hearing on Tooele County’s motion to dismiss, based on the statutory signature requirement issue, was rescheduled on May 19, 2021. The court held the hearing. As Erda CA counsel prepared for the hearing, she discovered that the statute for signature requirements had recently been amended to now explicitly include spot zoning for the higher signature requirement. Our counsel made the court aware of this change resulting in the judge requesting a supplemental briefing on the new amendment. Tooele County’s brief was due on June 2, and our response was due on June 16. The judge did indicate that an additional hearing on this motion will not be necessary.

A decision on the state’s refusal to provide relief from COVID restrictions, ultimately preventing us from obtaining the higher number of signatures, is still pending.

Update as of November 19, 2021: The Judge has denied Tooele County’s Motion to Dismiss and Tooele County has filed a Petition to Appeal. Erda CA response to the Petition is due to the Court on November 22, 2021.

Six Mile Ranch Complaint (complete as of November 19, 2021)

Background: The members of the Erda CA board, an individual Erda citizen and the State of Utah were served with a Summons from Six Mile Ranch on December 4, 2020. The Erda CA attorney filed a Motion to Dismiss on December 28, 2020 on technical grounds. The Motion response indicated that it did not address the merits (per the rules), and challenges the lawsuit on grounds of standing and laches.

On January 12, 2021, Six Mile Ranch filed an amended complaint, dropping Erda CA representatives from the Complaint. Erda CA then filed a Motion to Intervene and Dismiss the amended complaint on January 20, 2021. Since the State of Utah was not dropped, they filed a Memorandum in Support of Lieutenant Governor’s Motion to Dismiss on or about February 26, 2021. The conclusion states that the Plaintiff’s amended Complaint should be dismissed as a matter of law. “The Plaintiffs have cited no legal authority for overturning a certified and final election. The conclusory allegations that the election was illegal are simply wrong. Under Utah’s incorporation statute, the boundaries of the proposed Erda Incorporation include the Plaintiffs’ ranch properties with or without the Plaintiffs’ consent and with or without their signatures. Plaintiffs have not demonstrated any harm as a result of the incorporation election, and certainly not actual “irreparable harm”. Allowing the public the results of their election serves the public interest. Accordingly, the First Amended Complaint fails to state a claim upon which relief may be granted”. The entire Lieutenant Governor’s Motion to Dismiss can be found on the Erda CA webpage.

The court held a hearing on the State’s motion to dismiss and Erda CA counsel’s motion to intervene on April 29, 2021. No further action will be taken on this case until the court makes a decision on these motions. The decision is expected within 2 -3 months.

Update: The defendants Motion to Dismiss was granted by the 3rd District Court on July 7, 2021. For purposes of surviving a Motion to Dismiss, Plaintiffs alleged facts supporting irreparable harm. However, Plaintiffs failed to allege any other facts supporting each of the other required elements. And, even if each of the elements required for a permanent and preliminary injunction were specifically alleged in the Amended Complaint, which they are not, based on the factual allegations presented, court enforcement is not feasible and there is no substantial likelihood that Plaintiffs will succeed on the merits. The Plaintiffs have failed to allege a statutory / legal basis under Utah Code Annotated Section 20A-4-402 upon which the Court could invalidate the successful vote by the majority of registered voters to incorporate Erda. As a result, there is no legal basis for Plaintiffs to challenge and invalidate the outcome of the 2020 vote.

Conclusion and ruling as of November 19, 2021: For the foregoing reasons, Defendant’s Motion to Dismiss is hereby GRANTED. Plaintiffs’ Amended Complaint is dismissed. As such, the Initiative Sponsor’s Motion to Intervene is rendered moot and is hereby DENIED. This Ruling and Order stands as the final order of the Court as to the matters addressed. No further order is required.

Based on the above ruling, the matter was appealed to the Utah Supreme Court. The Courts decision is as follows:

“This matter is before the Court upon the stipulated joint motion to voluntarily dismiss the appeal, filed in the Utah Supreme Court on November 10, 2021, in the above-entitled matter.

Pursuant to Rule 37(b) of the Utah Rules of Appellate Procedure and for good cause shown, the appeal filed in the above-entitled matter is dismissed. Each party shall pay its own costs and fees.

Tealby Village and Erda Estates Developments (update as of November 19, 2021)

Background:  On December 4, 2019, the Tooele County Planning Commission granted conceptual PUD-CUP (Planned Unit Development – Continual Use Permit) approvals to develop both Tealby Village and Erda Estates. On January 3, 2020, 125 Erda citizens, including Petitioner’s members, filed appeals to Tooele County Commission/Council, the designated administrative appeal authority for Tooele County, challenging approval of each of the PUD-CUPs on the basis that both decisions were illegal. On February 16, 2021, Tooele County held a County Council meeting to hear verbal statements from the appellant’s representatives and the developers. The County Council denied both of the appeals by a 3 to 1 vote. One member of the council abstained himself from the proceedings.

The attorney representing Erda CA filed a Petition for Judicial Review of Land-Use Decisions and Declaratory Relief with the Court on or about February 18, 2021 against the Tooele County Council. The suit is seeking judicial review and declaratory relief by reversing Tooele County’s administrative land use appeal decisions to uphold PUD-CUP approvals for the proposed developments in Erda, and declaring that Tooele County’s conduct is in violation of Utah law and Tooele County land-use ordinances.
Of note, these two parcels were part of the Erda Brothers Three referendum Petition submitted by residents to the Tooele County Recorder on December 7, 2018. They included over 3,280 signatures to have the rezone of the 2 parcels on the 2020 ballot. The County Clerk was in the process of verifying the signatures when during a special meeting of the Tooele County Commission held on December 27, 2018, at 1:00 p.m., the developer requested rescission of the resolution granting the rezoning of the 2 parcels. The Tooele County Commission granted this request.

The court held a hearing on the State’s motion to dismiss and Erda CA counsel’s motion to intervene on April 29, 2021. No further action will be taken on this case until the court makes a decision on these motions. The decision is expected within 2 -3 months.

Erda CA counsel filed this suit on March 17, and amended it on April 8, 2021 to dismiss individually named defendants. Tooele County’s response was due on May 1, 2021. Tooele County filed a motion to dismiss, arguing that only the individuals who appealed can be a plaintiff, and not the Erda CA. Briefing is completed on this motion. The judge was expected to schedule a hearing date in the next few weeks.

Current Status as of November 19, 2021: On 26 September, 2021, the Court denied Tooele County’s Motion to Dismiss. Tooele County petitioned the Supreme Court of Utah to permit an appeal the matter. The permission was granted on November 3, 2021 and a ruling is pending.

Changes and updates to any litigation actions will be documented as they become available. 

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