Plan facing a legal battle
Group wants public to be able to vote on land-use document.
By Kevin Huelsmann, Jackson Hole, Wyo.
July 18, 2012
Members of Save Historic Jackson Hole filed a lawsuit Tuesday that claims town of Jackson officials illegally adopted a new land-use plan and deprived residents of their right to challenge the document.
The lawsuit, filed in federal district court, seeks to overturn the new Jackson/Teton County Comprehensive Plan and make elected officials adopt the document via ordinance. That would allow residents to force the planning document to a public vote.
Save Historic Jackson Hole members claim that by approving the land-use plan as a resolution, town officials sidestepped provisions in state law letting residents challenge council decisions.
Town officials have said state law doesn’t allow residents to challenge resolutions. They’ve said residents have the ability to challenge specific policies from the comprehensive plan when they show up in specific land-use regulations, which have to be implemented through ordinances.
Save Historic Jackson Hole members contend their challenge isn’t about the content of the planning document. They said they simply want residents to have the chance to vote on it.
“The illegal act of the Town Council in adopting the 2012 plan by resolution deprived all of the individual plaintiffs and the people of the town of Jackson of the ability to exercise their constitutional right to demand a referendum and to exercise their constitutionally guaranteed authority over the adoption of the 2012 plan,” attorneys said in the complaint.
Save Historic Jackson Hole is one of five plaintiffs. Jim Genzer, who is running for Town Council, Laurie Genzer; Save Historic Jackson Hole Executive Director Armond Acri and Save Historic Jackson Hole board member Ben Clark also are part of the legal challenge.
They are being represented by Joe Moore, Elizabeth Moore and Peter Moyer. Acri said the Moores were retained by Save Historic Jackson Hole. Moyer is working on the case pro bono.
When reached Tuesday afternoon, Town Attorney Audrey Cohen-Davis said she had not been formally served with the lawsuit — though she had been provided a copy by Save Historic Jackson Hole members — and had not had time to fully review the complaint.
She said the town’s answer would be filed in coming weeks.
The lawsuit does not bring many new arguments to the table. The battle over the approval of the comprehensive plan has been brewing for months, long before elected officials adopted the planning document in May.
The suit does, however, advance the feud to a new venue.
The crux of the case is whether state law requires town officials to approve a comprehensive plan by ordinance or whether they are allowed to adopt the document by resolution.
This seemingly mundane detail determines whether Save Historic Jackson Hole members could launch a referendum petition to force the planning document to a public vote. State law allows residents to challenge ordinances by referendum. By approving the plan through resolution, town officials effectively removed that option.
Members of Save Historic Jackson Hole already have helped overturn a town ordinance. Clark was an opponent of a redevelopment district in downtown Jackson that would have allowed taller buildings and more lodging developments.
Group members also sued the town over councilors’ approval of redevelopment plans for the Painted Buffalo Inn. The developer eventually withdrew the project.
Attorneys representing Save Historic Jackson Hole members argue that state law requires elected officials to approve important, permanent regulations through ordinances.
They cite a 2000 state Supreme Court case in which justices said “a resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government, to continue in force until the ordinance is repealed.”
The attorneys said the ability of town officials to impose zoning regulations is vested in the comprehensive plan. It is an important document “that will affect all residents of the town for years to come,” they said.
“Once the plan is in place, it binds the town to zone according to the parameters set forth in the plan,” Save Historic Jackson Hole’s attorneys said in the lawsuit.
The attorneys also cite a quote from Mayor Mark Barron that appeared in the Jackson Hole Daily as proof that elected officials intentionally avoided approving the document through an ordinance to block attempts to launch a referendum.
Barron told a News&Guide reporter that he made a conscious decision to approve the plan via resolution to head off a potential referendum. At the time, he said there had been too much time and effort poured into the master planning process to allow someone to collect a couple hundred signatures and overturn it.
Town officials consistently have argued that they’re not trying to prevent anyone from challenging the policies in the comprehensive plan. They said residents could challenge new regulations when they are put forth as ordinances. Town officials said residents also could run for office if they were unhappy with the decisions made in the comprehensive plan update.
Jim Genzer is doing both: opposing the plan and running for a seat on the council.
In previous reports, Cohen-Davis cited several Wyoming Supreme Court cases she says clearly define a comprehensive plan as separate from zoning regulations.
In a 2002 ruling involving the town of Jackson and Snake River Brewing Co., state Supreme Court justices said “the comprehensive plan is a policy statement; the zoning ordinances are what have the force and effect of law.”
She also pointed to a 1996 ruling from the Wyoming Supreme Court in which justices said, “A comprehensive plan should not be confused with, or used as a substitute for, comprehensive zoning, nor may a comprehensive plan be equated with comprehensive zoning in legal significance.”
Several volunteers and Save Historic Jackson Hole members gathered more than 600 signatures in support of their efforts to force a referendum on the comprehensive plan.
They delivered the petition to town officials in early June. They followed all of the provisions outlined in state law and far exceeded the required number of signatures needed to challenge an ordinance via referendum, despite the fact that they were trying to challenge a resolution.
Town officials accepted the petition as public comment, saying they couldn’t process it as a referendum petition because there wasn’t anything to challenge.
Save Historic Jackson Hole staffers filed the lawsuit in response to that rejection.
Referendums are not new to Jackson voters. In two occasions in the past decade, they have overturned town councilors’ actions.
In 2003, voters rejected ordinances that would have allowed bigger buildings and more lodging as part of a proposal called the downtown redevelopment district. The previous year, 67 percent of voters rejected the council’s proposed annexation of a large piece of South Park.
The existing comprehensive plan also attracted its own referendum attempt.
In 1994, a campaign was launched to put to a public vote new town zoning regulations approved as part of a comprehensive plan. The effort fell apart when town officials determined that a large portion of the 781-name petition did not meet state standards for referendum petitions. Town officials threw out more than 400 names because some had listed mailing addresses instead of residential addresses. Others were rejected because they were not town residents.