THE FOLLOWING ARTICLES ARE A PARTIAL
HISTORY OF MRS. TOBIAS & MRS. FELD'S EFFORTS TO PRESERVE OPEN SPACE
AND THEIR FIGHT AGAINST ABUSIVE LAWSUITS.
A SPECIAL THANKS TO...
THE DESERET NEWS
THE SALT LAKE TRIBUNE
SALT LAKE CITY WEEKLY
SOUTH VALLEY JOURNAL
Project In South Jordan Clears First Step
Jon Ure, The Salt Lake Tribune
SOUTH JORDAN—It’s a smaller project, but developer Gerald
Anderson’s plans for a 14-building business park on the Jordan River
have cleared the city’s initial hurdle.
Even some neighbors who have fought the project feel a bit better
after the City Council amended the land-use plan to allow Anderson to
apply for commercial zoning he needs to sell his project.
City Administrator Dave Millheim said that amending the master plan
is not the same as approving the project.
“If he meets these concerns and conditions, then it will be
favorably received,” Millheim said.
“A lot of residents say it was an approval.
It’s not, but it sets the course.”
Included in the development are a hotel, restaurant, retail area,
amphitheater and fitness center, a 25-acre park and, possibly, 25 more
acres for an additional park of open space.
“I feel more comfortable with my city government,” said Janalee
Tobias. She and 300 others
had signed a petition asking city officials to deny Anderson’s project,
which was initially about 160 acres.
It has been pared down to about 110.
She was pleased that open space remained a high priority.
Anderson was not quite so happy.
“I don’t know if we’re in complete agreement,” Anderson
said. But ‘we have to comply with the resolution that was set
forth by the City Council.”
If Anderson fails to comply with any of the conditions, the
property will revert to its open-space designation.
Those conditions are:
submit within 90 days a complete application requesting commercial
property must be developed as Class A office space and an office park,
requiring higher quality interiors.
Some of the property that is located in the 100-year flood
plain and meander corridor of the Jordan River is exempt from the
Class A designation and remains recreation/open space or preservation
must be no taller than six stories, and a written development
agreement must also be consummated with the city within six months.
least 30 percent of the property will be open space, some of which
must be developed as trails. Property
within the flood plain is exempt from this requirement.
must conduct a traffic study and build a north-south road through the
development. He must also
help widen 10600 South past the development.
site plan must be submitted within six months and will include a
master plan for the development of the entire property. It shall note open spaces and specify street and trail
public improvements will be built by the developer.
and others who have fought the development have not given up their
efforts to keep the area in its natural, wild state.
“Our plan now is we want to talk to the developer to
see if he will sell us options on some of the land,” Tobias said.
“We’ll take out a loan, do whatever we have to do to get that
property and turn it into something beautiful.”
Jordan Gives Developer OK On River Project
Jon Ure, The Salt Lake Tribune
Say Zoning Approval Was Sneaked Through by Council
SOUTH JORDAN—The developer of a controversial 14-building
business park on the west banks of the Jordan River has been given the
zoning he needs from the City Council.
But the council set conditions which, if they are not met in the
next eight months, could void Gerald Anderson’s conditional use permit
for the 100-plus-acre project on the river south of 10600 South.
Critics of Anderson’s proposal say the zoning approval was
sneaked past residents when the City Council on April 28 conducted a
public hearing and voted to approve the zoning.
That was a Monday night. The
City Council, with rare exception, conducts public hearings at its regular
meetings on Tuesday nights. The
previous Thursday, April 24, the Planning Commission approved Anderson’s
zoning and sent it on for City Council approval, said City Administrator
Since April 28 fell on one of only two fifth Tuesdays in a month
this year, some council members desired to vote on the zoning as soon as
possible, so they changed the hearing to Monday, Millheim said.
“They say it was legal,” said Judy Feld, a leader of the
opponents of the project. “We
just think it was pretty sneaky. We
know the reason they didn’t do it on a Tuesday.
There were some land options running out.”
Also, Feld pointed out, South Jordan surveyed its residents a month
ago for their views on open space and parks, and on whether they are
willing to bond finance or raise taxes for them.
“But they slid the rezoning through before ever compiling the
results of those surveys,” she said.
“We still don’t know the results.”
The approval was disappointing to Jan Tobias, another opponent.
“I still want to try and preserve this area,” Tobias said
Monday. “What concerns me
is while other cities consider the Jordan River Bottoms to be fertile
ground for wildlife and other riparian environments, South Jordan
considers it to be a fertile ground for a tax base.”
Tobias and Feld said 10600 South is already a daily traffic
nightmare when motorists jam it to and from Interstate 15.
One of the conditions, however, requires Anderson to widen a
stretch of the road at his expense.
And to the city’s credit, Tobias added, the council held Anderson
to strict standards. He is
required to maintain 30 percent of the property as open space but he
cannot count the flood plain in that.
The flood plain is already required to remain open.
Another requirement imposed by the City Council included a maximum
of six stories for office buildings.
And Anderson must install public improvements, built a north-south
public street through the property and widen and provide other
improvements were 10600 South fronts the project.
Feld and Tobias have given up, for now at least, their plan to
raise funds to purchase the property and set it aside as permanent open
space. Anderson still holds
options on some of the property.
“But a nice thing about Anderson is he is considering gifting
some ground to benefit the children of the south end of the valley,”
Feld said. “We would just welcome anyone interested in river-bottom
property that wants to keep it an open space and rural project for the
Anderson did not return telephone messages left by The
by Louis James, UTAH BUSINESS
Nearby residents were
horrified because the land was zoned for parks and recreation; they
never imagined that they would find themselves bordered by a forest of
tall office buildings, or that their daily business would be slowed by the
20,000 additional cars that UDOT estimated the project would add to South
Not deterred by being told that the project was a done deal,
citizens formed a group called SOS (Save Our South [Jordan River Valley])
and have brought the project to a standstill—for the moment.
The fight, if not exactly high profile, has been ugly. SOS found hat the city did not require the customary traffic
and environmental impact studies of the project’s developer.
Even though a city poll found that the top concern among residents
was open space, the city seemed to be turning a blind eye to the Jordan
River Meander Corridor provisions that prohibit building within 200 feet
of the river.
These concerns aside, it seems unfair that land purchased from a
farmer for $35,000/acre, now re-zoned, can be sold for $135,000/acre.
And yet, should not the city leaders be praised for bringing new
economic growth to their community?
Everyone wants to see more jobs and healthy growth, but nobody
wants to see Salt Lake Valley paved over from end to end.
These values are different, but why must such an issue set city
leaders and citizens against each other?
A more telling way of asking the question is:
What is it about environmental issues that make them so
Perhaps it is because most people are beginning to see that
environmental policy affects everyone.
For example, Barbara Walters reported on the hapless victims of the
kangaroo rate and the Endangered Species Act in California.
Ordinary people in ordinary houses were informed that their land
had become a habitat for the endangered kangaroo rat, and that they could
not cut the brush around their houses.
Knowing of the periodic brush fires in California, people objected;
if they didn’t cut the brush, their homes would burn down.
The Wildlife Service knew the law and was not moved by such pleas.
When the fires came, those who had obeyed the law lost their homes.
Those who had disobeyed were able to save their homes.
The most likely reason for such high levels of contention might
well be that some deeply held beliefs are grounded in environmental
issues. People who hold traditional American values see the alleged
good that environmentalists seek as, at best, insufficient to warrant the
suspensions of individual rights—especially property rights.
At worst, they see it as a naked power grab of the unscrupulous
taking advantage of the credulous. For
their part, many environmentalists believe that the fate of the earth
really is hanging in the balance; that if society gets hung up on such
trivialities as property rights and civil liberties, every living thing on
our planet will die. Such contrasting world views are bound to collide with
The greatest irony of this situations may be that American business
(the success of which can reasonably be said to rely upon the American
traditions of free enterprise and property rights) has provided a large
part of the capital that environmentalists have used to promulgate a world
view that is hostile to business interests.
In a New York Times
article entitled “Business Feeds the Hand That Bites It” (May 8,
1994), Capitol Research Center president Terrence Scanlon highlighted some
rather interesting statistics: For
every dollar large corporations gave to pro-business non-profit advocacy
groups, they gave almost three and a half dollars to groups that backed
hostile policies. For more information on specifically environmental groups,
Capitol Research Center’s 1005 book, Environmentalism
at the Crossroads: Green
Activism in America, is a good place to start.
For businesses that care about the environment, there
are useful things to do besides giving money to such anti-business groups
as the Sierra Club. Taking
matters directly into their own hands—actually doing something for the
environment themselves—is always a possibility.
SOS raised hundreds of thousands of dollars (without a penny
expropriated from taxpayers!) to buy some of the South Jordan riverfront
property and make it into a nature park.
A large company like Huntsman Chemical could easily buy the whole
tract and create a “Huntsman Riverfront Nature Preserve.”
Another alternative would be to support groups that do good
environmental work, without trampling on the property rights or economic
interests of businesses or local land owners.
There are others, but one of the best examples of this is a group
called Defenders of Wildlife, which has been reintroducing wolves to the
Yellowstone area. If ever there was a situation where the inherent conflicts of
interest could boil over into a very ugly fight, it was the movement to
repopulate Yellowstone with wolves.
There are ranchers up there who have a living memory of the sound
of wolves howling in the night being a terrifying and costly thing, both
in terms of life-threatening situations and the loss of cattle. Given the likely resistance of such ranchers, the Defenders
of Wildlife could have tried to get laws and regulations passed that would
have forced the ranchers to cooperate.
Instead, they harnessed the power of the profit motive.
They took all the money they might have spent lobbying Congress and
relevant agency officials at the federal, state and local levels and put
it into a fund that would reimburse any rancher who lost livestock to
wolves. Then they added a
bounty of $5,000 to be paid to ranchers who could show that a wolf
successfully produced a litter of pups on their land.
Instead of creating animosity and new resentments, these incentives
created a situation in which many ranchers began to welcome wolves onto
For more examples of how the same values that produce a healthy
business environment can actually produce a better natural environment,
Terry Anderson, president of the Political Economy Research Center in
Bozeman, Montana, has two excellent books out, one called Enviro-Capitalists:
Doing Good While Doing Well and the other called Free
This is the lesson to be drawn from current affairs in
world views often lead to conflict in the political arena—but it need
not be so. Experiences such
as the détente in South Jordan, which persists as of this writing, show
us that conflict is not the best way to do business, nor will it save the
planet. Experiences such as
the wolf repopulation program in Yellowstone show us that finding creative
ways of aligning business and environmental concerns under the same
incentives can produce better results for both sides.
Now, if only the Southern Utah Wilderness Alliance could learn to
harness this strange new problem-solving force:
the profit motive.
Developer and South Jordan residents
lock horns over
proposed office complex
By Don Baker, Staff Writer
Sunday, Dec. 14, 1997
Nearby residents Judy Feld, left, and Janalee Tobias, are trying to save the South Jordan River bottoms from development.
Chuck Wing, Deseret News
MAP: Proposed RiverPark project
At first glance, it looks like a quiet parcel of farmland snuggled into the countryside west of the Jordan River and south of 10600 South.
But don't let the look of rural tranquility fool you - that ground is really a modern-day battlefield riddled with plenty of economic and emotional craters and littered with its share of legal land
mines. It's the site of a bitterly contested battle pitting a successful developer against a small group of loosely organized and highly agitated area residents who fear the proposed
River Park office complex will wreak havoc on a section of Jordan River bottoms one of them calls ``sacred ground.''
And a barrage of verbal shrapnel has been flying for months inside planning and City Council meetings as residents have fought a rear-guard action seeking to modify or block the project.
About the only thing the opponents in this dispute agree on is that the project has the potential of changing forever the character and appearance of South Jordan's primary gateway.
But this battle also may be a microcosm of a larger conflict that could have profound implications for the future of the area. RiverPark may set the precedent for similar non-retail commercial projects likely to be proposed for other southern Salt Lake County communities in the years ahead as business development pushes inexorably away from Salt Lake City along the I-15 and Jordan River corridors.
On one side of the dispute is frustrated developer Gerald Anderson, who has already invested thousands of hours and millions of dollars in putting together a 69-acre Class A office complex he believes will put South Jordan on Salt Lake Valley's business map.
Anderson, who also developed the massive Sterling Village apartment complex west of I-15 at about 11000 South, envisions a cluster of six or seven office buildings over the next eight years in an attractive setting with plenty of open space and a trail along the the river.
``A Class A office park gives prestige to a city and adds to its property values,'' he said. ``This project is at the doorstep of the community on the I-15 corridor . . . and it will bring both property and sales taxes as well as white-collar jobs to the city.
``This is one of the best places for economic development'' in South Jordan, Anderson added, ``and it makes the most sense for office development.''
On the other is a group of citizens calling themselves Save Our South Jordan River Valley or SOS.
They want to see the river bottoms area remain in open space, agricultural or low-density residential use that will preserve the atmosphere and vistas of residents who chose to make their homes near the Jordan River.
``We're not just a bunch of tree huggers out singing `Kumbaya' along the river bottoms,'' said Janalee Tobias, one of the SOS organizers. ``We like our open space, and we're willing to pay to preserve our quality of life.
``There are many other options for that area, and we want to see something more moderate than a bunch of office buildings,'' she added. ``And we're going to fight him (Anderson) every step of the way until he comes up with something we can accept.''
Caught in the no man's land between the two factions is South Jordan city, where elected officials and the city's administrator have found themselves taking plenty of flak from both sides.
``This can be a great project for the city . . . but if we do it wrong, we could be paying for it for years to come,'' said City Administrator David Millheim. ``We're trying to create a win-win situation, but it's very difficult because of the competing interests.''
The next major skirmish in the Battle at RiverPark will come Tuesday night when the council is expected to decide whether to give the developer additional time to submit his conceptual site plan.
Dec. 28 is looming as a crucial deadline because that's when the property, rezoned to O-S office use last February, is scheduled to revert to its original agricultural zoning unless the developer meets several conditions including submission of a master development agreement and a site plan.
Anderson has submitted a couple of versions of the development agreement, and Millheim said the city's staff is working on a version of its own.
``But because of the complexities involved, it won't get done by the end of the year,'' the city administrator said.
Anderson said he and his investors cannot move ahead with the site plan or seek approval of a conditional use permit because the city has not acted on the development agreement yet.
City officials disagree with the developer on that point, but they also haven't resolved issues involving the maximum size and shape of the base of each building.
Millheim also said the city is waiting for the developer to provide a traffic impacts analysis on 10600 South, which will have to handle the increased vehicle trips associated with the office park.
Council members could grant the developer an extension for meeting those conditions. But RiverPark opponents are hoping city officials will send Anderson back to ground zero to begin the rezoning process anew.
Another SOS organizer, Judy Feld, said that would give the council another opportunity to revise its view of how the river bottom property south of 10600 South should be used.
``We need to preserve open space - once it's gone, it's gone forever,'' said Feld, who said noted the office park would probably drive off the abundant wildlife that now inhabits the river bottoms. ``I want my children to be able to run through an open field.''
For Anderson, the process of developing an office park in a city that already has a reputation for being hostile toward commercial development has been a frustrating one.
``South Jordan city has put condition after condition on the project to satisfy the handful of residents who oppose it,'' he said. ``But the residents have adopted a position they want no development by their property.
``In fact, the SOS people have tried to generate as much public clamor as possible, thinking that's the basis for the city making its decisions,'' the developer said.
``We have a legal right to a reasonable use of the property we purchased,'' Anderson said. ``It's up to the City Council to decide what a reasonable use it, and we feel they made that decision when they master planned and rezoned the property for office space.''
Despite the opposition, he also said the project will move forward.
``We have no other choice now, because we own the property,'' Anderson said. ``We're not philanthropists. We're not going to donate the ground for a park.''
The project originally was conceived at about 110 acres, which could have accommodated up to 14 six-story office buildings with more than a million square feet of office space.
Anderson owns 85.77 acres already and has an option to buy 25 more acres south of his property from landowner Boyd Williams. He had hoped to trade the Williams ground for the 25-acre park site South Jordan owns immediately south of his 85-plus acres, but the city has turned that down.
Council members rezoned Anderson's property for office use, which requires that 30 percent of the ground be maintained as open space, but also tabled Williams' request for a similar zoning.
``They never told me why they tabled it,'' Williams said, ``and I never did find out.''
While Anderson waits for the city to move on the Williams rezoning, he's going ahead with a scaled-back plan for his land.
Because he cannot build in the Jordan River's flood plain or meander corridor - the area identified as the possible course the river could take once it is rechanneled to its historic route - that leaves 69.22 developable acres.
Anderson said that would reduce the project size to a maximum of 7.5 six-story office buildings once the requirement for 30 percent open space is met.
``But that's the maximum,'' he said. ``We're looking at similar office parks to determine not what the maximum build-out should be, but how many square feet are likely to be built. And we're seeing that three-story buildings are very common.''
But that's still more than SOS proponents want to see along the river bottoms.
Tobias and Feld said there is considerable community support for maintaining the area as open space with a possible nature center or park on the Williams property.
They say they have commitments for cash and in-kind donations to help acquire the property, possibly with assistance from the Utah Open Lands conservation organization or the nationally based Trust for Public Lands.
Wendy Fisher of Utah Open Lands has sent a letter of interest indicating the organization might be interested in acquiring his property if certain issues are resolved with the zoning, appraisal cost and a road master planned through the area.
But Jim Davis of the Trust for Public Lands indicated no serious offer would be made unless Anderson's option expires next summer.
While Williams is aware of the interest, he said he has ``not received a substantial offer from anyone except Gerald Anderson'' on the property he has owned and nurtured for nearly three decades.
``It's easy to put your name on a list and be for open lands,'' Williams said, ``but coming up with the money is another thing.
``I would like to see a little more cooperation'' among all the parties to the river bottoms dispute, he added. ``The wise thing would be for everyone to give a little.''
But neither the developer nor the SOS group feel the other side has been willing to compromise, and the dispute has developed an emotional dimension, with some SOS members accusing the city of being in league with developers.
They are particularly concerned that Anderson's partner is Michael Hutchings, a 3rd District Judge, and that may be influencing the city's deliberations.
Those allegations irritate Millheim, who said the city has been very cautious in trying to navigate controversial waters where threats of legal action have been all too frequent.
``Hard feelings have surfaced from time to time'' with all parties, he conceded. ``We've had some very difficult negotiations.
``But this council is committed to doing the best thing for the community,'' the city administrator added.
One problem is that land south of 10600 South was already planned for commercial use, and Millheim said there are many in the city who feel a Class A office complex would be more attractive and beneficial to the city than retail strip malls.
``Offices are usually seen as a healthy neighbor,'' he said. ``They're in vogue, and the market seems to be pushing office space in the south end of the valley.''
A review of the correspondence between the city and the developer does not support the suspicions of SOS supporters.
A number of tersely worded letters and memos between Anderson and the city reflect both the complexity of the negotiations and the periodically strained relations between developer and city staff.
``We're trying to keep everyone happy,'' said Millheim. ``There's no way that's going to happen, but we have to try.''
City Councilman Richard Warne gave some indication of the legal ramifications of the project during a recent council meeting.
``We need to be very careful,'' he told the council. ``These men are very litigious.''
Chuck Wing, Deseret News
Some South Jordan residents have banded together to oppose plans for the RiverPark office complex. They want the area to remain open space, agricultural or low-density residential use to preserve vistas.
Gary M. McKellar, Deseret News
Developer Gerald Anderson has already invested thousands of hours and millions of dollars in putting together a 69-acre Class A office complex he believes will put South Jordan on Salt Lake Valley's business map. He says a cluster of office buildings will lend "prestige to a city and adds to its property values."
S. Jordan Grants Controversial
BY JON URE
December 17, 1997
The Salt Lake Tribune
Ryan Galbraith/The Salt Lake Tribune
Jan Tobias and Judy Feld lead the fight against a proposed
office park on the
banks of the Jordan River south of 10600 South.
South Jordan Kills Plans for Petition
THE SALT LAKE TRIBUNE
Date: January 28, 1998
SOUTH JORDAN -- City officials will not allow residents to circulate a petition that critics hoped would sink developers' plans to build a business park along the Jordan River. City Manager Dave Millheim said late Tuesday that a request filed by SOS (Save Open Space) to collect signatures for a petition to force a referendum is not legal. The referendum would ask voters to overturn a City Council decision favoring the developers.
Millheim would not discuss the contents of a confidential legal opinion written by City Attorney Mike Mazuran, but after a review in a closed session with the City Council, Millheim declared the petition plan dead.
``The city does not believe a legal referendum or an intent to file for a referendum was legally filed,'' he said. ``With that said, we want to continue to work with the parties.''
Millheim was referring to decisions made in a special Monday night council meeting in which councilmember teams were created to negotiate with the preservationist groups and the developers of the proposed 70-acre business park planned on the west bank of the Jordan River south of 10600 South.
But late Tuesday, SOS spokeswoman Jan Tobias vowed a continued fight for the referendum. Her group wants voters to overturn a City Council vote that extended a city deadline requiring developers of the controversial Riverpark to file specific project plans.
If that extension was repealed, the developers would have to start over.
``We're going to go right to the lieutenant governor's office to get it resolved,'' Tobias said after Millheim's decision. ``Everything we have done is legal and right by the rule book. They wouldn't be fighting this so hard if they didn't think that it would pass. They know, from the citizens' survey results, that people do not want this project.''
Last year, when the City Council approved zoning for the proj-ect, developers Gerald Anderson and Michael Hutchings, a 3rd District Court judge, were told to submit plans by Dec. 28 or the zoning would revert to open space. But, on Dec. 16, the council extended the deadline to April 28.
Anderson and Hutchings want to erect 14 office buildings up to six stories high on the river bank. Their plans include a hotel, restaurants and a fitness center. SOS members want to preserve the site as open space and are raising funds to buy the land.
In a letter to Millheim, Anderson urged denial of the referendum effort, claiming SOS failed to begin its petition drive within the required 35 days of the council's extension. Tobias countered that the clock began when the group filed for permission to seek signatures.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by
Top Election Official Backs South Jordan Petition
THE SALT LAKE TRIBUNE
Date: February 10, 1998
A top election official says South Jordan should let a petition move forward that could give voters the chance to repeal a pro-development decision by the City Council. However, Kelleen Potter, director of elections for Lt. Gov. Olene Walker, says her office cannot force city officials to allow the petition drive. ``It's really a local issue so we wouldn't get involved,'' other than to provide an opinion, Potter says. ``We've tried to fulfill the intent of the law. . . . In working with the Attorney General's Office, that's the way we've interpreted it.'' Potter's opinion comes at the request of residents who formed SOS (Save Open Space). They want voters to decide whether the City Council was correct in giving developers Gerald Anderson and Michael Hutchings an extension of a city-imposed deadline. The city told the developers to submit -- by Dec. 28 -- plans satisfying conditions of the rezoning of their project on 70 acres on the west bank of the Jordan River at about 10600 South. According to the agreement, the project would lose its zoning if developers missed the deadline. Then, on Dec. 16, the City Council extended the deadline to April 28. Angry SOS members want to preserve the river valley and are fighting the development, which would include 14 office buildings up to six stories high. They applied Jan. 20 for permission to circulate their referendum petitions, as required by Utah statutes. On Jan. 28, South Jordan City Administrator Dave Millheim -- backed by an opinion from City Attorney Mike Mazuran -- denied the referendum request, saying it was not legally filed. Says Mazuran: ``We stand by our legal opinion given to the city.'' SOS organizers Jan Tobias and Brent Foutz say they will take their fight to the Utah Supreme Court. ``All we citizens have seen is that very first coloring-crayon rendering of the site,'' Tobias says. ``We don't even have an idea of what the buildings are going to look like. And it's in the Constitution that citizens have a right to petition and redress their grievances.'' In her letter, Potter writes that initiative and referendum law is conflicting and unclear in some areas. Still, she says, residents seeking the petition have the support of her office. ``In attempting to resolve the questions and conflicts that have arisen in the initiative and referendum law, we have intentionally erred in favor of the citizen-initiative process,'' Potter writes. ``We believe that the interpretations we have made . . . are in accordance with the spirit of the law.'' Potter and Mazuran disagree on several key points. -- Mazuran says the referendum sponsors did not file their petition within 35 days after the extension was granted. Potter says the word ``petition'' is confused in the law and that the 35 days applies to the sponsors' deadline to apply for permission to circulate the petition. -- Mazuran writes that one of the sponsors, Kenneth E. Day, was not registered to vote in South Jordan, as required by law. Potter, however, cites state and federal law that says voters who move within the same county and congressional district are considered legally registered voters. Day was registered to vote in Midvale. -- Mazuran says Utah law prohibits a recall of a city ordinance that applies to ``individual property zoning decisions.'' Potter did not address that issue but Tobias notes that the referendum was not aimed at removing the developers' zoning, but at the extra time the city granted them.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
S. Jordan denies SOS referendum plea
Group decries zoning to allow office building
By Don Baker, staff writer
February 11, 1998
A group of residents calling itself SOS (Save Open Space) won't have to learn Morse code to decipher the terse two-letter message City Council members issued Tuesday night in response to the
group's request for a voter referendum.
The letters were``N'' and ``O.''But that's one ``no'' the South Jordan-based
group says it isn't willing to take for an answer.
SOS is bitterly contesting a plan by developer Gerald Anderson to build the equivalent of six or seven buildings up to six stories high on 85 acres south of 10600 South and west of the Jordan River.
Two weeks ago, the council declined to take action on an SOS request for a referendum petition challenging a Dec. 16 council decision that granted a 120-day zoning extension for the controversial RiverPark office complex.
The city sent the group a letter of denial Feb. 5, and SOS organizers said they would appeal the decision if the council did not reverse its decision Tuesday night.
Instead, the council made its rejection official and unanimously approved a motion by newly elect-ed Councilman Gary Chandler to stand by a legal opinion by City Attorney Mike Mazuran advising the city to deny the request.
That opinion advised the city that the referendum petition was legally flawed and did not comply with state election law.
Chandler said the ``primary reason'' for denial is that ``Utah law prohibits the recall of ordinances that apply to individual property zoning decisions.''
Mazuran's opinion also said a referendum petition was not filed within the 35-day time limit prescribed by law. And he indicated one of the people who signed the petition application was not registered to vote in South Jordan during the last municipal election.
But SOS spokeswoman Janalee Tobias said Tuesday her group doesn't agree with those findings.
``We plan to take this to the Supreme Court,'' which has the statutory responsibility for hearing this kind of election appeal, she said.
However, Tobias said Wednesday she has been advised by an attorney not to make any further comment on the issue until she receives official communication from the city that the referendum request has been rejected.
SOS has obtained an ``opinion'' letter from the lieutenant governor's office that Tobias says shows the city was wrong in rejecting the referendum request.
The letter, written by State Director of Elections Kelleen Potter, did not specifically endorse the
group's position but explained state law is unclear on whether an application for a petition or the actual petition has to be filed within 35 days.
She also said state and federal law considers any voter who moves within the same county and same congressional district to be legally registered and entitled to vote or sponsor a petition.
However, Potter's letter was silent on the most important single legal issue: Utah Code 20A-7-101 provides the ``local laws'' that can be challenged through a referendum ``do not include individual property zoning decisions.''
Tobias said the group is opposing the December extension of RiverPark's deadline to April 28, and not the zoning
But city officials say Tobias' argument doesn't hold water because it's the rezoning of the RiverPark site to office service use that the council extended on Dec. 16.
SOS' appeal to the state's high court may be an exercise in futility, however, because of the time elements outlined in state law.
The statute says completed referendum petitions must be turned in 120 days before a general, municipal or special election. It also specifies certain days when special elections can be held.
Even if petitions could be finished and submitted with 1,500 signatures within the next 12 days (Feb. 23), the next special election could not be held until June 28, which is two full months after the rezoning extension expires.
Tobias concedes those problems but said her group wants to call for a referendum anyway.
The SOS organizer said the referendum will show ``that it's not just a handful of people'' who oppose the RiverPark proposal, but a large percentage of South Jordan
S. Jordan Residents Take Case to Utah's Top Court
Salt Lake Tribune
Date: February 21, 1998
A South Jordan residents' group took its push to circulate a petition to the Utah Supreme Court on Friday. Save Open Space (SOS) filed documents asking the court to allow voters the opportunity to overturn a pro-developer decision by the City Council. City officials have not allowed the petition drive to move forward.
The feud began in mid-December when the council gave developers of the River Park office project four more months to comply with city-imposed conditions. SOS balked. The group wanted the original Dec. 28 deadline to stand. And if the developers failed to comply by then, the property would revert to its original zoning of single-family homes and open space.
Developers Gerald Anderson and Mike Hutchings want to construct 14 office buildings up to six stories high on 70 acres along the west bank of the Jordan River near 10600 South.
City Administrator Dave Millheim, acting on a legal opinion from City Attorney Mike Mazuran, denied SOS' application to circulate the petition. Mazuran said since the ordinance involved zoning of private property, it did not qualify under Utah's referendum statutes.
SOS officers say the council decision had nothing to do with zoning, only a deadline extension. ``Such a development would dramatically change the community from a rural farming community to an urban city,'' states SOS' petition to the Utah Supreme Court.
Under Utah law, anyone desiring a referendum to repeal a government decision must get permission from that official entity -- in this case, South Jordan -- to circulate a petition. Once that permission is given, residents can obtain the necessary signatures demanding an election. If the city denies the request, residents can ask the Utah Supreme Court to intervene and allow the petition to go forward.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
of S. Jordan Project Take Fight to High Court
tells court that attorney gave wrong advice on referendum
News staff writer
SOUTH JORDAN—A coalition intent on blocking the construction of
a proposed office complex asked the Utah Supreme Court Friday to compel
South Jordan officials to provide the necessary petitions for a voter
Save Open Space (SOS) filed documents saying City Attorney Mike
Mazuran erred in advising the city that Utah law does not permit
referendums on zoning decisions like those involving the RiverPark
The council acted on that advice Feb. 10, voting 5-0 to reject
the group’s request to circulate a referendum petition.
SOS hopes to use the referendum to overturn a Dec. 16 council
decision that gave developers a 120-day extension on the rezoning of 85
acres of land west of the Jordan River and south of 10600 South.
That extension allowed developer Gerald Anderson additional time
to meet a stiff set of requirements laid out in April 1997 when the
property was rezoned to O/S or office service use.
Anderson says he intends to build a “Class A” office park
there over the next eight years, with the equivalent of six or seven
six-story buildings on about 69 developable acres.
SOS spokeswoman Janalee Tobias said the petition for an
“extraordinary writ” cites a previous decision by the high court
that allowed a referendum on a similar zoning decision because it
drastically affected the character of a community.
The RiverPark complex would also drastically affect the Jordan
River bottoms, she said, changing the character “from a rural farming
community to an urban city.”
South Jordan City Manager Dave Millheim said Friday he cannot
comment on the suit or any of its elements because the matter involves
litigation and has been referred to the city attorney.
However, he said city officials are disappointed with the action
because they have “been working with residents for several weeks to
try and resolve their concerns” outside the legal arena.
“It’s unfortunate that, when city officials choose to work
with citizens, those people ignore the process and go another way,”
Millheim added. “Council
members have been trying hard to work with them.”
Tobias said the city’s rejection of SOS’ request for
referendum petitions left her group no other choice than to appeal to
the Supreme Court, the appellate body designated by state statute.
“We’re sick and tired of the council voting against the
people on the river bottoms issue,” she said.
“People are really concerned about this…now we think it’s
time to take it to a vote.
“All we want is for the Supreme Court to order the city
recorder to provide us with the necessary petitions,” Tobias added.
Opponents of the office complex also contend it will put more
traffic on overcrowded roads and erode the quality of air, water and
For the referendum to succeed, SOS supporters would have to
collect the signatures of 15 percent of South Jordan’s registered
A special election would have to be scheduled at a cost of
approximately $10,000 unless the city decided to delay it until the next
general election in 1999.
However, state law provides the earliest a special election can
be held is June 28—two full months after the rezoning extension
The city Planning Commission and council have already scheduled
meetings for March and April to review the developers’ master
development plan, conceptual site plan and application for a
conditional-use permit. All
three are pivotal in obtaining project approval.
Residents ready petition to halt S. Jordan project
By Don Baker, Staff Writer
Thursday March 5, 1998
Residents intent on limiting development in the Jordan River bottoms are gearing up to circulate an initiative petition they hope will halt the proposed RiverPark office complex south of 10600 South.
South Jordan resident Brent Foutz, a member of SOS (Save Open Space), submitted an application this week asking city officials to prepare an initiative petition for circulation.The initiative, if signed by 15 percent of the South Jordan residents who voted in the last election, is intended to force a public vote that SOS supporters believe will renounce past City Council decisions al-low-ing office development in the river bottoms.
SOS spokeswoman Janalee Tobias said her group wants city officials to allow the property to ``revert back to the open space, recreational and agricultural uses for which it was originally master-planned.''
She also charged that city officials had declined to accept the application Foutz submitted on behalf of himself and several other South Jordan residents.
City Manager Dave Millheim said the application hasn't been declined but has been referred to City Attorney Mike Mazuran for legal review.
``I wasn't sure what they were giving me and, because of litigation related to their referendum (request), we have turned the matter over to the attorney,'' he said.
``If it has been legally filed and everything is in order, I'm sure the city will let them go ahead with the petition,'' Millheim added. ``We're studying the application right now and hope to let them know by the end of the week.''
SOS also tried to circulate a referendum petition in February that sought to overturn a December council vote that gave developer Gerald Anderson a 120-day extension on the rezoning of the 85-acre project for office development.
That petition was rejected on the advice of Mazuran, who advised the city that Utah law does not permit referendums on individual zoning decisions.
SOS has appealed that finding to the Utah Supreme Court and obtained the services of an attorney to help them force a public vote.
Tobias said the group of residents remains committed to preserving the natural beauty of the area west of the Jordan River and south of 10600 South.
``They initiative would preclude any major development in the river bottoms,'' she said.
``If we don't do this, it will mean parking lots everywhere,'' Tobias said. ``I don't care what they (city officials and developers) say, you can't disguise a parking lot.
``They've got to quit ignoring us and let us vote on this,'' she added. ``Why are they afraid of a vote?''
Tobias said SOS is hoping the high court will order South Jordan to allow circulation of the referendum petition and will issue an injunction halting RiverPark development until all issues are resolved.
Millheim said the council and Mayor Dix McMullin ``have put a lot of time and energy into addressing these issues'' and will give fair consideration to the request to circulate an initiative petition.
``We have to respect the process,'' the city manager said, ``and we're going to do that.''
City Councilman Gary Chandler, who has been heavily involved in the RiverPark dispute since taking office in January, said the city also will continue to meet with SOS and discuss the group's concerns.
``But this is causing the city to spend quite a bit of money on legal fees,'' he said. ``That's unfortunate. We're not a rich city.''
Jordan River Developer Sues Open-Space Group, Leaders
THE SALT LAKE TRIBUNE
Date: March 10, 1998
South Jordan activists for months have been fighting a proposed business park along a rural stretch of the Jordan River. Now the developer is fighting back -- big time. Gerald Anderson, owner of Anderson Development, has filed a lawsuit seeking $1.7 million in damages from Janalee Tobias, Judy Feld and SOS (Save Open Space), which the two women founded.
The 3rd District Court suit alleges that SOS, among other things, illegally tried to induce landowners to breach earnest-money contracts they held with Anderson on the 85-acre site.
``I'm absolutely shocked. I've never been sued before, so I don't know what to do,'' Tobias said Monday. ``I'm still in disbelief that citizens can be sued for exercising their rights to free speech. Does this mean a developer can sue citizens for trying to protect their quality of life?''
Anderson also named as defendants ``Jane and John Does 1 through 20,'' referring to unnamed supporters of Feld and Tobias.
``He wants to sue the neighbors, everybody with SOS,'' Tobias said. ``But I'm sorry, the buck stops with me and Judy. I'm not going to permit a developer to turn our neighbors against each other. I'm not turning in the names of the people who have been helping us.''
What triggered the suit, Anderson said Monday, is that SOS repeatedly pressured landowner Boyd Williams to break his earnest-money agreement with Anderson Development and sell to another buyer. Williams, who owns the last parcel Anderson needs for the project, has yet to sell his land.
Anderson wants a judge to enjoin SOS from interfering with Anderson Development's contractual relationship with Williams. Anderson purchased an option on Williams' property as part of his River Park Project, which is planned for the west bank of the Jordan River from 10600 South to about 11000 South.
The development initially called for 14 six-story office buildings, a hotel and restaurants. Anderson has scaled back his plan to include just a few six-story structures with the rest rising to three or four stories.
Third District Judge Michael Hutchings is a partner on Anderson's project but has no official connection with Anderson Development. He is a minority stockholder and partner in Riverpark LLC, formed to develop this specific project.
Contacted Monday, Hutchings said judicial ethics prevent him from commenting on the lawsuit. To avoid conflicts, any court proceedings probably will be presided over by a retired judge with no connection to Hutchings.
Anderson stressed that Hutchings is not a party to the lawsuit.
``That's malarkey,'' countered Tobias. ``Maybe [Hutchings] is not part of Anderson Development, but he has been at every public hearing pushing this project.''
The suit also asserts that SOS has misrepresented itself as a charitable environmental group. Anderson said it is not registered as such with the state or the Internal Revenue Service and is in violation of the Utah Charitable Solicitations Act.
Tobias, however, insists that SOS has filed articles of incorporation as a nonprofit corporation.
And, Anderson contends, when other parcels of land along the river were offered for sale, SOS was not interested.
``We've tried to be understanding of the SOS people, that they have First Amendment rights of freedom of speech,'' Anderson said. ``But when they start making deliberate misrepresentations and are not playing by the rules, then we have some concern.
``We feel that SOS has been unreasonable in terms of landowner rights, and they believe that we, because we are developers, should have no rights,'' Anderson said.
Responded Tobias: ``How can we interfere? He owns the options.'' SOS has challenged City Council decisions to permit the development and now is attempting to circulate a referendum petition to rescind project approvals.
Caption: Janalee Tobias; Judy Feld
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by
Lawsuit Takes a Swipe at Free Speech, Say Critics of Utah
Developer May Sue His Critics
JON URE and LINDA FANTIN
THE SALT LAKE TRIBUNE
Date: March 12, 1998
A developer has launched a $1.7 million lawsuit against critics of his proposed South Jordan office complex, claiming they have made misleading public statements and mucked up business relations. Legal experts say that's a SLAPP in the face of America's founders.
SLAPP is an acronym created by University of Denver researchers to describe a legal tactic developed and popularized in the 1980s. It stands for Strategic Lawsuit Against Public Participation.
Penelope Canan, associate professor of sociology, said developer Gerald Anderson's ploy is a classic example of a SLAPP, typically used by developers to intimidate and silence their critics. And according to the U.S. Supreme Court, such schemes violate the Constitution.
Anderson has not actually filed the lawsuit but served a summons Friday on Janalee Tobias and Judy Feld, founders of Save Open Space (SOS), a nonprofit group crusading against Anderson's business park. The women want the 85-acre site along the Jordan River preserved, and have tried to persuade a landowner to break a real-estate deal with Anderson Development.
Jeffrey Walker, Anderson's attorney, said the interference is illegal, and he disputed claims that his client's lawsuit infringes on free speech.
``I've never filed a SLAPP suit in my life,'' Walker said Wednesday. Yet he acknowledged that the summons was served to keep opponents from interfering with his client's business dealings.
``My hope was they would see we were not trying to start litigation,'' Walker said. ``We were trying to stop conduct.''
The maneuver may have backfired, however.
After getting over the initial shock of the lawsuit, Tobias said she is more committed than ever to her cause. She has received numerous calls and e-mail messages supporting SOS efforts and offering help. ``The whole town knows about this and they are all rooting for us,'' she said.
Ross Anderson is leading the cheers. The Salt Lake City civil-rights attorney is so outraged by the developer's lawsuit that he has offered to represent the women for free.
His involvement has caused Walker to delay filing the lawsuit. (The plaintiff has 10 days from the time a summons is served to do so.) While the two lawyers plan to discuss the case today, Anderson said he is willing to go to court if necessary.
``This is absolute abuse -- the worst abuse of our justice system -- to sue people for simply being good citizens and trying to intimidate them into backing off of their political and community-organizing activities,'' Ross Anderson said.
And it is all too common, said Canan.
She and University of Denver law professor George Pring have been studying the legal phenomenon since the 1980s. Their research culminated in a 1996 book titled SLAPPs: Getting Sued for Speaking Out. They examined nearly 900 lawsuits and found citizens were being sued with alarming regularity for circulating petitions, testifying at zoning hearings, reporting police misconduct, even signing the attendance sheet at a public meeting.
No state is immune, Canan said, although the data showed SLAPP-happy areas generally were ``wealthy, white and where quality of life was a big issue.''
Did someone say South Jordan?
The goal may be to impede participation in governmental processes, but the suits rarely are couched in those terms, Canan said. SLAPPs masquerade as civil suits charging activists with a range of wrongs, the most common of which is defamation; second is interference with contracts or business.
``We say that our communities are only as good as we make them,'' Canan said. ``And here we have some people who want to keep opposing viewpoints away from the democratic debate. We hope that citizens and people who represent citizens will make this an absolute impossibility.''
Fifteen states -- Utah is not one of them -- have passed laws against SLAPPs, Canan said. Others, such as Colorado, rely on court decisions.
In 1991, the U.S. Supreme Court set the standard for managing SLAPPs. The nine justices ruled that as long as a defendant's activities are aimed at influencing some governmental action, they are protected by the petition clause of the First Amendment.
As a result, more than 90 percent of SLAPPs never make it to trial, Canan said. In fact, many defendants are slapping back, netting huge judgments.
-- Jurors awarded a staggering $86.5 million verdict against owners of an infectious-waste-disposal company who SLAPPed a hospital employee for criticizing their rural Missouri incinerator operation.
-- A California attorney won a $5.1 million judgment against Shell Oil Co., which sued the attorney for reporting to authorities that a Shell product contained a cancer-causing agent.
-- In Los Angeles, one of the country's largest law firms had to pay $70,000 for filing a SLAPP on a client's behalf.
But many residents often are unaware of these cases and of their rights, Canan said. When faced with a lawsuit, they back down. For those who fight, it can take up to three years before the lawsuit is resolved.
``You might get compensated somehow,'' Canan said, ``but the literal hell you go through before that is not worth it to most people.''
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by
Foes of office park face another legal setback
By Don Baker, staff writer
March 12, 1998
The latest attempt by a group of South Jordan residents to block development of the proposed 85-acre RiverPark office complex has run into yet another legal wall.
City attorney Mike Mazuran advised city officials Monday to reject the group's application to circulate an initiative petition aimed at revoking the O-S (office service) zone approved for the development in 1997.The petition was filed last week by South Jordan resident Brent Foutz and two local couples.
In his legal opinion, Mazuran says Utah law does not permit initiatives on individual property zoning decisions like the RiverPark rezoning.
If that sounds a little bit like deja vu, it's basically the same legal opinion Mazuran issued in February when South Jordan's City Council unanimously voted to reject an application to circulate a referendum petition.
According to the attorney, the same zoning decision exclusion applies to both initiative and referendum petitions.
The group seeking to circulate the referendum, Save Open Space (SOS), had hoped to force a public vote on a Dec. 16 council decision extending the rezoning of the RiverPark project for 120 days.
SOS has appealed the council's decision to the Utah Supreme Court, arguing referendums are legitimate in some cases where a rezoning can ``drastically affect the character of a community.''
That appeal is pending and no court date has been set.
But SOS organizers are expected to file a similar appeal if council members reject the initiative petition the same way they did the referendum request.
A vote on petition application has been scheduled for the council's Mar. 17 meeting.
SOS spokeswoman Janalee Tobias said last week her group wants city officials to adopt an ordinance allowing the property to revert back to its original zonings that provided for open space, agricultural and recreational uses.
But developer Bruce Anderson contends such an action would amount to a condemnation.
Such a ``taking of property,'' he said Tuesday, would mean the city would have to pay the current value of his land plus millions of dollars spent in developing the property over the past 18 months.
Anderson said the city, even by conservative estimates, would have to come up with at least $12.5 million in compensation - an amount he contends would impose a huge property tax increase on South Jordan residents.
Will talks bring peace in River Bottoms war?
2 sides fire legal shots, then seem to calm down
By Don Baker, staff writer
March 13, 1998
The Battle in the River Bottoms nearly erupted into full-scale legal war this week, but the main combatants now appear to be negotiating a cease-fire or maybe even a truce.
Attorneys for the developer of the proposed RiverPark office complex and a group of residents calling themselves SOS (Save Open Space) began peace talks they hope will keep the dispute out of court.But SOS members, who fiercely oppose the project, and developer Gerald Anderson may not be ready to bury the hatchet just yet.
The war went beyond mere words this week when Anderson served SOS founders Janalee Tobias and Judy Feld with copies of a $1.2 million-plus lawsuit. The suit has not yet been filed in 3rd District Court, but it could be if the two factions don't come to terms.
Anderson, who believes he has been illegally ambushed by SOS, says he was placing the South Jordan residents on notice that he would not let them continue to interfere with his contractual and economic dealings.
The ``pre-litigation'' notice mostly enraged the SOS folks, however, and they fired back by enlisting attorneys of their own and complaining the threatened suit was an assault on their First Amendment right to speak freely.
They also began collecting signatures of supporters willing to volunteer in writing to throw their bodies on the legal barbed wire and be named in the suit.
South Jordan resident Brent Foutz, a member of SOS, sent Anderson's attorney a letter demanding to have his name included as a defendant in the lawsuit. SOS organizers expect others to make the same request.
Emotions soared high Wednesday night after the South Jordan Planning Commission voted 5-0 to recommend City Council approval of a conditional-use permit and conceptual site plan for Anderson's project.
If Anderson's suit does get filed, it will seek at least $200,000 general damages and $1 million punitive damages plus legal expenses.
It also will ask the court to prohibit SOS from interfering with the developers' contractual and economic relations.
Anderson contends SOS has meddled in his dealings with landowner Boyd Williams, who holds a key piece of ground adjacent to land already purchased by the developer south of 10600 South and west of the Jordan River.
But Tobias and Feld said the suit is a blatant attempt to intimidate people opposed to the project.
``I'm appalled,'' said Feld. ``I feel like I'm back in elementary school and there's a bully who wants me to do what he wants.
``But we're not just going to sit down and shut up,'' she added.
Tobias said she denies Anderson's allegations that she tried to interfere in the developer's business relations with Williams.
``This transcends an open-space issue,'' she said. ``It's a First Amendment issue . . . we have the freedom to publicly seek redress of our grievances. At no time have we told landowners they should get out of legal contracts.''
But Anderson said Tuesday Tobias had attempted as late as January to persuade Williams not to sell his land to the developer, even though Anderson had renegotiated an option on the property.
Williams also told the Deseret News he had been contacted by SOS or people associated with the group several times while his land was under option to Anderson.
He also indicated he is so angered by the conduct of SOS representatives that neither he nor his family will ever sell the ground to SOS or anyone associated with it.
Tobias and Feld have asked local attorney Ross ``Rocky'' Anderson, a recent congressional candidate, to champion their cause.
Anderson, who has been prominent in civil rights cases, said Thursday he is now representing SOS ``because I am so outraged by the suit.
``This is an abuse of the justice system and an effort to discourage citizens from community activism,'' he said. ``It has a tremendous chilling effect . . . it's difficult enough to find people willing to take a stand on issues.''
But the developer's attorney, Jeffrey Walker, said he's encouraged that the factions are now talking and trying to hammer out some kind of settlement agreement.
``Our goal was to stop what we believe to be wrongful conduct'' by the SOS faction, he said. ``Talks have been very productive . . . we're trying to be less adversarial.''
Tobias said Thursday the real tragedy is that the river bottoms dispute has damaged old friendships ``and turned neighbor against neighbor over a land deal.
``That wasn't supposed to happen,'' she added.
The Salt Lake Tribune's Editorial Position
Salt Lake Tribune
Date: March 15, 1998
The opponents of a proposed development along the banks of the Jordan River weren't scared off last week after being threatened with a lawsuit by the developer. That kind of resiliency -- and not the coerced silence intended by the suer in such cases -- is the appropriate reaction by citizens faced with intimidation tactics. Janalee Tobias and Judy Feld -- and their organization, Save Open Spaces (SOS) -- have been vigorously fighting the South Jordan development planned by Gerald Anderson. They have pressed their case to the local government and, according to Anderson, have contacted landowners in an effort to keep them from selling to him.
Earlier this month, the protesters were served with a summons and a copy of a lawsuit from Anderson, in which they were accused of intentionally interfering with a contractual relationship between the developer and landowners. The requested damages: at least $1.2 million.
The SOS citizens, who did their own legal legwork in their failed attempt to launch a petition against the development, obviously lack the resources to fight a lawsuit, much less pay damages. And that's the point of intimidation lawsuits, characterized as SLAPP suits (``strategic lawsuits against public participation''): scaring citizen activists into silence.
Anderson's side maintains that theirs was not a SLAPP suit. True, it does not fit the SLAPP-suit model in which citizens are sued just for taking their grievances to a government body. This suit doesn't object to SOS's interactions with the South Jordan government, but rather with its intervention with landowners.
But that's a difference without a distinction. Presumably, the landowners can decide for themselves what to do with their land. Besides, the lawsuit presented to SOS would seek an injunction ``prohibiting SOS from interfering with Anderson Development's . . . prospective economic relations over the development, until this matter is resolved in this court.'' In other words, curb free speech until the deal is done.
The SOS folks have refused to back off. But the courage to continue speaking up is not so easy to summon when threatened by a lawsuit. That's why Utah should consider joining the 15 states that have passed legislation discouraging SLAPP suits and thus identifying them for what they are: an infringement on a citizen's First Amendment right ``to petition the government for a redress of grievances.''
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
S. Jordan builder takes feud to court
Contractor suing SOS for blocking RiverPark project
By Don Baker, Staff Writer
March 18-19, 1998
The Battle of the River Bottoms is headed for 3rd District Court.
Following a breakdown in legal negotiations this week, the developer of the RiverPark office complex made good Tuesday on his threat to file a $1.2 million-plus lawsuit against a group of South Jordan residents who have been opposing his project.Gerald Anderson charges that SOS (Save Open Space) members Janalee Tobias and Judy Feld have unlawfully interfered in his contractual and economic dealings in developing an office complex west of the Jordan River.
Jeffrey Walker, an attorney for Anderson, served Tobias and Feld with what he called a ``pre-litigation'' copy of the suit March 6 but did not file the action at that time.
During the past week, Walker has been negotiating with SOS' attorney, Ross ``Rocky'' Anderson, on a settlement agreement but they could not reach an accord.
Walker said he filed an amended version of the complaint Tuesday but indicated his client wants to continue talking with SOS members and their attorney in hopes of reaching a pre-trial settlement.
``I think Rocky and I gave it a good run,'' he said, ``but neither of our clients could accept the terms that were proposed.''
Walker said the developer is committed to halting ``wrongful conduct'' by SOS members. ``This has to do with conduct that has damaged and continues to damage my client,'' he added.
The suit seeks at least $200,000 in general damages and more than $1 million in punitive damages.
But Anderson, a veteran trial lawyer known for his work on civil rights cases, said he was surprised by the filing.
``By all indications, it seemed we had worked out an agreement that everyone would walk away from this,'' he said. ``Then, out of the blue, we got this settlement proposal that was absurd.''
The SOS attorney said the developers' demands included admitting ``a lot of things that were not true, agreeing to pay attorneys' costs'' and stipulating the group would not talk about the project.
``That was totally unacceptable,'' Anderson added.
While Anderson Development characterizes the issue as unlawful interference with its development rights, Tobias said the suit is really a First Amendment issue because it attempts to squelch public comment about a project that will have a major impact on the community.
Tobias said Tuesday her group won't retreat from its efforts to preserve the open space along the river for future generations.
Walker, however, said the suit has been amended to demonstrate it is not an attempt to intimidate SOS or prevent the group from exercising free speech.
``This doesn't have anything to do with attempting to restrict First Amendment rights,'' he said, but is an action aimed at protecting Gerald Anderson's right to do business without unlawful interference.
SOS' attorney said he thinks the claims are frivolous and he plans to take action against the developer ``and anyone acting in concert with him'' once the suit is dismissed.
``I've never seen such an oppressive, outrageous abuse of the justice system,'' he added. ``It's intimidation. That has clearly been his objective from the beginning.''
Meantime, Anderson's project is moving through the approval process. South Jordan's Planning Commission voted unanimously last week to recommend approval of a conditional use permit and conceptual site development plan for the project.
A public hearing on those items and Anderson's master development agreement for the RiverPark project has been scheduled before the City Council on April 7.
High Court Will Decide Whether Referendums Exist for Citizens or Officials
THE SALT LAKE TRIBUNE
Date: April 8, 1998
The Utah Supreme Court will decide whether the state's referendum laws exist so residents can overturn unpopular government decisions or to protect municipal officials from harassment by fringe elements. On Tuesday, those questions were debated by attorneys representing South Jordan officials and a grass-roots preservation organization, SOS (Save Open Space).
At issue is whether South Jordan City Administrator Dave Millheim, acting as the city recorder, legally turned down a petition application by SOS.
The group's founders, Janalee Tobias and Judy Feld, said they heeded the law when they asked the city for permission to circulate a petition that would allow voters to overturn a City Council decision.
The Dec. 28 council vote gave Anderson Development a four-month extension to meet conditions the city placed on its controversial 185-acre River Park project proposed for the west bank of the Jordan River from 10600 South to 11000 South.
Millheim, acting on a legal opinion from City Attorney Mike Mazuran, turned down SOS's application. The city asserted that state law required filing signed and verified petitions within 35 days of passing an ordinance.
Tobias and Feld, however, argued that the 35-day rule pertains to the application deadline, not completion of the petition process. They appealed to the state's highest court, and prominent criminal attorney John O'Connell took their case for free.
O'Connell told the justices that the city's interpretation of the time requirement -- that all phases of the petition process, including application, approval of petition language and the gathering and verification of signatures, had to be done in 35 days -- makes it ``next to impossible'' to petition for redress.
That violates the First Amendment right to petition government, he said, adding that Article 6 of the Utah Constitution gives citizens the right to a referendum vote before an ordinance takes effect.
Justice Christine Durham told attorney Michael Hayes, representing South Jordan, that she found O'Connell's argument valid and that it would be ``impractical'' to conduct the referendum process in 35 days.
Hayes responded by quoting what two state senators said when the Legislature passed the 35-day rule:
-- Sen. Lyle Hillyard, R-Logan, said the ``narrow window'' of 35 days was key to the statute ``so citizens cannot harass local politicians.''
-- Sen. Howard Stephenson, R-Draper, said the provision was needed so ``fringe elements do not bring local government to a screeching halt.''
``There's no doubt that every elected official hates the word `referendum,' '' said O'Connell after the hearing, ``almost as much as they hate the word `indictment.' ''
Said Hayes: ``South Jordan believes the zoning ordinance was proper and should stand.''
A decision by the justices against South Jordan could void the zoning granted to developer Gerald Anderson. The River Park land then could revert to open space.
Approval of a zoning change gave Anderson leeway to build his proposed business park -- including multi-story offices, restaurants and a hotel. City Councilman Gary Chandler said the city also is working with Anderson ``to try and preserve a lot of open space by the river'' for Jordan River Parkway trails.
But SOS would like to preserve all that land along the river.
Tuesday's hearing was the first in the River Park dispute to land in court. However, Anderson has sued Tobias, Feld and other members of SOS for $1.2 million, claiming they interfered with his right to do business. Although attorneys have met to negotiate a settlement, none has been reached.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
South Jordan group mails out petitions in bid to halt project
SOS wants voters to decide fate of RiverPark plans
By Don Baker, staff writer
April 8-9, 1998
A coalition of residents calling itself SOS (Save Open Space) has mounted its own initiative and referendum petition drives in an effort to place the fate of the RiverPark office complex in the hands of local voters.
The group mailed out 7,000 petition packets to South Jordan homes over the weekend, seeking enough signatures to place the issue on an election ballot.Each packet contained a copy of both a referendum petition and an initiative petition aimed at blocking development of an 85-acre office park proposed for an area west of the Jordan River and south of 10600 South.
The South Jordan City Council previously rejected requests by the coalition to prepare referendum and initiative petitions for general circulation, contending that state law does not allow such votes on individual zoning matters.
Council members, citing a legal opinion from City Attorney Mike Mazuran, also said SOS had failed to file completed petitions within the 35 days set down by state law.
The referendum petition seeks a public vote on a Dec. 17 ruling that gave RiverPark developers an additional 120-day extension of an April 1997 ordinance rezoning the land for office use.
And the initiative petition proposes a public vote on a proposed ordinance to restore the rezoned property back to agricultural use and forbid commercial construction within the Jordan River's 500-year flood plain.
SOS has appealed the council's denial of its request for a referendum to the Utah Supreme Court, which took the matter under advisement late Tuesday morning following a one-hour hearing.
Justices must rule on whether the 35-day period set out in state law refers to the deadline for submitting a completed petition with all signatures or merely submitting an application for a petition.
Coalition organizers say they expect justices will rule the city erred in rejecting their request and want to have at least 1,500 signatures already in hand when the decision is handed down.
SOS supporter Brent Foutz said the group needs at least 1,209 signatures of registered voters by mid-April to compel city officials to place both measures on the ballot this summer.
``We've already collected more than 100 signatures,'' SOS organizer Janalee Tobias said following Tuesday's hearing. ``Now everybody in South Jordan has petitions to sign.''
But city officials remain confident the high court will rule their interpretation of state law is the correct one.
During Tuesday's hearing, attorney Michael Hayes told justices a review of the law's legislative history shows lawmakers intended to allow only ``a very narrow window in which signatures can be gathered.''
Otherwise, he said, local governments could be ``held hostage'' and harassed by groups that oppose their decisions.
``We're going to go ahead with business as usual unless the court tells us otherwise,'' City Attorney David Millheim said Tuesday.
Meantime, the council has postponed until April 14 a hearing on RiverPark developer Gerald Anderson's request for city approval of his conditional-use permit and conceptual site plan for the proposed office park project.
Approval of those items and a master development agreement will allow Anderson to move ahead with plans to build several office buildings west of the river over the next eight years.
But SOS attorney John O'Connell warned Tuesday that Anderson will be taking a huge financial risk if he moves ahead with the project before the high court rules on the group's appeal.
If the high court orders the city to allow a special election and voters reject the project, O'Connell said, any new construction might be torn down.
Anderson has made it clear, however, that he will take legal action against the city to recover any financial losses from the project that result from improper interference with his property and development rights.
The developer has already sued SOS organizers individually, alleging their interference in his business dealings and seeking financial compensation. Court action is pending.
Anti-RiverPark group throws up new hurdle
A restraining order delays vote on S. Jordan plan
By Don Baker, staff writer
April 15-16, 1998
Another legal hurdle suddenly materialized Tuesday afternoon in the bitter battle over development of a proposed office complex in the Jordan River bottoms.
A few hours before the City Council was scheduled to consider approving a conditional-use permit and master plan for the project, an attorney for the SOS (Save Open Space) coalition obtained a temporary restraining order in 3rd District Court halting any action.The court order enjoins Mayor Dix McMullin and the City Council from permitting any uses for the property west of the Jordan River and south of 10600 South other than those normally allowed in an A-5 agricultural zone.
That effectively stops council members from voting on the conditional-use permit and master plan for the RiverPark office complex until a state judge can rule on the complaint filed by SOS attorney Ross ``Rocky'' Anderson.
The complaint says the city failed to post the legally required notices before voting on two zoning ordinances that allowed the office park project to go forward.
Council members approved one ordinance rezoning 85.77 acres of land for the RiverPark project from agricultural to office service use in April 1977. A second ordinance granting a 120-day extension of the earlier ordinance was approved in December 1997.
But Anderson said Tuesday both ordinances ``are ineffective because the city failed to post them in three public places'' as required by both state and municipal law.
The complaint also contends short summaries of the ordinances also were not published in a local newspaper as required by law.
Since neither ordinance was effective, Anderson argues, city actions to rezone the property and later extend that zoning also were null and void.
McMullin told council members Tuesday night no action would be taken, and that a judge would hear the case April 21 at 9 a.m. in 3rd District Court.
Meantime, the city and SOS supporters are also waiting for the Utah Supreme Court to rule on the coalition's appeal of the council's rejection of their attempt to conduct a referendum on the RiverPark zoning extension.
Justices took the matter under advisement after an April 7 court hearing.
Despite the latest legal setback, the council went ahead with a public hearing on the RiverPark conditional-use permit and master plan that lasted for two hours.
The hearing mostly rehashed the arguments raised in previous hearings, with SOS supporters contending the proposed office complex would destroy the pristine nature of the area and adversely affect their quality of life.
``We don't want to blacktop the future,'' said SOS organizer Janalee Tobias. ``The river is the lifeblood of our valley. We need to preserve our natural resources.''
Several South Jordan residents spoke on behalf of the project, however, saying the office park would be far less damaging to the river bottoms than residential housing units and stressing the city is in need of economic development projects that will provide South Jordan with some revenues.
``You can't stop progress,'' said Ruth Griffeth, who said she was speaking for many seniors on fixed incomes. ``We need a tax base badly. Why is everybody fighting something that will be advantageous to South Jordan?''
Darrell Donalson, one of the residents who signed the SOS complaint, told council members they need to take another look at whether they had received good information about the project.
SOS organizer Judy Feld agreed, noting that after months of debate ``we still have no idea of what will go down there. The river bottoms does not have to be part of the tax base.''
But Jeanne Jackman said she thinks SOS supporters are self-serving and want to maintain their own limited access to the river bottoms area rather than open it up to the entire community.
Boyd Williams, who owns a key piece of property along the river bottoms and plans to sell it to developer Gerald Anderson, said he thinks the office park ``is one of the best things to happen to South Jordan since I've been here.
``It's going to go (ahead),'' he said. ``The question is how do we make it a better project - not how do we stop it.''
S. Jordan approves RiverPark project
But SOS refuses to give up fight
By Spencer Young, Staff Writer
April 26, 1998
Judy Feld moved to South Jordan three years ago to get away from the traffic and urban sprawl in Taylorsville.
``We moved here for the open space and to get away from the city,'' she said. ``Now everything's going to change.''In a meeting Saturday afternoon, the South Jordan City Council unanimously approved a controversial plan to build an office complex on an 86-acre site in the Jordan River bottoms.
The meeting was packed with about 40 residents - many holding signs in protest of the RiverPark project and anxious to speak out against the plan. No one got the chance. By 5:20 p.m., the council had voted and left the room.
The project will not only ruin the environment in the river bottoms, it will attract other massive development projects to South Jordan, said Feld, who founded a group, Save Open Space, to oppose the project. She says she believes it will only take a few projects of this size to cause South Jordan to grow too quickly, taking away its small-town atmosphere.
The council's goal is to increase the city's tax base, Feld said, and that's why it approved the project.
The council doesn't care what the residents want, she said, and the fact that the members didn't allow anyone to speak at the meeting is proof of that.
The council has already heard the public's concerns and met several times with anti-development groups, said Councilman Thomas Christensen after the meeting. It's been debated for a year, and it's time to go ahead with ``the next step.''
``I've gotten calls from people who support it,'' he said. ``It's been a year, and it's time to go ahead.''
Christensen isn't sure when building will begin. The project will add jobs and help South Jordan's economy, Christensen said.
But some residents plan to continue the fight despite two court setbacks in recent weeks. SOS temporarily derailed the project two weeks ago when it obtained a temporary restraining order preventing the City Council from granting a conditional use permit. But at a subsequent court hearing, the group failed to get the restraining order made permanent by 3rd District Judge Homer Wilkinson, who said the city had followed proper procedure in posting notice of the intended action.
Aleta Taylor said she will do whatever she can to stop the project. Her home is located a few yards from the construction site, and she said a huge office building is the last thing she wants.
``I wouldn't (have) built my house there if I would've known about this,'' she said. ``(The council) is trading the environment and the wildlife for a fast buck. I saw seven deer down there just the other day.''
Those who don't want the project have hope. The Utah Supreme Court has heard arguments on a referendum dispute between the council and SOS. The organization says the council illegally refused to allow a referendum on the RiverPark project.
The court has yet to rule on the issue. It could order the council to put the measure on the ballot, allowing residents to determine the project's fate.
People Power Fails to Block Development in S. Jordan
THE SALT LAKE TRIBUNE
Date: April 26, 1998
SOUTH JORDAN -- Talk about civic involvement: At least 40 residents with high adrenaline levels blasted the mayor and City Council for conducting a vote on Saturday that gave a controversial Jordan River development its final go-ahead. The City Council's unanimous vote consummated a development agreement for the 95-acre RiverPark project on the west bank of the Jordan River from 10600 South to 11000 South.
The agreement handed developer Gerald Anderson city approval to develop a site for up to 14 office buildings, some six stories tall, restaurants, a hotel and at least 30 acres of open space in various forms. A road through the wetlands is included and the developer will be required to widen 10600 South.
Council members ignored opponents of the project, headed by SOS (Save Open Space) members who waved signs claiming the city helps developers, but not residents. Janalee Tobias, a co-founder of SOS, greeted Anderson with a bright orange poster with the legend, ``We Live Here -- Developers Don't.''
Mayor Dix McMullin, chafing from criticism that scheduling the meeting for Saturday evening was intended to keep residents away, read a statement before the vote.
On Friday, when project opponents learned of the 5 p.m. Saturday meeting, they accused the city of attempting to end-run public participation.
He said the timing was posted properly, adding that at a meeting Tuesday, he announced that the council would probably meet Friday to consider the agreement.
``Unfortunately, our city attorney had not had time to complete it [the agreement document] . . . because of the considerable time he had to spend defending the city from unfounded lawsuits,'' McMullin said.
On Tuesday, South Jordan won a court battle that dissolved a temporary restraining order obtained by SOS that prohibited any use on the site except agriculture until the controversy could be decided.
Two more legal battles are pending. The Utah Supreme Court will rule on whether South Jordan officials acted legally when they denied SOS permission to circulate a referendum petition against the development.
And Ross Anderson, the attorney for SOS, last week filed a motion to dismiss a $1.2 million lawsuit Anderson Development filed against Tobias, Judy Feld and other SOS members.
As McMullin and council members left the chambers for a closed session, resident Jerry Schulz confronted the mayor, accusing him and the council of ignoring those who elected them.
Schulz, who was raised in East Germany, was livid and described the process as reminiscent of rule by a brutal communist regime.
``Here, they ask the citizens what they want, ignore them and do what the developer wants,'' Schulz said. ``There [East Germany] they just didn't bother to listen and did whatever they wanted.''
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Story- Land Wars
two South Jordan women decided to save some open space, they found
themselves up to their eyeballs in lawyers and lawsuits.
by Andrea Moore
Tobias (left) and Judy Feld of Save Our Open Space: "Fighting
to keep it [the Jordan River Bottoms] has been a full-time job. But
even if it's all been for nothing, I'd do it again in a
minute," says Feld.
photo: Fred Hayes
April 30, 1998
To have risked so much in our efforts to mold nature to our satisfaction and yet to have failed in achieving our goal would indeed be the final irony. Yet this, it seems, is our situation. — Rachel Carson, "Silent Spring."
From the foothills of the Wasatch to the Oquirrh Mountains there are still patches of farmland and open spaces left of what were once largely rural areas surrounding Salt Lake City and the smaller cities and suburbs of the Salt Lake Valley.
But with each passing day open spaces are absorbed into one large and continuous urban sprawl. The few remaining open lands become fewer and fewer until it seems every tiny patch of soil becomes a precious and sought-after commodity. Sometimes near-war breaks out between opposing interests over those few patches of open land and how they can best be used. In most cases a developer wins the right to build.
Citizens, who lose and then have to live with it, become jaded over the process. Often, residents just don't bother fighting "progress" anymore, and another strip mall gobbles up what was once trees and grass, a stream and weeds. The uprooted wildlife moves on or dies.
In those rare cases when involved citizens exercise their constitutional "... right of the people ... to petition the government ..." in opposing a development, they do so at great sacrifice to their personal lives in time, money and energy spent. Residents usually find they're not only up against a developer with vast resources, but they also find themselves contending with their own county or city lawmakers who are anxious to receive tax revenue from a proposed development.
Alarmingly, a new weapon in the land wars has recently been implemented in Utah that threatens to silence the strongest wills of concerned citizens from speaking out or becoming involved. The weapon is in the form of lawsuits filed against residents simply for being outspoken in opposing a developer's plans for a community. It's called a SLAPP suit.
S.O.S. & the Jordan River Bottoms
A particularly caustic battle over open space has raged for a year and a half over an area in the Jordan River Bottoms. The property consists of 110 acres on the west bank of the Jordan River south of 10600 South in the flood plain where Midas Creek and Beckstead Canal also run. A fish pond sits adjacent to the acreage that is home to beaver, red fox, great blue heron, white-faced ibis, golden and bald eagle, geese, rabbits and other indigenous animals and plant life.
The dispute over this richly diverse property pits Gerald Anderson of Anderson Development and his partner, 3rd District Court Judge Michael Hutchinson, against South Jordan residents Janalee Tobias and Judy Feld. The women and some of their neighbors have formed a group called Save our Open Space (S.O.S.) to maintain the Jordan River Bottoms as a fertile riparian environment and nature park.
Tobias and Feld, who live above the western slope of the River Bottoms, formed S.O.S. to oppose Anderson's proposed development that would have massive impacts on their way of life. S.O.S. is literally a kitchen-table operation where the first flyers to 5,000 neighbors were put together. "We're moms doing this out of our homes, while juggling our children's school activities, homework, baseball, dance classes, Jr. Jazz and our church obligations," Feld says.
When the two neighbors began their opposition to the development, their experiences were quite different. "I didn't even know what a planning commission was," Feld admits.
Tobias, on the other hand, is a seasoned activist whose car sports a license plate frame that reads, "So many causes, so little time." Not ironically, time may be running out in the fight against the development of the River Bottoms.
Anderson Development has proposed something called the RiverPark office complex, consisting of 14 buildings that include a hotel, restaurants, banks, a retail area, amphitheater and fitness center. The plans also call for a 25-or-more-acre park with jogging trails along the Jordan River. Anderson believes his project is a win/win for everyone. "I will have increased the tax base by 50 percent by the time it's all done," he says. "And we've been tasked with more open space than any other developer."
Indeed, to comply with South Jordan City Council resolutions, Anderson must exempt property within the flood plain and the river's meandering corridor, build a north-south road through the office complex, help widen 10600 South past the development and build public improvements. Those improvements consist of cleaning the banks of the Jordan River from fill put there during the flood of 1983-84, building and maintaining jogging trails and planting sod and new shrubbery.
To start with, the developers hadn't exactly endeared themselves to residents before their plans for the Jordan River Bottoms were made public. Anderson Development had already begun erecting a densely built apartment complex, Sterling Village, just above the far eastern bank slope of the Jordan. Neighbors living next door call it "a nightmare." So far there are 300 apartment units. When finished there will be a total of 880.
Sterling Village is practically in Aleta Taylor's back yard and the future RiverPark office complex will be directly to her west. "Before we bought our home we had a brochure from the city saying this would all be wetlands, nature and open space," she says. "We bought with that promise from the city's master plan, then this developer comes in, they re-zone and he begins building."
Taylor complains that residents didn't receive word about the apartments from the city until the work had already been going on for several months. "There was no public input, and by the time we got the notice it was too late," she says.
Already burned from the apartment deal, S.O.S. discovered that the South Jordan City Council had approved a zoning change of the River Bottoms quietly on a Monday night. With only rare exception, the council conducts public hearings at its regular Tuesday night meetings. The women felt the approval had been sneaked past townsfolk after a survey revealed that residents wanted open space and a nature park, and that they were willing to bond or raise taxes to pay for it.
Tobias maintains that from the beginning the City Council already had a "done deal" with the developers. "They re-zoned for the developer at a special meeting, didn't look at the traffic impact study or environmental study and they didn't give the results of the survey out until after the land was re-zoned," she says. "The city and the developer knew the citizens were against it all along."
But City Administrator Dave Millhiem bristles at the allegation that the City Council had already made up its mind in favor of the developer. "It unequivocally did not," he says. "Why else are we working as hard as we are to try to bring as many conflicted interests together and hold public meetings?"
Still, Feld doesn't buy it. "They only hold public meetings because it's the law. At the meetings, Millhiem controls everything, then they vote against the citizens and give the developers everything they want."
At one point the developers were given eight months to complete a development agreement, a conceptual site plan and a traffic impact study or the property zoning would revert to open space, but Anderson Development failed to meet the deadline, so the City Council gave the firm a four-month extension.
Undeterred, S.O.S. applied for a referendum petition challenging the decision that granted the extension to the developers. But City Attorney Mike Mazuran ruled that the referendum application was legally flawed. "Utah law prohibits the recall of ordinances that apply to individual property zoning decisions." Mazuran also stated in his written opinion that the referendum petition wasn't filed within the 35-day time limit prescribed by law.
In rebuttal, S.O.S. obtained an "opinion" letter from the lieutenant governor's office written by Kelleen Potter, state director of elections. While not specifically endorsing S.O.S.'s position, she said state law is unclear on whether an application for a petition or the petition itself has to be filed within 35 days.
With pro bono (free legal representation) help from attorney John O'Connell, S.O.S. took its case before the Utah Supreme Court in early April. O'Connell filed documents asking the court to allow voters the opportunity to overturn the City Council decision and allow the petition drive to go forward.
If the high court sides with S.O.S., the citizen's group would still have to collect the signatures of 15 percent of South Jordan's registered voters. The residents would then have the right to vote on rescinding project approvals given to the developers by South Jordan. But the Utah Supreme Court isn't the only court hearing arguments tied to this land war.
In March, Gerald Anderson's attorney, Jeffrey Walker, filed a lawsuit against S.O.S. founders Tobias, Feld and Jane and John Does 1 through 20, referring to unnamed supporters. The 3rd District Court suit seeks $1.7 million in damages, alleging that S.O.S. illegally tried to induce landowners to breach earnest-money contracts, among other things.
Gerald Anderson says he filed the suit because S.O.S. pressured landowner Boyd Williams to break an earnest-money agreement with Anderson Development. Williams owns a parcel on the southwest end of the area that Anderson intends to purchase and then swap with the municipality for property along the River Bottoms adjoining the property he already owns. The suit asks the court to stop S.O.S. from interfering with Anderson Development's contractual relationship with Williams.
But the women maintain they never have interfered with the Williams sale. Feld explains that after the options expired and Anderson Development hadn't bought the property, Williams asked S.O.S. to find buyers who were interested in a nature park. "For some reason the developers chose not to purchase the Williams property at that particular time," says Tobias. "So with Williams' permission we brought a few groups to walk on the property and have a look at it."
But none of the groups made an offer and the property was re-zoned back to agriculture. The Williams' chance to sell slipped away, creating a situation Boyd Williams isn't at all happy with. "S.O.S. caused the city to re-zone," he says. "Anderson and I have signed an option if the city re-zones to commercial and now I won't sell to S.O.S. or anyone associated with them."
When the bad feelings between the neighbors surfaced, Tobias and Feld took cookies to the Williams. Later they brought an Easter basket. "We're neighbors and we didn't want any hard feelings," says Feld. Those gestures of good will were misinterpreted, however. "Now we're accused of bribery," she says.
The suit filed by Anderson Development against S.O.S. has suddenly taken on a life of its own. Known as a SLAPP suit, it has far-reaching implications. SLAPP is the acronym for Strategic Lawsuit Against Public Participation—a trend that legal experts warn has grave consequences for politically active citizens and for our political system because it is filed to punish or prevent opposing points of view.
Walker served the women with the suit 10 days before actually filing, explaining that he served them on a Friday with the intention of waiting so there would be time for them to come and negotiate. He feels the suit has been blown out of proportion. "By Monday morning it was in the papers that I filed a SLAPP suit, so they called the press," he complains. "I've tried to take the road that's least offensive and now I'm the bad guy because the press says it's a SLAPP suit."
Walker insists the suit isn't a SLAPP suit. "It's about S.O.S.'s interference with my client's ability to do business." He dismisses Tobias for what he says is her "high with the media" and faults S.O.S' non-profit status. "As an attorney I've represented non-profit organizations so I know," he says. "There are laws they have to follow. It is a sacred trust." Walker cites numerous papers S.O.S. had not yet filed in order to qualify as a non-profit organization.
But the women say they have recently filed all necessary papers with the state for non-profit status for S.O.S.
Because of those implications, Tobias, Feld and S.O.S. have found new champions from all over the state, one of whom has become their second pro bono attorney, Ross "Rocky" Anderson. Ironically, Tobias helped Merrill Cook win his race against Rocky Anderson in the 2nd District Congressional campaign in 1996.
Though Walker would rather call his client's suit by any other name than a SLAPP, civil rights attorney Anderson calls the suit absolutely frivolous. Anderson says he is alarmed at the silencing of debate that he believes is the intent, a main hallmark of a SLAPP suit. "It's aimed at nothing other than to chill the effect of their [Tobias and Feld] speaking out and to punish them for it," he says. "It's important for the court and people of Utah to know that these types of litigation acts will not be tolerated."
Anatomy of a SLAPP
Penelope Canan, University of Denver associate professor of sociology, and George Pring, University of Denver law professor, are perhaps the leading experts on SLAPPs, having studied the relatively new legal trend for more than 10 years. Their 1996 book, SLAPPs: Getting Sued For Speaking Out examines almost 900 such suits and the criteria that make them SLAPP suits.
Canan and Pring explain what a SLAPP suit is: "To qualify as a SLAPP, a lawsuit must be: A civil complaint or counterclaim filed against nongovernmental individuals or organizations because of their communications to government or government bodies, officials, or the electorate on a substantive issue of some public interest or concern."
They further put attorneys on notice who are representing anyone in a public, political-arena dispute to be alert to the following SLAPP warning signals: 1. Local issues 2. Bi-polarity (sharply two-sided positioning) 3. Public-private dichotomy 4. Non-Goliaths (filers are more often local entities) 5. Legitimizing-delegitimizing labels (filers typically label opponents and legitimize themselves.) 6. Forum bias (filers may mistrust their ability to win in the public-political forum).
The professors also list what they call "classic indicators" of SLAPP suits: 1. Politically active defendants 2. Any of the six typical claim categories. (Of those that fit this suit are the claims of "interference with business" and "attacks on non-profit status.") 3. Huge money damage claims, out of proportion to realistic losses 4. Inclusion of "Doe" defendants (to spread the chill).
By definition and by most of the warning signals and indicators listed in Canan and Pring's research, the Anderson Developers' suit against Tobias and Feld fits the description of a SLAPP suit.
Canan and Pring note that everyone has a stake in these lawsuits. "Citizen access to the institutions of government constitutes one of the foundations upon which our republican form of government is premised." They report that citizens who have been outspoken on public issues or who have witnessed these suits will choose in the future to remain silent. "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined," Canan and Ping observe.
Tobias and Feld admit that on the night they were served with the suit, they were reeling enough to throw in the towel, but eventually put things in perspective. "I said to Judy, 'Is it worth losing our homes over?' Then I answered myself, 'Hell no, man, we won't quit. You have to stand up and do what's right,'" says Tobias, "but I don't think I'd have the courage without Rocky."
Rocky Anderson says his first tactic will be to move to dismiss the suit and then file a judgment against the opposing side. His legal maneuver follows Canan and Pring: "... Judges are more willing to adjudicate the cases expeditiously, recognizing that macro political and societal rights are at risk, not simply private, interpersonal ones."
For two busy moms who just wanted to save open space in the Jordan River Bottoms, the courtroom will be a most familiar, if unlikely, place for them for a while.
In the meantime, Tobias has filed her intent to run as a Republican candidate for the State Legislature in District 50. She hopes to sponsor anti-SLAPP legislation in Utah, joining 15 other states that have already adopted similar laws. "I could have a job and make money," she says of her activism. "I have a degree and have had job offers but I choose to give something back to the community."
The two women look out over the Jordan River Bottoms from Feld's large family-room windows. They speak about the river, the land and its wild inhabitants, using the words "paradise" and "precious."
"Fighting to keep it has been a fulltime job," says Feld. "But even if it's all been for nothing, I'd do it again in a minute."
SOS renews campaign to block complex
By Don Baker, Staff Writer
July 25, 1998
Answers: Mosquitoes, junkyard dogs and the group of South Jordan residents that goes by the acronym SOS (Save Open Space).
The question: What are three things that never give up?SOS has renewed its long-running campaign to block construction of the River-Park office complex by launching yet another initiative petition drive aimed at killing the project.
The ad hoc group filed a request with the city July 16 to have copies of its petitions prepared for circulation, but members already are gathering signatures.
Meantime, city officials have again denied the application, saying state law does not permit initiatives on individual zoning issues.
SOS officials are undaunted and say they will proceed with the drive anyway and will appeal the city's latest rejection of their application to the Utah Supreme Court.
Pending that decision, SOS hopes to get enough signatures to place the initiative on either a special election ballot or on the 1999 municipal election ballot.
An expanded version of an initiative petition that was rejected by city officials in March, the revised initiative asks local voters to compel the City Council to return the 25.5-acre Jordan River Park to state own-er-ship.
The council is considering a trade with RiverPark developer Gerald Anderson that would swap a 16-acre section of the park, which is still undeveloped, for an adjoining piece of land.
However, the state gave the property to South Jordan in 1983 with the stipulation it would revert to state ownership if it wasn't used for a park.
City officials have asked the Utah Parks and Recreation Board to consider approving a trade, which would give the city an additional three acres of land, but the proposal has been postponed pending appraisals.
SOS hopes to block the trade with the initiative, arguing the swap is heavily weighted in the developer's favor because it gives him eight more acres of more valuable ``buildable'' land.
The initiative also contains two amendments to the earlier version that was rejected by council mem-bers.
One amendment asks residents to require the council to re-rezone the 85-acre RiverPark office complex property from its current OS or office service use back to agricultural use.
Reverting back to the original agricultural zone would both block construction of the office park and ensure a legal battle between Anderson and the city.
The other amendment seeks a permanent moratorium on any construction of buildings or roads within the Jordan River's 500-year flood plan - which also would eliminate much of the buildable land within Anderson's project.
SOS member Brent Foutz of South Jordan said copies of the petition are already being circulated. ``We need 1,209 signatures to place the initiative on a ballot,'' he said. ``We're about halfway there.''
Councilman Gary Chandler stressed South Jordan officials have not made any decision on a trade and are only exploring possible options.
The ``buildable land'' question raised by SOS is a non-issue, he said, because the park is zoned as open space and the city couldn't build anything on it anyway.
``In my mind, there's no question the other property would be worth more'' than the land currently owned by the city, Chandler added. ``It's in the same place . . . and there's more of it.''
South Jordan Activists Want Developer's Suit Nixed
`Oh, hell, I can't hear this case,' says judge when he realizes his court colleague is a shareholder in Jordan River project
THE SALT LAKE TRIBUNE
Date: August 1, 1998
A $1.2 million lawsuit against South Jordan activists fighting a riverside business development should be dismissed because they did not interfere with the developer's contracts, their attorney argued Friday. Attorneys for Anderson Development countered that Janalee Tobias and Judy Feld, founders of SOS (Save Open Space), maliciously sought to delay approvals for the 85-acre RiverPark project planned on the west bank of the Jordan River at 10600 South.
A motion by the SOS members' attorney, Ross Anderson, to dismiss developer Gerald Anderson's lawsuit nearly went unheard when 3rd District Judge Timothy Hanson realized his colleague, Judge Michael Hutchings, is a minority shareholder in Anderson Development.
``Oh, hell, I can't hear this case,'' the judge told attorney Jeff Walker, who represents Gerald Anderson and the development company. ``I can't waive a potential violation of the judicial canon of ethics.''
But Ross Anderson obtained a waiver from his clients, assuring the judge they were confident Hanson could fairly hear the case -- even though Hanson and Hutchings preside over 3rd District courtrooms.
Gerald Anderson did not attend Friday's hearing. But Walker and attorney Miles Holman, who represent him, promised to deliver their client's waiver before the judge issues a ruling on the dismissal motion.
Asked later, Walker said he knew about how much of a share Hutchings holds in Anderson Development but would not divulge the information. Hutchings will practice law with Walker and Holman when he retires from the bench later this year.
Hanson made no decision at the hearing, where the developer's attorneys argued that Tobias and Feld cost their client as much as $100,000 more for each of the 25 acres he eventually purchased from property owner Boyd Williams.
Ross Anderson pointed out to the judge that it was Gerald Anderson who let his initial contract with Williams lapse. Only then, he said, did his clients try to persuade Williams to sell to other buyers who wanted to preserve the land as open space.
Actions by Tobias and Feld, said Ross Anderson, did not result in a breach of contract.
Walker countered that Tobias and Feld misrepresented themselves to Williams, distorted facts regarding the proposed business park and damaged Gerald Anderson with misinformation.
``Their sole purpose was to harm the bidder,'' Walker said, and their actions resulted in higher land prices. He said the pair went beyond the bounds of their political and community activities, impairing Gerald Anderson's ability to conduct his business.
Hanson asked Walker if the defendants were entitled to oppose the project. Yes, Walker said, but not when their actions become ``wrongful.'' He claimed Tobias and Feld lied about SOS being a nonprofit organization and were not registered with the state.
But Ross Anderson said his clients were exercising their rights. ``This is an onerous, terrifying use of the judicial process against two women who are fighting to save space on the Jordan River bottoms,'' argued the defense attorney.
After the hearing, Tobias and Feld said active membership in SOS fell after Anderson sued them. ``It did have a stifling effect,'' Tobias said.
``Will people be deterred from civil activism'' because of Anderson's lawsuit? asked Feld. ``And should the courts be used to scare people away from activism?''
Feld said many South Jordan residents still support their efforts but ``they are very fearful of being sued by this developer'' and stay in the background.
Responded Walker: ``We forget who the victims are here,'' arguing that it was his client who was damaged.
``Their actions cost our client money,'' added Holman.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Judge Removes Himself From S. Jordan Development
Hanson cites association with fellow 3rd District judge who holds financial interest in project as reason for backing out
THE SALT LAKE TRIBUNE
Date: August 6, 1998
A search is on to find a new judge to decide whether Jordan River preservation forces in South Jordan will stand trial on a $1.2 million lawsuit filed by a developer who claims the residents interfered with his business. Judge Timothy Hanson has withdrawn from the case, even though he heard arguments to dismiss the lawsuit last week.
Hanson interrupted the lawyers last Friday when he realized that a minority interest in Anderson Development's RiverPark LLC is held by 3rd District Judge Michael Hutchings. Hutchings has announced plans to retire to enter real estate development but will remain on the bench until a replacement is named.
Hanson claimed even an appearance of a conflict, because of his association with Hutchings, is enough to remove himself. However, he reluctantly allowed the debate when both sides stipulated that they would waive any ethical restrictions preventing his overseeing the case.
But on Tuesday, Hanson told the parties to the lawsuit to request a new judge, either retired or from another district. Defendant Janalee Tobias complimented Hanson's decision.
``I'm very impressed with Judge Hanson -- that he wanted to avoid any kind of appearance of a conflict,'' said Tobias, a defendant with Save Open Space (SOS) co-founder Judy Feld. ``I would hope that he represents the typical judge in the 3rd District. He increased my faith in the judicial system by showing there are ethical people on the bench. I feel confident with his decision and hope all judges would have the same kind of ethics that Judge Hanson has.''
The plaintiff, developer Gerald Anderson, could not be reached for comment, and Judge Hutchings said it would be inappropriate for him to comment. The developer's attorney, Jeff Walker, noted that Hanson was not bound to remove himself but did so out of caution and to avoid the appearance that the courts could be compromised.
Ross Anderson, representing Tobias, Feld and several unnamed members of SOS, also could not be reached for comment Wednesday.
Gerald Anderson sued the SOS activists for $1.2 million in mid-March, claiming their alleged meddling pushed up land costs for the project. In his argument before Hanson, Walker claimed that the defendants cost his client as much as $100,000 more for each of the 25 acres he was attempting to buy from landowner Boyd Williams.
But Ross Anderson countered that Tobias, Feld and their compatriots only approached Williams after the developer's options had expired. Since no contract existed, none could have been damaged, he contended.
A replacement judge, it appears, likely will rehear the arguments to decide whether to dismiss the case, whose beginnings are now about 2 years old.
When Gerald Anderson proposed his project on the west bank of the Jordan River at 10600 South, SOS jumped into the fray, claiming it would irrevocably destroy wetlands and open space that would be replaced by offices as tall as six stories, a hotel, restaurants and parking areas.
Anderson and Hutchings, however, claim their project will provide more open space than what is now publicly available. South Jordan also will benefit from the tax base it would provide, the developers say.
In a related matter, SOS member Brent Foutz has filed a second petition with the Utah Supreme Court asking the justices to overturn the city's denial of an initiative petition that would ask voters to overturn the permission Anderson Development has received from the City Council.
The court denied the group's first attempt at a similar ruling.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
S. Jordan ordered to give petitions to SOS
By Joe Costanzo, Staff Writer
September 26, 1998
The Utah Supreme Court has ordered South Jordan to furnish opponents of the proposed River-Park office complex with official ballot initiative petitions and signature sheets.
A group called SOS - ``Save Open Space'' - requested the materials on July 16 in a bid to give voters the final say on a zoning ordinance relating to the proposed project.However, the city clerk refused, saying, ``The subject matter of the proposed ordinance involves a zoning matter which is inappropriate for the initiative process.''
In a 4-to-1 opinion released Friday afternoon, the Supreme Court ruled that state law clearly requires local government clerks to provide initiative sponsors with five copies of the initiative petition and five signature sheets.
Writing for the majority, Justice Michael Zimmerman said, ``The stat-ute makes the issuance of an initiative petition an entirely ministerial act, and nothing in the statute authorizes the local clerk to make any independent determination of whether the petition should be issued.''
A determination of whether the subject matter is appropriate for the initiative process is proper only after the petition has been issued, completed and returned, Zimmerman said. To give a clerk the power to make legal decisions about the propriety of petitions ``is to invite abuse,'' he added.
SOS co-founder Janalee Tobias said she was ``thrilled'' by the court's ruling. ``It restores my faith in democracy because it protects the right of citizens to petition government,'' she said.
Tobias said a majority of South Jordan residents are opposed to the commercial development of the 92-acre riverbottom property, which she described as the city's ``crown jewel.''
Brent Foutz, one of the residents who took the issue to court, said the city's refusal to provide the petitions was part of a pattern of policies and decisions that have ``steamrollered and railroaded'' the community.
Foutz said his group has already gathered about half the 1,200 signatures to put the question on the ballot next year.
However, City Manager Gary Chandler said the group may have to start from scratch.
``It's my understanding that they have to use the forms we provide,'' Chandler said. He added that those forms had already been prepared Friday afternoon and would be furnished on demand, in compliance with the Supreme Court order.
Whether the city accepts a completed petition on the zoning issue is a determination that will be made later, Chandler said.
The city won't be required to accept it, predicted Chief Justice Richard Howe, and that makes the entire petition drive an exercise in futility.
In the court's lone dissent, Howe said case law is clear: Zoning ordinances cannot be enacted through the initiative process.
So, to require a clerk to furnish sponsors with petitions ``is to mislead the sponsors and allow them to engage in the time-consuming useless act of collecting signatures,'' Howe said.
``It is much better to inform the sponsors up front that any petition drive they might present will be rejected because it will be legally insufficient.''
South Jordan's attorney, Lisa G. Romney, agreed, saying the reason the city fought the request was to save all the parties time and effort. She noted that at the state level, the law specifically gives the liuetenent governor the authority to reject petition requests involving patently illegal initiatives.
While there is case law suggesting local clerks have the same authority, ``the Supreme Court has clarified the law and the city will certainly comply,'' Romney said.
Tobias said the opponents of the project are willing to expend the time and effort despite the risks. ``If there's even a glimmer of hope, it's worth it,'' she said.
SOS group starts another initiative drive
By Don Baker, Staff Writer
October 7-8, 1998
The ``Battle of the Jordan River Bottoms'' is a long way from over.
A group of South Jordan activists will head back into the trenches this week with another initiative petition drive aimed at placing the fate of the controversial RiverPark office complex in the hands of local voters.Once again, SOS (an acronym for Save Open Space) will ask city residents to support its demand for a public vote in November 1999 to determine whether the City Council should be compelled to:
- Restore the 85-acre office complex site, located west of the Jordan River and south of 10600 South, back to its original agricultural zoning.
- Place a permanent moratorium on the construction of buildings or roads within the Jordan River's 500-year flood plain.
- Return the 25.5-acre Jordan River Park to state ownership so it cannot be traded to RiverPark developer Gerald Anderson for adjoining property.
The initiative petition is the group's latest salvo at Anderson's project, which was formally approved by a unanimous coun-cil vote last April.
SOS organizer Janalee Tobias said that while 1,209 signatures are needed to place the initiative on the 1999 municipal elections ballot, the group will try to collect about 2,000 names of registered South Jordan voters.
She contends there is a strong public sentiment against the RiverPark project that has been ignored by the council.
``We feel confident we can get the 2,000 signatures easily,'' Tobias said. ``This is the last and best large parcel of open space in Salt Lake County. . . . It's worth saving.''
Even if SOS obtains the required number of signatures, city officials are expected to reject the petition on the grounds state law does not permit initiatives or referendums on individual zoning issues.
The city has already taken that position twice in denying SOS requests to circulate both referendum and initiative petitions challenging council approval of the RiverPark project.
Another such rejection is just what SOS members want.
They contend the recent rezoning of seven separate parcels of land within the office complex site really amounts to a ``comprehensive zoning regulation'' - which may be placed on the ballot as an initiative - rather than an individual zoning issue.
Both previous denials of the SOS petitions were appealed to the Utah Supreme Court, which ruled on other issues but did not deal with the zoning question.
Strategically, SOS is counting on another rejection by the city so it can appeal the matter to the high court one more time and get justices to decide the zoning issue once and for all.
City Administrator Gary Chandler said city officials don't have any comment on the initiative drive at this point but will deal with the matter if and when petitions are returned to the city.
Brent Foutz, an SOS supporter, said South Jordan city has provided five petitions and five signature sheets in the wake of a recent Supreme Court ruling that compels the city to do so.
SOS made numerous copies of those sheets and turned them over to the city, which has five working days to number and return them.
``We will start circulating them by Thursday,'' said Foutz, who said SOS plans on mobilizing two to three dozen volunteers to carry the petitions door to door.
Tobias said SOS will also collect signatures at local stores and during a series of public meetings that will be held to discuss the RiverPark project.
Meet candidates - and scary creatures
SOS sponsoring Halloween event in S. Jordan
By Don Baker, staff writer
Oct. 30, 1998
Area residents can meet political candidates, 500-pound pumpkins and all the other scary creatures that inhabit the ``Haunted Wetlands'' Saturday from 5:30 to 8 p.m. at 1238 Jordan River Drive (11050 South).
But it won't be nearly as frightening as it might sound.Sponsored by a coalition of South Jordan residents that calls itself SOS (Save Open Space), the event will combine a not-so-spooky stroll through the ``wetlands'' with an opportunity to talk to 10 local candidates running for county and national political posts.
SOS organizer Janalee Tobias said the Halloween night gathering has been designed as a different way to meet candidates - amid a collection of giant pumpkins and against the ``wetlands'' backdrop re-created in her back yard.
Everyone is invited to drop by and pick up some political awareness along with the usual Halloween goodies, she added.
The pumpkins, several of which are in the 500-pound super-serious squash class, have been raised in South Jordan by an SOS member, Brent Foutz.
The candidates, most of whom also were raised locally, have not been required to wear costumes. But they should be easy to distinguish by their smaller size, color and strong political views.
Tobias said the idea of creating a Haunted Wetlands at her home evolved from SOS' efforts to preserve prized wetlands near the Jordan River and the subdivision where she lives.
Visitors will stroll through a bipartisan ``wetlands'' that will be haunted by developers and builders, serenaded by a folk singer who still remembers how to sing ``Kum Bay Yah'' and inhabited by a variety of other spooky creatures.
``The neighbors were talking about doing it for the trick-or-treaters and were figuring out ways to make it really scary,'' she said. ``One of them suggested inviting politicians to participate.
``In all seriousness, we think it's a perfect way for families who are out trick or treating on Halloween night to get a chance to meet the candidates and speak with them on issues they're concerned about,'' Tobias added.
Invited were all local candidates for the U.S. Senate and Congress and the county positions of commissioner, district attorney and sheriff, Tobias said.
There is no admission charge to the Haunted Wetlands, but donations will be accepted by SOS to support its open space preservation efforts.
Seeds from several of the jumbo-size pumpkins will be sold for $1 each, with all seed proceeds will going to SOS.
How Do Wasatch Front Developers Navigate the Regulatory Maze?
They Hire the Regulators
Officials In Revolving Door With Developers
Ryan Galbraith/The Salt Lake Tribune
Developer Gerald Anderson is leaving his mark on South Jordan: the Sterling Village apartments, left, and, in the background, a business park that will spring up along the Jordan River.
By PAUL FOY
THE SALT LAKE TRIBUNE
Date: November 1, 1998
When major developers need an expert to help push through big commercial and housing projects on the Wasatch Front, they often go shopping at city halls.
Last summer, for instance, Sandy-based developer Gerald Anderson ran into trouble with Bluffdale when he unveiled his 74-acre project of apartments, offices and retail stores.
``I hired Ken Leetham,'' says Anderson, referring to Riverton's former city administrator, ``thinking the city administrator of an adjoining city would carry some weight with the [Bluffdale] City Council.''
So far, it hasn't. But Anderson also has hired as consultants Gary Crane, the former city attorney for Bluffdale, and Dave Millheim, former city manager of South Jordan.
Anderson's team, which also includes Richard Young, the mayor of Mapleton in Utah County, reads like a Who's Who of local government.
``Gerald's not stupid,'' says Millheim, who fought a grass-roots group over a 120-acre business park that Anderson plans to build in the city Millheim once managed. ``He's not afraid to get people who are qualified.''
In Utah, it's not against the law for government officials to work one side of the regulatory fence one day and jump to the other side the next. And developers are taking advantage of it by hiring planners, city attorneys, city managers and economic-development directors.
``This is a recent trend,'' says Ted Wilson, former Salt Lake City mayor and now director of the Hinckley Institute of Politics at the University of Utah. Developers ``are willing to put money on the barrel head'' to hire insiders who can navigate the regulatory maze.
Influence peddling has hit the suburbs.
``In Utah, none of these things are against the law -- but in many other states you'd end up in jail,'' says Cassie Dippo, vice chairwoman of Utah Common Cause, a government-watchdog group.
Adds Claire Geddes, state director of United We Stand: ``It's cronyism, and it happens all the time. Conflict of interest is the No. 1 problem in this state. I mean, politicians think it's part of the job.''
``Revolving-door'' statutes require federal employees who leave government service to wait a year or more before joining a private company that does business with their old offices. Some state governments have similar laws.
Salt Lake City is debating new ethics restrictions, but none applies to city employees after leaving their government jobs. In Summit County, commission candidate Patrick Cone has proposed a ``revolving door'' clause in the contracts of county employees. He claims a county planner jumped to The Canyons ski resort and began pushing a big hotel.
``Money corrupts,'' Cone says. ``And there are millionaires being made every day up here.''
Meanwhile, Anderson and other developers are raiding the staffs of municipal governments:
-- Dan Simon, former economic-development director for Sandy City, in 1997 joined Larry Miller, Utah Jazz owner, builder of the NBA team's Delta Center and an auto-dealer magnate.
Simon says he came to Sandy City Hall from the real-estate business. His government dealings with Miller, he adds, were limited to steering the developer to a suitable Sandy site for Jordan Commons on State Street, where Miller won a variance to build an office tower 10 stories tall. Jordan Commons also will include a 1,000-seat restaurant and 16-screen theater. Simon now is leading that project.
-- Reid Gerritsen, the top building official for Tooele City, was plucked by Seattle-based developer Drew Hall to oversee the 7,900-home Overlake subdivision now under construction in Tooele.
``I knew there would be a perception problem,'' Hall acknowledges. ``Everybody likes to say, `Oh, [Gerritsen] must have made sure the developer got everything he wanted.' It did create a certain amount of backlash. But there's no story there.''
-- Gregory Bell, the mayor of Farmington in Davis County, has joined Raddon Brothers Construction Inc., a big developer in Sandy and Draper, as a partner.
Bell says Raddon does no work in Davis County. But every one of Farmington's City Council members has been confronted at one time or another by a business conflict, says Councilman David Dixon, who is no exception.
Dixon, an architect, once was hired by The Boyer Co. to draw up plans for a 540-home Farmington subdivision. When the City Council approved the project, ``I got up from the podium, sat in the back and didn't make any comments,'' he recalls.
And what do city leaders think about losing experienced planners or city managers to private developers?
Government salaries are no match, concedes Sandy Mayor Tom Dolan.
``It's a free market,'' says South Jordan Mayor Dix McMullin, who lost a longtime city manager. ``Millheim left because of the amount of money he could make.''
Millheim says he had ``a couple of developers trying to hire me'' in 1998 -- the same people he faced down for years on the opposite side of the negotiating table. Millheim takes ``ethics very seriously,'' but acknowledges that he did accept an offer to join Anderson on a fall 1995 elk-hunting trip in northern Utah.
He insists that he paid his own way. At the time, Millheim, as city manager, was in ``complex negotiations'' with Anderson on funding for Sterling Drive, which led to the development of the upscale Sterling Village apartments, Utah's largest complex with 880 planned units.
Millheim is adamant that he has done no developer any favors. His critics think otherwise.
``It certainly appears to be the revolving door of people in the public trust doing Anderson's bidding and then going to work for him,'' says attorney Rocky Anderson. He is defending a group called SOS -- Save Open Space -- against a lawsuit filed by Gerald Anderson.
In the suit, Gerald Anderson claims interference by SOS cost him hundreds of thousands of dollars more for a key piece of land to RiverPark, his 120-acre South Jordan business park.
SOS returned fire by suing South Jordan for allowing a farmer to graze cows on a park the city wants to swap with Anderson so he can consolidate his business park. In that suit, SOS also named as a defendant Anderson's development partner, 3rd District Judge Michael Hutchings, despite the fact Hutchings isn't connected to this dispute. SOS also is circulating ballot petitions in a bid to reverse city zoning approval for Anderson's business park.
Hutchings, meanwhile, says he can be a state judge and developer at the same time. ``Our ethics rules say judges can manage, sell or develop real estate,'' says Hutchings, who nonetheless plans to resign from the bench for ``practical reasons.''
Hutchings also was the former city attorney for West Valley City.
And that's why developer Gerald Anderson wanted Hutchings on his team. ``He [Hutchings] knows what a developer can and cannot do,'' Anderson says.
Millheim and others bring certain advantages to developers. Dan Simon, for instance, ``knows the ins and outs of Sandy politics,'' says Scott Cowdell, a Sandy councilman. ``He's on a first-name basis with people at City Hall.''
Then again, Cowdell adds, many developers are cozy with officials at City Hall. And at least one developer says he does not need help from government ranks.
Terry Diehl, owner of Wasatch Pacific and a former partner in Draper's massive South Mountain project, calls the tactic unwise.
``If I hire Dave Millheim and I work in South Jordan, it would be perceived as a conflict,'' Diehl says. ``I don't know if it passes the smell test or not.''
Diehl is a regular at planning and council meetings around the Salt Lake Valley. ``We attend a lot of them for input and an understanding of what they are looking for,'' he says. ``It's all pretty political, that's for sure.''
Tribune reporter Jon Ure contributed to this story.
(c) 1998 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Judge refuses to dismiss S. Jordan developer's suit
By Don Baker Deseret News staff writer
Dec. 23-24, 1998
SOUTH JORDAN -- Stand by for another legal skirmish in the River Bottoms War.
A motion to dismiss a $1.2 million lawsuit filed against a pair of South Jordan environmental activists by a local developer has been denied in 3rd District Court.The ruling by Senior Judge Douglas Cornaby will send the claims by developer Gerald Anderson into the discovery process and possibly a court date.
Anderson filed suit in March against SOS (Save Open Space) organizers Janalee Tobias and Judy Feld, charging they intentionally and unlawfully interfered in his existing and prospective economic relations in developing the RiverPark office complex.
The property is located west of the Jordan River and south of 10600 South in South Jordan.
Tobias and Feld contend they have been hit with what is known as a Strategic Lawsuit Against Public Participation, or SLAPP suit, in an effort to intimidate South Jordan residents opposed to the controversial project.
The suit seeks $200,000 in general damages and $1 million in punitive damages. It also seeks a restraining order against both Feld and Tobias.
Jeff Walker, Anderson's attorney, said Tuesday that Cornaby's ruling indicates the judge found the causes of action contained in written proceedings sufficient to move the case up to the next rung on the legal ladder.
The discovery process, which usually takes several months to complete, will include both sides asking for key documents, taking depositions and seeking responses to specific questions.
"We'll get right on it at the first of the year," Walker said.
Ross "Rocky" Anderson, who is representing the SOS defendants, said he plans to file a motion for summary judgment as soon as discovery is finished.
"We'll put them to their proof," he said. "We obviously would like to get this resolved. It's a tremendous burden for my clients to have a claim for $1.2 million hanging over their heads because they wanted to preserve a little open space for their community."
SOS members were firmly opposed to Gerald Anderson's plan to develop several multistory office building on open land adjoining the Jordan River bottoms.
In addition to battling the plan when the matter came before the City Council, the group attempted to arrange for the purchase of the ground with public funds and private donations.
The developer contends SOS crossed the line by meddling in his negotiations with property owner Boyd Williams, who held a key piece of property Anderson needed to expand his project.
Tobias denies the SOS organizers did anything illegal and said she's ready for the court battle.
"I'll have to admit, I was hoping this would be over," the South Jordan woman said. "But I'm actually excited to go to discovery and make them back up their claims. . . . There are more things we want to find out."
She said that Anderson's suit has already been successful if its intent was to frighten other residents into not opposing the project.
"It has had a chilling effect and has scared a lot of people off," said Tobias, who added that she and Feld have been ostracized to some degree.
"I feel like I have a big scarlet letter -- an 'L' for lawsuit -- embroidered across my chest," she added. "But that just makes us mad and more determined to continue fighting.
"There should not be a risk to stand up for what you believe in."
Anderson Development vs. SOS
South Valley Journal
By: Shelisa Loertscher
On the legal front, in 3rd District Court, Judge Douglas L. Cornaby denied a motion to dismiss Gerald Anderson’s case against SOS, opening the way for the lawsuit to go to trial. Originally filed in March, Anderson’s suit charges Janalee Tobias and Judy Feld, SOS founders, with intentionally and unlawfully interfering in his existing and prospective economic relations in developing his RiverPark office complex. The suit requests damages totaling $1.2 million.
Gerald Anderson’s attorney Jeffrey Walker is pleased with the denial to dismiss. “From the outset Rocky Anderson (attorney for SOS) has tried to make allegations that (this suit) fails to have an adequate basis…all the speaking out they want doesn’t change the fact that when a judge was asked to determine if the filing was proper, he allowed it to continue,” he said.
The next legal step is the “discovery process,” a period where both sides pull their evidence together in preparation for a trial…something Ross “Rocky” Anderson hopes doesn’t happen. “We anticipate filing a motion for summary judgment (before it can go to trial),” he said.
Tobias believes this lawsuit is simply a way to frighten local citizens out of their right to free speech, and her attorney agrees. “This is the way some developers and their lawyers intimidate those who have opposed their project. That’s all they were doing. These are good citizens who were trying to save a beautiful piece of open space in their community, and as a result they get slapped with a lawsuit threatening to take everything that they have in the world away from them,” said Rocky Anderson.
Walker sees it differently. “This case has nothing to do with the curtailment of people’s rights to participate in the process. This case is about stepping over the lines into illegal activities. I can’t imagine they’re happy we’re suing them for illegal conduct…I think the object of the complaint is to remedy my client, who was damaged by the actions of the SOS group, specifically,” said Walker.
The suit lists Jane and John Doe 1 through 20 as defendants. Walker said that is a very common legal thing to do when the names of all those who may be involved are not known at the time of filing. He will update the suit with real names as they become available. “I do not believe they (Janalee Tobias and Judy Feld) were acting in a vacuum,” he said. Those extra spaces for names, according to Tobias, have frightened people. “The effect is to chill a community. People who were supportive of SOS before are now afraid they’ll be sued,” she said.
SOS Withdraws Petition
South Valley Journal
By: Shelisa Loertscher
A South Jordan citizen’s group SOS (acronym for Save Open Space) fought all the way to the Utah Supreme court for the right to conduct a petition drive to fight development of the Jordan River bottoms in South Jordan. Now the citizen coalition has temporarily halted that petition drive, citing a possible need to rewrite the petition.
The petition is an effort to place an initiative on the next election ballot. The initiative would seek voter support to revoke the re-zoning of river bottomland, returning it to its original agricultural designation and thwarting developer Gerald Anderson’s plans for a Class A office park in the land south of 106th South. One point in the current petition calls for city park land in the river bottoms to be returned to State Parks and Recreation control, something SOS included in an attempt to prevent a proposed land swap of the park for a piece of Anderson’s property.
According to SOS co-founder Janalee Tobias, if the State Parks board refuses to let South Jordan exchange the park for other land, then that point in the petition will be irrelevant and must be removed. “We are in the process of re-writing the petition and we’ll have to re-submit it to the city,” she said. “Once we get the petition drive underway, officially, with the new one, we’ll canvas the neighborhoods (for signatures),” Tobias said. Signatures must be submitted two months before the election, so “our deadline, unless the (South Jordan city) council decides to hold a special election in June, we don’t have to have the signatures done until August,” she said.
Tobias is confident, based on support in previous signature drives that SOS will come up with more than enough citizen support to place the initiative on the ballot this year. The parks board should rule on the park situation this month.
South Jordan’s Plans For The Riverbottoms
South Valley Journal (First ½ of Article)
By: Shelisa Loertscher
The development of an office park on the west side of the Jordan River, south of 10600 South (approved by South Jordan City) has some citizens upset over the damage to open space and wildlife habitat. Directly across the river, the City, in a cooperative agreement with state and federal agencies, is trying to buy up land that will be deeded forever to undeveloped wildlife habitat, but some citizens want to sell their land at higher development-level prices the project can’t afford. It is an interesting paradox in the struggle to decide the future of the riverbottoms in this city.
Seventeen parcels of land exist south of 10600 South and east of the Jordan River, an area of approximately 111 acres. All of this land was intended for the South Jordan Riverway Wildlife Enhancement Project when the city applied for funding from the U.S. Fish and Wildlife Service, back in 1996. The service agreed to a cooperative partnership, and granted funds of nearly $843,000 for the project from the Sharon Steel damage settlement, which the service administers. The service also granted funding to the Great Salt Lake Audubon Society’s migratory bird habitat restoration project, involving riverbottoms acreage north of 106th South, and the two projects are developing together. Tree Utah is involved, working on the restoration of native trees in the riverbottoms. In addition, the Utah Reclamation Mitigation and Conservation Commission (URMCC) became involved with both projects, adding their funds to those from Sharon Steel. The Trust for Public Lands (TPL) is facilitating the use of the funds for buying land.
Funding was awarded because South Jordan agreed to set land in the project aside, under a conservation easement, deeded and dedicated forever to wildlife, primarily migratory birds. This open space isn’t intended for recreation. People won’t be barred from entering the area, but the only trails will run along the perimeter of the area, not through it, which would interrupt habitat. The area is intended for wildlife, not for people. According to Joan Degiorgio, a natural resources planner with URMCC, “Open space is not necessarily the same as wildlife habitat. This is not a park—wildlife has different needs.”
The combined projects’ aims are to restore 270 acres of migratory bird and other wildlife habitat along the Jordan River. Last year, thanks to hundreds of volunteers, 12,000 native trees and shrubs were planted. This spring, Tree Utah is looking for 1,000 volunteers to plant 15,000 additional seedlings.
According to representatives form Tree Utah, the Jordan River is a crucial stopover for hundreds of thousands of migrating birds each season. The loss of wetland habitats and riparian zones across the West during the last hundred years makes restorations, such as these two projects, vital to the survival of hundreds of bird species, they said.
South Jordan City owns three parcels totaling approximately 40 acres in its project area, Salt Lake County owns another small parcel, and the City asked the county to convey ownership to South Jordan. According to Keith Snarr, South Jordan Economic Development Director, this ownership change is underway. A few narrow parcels abutting the river are owned by Utah State Parks and Recreation, but the remaining parcels, the majority of the land in the area, are privately held. Unfortunately, buying these other parcels has proven difficult at best. Land prices in South Jordan have shot up since 1996 when the project plan was written.
Several landowners who were amenable to selling their parcels to TPL for the project have backed off, relying on new appraisals that show a huge increased value of their land. Mark Holden, projects manager for URMCC, said the “perceived or actual market values” for the property in the area is a problem created inadvertently by South Jordan City. The council rezoned land west of the river for developer Gerald Anderson’s RiverPark office complex to a commercial classification (Commercial Freeway) and, Holden said, “that zoning has inflated surrounding properties’ perceived value,” making it extremely difficult to buy the riverbottom properties.
Snarr said, “Land in the riverbottoms was originally priced, just a couple of years ago, at around $30,000 per acre, or approximately $1 per square foot of land. Current appraisals are coming in a anywhere from $4.50 to $9 per square foot.”
Holden gave a stark view of the situation. “The new appraisals are blowing the commission (URMCC) out of the water…the reason the commission was interested in this area, and it’s one of very few, was because of the size of it,” he said. If some remedy to the inflated land prices can’t be found, Holden said the commission will have to “pack up our funds and go elsewhere” rather than pay up to $100,000 per acre for dedicated wetlands.
Money isn’t the issue for all of the landowners in the area who aren’t selling. Deloy Johnson, whose family company, Johnson Enterprises, owns one of two parcels extending south from 106th South, made his position clear at the South Jordan City Council meeting January 5. “The Johnson family is not interested in selling or transferring our property to anyone but us. We use it, it’s been in the family for four generations, and we’d like to keep it that way,” he said.
(Read the rest of this article in the South Valley Journal, March 1999 edition.)
South Jordan Development Fight Continues Over Special District
Proposal would fund infrastructure on RiverPark project near Jordan River
THE SALT LAKE TRIBUNE
Date: March 3, 1999
SOUTH JORDAN -- Hostilities ratcheted up a notch Tuesday night when city officials were confronted by an open space advocate who accused South Jordan of favoring developers over residents. This time, bitterness flowed from a proposed Special Improvement District (SID) to fund infrastructure on the controversial RiverPark office project.
SIDs are taxing entities created to meet specified needs, in this case, roads, drainage and sewer lines. They have boundaries and can levy taxes upon property owners within them.
At Tuesday's City Council session, the grassroots group Save Open Space (SOS) argued that going into debt to fund RiverPark's roads, sewers and storm drain systems is yet another example of South Jordan betraying residents to please big-bucks developers.
City officials denied the claim, saying everyone will benefit and taxes will not be raised.
RiverPark for about three years has been a hot issue in South Jordan. Developers Gerald Anderson and Mike Hutchings have survived onslaughts by residents over their project, an office park with six-story buildings on more than 100 acres along the west bank of the Jordan River between 10600 South and 11000 South.
The City Council took no action on the SID proposal after Jan Tobias, co-founder of SOS, chastised officials. Her comments raised the hackles of City Administrator Gary Chandler, who, after the council moved on to other business, took the debate with Tobias to a foyer outside City Hall's rest-rooms for another half-hour.
Neither mind was changed.
"Absolutely, this is more perks, more corporate welfare for Anderson Development," said Tobias. "It's amazing to not only me and the residents of South Jordan, but to outsiders as well when they see how the city is bending over backwards for Gerald Anderson.
"What this essentially amounts to is not only handing out a tax benefit in the form of an EDA [Economic Development Agreement] and trying to trade a prime riparian park for an old cow pasture -- now they are offering their services as a loan institution," she said. "If they are going to be the `Bank of South Jordan,' will they give me a loan?"
Chandler pointed out that the SID and EDA are totally separate issues. Approval of an EDA is a long way off. The SID, on the other hand, may be approved within weeks.
"We would create it to provide funding for the infrastructure improvements that would be owned by the city," Chandler said. "The development itself will be assessed 100 percent for repayment of the bond. Cities do it all the time."
South Jordan simply does not have the funds for the job, he said. The SID does not supplant impact fees the city will charge on the project, but they may be used to reimburse some of the costs incurred by the district.
"This way, the city provides financing at little or no risk," Chandler said.
Thursday at 9 a.m., SOS takes its fight to another front, the Utah Board of Parks and Recreation. Board Chairman Jeff Packer called for a rehearing of a land swap it approved in February that would make RiverPark a contiguous project.
The city's park property was a gift in 1983 from Utah officials to South Jordan for exclusive use as a park. In February, the board approved the trade but Packer was not satisfied the decision was fair and ordered the matter up for reconsideration.
The hearing will be at the Utah Agriculture Offices at 230 N. Redwood Road.
(c) 1999 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Tempers flare over plans for S. Jordan river park
Issue opens old wounds as critics argue in City Hall
By Donna M. Kemp Deseret News staff writer
March 3, 1999
SOUTH JORDAN -- The developer of an office park in the Jordan River bottoms shouldn't be given any more tax breaks, a critic told the City Council Tuesday night.
"I'm surprised to learn that the city granted economic development status to (developers)," argued Janalee Tobias, co-founder of the grassroots group Save Open Space.City Administrator Gary Chandler said that's not the case. He followed her outside the council's chambers to tell her she's confused the two issues.
The purpose of Tuesday's public hearing was to consider a special improvement district, which levies taxes on the development within the boundaries to pay for roads, sewer lines and other infrastructure needs.
The city acts as the bonding agent, and the development itself will be assessed 100 percent to pay off the bond, Chandler said.
The council didn't make any decisions Tuesday. And the council will consider an Economic Development Agreement at a later date, Chandler said. An Economic Development Agreement is set up to capture the tax increment for a development of an undeveloped area. The tax increment is the difference between property taxes frozen at their current value and what the property will be worth when fully developed.
For about three years SOS has fought the development.
Developer Gerald Anderson plans to build an office park with six-story buildings on more than 100 acres west of the Jordan River and south of 10600 South.
The issue brought up old wounds as Tobias and Chandler argued in a foyer outside the City Hall's bathrooms.
Tobias accused the city of not listening to concerns or protecting citizens against lawsuits by developers. Anderson sued her and other critics last year for interfering with his right to do business. The $1.2 million lawsuit is still pending in 3rd District Court.
"My life has been destroyed by this lawsuit," Tobias said. People are afraid to speak out for fear of being sued, she added.
Chandler pointed out that her group has sued the city. SOS sued when the city rejected a proposal to circulate an initiative petition that could let voters restore agricultural zoning for the project site through a ballot initiative. The Utah Supreme Court ruled that the city was wrong.
"We can't seem to get (the council's attention), so we take it to the court," Tobias said.
The fight continues Thursday when the Utah Parks and Recreation Board reconsiders a land swap it approved in February. The board approved the trade of city park property for a piece of developer's property contiguous to the river but board chairman Jeff Packer asked that decision be reconsidered since he wasn't convinced the decision was fair.
The 9 a.m. hearing will be at the Utah Agriculture Offices at 350 N. Redwood Road.
6 open-space activists team up in council bid
Group hoping to win 4 of 5 seats in S. Jordan voting
By Donna M. Kemp Deseret News staff writer
Sept. 5, 1999
SOUTH JORDAN -- Six open-space advocates want to take control of the City Council.
"We want real change," said Drew Chamberlain, an open-space advocate and council candidate who owns a copy service business. "We hope people vote for the whole team."The team is Chamberlain, Brent Foutz, Janalee Tobias, Judy Feld, Stephen Galley and Ronald Holt.
They hope to win four of the five at-large council seats in this fall's election. Voters Oct. 5 will narrow the field of 17 candidates running for office here.
Many of them are founders of Save Open Space, or SOS, a grass-roots group formed in opposition to RiverPark, an office park along the west bank of the Jordan River between 10600 South and 11000 South. Many have been sued by developers Gerald Anderson and Mike Hutchings for allegedly interfering with their business dealings.
Chamberlain, Feld and Russell Sanderson, West Valley City's finance director, are in a contest for a seat that has just a two-year term. It was a seat vacated by Gary Chandler, who resigned to become the city administrator. Eugene Finlay was appointed to fill the vacancy; he is seeking a full term.
Richard Warne is the other incumbent seeking another term. Tom Christensen and Mary Lynn Liddiard are not seeking re-election.
The SOS candidates are following a successful strategy in past elections here -- teaming up to help finance the cost of running for office.
Skip Criner's name was included on Chandler's campaign signs two years ago. (Criner is the only councilmember not up for election.) Another political duo: Warne and Liddiard.
The SOS candidates share a fundamental belief that open space must be protected. To what degree is where Holt and Galley split ranks slightly with the rest.
"I believe in the protection of open space, but not all open space needs to be a park," said Galley, an environmental consultant.
They all are critical of the council's approval of Anderson Development's RiverPark project, which calls for six-story office towers, a hotel and restaurant on a site SOS says is a pristine wildlife area.
"I think it was done heavy-handed," said Holt, a retired engineer who ran for mayor two years ago.
The team is calling for "quality growth" or "managed growth."
To Chamberlain that means not more than 2 percent growth a year. To Tobias that means no tax breaks. She cites the special improvement district created to help Anderson Development pay for infrastructure needs such as roads and sewer lines as an example.
That wasn't a tax break, Chandler explained. The special improvement district will bond for improvements, and the development will be assessed 100 percent for pay off the debt.
Another rift between SOS and city officials is over two initiative petitions that the city rejected as illegal despite signatures of some 1,900 residents.
The dispute reached the Utah Supreme Court, which ruled in favor of the city.
Yet it's just another example of the "city ignoring its citizens," said Chamberlain.
SLAPP happy: Do multimillion-dollar lawsuits aim to silence public dissent?
By Donna Kemp and Maria Titze, Deseret News staff writers
November 7, 1999
John Drabik opened his mouth about a developer's plans in Draper and got slapped.
Slapped, as with a lawsuit. And SLAPP-ed with what legal experts are calling a chilling threat to American democracy -- lawsuits aimed at people exercising their right to petition local government."If the goal was to limit my involvement in politics in Draper, this suit has already succeeded," Drabik said before turning over all other questions about the suit to his attorney.
"These are so heinous. They are intended to chill, and they do," said Penelope Canan, associate professor of sociology at the University of Denver. She coined the SLAPP acronym, which stands for "strategic lawsuits against public participation," as a way to describe a strategy often used by developers to silence their opposition.
It's a real threat to democracy, Canan said.
Nonsense, say developers and their attorneys. Their clients have every legal right to haul into court loudmouths and busybodies who raise false claims, cost developers time and money and ruin reputations.
Free speech has limitations, said Michael Hutchings, a former judge and business partner with Anderson Development, a company suing several South Jordan residents. The residents, the suit claims, tried to interfere with the company's real-estate deal. There's nothing in the First Amendment that allows them to do that, Hutchings said.
A SLAPP is generally a civil complaint, filed against individuals or organizations, arising from their communications to government on an issue of public concern.
Canan and University of Denver law professor George Pring have examined 100 SLAPPs and say they are evidence of a legal trend that has been growing since the 1980s. Their research resulted in a 1996 book "SLAPPs: Getting Sued for Speaking Out." It highlighted cases where people were being sued for circulating petitions, testifying at public hearings, writing letters to the editor and even signing an attendance sheet at meetings.
Consider these local lawsuits:
Drabik, a member of the Corner Canyon Neighborhood Association in Draper, protested a proposed residential development. The developer retaliated with a $45,000 lawsuit, plus punitive damages for defamation and interference with contracts or business.
Bonnie Callis, chairwoman of Concerned Families of Provo, testified and circulated a petition against a proposed housing plan on the benches above Seven Peaks water resort. The developer sued the city and 100 John and Jane Does for $12 million, claiming economic losses.
Janalee Tobias, Judy Feld and Brent Foutz, founders of the grass-roots group Save Open Space, petitioned against a developer's plans to put a business park along the banks of the Jordan River in South Jordan. The developer filed a $1.2 million lawsuit for business interference.
The litigation sends a message to people who oppose developers: Shut up or get sued.
Utah Supreme Court Justice I. Daniel Stewart said there are several cases in Utah that could be characterized as SLAPPs but because they are pending, he didn't want to comment.
But he previously has said he's concerned by the chilling effect that developers' lawsuits could have on public participation. Residents do have a right to voice opinions at public hearings, he said during an appeal case this summer before the state Supreme Court.
In 1991, the U.S. Supreme Court determined that SLAPPs violate the Constitution. The justices ruled that as long as a defendant's activities are aimed at influencing some government action, they are protected by the petition clause of the First Amendment.
As a result, the majority of SLAPPs get thrown out of court. But it can take years to get them dismissed and can bankrupt defendants.
Eighteen states have passed anti-SLAPP laws intended to get a quick ruling from judges on such issues. Utah isn't among them. At least not yet.
"There is clear opposition to this kind of law in the Legislature, but I'm looking at trying again next session," said Sen. Mont Evans, R-Riverton, whose bill last January died before it could make it out of committee. "There are already some laws on the books about frivolous lawsuits, and we want to make sure the law is meaningful in relationship to that."
Last time, the proposed legislation was opposed by the Utah Trial Lawyers Association.
"The concern we had initially was that the bill was too broad," said association vice president Edward Havas. "SLAPP suits are designed to be intimidating and expensive, but we don't want a new law to be used as a weapon against claims that are legitimate."
Basically, Evans' bill would make it easier for judges to dismiss lawsuits if there's no merit to them.
Havas said Evans has tweaked the language in his bill, and the association will now take a neutral position on it in the future.
But both the Legislature's Judicial Rules Review Committee and the Utah Supreme Court Subcommittee on Rules of Civil Procedure have looked at the proposal and do not endorse it.
Advocates for an anti-SLAPP bill fear lawmakers, many of whom work in real estate or who are attorneys for developers, will never pass this kind of legislation.
Drabik's attorney, Andrew Morse, says his client was only doing his duty as a member of a local neighborhood association when he opposed developer David Mast's project in Draper.
"He was a volunteer member of an advisory body, acting in that role," Morse said. "He was critiquing a land-use application. Mr. Mast didn't like the critique, and so he filed suit."
Drabik is not being sued as an employee of the city but individually as a citizen.
"Anyone would feel threatened by this," Morse said. "They want him to be naked, to be exposed, and that's the big hammer they're using. It's a way to make a person feel vulnerable."
But the city of Draper has come to Drabik's defense, agreeing to pay for his legal fees.
And Drabik is slapping back with a $2 million lawsuit of his own.
"Now I ask you who's slapping who?" Mast said.
"Our complaint is for $45,000, just a portion of the millions it's cost me to change this development. And Drabik has a $2 million counterclaim."
Mast, also a resident of Draper, had intended to develop property at Traverse Hills for years with multifamily units.
"But the city forced us to meet with the neighbors, and the neighbors were in opposition to our development," he said. "Even though the city's master plan showed this area as multifamily, the City Council passed a resolution prohibiting it. So my density went from 12 units per acre to less than four."
Mast said he lost the buyer he had for the property and is scrambling to develop the property at a minimum of its potential.
"The land I originally purchased in good faith with the city's encouragement has led to a longer and much less profitable process than I ever expected."
'It chilled us'
The Provo case involving Callis is a $12 million lawsuit filed by Seven Peaks Development Corp. against the city and 100 John and Jane Does.
Although Callis hasn't been named in the lawsuit, she and seven others have been subpoenaed.
"It chilled us," Callis said.
Callis formed a group called Concerned Families of Provo and circulated a petition to oppose a proposal that would have allowed 51 acres on the benches above Seven Peaks water resort to be developed with a mixture of single-family, duplex, four-plex, six-plex and 20-plex condominiums.
The property, zoned for public facilities, is owned by Brent and Scott McQuarrie, who also own Seven Peaks.
When the City Council denied the zone change last year, the McQuarries sued.
In South Jordan, Tobias and Feld formed SOS in response to developer Gerald Anderson's plans to build six-story office buildings along the Jordan River bottoms, south of 10600 South.
Anderson owned about 86 acres with an option to buy 30 acres from landowner Boyd Williams.
The women wanted the property preserved and tried to persuade the landowner not to sell.
Hutchings says that's illegal.
Anderson fired off a letter, warning them of that.
Feld was unimpressed. "I thought, this is so ridiculous," she said. "I have my rights."
The City Council approved the project and a land swap that traded the Williams property for city park property.
Tobias and others bitterly fought the plans, launching seven lawsuits to stop it.
"This is a battle and not fought with bomb and bullets but letters and lawsuits," Tobias said.
In turn, Anderson sued Tobias and Feld and 20 John and Jane Does, claiming they have tried to break a real-estate deal Anderson had with Williams.
Brent Foutz, another SOS advocate, later was added to the lawsuit.
Developers have subpoenaed his mental health records. The lawsuit has cost him $15,000 to defend himself -- a huge chunk of his savings and income from a disability pension.
"It tore my marriage apart," he said.
His wife and father have petitioned the court to become guardians over Foutz in an attempt to stop him from fighting the development, saying he's become obsessed by it to the point of spending $3,000 to photocopy legal documents.
Jeff Walker, who is Anderson's attorney, said the developer wanted to file what could be construed as a SLAPP suit, but his legal team talked him into staying within the narrower contract issue.
"We've tried to keep the case within the boundaries," Walker said. "We could have done a SLAPP. It's legal in Utah. But it's not appropriate."
A fundamental right
No developer interviewed for this story claimed he was filing a SLAPP suit.
Mast says he has legitimate claims of defamation against Drabik.
"And what message does it send to future developers when the city of Draper will let anybody lie about a project and defend such actions?" he said.
At least one member of the Draper neighborhood association said Mast's actions have been intimidating.
"We'd informally polled our neighbors, and they had legitimate concerns about a development. So did I," Travis Soto said. "But I was afraid if I voted against it, I would also be sued. Honestly, I was intimidated. So I voted for approval."
The only solution, says Canan, is to SLAPP-back, like Drabik has.
Businesses and their lawyers must be assured that they can be SLAPP-ed back hard with stiff judgments for filing frivolous suits, she said.
"Citizens groups around the country are suing back and winning large damage awards," Canan said. "Juries understand the value and right to participate in government and they are outraged that someone would take it away from them."
Locally, Utah's chapter of the American Civil Liberties Union is taking note of SLAPP suits, too.
"We've been following some local cases and have decided that if somebody comes to us, we'd be interested in taking (their case) on," director Carol Gnade said.
Free speech is a fundamental right, added Canan. Government can't work if its citizens are intimidated.
"If you can't speak to government without fear," she said, "then you do not have democracy."
Brent Foutz couldn't agree more.
The lawsuit has had an impact on his life -- his savings, his marriage, his reputation, Foutz said. But he keeps fighting, on principle.
"It's the same effect as if someone put a gun to your head," Foutz said.
Added Feld: "If you say one word, you're dead."
Illustration: Caption #1: Brent Foutz, Janalee Tobias and Judy Feld feed ducks in the North Fork of Midas Creek, a wetlands area that is part of Tobias' back yard in the Jordan River Estates. They fought plans to build office buildings along the Jordan River bottoms.
Credit #1: Jeffrey D. Allred, Deseret News
Credit #2: Alex Nabaum, Deseret News
Bill Would Increase the Risks for Developers Who Sue Vocal Residents
THE SALT LAKE TRIBUNE
Date: January 29, 2000
Two legislators have launched a bipartisan effort to stop lawsuits that target residents for speaking out against developments within their communities. House Bill 296 -- titled "Prevention of Retaliatory Lawsuits" -- is being drafted by Reps. Becky Lockhart,
R-Provo, and Ralph Becker, D-Salt Lake City. It is set to be introduced next week.
A similar measure failed last year. It was sponsored by Sen. R. Mont Evans, R-Riverton, who on Friday threw his support behind Lockhart and Becker. He said their measure stands a better chance coming from the House than the Senate, whose Judiciary Committee killed his bill last year.
The new bipartisan measure is intended to prevent developers from suing residents who speak out during public meetings against projects.
Such suits are called SLAPPs -- Strategic Lawsuits Against Public Participation. A handful of residents in southern and western Salt Lake County and Utah County say they have been sued by SLAPP-happy developers.
Supporters of the proposed anti-SLAPP measure believe the suits are designed to intimidate residents who do not have the financial resources to engage in a prolonged legal fight with deep-pocket developers.
"I want to give citizens some reassurance that when they express concern about the impact of projects on their communities, that they can [avoid a harassment] lawsuit," Lockhart said.
Added Becker: "Litigation or the threat of litigation should not be allowed to chill the people's right to free speech."
Proponents are taking a different tack this legislative session. HB296 would not stop developers from bringing such lawsuits. But if developers ultimately lose in court, they would have to pay the defendants' court costs, legal fees and triple damages.
Evans' bill last year sought to streamline state law by shortening the time it took such suits to be resolved. Judiciary Committee members, and many senators who are attorneys, worried that changing civil code in that manner could cause unforeseen problems in other types of cases.
(c) 2000 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Developers Can Still Sue Residents for Speaking Out
SLAPP Bill Cleared House, Died in Senate
THE SALT LAKE TRIBUNE
Date: March 4, 2000
Residents who speak out in a public meeting against a development or zoning change still can get SLAPP-ed with a suit. A Strategic Lawsuit Against Public Participation, to be exact.
House Bill 296 would have helped prevent SLAPPs, which developers sometimes use to scare off residents who publicly oppose their projects.
But the bill died without debate on the Senate floor in the waning hours of the 2000 Legislature.
"Frankly, it was stalled because leadership worried that it would get tied up in floor debate, and the clock would run out before other critical bills could be considered," said the bill's Senate sponsor, John Valentine, R-Orem.
The fact that the bill cleared the House by a 71-0 vote and made it out of the Senate's committee process was a minor miracle, supporters believe. Last year, a similar measure filed by Sen. Mont Evans, R-Riverton, was terminally tied up in a Senate committee without ever reaching the floor of either chamber.
HB296 would not have stopped lawsuits from being filed over public participation, but it would have provided a speedier court hearing so a judge could determine whether the filing was harassment or retaliation. Earlier rulings would help hold down legal costs.
If such a suit made it to trial and the plaintiff ultimately lost, the defendant could collect triple attorneys fees and out-of-pocket costs.
Valentine predicted an anti-SLAPP bill would be back next year. The House sponsor for HB296 -- Rep. Rebecca Lockhart -- agrees.
"I will spend my summer getting this bill ready for reintroduction next January," said the first-term GOP representative from Provo. "I've learned a lot of things about the process, and I've learned that the Senate is a different creature than the House. It is more difficult there [in the Senate] to get around leadership's control over a measure."
Why try again? Because some of the lawmakers have constituents -- especially in Salt Lake and Utah counties -- who say they have been targets of SLAPPs. Karen Hyer of Provo fears she may be sucked into such a suit. Two years ago, a developer sued not only two Provo City Council members who voted against a rezoning request, but also 100 John and Jane Does who spoke out against the project in a public hearing.
"I am appalled that in this state we have a situation where citizens who speak out can be targeted with lawsuits and have to pay tremendous amounts of money to defend themselves," Hyer said.
Valentine believes that with more time, a new bill could answer the objections court administrators raised about HB296.
For example, critics point out the measure originally provided an automatic appeal. It also called for triple damages for a defendant's emotional suffering. Valentine was prepared to amend those clauses this year, once the bill came up for floor debate. But it never got that far.
At least two development companies opposed HB296 in its original form. Both -- U.S. General of Draper and Anderson Development of Sandy -- have been accused of filing SLAPPs against residents to stifle opposition to their projects.
But their spokesmen deny the suits were SLAPPs.
David Mast, president of U.S. General, said his court action is against a neighborhood association official whom Mast claims knowingly misrepresented a Draper project.
"When a private citizen stands up and debates a project he or she does not want, that's one thing, and I can deal with that," Mast said. "I am an advocate of free speech, but a person should not be allowed to lie."
Former 3rd District Judge Mike Hutchings, now a private attorney and a principal in Anderson Development, says his company sued several South Jordan residents because they went beyond speaking out against a project and tried to interfere with the company's land negotiations.
The South Jordan and Draper suits remain unresolved.
"If it was a SLAPP," Hutchings said, "why didn't we name the 30 other citizens who publicly spoke out against us?"
South Jordan resident Janalee Tobias, one of the defendants in the Anderson suit, laments the demise of HB296.
"This bill would have sent a strong message to developers that you can't just sue citizens because they are going out to make their communities a better place to live."
(c) 2000 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Anti-SLAPP Measure Passes
Backers Say Free Speech Wins
THE SALT LAKE TRIBUNE
Date: March 2, 2001
In the waning moments of last year's Legislature, Rep. Becky Lockhart fumed as the session's final seconds ticked away. The Provo Republican's bipartisan bill to protect people from Strategic Lawsuits Against Public Participation, or SLAPPs, died as the clock struck midnight.
The same stalemate happened in 1999, when former Sen. Mont Evans, R-Riverton, could not get his anti-SLAPP measure to the floor.
Wednesday night was different.
House Bill 112, which supporters feared would be amended beyond recognition, sailed through the Senate -- and a few minutes later the House -- with only minor text changes.
"I feel really good," Lockhart said Thursday. "This is a First Amendment issue. I didn't run it for one specific case, but for all citizens who speak out at public meetings."
HB112 is similar to laws passed elsewhere in the nation. It is designed to protect residents who speak out against developers' projects from being sued. Some residents in Salt Lake and Utah counties say they have been targets of such suits.
One such resident, South Jordan activist Janalee Tobias, was ecstatic over the passage of Lockhart's bill. "It is such a great victory for citizens," she said. "It's one of those deals that doesn't cost the taxpayers anything, but it protects the rights of citizens who speak out."
Even Michael Hutchings, a former 3rd District judge who represents Anderson Development and has filed his share of suits over obstacles placed before his projects, endorses the measure.
"It's a good bill," he said. "The compromises were good compromises. We certainly don't support anybody engaging in SLAPP suits. We haven't done it and never will."
If signed into law, Lockhart's bill would allow defendants to ask a judge to rule early in a court case -- long before legal bills could mount -- whether there was "clear and convincing evidence" that the suit was intended simply to harass or silence opposition. The judge then could dismiss the suit and order the plaintiff to pay damages.
Amendments submitted by Sen. Terry Spencer, R-Layton, added the "clear and convincing evidence" standard and reduced the penalty from triple damages to just damages.
Without those changes, Spencer, who is an attorney, feared the bill would have been unconstitutional. "This isn't the first time we would have passed something constitutionally questionable, and I did not want it to happen with this bill," he said.
(c) 2001 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
Ex-Judge Aids Developer’s Slapp-Suit Juggernaut in Salt Lake County
Paul Swenson, Managing Editor The Voice
(Photo: Beneath a portrait of his family in formal attire, Mike Hutchings plays with scissors while cutting up his detractors.)
SOUTH JORDAN—The meandering Jordan River and its picturesque river bottoms—abundant with natural life, and the clatter of developers’ machinery and controversy—is the last thing on the mind of ex-judge and real estate legal eagle Michael Hutchings these days.
“We’ve got other fish to fry,” he shrugs, seemingly oblivious to his unfortunate choice of metaphor, since his conflict with grass roots citizens has partially centered on destruction of environmental habitat.
Hutching’s casual phrase refers to his continuing service with Anderson Development, which has sold its interest in the contentious $200 million RiverPark development here between 10600 and11400 South, but which sweeps on like a moving army of occupation as it cuts new swaths through other southwest Salt Lake County communities.
Ex-Circuit Court Judge Hutchings, 47, introduces himself as “Mike” to a reporter. His blond good looks and smoothly bland manner belie his aggressive behavior as a legal consultant for Anderson Development, where high profile land deals and Hutchings’ litigious pursuit of citizens opposed to these deals have kept his name in the news while the private man has remained in the corporate shadows.
Flamboyant developer Gerald Anderson—who sports the transparent symbol of either a black or a white ten-gallon cowboy hat, depending on his media mood—has been widely photographed and quoted over five years of controversy that has raged on the river bottoms battleground. Hutchings, meanwhile, has remained a somewhat mysterious and largely silent partner, although his antipathy for the opposition—the unlikely trio of activist Brent Foutz and housewives Jana Lee Tobias and Judy Feld, founders of Save Open Space (SOS) has occasionally surfaced publicly.
That antipathy has led Hutchings to openly suggest to a state legislator that Foutz may be untrustworthy because of mental health problems, to refer to Foutz’s alleged “marital difficulties,” and to imply that Foutz and his SOS colleague Jana Lee Tobias were having an extra-marital affair. Meanwhile, Hutchings was meeting openly with Foutz’s wife Jane to solicit her views on the river bottoms debate, a situation that led Foutz to file an unsuccessful “alienation of affection” suit.
At a time when he could comfortably hide behind the scenes, now that RiverPark’s new owners—The Argent Group, including CEO John Petersen, Dave Layton of Layton Construction, and Bill Child of R.C. Willey—are bearing the brunt of a whole slew of new difficulties for the project—Hutchings has chosen to submit to questions. Whether because of nervousness, or simply out of habit, he swivels in his office chair throughout the taped conversation, constantly playing with a pair of gray-handled scissors.
By the end of the interview, conducted in h is sleek, airy office in one of an elegant grouping of business cottages at 9537 South 700 East in Sandy, Hutchings, tosses off a revealing comment as the reporter is on his way out the door:
“I’m so glad we’re not involved with RiverPark now.”
Once called High Uinta Investment Properties, the current name for the ambitious dream of a sprawling office building complex (1.7 million square feet of commercial space)—just a stone’s throw from the Jordan River’s fragile ecosystem—is RiverPark LLC. But a series of related names is also on file with the Utah Department of Commerce, should they be needed in continuing litigation—RiverPark I, RiverPark One, RiverPark II and RiverPark Three.
“What Anderson Development does is purchase large tracts of land, gets it masterplanned and zoned for development, and then sells it to the actual builders,” Hutchings explains, making it appear as if the firm is a quasi-governmental body.
Not quite—although in South Jordan, the developer has had the advantage of a compliant city council, eager for an expanded tax base, and therefore a willing partner for its grandiose but controversial vision. In addition, Anderson Development’s coziness with local governments has extended to hiring former Riverton city administrator Ken Leetham, former Bluffdale City Attorney Gary Crane, and former South Jordan City Manager Dave Millheim to help grease the political skids in those communities.
(While Millheim was still city manager, he had admitted accompanying Gerald Anderson on an African safari, a prelude to their eventual business arrangement in which they would pursue even bigger game.)
Having washed their hands of RiverPark 18 months ago, ‘we’ve had no contact with South Jordan City,” Hutchings said, seemingly glad to distance Anderson Development from its one-time political allies, now under increasing siege.
After pursuing big projects in Bluffdale and Riverton, Anderson and Hutchings are now frying fish in a large venture west of Copper Hills High School in West Jordan.
Hutchings’ relief that the RiverPark project is no longer his and Anderson’s concern is likely fueled by recent reversals for a venture that was once thought to fait accompli, and tempered by the fact the developers’ attempts to disempower and demoralize their opponents with SLAPP (Strategic Lawsuit Against Public Participation) suits resulted in counter-suits, thousands of dollars in lawyer fees, and years of litigation still working its way through the courts.
While the stark metal frame of the first building in the RiverPark complex squats unfinished (and significantly without a single pledge tenant) on the banks of the Jordan, the new owners are having to deal with two unexpected bolts from the blue.
First was the decision of the Jordan board of Education to refuse to participate in an Economic Development Area (EDA) project that would have funneled $23 million to RiverPark over the life of the undertaking.
At a meeting of the RiverPark Economic Development Project Area Taxing Agency Committee, where public comment preceded the board’s unprecedented decision to say “no” to the proposal, South Jordan City Manager Rick Horst warned the agency that without the infusion of EDA money “there is a good possibility that the whole project (RiverPark) could go belly up.”
For the Jordan School Board, however, more convincing was the testimony of Mike Reed, newly elected as vice chairman of the taxing agency committee. He said draining public moneys through EDAs rather than fulfilling traditional expectations that the developer should bear the cost of development would eventually force citizens to “lose the ability to educate their kids.”
South Jordan Mayor Dix McMullen and City Manager Horst made the educators dig their heels in even farther by faxing a letter to the school board that noted the city might not be able to afford nearly $200,000 in school programs without “reciprocal services.” Possibly calculated as a show of political muscle, the scheme appeared to guarantee the city could kiss the hopes of EDA funds good-bye.
While city fathers and the builders of RiverPark were still absorbing this blow in early August, a second strike rattled the foundations of new construction at the site. A consortium of environmental groups, including Brent Foutz’s Jordan River Nature Center Inc. and Friends of Midas Creek Inc., asked South Jordan to issue a stop work order on the basis that the development’s parking lot intrudes 350 feet into the river’s meander corridor, a violation of a little known Salt Lake County ordinance.
Argent CEO Petersen sought to place the onus on the city by responding that the group has followed—to exact specifications—what the city has permitted. He said his firm would be “leery” of disturbing any natural life near the river.
The environmentalists’ attorney, Jennifer Crane, of Appel & Warlaumont, filed an appeal of continuing work at the site with the city’s Board of Adjustment. As the VOICE went to press, no decision had been reached.
Mike Hutchings was appointed a circuit court judge in 1983 by Gov. Scott Matheson. He had wanted to be a prosecuting attorney—“to participate in real life events that end up in court.” And for three years prior to his judgeship, he did just that.
His personal concept of fairness and justice that he says he developed on the bench “has its basis in personal accountability,” he told the VOICE. “We must be held accountable for our choices, including those that are socially unacceptable.”
While still on the bench, Hutchings began serving as a legal consultant to Anderson Development part-time, and in 1999 joined the firm full-time, having decided that he had made his contribution to the judiciary after 16 years of service. He left the bench, he said, to grasp “the marvelous and intriguing opportunities in real estate.”
He couches his real estate service in effusive and high flown phrases, indicating it has brought him “more satisfaction than I thought it would. We have been engaged in high profile fights regarding high density housing and moderate income housing. There are a lot of great people, such as schoolteachers, firemen and police officers who can’t find affordable housing. They are excluded from our communities—especially in the South Valley. I am satisfied that despite resistance and barriers, we have helped add more housing diversity.”
Hutchings does not perceive that his business techniques have been in any way socially unacceptable, nor does he detect any tension between his values of personal accountability and fairness and his dogged pursuit in court of private citizens fighting for their rights to participate in the political process.
In March, 1998, Anderson Development filed a lawsuit seeking $1.2 million in damages from Jana Lee Tobias, Judy Feld and Save Open Space (SOS), plus “Jane and John Does, 1 through 20,” referring to unnamed supporters of Feld and Tobias.
At the time, Tobias refused to supply the names of supporters, saying “I’m not going to permit a developer to turn our neighbors against each other. The buck stops with me and Judy.”
Gerald Anderson denied that Hutchings was a party to the lawsuit. Tobias called the claim “malarkey,” contending that the judge had been present at every public hearing on project.
Ross (Rocky) Anderson, the pro bono attorney for Feld and Tobias (who would later become Salt Lake City Mayor); the Utah Chapter of the American Civil Liberties Union (ACLU) and Utah State Sen. Mont Evans, R-Riverton, among others, referred to the suit as a typical SLAPP action, contending that its purpose was to silence SOS and other resistors at public meetings and chill opposition to the project.
Gerald Anderson and Hutchings contend that this was not a SLAPP suit, but was instead aimed at preventing SOS from interfering in their business practices by pressuring landowner Boyd Williams to break his earnest money agreement with Anderson Development and sell to another buyer the last parcel the developer needed for RiverPark.
(Tobias and Feld argue they did nothing of the kind. During a three-month period after Anderson’s Development’s option to buy had expired, Feld and Tobias were encouraged by the South Jordan city council to try and find a buyer. Margaret Eadington of Trust for Public Lands flew out from San Francisco to bargain with Williams, but he eventually decided to sell to Anderson).
Although Brent Foutz was not included in the action against Feld and Tobias, Hutchings asserts that he was “unhappy” he was left out of the suit and demanded at a South Jordan public meeting that he be included as a defendant.
“There are some mental health issues with Brent, you know,” Hutchings told the VOICE, calling such concerns “troubling.”
At this point in the interview, Hutchings was questioned about whether he had ever publicly mocked Brent Foutz’s manic depression, an illness that afflicts thousands of Americans, and which Foutz has not attempted to hide.
“No” was his direct and unequivocal reply.
But Mont Evans tells the VOICE a far different story. Evans had a least three interactions with Hutchings, one involving a Sunday meeting on Father’s Day, 1999, at Rocky Anderson’s law office, in which he was attempting to facilitate a settlement between Foutz and SOS on one side and Anderson Development on the other.
“As a member of the Senate, I was trying to help my constituents, one of them being Foutz, in resolving issues regarding the SLAPP lawsuit,” Evans says.
“In a telephone conversation with Mr. Hutchings, I listened to him rehearse the alleged mental incapacity of Mr. Foutz and the purposed marital problems between Mr. and Mrs. Foutz. He also raised questions of alleged sexual behavior between the people that Anderson Development was suing (i.e., that Foutz may have been carrying on an affair with Jana Lee Tobias),” Evans said.
“I told him it was not appropriate and was not part of my role to listen to these accusations,” Evans said. “Stories about mental illness and marital problems are quite frankly none of my business.”
Evans has had his own experience with a threatened SLAPP suit from Anderson Development, which may explain his frankness.
“Last time they came to Riverton with a high density housing proposal, I testified before the city council. I was immediately subpoenaed with a series of interrogatories; they were looking for something to sue me on. I had to get an attorney to get it thrown out. This is abhorrent in a Democratic society—I exercise my First Amendment Rights, I speak my mind at city council, and all of a sudden I’m a party to a lawsuit. These are not honorable people.”
Evans made clear he was speaking on the record to the VOICE.
Jana Lee Tobias, who takes a right wing position on such issues as gun control and opposition to light rail while championing environmental causes, is an anomaly, all on her own. Teamed with liberal activist Brent Foutz, the pair are curious compatriots.
“If we hadn’t come together to try to save the river bottoms, Jana Lee and I would have never been acquainted, let alone been friends,” Foutz says. “I do the detail work and give her the bullets and she fires them. We’ve cost Hutchings millions of dollars.”
They both take jolly fun in the absurdity that someone would imply that they are lovers, although they are not amused that anyone of high principle would spread the story.
As Hutchings spoke to the VOICE, he made occasional veiled references to Tobias, labeling her, for example, as “a real maverick,” who frequently blabs to the press. “There are some real interesting Jana Lee Tobias stories out there,” he offered, vaguely. “You may wish to keep in mind the context as you do your research.”
Referring to Foutz, Tobias and SOS co-founder Judy Feld, Hutchings charged that “they’re generally looking for a cause. They go from one cause to another,” he said.
“I don’t think their motivations are pure. They want to call attention to themselves. They are reckless with the facts.”
As an example, Hutchings cited litigation brought against him by Foutz and South Jordan resident Drew Chamberlain, “alleging that I was responsible for cows grazing on a city park. They did this without bothering to research the facts. I didn’t own the cows and had nothing to do with any decision to allow them on the park. The suit was dismissed at some expense and aggravation to me,” Hutchings said. “That’s an example of being reckless with the facts.”
Foutz responds that his non-lawyerly approach to the suit was perhaps “clumsy, but not frivolous,” in contending that the grazing was a violation of a conservation easement. The charge was made just as the deed for the land was transferred to Hutchings and Anderson Development, Foutz said.
As construction continues at the RiverPark site, where workers seem oblivious to the possibility of a stop-work order, squirrels, snakes, roadrunners, deer, white-faced ibis, foxes and a variety of additional wildlife play amid the cattails of the adjacent wetlands.
“Yet these people want to pave paradise and put up a parking lot,” Tobias says. “But the river belongs to everybody, upstream and downstream. We’re trying to preserve something beautiful for those who haven’t got enough money to go to Lake Powell. You shouldn’t have to be a millionaire to enjoy nature.”
Although forced to be somewhat subdued over a period by the threat of more lawsuits, Tobias says, “it will be a cold day in hell before I ever bow down and kiss the feet of people trying to stifle my constitutional rights.”
Meanwhile, after a series of failed attempts to get the river bottoms issue on the ballot, Foutz is thinking about planning another ballot initiative that would require the city to exercise its option on the land and transform it to open space.
Without tenants for its first building, Argent has to be worried that Zions Bank will call in its $8 million loan, Foutz said. The land under RiverPark is now some of the most expensive in the state, $300,000 an acre or more. Argent is paying $1,400 a day interest (half a million a year). Without the EDA money, the project may be deep in doubt without a foreseeable way to get out. “With 120 acres encumbered with $8 million of debt, no one may be willing to buy a parcel should Argent want to sell.”
Although some people think Foutz has lost everything—his life savings, his home and his marriage—he hasn’t lost his courage. “I haven’t given up my right to free speech,” he said.
Open-space activists drained by ongoing legal battles.
by Katharine Biele
Salt Lake City Weekly
City Beat - July 8, 2004
courtesy of: Fred Hayes
Little guy didn't win, after all: Janalee Tobias,
There was a time when Janalee Tobias hailed a new day, a “great victory” for citizen rights. As the final bell tolled on the 2001 Legislature, the state passed its first anti-SLAPP suit law.
The law was meant to discourage “Strategic Lawsuits Against Public Participation,” or lawsuits that retaliate against people who tend to speak out in public forums. And it was a case involving Tobias and her friend, Judy Feld, that to all appearances had motivated lawmakers to take action.
What has happened since is anything but a great victory for Tobias and Feld. They’ve been systematically disparaged as housewives intent on the media spotlight. Both say they are chronically depressed and have developed a variety of physical maladies. We won’t even mention the amount of money they owe.
“It would have been better to cut my tongue out so I wouldn’t talk than voluntarily give up my rights,” Tobias says. “I always thought you should stand up for what you believe in, but I haven’t had free speech for eight years.”
Eight years despite a public perception that the little guy won. But in the world of litigation, winning is just an appeal away, and public opinion has little, if anything, to do with outcome. Despite a so-called anti-SLAPP suit law, Tobias and Feld are in the midst of an appeal to the Utah Supreme Court over a Utah judge’s dismissal of their claim that they were “SLAPPed.”
To the average citizen, it’s all about technicalities, but to the players, it’s about the principle. “Here’s the concept,” says Jeffrey N. Walker, attorney for Anderson Development of Sandy, owned by developers Gerald Anderson and Mike Hutchings who have threatened and sued Tobias and Feld. “They want to claim the high ground on this, but their actions belie the standing they seek.”
High ground or low, it has to do with former open space in South Jordan, where the two women live and where Anderson wanted to rezone for a 2-million-square-foot office development back in 1996. Tobias and Feld actively opposed the rezoning of the river bottom and “sent letters, requested studies, met with the governor and public officials, distributed flyers and spoke at public hearings before the City Planning Commission and City Council,” according to court documents.
And, you say, so? In 1998, Anderson sued the women and their environmental organization, Save Our South Jordan River Valley (SOS). Anderson has never changed its contentions, says Walker. “That they were a shill in the marketplace and created the false impression that they had hundreds of thousands in donations and were intricately aligned with statewide groups willing to pay more money; that they were trying to get landowners to breach contracts, specifically the Williamses (river bottom landowners), and in the end, they did succeed, thus requiring Anderson to pay to the Williamses significantly more than they would have otherwise.”
SOS lost every battle. Then it lost its pro bono attorney, Rocky Anderson, who ran for Salt Lake City mayor. In 1999, with ally Brent Foutz acting as SOS’s pro-se or citizen lawyer, the Supreme Court ruled it was OK for South Jordan to deny their petitions, one of which sought to overturn the city’s approval of the zoning change. That was a big defeat.
And it might have been the end, except that Tobias and Feld became involved in an effort to change the law and continued to oppose the developer’s efforts elsewhere. The anti-SLAPP law, which failed in ’99, passed two years later with bipartisan support that allied far-right and ultra-liberal groups.
These suits, according to the ACLU, are a “relatively new litigation strategy used by large companies to silence their critics who exercise their First Amendment rights by speaking out at public meetings, circulating neighborhood petitions or talking to the press about their concerns. Generally, these types of lawsuits ask for enormous sums of money, and many citizens choose to cease their activist work rather than hire defense attorneys and risk having to pay millions of dollars in damages.”
The hitch is that the Utah law isn’t retroactive. But the defendants were actually thinking there was no timeframe on the First Amendment. Wrong. “They claim that comments they made should have been protected, but the legal issue was to whether their statements were privileged,” says Walker. “Only those attributable to the governmental process are protected.”
Resting among the Supreme Court documents is a “confidential” settlement offer which would have kept the women from speaking to the media, from opposing or participating in any discussion about the Anderson development and from encouraging any participation related to the development, among other things.
“It’s easier to go with the mainstream,” says Tobias. “I don’t want to get people afraid to speak out, but these types of lawsuits are prevalent.”
Walker, however, believes it was unethical for Tobias and Feld to release the offer, since it was never negotiated. “We made a significant, ongoing, concerted effort, and Janalee and Judy have rebuffed all of them,” he says.
Even Walker, however, acknowledges the toll it’s taken on the women. “At the very least, we’ve all had some sympathy toward the cost, time and emotion and effort it takes to continue litigation,” he says.
Court filings have characterized Tobias as a radical extremist and media hog. They have detailed the various political and social groups she belongs to, from a play group called the Red Hot Mamas to Women Against Gun Control. In an all-day deposition, Tobias had to recount many aspects of her personal life, including embarrassing details of an apparent infatuation with her by Foutz. Foutz unsuccessfully sued developer Hutchings for alienation of affections.
This is all because she claimed emotional distress, says Walker. “I might have been able to ask the questions nicer, softer. ... I don’t know, but they had to be asked. It’s part of the consequence of bringing those types of claims. You put at issue your entire emotional being,” Walker says.
Much more is being brought up to the Supreme Court, and there is no telling how the court will rule. Walker claims it’s all unnecessary, because the women will lose, no matter what. The case will go to trial, either with or without their counterclaims against Anderson.
This case, though, has moved beyond loss or even victory. The development is a fait accompli, and Anderson long ago sold it to another developer. There seems to be a legal point to be made. Or bludgeoned. And Tobias and Feld are the live sacrifices. Walker says he just doesn’t get it, doesn’t understand what they can do now and why they continue.
“I cannot let these people take away my rights and continue to do this to other people,” says Feld. Even though they will.
Split decision from top court in developer vs. S. Jordan residents
Jordan River complex: Anderson Development sued two women in '98 who filed a counteraction
The Salt Lake Tribune
Date: June 15, 2005
The latest round in the seven-year legal brawl between a heavyweight developer and citizen challengers could leave both sides looking for a way out. A $1.7 million lawsuit, filed in 1998 by Anderson Development Co. against South Jordan residents Janalee Tobias and Judy Feld, alleges they attempted to derail the construction of a large office complex on Jordan River bottomland.
The pair filed a counteraction, calling the developer's action a SLAPP suit -- the acronym for Strategic Lawsuit Against Public Participation.
The Utah Supreme Court handed down a split decision Tuesday, stripping Anderson of two of three claims -- including those covered under Utah's 2001 SLAPP Act.
But the justices also upheld a lower court's decision to dismiss part of counterclaim brought by Tobias and Feld that alleges "intentional and negligent infliction of emotional distress."
The pair's attorney, Douglas Parry, claimed victory after reading the decision.
"I think we won -- big time," he said.
But Michael Hutchings, who represents Anderson, vowed to fight on.
"This is not a victory for them. We believe the Supreme Court has clarified the law."
Still to be considered in Judge Douglas Cornaby's 3rd District Court is Anderson's claim that Tobias and Feld used "improper means to intentionally interfere with its potential economic relations" with a South Jordan landowner.
The development firm alleged in its lawsuit that Tobias and Feld urged owners of land along the Jordan River to breach a real estate purchase contract with Anderson so the land could be preserved as open space.
In addition, the proposed rezoning of the land was delayed because Tobias and Feld, among others, protested to the South Jordan City Council, according to Anderson's argument. The real estate contract lapsed, and when Anderson renegotiated the deal, the price tag had gone up $175,000.
But the high court cautioned that Anderson's claim was narrow.
"The mere fact that the price for the property under the second real estate purchase contract was higher than the price under the first contract does not establish that [it] caused Anderson damages," wrote Justice Jill Parrish.
Also to be determined in district court is Tobias' and Feld's SLAPP Act counterclaim and abuse-of-process claim that, if successful, together could result in awards for legal fees and punitive damages.
Parry said the ruling gives Tobias and Feld the upper hand going back to district court -- or sitting down to negotiate a settlement.
"The significance of the justices leaving in the SLAPP suit is to let everyone know you can't bully a little person anymore," Parry said. "It has to do with Constitutional rights. To be able to address government for redress without being punished."
But Hutchings said dozens of South Jordan residents objected to the river-bottom office complex and were not sued. He called Tobias and Feld "brazen activists."
"We've never had anybody before or after try to violate a contract with Anderson."
Nonetheless, Hutchings said the development firm continues to be open to a settlement.
(c) 2005 The Salt Lake Tribune. All rights reserved. Reproduced with the permission of Media NewsGroup, Inc. by NewsBank, Inc.
High court says suit may be illegal SLAPP
But justices allow the developer to pursue 1 of 3 claims in case
By Doug Smeath
Deseret Morning News
Friday, June 17, 2005
A lawsuit challenging two South Jordan residents who are fighting a commercial development in the Jordan River bottoms may be an illegal "strategic lawsuit against public participation" — a SLAPP suit — the state Supreme Court ruled this week.
The ongoing lawsuit, filed in 1998 by Anderson Development Co. against South Jordan residents Janalee Tobias and Judy Feld, accuses the two of overstepping their rights in their attempts to stop the proposed RiverPark Business Park. The ruling retains one of Anderson's three claims of intentional interference with economic relations against Tobias and Feld, leaving the lower court to decide whether Tobias and Feld went too far in trying to stop the commercial development.
Among other accusations, the lawsuit says Tobias and Feld interfered with Anderson's contract to buy land necessary for the project.
That contract said Anderson would buy the land if, by a certain date, the South Jordan City Council approved a zoning change that would allow Anderson to use the land for its business park. But Tobias and Feld persuaded the council to deny that zoning change by saying they were trying to raise money to buy the land themselves and preserve it as open space.
Because of the council's decision, the contract expired. A later contract was agreed on, but because of various offers to buy the land for open-space preservation, the new contract set the purchase price $175,000 higher.
The lawsuit is ongoing, but the high court agreed to consider several interim decisions made by 3rd District Judge Douglas Cornaby, including decisions to drop Tobias and Feld's SLAPP Act claims and their claims that in filing the suit Anderson intentionally or negligently inflicted emotional distress on them and that the lawsuit was an abuse of the legal process.
The justices ruled that the lower court should not have dropped the pair's SLAPP Act claim based on the fact that the suit was filed before the state Legislature passed the SLAPP Act. The ruling said the fact that the company continued its lawsuit after the SLAPP Act passed allows Tobias and Feld to argue that Anderson was simply using the suit to prevent their participation in the governmental process.
If the lower court determines Anderson violated the SLAPP Act, Tobias and Feld could be awarded attorneys' fees and damages, but the Supreme Court stressed that if that happens, the monetary award "will be limited to those (costs) incurred after the passage of the (SLAPP Act). To hold otherwise would result in a retroactive application of the statute, a prohibited result."
The justices agreed with Cornaby's decision to dismiss the intentional and negligent infliction of emotional distress claims but said Tobias and Feld should still be allowed to argue Anderson's suit was an abuse of the legal process.
IN THE SUPREME COURT OF THE STATE OF UTAH
This opinion is subject to revision before final publication in the Pacific Reporter.
Anderson Development Company, L.C., a Utah limited liability company,
Plaintiff and Appellee,
Janalee S. Tobias, an individual,Judy Feld, an individual; Save
Our South Jordan River Valley, Inc., a Utah corporation, dba
SOS and Save Open Spaces; Brent Foutz; and Jane and John Does
1 through 20, inclusive,
Defendants and Appellants.
Nos. 20030469, 20030690
F I L E D
June 14, 2005
2005 UT 36
Third District, Salt Lake
The Honorable Douglas R. Cornaby
Attorneys: D. Miles Holman, Jeffrey N. Walker, Peter C.
Schofield, Sandy, for appellee
Dale F. Gardiner, Douglas J. Parry, Jennie B. Garner,
Salt Lake City, for appellants
¶1 This appeal arises from a dispute over a proposed commercial development near the Jordan River. When defendants Janalee Tobias and Judy Feld ("Tobias and Feld") formed an entity to organize opposition to the development, the developer, Anderson Development Company ("ADC"), filed suit for intentional interference with economic relations. Tobias and Feld, in turn, filed multiple counterclaims. After the district court entered several orders adverse to Tobias and Feld, they sought permission to pursue two interlocutory appeals, which we granted. For reasons detailed below, we reverse in part and affirm in part.
¶2 In 1996, ADC initiated efforts to develop a commercial project near the Jordan River known as the RiverPark Business Park. To secure the site for the proposed development, ADC began entering into real estate purchase contracts with owners of property located along the Jordan River. In October 1996, ADC entered into one such contract with Boyd and Dorothy Williams (the "Williamses"). Under its contract with the Williamses, ADC's purchase obligation was subject to several contingencies, including the "[s]uccessful completion of . . . masterplanning and zoning" amendments, which, if not satisfied or waived by ADC by June 30, 1997, would result in the expiration of the contract. In accordance with these terms, ADC filed, as agent of the Williamses, an application for a master plan and zoning change with South Jordan City.
¶3 Tobias and Feld, residents of South Jordan City, strongly opposed ADC's proposed development and actively protested against any zoning change, urging the City and its residents to "Save our South Jordan River Valley." As part of their opposition, Tobias and Feld voiced their concerns both to the property owners who had entered into real estate purchase contracts with ADC and to the South Jordan City Council ("City Council"), the entity responsible for acting on ADC's zoning application.
¶4 Tobias and Feld's active opposition to the project began shortly after they received notice that South Jordan's Planning and Zoning Commission ("Commission") would consider ADC's zoning application during a meeting scheduled for November 20, 1996. On November 18, 1996, Tobias and Feld met with other South Jordan City residents to strategize regarding how best to squelch ADC's proposed zoning application and to form an organization known as "SOS," or "Save our South Jordan River Valley," to actively oppose the development. Two days later, Tobias, Feld, and other like-minded residents of South Jordan attended the Commission's meeting to express their opposition to the proposed zoning changes. The meeting lasted several hours, and many of the nearly ninety residents who attended the meeting addressed ADC's development project. At the conclusion of the meeting, the Commission voted on ADC's application. The vote was split, with two members of the Commission voting in favor of the zoning change and two opposing the change. Consequently, the Commission sent the matter to the City Council for the purpose of taking public comment.
¶5 To prepare for the City Council meeting, Tobias, Feld, and other SOS members distributed fliers to South Jordan residents to raise awareness of, and encourage opposition to, the project. Additionally, they voiced their concerns to the offices of several politicians, including that of then-Governor Michael Leavitt, and to several representatives of organizations dedicated to the preservation of open space, including Wendy Fisher of Utah Open Lands. Tobias and Feld also met with other South Jordan City residents, including the Williamses, to discuss alternatives to the proposed development. ADC alleges that, during these meetings with the Williamses, Tobias and Feld repeatedly urged the Williamses to breach their real estate purchase contract with ADC.
¶6 On the day of the scheduled City Council meeting, December 17, 1996, Tobias and Feld received a letter from ADC, stating, in part:
We recognize that you have rights to speak out about this project. However, your rights are not without limit. Your efforts to interfere with our contractual relationships and with an effort to delay our due process at South Jordan City clearly extend beyond the limits of the law. We will respect your rights but will insist that you respect our rights also. Any effort by you or anyone else to interfere with any [of] our rights may subject each person involved to the possibility of litigation and the payment of damages. Damages literally could be in the millions of dollars.
¶7 Despite ADC's warning, Tobias and Feld attended the City Council meeting, where they, along with other members of SOS, protested the proposed development. At the conclusion of the meeting, the City Council decided to delay any vote on ADC's application until a subcommittee could review the issues and provide a recommendation.
¶8 On April 28, 1997, on the recommendation of the City Administrator, the City Council voted to approve ADC's application for a zoning change for all properties that ADC had under contract, with the exception of the Williamses' property. The City Council postponed any zoning decision on the Williamses' property, due, in part, to Tobias and Feld's request for additional time to raise funds to purchase that land. As a result, the City Council failed to act on the zoning changes for the Williamses' property by June 30, 1997, the date specified in the real estate purchase agreement for meeting the zoning contingency. Because ADC elected not to waive the zoning contingency, its real estate purchase contract with the Williamses expired.
¶9 After the expiration of the real estate purchase contract, Tobias and Feld informed the Williamses that they had undertaken efforts to raise funds to purchase the land so that it could be preserved as open space. As a result of these efforts, the Williamses received several inquiries regarding the possible purchase of their land. One such inquiry was from Wendy Fisher of Utah Open Lands. Other "expressions of interest" came from Jim Davis, a representative of the Trust for Public Lands, and Salt Lake County Commissioners Randy Horiuchi and Brent Overson.
¶10 Despite these "expressions of interest," the Williamses received no written offers to purchase their land. The only offer they received was an oral one from Ms. Fisher, on behalf of Utah Open Lands, to match any offer made by ADC. The Williamses continued to negotiate with ADC and, on November 25, 1997, entered into a second real estate purchase contract with ADC. This contract, like the first, was conditioned on a successful zoning change. However, the Williamses used the expressions of interest in their land as leverage to successfully negotiate a contract with ADC that was more favorable to them than the first. Specifically, the second contract increased the purchase price by more than $175,000 and contained additional restrictions on the land, including use restrictions, a restriction on the height of any buildings to be constructed, and a ten-foot right-of-way. ADC asserts that these changes increased its cost by more than $1,000,000.
¶11 After entering into the second real estate purchase contract with the Williamses, ADC assigned its interest in the contract to LakeView Farms with the understanding that ADC would share in the profits derived from the purchase of the land. The City Council voted to approve ADC's zoning application with respect to the Williamses' property on March 11, 1998, and the sale of the property closed on April 17, 1998.
¶12 On March 17, 1998, ADC filed suit against Tobias, Feld, SOS, and others,(1) alleging that they had intentionally interfered with ADC's prospective economic relations and existing contractual relations. ADC's complaint alleged two causes of action against Tobias and Feld. In its first cause of action, ADC asserted that Tobias and Feld used improper means to intentionally interfere with its potential economic relations by falsely representing to the Williamses that they could sell their land for a price higher than that offered by ADC if they sold to an individual or organization willing to preserve the land's open space. In its second cause of action, ADC alleged that Tobias and Feld "wilfully and recklessly contacted [the Williamses] in attempts to induce [them] to not sell the Subject Property" to ADC while the first real estate purchase contract was in effect, thereby interfering with ADC's existing contractual relations. Additionally, ADC constructively amended its complaint through subsequent motions, as discussed below, to plead a third cause of action. In this cause of action, ADC claimed that Tobias and Feld intentionally interfered with its existing economic relations by petitioning the City Council to delay the zoning decision on the Williamses' property so that Tobias and Feld would have time to seek funding to purchase the land themselves and that this delay resulted in the expiration of ADC's first contract with the Williamses. On the basis of these alleged wrongdoings, ADC petitioned the district court to enjoin Tobias and Feld from any further interference with its contractual and economic relations.
¶13 On April 21, 1998, Tobias and Feld filed a motion to dismiss ADC's claims, which the district court denied. On June 10, 1999, ADC filed an amended complaint, which restated its original claims with few exceptions. The litigation then languished. After more than two years of inaction, the district court notified the parties that ADC's complaint would be dismissed unless ADC filed a certificate of readiness for trial within twenty days. ADC complied with this requirement on October 12, 2001. Thereafter, Tobias and Feld moved for summary judgment on ADC's claims and sought leave to file a counterclaim. ADC responded with a cross-motion for summary judgment on its claims against Tobias and Feld.
¶14 The district court denied the cross-motions for summary judgment on May 28, 2002, but granted Tobias and Feld's motion for leave to plead a counterclaim. On July 2, 2002, Tobias and Feld filed multiple counterclaims against ADC, including a counterclaim pursuant to section 78-58-105 of the Utah Code (the "SLAPP Act counterclaim"),(2) as well as counterclaims for wrongful civil proceedings, intentional and negligent infliction of emotional distress, abuse of process, attorney fees for filing a meritless claim in bad faith, and punitive damages. On November 26, 2002, ADC moved for summary judgment on the SLAPP Act counterclaim, arguing that the Act did not apply retroactively to ADC's actions. On December 16, 2002, ADC moved to dismiss the remaining common law counterclaims.
¶15 On January 27, 2003, the district court heard argument on ADC's motion for summary judgment on the SLAPP Act counterclaim and on its motion to dismiss the common law counterclaims. The district court ruled in favor of ADC, granting its motion for summary judgment on the SLAPP Act counterclaim and its motion to dismiss the counterclaims for intentional and negligent infliction of emotional distress, wrongful civil proceedings, and punitive damages. It ruled against ADC, however, on its motion to dismiss the counterclaims for abuse of process and attorney fees. The district court entered an order memorializing these rulings on March 10, 2003, but subsequently struck the order, referring the matter to mediation.
¶16 When mediation between the parties failed, the district court entered a substitute order granting ADC's motion for summary judgment on the SLAPP Act counterclaim. As had the original order, the substituted order also granted ADC's motion to dismiss the counterclaims for wrongful civil proceedings, intentional and negligent infliction of emotional distress, and punitive damages and denied ADC's motion to dismiss the counterclaims for abuse of process and attorney fees. Tobias and Feld filed a timely petition to appeal this interlocutory order, which we granted.
¶17 After the January 27, 2003 hearing, when the district court announced that it would deny ADC's motion to dismiss Tobias and Feld's abuse of process counterclaim, ADC filed a separate motion for summary judgment directed to that claim. During this same period, Tobias and Feld again moved for summary judgment on ADC's claims for intentional interference with economic relations. The district court resolved both motions on August 4, 2003, granting ADC's motion for summary judgment on the abuse of process counterclaim and denying Tobias and Feld's motion for summary judgment on ADC's intentional interference with economic relations claims. Tobias and Feld also sought permission to seek an interlocutory appeal of this order, which we granted. Thereafter, we consolidated the two interlocutory appeals into the present case.
¶18 In this appeal, we decide whether the district court erred when it (1) denied Tobias and Feld's motion for summary judgment on ADC's claims of intentional interference with economic relations, (2) granted ADC's motion for summary judgment on Tobias and Feld's SLAPP Act counterclaim, (3) dismissed Tobias and Feld's intentional and negligent infliction of emotional distress counterclaims, (4) granted ADC's motion for summary judgment on Tobias and Feld's abuse of process counterclaim, and (5) dismissed Tobias and Feld's counterclaim for punitive damages. We discuss each issue in turn.
I. ADC'S CLAIM FOR INTENTIONAL
INTERFERENCE WITH ECONOMIC RELATIONS
¶19 We first address ADC's claim against Tobias and Feld for intentional interference with economic relations. The district court denied Tobias and Feld's motion for summary judgment on this claim, ruling that ADC had "set forth facts . . . sufficient to preclude summary judgment." Summary judgment is appropriate "when the evidence 'shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Progressive Cas. Ins. Co. v. Dalgleish, 2002 UT 59, ¶ 11, 52 P.3d 1142 (quoting Utah R. Civ. P. 56(c)). "When reviewing a district court's denial of summary judgment, we grant no deference to the district court's legal conclusions and review them for correctness." Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2003 UT 43, ¶ 14, 79 P.3d 922.
¶20 A claim for intentional interference with economic relations "protects both existing contractual relationships and prospective relationships of economic advantage not yet reduced to a formal contract." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 200 (Utah 1991). To succeed on such a claim, a plaintiff must demonstrate that "(1) . . . the defendant intentionally interfered with the plaintiff's existing or potential economic relations, (2) for an improper purpose or by improper means, (3) causing injury to the plaintiff." Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982). With respect to the second element, only one alternative, either improper purpose or improper means, need be established; a plaintiff need not prove both. See id. at 307. To establish the first alternative, improper purpose, it is not enough to show that the defendant was motivated by ill will toward the plaintiff. See id. Rather, the plaintiff must show that the defendant's "predominant purpose was to injure the plaintiff." Id. To establish the second alternative, improper means, a plaintiff must show "that the defendant's means of interference were contrary to statutory, regulatory, or common law or violated an established standard of a trade or profession." Pratt v. Prodata, Inc., 885 P.2d 786, 787 (Utah 1994) (internal quotations omitted).
¶21 ADC asserts that Tobias and Feld used improper means to tortiously interfere with its economic relations when they (1) urged the Williamses to breach the first real estate purchase contract, (2) convinced the City Council to delay the zoning application for the Williamses' property until after the expiration of the first real estate purchase contract, and (3) artificially inflated the purchase price of the property in the second real estate purchase contract by misrepresenting their ability to either purchase the property themselves or secure a buyer willing and able to do so. We discuss each claim in turn.(3)
A. Did Tobias and Feld Intentionally Interfere
with ADC's Economic Relations When They Contacted
the Williamses During the Term of the First Contract?
¶22 Tobias and Feld contend that the district court erred in denying their motion for summary judgment on ADC's first intentional interference with economic relations claim because the alleged conduct did not result in any injury to ADC. We agree.
¶23 To successfully defend against a motion for summary judgment, the nonmoving party must set forth facts "'sufficient to establish the existence of an element essential to that party's case.'" Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct. App. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Failure to do so with regard to any of the essential elements of that party's claim will result in a conclusion that the moving party "is entitled to a judgment as a matter of law." Id. at 420; see also Celotex, 477 U.S. at 322-23 ("In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." (quoting Fed. R. Civ. P. 56(c))).
¶24 Although a claim of intentional interference with economic relations is comprised of three elements, we address only the element of injury because it is dispositive. ADC's allegations that Tobias and Feld repeatedly urged the Williamses to breach the first contract are immaterial because it is uncontested that the Williamses did not breach that contract. Rather, the contract expired because the City Council refused to approve ADC's application for a zoning change by the deadline specified in the contract, a condition precedent to ADC's obligation to perform that ADC elected not to waive. Consequently, ADC was not injured as a result of Tobias and Feld's alleged urging that the Williamses breach their contract with ADC. Because ADC cannot establish injury, the district court erred in denying Tobias and Feld's motion for summary judgment on ADC's first claim of intentional interference.
B. Did Tobias and Feld Intentionally Interfere
with ADC's Economic Relations by Urging the
City Council to Deny ADC's Zoning Application?
¶25 ADC's second claim for intentional interference is based on Tobias and Feld's efforts to derail ADC's zoning change application, which was before the City Council. Tobias and Feld argue that the district court erred when it denied their motion for summary judgment on this claim because their petitions to the City Council were privileged under the First Amendment of the United States Constitution and the Noerr-Pennington Doctrine. Although ADC failed to plead this claim in its original or amended complaint, both parties addressed this issue on the merits in the summary judgment proceedings, and it was included in the scope of the petition for interlocutory appeal. Consequently, we deem ADC's complaint "to be constructively amended to include" this claim. Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084, 1087 (2d Cir. 1993).
¶26 The First Amendment to the United States Constitution guarantees citizens the right to "petition the Government for a redress of grievances." U.S. Const. amend. I. In recognition of this right, the United States Supreme Court has held that individuals and organizations are immune from liability under antitrust laws for actions constituting petitions to the government. See United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961). Over the years, courts have extended this immunity doctrine, referred to as the Noerr-Pennington Doctrine, see R.A.V. v. City of St. Paul, 505 U.S. 377, 420 (1992), to "protect . . . political activity against tort claims as well as antitrust claims," Searle v. Johnson, 646 P.2d 682, 684 (Utah 1982).
¶27 An exception to this immunity doctrine exists for actions constituting a "sham." See City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991). "A 'sham' situation involves a defendant whose activities are not genuinely aimed at procuring favorable government action at all, not one who genuinely seeks to achieve his governmental result, but does so through improper means." Id. (internal quotations and citations omitted). Therefore, under the "sham" exception, an individual will be liable if he "use[s] the governmental process--as opposed to the outcome of that process--as [a] . . . weapon." Id.
¶28 ADC has failed to allege any facts that would bring Tobias and Feld's actions within the "sham" exception to the Noerr-Pennington Doctrine. ADC has not alleged that Tobias and Feld's petitions to the City Council were designed solely to harass ADC. To the contrary, it is uncontested that Tobias and Feld's petitions to the City Council were genuinely designed to achieve their desired outcome--the denial of ADC's zoning application. Even if, as ADC alleges, Tobias and Feld misrepresented to the City Council their ability to raise funds to purchase the land, the use of that "improper means" would not be sufficient to except Tobias and Feld from the immunity provided under the Noerr-Pennington Doctrine in light of their uncontested intent to achieve a favorable governmental result. See Omni, 499 U.S. at 380. Because Tobias and Feld's actions in petitioning the City Council fall under the Noerr-Pennington Doctrine, the district court erred when it denied their motion for summary judgment on this claim.
C. Did Tobias and Feld Intentionally Interfere
with ADC's Economic Relations by Misrepresenting
Their Ability to Raise Funds or Find a Willing and
Able Buyer to Purchase the Williamses' Property?
¶29 In its third claim of intentional interference, ADC alleges that Tobias and Feld intentionally interfered with its economic relations by misrepresenting to the Williamses their ability to purchase the property themselves or to secure a buyer willing and able to do so. ADC asserts that those misrepresentations were improper and therefore satisfy its obligation to establish the element of interference by improper means or for an improper purpose. Additionally, ADC contends that those misrepresentations enabled the Williamses to extract a higher purchase price for the property than would have been possible otherwise, thereby damaging ADC. As such, ADC claims that the district court properly denied Tobias and Feld's motion for summary judgment.
¶30 Tobias and Feld disagree, arguing that the district court erred when it denied their motion for summary judgment on this claim because ADC cannot establish that they made any misrepresentations to the Williamses or that ADC was, in fact, damaged by any such misrepresentations. In so arguing, Tobias and Feld rely on the undisputed fact that Wendy Fisher, an individual they contacted, offered to purchase the property. They assert that this fact renders ADC incapable of demonstrating that they utilized improper means to interfere with the development project. Additionally, Tobias and Feld argue that none of the alleged misrepresentations were the actual and proximate cause of any damages sustained by ADC. Consequently, Tobias and Feld claim that summary judgment was appropriate on this claim.
¶31 When reviewing a district court's grant or denial of a motion for summary judgment, we view the facts in "a light most favorable to the party opposing the motion." Billings v. Union Bankers Ins. Co., 819 P.2d 803, 803 (Utah 1991); see also Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 324 n.1 (Utah 1992) ("[A] reviewing court should recite the facts in the light most favorable to the nonmoving party."). Applying that standard here, we conclude that ADC set forth sufficient facts to withstand summary judgment on its third claim for intentional interference.
¶32 As to the first element, ADC has identified facts suggesting that Tobias and Feld intentionally interfered with ADC's potential economic relations when they contacted the Williamses in an attempt to encourage them to preserve their land as open space. As to the second element, improper means, ADC produced evidence that Tobias and Feld represented to the Williamses that they had received a written offer to purchase the property. While there is evidence that Tobias and Feld actively worked to raise funds and to secure a buyer so that the property could be preserved as open space, there is no evidence that they ever received a written offer to purchase the property. Accordingly, the Williamses' sworn statements that Tobias and Feld misrepresented the fruits of their labor are sufficient to create a genuine issue of material fact with respect to the improper means element of their claim. See Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975) ("[I]t only takes one sworn statement under oath to dispute the averments on the other side of the controversy and create an issue of fact.").
¶33 We next turn to the third element, the issue of damages. To state a claim for interference, ADC has the obligation of pleading that Tobias and Feld's interference by improper means actually injured ADC. Accordingly, to withstand summary judgment, ADC would need to present evidence that the ultimate purchase price for the Williamses' property was higher than it would have been absent Tobias and Feld's alleged misrepresentations. Although the evidence in support of this element is thin, we conclude that it is nevertheless sufficient to withstand summary judgment. Specifically, Boyd Williams testified that the price for the second real estate purchase contract was higher than the first because he concluded that "if ADC didn't pay this higher price [then] I could get this much from [Tobias] and [Feld] or their contacts." This testimony gives rise to the inference that the alleged misrepresentations resulted in ADC paying more for the property than it otherwise would have. Accordingly, we conclude that ADC identified a sufficient factual basis to avoid summary judgment on the element of damages.
¶34 Although we agree with the district court that ADC identified sufficient facts to withstand summary judgment on this claim, a note of caution is appropriate with respect to the applicable measure of damages. The damages ADC may recover under this claim are limited to those it incurred as a direct result of Tobias and Feld's alleged misrepresentations to the Williamses regarding the existence of the written offer to purchase the property. The mere fact that the price for the property under the second real estate purchase contract was higher than the price under the first contract does not establish that the alleged misrepresentations caused ADC's damages. Indeed, it may be that the fair market value of the property increased during the period of time that elapsed between the negotiation of the first and second contracts. It also may be that the Williamses were able to secure a higher price in the second contract because of the numerous legitimate expressions of interest in the property they received after the expiration of the first contract. If such is the case, the increased purchase price is not the result of the alleged misrepresentations made by Tobias and Feld with respect to the existence of the written offer, but rather, the result of market forces that came into play when ADC allowed the first real estate purchase contract to lapse. If so, ADC would not be able to recover damages for the higher purchase price under this claim.
II. TOBIAS AND FELD'S SLAPP ACT COUNTERCLAIM
¶35 We next consider Tobias and Feld's SLAPP Act counterclaim. The district court granted ADC's motion for summary judgment on the SLAPP Act counterclaim, holding that the SLAPP Act did not apply to ADC's suit against Tobias and Feld, which had commenced some three years before the Act's enactment. As we noted above, summary judgment is appropriate "when the evidence 'shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Progressive Cas. Ins. Co. v. Dalgleish, 2002 UT 59, ¶ 11, 52 P.3d 1142 (quoting Utah R. Civ. P. 56(c)). In reviewing a grant of summary judgment, "we review the lower court's legal conclusions for correctness." Id.
¶36 The Utah Legislature enacted the Citizen Participation in Government Act ("SLAPP Act"), sections 78-58-101 to -105 of the Utah Code, in 2001. Prevention of Retaliatory Lawsuits Act, ch. 163, 2001 Utah Laws 823, 823. Section 78-58-103 provides:
(1) A defendant in an action who believes that the action is primarily based on, relates to, or is in response to an act of the defendant while participating in the process of government and is done primarily to harass the defendant, may file:
(a) an answer supported by an affidavit of the defendant detailing his belief that the action is designed to prevent, interfere with, or chill public participation in the process of government, and specifying in detail the conduct asserted to be the participation in the process of government believed to give rise to the complaint; and
(b) a motion for judgment on the pleadings in accordance with the Utah Rules of Civil Procedure Rule 12(c).
Utah Code Ann. § 78-58-103(1) (2002).
¶37 Additionally, section 78-58-104 of the SLAPP Act provides that, once a party files a motion for judgment on the pleadings, "the trial court shall hear and determine the motion as expeditiously as possible with the moving party providing by clear and convincing evidence that the primary reason for the filing of the complaint was to interfere with the first amendment right of the defendant." Id. § 78-58-104(1)(b). If the district court finds "that the primary purpose of the action is to prevent, interfere with, or chill the moving party's proper participation in the process of government," it "shall grant the motion and dismiss the action." Id. § 78-58-104(2).
¶38 The last section of the SLAPP Act, section 78-58-105, provides as follows:
(1) A defendant in an action involving public participation in the process of government may maintain an action, claim, cross-claim, or counterclaim to recover:
(a) costs and reasonable attorney's fees, upon a demonstration that the action involving public participation in the process of government was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law; and
(b) other compensatory damages upon an additional demonstration that the action involving public participation in the process of government was commenced or continued for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of rights granted under the First Amendment to the U.S. Constitution.
(2) Nothing in this section shall affect or preclude the right of any party to any recovery otherwise authorized by law.
Id. § 78-58-105.
¶39 ADC advances five arguments in support of the district court's decision to grant its motion for summary judgment on the SLAPP Act counterclaim. First, ADC argues that the individual sections of the SLAPP Act are dependent upon each other, thereby limiting a party's ability to bring a claim or counterclaim under section 78-58-105 to those instances where the party has established a claim under sections 78-58-103 and -104. Second, ADC argues that the SLAPP Act is inapplicable here because its lawsuit against Tobias and Feld was filed prior to the enactment of the Act. Third, ADC argues that Tobias and Feld's claims must fail because ADC's lawsuit had a substantial basis in fact and law. Fourth, ADC claims the SLAPP Act is inapplicable because Tobias and Feld's activities, which are the subject of ADC's lawsuit, did not "involve the governmental process." Finally, ADC asserts that the counterclaim violates its constitutional rights, including the constitutional prohibition against unlawful bills of attainder. We address each argument in turn.
¶40 We first address ADC's argument that Tobias and Feld are precluded from bringing a counterclaim under section 78-58-105 of the SLAPP Act because they failed to comply with the requirements of sections 78-58-103 and -104. "[W]hen deciding questions of statutory interpretation, we do not look to language in isolation. Rather, we look first to the statute's plain language, in relation to the statute as a whole, to determine its meaning." Calhoun v. State Farm Mut. Auto. Ins. Co., 2004 UT 56, ¶ 18, 96 P.3d 916. "[O]ur primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve." State v. Burns, 2000 UT 56, ¶ 25, 4 P.3d 795. Only if we conclude that the statutory language is ambiguous do we "look to legislative history and other policy considerations for guidance." ExxonMobil Corp. v. State Tax Comm'n, 2003 UT 53, ¶ 14, 86 P.3d 706.
¶41 The unambiguous language of the SLAPP Act contemplates two distinct remedies for an individual who is improperly sued for participating in the process of government. The first remedy is specified in sections 78-58-103 and -104. Under those sections, a defendant may defend against the action by filing a motion for judgment on the pleadings, which the district court must grant if it concludes that there is clear and convincing evidence "that the primary purpose of the action is to prevent, interfere with, or chill the moving party's proper participation in the process of government." Utah Code Ann. § 78-58-104(2). Alternatively, the defendant may bring a separate cause of action for damages against the original complainant. This second alternative, specified by section 78-58-105 of the SLAPP Act, is distinct from the alternative specified by sections 78-58-103 and -104.
¶42 We recognize that section 78-58-103 is entitled "Applicability" and that section 78-58-104 is entitled "Procedures," providing some support for ADC's argument that a claim brought under section 78-58-105 must first satisfy the rigors of sections 78-58-103 and -104. Nevertheless, "a statute's title is not part of its text and cannot be used as a tool of statutory construction unless the statute's language is ambiguous." Stephens v. Bonneville Travel, 935 P.2d 518, 521-22 (Utah 1997).
¶43 The language in sections 78-58-103 and -104 is not ambiguous. Those sections clearly specify the procedural requirements for succeeding on a motion for judgment on the pleadings, and there is no indication that an individual must obtain a judgment on the pleadings pursuant to sections 78-58-103 and -104 before bringing a cause of action under section 78-58-105. Indeed, section 78-58-105 contains no reference at all to the prior sections of the SLAPP Act. We therefore hold that section 78-58-105 unambiguously provides a remedy independent from that provided by sections 78-58-103 and -104 for all actions "commenced or continued" under the conditions described in subsections 78-58-105(1)(a) and (b) and that a targeted individual is not required to comply with sections 78-58-103 and -104 before proceeding under section 78-58-105.
¶44 We further hold that a targeted individual is not required to prove a claim or counterclaim brought pursuant to section 78-58-105 by the burden of proof specified in section 78-58-104. The clear and convincing standard articulated in section 78-58-104 is applicable only to a motion for judgment on the pleadings brought under that section. Individuals asserting a claim or counterclaim under section 78-58-105 must meet the typical burden of proof applicable to civil actions generally, a preponderance of the evidence, and whether a targeted individual satisfies the elements of subsections 78-58-105(1)(a) and (b) by that standard is a question of fact to be determined by the factfinder.
¶45 In its second argument, ADC argues that the district court properly granted summary judgment in its favor on the SLAPP Act counterclaim because the SLAPP Act was not intended to be applied retroactively and because ADC did nothing to inhibit the exercise of Tobias and Feld's First Amendment rights after the Act was enacted. We agree that the SLAPP Act cannot operate retroactively because the legislature did not expressly provide for such operation. See Goebel v. Salt Lake City S. R.R., 2004 UT 80, ¶ 39, 104 P.3d 1185 (noting that a statute affecting substantive rights "is not to be applied retroactively unless the statute expressly declares that it operates retroactively"). Nevertheless, we conclude that ADC may still be subject to liability under a prospective application of the SLAPP Act. Indeed, the SLAPP Act provides that a targeted individual may recover fees and costs if he is able to demonstrate that a complaint was "commenced or continued without a substantial basis in fact and law." Utah Code Ann. § 78-58-105(1)(a) (emphasis added). It also provides that a party may recover compensatory damages if, in addition to demonstrating that an original complaint was brought without substantial basis in fact and law, he is able to prove by a preponderance of the evidence that the action was "commenced or continued for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of rights granted under the First Amendment." Id. § 78-58-105(1)(b) (emphasis added).
¶46 When construing statutes, we "assume that each term included in the [statute] was used advisedly." Carrier v. Salt Lake County, 2004 UT 98, ¶ 30, 104 P.3d 1208. The legislature's explicit use of the phrase "commenced or continued" demonstrates its unmistakable intent to subject a party to liability under the SLAPP Act if that party either commenced or continued to pursue a proscribed lawsuit after the effective date of the Act. Although ADC initially filed its suit against Tobias and Feld before the passage of the SLAPP Act, it continued its lawsuit after the Act became effective. Consequently, the district court erred in holding that Tobias and Feld could not maintain their counterclaim under the SLAPP Act.
¶47 Moreover, because the statute includes harassment, intimidation, and punishment in its list of proscribed purposes, a party may be liable for commencing or continuing a lawsuit even if the suit was not brought solely to inhibit the targeted individual's exercise of First Amendment rights. Because Tobias and Feld's counterclaim alleges that ADC continued the lawsuit for the purpose of punishing Tobias and Feld for their opposition to the zoning change, we hold that they have pled a cognizable claim under section 78-58-105.
¶48 We pause to note, however, that if Tobias and Feld are ultimately successful on their SLAPP Act counterclaim, the costs, fees, and damages recoverable under section 78-58-105 will be limited to those incurred after the passage of the Act. To hold otherwise would result in a retroactive application of the statute, a prohibited result. See Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261 (Utah 1998) ("A long-standing rule of statutory construction is that we do not apply retroactively legislative enactments that alter substantive law or affect vested rights unless the legislature has clearly expressed that intention.").
¶49 In its third argument, ADC asserts that we should uphold the summary dismissal of the SLAPP Act counterclaim because ADC's lawsuit against Tobias and Feld had a substantial basis in fact and law, as evidenced by the district court's refusal to dismiss the lawsuit on summary judgment. We are unpersuaded. Because dismissal of a claim based on either a motion to dismiss or a motion for summary judgment denies the nonmoving party of the right to litigate his claim on the merits, the threshold for surviving such a motion is relatively low. See Buckner v. Kennard, 2004 UT 78, ¶ 9, 99 P.3d 842 ("Only if it is clear that the claimant is not entitled to relief under any state of facts that could be proven to support the claim should a motion to dismiss be granted."); Staker v. Ainsworth, 785 P.2d 417, 429 (Utah 1990) ("To successfully oppose a motion for summary judgment, it is not necessary for the party to prove its legal theory. Indeed, it only requires one sworn statement to dispute the claims on the other side of the controversy and create an issue of fact." (footnote omitted)). Meeting this threshold does not equate to a demonstration that the claims are supported by a substantial basis in fact and law. Accordingly, Tobias and Feld may properly pursue their cause of action under section 78-58-105 despite the fact that ADC's claim against them for intentional interference with economic relations survived a motion to dismiss and motions for summary judgment.
¶50 In its fourth argument, ADC contends it was entitled to summary judgment on the SLAPP Act counterclaim because its lawsuit against Tobias and Feld was directed at activities not materially related to participation in the process of government. We disagree. Tobias and Feld have alleged that ADC sued them because of their vocal opposition to ADC's zoning application, which was before the City Council. This is sufficient to establish the element of participation in the process of government, and Tobias and Feld accordingly satisfied the requirements for pleading a cognizable claim under section 78-58-105.
¶51 Finally, ADC claims that any application of the SLAPP Act to its conduct would violate the Utah Constitution, including the prohibition against bills of attainder, the open courts clause, the prohibition against impairing the obligation of contracts, and the separation of powers provision. "A bill of attainder is one which imposes guilt, and inflicts punishment, upon an identifiable individual or group without judicial process." Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1147 (Utah 1981). Applying this definition, we conclude that the SLAPP Act does not constitute an unlawful bill of attainder because it does not impose guilt on ADC without judicial process, but instead merely proscribes "a certain act, and provides civil . . . remedies for a violation thereof." Id.
¶52 As to ADC's remaining constitutional claims, we decline to address them because ADC has failed to adequately brief them. See Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 74, 73 P.3d 334 ("For the court to consider a state constitutional claim, a litigant must at least define the nature of that protection and provide some argument as to how legal precedent supports its position."). Accordingly, we move to Tobias and Feld's emotional distress counterclaims.
III. TOBIAS AND FELD'S INFLICTION OF EMOTIONAL
¶53 We next consider whether the district court erred when it granted ADC's motion to dismiss Tobias and Feld's counterclaims for intentional and negligent infliction of emotional distress. In reviewing a district court's decision to grant a motion to dismiss a counterclaim under rule 12(b)(6) of the Utah Rules of Civil Procedure, "we accept the factual allegations in the [counterclaim] as true and consider them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party." Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 38, 54 P.3d 1054 (internal quotations omitted). "Because the propriety of a 12(b)(6) dismissal is a question of law, we give the [district] court's ruling no deference and review it under a correctness standard." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991).
¶54 In dismissing Tobias and Feld's counterclaims for both intentional and negligent infliction of emotional distress, the district court reasoned that none of ADC's alleged conduct "rose to [the] level" of "extreme or outrageous or intolerable conduct." Although the district court erroneously applied the element of outrageous conduct to the counterclaim for negligent infliction of emotional distress, we nevertheless uphold the dismissal of both claims because Tobias and Feld have failed to plead facts sufficient to satisfy the elements of either claim.
A. Intentional Infliction of Emotional Distress
¶55 To state a claim for intentional infliction of emotional distress, a party must plead facts indicating that the defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.
Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58, 70 P.3d 17 (internal quotations omitted). A mere "allegation of improper filing of a lawsuit or the use of legal process against an individual" does not state a claim for outrageous or intolerable conduct and, as such, "is not redressable by a cause of action for intentional infliction of emotional distress." Id. at ¶ 66.
¶56 Tobias and Feld's counterclaim against ADC for intentional infliction of emotional distress is based solely on ADC's initiation and continuation of the lawsuit against them. As stated above, without more, neither the filing of a lawsuit nor the improper use of the legal process is sufficient to support a claim for intentional infliction of emotional distress. Accordingly, Tobias and Feld failed to state a claim for intentional infliction of emotional distress upon which relief can be granted, see Utah R. Civ. P. 12(b)(6), and the district court properly granted ADC's motion to dismiss that claim.
B. Negligent Infliction of Emotional Distress
¶57 Unlike a claim for intentional infliction of emotional distress, a claim for negligent infliction of emotional distress does not require proof of outrageous conduct. Rather,
[i]f the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and
(b) from facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm.
Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67, 69 (Utah 1998) (quoting Restatement (Second) of Torts § 313 (1965)).
¶58 As was the case with their claim for intentional infliction of emotional distress, Tobias and Feld based their claim for negligent infliction of emotional distress on ADC's filing and continuation of the lawsuit against them. Whether the act of either filing an improper lawsuit or abusing the legal process is sufficient, without more, to support a claim for negligent infliction of emotional distress is an issue of first impression in this court. In resolving this issue, we first examine the repertoire of claims available to plaintiffs seeking to remedy abusive litigation and then assess whether the tort of negligent infliction should be added to that repertoire.
¶59 As discussed below, we have previously recognized narrowly defined causes of action for wrongful civil proceedings and abuse of process. See Gilbert v. Ince, 1999 UT 65, ¶¶ 17, 19, 981 P.2d 841. We acknowledge, however, as have other jurisdictions, that these torts have "the potential to impose an undue 'chilling effect' on the ordinary citizen's willingness to . . . bring a civil dispute to court, and, as a consequence, the tort[s] ha[ve] traditionally been regarded as . . . disfavored cause[s] of action." Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501-02 (Cal. 1989); see also Dawley v. La Puerta Architectural Antiques, 62 P.3d 1271, 1275 (N.M. Ct. App. 2002) ("[T]he tort of malicious abuse of process must be construed narrowly to protect the right of access to the courts."); Butera v. Boucher, 798 A.2d 340, 354 (R.I. 2002) ("[T]his Court has viewed abuse-of-process actions with disfavor because they tend to deter the prosecution of crimes and/or to chill free access to the courts." (internal quotations omitted)); Schmit v. Klumpyan, 663 N.W.2d 331, 336 (Wis. Ct. App. 2003) ("Because of its potential chilling effect on the right of access to the courts, the tort of abuse of process is disfavored and must be narrowly construed to insure the individual a fair opportunity to present his or her claim."). Accordingly, we have ensured that "the elements of the tort[s] [are] carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent" abuse of process or wrongful civil proceeding claim. Sheldon Appel, 765 P.2d at 502.(4)
¶60 It is against this backdrop that we consider whether to recognize a claim for negligent infliction of emotional distress based solely upon the filing of an improper lawsuit. We conclude that it is unnecessary and, in fact, would be ill-advised. It is unnecessary because a plaintiff seeking redress for the filing of such a lawsuit can file a claim for abuse of process or wrongful use of civil proceedings and receive substantially the same recovery. It is ill-advised in light of the tension between the public policy advanced by recognizing such a cause of action and the contrary policy favoring free access to the courts. We see no wisdom in increasing the potential number of torts by which a plaintiff may seek to recover for the same allegedly improper conduct and are concerned that recognizing suits for negligent infliction of emotional distress based solely on the filing of an improper lawsuit may, in fact, chill the filing of meritorious suits. Cf. Nairon v. Land, 529 S.E.2d 390, 392 (Ga. Ct. App. 2000) (rejecting the invitation to extend the tort of negligent infliction of emotional distress to instances of improper use of the legal process based on a concern that it would upset the balance between free access to the courts and the need for a remedy for serious abuse of process); Fischer v. Maloney, 373 N.E.2d 1215, 1217 (N.Y. 1978) ("[I]t may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability, here malicious prosecution and abuse of process."). Finally, we conclude it would be incongruent to recognize a cause of action for negligent infliction of emotional distress based solely on the filing of an improper lawsuit when, as discussed above, we have declined to recognize a cause of action for intentional infliction of emotional distress based on the same conduct.
¶61 In short, we hold that allegations of abusive litigation, without more, cannot support a claim for negligent infliction of emotional distress. Because Tobias and Feld have failed to allege any facts beyond ADC's use, or abuse, of the legal process, they have failed to state a cause of action for negligent infliction of emotional distress. Consequently, we hold that the district court properly dismissed their counterclaim for negligent infliction of emotional distress.
IV. TOBIAS AND FELD'S ABUSE OF PROCESS COUNTERCLAIM
¶62 The district court granted ADC's motion for summary judgment on Tobias and Feld's abuse of process counterclaim, ruling, in part, that their failure to succeed on either their motion to dismiss or their motions for summary judgment was fatal to their claim for abuse of process. When reviewing a district court's grant of summary judgment, "we give no deference to the district court's legal decisions and review them for correctness." Fericks v. Lucy Ann Soffe Trust, 2004 UT 85, ¶ 10, 100 P.3d 1200.
¶63 Confusion surrounding the term "abuse of process" is not uncommon inasmuch as it is often "employ[ed] . . . as a catch-all description of any private misuse of judicial resources." Gilbert v. Ince, 1999 UT 65, ¶ 17, 981 P.2d 841.(5) To resolve this confusion, we previously outlined the distinctions between a claim for abuse of process and a claim for wrongful civil proceedings, declaring that abuse of process "applies to 'one who uses a legal process . . . against another primarily to accomplish a purpose for which it is not designed.'" Id. (quoting Restatement (Second) of Torts § 682 (1965) (omission in original)). In contrast, a claim for wrongful use of civil proceedings "consists in instituting or maintaining civil proceedings for an improper purpose and without a justifiable basis." Id. at ¶ 19.
¶64 On the basis of this distinction, we reiterate today that a party asserting a claim for wrongful use of civil proceedings must demonstrate that (1) the actor initiating the prior proceeding acted "'without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim'"; and (2) "'except when they are ex parte, the [prior] proceedings . . . terminated in favor of the person against whom they [were] brought.'" Id. (quoting Restatement (Second) of Torts § 674).
¶65 In contrast, to establish a claim for abuse of process, a claimant must demonstrate "'[f]irst, an ulterior purpose; [and] second, an act in the use of the process not proper in the regular prosecution of the proceedings.'" Hatch v. Davis, 2004 UT App 378, ¶ 34, 102 P.3d 774 (quoting Kool v. Lee, 134 P. 906, 909 (Utah 1913) (further internal quotations omitted)). Unlike a plaintiff asserting a claim for wrongful civil proceedings, a plaintiff in an abuse of process claim is not required to establish that the prior proceeding terminated in his favor or that the proceeding lacked probable cause. Id.
¶66 In this case, the district court dismissed Tobias and Feld's abuse of process counterclaim at least in part on the ground that they had yet to prevail in the lawsuit filed by ADC. In so doing, the district court erred, applying the standard for a wrongful civil proceeding claim to the abuse of process counterclaim. We therefore remand this issue to the district court to determine whether summary judgment was appropriate in light of the legal principles articulated above.
V. PUNITIVE DAMAGES
¶67 The last issue we address is whether the district court erred when it granted ADC's motion to dismiss Tobias and Feld's counterclaim for punitive damages. As stated above, "[b]ecause the propriety of a 12(b)(6) dismissal is a question of law, we give the [district] court's ruling no deference and review it under a correctness standard." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991).
¶68 Section 78-18-1 of the Utah Code provides as follows:
Except as otherwise provided by statute, punitive damages may be awarded only if compensatory or general damages are awarded and it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.
Utah Code Ann. § 78-18-1(1)(a) (2002). Because the SLAPP Act provides only for recovery of attorney fees, costs, and compensatory damages, Tobias and Feld are not able to seek punitive damages under that statute. They may, however, seek punitive damages under section 78-18-1 if they are ultimately successful in bringing and proving their abuse of process counterclaim. Accordingly, we remand to the district court the issue of whether Tobias and Feld may seek punitive damages to be resolved concurrently with the resolution of their counterclaim for abuse of process.
¶69 In conclusion, we hold that the district court erred in denying Tobias and Feld's motion for summary judgment on ADC's first and second claims for intentional interference with economic relations because ADC was unable to establish facts sufficient to satisfy an essential element of each claim and Tobias and Feld's actions in petitioning the City Council fall under the Noerr-Pennington Doctrine. We affirm the district court's denial of summary judgment on ADC's third intentional interference with economic relations claim because ADC established a genuine issue of disputed material fact.
¶70 With respect to Tobias and Feld's counterclaims, we hold that the district court erred in granting ADC's motion for summary judgment on Tobias and Feld's SLAPP Act counterclaim because Tobias and Feld pled a cognizable claim under section 78-58-105 when they alleged that ADC continued, after enactment of the SLAPP Act, to pursue its lawsuit against them in order to punish them for their opposition to its zoning application. However, we hold that the district court did not err in granting ADC's motion to dismiss Tobias and Feld's counterclaims for intentional and negligent infliction of emotional distress because they failed to allege an element essential to both claims. Finally, we remand to the district court for resolution, in light of this opinion, ADC's motion for summary judgment on Tobias and Feld's abuse of process counterclaim and their claim for punitive damages.
¶71 Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish's opinion.
1. During the course of the proceedings, all defendants other than Tobias and Feld either were dismissed from the action or did not join in Tobias and Feld's petitions for interlocutory appeal and therefore are not parties to this appeal.
2. The legislature enacted sections 78-58-101 to -105 of the Utah Code (the "SLAPP Act") in 2001 to counteract strategic lawsuits against public participation.
3. Tobias and Feld contend that their motion for summary judgment should have been granted with respect to all of ADC's claims for intentional interference with economic relations because ADC's memorandum in opposition to Tobias and Feld's motion for summary judgment failed to "specifically controvert" each of the numbered facts set forth in Tobias and Feld's memorandum in support of their motion for summary judgment, as required by rule 4-501(2)(B) of the Utah Rules of Judicial Administration, as it existed in 2002. However, district courts have "'discretion in requiring compliance with rule 4-501.'" Gary Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 10, 101 P.3d 371 (quoting Fennell v. Green, 2003 UT App 291, ¶ 9, 77 P.3d 339). While the district court could have granted Tobias and Feld's motion for summary judgment on the basis of ADC's noncompliance with rule 4-501, it exercised its discretion to address the motion on its merits, and we are unpursuaded that doing so constituted an abuse of that discretion.
4. ADC may argue that this narrow view of such torts conflicts with the legislature's policy choice to render parties liable under the SLAPP Act for the filing of abusive litigation. See supra ¶ 41. We see no such conflict because the cause of action created by the SLAPP Act is narrowly defined and is limited to those lawsuits filed primarily to harass the defendant and interfere with public participation in the governmental process.
5. For example, in Amica Mutual Insurance Co. v. Schettler, 768 P.2d 950, 959 (Utah Ct. App. 1989), the court of appeals held that, to state a claim for abuse of process, the plaintiff was required to demonstrate that the prior proceeding brought against him terminated in his favor. However, under close examination, it is clear that the court employed the term "abuse of process" when, in reality, it was discussing a tort for wrongful civil proceedings. See Gilbert, 1999 UT 65 at ¶¶ 17-19 (discussing the elements of abuse of process and wrongful civil proceedings).