ST. GEORGE — The developer of a planned mix of short-term and long-term residences on 113 acres won a motion to be added as a defendant in a case between a group of Ivins residents and their city.
In a Tuesday afternoon hearing at the 5th District Courthouse in St. George, Judge Keith Barnes ruled that developer Rize Capital, which plans to build “The Retreat” residential and commercial lots on the “SITLA 120” Ivins property owned by the Utah School and Institutional Trust Lands Administration, is entitled to join in as a defendant in an appeal filed by a group of Ivins residents to overturn a 3-2 vote that took place at the Ivins City Council’s Sept. 1 meeting that rezoned the land in favor of the developer.
Along with the motion for Rize Capital to intervene in the case, Barnes also rejected a motion by the residents’ group, Defenders of Greater Ivins (DOGI), to have a stay in the rezoning while it is appeal.
Rize Capital, which refers to itself as EWD LLC in court documents, argued in court that its interests in the case were not being adequately represented.
“We may have similar interests to the city but we are not part of the case,” attorney Jeff Miles, who represents Rize, argued in court.
Every seat in the courtroom was filled, almost entirely of DOGI members and supporters. Audio was piped into a nearby conference room for more people who were not able to be in the courtroom that was at its 75-person capacity.
Attorney Justin Heideman, arguing for DOGI and other plaintiffs in the case, said Rize shouldn’t have the motion granted because it was not on the original application for the zone change and that only Jerry Miyahara was listed as the applicant. Miyahara, chief operating officer of Rize, didn’t appear to show any emotion during the argument as he sat with CEO Scott Stowall.
Barnes said that based on Utah Civil Procedure rules, Rize had to prove that its motion to intervene was timely, the action affected them and a ruling against the city would impede their interest.
“After receiving argument, the court finds EWD has established these elements,” Barnes ruled. “The EWD motion is granted.”
Walking out of court, Stowall and Miles each declined to comment.
“I don’t comment on pending litigation,” Miles said.
DOGI and the plaintiffs are arguing that the council didn’t follow proper procedure when a motion by council member Adel Murphy to approve the rezoning was initially rejected, then resubmitted by Murphy again and approved. The plaintiffs argue the rezoning should be reversed because they say Ivins city code doesn’t allow the same council member to make the same motion twice and once it was rejected it couldn’t be reconsidered for a year.
Along with the procedure, DOGI members say they are opposed to the project because of its inclusion of short-term rentals. Rize said it has made compromises, including lowering the number of short-term rentals on the property and putting in a low-density “buffer zone” between the rentals and other homes and properties.
While being on the overruled end of both motions, Heideman told St. George News after the hearing that both the judge, Miles and attorney Bryan Pattison, representing Ivins City in court, all agreed that the appeal would be decided on existing evidence including video of the Sept. 1 Ivins Council meeting.
“We received today what we were hoping to, and that is an acknowledgment that the evidence is already in,” Heideman said. “So their motion allows them to sit at the counsel table. It allows them to file a legal argument. But candidly, the legal argument is what it is. And there’s not a lot of precedent in the state of Utah on this issue.”
During the hearing, Heideman said to Barnes that when all three parties return to court – a date he said is likely to be in February – they will be “making law” with an unprecedented case as to if a city’s residents can reverse a city council’s decision if proper procedure wasn’t followed.
“We can’t find another case where a city has done what a city has done here on so many levels. This court is going to be making law for the first time,” Heideman argued in court. “The court is going to set precedent that will be looked at in the future.”
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