Who decides the future of Salt Lake City land use? That’s up to the Utah Supreme Court
The area at I-80 near 7200 West where the Utah Inland Port is planned to be built in Salt Lake City is pictured on Monday, Jan. 27, 2020. The Utah Supreme Court decision in the lawsuit between Salt Lake City and the Utah Inland Port Authority will set a major precedent for what powers cities across the state do — or don’t — have regarding land use or taxing authority. | Steve Griffin, Deseret News
Outcome of Utah Inland Port Authority lawsuit won’t just decide fate of port, but set statewide precedent for city powers
And now, we wait.
The Utah Supreme Court on Wednesday heard oral arguments in the now yearslong legal war between the state of Utah and its own capital city over whether the Utah Legislature’s creation of the Utah Inland Port Authority in northwest Salt Lake City violated the Utah Constitution.
It could be weeks, months or even years before the five justices on Utah’s highest court reach a decision — a decision that will have major implications not just for the future of the Utah Inland Port, a controversial project meant to maximize Utah’s position in the global economy, and not just for the future of what the state designated as the port authority’s jurisdiction, about 16,000 acres in Salt Lake City, which makes up about 1⁄3 of the city’s last remaining developable lands.
Whether the Utah Supreme Court sides with the state or Salt Lake City, the decision will set a major precedent for what powers cities across the state of Utah do — or don’t — have regarding land use or taxing authority.
Salt Lake City Mayor Erin Mendenhall, in a prepared statement issued Wednesday after the arguments, said Salt Lake City has “continued to pursue this case because it is critical to defending the traditional municipal authority of all Utah’s 249 cities and towns.”
“If the Utah Supreme Court rules in favor of the state, it would have devastating impacts on municipal land use and taxing authority,” she said.
The mayor said she was “very impressed” by her city attorney’s “clear and convincing arguments, and I look forward to a decision by the Court.”
The Utah Inland Port Authority referred the Deseret News to the Utah Attorney General’s Office when asked for comment about Wednesday’s hearing. The Attorney General’s office declined to comment.
Former Salt Lake City Mayor Jackie Biskupski filed the suit in 2019, before she left office after deciding not to run for re-election, calling it a “gross state overreach.” In January of last year, Salt Lake City leaders suffered a major blow in their legal fight when a 3rd District Court judge rejected the city’s arguments, ruling the port authority did not violate the “Ripper Clause.” But Salt Lake City Mayor Erin Mendenhall has continued Biskupski’s fight, appealing the ruling to the Utah Supreme Court, which agreed to hear the case.
The state vs. city battle boils down to a key question: Did state leaders violate the Ripper Clause of the Utah Constitution — a rarely invoked and somewhat vague section meant to balance state and city powers.
The clause, aka Article VI, Section 28, says the Legislature “shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions.”
Salt Lake City attorney Samantha Slark argued the state did indeed violate the Ripper Clause by creating the Utah Inland Port Authority, a non-elected board that now controls the jurisdiction tax increment, or future growth from property tax dollars, as well as requires that the city allow zoning for inland port uses.
“Here, we have legislative interference with zoning and land use at the behest of, basically, a private development,” Slark told the Utah Supreme Court. “We can’t forget that the inland port, essentially what it is, is a private development.”
Stanford Purser, Utah deputy solicitor general, argued on behalf of state leaders that the state did not violate the Ripper Clause because it was within the Utah Legislature’s power to create the Utah Inland Port Authority because it serves a clear “statewide interest,” and that Salt Lake City attorneys have not met the “very heavy burden” to prove that violation.
“So the city’s arguments, I think, has been more or less rejected,” Purser said, citing previous case law. “Overall I think the point is the city cannot come in ... and say, ‘That shows a clear violation of the Ripper Clause.’ It just, it doesn’t. They just haven’t connected to the extent there’s other dots out there to connect. Their argument doesn’t connect them, and they haven’t carried their very heavy burden here.”
The Supreme Court’s justices questioned both state and city attorneys in Wednesday’s hearing as it was held online, challenging their assertions. At least two justices, Justice Paige Petersen and Justice Deno Himonas, pressed the state’s attorneys, indicating they had issues with their arguments.
“Your argument has to be more than, ‘It’s not (Salt Lake City’s) money anymore because we took it from them,’” Petersen told Evan Strassberg, the attorney representing the Utah Inland Port Authority. “Because that is the whole question before us: Can you do that? What’s the argument this isn’t municipal money?”
Strassberg responded: “The state retains the power to redirect funds before they arrive at the city.”
Himonas, especially, took issue with the port authority’s unelected board being given the authority to spend Salt Lake City tax dollars.
“There is a fair part of this that feels like there is now an entity that is not accountable — directly accountable — to the electorate that is spending tax money that is only raised from the electorate in a particular area,” Himonas said. “I will tell you, that is perhaps the most troubling aspect about all of this to me.”
At one point, Chief Justice Matthew Durrant stumped the port authority’s attorney when he asked if not Salt Lake City’s tax revenue in question in this case, what would constitute “municipal funds” referenced by the Ripper Clause, at the center of the debate.
“Is there such a thing as municipal funds, in your view?” Durrant asked. “So what are the municipal funds that the Ripper Clause is referencing?”
Strassberg said he hadn’t “thought through that” and wasn’t prepared to answer that question.
Deeda Seed, a campaigner with the Center for Biological Diversity and a lead organizer with Stop the Polluting Port, told the Deseret News in an interview Wednesday she was “encouraged” by the justices’ questions.
“Those are the essential questions, and the responses from the defense attorneys were ineffective,” Seed said. “And that is telling.”
Seed, who also served as a Salt Lake City Councilwoman in the late ’90s, said the outcome of the case will have big implications for not just Salt Lake City, but all cities throughout the state.
“If the Utah Supreme Court (rules) in favor of the Legislature, this kind of thing could happen anywhere in Utah, and it’s deeply disturbing,” Seed said. “Deciding land use zoning and property tax issues are municipal functions, they’re not state functions.
“This is the Legislature taking control away from a local government, and if they can do it to Salt Lake City, they can do it to Green River, to St. George, to Provo,” Seed continued. “Anywhere in the state is at risk from this kind of illegal overreach.”