dissenting:
I dissent. I do not agree with the analysis made in the majority opinion which widely strays from what I perceive is the issue in this case.
Utah Code Ann. § 20-11-21 provides in part:
(1) Subject to the provisions of this chapter, the legal voters of any county, city, or town, in numbers required by this chapter, ... may require any law or ordinance passed by the governing body of the county, city, or town to be submitted to the voters before the law or ordinance takes effect.
(Emphasis added.) Section 20-11-24(1) provides that petitions seeking referendum must be filed with the city recorder within thirty days after the passage of the “ordinance, resolution or franchise.” The 1987 amendment to this section added subsection (2), which provides in part:
(2)(a)(i) For purposes of this section, “law or ordinance” includes ordinance, master plans, and comprehensive zoning regulations adopted by ordinance or resolution.
(ii) “Law or ordinance” does not include individual property zoning decisions.
My difficulty with the majority decision is that it does not focus on any certain ordinance or resolution but considers all action by the City Council from 1989 to January 1992 as one zoning change which may be subject to referendum. The majority writes:
These changes were accomplished sequentially but with a cumulative effect and should be considered as a whole. The question remains, however, whether this zoning change warranted referendum under- section 20-11-24.
It is the legislative intent in sections 20-11-21 and -24 that referendum must be sought with regard to a specific ordinance or resolution and not with regard to a series of ordinances or resolutions which may have been adopted on the same subject over a period of years. The requirement that referendum must be petitioned for within thirty days after the passage of the ordinance or resolution would seem to foreclose the possibility of considering several of them “as a whole,” as the majority does, and then allowing referenda on all or any one of them if it is timely sought on the last ordinance adopted. Referendum is simply not authorized on a “zoning change” comprised of the “cumulative operation” of four ordinances, two resolutions, and a conditional use permit adopted over the space of three years.
CAN sought referenda only on ordinances 92-1 and 92-4, the last to be adopted. I believe the trial court was correct in upholding the refusal of the City Recorder to accept the petitions because she determined that the ordinances were “individual property decisions” within the meaning of section 20-11-24. It was the legislative intent in this regard to exempt from referendum zoning changes on specific property, as was the case in Wilson v. Manning, 657 P.2d 251 (Utah 1982) (from residential to commercial), and in the instant case (from 1-1 to 1-2). I do not think that the amount of acreage of the property rezoned is relevant (here it was *11272,400 acres) or that the property is described in more than one legal description because it consists of more than one parcel. I agree ■with appellees that when a city applies a preexisting zoning classification to one or more parcels of land held in common ownership, as was done here, it is an “individual property zoning decision.”
However, ordinance 89-07-25, adopted in 1989, which expanded the uses permitted under the 1-2 zoning classification to include the operation of a privately owned solid-waste disposal facility, was not an “individual property zoning decision” because it was not limited to any specific or individual property but added an entirely new permissible use of property in the city. But no referendum was sought on that ordinance, and it cannot now be obtained indirectly through referendum on ordinance 92-1 or 92-4.
CAN contends that under article VI, section 1 of the Utah Constitution, individual property zoning decisions may not be exempted by the legislature from the right of the electorate to call for referendum. Notwithstanding the views expressed in my dissenting opinion in Wilson v. Manning, I conclude that this issue was not adequately raised in the district court, and we cannot entertain it for the first time on appeal.
The majority opinion raises questions concerning the validity of the procedures in the adoption of some of the ordinances because of lack of notice, posting, recording, etc. None of those questions were raised by CAN in the trial court or on appeal and are not now before us. Whether they might be raised in a subsequent suit which directly challenges the validity of the adoption of any ordinance is also outside the scope of this appeal.
I would affirm the district court.