IN THE THIRD JUDICIAL DISTRICT, TOOELE COUNTY

STATE OF UTAH

RYAN SORENSON, an individual; KALEM

SESSIONS, an individual; and DENISE RULING AND ORDER
MOODY-MARTIN, an individual, JOSHUA GRANTING PETITIONERS' MOTION
KAEL MARTIN, an individual, and JESS BIRD, FOR RULE 65B MOTION FOR
an individual, EXTRAORDINARY RELIEF
AND
Petitioners, COMPELLING RESPONDENT TO
REVIEW AND APPROVE THE ERDA
vs. INCORPORATION PLAT

JERRY HOUGHTON, in his official capacity as

Tooele County Surveyor, Case No.: 210301631

Respondent.
Judge: DIANNA M. GIBSON

Before the Court is the Rule 65B Motion for Extraordinary Relief ("Motion") filed by

Petitioners' Ryan Sorensen ("Sorensen"), Kalem Sessions ("Sessions") and Denise Moody-

Martin ("Moody-Martin,"), collectively, the sponsors ofErda incorporation ("Sponsors"), Joshua

Kael Martin ("Martin"), an individual and council-elect of City of Erda, and Jess Bird, an

individual and chair/mayor-elect ofthe City of Erda. The Motion requests the Court issue an

emergency Order compelling Respondent Jerry Houghton, in his official capacity as Tooele
County Surveyor ("Houghton"), to approve the final plat boundary map for the City ofErda, so
that Petitioners could meet a January 3, 2021 deadline, setby Lieutenant Governor's Office for

purposes ofreceiving Erda's Certificate ofIncorporation. Petitioners filed their Pefition

Declaratory Relief and Motion for Extraordinary Relief on December 27, 2021. Given the
urgency and the important issues involved, the Court set the matter for an evidentiary hearing on

December 29, 2021, requesting Respondent appear to provide testimony.

At the end of the hearing, the Court issued its oral ruling, GRANTESIG the Motion and

ORDERING Respondent to complete the review, determine if the final mylar plat meets the

requirements of Utah Code Ann. Section 17-23-20(4) and make the final plat available for

Petitioners to pick up by 10:00 a.m. on December 30,2021, so that it can be delivered to the

Lieutenant Governor's office by noon on December 30,2021. The Court now issues this written

Ruling and Order, providing its legal analysis supporting the oral Ruling and Order.

BACKGROUND FACTS

At the hearing, the parties stipulated to the Declarations submitted by Petitioners, in

support of their Motion. With the exception of a few objections, the testimony was received.

With regard to the objections made regarding hearsaystatements attributed to Mr. Cheney

(counsel forthe Lieutenant Governor's office), Mr. Parker, Mr. Murdock, Mr. Brems and Mr.

Bird each testified and confirmed the statements attributed to them in Petitioners' Statement of

Facts and in admitted declarations. As such, the Court hereby incorporates by reference the

Statement of Facts from Petitioners' Motion, as if those facts are stated herein.

STANDARD

Rule 65B(a)^ of the Utah Rules of Civil Procedure provides: "When no other plain,

speedy and adequate remedy is available, a person may petition thecourt for extraordinary

^Petitioners' Motion references Rule 65A of the Utah Rules of Civil Procedure, however, they do not analyze the requirements
under that rule. Under Rule 65A(e) of theUtah R ofC P, a district court may issue a temporary restraining order or a preliminary
injunction only ifthe moving party establishes four elements; (1) "[t]he applicant will suffer irreparable harm unless the order or
injunction issues"; (2) "[t]he threatened injury tothe applicant outweighs whatever damage the proposed order orinjunction may
cause totheparty restrained orenjoined"; (3) "[t]he order orinjunction, ifissued, would not beadverse to thepublic interest";
and (4)"[t]here is a substantial likelihood that theapplicant will prevail onthemerits of theunderlying claim, or thecase
presents serious issues on the merits which should bethe subject offurther litigation." Utah R. Civ. P. 65A(e). Based on the
evidence presented, the Court also concludes that Petitioners have also satisfied therequirements under Rule 65A. Asdiscussed
inthebody ofthis decision, Petitioners have established irreparable harm. The threatened injury to Petitioners of notcompleting
the last step ofincorporation far outweighs any damage toRespondent, inrequiring that hecomply with his statutory duty and
relief." Utah R. Civ. P. 65(b)(a). Pursuant to rule 65B(d)(2), extraordinary relief may be granted

"to compel a public official to perform their duty." Walker v. Weber County, 973 P.3d 927, 929

(Utah 1998), abrogated on other grounds by Burr v. City ofOrem, 311 P.3d 1035 (Utah 2013);

Utah R. Civ. P. 65(B)(d)(2) (stating "[a]ppropriate relief may be granted" where a "person has

failed to perform an act required by law as a duty of office, trust or station"). In determining

whether to compel an official to perform a duty, this Court must evaluate the statute authorizing

the official's duty. Walker, 973 P.3d at 930. Where a statute "imposes an objective

requirement" the official is afforded "little latitude in confomiing to its requirements." Id.

1. Petitioners have no other plain, speedy and adequate remedy available: They will
suffer irreparable harm if this Court does not grant the Motion.

Respondent, in his official capacity as the Tooele County Surveyor, has refused to

approve Erda's final plat, reflecting the boundaries for Erda City. Petitioner's original deadline

to submit the final plat to the Lieutenant Governor's Office was December 16, 2021. That

deadline has passed. The Lieutenant Governor's Office determined that on December 16, 2021,

Petitioners had substantially complied with the requirements to obtain the Certificate of

Incorporation, and then set January 3, 2021, as the deadline for Petitioners to submit a final plat
approved by the Tooele County Surveyor.

Petitioners are statutorily obligated under Utah Code § 10-2a-217 to file "a copy of an

approved final local entity plat" with the office of the Lieutenant Governor. § 10-2a-
217(l)(a)(ii). That obligation is time sensitive. The Lieutenant Governor's office has stated that
the plaintiffs will meet the statutory deadline as long as the certification of incorporation is
issued by January 3, 2022, which would require the approved final local entity plat to be

review and approve Erda's final mylar plat. The Court's Order isnot adverse tothe public interest, in fact, it isin the public's
interest toensure that government officials ftilfill their statutory duty and act within their statutory authority. The Court also
finds that there is a substantial likelihood that Petitioners will prevail on the merits of their claims.
submitted to the Lieutenant General's office no later than December 30, 2021 at 12:00 p.m. The

consequence of missing this deadline is not entirely clear, as the Code does not outline a specific

procedure for what should happen next. However, if the Court does not intervene to require

Respondent to do what he is statutorily required to do. Petitioners will have no other adequate,

speedy remedy to complete the last step required to secure the Certificate of Incorporation by the

January 3, 2022 deadline.

The parties are at an impasse regarding whether Utah Code Ann. Section 10-2a-201.5

applies to the incorporation and whether the payment must be paid, prior to any approval of the

final plat. Without a decision fi-om the Court now, the issue could remain unresolved

indefinitely, which will jeopardize Petitioners' ability to obtain the Certificate of Incorporation in

the future. And, because Petitioners must submit the final plat, approved by the Tooele County

Surveyor, to the Lieutenant Governor's Office in less than 24 hours, it is clear that "no other

plain, speedy and adequate remedy" would otherwise be available.

2. The harm to Petitioners, if the Court does not grant the Motion, will be immediate
and irreparable.

In opposing the Motion, Respondent speculatively asserts that there will be no harm to

Petitioners (that has not already been done by missing the December 16, 2021^ deadline) if the

- During the Trial, counsel for Respondent and effectively Tooele County asserted that Petitioners' ability to incorporate may be
moot. Counsel advised that theowners of Skywalk Development, who unsuccessfully attempted to annex theirproperty outof
Erda andinto Grantsville, hasfiled a lawsuit in Salt Uke County, requesting a court in SaltLake County restrain the Lieutenant
Governor's office from issuing theCertificate of Incorporation for Erda, inTooele County. The argument is that Petitioners'
failure to meet theDecember 16,2021 statutory deadline ineffect precludes any incorporation and ineffect nullifies more than
three years ofwork and asuccessful November 2020 vote to incorporate. The Court observes that the statutory language gives
no notice ofthis extreme consequence. And, contrary tothe arguments made, the Lieutenant Governor's office's practice isto
grant extensions tothe deadline, based on the various circumstances that may arise and to allow the parties tocure any
deficiencies. Nonetheless, Tooele County - which claims to support theincorporation - will take noposition oneway or the
other inthat litigation, yet in this case, it actively argues against one ofits governmental officials performing his statutory duty to
approve the final plat for Erda.
While theissue pending inthe Third District inSalt Lake County is not before this Court, that lawsuit and Tooele
County's stated positions during the hearing completely supports the reason why this Motion must begranted and why
Petitioners will be irreparably harmed. Tooele County says it supports the incorporation, but then appears tosupport eveiy effort
to undermine it. It- through its Surveyor - facilitated the delay in approving the final plat, which is a purely administrative t^k
atthis point. Mr. Scott Cheney, counsel to the Lieutenant Governor's Office, told Tooele County and Respondent—in aprevious
telephone conference and then testified during this evidentiary hearing—that the 2018 code applies, that the parties have all
Court denies the Motion. Respondent relies on Mr. Cheney's testimony that it has been the

Lieutenant Governor's Office's practice to extend the deadline to allow parties to cure any

deficiencies. In his view and based on past practice, a parties' failure to strictly meet the deadline

will not preclude or foreclose Petitioners' ability to obtain the Certificate of Incorporation.

While Respondent may argue that there is no harm and no need for the emergency hearing,

Respondent simultaneously takes the position that he should not be required to do what he is

statutorily obligated to do.

Petitioners' have been challenged, every step of the way, during the incorporation

process. Tooele County, through the actions of its Surveyor, is refusing to complete the last

purely administrative step in Erda's incorporation process and is effectively blocking Erda's

incorporation. As a result of Respondent's refusal to approve the plat. Petitioner's missed the

original deadline and, without this Court's order. Petitioners will miss the January 3, 2021

deadline as well. Erda has timely completed all statutory requirements to obtain the Certificate

of Incorporation. Without this order, there is no date certain for Erda to complete the

Incorporation process and no incentive for Respondent to fulfill his statutory duty at any time. If

the Certificate of Incorporation is not issued on January 3, 2021, the harm to Petitioners is more

delay, uncertainty surrounding the consequences of such delay and a high risk that the entire

incorporation process could be jeopardized or nullified as a result of the delay. The loss of the
ability for citizens to legally incorporate their city on the statutorily prescribed schedule causes a

operated under this version ofthe code, that the statute prohibiting split parcels isnot applicable and that Respondent cannot
impose additional requirements into the plat approval process. Nonetheless, Tooele County's position isthat "itdoes not agree."
The payment demanded asa condition ofapproval isunreasonable byapproximately $114,000, based onthe credible evidence
presented tothe Court by incorporation experts working with other Utah counties. Itappears tothis Court that the office ofthe
Surveyor intentionally delayed communicating with Petitioners and dragged the process onbeyond thedeadlines, which
coincidentally resulted in Skywalk filing a lawsuit asserting that because thedeadlines were missed, there canbe no
incorporation. The Motion before the Court and the evidence presented isappalling. Telling Petitioners' counsel, under these
circumstances, that she cannotcontact TooeleCounty government officials to finalize this incorporation, underthreatof a bar
complaint, is shocking. From the Court's point ofview, and for whatever reason, it appears that Tooele County is taking acting
intentionally toharm its Erda citizens in order to benefit two individual land developers. Forthese reasons, any further delay will
irreparably harm Petitioners' ability to incorporate.
special type of harm that "camiot be made whole by monetary compensation." See Zagg, Inc. v.

Harmer, 2015 UT App 52, ^ 6 (holding loss of bargaining power cannot be compensated in

money damages and therefore is irreparable).

3. Respondent has failed to perform his statutory duty.

As the Tooele County Surveyor, Mr. Houghton's authority is expressly granted and

simultaneously limited by statute. Johnson v. Sandy City Corp., 497 P.2d 644, 645 (Utah 1972)

("Under our law cities and towns are political subdiyisions of the State and their powers are to be

found in the statutes which create them. It is generally said that they haye only those powers

expressly so giyen, or those which are necessarily or fairly implied therefrom as essential to

carrying out the objectiyes and responsibilities imposed by law."). Respondent, in his official

capacity, is duty bound to reyiew and approye the final plat for Erda's incorporation boundaries.

The suryeyor's duty is set forthunderUtah Code Ann. Section 17-23-20. Section 17-23-20(4)

proyides an administratiye checklist of items required to be included in the final platand

establishes the specific requirements that theSuryeyor eyaluates in order to approye a plat as

final. See Utah Code Ann. § 17-23-20(4)(a) - (g) (2009). Section 17-23-20(3)(a) states: "If a

county suryeyor determines that a plat meets the requirements of Subsection (4), the county
surveyor shall approye theplat as a final local entity plat." Id. §17-23-20(3)(a) (emphasis

added).

Together, these two sections establish a duty that the county suryeyor must determine

whether a platmeets certain requirements and, if the suryeyor finds that all requirements are met,

the suryeyor shall approye theplat. The statute does not grant the suryeyor discretion to ignore or

refiase a request to reyiew a plat. There is no discretion to add extra requirements. And, a

Suryeyor does nothaye discretion to deny theplat if all of therequirements haye beenmet.
 In this case, Respondent's December 21, 2021 letter set forth two specific and discrete

reasons why Erda's mylar plat could not be approved.^ The Courtconcludes that both reasons

are without merit. Respondent first asserts that Erda's proposed incorporation boundaries violate

Utah law. Referencing Utah Code Ann. Section 10-2a-201.5 (which is titled "qualifications for

incorporation"). Respondent asserts that Erda's boundaries cannot split parcels between two

municipalities. The Court agrees that that statutein fact prohibits split parcels for "[a]n area

incorporating under this part." Utah Code Ann. §10-2a-201.5. However, this statute does not

apply to the Tooele County Surveyor's purely administrative review of Erda's final plat for

several reasons.

First, Erda did not incorporate 'binder this part" of the statute. Section 10-2a-201.5 was

enacted in March 2021. Erda began the incorporation process in 2018, under a differentversion

ofthe Municipal Incorporation Code that was effective fi-om 2015 to 2019."^ When the laws
changed in 2019, the legislature expressly stated that the change in law would not apply

retroactively:

If an individual files a request for a feasibility study for the

incorporation of a city, or an application for an incorporation of a city,
or an application for an incorporation petition for theincorporation of
a town, before May 14,2019, the process for incorporating that city or
town underthat request or application is not subject to Lawsof Utah
2019.

Utah Code Ann. § 10-2a-106 (Effective 5/14/2019).

3During the evidentiary hearing, Respondent testified that he had not reviewed the mylar plat, "because he was not asked to
review it." Hefurther testified that hehadnotyet completed thereview of theplats received on December 10,2021. Assuch,
Respondent had not yet determined that all ofthe "other" requirements ofSection 17-23-20(4). Given the urgency for Erda to
meet theDecember 16,2021 deadline and thediscussions with the Lieutenant Governor's office, thefact that thereview had not
yet been completed byDecember 29, 2021, the date ofthe evidentiary hearing, is troubling.
"The parties agree that the prohibition against split parcels did not exist in 2018. Further, application ofthis substantive
provision, now, completely changes the acreage subject to incorporation. Notably, Respondent requested that 1,000 acres be
removed from the incorporated area asa result ofsplit boundaries. The original Erda boundaries were established and approved
by Tooele County in 2018. The split parcels were created because Tooele County required Erda's boundary to abut with its
neighboring municipality. Based on these approved boundaries, afeasibility report was created. Changing these boundaries now
changes the assumptions made in the feasibility study and relied on by everyone throughout this process. These same
boundaries, with minor modifications, were also approved by Tooele County and published for purposes ofnotice toeligible
voters in the November 2020 election. Until now, no official in Tooele County has requested these boundaries be modified.
 In addition, as a matter of law, "a provision of the Utah Code is not retroactive, unless the

provision is expressly declared to be retroactive." Utah Code Ann. § 68-3-3 (2010): There is no

express statement in Section 10-2a-201.5, express or otherwise, stating that this new, substantive

provision applies retroactively. As such, legislative intent is clear. The law governing Erda's

incorporation process is the law in place when the incorporation process started, i.e., when the

feasibility study was requested in 2018.

Respondent, however, argues that this Court should apply the law that exists at the time

Erda requested approval of the plat. Respondent argues Section 10-2a-106 does apply because

the request for approval, under Section 17-23-20 (which statute remained unchanged between

2018 and 2021), was made in 2021, after Section 10-2a-106 was enacted. Respondent cites State

of Utah V. Earl, 2015 UT 12, H15, 345 P.3d 1153,1157, arguing that in determining applicable

law,"[t]he key question is the identification of the relevant 'event' being regulated by the law in

question." InEarU an indigent criminal defendant requested government-funded defense

resources under the Indigent Defense Fund Act ("IDA"). Id. ^ 4, 345 P.3d at 1155. Between the

timethe Defendant was charged and when she requested defense funds, the IDA changed. Id. f

5, 345 P.3d at 1157, The defendant argued thatthe governing version of the IDAwas the version

in place at thetimeshe was charged. Id. She argued thatbecause the IDA amendments

diminished her substantive rights, the amendment did not apply(becauseonly procedural

changes, not substantive changes, can apply retroactively). Id. The Court determined that the

"event at issue" was not the alleged criminal conduct or the filing of charges, but her request for

defense resources. Id. T116, 345 P.3d at 1157. The Courtreasoned that the IDA governed

defense funds for indigent defendants when requested, not when the criminal conduct occurred

or when a defendant is charged. Id. ^ 17-18, 345 P.3d at 1157. Respondent also cites to
O'Connor v. Labor Commission, 2020 UT App 49, H11, 463 P.3d 85, 89, for the same

proposition, that the appHcable law is determined by the "event" being regulated and when that

event occurred. Respondent argues that the applicable event is the request for the administrative

approval of the final mylar plat and not the initiation of the incorporation process.

Even applying the analyses in these cases to Erda's incorporation, it does not change the

outcome. The legislature has already specifically determined what "event" is being regulated in

this case and what law will apply. The events regulated are the request for a feasibility study and

the filing of a petition to incorporate. The statute also expressly states that Erda's incorporation

will be governedby the law in place prior to May 14,2019, and not by the new laws enacted in

2019. Fiirther, the Utah legislature clearly expressed its intent that Section 10-2a-201.5, enacted

earlier this year in March 16 2021, will not apply to a previously initiated municipal

incorporation because it elected not to expressly statethat the statute will be retroactive, as

required by Utah law.

Second, Respondent argues that it is the TooeleCounty's unpublished policy to require

payment in advance of anyreview. However, there is nothing in Utah Code 17-23-20 that

requires or even authorizes the surveyor to condition platapproval on payment. In reviewing the

statutory checklist to secure plat approval. Section 17-23-20(4) does not mention nor require

payment in fiill. Thesingle subsection discussing a fee. Section 17-23-20(5), states: "The

county surveyor may charge and collect a reasonable fee for the costs associated with: (a) the

process of determining whether a platis a final local entity plat; and (b) the approval of a plat as

a final local entityplat." Utah CodeAnn. § 17-23-20(5) (emphasis added). Payment of the fee

is not a statutory requirement and nothing in the statute makes payment of the fee a condition
precedent to plat approval. An unpublished Tooele County payment policy cannot trump or

rewrite the plain language of the statute.

The Court heard credible testimony from three experts with demonstrated experience

with the incorporation process occurring in other Utah counties and who have experience with

regard to the process of plat approval and fees. The testimony provided by Mr, Parker, Mr.

Murdock and Mr. Brems supports that the usual fee for an incorporation plat approval ranges

from zero to $1,000-2000. In particular, Mr. Parker explained that fee schedule used by

Respondent to set the review/approval fee is based on the fees customarily charged to review a

new subdivision plat, where new boundaries and legal descriptions are being created. A

subdivision review is more involved and substantially different than the simpler administrative

review required for the final incorporation plat review. Therefore, the fees should not be the

same. Respondent provided no evidenceto supportthe "reasonableness" of the fee charged

exceptto point to the fee schedule, and Respondent testified that he had not been involvedin

settinga fee for an incorporationplat review during his time as Tooele County Surveyor. The

evidence presented shows that Tooele County's fee is unreasonable. It also shows it cannot be

required to be paid in advance to stop the review or the approval. The Court,however, need not

decide what fee is reasonable, under the circumstances. If the parties cannot resolve the dispute,

then they can seek relief from the Court.

CONCLUSION AND ORDER

For the reasons state above, and because the Court had the opportunity to hear evidence

presented by the parties, the Court GRANTS Petitioners' Motion.

The Court therefore ORDERS as follows:

1. Respondent shall complete the review of Erda's final mylar plat.

 2. Respondent shall determine if all of the requirements set forth in Utah Code

Ann. Section 17-23-20(4) have been met.

3. If all the statutory requirements have been met, then Respondent SHALL

approve the plat.

4. If there are any issues and if Respondent determines that the plat does not

comply with Section 17-23-20(4), then Respondent shall immediately contact

Mr. Bird and Mr. Murdock and work with them to resolve the issue, so that

the plat can be approved by 10:00 a.m. on December 30, 2021.

5. Respondent shall make the approved plat available to Petitioners' counsel,

Janet Conway, for pick up by 10:00 a.m. on December 30, 2021, so that

Petitioners may deliver the final mylar plat, approved by the Tooele County

Surveyor, to the Lieutenant Governor's Office by no later than 12:00 p.m. on

December 30, 2021.

This is the final order of the Court. No further order is required. U.R.C.P. 7(j)(l).

Dated this 30^*^ dayof December, 2021.

A Co .,v

Bv DIANNA M. GIBSpN