Utility work ahead of BRT project to close Provo intersection

Road closed signs are positioned around the intersection of 700 North and 700 East a block south of the Brigham Young University campus in Provo on Sunday, Aug. 21, 2016. The intersection was among those set for utility work related to the bus rapid transit project. RYAN OLSON, Daily Herald

The Utah State Supreme Court apparently isn’t moving fast enough for those who have sponsored a referendum on lease agreements between Provo, Orem and Utah Transit Authority as it pertains to the Provo Orem Transportation Improvement Project, also referred to as the Bus Rapid Transit (BRT) project.

Construction work has begun on the project along the University Parkway and at 700 North in Provo, and referendum supporters appear to be crying foul.

Petitioners say they want voters to prevail when it comes to being able to choose on the November 2017 ballot if lease agreements surrounding the project should stand. The lease agreements give UTA a 50-year lease on a mile strip of land and other easements to complete the BRT project.

The cities have already stated the petitions are not referable for a vote because the lease agreements are administrative and not legislative. By law, interlocal agreements are non-referable.

In an injunction filed Wednesday, petitioners noted that it will be detrimental to the public if the project is not stopped before the 2017 vote can be taken.

By Nov. 2017 the transportation project will be near completion with an opening date of sometime in early Spring of 2018.

The request for injunction states, “If allowed to proceed petitioners will suffer irreparable constitutional harm since they have a right that the referendum be presented to voters before the law takes effect.”

It is also claimed in the document that the cities are seeking to render the referendum moot.

Provo and Orem city attorneys are filing responses to the injunction.

“We are working with the city’s legal team to file a response to the motion for preliminary injunction in a timely manner, consistent with state law,” said Steven Downs, Orem city spokesman.

Provo City attorney Robert West concurred with Down’s statement. Provo and Orem are working in tandem with the legal procedures.

Frank Mylar, attorney and counsel for both Provo and Orem petitioners, said it is the cities that have the power to stop the construction if ruled by the courts. UTA is not named in the court documents and intends to continue construction.

“The citizens are trying to halt it in the cities,” Mylar said. “In Utah there is parallel jurisdiction to the citizens. That’s powerful. Utah is one of the few states to allow that.”

What Mylar is stating is that in Utah if a decision is tied, it typically goes to the desire of the citizens — in this case allowing the referendum to go on the ballot.

While Provo and Orem made the lease agreements, it is UTA’s project and it will continue as scheduled according to Janelle Robertson, project manager.

“We are still moving forward,” Robertson said. “We aren’t named in this matter.”

As of Thursday, UTA received a second letter of non-prejudice from the federal government which acknowledges the project, and the funding for it is on its way. It also guarantees money currently being used will be reimbursed.

UTA released $23 million in August to order the buses and to begin work on the project, trusting that a second letter of non-prejudice would be coming. Typically a second letter is the final guarantee the full grant and matching money will be forthcoming.

The project is now waiting for that funding and for the Utah County Commission to bond. That is expected at any time.

According to Robertson, the project is scheduled to receive its complete funding sometime this winter.

As for the court’s ruling, Mylar said, “I think they are getting it set for oral arguments. We hope this (injunction) speeds things up.”

On July 29, the Utah State Supreme Court received Extraordinary Writs by petitioners seeking a referendum on the lease agreements.

Both Provo and Orem were served notices from the court. They responded with opposing arguments.

At that time the judges were expected to take it under advisement, according to Mylar. The court has referred to the Nov. 2017 date for the vote on the referendum, and seemingly do not see this as something that needs to be rushed or is critical.

For that reason the petitioners sought the injunction.

“I genuinely believe this is to let voters make the decision,” Mylar said.

The injunction is about the only tool left to help halt the project and move the referendum forward.

"If the high court rules in favor of the cities, I'm not aware of any other recourse open to us," said petitioner Diane Christensen at the time of filing the writs. "As far as I know, all our eggs are in this basket. However, to be clear, we like our chances. The petitioners are full of hope, just as we have been ever since we filed the Referendum Petitions."

Daily Herald reporter Genelle Pugmire can be contacted at gpugmire@heraldextra.com, (801)344-2910, Twitter @gpugmire

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