County commission set to vote on BRT 3

People board a UTA bus at the Provo Intermodal Hub on Sept. 8, 2014. The Utah County Commission plans to vote Tuesday on one of the final hurdles for approving funding for the bus rapid transit, or BRT, system. SPENSER HEAPS, Daily Herald

The Utah Supreme Court heard arguments Friday morning on whether to allow a referendum for the Orem and Provo bus rapid transit project on the November 2017 ballots.

Just last month, the justices denied an injunction submitted by petitioners to halt the BRT construction until the referendum is voted on.

The petitioners’ request stated, “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.”

Earlier this spring, residents from both Provo and Orem gathered petitions seeking to put a referendum on the November 2017 ballot, allowing voters the chance to say whether the project's 50-year lease agreements should stand. Those agreements for the project, also known as the Provo-Orem Transportation Improvement Project, include the leasing of just over a linear mile of land, portions of the landscape and design of the project and more.

Right from the start on Friday, justices had difficulty understanding why the petitioners against the BRT project were bringing this matter to them and not simply filing at the Provo Fourth District Court.

“May I ask you a question off the bat?” asked Justice Constandinos Himonas to Frank Mylar, attorney for the petitioners. “Why aren’t you in the district court?”

Mylar argued that Utah statutes allowed them the option to bring the case to the Supreme Court. Ballot cases had been heard at the Supreme Court in the past and Mylar cited several as precedent.

But Justice Thomas Lee stated that this argument is over an issue that will be on the 2017 ballot, and a speedy decision isn’t as necessary as it would be were this issue to be on this November’s ballot.

“I’ve seen a number of these, and most of them are like that,” Lee said.

Himonas and other justices constantly suggested that findings from a district court proceeding would help them make a better ruling procedurally.

“They could file today in the district court and get a decision and come here with much better information,” he said. “There’s a real risk that the petitioners here insist we hear this case and never get to the merits because of procedural issues.”

Justice Christine Durham added that filing in district court will help them as justices establish legal requirements.

“You have to show a lack of a plain, speedy and adequate remedy,” Durham said.

The petitioners argued that the lease agreement was not in either mayors’ or city councils’ purview to execute. Because of the extent of the project and the impact it would have, Mylar said it needs to be brought before the citizens.

“It’s more like a bond or something like that,” Mylar said. “You have to get permission from the people.”

But Troy Booher, attorney for Orem, argued that Orem will not lose money in the lease agreement, as the Utah Transit Authority is paying for the project. Orem is simply allowing UTA to use city land, Booher said.

“This doesn’t have anything to do with the expenditure of funds in this case,” Booher said. “This is a lease where UTA is giving up something and Orem is getting something in return.”

Additionally, both parties debated whether the lease agreement made between the two cities and UTA was administrative or legislative. The justices will determine whether the mayors and city councils overstepped their legal bounds by authorizing the project without referring to the citizens.

Despite the arguments, Robert Hughes, attorney for Provo, concurred with Mylar, and asked that the Supreme Court hear the case rather than the Fourth District Court.

“The existence of this proceeding and the threat if this lease is undone puts a cloud over this project,” Hughes said.

The justices took the matters for both cities under advisement.

Construction work has begun and continues on the project along University Parkway and at 700 North in Provo. Referendum supporters were hoping to stop that construction until voters could have a say next year.

Kurt Hanson is the Breaking News and Courts reporter for the Daily Herald. He can be reached via email at Follow him on Twitter: @hansonherald.

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