Zion Sunset Resort sues ‘Virgin Three’ over rezoning issue

The “Virgin Three” are three residents of the small town of Virgin, Utah, near Zion National Park who were influential in disrupting the rezoning plans of developer Zion Sunset Resort for 56 acres of land near the center of town for an RV resort. These three residents—Linda Collet, Adele Pincock and Mark Savee—are now being sued by the owners of the Cedar City-based Zion Sunset Resort for damages.

The main issue at hand is the fact that Zion Sunset Resort wanted the Town to rezone the property rather than utilizing the parameters established by the town’s planning process. The “Virgin Three” were the primary proponents of a referendum that successfully defeated the plans of Zion Sunset Resort and the Virgin Town Council, who voted in favor of changing the zoning laws to accommodate the resort. So far, Zion Sunset Resort has lost at every decision point, but the issue is still far from decided. Now Zion Sunset Resort is suing the three residents for damages, and if the company wins, the zoning could be changed. The Virgin three and their allies regard the lawsuit as a SLAPP suit: A Strategic Lawsuit Against Public Participation.

In a long and complicated process, this is what has transpired to date:

• Zion Sunset Resort submitted a proposal to the Virgin Planning and Zoning Commission for a rezoning of the property to “Highway Resort Zone” from a residential zone. The Commission rejected the proposal. (The report of the Commission can be found here.)
• The Virgin Town Council voted 4 to 1 to disregard the Planning Commission’s rejection and approved the rezoning.
• Five citizens of Virgin formed an organization called Virgins Future and circulated a petition to hold a citizens referendum aimed at overturning the Council’s decision—an action fully in accordance with Utah law. They received signatures from over half of Virgin’s registered voters from the previous election. Only 35 percent of voter signatures were needed.
• A referendum was held and passed by a 132 -116 majority in a special election, overruling the Town Council and reversing the rezoning.
• Zion Sunset Resort sued both the Town of Virgin and three of the five referendum sponsors. The town was sued to invalidate the referendum. The Virgin Three were sued for damages.
• Zion Sunset Resort lost on two of three issues in the first lawsuit against the Town of Virgin and the zone change approval was reversed.

The Virgin Three are now fighting for their own future because Zion Sunset Resort’s pending lawsuit could have a devastating financial impact, regardless who triumphs in court. Because the final issue in the lawsuit against the Town of Virgin regarding whether the referendum was held unfairly was left hanging, if the Virgin Three lose their lawsuit, Zion Sunset Resort could show that the referendum was held unfairly. As a result, it could still be invalidated, and the rezoning approved by the Virgin Town Council would stand.

In addition to losing their fight against the rezoning, the Virgin Three have personal liability if a court decides against them, and the damages could amount to a burden that would ruin all of them.

Utah has an anti-SLAPP law. It’s called the Citizen Participation in Government Act. However, it does not have many safeguards in place to protect citizens. In 2005, Anderson Development fought two self-described “PTA, piano-teaching, milk and cookie” housewives from South Jordan, Utah, taking the lawsuit all the way to the Utah Supreme Court. Anderson Development lost the judgment but won the battle in the long run. The Jordan River bottoms that Janalee Tobias and Judy Feld were trying to save were developed, and the women ended up with legal fees over $350,000. The Utah Supreme Court explained it this way:

Because the SLAPP Act provides only for recovery of attorney fees, costs, and compensatory damages, Tobias and Feld are not able to seek punitive damages under that statute. They may, however, seek punitive damages under section 78-18-1 if they are ultimately successful in bringing and proving their abuse of process counterclaim. Accordingly, we remand to the district court the issue of whether Tobias and Feld may seek punitive damages to be resolved concurrently with the resolution of their counterclaim for abuse of process.

Bringing a counterclaim lawsuit would have cost hundreds of thousands more that Tobias and Feld didn’t have. In an interview at the time, Tobias said, “It would have been better to cut my tongue out so I wouldn’t talk than voluntarily give up my rights. I always thought you should stand up for what you believe in, but I haven’t had free speech for eight years.”

Closer to home, Mark Savee, the first named defendant in the Zion Sunset Resort rezoning lawsuit, says that the experience has ruined his life. He says that his legal bills are already far more than he can pay. He and the other two defendants have established a “GoFundMe” web site to ask for contributions to their legal defense.

The Virgin Three are hoping that the whole episode can be brought to a conclusion on Sept. 10 when the Fifth District Court has been asked to render a judgment. According to Savee, “The issue to be determined regards protected speech and the parameters of citizens’ protection under Utah’s relatively new and relatively untested anti-S.L.A.P.P. legislation … This ruling will set precedence in case history that will impact all Utah communities and residents for many years to come. We hope you will please show your support for free speech by attending this landmark hearing.”

The Independent attempted to contact the Zion Sunset Resort owners and attorney, however, they were unavailable for comment.