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Show Injunction Hampers Zoning Progress The movement towards Park City's adoption of a new zoning ordinance and land use policy was deterred further :this week when City officials were served with a temporary restraining order enjoining en-joining the City from holding any master plan related meetings, or enforcing its newly adopted grading ordinance until March 15. The order originated in the Fourth Juidicial District Court in and for Summit County and was issued by Judge Marcellus K. Snow. It requests the presence of Mayor Leon Uriarte and City Attorney Carl Nemelka in court on the 15th of March to show cause why the temporary order should not be made permanent during pending litigation between developer Elwood Nielsen and the City. The action stems from legal proceedings instigated by the City against Nielsen some time ago in an attempt to halt his construction of an access road to a proposed subdivision near Masonic Hill. The City petitioned for a preliminary restraining order after City Engineer John Probasco determined that the road was hazardous. A temporary restraining order was issued and Elwood Nielsen immediately filed a counter suit action against the City asking $1 million in damages. Judge Snow issued the temporary temp-orary restraining order affecting the master plan after Councilman Jan Wilking failed to appear and give his deposition on the matter February 17. The absence of Wilking on that date and his failure to enter a deposition for Park City, the plaintiff in the suit, was apparently viewed by the Judge as reluctance on the part of the City to allow the defendant (Nielsen) to proceed with his discovery (pre-trial investigation) procedures. The Court apparently decided that if the City would not allow Nielsen to proceed with his discovery procedures then the (Continued on Page Four ) sen feels this is a constitutional issue. "1 like the members of the City Council," stated Nielsen, "and I prefer not to be involved in a lawsuit with them, but there are some definite issues - some constitutional con-stitutional issues over the right of a property owner to use his property in any way besides a tax liability. In fact," he continued, "I am concerned with the attitude of Federal authorities with respect to private property as well." All suits aside, the temporary restraining order will slow the master plan's revisional progress and even further delay ultimate adoption. Planner Van Martin has expressed ex-pressed concern that the summer building will commence with the city still lacking an effective zoning ordinance and has said if progress on the master plan and zoning ordinance isn't stepped up he might recommend revising the obsolete existing ordinance instead. in-stead. "The whole thing is being handled by our attorney, Carl Nemelka," concluded ..Councilman ..Council-man Wilking, referring to his absence at the deposition meeting. meet-ing. "He was ill and couldn't represent our side and to be honest I forgot all about it." "It has nothing to do with Mr. Nemelka," concludes Lowell Summerhays, Nielsen's legal advisor, ad-visor, "Carl has cooperated and Injunction (cont.) (Continued from Page One) City would not be permitted to go ahead with the adoption of its zoning ordinance. The court's action raises an important legal question: "Do the courts have the right to interfere in any way with the legislative process of a municipality?" The Utah State statutes very clearly enumerate the right of a municipality munic-ipality to zone and re-zone property within the incorporated city limits of a community if the action is deemed to be beneficial to the town as a whole. has satisfied the court. It's his client who hasn't." "The whole thing came about because of arbitrary action on the part of the City Council," concluded Elwood Nielsen, "Judge Snow did it - I didn't. All I've been trying to do is defend myself in a suit filed against me by the City." City Planner Van Martin and Councilman Jan Wilking (Master (Mas-ter Plan Committee chairman) concur that the Judge will realize this and allow the city to proceed with normal business after the temporary order expires on March 15. "Anyway," commented comment-ed Van Martin, "how can a proposed ordinance which hasn't even been finalized yet possibly pose any threat to anyone." Another interesting question could be raised: "What does the adoption of the master plan have to do with the City's action against Nielsen and conversely Nielsen's action against the City?" "The suit doesn't have anything any-thing to do with the master plan," said Wilking, "It was a suit brought about by the City to stop Nielsen from tearing up the hillside." After examination, the City's suit against Nielsen doesn't seem to have any bearing in the matter except it involves property which will eventually be rezoned under the new land use plan. Nielsen's $1 million counter suit seems remotely related in that he contends his subdivision and access road were presented to the City before the Master . Plan was conceived and hence should be dealt with and considered under the previous zoning ordinance. Under the new zoning, Nielsen's" Niel-sen's" proposed Masonic Hill development site would be zoned "Estate" - a zone carryng very limited uses. Nielsen and his attorneys contend that to restrict the use of personal property leaving the owner with only the priviledge of paying taxes is the same as condemnation (taking of property) without payment. Niel- |