A Utah developer wants a state court to review whether Ogden City has the ability to dictate which phase of a project must be built first in a new mixed-use development north of downtown along Washington Boulevard. 

In a lawsuit filed late last month, Heritage Land Owners, a development company based in Tremonton, argues the Ogden City Planning Commission misinterpreted a section of city code earlier this year regarding the Midtown Village development.

The Midtown Village project calls for 15 townhome buildings consisting of 68 residential units, one commercial building and one mixed-use building on a 4.9-acre plot of land, according to plans submitted to Ogden City. 

The project has been in the works for years, as the Ogden Planning Commission granted the project its first conditional use permits in 2021. Currently, the Midtown Village plot is zoned Community Commercial (CP-2) — the same type of zone that Ogden City officials announced they wanted to block for future residential development.

The suit boils down to a disagreement over the order in which Ogden wants Heritage to construct the buildings.

The developer believes city code does not dictate the order in which developments go, as long as it still meets the requirements outlined in its permits. In this case, the development needs at least 25% of its land to be developed into non-residential, permitted commercial use space.

Craig Jenson, an attorney representing the developers, made this argument in front of the city planning commission during a June 5 meeting. He pointed to a specific line of city code regarding multifamily buildings and argued the statute did not spell out a potential sequence for this type of development. 

Jenson said his clients were confused to see a city staff report indicating to the developers the project can’t move forward without first obtaining building permits for the commercial area.

“A lot of language is being read into this ordinance that, to reiterate, is not there,” Jenson said to the planning commission. 

Barton Brierley, Ogden’s planning manager, laid out the city’s arguments in the same June 5 meeting. He said the Midtown Village is actually supposed to be a group dwelling, which carries a different set of rules from multifamily developments. 

Brierly argued that if a developer built the residential units and did not develop the non-residential and commercial space, that developer would be in violation of the zoning. Further, he pointed to another line of city code that says, “required improvements shall be installed and completed before occupancy or use of any building, structure or improvement approved in regards to the site plan, permit or other development.” 

“In our reading code, this is really clear,” said Brierley during the June 5 meeting. 

The city planning commission voted 7-2 to reject the developer’s interpretation of the code, according to minutes from the meeting. 

The developer later appealed the ruling to the Ogden City Board of Zoning Adjustment, which sided with the planning commission in August, according to the court filing.  

Heritage is asking the court to reverse the city’s decision and reexamine the developer’s application in accordance with city code. The suit also asks for the city to pay attorney’s fees and any other relief the court deems appropriate. 

Immediately after the planning commission’s rejection on June 5, Aaron Robertson of Heritage Land Development requested to create a phased development plan for Midtown Village. Phase one would include construction of a commercial building at the corner of 14th Street and Washington Boulevard and five of the townhome buildings. Phase two would consist of the mixed-use building and the remaining townhomes. The city planning commission voted to approve the phased plan. 

Jenson, on behalf of Heritage Land Owners, declined to comment on the court filing. An Ogden City spokesperson also declined to comment on the matter. 

The city council is slated to vote on a proposed ordinance during its next meeting Tuesday. 

The petition was filed in Ogden’s 2nd District Court. It’s not clear when a district judge may hear arguments from either side, or if a ruling may come in the near future.