Friends of Maple Mt. v. Mapleton City

2010 UT 11
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Friends of Maple Mountain, Inc., 	No. 20080532
a Utah nonprofit corporation;
and Jim F. Lundberg, an individual,
Plaintiffs and Appellants,
v.
Mapleton City, a Utah municipal
corporation,
Defendant and Appellee.
____________________________________
Dr. Wendell A. Gibby and Trudy Gibby,
individually, and as co-trustees
of the UVRA, Inc., WAG Pension Trust
and MCBRS, LLC, 	F I L E D
Intervenor-Defendants and
Appellees. 	February 26, 2010
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Fourth District, Provo Dep’t
The Honorable Darold J. McDade
No. 070403029
Attorneys: 	Anthony W. Schofield, Eugene H. Bramhall, Christopher
E. Bramhall, Peter C. Schofield, Orem, for plaintiffs
Eric Todd Johnson, Daniel J. McDonald, Lyle J.
Fuller, Salt Lake City, for defendant
M. Dayle Jeffs, Randall L. Jeffs, Provo, for
intervenor-defendants
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WILKINS, Justice:
INTRODUCTION
¶1 	Appellants, Friends of Maple Mountain (Friends), bring
this appeal in the course of their pursuit to hold a citizens
referendum challenging a zoning ordinance enacted by Mapleton
City (Mapleton), which rezoned a portion of the foothills of

No. 20080532 	2
Maple Mountain. 	Friends appeal the district court’s decision
that, under the test outlined by this court in Citizen’s
Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994), the zoning
ordinance was administrative in nature and therefore
nonreferable. 	We reverse.
BACKGROUND
¶2 	Mapleton is an incorporated city administered by a
mayor and six-member city council that form a unified governing
body that jointly exercises both legislative and executive powers
over the municipality. 	Intervenors, Dr. Wendell A. Gibby and
Trudy Gibby (collectively, Gibby), own 118 acres of land along
the east bench of Mapleton, near the toe of Maple Mountain, which
they wish to develop. 	For years, Mapleton and Gibby have been
involved in extensive litigation over this land, including
disputes over various condemnation actions, permitting and zoning
concerns, and alleged civil rights violations. 	On May 15, 2007,
Mapleton and Gibby entered into a settlement agreement that was
intended to resolve all legal issues between the two parties.
This agreement provided that Gibby would grant, at no cost to the
city, both an easement for a recreational trail across the
property and an easement for the city’s water main. 	Most
pertinent to this appeal, the agreement also outlined a proposed
rezone of between sixty and eighty acres of the Gibby property,
known as the “donut hole,” where Gibby desires to build a
residential subdivision. 	The donut hole is a relatively flat
section of the property with some steep areas exceeding thirty
percent slope interspersed throughout.
¶3 	The entire Gibby property has historically been zoned
as Critical Environment (CE-1). 	Mapleton created the CE-1
classification for land exceeding a thirty percent slope with the
intention of protecting “those areas of the city which, as the
result of the presence of steep slopes, soil characteristics,
flood hazards, erosion, mudflow or earthquake potential, wildfire
hazards or similar natural conditions or environmental hazards
are considered environmentally sensitive and fragile.” 	Mapleton
City, Utah, Code § 18.30.010 pmbl. (2007). 	In this zone, lands
with a thirty percent or greater slope must remain undisturbed
and in their natural condition “except for the planting of
additional vegetation, the addition of sprinkler irrigation
systems, the establishment of required fire breaks or required
access easements.” 	Id. § 18.30.080(B). 	CE-1 zoning does not
prevent development, but rather controls density. 	The CE-1
zoning ordinance calls for a minimum lot area of three acres, a
minimum lot width of 250 feet, and front, side, and rear setbacks
of fifty feet. 	Id. § 18.30.040(A), (C). 	Subject to approval by

3 	No. 20080532
the city council, these dimensions may be reduced to allow for
clustering of single-family homes, as long as the resulting
density does not exceed the density otherwise allowed in the CE-1
zone. 	Id. § 18.30.080(K). 	Under this zoning classification,
Gibby would have been able to develop a subdivision containing
between twenty and twenty-three homes in the donut hole area.
¶4 	As provided for in the settlement agreement between
Gibby and Mapleton, on August 21, 2007, the Mapleton City Council
enacted a new, cite-specific zoning designation entitled Planned
Development-2 (PD-2), which would allow for denser development of
the Gibby property. 	The PD-2 ordinance maintained protections
for slopes exceeding a thirty percent grade, but provided for the
issuance of conditional use permits that would allow for the
construction of “accessory buildings such as barns, garages,
carports, greenhouses, gardening sheds, recreation rooms, and
similar structures” “[i]n areas having a slope of greater than
30%.” 	Id. § 18.78.050. 	Minimum lot size was set at 21,780
square feet with a required lot width of 100 feet, front setback
of thirty feet, and side and rear setbacks of ten feet. 	Id.
§ 18.78.060(A)-(D). 	Application of the new ordinance to the
Gibby property would allow Gibby to build a forty-seven home
development. 	Id. § 18.78.080(A). 	On August 23, 2007, Gibby
applied to have the Gibby property rezoned from CE-1 to PD-2. 	On
September 18, 2007, the City Council unanimously voted to approve
the application.
¶5 	Appellants, Friends, are members of a Utah not-for-
profit organization comprised of citizens of Mapleton. 	On
October 5, 2007, Friends filed a petition for referendum with the
County Clerk, seeking to subject the City Council’s action in
creating the PD-2 zone to a vote by the citizens of Mapleton.
Additionally, Friends filed a Verified Complaint with the Fourth
District Court on October 15, 2007, seeking a temporary
restraining order and preliminary and permanent injunctions
prohibiting Mapleton from rezoning the Gibby property pending the
outcome of the referendum. 	The trial court issued a TRO against
Mapleton the same day. 	The parties stipulated that the
preliminary and permanent injunction hearings and trial on the
merits would be combined, and that the TRO would remain in effect
until the conclusion of the trial. 	In a five-day bench trial,
the court analyzed the facts under the test set out by this court
in Citizen’s Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994),
and determined that the City Council’s action creating the PD-2
zone was administrative in nature and therefore not subject to
referendum. 	Friends appealed to this court.

No. 20080532 	4
STANDARD OF REVIEW
¶6 The trial court determined that Mapleton City’s action
was administrative by applying the test in Citizen’s Awareness
Now v. Marakis, 873 P.2d 1117 (Utah 1994), to what it determined
were the facts of this case. “We review the [trial] court’s
factual findings for clear error and review its legal conclusions
for correctness.” S.H. v. State, 2008 UT 78, ¶ 18, 197
P.3d 636.
ANALYSIS
¶7 The underlying question of this case is whether the
Mapleton City Council’s action in creating the PD-2 zone is
referable to the citizens of Mapleton. Our case law has firmly
established that, while the “power of the people to legislate
directly through referenda is a constitutionally guaranteed
right,” that right exists only “when the law or ordinance the
voters seek to challenge was enacted legislatively as opposed to
administratively. . . . [A]dministrative zoning matters are not
referable to the voters as a matter of constitutional right while
legislative zoning matters are referable.” Save Beaver County v.
Beaver County, 2009 UT 8, ¶¶ 16-17, 203 P.3d 937 (internal
quotation marks omitted).
¶8 While this black letter rule is easily stated, in
practice it has proven difficult to distinguish between
legislative and administrative actions. If the nature of the
ordinance is not readily discernable, “courts must look to the
substance of the city council’s action to determine if it is
legislative or administrative.” Low v. Monticello, 2002 UT 90,
¶ 24, 54 P.3d 1153. For the purpose of this determination, this
court has established the sequential, four-part Marakis test.
Under this test, the trial court first determines (1) whether the
threshold requirement of proper notice of the zoning change to
the affected citizens is satisfied, and then considers, in turn,
the elements of (2) whether the new zoning ordinance is
consistent with the “general purpose and policy of the original
zoning ordinance,” (3) whether the new zoning ordinance is a
“material variation from the basic zoning law of the governmental
unit,” and (4) the appropriateness of voter participation in the
matter. Citizen’s Awareness Now v. Marakis, 873 P.2d 1117, 1123-
25 (Utah 1994) (internal quotation marks omitted). Thus, the
Marakis test requires that a trial court engage in a “fact-
intensive analysis,” Mouty v. Sandy City Recorder, 2005 UT 41,

5 	No. 20080532
¶ 24, 122 P.3d 521, in order to reach a legal conclusion
regarding whether a governmental action is legislative or
administrative.
I. 	FRIENDS DID NOT ADEQUATELY MARSHAL THE EVIDENCE TO
CHALLENGE THE TRIAL COURT’S MARAKIS DECISION
¶9 	Friends asks us to find that the trial court misapplied
the facts that led to that court’s Marakis conclusion that
Mapleton acted administratively in enacting the PD-2 zone. 	We
decline to engage in this analysis because Friends failed to
properly marshal the evidence.
¶10 	To adequately fulfill the marshaling requirement, the
appellant must temporarily assume the role of his adversary,
presenting us, “in comprehensive and fastidious order, every
scrap of competent evidence introduced at trial which supports
the very findings the appellant resists.” 	Chen v. Stewart, 2004
UT 82, ¶ 77, 100 P.3d 1177 (quoting Neely v. Bennett, 2002 UT App
189, ¶ 11, 51 P.3d 724). 	A recital of the trial court’s findings
with which the appellant disagrees does not amount to marshaling.
Rather, the appellant must educate the court as to exactly how
the trial court arrived at each of the challenged findings. 	This
requires “a precisely focused summary of all the evidence
supporting the findings,” correlated to the location of that
evidence in the record. 	Id. 	Failure to provide this summary
amounts to an invitation to the appellate court to invest its
time and resources to “go behind the trial court’s factual
findings” itself; an invitation which the appellate court may, in
its discretion, refuse. 	Id. ¶ 82 n.16.
¶11 	This error is not cured by Friends’ characterization of
the trial court’s findings of fact as “unhelpful conclusions” and
“not based on any identified evidence.” 	“At the conclusion of
every lawsuit that has survived trial and post-trial motions,
. . . the trial judge . . . had reason to believe that there was
some evidence presented to validate the outcome.” 	Jensen v.
Sawyers, 2005 UT 81, ¶ 102, 130 P.3d 325. 	Arguing otherwise
“amounts to nothing more than an attempt to shift the burden of
satisfying the [marshaling requirement] to the appellee in a
format that postpones any meaningful engagement of the
sufficiency [of the evidence] issue to the appellees’ brief.
This turns marshaling on its head.” 	Id. ¶ 101.
¶12 	Nor is the error cured by following a recital of the
challenged findings with an attempt to reargue the facts. 	This
court does not retry the facts, Crookston v. Fire Ins. Exch., 817

No. 20080532 	6
P.2d 789, 800 (Utah 1991); it reviews them for clear error.
S.H. v. State, 2008 UT 78, ¶ 18, 197 P.3d 636. Therefore,
appellants must first “present the evidence in a light most
favorable to the trial court and not attempt to construe the
evidence in a light favorable to their case.” United Park City
Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT 35,
¶ 26, 140 P.3d 1200 (internal quotation marks omitted). Then,
appellants must “explain why those findings contradict the clear
weight of the evidence.” Id.
Once appellants have established every pillar
supporting their adversary’s position, they
then must ferret out a fatal flaw in the
evidence and show why those pillars fail to
support the trial court’s findings. 	They
must show the trial court’s findings are so
lacking in support as to be against the clear
weight of the evidence, thus making them
clearly erroneous.
Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d
1051, 1053 (Utah Ct. App. 1994) (internal quotation marks and
citations omitted).
¶13 	As Friends has not met the marshaling requirement, we
will assume that the trial court’s findings are supported by the
evidence and therefore are not clearly erroneous. 	Chen, 2004 UT
82, ¶ 80.
II. 	ADOPTION OF A NEW ZONING CLASSIFICATION IS
PER SE LEGISLATIVE ACTION
¶14 	While we accept the trial court’s findings of fact, its
legal conclusions are more troublesome. 	The Mapleton City
Council wished to increase the density of development allowed on
a portion of a previously protected zone. 	It also wished to
change its policy to allow for the possibility of structures on
previously unbuildable slopes. 	The fact that Mapleton needed to
create a new zoning classification in order to accomplish these
ends strongly suggests that “the zoning change does not comport
with the general purpose and policy of the original ordinance.”
Citizen’s Awareness Now v. Marakis, 873 P.2d 1117, 1124 (Utah
1994).
¶15 	Previously, the failure of this second element of the
Marakis test would have triggered a presumption that Mapleton’s
action was legislative, requiring the court to “consider the
final two elements [of the test], material variance and

7 	No. 20080532
appropriateness of voter participation.” 	Id. 	In our effort,
however, to facilitate appropriate citizen action while not
unduly fettering the activities of municipal government, we
continue to adjust our approach to the legislative/administrative
determination based on the concerns brought before us in the
cases. 	We now hold that the adoption of a new zoning
classification is per se legislative action. 	Indeed, such action
requires a balancing of policy and public interest factors which
is the essence of legislating. 	We contemplate that this bright
line rule will reduce confusion in this area of the law and put
municipalities on clearer notice of when they are choosing to act
legislatively as opposed to administratively.
¶16 	As we clarify today, the adoption of a new zoning
classification consists of the creation of a zoning option that
did not previously exist. 	It is changing the range of available
zoning categories versus fitting pieces into the existing zoning
categories.
¶17 	On the other side of the coin, when a municipality acts
to adjust an existing zone, it more likely acts administratively.
Adjustment of the existing zone includes routine changes such as
variances, conditional use, and density changes. 	Action within
the framework of the existing zone may still require some Marakis
analysis, primarily in cases where the city is attempting to
affect a change outside of the routine.
¶18 	In enacting the PD-2 zone, Mapleton created a new
zoning category--one designed to apply exclusively to the Gibby
property. 	It differs from the existing CE-1 zone in that, most
notably, density has been increased and building restrictions on
steep slopes have been loosened. 	However, the salient point is
that Mapleton accomplished these changes by creating a new zoning
classification rather than by adjusting the existing zone.
Mapleton’s action is therefore legislative and subject to
referendum.
III. 	DIRECTION TO TRIAL COURTS FACING
MARAKIS DETERMINATIONS
¶19 	Again, Marakis requires a four step, sequential
analysis. 	First, “[t]he trial court must consider adequate
notice as a threshold matter when petitioners claim that the
enacting authority did not give citizens proper notice of the
zoning change in question.” 	Citizen’s Awareness Now v. Marakis,
873 P.2d 1117, 1123 (Utah 1994). 	“[I]f the trial court concludes
that the notice was adequate, it must then determine whether the
change was legislative or administrative using the three policy

No. 20080532 	8
elements.” 	Id. 	Second, the trial court “asks whether the newly
enacted zoning change falls within the general purpose and policy
of the original zoning ordinance.” 	Id. at 1124. 	“[I]f the
zoning change does not comport with the general purpose and
policy of the original ordinance, a legislative presumption
attaches and the trial court must then consider the final two
elements.” 	Id. 	Third, “[t]he trial court must decide whether
the zoning change ‘constitutes such a material variation from the
basic zoning law of the governmental unit as to constitute
. . . the making of a new law rather than merely . . .
implementing the comprehensive plan and adjusting it to current
conditions.’” 	Id. (quoting Wilson v. Manning, 657 P.2d 251, 254
(Utah 1982)) (ellipses in original). 	If a material variance is
found, a legislative presumption again attaches and the court
proceeds to the final step. 	Id. at 1124-25. 	In the fourth step,
the trial court determines
whether the zoning change implicates a
policy-making decision amenable to voter
control. 	Under this element, even if the
zoning change was not within the general
purpose and policy of the original ordinance
and even if it amounts to a material
variance, the change should nevertheless be
ruled administrative if voter participation
is inappropriate.
Id. at 1125.
¶20 	This sequential approach creates problems on appeal.
An appellate court may overturn a trial court’s decision on an
early element of the Marakis test, and then, lacking findings on
the subsequent elements of the test, be forced to remand the case
for a trial court’s determination of additional Marakis elements.
This process is inefficient and expensive. 	In order to
facilitate appellate review, reduce expenses for all parties, and
promote judicial economy, we now provide direction to the trial
courts.
¶21 	In the future, trial courts faced with a Marakis
evaluation should consider all four factors of the test.
Findings of fact and conclusions of law should be made for each
element. 	Having made findings and reached conclusions, the trial
court is then to apply them sequentially as outlined in Marakis.
Thus, if a trial court finds, for example, that a party has not
met the notice requirement and subsequently an appellate court
disagrees, the appellate court may then proceed with a review of

9 	No. 20080532
the trial court’s findings on the remaining three elements,
eliminating the need for remand on those issues.
IV. 	USE OF THE MARAKIS TEST DOES NOT RESULT IN
DISCRIMINATION AGAINST SMALLER CITIES
¶22 	Friends argue that our case law in Citizen’s Awareness
Now v. Marakis, 873 P.2d 1117 (Utah 1994), and its progeny
results in more favorable treatment of larger cities than of
smaller cities, creating an unconstitutionally discriminatory
situation. 	Friends cite Mouty v. Sandy City Recorder, in which
we created a “bright-line rule establishing which municipal acts
are referable” in locations where the municipality has adopted a
strong council-mayor form of government as statutorily defined in
Utah Code section 10-3b-102(1) (Supp. 2009). 	Mouty, 2005 UT 41,
¶ 36, 122 P.3d 521. 	“[T]he council-mayor form of government
provides for a strict separation of governmental powers, by which
the city council is foreclosed from undertaking any action that
is not, by definition, legislative.” 	Id. ¶ 28. 	Thus, we held
that “zoning actions properly taken by a city council [in such
cities] are necessarily legislative and therefore subject to
referenda.” 	Id.
¶23 	Typically, the strong council-mayor form of government
has been adopted by larger cities. 	Many smaller cities, such as
Mapleton, have chosen to retain a form of government in which the
city council performs both administrative and legislative
functions, as outlined by statute in Utah Code sections 10-3b-301
through -303. 	Therefore, due to the presumption that all city
council actions in a municipality employing a council-mayor form
of government are legislative, more sizable cities are largely
exempt from the implications of Marakis. 	Smaller cities,
conversely, must bear the expense of mounting a full, fact-
intensive Marakis evaluation in the courts to determine whether
their city council’s actions are administrative or legislative in
nature. 	See Mouty, 2005 UT 41, ¶ 35 (“[W]e recognize that the
approach outlined in Marakis has continuing applicability when it
is necessary to determine whether a zoning action taken by a
governing body empowered with both administrative and legislative
authority is best categorized as administrative or
legislative.”).
¶24 	While we recognize that smaller cities may feel a
disproportionate burden in the arena of
administrative/legislative determinations, this burden does not
amount to unconstitutional discrimination. 	In fact, smaller
cities possess many offsetting advantages. 	Because fewer voters
reside in smaller cities than in larger cities, fewer signatures

No. 20080532 	10
are required to fulfill the statutory requirements for a
referendum. 	Additionally, because of the small size of the
community, residents of small cities are closer to and thus have
greater access to their governmental unit than do residents of
larger cities. 	Also, in smaller cities a political solution may
be more feasible than it would be in a larger city, and thus
perhaps more expeditious than a referendum; unsatisfied citizens
may always vote their city council members out of office.
¶25 	Finally, we note that while the “power of the people to
legislate directly through referenda is a constitutionally
guaranteed right,” Save Beaver County v. Beaver County, 2009 UT
8, ¶ 16, 203 P.3d 937, the constitution does not mandate that
the exercise of that right be easy. 	Regardless of the size of
the city, there will always be challenges in bringing about a
referendum. 	However, as long as the right to referendum is not
inhibited in any way by the governing body, the constitution is
satisfied.
CONCLUSION
¶26 	We hold that a city council’s adoption of a new zoning
classification is per se legislative action. 	Thus, subject to
the statutory procedural rules governing referenda, all new
zoning classifications may be appropriately subjected to a
referendum vote by the affected citizens. 	In such cases an
evaluation under Citizen’s Awareness Now v. Marakis, 873 P.2d
1117 (Utah 1994) is no longer required. 	Marakis remains in
effect as needed in circumstances in which a city tinkers with an
existing zoning classification beyond what is common and
ordinary. 	We find no discrimination inherent in the use of the
Marakis test, and hold that its use is appropriate when necessary
regardless of the size of a city or the form of government that
city has adopted. 	Pursuant to the rule we announce today, we
reverse the decision of the trial court and hold that the action
taken by Mapleton in adopting the entirely new PD-2 zoning
classification was per ser legislative, freeing Friends to
exercise their constitutional right to referendum should they so
desire.
---
¶27 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Parts I, II, and
IV of Justice Wilkins’ opinion.
---

11 	No. 20080532
DURHAM, Chief Justice, concurring:
¶28 	We concur with the majority’s opinion in Parts I, II,
and IV. 	We write separately because the four-part Marakis test
must be modified in light of our holding today.
¶29 	The majority opinion imposes a mandate on district
courts evaluating the legislative/administrative distinction to
enter findings of fact and conclusions of law on all four
elements of the Marakis test before handing down a decision.
Supra Part III. 	We fully agree with this holding and the
reasoning articulated by the majority. 	We believe, however, our
holding today coupled with this court’s previous mandate that
this test follow a strict sequential analysis requires us to
rearticulate the nature and purpose of the final three parts of
this test.
¶30 	In Citizen’s Awareness Now v. Marakis, this court set
up a four-step sequential test aimed at distinguishing between
legislative and administrative decisions made by local
governments. 	See 873 P.2d 1117, 1123-25 (Utah 1994) (directing
district courts to “address[] each policy element in the order
and manner identified in this opinion”). 	We further refined the
test by breaking it into two distinct inquiries. 	First, the
district court is required to determine if the enacting authority
“provided the community with adequate notice.” 	Id. at 1125.
Second, the district court is charged with determining if the
enacting authority’s action was legislative or administrative.
Id. 	The resulting legislative/administrative analysis is to be
determined pursuant to the last three elements of the Marakis
test. 	Id.; see also Citizens for Responsible Transp. v. Draper
City, 2008 UT 43, ¶ 11, 190 P.3d 1245 (“[W]e look at the general
purpose and policy of the original law, the material variance
between the new provisions and the original law, and the general
appropriateness of voter participation.”). 	Each of these
elements under the legislative-administrative analysis could be
dispositive on the issue, thereby halting the district court’s
analysis. 	Marakis, 873 P.2d at 1125-26.
¶31 	We believe the Marakis test should continue to rely on
a distinction between an analysis of adequate notice on the one
hand and the inquiry into the legislative/administrative question
on the other. 	As to these two inquiries, the Marakis test is
sequential and demands that the district court first determine if
the enacting authority provided adequate notice and then turn to
consider if the decision was legislative or administrative.

No. 20080532 	12
¶32 	Our mandate today, which requires the district court
consider all four steps of the Marakis test before rendering a
decision, requires us to rearticulate the analysis of this
legislative/administrative distinction. 	In our view, the last
three elements of the Marakis test should now be treated as a
three-part balancing test that the district court must consider
in evaluating whether a political subdivision has enacted a new
zone through its legislative power or administrative authority.
Under this modification to the test, the district court would
continue to engage in the same policy-based inquiry by asking
(1) whether the action fits within the general purpose and policy
of the existing ordinance, (2) whether the change constitutes a
material variance, and (3) whether the action is appropriate for
voter participation. 	Id. at 1124-25. 	Rather than treating these
three questions as elements that must be answered in the
affirmative or negative in a sequential order, the district
courts should treat this analysis as involving three prongs that
are balanced against each other. 	The district court must
consider each of these prongs in context to determine if the
disputed action was legislative--thereby amenable to referendum--
or administrative.
¶33 	A balancing test for this legislative/administrative
analysis gives effect to our original holding in Marakis, as each
element of it continues to have the potential to be determinative
on the entire analysis. 	See id. at 1125-26 (holding that a
decision that the enacting authority’s action was administrative
on any of the three elements will eliminate the possibility of a
referendum). 	Such a test would remain true to the “policy-based
line of reasoning” that this court first identified in Marakis.
Id. at 1123. 	At the same time, by articulating this as a
balancing test we avoid the ensuing advisory opinions that would
result if we were to leave the test as sequential while requiring
the district court to complete all elements of the test before
rendering a decision. 	Moreover, a balancing test is appropriate
given that the three elements of the legislative/administrative
question often require an overlapping analysis. 	The district
court would be required to look at each of these elements
independently as well as how they relate to each other in the
overall analysis.
¶34 	In sum, we agree that the demands of appellate review,
the expense of litigation, and judicial economy require that the
district court enter findings of fact and conclusions of law on
all four components of the Marakis test. 	In light of this
holding, we modify our previous articulation of this test by
requiring the district court to engage in a balancing test of the

13 	No. 20080532
elements that comprise the inquiry into the
legislative/administrative distinction.
---
¶35 	Associate Chief Justice Durrant, Justice Parrish, and
Justice Nehring concur in Chief Justice Durham’s concurring
opinion.