01-23-06 12:14 PM

97 10-9a-102, as renumbered and amended by Chapter 254, Laws of Utah 2005
98 10-9a-103, as last amended by Chapter 7 and renumbered and amended by Chapter
99 254, Laws of Utah 2005

100 10-9a-104, as renumbered and amended by Chapter 254, Laws of Utah 2005

101 10-9a-202, as enacted by Chapter 254, Laws of Utah 2005

102 10-9a-203, as last amended by Chapters 169, 245 and renumbered and amended by

103 Chapter 254, Laws of Utah 2005

104 10-9a-204, as enacted by Chapter 254, Laws of Utah 2005

105 10-9a-205, as enacted by Chapter 254, Laws of Utah 2005

106 10-9a-302, as renumbered and amended by Chapter 254, Laws of Utah 2005

107 10-9a-401, as renumbered and amended by Chapter 254, Laws of Utah 2005

108 10-9a-403, as last amended by Chapter 245 and renumbered and amended by Chapter

109 254, Laws of Utah 2005

110 10-9a-501, as renumbered and amended by Chapter 254, Laws of Utah 2005

111 10-9a-502, as renumbered and amended by Chapter 254, Laws of Utah 2005

112 10-9a-504, as renumbered and amended by Chapter 254, Laws of Utah 2005

113 10-9a-505, as renumbered and amended by Chapter 254, Laws of Utah 2005

114 10-9a-509, as enacted by Chapter 254, Laws of Utah 2005

115 10-9a-511, as last amended by Chapters 7, 49 and renumbered and amended by Chapter

116 254, Laws of Utah 2005

117 10-9a-603, as renumbered and amended by Chapter 254, Laws of Utah 2005

118 10-9a-702, as renumbered and amended by Chapter 254, Laws of Utah 2005

119 10-9a-703, as enacted by Chapter 254, Laws of Utah 2005

120 10-9a-801, as renumbered and amended by Chapter 254, Laws of Utah 2005 121 10-9a-803, as renumbered and amended by Chapter 254, Laws of Utah 2005

122 11-36-201, as last amended by Chapters 169 and 254, Laws of Utah 2005

123 11-36-202, as last amended by Chapter 254, Laws of Utah 2005

124 11-36-302, as enacted by Chapter 11, Laws of Utah 1995, First Special Session

125 11-36-401, as last amended by Chapter 254, Laws of Utah 2005

126 17-27a-102, as renumbered and amended by Chapter 254, Laws of Utah 2005

127 17-27a-103, as last amended by Chapter 7 and renumbered and amended by Chapter

128 254, Laws of Utah 2005

129 17-27a-104, as renumbered and amended by Chapter 254, Laws of Utah 2005

130 17-27a-202, as enacted by Chapter 254, Laws of Utah 2005

131 17-27a-203, as last amended by Chapters 169, 245 and renumbered and amended by

132 Chapter 254, Laws of Utah 2005

133 17-27a-204, as enacted by Chapter 254, Laws of Utah 2005

134 17-27a-205, as enacted by Chapter 254, Laws of Utah 2005

135 17-27a-302, as renumbered and amended by Chapter 254, Laws of Utah 2005

136 17-27a-401, as renumbered and amended by Chapter 254, Laws of Utah 2005

137 17-27a-403, as last amended by Chapter 245 and renumbered and amended by Chapter

138 254, Laws of Utah 2005

139 17-27a-404, as renumbered and amended by Chapter 254, Laws of Utah 2005

140 17-27a-405, as enacted by Chapter 254, Laws of Utah 2005

141 17-27a-409, as renumbered and amended by Chapter 254, Laws of Utah 2005

142 17-27a-501, as renumbered and amended by Chapter 254, Laws of Utah 2005

143 17-27a-502, as renumbered and amended by Chapter 254, Laws of Utah 2005

144 17-27a-504, as renumbered and amended by Chapter 254, Laws of Utah 2005

145 17-27a-505, as renumbered and amended by Chapter 254, Laws of Utah 2005

146 17-27a-508, as enacted by Chapter 254, Laws of Utah 2005

147 17-27a-510, as last amended by Chapters 7, 49 and renumbered and amended by

148 Chapter 254, Laws of Utah 2005

149 17-27a-603, as renumbered and amended by Chapter 254, Laws of Utah 2005

150 17-27a-702, as renumbered and amended by Chapter 254, Laws of Utah 2005

151 17-27a-703, as enacted by Chapter 254, Laws of Utah 2005

S.B. 170 01-23-06 12:14 PM

152 17-27a-801, as renumbered and amended by Chapter 254, Laws of Utah 2005 153 17-27a-803, as renumbered and amended by Chapter 254, Laws of Utah 2005 154 17-34-6, as last amended by Chapter 254, Laws of Utah 2005 155 ENACTS: 156 10-9a-502.5, Utah Code Annotated 1953 157 10-9a-509.5, Utah Code Annotated 1953 158 11-36-601, Utah Code Annotated 1953 159 17-27a-502.5, Utah Code Annotated 1953 160 17-27a-509.5, Utah Code Annotated 1953 161 162 Be it enacted by the Legislature of the state of Utah: 163 Section 1. Section 10-9a-102 is amended to read: 164 10-9a-102. Purposes -- General land use authority. 165 (1) The purposes of this chapter are to provide for the health, safety, and welfare, and 166 promote the prosperity, improve the morals, peace and good order, [comfort,] and 167 convenience[, and aesthetics] of each municipality and its present and future inhabitants and 168 businesses, to protect property rights, to protect the tax base, to secure economy in 169 governmental expenditures, to foster the state's agricultural and other industries, and to protect 170 both urban and nonurban development[, to protect and ensure access to sunlight for solar 171 energy devices, and to protect property values]. 172 (2) To accomplish the purposes of this chapter, municipalities may enact [all] 173 appropriate ordinances, resolutions, and rules that support proper community development and 174 protect property owners' rights to own, hold, develop, and manage their property, and may enter 175 into other forms of land use controls and development agreements that [they consider necessary 176 or] are appropriate for the use and development of land within the municipality, including 177 ordinances, resolutions, rules, restrictive covenants, easements, and development agreements 178 governing uses, density, open spaces, structures, buildings, energy efficiency, light and air, air 179 quality, transportation and public or alternative transportation, infrastructure, street and 180 building orientation and width requirements, public facilities, and height and location of 181 vegetation, trees, and landscaping, unless expressly prohibited by law. 182 Section 2. Section 10-9a-103 is amended to read: 183 10-9a-103. Definitions. 184 As used in this chapter: 185 (1) "Affected entity" means a county, municipality, independent special district under 186 Title 17A, Chapter 2, Independent Special Districts, local district under Title 17B, Chapter 2, 187 Local Districts, school district, interlocal cooperation entity established under Title 11, Chapter 188 13, Interlocal Cooperation Act, specified public utility, or the Utah Department of 189 Transportation, if: 190 (a) the entity's services or facilities are likely to require expansion or significant 191 modification because of an intended use of land; 192 (b) the entity has filed with the municipality a copy of the entity's general or long-range 193 plan; or 194 (c) the entity's boundaries or facilities are within one mile of land which is the subject 195 of a general plan amendment or land use ordinance change. 196 (2) "Affected property owner" means an owner of at least two acres of commercial, 197 residential, agricultural, institutional, or industrial land that is the subject of a proposed change 198 in zoning designation or land use. 199 [(2)] (3) "Appeal authority" means the person, board, commission, agency, or other 200 body designated by ordinance to decide an appeal of a decision of a land use application or a 201 variance. 202 [(3)] (4) "Billboard" means a freestanding ground sign located on industrial, 203 commercial, or residential property if the sign is designed or intended to direct attention to a 204 business, product, or service that is not sold, offered, or existing on the property where the sign 205 is located. 206 [(4)] (5) "Charter school" includes: 207 (a) an operating charter school; 208 (b) a charter school applicant that has its application approved by a chartering entity in 209 accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; and 210 (c) an entity who is working on behalf of a charter school or approved charter applicant 211 to develop or construct a charter school building. 212 [(5)] (6) "Chief executive officer" means the: 213 (a) mayor in municipalities operating under all forms of municipal government except

S.B. 170 01-23-06 12:14 PM

214 the council-manager form; or 215 (b) city manager in municipalities operating under the council-manager form of 216 municipal government. 217 [(6)] (7) "Conditional use" means a land use that, because of its unique characteristics 218 or potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not 219 be compatible in some areas or may be compatible only if certain conditions are required that 220 mitigate or eliminate the detrimental impacts. 221 [(7)] (8) "Constitutional taking" means a governmental action that results in a taking of 222 private property so that compensation to the owner of the property is required by the: 223 (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or 224 (b) Utah Constitution Article I, Section 22. 225 [(8)] (9) "Culinary water authority" means the department, agency, or public entity with 226 responsibility to review and approve the feasibility of the culinary water system and sources for 227 the subject property. 228 [(9)] (10) (a) "Disability" means a physical or mental impairment that substantially 229 limits one or more of a person's major life activities, including a person having a record of such 230 an impairment or being regarded as having such an impairment. 231 (b) "Disability" does not include current illegal use of, or addiction to, any federally 232 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 233 802. 234 [(10)] (11) "Elderly person" means a person who is 60 years old or older, who desires 235 or needs to live with other elderly persons in a group setting, but who is capable of living 236 independently. 237 [(11)] (12) "General plan" means a document that a municipality adopts that sets forth 238 general guidelines for proposed future development of the land within the municipality. 239 [(12)] (13) "Identical plans" means building plans submitted to a municipality that are 240 substantially identical to building plans that were previously submitted to and reviewed and 241 approved by the municipality and describe a building that is: 242 (a) located on land zoned the same as the land on which the building described in the 243 previously approved plans is located; and 244 (b) subject to the same geological and meteorological conditions and the same law as 245 the building described in the previously approved plans. 246 [(13)] (14) "Land use application" means an application required by a municipality's 247 land use ordinance relating to the use of land, including an application for approval of a 248 subdivision, development, conditional use permit, development agreement, change in zoning 249 designation, general plan amendment, or other similar action. 250 [(14)] (15) "Land use authority" means a person, board, commission, agency, or other 251 body designated by the local legislative body to act upon a land use application. 252 [(15)] (16) "Land use ordinance" means a planning, zoning, development, or 253 subdivision ordinance of the municipality, but does not include the general plan. 254 [(16)] (17) "Legislative body" means the municipal council. 255 [(17)] (18) "Lot line adjustment" means the relocation of the property boundary line [in 256 a subdivision] between two adjoining lots with the consent of the owners of record. 257 [(18)] (19) "Moderate income housing" means housing occupied or reserved for 258 occupancy by households with a gross household income equal to or less than 80% of the 259 median gross income for households of the same size in the county in which the city is located. 260 [(19)] (20) "Nominal fee" means a fee that reasonably reimburses a municipality only 261 for time spent and expenses incurred in: 262 (a) verifying that building plans are identical plans; and 263 (b) reviewing and approving those minor aspects of identical plans that differ from the 264 previously reviewed and approved building plans. 265 [(20)] (21) "Noncomplying structure" means a structure that: 266 (a) legally existed before its current land use designation; and 267 (b) because of one or more subsequent land use ordinance changes, does not conform 268 to the setback, height restrictions, or other regulations, excluding those regulations, which 269 govern the use of land. 270 [(21)] (22) "Nonconforming use" means a use of land that: 271 (a) legally existed before its current land use designation; 272 (b) has been maintained continuously since the time the land use ordinance governing 273 the land changed; and 274 (c) because of one or more subsequent land use ordinance changes, does not conform 275 to the regulations that now govern the use of the land.

S.B. 170 01-23-06 12:14 PM

276 [(22)] (23) "Official map" means a map drawn by municipal authorities and recorded in 277 a county recorder's office that: 278 (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for 279 highways and other transportation facilities; 280 (b) provides a basis for restricting development in designated rights-of-way or between 281 designated setbacks to allow the government authorities time to purchase or otherwise reserve 282 the land; and 283 (c) has been adopted as an element of the municipality's general plan. 284 [(23)] (24) "Person" means an individual, corporation, partnership, organization, 285 association, trust, governmental agency, or any other legal entity. 286 [(24)] (25) "Plan for moderate income housing" means a written document adopted by 287 a city legislative body that includes: 288 (a) an estimate of the existing supply of moderate income housing located within the 289 city; 290 (b) an estimate of the need for moderate income housing in the city for the next five 291 years as revised biennially; 292 (c) a survey of total residential land use; 293 (d) an evaluation of how existing land uses and zones affect opportunities for moderate 294 income housing; and 295 (e) a description of the city's program to encourage an adequate supply of moderate 296 income housing. 297 [(25)] (26) "Plat" means a map or other graphical representation of lands being laid out 298 and prepared in accordance with Section 10-9a-603, 17-23-17, or 57-8-13. 299 [(26)] (27) "Public hearing" means a hearing at which members of the public are 300 provided a reasonable opportunity to comment on the subject of the hearing. 301 [(27)] (28) "Public meeting" means a meeting that is required to be open to the public 302 under Title 52, Chapter 4, Open and Public Meetings. 303 [(28)] (29) "Record of survey map" means a map of a survey of land prepared in 304 accordance with Section 17-23-17. 305 [(29)] (30) "Residential facility for elderly persons" means a single-family or 306 multiple-family dwelling unit that meets the requirements of Part 4, General Plan, but does not

307 include a health care facility as defined by Section 26-21-2.
308 [(30)] (31) "Residential facility for persons with a disability" means a residence:
309 (a) in which more than one person with a disability resides; and
310 (b) (i) is licensed or certified by the Department of Human Services under Title 62A,
311 Chapter 2, Licensure of Programs and Facilities; or
312 (ii) is licensed or certified by the Department of Health under Title 26, Chapter 21,
313 Health Care Facility Licensing and Inspection Act.
314 [(31)] (32) "Sanitary sewer authority" means the department, agency, or public entity
315 with responsibility to review and approve the feasibility of sanitary sewer services or onsite
316 wastewater systems.
317 [(32)] (33) "Special district" means an entity established under the authority of Title
318 17A, Special Districts, and any other governmental or quasi-governmental entity that is not a
319 county, municipality, school district, or unit of the state.
320 [(33)] (34) "Specified public utility" means an electrical corporation, gas corporation,
321 or telephone corporation, as those terms are defined in Section 54-2-1.
322 [(34)] (35) "Street" means a public right-of-way, including a highway, avenue,
323 boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement,
324 or other way.
325 [(35)] (36) (a) "Subdivision" means any land that is divided, resubdivided or proposed
326 to be divided into two or more lots, parcels, sites, units, plots, or other division of land for the
327 purpose, whether immediate or future, for offer, sale, lease, or development either on the
328 installment plan or upon any and all other plans, terms, and conditions.
329 (b) "Subdivision" includes:
330 (i) the division or development of land whether by deed, metes and bounds description,
331 devise and testacy, map, plat, or other recorded instrument; and
332 (ii) except as provided in Subsection [(35)] (36)(c), divisions of land for residential and
333 nonresidential uses, including land used or to be used for commercial, agricultural, and
334 industrial purposes.
335 (c) "Subdivision" does not include:
336 (i) a bona fide division or partition of agricultural land for the purpose of joining one of
337 the resulting separate parcels to a contiguous parcel of unsubdivided agricultural land, if

S.B. 170 01-23-06 12:14 PM

338 neither the resulting combined parcel nor the parcel remaining from the division or partition
339 violates an applicable land use ordinance;
340 (ii) a recorded agreement between owners of adjoining unsubdivided properties
341 adjusting their mutual boundary if:
342 (A) no new lot is created; and
343 (B) the adjustment does not violate applicable land use ordinances; or
344 (iii) a recorded document, executed by the owner of record:
345 (A) revising the legal description of more than one contiguous unsubdivided parcel of
346 property into one legal description encompassing all such parcels of property; or
347 (B) joining a subdivided parcel of property to another parcel of property that has not
348 been subdivided, if the joinder does not violate applicable land use ordinances.
349 (d) The joining of a subdivided parcel of property to another parcel of property that has
350 not been subdivided does not constitute a subdivision under this Subsection [(35)] (36) as to
351 the unsubdivided parcel of property or subject the unsubdivided parcel to the municipality's
352 subdivision ordinance.
353 [(36)] (37) "Unincorporated" means the area outside of the incorporated area of a city
354 or town.
355 [(37)] (38) "Zoning map" means a map, adopted as part of a land use ordinance, that
356 depicts land use zones, overlays, or districts.
357 Section 3. Section 10-9a-104 is amended to read:
358 10-9a-104. Stricter requirements.
359 [(1) Except as provided in Subsection (2), a] A municipality may not enact an
360 ordinance imposing stricter requirements or higher standards than are required by this chapter.
361 [(2) A municipality may not impose stricter requirements or higher standards than are
362 required by:]
363 [(a) Section 10-9a-305;]
364 [(b) Section 10-9a-514;]
365 [(c) Section 10-9a-516; and]
366 [(d) Section 10-9a-520.]
367 Section 4. Section 10-9a-202 is amended to read:
368 10-9a-202. Applicant notice.

369 (1) For each land use application, the municipality shall:
370 (a) notify the applicant of the date, time, and place of each public hearing and public
371 meeting to consider the application [and];
372 (b) provide to each applicant a copy of each staff report and written internal
373 communication regarding the applicant or the pending application at least three business days
374 before the public hearing or public meeting; and
375 (c) notify the applicant of any final action on a pending application.
376 (2) If a municipality fails to comply with the requirements of Subsection (1)(a) or (b)
377 or both, an applicant may waive the failure so that the application may stay on the public
378 hearing or public meeting agenda and be considered as if the requirements had been met.
379 Section 5. Section 10-9a-203 is amended to read:
380 10-9a-203. Notice of intent to prepare a general plan or comprehensive general
381 plan amendments in certain municipalities.
382 (1) Before preparing a proposed general plan or a comprehensive general plan
383 amendment, each municipality [within a county of the first or second class] shall provide ten
384 calendar days notice of its intent to prepare a proposed general plan or a comprehensive general
385 plan amendment to:
386 (a) each affected property owner;
387 [(a)] (b) each affected entity;
388 [(b)] (c) the Automated Geographic Reference Center created in Section 63F-1-506;
389 [(c)] (d) the association of governments, established pursuant to an interlocal
390 agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which the municipality is
391 a member; and
392 [(d)] (e) the state planning coordinator appointed under Section 63-38d-202.
393 (2) Each notice under Subsection (1) shall:
394 (a) indicate that the municipality intends to prepare a general plan or a comprehensive
395 general plan amendment, as the case may be;
396 (b) describe or provide a map of the geographic area that will be affected by the general
397 plan or amendment;
398 (c) be sent by mail, e-mail, or other effective means;
399 (d) invite the affected entities and affected property owners to provide information for

S.B. 170 01-23-06 12:14 PM

400 the municipality to consider in the process of preparing, adopting, and implementing a general 401 plan or amendment concerning: 402 (i) impacts that the use of land proposed in the proposed general plan or amendment 403 may have; and 404 (ii) uses of land within the municipality that the affected entity or affected property 405 owner is considering that may conflict with the proposed general plan or amendment; and 406 (e) include the address of an Internet website, if the municipality has one, and the name 407 and telephone number of a person where more information can be obtained concerning the 408 municipality's proposed general plan or amendment. 409 Section 6. Section 10-9a-204 is amended to read: 410 10-9a-204. Notice of public hearings and public meetings to consider general plan 411 or modifications. 412 (1) Each municipality shall provide: 413 (a) notice of the date, time, and place of the first public hearing to consider the original 414 adoption or any modification of all or any portion of a general plan; and 415 (b) notice of each public meeting on the subject. 416 (2) Each notice of a public hearing under Subsection (1)(a) shall be at least ten 417 calendar days before the public hearing and shall be: 418 (a) published in a newspaper of general circulation in the area; 419 (b) mailed to each affected property owner and each affected entity; and 420 (c) posted: 421 (i) in at least three public locations within the municipality; or 422 (ii) on the municipality's official website. 423 (3) Each notice of a public meeting under Subsection (1)(b) shall be at least 24 hours 424 before the meeting and shall be: 425 (a) submitted to a newspaper of general circulation in the area; and 426 (b) posted: 427 (i) in at least three public locations within the municipality; or 428 (ii) on the municipality's official website. 429 Section 7. Section 10-9a-205 is amended to read: 430 10-9a-205. Notice of public hearings and public meetings on adoption or

431 modification of land use ordinance.
432 (1) Each municipality shall give:
433 (a) notice of the date, time, and place of the first public hearing to consider the
434 adoption or any modification of a land use ordinance; and
435 (b) notice of each public meeting on the subject.
436 (2) Each notice of a public hearing under Subsection (1)(a) shall be:
437 (a) mailed to each affected property owner and each affected entity at least ten calendar
438 days before the public hearing;
439 (b) posted:
440 (i) in at least three public locations within the municipality; or
441 (ii) on the municipality's official website; and
442 (c) (i) published in a newspaper of general circulation in the area at least ten calendar
443 days before the public hearing; or
444 (ii) mailed at least three days before the public hearing to:
445 (A) each property owner whose land is directly affected by the land use ordinance
446 change; and
447 (B) each adjacent property owner within the parameters specified by municipal
448 ordinance.
449 (3) Each notice of a public meeting under Subsection (1)(b) shall be at least 24 hours
450 before the meeting and shall be posted:
451 (a) in at least three public locations within the municipality; or
452 (b) on the municipality's official website.
453 Section 8. Section 10-9a-302 is amended to read:
454 10-9a-302. Planning commission powers and duties.
455 (1) The planning commission shall make a recommendation to the legislative body for:
456 [(1)] (a) a general plan and amendments to the general plan;
457 [(2)] (b) land use ordinances, zoning maps, official maps, and amendments;
458 [(3)] (c) an appropriate delegation of power to at least one designated land use
459 authority to hear and act on a land use application;
460 [(4)] (d) an appropriate delegation of power to at least one appeal authority to hear and
461 act on an appeal from a decision of the land use authority; and

S.B. 170 01-23-06 12:14 PM

462 [(5)] (e) application processes that:
463 [(a)] (i) [may] shall include a designation of routine land use matters that, upon
464 application and proper notice, will receive informal streamlined review and action if the
465 application is uncontested; and
466 [(b)] (ii) shall protect the right of each:
467 [(i)] (A) applicant and third party to require formal consideration of any application by
468 a land use authority;
469 [(ii)] (B) applicant, adversely affected party, or municipal officer or employee to appeal
470 a land use authority's decision to a separate appeal authority; and
471 [(iii)] (C) participant to be heard in each public hearing on a contested application.
472 (2) (a) Each planning commission meeting shall be subject to Title 52, Chapter 4, Open
473 and Public Meetings.
474 (b) Planning commission records are subject to Title 63, Chapter 2, Government
475 Records Access and Management Act.
476 Section 9. Section 10-9a-401 is amended to read:
477 10-9a-401. General plan required -- Content.
478 (1) In order to accomplish the purposes of this chapter, each municipality shall prepare
479 and adopt a comprehensive, long-range general plan for:
480 (a) present and future needs of the municipality; and
481 (b) growth and development of all or any part of the land within the municipality.
482 (2) The plan may provide for:
483 (a) health, general welfare, safety, energy conservation, transportation, prosperity, civic
484 activities, [aesthetics,] and recreational, educational, and cultural opportunities;
485 [(b) the reduction of the waste of physical, financial, or human resources that result
486 from either excessive congestion or excessive scattering of population;]
487 [(c)] (b) the efficient and economical use, conservation, and production of the supply
488 of:
489 (i) food and water; and
490 (ii) drainage, sanitary, and other facilities and resources;
491 [(d)] (c) the use of energy conservation and solar and renewable energy resources;
492 [(e)] (d) the protection of urban development;

493 [(f)] (e) the protection or promotion of moderate income housing; 494 [(g)] (f) the protection and promotion of air quality; 495 [(h)] (g) historic preservation; 496 [(i)] (h) identifying future uses of land that are likely to require an expansion or 497 significant modification of services or facilities provided by each affected entity; and 498 [(j)] (i) an official map. 499 (3) Subject to Subsection 10-9a-403(2), the municipality may determine the 500 comprehensiveness, extent, and format of the general plan. 501 (4) The general plan shall ensure that land use policies, restrictions, and conditions do 502 not violate private property rights or create unnecessary technical limitations on the use of 503 property. 504 Section 10. Section 10-9a-403 is amended to read: 505 10-9a-403. Plan preparation. 506 (1) (a) The planning commission shall provide notice, as provided in Section 507 10-9a-203, of its intent to make a recommendation to the municipal legislative body for a 508 general plan or a comprehensive general plan amendment when the planning commission 509 initiates the process of preparing its recommendation. 510 (b) The planning commission shall make and recommend to the legislative body a 511 proposed general plan for the area within the municipality. 512 (c) The plan may include areas outside the boundaries of the municipality if, in the 513 planning commission's judgment, those areas are related to the planning of the municipality's 514 territory. 515 (d) Except as otherwise provided by law or with respect to a municipality's power of 516 eminent domain, when the plan of a municipality involves territory outside the boundaries of 517 the municipality, the municipality may not take action affecting that territory without the 518 concurrence of the county or other municipalities affected. 519 (2) (a) At a minimum, the proposed general plan, with the accompanying maps, charts, 520 and descriptive and explanatory matter, shall include the planning commission's 521 recommendations for the following plan elements: 522 (i) a land use element that: 523 (A) designates the long-term goals and the proposed extent, general distribution, and

S.B. 170 01-23-06 12:14 PM

524 location of land for housing, business, industry, agriculture, recreation, education, public 525 buildings and grounds, open space, and other categories of public and private uses of land as 526 appropriate; and 527 (B) may include a statement of the projections for and standards of population density 528 and building intensity recommended for the various land use categories covered by the plan; 529 (ii) a transportation and traffic circulation element consisting of the general location 530 and extent of existing and proposed freeways, arterial and collector streets, mass transit, and 531 any other modes of transportation that the planning commission considers appropriate, all 532 correlated with the population projections and the proposed land use element of the general 533 plan; and 534 (iii) for cities, an estimate of the need for the development of additional moderate 535 income housing within the city, and a plan to provide a realistic opportunity to meet estimated 536 needs for additional moderate income housing if long-term projections for land use and 537 development occur. 538 (b) In drafting the moderate income housing element, the planning commission: 539 (i) shall consider the Legislature's determination that cities should facilitate a 540 reasonable opportunity for a variety of housing, including moderate income housing: 541 (A) to meet the needs of people desiring to live there; and 542 (B) to allow persons with moderate incomes to benefit from and fully participate in all 543 aspects of neighborhood and community life; and 544 (ii) may include an analysis of why the recommended means, techniques, or 545 combination of means and techniques provide a realistic opportunity for the development of 546 moderate income housing within the planning horizon, which means or techniques may include 547 a recommendation to: 548 (A) rezone for densities necessary to assure the production of moderate income 549 housing; 550 (B) facilitate the rehabilitation or expansion of infrastructure that will encourage the 551 construction of moderate income housing; 552 (C) encourage the rehabilitation of existing uninhabitable housing stock into moderate 553 income housing; 554 (D) consider general fund subsidies to waive construction related fees that are 555 otherwise generally imposed by the city; 556 (E) consider utilization of state or federal funds or tax incentives to promote the 557 construction of moderate income housing; 558 (F) consider utilization of programs offered by the Utah Housing Corporation within 559 that agency's funding capacity; and 560 (G) consider utilization of affordable housing programs administered by the 561 Department of Community and Culture. 562 (3) The proposed general plan may include: 563 (a) an environmental element that addresses: 564 (i) the protection, conservation, development, and use of natural resources, including 565 the quality of air, forests, soils, rivers and other waters, harbors, fisheries, wildlife, minerals, 566 and other natural resources; and 567 (ii) the reclamation of land, flood control, prevention and control of the pollution of 568 streams and other waters, [regulation of the use of land on hillsides,] stream channels, and 569 other environmentally sensitive areas, the prevention, control, and correction of the erosion of 570 soils, protection of watersheds and wetlands, and the mapping of known geologic hazards; 571 (b) a public services and facilities element showing general plans for sewage, water, 572 waste disposal, drainage, public utilities, rights-of-way, easements, and facilities for them, 573 police and fire protection, and other public services; 574 (c) a rehabilitation, redevelopment, and conservation element consisting of plans and 575 programs for: 576 (i) historic preservation; and 577 (ii) the diminution or elimination of blight; and 578 (iii) redevelopment of land, including housing sites, business and industrial sites, and 579 public building sites; 580 (d) an economic element composed of appropriate studies and forecasts, as well as an 581 economic development plan, which may include review of existing and projected municipal 582 revenue and expenditures, revenue sources, identification of basic and secondary industry, 583 primary and secondary market areas, employment, and retail sales activity; 584 (e) recommendations for implementing all or any portion of the general plan, including 585 the use of land use ordinances, capital improvement plans, community development and

S.B. 170 01-23-06 12:14 PM

586 promotion, and any other appropriate action;
587 (f) provisions addressing any of the matters listed in Subsection 10-9a-401(2); and
588 (g) any other element the municipality considers appropriate.
589 Section 11. Section 10-9a-501 is amended to read:
590 10-9a-501. Legislative body authority -- Administrative actions.
591 (1) The legislative body may enact [land use ordinances and]:
592 (a) a general plan;
593 (b) text in a zoning ordinance;
594 (c) a zoning map[.] for the entire city; and
595 (d) a comprehensive rezoning that affects at least 25% of the land within the city.
596 (2) All actions taken under this chapter, other than those identified in Subsection (1),
597 shall be considered to be administrative in nature.

598 Section 12. Section 10-9a-502 is amended to read:
599 10-9a-502. Preparation and adoption of land use ordinance or zoning map.
600 (1) The planning commission shall:
601 (a) provide notice as required by Subsection 10-9a-205(1)(a);
602 (b) hold a public hearing on a proposed land use ordinance or zoning map; and
603 (c) prepare and recommend to the legislative body a proposed land use ordinance or
604 ordinances and zoning map that represent the planning commission's recommendation for
605 regulating the use and development of land within all or any part of the area of the
606 municipality.
607 (2) The municipal legislative body shall consider each proposed land use ordinance and
608 zoning map recommended to it by the planning commission, and, after providing notice as
609 required by Subsection 10-9a-205(1)(b) and holding a public meeting, the legislative body may,
610 subject to Subsection 10-9a-505(1)(b), adopt or reject the ordinance or map either as proposed
611 by the planning commission or after making any revision the municipal legislative body
612 considers appropriate.
613 Section 13. Section 10-9a-502.5 is enacted to read:
614 10-9a-502.5. Limitations on changes in zoning designation.
615 (1) A parcel of property may not be given a zoning designation that would:
616 (a) materially diminish the reasonable investment-backed expectations of the property's

617 owner; or 618 (b) deprive the property owner of all economically viable uses of the property. 619 (2) If a change in the zoning designation applicable to a parcel of property makes the 620 intensity of the permitted uses of that property substantially different than the intensity of 621 permitted uses on property in the same vicinity, the change may not be approved unless: 622 (a) the differences in intensity of permitted uses is attributable to differences in 623 topography or other natural features; or 624 (b) there are countervailing, compelling public interests in favor of the change in 625 zoning designation. 626 Section 14. Section 10-9a-504 is amended to read: 627 10-9a-504. Temporary land use regulations. 628 (1) (a) A municipal legislative body may, without prior consideration of or 629 recommendation from the planning commission, enact an ordinance establishing a temporary 630 land use regulation for any part or all of the area within the municipality if: 631 (i) the legislative body makes a finding of compelling, countervailing public interest; 632 or 633 (ii) the area is unregulated. 634 (b) A temporary land use regulation under Subsection (1)(a) may prohibit or regulate 635 the erection, construction, reconstruction, or alteration of any building or structure or any 636 subdivision approval. 637 (c) A temporary land use regulation under Subsection (1)(a) may not impose an impact 638 fee or other financial requirement on building or development. 639 (2) The municipal legislative body shall establish a period of limited effect for the 640 ordinance not to exceed six months. 641 (3) (a) A municipal legislative body may, without prior planning commission 642 consideration or recommendation, enact an ordinance establishing a temporary land use 643 regulation prohibiting construction, subdivision approval, and other development activities 644 within an area that is the subject of an Environmental Impact Statement or a Major Investment 645 Study examining the area as a proposed highway or transportation corridor. 646 (b) A regulation under Subsection (3)(a): 647 (i) may not exceed six months in duration;

S.B. 170 01-23-06 12:14 PM

648 (ii) may be renewed, if requested by the Transportation Commission created under 649 Section 72-1-301, for up to two additional six-month periods by ordinance enacted before the 650 expiration of the previous regulation; and 651 (iii) notwithstanding Subsections (3)(b)(i) and (ii), is effective only as long as the 652 Environmental Impact Statement or Major Investment Study is in progress. 653 (4) A regulation under this section is not effective unless adopted by ordinance. 654 (5) Except as provided in this section, a municipality may not delay consideration of or 655 disapprove a land use application based on a temporary land use regulation. 656 Section 15. Section 10-9a-505 is amended to read: 657 10-9a-505. Zoning districts. 658 (1) (a) [The] Subject to Subsection (1)(b), the legislative body may divide the territory 659 over which it has jurisdiction into zoning districts of a number, shape, and area that it considers 660 appropriate to carry out the purposes of this chapter. 661 (b) Each change in the designation of a zoning district shall conform as reasonably as 662 practicable to the request of the property owner whose property is affected by the change. 663 [(b)] (c) Within those zoning districts, the legislative body may reasonably regulate and 664 restrict the erection, construction, reconstruction, alteration, repair, or use of buildings and 665 structures, and the use of land. 666 (2) The legislative body shall ensure that the regulations are uniform for each class or 667 kind of buildings throughout each zoning district, but the regulations in one zone may differ 668 from those in other zones. 669 (3) (a) There is no minimum area or diversity of ownership requirement for a zone 670 designation. 671 (b) Neither the size of a zoning district nor the number of landowners within the 672 district may be used as evidence of the illegality of a zoning district or of the invalidity of a 673 municipal decision. 674 Section 16. Section 10-9a-509 is amended to read: 675 10-9a-509. When a land use applicant is entitled to approval -- Exception -676 Municipality required to comply with land use ordinances. 677 (1) (a) (i) An applicant is entitled to approval of a land use application if the 678 application conforms to the requirements of the general plan, the land use map, or an applicable 679 land use ordinance in effect when a complete application is submitted and all fees have been 680 paid, unless: 681 [(i)] (A) the land use authority, on the record, finds that: 682 (I) a compelling, countervailing public interest would be jeopardized by approving the 683 application; or 684 (II) approval of the application would place the health or safety of the community at 685 risk; or 686 [(ii)] (B) in the manner provided by local ordinance and before the application is 687 submitted, the municipality has formally initiated proceedings to amend its ordinances in a 688 manner that would prohibit approval of the application as submitted. 689 (ii) A municipality may not delay consideration of or disapprove a land use application 690 based on a proposed amendment to the municipality's ordinances if formal proceedings to 691 adopt the amendment have not been initiated before the application is filed. 692 (b) The municipality shall process an application without regard to proceedings 693 initiated to amend the municipality's ordinances if: 694 (i) 180 days have passed since the proceedings were initiated; and 695 (ii) the proceedings have not resulted in an enactment that prohibits approval of the 696 application as submitted. 697 (c) An application for a land use approval is considered submitted and complete when 698 the application is provided in a form that complies with the requirements of applicable 699 ordinances and all applicable fees have been paid. 700 (d) Any checklist or additional recommendations provided by the municipality to an 701 applicant relating to the use of the applicant's land that are not required under applicable land 702 use ordinances are advisory only, and the applicant is under no obligation to comply with them. 703 [(d)] (e) The continuing validity of an approval of a land use application is conditioned 704 upon the applicant proceeding after approval to implement the approval with reasonable 705 diligence and is not affected by any municipal action or inaction. 706 (2) A municipality is bound by the terms and standards of applicable land use 707 ordinances and shall comply with mandatory provisions of those ordinances. 708 Section 17. Section 10-9a-509.5 is enacted to read: 709 10-9a-509.5. Land use applications -- Approval process.

S.B. 170 01-23-06 12:14 PM

710 (1) Development of a parcel of real property may not be permitted without an approved 711 land use application for that purpose. 712 (2) Each land use application shall be submitted: 713 (a) on a form provided by the municipality; 714 (b) under the ordinances of the municipality in effect at the time the application is 715 submitted; 716 (c) with the fees required by the municipality; and 717 (d) with any other information required by the municipality by ordinance. 718 (3) A municipality may not require a land use application for a preliminary subdivision 719 plat to include any information other than: 720 (a) street and transportation layout; 721 (b) lot layouts with side yard requirement and square footage designations; 722 (c) utility easements; 723 (d) parks, trails, and open space designations; 724 (e) landscape features; 725 (f) density and land use analysis; 726 (g) essential infrastructure; and 727 (h) scale drawings. 728 (4) (a) A municipality may confer with a land use applicant to determine whether 729 completing staff review of the land use application within the time specified in this section will 730 require the municipality to retain an outside consultant or to pay overtime to regular staff. 731 (b) If the municipality determines, in its sole discretion, to use an outside consultant or 732 to pay overtime to regular staff to process a land use application within the time specified in 733 this section, the applicant shall pay the municipality the amount the municipality reasonably 734 estimates to be the difference between the cost of the outside consultant or overtime pay and 735 the cost of routine review by the municipality. 736 (c) Upon completion of the review of the land use application: 737 (i) the applicant shall immediately pay the municipality the difference between the 738 actual cost of the outside consultant or overtime and the estimated cost, if the actual cost 739 exceeds the estimated cost; or 740 (ii) the municipality shall immediately credit the applicant for the difference between 741 the estimated cost of the outside consultant or overtime and the actual cost, if the actual cost is 742 less than the estimated cost. 743 (5) Unless the land use application applicant otherwise agrees in writing, the 744 municipality shall, within 45 days after its receipt of the land use application: 745 (a) complete the initial staff review of the land use application; and 746 (b) (i) notify the applicant that the land use application is complete and deliver it to: 747 (A) the land use authority; or 748 (B) the planning commission, if the planning commission is not the land use authority 749 and the municipality's ordinances require planning commission review and recommendation 750 before being submitted to the land use authority; or 751 (ii) return the land use application to the applicant indicating any deficiencies in the 752 land use application. 753 (6) After the applicant has corrected any deficiencies identified in the staff review 754 process and resubmitted the land use application to the municipality, the application shall 755 immediately be delivered to: 756 (a) the planning commission, if the planning commission is not the land use authority 757 and is required to review and make a recommendation on a land use application before it is 758 considered by the municipality's land use authority; or 759 (b) the land use authority. 760 (7) (a) If a municipality's planning commission is not the land use authority and is 761 required to review and make a recommendation on a land use application before it is 762 considered by the municipality's land use authority, the planning commission shall hold a 763 public hearing and make a recommendation on the land use application to the land use 764 authority within 28 days after the land use application is delivered to the planning commission, 765 unless the applicant agrees in writing to a longer period of time. 766 (b) If the planning commission, if applicable, fails to make a recommendation 767 regarding the land use application within the time required under Subsection (7)(a), the 768 planning commission shall be considered to have recommended approval of the land use 769 application. 770 (c) If the planning commission recommends disapproval of a land use application, the 771 planning commission shall state on the record its reasons for its recommendation.

S.B. 170 01-23-06 12:14 PM

772 (8) (a) Each land use authority shall hold a public hearing and approve or disapprove a 773 land use application within 28 days after the land use application is delivered to the land use 774 authority, unless the applicant agrees in writing to a longer period of time. 775 (b) If the land use authority fails to approve or disapprove the land use application 776 within the time required under Subsection (8)(a), the land use authority shall be considered to 777 have recommended approval of the land use application. 778 (c) If the land use authority disapproves a land use application, the land use authority 779 shall state on the record its reasons for the disapproval. 780 (9) A municipality may not deny a land use application on a scientific or technical 781 basis if: 782 (a) the applicant has presented relevant scientific or technical expert testimony in 783 support of the application; and 784 (b) the scientific or technical expert testimony presented by the applicant is not 785 contradicted by the testimony of a similarly qualified scientific or technical expert. 786 (10) Each municipality that receives a land use application shall cooperate in good 787 faith to assist the applicant to obtain any third-party approval necessary for approval of the land 788 use application. 789 (11) (a) Each approval or denial of a land use application shall be: 790 (i) in writing; and 791 (ii) based upon sound reason and practical application of recognized principles of law. 792 (b) Each denial of a land use application shall be accompanied by a reasoned statement 793 that: 794 (i) explains the criteria and standards considered relevant; 795 (ii) states the relevant contested facts relied upon; 796 (iii) explains the rationale for the decision based on the applicable provisions of the 797 general plan, relevant ordinance, statutory, and constitutional provisions, and factual 798 information contained in the record. 799 (12) (a) Nothing in this chapter may be construed to prohibit a municipality from 800 specifying in ordinance or in a development agreement a shorter time period for processing a 801 land use application than specified in this chapter. 802 (b) Nothing in this section may be construed to require a hearing before the planning 803 commission or municipal legislative body if the hearing is not otherwise required by this 804 chapter or municipal ordinance. 805 Section 18. Section 10-9a-511 is amended to read: 806 10-9a-511. Nonconforming uses and noncomplying structures. 807 (1) (a) Except as provided in this section, a nonconforming use or noncomplying 808 structure may be continued by the present or a future property owner. 809 (b) A nonconforming use may be extended through the same building, provided no 810 structural alteration of the building is proposed or made for the purpose of the extension. 811 (c) For purposes of this Subsection (1), the addition of a solar energy device to a 812 building is not a structural alteration. 813 (2) The legislative body may provide for: 814 (a) the establishment, restoration, reconstruction, extension, alteration, expansion, or 815 substitution of nonconforming uses upon the terms and conditions set forth in the land use 816 ordinance; 817 (b) the termination of all nonconforming uses, except billboards, by providing a 818 formula establishing a reasonable time period during which the owner can recover or amortize 819 the amount of his investment in the nonconforming use, if any; and 820 (c) the termination of a nonconforming use due to its abandonment. 821 (3) (a) A municipality may not prohibit the reconstruction or restoration of a 822 noncomplying structure or terminate the nonconforming use of a structure that is involuntarily 823 destroyed in whole or in part due to fire or other calamity unless the structure or use has been 824 abandoned. 825 (b) A municipality may prohibit the reconstruction or restoration of a noncomplying 826 structure or terminate the nonconforming use of a structure if: 827 (i) the structure is allowed to deteriorate to a condition that the structure is rendered 828 uninhabitable and is not repaired or restored within six months after written notice to the 829 property owner that the structure is uninhabitable and that the noncomplying structure or 830 nonconforming use will be lost if the structure is not repaired or restored within six months; or 831 (ii) the property owner has voluntarily demolished a majority of the noncomplying 832 structure or the building that houses the nonconforming use. 833 [(4) (a) Unless the municipality establishes, by ordinance, a uniform presumption of

S.B. 170 01-23-06 12:14 PM

834 legal existence for nonconforming uses, the property owner shall have the burden of 835 establishing the legal existence of a noncomplying structure or nonconforming use.] 836 [(b)] (4) (a) Any party, including a municipality, claiming that a nonconforming use 837 has been abandoned shall have the burden of establishing the abandonment. 838 (b) A use in existence for a period of at least seven years that does not conform to a 839 municipality's land use ordinances shall be considered a nonconforming use that shall be 840 allowed to continue until terminated as provided in this section, regardless of whether the use 841 has previously been declared to be or acknowledged as a nonconforming use or whether the use 842 was lawful at the time it was established. 843 (c) Abandonment may be presumed to have occurred if: 844 (i) a majority of the primary structure associated with the nonconforming use has been 845 voluntarily demolished without prior written agreement with the municipality regarding an 846 extension of the nonconforming use; 847 (ii) the use has been discontinued for a minimum of one year; or 848 (iii) the primary structure associated with the nonconforming use remains vacant for a 849 period of one year. 850 (d) The property owner may rebut the presumption of abandonment under Subsection 851 (4)(c), and shall have the burden of establishing that any claimed abandonment under 852 Subsection (4)(c) has not in fact occurred. 853 (5) A municipality may terminate the nonconforming status of a school district or 854 charter school use or structure when the property associated with the school district or charter 855 school use or structure ceases to be used for school district or charter school purposes for a 856 period established by ordinance. 857 Section 19. Section 10-9a-603 is amended to read: 858 10-9a-603. Plat required when land is subdivided -- Approval of plat -- Recording 859 plat. 860 (1) Unless exempt under Section 10-9a-605 or excluded from the definition of 861 subdivision under Subsection 10-9a-103[(34)] (36), whenever any land is laid out and platted, 862 the owner of the land shall provide an accurate plat that describes or specifies: 863 (a) a name or designation of the subdivision that is distinct from any plat already 864 recorded in the county recorder's office; 865 (b) the boundaries, course, and dimensions of all of the parcels of ground divided, by 866 their boundaries, course, and extent, whether the owner proposes that any parcel of ground is 867 intended to be used as a street or for any other public use, and whether any such area is 868 reserved or proposed for dedication for a public purpose; 869 (c) the lot or unit reference, block or building reference, street or site address, street 870 name or coordinate address, acreage or square footage for all parcels, units, or lots, and length 871 and width of the blocks and lots intended for sale; and 872 (d) every existing right-of-way and easement grant of record for underground facilities, 873 as defined in Section 54-8a-2, and for other utility facilities. 874 (2) Subject to Subsections (3), (4), [and] (5), and (6), if the plat conforms to the 875 municipality's ordinances and this part and has been approved by the culinary water authority 876 and the sanitary sewer authority, the municipality shall approve the plat. 877 (3) A municipality may not prohibit a cul-de-sac that is shorter than 600 feet in length. 878 [(3)] (4) The municipality may withhold an otherwise valid plat approval until the 879 owner of the land provides the legislative body with a tax clearance indicating that all taxes, 880 interest, and penalties owing on the land have been paid. 881 [(4)] (5) (a) The owner of the land shall acknowledge the plat before an officer 882 authorized by law to take the acknowledgement of conveyances of real estate and shall obtain 883 the signature of each individual designated by the municipality. 884 (b) The surveyor making the plat shall certify that the surveyor: 885 (i) holds a license in accordance with Title 58, Chapter 22, Professional Engineers and 886 Professional Land Surveyors Licensing Act; 887 (ii) has completed a survey of the property described on the plat in accordance with 888 Section 17-23-17 and has verified all measurements; and 889 (iii) has placed monuments as represented on the plat. 890 (c) As applicable, the owner or operator of the underground and utility facilities shall 891 approve the: 892 (i) boundary, course, dimensions, and intended use of the right-of-way and easement 893 grants of record; 894 (ii) location of existing underground and utility facilities; and 895 (iii) conditions or restrictions governing the location of the facilities within the

S.B. 170 01-23-06 12:14 PM

896 right-of-way, and easement grants of records, and utility facilities within the subdivision. 897 [(5)] (6) (a) After the plat has been acknowledged, certified, and approved, the owner 898 of the land shall, within the time period designated by ordinance, record the plat in the county 899 recorder's office in the county in which the lands platted and laid out are situated. 900 (b) An owner's failure to record a plat within the time period designated by ordinance 901 renders the plat voidable. 902 Section 20. Section 10-9a-702 is amended to read: 903 10-9a-702. Variances. 904 (1) Any person or entity desiring a waiver or modification of the requirements of a land 905 use ordinance as applied to a parcel of property that he owns, leases, or in which he holds some 906 other beneficial interest may apply to the applicable appeal authority for a variance from the 907 terms of the ordinance. 908 (2) (a) The appeal authority may grant a variance only if: 909 (i) literal enforcement of the ordinance would cause an unreasonable hardship for the 910 applicant that is not necessary to carry out the general purpose of the land use ordinances; 911 (ii) there are special circumstances attached to the property that do not generally apply 912 to other properties in the same zone; 913 (iii) granting the variance is essential to the enjoyment of a substantial property right 914 possessed by other property in the same zone; 915 (iv) the variance will not substantially affect the general plan and will not be contrary 916 to the public interest; and 917 (v) the spirit of the land use ordinance is observed and substantial justice done. 918 (b) (i) In determining whether or not enforcement of the land use ordinance would 919 cause unreasonable hardship under Subsection (2)(a), the appeal authority may not find an 920 unreasonable hardship unless the alleged hardship: 921 (A) is located on or associated with the property for which the variance is sought; and 922 (B) comes from circumstances peculiar to the property or conditions imposed by the 923 municipality, not from conditions that are general to the neighborhood. 924 (ii) In determining whether or not enforcement of the land use ordinance would cause 925 unreasonable hardship under Subsection (2)(a), the appeal authority may not find an 926 unreasonable hardship if the hardship is self-imposed [or economic].

927 (c) In determining whether or not there are special circumstances attached to the 928 property under Subsection (2)(a), the appeal authority may find that special circumstances exist 929 only if the special circumstances: 930 (i) relate to the hardship complained of; and 931 (ii) deprive the property of privileges granted to other properties in the same zone or 932 requested zone. 933 (3) The applicant shall bear the burden of proving that all of the conditions justifying a 934 variance have been met. 935 (4) Variances run with the land. 936 (5) The appeal authority may not grant a use variance. 937 (6) In granting a variance, the appeal authority may impose additional requirements on 938 the applicant that will: 939 (a) mitigate any harmful affects of the variance; or 940 (b) serve the purpose of the standard or requirement that is waived or modified. 941 (7) Each appeal authority shall notify each applicant who has been denied a variance of 942 the place and time for filing an appeal. 943 Section 21. Section 10-9a-703 is amended to read: 944 10-9a-703. Appealing a land use authority's decision. 945 (1) The applicant, a board or officer of the municipality, or any person adversely 946 affected by the land use authority's decision administering or interpreting a land use ordinance 947 may, within the time period provided by ordinance, appeal that decision to the appeal authority 948 by alleging that there is error in any order, requirement, decision, or determination made by the 949 land use authority in the administration or interpretation of the land use ordinance. 950 (2) In each decision denying a land use application, the municipality shall notify the 951 applicant of the time and place for filing an appeal. 952 Section 22. Section 10-9a-801 is amended to read: 953 10-9a-801. No district court review until administrative remedies exhausted -954 Time for filing -- Tolling of time -- Standards governing court review -- Record on review 955 -- Staying of decision. 956 (1) No person may challenge in district court a municipality's land use decision made 957 under this chapter, or under a regulation made under authority of this chapter, until that person

S.B. 170 01-23-06 12:14 PM

958 has exhausted the person's administrative remedies as provided in Part 7, Appeal Authority and 959 Variances, if applicable. 960 (2) (a) Any person adversely affected by a final decision made in the exercise of or in 961 violation of the provisions of this chapter may file a petition for review of the decision with the 962 district court within 30 days after the local land use decision is final. 963 (b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date a 964 property owner files a request for arbitration of a constitutional taking issue with the property 965 rights ombudsman under Section 63-34-13 until 30 days after: 966 (A) the arbitrator issues a final award; or 967 (B) the property rights ombudsman issues a written statement under Subsection 968 63-34-13[(4)] (5)(b) declining to arbitrate or to appoint an arbitrator. 969 (ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional 970 taking issue that is the subject of the request for arbitration filed with the property rights 971 ombudsman by a property owner. 972 (iii) A request for arbitration filed with the property rights ombudsman after the time 973 under Subsection (2)(a) to file a petition has expired does not affect the time to file a petition. 974 (3) (a) [The] Subject to Subsection (3)(e), the courts shall: 975 (i) presume that a decision, ordinance, or regulation made under the authority of this 976 chapter is valid; and 977 (ii) determine only whether or not the decision, ordinance, or regulation is arbitrary, 978 capricious, or illegal. 979 (b) [A] Except as provided in Subsection (3)(e), a decision, ordinance, or regulation 980 involving the exercise of legislative discretion is valid if the decision, ordinance, or regulation 981 is [reasonably debatable and not illegal] supported by substantial evidence in the record and is 982 not arbitrary, capricious, or illegal. 983 (c) A final decision of a land use authority or an appeal authority is valid if the decision 984 is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal. 985 (d) A determination of illegality requires a determination that the decision, ordinance, 986 or regulation violates a law, statute, or ordinance in effect at the time the decision was made or 987 the ordinance or regulation adopted. 988 (e) Reasons for which the court shall consider a decision to be arbitrary or capricious 989 include that the decision: 990 (i) is based on public clamor; 991 (ii) is based on the personal preferences, desires, or whims of the members of the 992 legislative body; or 993 (iii) does not conform to municipal ordinances or state or federal law. 994 (f) In determining whether there is substantial evidence supporting a decision, the court 995 shall determine whether the evidence supporting the decision would convince a reasonable 996 person, after weighing all the evidence in the record supporting and opposing the decision, to 997 agree with the decision. 998 (g) If a decision is based on scientific or technical expert testimony, the evidence 999 presented by the expert shall be presumed to be substantial evidence unless it is contradicted by

1000 the testimony of a similarly qualified scientific or technical expert. 1001 (h) In reviewing a decision, the court shall consider the proceedings as a whole and 1002 evaluate the adequacy of procedures and of the decision in light of practical considerations with 1003 an emphasis on fundamental fairness and the essentials of reasoned decision-making. 1004 (i) If a decision is found to be arbitrary, capricious, or illegal, the court shall: 1005 (i) grant the land use application that is the subject of the court review; and 1006 (ii) award court costs and a reasonable attorney's fee to the applicant. 1007 (4) The provisions of Subsection (2)(a) apply from the date on which the municipality 1008 takes final action on a land use application for any adversely affected third party, if the 1009 municipality conformed with the notice provisions of Part 2, Notice, or for any person who had 1010 actual notice of the pending decision. 1011 (5) If the municipality has complied with Section 10-9a-205, a challenge to the 1012 enactment of a land use ordinance or general plan may not be filed with the district court more 1013 than 30 days after the enactment. 1014 (6) The petition is barred unless it is filed within 30 days after the appeal authority's 1015 decision is final. 1016 (7) (a) The land use authority or appeal authority, as the case may be, shall transmit to 1017 the reviewing court the record of its proceedings, including its minutes, findings, orders, and, if 1018 available, a true and correct transcript of its proceedings. 1019 (b) If the proceeding was tape recorded, a transcript of that tape recording is a true and

S.B. 170 01-23-06 12:14 PM

1020 correct transcript for purposes of this Subsection (7). 1021 (8) (a) (i) If there is a record, the district court's review is limited to the record provided 1022 by the land use authority or appeal authority, as the case may be, including all information 1023 supplied by the applicant or petitioner to the land use authority or appeal authority. 1024 (ii) The court may not accept or consider any evidence outside the record of the land 1025 use authority or appeal authority, as the case may be, unless that evidence was offered to the 1026 land use authority or appeal authority, respectively, and the court determines that it was 1027 improperly excluded. 1028 (b) If there is no record, the court may call witnesses and take evidence. 1029 (9) (a) The filing of a petition does not stay the decision of the land use authority or 1030 authority appeal authority, as the case may be. 1031 (b) (i) Before filing a petition under this section or a request for mediation or 1032 arbitration of a constitutional taking issue under Section 63-34-13, the aggrieved party may 1033 petition the appeal authority to stay its decision. 1034 (ii) Upon receipt of a petition to stay, the appeal authority may order its decision stayed 1035 pending district court review if the appeal authority finds it to be in the best interest of the 1036 municipality. 1037 (iii) After a petition is filed under this section or a request for mediation or arbitration 1038 of a constitutional taking issue is filed under Section 63-34-13, the petitioner may seek an 1039 injunction staying the appeal authority's decision. 1040 (10) The court shall award court costs and a reasonable attorney's fee to each person 1041 who prevails against the municipality in a challenge of the municipality's land use decision or a 1042 petition for review of a final decision under this section. 1043 Section 23. Section 10-9a-803 is amended to read: 1044 10-9a-803. Penalties. 1045 (1) The municipality may, by ordinance, establish civil penalties for violations of any 1046 of the provisions of this chapter or of any ordinances adopted under the authority of this 1047 chapter. 1048 (2) Violation of any of the provisions of this chapter or of any ordinances adopted 1049 under the authority of this chapter is punishable as a class C misdemeanor upon conviction 1050 either:

1051 (a) as a class C misdemeanor; or
1052 (b) by imposing the appropriate civil penalty adopted under the authority of this
1053 section.
1054 (3) Each officer or employee of a municipality who violates a provision of the
1055 municipality's land use ordinances or this chapter is guilty of a class B misdemeanor.
1056 Section 24. Section 11-36-201 is amended to read:
1057 11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Notice of plan -1058 Summary -- Exemptions.
1059 (1) (a) Each local political subdivision and private entity shall comply with the
1060 requirements of this chapter before establishing or modifying any impact fee.
1061 (b) A local political subdivision may not:
1062 (i) establish any new impact fees that are not authorized by this chapter; or
1063 (ii) impose or charge any other fees as a condition of development approval unless
1064 those fees are a reasonable charge for the service provided.
1065 (c) Notwithstanding any other requirements of this chapter, each local political
1066 subdivision shall ensure that each existing impact fee that is charged for any public facility not
1067 authorized by Subsection 11-36-102(12) is repealed by July 1, 1995.
1068 (d) (i) Existing impact fees for public facilities authorized in Subsection 11-36-102(12)
1069 that are charged by local political subdivisions need not comply with the requirements of this
1070 chapter until July 1, 1997.
1071 (ii) By July 1, 1997, each local political subdivision shall:
1072 (A) review any impact fees in existence as of the effective date of this act, and prepare
1073 and approve the analysis required by this section for each of those impact fees; and
1074 (B) ensure that the impact fees comply with the requirements of this chapter.
1075 (2) (a) Before imposing impact fees, each local political subdivision shall prepare a
1076 capital facilities plan.
1077 (b) (i) As used in this Subsection (2)(b):
1078 (A) (I) "Affected entity" means each county, municipality, independent special district
1079 under Title 17A, Chapter 2, Independent Special Districts, local district under Title 17B,
1080 Chapter 2, Local Districts, school district, interlocal cooperation entity established under
1081 Chapter 13, Interlocal Cooperation Act, and specified public utility:

S.B. 170 01-23-06 12:14 PM

1082 (Aa) whose services or facilities are likely to require expansion or significant 1083 modification because of the facilities proposed in the proposed capital facilities plan; or 1084 (Bb) that has filed with the local political subdivision or private entity a copy of the 1085 general or long-range plan of the county, municipality, independent special district, local 1086 district, school district, interlocal cooperation entity, or specified public utility. 1087 (II) "Affected entity" does not include the local political subdivision or private entity 1088 that is required under this Subsection (2) to provide notice. 1089 (B) "Specified public utility" means an electrical corporation, gas corporation, or 1090 telephone corporation, as those terms are defined in Section 54-2-1. 1091 (ii) Before preparing a capital facilities plan for facilities proposed on land located 1092 within a county of the first [or], second, or third class, each local political subdivision and each 1093 private entity shall provide written notice, as provided in this Subsection (2)(b), of its intent to 1094 prepare a capital facilities plan. 1095 (iii) Each notice under Subsection (2)(b)(ii) shall: 1096 (A) indicate that the local political subdivision or private entity intends to prepare a 1097 capital facilities plan; 1098 (B) describe or provide a map of the geographic area where the proposed capital 1099 facilities will be located; 1100 (C) be sent to: 1101 (I) each county in whose unincorporated area and each municipality in whose 1102 boundaries is located the land on which the proposed facilities will be located; 1103 (II) each affected entity; 1104 (III) the Automated Geographic Reference Center created in Section 63F-1-506; 1105 (IV) the association of governments, established pursuant to an interlocal agreement 1106 under Title 11, Chapter 13, Interlocal Cooperation Act, in which the facilities are proposed to 1107 be located; and 1108 (V) the state planning coordinator appointed under Section 63-38d-202; and 1109 (D) with respect to the notice to affected entities, invite the affected entities to provide 1110 information for the local political subdivision or private entity to consider in the process of 1111 preparing, adopting, and implementing a capital facilities plan concerning: 1112 (I) impacts that the facilities proposed in the capital facilities plan may have on the 1113 affected entity; and 1114 (II) facilities or uses of land that the affected entity is planning or considering that may 1115 conflict with the facilities proposed in the capital facilities plan. 1116 (c) The plan shall identify: 1117 (i) demands placed upon existing public facilities by new development activity; and 1118 (ii) the proposed means by which the local political subdivision will meet those 1119 demands. 1120 (d) Municipalities and counties need not prepare a separate capital facilities plan if the 1121 general plan required by Sections [10-9-301] 10-9a-401 and [17-27-301] 17-27a-401 contains 1122 the elements required by Subsection (2)(c). 1123 (e) (i) If a local political subdivision prepares an independent capital facilities plan 1124 rather than including a capital facilities element in the general plan, the local political 1125 subdivision shall, before adopting the capital facilities plan: 1126 (A) give public notice of the plan according to this Subsection (2)(e); 1127 (B) at least 14 days before the date of the public hearing: 1128 (I) make a copy of the plan, together with a summary designed to be understood by a 1129 lay person, available to the public; and 1130 (II) place a copy of the plan and summary in each public library within the local 1131 political subdivision; and 1132 (C) hold a public hearing to hear public comment on the plan. 1133 (ii) Municipalities shall comply with the notice and hearing requirements of, and, 1134 except as provided in Subsection 11-36-401(4)(f), receive the protections of Sections 1135 10-9a-205 and 10-9a-801 and Subsection 10-9a-502(2). 1136 (iii) Counties shall comply with the notice and hearing requirements of, and, except as 1137 provided in Subsection 11-36-401(4)(f), receive the protections of Sections 17-27a-205 and 1138 17-27a-801 and Subsection 17-27a-502(2). 1139 (iv) Special districts and private entities shall comply with the notice and hearing 1140 requirements of, and receive the protections of, Section 17A-1-203. 1141 (v) Nothing contained in this Subsection (2)(e) or in the subsections referenced in 1142 Subsections (2)(e)(ii) and (iii) may be construed to require involvement by a planning 1143 commission in the capital facilities planning process.

S.B. 170 01-23-06 12:14 PM

1144 (f) (i) Local political subdivisions with a population or serving a population of less 1145 than 5,000 as of the last federal census need not comply with the capital facilities plan 1146 requirements of this part, but shall ensure that the impact fees imposed by them are based upon 1147 a reasonable plan. 1148 (ii) Subsection (2)(f)(i) does not apply to private entities. 1149 (3) In preparing the plan, each local political subdivision shall generally consider all 1150 revenue sources, including impact fees, to finance the impacts on system improvements. 1151 (4) A local political subdivision may only impose impact fees on development 1152 activities when its plan for financing system improvements establishes that impact fees are 1153 necessary to achieve an equitable allocation to the costs borne in the past and to be borne in the 1154 future, in comparison to the benefits already received and yet to be received. 1155 (5) (a) Each local political subdivision imposing impact fees shall prepare a written 1156 analysis of each impact fee that: 1157 (i) identifies the impact on system improvements required by the development activity; 1158 (ii) demonstrates how those impacts on system improvements are reasonably related to 1159 the development activity; 1160 (iii) estimates the proportionate share of the costs of impacts on system improvements 1161 that are reasonably related to the new development activity; and 1162 (iv) based upon those factors and the requirements of this chapter, identifies how the 1163 impact fee was calculated. 1164 (b) In analyzing whether or not the proportionate share of the costs of public facilities 1165 are reasonably related to the new development activity, the local political subdivision shall 1166 identify, if applicable: 1167 (i) the cost of existing public facilities; 1168 (ii) the manner of financing existing public facilities, such as user charges, special 1169 assessments, bonded indebtedness, general taxes, or federal grants; 1170 (iii) the relative extent to which the newly developed properties and the other 1171 properties in the municipality have already contributed to the cost of existing public facilities, 1172 by such means as user charges, special assessments, or payment from the proceeds of general 1173 taxes; 1174 (iv) the relative extent to which the newly developed properties and the other 1175 properties in the municipality will contribute to the cost of existing public facilities in the 1176 future; 1177 (v) the extent to which the newly developed properties are entitled to a credit because 1178 the municipality is requiring their developers or owners, by contractual arrangement or 1179 otherwise, to provide common facilities, inside or outside the proposed development, that have 1180 been provided by the municipality and financed through general taxation or other means, apart 1181 from user charges, in other parts of the municipality; 1182 (vi) extraordinary costs, if any, in servicing the newly developed properties; and 1183 (vii) the time-price differential inherent in fair comparisons of amounts paid at 1184 different times. 1185 (c) Each local political subdivision that prepares a written analysis under this 1186 Subsection (5) on or after July 1, 2000 shall also prepare a summary of the written analysis, 1187 designed to be understood by a lay person. 1188 (6) Each local political subdivision that adopts an impact fee enactment under Section 1189 11-36-202 on or after July 1, 2000 shall, at least 14 days before adopting the enactment, submit 1190 to each public library within the local political subdivision: 1191 (a) a copy of the written analysis required by Subsection (5)(a); and 1192 (b) a copy of the summary required by Subsection (5)(c). 1193 (7) Nothing in this chapter may be construed to repeal or otherwise eliminate any 1194 impact fee in effect on the effective date of this [act] chapter that is pledged as a source of 1195 revenues to pay bonded indebtedness that was incurred before the effective date of this [act] 1196 chapter. 1197 (8) After December 31, 2006, a local political subdivision may not collect impact fees 1198 unless by that date it has updated its capital facilities plan to reflect and be consistent with the 1199 provisions of this chapter then in effect. 1200 Section 25. Section 11-36-202 is amended to read: 1201 11-36-202. Impact fees -- Enactment -- Required provisions. 1202 (1) (a) Each local political subdivision wishing to impose impact fees shall pass an 1203 impact fee enactment. 1204 (b) The impact fee imposed by that enactment may not exceed the highest fee justified 1205 by the impact fee analysis performed pursuant to Section 11-36-201.

S.B. 170 01-23-06 12:14 PM

1206 (c) In calculating the impact fee, each local political subdivision may include only: 1207 (i) the construction contract price; 1208 (ii) the cost of acquiring land, improvements, materials, and fixtures; 1209 (iii) the cost for planning, surveying, and engineering fees for services provided for and 1210 directly related to the construction of the system improvements; and 1211 (iv) debt service charges, if the political subdivision might use impact fees as a revenue 1212 stream to pay the principal and interest on bonds, notes, or other obligations issued to finance 1213 the costs of the system improvements. 1214 (d) In calculating the impact fee, a local political subdivision may not include an 1215 expense for an impact that the development does not directly cause, including overhead, 1216 maintenance, expenses related to staff compensation, the local political subdivision's operating 1217 costs, or any other item paid from the local political subdivision's general fund or budget. 1218 (e) In calculating the impact fee, the local political subdivision shall base amounts 1219 calculated under Subsection (1)(c) on actual or certified estimates directly related to building or 1220 acquiring the capital facility. 1221 [(d)] (f) In enacting an impact fee enactment: 1222 (i) municipalities shall: 1223 (A) make a copy of the impact fee enactment available to the public at least 14 days 1224 before the date of the public hearing; and 1225 (B) comply with the notice and hearing requirements of, and, except as provided in 1226 Subsection 11-36-401(4)(f), receive the protections of Sections 10-9a-207 and 10-9a-801; 1227 (ii) counties shall: 1228 (A) make a copy of the impact fee enactment available to the public at least 14 days 1229 before the date of the public hearing; and 1230 (B) comply with the notice and hearing requirements of, and, except as provided in 1231 Subsection 11-36-401(4)(f), receive the protections of Sections 17-27a-207 and 17-27a-801; 1232 and 1233 (iii) special districts shall: 1234 (A) make a copy of the impact fee enactment available to the public at least 14 days 1235 before the date of the public hearing; and 1236 (B) comply with the notice and hearing requirements of, and receive the protections of, 1237 Section 17A-1-203. 1238 [(e)] (g) Nothing contained in Subsection (1)[(d)](f) or in the subsections referenced in 1239 Subsections (1)[(d)](f)(i)(B) and (ii)(B) may be construed to require involvement by a planning 1240 commission in the impact fee enactment process. 1241 (2) The local political subdivision shall ensure that the impact fee enactment contains: 1242 (a) a provision establishing one or more service areas within which it shall calculate 1243 and impose impact fees for various land use categories; 1244 (b) either: 1245 (i) a schedule of impact fees for each type of development activity that specifies the 1246 amount of the impact fee to be imposed for each type of system improvement; or 1247 (ii) the formula that the local political subdivision will use to calculate each impact fee; 1248 (c) a provision authorizing the local political subdivision to adjust the standard impact 1249 fee at the time the fee is charged to: 1250 (i) respond to unusual circumstances in specific cases; and 1251 (ii) ensure that the impact fees are imposed fairly; and 1252 (d) a provision governing calculation of the amount of the impact fee to be imposed on 1253 a particular development that permits adjustment of the amount of the fee based upon studies 1254 and data submitted by the developer. 1255 (3) The local political subdivision may include a provision in the impact fee enactment 1256 that: 1257 (a) exempts low income housing and other development activities with broad public 1258 purposes from impact fees and establishes one or more sources of funds other than impact fees 1259 to pay for that development activity; and 1260 (b) imposes an impact fee for public facility costs previously incurred by a local 1261 political subdivision to the extent that new growth and development will be served by the 1262 previously constructed improvement[; and]. 1263 (4) (a) Each local political subdivision shall include a provision in the impact fee 1264 enactment that: 1265 [(c)] (i) allows a credit against impact fees for any dedication of land for, improvement 1266 to, or new construction of, any system improvements provided by the developer if the facilities: 1267 [(i)] (A) are identified in the capital facilities plan; [and] or

S.B. 170 01-23-06 12:14 PM

1268 [(ii)] (B) are required by the local political subdivision as a condition of approving the 1269 development activity[.]; 1270 (ii) allows a credit against applicable impact fees for facilities, including street 1271 improvements, water facilities, sewer facilities, storm drainage facilities, sidewalks, and parks 1272 and other open space and related improvements, provided by the developer, to the extent that 1273 the facilities reduce the impact of the new development or its residents on the local political 1274 subdivision's public facilities, regardless of whether the facilities provided by the developer are 1275 required by or dedicated to the local political subdivision or opened for use by the public at 1276 large; and 1277 (iii) provides a credit for an improvement, facility, land, or fee required by the local 1278 political subdivision in excess of what is required to offset the project's impact on public 1279 facilities. 1280 (b) (i) The improvements, facilities, and lands for which a credit is required under 1281 Subsection (4)(a)(iii) include: 1282 (A) a street or sidewalk that the local political subdivision requires to be wider than 1283 necessary to offset the impact of the project; 1284 (B) a water, sewer, or storm drain line that the local political subdivision requires to be 1285 larger than necessary to offset the impact of the project; and 1286 (C) a park or open space that the local political subdivision requires in excess of what 1287 is necessary to offset the impact of the project. 1288 (ii) A credit under Subsection (4)(a)(iii) may be: 1289 (A) used to offset other development charges or fees; and 1290 (B) transferred to and used for another property of the recipient of the credit or 1291 transferred to and used by another developer. 1292 [(4)] (5) Except as provided in Subsection (3)(b), the local political subdivision may 1293 not impose an impact fee to cure deficiencies in public facilities serving existing development. 1294 [(5)] (6) Notwithstanding the requirements and prohibitions of this chapter, a local 1295 political subdivision may impose and assess an impact fee for environmental mitigation when: 1296 (a) the local political subdivision has formally agreed to fund a Habitat Conservation 1297 Plan to resolve conflicts with the Endangered Species Act of 1973, 16 U.S.C. Sec 1531, et seq. 1298 or other state or federal environmental law or regulation; 1299 (b) the impact fee bears a reasonable relationship to the environmental mitigation 1300 required by the Habitat Conservation Plan; and 1301 (c) the legislative body of the local political subdivision adopts an ordinance or 1302 resolution: 1303 (i) declaring that an impact fee is required to finance the Habitat Conservation Plan; 1304 (ii) establishing periodic sunset dates for the impact fee; and 1305 (iii) requiring the legislative body to: 1306 (A) review the impact fee on those sunset dates; 1307 (B) determine whether or not the impact fee is still required to finance the Habitat 1308 Conservation Plan; and 1309 (C) affirmatively reauthorize the impact fee if the legislative body finds that the impact 1310 fee must remain in effect. 1311 [(6)] (7) Each political subdivision shall ensure that any existing impact fee for 1312 environmental mitigation meets the requirements of Subsection [(5)] (6) by July 1, 1995. 1313 [(7)] (8) Notwithstanding any other provision of this chapter, municipalities imposing 1314 impact fees to fund fire trucks as of the effective date of this act may impose impact fees for 1315 fire trucks until July 1, 1997. 1316 [(8)] (9) Notwithstanding any other provision of this chapter, a local political 1317 subdivision may impose and collect impact fees on behalf of a school district if authorized by 1318 Section 53A-20-100.5. 1319 Section 26. Section 11-36-302 is amended to read: 1320 11-36-302. Impact fees -- Expenditure. 1321 (1) A local political subdivision may expend impact fees only for: 1322 (a) system improvements for public facilities identified in the capital facilities plan; 1323 and 1324 (b) system improvements for the specific public facility type for which the fee was 1325 collected. 1326 (2) (a) Except as provided in Subsection (2)(b), a local political subdivision shall 1327 expend or encumber the impact fees for a permissible use within six years of their receipt. 1328 (b) A local political subdivision may hold the fees for longer than six years if it 1329 identifies, in writing:

S.B. 170 01-23-06 12:14 PM

1330 (i) an extraordinary and compelling reason why the fees should be held longer than six 1331 years; and 1332 (ii) an absolute date by which the fees will be expended. 1333 (3) If a local political subdivision does not expend or encumber impact fees within the 1334 time provided in Subsection (2), the local political subdivision shall: 1335 (a) within 90 days after the expiration of the time provided in Subsection (2), return the 1336 impact fees to the person from which the fees were collected; or 1337 (b) if the local political subdivision is unable to locate the person from whom the 1338 impact fees were collected, deposit the impact fees into the Olene Walker Housing Loan Fund 1339 created in Section 9-4-702. 1340 (4) Each local political subdivision shall account for impact fees as separate line items 1341 in its budget, identified by the year received and the project for which collected and budgeted 1342 and with an indication of whether the impact fees are expected to be spent within the current 1343 fiscal year. 1344 Section 27. Section 11-36-401 is amended to read: 1345 11-36-401. Impact fees -- Challenges -- Appeals. 1346 (1) Any person or entity residing in or owning property within a service area, and any 1347 organization, association, or corporation representing the interests of persons or entities owning 1348 property within a service area, may file a declaratory judgment action challenging the validity 1349 of the fee. 1350 (2) (a) Any person or entity required to pay an impact fee who believes the fee does not 1351 meet the requirements of law may file a written request for information with the local political 1352 subdivision who established the fee. 1353 (b) Within two weeks of the receipt of the request for information, the local political 1354 subdivision shall provide the person or entity with the written analysis required by Section 1355 11-36-201, the capital facilities plan, and with any other relevant information relating to the 1356 impact fee. 1357 (3) (a) Any local political subdivision may establish, by ordinance, an administrative 1358 appeals procedure to consider and decide challenges to impact fees. 1359 (b) If the local political subdivision establishes an administrative appeals procedure, 1360 the local political subdivision shall ensure that the procedure includes a requirement that the 1361 local political subdivision make its decision no later than 30 days after the date the challenge to 1362 the impact fee is filed. 1363 (4) (a) In addition to the method of challenging an impact fee under Subsection (1), a 1364 person or entity that has paid an impact fee that was imposed by a local political subdivision 1365 may challenge: 1366 (i) if the impact fee enactment was adopted on or after July 1, 2000: 1367 (A) whether the local political subdivision complied with the notice requirements of 1368 this chapter with respect to the imposition of the impact fee; and 1369 (B) whether the local political subdivision complied with other procedural 1370 requirements of this chapter for imposing the impact fee; and 1371 (ii) except as limited by Subsection (4)(a)(i), the impact fee. 1372 (b) A challenge under Subsection (4)(a) may not be initiated unless it is initiated 1373 within: 1374 (i) for a challenge under Subsection (4)(a)(i)(A), 30 days after the person or entity pays 1375 the impact fee; 1376 (ii) for a challenge under Subsection (4)(a)(i)(B), 180 days after the person or entity 1377 pays the impact fee; or 1378 (iii) for a challenge under Subsection (4)(a)(ii), one year after the person or entity pays 1379 the impact fee. 1380 (c) A challenge under Subsection (4)(a) is initiated by filing: 1381 (i) if the local political subdivision has established an administrative appeals procedure 1382 under Subsection (3), the necessary document, under the administrative appeals procedure, for 1383 initiating the administrative appeal; 1384 (ii) a request for arbitration as provided in Subsection 11-36-402(1); or 1385 (iii) an action in district court. 1386 (d) (i) The sole remedy for a challenge under Subsection (4)(a)(i)(A) is the equitable 1387 remedy of requiring the local political subdivision to correct the defective notice and repeat the 1388 process. 1389 (ii) The sole remedy for a challenge under Subsection (4)(a)(i)(B) is the equitable 1390 remedy of requiring the local political subdivision to correct the defective process. 1391 (iii) The sole remedy for a challenge under Subsection (4)(a)(ii) is a refund of the

S.B. 170 01-23-06 12:14 PM

1392 difference between what the person or entity paid as an impact fee and the amount the impact 1393 fee should have been if it had been correctly calculated. 1394 (e) Nothing in this Subsection (4) may be construed as requiring a person or entity to 1395 exhaust administrative remedies with the local political subdivision before filing an action in 1396 district court under this Subsection (4). 1397 (f) The protections given to a municipality under Section 10-9a-801 and to a county 1398 under Section 17-27a-801 do not apply in a challenge under Subsection (4)(a)(i)(A). 1399 (5) The [judge may] court shall award reasonable attorneys' fees and costs to [the 1400 prevailing party in any action brought under this section] each person or entity that prevails in a 1401 declaratory judgment action under Subsection (1) or a district court challenge under Subsection 1402 (4). 1403 (6) Nothing in this chapter may be construed as restricting or limiting any rights to 1404 challenge impact fees that were paid before the effective date of this chapter. 1405 Section 28. Section 11-36-601 is enacted to read: 1406 11-36-601. Penalties. 1407 (1) A local political subdivision may by ordinance establish penalties for a violation of 1408 any provision of this chapter or of any ordinance adopted under the authority of this chapter. 1409 (2) Violation of any of the provisions of this chapter or of any ordinance adopted under 1410 the authority of this chapter is punishable as a class B misdemeanor upon conviction either: 1411 (a) as a class B misdemeanor; or 1412 (b) by imposing the appropriate civil penalty adopted under the authority of this 1413 section. 1414 (3) Each officer or employee of a local political subdivision who violates a provision of 1415 the local political subdivision's land use ordinance or this chapter is guilty of a class B 1416 misdemeanor. 1417 Section 29. Section 17-27a-102 is amended to read: 1418 17-27a-102. Purposes -- General land use authority. 1419 (1) (a) The purposes of this chapter are to provide for the health, safety, and welfare, 1420 and promote the prosperity, improve the [morals,] peace and good order, [comfort,] and 1421 convenience[, and aesthetics] of each county and its present and future inhabitants and 1422 businesses, to protect property rights, to protect the tax base, to secure economy in 1423 governmental expenditures, to foster the state's agricultural and other industries, and to protect 1424 both urban and nonurban development[, to protect and ensure access to sunlight for solar 1425 energy devices, and to protect property values]. 1426 (b) To accomplish the purposes of this chapter, counties may enact [all] appropriate 1427 ordinances, resolutions, and rules that support proper community development and protect 1428 property owners' rights to own, hold, develop, and manage their property, and may enter into 1429 other forms of land use controls and development agreements that [they consider necessary or] 1430 are appropriate for the use and development of land within the unincorporated area of the 1431 county, including ordinances, resolutions, rules, restrictive covenants, easements, and 1432 development agreements governing uses, density, open spaces, structures, buildings, 1433 energy-efficiency, light and air, air quality, transportation and public or alternative 1434 transportation, infrastructure, street and building orientation and width requirements, public 1435 facilities, and height and location of vegetation, trees, and landscaping, unless expressly 1436 prohibited by law. 1437 (2) Each county shall comply with the mandatory provisions of this part before any 1438 agreement or contract to provide goods, services, or municipal-type services to any storage 1439 facility or transfer facility for high-level nuclear waste, or greater than class C radioactive 1440 waste, may be executed or implemented. 1441 Section 30. Section 17-27a-103 is amended to read: 1442 17-27a-103. Definitions. 1443 As used in this chapter: 1444 (1) "Affected entity" means a county, municipality, independent special district under 1445 Title 17A, Chapter 2, Independent Special Districts, local district under Title 17B, Chapter 2, 1446 Local Districts, school district, interlocal cooperation entity established under Title 11, Chapter 1447 13, Interlocal Cooperation Act, specified public utility, or the Utah Department of 1448 Transportation, if: 1449 (a) the entity's services or facilities are likely to require expansion or significant 1450 modification because of an intended use of land; 1451 (b) the entity has filed with the county a copy of the entity's general or long-range plan; 1452 or 1453 (c) the entity's boundaries or facilities are within one mile of land that is the subject of

S.B. 170 01-23-06 12:14 PM

1454 a general plan amendment or land use ordinance change. 1455 (2) "Affected property owner" means an owner of at least two acres of commercial, 1456 residential, agricultural, institutional, or industrial land that is the subject of a proposed change 1457 in zoning designation or land use. 1458 [(2)] (3) "Appeal authority" means the person, board, commission, agency, or other 1459 body designated by ordinance to decide an appeal of a decision of a land use application or a 1460 variance. 1461 [(3)] (4) "Billboard" means a freestanding ground sign located on industrial, 1462 commercial, or residential property if the sign is designed or intended to direct attention to a 1463 business, product, or service that is not sold, offered, or existing on the property where the sign 1464 is located. 1465 [(4)] (5) "Charter school" includes: 1466 (a) an operating charter school; 1467 (b) a charter school applicant that has its application approved by a chartering entity in 1468 accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; and 1469 (c) an entity who is working on behalf of a charter school or approved charter applicant 1470 to develop or construct a charter school building. 1471 [(5)] (6) "Chief executive officer" means the person or body that exercises the 1472 executive powers of the county. 1473 [(6)] (7) "Conditional use" means a land use that, because of its unique characteristics 1474 or potential impact on the county, surrounding neighbors, or adjacent land uses, may not be 1475 compatible in some areas or may be compatible only if certain conditions are required that 1476 mitigate or eliminate the detrimental impacts. 1477 [(7)] (8) "Constitutional taking" means a governmental action that results in a taking of 1478 private property so that compensation to the owner of the property is required by the: 1479 (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or 1480 (b) Utah Constitution Article I, Section 22. 1481 [(8)] (9) "Culinary water authority" means the department, agency, or public entity with 1482 responsibility to review and approve the feasibility of the culinary water system and sources for 1483 the subject property. 1484 [(9)] (10) (a) "Disability" means a physical or mental impairment that substantially 1485 limits one or more of a person's major life activities, including a person having a record of such 1486 an impairment or being regarded as having such an impairment. 1487 (b) "Disability" does not include current illegal use of, or addiction to, any federally 1488 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 1489 802. 1490 [(10)] (11) "Elderly person" means a person who is 60 years old or older, who desires 1491 or needs to live with other elderly persons in a group setting, but who is capable of living 1492 independently. 1493 [(11)] (12) "Gas corporation" has the same meaning as defined in Section 54-2-1. 1494 [(12)] (13) "General plan" means a document that a county adopts that sets forth 1495 general guidelines for proposed future development of the unincorporated land within the 1496 county. 1497 [(13)] (14) "Identical plans" means building plans submitted to a county that are 1498 substantially identical building plans that were previously submitted to and reviewed and 1499 approved by the county and describe a building that is: 1500 (a) located on land zoned the same as the land on which the building described in the 1501 previously approved plans is located; and 1502 (b) subject to the same geological and meteorological conditions and the same law as 1503 the building described in the previously approved plans. 1504 [(14)] (15) "Interstate pipeline company" means a person or entity engaged in natural 1505 gas transportation subject to the jurisdiction of the Federal Energy Regulatory Commission 1506 under the Natural Gas Act, 15 U.S.C. Sec. 717 et seq. 1507 [(15)] (16) "Intrastate pipeline company" means a person or entity engaged in natural 1508 gas transportation that is not subject to the jurisdiction of the Federal Energy Regulatory 1509 Commission under the Natural Gas Act, 15 U.S.C. Sec. 717 et seq. 1510 [(16)] (17) "Land use application" means an application required by a county's land use 1511 ordinance. 1512 [(17)] (18) "Land use authority" means a person, board, commission, agency, or o