H.B. 233

1

ENVIRONMENTALLY RESTRICTED ZONING
2 DISTRICTS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Michael T. Morley
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill amends county and municipal land use provisions.
11 Highlighted Provisions:
12 This bill:
13 . enacts a definition for environmentally restricted zoning districts;
14 . authorizes counties and municipalities to enact an ordinance creating an
15 environmentally restricted zoning district, but only if specified conditions are met;
16 . limits the factors on which a county or municipality may base an environmentally
17 restricted zoning district;
18 . limits the ability of counties and municipalities to deny a land use application for
19 land located within an environmentally restricted zoning district;
20 . requires approval of a land use application to the extent that land located within an
21 environmentally restricted zoning district complies with requirements, even if the
22 remainder does not;
23 . establishes a presumption in favor of a land use application relating to land located
24 within an environmentally restricted zoning district;
25 . provides an option for review by binding arbitration of an appeal authority's
26 decision on a land use application for land located within an environmentally
27 restricted zoning district; and

28 . requires a court to award a reasonable attorney fee to a prevailing applicant in a
29 court review of an appeal authority's final decision of a land use application relating
30 to land located within an environmentally restricted zoning district.
31 Monies Appropriated in this Bill:
32 None
33 Other Special Clauses:
34 None
35 Utah Code Sections Affected:
36 AMENDS:
37 10-9a-103, as last amended by Chapters 14, 163, 240, 257 and 289, Laws of Utah 2006
38 10-9a-503, as renumbered and amended by Chapter 254, Laws of Utah 2005
39 10-9a-505, as renumbered and amended by Chapter 254, Laws of Utah 2005
40 10-9a-603, as last amended by Chapters 163, 240 and 257, Laws of Utah 2006
41 10-9a-801, as renumbered and amended by Chapter 254, Laws of Utah 2005
42 17-27a-103, as last amended by Chapters 14, 163, 240, 257 and 289, Laws of Utah
43 2006
44 17-27a-503, as renumbered and amended by Chapter 254, Laws of Utah 2005
45 17-27a-505, as renumbered and amended by Chapter 254, Laws of Utah 2005
46 17-27a-603, as last amended by Chapters 163, 240 and 257, Laws of Utah 2006
47 17-27a-801, as renumbered and amended by Chapter 254, Laws of Utah 2005
48 ENACTS:
49 10-9a-505.5, Utah Code Annotated 1953
50 10-9a-709, Utah Code Annotated 1953
51 17-27a-505.5, Utah Code Annotated 1953
52 17-27a-709, Utah Code Annotated 1953
53
54 Be it enacted by the Legislature of the state of Utah:
55 Section 1. Section 10-9a-103 is amended to read:
56 10-9a-103. Definitions.
57 As used in this chapter:
58 (1) "Affected entity" means a county, municipality, independent special district under

59 Title 17A, Chapter 2, Independent Special Districts, local district under Title 17B, Chapter 2,
60 Local Districts, school district, interlocal cooperation entity established under Title 11, Chapter
61 13, Interlocal Cooperation Act, specified public utility, a property owner, a property owners
62 association, or the Utah Department of Transportation, if:
63 (a) the entity's services or facilities are likely to require expansion or significant
64 modification because of an intended use of land;
65 (b) the entity has filed with the municipality a copy of the entity's general or long-range
66 plan; or
67 (c) the entity has filed with the municipality a request for notice during the same
68 calendar year and before the municipality provides notice to an affected entity in compliance
69 with a requirement imposed under this chapter.
70 (2) "Appeal authority" means the person, board, commission, agency, or other body
71 designated by ordinance to decide an appeal of a decision of a land use application or a
72 variance.
73 (3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
74 residential property if the sign is designed or intended to direct attention to a business, product,
75 or service that is not sold, offered, or existing on the property where the sign is located.
76 (4) "Charter school" includes:
77 (a) an operating charter school;
78 (b) a charter school applicant that has its application approved by a chartering entity in
79 accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; and
80 (c) an entity who is working on behalf of a charter school or approved charter applicant
81 to develop or construct a charter school building.
82 (5) "Chief executive officer" means the:
83 (a) mayor in municipalities operating under all forms of municipal government except
84 the council-manager form; or
85 (b) city manager in municipalities operating under the council-manager form of
86 municipal government.
87 (6) "Conditional use" means a land use that, because of its unique characteristics or
88 potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be
89 compatible in some areas or may be compatible only if certain conditions are required that

90 mitigate or eliminate the detrimental impacts.
91 (7) "Constitutional taking" means a governmental action that results in a taking of
92 private property so that compensation to the owner of the property is required by the:
93 (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
94 (b) Utah Constitution Article I, Section 22.
95 (8) "Culinary water authority" means the department, agency, or public entity with
96 responsibility to review and approve the feasibility of the culinary water system and sources for
97 the subject property.
98 (9) (a) "Disability" means a physical or mental impairment that substantially limits one
99 or more of a person's major life activities, including a person having a record of such an
100 impairment or being regarded as having such an impairment.
101 (b) "Disability" does not include current illegal use of, or addiction to, any federally
102 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
103 802.
104 (10) "Elderly person" means a person who is 60 years old or older, who desires or
105 needs to live with other elderly persons in a group setting, but who is capable of living
106 independently.
107 (11) "Environmentally restricted zoning district" means a zoning district in which a
108 municipality places restrictions on permitted uses, densities, or structures:
109 (a) because of environmental concerns, including the quality of air, forests, soils, rivers
110 and other waters, harbors, fisheries, wildlife, minerals, or other natural resources; or
111 (b) as a means of avoiding or mitigating the danger of flood, geologic hazard,
112 earthquake, erosion, landslide, rockslide, debris flow, subsidence, avalanche, or wildfire.
113 [(11)] (12) "General plan" means a document that a municipality adopts that sets forth
114 general guidelines for proposed future development of the land within the municipality.
115 [(12)] (13) "Identical plans" means building plans submitted to a municipality that are
116 substantially identical to building plans that were previously submitted to and reviewed and
117 approved by the municipality and describe a building that is:
118 (a) located on land zoned the same as the land on which the building described in the
119 previously approved plans is located; and
120 (b) subject to the same geological and meteorological conditions and the same law as

121 the building described in the previously approved plans.
122 [(13)] (14) "Land use application" means an application required by a municipality's
123 land use ordinance.
124 [(14)] (15) "Land use authority" means a person, board, commission, agency, or other
125 body designated by the local legislative body to act upon a land use application.
126 [(15)] (16) "Land use ordinance" means a planning, zoning, development, or
127 subdivision ordinance of the municipality, but does not include the general plan.
128 [(16)] (17) "Land use permit" means a permit issued by a land use authority.
129 [(17)] (18) "Legislative body" means the municipal council.
130 [(18)] (19) "Lot line adjustment" means the relocation of the property boundary line in
131 a subdivision between two adjoining lots with the consent of the owners of record.
132 [(19)] (20) "Moderate income housing" means housing occupied or reserved for
133 occupancy by households with a gross household income equal to or less than 80% of the
134 median gross income for households of the same size in the county in which the city is located.
135 [(20)] (21) "Nominal fee" means a fee that reasonably reimburses a municipality only
136 for time spent and expenses incurred in:
137 (a) verifying that building plans are identical plans; and
138 (b) reviewing and approving those minor aspects of identical plans that differ from the
139 previously reviewed and approved building plans.
140 [(21)] (22) "Noncomplying structure" means a structure that:
141 (a) legally existed before its current land use designation; and
142 (b) because of one or more subsequent land use ordinance changes, does not conform
143 to the setback, height restrictions, or other regulations, excluding those regulations, which
144 govern the use of land.
145 [(22)] (23) "Nonconforming use" means a use of land that:
146 (a) legally existed before its current land use designation;
147 (b) has been maintained continuously since the time the land use ordinance governing
148 the land changed; and
149 (c) because of one or more subsequent land use ordinance changes, does not conform
150 to the regulations that now govern the use of the land.
151 [(23)] (24) "Official map" means a map drawn by municipal authorities and recorded in

152 a county recorder's office that:
153 (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
154 highways and other transportation facilities;
155 (b) provides a basis for restricting development in designated rights-of-way or between
156 designated setbacks to allow the government authorities time to purchase or otherwise reserve
157 the land; and
158 (c) has been adopted as an element of the municipality's general plan.
159 [(24)] (25) "Person" means an individual, corporation, partnership, organization,
160 association, trust, governmental agency, or any other legal entity.
161 [(25)] (26) "Plan for moderate income housing" means a written document adopted by
162 a city legislative body that includes:
163 (a) an estimate of the existing supply of moderate income housing located within the
164 city;
165 (b) an estimate of the need for moderate income housing in the city for the next five
166 years as revised biennially;
167 (c) a survey of total residential land use;
168 (d) an evaluation of how existing land uses and zones affect opportunities for moderate
169 income housing; and
170 (e) a description of the city's program to encourage an adequate supply of moderate
171 income housing.
172 [(26)] (27) "Plat" means a map or other graphical representation of lands being laid out
173 and prepared in accordance with Section 10-9a-603 , 17-23-17 , or 57-8-13 .
174 [(27)] (28) "Public hearing" means a hearing at which members of the public are
175 provided a reasonable opportunity to comment on the subject of the hearing.
176 [(28)] (29) "Public meeting" means a meeting that is required to be open to the public
177 under Title 52, Chapter 4, Open and Public Meetings Act.
178 [(29)] (30) "Record of survey map" means a map of a survey of land prepared in
179 accordance with Section 17-23-17 .
180 [(30)] (31) "Residential facility for elderly persons" means a single-family or
181 multiple-family dwelling unit that meets the requirements of Section 10-9a-516 , but does not
182 include a health care facility as defined by Section 26-21-2 .

183 [(31)] (32) "Residential facility for persons with a disability" means a residence:
184 (a) in which more than one person with a disability resides; and
185 (b) (i) is licensed or certified by the Department of Human Services under Title 62A,
186 Chapter 2, Licensure of Programs and Facilities; or
187 (ii) is licensed or certified by the Department of Health under Title 26, Chapter 21,
188 Health Care Facility Licensing and Inspection Act.
189 [(32)] (33) "Sanitary sewer authority" means the department, agency, or public entity
190 with responsibility to review and approve the feasibility of sanitary sewer services or onsite
191 wastewater systems.
192 [(33)] (34) "Special district" means an entity established under the authority of Title
193 17A, Special Districts, and any other governmental or quasi-governmental entity that is not a
194 county, municipality, school district, or unit of the state.
195 [(34)] (35) "Specified public utility" means an electrical corporation, gas corporation,
196 or telephone corporation, as those terms are defined in Section 54-2-1 .
197 [(35)] (36) "Street" means a public right-of-way, including a highway, avenue,
198 boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement,
199 or other way.
200 [(36)] (37) (a) "Subdivision" means any land that is divided, resubdivided or proposed
201 to be divided into two or more lots, parcels, sites, units, plots, or other division of land for the
202 purpose, whether immediate or future, for offer, sale, lease, or development either on the
203 installment plan or upon any and all other plans, terms, and conditions.
204 (b) "Subdivision" includes:
205 (i) the division or development of land whether by deed, metes and bounds description,
206 devise and testacy, map, plat, or other recorded instrument; and
207 (ii) except as provided in Subsection [(36)] (37)(c), divisions of land for residential and
208 nonresidential uses, including land used or to be used for commercial, agricultural, and
209 industrial purposes.
210 (c) "Subdivision" does not include:
211 (i) a bona fide division or partition of agricultural land for the purpose of joining one of
212 the resulting separate parcels to a contiguous parcel of unsubdivided agricultural land, if
213 neither the resulting combined parcel nor the parcel remaining from the division or partition

214 violates an applicable land use ordinance;
215 (ii) a recorded agreement between owners of adjoining unsubdivided properties
216 adjusting their mutual boundary if:
217 (A) no new lot is created; and
218 (B) the adjustment does not violate applicable land use ordinances;
219 (iii) a recorded document, executed by the owner of record:
220 (A) revising the legal description of more than one contiguous unsubdivided parcel of
221 property into one legal description encompassing all such parcels of property; or
222 (B) joining a subdivided parcel of property to another parcel of property that has not
223 been subdivided, if the joinder does not violate applicable land use ordinances; or
224 (iv) a recorded agreement between owners of adjoining subdivided properties adjusting
225 their mutual boundary if:
226 (A) no new dwelling lot or housing unit will result from the adjustment; and
227 (B) the adjustment will not violate any applicable land use ordinance.
228 (d) The joining of a subdivided parcel of property to another parcel of property that has
229 not been subdivided does not constitute a subdivision under this Subsection [(36)] (37) as to
230 the unsubdivided parcel of property or subject the unsubdivided parcel to the municipality's
231 subdivision ordinance.
232 [(37)] (38) "Unincorporated" means the area outside of the incorporated area of a city
233 or town.
234 [(38)] (39) "Zoning map" means a map, adopted as part of a land use ordinance, that
235 depicts land use zones, overlays, or districts.
236 Section 2. Section 10-9a-503 is amended to read:
237 10-9a-503. Land use ordinance or zoning map amendments.
238 (1) The legislative body may amend:
239 (a) the number, shape, boundaries, or area of any zoning district;
240 (b) any regulation of or within the zoning district, subject to Section 10-9a-505.5 for an
241 environmentally restricted zoning district; or
242 (c) any other provision of a land use ordinance.
243 (2) The legislative body may not make any amendment authorized by this subsection
244 unless the amendment was proposed by the planning commission or was first submitted to the

245 planning commission for its recommendation.
246 (3) The legislative body shall comply with the procedure specified in Section
247 10-9a-502 in preparing and adopting an amendment to a land use ordinance or a zoning map.
248 Section 3. Section 10-9a-505 is amended to read:
249 10-9a-505. Zoning districts.
250 (1) (a) The legislative body may divide the territory over which it has jurisdiction into
251 zoning districts of a number, shape, and area that it considers appropriate to carry out the
252 purposes of this chapter.
253 (b) Within those zoning districts and subject to Section 10-9a-505.5 for an
254 environmentally restricted zoning district, the legislative body may regulate and restrict the
255 erection, construction, reconstruction, alteration, repair, or use of buildings and structures, and
256 the use of land.
257 (2) The legislative body shall ensure that the regulations are uniform for each class or
258 kind of buildings throughout each zoning district, but the regulations in one zone may differ
259 from those in other zones.
260 (3) (a) There is no minimum area or diversity of ownership requirement for a zone
261 designation.
262 (b) Neither the size of a zoning district nor the number of landowners within the
263 district may be used as evidence of the illegality of a zoning district or of the invalidity of a
264 municipal decision.
265 Section 4. Section 10-9a-505.5 is enacted to read:
266 10-9a-505.5. Environmentally restricted zoning districts.
267 (1) Subject to Subsection (2), a municipality may enact an ordinance creating an
268 environmentally restricted zoning district only if:
269 (a) the municipality's general plan includes an environmental element as provided in
270 Subsection 10-9a-403 (3)(a); and
271 (b) enactment of the ordinance is supported by substantial and compelling evidence in
272 the record demonstrating the need for:
273 (i) the environmentally restricted zoning district; and
274 (ii) a restriction on the specific property that is proposed to be subject to the zoning
275 designation.

276 (2) A municipality may not base the need for an environmentally restricted zoning
277 district on:
278 (a) a desire to preserve a view of or from the property;
279 (b) the aesthetic appearance of the landscape;
280 (c) the protection of wildlife habitat or vegetation, unless required by federal law;
281 (d) the unwillingness of a municipality to provide essential services to the property
282 such as water, fire protection, garbage collection, or snow removal; and
283 (e) a slope less than 30 degrees.
284 (3) A municipality may not deny a land use application with respect to land located in
285 an environmentally restricted zoning district based on the application's failure to conform to the
286 requirements of that zoning district if:
287 (a) the municipality failed to comply with the requirements of Subsection (1); or
288 (b) (i) the applicant:
289 (A) presents competent evidence demonstrating that use of the land as proposed in the
290 land use application is unlikely to result in the detrimental effects that the municipality
291 attempted to avoid by establishing the environmentally restricted zoning district; or
292 (B) establishes by professional engineering data and the testimony of competent
293 experts that the potential detrimental effects resulting from the use of the land as proposed in
294 the land use application are readily mitigated;
295 (ii) the land use application proposes lots with an average size that is no smaller than
296 the average size of lots approved in the municipality during the three years immediately
297 preceding the filing of the land use application; and
298 (iii) the land use application otherwise complies with all other requirements applicable
299 to all other zoning districts in the municipality.
300 (4) If an applicant in a land use application with respect to land located in an
301 environmentally restricted zoning district complies with Subsection (3)(b) as to some but not
302 all of the land included in the application, a municipality may not deny approval of the land use
303 application for that portion of the land on the basis that the remaining portion of land does not
304 comply with the requirements of the environmentally restricted zoning district.
305 (5) In processing a land use application for land located in an environmentally
306 restricted zoning district, there is a presumption in favor of the use proposed under the land use

307 application, unless the municipality establishes that restrictions imposed in the zoning district
308 are:
309 (a) necessary;
310 (b) prudent;
311 (c) backed by professional engineering data;
312 (d) comparable to restrictions on property in similar situations; and
313 (e) generally accepted by the state or a majority of other local government entities in
314 the state.
315 Section 5. Section 10-9a-603 is amended to read:
316 10-9a-603. Plat required when land is subdivided -- Approval of plat -- Recording
317 plat.
318 (1) Unless exempt under Section 10-9a-605 or excluded from the definition of
319 subdivision under Subsection 10-9a-103 [(36)](37), whenever any land is laid out and platted,
320 the owner of the land shall provide an accurate plat that describes or specifies:
321 (a) a name or designation of the subdivision that is distinct from any plat already
322 recorded in the county recorder's office;
323 (b) the boundaries, course, and dimensions of all of the parcels of ground divided, by
324 their boundaries, course, and extent, whether the owner proposes that any parcel of ground is
325 intended to be used as a street or for any other public use, and whether any such area is
326 reserved or proposed for dedication for a public purpose;
327 (c) the lot or unit reference, block or building reference, street or site address, street
328 name or coordinate address, acreage or square footage for all parcels, units, or lots, and length
329 and width of the blocks and lots intended for sale; and
330 (d) every existing right-of-way and easement grant of record for underground facilities,
331 as defined in Section 54-8a-2 , and for other utility facilities.
332 (2) Subject to Subsections (3), (4), and (5), if the plat conforms to the municipality's
333 ordinances and this part and has been approved by the culinary water authority and the sanitary
334 sewer authority, the municipality shall approve the plat.
335 (3) The municipality may withhold an otherwise valid plat approval until the owner of
336 the land provides the legislative body with a tax clearance indicating that all taxes, interest, and
337 penalties owing on the land have been paid.

338 (4) (a) The owner of the land shall acknowledge the plat before an officer authorized
339 by law to take the acknowledgement of conveyances of real estate and shall obtain the
340 signature of each individual designated by the municipality.
341 (b) The surveyor making the plat shall certify that the surveyor:
342 (i) holds a license in accordance with Title 58, Chapter 22, Professional Engineers and
343 Professional Land Surveyors Licensing Act;
344 (ii) has completed a survey of the property described on the plat in accordance with
345 Section 17-23-17 and has verified all measurements; and
346 (iii) has placed monuments as represented on the plat.
347 (c) As applicable, the owner or operator of the underground and utility facilities shall
348 approve the:
349 (i) boundary, course, dimensions, and intended use of the right-of-way and easement
350 grants of record;
351 (ii) location of existing underground and utility facilities; and
352 (iii) conditions or restrictions governing the location of the facilities within the
353 right-of-way, and easement grants of records, and utility facilities within the subdivision.
354 (5) (a) After the plat has been acknowledged, certified, and approved, the owner of the
355 land shall, within the time period designated by ordinance, record the plat in the county
356 recorder's office in the county in which the lands platted and laid out are situated.
357 (b) An owner's failure to record a plat within the time period designated by ordinance
358 renders the plat voidable.
359 Section 6. Section 10-9a-709 is enacted to read:
360 10-9a-709. Binding arbitration relating to the denial of an application in an
361 environmentally restricted zoning district.
362 (1) An applicant under a land use application relating to land within an
363 environmentally restricted zoning district may, within 30 days after an adverse final decision of
364 an appeal authority and in lieu of district court review under Part 8, District Court Review,
365 submit the application to binding arbitration by filing with the municipal clerk or recorder a
366 notice of election for binding arbitration.
367 (2) (a) Within 30 days after the filing of a notice of election under Subsection (1), the
368 applicant and the municipal legislative body shall each appoint an arbitrator.

369 (b) Within 20 days after their appointment under Subsection (2)(a), the two arbitrators
370 shall appoint a third arbitrator.
371 (3) Within 60 days after the appointment of the third arbitrator under Subsection (2),
372 the three arbitrators shall convene and conduct a hearing on the land use application.
373 (4) Each arbitration proceeding under this section shall review the land use application
374 de novo.
375 (5) Within 30 days after the hearing under Subsection (3), the arbitration panel shall
376 issue a written decision, which shall be final and binding on the applicant and municipality.
377 (6) The expenses associated with an arbitration proceeding under this section shall be
378 paid by the municipality.
379 Section 7. Section 10-9a-801 is amended to read:
380 10-9a-801. No district court review until administrative remedies exhausted --
381 Time for filing -- Tolling of time -- Standards governing court review -- Record on review
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