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S.B. 25
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MUNICIPAL INCORPORATION AMENDMENTS
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2008 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Dennis E. Stowell
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House Sponsor:
Melvin R. Brown
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LONG TITLE
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Committee Note:
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The Political Subdivisions Interim Committee recommended this bill.
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General Description:
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This bill modifies provisions relating to the incorporation of municipalities.
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Highlighted Provisions:
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This bill:
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. repeals a provision relating to the incorporation of a town; and
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. makes the process for incorporating a town the same as the process for
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incorporating a city, except that in the process of incorporating a town:
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. the county legislative body may waive the feasibility study requirement;
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. the percentage of allowable annual average revenue over average annual
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expenses is increased from 5% to 10%; and
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. an incorporation petition may not be filed if the feasibility study results indicate
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that annual average revenue exceeds average annual expenses by more than 10%
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unless the county legislative body consents, with or without conditions.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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10-2-102, as repealed and reenacted by Laws of Utah 1997, Chapter 389
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10-2-103, as last amended by Laws of Utah 2000, Chapter 184
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10-2-104, as last amended by Laws of Utah 2003, Chapter 129
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10-2-106, as last amended by Laws of Utah 2007, Chapter 329
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10-2-107, as last amended by Laws of Utah 2000, Chapter 184
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10-2-108, as repealed and reenacted by Laws of Utah 1997, Chapter 389
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10-2-109, as last amended by Laws of Utah 1997, Second Special Session, Chapter 3
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10-2-111, as repealed and reenacted by Laws of Utah 1997, Chapter 389
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10-2-112, as last amended by Laws of Utah 2004, Chapter 202
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10-2-113, as repealed and reenacted by Laws of Utah 1997, Chapter 389
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10-2-114, as last amended by Laws of Utah 2004, Chapter 202
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10-2-115, as last amended by Laws of Utah 2000, Chapter 1
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10-2-116, as enacted by Laws of Utah 1997, Chapter 389
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10-2-119, as last amended by Laws of Utah 2005, Chapter 233
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10-2-120, as last amended by Laws of Utah 2005, Chapter 233
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10-2-121, as last amended by Laws of Utah 2005, First Special Session, Chapter 9
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10-2-122, as last amended by Laws of Utah 2000, Chapter 38
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10-2-123, as enacted by Laws of Utah 1997, Chapter 389
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
10-2-102
is amended to read:
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10-2-102. Incorporation of a contiguous area.
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[(1)] A contiguous unincorporated area [of a county not within a municipality] with a
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population of 100 or more may incorporate as a municipality as provided in this part.
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[(2) Incorporation as a city is governed by Sections
10-2-103
through
10-2-124
.
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Incorporation as a town is governed by Section
10-2-125
.]
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Section 2.
Section
10-2-103
is amended to read:
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10-2-103. Request for feasibility study -- Requirements -- Limitations.
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(1) The process to incorporate a contiguous area of a county as a [city] municipality is
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initiated by a request for a feasibility study filed with the clerk of the county in which the area
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is located.
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(2) Each request under Subsection (1) shall:
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(a) be signed by the owners of private real property that:
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(i) is located within the area proposed to be incorporated;
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(ii) covers at least 10% of the total private land area within the area; and
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(iii) is equal in value to at least 7% of the value of all private real property within the
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area;
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(b) indicate the typed or printed name and current residence address of each owner
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signing the request;
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(c) describe the contiguous area proposed to be incorporated as a [city] municipality;
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(d) designate up to five signers of the request as sponsors, one of whom shall be
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designated as the contact sponsor, with the mailing address and telephone number of each;
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(e) be accompanied by and circulated with an accurate map or plat, prepared by a
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licensed surveyor, showing the boundaries of the proposed [city] municipality; and
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(f) request the county legislative body to commission a study to determine the
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feasibility of incorporating the area as a [city] municipality.
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(3) A request for a feasibility study under this section may not propose for
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incorporation an area that includes some or all of an area that is the subject of a completed
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feasibility study or supplemental feasibility study whose results comply with Subsection
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10-2-109
(3) unless:
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(a) the proposed incorporation that is the subject of the completed feasibility study or
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supplemental feasibility study has been defeated by the voters at an election under Section
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10-2-111
; or
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(b) the time provided under Subsection
10-2-109
(1) for filing an incorporation petition
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based on the completed feasibility study or supplemental feasibility study has elapsed without
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the filing of a petition.
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(4) (a) Except as provided in Subsection (4)(b), a request under this section may not
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propose for incorporation an area that includes some or all of an area proposed for annexation
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in an annexation petition under Section
10-2-403
that:
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(i) was filed before the filing of the request; and
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(ii) is still pending on the date the request is filed.
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(b) Notwithstanding Subsection (4)(a), a request may propose for incorporation an area
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that includes some or all of an area proposed for annexation in an annexation petition described
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in Subsection (4)(a) if:
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(i) the proposed annexation area that is part of the area proposed for incorporation does
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not exceed 20% of the area proposed for incorporation;
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(ii) the request complies with Subsections (2) and (3) with respect to the area proposed
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for incorporation excluding the proposed annexation area; and
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(iii) excluding the area proposed for annexation from the area proposed for
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incorporation would not cause the area proposed for incorporation to lose its contiguousness.
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(c) Except as provided in Section
10-2-107
, each request to which Subsection (4)(b)
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applies shall be considered as not proposing the incorporation of the area proposed for
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annexation.
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(5) At the time of filing the request for a feasibility study with the county clerk, the
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sponsors of the request shall mail or deliver a copy of the request to the chair of the planning
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commission of each township in which any part of the area proposed for incorporation is
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located.
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Section 3.
Section
10-2-104
is amended to read:
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10-2-104. Notice to owner of more than 1% of property -- Exclusion of property
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from proposed boundaries.
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(1) Within seven calendar days of the date on which a request under Section
10-2-103
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is filed, the county clerk shall notify of the proposed incorporation each owner of real property
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owning more than 1% of the assessed value of all property in the proposed incorporation
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boundaries.
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(2) (a) A property owner within the boundaries of a proposed municipality, owning
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more than 1% of the assessed value of all property in the proposed incorporation boundaries,
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may exclude all or part of the property owner's property from the proposed boundaries by filing
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a Notice of Exclusion within ten calendar days of receiving the clerk's notice under Subsection
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(1).
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(b) The county legislative body shall exclude the property identified in the Notice of
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Exclusion from the proposed boundaries only if the property:
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(i) is currently nonurban;
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(ii) does not or will not require municipal provision of municipal-type services
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including:
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(A) culinary or irrigation water;
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(B) sewage collection or treatment;
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(C) storm drainage or flood control;
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(D) recreational facilities or parks;
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(E) electric generation or transportation;
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(F) construction or maintenance of local streets and roads;
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(G) curb and gutter or sidewalk maintenance;
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(H) garbage and refuse collection; and
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(I) street lighting; and
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(iii) exclusion will not leave an unincorporated island within the proposed
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municipality.
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(3) This section [applies only to counties of the first or second] does not apply to a
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proposed incorporation of a city in a county of the third, fourth, fifth, or sixth class.
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(4) If the county legislative body excludes property from the proposed boundaries
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under Subsection (2)(b), the county legislative body shall, within five days of the exclusion,
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send written notice of its action to the contact sponsor.
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Section 4.
Section
10-2-106
is amended to read:
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10-2-106. Feasibility study -- Feasibility study consultant.
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(1) [Within] (a) Except as provided in Subsection (1)(b), within 60 days [of receipt of]
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after receiving a certified request under Subsection
10-2-105
(1)(b)(i), the county legislative
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body shall engage the feasibility consultant chosen under Subsection (2) to conduct a feasibility
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study.
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(b) The county legislative body may waive the requirement of a feasibility study for the
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proposed incorporation of a town.
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(2) The feasibility consultant shall be chosen by a majority vote of a selection
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committee consisting of:
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(a) a person designated by the county legislative body;
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(b) a person designated by the sponsors of the request for a feasibility study; and
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(c) a person designated by the governor.
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(3) The county legislative body shall require the feasibility consultant to:
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(a) complete the feasibility study and submit the written results to the county legislative
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body and the contact sponsor no later than 90 days after the feasibility consultant is engaged to
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conduct the study;
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(b) submit with the full written results of the feasibility study a summary of the results
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no longer than one page in length; and
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(c) attend the public hearings under Subsection
10-2-108
(1) and present the feasibility
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study results and respond to questions from the public at those hearings.
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(4) (a) The feasibility study shall consider:
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(i) the population and population density within the area proposed for incorporation
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and the surrounding area;
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(ii) the history, geography, geology, and topography of and natural boundaries within
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the area proposed to be incorporated and the surrounding area;
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(iii) whether the proposed boundaries eliminate or create an unincorporated island or
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peninsula;
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(iv) whether the proposed incorporation will hinder or prevent a future and more
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logical and beneficial incorporation or a future logical and beneficial annexation;
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(v) the fiscal impact on unincorporated areas, other municipalities, local districts,
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special service districts, and other governmental entities in the county;
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(vi) current and five-year projections of demographics and economic base in the
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proposed [city] municipality and surrounding area, including household size and income,
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commercial and industrial development, and public facilities;
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(vii) projected growth in the proposed [city] municipality and in adjacent areas during
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the next five years;
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(viii) subject to Subsection (4)(c), the present and five-year projections of the cost,
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including overhead, of governmental services in the proposed [city] municipality;
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(ix) the present and five-year projected revenue for the proposed [city] municipality;
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(x) the projected impact the incorporation will have over the following five years on
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the amount of taxes that property owners within the proposed [city] municipality and in the
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remaining unincorporated county will pay;
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(xi) past expansion in terms of population and construction in the proposed [city]
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municipality and the surrounding area;
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(xii) the extension of the boundaries of other nearby municipalities during the past ten
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years, the willingness of those municipalities to annex the area proposed for incorporation, and
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the probability that those municipalities would annex territory within the area proposed for
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incorporation within the next five years except for the incorporation; and
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(xiii) whether the legislative body of the county in which the area proposed to be
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incorporated favors the incorporation proposal.
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(b) For purposes of Subsection (4)(a)(ix), the feasibility consultant shall assume ad
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valorem property tax rates on residential property within the proposed [city] municipality at the
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same level at which they would have been without the incorporation.
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(c) For purposes of Subsection (4)(a)(viii):
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(i) the feasibility consultant shall assume a level and quality of governmental services
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to be provided to the proposed [city] municipality in the future that fairly and reasonably
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approximate the level and quality of governmental services being provided to the proposed
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[city] municipality at the time of the feasibility study;
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(ii) in determining the present cost of a governmental service, the feasibility consultant
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shall consider:
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(A) the amount it would cost the proposed [city] municipality itself to provide the
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service after incorporation;
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(B) if the county is currently providing the service to the proposed [city] municipality,
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the county's cost of providing the service; and
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(C) if the county is not currently providing the service to the proposed [city]
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municipality, the amount the proposed [city] municipality can reasonably expect to pay for the
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service under a contract for the service; and
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(iii) the five-year projected cost of a governmental service shall be based on the
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amount calculated under Subsection (4)(c)(ii), taking into account inflation and anticipated
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growth.
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(5) If the results of the feasibility study or revised feasibility study do not meet the
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requirements of Subsection
10-2-109
(3), the feasibility consultant shall, as part of the
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feasibility study or revised feasibility study and if requested by the sponsors of the request,
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make recommendations as to how the boundaries of the proposed [city] municipality may be
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altered so that the requirements of Subsection
10-2-109
(3) may be met.
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(6) (a) For purposes of this Subsection (6), "pending" means that the process to
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incorporate an unincorporated area has been initiated by the filing of a request for feasibility
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study under Section
10-2-103
but that, as of the date this Subsection (6) becomes effective, a
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petition under Section
10-2-109
has not yet been filed.
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(b) The amendments to Subsection (4) that become effective upon the effective date of
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this Subsection (6):
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(i) apply to each pending proceeding proposing the incorporation of an unincorporated
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area; and
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(ii) do not apply to a municipal incorporation proceeding under this part in which a
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petition under Section
10-2-109
has been filed.
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(c) (i) If, in a pending incorporation proceeding, the feasibility consultant has, as of the
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effective date of this Subsection (6), already completed the feasibility study, the county
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legislative body shall, within 20 days after the effective date of this Subsection (6) and except
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as provided in Subsection (6)(c)(iii), engage the feasibility consultant to revise the feasibility
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study to take into account the amendments to Subsection (4) that became effective on the
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effective date of this Subsection (6).
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(ii) Except as provided in Subsection (6)(c)(iii), the county legislative body shall
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require the feasibility consultant to complete the revised feasibility study under Subsection
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(6)(c)(i) within 20 days after being engaged to do so.
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(iii) Notwithstanding Subsections (6)(c)(i) and (ii), a county legislative body is not
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required to engage the feasibility consultant to revise the feasibility study if, within 15 days
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after the effective date of this Subsection (6), the request sponsors file with the county clerk a
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written withdrawal of the request signed by all the request sponsors.
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(d) All provisions of this part that set forth the incorporation process following the
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completion of a feasibility study shall apply with equal force following the completion of a
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revised feasibility study under this Subsection (6), except that, if a petition under Section
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10-2-109
has already been filed based on the feasibility study that is revised under this
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Subsection (6):
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(i) the notice required by Section
10-2-108
for the revised feasibility study shall
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include a statement informing signers of the petition of their right to withdraw their signatures
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from the petition and of the process and deadline for withdrawing a signature from the petition;
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(ii) a signer of the petition may withdraw the signer's signature by filing with the
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county clerk a written withdrawal within 30 days after the final notice under Subsection
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10-2-108
(2) has been given with respect to the revised feasibility study; and
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(iii) unless withdrawn, a signature on the petition may be used toward fulfilling the
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signature requirements under Subsection
10-2-109
(2)(a) for a petition based on the revised
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feasibility study.
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Section 5.
Section
10-2-107
is amended to read:
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10-2-107. Modified request for feasibility study -- Supplemental feasibility study.
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(1) (a) (i) The sponsors of a request may modify the request to alter the boundaries of
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the proposed [city] municipality and then refile the request, as modified, with the county clerk
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if:
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(A) the results of the feasibility study do not meet the requirements of Subsection
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10-2-109
(3); or
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(B) (I) the request meets the conditions of Subsection
10-2-103
(4)(b);
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(II) the annexation petition that proposed the annexation of an area that is part of the
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area proposed for incorporation has been denied; and
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(III) an incorporation petition based on the request has not been filed.
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(ii) (A) A modified request under Subsection (1)(a)(i)(A) may not be filed more than
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90 days after the feasibility consultant's submission of the results of the study.
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(B) A modified request under Subsection (1)(a)(i)(B) may not be filed more than 18
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months after the filing of the original request under Section
10-2-103
.
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(b) (i) Subject to Subsection (1)(b)(ii), each modified request under Subsection (1)(a)
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shall comply with the requirements of Subsections
10-2-103
(2), (3), (4), and (5).
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(ii) Notwithstanding Subsection (1)(b)(i), a signature on a request filed under Section
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10-2-103
may be used toward fulfilling the signature requirement of Subsection
10-2-103
(2)(a)
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for the request as modified under Subsection (1)(a), unless the modified request proposes the
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incorporation of an area that is more than 20% greater or smaller than the area described by the
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original request in terms of:
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(A) private land area; or
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(B) value of private real property.
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(2) Within 20 days after the county clerk's receipt of the modified request, the county
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clerk shall follow the same procedure for the modified request as provided under Subsection
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10-2-105
(1) for an original request.
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(3) The timely filing of a modified request under Subsection (1) gives the modified
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request the same processing priority under Subsection
10-2-105
(2) as the original request.
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(4) Within ten days after the county legislative body's receipt of a certified modified
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request under Subsection (1)(a)(i)(A) or a certified modified request under Subsection
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(1)(a)(i)(B) that was filed after the completion of a feasibility study on the original request, the
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county legislative body shall commission the feasibility consultant who conducted the
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feasibility study to supplement the feasibility study to take into account the information in the
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modified request that was not included in the original request.
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(5) The county legislative body shall require the feasibility consultant to complete the
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supplemental feasibility study and to submit written results of the supplemental study to the
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county legislative body and to the contact sponsor no later than 30 days after the feasibility
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consultant is commissioned to conduct the supplemental feasibility study.
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(6) (a) Subject to Subsection (6)(b), if the results of the supplemental feasibility study
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do not meet the requirements of Subsection
10-2-109
(3):
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(i) the sponsors may file a further modified request as provided in Subsection (1); and
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(ii) Subsections (2), (4), and (5) apply to a further modified request under Subsection
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(6)(a)(i).
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(b) A further modified request under Subsection (6)(a) shall, for purposes of its
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processing priority, be considered as an original request for a feasibility study under Section
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10-2-103
.
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Section 6.
Section
10-2-108
is amended to read:
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10-2-108. Public hearings on feasibility study results -- Notice of hearings.
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(1) If the results of the feasibility study or supplemental feasibility study meet the
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requirements of Subsection
10-2-109
(3), the county legislative body shall, at its next regular
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meeting after receipt of the results of the feasibility study or supplemental feasibility study,
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schedule at least two public hearings to be held:
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(a) within the following 60 days;
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(b) at least seven days apart;
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(c) in geographically diverse locations within the proposed [city] municipality; and
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(d) for the purpose of allowing:
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(i) the feasibility consultant to present the results of the study; and
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(ii) the public to become informed about the feasibility study results and to ask
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questions about those results of the feasibility consultant.
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(2) (a) (i) The county clerk shall publish notice of the public hearings required under
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Subsection (1) at least once a week for three successive weeks in a newspaper of general
314
circulation within the proposed [city] municipality.
315
(ii) The last publication of notice required under Subsection (2)(a)(i) shall be at least
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three days before the first public hearing required under Subsection (1).
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(b) (i) If there is no newspaper of general circulation within the proposed [city]
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municipality, the county clerk shall post at least one notice of the hearings per 1,000 population
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in conspicuous places within the proposed [city] municipality that are most likely to give notice
320
of the hearings to the residents of the proposed [city] municipality.
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(ii) The clerk shall post the notices under Subsection (2)(b)(i) at least seven days before
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the first hearing under Subsection (1).
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(c) The notice under Subsections (2)(a) and (b) shall include the feasibility study
324
summary under Subsection
10-2-106
(3)(b) and shall indicate that a full copy of the study is
325
available for inspection and copying at the office of the county clerk.
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Section 7.
Section
10-2-109
is amended to read:
327
10-2-109. Incorporation petition -- Requirements and form.
328
(1) At any time within 18 months of the completion of the public hearings required
329
under Subsection
10-2-108
(1), a petition for incorporation of the area proposed to be
330
incorporated as a [city] municipality may be filed in the office of the clerk of the county in
331
which the area is located.
332
(2) Each petition under Subsection (1) shall:
333
(a) be signed by the owners of private real property that:
334
(i) is located within the area proposed to be incorporated;
335
(ii) covers at least 1/3 of the total private land area within the area; and
336
(iii) is equal in value to at least 1/3 of the value of all private real property within the
337
area;
338
(b) indicate the typed or printed name and current residence address of each owner
339
signing the petition;
340
(c) describe the area proposed to be incorporated as a [city] municipality, as described
341
in the feasibility study request or modified request that meets the requirements of Subsection
342
(3);
343
(d) state the proposed name for the proposed [city] municipality;
344
(e) designate five signers of the petition as petition sponsors, one of whom shall be
345
designated as the contact sponsor, with the mailing address and telephone number of each;
346
(f) state that the signers of the petition appoint the sponsors, if the incorporation
347
measure passes, to represent the signers in the process of:
348
(i) selecting the number of [commission or] council members the new [city]
349
municipality should have; and
350
(ii) drawing district boundaries for the election of [commission or] council members, if
351
the voters decide to elect [commission or] council members by district;
352
(g) be accompanied by and circulated with an accurate plat or map, prepared by a
353
licensed surveyor, showing the boundaries of the proposed [city] municipality; and
354
(h) substantially comply with and be circulated in the following form:
355
PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
356
[city] municipality)
357
To the Honorable County Legislative Body of (insert the name of the county in which
358
the proposed [city] municipality is located) County, Utah:
359
We, the undersigned owners of real property within the area described in this petition,
360
respectfully petition the county legislative body to submit to the registered voters residing
361
within the area described in this petition, at a special election held for that purpose, the
362
question of whether the area should incorporate as a [city] municipality. Each of the
363
undersigned affirms that each has personally signed this petition and is an owner of real
364
property within the described area, and that the current residence address of each is correctly
365
written after the signer's name. The area proposed to be incorporated as a [city] municipality is
366
described as follows: (insert an accurate description of the area proposed to be incorporated).
367
(3) (a) A petition for incorporation of a city under Subsection (1) may not be filed
368
unless the results of the feasibility study or supplemental feasibility study show that the average
369
annual amount under Subsection
10-2-106
(4)(a)(ix) does not exceed the average annual
370
amount under Subsection
10-2-106
(4)(a)(viii) by more than 5%.
371
(b) (i) If the results of the feasibility study or supplemental feasibility study for a
372
proposed incorporation of a town show that the average annual amount under Subsection
373
10-2-106
(4)(a)(ix) exceeds the average annual amount under Subsection
10-2-106
(4)(a)(viii)
374
by more than 10%, a p