Second Substitute S.B. 25

Senator Dennis E. Stowell proposes the following substitute bill:

1 MUNICIPAL INCORPORATION AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Dennis E. Stowell
5 House Sponsor: Melvin R. Brown
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to the incorporation of a town.
10 Highlighted Provisions:
11 This bill:
12 . requires at least five sponsors to be designated on a petition to incorporate an area
13 as a town;
14 . prohibits the filing of a petition to incorporate an area as a town if the petition
15 sponsors own more than 40% of the total area proposed to be incorporated;
16 . eliminates definitions of "base petition" and "qualifying petition";
17 . eliminates a requirement that a county legislative body grant a petition for the
18 incorporation of a town if the petition meets a certain signature threshold;
19 . requires a majority of voters to sign a petition to incorporate as a town;
20 . allows a county legislative body the option whether to commission a financial
21 feasibility study with respect to a proposed incorporation of a town and provides a
22 process for commissioning a financial feasibility study;
23 . establishes financial feasibility study criteria;
24 . requires the initial officers of a newly incorporated town under a petition pending at
25 the effective date of this bill to be elected rather than appointed by the county

26 legislative body if not already appointed;
27 . modifies election provisions to allow the election of officers of a newly
28 incorporated town to be conducted within 60 days after the county legislative body
29 adopts a resolution approving the incorporation;
30 . provides for when newly elected town officers in a new town take office;
31 . modifies the date upon which a town is incorporated; and
32 . applies amendments made by this bill to future town incorporation petitions and
33 pending petitions that have not been granted.
34 Monies Appropriated in this Bill:
35 None
36 Other Special Clauses:
37 This bill provides an immediate effective date.
38 This bill provides revisor instructions.
39 Utah Code Sections Affected:
40 AMENDS:
41 10-2-109, as last amended by Laws of Utah 1997, Second Special Session, Chapter 3
42 10-2-125, as last amended by Laws of Utah 2007, Chapter 212
43 20A-1-203, as last amended by Laws of Utah 2007, Chapter 215
44 20A-1-204, as last amended by Laws of Utah 2004, Chapter 371
45
46 Be it enacted by the Legislature of the state of Utah:
47 Section 1. Section 10-2-109 is amended to read:
48 10-2-109. Incorporation petition -- Requirements and form.
49 (1) At any time within 18 months of the completion of the public hearings required
50 under Subsection 10-2-108 (1), a petition for incorporation of the area proposed to be
51 incorporated as a city may be filed in the office of the clerk of the county in which the area is
52 located.
53 (2) Each petition under Subsection (1) shall:
54 (a) be signed by the owners of private real property that:
55 (i) is located within the area proposed to be incorporated;
56 (ii) covers at least 1/3 of the total private land area within the area; and

57 (iii) is equal in value to at least 1/3 of the value of all private real property within the
58 area;
59 (b) indicate the typed or printed name and current residence address of each owner
60 signing the petition;
61 (c) describe the area proposed to be incorporated as a city, as described in the
62 feasibility study request or modified request that meets the requirements of Subsection (3);
63 (d) state the proposed name for the proposed city;
64 (e) designate five signers of the petition as petition sponsors, one of whom shall be
65 designated as the contact sponsor, with the mailing address and telephone number of each;
66 (f) state that the signers of the petition appoint the sponsors, if the incorporation
67 measure passes, to represent the signers in the process of:
68 (i) selecting the number of commission or council members the new city should have;
69 and
70 (ii) drawing district boundaries for the election of commission or council members, if
71 the voters decide to elect commission or council members by district;
72 (g) be accompanied by and circulated with an accurate plat or map, prepared by a
73 licensed surveyor, showing the boundaries of the proposed city; and
74 (h) substantially comply with and be circulated in the following form:
75 PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
76 city)
77 To the Honorable County Legislative Body of (insert the name of the county in which
78 the proposed city is located) County, Utah:
79 We, the undersigned owners of real property within the area described in this petition,
80 respectfully petition the county legislative body to submit to the registered voters residing
81 within the area described in this petition, at a special election held for that purpose, the
82 question of whether the area should incorporate as a city. Each of the undersigned affirms that
83 each has personally signed this petition and is an owner of real property within the described
84 area, and that the current residence address of each is correctly written after the signer's name.
85 The area proposed to be incorporated as a city is described as follows: (insert an accurate
86 description of the area proposed to be incorporated).
87 (3) A petition for incorporation of a city under Subsection (1) may not be filed unless

88 the results of the feasibility study or supplemental feasibility study show that the average
89 annual amount of revenue under Subsection 10-2-106 (4)(a)(ix) does not exceed the average
90 annual amount of cost under Subsection 10-2-106 (4)(a)(viii) by more than 5%.
91 (4) A signature on a request under Section 10-2-103 or a modified request under
92 Section 10-2-107 may be used toward fulfilling the signature requirement of Subsection (2)(a):
93 (a) if the request under Section 10-2-103 or modified request under Section 10-2-107
94 notified the signer in conspicuous language that the signature, unless withdrawn, would also be
95 used for purposes of a petition for incorporation under this section; and
96 (b) unless the signer files with the county clerk a written withdrawal of the signature
97 before the petition under this section is filed with the clerk.
98 Section 2. Section 10-2-125 is amended to read:
99 10-2-125. Incorporation of a town.
100 [(1) As used in this section:]
101 [(a) "Base petition" means a petition under this section proposing the incorporation of a
102 town and signed by the owners of private real property that:]
103 [(i) is located within the area proposed to be incorporated;]
104 [(ii) covers at least a majority of the total private land area within the area proposed to
105 be incorporated; and]
106 [(iii) is equal in value to at least 1/3 but not more than 1/2 of the value of all private
107 real property within the area proposed to be incorporated.]
108 [(b) "Qualifying petition" means a petition under this section proposing the
109 incorporation of a town and signed by the owners of private real property that:]
110 [(i) is located within the area proposed to be incorporated;]
111 [(ii) covers at least a majority of the total private land area within the area proposed to
112 be incorporated; and]
113 [(iii) is equal in value to more than 1/2 of the value of all private real property within
114 the area proposed to be incorporated.]
115 [(2)] (1) (a) A contiguous area of a county not within a municipality, with a population
116 of at least 100 but less than 1,000, may incorporate as a town as provided in this section.
117 (b) (i) The population figure under Subsection [(2)] (1)(a) shall be derived from the
118 most recent official census or census estimate of the United States Bureau of the Census.

119 (ii) If the population figure is not available from the United States Bureau of the
120 Census, the population figure shall be derived from the estimate from the Utah Population
121 Estimates Committee.
122 [(3)] (2) (a) The process to incorporate an area as a town is initiated by filing a petition
123 with the clerk of the county in which the area is located.
124 (b) Each petition under Subsection [(3)] (2)(a) shall:
125 (i) be signed by:
126 (A) the owners of private real property that:
127 [(A)] (I) is located within the area proposed to be incorporated;
128 [(B)] (II) covers a majority of the total private land area within the area; and
129 [(C)] (III) is equal in value to [at least 1/3] more than 1/2 of the value of all private real
130 property within the area; and
131 (B) registered voters within the area proposed to be incorporated equal in number to at
132 least a majority of all voters within that area who voted in the last gubernatorial election;
133 (ii) state the legal description of the boundaries of the area proposed to be incorporated
134 as a town;
135 (iii) designate [up to] at least five signers of the petition as sponsors, one of whom
136 shall be designated as the contact sponsor, with the mailing address of each owner signing as a
137 sponsor;
138 (iv) be accompanied by and circulated with an accurate map or plat, prepared by a
139 licensed surveyor, showing the boundaries of the proposed town; and
140 (v) substantially comply with and be circulated in the following form:
141 PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
142 town)
143 To the Honorable County Legislative Body of (insert the name of the county in which
144 the proposed town is located) County, Utah:
145 We, the undersigned owners of real property and registered voters within the area
146 described in this petition, respectfully petition the county legislative body for the area described
147 in this petition to be incorporated as a town. Each of the undersigned affirms that each has
148 personally signed this petition and is either an owner of real property within the described area
149 or a registered voter residing within the described area, and that the current residence address

150 of each is correctly written after the signer's name. The area proposed to be incorporated as a
151 town is described as follows: (insert an accurate description of the area proposed to be
152 incorporated).
153 (c) A petition under this section may not describe an area that includes some or all of
154 an area proposed for annexation in an annexation petition under Section 10-2-403 that:
155 (i) was filed before the filing of the petition; and
156 (ii) is still pending on the date the petition is filed.
157 (d) A petition may not be filed under this section if the private real property owned by
158 the petition sponsors, designated under Subsection (2)(b)(iii), cumulatively exceeds 40% of the
159 total private land area within the area proposed to be incorporated as a town.
160 [(4)] (3) Section 10-2-104 applies to a petition for incorporation as a town in any
161 county, except that the notice under Subsection 10-2-104 (1) shall be sent within seven calendar
162 days after the filing of a petition under Subsection [(3)] (2).
163 (4) Within 20 days after the filing of a petition under Subsection (2)(a), the county
164 clerk shall:
165 (a) with the assistance of other county officers from whom the clerk requests
166 assistance, determine whether the petition complies with the requirements of Subsection (2);
167 and
168 (b) (i) if the clerk determines that the petition complies with those requirements:
169 (A) certify the petition and deliver the certified petition to the county legislative body;
170 and
171 (B) mail or deliver written notification of the certification to:
172 (I) the contact sponsor; and
173 (II) if applicable, the chair of the planning commission of each township in which any
174 part of the area proposed for incorporation is located; or
175 (ii) if the clerk determines that the petition fails to comply with any of those
176 requirements, reject the petition and notify the contact sponsor in writing of the rejection and
177 the reasons for the objection.
178 (5) (a) (i) A petition that is rejected under Subsection (4)(b)(ii) may be amended to
179 correct a deficiency for which it was rejected and then refiled with the county clerk.
180 (ii) A valid signature on a petition filed under Subsection (2)(a) may be used toward

181 fulfilling the signature requirement of Subsection (2)(b) for the same petition that is amended
182 under Subsection (5)(a)(i) and then refiled with the county clerk.
183 (b) If a petition is amended and refiled under Subsection (5)(a)(i) after having been
184 rejected by the county clerk under Subsection (4)(b)(ii):
185 (i) the amended petition shall be considered as a newly filed petition; and
186 (ii) the amended petition's processing priority is determined by the date on which it is
187 refiled.
188 (6) (a) (i) As used in this Subsection (6), "financial feasibility study" means a study to
189 determine:
190 (A) the projected revenues for the proposed town during the first three years after
191 incorporation; and
192 (B) the projected costs, including overhead, that the proposed town will incur in
193 providing governmental services during the first three years after incorporation.
194 [(5) (a) (i)] (ii) The legislative body of [each] a county with which a [base] petition is
195 filed under this section [shall] may, at its option and upon the petition being certified under
196 Subsection (4), commission and pay for a financial feasibility study [as provided in Section
197 10-2-103 ].
198 (iii) If the county legislative body chooses to commission a financial feasibility study,
199 the county legislative body shall:
200 (A) within 20 days after the incorporation petition is certified, select and engage a
201 feasibility consultant; and
202 (B) require the feasibility consultant to complete the financial feasibility study and
203 submit written results of the study to the county legislative body no later than 30 days after the
204 feasibility consultant is engaged to conduct the financial feasibility study.
205 [(ii)] (b) If the county legislative body commissions a financial feasibility study and the
206 results of the financial feasibility study [under Subsection (5)(a)(i) meet the requirements of
207 Subsection 10-2-109 (3)] show that the average annual amount of revenue under Subsection
208 (6)(a)(i)(A) does not exceed the average annual amount of cost under Subsection (6)(a)(i)(B)
209 by more than 10%, the county legislative body shall [grant the petition], within 20 days after
210 the feasibility consultant submits the written results of the financial feasibility study, adopt a
211 resolution approving the creation of the new town.

212 [(iii)] (c) (i) If the results of the feasibility study under Subsection [(5)] (4)(a)[(i) do not
213 meet the requirements of Subsection 10-2-109 (3)] show that the average annual amount of
214 revenue under Subsection (6)(a)(i)(A) exceeds the average annual amount of cost under
215 Subsection (6)(a)(i)(B) by more than 10%, the county legislative body may, subject to
216 Subsection (6)(c)(ii):
217 (A) deny the petition;
218 (B) [grant the petition] adopt a resolution approving the creation of the new town; or
219 (C) with the consent of the petition sponsors, [grant the petition] adopt a resolution
220 approving the creation of the new town, after:
221 (I) imposing conditions to mitigate the fiscal inequities identified in the financial
222 feasibility study; or
223 (II) altering the boundaries of the area proposed to be incorporated as a town to
224 approximate the boundaries necessary to [meet the requirements of Subsection 10-2-109 (3)]
225 prevent the average annual amount of revenue under Subsection (6)(a)(i)(A) from exceeding
226 the average annual amount of cost under Subsection (6)(a)(i)(B).
227 (ii) (A) A county legislative body intending to deny a petition under Subsection
228 (6)(c)(i)(A) or to adopt a resolution under Subsection (6)(c)(i)(B) shall deny the petition or
229 adopt the resolution within 20 days after the feasibility consultant submits the written results of
230 the financial feasibility study.
231 (B) A county legislative body intending to adopt a resolution under Subsection
232 (6)(c)(i)(C) shall adopt the resolution within 60 days after the feasibility consultant submits the
233 written results of the financial feasibility study.
234 [(iv)] (d) Each town that incorporates pursuant to a petition [granted] approved after
235 the county legislative body imposes conditions under Subsection [(5)(a)(iii)(C)(I)]
236 (6)(c)(i)(C)(I) shall comply with those conditions.
237 [(b) The legislative body of each county of the second, third, fourth, fifth, or sixth class
238 with which a qualifying petition is filed shall grant the petition.]
239 (7) If the county legislative body chooses not to commission a financial feasibility
240 study under Subsection (6)(a), the county legislative body shall, within 20 days after the
241 petition is certified, adopt a resolution approving the creation of the new town.
242 [(6)] (8) (a) [Upon the granting of a petition filed under this section] Unless the county

243 legislative body has already appointed the initial mayor and council members of a proposed
244 new town as provided in the law then in effect, the legislative body of the county in which the
245 proposed new town is located shall [appoint a mayor and members of the town council from a
246 list of qualified individuals approved by the petition sponsors] hold an election for town
247 officers.
248 (b) The officers elected at an election under Subsection (8)(a) shall take office:
249 (i) at noon on the first Monday in January next following the election, if the election is
250 held on a regular general or municipal general election date; or
251 (ii) at noon on the first day of the month next following the effective date of the
252 incorporation under Subsection (9), if the election of officers is held on any other date.
253 [(b) The officers appointed under Subsection (6)(a) shall hold office until the next
254 regular municipal election and until their successors are elected and qualified.]
255 [(7)] (9) Each newly incorporated town shall operate under the [six-member]
256 five-member council form of government as described in Section 10-3-101 .
257 [(8)] (10) (a) [Each mayor appointed under Subsection (6) shall, within] Within seven
258 days [of appointment, file] after the canvass of the final election of town officers under
259 Subsection (8), the mayor-elect of the new town shall file at least three copies of the articles of
260 incorporation of the new town with the lieutenant governor.
261 (b) The articles of incorporation shall meet the requirements of Subsection
262 10-2-119 (2).
263 [(9) A town is incorporated upon the lieutenant governor's issuance of a certificate of
264 entity creation under Section 67-1a-6.5 .]
265 [(10) The legislative body of the new town shall comply with the notice requirements
266 of Section 10-1-116 .]
267 (11) A town is incorporated:
268 (a) on December 31 of the year in which the lieutenant governor issues a certificate of
269 entity creation for the town under Section 67-1a-6.5 , if the election of town officers under
270 Subsection (8) is held on a regular general or municipal general election date; or
271 (b) on the last day of the month during which the lieutenant governor issues a
272 certificate of entity creation for the town under Section 67-1a-6.5 , if the election of town
273 officers under Subsection (8) is held on any other date.

274 (12) This section applies to:
275 (a) each petition to incorporate a town filed on or after the effective date of this section;
276 and
277 (b) each petition to incorporate a town pending on the effective date of this section, if
278 the county legislative body has not granted the petition.
279 Section 3. Section 20A-1-203 is amended to read:
280 20A-1-203. Calling and purpose of special elections.
281 (1) Statewide and local special elections may be held for any purpose authorized by
282 law.
283 (2) (a) Statewide special elections shall be conducted using the procedure for regular
284 general elections.
285 (b) Except as otherwise provided in this title, local special elections shall be conducted
286 using the procedures for regular municipal elections.
287 (3) The governor may call a statewide special election by issuing an executive order
288 that designates:
289 (a) the date for the statewide special election; and
290 (b) the purpose for the statewide special election.
291 (4) The Legislature may call a statewide special election by passing a joint or
292 concurrent resolution that designates:
293 (a) the date for the statewide special election; and
294 (b) the purpose for the statewide special election.
295 (5) (a) The legislative body of a local political subdivision may call a local special
296 election only for:
297 (i) a vote on a bond or debt issue;
298 (ii) a vote on a voted leeway program authorized by Section 53A-17a-133 or
299 53A-17a-134 ;
300 (iii) an initiative authorized by Chapter 7, Part 5, Local Initiatives - Procedure;
301 (iv) a referendum authorized by Chapter 7, Part 6, Local Referenda - Procedures;
302 (v) if required or authorized by federal law, a vote to determine whether or not Utah's
303 legal boundaries should be changed;
304 (vi) a vote authorized or required by Title 59, Chapter 12, Sales and Use Tax Act; [or]

305 (vii) a vote to elect members to school district boards for a new school district and a
306 remaining school district, as defined in Section 53A-2-117 , following the creation of a new
307 school district under Section 53A-2-118.1 [.]; or
308 (viii) an election of town officers of a newly incorporated town under Subsection
309 10-2-125 (6).
310 (b) The legislative body of a local political subdivision may call a local special election
311 by adopting an ordinance or resolution that designates:
312 (i) the date for the local special election; and
313 (ii) the purpose for the local special election.
314 Section 4. Section 20A-1-204 is amended to read:
315 20A-1-204. Date of special election -- Legal effect.
316 (1) (a) The governor, Legislature, or the legislative body of a local political subdivision
317 calling a statewide special election or local special election under Section 20A-1-203 shall
318 schedule the special election to be held on:
319 (i) the fourth Tuesday in June; [or]
320 (ii) the first Tuesday after the first Monday in November[.]; or
321 (iii) for an election of town officers of a newly incorporated town under Subsection
322 10-2-125 (6), on any date that complies with the requirements of that subsection.
323 (b) Except as provided in Subsection (1)(c), the governor, Legislature, or the legislative
324 body of a local political subdivision calling a statewide special election or local special election
325 under Section 20A-1-203 may not schedule a special election to be held on any other date.
326 (c) (i) Notwithstanding the requirements of Subsection (1)(b), the legislative body of a
327 local political subdivision may call a local special election on a date other than those specified
328 in this section if the legislative body:
329 (A) determines and declares that there is a disaster, as defined in Section 63-5-2 ,
330 requiring that a special election be held on a date other than the ones authorized in statute;
331 (B) identifies specifically the nature of the disaster, as defined in Section 63-5-2 , and
332 the reasons for holding the special election on that other date; and
333 (C) votes unanimously to hold the special election on that other date.
334 (ii) The legislative body of a local political subdivision may not call a local special
335 election for the date established in Title 20A, Chapter 9, Part 8, Western States Presidential

336 Primary, for Utah's Western States Presidential Primary.
337 (d) Nothing in this section prohibits:
338 (i) the governor or Legislature from submitting a matter to the voters at the regular
339 general election if authorized by law; or
340 (ii) a local government from submitting a matter to the voters at the regular municipal
341 election if authorized by law.
342 (2) (a) Two or more entities shall comply with Subsection (2)(b) if those entities hold a
343 special election within a county on the same day as:
344 (i) another special election;
345 (ii) a regular general election; or
346 (iii) a municipal general election.
347 (b) Entities described in Subsection (2)(a) shall, to the extent practicable, coordinate:
348 (i) polling places;
349 (ii) ballots;
350 (iii) election officials; and
351 (iv) other administrative and procedural matters connected with the election.
352 Section 5. Effective date.
353 If approved by two-thirds of all the members elected to each house, this bill takes effect
354 upon approval by the governor, or the day following the constitutional time limit of Utah
355 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
356 the date of veto override.
357 Section 6. Revisor instructions.
358 It is the intent of the Legislature that the Office of Legislative Research and General
359 Counsel, in preparing the Utah Code database for publication, replace the phrase "the effective
360 date of this section" in Subsections 10-2-125 (12)(a) and (b) of this bill with the actual effective
361 date of this bill.