Third 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 . clarifies that the value of property for petition purposes is assessed value;
18 . provides a petition certification process;
19 . eliminates a requirement that a county legislative body grant a petition for the
20 incorporation of a town if the petition meets a certain signature threshold;
21 . requires a majority of voters to sign a petition to incorporate as a town;
22 . allows a county legislative body the option whether to commission a financial
23 feasibility study with respect to a proposed incorporation of a town and provides a
24 process for commissioning a financial feasibility study;
25 . establishes financial feasibility study criteria;

26 . requires the initial officers of a newly incorporated town to be elected rather than
27 appointed by the county legislative body;
28 . modifies the form of government under which a newly incorporated town is
29 required to operate;
30 . modifies the criteria for when a county legislative body is required to approve a
31 petition to incorporate a town;
32 . modifies election provisions to require the election of officers of a newly
33 incorporated town to be conducted within 60 days after the county legislative body
34 adopts a resolution approving the incorporation;
35 . provides for when newly elected town officers in a new town take office;
36 . modifies the date upon which a town is incorporated; and
37 . applies amendments made by this bill to certain pending and all future town
38 incorporation petitions, except for allowing petition sponsors under certain petitions
39 filed before the effective date of this bill to choose whether to have the initial town
40 officers appointed or elected.
41 Monies Appropriated in this Bill:
42 None
43 Other Special Clauses:
44 This bill provides an immediate effective date.
45 This bill provides revisor instructions.
46 Utah Code Sections Affected:
47 AMENDS:
48 10-2-109, as last amended by Laws of Utah 1997, Second Special Session, Chapter 3
49 10-2-125, as last amended by Laws of Utah 2007, Chapter 212
50 20A-1-203, as last amended by Laws of Utah 2007, Chapter 215
51 20A-1-204, as last amended by Laws of Utah 2004, Chapter 371
52
53 Be it enacted by the Legislature of the state of Utah:
54 Section 1. Section 10-2-109 is amended to read:
55 10-2-109. Incorporation petition -- Requirements and form.
56 (1) At any time within 18 months of the completion of the public hearings required

57 under Subsection 10-2-108 (1), a petition for incorporation of the area proposed to be
58 incorporated as a city may be filed in the office of the clerk of the county in which the area is
59 located.
60 (2) Each petition under Subsection (1) shall:
61 (a) be signed by the owners of private real property that:
62 (i) is located within the area proposed to be incorporated;
63 (ii) covers at least 1/3 of the total private land area within the area; and
64 (iii) is equal in value to at least 1/3 of the value of all private real property within the
65 area;
66 (b) indicate the typed or printed name and current residence address of each owner
67 signing the petition;
68 (c) describe the area proposed to be incorporated as a city, as described in the
69 feasibility study request or modified request that meets the requirements of Subsection (3);
70 (d) state the proposed name for the proposed city;
71 (e) designate five signers of the petition as petition sponsors, one of whom shall be
72 designated as the contact sponsor, with the mailing address and telephone number of each;
73 (f) state that the signers of the petition appoint the sponsors, if the incorporation
74 measure passes, to represent the signers in the process of:
75 (i) selecting the number of commission or council members the new city should have;
76 and
77 (ii) drawing district boundaries for the election of commission or council members, if
78 the voters decide to elect commission or council members by district;
79 (g) be accompanied by and circulated with an accurate plat or map, prepared by a
80 licensed surveyor, showing the boundaries of the proposed city; and
81 (h) substantially comply with and be circulated in the following form:
82 PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
83 city)
84 To the Honorable County Legislative Body of (insert the name of the county in which
85 the proposed city is located) County, Utah:
86 We, the undersigned owners of real property within the area described in this petition,
87 respectfully petition the county legislative body to submit to the registered voters residing

88 within the area described in this petition, at a special election held for that purpose, the
89 question of whether the area should incorporate as a city. Each of the undersigned affirms that
90 each has personally signed this petition and is an owner of real property within the described
91 area, and that the current residence address of each is correctly written after the signer's name.
92 The area proposed to be incorporated as a city is described as follows: (insert an accurate
93 description of the area proposed to be incorporated).
94 (3) A petition for incorporation of a city under Subsection (1) may not be filed unless
95 the results of the feasibility study or supplemental feasibility study show that the average
96 annual amount of revenue under Subsection 10-2-106 (4)(a)(ix) does not exceed the average
97 annual amount of cost under Subsection 10-2-106 (4)(a)(viii) by more than 5%.
98 (4) A signature on a request under Section 10-2-103 or a modified request under
99 Section 10-2-107 may be used toward fulfilling the signature requirement of Subsection (2)(a):
100 (a) if the request under Section 10-2-103 or modified request under Section 10-2-107
101 notified the signer in conspicuous language that the signature, unless withdrawn, would also be
102 used for purposes of a petition for incorporation under this section; and
103 (b) unless the signer files with the county clerk a written withdrawal of the signature
104 before the petition under this section is filed with the clerk.
105 Section 2. Section 10-2-125 is amended to read:
106 10-2-125. Incorporation of a town.
107 [(1) As used in this section:]
108 [(a) "Base petition" means a petition under this section proposing the incorporation of a
109 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 at least 1/3 but not more than 1/2 of the value of all private
114 real property within the area proposed to be incorporated.]
115 [(b) "Qualifying petition" means a petition under this section proposing the
116 incorporation of a town and signed by the owners of private real property that:]
117 [(i) is located within the area proposed to be incorporated;]
118 [(ii) covers at least a majority of the total private land area within the area proposed to

119 be incorporated; and]
120 [(iii) is equal in value to more than 1/2 of the value of all private real property within
121 the area proposed to be incorporated.]
122 [(2)] (1) (a) A contiguous area of a county not within a municipality, with a population
123 of at least 100 but less than 1,000, may incorporate as a town as provided in this section.
124 (b) (i) The population figure under Subsection [(2)] (1)(a) shall be derived from the
125 most recent official census or census estimate of the United States Bureau of the Census.
126 (ii) If the population figure is not available from the United States Bureau of the
127 Census, the population figure shall be derived from the estimate from the Utah Population
128 Estimates Committee.
129 [(3)] (2) (a) The process to incorporate an area as a town is initiated by filing a petition
130 with the clerk of the county in which the area is located.
131 (b) Each petition under Subsection [(3)] (2)(a) shall:
132 (i) be signed by:
133 (A) the owners of private real property that:
134 [(A)] (I) is located within the area proposed to be incorporated;
135 [(B)] (II) covers a majority of the total private land area within the area; and
136 [(C)] (III) is equal in assessed value to [at least 1/3] more than 1/2 of the assessed value
137 of all private real property within the area; and
138 (B) registered voters within the area proposed to be incorporated equal in number to at
139 least a majority of all voters within that area who voted in the last gubernatorial election;
140 (ii) state the legal description of the boundaries of the area proposed to be incorporated
141 as a town;
142 (iii) designate [up to] at least five signers of the petition as sponsors, one of whom
143 shall be designated as the contact sponsor, with the mailing address of each owner signing as a
144 sponsor;
145 (iv) be accompanied by and circulated with an accurate map or plat, prepared by a
146 licensed surveyor, showing the boundaries of the proposed town; and
147 (v) substantially comply with and be circulated in the following form:
148 PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
149 town)

150 To the Honorable County Legislative Body of (insert the name of the county in which
151 the proposed town is located) County, Utah:
152 We, the undersigned owners of real property and registered voters within the area
153 described in this petition, respectfully petition the county legislative body for the area described
154 in this petition to be incorporated as a town. Each of the undersigned affirms that each has
155 personally signed this petition and is either an owner of real property within the described area
156 or a registered voter residing within the described area, and that the current residence address
157 of each is correctly written after the signer's name. The area proposed to be incorporated as a
158 town is described as follows: (insert an accurate description of the area proposed to be
159 incorporated).
160 (c) A petition under this section may not describe an area that includes some or all of
161 an area proposed for annexation in an annexation petition under Section 10-2-403 that:
162 (i) was filed before the filing of the petition; and
163 (ii) is still pending on the date the petition is filed.
164 (d) A petition may not be filed under this section if the private real property owned by
165 the petition sponsors, designated under Subsection (2)(b)(iii), cumulatively exceeds 40% of the
166 total private land area within the area proposed to be incorporated as a town.
167 [(4)] (3) Section 10-2-104 applies to a petition for incorporation as a town in any
168 county, except that the notice under Subsection 10-2-104 (1) shall be sent within seven calendar
169 days after the filing of a petition under Subsection [(3)] (2).
170 (4) Within 20 days after the filing of a petition under Subsection (2)(a), the county
171 clerk shall:
172 (a) with the assistance of other county officers from whom the clerk requests
173 assistance, determine whether the petition complies with the requirements of Subsection (2);
174 and
175 (b) (i) if the clerk determines that the petition complies with those requirements:
176 (A) certify the petition and deliver the certified petition to the county legislative body;
177 and
178 (B) mail or deliver written notification of the certification to:
179 (I) the contact sponsor; and
180 (II) if applicable, the chair of the planning commission of each township in which any

181 part of the area proposed for incorporation is located; or
182 (ii) if the clerk determines that the petition fails to comply with any of those
183 requirements, reject the petition and notify the contact sponsor in writing of the rejection and
184 the reasons for the objection.
185 (5) (a) (i) A petition that is rejected under Subsection (4)(b)(ii) may be amended to
186 correct a deficiency for which it was rejected and then refiled with the county clerk.
187 (ii) A valid signature on a petition filed under Subsection (2)(a) may be used toward
188 fulfilling the signature requirement of Subsection (2)(b) for the same petition that is amended
189 under Subsection (5)(a)(i) and then refiled with the county clerk.
190 (b) If a petition is amended and refiled under Subsection (5)(a)(i) after having been
191 rejected by the county clerk under Subsection (4)(b)(ii):
192 (i) the amended petition shall be considered as a newly filed petition; and
193 (ii) the amended petition's processing priority is determined by the date on which it is
194 refiled.
195 (6) (a) (i) As used in this Subsection (6), "financial feasibility study" means a study to
196 determine:
197 (A) the projected revenues for the proposed town during the first three years after
198 incorporation; and
199 (B) the projected costs, including overhead, that the proposed town will incur in
200 providing governmental services during the first three years after incorporation.
201 [(5) (a) (i)] (ii) The legislative body of [each] a county with which a [base] petition is
202 filed under this section [shall] may, at its option and upon the petition being certified under
203 Subsection (4), commission and pay for a financial feasibility study [as provided in Section
204 10-2-103 ].
205 (iii) If the county legislative body chooses to commission a financial feasibility study,
206 the county legislative body shall:
207 (A) within 20 days after the incorporation petition is certified, select and engage a
208 feasibility consultant; and
209 (B) require the feasibility consultant to complete the financial feasibility study and
210 submit written results of the study to the county legislative body no later than 30 days after the
211 feasibility consultant is engaged to conduct the financial feasibility study.

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

243 (6)(c)(i)(C)(I) shall comply with those conditions.
244 [(b) The legislative body of each county of the second, third, fourth, fifth, or sixth class
245 with which a qualifying petition is filed shall grant the petition.]
246 (7) If the county legislative body chooses not to commission a financial feasibility
247 study under Subsection (6)(a), the county legislative body shall, within 20 days after the
248 petition is certified, adopt a resolution approving the creation of the new town.
249 [(6)] (8) (a) [Upon the granting of a petition filed under this section,] If the legislative
250 body of [the] a county in which [the] a proposed new town is located [shall appoint a mayor
251 and members of the town council from a list of qualified individuals approved by the petition
252 sponsors] adopts a resolution under Subsection (7) or (8) approving the incorporation of the
253 new town, the county legislative body shall, within 60 days after adopting the resolution, hold
254 an election for town officers.
255 (b) The officers elected at an election under Subsection (8)(a) shall take office:
256 (i) at noon on the first Monday in January next following the election, if the election is
257 held on a regular general or municipal general election date; or
258 (ii) at noon on the first day of the month next following the effective date of the
259 incorporation under Subsection (9), if the election of officers is held on any other date.
260 [(b) The officers appointed under Subsection (6)(a) shall hold office until the next
261 regular municipal election and until their successors are elected and qualified.]
262 [(7)] (9) Each newly incorporated town shall operate under the [six-member]
263 five-member council form of government as described in Section 10-3-101 .
264 [(8)] (10) (a) [Each mayor appointed under Subsection (6) shall, within] Within seven
265 days [of appointment, file] after the canvass of the final election of town officers under
266 Subsection (8), the mayor-elect of the new town shall file at least three copies of the articles of
267 incorporation of the new town with the lieutenant governor.
268 (b) The articles of incorporation shall meet the requirements of Subsection
269 10-2-119 (2).
270 [(9) A town is incorporated upon the lieutenant governor's issuance of a certificate of
271 entity creation under Section 67-1a-6.5 .]
272 [(10) The legislative body of the new town shall comply with the notice requirements
273 of Section 10-1-116 .]

274 (11) A town is incorporated:
275 (a) on December 31 of the year in which the lieutenant governor issues a certificate of
276 entity creation for the town under Section 67-1a-6.5 , if the election of town officers under
277 Subsection (8) is held on a regular general or municipal general election date; or
278 (b) on the last day of the month during which the lieutenant governor issues a
279 certificate of entity creation for the town under Section 67-1a-6.5 , if the election of town
280 officers under Subsection (8) is held on any other date.
281 (12) (a) This section applies to:
282 (i) each petition to incorporate a town filed before the effective date of this section, if:
283 (A) the petition was not a qualifying petition under the law in effect at the time the
284 petition was filed; and
285 (B) the petition has not been granted before the effective date of this section; and
286 (ii) each petition to incorporate a town filed on or after the effective date of this
287 section.
288 (b) (i) Subject to Subsection (12)(b)(ii), a petition filed before the effective date of this
289 section that is a qualifying petition under the law in effect at the time the petition was filed is
290 subject to and governed by the law in effect at the time the petition was filed.
291 (ii) (A) If a petition described in Subsection (12)(b)(i) is granted, the petition sponsors
292 may choose whether to have the initial town officers:
293 (I) appointed by the county legislative body, as provided under the law in effect at the
294 time the petition was filed; or
295 (II) elected, as provided in this section.
296 (B) (I) The petition sponsors shall make a choice under Subsection (12)(b)(ii)(A) by
297 submitting a written statement to the county legislative body, within ten days after the petition
298 to incorporate is granted, indicating the choice to have initial town officers appointed or
299 elected.
300 (II) If petition sponsors choose to have the initial town officers elected, the county
301 legislative body shall, notwithstanding Subsection (8)(a), hold an election for town officers
302 within 60 days after the petition sponsors submit their written statement under Subsection
303 (12)(b)(ii)(B)(I).
304 Section 3. Section 20A-1-203 is amended to read:

305 20A-1-203. Calling and purpose of special elections.
306 (1) Statewide and local special elections may be held for any purpose authorized by
307 law.
308 (2) (a) Statewide special elections shall be conducted using the procedure for regular
309 general elections.
310 (b) Except as otherwise provided in this title, local special elections shall be conducted
311 using the procedures for regular municipal elections.
312 (3) The governor may call a statewide special election by issuing an executive order
313 that designates:
314 (a) the date for the statewide special election; and
315 (b) the purpose for the statewide special election.
316 (4) The Legislature may call a statewide special election by passing a joint or
317 concurrent resolution that designates:
318 (a) the date for the statewide special election; and
319 (b) the purpose for the statewide special election.
320 (5) (a) The legislative body of a local political subdivision may call a local special
321 election only for:
322 (i) a vote on a bond or debt issue;
323 (ii) a vote on a voted leeway program authorized by Section 53A-17a-133 or
324 53A-17a-134 ;
325 (iii) an initiative authorized by Chapter 7, Part 5, Local Initiatives - Procedure;
326 (iv) a referendum authorized by Chapter 7, Part 6, Local Referenda - Procedures;
327 (v) if required or authorized by federal law, a vote to determine whether or not Utah's
328 legal boundaries should be changed;
329 (vi) a vote authorized or required by Title 59, Chapter 12, Sales and Use Tax Act; [or]
330 (vii) a vote to elect members to school district boards for a new school district and a
331 remaining school district, as defined in Section 53A-2-117 , following the creation of a new
332 school district under Section 53A-2-118.1 [.]; or
333 (viii) an election of town officers of a newly incorporated town under Section
334 10-2-125 .
335 (b) The legislative body of a local political subdivision may call a local special election

336 by adopting an ordinance or resolution that designates:
337 (i) the date for the local special election; and
338 (ii) the purpose for the local special election.
339 Section 4. Section 20A-1-204 is amended to read:
340 20A-1-204. Date of special election -- Legal effect.
341 (1) (a) The governor, Legislature, or the legislative body of a local political subdivision
342 calling a statewide special election or local special election under Section 20A-1-203 shall
343 schedule the special election to be held on:
344 (i) the fourth Tuesday in June; [or]
345 (ii) the first Tuesday after the first Monday in November[.]; or
346 (iii) for an election of town officers of a newly incorporated town under Section
347 10-2-125 , on any date that complies with the requirements of that subsection.
348 (b) Except as provided in Subsection (1)(c), the governor, Legislature, or the legislative
349 body of a local political subdivision calling a statewide special election or local special election
350 under Section 20A-1-203 may not schedule a special election to be held on any other date.
351 (c) (i) Notwithstanding the requirements of Subsection (1)(b), the legislative body of a
352 local political subdivision may call a local special election on a date other than those specified
353 in this section if the legislative body:
354 (A) determines and declares that there is a disaster, as defined in Section 63-5-2 ,
355 requiring that a special election be held on a date other than the ones authorized in statute;
356 (B) identifies specifically the nature of the disaster, as defined in Section 63-5-2 , and
357 the reasons for holding the special election on that other date; and
358 (C) votes unanimously to hold the special election on that other date.
359 (ii) The legislative body of a local political subdivision may not call a local special
360 election for the date established in Title 20A, Chapter 9, Part 8, Western States Presidential
361 Primary, for Utah's Western States Presidential Primary.
362 (d) Nothing in this section prohibits:
363 (i) the governor or Legislature from submitting a matter to the voters at the regular
364 general election if authorized by law; or
365 (ii) a local government from submitting a matter to the voters at the regular municipal
366 election if authorized by law.

367 (2) (a) Two or more entities shall comply with Subsection (2)(b) if those entities hold a
368 special election within a county on the same day as:
369 (i) another special election;
370 (ii) a regular general election; or
371 (iii) a municipal general election.