19-6-206. Exclusive remedy for devaluation of property caused by approved
facility.
(1) Before construction of a hazardous waste management facility, but in no case later
than nine months after approval of a plan for a hazardous waste treatment, storage, or disposal
facility, any owner or user of property adversely affected by approval may bring an action in a
district court of competent jurisdiction against the owner of the proposed facility. If the court
determines that the planned construction and operation of the hazardous waste management
facility will result in the devaluation of the plaintiff's property or will otherwise interfere with the
plaintiff's rights in the property, it shall order the owner to compensate the plaintiff in an amount
equal to the value of the plaintiff's loss.
(2) The remedy provided in Subsection (1) is the exclusive remedy for owners or users
aggrieved by the proposed construction and operation of a hazardous waste treatment, disposal,
or storage facility, and no court has jurisdiction to enjoin the construction or operation of any
facility located at a site included in the siting plan adopted by the board.
(3) Nothing in this part prevents an owner or user of property aggrieved by the
construction and operation of a facility from seeking damages that result from a subsequent
modification of the design or operation of a facility but damages are limited to the incremental
damage that results from the modification. Any action for damages from a modification shall be
brought within nine months after the plans for modification of the design or operation of the
facility are approved.
(4) For the purpose of assessing damages, the value of the rights affected is fixed at the
date the facility plan is approved and the actual value of the right at that date is the basis for the
determination of the amount of damage suffered, and no improvements to the property subsequent
to the date of approval of the plans shall be included in the assessment of damages. Similarly, for
any subsequent modification of a facility, value is fixed at the date of approval of the amended
facility plan.
(5) The owner or operator of a proposed facility may, at any time before an award of
damages, abandon the construction or operation of the facility or any modification and cause the
action to be dismissed. As a condition of dismissal, however, the owner or operator shall
compensate the plaintiff for any actual damage sustained as a result of construction or operation
of the facility before abandonment together with court costs and a reasonable attorney's fee.
(6) Nothing in this part prevents a court from enjoining any activity at a hazardous waste
facility that is outside of, or not in compliance with, the terms and conditions of an approved
hazardous waste operations plan.
Renumbered and Amended by Chapter 112, 1991 General Session
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Last revised: Wednesday, October 08, 2008