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First Substitute H.B. 114
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5 AN ACT RELATING TO CITIES, COUNTIES, AND LOCAL TAXING UNITS; MODIFYING
6 THE REQUIREMENTS FOR IMPOSING IMPACT FEES; MODIFYING THE PROCESS FOR
7 CHALLENGING AN IMPACT FEE; AND MAKING TECHNICAL CHANGES.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 11-36-201, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
11 11-36-202, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
12 11-36-401, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
13 ENACTS:
14 11-36-103, Utah Code Annotated 1953
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 11-36-103 is enacted to read:
17 11-36-103. Allowable fees for providing documents.
18 If a provision of this chapter allows or requires a local political subdivision to provide or
19 make available a document to the public, the local political subdivision may charge a fee, as
20 provided in Section 63-2-203 , for providing or making available that document.
21 Section 2. Section 11-36-201 is amended to read:
22 11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Exemptions.
23 (1) (a) Each local political subdivision shall comply with the requirements of this chapter
24 before establishing or modifying any impact fee.
25 (b) A local political subdivision may not:
26 (i) establish any new impact fees that are not authorized by this chapter; or
27 (ii) impose or charge any other fees as a condition of development approval unless those
28 fees are a reasonable charge for the service provided.
29 (c) Notwithstanding any other requirements of this chapter, each local political subdivision
30 shall ensure that each existing impact fee that is charged for any public facility not authorized by
31 Subsection 11-36-102 (11) is repealed by July 1, 1995.
32 (d) (i) Existing impact fees for public facilities authorized in Subsection 11-36-102 (11)
33 that are charged by local political subdivisions need not comply with the requirements of this
34 chapter until July 1, 1997.
35 (ii) By July 1, 1997, each local political subdivision shall:
36 (A) review any impact fees in existence as of the effective date of this act, and prepare and
37 approve the analysis required by this section for each of those impact fees; and
38 (B) ensure that the impact fees comply with the requirements of this chapter.
39 (2) (a) Before imposing impact fees, each local political subdivision shall prepare a capital
40 facilities plan.
41 (b) The plan shall [
42 (i) include an inventory of all existing public facilities;
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44 activity; [
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46 those demands; and
47 (iv) include a detailed estimate of the capital costs for any proposed system improvements.
48 (c) Municipalities and counties need not prepare a separate capital facilities plan if the
49 general plan required by Sections 10-9-301 and 17-27-301 contains the elements required by this
50 subsection.
51 (d) (i) If a local political subdivision prepares an independent capital facilities plan rather
52 than including a capital facilities element in the general plan, the local political subdivision
53 shall[
54 (A) before adopting the capital facilities plan, give public notice of the plan according to
55 this [
56 (B) at least 14 days before the date of the public hearing[
57 (I) make a copy of the plan, together with a summary easily understood by the general
58 public, available to the public; and
59 (II) place a copy of the plan and summary in each public library within the local political
60 subdivision; and
61 (C) hold a public hearing to hear public comment on the plan.
62 (ii) Municipalities shall comply with the notice and hearing requirements of, and receive
63 the protections of, Subsections 10-9-103 (2) and 10-9-402 (2).
64 (iii) Counties shall comply with the notice and hearing requirements of, and receive the
65 protections of, Subsections 17-27-103 (2) and 17-27-402 (2).
66 (iv) Special districts shall comply with the notice and hearing requirements of, and receive
67 the protections of, Section 17A-1-203 .
68 (v) Nothing contained in Subsection (2)(d) or in the subsections referenced in Subsections
69 (2)(d)(ii) and (iii) may be construed to require involvement by a planning commission in the
70 capital facilities planning process.
71 (e) Local political subdivisions with a population or serving a population of less than 5000
72 as of the last federal census need not comply with the capital facilities plan requirements of this
73 part, but shall ensure that the impact fees imposed by them are based upon a reasonable plan.
74 (3) In preparing the plan, each local political subdivision shall [
75 (a) consider all revenue sources, including impact fees, to finance the impacts on system
76 improvements; and
77 (b) specifically explain the effect that other revenue sources would have on the average
78 household if the other revenue sources were used instead of impact fees.
79 (4) A local political subdivision may only impose impact fees on development activities
80 when its plan for financing system improvements establishes that impact fees are necessary to
81 achieve an equitable allocation to the costs borne in the past and to be borne in the future, in
82 comparison to the benefits already received and yet to be received.
83 (5) (a) Each local political subdivision imposing impact fees shall prepare a written
84 analysis of each impact fee that:
85 (i) identifies the impact on system improvements required by the development activity;
86 (ii) demonstrates how those impacts on system improvements are reasonably related to the
87 development activity;
88 (iii) estimates the proportionate share of the costs of impacts on system improvements
89 that are reasonably related to the new development activity; and
90 (iv) based upon those factors and the requirements of this chapter, identifies how the
91 impact fee was calculated.
92 (b) In establishing that impact fees are necessary to achieve an equitable allocation to the
93 costs borne in the past and to be borne in the future, in comparison to the benefits already received
94 and yet to be received, and in analyzing whether or not the proportionate share of the costs of
95 public facilities are reasonably related to the new development activity, the local political
96 subdivision shall identify[
97 (i) the original cost of all existing public facilities;
98 (ii) the manner of financing existing public facilities, such as user charges, special
99 assessments, bonded indebtedness, general taxes, or federal grants;
100 (iii) the relative extent to which the newly developed properties and the other properties
101 in the municipality have already contributed to the cost of existing public facilities, by such means
102 as user charges, special assessments, or payment from the proceeds of general taxes;
103 (iv) the relative extent to which the newly developed properties and the other properties
104 in the municipality will contribute to the cost of existing public facilities in the future;
105 (v) the extent to which the newly developed properties are entitled to a credit because the
106 municipality is requiring their developers or owners, by contractual arrangement or otherwise, to
107 provide common facilities, inside or outside the proposed development, that have been provided
108 by the municipality and financed through general taxation or other means, apart from user charges,
109 in other parts of the municipality;
110 (vi) extraordinary costs, if any, in servicing the newly developed properties; and
111 (vii) the time-price differential inherent in fair comparisons of amounts paid at different
112 times.
113 (c) In identifying the items in Subsection (5)(b), each local political subdivision shall, in
114 its written analysis, explain in detail the information on which the local political subdivision bases
115 its determination of the equitable allocation of the costs borne by existing and new development
116 in comparison to the benefits already received and yet to be received by both.
117 (d) A local political subdivision may not adopt an impact fee enactment if any of the items
118 in Subsection (5)(b) is not expressly identified or if the explanation required under Subsection
119 (5)(c) is not provided for any of those items.
120 (e) A local political subdivision may not prepare, consider, or adopt a written analysis
121 required under this Subsection (5) until 60 days after adoption of a capital facilities plan.
122 (f) (i) Before adopting a written analysis under this Subsection (5), each local political
123 subdivision shall:
124 (A) give public notice of the written analysis according to this Subsection (5)(f);
125 (B) at least 14 days before the date of the public hearing:
126 (I) make a copy of the written analysis, with a summary easily understood by the general
127 public, available to the public; and
128 (II) place a copy of the written analysis and summary in each public library within the local
129 political subdivision; and
130 (C) hold a public hearing to obtain public comment on the analysis.
131 (ii) Each municipality shall comply with the notice and hearing requirements and receive
132 the protections of Subsections 10-9-103 (2) and 10-9-402 (2).
133 (iii) Each county shall comply with the notice and hearing requirements and receive the
134 protections of Subsections 17-27-103 (2) and 17-27-402 (2).
135 (iv) Each special district shall comply with the notice and hearing requirements and
136 receive the protections of Section 17A-1-203 .
137 (6) Nothing in this chapter may be construed to repeal or otherwise eliminate any impact
138 fee in effect on the effective date of this act that is pledged as a source of revenues to pay bonded
139 indebtedness that was incurred before the effective date of this act.
140 Section 3. Section 11-36-202 is amended to read:
141 11-36-202. Impact fees -- Enactment -- Required provisions.
142 (1) (a) Each local political subdivision wishing to impose impact fees shall pass an impact
143 fee enactment.
144 (b) The impact fee imposed by that enactment may not exceed the highest fee justified by
145 the impact fee analysis performed pursuant to Section 11-36-201 .
146 (c) In calculating the impact fee, each local political subdivision may include:
147 (i) the construction contract price;
148 (ii) the cost of acquiring land, improvements, materials, and fixtures;
149 (iii) the cost for planning, surveying, and engineering fees for services provided for and
150 directly related to the construction of the system improvements; and
151 (iv) debt service charges, if the political subdivision might use impact fees as a revenue
152 stream to pay the principal and interest on bonds, notes, or other obligations issued to finance the
153 costs of the system improvements.
154 (d) In enacting an impact fee enactment:
155 (i) municipalities shall:
156 (A) make a copy of the impact fee enactment available to the public at least 14 days before
157 the date of the public hearing; and
158 (B) comply with the notice and hearing requirements of, and receive the protections of,
159 Subsections 10-9-103 (2) and 10-9-802 (2);
160 (ii) counties shall:
161 (A) make a copy of the impact fee enactment available to the public at least 14 days before
162 the date of the public hearing; and
163 (B) comply with the notice and hearing requirements of, and receive the protections of,
164 Subsections 17-27-103 (2) and 17-27-802 (2); and
165 (iii) special districts shall:
166 (A) make a copy of the impact fee enactment available to the public at least 14 days before
167 the date of the public hearing; and
168 (B) comply with the notice and hearing requirements of, and receive the protections of,
169 Section 17A-1-203 .
170 (e) Nothing contained in Subsection (1)(d) or in the subsections referenced in Subsections
171 (d)(i)(B) and (ii)(B) may be construed to require involvement by a planning commission in the
172 impact fee enactment process.
173 (f) A local political subdivision may not prepare, consider, or adopt an impact fee
174 enactment until 30 days after adoption of the written analysis required under Subsection
175 11-36-201 (5).
176 (2) The local political subdivision shall ensure that the impact fee enactment contains:
177 (a) a provision establishing one or more service areas within which it shall calculate and
178 impose impact fees for various land use categories;
179 (b) either:
180 (i) a schedule of impact fees for each type of development activity that specifies the
181 amount of the impact fee to be imposed for each type of system improvement; or
182 (ii) the formula that the local political subdivision will use to calculate each impact fee;
183 (c) a provision authorizing the local political subdivision to adjust the standard impact fee
184 at the time the fee is charged to:
185 (i) respond to unusual circumstances in specific cases; and
186 (ii) ensure that the impact fees are imposed fairly; and
187 (d) a provision governing calculation of the amount of the impact fee to be imposed on a
188 particular development that permits adjustment of the amount of the fee based upon studies and
189 data submitted by the developer.
190 (3) The local political subdivision may include a provision in the impact fee enactment
191 that:
192 (a) exempts low income housing and other development activities with broad public
193 purposes from impact fees and establishes one or more sources of funds other than impact fees to
194 pay for that development activity; and
195 (b) imposes an impact fee for public facility costs previously incurred by a local political
196 subdivision to the extent that new growth and development will be served by the previously
197 constructed improvement[
198 (4) Each impact fee enactment shall include a provision that gives a fair market value
199 credit against impact fees for any dedication of land for, improvement to, or new construction of,
200 any system improvements provided by the developer if the facilities:
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203 development activity.
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205 (5) A local political subdivision may not impose an impact fee to cure deficiencies in
206 public facilities serving existing development.
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208 political subdivision may impose and assess an impact fee for environmental mitigation when:
209 (a) the local political subdivision has formally agreed to fund a Habitat Conservation Plan
210 to resolve conflicts with the Endangered Species Act of 1973, 16 U.S.C. Sec 1531, et seq. or other
211 state or federal environmental law or regulation; [
212 (b) the impact fee bears a reasonable relationship to the environmental mitigation required
213 by the Habitat Conservation Plan; and
214 (c) the legislative body of the local political subdivision adopts an ordinance or resolution:
215 (i) declaring that an impact fee is required to finance the Habitat Conservation Plan;
216 (ii) establishing periodic sunset dates for the impact fee; and
217 (iii) requiring the legislative body to:
218 (A) review the impact fee on those sunset dates;
219 (B) determine whether or not the impact fee is still required to finance the Habitat
220 Conservation Plan; and
221 (C) affirmatively reauthorize the impact fee if the legislative body finds that the impact
222 fee must remain in effect.
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224 environmental mitigation meets the requirements of Subsection (5) by July 1, 1995.
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226 impact fees to fund fire trucks as of the effective date of this act may impose impact fees for fire
227 trucks until July 1, 1997.
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229 may impose and collect impact fees on behalf of a school district if authorized by Section
230 53A-20-100.5 .
231 Section 4. Section 11-36-401 is amended to read:
232 11-36-401. Impact fees -- Challenges -- Appeals.
233 (1) Any person or entity residing in or owning property within a service area, and any
234 organization, association, or corporation representing the interests of persons or entities owning
235 property within a service area, may file a declaratory judgment action challenging the validity of
236 the fee.
237 (2) (a) Any person or entity required to pay an impact fee who believes the fee does not
238 meet the requirements of law may file a written request for information with the local political
239 subdivision who established the fee.
240 (b) Within two weeks of the receipt of the request for information, the local political
241 subdivision shall provide the person or entity with the written analysis required by Section
242 11-36-201 , the capital facilities plan, and with any other relevant information relating to the impact
243 fee.
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278 (3) A person or entity may file an action in district court challenging an impact fee as not
279 meeting all the requirements of this chapter if the person or entity:
280 (a) resides in, owns, or has an interest in property within the service area affected by the
281 impact fee; or
282 (b) is required to pay the impact fee.
283 (4) In an action under Subsection (3) or in an arbitration proceeding challenging the
284 validity of an impact fee, the local political subdivision bears the burden of demonstrating that the
285 fee is an equitable allocation of the costs borne by new and existing development, as required
286 under Subsection 11-36-201 (4).
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288 in any action brought under this section.
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290 challenge impact fees that were paid before the effective date of this [
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