S.B. 9 Enrolled

PROPERTY RIGHTS AMENDMENTS
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: Carlene M. Walker

LONG TITLE
General Description:
This bill modifies provisions relating to rights and procedures in eminent domain
proceedings and other disputes between a property owner and a governmental entity.
Highlighted Provisions:
This bill:
. requires those intending to acquire property by eminent domain to negotiate with
and provide a specified written explanation to the property owner beforehand;
. imposes relocation assistance requirements on nongovernmental persons and entities
acquiring property by eminent domain;
. changes a requirement that displacing agencies enact relocation assistance rules to an
authorization to do so and requires those that do not enact rules to comply with
Department of Transportation rules on relocation assistance;
. modifies notice requirements for redevelopment agencies intending to exercise
eminent domain;
. provides that an appraisal obtained by a governmental entity is not a protected
record if the governmental entity has initiated negotiations to acquire a single family
residence before using eminent domain;
. exempts takings law actions from specified governmental immunity procedural
requirements;
. changes the title of the private property ombudsman to the property rights
ombudsman;
. imposes reasonable time and reasonable notice requirements on those entering land
for examination, survey, and other purposes when the land is subject to being acquired by

eminent domain; and
. prohibits a defendant in an eminent domain action from having to respond to a motion
for immediate occupancy before the time for answering the complaint expires, unless
the court so orders.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
10-9-708, as last amended by Chapter 291, Laws of Utah 1999
10-9-1001, as last amended by Chapter 124, Laws of Utah 2003
17-27-708, as last amended by Chapter 241, Laws of Utah 2001
17-27-1001, as last amended by Chapter 124, Laws of Utah 2003
17B-4-1102, as enacted by Chapter 133, Laws of Utah 2001
57-12-3, as last amended by Chapters 295 and 321, Laws of Utah 1998
57-12-9, as last amended by Chapter 161, Laws of Utah 1987
63-2-304, as last amended by Chapters 60 and 131, Laws of Utah 2003
63-30-10.5, as last amended by Chapter 76, Laws of Utah 1991
63-34-13, as last amended by Chapter 214, Laws of Utah 2003
78-34-5, as last amended by Chapter 220, Laws of Utah 1967
78-34-9, as last amended by Chapters 295 and 321, Laws of Utah 1998
ENACTS:
78-34-4.5, Utah Code Annotated 1953

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 10-9-708 is amended to read:
10-9-708. District court review of board of adjustment decision.

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(1) Any person adversely affected by any decision of a board of adjustment may petition
the district court for a review of the decision.
(2) In the petition, the plaintiff may only allege that the board of adjustment's decision
was arbitrary, capricious, or illegal.
(3) (a) The petition is barred unless it is filed within 30 days after the board of
adjustment's decision is final.
(b) (i) The time under Subsection (3)(a) to file a petition is tolled from the date a property
owner files a request for arbitration of a constitutional taking issue with the [private] property
rights ombudsman under Section 63-34-13 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the [private] property rights ombudsman issues a written statement under Subsection
63-34-13 (4)(b) declining to arbitrate or to appoint an arbitrator.
(ii) A tolling under Subsection (3)(b)(i) operates only as to the specific constitutional
taking issues that are the subject of the request for arbitration filed with the [private] property
rights ombudsman by a property owner.
(iii) A request for arbitration filed with the [private] property rights ombudsman after the
time under Subsection (3)(a) to file a petition has expired does not affect the time to file a
petition.
(4) (a) The board of adjustment shall transmit to the reviewing court the record of its
proceedings including its minutes, findings, orders and, if available, a true and correct transcript of
its proceedings.
(b) If the proceeding was tape recorded, a transcript of that tape recording is a true and
correct transcript for purposes of this Subsection (4).
(5) (a) (i) If there is a record, the district court's review is limited to the record provided
by the board of adjustment.
(ii) The court may not accept or consider any evidence outside the board of adjustment's
record unless that evidence was offered to the board of adjustment and the court determines that
it was improperly excluded by the board of adjustment.

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(b) If there is no record, the court may call witnesses and take evidence.
(6) The court shall affirm the decision of the board of adjustment if the decision is
supported by substantial evidence in the record.
(7) (a) The filing of a petition does not stay the decision of the board of adjustment.
(b) (i) Before filing a petition under this section or a request for mediation or arbitration
of a constitutional taking issue under Section 63-34-13 , the aggrieved party may petition the
board of adjustment to stay its decision.
(ii) Upon receipt of a petition to stay, the board of adjustment may order its decision
stayed pending district court review if the board of adjustment finds it to be in the best interest of
the municipality.
(iii) After a petition is filed under this section or a request for mediation or arbitration of a
constitutional taking issue is filed under Section 63-34-13 , the petitioner may seek an injunction
staying the board of adjustment's decision.
Section 2. Section 10-9-1001 is amended to read:
10-9-1001. Appeals.
(1) No person may challenge in district court a municipality's land use decisions made
under this chapter or under the regulation made under authority of this chapter until that person
has exhausted his administrative remedies.
(2) (a) Any person adversely affected by any decision made in the exercise of or in
violation of the provisions of this chapter may file a petition for review of the decision with the
district court within 30 days after the local decision is rendered.
(b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date a property
owner files a request for arbitration of a constitutional taking issue with the [private] property
rights ombudsman under Section 63-34-13 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the [private] property rights ombudsman issues a written statement under Subsection
63-34-13 (4)(b) declining to arbitrate or to appoint an arbitrator.
(ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional

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taking [issues] issue that [are] is the subject of the request for arbitration filed with the [private]
property rights ombudsman by a property owner.
(iii) A request for arbitration filed with the [private] property rights ombudsman after the
time under Subsection (2)(a) to file a petition has expired does not affect the time to file a
petition.
(3) The courts shall:
(a) presume that land use decisions and regulations are valid; and
(b) determine only whether or not the decision is arbitrary, capricious, or illegal.
Section 3. Section 17-27-708 is amended to read:
17-27-708. District court review of board of adjustment decision.
(1) Any person adversely affected by any decision of a board of adjustment may petition
the district court for a review of the decision.
(2) (a) The district court's review is limited to a determination of whether the board of
adjustment's decision is arbitrary, capricious, or illegal.
(b) A determination of illegality requires a determination that the board of adjustment's
decision violates a statute, ordinance, or existing law.
(3) (a) The petition is barred unless it is filed within 30 days after the board of
adjustment's decision is final.
(b) (i) The time under Subsection (3)(a) to file a petition is tolled from the date a property
owner files a request for arbitration of a constitutional taking issue with the [private] property
rights ombudsman under Section 63-34-13 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the [private] property rights ombudsman issues a written statement under Subsection
63-34-13 (4)(b) declining to arbitrate or to appoint an arbitrator.
(ii) A tolling under Subsection (3)(b)(i) operates only as to the specific constitutional
taking [issues] issue that [are] is the subject of the request for arbitration filed with the [private]
property rights ombudsman by a property owner.
(iii) A request for arbitration filed with the [private] property rights ombudsman after the

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time under Subsection (3)(a) to file a petition has expired does not affect the time to file a
petition.
(4) (a) The board of adjustment shall transmit to the reviewing court the record of its
proceedings including its minutes, findings, orders and, if available, a true and correct transcript of
its proceedings.
(b) If the proceeding was tape recorded, a transcript of that tape recording is a true and
correct transcript for purposes of this Subsection (4).
(5) (a) (i) If there is a record, the district court's review is limited to the record provided
by the board of adjustment.
(ii) The court may not accept or consider any evidence outside the board of adjustment's
record unless that evidence was offered to the board of adjustment and the court determines that
it was improperly excluded by the board of adjustment.
(b) If there is no record, the court may call witnesses and take evidence.
(6) The court shall affirm the decision of the board of adjustment if the decision is
supported by substantial evidence in the record.
(7) (a) The filing of a petition does not stay the decision of the board of adjustment.
(b) (i) Before filing a petition under this section or a request for mediation or arbitration
of a constitutional taking issue under Section 63-34-13 , the aggrieved party may petition the
board of adjustment to stay its decision.
(ii) Upon receipt of a petition to stay, the board of adjustment may order its decision
stayed pending district court review if the board of adjustment finds it to be in the best interest of
the county.
(iii) After a petition is filed under this section or a request for mediation or arbitration of a
constitutional taking issue is filed under Section 63-34-13 , the petitioner may seek an injunction
staying the board of adjustment's decision.
Section 4. Section 17-27-1001 is amended to read:
17-27-1001. Appeals.
(1) No person may challenge in district court a county's land use decisions made under

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this chapter or under the regulation made under authority of this chapter until that person has
exhausted all administrative remedies.
(2) (a) Any person adversely affected by any decision made in the exercise of or in
violation of the provisions of this chapter may file a petition for review of the decision with the
district court within 30 days after the local decision is rendered.
(b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date a property
owner files a request for arbitration of a constitutional taking issue with the [private] property
rights ombudsman under Section 63-34-13 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the [private] property rights ombudsman issues a written statement under Subsection
63-34-13 (4)(b) declining to arbitrate or to appoint an arbitrator.
(ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional
taking [issues] issue that [are] is the subject of the request for arbitration filed with the [private]
property rights ombudsman by a property owner.
(iii) A request for arbitration filed with the [private] property rights ombudsman after the
time under Subsection (2)(a) to file a petition has expired does not affect the time to file a
petition.
(3) (a) The courts shall:
(i) presume that land use decisions and regulations are valid; and
(ii) determine only whether or not the decision is arbitrary, capricious, or illegal.
(b) A determination of illegality requires a determination that the decision violates a
statute, ordinance, or existing law.
Section 5. Section 17B-4-1102 is amended to read:
17B-4-1102. Prerequisites to exercise of eminent domain -- Civil action authorized
-- Record of good faith negotiations to be retained.
(1) Before an agency may exercise the power of eminent domain, the agency shall:
(a) negotiate in good faith with the affected record property owner;
(b) provide to each affected record property owner a written declaration that includes:

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(i) an explanation of the eminent domain process and the reasons for using it including:
(A) the need for the agency to obtain an independent appraisal that indicates the fair
market value of the property and how the fair market value was determined;
(B) a statement explaining agency compliance with the owner participation guidelines;
(C) a statement that the agency may adopt a resolution authorizing the agency to make an
offer to the record property owner to purchase the property for the fair market value amount
determined by the appraiser and that, if the offer is rejected, the agency has the right to acquire
the property through a condemnation proceeding; and
(D) a statement that the agency will prepare an offer that will include the price the agency
is offering for the property, an explanation of how the agency determined the price being offered,
the legal description of the property, conditions of the offer, and the time at which the offer will
expire;
(ii) an explanation of the record property owner's relocation rights under Title 57,
Chapter 12, Utah Relocation Assistance Act, and how to receive relocation assistance; and
(iii) a statement that the owner has the right to receive just compensation and an
explanation of how to obtain it; and
(c) provide to the affected record property owner or the owner's designated
representative a notice that is printed in a type size of at least ten-point type that contains:
(i) a description of the property to be acquired;
(ii) the name of the agency acquiring the property and the agency's contact person and
telephone number; [and]
(iii) a copy of Title 57, Chapter 12, Utah Relocation Assistance Act[.]; and
(iv) a summary of the dispute resolution rights under Section 78-34-21 , including the
name and current telephone number of the property rights ombudsman established under Section
63-34-13 .
(2) A person may bring a civil suit against an agency for a violation of Subsection (1)(b)
that results in damage to that person.
(3) Each agency shall keep a record and evidence of the good faith negotiations required

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under Subsection (1)(a) and retain the record and evidence as provided in:
(a) Title 63, Chapter 2, Government Records Access and Management Act; or
(b) an ordinance or policy that the agency has adopted under Section 63-2-701 .
(4) A record property owner whose property is being taken by an agency through the
exercise of eminent domain may elect to receive for the real property being taken either fair
market value or replacement property under Section 57-12-7 .
Section 6. Section 57-12-3 is amended to read:
57-12-3. Definitions.
As used in this chapter:
(1) "Agency" means:
(a) a department, division, agency, commission, board, council, committee, authority,
political subdivision, or other instrumentality of the state or of a political subdivision of the state
whether one or more[.]; and
(b) any other person whose use of the power of eminent domain results in a person
becoming a displaced person.
(2) "Business" means any lawful activity, excepting a farm operation, conducted
primarily:
(a) for the purchase, sale, lease, or rental of personal or real property, and for the
manufacture, processing, or marketing of products, commodities, or any other personal property;
(b) for the sale of services to the public;
(c) by a nonprofit organization; or
(d) for assisting in the purchase, sale, resale, manufacture, processing, or marketing of
products, commodities, personal property, or services by the erection and maintenance of an
outdoor advertising display or displays, whether or not such display or displays are located on the
premises on which any of the above activities are conducted.
(3) "Displaced person" means any person who, after the effective date of this chapter,
moves from real property, or who moves [his] the person's personal property from real property,
or moves or discontinues [his] the person's business or moves [his] the person's dwelling as a

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result of the acquisition of the real property, in whole or in part, or as a result of a written order
of the acquiring agency to vacate real property for a program of purchase undertaken by an
agency or as a direct result of code enforcement activities or a program of rehabilitation of
buildings conducted pursuant to a federal or state assisted program.
(4) "Family farm" means a farm operation which is conducted:
(a) on two sections (1280 acres) or less; or
(b) as a sole proprietorship or through an entity which is wholly owned by members of
the same immediate family.
(5) "Farm operation" means any activity conducted solely or primarily for the production
of one or more agricultural products or commodities, including timber, for sale or home use, and
customarily producing such products or commodities in sufficient quantity to be capable of
contributing materially to the operator's support.
(6) "Non-profit organization" means all corporations, societies, and associations whose
object is not pecuniary profit, but is to promote the general interest and welfare of the members,
whether temporal, social, or spiritual.
(7) "Person" means any individual, partnership, corporation, or association.
(8) "Small business" means a business which has a gross annual income of less than
$1,500,000.
Section 7. Section 57-12-9 is amended to read:
57-12-9. Rules of displacing agency.
(1) (a) [The] A displacing agency [shall] may enact rules to assure that:
[(a)] (i) the payments and assistance authorized by this chapter are administered in a
manner that is fair, reasonable, and as uniform as practicable;
[(b)] (ii) a displaced person who makes proper application for a payment authorized [for
him] by this chapter is paid promptly after a move or, in hardship cases, is paid in advance; and
[(c)] (iii) any person aggrieved by a determination as to eligibility for a payment
authorized by this chapter, or the amount of a payment, may have [his] the person's application
reviewed by the head of the displacing agency.

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(b) Each displacing agency that has not adopted rules under Subsection (1)(a) shall
comply with the rules promulgated by the Utah Department of Transportation relating to
displaced persons in right-of-way acquisitions.
(2) [The] Each displacing agency shall comply with the procedures and requirements of
Title 63, Chapter 46b, Administrative Procedures Act, in its adjudicative proceedings.
Section 8. Section 63-2-304 is amended to read:
63-2-304. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
has provided the governmental entity with the information specified in Section 63-2-308 ;
(2) commercial information or nonindividual financial information obtained from a person
if:
(a) disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability of the
governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than
the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the
information specified in Section 63-2-308 ;
(3) commercial or financial information acquired or prepared by a governmental entity to
the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection 11-13-103 (4);
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;

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(6) records the disclosure of which would impair governmental procurement proceedings
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
governmental entity, except that this Subsection (6) does not restrict the right of a person to see
bids submitted to or by a governmental entity after bidding has closed;
(7) records that would identify real property or the appraisal or estimated value of real or
personal property, including intellectual property, under consideration for public acquisition
before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental
entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described
property have already learned of the governmental entity's plans to acquire the property; [or]
(d) in the case of records that would identify the appraisal or estimated value of property,
the potential sellers have already learned of the governmental entity's estimated value of the
property; or
(e) the property under consideration for public acquisition is a single family residence and
the governmental entity seeking to acquire the property has initiated negotiations to acquire the
property as required under Section 78-34-4.5 ;
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property, which, if
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
the subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including the
governmental entity's interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
value of the subject property have already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;

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(9) records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally
known outside of government and, in the case of a record compiled in the course of an
investigation, disclose information furnished by a source not generally known outside of
government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques, procedures,
policies, or orders not generally known outside of government if disclosure would interfere with
enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
other appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board of
Pardons and Parole by an employee of or contractor for the Department of Corrections, the
Board of Pardons and Parole, or the Department of Human Services that are based on the
employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
jurisdiction;

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(14) records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the State Tax Commission, if disclosure would interfere with
audits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit until
the final audit is released;
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
litigation that are not available under the rules of discovery;
(17) records disclosing an attorney's work product, including the mental impressions or
legal theories of an attorney or other representative of a governmental entity concerning litigation;
(18) records of communications between a governmental entity and an attorney
representing, retained, or employed by the governmental entity if the communications would be
privileged as provided in Section 78-24-8 ;
(19) personal files of a legislator, including personal correspondence to or from a member
of the Legislature, provided that correspondence that gives notice of legislative action or policy
may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and
General Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation
or contemplated course of action before the legislator has elected to support the legislation or
course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
Office of Legislative Research and General Counsel is a public document unless a legislator asks
that the records requesting the legislation be maintained as protected records until such time as
the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and General
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in response
to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about collective bargaining or

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pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
Employers' Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal
privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
resources that if known would jeopardize the security of those resources or of valuable historic,
scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflict
with the fiduciary obligations of the agency;
(28) records of a public institution of higher education regarding tenure evaluations,
appointments, applications for admissions, retention decisions, and promotions, which could be
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
Meetings, provided that records of the final decisions about tenure, appointments, retention,
promotions, or those students admitted, may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislative
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
policies or contemplated courses of action before the governor has implemented or rejected those
policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state
that are given to the governmental entity with a requirement that they be managed as protected
records if the providing entity certifies that the record would not be subject to public disclosure if
retained by it;

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(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
except as provided in Section 52-4-7 ;
(33) records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from
disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an
administrative law judge, a member of the Board of Pardons and Parole, or a member of any other
body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered by
or requested from a governmental entity for the purpose of encouraging a person to expand or
locate a business in Utah, but only if disclosure would result in actual economic harm to the
person or place the governmental entity at a competitive disadvantage, but this section may not be
used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining the
governmental entity's proprietary protection of intellectual property rights including patents,
copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including a
public institution of higher education, and other information concerning the donation that could
reasonably be expected to reveal the identity of the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
classified protected by the governmental entity under this Subsection (37); and
(c) except for public institutions of higher education, the governmental unit to which the
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
regulatory or legislative authority over the donor, a member of his immediate family, or any entity
owned or controlled by the donor or his immediate family;
(38) accident reports, except as provided in Sections 41-6-40 , 41-12a-202 , and 73-18-13 ;
(39) a notification of workers' compensation insurance coverage described in Section

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34A-2-205 ;
(40) (a) the following records of a public institution of education, which have been
developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the
institution:
(i) unpublished lecture notes;
(ii) unpublished research notes and data;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals; and
(b) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General that
would reveal the name of a particular legislator who requests a legislative audit prior to the date
that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
Office of the Legislative Auditor General is a public document unless the legislator asks that the
records in the custody or control of the Office of Legislative Auditor General that would reveal
the name of a particular legislator who requests a legislative audit be maintained as protected
records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or
other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information contained in the database described in Section 62A-3-311.1 ;
(44) information contained in the Management Information System and Licensing
Information System described in Title 62A, Chapter 4a, Child and Family Services; and
(45) information regarding National Guard operations or activities in support of the
National Guard's federal mission.

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Section 9. Section 63-30-10.5 is amended to read:
63-30-10.5. Waiver of immunity for taking private property without compensation.
(1) As provided by Article I, Section 22 of the Utah Constitution, immunity from suit of
all governmental entities is waived for the recovery of compensation from the governmental entity
when the governmental entity has taken or damaged private property for public uses without just
compensation.
(2) Compensation and damages shall be assessed according to the requirements of Title
78, Chapter 34, Eminent Domain.
(3) An action that involves takings law, as defined in Section 63-34-13 , is not subject to
the requirements of Sections 63-30-11 , 63-30-12 , 63-30-13 , 63-30-14 , 63-30-15 , and 63-30-19 .
Section 10. Section 63-34-13 is amended to read:
63-34-13. Property rights ombudsman -- Powers -- Arbitration procedures.
(1) As used in this section:
(a) "Constitutional taking" or "taking" means a governmental action that results in a
taking of private property so that compensation to the owner of the property is required by:
(i) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(ii) Utah Constitution Article I, Section 22.
(b) "Takings law" means the provisions of the federal and state constitutions, the case
law interpreting those provisions, and any relevant statutory provisions that require a
governmental unit to compensate a private property owner for a constitutional taking.
(2) (a) There is created a [private] property rights ombudsman in the Department of
Natural Resources.
(b) The executive director of the Department of Natural Resources shall hire a person
with background or expertise in takings law to fill the position.
(c) The person hired to fill the position is an exempt employee.
(d) The executive director of the Department of Natural Resources may hire clerks,
interns, or other personnel to assist the private property ombudsman.
(3) The [private] property rights ombudsman shall:

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(a) develop and maintain expertise in and understanding of takings law;
(b) assist state agencies and local governments in developing the guidelines required by
this chapter and, Chapter 90a, Constitutional Taking Issues;
(c) at the request of a state agency or local government, assist the state agency or local
government in analyzing actions with potential takings implications;
(d) advise private property owners who have a legitimate potential or actual takings claim
against a state or local government entity;
(e) identify state or local government actions that have potential takings implications and,
if appropriate, advise those state or local government entities about those implications;
(f) provide information to private citizens, civic groups, government entities, and other
interested parties about takings law and their rights and responsibilities under it;
(g) if appropriate and requested to do so by the private property owner, mediate or
conduct or arrange arbitration for disputes between private property owners and government
entities that involve:
(i) takings issues law;
(ii) actions for eminent domain under Title 78, Chapter 34, Eminent Domain; or
(iii) disputes about relocation assistance under Title 57, Chapter 12, Utah Relocation
Assistance Act; and
(h) if arbitration or mediation is requested by the private property owner under this
section, Section 78-34-21 , or Section 57-12-14 , and arranged by the [private] property rights
ombudsman, the government entity or condemning entity shall participate in the mediation or
arbitration as if the matter were ordered to mediation or arbitration by a court.
(4) (a) The property rights ombudsman may assist a private property owner with respect
to a dispute involving the effect of local government regulation on the use and occupancy of real
property.
(b) In assisting a private property owner with a dispute under Subsection (4)(a), the
property rights ombudsman may not require mediation or arbitration of a dispute except as
provided in Subsection (3)(g).

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[(4)] (5) (a) (i) In conducting or arranging for arbitration under Subsection (3), the
[private] property rights ombudsman shall follow the procedures and requirements of Title 78,
Chapter 31a, Utah Uniform Arbitration Act.
(ii) In applying the Utah Uniform Arbitration Act, the arbitrator and parties shall treat the
matter as if:
(A) it were ordered to arbitration by a court; and
(B) the [private] property rights ombudsman or other arbitrator chosen as provided for in
this section was appointed as arbitrator by the court.
(iii) For the purpose of arbitrations conducted under this section, if the dispute to be
arbitrated is not already the subject of legal action, the district court having jurisdiction over the
county where the private property involved in the dispute is located shall act as the court referred
to in Title 78, Chapter 31a, Utah Uniform Arbitration Act.
(iv) The award from an arbitration conducted under this chapter may not be vacated
under the provisions of Subsection [ 78-31a-14 (1)(e), Utah Arbitration Act,] 78-31a-124 (1)(e)
because of the lack of an arbitration agreement between the parties.
(b) The [private] property rights ombudsman shall issue a written statement declining to
arbitrate or to appoint an arbitrator when, in the opinion of the [private] property rights
ombudsman:
(i) the issues are not ripe for review;
(ii) assuming the alleged facts are true, no cause of action exists under United States or
Utah law;
(iii) all issues raised are beyond the scope of the ombudsman's statutory duty to review; or
(iv) the arbitration is otherwise not appropriate.
(c) (i) The [private] property rights ombudsman shall appoint another person to arbitrate
a dispute when:
(A) either party objects to the [private] property rights ombudsman serving as the
arbitrator and agrees to pay for the services of another arbitrator;
(B) the [private] property rights ombudsman declines to arbitrate the dispute for a reason

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other than those stated in Subsection (4)(b) and one or both parties are willing to pay for the
services of another arbitrator; or
(C) the [private] property rights ombudsman determines that it is appropriate to appoint
another person to arbitrate the dispute with no charge to the parties for the services of the
appointed arbitrator.
(ii) In appointing another person to arbitrate a dispute, the [private] property rights
ombudsman shall appoint an arbitrator who is:
(A) agreeable to both parties; or
(B) agreeable to the party paying for the arbitrator and the [private] property rights
ombudsman.
(iii) The [private] property rights ombudsman may, on the initiative of the [private]
property rights ombudsman or upon agreement of both parties, appoint a panel of arbitrators to
conduct the arbitration.
(iv) The Department of Natural Resources may provide an arbitrator per diem and
reimburse expenses incurred in the performance of the arbitrator's duties at the rates established
by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(d) In arbitrating a dispute, the arbitrator shall apply the relevant statutes, case law,
regulations, and rules of Utah and the United States in conducting the arbitration and in
determining the award.
(e) The property owner and government entity may agree in advance of arbitration that
the arbitration shall be binding and that no de novo review may occur.
(f) Arbitration by or through the [private] property rights ombudsman is not necessary
before bringing legal action to adjudicate any claim.
(g) The lack of arbitration by or through the [private] property rights ombudsman does
not constitute, and may not be interpreted as constituting, a failure to exhaust available
administrative remedies or as a bar to bringing legal action.
(h) Arbitration under this section is not subject to Chapter 46b, Administrative
Procedures Act, or Title 78, Chapter 31b, Alternative Dispute Resolution Act.

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(i) Within 30 days after the arbitrator issues the final award and except as provided in
Subsection (4)(e), any party may submit the award or any issue upon which the award is based to
the district court for de novo review.
[(5)] (6) The filing with the [private] property rights ombudsman of a request for
mediation or arbitration of a constitutional taking issue does not stay any county or municipal land
use decision, including the decision of a board of adjustment.
[(6)] (7) The [private] property rights ombudsman may not be compelled to testify in a
civil action filed with regard to the subject matter of any review or arbitration by the ombudsman.
[(7)] (8) (a) Except as provided in Subsection [(7)] (8)(b), evidence of a review by the
[private] property rights ombudsman and [his] the opinions, writings, findings, and determinations
of the property rights ombudsman are not admissible as evidence in an action subsequently
brought in court and dealing with the same dispute.
(b) Subsection [(7)] (8)(a) does not apply to:
(i) actions brought under authority of Title 78, Chapter 6, Small Claims Courts;
(ii) a judicial confirmation or review of the arbitration itself as authorized in Title 78,
Chapter 31a, Utah Uniform Arbitration Act; or
(iii) actions for de novo review of an arbitration award or issue brought under the
authority of Subsection [(4)] (5)(i).
[(8)] (9) The [private] property rights ombudsman may not represent private property
owners, state agencies, or local governments in court or in adjudicative proceedings under
Chapter 46b, Administrative Procedures Act.
Section 11. Section 78-34-4.5 is enacted to read:
78-34-4.5. Negotiation and disclosure required before eminent domain action.
Each person who seeks to acquire property by eminent domain shall:
(1) before initiating an eminent domain action, make a reasonable effort to negotiate with
the property owner for the purchase of the property; and
(2) as early in the negotiation process under Subsection (1) as practicable but no later
than 14 days before the filing of an eminent domain action, unless the court for good cause allows

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a shorter period before filing:
(a) advise the property owner of the owner's rights to mediation and arbitration under
Section 78-34-21 , including the name and current telephone number of the property rights
ombudsman, established in Section 63-34-13 ; and
(b) provide the property owner a written statement explaining that oral representations or
promises made during the negotiation process are not binding upon the person seeking to acquire
the property by eminent domain.
Section 12. Section 78-34-5 is amended to read:
78-34-5. Right of entry for survey and location.
[In all cases where] (1) If land is required for public use, the person[,] or [his] the
person's agent[,] in charge of [such] the use may survey and locate the same; but it must be
located in the manner which will be most compatible with the greatest public good and the least
private injury, and subject to the provisions of this chapter.
(2) (a) The person[,] or [his] the person's agent[,] in charge of [such] the public use may,
at reasonable times and upon reasonable notice, enter upon the land and make examinations,
surveys, and maps [thereof, and such entry shall] of the land.
(b) Entry upon land as authorized under Subsection (2)(a) does not constitute [no] a
cause of action in favor of the owners of the lands, except for actual damage to the land and
improvements [thereon] on the land caused by such entry, which is not repaired on or before the
date the examinations and surveys are completed.
Section 13. Section 78-34-9 is amended to read:
78-34-9. Occupancy of premises pending action -- Deposit paid into court --
Procedure for payment of compensation.
(1) (a) At any time after the commencement of suit, and after giving notice to the
defendant as provided in the Utah Rules of Civil Procedure, the plaintiff may file a motion with
the court requesting an order permitting the plaintiff to:
[(a)] (i) occupy the premises sought to be condemned pending the action, including
appeal; and

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[(b)] (ii) to do whatever work on the premises that is required.
(b) Except as ordered by the court for good cause shown, a defendant may not be
required to reply to a motion for immediate occupancy before expiration of the time to answer the
complaint.
(2) The court shall:
(a) take proof by affidavit or otherwise of:
(i) the value of the premises sought to be condemned;
(ii) the damages that will accrue from the condemnation; and
(iii) the reasons for requiring a speedy occupation; and
(b) grant or refuse the motion according to the equity of the case and the relative
damages that may accrue to the parties.
(3) (a) If the motion is granted, the court shall enter its order requiring that the plaintiff,
as a condition precedent to occupancy, file with the clerk of the court a sum equal to the
condemning authority's appraised valuation of the property sought to be condemned.
(b) That amount shall be for the purposes of the motion only and is not admissible in
evidence on final hearing.
(4) (a) Upon the filing of the petition for immediate occupancy, the court shall fix the time
within which, and the terms upon which, the parties in possession are required to surrender
possession to the plaintiff.
(b) The court may issue orders governing encumbrances, liens, rents, assessments,
insurance, and other charges, if any, as required.
(5) (a) The rights of just compensation for the land taken as authorized by this section or
damaged as a result of that taking vests in the parties entitled to it.
(b) That compensation shall be ascertained and awarded as provided in Section 78-34-10 .
(c) (i) Except as provided in Subsection (5)(c)(ii), judgment shall include, as part of the
just compensation awarded, interest at the rate of 8% per annum on the amount finally awarded as
the value of the property and damages, from the date of taking actual possession of the property
by the plaintiff or from the date of the order of occupancy, whichever is earlier, to the date of

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judgment.
(ii) The court may not award interest on the amount of the judgment that was paid into
court.
(6) (a) Upon the application of the parties in interest, the court shall order that the money
deposited in the court be paid before judgment as an advance on the just compensation to be
awarded in the proceeding.
(b) This advance payment to a defendant shall be considered to be an abandonment by the
defendant of all defenses except a claim for greater compensation.
(c) If the compensation finally awarded exceeds the advance, the court shall enter
judgment against the plaintiff for the amount of the deficiency.
(d) If the advance received by the defendant is greater than the amount finally awarded,
the court shall enter judgment against the defendant for the amount of the excess.
(7) Arbitration of a dispute under Section 78-34-21 or Section 63-34-13 is not a bar or
cause to stay the action for occupancy of premises authorized by this section.

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