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H.B. 118

This document includes House Committee Amendments incorporated into the bill on Tue, Feb 15, 2005 at 2:25 PM by ddonat. -->              1     





Sponsor: David Ure

             7      LONG TITLE
             8      General Description:
             9          This bill modifies provisions related to improvement districts for the conversion of
             10      overhead utilities to underground.
             11      Highlighted Provisions:
             12          This bill:
             13          .    modifies provisions related to how an assessment on property for the underground
             14      conversion of overhead utilities is to be calculated;
             15          .    eliminates a requirement that real property owners petition for the creation of an
             16      improvement district and allows a county or municipal governing body to create a
             17      district by resolution without a petition, subject to protests;
             18          .    modifies the requirements for notice of a proposed improvement district and
             19      assessment;
             20          .    establishes a process for property owners to protest the creation of an improvement
             21      district and prohibits the creation of the district if adequate protests are filed; and
             22          .    modifies provisions relating to the underground conversion of overhead facilities to
             23      include:
             24              .    a requirement that the governing body provide notice to property owners that
             25      underground service is available and of the requirement to convert the owner's
             26      existing electric and communications facilities to underground;
             27              .    the consequence of an owner's failure to convert overhead facilities to

             28      underground; and
             29              .    the assessment of costs and expenses of the conversion against the property.
             30      Monies Appropriated in this Bill:
             31          None
             32      Other Special Clauses:
             33          None
             34      Utah Code Sections Affected:
             35      AMENDS:
             36          54-8-5, as enacted by Chapter 157, Laws of Utah 1969
             37          54-8-6, as enacted by Chapter 157, Laws of Utah 1969
             38          54-8-9, as enacted by Chapter 157, Laws of Utah 1969
             39          54-8-11, as enacted by Chapter 157, Laws of Utah 1969
             40          54-8-26, as enacted by Chapter 157, Laws of Utah 1969
             42      Be it enacted by the Legislature of the state of Utah:
             43          Section 1. Section 54-8-5 is amended to read:
             44           54-8-5. Apportionment of costs -- Assessment against benefited property -- Public
             45      lands not subject to assessment.
             46          [Whenever any improvement authorized to be made by any governing body by the
             47      terms of this chapter is ordered, the governing body shall provide for the apportionment of the
             48      cost and expenses thereof as in their judgment may be fair and equitable in consideration of the
             49      benefits accruing to the abutting, adjoining, contiguous and adjacent lots and lands and to the
             50      lots and lands otherwise benefited and included within the improvement district formed. Each
             51      lot and parcel of the land shall be separately assessed for the cost and expenses thereof in
             52      proportion to the number of square feet of such lands and lots abutting, adjoining, contiguous
             53      and adjacent thereto or included in the improvement district, and in proportion to the benefits
             54      derived to such property by said improvements.]
             55          (1) If an improvement district is created as provided in this chapter, the governing body
             56      of the county or municipality that created the improvement district may levy an assessment on
             57      property within the district.
             58          (2) (a) If an assessment is levied under this section, it shall be levied on all blocks, lots,

             59      parts of blocks, and lots, tracts, or parcels of property bounding, abutting upon, or adjacent to
             60      the improvements or affected or specially benefited by the improvements to the extent of the
             61      benefits to the property because of the improvements.
             62          (b) The benefits to the property may be indirect and need not actually increase the fair
             63      market value of the property.
             64          (3) A governing body may levy an assessment under this section to the full depth of the
             65      property or to the depth determined by the governing body.
             66          (4) Assessments under this section shall be equal and uniform according to the benefits
             67      received.
             68          (5) (a) Assessments may be according to area, frontage, assessed value, taxable value,
             69      lot, number of connections, or any combination of these methods, as the governing body
             70      considers fair and equitable.
             71          (b) Different improvements in an improvement district may be assessed according to
             72      different methods.
             73          (c) The governing body shall make an allowance for corner lots so that they are not
             74      assessed at full rate on both sides adjacent to the street.
             75          (6) The entire cost of the improvement may be assessed against the benefited property
             76      as [herein] provided in this section or, if money for paying part of such cost is available from
             77      any other source, the money so available may be so applied and the remaining cost so assessed
             78      against the benefited property.
             79          (7) The cost and expenses to be assessed as [herein] provided [for] in this section shall
             80      include the contract price of the improvement, engineering and clerical services, advertising,
             81      cost of inspection, cost of collecting assessments, and interest upon bonds if issued, and for
             82      legal services for preparing proceedings and advising in regard thereto.
             83          (8) Fee lands and property of public entities such as the federal government, the state
             84      [of Utah], or any county, city, or town [shall] may not be considered as lands or property
             85      benefited by any improvement district, and, unless such public entity within the boundaries of
             86      an improvement district consents in writing, filed before the governing body adopts the
             87      resolution provided for in Section 54-8-8 , the lands and property of such public entity shall not
             88      be subject to assessment for the payment of any of the cost or expense of such improvement.
             89          Section 2. Section 54-8-6 is amended to read:

             90           54-8-6. Creation of improvement district -- Petition by property owners --
             91      Resolution of governing body -- Utilities to submit reports.
             92          [Any] (1) (a) A governing body may [upon a petition signed by two-thirds of the
             93      owners of the real property and the owners of not less than two-thirds in value of the real
             94      property, as shown by the last assessment rolls, of any proposed district requesting the creation
             95      of an improvement district as provided for in this chapter,] pass a resolution at any regular or
             96      special meeting declaring that it finds that the improvement district proposed is in the public
             97      interest. [It must be determined]
             98          (b) In order to pass a resolution under Subsection (1)(a), the governing body shall
             99      determine that the formation of the local improvement district for the purposes set out in this
             100      chapter will promote the public convenience, necessity, and welfare. [The resolution must]
             101          (2) Each resolution adopted under Subsection (1) shall:
             102          (a) state that the costs and expenses will be levied and assessed upon the property
             103      benefited [and further];
             104          (b) request that each public utility corporation serving such area by overhead electric or
             105      communication facilities shall, within H. [ 120 ] 90 .H days after the receipt of the resolution,
             105a      make a study
             106      of the cost of conversion of its facilities in such area to underground service[. The report of
             107      said study shall be provided to the governing body and made available in its office to all
             108      owners of land within the proposed improvement district. The resolution of the governing body
             109      shall]; and
             110          (c) require that the public utilities be provided with the name and address of the owner
             111      of each parcel or lot within the proposed improvement district, if known, and, if not known, the
             112      description of the property and [such] other matters [as may be] required by the public utility
             113      corporations in order to perform the work involved in the cost study. [The resolution shall
             114      further state the size and square feet of each lot or parcel within the proposed conversion
             115      service area.]
             116          (3) Each public service corporation serving [such] the improvement district area by
             117      overhead electric or communication facilities shall[,]:
             118          (a) within [120] 90 days after receipt of the resolution, make a study of the costs of
             119      conversion of its facilities in [such] the district to underground service[,]; and [shall together]
             120          (b) provide the governing body and make available to its office a [joint] report,

             121      prepared jointly with each other public service corporation serving the improvement district
             122      area by overhead electric or communication facilities, as to the results of the study.
             123          (4) The governing body shall make each report under Subsection (3) available in its
             124      office to each owner of land within the improvement district.
             125          Section 3. Section 54-8-9 is amended to read:
             126           54-8-9. Public hearing -- Notice -- Contents.
             127          [Following] (1) After the passage of the resolution in Section 54-8-8 , the governing
             128      body shall cause notice of a public hearing on the proposed improvement to be given [in the
             129      manner] as provided in Section 54-8-10 . [Such]
             130          (2) The notice required under Subsection (1) shall:
             131          [(1)] (a) describe the boundaries or area of the district with sufficient particularity to
             132      permit each owner of real property [therein] in the proposed district to ascertain that [his] the
             133      owner's property lies in the district;
             134          [(2)] (b) describe in a general way the proposed improvement, specifying the streets or
             135      property along which it will be made and the nature of the benefits to the property within the
             136      district;
             137          [(3)] (c) state the estimated cost as determined from the costs and feasibility report and
             138      including the contract price of the improvement and the cost of engineering and clerical
             139      service, advertising, inspection, collection of assessments, interests upon bonds, if issued, and
             140      for legal services for preparing proceedings and advising in regard [thereto] to them;
             141          [(4)] (d) state that it is proposed to assess the real property in the district to pay all or a
             142      designated portion of the cost of the improvement according to the [square footage of and the
             143      benefits to be derived by each tract, block, lot and parcel of land within the district] method
             144      determined by the governing body under Section 54-8-5 ;
             145          [(5)] (e) state the date, time, and place [at which] that the governing body will conduct
             146      a public hearing upon the proposed improvement and on the question of benefits to be derived
             147      by the real property in the district;
             148          [(6)] (f) state that all interested persons will be heard and that any property owner will
             149      be heard on the question of whether his property will be benefited by the proposed
             150      improvement[.];
             151          (g) designate the time within which and the place where protests may be filed and the

             152      date, time, and place of a public hearing at which the governing body will consider protests;
             153      and
             154          (h) state the method for determining the necessary number of protests required to be
             155      filed under Section 54-8-11 .
             156          Section 4. Section 54-8-11 is amended to read:
             157           54-8-11. Protests -- Hearings -- Representatives of utilities to be present --
             158      Changes in proposal -- Adoption or abandonment of project.
             159          (1) As used in this section, "adequate protests" means protests filed as provided in this
             160      section representing:
             161          (a) if an assessment is proposed to be made according to frontage, H. [ 35% ] 50% .H of
             161a      the front
             162      footage of the property proposed to be assessed;
             163          (b) if an assessment is proposed to be made according to area, H. [ 35% ] 50% .H of the
             163a      area of the
             164      property proposed to be assessed;
             165          (c) if an assessment is proposed to be made according to assessed value, H. [ 35% ]
             165a      50% .H of the
             166      assessed value of the property proposed to be assessed;
             167          (d) if an assessment is proposed to be made according to taxable value, H. [ 35% ]
             167a      50% .H of the
             168      taxable value of the property proposed to be assessed;
             169          (e) if an assessment is proposed to be made according to lots, H. [ 35% ] 50% .H of the
             169a      lots proposed
             170      to be assessed; or
             171          (f) if an assessment is proposed to be made according to the number of connections,
             172      H. [ 35% ] 50% .H of the number of connections to property proposed to be assessed.
             173          (2) (a) On the date and at the time and place specified in the [aforesaid] notice under
             174      Section 54-8-9 , the governing body shall in open and public session hear all objections to the
             175      creation of the proposed district, the making of the proposed improvements, and the benefits
             176      accruing to any tract, block, lot, or parcel of land [therein] in the proposed district.
             177          (b) Representatives of the public utilities concerned shall be present at [all such
             178      hearings. Such hearings] each hearing under Subsection (2)(a).
             179          (c) A hearing under Subsection (2)(a) may be adjourned from time to time to a fixed
             180      future time and place.

             181          (d) If at any time during [the hearings] a hearing under Subsection (2)(a), it [shall
             182      appear] appears to the governing body that changes in the proposed improvements or the

             183      proposed district should be made, which, after consultation with the public utilities concerned,
             184      appear to affect either the cost or feasibility of the improvements, the hearing shall be
             185      adjourned to a fixed future time and place and a new costs and feasibility report prepared on
             186      the basis of the contemplated changes.
             187          (3) After the hearing has been concluded and after all persons desiring to be heard have
             188      been heard, the governing body:
             189          (a) shall consider the arguments put forth [and];
             190          (b) may make [such] changes in the area to be included in the district as it [may
             191      consider] considers desirable or necessary[. However, no such changes shall be made unless], if
             192      a costs and feasibility report has been prepared on the basis of [such] those changes[. After
             193      such consideration and determination, the board]; and
             194          (c) subject to Subsection (4), shall adopt a resolution either abandoning the district and
             195      project or determining to proceed with the district and project, either as described in the notice
             196      or with changes made as [above] authorized in this section.
             197          (4) (a) A governing body may not create an improvement district under this chapter if
             198      adequate protests are filed on or before the time specified in the notice under Subsection
             199      54-8-9 (2).
             200          (b) In determining whether adequate protests are filed, a governing body may not
             201      include a protest that:
             202          (i) relates to property or an improvement that has been deleted from the proposed
             203      district; or
             204          (ii) is withdrawn in writing before the conclusion of the public hearing under
             205      Subsection (2).
             206          (c) If adequate protests are not filed, the governing body may create the improvement
             207      district and begin making improvements.
             208          Section 5. Section 54-8-26 is amended to read:
             209           54-8-26. Notice that service from underground facilities is available --
             210      Consequences of failure to convert overhead facilities.
             211          [The public utility performing the conversion shall, at the expense of the owner, convert
             212      to underground all electric and communication service facilities located upon any lot or parcel
             213      of land within the improvement district and not within the easement for distribution. This shall

             214      include the digging and the back filling of a trench upon such lot or parcel unless the owner
             215      shall execute a written objection thereto and file the same with the clerk of the governing body
             216      not later than the date set for hearing objections to the improvement district as provided by law.
             217      Failure to file such written objection shall be taken]
             218          (1) (a) If service from the underground utility is available to all or part of an
             219      improvement district area, the governing body of the county or municipality that created the
             220      district shall mail a notice to each owner of real property served from existing overhead
             221      facilities stating that:
             222          (i) service from the underground facilities is available; and
             223          (ii) each owner shall perform the necessary construction to convert the owner's existing
             224      overhead electric and communications to underground from the utility-provided service point
             225      to the service point on the owner's property.
             226          (b) Each owner that converts overhead facilities to underground facilities shall comply
             227      with all applicable state and local laws, ordinances, rules, and regulations, and with all tariffs
             228      of the applicable utility.
             229          (2) Failure to convert the overhead facilities to underground facilities within 60 days
             230      after the date of mailing the notice shall be considered as a consent and grant of easement to
             231      the [utility] county or municipality and [shall be construed] as express authority to the [public
             232      utility corporations] county or municipality and [their respective] its officers, agents, and
             233      employees to enter upon [such] the lot or parcel for [such] the purpose[, and through failure to
             234      object, any right of protest or objection in respect of the doing of such work and the inclusion
             235      of the costs thereof in said assessment shall be waived. If an owner does file such written
             236      objection, he shall then be responsible for providing a trench which is in accordance with
             237      applicable rules, regulations or tariffs from the owner's service entrance to a point designated
             238      by the public utility and for back filling the trench following installation of the underground
             239      service by the public utility involved] of making the conversion.
             240          [The costs of any work done by the public utility corporation shall be included in the
             241      assessment to be levied upon such lot or parcel unless the owner shall file a written objection
             242      thereto with the clerk of the governing body not later than the date set for hearing objections to
             243      the improvement district as provided by law. Should such an objection be filed, the owner
             244      involved shall be billed by the public utility involved for such work as it accomplishes upon the

             245      owner's property.]
             246          (3) If the county or municipality converts the overhead facilities to underground
             247      facilities, all costs and expenses of the conversion, including the engineering, legal, advertising,
             248      and incidental expenses, shall be assessed against the property benefited and become a lien
             249      upon the property.
             250          (4) The owner shall, at [his] the owner's expense, make all necessary changes in the
             251      service entrance equipment to accept underground service.

Legislative Review Note
    as of 2-4-05 11:12 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel

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