H.B. 118

1

REVISE UTILITY IMPROVEMENT
2 DISTRICTS
3 2005 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: David Ure
6
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
41
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 120 days after the receipt of the resolution, 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, 35% of the front
162 footage of the property proposed to be assessed;
163 (b) if an assessment is proposed to be made according to area, 35% of the area of the
164 property proposed to be assessed;
165 (c) if an assessment is proposed to be made according to assessed value, 35% 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, 35% 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, 35% of the lots proposed
170 to be assessed; or
171 (f) if an assessment is proposed to be made according to the number of connections,
172 35% 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