First Substitute S.B. 106

This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Jan 31, 2005 at 11:50 AM by rday. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 1, 2005 at 11:27 AM by rday. --> This document includes House Committee Amendments incorporated into the bill on Fri, Feb 4, 2005 at 2:37 PM by chopkin. -->

Senator David L. Thomas proposes the following substitute bill:

1 UTAH RELIGIOUS LAND USE ACT
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David L. Thomas
5
6 LONG TITLE
7 General Description:
8 This bill restricts government entities from applying land use regulations that impose a
9 substantial burden on a person's free exercise of religion.
10 Highlighted Provisions:
11 This bill:
12 . restricts government entities from applying or enacting land use regulations that
13 impose a substantial burden on a person's free exercise of religion unless certain
14 exemptions apply;
15 . permits government to impose land use regulations that substantially burden a
16 person's free exercise of religion only where the government can show that the land
17 use regulation is in furtherance of a compelling governmental interest and is the
18 least restrictive means of furthering that interest;
19 . authorizes a person to seek injunctive or declaratory relief if government fails to
20 remedy a substantial burden imposed on religious expression by a land use
21 regulation;
22 . permits a person to use the defense that a governmental entity's action creates a
23 substantial burden on the free exercise of religion in judicial and administrative
24 hearings;
25 . requires persons claiming that a land use regulation substantially burdens their free

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exercise of religion to file a notice of claim with the governmental entity;
27 . provides government entities with the opportunity to remedy the substantial burden
28 before being subject to S. [damages or court orders] injunction or declaratory relief .S ; S. and .S
29 . waives governmental immunity for cases brought to enforce or obtain remedies for
30 violation of this chapter S. [ ; and
31 . permits a court to order the losing party to pay the prevailing party's reasonable
32 attorney's fees and costs ] .S .
33 Monies Appropriated in this Bill:
34 None
35 Other Special Clauses:
36 None
37 Utah Code Sections Affected:
38 AMENDS:
39 63-30d-301, as enacted by Chapter 267, Laws of Utah 2004
40 78-12-29, as last amended by Chapter 241, Laws of Utah 2001
41 ENACTS:
42 63-90b-101, Utah Code Annotated 1953
43 63-90b-102, Utah Code Annotated 1953
44 63-90b-201, Utah Code Annotated 1953
45 63-90b-301, Utah Code Annotated 1953
46 63-90b-302, Utah Code Annotated 1953
47 63-90b-401, Utah Code Annotated 1953
48 63-90b-402, Utah Code Annotated 1953
49 63-90b-403, Utah Code Annotated 1953
50 Uncodified Material Affected:
51 ENACTS UNCODIFIED MATERIAL
52
53 Be it enacted by the Legislature of the state of Utah:
54 Section 1. Section 63-30d-301 is amended to read:
55 63-30d-301. Waivers of immunity -- Exceptions.

56 (1) (a) Immunity from suit of each governmental entity is waived as to any contractual

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58 (b) Actions arising out of contractual rights or obligations are not subject to the
59 requirements of Sections 63-30d-401 , 63-30d-402 , 63-30d-403 , or 63-30d-601 .
60 (c) The Division of Water Resources is not liable for failure to deliver water from a
61 reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
62 Act, if the failure to deliver the contractual amount of water is due to drought, other natural
63 condition, or safety condition that causes a deficiency in the amount of available water.
64 (2) Immunity from suit of each governmental entity is waived:
65 (a) as to any action brought to recover, obtain possession of, or quiet title to real or
66 personal property;
67 (b) as to any action brought to foreclose mortgages or other liens on real or personal
68 property, to determine any adverse claim on real or personal property, or to obtain an
69 adjudication about any mortgage or other lien that the governmental entity may have or claim
70 on real or personal property;
71 (c) as to any action based on the negligent destruction, damage, or loss of goods,
72 merchandise, or other property while it is in the possession of any governmental entity or
73 employee, if the property was seized for the purpose of forfeiture under any provision of state
74 law;
75 (d) subject to Subsection 63-30d-302 (1), as to any action brought under the authority of
76 Article I, Section 22, of the Utah Constitution, for the recovery of compensation from the
77 governmental entity when the governmental entity has taken or damaged private property for
78 public uses without just compensation;
79 (e) subject to Subsection 63-30d-302 (2), as to any action brought to recover attorneys'
80 fees under Sections 63-2-405 and 63-2-802 ; [or]
81 (f) for actual damages under Title 67, Chapter 21, [Utah's] Utah Protection of Public
82 Employees Act[.]; or
83 (g) as to any action brought to obtain relief from a land use regulation that imposes a
84 substantial burden on the free exercise of religion under Title 63, Chapter 90b, Utah Religious
85 Land Use Act.
86 (3) (a) Except as provided in Subsection (3)(b), immunity from suit of each
87 governmental entity is waived as to any injury caused by:

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- 4 - 88 (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
89 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
90 (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
91 or other public improvement.
92 (b) Immunity is not waived if the injury arises out of, in connection with, or results
93 from:
94 (i) a latent dangerous or latent defective condition of any highway, road, street, alley,
95 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
96 (ii) a latent dangerous or latent defective condition of any public building, structure,
97 dam, reservoir, or other public improvement.
98 (4) Immunity from suit of each governmental entity is waived as to any injury
99 proximately caused by a negligent act or omission of an employee committed within the scope
100 of employment.
101 (5) Immunity is not waived under Subsections (3) and (4) if the injury arises out of, in
102 connection with, or results from:
103 (a) the exercise or performance, or the failure to exercise or perform, a discretionary
104 function, whether or not the discretion is abused;
105 (b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional
106 trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of
107 mental anguish, or violation of civil rights;
108 (c) the issuance, denial, suspension, or revocation of, or by the failure or refusal to
109 issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
110 authorization;
111 (d) a failure to make an inspection or by making an inadequate or negligent inspection;
112 (e) the institution or prosecution of any judicial or administrative proceeding, even if
113 malicious or without probable cause;
114 (f) a misrepresentation by an employee whether or not it is negligent or intentional;
115 (g) riots, unlawful assemblies, public demonstrations, mob violence, and civil
116 disturbances;
117 (h) the collection of and assessment of taxes;
118 (i) the activities of the Utah National Guard;

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- 5 - 119 (j) the incarceration of any person in any state prison, county or city jail, or other place
120 of legal confinement;
121 (k) any natural condition on publicly owned or controlled lands, any condition existing
122 in connection with an abandoned mine or mining operation, or any activity authorized by the
123 School and Institutional Trust Lands Administration or the Division of Forestry, Fire, and State
124 Lands;
125 (l) research or implementation of cloud management or seeding for the clearing of fog;
126 (m) the management of flood waters, earthquakes, or natural disasters;
127 (n) the construction, repair, or operation of flood or storm systems;
128 (o) the operation of an emergency vehicle, while being driven in accordance with the
129 requirements of Section 41-6-14 ;
130 (p) the activities of:
131 (i) providing emergency medical assistance;
132 (ii) fighting fire;
133 (iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
134 (iv) emergency evacuations;
135 (v) transporting or removing injured persons to a place where emergency medical
136 assistance can be rendered or where the person can be transported by a licensed ambulance
137 service; or
138 (vi) intervening during dam emergencies;
139 (q) the exercise or performance, or the failure to exercise or perform, any function
140 pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources; or
141 (r) unauthorized access to government records, data, or electronic information systems
142 by any person or entity.
143 Section 2. Section 63-90b-101 is enacted to read:
144 CHAPTER 90b. UTAH RELIGIOUS LAND USE ACT
145 Part 1. General Provisions
146 63-90b-101. Title.
147 This chapter is known as the "Utah Religious Land Use Act."
148 Section 3. Section 63-90b-102 is enacted to read:
149 63-90b-102. Definitions.

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As used in this chapter:
151 (1) "Free exercise of religion" means an act or refusal to act that is substantially
152 motivated by sincere religious belief, whether or not the act or refusal is compulsory or central
153 to a larger system of religious belief S. , and includes the use, building, or conversion of real
153a property for the purpose of religious exercise .S .
154 (2) "Government entity" means the state, a county, a municipality, a higher education
155 institution, a special district, any other political subdivision of the state, or any administrative
156 subunit of any of them.
157 (3) "Land use regulation" means any state or local law or ordinance, whether statutory
158 or otherwise, that limits or restricts a person's use or development of land or a structure affixed
159 to land.
160 (4) "Person" means any individual, partnership, corporation, or other legal entity that
161 owns an interest in real property.
162 Section 4. Section 63-90b-201 is enacted to read:
163 Part 2. Legal Standard
164 63-90b-201. Protection of land use as religious exercise.
165 (1) Except as provided in Subsection (2), a government entity may not impose or
166 implement a land use regulation in a manner that imposes a substantial burden on a person's
167 free exercise of religion.
168 (2) A government entity may impose or implement a land use regulation in a manner
169 that imposes a substantial burden on a person's free exercise of religion if the government can
170 establish that the imposition of the burden on that person:
171 (a) is in furtherance of a compelling governmental interest; and
172 (b) is the least restrictive means of furthering that compelling governmental interest.
173 (3) A government entity that meets the requirements of Subsection (2) need not
174 separately prove that the remedy and penalty provisions of the land use regulation are the least
175 restrictive means to ensure compliance or to punish the failure to comply.
176 (4) This act shall not impair the ability of local government to H. [ regulate ] impose
176a costs and fees reasonably necessary to mitigate .H the off-site
177 impacts of development.
178 Section 5. Section 63-90b-301 is enacted to read:
179 Part 3. Remedies and Procedures

180 63-90b-301. Remedies.

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- 7 - 181 (1) A person whose free exercise of religion has been substantially burdened by a
182 government entity in violation of Section 63-90b-201 may bring an action in the district court
183 of the county where the largest portion of the property subject to the land use regulation is
184 located.
185 (2) Any person who asserts a claim or defense against a government entity under this
186 chapter may request:
187 (a) declaratory relief;
188 (b) temporary or permanent injunctive relief to prevent the threatened or continued
189 violation; or
190 (c) a combination of declaratory and injunctive relief.
191 (3) A person may not bring an action under this chapter against an individual, other
192 than an action against an individual acting in the individual's official capacity as an officer of a
193 government entity.
194 Section 6. Section 63-90b-302 is enacted to read:
195 63-90b-302. Notice of claim -- Government's right to accommodate.
196 (1) A person may not bring an action under Section 63-90b-301 unless, 60 days before
197 bringing the action, the person sends written notice of the intent to bring an action.
198 (2) The notice shall be addressed to the government entity imposing the land use
199 regulation, and shall be prepared and delivered according to the requirements of Subsection
200 63-30d-401 (3).
201 (3) Mailing of the notice required by Subsection (1) tolls the limitation period for
202 bringing an action under this chapter for a period of 75 days, starting on the day the notice was
203 mailed.
204 (4) Notwithstanding Subsection (1), a person may bring an action under Section
205 63-90b-301 before the expiration of the 60-day notice period if:
206 (a) the imposition of a substantial burden the person's free exercise of religion by the
207 land use regulation is imminent; and
208 (b) the person was not informed of and did not otherwise have knowledge of the land
209 use regulation in time to reasonably provide 60 days notice.
210 (5) (a) A government entity provided with the notice required by Subsection (2) may
211 remedy the substantial burden on the person's free exercise of religion:

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(i) before the expiration of the 60-day notice period; or
213 (ii) in the case of an action properly brought according to Subsection (4), before the
214 adjudication of a court hearing on the action.
215 (b) Nothing in this section prevents a government entity from providing a remedy after
216 these time periods.
217 (6) The court may not award compensatory damages, attorney's fees, costs, or other
218 expenses to a person if the substantial burden has been cured by a remedy implemented by the
219 government entity according to Subsection (5)(a).
220 Section 7. Section 63-90b-401 is enacted to read:
221 Part 4. Application
222 63-90b-401. Burden on exercise of religion as defense.
223 A person whose free exercise of religion has been substantially burdened in violation of
224 this chapter may assert that violation as a defense in a judicial or administrative proceeding
225 without regard to whether the proceeding is brought in the name of the state or by any other
226 person.
227 Section 8. Section 63-90b-402 is enacted to read:
228 63-90b-402. Establishment clause unaffected.
229 (1) This chapter does not authorize government to burden a person's free exercise of
230 religion.
231 (2) The protection of religious freedom afforded by this chapter is in addition to the
232 protections provided under federal law and the constitutions of Utah and the United States.
233 (3) Nothing in this chapter may be construed to affect, interpret, or in any way address
234 that portion of the First Amendment to the United States Constitution prohibiting laws
235 respecting an establishment of religion.
236 Section 9. Section 63-90b-403 is enacted to read:
237 63-90b-403. Application to certain cases.
238 S. [ (1) This chapter does not restrict, and is not intended to restrict, a government entity's
239 authority to adopt or apply laws and regulations concerning zoning, land use planning, traffic
240 management, urban nuisance, historic preservation, or other land use regulations.
241 (2) ] .S This chapter does not affect and is not intended to affect the authority of
242 government entities to adopt or apply land use regulations that do not involve the free exercise

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244 Section 10. Section 78-12-29 is amended to read:
245 78-12-29. Within one year.
246 An action may be brought within one year:
247 (1) for liability created by the statutes of a foreign state;
248 (2) upon a statute for a penalty or forfeiture where the action is given to an individual,
249 or to an individual and the state, except when the statute imposing it prescribes a different
250 limitation;
251 (3) upon a statute, or upon an undertaking in a criminal action, for a forfeiture or
252 penalty to the state;
253 (4) for libel, slander, assault, battery, false imprisonment, or seduction;
254 (5) against a sheriff or other officer for the escape of a prisoner arrested or imprisoned
255 upon either civil or criminal process;
256 (6) against a municipal corporation for damages or injuries to property caused by a
257 mob or riot;
258 (7) on a claim for relief or a cause of action under the following sections of Title 25,
259 Chapter 6, Uniform Fraudulent Transfer Act:
260 (a) Subsection 25-6-5 (1)(a), which in specific situations limits the time for action to
261 four years, under Section 25-6-10 ; or
262 (b) Subsection 25-6-6 (2); [or]
263 (8) except as otherwise expressly provided by statute, against a county legislative body
264 or a county executive to challenge a decision of the county legislative body or county
265 executive, respectively[.]; or
266 (9) on a claim for relief or a cause of action under Title 63, Chapter 90b, Utah
267 Religious Land Use Act.
268 Section 11. Application of act.
269 This chapter shall apply to all causes of action filed after the effective date of this bill
270 and to all land use regulations enacted after the effective date of this bill.