Third Substitute H.B. 164

Senator Margaret Dayton proposes the following substitute bill:

1 MIGRATORY BIRD PRODUCTION AREAS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Curtis Oda
5 Senate Sponsor: Margaret Dayton
6 Cosponsors:
7 Roger E. Barrus
8 Stephen D. ClarkJulie Fisher
Kevin S. GarnChristopher N. Herrod
Stephen E. Sandstrom 9
10 LONG TITLE
11 General Description:
12 This bill enacts provisions relating to a migratory bird production area.
13 Highlighted Provisions:
14 This bill:
15 . defines terms;
16 . authorizes the creation of a migratory bird production area;
17 . authorizes a landowner to remove land from a migratory bird production area;
18 . requires a municipality to have the written permission of all landowners within a
19 migratory bird production area to annex land within the production area;
20 . clarifies the effect the creation of a migratory bird production area would have on
21 receiving the benefits of the Farmland Assessment Act;
22 . prohibits a county from enacting certain ordinances regarding a migratory bird
23 production area;
24 . requires a county to exclude activities associated with a migratory bird production
25 area from being a public nuisance; and

26 . establishes a defense for a migratory bird production area in civil or criminal
27 nuisance actions.
28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 10-2-403, as last amended by Laws of Utah 2007, Chapter 329
35 ENACTS:
36 23-28-101, Utah Code Annotated 1953
37 23-28-102, Utah Code Annotated 1953
38 23-28-201, Utah Code Annotated 1953
39 23-28-202, Utah Code Annotated 1953
40 23-28-301, Utah Code Annotated 1953
41 23-28-302, Utah Code Annotated 1953
42 23-28-303, Utah Code Annotated 1953
43 23-28-304, Utah Code Annotated 1953
44 23-28-305, Utah Code Annotated 1953
45
46 Be it enacted by the Legislature of the state of Utah:
47 Section 1. Section 10-2-403 is amended to read:
48 10-2-403. Annexation petition -- Requirements -- Notice required before filing.
49 (1) Except as provided in Section 10-2-418 , the process to annex an unincorporated
50 area to a municipality is initiated by a petition as provided in this section.
51 (2) (a) (i) Before filing a petition under Subsection (1) with respect to the proposed
52 annexation of an area located in a county of the first class, the person or persons intending to
53 file a petition shall:
54 (A) file with the city recorder or town clerk of the proposed annexing municipality a
55 notice of intent to file a petition; and
56 (B) send a copy of the notice of intent to each affected entity.

57 (ii) Each notice of intent under Subsection (2)(a)(i) shall include an accurate map of the
58 area that is proposed to be annexed.
59 (b) (i) Subject to Subsection (2)(b)(ii), the county in which the area proposed to be
60 annexed is located shall:
61 (A) mail the notice described in Subsection (2)(b)(iii) to:
62 (I) each owner of real property located within the area proposed to be annexed; and
63 (II) each owner of real property located within 300 feet of the area proposed to be
64 annexed; and
65 (B) send to the proposed annexing municipality a copy of the notice and a certificate
66 indicating that the notice has been mailed as required under Subsection (2)(b)(i)(A).
67 (ii) The county shall mail the notice required under Subsection (2)(b)(i)(A) within 20
68 days after receiving from the person or persons who filed the notice of intent:
69 (A) a written request to mail the required notice; and
70 (B) payment of an amount equal to the county's expected actual cost of mailing the
71 notice.
72 (iii) Each notice required under Subsection (2)(b)(i)(A) shall:
73 (A) be in writing;
74 (B) state, in bold and conspicuous terms, substantially the following:
75 "Attention: Your property may be affected by a proposed annexation.
76 Records show that you own property within an area that is intended to be included in a
77 proposed annexation to (state the name of the proposed annexing municipality) or that is within
78 300 feet of that area. If your property is within the area proposed for annexation, you may be
79 asked to sign a petition supporting the annexation. You may choose whether or not to sign the
80 petition. By signing the petition, you indicate your support of the proposed annexation. If you
81 sign the petition but later change your mind about supporting the annexation, you may
82 withdraw your signature by submitting a signed, written withdrawal with the recorder or clerk
83 of (state the name of the proposed annexing municipality) within 30 days after (state the name
84 of the proposed annexing municipality) receives notice that the petition has been certified.
85 There will be no public election on the proposed annexation because Utah law does not
86 provide for an annexation to be approved by voters at a public election. Signing or not signing
87 the annexation petition is the method under Utah law for the owners of property within the area

88 proposed for annexation to demonstrate their support of or opposition to the proposed
89 annexation.
90 Under Utah law, the elected officials of (state the name of the proposed annexing
91 municipality) may have no choice but to grant the annexation petition if the county's property
92 tax rate for municipal services in the area proposed to be annexed is higher than the property
93 tax rate of (state the name of the proposed annexing municipality) and if other statutory
94 conditions are met.
95 You may obtain more information on the proposed annexation by contacting (state the
96 name, mailing address, telephone number, and email address of the official or employee of the
97 proposed annexing municipality designated to respond to questions about the proposed
98 annexation), (state the name, mailing address, telephone number, and email address of the
99 county official or employee designated to respond to questions about the proposed annexation),
100 or (state the name, mailing address, telephone number, and email address of the person who
101 filed the notice of intent under Subsection (2)(a)(i)(A), or, if more than one person filed the
102 notice of intent, one of those persons). Once filed, the annexation petition will be available for
103 inspection and copying at the office of (state the name of the proposed annexing municipality)
104 located at (state the address of the municipal offices of the proposed annexing municipality).";
105 and
106 (C) be accompanied by an accurate map identifying the area proposed for annexation.
107 (iv) A county may not mail with the notice required under Subsection (2)(b)(i)(A) any
108 other information or materials related or unrelated to the proposed annexation.
109 (c) (i) After receiving the certificate from the county as provided in Subsection
110 (2)(b)(i)(B), the proposed annexing municipality shall, upon request from the person or persons
111 who filed the notice of intent under Subsection (2)(a)(i)(A), provide an annexation petition for
112 the annexation proposed in the notice of intent.
113 (ii) An annexation petition provided by the proposed annexing municipality may be
114 duplicated for circulation for signatures.
115 (3) Each petition under Subsection (1) shall:
116 (a) (i) be filed with the city recorder or town clerk, as the case may be, of the proposed
117 annexing municipality; and
118 (ii) when filed and if applicable, be accompanied by a written statement, signed by the

119 petition sponsors, certifying that signatures on a petition that does not comply with the
120 requirements of Subsection (3)(d) were gathered before the effective date of that Subsection;
121 (b) contain the signatures of:
122 (i) the owners of private real property that:
123 (A) is located within the area proposed for annexation;
124 (B) (I) subject to Subsection (3)(b)(i)(B)(II), covers a majority of the private land area
125 within the area proposed for annexation; and
126 (II) covers 100% of the private land area within the area proposed for annexation, if the
127 area is within:
128 (Aa) an agriculture protection area created under Title 17, Chapter 41, Agriculture and
129 Industrial Protection [Area; and] Areas; or
130 (Bb) a migratory bird production area created under Title 23, Chapter 28, Migratory
131 Bird Production Area; and
132 (C) is equal in value to at least 1/3 of the value of all private real property within the
133 area proposed for annexation; or
134 (ii) if all the real property within the area proposed for annexation is owned by a public
135 entity other than the federal government, the owner of all the publicly owned real property;
136 (c) be accompanied by:
137 (i) an accurate and recordable map, prepared by a licensed surveyor, of the area
138 proposed for annexation; and
139 (ii) a copy of the notice sent to affected entities as required under Subsection
140 (2)(a)(i)(B) and a list of the affected entities to which notice was sent;
141 (d) if the area proposed to be annexed is located in a county of the first class, contain
142 on each signature page a notice in bold and conspicuous terms that states substantially the
143 following:
144 "Notice:
145 * Under Utah law, the elected officials of (state the name of the proposed annexing
146 municipality) may have no choice but to grant this annexation petition if the county's property
147 tax rate for municipal services in the area proposed to be annexed is higher than the property
148 tax rate of (state the name of the proposed annexing municipality) and if other statutory
149 conditions are met.

150 * There will be no public election on the annexation proposed by this petition because
151 Utah law does not provide for an annexation to be approved by voters at a public election.
152 * If you sign this petition and later decide that you do not support the petition, you may
153 withdraw your signature by submitting a signed, written withdrawal with the recorder or clerk
154 of (state the name of the proposed annexing municipality). If you choose to withdraw your
155 signature, you must do so no later than 30 days after (state the name of the proposed annexing
156 municipality) receives notice that the petition has been certified.";
157 (e) if the petition proposes the annexation of an area located in a county that is not the
158 county in which the proposed annexing municipality is located, be accompanied by a copy of
159 the resolution, required under Subsection 10-2-402 (6), of the legislative body of the county in
160 which the area is located; and
161 (f) designate up to five of the signers of the petition as sponsors, one of whom shall be
162 designated as the contact sponsor, and indicate the mailing address of each sponsor.
163 (4) A petition under Subsection (1) may not propose the annexation of all or part of an
164 area proposed for annexation to a municipality in a previously filed petition that has not been
165 denied, rejected, or granted.
166 (5) A petition under Subsection (1) proposing the annexation of an area located in a
167 county of the first class may not propose the annexation of an area that includes some or all of
168 an area proposed to be incorporated in a request for a feasibility study under Section 10-2-103
169 or a petition under Section 10-2-125 if:
170 (a) the request or petition was filed before the filing of the annexation petition; and
171 (b) the request, a petition under Section 10-2-109 based on that request, or a petition
172 under Section 10-2-125 is still pending on the date the annexation petition is filed.
173 (6) If practicable and feasible, the boundaries of an area proposed for annexation shall
174 be drawn:
175 (a) along the boundaries of existing local districts and special service districts for
176 sewer, water, and other services, along the boundaries of school districts whose boundaries
177 follow city boundaries or school districts adjacent to school districts whose boundaries follow
178 city boundaries, and along the boundaries of other taxing entities;
179 (b) to eliminate islands and peninsulas of territory that is not receiving municipal-type
180 services;

181 (c) to facilitate the consolidation of overlapping functions of local government;
182 (d) to promote the efficient delivery of services; and
183 (e) to encourage the equitable distribution of community resources and obligations.
184 (7) On the date of filing, the petition sponsors shall deliver or mail a copy of the
185 petition to:
186 (a) the clerk of the county in which the area proposed for annexation is located; and
187 (b) the chair of the planning commission of each township in which any part of the area
188 proposed for annexation is located.
189 (8) A property owner who signs an annexation petition proposing to annex an area
190 located in a county of the first class may withdraw the owner's signature by filing a written
191 withdrawal, signed by the property owner, with the city recorder or town clerk no later than 30
192 days after the municipal legislative body's receipt of the notice of certification under
193 Subsection 10-2-405 (2)(c)(i).
194 Section 2. Section 23-28-101 is enacted to read:
195 CHAPTER 28. MIGRATORY BIRD PRODUCTION AREA
196 Part 1. General Provisions
197 23-28-101. Title.
198 This chapter is known as the "Migratory Bird Production Area."
199 Section 3. Section 23-28-102 is enacted to read:
200 23-28-102. Definitions.
201 As used in this chapter:
202 (1) "Migratory bird" is as defined in 16 U.S.C. Sec. 715j.
203 (2) "Migratory bird production area" means an area of land that is:
204 (a) created under this chapter; and
205 (b) used according to the description in Subsections 23-28-201 (1)(b)(iii)(A) through
206 (C).
207 Section 4. Section 23-28-201 is enacted to read:
208 Part 2. Migratory Bird Production Area
209 23-28-201. Creation of a migratory bird production area.
210 (1) (a) On or before July 1, 2010, an owner or owners of at least 500 contiguous acres
211 of land in an unincorporated area may dedicate the land as a migratory bird production area by

212 filing a notice of dedication with the county recorder of the county in which the land is located.
213 (b) The notice of dedication shall contain:
214 (i) the legal description of the land included within the migratory bird production area;
215 (ii) the name of the owner or owners of the land included within the migratory bird
216 production area; and
217 (iii) an affidavit signed by each landowner that all of the land, except as provided by
218 Subsection (2), within the migratory bird production area is:
219 (A) actively managed for migratory bird:
220 (I) production;
221 (II) habitat; or
222 (III) hunting; and
223 (B) used for a purpose compatible with the purposes described in Subsection
224 (1)(b)(iii)(A).
225 (c) A person who files a notice of dedication under this section shall give a copy of the
226 notice of dedication within ten days of its filing to the legislative body of the county in which
227 the migratory bird production area is located.
228 (2) (a) The notice of dedication may designate land, the amount of which is less than
229 1% of the total acreage within a migratory bird production area, upon which the landowner
230 may build a structure described in Subsection 23-28-302 (1)(b).
231 (b) (i) An owner may build or maintain a road, dike, or water control structure within
232 the migratory bird production area.
233 (ii) A road, dike, or water control structure is not considered a structure for purposes of
234 Subsection (2)(a).
235 (3) (a) Within 30 days of the day on which the county legislative body receives a copy
236 of the notice of dedication under Subsection (1)(c), the county legislative body may bring an
237 action in district court to cancel or revise a migratory bird production area on the basis that an
238 affidavit filed as part of the notice of dedication under Subsection (1)(a)(iii) is inaccurate.
239 (b) In brining the action, the county legislative body shall specify the portion of the
240 migratory bird production area and the affidavit subject to the action.
241 (c) In an action brought under this Subsection (3), the person who files an affidavit
242 described in Subsection (3)(a) has the burden to prove by a preponderance of the evidence that

243 the affidavit is accurate.
244 (d) If the court cancels or revises a migratory bird production area, the person who filed
245 the original notice of dedication shall file a revision notice with the county recorder reflecting
246 the court's order.
247 Section 5. Section 23-28-202 is enacted to read:
248 23-28-202. Removing property from a migratory bird production area.
249 (1) A landowner may file a revision notice with the county recorder of the county in
250 which the migratory bird production area is located to remove land from a migratory bird
251 production area.
252 (2) The revision notice shall contain:
253 (a) a legal description of the land removed from the migratory bird production area;
254 (b) the name of the owner or owners of the land removed from the migratory bird
255 production area.
256 (3) A person who files a revision notice under this section shall give a copy of the
257 revision notice within ten days of its filing to the legislative body of the county in which the
258 migratory bird production area is located.
259 (4) If removing land from a migratory bird production area results in a migratory bird
260 production area of less than 300 contiguous acres:
261 (a) the migratory bird production area ceases to exist; and
262 (b) the landowner shall:
263 (i) notify each landowner within the former migratory bird production area; and
264 (ii) file the revision notice required by this section for the entire migratory bird
265 production area.
266 Section 6. Section 23-28-301 is enacted to read:
267 Part 3. Protections
268 23-28-301. Farmland Assessment Act.
269 (1) Creation of a migratory bird production area does not impair the ability of land
270 within the migratory bird production area to qualify for the benefits of Title 59, Chapter 2, Part
271 5, Farmland Assessment Act.
272 (2) The eligibility of land for the benefits of Title 59, Chapter 2, Part 5, Farmland
273 Assessment Act, is determined exclusively by the provisions of that act, notwithstanding the

274 land's location within a migratory bird production area.
275 Section 7. Section 23-28-302 is enacted to read:
276 23-28-302. Limitations on local regulations.
277 (1) (a) A county within which a migratory bird production area is located shall
278 encourage the continuity, development, and viability of the migratory bird production area.
279 (b) A structure or improvement historically or customarily used in conjunction with a
280 migratory bird production area is considered a permitted use under the county's zoning law,
281 ordinance, or regulation.
282 (2) A county within which a migratory bird production area is located may not:
283 (a) enact a law, ordinance, or regulation that unreasonably restricts an activity normally
284 associated with the migratory bird production area;
285 (b) change the zoning designation of or a zoning regulation applying to land within a
286 migratory bird production area unless the county receives written approval for the change from
287 all the landowners within the migratory bird production area; or
288 (c) enact a law, ordinance, or regulation concerning the use, operation, or discharge of
289 a firearm that is more restrictive than state law, except as provided by Subsection
290 23-14-1 (3)(b).
291 Section 8. Section 23-28-303 is enacted to read:
292 23-28-303. Nuisances.
293 (1) (a) A county shall exclude the activities described in Subsection (1)(b) from the
294 definition of public nuisance in a county law or ordinance regulating a public nuisance.
295 (b) An activity or occurrence normally associated with a migratory bird production area
296 is not a nuisance, including:
297 (i) hunting;
298 (ii) discharging a firearm;
299 (iii) improving habitat;
300 (iv) trapping;
301 (v) eradicating weeds;
302 (vi) discing;
303 (vii) planting;
304 (viii) impounding water;

305 (ix) raising a bird or other domestic animal;
306 (x) grazing;
307 (xi) an activity conducted in the normal course of an agricultural operation as defined
308 in Section 78B-6-1101 ; and
309 (xii) an odor.
310 (2) In a civil action for nuisance or a criminal action for public nuisance under Section
311 76-10-803 , it is a complete defense if the action is:
312 (a) normally associated with a migratory bird production area;
313 (b) conducted within a migratory bird production area; and
314 (c) not in violation of any federal or state law.
315 (3) An owner of a new development located in whole or in part within 1,000 feet of a
316 migratory bird production area shall provide the following notice on any plat filed with the
317 county recorder:
318 "Migratory Bird Production Area
319 This property is located in the vicinity of an established migratory bird production area
320 in which hunting and activities related to the management and operation of land for the benefit
321 of migratory birds have been afforded the highest priority use status. It can be anticipated that
322 these uses and activities may now or in the future be conducted on land within the migratory
323 bird production area. The use and enjoyment of this property is expressly conditioned on
324 acceptance of any annoyance or inconvenience that may result from activities normally
325 associated with a migratory bird production area."
326 Section 9. Section 23-28-304 is enacted to read:
327 23-28-304. Annexation restrictions.
328 A municipality may annex real property within a migratory bird production area as
329 provided by Title 10, Chapter 2, Part 4, Annexation.
330 Section 10. Section 23-28-305 is enacted to read:
331 23-28-305. Application of Water Quality Act.
332 A migratory bird production area is subject to Title 19, Chapter 5, Water Quality Act.