H.B. 409

1

EDUCATION BUILDING PROJECTS ZONING
2 EXEMPTION AMENDMENTS
3 2009 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Carl Wimmer
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill modifies county and municipal land use provisions relating to school
11 buildings.
12 Highlighted Provisions:
13 This bill:
14 . narrows the scope of a prohibition against county and municipal land use
15 requirements so that it applies only to structures used in the process of providing
16 instruction to pupils.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 10-9a-103, as last amended by Laws of Utah 2008, Chapters 19, 112, 326, and 360
24 10-9a-305, as last amended by Laws of Utah 2008, Chapter 290
25 17-27a-103, as last amended by Laws of Utah 2008, Chapters 112, 250, 326, and 360
26 17-27a-305, as last amended by Laws of Utah 2008, Chapter 290
27

28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 10-9a-103 is amended to read:
30 10-9a-103. Definitions.
31 As used in this chapter:
32 (1) "Affected entity" means a county, municipality, local district, special service
33 district under Title 17D, Chapter 1, Special Service District Act, school district, interlocal
34 cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, specified
35 public utility, a property owner, a property owners association, or the Utah Department of
36 Transportation, if:
37 (a) the entity's services or facilities are likely to require expansion or significant
38 modification because of an intended use of land;
39 (b) the entity has filed with the municipality a copy of the entity's general or long-range
40 plan; or
41 (c) the entity has filed with the municipality a request for notice during the same
42 calendar year and before the municipality provides notice to an affected entity in compliance
43 with a requirement imposed under this chapter.
44 (2) "Appeal authority" means the person, board, commission, agency, or other body
45 designated by ordinance to decide an appeal of a decision of a land use application or a
46 variance.
47 (3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
48 residential property if the sign is designed or intended to direct attention to a business, product,
49 or service that is not sold, offered, or existing on the property where the sign is located.
50 (4) "Charter school" includes:
51 (a) an operating charter school;
52 (b) a charter school applicant that has its application approved by a chartering entity in
53 accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; and
54 (c) an entity who is working on behalf of a charter school or approved charter applicant
55 to develop or construct a charter school building.
56 (5) "Conditional use" means a land use that, because of its unique characteristics or
57 potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be
58 compatible in some areas or may be compatible only if certain conditions are required that

59 mitigate or eliminate the detrimental impacts.
60 (6) "Constitutional taking" means a governmental action that results in a taking of
61 private property so that compensation to the owner of the property is required by the:
62 (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
63 (b) Utah Constitution Article I, Section 22.
64 (7) "Culinary water authority" means the department, agency, or public entity with
65 responsibility to review and approve the feasibility of the culinary water system and sources for
66 the subject property.
67 (8) "Development activity" means:
68 (a) any construction or expansion of a building, structure, or use that creates additional
69 demand and need for public facilities;
70 (b) any change in use of a building or structure that creates additional demand and need
71 for public facilities; or
72 (c) any change in the use of land that creates additional demand and need for public
73 facilities.
74 (9) (a) "Disability" means a physical or mental impairment that substantially limits one
75 or more of a person's major life activities, including a person having a record of such an
76 impairment or being regarded as having such an impairment.
77 (b) "Disability" does not include current illegal use of, or addiction to, any federally
78 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
79 802.
80 (10) "Educational facility":
81 (a) means a structure that houses an accredited public institution established for the
82 purpose of offering instruction to pupils assembled at the structure, through a program for any
83 combination of grades from preschool through grade 12, including kindergarten and a program
84 for children with disabilities; and
85 (b) does not include the use of land or a structure for a service in support of a structure
86 described in Subsection (10)(a), including inventory storage, equipment storage, food
87 processing or preparing, vehicle storage or maintenance, or other use that supports the purpose
88 of providing instruction to pupils.
89 [(10)] (11) "Elderly person" means a person who is 60 years old or older, who desires

90 or needs to live with other elderly persons in a group setting, but who is capable of living
91 independently.
92 [(11)] (12) "Fire authority" means the department, agency, or public entity with
93 responsibility to review and approve the feasibility of fire protection and suppression services
94 for the subject property.
95 [(12)] (13) "Flood plain" means land that:
96 (a) is within the 100-year flood plain designated by the Federal Emergency
97 Management Agency; or
98 (b) has not been studied or designated by the Federal Emergency Management Agency
99 but presents a likelihood of experiencing chronic flooding or a catastrophic flood event because
100 the land has characteristics that are similar to those of a 100-year flood plain designated by the
101 Federal Emergency Management Agency.
102 [(13)] (14) "General plan" means a document that a municipality adopts that sets forth
103 general guidelines for proposed future development of the land within the municipality.
104 [(14)] (15) "Geologic hazard" means:
105 (a) a surface fault rupture;
106 (b) shallow groundwater;
107 (c) liquefaction;
108 (d) a landslide;
109 (e) a debris flow;
110 (f) unstable soil;
111 (g) a rock fall; or
112 (h) any other geologic condition that presents a risk:
113 (i) to life;
114 (ii) of substantial loss of real property; or
115 (iii) of substantial damage to real property.
116 [(15)] (16) "Identical plans" means building plans submitted to a municipality that are
117 substantially identical to building plans that were previously submitted to and reviewed and
118 approved by the municipality and describe a building that is:
119 (a) located on land zoned the same as the land on which the building described in the
120 previously approved plans is located; and

121 (b) subject to the same geological and meteorological conditions and the same law as
122 the building described in the previously approved plans.
123 [(16)] (17) "Improvement assurance" means a surety bond, letter of credit, cash, or
124 other security:
125 (a) to guaranty the proper completion of an improvement;
126 (b) that is required as a condition precedent to:
127 (i) recording a subdivision plat; or
128 (ii) beginning development activity; and
129 (c) that is offered to a land use authority to induce the land use authority, before actual
130 construction of required improvements, to:
131 (i) consent to the recording of a subdivision plat; or
132 (ii) issue a permit for development activity.
133 [(17)] (18) "Improvement assurance warranty" means a promise that the materials and
134 workmanship of improvements:
135 (a) comport with standards that the municipality has officially adopted; and
136 (b) will not fail in any material respect within a warranty period.
137 [(18)] (19) "Land use application" means an application required by a municipality's
138 land use ordinance.
139 [(19)] (20) "Land use authority" means a person, board, commission, agency, or other
140 body designated by the local legislative body to act upon a land use application.
141 [(20)] (21) "Land use ordinance" means a planning, zoning, development, or
142 subdivision ordinance of the municipality, but does not include the general plan.
143 [(21)] (22) "Land use permit" means a permit issued by a land use authority.
144 [(22)] (23) "Legislative body" means the municipal council.
145 [(23)] (24) "Local district" means an entity under Title 17B, Limited Purpose Local
146 Government Entities - Local Districts, and any other governmental or quasi-governmental
147 entity that is not a county, municipality, school district, or unit of the state.
148 [(24)] (25) "Lot line adjustment" means the relocation of the property boundary line in
149 a subdivision between two adjoining lots with the consent of the owners of record.
150 [(25)] (26) "Moderate income housing" means housing occupied or reserved for
151 occupancy by households with a gross household income equal to or less than 80% of the

152 median gross income for households of the same size in the county in which the city is located.
153 [(26)] (27) "Nominal fee" means a fee that reasonably reimburses a municipality only
154 for time spent and expenses incurred in:
155 (a) verifying that building plans are identical plans; and
156 (b) reviewing and approving those minor aspects of identical plans that differ from the
157 previously reviewed and approved building plans.
158 [(27)] (28) "Noncomplying structure" means a structure that:
159 (a) legally existed before its current land use designation; and
160 (b) because of one or more subsequent land use ordinance changes, does not conform
161 to the setback, height restrictions, or other regulations, excluding those regulations, which
162 govern the use of land.
163 [(28)] (29) "Nonconforming use" means a use of land that:
164 (a) legally existed before its current land use designation;
165 (b) has been maintained continuously since the time the land use ordinance governing
166 the land changed; and
167 (c) because of one or more subsequent land use ordinance changes, does not conform
168 to the regulations that now govern the use of the land.
169 [(29)] (30) "Official map" means a map drawn by municipal authorities and recorded in
170 a county recorder's office that:
171 (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
172 highways and other transportation facilities;
173 (b) provides a basis for restricting development in designated rights-of-way or between
174 designated setbacks to allow the government authorities time to purchase or otherwise reserve
175 the land; and
176 (c) has been adopted as an element of the municipality's general plan.
177 [(30)] (31) "Person" means an individual, corporation, partnership, organization,
178 association, trust, governmental agency, or any other legal entity.
179 [(31)] (32) "Plan for moderate income housing" means a written document adopted by
180 a city legislative body that includes:
181 (a) an estimate of the existing supply of moderate income housing located within the
182 city;

183 (b) an estimate of the need for moderate income housing in the city for the next five
184 years as revised biennially;
185 (c) a survey of total residential land use;
186 (d) an evaluation of how existing land uses and zones affect opportunities for moderate
187 income housing; and
188 (e) a description of the city's program to encourage an adequate supply of moderate
189 income housing.
190 [(32)] (33) "Plat" means a map or other graphical representation of lands being laid out
191 and prepared in accordance with Section 10-9a-603 , 17-23-17 , or 57-8-13 .
192 [(33)] (34) "Potential geologic hazard area" means an area that:
193 (a) is designated by a Utah Geological Survey map, county geologist map, or other
194 relevant map or report as needing further study to determine the area's potential for geologic
195 hazard; or
196 (b) has not been studied by the Utah Geological Survey or a county geologist but
197 presents the potential of geologic hazard because the area has characteristics similar to those of
198 a designated geologic hazard area.
199 [(34)] (35) "Public hearing" means a hearing at which members of the public are
200 provided a reasonable opportunity to comment on the subject of the hearing.
201 [(35)] (36) "Public meeting" means a meeting that is required to be open to the public
202 under Title 52, Chapter 4, Open and Public Meetings Act.
203 [(36)] (37) "Record of survey map" means a map of a survey of land prepared in
204 accordance with Section 17-23-17 .
205 [(37)] (38) "Receiving zone" means an area of a municipality that the municipality's
206 land use authority designates as an area in which an owner of land may receive transferrable
207 development rights.
208 [(38)] (39) "Residential facility for elderly persons" means a single-family or
209 multiple-family dwelling unit that meets the requirements of Section 10-9a-516 , but does not
210 include a health care facility as defined by Section 26-21-2 .
211 [(39)] (40) "Residential facility for persons with a disability" means a residence:
212 (a) in which more than one person with a disability resides; and
213 (b) (i) is licensed or certified by the Department of Human Services under Title 62A,

214 Chapter 2, Licensure of Programs and Facilities; or
215 (ii) is licensed or certified by the Department of Health under Title 26, Chapter 21,
216 Health Care Facility Licensing and Inspection Act.
217 [(40)] (41) "Sanitary sewer authority" means the department, agency, or public entity
218 with responsibility to review and approve the feasibility of sanitary sewer services or onsite
219 wastewater systems.
220 [(41)] (42) "Sending zone" means an area of a municipality that the municipality's land
221 use authority designates as an area from which an owner of land may transfer transferrable
222 development rights to an owner of land in a receiving zone.
223 [(42)] (43) "Specified public utility" means an electrical corporation, gas corporation,
224 or telephone corporation, as those terms are defined in Section 54-2-1 .
225 [(43)] (44) "Street" means a public right-of-way, including a highway, avenue,
226 boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement,
227 or other way.
228 [(44)] (45) (a) "Subdivision" means any land that is divided, resubdivided or proposed
229 to be divided into two or more lots, parcels, sites, units, plots, or other division of land for the
230 purpose, whether immediate or future, for offer, sale, lease, or development either on the
231 installment plan or upon any and all other plans, terms, and conditions.
232 (b) "Subdivision" includes:
233 (i) the division or development of land whether by deed, metes and bounds description,
234 devise and testacy, map, plat, or other recorded instrument; and
235 (ii) except as provided in Subsection [(44)] (45)(c), divisions of land for residential and
236 nonresidential uses, including land used or to be used for commercial, agricultural, and
237 industrial purposes.
238 (c) "Subdivision" does not include:
239 (i) a bona fide division or partition of agricultural land for the purpose of joining one of
240 the resulting separate parcels to a contiguous parcel of unsubdivided agricultural land, if
241 neither the resulting combined parcel nor the parcel remaining from the division or partition
242 violates an applicable land use ordinance;
243 (ii) a recorded agreement between owners of adjoining unsubdivided properties
244 adjusting their mutual boundary if:

245 (A) no new lot is created; and
246 (B) the adjustment does not violate applicable land use ordinances;
247 (iii) a recorded document, executed by the owner of record:
248 (A) revising the legal description of more than one contiguous unsubdivided parcel of
249 property into one legal description encompassing all such parcels of property; or
250 (B) joining a subdivided parcel of property to another parcel of property that has not
251 been subdivided, if the joinder does not violate applicable land use ordinances; or
252 (iv) a recorded agreement between owners of adjoining subdivided properties adjusting
253 their mutual boundary if:
254 (A) no new dwelling lot or housing unit will result from the adjustment; and
255 (B) the adjustment will not violate any applicable land use ordinance.
256 (d) The joining of a subdivided parcel of property to another parcel of property that has
257 not been subdivided does not constitute a subdivision under this Subsection [(44)] (45) as to
258 the unsubdivided parcel of property or subject the unsubdivided parcel to the municipality's
259 subdivision ordinance.
260 [(45)] (46) "Transferrable development right" means the entitlement to develop land
261 within a sending zone that would vest according to the municipality's existing land use
262 ordinances on the date that a completed land use application is filed seeking the approval of
263 development activity on the land.
264 [(46)] (47) "Unincorporated" means the area outside of the incorporated area of a city
265 or town.
266 [(47)] (48) "Zoning map" means a map, adopted as part of a land use ordinance, that
267 depicts land use zones, overlays, or districts.
268 Section 2. Section 10-9a-305 is amended to read:
269 10-9a-305. Other entities required to conform to municipality's land use
270 ordinances -- Exceptions -- School districts and charter schools.
271 (1) (a) Each county, municipality, school district, charter school, local district, special
272 service district, and political subdivision of the state shall conform to any applicable land use
273 ordinance of any municipality when installing, constructing, operating, or otherwise using any
274 area, land, or building situated within that municipality.
275 (b) In addition to any other remedies provided by law, when a municipality's land use

276 ordinance is violated or about to be violated by another political subdivision, that municipality
277 may institute an injunction, mandamus, abatement, or other appropriate action or proceeding to
278 prevent, enjoin, abate, or remove the improper installation, improvement, or use.
279 (2) (a) Notwithstanding Subsection (1), a public transit district under Title 17B,
280 Chapter 2a, Part 8, Public Transit District Act, is not required to conform to any applicable
281 land use ordinance of a municipality located within the boundaries of a county of the first class
282 when constructing a:
283 (i) rail fixed guideway public transit facility that extends across two or more counties;
284 or
285 (ii) structure that serves a rail fixed guideway public transit facility that extends across
286 two or more counties, including:
287 (A) platforms;
288 (B) passenger terminals or stations;
289 (C) park and ride facilities;
290 (D) maintenance facilities;
291 (E) all related utility lines, roadways, and other facilities serving the public transit
292 facility; or
293 (F) other auxiliary facilities.
294 (b) The exemption from municipal land use ordinances under this Subsection (2) does
295 not extend to any property not necessary for the construction or operation of a rail fixed
296 guideway public transit facility.
297 (c) A municipality located within the boundaries of a county of the first class may not,
298 through an agreement under Title 11, Chapter [3] 13, Interlocal Cooperation Act, require a
299 public transit district under Title 17B, Chapter 2a, Part 8, Public Transit District Act, to obtain
300 approval from the municipality prior to constructing a:
301 (i) rail fixed guideway public transit facility that extends across two or more counties;
302 or
303 (ii) structure that serves a rail fixed guideway public transit facility that extends across
304 two or more counties, including:
305 (A) platforms;
306 (B) passenger terminals or stations;

307 (C) park and ride facilities;
308 (D) maintenance facilities;
309 (E) all related utility lines, roadways, and other facilities serving the public transit
310 facility; or
311 (F) other auxiliary facilities.
312 (3) (a) Except as provided in Subsection (4), a school district or charter school is
313 subject to a municipality's land use ordinances.
314 (b) (i) Notwithstanding Subsection (4), a municipality may:
315 (A) subject a charter school to standards within each zone pertaining to setback, height,
316 bulk and massing regulations, off-site parking, curb cut, traffic circulation, and construction
317 staging; and
318 (B) impose regulations upon the location of a project that are necessary to avoid
319 unreasonable risks to health or safety, as provided in Subsection (4)(f).
320 (ii) The standards to which a municipality may subject a charter school under
321 Subsection (3)(b)(i) shall be objective standards only and may not be subjective.
322 (iii) Except as provided in Subsection (8)(d), the only basis upon which a municipality
323 may deny or withhold approval of a charter school's land use application is the charter school's
324 failure to comply with a standard imposed under Subsection (3)(b)(i).
325 (iv) Nothing in Subsection (3)(b)(iii) may be construed to relieve a charter school of an
326 obligation to comply with a requirement of an applicable building or safety code to which it is
327 otherwise obligated to comply.
328 (4) A municipality may not:
329 (a) impose requirements [for] on a project to construct an educational facility, if the
330 requirements apply to landscaping, fencing, aesthetic considerations, construction methods or
331 materials, additional building inspections, municipal building codes, building use for
332 educational purposes, or the placement or use of temporary classroom facilities on school
333 property;
334 (b) except as otherwise provided in this section, require a school district or charter
335 school to participate in the cost of any roadway or sidewalk, or a study on the impact of a
336 school on a roadway or sidewalk, that is not reasonably necessary for the safety of school
337 children and not located on or contiguous to school property, unless the roadway or sidewalk is

338 required to connect an otherwise isolated school site to an existing roadway;
339 (c) require a district or charter school to pay fees not authorized by this section;
340 (d) provide for inspection of school construction or assess a fee or other charges for
341 inspection, unless the school district or charter school is unable to provide for inspection by an
342 inspector, other than the project architect or contractor, who is qualified under criteria
343 established by the state superintendent;
344 (e) require a school district or charter school to pay any impact fee for an improvement
345 project unless the impact fee is imposed as provided in Title 11, Chapter 36, Impact Fees Act;
346 or
347 (f) impose regulations upon the location of a project to construct an educational facility
348 except as necessary to avoid unreasonable risks to health or safety.
349 (5) Subject to Section 53A-20-108 , a school district or charter school shall coordinate
350 the siting of a new school with the municipality in which the school is to be located, to:
351 (a) avoid or mitigate existing and potential traffic hazards, including consideration of
352 the impacts between the new school and future highways; and
353 (b) maximize school, student, and site safety.
354 (6) Notwithstanding Subsection (4)(d), a municipality may, at its discretion:
355 (a) provide a walk-through of school construction at no cost and at a time convenient to
356 the district or charter school; and
357 (b) provide recommendations based upon the walk-through.
358 (7) (a) Notwithstanding Subsection (4)(d), a school district or charter school shall use:
359 (i) a municipal building inspector;
360 (ii) (A) for a school district, a school district building inspector from that school
361 district; or
362 (B) for a charter school, a school district building inspector from the school district in
363 which the charter school is located; or
364 (iii) an independent, certified building inspector who is:
365 (A) not an employee of the contractor;
366 (B) approved by:
367 (I) a municipal building inspector; or
368 (II) (Aa) for a school district, a school district building inspector from that school

369 district; or
370 (Bb) for a charter school, a school district building inspector from the school district in
371 which the charter school is located; and
372 (C) licensed to perform the inspection that the inspector is requested to perform.
373 (b) The approval under Subsection (7)(a)(iii)(B) may not be unreasonably withheld.
374 (c) If a school district or charter school uses a school district or independent building
375 inspector under Subsection (7)(a)(ii) or (iii), the school district or charter school shall submit to
376 the state superintendent of public instruction and municipal building official, on a monthly
377 basis during construction of the school building, a copy of each inspection certificate regarding
378 the school building.
379 (8) (a) A charter school shall be considered a permitted use in all zoning districts
380 within a municipality.
381 (b) Each land use application for any approval required for a charter school, including
382 an application for a building permit, shall be processed on a first priority basis.
383 (c) Parking requirements for a charter school may not exceed the minimum parking
384 requirements for schools or other institutional public uses throughout the municipality.
385 (d) If a municipality has designated zones for a sexually oriented business, or a
386 business which sells alcohol, a charter school may be prohibited from a location which would
387 otherwise defeat the purpose for the zone unless the charter school provides a waiver.
388 (e) (i) A school district or a charter school may seek a certificate authorizing permanent
389 occupancy of a school building from:
390 (A) the state superintendent of public instruction, as provided in Subsection
391 53A-20-104 (3), if the school district or charter school used an independent building inspector
392 for inspection of the school building; or
393 (B) a municipal official with authority to issue the certificate, if the school district or
394 charter school used a municipal building inspector for inspection of the school building.
395 (ii) A school district may issue its own certificate authorizing permanent occupancy of
396 a school building if it used its own building inspector for inspection of the school building,
397 subject to the notification requirement of Subsection 53A-20-104 (3)(a)(ii).
398 (iii) A charter school may seek a certificate authorizing permanent occupancy of a
399 school building from a school district official with authority to issue the certificate, if the

400 charter school used a school district building inspector for inspection of the school building.
401 (iv) A certificate authorizing permanent occupancy issued by the state superintendent
402 of public instruction under Subsection 53A-20-104 (3) or a school district official with authority
403 to issue the certificate shall be considered to satisfy any municipal requirement for an
404 inspection or a certificate of occupancy.
405 Section 3. Section 17-27a-103 is amended to read:
406 17-27a-103. Definitions.
407 As used in this chapter:
408 (1) "Affected entity" means a county, municipality, local district, special service
409 district under Title 17D, Chapter 1, Special Service District Act, school district, interlocal
410 cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, specified
411 property owner, property owners association, public utility, or the Utah Department of
412 Transportation, if:
413 (a) the entity's services or facilities are likely to require expansion or significant
414 modification because of an intended use of land;
415 (b) the entity has filed with the county a copy of the entity's general or long-range plan;
416 or
417 (c) the entity has filed with the county a request for notice during the same calendar
418 year and before the county provides notice to an affected entity in compliance with a
419 requirement imposed under this chapter.
420 (2) "Appeal authority" means the person, board, commission, agency, or other body
421 designated by ordinance to decide an appeal of a decision of a land use application or a
422 variance.
423 (3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
424 residential property if the sign is designed or intended to direct attention to a business, product,
425 or service that is not sold, offered, or existing on the property where the sign is located.
426 (4) "Charter school" includes:
427 (a) an operating charter school;
428 (b) a charter school applicant that has its application approved by a chartering entity in
429 accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; and
430 (c) an entity who is working on behalf of a charter school or approved charter applicant

431 to develop or construct a charter school building.
432 (5) "Chief executive officer" means the person or body that exercises the executive
433 powers of the county.
434 (6) "Conditional use" means a land use that, because of its unique characteristics or
435 potential impact on the county, surrounding neighbors, or adjacent land uses, may not be
436 compatible in some areas or may be compatible only if certain conditions are required that
437 mitigate or eliminate the detrimental impacts.
438 (7) "Constitutional taking" means a governmental action that results in a taking of
439 private property so that compensation to the owner of the property is required by the:
440 (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
441 (b) Utah Constitution Article I, Section 22.
442 (8) "Culinary water authority" means the department, agency, or public entity with
443 responsibility to review and approve the feasibility of the culinary water system and sources for
444 the subject property.
445 (9) "Development activity" means:
446 (a) any construction or expansion of a building, structure, or use that creates additional
447 demand and need for public facilities;
448 (b) any change in use of a building or structure that creates additional demand and need
449 for public facilities; or
450 (c) any change in the use of land that creates additional demand and need for public
451 facilities.
452 (10) (a) "Disability" means a physical or mental impairment that substantially limits
453 one or more of a person's major life activities, including a person having a record of such an
454 impairment or being regarded as having such an impairment.
455 (b) "Disability" does not include current illegal use of, or addiction to, any federally
456 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
457 802.
458 (11) "Educational facility":
459 (a) means a structure that houses an accredited public institution established for the
460 purpose of offering instruction to pupils assembled at the structure, through a program for any
461 combination of grades from preschool through grade 12, including kindergarten and a program

462 for children with disabilities; and
463 (b) does not include the use of land or a structure for a service in support of a structure
464 described in Subsection (11)(a), including inventory storage, equipment storage, food
465 processing or preparing, vehicle storage or maintenance, or other use that supports the purpose
466 of providing instruction to pupils.
467 [(11)] (12) "Elderly person" means a person who is 60 years old or older, who desires
468 or needs to live with other elderly persons in a group setting, but who is capable of living
469 independently.
470 [(12)] (13) "Fire authority" means the department, agency, or public entity with
471 responsibility to review and approve the feasibility of fire protection and suppression services
472 for the subject property.
473 [(13)] (14) "Flood plain" means land that:
474 (a) is within the 100-year flood plain designated by the Federal Emergency
475 Management Agency; or
476 (b) has not been studied or designated by the Federal Emergency Management Agency
477 but presents a likelihood of experiencing chronic flooding or a catastrophic flood event because
478 the land has characteristics that are similar to those of a 100-year flood plain designated by the
479 Federal Emergency Management Agency.
480 [(14)] (15) "Gas corporation" has the same meaning as defined in Section 54-2-1 .
481 [(15)] (16) "General plan" means a document that a county adopts that sets forth
482 general guidelines for proposed future development of the unincorporated land within the
483 county.
484 [(16)] (17) "Geologic hazard" means:
485 (a) a surface fault rupture;
486 (b) shallow groundwater;
487 (c) liquefaction;
488 (d) a landslide;
489 (e) a debris flow;
490 (f) unstable soil;
491 (g) a rock fall; or
492 (h) any other geologic condition that presents a risk:

493 (i) to life;
494 (ii) of substantial loss of real property; or
495 (iii) of substantial damage to real property.
496 [(17)] (18) "Identical plans" means building plans submitted to a county that are
497 substantially identical building plans that were previously submitted to and reviewed and
498 approved by the county and describe a building that is:
499 (a) located on land zoned the same as the land on which the building described in the
500 previously approved plans is located; and
501 (b) subject to the same geological and meteorological conditions and the same law as
502 the building described in the previously approved plans.
503 [(18)] (19) "Improvement assurance" means a surety bond, letter of credit, cash, or
504 other security:
505 (a) to guaranty the proper completion of an improvement;
506 (b) that is required as a condition precedent to:
507 (i) recording a subdivision plat; or
508 (ii) beginning development activity; and
509 (c) that is offered to a land use authority to induce the land use authority, before actual
510 construction of required improvements, to:
511 (i) consent to the recording of a subdivision plat; or
512 (ii) issue a permit for development activity.
513 [(19)] (20) "Improvement assurance warranty" means a promise that the materials and
514 workmanship of improvements:
515 (a) comport with standards that the county has officially adopted; and
516 (b) will not fail in any material respect within a warranty period.
517 [(20)] (21) "Interstate pipeline company" means a person or entity engaged in natural
518 gas transportation subject to the jurisdiction of the Federal Energy Regulatory Commission
519 under the Natural Gas Act, 15 U.S.C. Sec. 717 et seq.
520 [(21)] (22) "Intrastate pipeline company" means a person or entity engaged in natural
521 gas transportation that is not subject to the jurisdiction of the Federal Energy Regulatory
522 Commission under the Natural Gas Act, 15 U.S.C. Sec. 717 et seq.
523 [(22)] (23) "Land use application" means an application required by a county's land use

524 ordinance.
525 [(23)] (24) "Land use authority" means a person, board, commission, agency, or other
526 body designated by the local legislative body to act upon a land use application.
527 [(24)] (25) "Land use ordinance" means a planning, zoning, development, or
528 subdivision ordinance of the county, but does not include the general plan.
529 [(25)] (26) "Land use permit" means a permit issued by a land use authority.
530 [(26)] (27) "Legislative body" means the county legislative body, or for a county that
531 has adopted an alternative form of government, the body exercising legislative powers.
532 [(27)] (28) "Local district" means any entity under Title 17B, Limited Purpose Local
533 Government Entities - Local Districts, and any other governmental or quasi-governmental
534 entity that is not a county, municipality, school district, or unit of the state.
535 [(28)] (29) "Lot line adjustment" means the relocation of the property boundary line in
536 a subdivision between two adjoining lots with the consent of the owners of record.
537 [(29)] (30) "Moderate income housing" means housing occupied or reserved for
538 occupancy by households with a gross household income equal to or less than 80% of the
539 median gross income for households of the same size in the county in which the housing is
540 located.
541 [(30)] (31) "Nominal fee" means a fee that reasonably reimburses a county only for
542 time spent and expenses incurred in:
543 (a) verifying that building plans are identical plans; and
544 (b) reviewing and approving those minor aspects of identical plans that differ from the
545 previously reviewed and approved building plans.
546 [(31)] (32) "Noncomplying structure" means a structure that:
547 (a) legally existed before its current land use designation; and
548 (b) because of one or more subsequent land use ordinance changes, does not conform
549 to the setback, height restrictions, or other regulations, excluding those regulations that govern
550 the use of land.
551 [(32)] (33) "Nonconforming use" means a use of land that:
552 (a) legally existed before its current land use designation;
553 (b) has been maintained continuously since the time the land use ordinance regulation
554 governing the land changed; and

555 (c) because of one or more subsequent land use ordinance changes, does not conform
556 to the regulations that now govern the use of the land.
557 [(33)] (34) "Official map" means a map drawn by county authorities and recorded in
558 the county recorder's office that:
559 (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
560 highways and other transportation facilities;
561 (b) provides a basis for restricting development in designated rights-of-way or between
562 designated setbacks to allow the government authorities time to purchase or otherwise reserve
563 the land; and
564 (c) has been adopted as an element of the county's general plan.
565 [(34)] (35) "Person" means an individual, corporation, partnership, organization,
566 association, trust, governmental agency, or any other legal entity.
567 [(35)] (36) "Plan for moderate income housing" means a written document adopted by
568 a county legislative body that includes:
569 (a) an estimate of the existing supply of moderate income housing located within the
570 county;
571 (b) an estimate of the need for moderate income housing in the county for the next five
572 years as revised biennially;
573 (c) a survey of total residential land use;
574 (d) an evaluation of how existing land uses and zones affect opportunities for moderate
575 income housing; and
576 (e) a description of the county's program to encourage an adequate supply of moderate
577 income housing.
578 [(36)] (37) "Plat" means a map or other graphical representation of lands being laid out
579 and prepared in accordance with Section 17-27a-603 , 17-23-17 , or 57-8-13 .
580 [(37)] (38) "Potential geologic hazard area" means an area that:
581 (a) is designated by a Utah Geological Survey map, county geologist map, or other
582 relevant map or report as needing further study to determine the area's potential for geologic
583 hazard; or
584 (b) has not been studied by the Utah Geological Survey or a county geologist but
585 presents the potential of geologic hazard because the area has characteristics similar to those of

586 a designated geologic hazard area.
587 [(38)] (39) "Public hearing" means a hearing at which members of the public are
588 provided a reasonable opportunity to comment on the subject of the hearing.
589 [(39)] (40) "Public meeting" means a meeting that is required to be open to the public
590 under Title 52, Chapter 4, Open and Public Meetings Act.
591 [(40)] (41) "Receiving zone" means an unincorporated area of a county that the
592 county's land use authority designates as an area in which an owner of land may receive
593 transferrable development rights.
594 [(41)] (42) "Record of survey map" means a map of a survey of land prepared in
595 accordance with Section 17-23-17 .
596 [(42)] (43) "Residential facility for elderly persons" means a single-family or
597 multiple-family dwelling unit that meets the requirements of Section 17-27a-515 , but does not
598 include a health care facility as defined by Section 26-21-2 .
599 [(43)] (44) "Residential facility for persons with a disability" means a residence:
600 (a) in which more than one person with a disability resides; and
601 (b) (i) is licensed or certified by the Department of Human Services under Title 62A,
602 Chapter 2, Licensure of Programs and Facilities; or
603 (ii) is licensed or certified by the Department of Health under Title 26, Chapter 21,
604 Health Care Facility Licensing and Inspection Act.
605 [(44)] (45) "Sanitary sewer authority" means the department, agency, or public entity
606 with responsibility to review and approve the feasibility of sanitary sewer services or onsite
607 wastewater systems.
608 [(45)] (46) "Sending zone" means an unincorporated area of a county that the county's
609 land use authority designates as an area from which an owner of land may transfer transferrable
610 development rights to an owner of land in a receiving zone.
611 [(46)] (47) "Specified public utility" means an electrical corporation, gas corporation,
612 or telephone corporation, as those terms are defined in Section 54-2-1 .
613 [(47)] (48) "Street" means a public right-of-way, including a highway, avenue,
614 boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement,
615 or other way.
616 [(48)] (49) (a) "Subdivision" means any land that is divided, resubdivided or proposed

617 to be divided into two or more lots, parcels, sites, units, plots, or other division of land for the
618 purpose, whether immediate or future, for offer, sale, lease, or development either on the
619 installment plan or upon any and all other plans, terms, and conditions.
620 (b) "Subdivision" includes:
621 (i) the division or development of land whether by deed, metes and bounds description,
622 devise and testacy, map, plat, or other recorded instrument; and
623 (ii) except as provided in Subsection [(48)] (49)(c), divisions of land for residential and
624 nonresidential uses, including land used or to be used for commercial, agricultural, and
625 industrial purposes.
626 (c) "Subdivision" does not include:
627 (i) a bona fide division or partition of agricultural land for agricultural purposes;
628 (ii) a recorded agreement between owners of adjoining properties adjusting their
629 mutual boundary if:
630 (A) no new lot is created; and
631 (B) the adjustment does not violate applicable land use ordinances;
632 (iii) a recorded document, executed by the owner of record:
633 (A) revising the legal description of more than one contiguous unsubdivided parcel of
634 property into one legal description encompassing all such parcels of property; or
635 (B) joining a subdivided parcel of property to another parcel of property that has not
636 been subdivided, if the joinder does not violate applicable land use ordinances;
637 (iv) a bona fide division or partition of land in a county other than a first class county
638 for the purpose of siting, on one or more of the resulting separate parcels:
639 (A) an unmanned facility appurtenant to a pipeline owned or operated by a gas
640 corporation, interstate pipeline company, or intrastate pipeline company; or
641 (B) an unmanned telecommunications, microwave, fiber optic, electrical, or other
642 utility service regeneration, transformation, retransmission, or amplification facility; or
643 (v) a recorded agreement between owners of adjoining subdivided properties adjusting
644 their mutual boundary if:
645 (A) no new dwelling lot or housing unit will result from the adjustment; and
646 (B) the adjustment will not violate any applicable land use ordinance.
647 (d) The joining of a subdivided parcel of property to another parcel of property that has

648 not been subdivided does not constitute a subdivision under this Subsection [(48)] (49) as to
649 the unsubdivided parcel of property or subject the unsubdivided parcel to the county's
650 subdivision ordinance.
651 [(49)] (50) "Township" means a contiguous, geographically defined portion of the
652 unincorporated area of a county, established under this part or reconstituted or reinstated under
653 Section 17-27a-306 , with planning and zoning functions as exercised through the township
654 planning commission, as provided in this chapter, but with no legal or political identity
655 separate from the county and no taxing authority, except that "township" means a former
656 township under Laws of Utah 1996, Chapter 308, where the context so indicates.
657 [(50)] (51) "Transferrable development right" means the entitlement to develop land
658 within a sending zone that would vest according to the county's existing land use ordinances on
659 the date that a completed land use application is filed seeking the approval of development
660 activity on the land.
661 [(51)] (52) "Unincorporated" means the area outside of the incorporated area of a
662 municipality.
663 [(52)] (53) "Zoning map" means a map, adopted as part of a land use ordinance, that
664 depicts land use zones, overlays, or districts.
665 Section 4. Section 17-27a-305 is amended to read:
666 17-27a-305. Other entities required to conform to county's land use ordinances --
667 Exceptions -- School districts and charter schools.
668 (1) (a) Each county, municipality, school district, charter school, local district, special
669 service district, and political subdivision of the state shall conform to any applicable land use
670 ordinance of any county when installing, constructing, operating, or otherwise using any area,
671 land, or building situated within the unincorporated portion of the county.
672 (b) In addition to any other remedies provided by law, when a county's land use
673 ordinance is violated or about to be violated by another political subdivision, that county may
674 institute an injunction, mandamus, abatement, or other appropriate action or proceeding to
675 prevent, enjoin, abate, or remove the improper installation, improvement, or use.
676 (2) (a) Notwithstanding Subsection (1), a public transit district under Title 17B,
677 Chapter 2a, Part 8, Public Transit District Act, is not required to conform to any applicable
678 land use ordinance of a county of the first class when constructing a:

679 (i) rail fixed guideway public transit facility that extends across two or more counties;
680 or
681 (ii) structure that serves a rail fixed guideway public transit facility that extends across
682 two or more counties, including:
683 (A) platforms;
684 (B) passenger terminals or stations;
685 (C) park and ride facilities;
686 (D) maintenance facilities;
687 (E) all related utility lines, roadways, and other facilities serving the public transit
688 facility; or
689 (F) other auxiliary facilities.
690 (b) The exemption from county land use ordinances under this Subsection (2) does not
691 extend to any property not necessary for the construction or operation of a rail fixed guideway
692 public transit facility.
693 (c) A county of the first class may not, through an agreement under Title 11, Chapter
694 [3] 13, Interlocal Cooperation Act, require a public transit district under Title 17B, Chapter 2a,
695 Part 8, Public Transit District Act, to obtain approval from the county prior to constructing a:
696 (i) rail fixed guideway public transit facility that extends across two or more counties;
697 or
698 (ii) structure that serves a rail fixed guideway public transit facility that extends across
699 two or more counties, including:
700 (A) platforms;
701 (B) passenger terminals or stations;
702 (C) park and ride facilities;
703 (D) maintenance facilities;
704 (E) all related utility lines, roadways, and other facilities serving the public transit
705 facility; or
706 (F) other auxiliary facilities.
707 (3) (a) Except as provided in Subsection (4), a school district or charter school is
708 subject to a county's land use ordinances.
709 (b) (i) Notwithstanding Subsection (4), a county may:

710 (A) subject a charter school to standards within each zone pertaining to setback, height,
711 bulk and massing regulations, off-site parking, curb cut, traffic circulation, and construction
712 staging; and
713 (B) impose regulations upon the location of a project that are necessary to avoid
714 unreasonable risks to health or safety, as provided in Subsection (4)(f).
715 (ii) The standards to which a county may subject a charter school under Subsection
716 (3)(b)(i) shall be objective standards only and may not be subjective.
717 (iii) Except as provided in Subsection (8)(d), the only basis upon which a county may
718 deny or withhold approval of a charter school's land use application is the charter school's
719 failure to comply with a standard imposed under Subsection (3)(b)(i).
720 (iv) Nothing in Subsection (3)(b)(iii) may be construed to relieve a charter school of an
721 obligation to comply with a requirement of an applicable building or safety code to which it is
722 otherwise obligated to comply.
723 (4) A county may not:
724 (a) impose requirements [for] on a project to construct an educational facility, if the
725 requirements apply to landscaping, fencing, aesthetic considerations, construction methods or
726 materials, additional building inspections, county building codes, building use for educational
727 purposes, or the placement or use of temporary classroom facilities on school property;
728 (b) except as otherwise provided in this section, require a school district or charter
729 school to participate in the cost of any roadway or sidewalk, or a study on the impact of a
730 school on a roadway or sidewalk, that is not reasonably necessary for the safety of school
731 children and not located on or contiguous to school property, unless the roadway or sidewalk is
732 required to connect an otherwise isolated school site to an existing roadway;
733 (c) require a district or charter school to pay fees not authorized by this section;
734 (d) provide for inspection of school construction or assess a fee or other charges for
735 inspection, unless the school district or charter school is unable to provide for inspection by an
736 inspector, other than the project architect or contractor, who is qualified under criteria
737 established by the state superintendent;
738 (e) require a school district or charter school to pay any impact fee for an improvement
739 project unless the impact fee is imposed as provided in Title 11, Chapter 36, Impact Fees Act;
740 or

741 (f) impose regulations upon the location of a project to construct an educational facility
742 except as necessary to avoid unreasonable risks to health or safety.
743 (5) Subject to Section 53A-20-108 , a school district or charter school shall coordinate
744 the siting of a new school with the county in which the school is to be located, to:
745 (a) avoid or mitigate existing and potential traffic hazards, including consideration of
746 the impacts between the new school and future highways; and
747 (b) maximize school, student, and site safety.
748 (6) Notwithstanding Subsection (4)(d), a county may, at its discretion:
749 (a) provide a walk-through of school construction at no cost and at a time convenient to
750 the district or charter school; and
751 (b) provide recommendations based upon the walk-through.
752 (7) (a) Notwithstanding Subsection (4)(d), a school district or charter school shall use:
753 (i) a county building inspector;
754 (ii) (A) for a school district, a school district building inspector from that school
755 district; or
756 (B) for a charter school, a school district building inspector from the school district in
757 which the charter school is located; or
758 (iii) an independent, certified building inspector who is:
759 (A) not an employee of the contractor;
760 (B) approved by:
761 (I) a county building inspector; or
762 (II) (Aa) for a school district, a school district building inspector from that school
763 district; or
764 (Bb) for a charter school, a school district building inspector from the school district in
765 which the charter school is located; and
766 (C) licensed to perform the inspection that the inspector is requested to perform.
767 (b) The approval under Subsection (7)(a)(iii)(B) may not be unreasonably withheld.
768 (c) If a school district or charter school uses a school district or independent building
769 inspector under Subsection (7)(a)(ii) or (iii), the school district or charter school shall submit to
770 the state superintendent of public instruction and county building official, on a monthly basis
771 during construction of the school building, a copy of each inspection certificate regarding the

772 school building.
773 (8) (a) A charter school shall be considered a permitted use in all zoning districts
774 within a county.
775 (b) Each land use application for any approval required for a charter school, including
776 an application for a building permit, shall be processed on a first priority basis.
777 (c) Parking requirements for a charter school may not exceed the minimum parking
778 requirements for schools or other institutional public uses throughout the county.
779 (d) If a county has designated zones for a sexually oriented business, or a business
780 which sells alcohol, a charter school may be prohibited from a location which would otherwise
781 defeat the purpose for the zone unless the charter school provides a waiver.
782 (e) (i) A school district or a charter school may seek a certificate authorizing permanent
783 occupancy of a school building from:
784 (A) the state superintendent of public instruction, as provided in Subsection
785 53A-20-104 (3), if the school district or charter school used an independent building inspector
786 for inspection of the school building; or
787 (B) a county official with authority to issue the certificate, if the school district or
788 charter school used a county building inspector for inspection of the school building.
789 (ii) A school district may issue its own certificate authorizing permanent occupancy of
790 a school building if it used its own building inspector for inspection of the school building,
791 subject to the notification requirement of Subsection 53A-20-104 (3)(a)(ii).
792 (iii) A charter school may seek a certificate authorizing permanent occupancy of a
793 school building from a school district official with authority to issue the certificate, if the
794 charter school used a school district building inspector for inspection of the school building.
795 (iv) A certificate authorizing permanent occupancy issued by the state superintendent
796 of public instruction under Subsection 53A-20-104 (3) or a school district official with authority
797 to issue the certificate shall be considered to satisfy any county requirement for an inspection or
798 a certificate of occupancy.

Legislative Review Note
as of 2-11-09 12:08 PM

Office of Legislative Research and General Counsel