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First Substitute H.B. 205
7 LONG TITLE
8 General Description:
9 This bill amends impact fee provisions relating to school districts and charter schools.
10 Highlighted Provisions:
11 This bill:
12 . requires that an impact fee enactment allow, in certain circumstances, a developer to
13 receive a credit against or proportionate reimbursement of an impact fee, including
14 a school district or charter school;
15 . amends requirements for a capital facilities plan;
16 . amends provisions relating to an impact fee enactment;
17 . amends provisions relating to impact fees; and
18 . makes technical corrections.
19 Monies Appropriated in this Bill:
21 Other Special Clauses:
23 Utah Code Sections Affected:
25 11-36-201, as last amended by Laws of Utah 2009, Chapters 181, 188, 286, and 323
26 11-36-202, as last amended by Laws of Utah 2009, Chapters 181, 286, and 323
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 11-36-201 is amended to read:
30 11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Notice of plan --
31 Summary -- Exemptions.
32 (1) (a) (i) Each local political subdivision and private entity shall comply with the
33 requirements of this chapter before establishing or modifying any impact fee.
34 (ii) A fee that meets the definition of impact fee under Section 11-36-102 is an impact
35 fee subject to this chapter, regardless of what term the local political subdivision or private
36 entity uses to refer to the fee.
37 (iii) A local political subdivision or private entity may not avoid application of this
38 chapter to a fee that meets the definition of an impact fee under Section 11-36-102 by referring
39 to the fee by another name.
40 (b) A local political subdivision may not:
41 (i) establish any new impact fees that are not authorized by this chapter; or
42 (ii) impose or charge any other fees as a condition of development approval unless
43 those fees are a reasonable charge for the service provided.
44 (c) Each local political subdivision shall ensure that the impact fees comply with the
45 requirements of this chapter.
46 (d) (i) Each local political subdivision and private entity shall ensure that each impact
47 fee collected on or after May 12, 2009 complies with the provisions of this chapter, even if the
48 impact fee was imposed but not paid before May 12, 2009.
49 (ii) Subsection (1)(d)(i) does not apply to an impact fee that was paid before May 12,
51 (2) (a) Before imposing impact fees, each local political subdivision and private entity
52 shall, except as provided in Subsection (2)(f), prepare a capital facilities plan to determine the
53 public facilities required to serve development resulting from new development activity.
54 (b) (i) As used in this Subsection (2)(b):
55 (A) (I) "Affected entity" means each county, municipality, local district under Title
56 17B, Limited Purpose Local Government Entities - Local Districts, special service district
57 under Title 17D, Chapter 1, Special Service District Act, school district, interlocal cooperation
58 entity established under Chapter 13, Interlocal Cooperation Act, and specified public utility:
59 (Aa) whose services or facilities are likely to require expansion or significant
60 modification because of the facilities proposed in the proposed capital facilities plan; or
61 (Bb) that has filed with the local political subdivision or private entity a copy of the
62 general or long-range plan of the county, municipality, local district, special service district,
63 school district, interlocal cooperation entity, or specified public utility.
64 (II) "Affected entity" does not include the local political subdivision or private entity
65 that is required under this Subsection (2) to provide notice.
66 (B) "Specified public utility" means an electrical corporation, gas corporation, or
67 telephone corporation, as those terms are defined in Section 54-2-1 .
68 (ii) Before preparing or amending a capital facilities plan, each local political
69 subdivision and each private entity shall provide written notice, as provided in this Subsection
70 (2)(b), of its intent to prepare or amend a capital facilities plan.
71 (iii) Each notice under Subsection (2)(b)(ii) shall:
72 (A) indicate that the local political subdivision or private entity intends to prepare or
73 amend a capital facilities plan;
74 (B) describe or provide a map of the geographic area where the proposed capital
75 facilities will be located;
76 (C) be:
77 (I) sent to each county in whose unincorporated area and each municipality in whose
78 boundaries is located the land on which the proposed facilities will be located;
79 (II) sent to each affected entity;
80 (III) sent to the Automated Geographic Reference Center created in Section 63F-1-506 ;
81 (IV) sent to the association of governments, established pursuant to an interlocal
82 agreement under Chapter 13, Interlocal Cooperation Act, in which the facilities are proposed to
83 be located;
84 (V) (Aa) placed on the Utah Public Notice Website created under Section 63F-1-701 , if
85 the local political subdivision:
86 (Ii) is required under Subsection 52-4-203 (3) to use that website to provide public
87 notice of a meeting; or
88 (IIii) voluntarily chooses to place notice on that website despite not being required to
89 do so under Subsection (2)(b)(iii)(C)(V)(Aa)(Ii); or
90 (Bb) sent to the state planning coordinator appointed under Section 63J-4-202 , if the
91 local political subdivision does not provide notice on the Utah Public Notice Website under
92 Subsection (2)(b)(iii)(C)(V)(Aa) or for a private entity;
93 (VI) sent to the registered agent of the Utah Home Builders Association;
94 (VII) sent to the registered agent of the Utah Association of Realtors; and
95 (VIII) sent to the registered agent of the Utah Chapter of the Associated General
96 Contractors of America; and
97 (D) with respect to the notice to an affected entity, invite the affected entity to provide
98 information for the local political subdivision or private entity to consider in the process of
99 preparing, adopting, and implementing or amending a capital facilities plan concerning:
100 (I) impacts that the facilities proposed in the capital facilities plan may have on the
101 affected entity; and
102 (II) facilities or uses of land that the affected entity is planning or considering that may
103 conflict with the facilities proposed in the capital facilities plan.
104 (c) The plan shall identify:
105 (i) demands placed upon existing public facilities by new development activity; and
106 (ii) the proposed means by which the local political subdivision will meet those
108 (d) A municipality or county need not prepare a separate capital facilities plan if the
109 general plan required by Section 10-9a-401 or 17-27a-401 , respectively, contains the elements
110 required by Subsection (2)(c).
111 (e) (i) If a local political subdivision chooses to prepare an independent capital
112 facilities plan rather than include a capital facilities element in the general plan, the local
113 political subdivision shall:
114 (A) before preparing or contracting to prepare or amending or contracting to amend the
115 independent capital facilities plan, send written notice:
116 (I) to:
117 (Aa) the registered agent of the Utah Home Builders Association;
118 (Bb) the registered agent of the Utah Association of Realtors; and
119 (Cc) the registered agent of the Utah Chapter of the Associated General Contractors of
121 (II) stating the local political subdivision's intent to prepare or amend a capital facilities
122 plan; and
123 (III) inviting each of the notice recipients to participate in the preparation of or
124 amendment to the capital facilities plan; and
125 (B) before adopting or amending the capital facilities plan:
126 (I) give public notice of the plan or amendment according to Subsection (2)(e)(ii)(A),
127 (B), or (C), as the case may be, at least 10 days before the date of the public hearing;
128 (II) make a copy of the plan or amendment, together with a summary designed to be
129 understood by a lay person, available to the public;
130 (III) place a copy of the plan or amendment and summary in each public library within
131 the local political subdivision; and
132 (IV) hold a public hearing to hear public comment on the plan or amendment.
133 (ii) With respect to the public notice required under Subsection (2)(e)(i)(B)(I):
134 (A) each municipality shall comply with the notice and hearing requirements of, and,
135 except as provided in Subsection 11-36-401 (4)(f), receive the protections of Sections
136 10-9a-205 and 10-9a-801 and Subsection 10-9a-502 (2);
137 (B) each county shall comply with the notice and hearing requirements of, and, except
138 as provided in Subsection 11-36-401 (4)(f), receive the protections of Sections 17-27a-205 and
139 17-27a-801 and Subsection 17-27a-502 (2); and
140 (C) each local district, special service district, and private entity shall comply with the
141 notice and hearing requirements of, and receive the protections of, Section 17B-1-111 .
142 (iii) Nothing contained in this Subsection (2)(e) or in the subsections referenced in
143 Subsections (2)(e)(ii)(A) and (B) may be construed to require involvement by a planning
144 commission in the capital facilities planning process.
145 (f) (i) A local political subdivision with a population or serving a population of less
146 than 5,000 as of the last federal census need not comply with the capital facilities plan
147 requirements of this part, but shall ensure that:
148 (A) the impact fees that the local political subdivision imposes are based upon a
149 reasonable plan; and
150 (B) each applicable notice required by this chapter is given.
151 (ii) Subsection (2)(f)(i) does not apply to private entities.
152 (g) (i) The plan shall include a public facility required for a school district or charter
153 school if the local political subdivision is aware of the planned location of the school district
154 facility or charter school:
155 (A) through the planning process; or
156 (B) after receiving a written request from a school district or charter school that the
157 public facility be included in the plan.
158 (ii) If necessary, the plan shall be amended to reflect a public facility described in
159 Subsection (2)(g)(i).
160 (3) In preparing the plan, each local political subdivision shall generally consider all
161 revenue sources, including impact fees and anticipated dedication of system improvements, to
162 finance the impacts on system improvements.
163 (4) A local political subdivision or private entity may only impose impact fees on
164 development activities when its plan for financing system improvements establishes that
165 impact fees are necessary to achieve an equitable allocation to the costs borne in the past and to
166 be borne in the future, in comparison to the benefits already received and yet to be received.
167 (5) (a) Subject to the notice requirement of Subsection (5)(b), each local political
168 subdivision and private entity intending to impose an impact fee shall prepare a written analysis
169 of each impact fee that:
170 (i) identifies the anticipated impact on or consumption of any existing capacity of a
171 public facility by the anticipated development activity;
172 (ii) identifies the anticipated impact on system improvements required by the
173 anticipated development activity to maintain the established level of service for each public
175 (iii) demonstrates how those anticipated impacts are reasonably related to the
176 anticipated development activity;
177 (iv) estimates the proportionate share of:
178 (A) the costs for existing capacity that will be recouped; and
179 (B) the costs of impacts on system improvements that are reasonably related to the new
180 development activity; and
181 (v) based upon those factors and the requirements of this chapter, identifies how the
182 impact fee was calculated.
183 (b) Before preparing or contracting to prepare the written analysis required under
184 Subsection (5)(a), each local political subdivision or private entity shall provide:
185 (i) public notice; and
186 (ii) written notice:
187 (A) to:
188 (I) the registered agent of the Utah Home Builders Association;
189 (II) the registered agent of the Utah Association of Realtors; and
190 (III) the registered agent of the Utah Chapter of the Associated General Contractors of
192 (B) indicating the local political subdivision or private entity's intent to prepare or
193 contract to prepare a written analysis of an impact fee; and
194 (C) inviting each notice recipient to participate in the preparation of the written
196 (c) In analyzing whether or not the proportionate share of the costs of public facilities
197 are reasonably related to the new development activity, the local political subdivision or private
198 entity, as the case may be, shall identify, if applicable:
199 (i) the cost of each existing public facility that has excess capacity to serve the
200 anticipated development resulting from the new development activity;
201 (ii) the cost of system improvements for each public facility;
202 (iii) other than impact fees, the manner of financing each public facility, such as user
203 charges, special assessments, bonded indebtedness, general taxes, or federal grants;
204 (iv) the relative extent to which development activity will contribute to financing the
205 excess capacity of and system improvements for each existing public facility, by such means as
206 user charges, special assessments, or payment from the proceeds of general taxes;
207 (v) the relative extent to which development activity will contribute to the cost of
208 existing public facilities and system improvements in the future;
209 (vi) the extent to which the development activity is entitled to a credit against impact
210 fees because the development activity will dedicate system improvements or public facilities
211 that will offset the demand for system improvements, inside or outside the proposed
213 (vii) extraordinary costs, if any, in servicing the newly developed properties; and
214 (viii) the time-price differential inherent in fair comparisons of amounts paid at
215 different times.
216 (d) Each local political subdivision and private entity that prepares a written analysis
217 under this Subsection (5) shall also prepare a summary of the written analysis, designed to be
218 understood by a lay person.
219 (6) Each local political subdivision that adopts an impact fee enactment under Section
220 11-36-202 on or after July 1, 2000 shall, at least 10 days before adopting the enactment:
221 (a) submit a copy of the written analysis required by Subsection (5)(a) and a copy of
222 the summary required by Subsection (5)(d) to:
223 (i) each public library within the local political subdivision;
224 (ii) the registered agent of the Utah Home Builders Association;
225 (iii) the registered agent of the Utah Association of Realtors; and
226 (iv) the registered agent of the Utah Chapter of the Associated General Contractors of
227 America; and
228 (b) obtain a written certification from the person or entity that prepares the written
229 analysis which states as follows:
230 "I certify that the attached impact fee analysis:
231 1. includes only the costs for qualifying public facilities that are:
232 a. allowed under the Impact Fees Act; and
233 b. projected to be incurred or encumbered within six years after each
234 impact fee is paid;
235 2. contains no cost for operation and maintenance of public facilities;
236 3. offsets costs with grants or other alternate sources of payment;
237 4. does not include costs for qualifying public facilities that will raise the level
238 of service for the facilities, through impact fees, above the level of service that
239 is supported by existing residents; and
240 5. complies in each and every relevant respect with the Impact Fees Act."
241 (7) Nothing in this chapter may be construed to repeal or otherwise eliminate any
242 impact fee in effect on the effective date of this chapter that is pledged as a source of revenues
243 to pay bonded indebtedness that was incurred before the effective date of this chapter.
244 Section 2. Section 11-36-202 is amended to read:
245 11-36-202. Impact fees -- Enactment -- Required and allowed provisions --
246 Limitations -- Effective date.
247 (1) (a) Each local political subdivision and private entity wishing to impose impact fees
248 shall pass an impact fee enactment.
249 (b) The impact fee imposed by that enactment may not exceed the highest fee justified
250 by the impact fee analysis performed pursuant to Section 11-36-201 .
251 (c) In calculating the impact fee, a local political subdivision or private entity may
253 (i) the construction contract price;
254 (ii) the cost of acquiring land, improvements, materials, and fixtures;
255 (iii) the cost for planning, surveying, and engineering fees for services provided for and
256 directly related to the construction of the system improvements; and
257 (iv) debt service charges, if the political subdivision might use impact fees as a revenue
258 stream to pay the principal and interest on bonds, notes, or other obligations issued to finance
259 the costs of the system improvements.
260 (d) In calculating an impact fee, a local political subdivision may not include an
261 expense for overhead unless the expense is calculated pursuant to a methodology that is
262 consistent with:
263 (i) generally accepted cost accounting practices; and
264 (ii) the methodological standards set forth by the federal Office of Management and
265 Budget for federal grant reimbursement.
266 (e) In calculating an impact fee, each local political subdivision shall base amounts
267 calculated under Subsection (1)(c) on realistic estimates, and the assumptions underlying those
268 estimates shall be disclosed in the impact fee analysis.
269 (f) Each local political subdivision and private entity that intends to enact an impact fee
270 enactment shall:
271 (i) at least 10 days before the date of the public hearing:
272 (A) make a copy of the impact fee enactment available to the public; and
273 (B) mail a written copy of the impact fee enactment to:
274 (I) the registered agent of the Utah Home Builders Association;
275 (II) the registered agent of the Utah Association of Realtors; and
276 (III) the registered agent of the Utah Chapter of the Associated General Contractors of
277 America; and
278 (ii) (A) for a municipality, comply with the notice and hearing requirements of, and,
279 except as provided in Subsection 11-36-401 (4)(f), receive the protections of Sections
280 10-9a-205 and 10-9a-801 ;
281 (B) for a county, comply with the notice and hearing requirements of, and, except as
282 provided in Subsection 11-36-401 (4)(f), receive the protections of Sections 17-27a-205 and
283 17-27a-801 ; and
284 (C) for a local district or special service district, comply with the notice and hearing
285 requirements of, and receive the protections of, Section 17B-1-111 .
286 (g) Nothing contained in Subsection (1)(f) may be construed to require involvement by
287 a planning commission in the impact fee enactment process.
288 (2) The local political subdivision or private entity shall ensure that the impact fee
290 (a) contains:
291 (i) a provision establishing one or more service areas within which the local political
292 subdivision or private entity calculates and imposes impact fees for various land use categories;
293 (ii) (A) a schedule of impact fees for each type of development activity that specifies
294 the amount of the impact fee to be imposed for each type of system improvement; or
295 (B) the formula that the local political subdivision or private entity, as the case may be,
296 will use to calculate each impact fee;
297 (iii) a provision authorizing the local political subdivision or private entity, as the case
298 may be, to adjust the standard impact fee at the time the fee is charged to:
299 (A) respond to:
300 (I) unusual circumstances in specific cases; or
301 (II) a request for a prompt and individualized impact fee review for:
302 (Aa) the development activity of the state or a school district or charter school; and
303 (Bb) an offset or credit for a public facility for which an impact fee has been or will be
304 collected; and
305 (B) ensure that the impact fees are imposed fairly; and
306 (iv) a provision governing calculation of the amount of the impact fee to be imposed on
307 a particular development that permits adjustment of the amount of the fee based upon studies
308 and data submitted by the developer; and
309 (b) allows a developer, including a school district or charter school, to receive a credit
310 against or proportionate reimbursement of an impact fee if the developer:
311 (i) dedicates land for a system improvement;
312 (ii) builds and dedicates some or all of a system improvement; or
313 (iii) dedicates a public facility that the local political subdivision or private entity and
314 the developer agree will reduce the need for a system improvement.
315 (3) (a) A local political subdivision or private entity may include a provision in an
316 impact fee enactment that:
317 (i) provides an impact fee exemption for:
318 (A) development activity attributable to:
319 (I) low income housing;
320 (II) the state;
321 (III) a school district; or
322 (IV) a charter school; or
323 (B) other development activity with a broad public purpose; and
324 (ii) establishes one or more sources of funds other than impact fees to pay for that
325 development activity.
326 (b) An impact fee enactment that provides an impact fee exemption for development
327 activity attributable to a school district or charter school shall allow either a school district or a
328 charter school to qualify for the exemption on the same basis.
329 (4) A local political subdivision or private entity shall include a provision in an impact
330 fee enactment that requires a credit against impact fees for any dedication of land for,
331 improvement to, or new construction of, any system improvements provided by the developer
332 if the facilities:
333 (a) are system improvements; or
334 (b) (i) are dedicated to the public; and
335 (ii) offset the need for an identified system improvement.
336 (5) A local political subdivision may not:
337 (a) impose an impact fee to:
341 (b) delay the construction or operation of a school or charter school because of a
342 dispute with the school or charter school over impact fees.
343 (6) Notwithstanding the requirements and prohibitions of this chapter, a local political
344 subdivision may impose and assess an impact fee for environmental mitigation when:
345 (a) the local political subdivision has formally agreed to fund a Habitat Conservation
346 Plan to resolve conflicts with the Endangered Species Act of 1973, 16 U.S.C. Sec 1531, et seq.
347 or other state or federal environmental law or regulation;
348 (b) the impact fee bears a reasonable relationship to the environmental mitigation
349 required by the Habitat Conservation Plan; and
350 (c) the legislative body of the local political subdivision adopts an ordinance or
352 (i) declaring that an impact fee is required to finance the Habitat Conservation Plan;
353 (ii) establishing periodic sunset dates for the impact fee; and
354 (iii) requiring the legislative body to:
355 (A) review the impact fee on those sunset dates;
356 (B) determine whether or not the impact fee is still required to finance the Habitat
357 Conservation Plan; and
358 (C) affirmatively reauthorize the impact fee if the legislative body finds that the impact
359 fee must remain in effect.
360 (7) (a) Notwithstanding any other provision of this chapter:
361 (i) an impact fee to pay for a public safety facility that is a fire suppression vehicle may
362 not be imposed on residential components of development;
363 (ii) an impact fee may not be imposed on a school district or charter school for a park,
364 recreation facility, open space, or trail;
365 (iii) an impact fee may not be imposed on development activity that consists of the
366 construction of a school, whether by a school district or a charter school, if:
367 (A) the school is intended to replace another school, whether on the same or a different
369 (B) the new school creates no greater demand or need for public facilities than the
370 school [
371 are on the site of the replaced school at the time that the new school is proposed; and
372 (C) the new school and the school being replaced are both within:
373 (I) the boundary of the local political subdivision; or
374 (II) the jurisdiction of the private entity;
375 (iv) an impact fee may not be imposed on a school district or charter school unless:
376 (A) the development resulting from the school district or charter school's development
377 activity directly results in a need for additional system improvements for which the impact fee
378 is imposed; and
379 (B) the impact fee is calculated to cover only the school district or charter school's
380 proportionate share of the cost of those additional system improvements;
381 (v) an impact fee for a road facility may be imposed on the state only if and to the
382 extent that:
383 (A) the state's development causes an impact on the road facility; and
384 (B) the portion of the road facility related to an impact fee is not funded by the state or
385 by the federal government; and
386 (vi) to the extent that the impact fee includes a component for a law enforcement
387 facility, the impact fee may not be imposed on development activity for:
388 (A) the Utah National Guard;
389 (B) the Utah Highway Patrol; or
390 (C) a state institution of higher education that has its own police force.
391 (b) If the imposition of an impact fee on a new school is not prohibited under
392 Subsection (7)(a)(iii) because the new school creates a greater demand or need for public
393 facilities than the school being replaced, the impact fee may be based only on the demand or
394 need that the new school creates for public facilities that exceeds the demand or need that the
395 school being replaced creates for those public facilities.
396 (8) Notwithstanding any other provision of this chapter, a local political subdivision
397 may impose and collect impact fees on behalf of a school district if authorized by Section
398 53A-20-100.5 .
399 (9) An impact fee enactment may not take effect until 90 days after it is enacted.
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