First Substitute H.B. 216

Representative Gage Froerer proposes the following substitute bill:

1 INCORPORATION OF A TOWN AMENDMENTS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Gage Froerer
5 Senate Sponsor: Dennis E. Stowell
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to the incorporation of a town.
10 Highlighted Provisions:
11 This bill:
12 . requires that a county legislative body commission a financial feasibility study after
13 a petition to incorporate is certified;
14 . requires that the legislative body of a county, based on certain results of the
15 financial feasibility study:
16 . approve a petition to incorporate;
17 . deny a petition to incorporate;
18 . impose conditions on the area proposed to be incorporated; or
19 . alter the boundaries of the area proposed to be incorporated; and
20 . makes technical corrections.
21 Monies Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:

26 AMENDS:
27 10-2-125, as last amended by Laws of Utah 2009, Chapters 350 and 388
28
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 10-2-125 is amended to read:
31 10-2-125. Incorporation of a town.
32 (1) As used in this section:
33 (a) "Assessed value," with respect to agricultural land, means the value at which the
34 land would be assessed without regard to a valuation for agricultural use under Section
35 59-2-503 .
36 (b) "Financial feasibility study" means a study to determine:
37 (i) the projected revenues for the proposed town during the first three years after
38 incorporation; and
39 (ii) the projected costs, including overhead, that the proposed town will incur in
40 providing governmental services during the first three years after incorporation.
41 (c) "Municipal service" means a publicly provided service that is not provided on a
42 countywide basis.
43 (d) "Nonurban" means having a residential density of less than one unit per acre.
44 (2) (a) (i) A contiguous area of a county not within a municipality, with a population of
45 at least 100 but less than 1,000, may incorporate as a town as provided in this section.
46 (ii) An area within a county of the first class is not contiguous for purposes of
47 Subsection (2)(a)(i) if:
48 (A) the area includes a strip of land that connects geographically separate areas; and
49 (B) the distance between the geographically separate areas is greater than the average
50 width of the strip of land connecting the geographically separate areas.
51 (b) The population figure under Subsection (2)(a) shall be determined:
52 (i) as of the date the incorporation petition is filed; and
53 (ii) by the Utah Population Estimates Committee within 20 days after the county clerk's
54 certification under Subsection (6) of a petition filed under Subsection (4).
55 (3) (a) The process to incorporate an area as a town is initiated by filing a request for a
56 public hearing with the clerk of the county in which the area is located.

57 (b) Each request for a public hearing under Subsection (3)(a) shall:
58 (i) be signed by the owners of at least five separate parcels of private real property,
59 each owned by a different owner, located within the area proposed to be incorporated; and
60 (ii) be accompanied by an accurate map or plat depicting the boundary of the proposed
61 town.
62 (c) Within 10 days after a request for a public hearing is filed under Subsection (3)(a),
63 the county clerk shall, with the assistance of other county officers from whom the clerk
64 requests assistance, determine whether the petition complies with the requirements of
65 Subsection (3)(b).
66 (d) If the clerk determines that a request under Subsection (3)(a) fails to comply with
67 the requirements of Subsection (3)(b), the clerk shall reject the request and deliver written
68 notice of the rejection to the signers of the request.
69 (e) (i) If the clerk determines that a request under Subsection (3)(a) complies with the
70 requirements of Subsection (3)(b), the clerk shall:
71 (A) schedule and arrange for a public hearing to be held:
72 (I) (Aa) at a public facility located within the boundary of the proposed town; or
73 (Bb) if there is no public facility within the boundary of the proposed town, at another
74 nearby public facility or at the county seat; and
75 (II) within 20 days after the clerk provides the last notice required under Subsection
76 (3)(e)(i)(B); and
77 (B) subject to Subsection (3)(e)(ii), give notice of the public hearing on the proposed
78 incorporation by:
79 (I) posting notice of the public hearing on the county's Internet website, if the county
80 has an Internet website; [and]
81 (II) (Aa) [(Ii)] publishing notice of the public hearing at least once a week for two
82 consecutive weeks in a newspaper of general circulation within the proposed town; [and] or
83 [(IIii) publishing notice of the public hearing in accordance with Section 45-1-101 for
84 two weeks; or]
85 (Bb) [in accordance with Subsection (3)(e)(i)(B)(II)(Aa)(Ii),] if there is no newspaper
86 of general circulation within the proposed town, posting notice of the public hearing in at least
87 five conspicuous public places within the proposed town[.]; and

88 (III) publishing notice of the public hearing in accordance with Section 45-1-101 .
89 (ii) The posting of notice required under [Subsection (3)(e)(i)(B)(I) and, if applicable,
90 Subsection (3)(e)(i)(B)(II)(Bb) and the first publishing of notice required under Subsection
91 (3)(e)(i)(B)(II)(Aa), if applicable] Subsections (3)(e)(i)(B)(II)(Aa) and (3)(e)(i)(B)(III), and if
92 applicable, Subsections (3)(e)(i)(B)(I) and (3)(e)(i)(B)(II)(Bb), shall occur no later than 10 days
93 after the day on which the clerk determines that a request complies with the requirements of
94 Subsection (3)(b).
95 (iii) Each public hearing under Subsection (3)(e)(i)(A) shall be conducted by the chair
96 of the county commission or council, or the chair's designee, to:
97 (A) introduce the concept of the proposed incorporation to the public;
98 (B) allow the public to review the map or plat of the boundary of the proposed town;
99 (C) allow the public to ask questions and become informed about the proposed
100 incorporation; and
101 (D) allow the public to express their views about the proposed incorporation, including
102 their views about the boundary of the area proposed to be incorporated.
103 (4) (a) At any time within three months after the public hearing under Subsection
104 (3)(e), a petition to incorporate the area as a town may be filed with the clerk of the county in
105 which the area is located.
106 (b) Each petition under Subsection (4)(a) shall:
107 (i) be signed by:
108 (A) the owners of private real property that:
109 (I) is located within the area proposed to be incorporated;
110 (II) covers a majority of the total private land area within the area;
111 (III) is equal in assessed value to more than 1/2 of the assessed value of all private real
112 property within the area; and
113 (IV) consists, in number of parcels, of at least 1/3 of the number of all parcels of
114 private real property within the area proposed to be incorporated; and
115 (B) a majority of all registered voters within the area proposed to be incorporated as a
116 town, according to the official voter registration list maintained by the county on the date the
117 petition is filed;
118 (ii) designate as sponsors at least five of the property owners who have signed the

119 petition, one of whom shall be designated as the contact sponsor, with the mailing address of
120 each owner signing as a sponsor;
121 (iii) be accompanied by and circulated with an accurate map or plat, prepared by a
122 licensed surveyor, showing a legal description of the boundary of the proposed town; and
123 (iv) substantially comply with and be circulated in the following form:
124 PETITION FOR INCORPORATION OF (insert the proposed name of the proposed
125 town)
126 To the Honorable County Legislative Body of (insert the name of the county in which
127 the proposed town is located) County, Utah:
128 We, the undersigned owners of real property and registered voters within the area
129 described in this petition, respectfully petition the county legislative body for the area described
130 in this petition to be incorporated as a town. Each of the undersigned affirms that each has
131 personally signed this petition and is an owner of real property or a registered voter residing
132 within the described area, and that the current residence address of each is correctly written
133 after the signer's name. The area proposed to be incorporated as a town is described as follows:
134 (insert an accurate description of the area proposed to be incorporated).
135 (c) A petition under this Subsection (4) may not describe an area that includes some or
136 all of an area proposed for annexation in an annexation petition under Section 10-2-403 that:
137 (i) was filed before the filing of the petition; and
138 (ii) is still pending on the date the petition is filed.
139 (d) A petition may not be filed under this section if the private real property owned by
140 the petition sponsors, designated under Subsection (4)(b)(ii), cumulatively exceeds 40% of the
141 total private land area within the area proposed to be incorporated as a town.
142 (e) A signer of a petition under this Subsection (4) may withdraw or, after withdrawn,
143 reinstate the signer's signature on the petition:
144 (i) at any time until the county clerk certifies the petition under Subsection (6); and
145 (ii) by filing a signed, written withdrawal or reinstatement with the county clerk.
146 (5) (a) If a petition is filed under Subsection (4)(a) proposing to incorporate as a town
147 an area located within a county of the first class, the county clerk shall deliver written notice of
148 the proposed incorporation:
149 (i) to each owner of private real property owning more than 1% of the assessed value

150 of all private real property within the area proposed to be incorporated as a town; and
151 (ii) within seven calendar days after the date on which the petition is filed.
152 (b) A private real property owner described in Subsection (5)(a)(i) may exclude all or
153 part of the owner's property from the area proposed to be incorporated as a town by filing a
154 notice of exclusion:
155 (i) with the county clerk; and
156 (ii) within 10 calendar days after receiving the clerk's notice under Subsection (5)(a).
157 (c) The county legislative body shall exclude from the area proposed to be incorporated
158 as a town the property identified in the notice of exclusion under Subsection (5)(b) if:
159 (i) the property:
160 (A) is nonurban; and
161 (B) does not and will not require a municipal service; and
162 (ii) exclusion will not leave an unincorporated island within the proposed town.
163 (d) If the county legislative body excludes property from the area proposed to be
164 incorporated as a town, the county legislative body shall send written notice of the exclusion to
165 the contact sponsor within five days after the exclusion.
166 (6) Within 20 days after the filing of a petition under Subsection (4), the county clerk
167 shall:
168 (a) with the assistance of other county officers from whom the clerk requests
169 assistance, determine whether the petition complies with the requirements of Subsection (4);
170 and
171 (b) (i) if the clerk determines that the petition complies with those requirements:
172 (A) certify the petition and deliver the certified petition to the county legislative body;
173 and
174 (B) mail or deliver written notification of the certification to:
175 (I) the contact sponsor;
176 (II) if applicable, the chair of the planning commission of each township in which any
177 part of the area proposed for incorporation is located; and
178 (III) the Utah Population Estimates Committee; or
179 (ii) if the clerk determines that the petition fails to comply with any of those
180 requirements, reject the petition and notify the contact sponsor in writing of the rejection and

181 the reasons for the rejection.
182 (7) (a) (i) A petition that is rejected under Subsection (6)(b)(ii) may be amended to
183 correct a deficiency for which it was rejected and then refiled with the county clerk.
184 (ii) A valid signature on a petition filed under Subsection (4)(a) may be used toward
185 fulfilling the signature requirement of Subsection (4)(b) for the same petition that is amended
186 under Subsection (7)(a)(i) and then refiled with the county clerk.
187 (b) If a petition is amended and refiled under Subsection (7)(a)(i) after having been
188 rejected by the county clerk under Subsection (6)(b)(ii):
189 (i) the amended petition shall be considered as a newly filed petition; and
190 (ii) the amended petition's processing priority is determined by the date on which it is
191 refiled.
192 (8) (a) (i) The legislative body of a county with which a petition is filed under
193 Subsection (4) [may, at its option and] shall, upon the petition being certified under Subsection
194 (6), commission and pay for a financial feasibility study.
195 (ii) [If the] A county legislative body [chooses to commission] that commissions a
196 financial feasibility study[, the county legislative body] described in Subsection (8)(a)(i) shall:
197 (A) within 20 days after the incorporation petition is certified, select and engage a
198 feasibility consultant; and
199 (B) require the feasibility consultant to complete the financial feasibility study and
200 submit written results of the study to the county legislative body no later than 30 days after the
201 feasibility consultant is engaged to conduct the financial feasibility study.
202 (b) The county legislative body shall approve a petition proposing the incorporation of
203 a town and hold an election for town officers, as provided in Subsection (9), if:
204 (i) the county clerk has certified the petition under Subsection (6); and
205 [(ii) (A) (I) the county legislative body has commissioned a financial feasibility study
206 under Subsection (8)(a); and]
207 [(II)] (ii) the results of the financial feasibility study described in Subsection (8)(a)(i)
208 show that the average annual amount of revenues described in Subsection (1)(b)(i) [does not
209 exceed] exceeds the average annual amount of costs described in Subsection (1)(b)(ii) by more
210 than 10%[; or].
211 [(B) the county legislative body chooses not to commission a financial feasibility

212 study.]
213 (c) (i) If [the county legislative body commissions a financial feasibility study under
214 Subsection (8)(a) and] the results of the financial feasibility study described in Subsection
215 (8)(a)(i) show that the average annual amount of revenues described in Subsection (1)(b)(i)
216 [exceeds] does not exceed the average annual amount of costs described in Subsection
217 (1)(b)(ii) by more than 10%, the county legislative body [may] shall:
218 (A) deny the petition, [subject to] in accordance with Subsection (8)(c)(ii)[, if the
219 results of the financial feasibility study show that the average annual amount of revenues
220 described in Subsection (1)(b)(i) exceeds the average annual amount of costs described in
221 Subsection (1)(b)(ii) by 25% or more]; or
222 [(B) approve the petition and hold an election for town officers, as provided in
223 Subsection (9); or]
224 [(C)] (B) (I) with the consent of the petition sponsors:
225 (Aa) impose conditions to [mitigate the fiscal inequities identified in the financial
226 feasibility study] prevent the average annual amount of costs described in Subsection (1)(b)(ii)
227 from exceeding the average annual amount of revenues described in Subsection (1)(b)(i) by
228 more than 10%; or
229 (Bb) alter the boundaries of the area proposed to be incorporated as a town to
230 approximate the boundaries necessary to prevent the average annual amount of [revenues] costs
231 described in Subsection (1)(b)[(i)](ii) from exceeding the average annual amount of [costs]
232 revenues described in Subsection (1)(b)[(ii)](i) by more than 10%; and
233 (II) approve the incorporation petition and hold an election for town officers, as
234 provided in Subsection (9).
235 (ii) A county legislative body intending to deny a petition under Subsection (8)(c)(i)(A)
236 shall deny the petition within 20 days after the feasibility consultant submits the written results
237 of the financial feasibility study.
238 (d) Each town that incorporates pursuant to a petition approved after the county
239 legislative body imposes conditions under Subsection (8)(c)(i)[(C)(I)](B)(I)(Aa) shall comply
240 with those conditions.
241 (9) (a) The legislative body of the county in which the proposed new town is located
242 shall hold the election for town officers provided for in Subsection (8) within:

243 [(i) 45 days after the petition is certified, for an election under Subsection
244 (8)(b)(ii)(B);]
245 [(ii)] (i) 45 days after the day on which the feasibility consultant submits the written
246 results of the financial feasibility study, for an election under Subsection (8)(b)[(ii)(A) or
247 (8)(c)(i)(B)]; or
248 [(iii)] (ii) 60 days after the day on which the feasibility consultant submits the written
249 results of the financial feasibility study, for an election under Subsection (8)(c)(i)[(C)](B)(II).
250 (b) The officers elected at an election under Subsection (9)(a) shall take office:
251 (i) at noon on the first Monday in January next following the election, if the election is
252 held on a regular general or municipal general election date; or
253 (ii) at noon on the first day of the month next following the effective date of the
254 incorporation under Subsection (12), if the election of officers is held on any other date.
255 (10) Each newly incorporated town shall operate under the five-member council form
256 of government as defined in Section 10-3b-102 .
257 (11) The mayor-elect of the future town shall:
258 (a) within 30 days after the canvass of the election of town officers under Subsection
259 (9), file with the lieutenant governor:
260 (i) a copy of a notice of an impending boundary action, as defined in Section 67-1a-6.5 ,
261 that meets the requirements of Subsection 67-1a-6.5 (3); and
262 (ii) a copy of an approved final local entity plat, as defined in Section 67-1a-6.5 ; and
263 (b) upon the lieutenant governor's issuance of a certificate of incorporation under
264 Section 67-1a-6.5 :
265 (i) if the town is located within the boundary of a single county, submit to the recorder
266 of that county the original:
267 (A) notice of an impending boundary action;
268 (B) certificate of incorporation; and
269 (C) approved final local entity plat; or
270 (ii) if the town is located within the boundaries of more than a single county, submit
271 the original of the documents listed in Subsections (11)(b)(i)(A), (B), and (C) to one of those
272 counties and a certified copy of those documents to each other county.
273 (12) (a) A new town is incorporated:

274 (i) on December 31 of the year in which the lieutenant governor issues a certificate of
275 incorporation under Section 67-1a-6.5 , if the election of town officers under Subsection (9) is
276 held on a regular general or municipal general election date; or
277 (ii) on the last day of the month during which the lieutenant governor issues a
278 certificate of incorporation under Section 67-1a-6.5 , if the election of town officers under
279 Subsection (9) is held on any other date.
280 (b) (i) The effective date of an incorporation for purposes of assessing property within
281 the new town is governed by Section 59-2-305.5 .
282 (ii) Until the documents listed in Subsection (11)(b) are recorded in the office of the
283 recorder of each county in which the property is located, a newly incorporated town may not:
284 (A) levy or collect a property tax on property within the town;
285 (B) levy or collect an assessment on property within the town; or
286 (C) charge or collect a fee for service provided to property within the town.
287 (13) For each petition filed before March 5, 2008:
288 (a) the petition is subject to and governed by the law in effect at the time the petition
289 was filed; and
290 (b) the law in effect at the time the petition was filed governs in all administrative and
291 judicial proceedings relating to the petition.