S.B. 37 Enrolled

1

IMPACT FEE REVISIONS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Wayne L. Niederhauser
5 House Sponsor: Michael T. Morley
6
7 LONG TITLE
8 General Description:
9 This bill amends public notice requirements for a local political subdivision that
10 imposes an impact fee and directs a local government entity to refund an impact fee
11 subject to certain circumstances.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . amends public notice requirements;
16 . directs a local government entity to refund an impact fee if a court ruling is
17 consistent with an advisory opinion issued by the Office of Property Rights
18 Ombudsman on the impact fee; and
19 . makes technical corrections.
20 Monies Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 This bill provides an effective date.
24 Utah Code Sections Affected:
25 AMENDS:
26 10-9a-305, as last amended by Laws of Utah 2009, Chapters 181 and 286
27 10-9a-510, as last amended by Laws of Utah 2009, Chapters 181 and 225
28 11-36-102, as last amended by Laws of Utah 2009, Chapters 181, 286, and 323
29 11-36-201, as last amended by Laws of Utah 2009, Chapters 181, 188, 286, and 323

30 13-43-206, as last amended by Laws of Utah 2008, Chapters 3, 250, and 382
31 17-27a-305, as last amended by Laws of Utah 2009, Chapters 181 and 286
32 17-27a-509, as last amended by Laws of Utah 2009, Chapters 181 and 225
33 17B-1-118, as enacted by Laws of Utah 2009, Chapter 181
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 10-9a-305 is amended to read:
37 10-9a-305. Other entities required to conform to municipality's land use
38 ordinances -- Exceptions -- School districts and charter schools -- Submission of
39 development plan and schedule.
40 (1) (a) Each county, municipality, school district, charter school, local district, special
41 service district, and political subdivision of the state shall conform to any applicable land use
42 ordinance of any municipality when installing, constructing, operating, or otherwise using any
43 area, land, or building situated within that municipality.
44 (b) In addition to any other remedies provided by law, when a municipality's land use
45 ordinance is violated or about to be violated by another political subdivision, that municipality
46 may institute an injunction, mandamus, abatement, or other appropriate action or proceeding
47 to prevent, enjoin, abate, or remove the improper installation, improvement, or use.
48 (2) (a) Notwithstanding Subsection (1), a public transit district under Title 17B,
49 Chapter 2a, Part 8, Public Transit District Act, is not required to conform to any applicable
50 land use ordinance of a municipality located within the boundaries of a county of the first
51 class when constructing a:
52 (i) rail fixed guideway public transit facility that extends across two or more counties;
53 or
54 (ii) structure that serves a rail fixed guideway public transit facility that extends across
55 two or more counties, including:
56 (A) platforms;
57 (B) passenger terminals or stations;

58 (C) park and ride facilities;
59 (D) maintenance facilities;
60 (E) all related utility lines, roadways, and other facilities serving the public transit
61 facility; or
62 (F) other auxiliary facilities.
63 (b) The exemption from municipal land use ordinances under this Subsection (2) does
64 not extend to any property not necessary for the construction or operation of a rail fixed
65 guideway public transit facility.
66 (c) A municipality located within the boundaries of a county of the first class may not,
67 through an agreement under Title 11, Chapter [3] 13, Interlocal Cooperation Act, require a
68 public transit district under Title 17B, Chapter 2a, Part 8, Public Transit District Act, to obtain
69 approval from the municipality prior to constructing a:
70 (i) rail fixed guideway public transit facility that extends across two or more counties;
71 or
72 (ii) structure that serves a rail fixed guideway public transit facility that extends across
73 two or more counties, including:
74 (A) platforms;
75 (B) passenger terminals or stations;
76 (C) park and ride facilities;
77 (D) maintenance facilities;
78 (E) all related utility lines, roadways, and other facilities serving the public transit
79 facility; or
80 (F) other auxiliary facilities.
81 (3) (a) Except as provided in Subsection (4), a school district or charter school is
82 subject to a municipality's land use ordinances.
83 (b) (i) Notwithstanding Subsection (4), a municipality may:
84 (A) subject a charter school to standards within each zone pertaining to setback,
85 height, bulk and massing regulations, off-site parking, curb cut, traffic circulation, and

86 construction staging; and
87 (B) impose regulations upon the location of a project that are necessary to avoid
88 unreasonable risks to health or safety, as provided in Subsection (4)(f).
89 (ii) The standards to which a municipality may subject a charter school under
90 Subsection (3)(b)(i) shall be objective standards only and may not be subjective.
91 (iii) Except as provided in Subsection (8)(d), the only basis upon which a municipality
92 may deny or withhold approval of a charter school's land use application is the charter school's
93 failure to comply with a standard imposed under Subsection (3)(b)(i).
94 (iv) Nothing in Subsection (3)(b)(iii) may be construed to relieve a charter school of
95 an obligation to comply with a requirement of an applicable building or safety code to which it
96 is otherwise obligated to comply.
97 (4) A municipality may not:
98 (a) impose requirements for landscaping, fencing, aesthetic considerations,
99 construction methods or materials, additional building inspections, municipal building codes,
100 building use for educational purposes, or the placement or use of temporary classroom
101 facilities on school property;
102 (b) except as otherwise provided in this section, require a school district or charter
103 school to participate in the cost of any roadway or sidewalk, or a study on the impact of a
104 school on a roadway or sidewalk, that is not reasonably necessary for the safety of school
105 children and not located on or contiguous to school property, unless the roadway or sidewalk
106 is required to connect an otherwise isolated school site to an existing roadway;
107 (c) require a district or charter school to pay fees not authorized by this section;
108 (d) provide for inspection of school construction or assess a fee or other charges for
109 inspection, unless the school district or charter school is unable to provide for inspection by an
110 inspector, other than the project architect or contractor, who is qualified under criteria
111 established by the state superintendent;
112 (e) require a school district or charter school to pay any impact fee for an improvement
113 project unless the impact fee is imposed as provided in Title 11, Chapter 36, Impact Fees Act;

114 or
115 (f) impose regulations upon the location of an educational facility except as necessary
116 to avoid unreasonable risks to health or safety.
117 (5) Subject to Section 53A-20-108 , a school district or charter school shall coordinate
118 the siting of a new school with the municipality in which the school is to be located, to:
119 (a) avoid or mitigate existing and potential traffic hazards, including consideration of
120 the impacts between the new school and future highways; and
121 (b) maximize school, student, and site safety.
122 (6) Notwithstanding Subsection (4)(d), a municipality may, at its discretion:
123 (a) provide a walk-through of school construction at no cost and at a time convenient
124 to the district or charter school; and
125 (b) provide recommendations based upon the walk-through.
126 (7) (a) Notwithstanding Subsection (4)(d), a school district or charter school shall use:
127 (i) a municipal building inspector;
128 (ii) (A) for a school district, a school district building inspector from that school
129 district; or
130 (B) for a charter school, a school district building inspector from the school district in
131 which the charter school is located; or
132 (iii) an independent, certified building inspector who is:
133 (A) not an employee of the contractor;
134 (B) approved by:
135 (I) a municipal building inspector; or
136 (II) (Aa) for a school district, a school district building inspector from that school
137 district; or
138 (Bb) for a charter school, a school district building inspector from the school district
139 in which the charter school is located; and
140 (C) licensed to perform the inspection that the inspector is requested to perform.
141 (b) The approval under Subsection (7)(a)(iii)(B) may not be unreasonably withheld.

142 (c) If a school district or charter school uses a school district or independent building
143 inspector under Subsection (7)(a)(ii) or (iii), the school district or charter school shall submit
144 to the state superintendent of public instruction and municipal building official, on a monthly
145 basis during construction of the school building, a copy of each inspection certificate
146 regarding the school building.
147 (8) (a) A charter school shall be considered a permitted use in all zoning districts
148 within a municipality.
149 (b) Each land use application for any approval required for a charter school, including
150 an application for a building permit, shall be processed on a first priority basis.
151 (c) Parking requirements for a charter school may not exceed the minimum parking
152 requirements for schools or other institutional public uses throughout the municipality.
153 (d) If a municipality has designated zones for a sexually oriented business, or a
154 business which sells alcohol, a charter school may be prohibited from a location which would
155 otherwise defeat the purpose for the zone unless the charter school provides a waiver.
156 (e) (i) A school district or a charter school may seek a certificate authorizing
157 permanent occupancy of a school building from:
158 (A) the state superintendent of public instruction, as provided in Subsection
159 53A-20-104 (3), if the school district or charter school used an independent building inspector
160 for inspection of the school building; or
161 (B) a municipal official with authority to issue the certificate, if the school district or
162 charter school used a municipal building inspector for inspection of the school building.
163 (ii) A school district may issue its own certificate authorizing permanent occupancy of
164 a school building if it used its own building inspector for inspection of the school building,
165 subject to the notification requirement of Subsection 53A-20-104 (3)(a)(ii).
166 (iii) A charter school may seek a certificate authorizing permanent occupancy of a
167 school building from a school district official with authority to issue the certificate, if the
168 charter school used a school district building inspector for inspection of the school building.
169 (iv) A certificate authorizing permanent occupancy issued by the state superintendent

170 of public instruction under Subsection 53A-20-104 (3) or a school district official with
171 authority to issue the certificate shall be considered to satisfy any municipal requirement for
172 an inspection or a certificate of occupancy.
173 (9) (a) A specified public agency intending to develop its land shall submit to the land
174 use authority a development plan and schedule:
175 (i) as early as practicable in the development process, but no later than the
176 commencement of construction; and
177 (ii) with sufficient detail to enable the land use authority to assess:
178 (A) the specified public agency's compliance with applicable land use ordinances;
179 (B) the demand for public facilities listed in Subsections 11-36-102 [(13)](14)(a), (b),
180 (c), (d), (e), and (g) caused by the development;
181 (C) the amount of any applicable fee listed in Subsection 10-9a-510 (5);
182 (D) any credit against an impact fee; and
183 (E) the potential for waiving an impact fee.
184 (b) The land use authority shall respond to a specified public agency's submission
185 under Subsection (9)(a) with reasonable promptness in order to allow the specified public
186 agency to consider information the municipality provides under Subsection (9)(a)(ii) in the
187 process of preparing the budget for the development.
188 (10) Nothing in this section may be construed to modify or supersede Section
189 10-9a-304 .
190 Section 2. Section 10-9a-510 is amended to read:
191 10-9a-510. Limit on fees -- Requirement to itemize fees.
192 (1) A municipality may not impose or collect a fee for reviewing or approving the
193 plans for a commercial or residential building that exceeds the lesser of:
194 (a) the actual cost of performing the plan review; and
195 (b) 65% of the amount the municipality charges for a building permit fee for that
196 building.
197 (2) Subject to Subsection (1), a municipality may impose and collect only a nominal

198 fee for reviewing and approving identical plans.
199 (3) A municipality may not impose or collect a hookup fee that exceeds the reasonable
200 cost of installing and inspecting the pipe, line, meter, and appurtenance to connect to the
201 municipal water, sewer, storm water, power, or other utility system.
202 (4) A municipality may not impose or collect:
203 (a) a land use application fee that exceeds the reasonable cost of processing the
204 application; or
205 (b) an inspection or review fee that exceeds the reasonable cost of performing the
206 inspection or review.
207 (5) Upon the request of an applicant or an owner of residential property, the
208 municipality shall itemize each fee that the municipality imposes on the applicant or on the
209 residential property, respectively, showing the basis of each calculation for each fee imposed.
210 (6) A municipality may not impose on or collect from a public agency any fee
211 associated with the public agency's development of its land other than:
212 (a) subject to Subsection (4), a fee for a development service that the public agency
213 does not itself provide;
214 (b) subject to Subsection (3), a hookup fee; and
215 (c) an impact fee for a public facility listed in Subsection 11-36-102 [(13)](14)(a), (b),
216 (c), (d), (e), or (g), subject to any applicable credit under Subsection 11-36-202 (2)(b).
217 Section 3. Section 11-36-102 is amended to read:
218 11-36-102. Definitions.
219 As used in this chapter:
220 (1) "Building permit fee" means the fees charged to enforce the uniform codes adopted
221 pursuant to Title 58, Chapter 56, Utah Uniform Building Standards Act, that are not greater
222 than the fees indicated in the appendix to the International Building Code.
223 (2) "Capital facilities plan" means the plan required by Section 11-36-201 .
224 (3) "Charter school" includes:
225 (a) an operating charter school;

226 (b) an applicant for a charter school whose application has been approved by a
227 chartering entity as provided in Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act;
228 and
229 (c) an entity that is working on behalf of a charter school or approved charter applicant
230 to develop or construct a charter school building.
231 (4) "Development activity" means any construction or expansion of a building,
232 structure, or use, any change in use of a building or structure, or any changes in the use of land
233 that creates additional demand and need for public facilities.
234 (5) "Development approval" means:
235 (a) except as provided in Subsection (5)(b), any written authorization from a local
236 political subdivision that authorizes the commencement of development activity; [or]
237 (b) development activity, for a public entity that may develop without written
238 authorization from a local political subdivision[.];
239 (c) a written agreement between a local political subdivision and a public water
240 supplier, as defined in Section 73-1-4 , or a private water company:
241 (i) to reserve:
242 (A) a water right;
243 (B) system capacity; or
244 (C) a distribution facility; or
245 (ii) to deliver for new development:
246 (A) culinary water; or
247 (B) irrigation water; or
248 (d) a written agreement between a local political subdivision and a sanitary sewer
249 authority, as defined in Section 10-9a-103 :
250 (i) to reserve:
251 (A) sewer collection capacity; or
252 (B) treatment capacity; or
253 (ii) to provide sewer service for a new development.

254 (6) "Enactment" means:
255 (a) a municipal ordinance, for a municipality;
256 (b) a county ordinance, for a county; and
257 (c) a governing board resolution, for a local district, special service district, or private
258 entity.
259 (7) "Encumber" means:
260 (a) a pledge to retire a debt; or
261 (b) an allocation to a current purchase order or contract.
262 [(7)] (8) "Hookup fee" means a fee for the installation and inspection of any pipe, line,
263 meter, or appurtenance to connect to a gas, water, sewer, storm water, power, or other utility
264 system of a municipality, county, local district, special service district, or private entity.
265 [(8)] (9) (a) "Impact fee" means a payment of money imposed upon new development
266 activity as a condition of development approval to mitigate the impact of the new development
267 on public facilities.
268 (b) "Impact fee" does not mean a tax, a special assessment, a building permit fee, a
269 hookup fee, a fee for project improvements, or other reasonable permit or application fee.
270 [(9)] (10) (a) "Local political subdivision" means a county, a municipality, a local
271 district under Title 17B, Limited Purpose Local Government Entities - Local Districts, or a
272 special service district under Title 17D, Chapter 1, Special Service District Act.
273 (b) "Local political subdivision" does not mean a school district, whose impact fee
274 activity is governed by Section 53A-20-100.5 .
275 [(10)] (11) "Private entity" means an entity with private ownership that provides
276 culinary water that is required to be used as a condition of development.
277 [(11)] (12) (a) "Project improvements" means site improvements and facilities that
278 are:
279 (i) planned and designed to provide service for development resulting from a
280 development activity;
281 (ii) necessary for the use and convenience of the occupants or users of development

282 resulting from a development activity; and
283 (iii) not identified or reimbursed as a system improvement.
284 (b) "Project improvements" does not mean system improvements.
285 [(12)] (13) "Proportionate share" means the cost of public facility improvements that
286 are roughly proportionate and reasonably related to the service demands and needs of any
287 development activity.
288 [(13)] (14) "Public facilities" means only the following capital facilities that have a
289 life expectancy of 10 or more years and are owned or operated by or on behalf of a local
290 political subdivision or private entity:
291 (a) water rights and water supply, treatment, and distribution facilities;
292 (b) wastewater collection and treatment facilities;
293 (c) storm water, drainage, and flood control facilities;
294 (d) municipal power facilities;
295 (e) roadway facilities;
296 (f) parks, recreation facilities, open space, and trails; and
297 (g) public safety facilities.
298 [(14)] (15) (a) "Public safety facility" means:
299 (i) a building constructed or leased to house police, fire, or other public safety entities;
300 or
301 (ii) a fire suppression vehicle costing in excess of $500,000.
302 (b) "Public safety facility" does not mean a jail, prison, or other place of involuntary
303 incarceration.
304 [(15)] (16) (a) "Roadway facilities" means streets or roads that have been designated
305 on an officially adopted subdivision plat, roadway plan, or general plan of a political
306 subdivision, together with all necessary appurtenances.
307 (b) "Roadway facilities" includes associated improvements to federal or state
308 roadways only when the associated improvements:
309 (i) are necessitated by the new development; and

310 (ii) are not funded by the state or federal government.
311 (c) "Roadway facilities" does not mean federal or state roadways.
312 [(16)] (17) (a) "Service area" means a geographic area designated by a local political
313 subdivision on the basis of sound planning or engineering principles in which a defined set of
314 public facilities provide service within the area.
315 (b) "Service area" may include the entire local political subdivision.
316 [(17)] (18) "Specified public agency" means:
317 (a) the state;
318 (b) a school district; or
319 (c) a charter school.
320 [(18)] (19) (a) "System improvements" means:
321 (i) existing public facilities that are:
322 (A) identified in the impact fee analysis under Section 11-36-201 ; and
323 (B) designed to provide services to service areas within the community at large; and
324 (ii) future public facilities identified in the impact fee analysis under Section
325 11-36-201 that are intended to provide services to service areas within the community at large.
326 (b) "System improvements" does not mean project improvements.
327 Section 4. Section 11-36-201 is amended to read:
328 11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Notice of plan --
329 Summary -- Exemptions.
330 (1) (a) (i) Each local political subdivision and private entity shall comply with the
331 requirements of this chapter before establishing or modifying any impact fee.
332 (ii) A fee that meets the definition of impact fee under Section 11-36-102 is an impact
333 fee subject to this chapter, regardless of what term the local political subdivision or private
334 entity uses to refer to the fee.
335 (iii) A local political subdivision or private entity may not avoid application of this
336 chapter to a fee that meets the definition of an impact fee under Section 11-36-102 by
337 referring to the fee by another name.

338 (b) A local political subdivision may not:
339 (i) establish any new impact fees that are not authorized by this chapter; or
340 (ii) impose or charge any other fees as a condition of development approval unless
341 those fees are a reasonable charge for the service provided.
342 (c) Each local political subdivision shall ensure that the impact fees comply with the
343 requirements of this chapter.
344 (d) (i) Each local political subdivision and private entity shall ensure that each impact
345 fee collected on or after May 12, 2009 complies with the provisions of this chapter, even if the
346 impact fee was imposed but not paid before May 12, 2009.
347 (ii) Subsection (1)(d)(i) does not apply to an impact fee that was paid before May 12,
348 2009.
349 (2) (a) Before imposing impact fees, each local political subdivision and private entity
350 shall, except as provided in Subsection (2)(f), prepare a capital facilities plan to determine the
351 public facilities required to serve development resulting from new development activity.
352 (b) (i) As used in this Subsection (2)(b):
353 (A) (I) "Affected entity" means each county, municipality, local district under Title
354 17B, Limited Purpose Local Government Entities - Local Districts, special service district
355 under Title 17D, Chapter 1, Special Service District Act, school district, interlocal cooperation
356 entity established under Chapter 13, Interlocal Cooperation Act, and specified public utility:
357 (Aa) whose services or facilities are likely to require expansion or significant
358 modification because of the facilities proposed in the proposed capital facilities plan; or
359 (Bb) that has filed with the local political subdivision or private entity a copy of the
360 general or long-range plan of the county, municipality, local district, special service district,
361 school district, interlocal cooperation entity, or specified public utility.
362 (II) "Affected entity" does not include the local political subdivision or private entity
363 that is required under this Subsection (2) to provide notice.
364 (B) "Specified public utility" means an electrical corporation, gas corporation, or
365 telephone corporation, as those terms are defined in Section 54-2-1 .

366 (ii) Before preparing or amending a capital facilities plan, each local political
367 subdivision and each private entity shall provide written notice, as provided in this Subsection
368 (2)(b), of its intent to prepare or amend a capital facilities plan.
369 (iii) Each notice under Subsection (2)(b)(ii) shall:
370 (A) indicate that the local political subdivision or private entity intends to prepare or
371 amend a capital facilities plan;
372 (B) describe or provide a map of the geographic area where the proposed capital
373 facilities will be located; and
374 [(C) be:]
375 [(I) sent to each county in whose unincorporated area and each municipality in whose
376 boundaries is located the land on which the proposed facilities will be located;]
377 [(II) sent to each affected entity;]
378 [(III) sent to the Automated Geographic Reference Center created in Section
379 63F-1-506 ;]
380 [(IV) sent to the association of governments, established pursuant to an interlocal
381 agreement under Chapter 13, Interlocal Cooperation Act, in which the facilities are proposed
382 to be located;]
383 [(V) (Aa) placed] (C) subject to Subsection (2)(b)(iv), be posted on the Utah Public
384 Notice Website created under Section 63F-1-701 [, if the local political subdivision:].
385 [(Ii) is required under Subsection 52-4-203 (3) to use that website to provide public
386 notice of a meeting; or]
387 [(IIii) voluntarily chooses to place notice on that website despite not being required to
388 do so under Subsection (2)(b)(iii)(C)(V)(Aa)(Ii); or]
389 [(Bb) sent to the state planning coordinator appointed under Section 63J-4-202 , if the
390 local political subdivision does not provide notice on the Utah Public Notice Website under
391 Subsection (2)(b)(iii)(C)(V)(Aa) or for a private entity;]
392 [(VI) sent to the registered agent of the Utah Home Builders Association;]
393 [(VII) sent to the registered agent of the Utah Association of Realtors; and]

394 [(VIII) sent to the registered agent of the Utah Chapter of the Associated General
395 Contractors of America; and]
396 [(D) with respect to the notice to an affected entity, invite the affected entity to
397 provide information for the local political subdivision or private entity to consider in the
398 process of preparing, adopting, and implementing or amending a capital facilities plan
399 concerning:]
400 [(I) impacts that the facilities proposed in the capital facilities plan may have on the
401 affected entity; and]
402 [(II) facilities or uses of land that the affected entity is planning or considering that
403 may conflict with the facilities proposed in the capital facilities plan.]
404 (iv) For a private entity required to post notice on the Utah Public Notice Website
405 under Subsection (2)(b)(iii):
406 (A) the private entity shall give notice to the general purpose local government in
407 which the private entity's primary business office is located; and
408 (B) the general purpose local government described in Subsection (2)(b)(iv)(A) shall
409 post the notice on the Utah Public Notice Website.
410 (c) The capital facilities plan shall identify:
411 (i) demands placed upon existing public facilities by new development activity; and
412 (ii) the proposed means by which the local political subdivision will meet those
413 demands.
414 (d) A municipality or county need not prepare a separate capital facilities plan if the
415 general plan required by Section 10-9a-401 or 17-27a-401 , respectively, contains the elements
416 required by Subsection (2)(c).
417 (e) (i) If a local political subdivision chooses to prepare an independent capital
418 facilities plan rather than include a capital facilities element in the general plan, the local
419 political subdivision shall[: (A) before preparing or contracting to prepare or amending or
420 contracting to amend the independent capital facilities plan, send written notice: (I) to: (Aa)
421 the registered agent of the Utah Home Builders Association; (Bb) the registered agent of the

422 Utah Association of Realtors; and (Cc) the registered agent of the Utah Chapter of the
423 Associated General Contractors of America; (II) stating the local political subdivision's intent
424 to prepare or amend a capital facilities plan; and (III) inviting each of the notice recipients to
425 participate in the preparation of or amendment to the capital facilities plan; and (B)] before
426 adopting or amending the capital facilities plan:
427 [(I)] (A) give public notice of the plan or amendment according to Subsection
428 (2)(e)(ii)(A), (B), or (C), as the case may be, at least 10 days before the date of the public
429 hearing;
430 [(II)] (B) make a copy of the plan or amendment, together with a summary designed to
431 be understood by a lay person, available to the public;
432 [(III)] (C) place a copy of the plan or amendment and summary in each public library
433 within the local political subdivision; and
434 [(IV)] (D) hold a public hearing to hear public comment on the plan or amendment.
435 (ii) With respect to the public notice required under Subsection (2)(e)(i)[(B)(I)](A):
436 (A) each municipality shall comply with the notice and hearing requirements of, and,
437 except as provided in Subsection 11-36-401 (4)(f), receive the protections of Sections
438 10-9a-205 and 10-9a-801 and Subsection 10-9a-502 (2);
439 (B) each county shall comply with the notice and hearing requirements of, and, except
440 as provided in Subsection 11-36-401 (4)(f), receive the protections of Sections 17-27a-205 and
441 17-27a-801 and Subsection 17-27a-502 (2); and
442 (C) each local district, special service district, and private entity shall comply with the
443 notice and hearing requirements of, and receive the protections of, Section 17B-1-111 .
444 (iii) Nothing contained in this Subsection (2)(e) or in the subsections referenced in
445 Subsections (2)(e)(ii)(A) and (B) may be construed to require involvement by a planning
446 commission in the capital facilities planning process.
447 (f) (i) A local political subdivision with a population or serving a population of less
448 than 5,000 as of the last federal census need not comply with the capital facilities plan
449 requirements of this part, but shall ensure that:

450 (A) the impact fees that the local political subdivision imposes are based upon a
451 reasonable plan; and
452 (B) each applicable notice required by this chapter is given.
453 (ii) Subsection (2)(f)(i) does not apply to private entities.
454 (3) In preparing the plan, each local political subdivision shall generally consider all
455 revenue sources, including impact fees and anticipated dedication of system improvements, to
456 finance the impacts on system improvements.
457 (4) A local political subdivision or private entity may only impose impact fees on
458 development activities when its plan for financing system improvements establishes that
459 impact fees are necessary to achieve an equitable allocation to the costs borne in the past and
460 to be borne in the future, in comparison to the benefits already received and yet to be received.
461 (5) (a) Subject to the notice requirement of Subsection (5)(b), each local political
462 subdivision and private entity intending to impose an impact fee shall prepare a written
463 analysis of each impact fee that:
464 (i) identifies the anticipated impact on or consumption of any existing capacity of a
465 public facility by the anticipated development activity;
466 (ii) identifies the anticipated impact on system improvements required by the
467 anticipated development activity to maintain the established level of service for each public
468 facility;
469 (iii) demonstrates how those anticipated impacts are reasonably related to the
470 anticipated development activity;
471 (iv) estimates the proportionate share of:
472 (A) the costs for existing capacity that will be recouped; and
473 (B) the costs of impacts on system improvements that are reasonably related to the
474 new development activity; and
475 (v) based upon those factors and the requirements of this chapter, identifies how the
476 impact fee was calculated.
477 (b) (i) Before preparing or contracting to prepare the written analysis required under

478 Subsection (5)(a), each local political subdivision or private entity shall [provide: (i) public
479 notice; and (ii) written notice: (A) to: (I) the registered agent of the Utah Home Builders
480 Association; (II) the registered agent of the Utah Association of Realtors; and (III) the
481 registered agent of the Utah Chapter of the Associated General Contractors of America; (B)]
482 subject to Subsection (5)(b)(ii), post a public notice on the Utah Public Notice Website created
483 under Section 63F-1-701 indicating the local political subdivision or private entity's intent to
484 prepare or contract to prepare a written analysis of an impact fee[; and].
485 [(C) inviting each notice recipient to participate in the preparation of the written
486 analysis.]
487 (ii) For a private entity required to post notice on the Utah Public Notice Website
488 under Subsection (5)(b)(i):
489 (A) the private entity shall give notice to the general purpose local government in
490 which the private entity's primary business office is located; and
491 (B) the general purpose local government described in Subsection (5)(b)(ii)(A) shall
492 post the notice on the Utah Public Notice Website.
493 (c) In analyzing whether or not the proportionate share of the costs of public facilities
494 are reasonably related to the new development activity, the local political subdivision or
495 private entity, as the case may be, shall identify, if applicable:
496 (i) the cost of each existing public facility that has excess capacity to serve the
497 anticipated development resulting from the new development activity;
498 (ii) the cost of system improvements for each public facility;
499 (iii) other than impact fees, the manner of financing each public facility, such as user
500 charges, special assessments, bonded indebtedness, general taxes, or federal grants;
501 (iv) the relative extent to which development activity will contribute to financing the
502 excess capacity of and system improvements for each existing public facility, by such means
503 as user charges, special assessments, or payment from the proceeds of general taxes;
504 (v) the relative extent to which development activity will contribute to the cost of
505 existing public facilities and system improvements in the future;

506 (vi) the extent to which the development activity is entitled to a credit against impact
507 fees because the development activity will dedicate system improvements or public facilities
508 that will offset the demand for system improvements, inside or outside the proposed
509 development;
510 (vii) extraordinary costs, if any, in servicing the newly developed properties; and
511 (viii) the time-price differential inherent in fair comparisons of amounts paid at
512 different times.
513 (d) Each local political subdivision and private entity that prepares a written analysis
514 under this Subsection (5) shall also prepare a summary of the written analysis, designed to be
515 understood by a lay person.
516 (6) Each local political subdivision that adopts an impact fee enactment under Section
517 11-36-202 on or after July 1, 2000 shall, at least 10 days before adopting the enactment:
518 (a) submit a copy of the written analysis required by Subsection (5)(a) and a copy of
519 the summary required by Subsection (5)(d) to[: (i)] each public library within the local
520 political subdivision; and
521 [(ii) the registered agent of the Utah Home Builders Association;]
522 [(iii) the registered agent of the Utah Association of Realtors; and]
523 [(iv) the registered agent of the Utah Chapter of the Associated General Contractors of
524 America; and]
525 (b) obtain a written certification from the person or entity that prepares the written
526 analysis which states as follows:
527 "I certify that the attached impact fee analysis:
528 1. includes only the costs for qualifying public facilities that are:
529 a. allowed under the Impact Fees Act; and
530 b. projected to be incurred or encumbered within six years after each
531 impact fee is paid;
532 2. contains no cost for operation and maintenance of public facilities;
533 3. offsets costs with grants or other alternate sources of payment;

534 4. does not include costs for qualifying public facilities that will raise the level
535 of service for the facilities, through impact fees, above the level of service that
536 is supported by existing residents; and
537 5. complies in each and every relevant respect with the Impact Fees Act."
538 (7) Nothing in this chapter may be construed to repeal or otherwise eliminate any
539 impact fee in effect on the effective date of this chapter that is pledged as a source of revenues
540 to pay bonded indebtedness that was incurred before the effective date of this chapter.
541 Section 5. Section 13-43-206 is amended to read:
542 13-43-206. Advisory opinion -- Process.
543 (1) A request for an advisory opinion under Section 13-43-205 shall be:
544 (a) filed with the Office of the Property Rights Ombudsman; and
545 (b) accompanied by a filing fee of $150.
546 (2) The Office of the Property Rights Ombudsman may establish policies providing
547 for partial fee waivers for a person who is financially unable to pay the entire fee.
548 (3) A person requesting an advisory opinion need not exhaust administrative remedies,
549 including remedies described under Section 10-9a-801 or 17-27a-801 , before requesting an
550 advisory opinion.
551 (4) The Office of the Property Rights Ombudsman shall:
552 (a) deliver notice of the request to opposing parties indicated in the request;
553 (b) inquire of all parties if there are other necessary parties to the dispute; and
554 (c) deliver notice to all necessary parties.
555 (5) If a governmental entity is an opposing party, the Office of the Property Rights
556 Ombudsman shall deliver the request in the manner provided for in Section 63G-7-401 .
557 (6) (a) The Office of the Property Rights Ombudsman shall promptly determine if the
558 parties can agree to a neutral third party to issue an advisory opinion.
559 (b) If no agreement can be reached within four business days after notice is delivered
560 pursuant to Subsections (4) and (5), the Office of the Property Rights Ombudsman shall
561 appoint a neutral third party to issue an advisory opinion.

562 (7) All parties that are the subject of the request for advisory opinion shall:
563 (a) share equally in the cost of the advisory opinion; and
564 (b) provide financial assurance for payment that the neutral third party requires.
565 (8) The neutral third party shall comply with the provisions of Section 78B-11-109 ,
566 and shall promptly:
567 (a) seek a response from all necessary parties to the issues raised in the request for
568 advisory opinion;
569 (b) investigate and consider all responses; and
570 (c) issue a written advisory opinion within 15 business days after the appointment of
571 the neutral third party under Subsection (6)(b), unless:
572 (i) the parties agree to extend the deadline; or
573 (ii) the neutral third party determines that the matter is complex and requires
574 additional time to render an opinion, which may not exceed 30 calendar days.
575 (9) An advisory opinion shall include a statement of the facts and law supporting the
576 opinion's conclusions.
577 (10) (a) Copies of any advisory opinion issued by the Office of the Property Rights
578 Ombudsman shall be delivered as soon as practicable to all necessary parties.
579 (b) A copy of the advisory opinion shall be delivered to the government entity in the
580 manner provided for in Section 63G-7-401 .
581 (11) An advisory opinion issued by the Office of the Property Rights Ombudsman is
582 not binding on any party to, nor admissible as evidence in, a dispute involving land use law
583 except as provided in Subsection (12).
584 (12) (a) [If] Subject to Subsection (12)(d), if the same issue that is the subject of an
585 advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated
586 on the same facts and circumstances and is resolved consistent with the advisory opinion[,]:
587 (i) the substantially prevailing party on that cause of action:
588 (A) may collect reasonable attorney fees and court costs pertaining to the development
589 of that cause of action from the date of the delivery of the advisory opinion to the date of the

590 court's resolution[.]; and
591 (B) shall be refunded an impact fee held to be in violation of Title 11, Chapter 36,
592 Impact Fees Act, based on the difference between the impact fee paid and what the impact fee
593 should have been if the government entity had correctly calculated the impact fee; and
594 (ii) in accordance with Subsection (12)(b), a government entity shall refund an impact
595 fee held to be in violation of Title 11, Chapter 36, Impact Fees Act, to the person who was in
596 record title of the property on the day on which the impact fee for the property was paid if:
597 (A) the impact fee was paid on or after the day on which the advisory opinion on the
598 impact fee was issued but before the day on which the final court ruling on the impact fee is
599 issued; and
600 (B) the person described in Subsection (12)(a)(ii) requests the impact fee refund from
601 the government entity within 30 days after the day on which the court issued the final ruling
602 on the impact fee.
603 (b) A government entity subject to Subsection (12)(a)(ii) shall refund the impact fee
604 based on the difference between the impact fee paid and what the impact fee should have been
605 if the government entity had correctly calculated the impact fee.
606 [(b)] (c) Nothing in this Subsection (12) is intended to create any new cause of action
607 under land use law.
608 (d) Subsection (12)(a) does not apply unless the resolution described in Subsection
609 (12)(a) is final.
610 (13) Unless filed by the local government, a request for an advisory opinion under
611 Section 13-43-205 does not stay the progress of a land use application, or the effect of a land
612 use decision.
613 Section 6. Section 17-27a-305 is amended to read:
614 17-27a-305. Other entities required to conform to county's land use ordinances
615 -- Exceptions -- School districts and charter schools -- Submission of development plan
616 and schedule.
617 (1) (a) Each county, municipality, school district, charter school, local district, special

618 service district, and political subdivision of the state shall conform to any applicable land use
619 ordinance of any county when installing, constructing, operating, or otherwise using any area,
620 land, or building situated within the unincorporated portion of the county.
621 (b) In addition to any other remedies provided by law, when a county's land use
622 ordinance is violated or about to be violated by another political subdivision, that county may
623 institute an injunction, mandamus, abatement, or other appropriate action or proceeding to
624 prevent, enjoin, abate, or remove the improper installation, improvement, or use.
625 (2) (a) Notwithstanding Subsection (1), a public transit district under Title 17B,
626 Chapter 2a, Part 8, Public Transit District Act, is not required to conform to any applicable
627 land use ordinance of a county of the first class when constructing a:
628 (i) rail fixed guideway public transit facility that extends across two or more counties;
629 or
630 (ii) structure that serves a rail fixed guideway public transit facility that extends across
631 two or more counties, including:
632 (A) platforms;
633 (B) passenger terminals or stations;
634 (C) park and ride facilities;
635 (D) maintenance facilities;
636 (E) all related utility lines, roadways, and other facilities serving the public transit
637 facility; or
638 (F) other auxiliary facilities.
639 (b) The exemption from county land use ordinances under this Subsection (2) does not
640 extend to any property not necessary for the construction or operation of a rail fixed guideway
641 public transit facility.
642 (c) A county of the first class may not, through an agreement under Title 11, Chapter
643 13, Interlocal Cooperation Act, require a public transit district under Title 17B, Chapter 2a,
644 Part 8, Public Transit District Act, to obtain approval from the county prior to constructing a:
645 (i) rail fixed guideway public transit facility that extends across two or more counties;

646 or
647 (ii) structure that serves a rail fixed guideway public transit facility that extends across
648 two or more counties, including:
649 (A) platforms;
650 (B) passenger terminals or stations;
651 (C) park and ride facilities;
652 (D) maintenance facilities;
653 (E) all related utility lines, roadways, and other facilities serving the public transit
654 facility; or
655 (F) other auxiliary facilities.
656 (3) (a) Except as provided in Subsection (4), a school district or charter school is
657 subject to a county's land use ordinances.
658 (b) (i) Notwithstanding Subsection (4), a county may:
659 (A) subject a charter school to standards within each zone pertaining to setback,
660 height, bulk and massing regulations, off-site parking, curb cut, traffic circulation, and
661 construction staging; and
662 (B) impose regulations upon the location of a project that are necessary to avoid
663 unreasonable risks to health or safety, as provided in Subsection (4)(f).
664 (ii) The standards to which a county may subject a charter school under Subsection
665 (3)(b)(i) shall be objective standards only and may not be subjective.
666 (iii) Except as provided in Subsection (8)(d), the only basis upon which a county may
667 deny or withhold approval of a charter school's land use application is the charter school's
668 failure to comply with a standard imposed under Subsection (3)(b)(i).
669 (iv) Nothing in Subsection (3)(b)(iii) may be construed to relieve a charter school of
670 an obligation to comply with a requirement of an applicable building or safety code to which it
671 is otherwise obligated to comply.
672 (4) A county may not:
673 (a) impose requirements for landscaping, fencing, aesthetic considerations,

674 construction methods or materials, additional building inspections, county building codes,
675 building use for educational purposes, or the placement or use of temporary classroom
676 facilities on school property;
677 (b) except as otherwise provided in this section, require a school district or charter
678 school to participate in the cost of any roadway or sidewalk, or a study on the impact of a
679 school on a roadway or sidewalk, that is not reasonably necessary for the safety of school
680 children and not located on or contiguous to school property, unless the roadway or sidewalk
681 is required to connect an otherwise isolated school site to an existing roadway;
682 (c) require a district or charter school to pay fees not authorized by this section;
683 (d) provide for inspection of school construction or assess a fee or other charges for
684 inspection, unless the school district or charter school is unable to provide for inspection by an
685 inspector, other than the project architect or contractor, who is qualified under criteria
686 established by the state superintendent;
687 (e) require a school district or charter school to pay any impact fee for an improvement
688 project unless the impact fee is imposed as provided in Title 11, Chapter 36, Impact Fees Act;
689 or
690 (f) impose regulations upon the location of an educational facility except as necessary
691 to avoid unreasonable risks to health or safety.
692 (5) Subject to Section 53A-20-108 , a school district or charter school shall coordinate
693 the siting of a new school with the county in which the school is to be located, to:
694 (a) avoid or mitigate existing and potential traffic hazards, including consideration of
695 the impacts between the new school and future highways; and
696 (b) maximize school, student, and site safety.
697 (6) Notwithstanding Subsection (4)(d), a county may, at its discretion:
698 (a) provide a walk-through of school construction at no cost and at a time convenient
699 to the district or charter school; and
700 (b) provide recommendations based upon the walk-through.
701 (7) (a) Notwithstanding Subsection (4)(d), a school district or charter school shall use:

702 (i) a county building inspector;
703 (ii) (A) for a school district, a school district building inspector from that school
704 district; or
705 (B) for a charter school, a school district building inspector from the school district in
706 which the charter school is located; or
707 (iii) an independent, certified building inspector who is:
708 (A) not an employee of the contractor;
709 (B) approved by:
710 (I) a county building inspector; or
711 (II) (Aa) for a school district, a school district building inspector from that school
712 district; or
713 (Bb) for a charter school, a school district building inspector from the school district
714 in which the charter school is located; and
715 (C) licensed to perform the inspection that the inspector is requested to perform.
716 (b) The approval under Subsection (7)(a)(iii)(B) may not be unreasonably withheld.
717 (c) If a school district or charter school uses a school district or independent building
718 inspector under Subsection (7)(a)(ii) or (iii), the school district or charter school shall submit
719 to the state superintendent of public instruction and county building official, on a monthly
720 basis during construction of the school building, a copy of each inspection certificate
721 regarding the school building.
722 (8) (a) A charter school shall be considered a permitted use in all zoning districts
723 within a county.
724 (b) Each land use application for any approval required for a charter school, including
725 an application for a building permit, shall be processed on a first priority basis.
726 (c) Parking requirements for a charter school may not exceed the minimum parking
727 requirements for schools or other institutional public uses throughout the county.
728 (d) If a county has designated zones for a sexually oriented business, or a business
729 which sells alcohol, a charter school may be prohibited from a location which would otherwise

730 defeat the purpose for the zone unless the charter school provides a waiver.
731 (e) (i) A school district or a charter school may seek a certificate authorizing
732 permanent occupancy of a school building from:
733 (A) the state superintendent of public instruction, as provided in Subsection
734 53A-20-104 (3), if the school district or charter school used an independent building inspector
735 for inspection of the school building; or
736 (B) a county official with authority to issue the certificate, if the school district or
737 charter school used a county building inspector for inspection of the school building.
738 (ii) A school district may issue its own certificate authorizing permanent occupancy of
739 a school building if it used its own building inspector for inspection of the school building,
740 subject to the notification requirement of Subsection 53A-20-104 (3)(a)(ii).
741 (iii) A charter school may seek a certificate authorizing permanent occupancy of a
742 school building from a school district official with authority to issue the certificate, if the
743 charter school used a school district building inspector for inspection of the school building.
744 (iv) A certificate authorizing permanent occupancy issued by the state superintendent
745 of public instruction under Subsection 53A-20-104 (3) or a school district official with
746 authority to issue the certificate shall be considered to satisfy any county requirement for an
747 inspection or a certificate of occupancy.
748 (9) (a) A specified public agency intending to develop its land shall submit to the land
749 use authority a development plan and schedule:
750 (i) as early as practicable in the development process, but no later than the
751 commencement of construction; and
752 (ii) with sufficient detail to enable the land use authority to assess:
753 (A) the specified public agency's compliance with applicable land use ordinances;
754 (B) the demand for public facilities listed in Subsections 11-36-102 [(13)](14)(a), (b),
755 (c), (d), (e), and (g) caused by the development;
756 (C) the amount of any applicable fee listed in Subsection 17-27a-509 (5);
757 (D) any credit against an impact fee; and

758 (E) the potential for waiving an impact fee.
759 (b) The land use authority shall respond to a specified public agency's submission
760 under Subsection (9)(a) with reasonable promptness in order to allow the specified public
761 agency to consider information the municipality provides under Subsection (9)(a)(ii) in the
762 process of preparing the budget for the development.
763 (10) Nothing in this section may be construed to modify or supersede Section
764 17-27a-304 .
765 Section 7. Section 17-27a-509 is amended to read:
766 17-27a-509. Limit on fees -- Requirement to itemize fees.
767 (1) A county may not impose or collect a fee for reviewing or approving the plans for a
768 commercial or residential building that exceeds the lesser of:
769 (a) the actual cost of performing the plan review; and
770 (b) 65% of the amount the county charges for a building permit fee for that building.
771 (2) Subject to Subsection (1), a county may impose and collect only a nominal fee for
772 reviewing and approving identical plans.
773 (3) A county may not impose or collect a hookup fee that exceeds the reasonable cost
774 of installing and inspecting the pipe, line, meter, or appurtenance to connect to the county
775 water, sewer, storm water, power, or other utility system.
776 (4) A county may not impose or collect:
777 (a) a land use application fee that exceeds the reasonable cost of processing the
778 application; or
779 (b) an inspection or review fee that exceeds the reasonable cost of performing the
780 inspection or review.
781 (5) Upon the request of an applicant or an owner of residential property, the county
782 shall itemize each fee that the county imposes on the applicant or on the residential property,
783 respectively, showing the basis of each calculation for each fee imposed.
784 (6) A county may not impose on or collect from a public agency any fee associated
785 with the public agency's development of its land other than:

786 (a) subject to Subsection (4), a fee for a development service that the public agency
787 does not itself provide;
788 (b) subject to Subsection (3), a hookup fee; and
789 (c) an impact fee for a public facility listed in Subsection 11-36-102 [(13)](14)(a), (b),
790 (c), (d), (e), or (g), subject to any applicable credit under Subsection 11-36-202 (2)(b).
791 Section 8. Section 17B-1-118 is amended to read:
792 17B-1-118. Local district hookup fee -- Preliminary design or site plan from a
793 specified public agency.
794 (1) As used in this section:
795 (a) "Hookup fee" means a fee for the installation and inspection of any pipe, line,
796 meter, or appurtenance to connect to a local district water, sewer, storm water, power, or other
797 utility system.
798 (b) "Impact fee" has the same meaning as defined in Section 11-36-102 .
799 (c) "Specified public agency" means:
800 (i) the state;
801 (ii) a school district; or
802 (iii) a charter school.
803 (d) "State" includes any department, division, or agency of the state.
804 (2) A local district may not impose or collect a hookup fee that exceeds the reasonable
805 cost of installing and inspecting the pipe, line, meter, or appurtenance to connect to the local
806 district water, sewer, storm water, power, or other utility system.
807 (3) (a) A specified public agency intending to develop its land shall submit a
808 development plan and schedule to each local district from which the specified public agency
809 anticipates the development will receive service:
810 (i) as early as practicable in the development process, but no later than the
811 commencement of construction; and
812 (ii) with sufficient detail to enable the local district to assess:
813 (A) the demand for public facilities listed in Subsections 11-36-102 [(13)](14)(a), (b),

814 (c), (d), (e), and (g) caused by the development;
815 (B) the amount of any hookup fees, or impact fees or substantive equivalent;
816 (C) any credit against an impact fee; and
817 (D) the potential for waiving an impact fee.
818 (b) The local district shall respond to a specified public agency's submission under
819 Subsection (3)(a) with reasonable promptness in order to allow the specified public agency to
820 consider information the local district provides under Subsection (3)(a)(ii) in the process of
821 preparing the budget for the development.
822 (4) Upon a specified public agency's submission of a development plan and schedule
823 as required in Subsection (3) that complies with the requirements of that subsection, the
824 specified public agency vests in the local district's hookup fees and impact fees in effect on the
825 date of submission.
826 Section 9. Effective date.
827 This bill takes effect on May 11, 2010, except Section 11-36-102 which takes effect on
828 May 11, 2011.