This document includes House Committee Amendments incorporated into the bill on Tue, Feb 13, 2018 at 11:13 AM by bbryner.
This document includes House Floor Amendments incorporated into the bill on Thu, Feb 22, 2018 at 5:39 PM by bbryner.
1     
BUILDING PERMIT AND IMPACT FEES AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mike Schultz

5     
Senate Sponsor: J. Stuart Adams

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of Title 11, Chapter 36a, Impact Fees Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows a claimant to challenge whether a local political subdivision spent or
13     encumbered an impact fee in accordance with law;
14          ▸     establishes a time by which a claimant may challenge whether a local political
15     subdivision spent or encumbered an impact fee in accordance with law;
16          ▸     transmits a portion of the surcharge on building permits to the Office of the Property
17     Rights Ombudsman to provide certain land use education and training; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          11-36a-603, as last amended by Laws of Utah 2017, Chapter 190
26          11-36a-701, as enacted by Laws of Utah 2011, Chapter 47
27          11-36a-702, as enacted by Laws of Utah 2011, Chapter 47
28          13-43-203, as last amended by Laws of Utah 2015, Chapter 75
29          15A-1-209, as last amended by Laws of Utah 2012, Chapter 278
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 11-36a-603 is amended to read:
33          11-36a-603. Refunds.
34          (1) A local political subdivision shall refund any impact fee paid by a developer, plus
35     interest earned, when:
36          (a) the developer does not proceed with the development activity and has filed a
37     written request for a refund;
38          (b) the fee has not been spent or encumbered; and
39          (c) no impact has resulted.
40          (2) (a) As used in this Subsection (2):
41          (i) "Affected lot" means the lot or parcel with respect to which a local political
42     subdivision collected an impact fee that is subject to a refund under this Subsection (2).
43          (ii) "Claimant" means:
44          (A) the original owner; [or]
45          (B) the person who paid an impact fee; or
46          [(B)] (C) another person who, under Subsection (2)(d), submits a timely notice of the
47     person's valid legal claim to an impact fee refund.
48          (iii) "Original owner" means the record owner of an affected lot at the time the local
49     political subdivision collected the impact fee.
50          (iv) "Unclaimed refund" means an impact fee that:
51          (A) is subject to refund under this Subsection (2); and
52          (B) the local political subdivision has not refunded after application of Subsections
53     (2)(b) and (c).
54          (b) If an impact fee is not spent or encumbered [within the time specified in Subsection
55     11-36a-602(2)] in accordance with Section 11-36a-602, the local political subdivision shall,
56     subject to Subsection (2)(c):
57          (i) refund the impact fee to:
58          (A) the original owner, if the original owner is the sole claimant; or
59          (B) to the claimants, as the claimants agree, if there are multiple claimants; or
60          (ii) interplead the impact fee refund to a court of competent jurisdiction for a
61     determination of the entitlement to the refund, if there are multiple claimants who fail to agree
62     on how the refund should be paid to the claimants.
63          (c) If the original owner's last known address is no longer valid at the time a local
64     political subdivision attempts under Subsection (2)(b) to refund an impact fee to the original
65     owner, the local political subdivision shall:
66          (i) post a notice on the local political subdivision's website, stating the local political
67     subdivision's intent to refund the impact fee and identifying the original owner;
68          (ii) maintain the notice on the website for a period of one year; and
69          (iii) disqualify the original owner as a claimant unless the original owner submits a
70     written request for the refund within one year after the first posting of the notice under
71     Subsection (2)(c)(i).
72          (d) (i) In order to be considered as a claimant for an impact fee refund under this
73     Subsection (2), a person, other than the original owner, shall submit a written notice of the
74     person's valid legal claim to the impact fee refund.
75          (ii) A notice under Subsection (2)(d)(i) shall:
76          (A) explain the person's valid legal claim to the refund; and
77          (B) be submitted to the local political subdivision no later than 30 days after expiration
78     of the time specified in Subsection 11-36a-602(2) for the impact fee that is the subject of the
79     refund.
80          (e) A local political subdivision:
81          (i) may retain an unclaimed refund; and
82          (ii) shall expend any unclaimed refund on capital facilities identified in the current
83     capital facilities plan for the type of public facility for which the impact fee was collected.
84          Section 2. Section 11-36a-701 is amended to read:
85          11-36a-701. Impact fee challenge.
86          (1) A person or an entity residing in or owning property within a service area, or an
87     organization, association, or a corporation representing the interests of persons or entities
88     owning property within a service area, has standing to file a declaratory judgment action
89     challenging the validity of an impact fee.
90          (2) (a) A person or an entity required to pay an impact fee who believes the impact fee
91     does not meet the requirements of law may file a written request for information with the local
92     political subdivision who established the impact fee.
93          (b) Within two weeks after the receipt of the request for information under Subsection
94     (2)(a), the local political subdivision shall provide the person or entity with the impact fee
95     analysis, the impact fee facilities plan, and any other relevant information relating to the impact
96     fee.
97          (3) (a) Subject to the time limitations described in Section 11-36a-702 and procedures
98     set forth in Section 11-36a-703, a person or an entity that has paid an impact fee that [was
99     imposed by] a local political subdivision imposed may challenge:
100          (i) if the impact fee enactment was adopted on or after July 1, 2000:
101          (A) subject to Subsection (3)(b)(i) and except as provided in Subsection (3)(b)(ii),
102     whether the local political subdivision complied with the notice requirements of this chapter
103     with respect to the imposition of the impact fee; and
104          (B) whether the local political subdivision complied with other procedural
105     requirements of this chapter for imposing the impact fee; and
106          (ii) except as limited by Subsection (3)(c), the impact fee.
107          (b) (i) The sole remedy for a challenge under Subsection (3)(a)(i)(A) is the equitable
108     remedy of requiring the local political subdivision to correct the defective notice and repeat the
109     process.
110          (ii) The protections given to a municipality under Section 10-9a-801 and to a county
111     under Section 17-27a-801 do not apply in a challenge under Subsection (3)(a)(i)(A).
112          (c) The sole remedy for a challenge under Subsection (3)(a)(ii) is a refund of the
113     difference between what the person or entity paid as an impact fee and the amount the impact
114     fee should have been if it had been correctly calculated.
115          (4) (a) Subject to Subsection (4)(d), if an impact fee that is the subject of an advisory
116     opinion under Section 13-43-205 is listed as a cause of action in litigation, and that cause of
117     action is litigated on the same facts and circumstances and is resolved consistent with the
118     advisory opinion:
119          (i) the substantially prevailing party on that cause of action:
120          (A) may collect reasonable attorney fees and court costs pertaining to the development
121     of that cause of action from the date of the delivery of the advisory opinion to the date of the
122     court's resolution; and
123          (B) shall be refunded an impact fee held to be in violation of this chapter, based on the
124     difference between the impact fee paid and what the impact fee should have been if the
125     [government entity] local political subdivision had correctly calculated the impact fee; and
126          (ii) in accordance with Section 13-43-206, a [government entity] local political
127     subdivision shall refund an impact fee held to be in violation of this chapter to the person who
128     was in record title of the property on the day on which the impact fee for the property was paid
129     if:
130          (A) the impact fee was paid on or after the day on which the advisory opinion on the
131     impact fee was issued but before the day on which the final court ruling on the impact fee is
132     issued; and
133          (B) the person described in Subsection (3)(a)(ii) requests the impact fee refund from
134     the [government entity] local political subdivision within 30 days after the day on which the
135     court issued the final ruling on the impact fee.
136          (b) A [government entity] local political subdivision subject to Subsection (3)(a)(ii)
137     shall refund the impact fee based on the difference between the impact fee paid and what the
138     impact fee should have been if the [government entity] local political subdivision had correctly
139     calculated the impact fee.
140          (c) This Subsection (4) may not be construed to create a new cause of action under land
141     use law.
142          (d) Subsection [(3)] (4)(a) does not apply unless the [resolution described in
143     Subsection (3)(a) is final] cause of action described in Subsection (4)(a) is resolved and final.
144          (5) Subject to the time limitations described in Section 11-36a-702 and procedures
145     described in Section 11-36a-703, a claimant, as defined in Section 11-36a-603, may challenge
146     whether a local political subdivision spent or encumbered an impact fee in accordance with
147     Section 11-36a-602.
148          Section 3. Section 11-36a-702 is amended to read:
149          11-36a-702. Time limitations.
150          (1) A person or an entity that initiates a challenge under Subsection 11-36a-701(3)(a)
151     may not initiate that challenge unless it is initiated within:
152          (a) for a challenge under Subsection 11-36a-701(3)(a)(i)(A), 30 days after the day on
153     which the person or entity pays the impact fee;
154          (b) for a challenge under Subsection 11-36a-701(3)(a)(i)(B), 180 days after the day on
155     which the person or entity pays the impact fee; [or]
156          (c) for a challenge under Subsection 11-36a-701(5):
157          (i) if the local political subdivision has spent or encumbered the impact fee, one year
158     after the expiration of the time specified in Subsection 11-36a-602(2); or
159          (ii) if the local political subdivision has not yet spent or encumbered the impact fee,
160     two years after the expiration of the time specified in Subsection 11-36a-602(2); or
161          [(c)] (d) for a challenge under Subsection 11-36a-701(3)(a)(ii), one year after the day
162     on which the person or entity pays the impact fee.
163          (2) The deadline to file an action in district court is tolled from the date that a challenge
164     is filed using an administrative appeals procedure described in Section 11-36a-703 until 30
165     days after the day on which a final decision is rendered in the administrative appeals procedure.
166          Section 4. Section 13-43-203 is amended to read:
167          13-43-203. Office of the Property Rights Ombudsman -- Duties.
168          (1) [(a)] The Office of the Property Rights Ombudsman shall:
169          [(i)] (a) develop and maintain expertise in and understanding of takings, eminent
170     domain, and land use law;
171          [(ii)] (b) clearly identify the specific information that is prepared for distribution to
172     property owners whose land is being acquired under the provisions of Section 78B-6-505;
173          [(iii)] (c) assist state agencies and local governments in developing the guidelines
174     required by Title 63L, Chapter 4, Constitutional Taking Issues Act;
175          [(iv)] (d) at the request of a state agency or local government, assist the state agency or
176     local government, in analyzing actions with potential takings implications or other land use
177     issues;
178          [(v)] (e) advise real property owners who:
179          [(A)] (i) have a legitimate potential or actual takings claim against a state or local
180     government entity or have questions about takings, eminent domain, and land use law; or
181          [(B)] (ii) own a parcel of property that is landlocked, as to the owner's rights and
182     options with respect to obtaining access to a public street;
183          [(vi)] (f) identify state or local government actions that have potential takings
184     implications and, if appropriate, advise those state or local government entities about those
185     implications; [and]
186          [(vii)] (g) provide information to private citizens, civic groups, government entities,
187     and other interested parties about takings, eminent domain, and land use law and their rights,
188     including a right to just compensation, and responsibilities under the takings, eminent domain,
189     or land use laws through seminars and publications, and by other appropriate means[.];
190          [(b) The Office of the Property Rights Ombudsman shall:]
191          (h) (i) provide the information described in Section 78B-6-505 on [its] the Office of the
192     Property Rights Ombudsman's website in a form that is easily accessible; and
193          (ii) ensure that the information is current[.]; and
194          (i) (i) provide education and training regarding:
195          (A) Ĥ→ the drafting and application of ←Ĥ land use laws and regulations; and
196          (B) land use dispute resolution; and
197          (ii) use any money transmitted in accordance with Subsection 15A-1-209(5) to pay for
198     any expenses required to provide the education and training described in Subsection (1)(i)(i),
199     including grants to a land use training organization Ĥ→ that:
199a          (A) the Land Use and Eminent Domain Advisory Board, created in Section 13-43-202,
199b      selects and proposes; and     
199c          (B) the property rights ombudsman and the executive director of the Department     
199d     of Commerce jointly approve ←Ĥ .
200          (2) (a) Neither the Office of the Property Rights Ombudsman nor its individual
201     attorneys may represent private parties, state agencies, local governments, or any other
202     individual or entity in a legal action that arises from or relates to a matter addressed in this
203     chapter.
204          (b) An action by an attorney employed by the Office of the Property Rights
205     Ombudsman, by a neutral third party acting as mediator or arbitrator under Section 13-43-204,
206     or by a neutral third party rendering an advisory opinion under Section 13-43-205 or
207     13-43-206, taken within the scope of the duties set forth in this chapter, does not create an
208     attorney-client relationship between the Office of the Property Rights Ombudsman, or the
209     office's attorneys or appointees, and an individual or entity.
210          (3) No member of the Office of the Property Rights Ombudsman nor a neutral third
211     party rendering an advisory opinion under Section 13-43-205 or 13-43-206, may be compelled
212     to testify in a civil action filed concerning the subject matter of any review, mediation, or
213     arbitration by, or arranged through, the office.
214          (4) (a) Except as provided in Subsection (4)(b), evidence of a review by the Office of
215     the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the
216     Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action.
217          (b) Subsection (4)(a) does not apply to:
218          (i) actions brought under authority of Title 78A, Chapter 8, Small Claims Courts;
219          (ii) a judicial confirmation or review of the arbitration itself as authorized in Title 78B,
220     Chapter 11, Utah Uniform Arbitration Act;
221          (iii) actions for de novo review of an arbitration award or issue brought under the
222     authority of Subsection 13-43-204(3)(a)(i); or
223          (iv) advisory opinions provided for in Sections 13-43-205 and 13-43-206.
224          Section 5. Section 15A-1-209 is amended to read:
225          15A-1-209. Building permit requirements.
226          (1) As used in this section, "project" means a "construction project" as defined in
227     Section 38-1a-102.
228          (2) (a) The division shall develop a standardized building permit numbering system for
229     use by any compliance agency in the state that issues a permit for construction.
230          (b) The standardized building permit numbering system described under Subsection
231     (2)(a) shall include a combination of alpha or numeric characters arranged in a format
232     acceptable to the compliance agency.
233          (c) A compliance agency issuing a permit for construction shall use the standardized
234     building permit numbering system described under Subsection (2)(a).
235          (d) A compliance agency may not use a numbering system other than the system
236     described under Subsection (2)(a) to define a building permit number.
237          (3) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
238     the division shall adopt a standardized building permit form by rule.
239          (b) The standardized building permit form created under this Subsection (3) shall
240     include fields for indicating the following information:
241          (i) the name and address of the owner of each parcel of property on which the project
242     will occur;
243          (ii) the name and address of the contractor for the project;
244          (iii) (A) the address of the project; or
245          (B) a general description of the project;
246          (iv) the county in which the property on which the project will occur is located;
247          (v) the tax parcel identification number of each parcel of the property; and
248          (vi) whether the permit applicant is an original contractor or owner-builder.
249          (c) The standardized building permit form created under this Subsection (3) may
250     include any other information the division considers useful.
251          (d) A compliance agency shall issue a permit for construction only on a standardized
252     building permit form approved by the division.
253          (e) A permit for construction issued by a compliance agency under Subsection (3)(d)
254     shall print the standardized building permit number assigned under Subsection (2) in the upper
255     right-hand corner of the building permit form in at least 12-point font.
256          (f) (i) Except as provided in Subsection (3)(f)(ii), a compliance agency may not issue a
257     permit for construction if the information required by Subsection (3)(b) is not completed on the
258     building permit form.
259          (ii) If a compliance agency does not issue a separate permit for different aspects of the
260     same project, the compliance agency may issue a permit for construction without the
261     information required by Subsection (3)(b)(vi).
262          (g) A compliance agency may require additional information for the issuance of a
263     permit for construction.
264          (4) A local regulator issuing a single-family residential building permit application
265     shall include in the application or attach to the building permit the following notice
266     prominently placed in at least 14-point font: "Decisions relative to this application are subject
267     to review by the chief executive officer of the municipal or county entity issuing the
268     single-family residential building permit and appeal under the International Residential Code as
269     adopted by the Legislature."
270          (5) (a) A compliance agency shall:
271          (i) charge a 1% surcharge on a building permit [it] the compliance agency issues; and
272          (ii) transmit Ĥ→ [80%] 85% ←Ĥ of the amount collected to the division to be used by the
272a     division in
273     accordance with Subsection (5)(c).
274          (b) The portion of the surcharge transmitted to the division shall be deposited as a
275     dedicated credit.
276          (c) (i) The division shall use Ĥ→ [20%] 30% ←Ĥ of the money received under [this]
276a     Subsection
277     (5)(a)(ii) to provide education[: (i)] to building inspectors regarding the codes and code
278     amendments [that] under Section 15A-1-204 that are adopted, approved, or being considered
279     for adoption or approval[; and].
280          [(ii) to:]
281          [(A) building inspectors; and]
282          [(B) individuals engaged in construction-related trades or professions.]
282a                Ĥ→ (ii) The division shall use 10% of the money received under Subsection
282b     (5)(a)(ii) to provide education to individuals licensed in construction trades or related
282c     professions through a construction trade association or a related professional
282d     association.
283           [(ii)] (iii) ←Ĥ The division shall transmit Ĥ→ [Ĥ→ [80%] 70% ←Ĥ] 60% ←Ĥ
283a     of the money received under
283a     Subsection (5)(a)(ii)
284     to the Office of the Property Rights Ombudsman created in Title 13, Chapter 43, Property
285     Rights Ombudsman Act, to provide education and training regarding:
286          (A) Ĥ→ the drafting and application of ←Ĥ land use laws and regulations; and
287          (B) land use dispute resolution.




Legislative Review Note
Office of Legislative Research and General Counsel