1     
LAND USE 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 related to land use provisions.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     imposes requirements on proposed conditions for a proposed conditional use;
14          ▸     states that a conditional use is an administrative land use decision;
15          ▸     amends provisions related to an applicant's rights vesting in a land use application;
16          ▸     removes land use authority discretion in allowing an applicant to post an
17     improvement completion assurance;
18          ▸     prohibits municipalities and counties from denying a building permit application
19     where the land use authority has accepted an improvement completion assurance;
20          ▸     modifies the arbitrary and capricious standard for judicial review of a land use
21     decision; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          10-9a-103, as last amended by Laws of Utah 2017, Chapters 17 and 84
30          10-9a-507, as last amended by Laws of Utah 2005, Chapter 245 and renumbered and
31     amended by Laws of Utah 2005, Chapter 254
32          10-9a-509, as last amended by Laws of Utah 2017, Chapters 84, 410, and 428
33          10-9a-604.5, as last amended by Laws of Utah 2015, Chapter 327
34          10-9a-801, as last amended by Laws of Utah 2017, Chapter 84
35          10-9a-802, as last amended by Laws of Utah 2016, Chapter 303
36          17-27a-103, as last amended by Laws of Utah 2017, Chapter 84
37          17-27a-506, as last amended by Laws of Utah 2005, Chapter 245 and renumbered and
38     amended by Laws of Utah 2005, Chapter 254
39          17-27a-508, as last amended by Laws of Utah 2017, Chapters 84, 410, and 428
40          17-27a-604.5, as last amended by Laws of Utah 2015, Chapter 327
41          17-27a-801, as last amended by Laws of Utah 2017, Chapter 84
42          17-27a-802, as last amended by Laws of Utah 2015, Chapter 327
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 10-9a-103 is amended to read:
46          10-9a-103. Definitions.
47          As used in this chapter:
48          (1) "Affected entity" means a county, municipality, local district, special service
49     district under Title 17D, Chapter 1, Special Service District Act, school district, interlocal
50     cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, specified
51     public utility, property owner, property owners association, or the Utah Department of
52     Transportation, if:
53          (a) the entity's services or facilities are likely to require expansion or significant
54     modification because of an intended use of land;
55          (b) the entity has filed with the municipality a copy of the entity's general or long-range
56     plan; or
57          (c) the entity has filed with the municipality a request for notice during the same
58     calendar year and before the municipality provides notice to an affected entity in compliance
59     with a requirement imposed under this chapter.
60          (2) "Appeal authority" means the person, board, commission, agency, or other body
61     designated by ordinance to decide an appeal of a decision of a land use application or a
62     variance.
63          (3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
64     residential property if the sign is designed or intended to direct attention to a business, product,
65     or service that is not sold, offered, or existing on the property where the sign is located.
66          (4) (a) "Charter school" means:
67          (i) an operating charter school;
68          (ii) a charter school applicant that has its application approved by a charter school
69     authorizer in accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; or
70          (iii) an entity that is working on behalf of a charter school or approved charter
71     applicant to develop or construct a charter school building.
72          (b) "Charter school" does not include a therapeutic school.
73          (5) "Conditional use" means a land use that, because of its unique characteristics or
74     potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be
75     compatible in some areas or may be compatible only if certain conditions are required that
76     mitigate or eliminate the detrimental impacts.
77          (6) "Constitutional taking" means a governmental action that results in a taking of
78     private property so that compensation to the owner of the property is required by the:
79          (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
80          (b) Utah Constitution Article I, Section 22.
81          (7) "Culinary water authority" means the department, agency, or public entity with
82     responsibility to review and approve the feasibility of the culinary water system and sources for
83     the subject property.
84          (8) "Development activity" means:
85          (a) any construction or expansion of a building, structure, or use that creates additional
86     demand and need for public facilities;
87          (b) any change in use of a building or structure that creates additional demand and need
88     for public facilities; or
89          (c) any change in the use of land that creates additional demand and need for public
90     facilities.
91          (9) (a) "Disability" means a physical or mental impairment that substantially limits one
92     or more of a person's major life activities, including a person having a record of such an
93     impairment or being regarded as having such an impairment.
94          (b) "Disability" does not include current illegal use of, or addiction to, any federally
95     controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
96     802.
97          (10) "Educational facility":
98          (a) means:
99          (i) a school district's building at which pupils assemble to receive instruction in a
100     program for any combination of grades from preschool through grade 12, including
101     kindergarten and a program for children with disabilities;
102          (ii) a structure or facility:
103          (A) located on the same property as a building described in Subsection (10)(a)(i); and
104          (B) used in support of the use of that building; and
105          (iii) a building to provide office and related space to a school district's administrative
106     personnel; and
107          (b) does not include:
108          (i) land or a structure, including land or a structure for inventory storage, equipment
109     storage, food processing or preparing, vehicle storage or maintenance, or similar use that is:
110          (A) not located on the same property as a building described in Subsection (10)(a)(i);
111     and
112          (B) used in support of the purposes of a building described in Subsection (10)(a)(i); or
113          (ii) a therapeutic school.
114          (11) "Fire authority" means the department, agency, or public entity with responsibility
115     to review and approve the feasibility of fire protection and suppression services for the subject
116     property.
117          (12) "Flood plain" means land that:
118          (a) is within the 100-year flood plain designated by the Federal Emergency
119     Management Agency; or
120          (b) has not been studied or designated by the Federal Emergency Management Agency
121     but presents a likelihood of experiencing chronic flooding or a catastrophic flood event because
122     the land has characteristics that are similar to those of a 100-year flood plain designated by the
123     Federal Emergency Management Agency.
124          (13) "General plan" means a document that a municipality adopts that sets forth general
125     guidelines for proposed future development of the land within the municipality.
126          (14) "Geologic hazard" means:
127          (a) a surface fault rupture;
128          (b) shallow groundwater;
129          (c) liquefaction;
130          (d) a landslide;
131          (e) a debris flow;
132          (f) unstable soil;
133          (g) a rock fall; or
134          (h) any other geologic condition that presents a risk:
135          (i) to life;
136          (ii) of substantial loss of real property; or
137          (iii) of substantial damage to real property.
138          (15) "Historic preservation authority" means a person, board, commission, or other
139     body designated by a legislative body to:
140          (a) recommend land use regulations to preserve local historic districts or areas; and
141          (b) administer local historic preservation land use regulations within a local historic
142     district or area.
143          (16) "Hookup fee" means a fee for the installation and inspection of any pipe, line,
144     meter, or appurtenance that connects to a municipal water, sewer, storm water, power, or other
145     utility system.
146          (17) "Identical plans" means building plans submitted to a municipality that:
147          (a) are clearly marked as "identical plans";
148          (b) are substantially identical to building plans that were previously submitted to and
149     reviewed and approved by the municipality; and
150          (c) describe a building that:
151          (i) is located on land zoned the same as the land on which the building described in the
152     previously approved plans is located;
153          (ii) is subject to the same geological and meteorological conditions and the same law
154     as the building described in the previously approved plans;
155          (iii) has a floor plan identical to the building plan previously submitted to and reviewed
156     and approved by the municipality; and
157          (iv) does not require any additional engineering or analysis.
158          (18) "Impact fee" means a payment of money imposed under Title 11, Chapter 36a,
159     Impact Fees Act.
160          (19) "Improvement completion assurance" means a surety bond, letter of credit,
161     financial institution bond, cash, assignment of rights, lien, or other equivalent security required
162     by a municipality to guaranty the proper completion of landscaping or an infrastructure
163     improvement required as a condition precedent to:
164          (a) recording a subdivision plat; or
165          (b) development of a commercial, industrial, mixed use, or multifamily project.
166          (20) "Improvement warranty" means an applicant's unconditional warranty that the
167     applicant's installed and accepted landscaping or infrastructure improvement:
168          (a) complies with the municipality's written standards for design, materials, and
169     workmanship; and
170          (b) will not fail in any material respect, as a result of poor workmanship or materials,
171     within the improvement warranty period.
172          (21) "Improvement warranty period" means a period:
173          (a) no later than one year after a municipality's acceptance of required landscaping; or
174          (b) no later than one year after a municipality's acceptance of required infrastructure,
175     unless the municipality:
176          (i) determines for good cause that a one-year period would be inadequate to protect the
177     public health, safety, and welfare; and
178          (ii) has substantial evidence, on record:
179          (A) of prior poor performance by the applicant; or
180          (B) that the area upon which the infrastructure will be constructed contains suspect soil
181     and the municipality has not otherwise required the applicant to mitigate the suspect soil.
182          (22) "Infrastructure improvement" means permanent infrastructure that an applicant
183     must install:
184          (a) pursuant to published installation and inspection specifications for public
185     improvements; and
186          (b) as a condition of:
187          (i) recording a subdivision plat; or
188          (ii) development of a commercial, industrial, mixed use, condominium, or multifamily
189     project.
190          (23) "Internal lot restriction" means a platted note, platted demarcation, or platted
191     designation that:
192          (a) runs with the land; and
193          (b) (i) creates a restriction that is enclosed within the perimeter of a lot described on
194     the plat; or
195          (ii) designates a development condition that is enclosed within the perimeter of a lot
196     described on the plat.
197          (24) "Land use applicant" means a property owner, or the property owner's designee,
198     who submits a land use application regarding the property owner's land.
199          (25) "Land use application":
200          (a) means an application that is:
201          (i) required by a municipality; and
202          (ii) submitted by a land use applicant to obtain a land use decision; and
203          (b) does not mean an application to enact, amend, or repeal a land use regulation.
204          (26) "Land use authority" means:
205          (a) a person, board, commission, agency, or body, including the local legislative body,
206     designated by the local legislative body to act upon a land use application; or
207          (b) if the local legislative body has not designated a person, board, commission,
208     agency, or body, the local legislative body.
209          (27) "Land use decision" means [a final action] an administrative decision of a land use
210     authority or appeal authority regarding:
211          (a) a land use permit;
212          (b) a land use application; or
213          (c) the enforcement of a land use regulation, land use permit, or development
214     agreement.
215          (28) "Land use permit" means a permit issued by a land use authority.
216          (29) "Land use regulation":
217          (a) means [an] a legislative decision enacted by ordinance, law, code, map, resolution,
218     specification, fee, or rule that governs the use or development of land; [and]
219          (b) includes the adoption or amendment of a zoning map or the text of the zoning code;
220     and
221          [(b)] (c) does not include:
222          [(i) a general plan;]
223          [(ii)] (i) a land use decision of the legislative body acting as the land use authority,
224     even if the decision is expressed in a resolution or ordinance; or
225          [(iii)] (ii) a temporary revision to an engineering specification that does not materially:
226          (A) increase a land use applicant's cost of development compared to the existing
227     specification; or
228          (B) impact a land use applicant's use of land.
229          (30) "Legislative body" means the municipal council.
230          (31) "Local district" means an entity under Title 17B, Limited Purpose Local
231     Government Entities - Local Districts, and any other governmental or quasi-governmental
232     entity that is not a county, municipality, school district, or the state.
233          (32) "Local historic district or area" means a geographically definable area that:
234          (a) contains any combination of buildings, structures, sites, objects, landscape features,
235     archeological sites, or works of art that contribute to the historic preservation goals of a
236     legislative body; and
237          (b) is subject to land use regulations to preserve the historic significance of the local
238     historic district or area.
239          (33) "Lot line adjustment" means the relocation of the property boundary line in a
240     subdivision between two adjoining lots with the consent of the owners of record.
241          (34) "Moderate income housing" means housing occupied or reserved for occupancy
242     by households with a gross household income equal to or less than 80% of the median gross
243     income for households of the same size in the county in which the city is located.
244          (35) "Nominal fee" means a fee that reasonably reimburses a municipality only for time
245     spent and expenses incurred in:
246          (a) verifying that building plans are identical plans; and
247          (b) reviewing and approving those minor aspects of identical plans that differ from the
248     previously reviewed and approved building plans.
249          (36) "Noncomplying structure" means a structure that:
250          (a) legally existed before its current land use designation; and
251          (b) because of one or more subsequent land use ordinance changes, does not conform
252     to the setback, height restrictions, or other regulations, excluding those regulations, which
253     govern the use of land.
254          (37) "Nonconforming use" means a use of land that:
255          (a) legally existed before its current land use designation;
256          (b) has been maintained continuously since the time the land use ordinance governing
257     the land changed; and
258          (c) because of one or more subsequent land use ordinance changes, does not conform
259     to the regulations that now govern the use of the land.
260          (38) "Official map" means a map drawn by municipal authorities and recorded in a
261     county recorder's office that:
262          (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
263     highways and other transportation facilities;
264          (b) provides a basis for restricting development in designated rights-of-way or between
265     designated setbacks to allow the government authorities time to purchase or otherwise reserve
266     the land; and
267          (c) has been adopted as an element of the municipality's general plan.
268          (39) "Parcel boundary adjustment" means a recorded agreement between owners of
269     adjoining properties adjusting their mutual boundary if:
270          (a) no additional parcel is created; and
271          (b) each property identified in the agreement is unsubdivided land, including a
272     remainder of subdivided land.
273          (40) "Person" means an individual, corporation, partnership, organization, association,
274     trust, governmental agency, or any other legal entity.
275          (41) "Plan for moderate income housing" means a written document adopted by a city
276     legislative body that includes:
277          (a) an estimate of the existing supply of moderate income housing located within the
278     city;
279          (b) an estimate of the need for moderate income housing in the city for the next five
280     years as revised biennially;
281          (c) a survey of total residential land use;
282          (d) an evaluation of how existing land uses and zones affect opportunities for moderate
283     income housing; and
284          (e) a description of the city's program to encourage an adequate supply of moderate
285     income housing.
286          (42) "Plat" means a map or other graphical representation of lands being laid out and
287     prepared in accordance with Section 10-9a-603, 17-23-17, or 57-8-13.
288          (43) "Potential geologic hazard area" means an area that:
289          (a) is designated by a Utah Geological Survey map, county geologist map, or other
290     relevant map or report as needing further study to determine the area's potential for geologic
291     hazard; or
292          (b) has not been studied by the Utah Geological Survey or a county geologist but
293     presents the potential of geologic hazard because the area has characteristics similar to those of
294     a designated geologic hazard area.
295          (44) "Public agency" means:
296          (a) the federal government;
297          (b) the state;
298          (c) a county, municipality, school district, local district, special service district, or other
299     political subdivision of the state; or
300          (d) a charter school.
301          (45) "Public hearing" means a hearing at which members of the public are provided a
302     reasonable opportunity to comment on the subject of the hearing.
303          (46) "Public meeting" means a meeting that is required to be open to the public under
304     Title 52, Chapter 4, Open and Public Meetings Act.
305          (47) "Receiving zone" means an area of a municipality that the municipality
306     designates, by ordinance, as an area in which an owner of land may receive a transferable
307     development right.
308          (48) "Record of survey map" means a map of a survey of land prepared in accordance
309     with Section 17-23-17.
310          (49) "Residential facility for persons with a disability" means a residence:
311          (a) in which more than one person with a disability resides; and
312          (b) (i) which is licensed or certified by the Department of Human Services under Title
313     62A, Chapter 2, Licensure of Programs and Facilities; or
314          (ii) which is licensed or certified by the Department of Health under Title 26, Chapter
315     21, Health Care Facility Licensing and Inspection Act.
316          (50) "Rules of order and procedure" means a set of rules that govern and prescribe in a
317     public meeting:
318          (a) parliamentary order and procedure;
319          (b) ethical behavior; and
320          (c) civil discourse.
321          (51) "Sanitary sewer authority" means the department, agency, or public entity with
322     responsibility to review and approve the feasibility of sanitary sewer services or onsite
323     wastewater systems.
324          (52) "Sending zone" means an area of a municipality that the municipality designates,
325     by ordinance, as an area from which an owner of land may transfer a transferable development
326     right.
327          (53) "Specified public agency" means:
328          (a) the state;
329          (b) a school district; or
330          (c) a charter school.
331          (54) "Specified public utility" means an electrical corporation, gas corporation, or
332     telephone corporation, as those terms are defined in Section 54-2-1.
333          (55) "State" includes any department, division, or agency of the state.
334          (56) "Street" means a public right-of-way, including a highway, avenue, boulevard,
335     parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement, or other
336     way.
337          (57) (a) "Subdivision" means any land that is divided, resubdivided or proposed to be
338     divided into two or more lots, parcels, sites, units, plots, or other division of land for the
339     purpose, whether immediate or future, for offer, sale, lease, or development either on the
340     installment plan or upon any and all other plans, terms, and conditions.
341          (b) "Subdivision" includes:
342          (i) the division or development of land whether by deed, metes and bounds description,
343     devise and testacy, map, plat, or other recorded instrument; and
344          (ii) except as provided in Subsection (57)(c), divisions of land for residential and
345     nonresidential uses, including land used or to be used for commercial, agricultural, and
346     industrial purposes.
347          (c) "Subdivision" does not include:
348          (i) a bona fide division or partition of agricultural land for the purpose of joining one of
349     the resulting separate parcels to a contiguous parcel of unsubdivided agricultural land, if
350     neither the resulting combined parcel nor the parcel remaining from the division or partition
351     violates an applicable land use ordinance;
352          (ii) a recorded agreement between owners of adjoining unsubdivided properties
353     adjusting their mutual boundary if:
354          (A) no new lot is created; and
355          (B) the adjustment does not violate applicable land use ordinances;
356          (iii) a recorded document, executed by the owner of record:
357          (A) revising the legal description of more than one contiguous unsubdivided parcel of
358     property into one legal description encompassing all such parcels of property; or
359          (B) joining a subdivided parcel of property to another parcel of property that has not
360     been subdivided, if the joinder does not violate applicable land use ordinances;
361          (iv) a recorded agreement between owners of adjoining subdivided properties adjusting
362     their mutual boundary if:
363          (A) no new dwelling lot or housing unit will result from the adjustment; and
364          (B) the adjustment will not violate any applicable land use ordinance;
365          (v) a bona fide division or partition of land by deed or other instrument where the land
366     use authority expressly approves in writing the division in anticipation of further land use
367     approvals on the parcel or parcels; or
368          (vi) a parcel boundary adjustment.
369          (d) The joining of a subdivided parcel of property to another parcel of property that has
370     not been subdivided does not constitute a subdivision under this Subsection (57) as to the
371     unsubdivided parcel of property or subject the unsubdivided parcel to the municipality's
372     subdivision ordinance.
373          (58) "Suspect soil" means soil that has:
374          (a) a high susceptibility for volumetric change, typically clay rich, having more than a
375     3% swell potential;
376          (b) bedrock units with high shrink or swell susceptibility; or
377          (c) gypsiferous silt and clay, gypsum, or bedrock units containing abundant gypsum
378     commonly associated with dissolution and collapse features.
379          (59) "Therapeutic school" means a residential group living facility:
380          (a) for four or more individuals who are not related to:
381          (i) the owner of the facility; or
382          (ii) the primary service provider of the facility;
383          (b) that serves students who have a history of failing to function:
384          (i) at home;
385          (ii) in a public school; or
386          (iii) in a nonresidential private school; and
387          (c) that offers:
388          (i) room and board; and
389          (ii) an academic education integrated with:
390          (A) specialized structure and supervision; or
391          (B) services or treatment related to a disability, an emotional development, a
392     behavioral development, a familial development, or a social development.
393          (60) "Transferable development right" means a right to develop and use land that
394     originates by an ordinance that authorizes a land owner in a designated sending zone to transfer
395     land use rights from a designated sending zone to a designated receiving zone.
396          (61) "Unincorporated" means the area outside of the incorporated area of a city or
397     town.
398          (62) "Water interest" means any right to the beneficial use of water, including:
399          (a) each of the rights listed in Section 73-1-11; and
400          (b) an ownership interest in the right to the beneficial use of water represented by:
401          (i) a contract; or
402          (ii) a share in a water company, as defined in Section 73-3-3.5.
403          (63) "Zoning map" means a map, adopted as part of a land use ordinance, that depicts
404     land use zones, overlays, or districts.
405          Section 2. Section 10-9a-507 is amended to read:
406          10-9a-507. Conditional uses.
407          (1) (a) A municipality may adopt a land use ordinance [may include] that includes
408     conditional uses and provisions for conditional uses that require compliance with standards set
409     forth in an applicable ordinance.
410          (b) A municipality may not impose a requirement or standard on a conditional use that
411     conflicts with a provision of this chapter or other state or federal law.
412          (2) (a) (i) A land use authority shall approve a conditional use [shall be approved] if
413     reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated
414     detrimental effects of the proposed use in accordance with applicable standards.
415          (ii) The requirement described in Subsection (2)(a)(i) to reasonably mitigate
416     anticipated detrimental effects of the proposed conditional use does not require elimination of
417     the detrimental effects.
418          (b) If a land use authority proposes reasonable conditions on a proposed conditional
419     use, the land use authority shall ensure that the conditions are stated on the record and
420     reasonably relate to mitigating the anticipated detrimental effects of the proposed use.
421          [(b)] (c) If the reasonably anticipated detrimental effects of a proposed conditional use
422     cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to
423     achieve compliance with applicable standards, the land use authority may deny the conditional
424     use [may be denied].
425          (3) A land use authority's decision to approve or deny conditional use is an
426     administrative land use decision.
427          Section 3. Section 10-9a-509 is amended to read:
428          10-9a-509. Applicant's entitlement to land use application approval --
429     Municipality's requirements and limitations -- Vesting upon submission of development
430     plan and schedule.
431          (1) (a) (i) An applicant who has [filed] submitted a complete land use application as
432     described in Subsection (1)(c), including the payment of all application fees, is entitled to
433     substantive [land use] review of the [land use] application under the land use regulations:
434          (A) in effect on the date that the application is complete; and [as further provided in
435     this section.]
436          (B) applicable to the application or to the information shown on the application.
437          (ii) An applicant is entitled to approval of a land use application if the application
438     conforms to the requirements of the [municipality's] applicable land use regulations, land use
439     decisions, and development standards in effect when the applicant submits a complete
440     application [is submitted and all] and pays application fees [have been paid], unless:
441          (A) the land use authority, on the record, formally finds that a compelling,
442     countervailing public interest would be jeopardized by approving the application and specifies
443     the compelling, countervailing public interest in writing; or
444          (B) in the manner provided by local ordinance and before the applicant submits the
445     application [is submitted], the municipality [has] formally [initiated] initiates proceedings to
446     amend the municipality's land use regulations in a manner that would prohibit approval of the
447     application as submitted.
448          (b) The municipality shall process an application without regard to proceedings the
449     municipality initiated to amend the municipality's ordinances as [provided] described in
450     Subsection (1)(a)(ii)(B) if:
451          (i) 180 days have passed since the municipality initiated the proceedings [were
452     initiated]; and
453          (ii) the proceedings have not resulted in an enactment that prohibits approval of the
454     application as submitted.
455          (c) [An application for a land use approval] A land use application is considered
456     submitted and complete when the applicant provides the application [is provided] in a form
457     that complies with the requirements of applicable ordinances and pays all applicable fees [have
458     been paid].
459          (d) The continuing validity of an approval of a land use application is conditioned upon
460     the applicant proceeding after approval to implement the approval with reasonable diligence.
461          (e) A municipality may not impose on an applicant who has submitted a complete
462     application for preliminary subdivision approval a requirement that is not expressed in:
463          (i) this chapter;
464          (ii) a municipal ordinance; or
465          (iii) a municipal specification for public improvements applicable to a subdivision or
466     development that is in effect on the date that the applicant submits an application.
467          (f) A municipality may not impose on a holder of an issued land use permit or a final,
468     unexpired subdivision plat a requirement that is not expressed:
469          (i) in a land use permit;
470          (ii) on the subdivision plat;
471          (iii) in a document on which the land use permit or subdivision plat is based;
472          (iv) in the written record evidencing approval of the land use permit or subdivision
473     plat;
474          (v) in this chapter; or
475          (vi) in a municipal ordinance.
476          (g) A municipality may not withhold issuance of a certificate of occupancy or
477     acceptance of subdivision improvements because of an applicant's failure to comply with a
478     requirement that is not expressed:
479          (i) in the building permit or subdivision plat, documents on which the building permit
480     or subdivision plat is based, or the written record evidencing approval of the land use permit or
481     subdivision plat; or
482          (ii) in this chapter or the municipality's ordinances.
483          (2) A municipality is bound by the terms and standards of applicable land use
484     regulations and shall comply with mandatory provisions of those regulations.
485          (3) A municipality may not, as a condition of land use application approval, require a
486     person filing a land use application to obtain documentation regarding a school district's
487     willingness, capacity, or ability to serve the development proposed in the land use application.
488          (4) Upon a specified public agency's submission of a development plan and schedule as
489     required in Subsection 10-9a-305(8) that complies with the requirements of that subsection, the
490     specified public agency vests in the municipality's applicable land use maps, zoning map,
491     hookup fees, impact fees, other applicable development fees, and land use regulations in effect
492     on the date of submission.
493          Section 4. Section 10-9a-604.5 is amended to read:
494          10-9a-604.5. Subdivision plat recording or development activity before required
495     infrastructure is completed -- Improvement completion assurance -- Improvement
496     warranty.
497          (1) A land use authority shall establish objective inspection standards for acceptance of
498     a [required] landscaping or infrastructure improvement that the land use authority requires.
499          [(2) (a) A land use authority shall require an applicant to complete a required
500     landscaping or infrastructure improvement prior to any plat recordation or development
501     activity.]
502          [(b) Subsection (2)(a) does not apply if:]
503          [(i) upon the applicant's request, the land use authority has authorized the applicant to
504     post an improvement completion assurance in a manner that is consistent with local ordinance;
505     and]
506          [(ii) the land use authority has established a system for the partial release of the
507     improvement completion assurance as portions of required improvements are completed and
508     accepted.]
509          (2) (a) Before an applicant conducts any development activity or records a plat, the
510     applicant shall:
511          (i) complete any required landscaping or infrastructure improvements; or
512          (ii) post an improvement completion assurance for any required landscaping or
513     infrastructure improvements.
514          (b) If an applicant elects to post an improvement completion assurance, the applicant
515     shall ensure that the assurance:
516          (i) provides for completion of 100% of the required landscaping or infrastructure
517     improvements; or
518          (ii) if the municipality has inspected and accepted a portion of the landscaping or
519     infrastructure improvements, provides for completion of 100% of the unaccepted landscaping
520     or infrastructure improvements.
521          (c) A municipality shall:
522          (i) if an applicant elects to post an improvement completion assurance, allow the
523     applicant to post an assurance that meets the conditions of this title, and any local ordinances;
524          (ii) establish a system for the partial release of an improvement completion assurance
525     as portions of required landscaping or infrastructure improvements are completed and accepted
526     in accordance with local ordinance; and
527          (iii) issue or deny a building permit in accordance with Section 10-9a-802 based on the
528     installation of landscaping or infrastructure improvements.
529          (d) A municipality may not require an applicant to post an improvement completion
530     assurance for landscaping or an infrastructure improvement that the municipality has
531     previously inspected and accepted.
532          (3) At any time [up to the land use authority's acceptance of] before a municipality
533     accepts a landscaping or infrastructure improvement, and for the duration of each improvement
534     warranty period, the [land use authority] municipality may require the [developer] applicant to:
535          (a) execute an improvement warranty for the improvement warranty period; and
536          (b) post a cash deposit, surety bond, letter of credit, or other similar security, as
537     required by the municipality, in the amount of up to 10% of the lesser of the:
538          (i) municipal engineer's original estimated cost of completion; or
539          (ii) applicant's reasonable proven cost of completion.
540          (4) When a municipality accepts an improvement completion assurance for
541     landscaping or infrastructure improvements for a development in accordance with Subsection
542     (2)(c)(i), the municipality may not deny an applicant a building permit if the development
543     meets the requirements for the issuance of a building permit under the building code and fire
544     code.
545          [(4)] (5) The provisions of this section [may not be interpreted to] do not supersede the
546     terms of a valid development agreement, an adopted phasing plan, or the state construction
547     code.
548          Section 5. Section 10-9a-801 is amended to read:
549          10-9a-801. No district court review until administrative remedies exhausted --
550     Time for filing -- Tolling of time -- Standards governing court review -- Record on review
551     -- Staying of decision.
552          (1) No person may challenge in district court a land use decision until that person has
553     exhausted the person's administrative remedies as provided in Part 7, Appeal Authority and
554     Variances, if applicable.
555          (2) (a) Any person adversely affected by a final decision made in the exercise of or in
556     violation of the provisions of this chapter may file a petition for review of the decision with the
557     district court within 30 days after the decision is final.
558          (b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date a
559     property owner files a request for arbitration of a constitutional taking issue with the property
560     rights ombudsman under Section 13-43-204 until 30 days after:
561          (A) the arbitrator issues a final award; or
562          (B) the property rights ombudsman issues a written statement under Subsection
563     13-43-204(3)(b) declining to arbitrate or to appoint an arbitrator.
564          (ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional
565     taking issue that is the subject of the request for arbitration filed with the property rights
566     ombudsman by a property owner.
567          (iii) A request for arbitration filed with the property rights ombudsman after the time
568     under Subsection (2)(a) to file a petition has expired does not affect the time to file a petition.
569          (3) (a) A court shall:
570          (i) presume that a land use regulation properly enacted under the authority of this
571     chapter is valid; and
572          (ii) determine only whether:
573          (A) the land use regulation is expressly preempted by, or was enacted contrary to, state
574     or federal law; and
575          (B) it is reasonably debatable that the land use regulation is consistent with this
576     chapter.
577          (b) A court shall:
578          (i) presume that a final decision of a land use authority or an appeal authority is valid;
579     and
580          (ii) uphold the decision unless the decision is:
581          (A) arbitrary and capricious; or
582          (B) illegal.
583          (c) (i) A decision is arbitrary and capricious [unless] if the decision is not supported by
584     substantial evidence in the record.
585          (ii) A decision is illegal if the decision is:
586          (A) based on an incorrect interpretation of a land use regulation; or
587          (B) contrary to law.
588          (4) The provisions of Subsection (2)(a) apply from the date on which the municipality
589     takes final action on a land use application for any adversely affected third party, if the
590     municipality conformed with the notice provisions of Part 2, Notice, or for any person who had
591     actual notice of the pending decision.
592          (5) If the municipality has complied with Section 10-9a-205, a challenge to the
593     enactment of a land use regulation or general plan may not be filed with the district court more
594     than 30 days after the enactment.
595          (6) A challenge to a land use decision is barred unless the challenge is filed within 30
596     days after the land use decision is final.
597          (7) (a) The land use authority or appeal authority, as the case may be, shall transmit to
598     the reviewing court the record of its proceedings, including its minutes, findings, orders, and, if
599     available, a true and correct transcript of its proceedings.
600          (b) If the proceeding was recorded, a transcript of that recording is a true and correct
601     transcript for purposes of this Subsection (7).
602          (8) (a) (i) If there is a record, the district court's review is limited to the record provided
603     by the land use authority or appeal authority, as the case may be.
604          (ii) The court may not accept or consider any evidence outside the record of the land
605     use authority or appeal authority, as the case may be, unless that evidence was offered to the
606     land use authority or appeal authority, respectively, and the court determines that it was
607     improperly excluded.
608          (b) If there is no record, the court may call witnesses and take evidence.
609          (9) (a) The filing of a petition does not stay the decision of the land use authority or
610     authority appeal authority, as the case may be.
611          (b) (i) Before filing a petition under this section or a request for mediation or
612     arbitration of a constitutional taking issue under Section 13-43-204, the aggrieved party may
613     petition the appeal authority to stay its decision.
614          (ii) Upon receipt of a petition to stay, the appeal authority may order its decision stayed
615     pending district court review if the appeal authority finds it to be in the best interest of the
616     municipality.
617          (iii) After a petition is filed under this section or a request for mediation or arbitration
618     of a constitutional taking issue is filed under Section 13-43-204, the petitioner may seek an
619     injunction staying the appeal authority's decision.
620          Section 6. Section 10-9a-802 is amended to read:
621          10-9a-802. Enforcement.
622          (1) (a) A municipality or any adversely affected owner of real estate within the
623     municipality in which violations of this chapter or ordinances enacted under the authority of
624     this chapter occur or are about to occur may, in addition to other remedies provided by law,
625     institute:
626          (i) injunctions, mandamus, abatement, or any other appropriate actions; or
627          (ii) proceedings to prevent, enjoin, abate, or remove the unlawful building, use, or act.
628          (b) A municipality need only establish the violation to obtain the injunction.
629          (2) (a) A municipality may enforce the municipality's ordinance by withholding a
630     building permit.
631          (b) It is an infraction to erect, construct, reconstruct, alter, or change the use of any
632     building or other structure within a municipality without approval of a building permit.
633          (c) A municipality may not issue a building permit unless the plans of and for the
634     proposed erection, construction, reconstruction, alteration, or use fully conform to all
635     regulations then in effect.
636          (d) A municipality may not deny an applicant a building permit because the applicant
637     has not completed an infrastructure improvement:
638          (i) that is not essential to meet the requirements for the issuance of a building permit
639     under the building code and fire code; and
640          (ii) for which the municipality has accepted an [infrastructure] improvement
641     completion assurance for landscaping or infrastructure improvements for the development.
642          Section 7. Section 17-27a-103 is amended to read:
643          17-27a-103. Definitions.
644          As used in this chapter:
645          (1) "Affected entity" means a county, municipality, local district, special service
646     district under Title 17D, Chapter 1, Special Service District Act, school district, interlocal
647     cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, specified
648     property owner, property owners association, public utility, or the Utah Department of
649     Transportation, if:
650          (a) the entity's services or facilities are likely to require expansion or significant
651     modification because of an intended use of land;
652          (b) the entity has filed with the county a copy of the entity's general or long-range plan;
653     or
654          (c) the entity has filed with the county a request for notice during the same calendar
655     year and before the county provides notice to an affected entity in compliance with a
656     requirement imposed under this chapter.
657          (2) "Appeal authority" means the person, board, commission, agency, or other body
658     designated by ordinance to decide an appeal of a decision of a land use application or a
659     variance.
660          (3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
661     residential property if the sign is designed or intended to direct attention to a business, product,
662     or service that is not sold, offered, or existing on the property where the sign is located.
663          (4) (a) "Charter school" means:
664          (i) an operating charter school;
665          (ii) a charter school applicant that has its application approved by a charter school
666     authorizer in accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; or
667          (iii) an entity that is working on behalf of a charter school or approved charter
668     applicant to develop or construct a charter school building.
669          (b) "Charter school" does not include a therapeutic school.
670          (5) "Chief executive officer" means the person or body that exercises the executive
671     powers of the county.
672          (6) "Conditional use" means a land use that, because of its unique characteristics or
673     potential impact on the county, surrounding neighbors, or adjacent land uses, may not be
674     compatible in some areas or may be compatible only if certain conditions are required that
675     mitigate or eliminate the detrimental impacts.
676          (7) "Constitutional taking" means a governmental action that results in a taking of
677     private property so that compensation to the owner of the property is required by the:
678          (a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
679          (b) Utah Constitution, Article I, Section 22.
680          (8) "Culinary water authority" means the department, agency, or public entity with
681     responsibility to review and approve the feasibility of the culinary water system and sources for
682     the subject property.
683          (9) "Development activity" means:
684          (a) any construction or expansion of a building, structure, or use that creates additional
685     demand and need for public facilities;
686          (b) any change in use of a building or structure that creates additional demand and need
687     for public facilities; or
688          (c) any change in the use of land that creates additional demand and need for public
689     facilities.
690          (10) (a) "Disability" means a physical or mental impairment that substantially limits
691     one or more of a person's major life activities, including a person having a record of such an
692     impairment or being regarded as having such an impairment.
693          (b) "Disability" does not include current illegal use of, or addiction to, any federally
694     controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
695     802.
696          (11) "Educational facility":
697          (a) means:
698          (i) a school district's building at which pupils assemble to receive instruction in a
699     program for any combination of grades from preschool through grade 12, including
700     kindergarten and a program for children with disabilities;
701          (ii) a structure or facility:
702          (A) located on the same property as a building described in Subsection (11)(a)(i); and
703          (B) used in support of the use of that building; and
704          (iii) a building to provide office and related space to a school district's administrative
705     personnel; and
706          (b) does not include:
707          (i) land or a structure, including land or a structure for inventory storage, equipment
708     storage, food processing or preparing, vehicle storage or maintenance, or similar use that is:
709          (A) not located on the same property as a building described in Subsection (11)(a)(i);
710     and
711          (B) used in support of the purposes of a building described in Subsection (11)(a)(i); or
712          (ii) a therapeutic school.
713          (12) "Fire authority" means the department, agency, or public entity with responsibility
714     to review and approve the feasibility of fire protection and suppression services for the subject
715     property.
716          (13) "Flood plain" means land that:
717          (a) is within the 100-year flood plain designated by the Federal Emergency
718     Management Agency; or
719          (b) has not been studied or designated by the Federal Emergency Management Agency
720     but presents a likelihood of experiencing chronic flooding or a catastrophic flood event because
721     the land has characteristics that are similar to those of a 100-year flood plain designated by the
722     Federal Emergency Management Agency.
723          (14) "Gas corporation" has the same meaning as defined in Section 54-2-1.
724          (15) "General plan" means a document that a county adopts that sets forth general
725     guidelines for proposed future development of:
726          (a) the unincorporated land within the county; or
727          (b) for a mountainous planning district, the land within the mountainous planning
728     district.
729          (16) "Geologic hazard" means:
730          (a) a surface fault rupture;
731          (b) shallow groundwater;
732          (c) liquefaction;
733          (d) a landslide;
734          (e) a debris flow;
735          (f) unstable soil;
736          (g) a rock fall; or
737          (h) any other geologic condition that presents a risk:
738          (i) to life;
739          (ii) of substantial loss of real property; or
740          (iii) of substantial damage to real property.
741          (17) "Hookup fee" means a fee for the installation and inspection of any pipe, line,
742     meter, or appurtenance to connect to a county water, sewer, storm water, power, or other utility
743     system.
744          (18) "Identical plans" means building plans submitted to a county that:
745          (a) are clearly marked as "identical plans";
746          (b) are substantially identical building plans that were previously submitted to and
747     reviewed and approved by the county; and
748          (c) describe a building that:
749          (i) is located on land zoned the same as the land on which the building described in the
750     previously approved plans is located;
751          (ii) is subject to the same geological and meteorological conditions and the same law
752     as the building described in the previously approved plans;
753          (iii) has a floor plan identical to the building plan previously submitted to and reviewed
754     and approved by the county; and
755          (iv) does not require any additional engineering or analysis.
756          (19) "Impact fee" means a payment of money imposed under Title 11, Chapter 36a,
757     Impact Fees Act.
758          (20) "Improvement completion assurance" means a surety bond, letter of credit,
759     financial institution bond, cash, assignment of rights, lien, or other equivalent security required
760     by a county to guaranty the proper completion of landscaping or an infrastructure improvement
761     required as a condition precedent to:
762          (a) recording a subdivision plat; or
763          (b) development of a commercial, industrial, mixed use, or multifamily project.
764          (21) "Improvement warranty" means an applicant's unconditional warranty that the
765     applicant's installed and accepted landscaping or infrastructure improvement:
766          (a) complies with the county's written standards for design, materials, and
767     workmanship; and
768          (b) will not fail in any material respect, as a result of poor workmanship or materials,
769     within the improvement warranty period.
770          (22) "Improvement warranty period" means a period:
771          (a) no later than one year after a county's acceptance of required landscaping; or
772          (b) no later than one year after a county's acceptance of required infrastructure, unless
773     the county:
774          (i) determines for good cause that a one-year period would be inadequate to protect the
775     public health, safety, and welfare; and
776          (ii) has substantial evidence, on record:
777          (A) of prior poor performance by the applicant; or
778          (B) that the area upon which the infrastructure will be constructed contains suspect soil
779     and the county has not otherwise required the applicant to mitigate the suspect soil.
780          (23) "Infrastructure improvement" means permanent infrastructure that an applicant
781     must install:
782          (a) pursuant to published installation and inspection specifications for public
783     improvements; and
784          (b) as a condition of:
785          (i) recording a subdivision plat; or
786          (ii) development of a commercial, industrial, mixed use, condominium, or multifamily
787     project.
788          (24) "Internal lot restriction" means a platted note, platted demarcation, or platted
789     designation that:
790          (a) runs with the land; and
791          (b) (i) creates a restriction that is enclosed within the perimeter of a lot described on
792     the plat; or
793          (ii) designates a development condition that is enclosed within the perimeter of a lot
794     described on the plat.
795          (25) "Interstate pipeline company" means a person or entity engaged in natural gas
796     transportation subject to the jurisdiction of the Federal Energy Regulatory Commission under
797     the Natural Gas Act, 15 U.S.C. Sec. 717 et seq.
798          (26) "Intrastate pipeline company" means a person or entity engaged in natural gas
799     transportation that is not subject to the jurisdiction of the Federal Energy Regulatory
800     Commission under the Natural Gas Act, 15 U.S.C. Sec. 717 et seq.
801          (27) "Land use applicant" means a property owner, or the property owner's designee,
802     who submits a land use application regarding the property owner's land.
803          (28) "Land use application":
804          (a) means an application that is:
805          (i) required by a county; and
806          (ii) submitted by a land use applicant to obtain a land use decision; and
807          (b) does not mean an application to enact, amend, or repeal a land use regulation.
808          (29) "Land use authority" means:
809          (a) a person, board, commission, agency, or body, including the local legislative body,
810     designated by the local legislative body to act upon a land use application; or
811          (b) if the local legislative body has not designated a person, board, commission,
812     agency, or body, the local legislative body.
813          (30) "Land use decision" means [a final action] an administrative decision of a land use
814     authority or appeal authority regarding:
815          (a) a land use permit;
816          (b) a land use application; or
817          (c) the enforcement of a land use regulation, land use permit, or development
818     agreement.
819          (31) "Land use permit" means a permit issued by a land use authority.
820          (32) "Land use regulation":
821          (a) means [an] a legislative decision enacted by ordinance, law, code, map, resolution,
822     specification, fee, or rule that governs the use or development of land; [and]
823          (b) includes the adoption or amendment of a zoning map or the text of the zoning code;
824     and
825          [(b)] (c) does not include:
826          [(i) a general plan;]
827          [(ii)] (i) a land use decision of the legislative body acting as the land use authority,
828     even if the decision is expressed in a resolution or ordinance; or
829          [(iii)] (ii) a temporary revision to an engineering specification that does not materially:
830          (A) increase a land use applicant's cost of development compared to the existing
831     specification; or
832          (B) impact a land use applicant's use of land.
833          (33) "Legislative body" means the county legislative body, or for a county that has
834     adopted an alternative form of government, the body exercising legislative powers.
835          (34) "Local district" means any entity under Title 17B, Limited Purpose Local
836     Government Entities - Local Districts, and any other governmental or quasi-governmental
837     entity that is not a county, municipality, school district, or the state.
838          (35) "Lot line adjustment" means the relocation of the property boundary line in a
839     subdivision between two adjoining lots with the consent of the owners of record.
840          (36) "Moderate income housing" means housing occupied or reserved for occupancy
841     by households with a gross household income equal to or less than 80% of the median gross
842     income for households of the same size in the county in which the housing is located.
843          (37) "Mountainous planning district" means an area:
844          (a) designated by a county legislative body in accordance with Section 17-27a-901; and
845          (b) that is not otherwise exempt under Section 10-9a-304.
846          (38) "Nominal fee" means a fee that reasonably reimburses a county only for time spent
847     and expenses incurred in:
848          (a) verifying that building plans are identical plans; and
849          (b) reviewing and approving those minor aspects of identical plans that differ from the
850     previously reviewed and approved building plans.
851          (39) "Noncomplying structure" means a structure that:
852          (a) legally existed before its current land use designation; and
853          (b) because of one or more subsequent land use ordinance changes, does not conform
854     to the setback, height restrictions, or other regulations, excluding those regulations that govern
855     the use of land.
856          (40) "Nonconforming use" means a use of land that:
857          (a) legally existed before its current land use designation;
858          (b) has been maintained continuously since the time the land use ordinance regulation
859     governing the land changed; and
860          (c) because of one or more subsequent land use ordinance changes, does not conform
861     to the regulations that now govern the use of the land.
862          (41) "Official map" means a map drawn by county authorities and recorded in the
863     county recorder's office that:
864          (a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
865     highways and other transportation facilities;
866          (b) provides a basis for restricting development in designated rights-of-way or between
867     designated setbacks to allow the government authorities time to purchase or otherwise reserve
868     the land; and
869          (c) has been adopted as an element of the county's general plan.
870          (42) "Parcel boundary adjustment" means a recorded agreement between owners of
871     adjoining properties adjusting their mutual boundary if:
872          (a) no additional parcel is created; and
873          (b) each property identified in the agreement is unsubdivided land, including a
874     remainder of subdivided land.
875          (43) "Person" means an individual, corporation, partnership, organization, association,
876     trust, governmental agency, or any other legal entity.
877          (44) "Plan for moderate income housing" means a written document adopted by a
878     county legislative body that includes:
879          (a) an estimate of the existing supply of moderate income housing located within the
880     county;
881          (b) an estimate of the need for moderate income housing in the county for the next five
882     years as revised biennially;
883          (c) a survey of total residential land use;
884          (d) an evaluation of how existing land uses and zones affect opportunities for moderate
885     income housing; and
886          (e) a description of the county's program to encourage an adequate supply of moderate
887     income housing.
888          (45) "Planning advisory area" means a contiguous, geographically defined portion of
889     the unincorporated area of a county established under this part with planning and zoning
890     functions as exercised through the planning advisory area planning commission, as provided in
891     this chapter, but with no legal or political identity separate from the county and no taxing
892     authority.
893          (46) "Plat" means a map or other graphical representation of lands being laid out and
894     prepared in accordance with Section 17-27a-603, 17-23-17, or 57-8-13.
895          (47) "Potential geologic hazard area" means an area that:
896          (a) is designated by a Utah Geological Survey map, county geologist map, or other
897     relevant map or report as needing further study to determine the area's potential for geologic
898     hazard; or
899          (b) has not been studied by the Utah Geological Survey or a county geologist but
900     presents the potential of geologic hazard because the area has characteristics similar to those of
901     a designated geologic hazard area.
902          (48) "Public agency" means:
903          (a) the federal government;
904          (b) the state;
905          (c) a county, municipality, school district, local district, special service district, or other
906     political subdivision of the state; or
907          (d) a charter school.
908          (49) "Public hearing" means a hearing at which members of the public are provided a
909     reasonable opportunity to comment on the subject of the hearing.
910          (50) "Public meeting" means a meeting that is required to be open to the public under
911     Title 52, Chapter 4, Open and Public Meetings Act.
912          (51) "Receiving zone" means an unincorporated area of a county that the county
913     designates, by ordinance, as an area in which an owner of land may receive a transferable
914     development right.
915          (52) "Record of survey map" means a map of a survey of land prepared in accordance
916     with Section 17-23-17.
917          (53) "Residential facility for persons with a disability" means a residence:
918          (a) in which more than one person with a disability resides; and
919          (b) (i) which is licensed or certified by the Department of Human Services under Title
920     62A, Chapter 2, Licensure of Programs and Facilities; or
921          (ii) which is licensed or certified by the Department of Health under Title 26, Chapter
922     21, Health Care Facility Licensing and Inspection Act.
923          (54) "Rules of order and procedure" means a set of rules that govern and prescribe in a
924     public meeting:
925          (a) parliamentary order and procedure;
926          (b) ethical behavior; and
927          (c) civil discourse.
928          (55) "Sanitary sewer authority" means the department, agency, or public entity with
929     responsibility to review and approve the feasibility of sanitary sewer services or onsite
930     wastewater systems.
931          (56) "Sending zone" means an unincorporated area of a county that the county
932     designates, by ordinance, as an area from which an owner of land may transfer a transferable
933     development right.
934          (57) "Site plan" means a document or map that may be required by a county during a
935     preliminary review preceding the issuance of a building permit to demonstrate that an owner's
936     or developer's proposed development activity meets a land use requirement.
937          (58) "Specified public agency" means:
938          (a) the state;
939          (b) a school district; or
940          (c) a charter school.
941          (59) "Specified public utility" means an electrical corporation, gas corporation, or
942     telephone corporation, as those terms are defined in Section 54-2-1.
943          (60) "State" includes any department, division, or agency of the state.
944          (61) "Street" means a public right-of-way, including a highway, avenue, boulevard,
945     parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement, or other
946     way.
947          (62) (a) "Subdivision" means any land that is divided, resubdivided or proposed to be
948     divided into two or more lots, parcels, sites, units, plots, or other division of land for the
949     purpose, whether immediate or future, for offer, sale, lease, or development either on the
950     installment plan or upon any and all other plans, terms, and conditions.
951          (b) "Subdivision" includes:
952          (i) the division or development of land whether by deed, metes and bounds description,
953     devise and testacy, map, plat, or other recorded instrument; and
954          (ii) except as provided in Subsection (62)(c), divisions of land for residential and
955     nonresidential uses, including land used or to be used for commercial, agricultural, and
956     industrial purposes.
957          (c) "Subdivision" does not include:
958          (i) a bona fide division or partition of agricultural land for agricultural purposes;
959          (ii) a recorded agreement between owners of adjoining properties adjusting their
960     mutual boundary if:
961          (A) no new lot is created; and
962          (B) the adjustment does not violate applicable land use ordinances;
963          (iii) a recorded document, executed by the owner of record:
964          (A) revising the legal description of more than one contiguous unsubdivided parcel of
965     property into one legal description encompassing all such parcels of property; or
966          (B) joining a subdivided parcel of property to another parcel of property that has not
967     been subdivided, if the joinder does not violate applicable land use ordinances;
968          (iv) a bona fide division or partition of land in a county other than a first class county
969     for the purpose of siting, on one or more of the resulting separate parcels:
970          (A) an electrical transmission line or a substation;
971          (B) a natural gas pipeline or a regulation station; or
972          (C) an unmanned telecommunications, microwave, fiber optic, electrical, or other
973     utility service regeneration, transformation, retransmission, or amplification facility;
974          (v) a recorded agreement between owners of adjoining subdivided properties adjusting
975     their mutual boundary if:
976          (A) no new dwelling lot or housing unit will result from the adjustment; and
977          (B) the adjustment will not violate any applicable land use ordinance;
978          (vi) a bona fide division or partition of land by deed or other instrument where the land
979     use authority expressly approves in writing the division in anticipation of further land use
980     approvals on the parcel or parcels; or
981          (vii) a parcel boundary adjustment.
982          (d) The joining of a subdivided parcel of property to another parcel of property that has
983     not been subdivided does not constitute a subdivision under this Subsection (62) as to the
984     unsubdivided parcel of property or subject the unsubdivided parcel to the county's subdivision
985     ordinance.
986          (63) "Suspect soil" means soil that has:
987          (a) a high susceptibility for volumetric change, typically clay rich, having more than a
988     3% swell potential;
989          (b) bedrock units with high shrink or swell susceptibility; or
990          (c) gypsiferous silt and clay, gypsum, or bedrock units containing abundant gypsum
991     commonly associated with dissolution and collapse features.
992          (64) "Therapeutic school" means a residential group living facility:
993          (a) for four or more individuals who are not related to:
994          (i) the owner of the facility; or
995          (ii) the primary service provider of the facility;
996          (b) that serves students who have a history of failing to function:
997          (i) at home;
998          (ii) in a public school; or
999          (iii) in a nonresidential private school; and
1000          (c) that offers:
1001          (i) room and board; and
1002          (ii) an academic education integrated with:
1003          (A) specialized structure and supervision; or
1004          (B) services or treatment related to a disability, an emotional development, a
1005     behavioral development, a familial development, or a social development.
1006          (65) "Transferable development right" means a right to develop and use land that
1007     originates by an ordinance that authorizes a land owner in a designated sending zone to transfer
1008     land use rights from a designated sending zone to a designated receiving zone.
1009          (66) "Unincorporated" means the area outside of the incorporated area of a
1010     municipality.
1011          (67) "Water interest" means any right to the beneficial use of water, including:
1012          (a) each of the rights listed in Section 73-1-11; and
1013          (b) an ownership interest in the right to the beneficial use of water represented by:
1014          (i) a contract; or
1015          (ii) a share in a water company, as defined in Section 73-3-3.5.
1016          (68) "Zoning map" means a map, adopted as part of a land use ordinance, that depicts
1017     land use zones, overlays, or districts.
1018          Section 8. Section 17-27a-506 is amended to read:
1019          17-27a-506. Conditional uses.
1020          (1) (a) A county may adopt a land use ordinance [may include] that includes
1021     conditional uses and provisions for conditional uses that require compliance with standards set
1022     forth in an applicable ordinance.
1023          (b) A county may not impose a requirement or standard on a conditional use that
1024     conflicts with a provision of this chapter or other state or federal law.
1025          (2) (a) (i) A land use authority shall approve a conditional use [shall be approved] if
1026     reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated
1027     detrimental effects of the proposed use in accordance with applicable standards.
1028          (ii) The requirement described in Subsection (2)(a)(i) to reasonably mitigate
1029     anticipated detrimental effects of the proposed conditional use does not require elimination of
1030     the detrimental effects.
1031          (b) If a land use authority proposes reasonable conditions on a proposed conditional
1032     use, the land use authority shall ensure that the conditions are stated on the record and
1033     reasonably relate to mitigating the anticipated detrimental effects of the proposed use.
1034          [(b)] (c) If the reasonably anticipated detrimental effects of a proposed conditional use
1035     cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to
1036     achieve compliance with applicable standards, the land use authority may deny the conditional
1037     use [may be denied].
1038          (3) A land use authority's decision to approve or deny a conditional use is an
1039     administrative land use decision.
1040          Section 9. Section 17-27a-508 is amended to read:
1041          17-27a-508. Applicant's entitlement to land use application approval --
1042     Application relating to land in a high priority transportation corridor -- County's
1043     requirements and limitations -- Vesting upon submission of development plan and
1044     schedule.
1045          (1) (a) (i) An applicant who has [filed] submitted a complete land use application,
1046     including the payment of all application fees, is entitled to substantive [land use] review of the
1047     [land use] application under the land use regulations:
1048          (A) in effect on the date that the application is complete; and [as further provided in
1049     this section.]
1050          (B) applicable to the application or to the information shown on the submitted
1051     application.
1052          (ii) An applicant is entitled to approval of a land use application if the application
1053     conforms to the requirements of the [county's] applicable land use regulations, land use
1054     decisions, and development standards in effect when the applicant submits a complete
1055     application [is submitted] and pays all application fees [have been paid], unless:
1056          (A) the land use authority, on the record, formally finds that a compelling,
1057     countervailing public interest would be jeopardized by approving the application and specifies
1058     the compelling, countervailing public interest in writing; or
1059          (B) in the manner provided by local ordinance and before the [application is submitted,
1060     the county has formally initiated] applicant submits the application, the county formally
1061     initiates proceedings to amend the county's land use regulations in a manner that would
1062     prohibit approval of the application as submitted.
1063          (b) The county shall process an application without regard to proceedings the county
1064     initiated to amend the county's ordinances as [provided] described in Subsection (1)(a)(ii)(B)
1065     if:
1066          (i) 180 days have passed since the county initiated the proceedings [were initiated]; and
1067          (ii) the proceedings have not resulted in an enactment that prohibits approval of the
1068     application as submitted.
1069          (c) [An application for a land use approval] A land use application is considered
1070     submitted and complete when the applicant provides the application [is provided] in a form
1071     that complies with the requirements of applicable ordinances and pays all applicable fees [have
1072     been paid].
1073          (d) The continuing validity of an approval of a land use application is conditioned upon
1074     the applicant proceeding after approval to implement the approval with reasonable diligence.
1075          (e) A county may not impose on an applicant who has submitted a complete
1076     application for preliminary subdivision approval a requirement that is not expressed:
1077          (i) in this chapter;
1078          (ii) in a county ordinance; or
1079          (iii) in a county specification for public improvements applicable to a subdivision or
1080     development that is in effect on the date that the applicant submits an application.
1081          (f) A county may not impose on a holder of an issued land use permit or a final,
1082     unexpired subdivision plat a requirement that is not expressed:
1083          (i) in a land use permit;
1084          (ii) on the subdivision plat;
1085          (iii) in a document on which the land use permit or subdivision plat is based;
1086          (iv) in the written record evidencing approval of the land use permit or subdivision
1087     plat;
1088          (v) in this chapter; or
1089          (vi) in a county ordinance.
1090          (g) A county may not withhold issuance of a certificate of occupancy or acceptance of
1091     subdivision improvements because of an applicant's failure to comply with a requirement that
1092     is not expressed:
1093          (i) in the building permit or subdivision plat, documents on which the building permit
1094     or subdivision plat is based, or the written record evidencing approval of the building permit or
1095     subdivision plat; or
1096          (ii) in this chapter or the county's ordinances.
1097          (2) A county is bound by the terms and standards of applicable land use regulations and
1098     shall comply with mandatory provisions of those regulations.
1099          (3) A county may not, as a condition of land use application approval, require a person
1100     filing a land use application to obtain documentation regarding a school district's willingness,
1101     capacity, or ability to serve the development proposed in the land use application.
1102          (4) Upon a specified public agency's submission of a development plan and schedule as
1103     required in Subsection 17-27a-305(8) that complies with the requirements of that subsection,
1104     the specified public agency vests in the county's applicable land use maps, zoning map, hookup
1105     fees, impact fees, other applicable development fees, and land use regulations in effect on the
1106     date of submission.
1107          Section 10. Section 17-27a-604.5 is amended to read:
1108          17-27a-604.5. Subdivision plat recording or development activity before required
1109     infrastructure is completed -- Improvement completion assurance -- Improvement
1110     warranty.
1111          (1) A land use authority shall establish objective inspection standards for acceptance of
1112     a required landscaping or infrastructure improvement.
1113          [(2) (a) A land use authority shall require an applicant to complete a required
1114     landscaping or infrastructure improvement prior to any plat recordation or development
1115     activity.]
1116          [(b) Subsection (2)(a) does not apply if:]
1117          [(i) upon the applicant's request, the land use authority has authorized the applicant to
1118     post an improvement completion assurance in a manner that is consistent with local ordinance;
1119     and]
1120          [(ii) the land use authority has established a system for the partial release of the
1121     improvement completion assurance as portions of required improvements are completed and
1122     accepted.]
1123          (2) (a) Before an applicant conducts any development activity or records a plat, the
1124     applicant shall:
1125          (i) complete any required landscaping or infrastructure improvements; or
1126          (ii) post an improvement completion assurance for any required landscaping or
1127     infrastructure improvements.
1128          (b) If an applicant elects to post an improvement completion assurance, the applicant
1129     shall ensure that the assurance:
1130          (i) provides for completion of 100% of the required landscaping or infrastructure
1131     improvements; or
1132          (ii) if the county has inspected and accepted a portion of the landscaping or
1133     infrastructure improvements, provides for completion of 100% of the unaccepted landscaping
1134     or infrastructure improvements.
1135          (c) A county shall:
1136          (i) if an applicant elects to post an improvement completion assurance, allow the
1137     applicant to post an assurance that meets the conditions of this title, and any local ordinances;
1138          (ii) establish a system for the partial release of an improvement completion assurance
1139     as portions of required landscaping or infrastructure improvements are completed and accepted
1140     in accordance with local ordinance; and
1141          (iii) issue or deny a building permit in accordance with Section 17-27a-802 based on
1142     the installation of landscaping or infrastructure improvements.
1143          (d) A county may not require an applicant to post an improvement completion
1144     assurance for landscaping or an infrastructure improvement that the county has previously
1145     inspected and accepted.
1146          (3) At any time [up to the land use authority's acceptance of] before a county accepts a
1147     landscaping or infrastructure improvement, and for the duration of each improvement warranty
1148     period, the land use authority may require the [developer] applicant to:
1149          (a) execute an improvement warranty for the improvement warranty period; and
1150          (b) post a cash deposit, surety bond, letter of credit, or other similar security, as
1151     required by the county, in the amount of up to 10% of the lesser of the:
1152          (i) county engineer's original estimated cost of completion; or
1153          (ii) applicant's reasonable proven cost of completion.
1154          (4) When a county accepts an improvement completion assurance for landscaping or
1155     infrastructure improvements for a development in accordance with Subsection (2)(c)(i), the
1156     county may not deny an applicant a building permit if the development meets the requirements
1157     for the issuance of a building permit under the building code and fire code.
1158          [(4)] (5) The provisions of this section [may not be interpreted to] do not supersede the
1159     terms of a valid development agreement, an adopted phasing plan, or the state construction
1160     code.
1161          Section 11. Section 17-27a-801 is amended to read:
1162          17-27a-801. No district court review until administrative remedies exhausted --
1163     Time for filing -- Tolling of time -- Standards governing court review -- Record on review
1164     -- Staying of decision.
1165          (1) No person may challenge in district court a land use decision until that person has
1166     exhausted the person's administrative remedies as provided in Part 7, Appeal Authority and
1167     Variances, if applicable.
1168          (2) (a) Any person adversely affected by a final decision made in the exercise of or in
1169     violation of the provisions of this chapter may file a petition for review of the decision with the
1170     district court within 30 days after the decision is final.
1171          (b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date a
1172     property owner files a request for arbitration of a constitutional taking issue with the property
1173     rights ombudsman under Section 13-43-204 until 30 days after:
1174          (A) the arbitrator issues a final award; or
1175          (B) the property rights ombudsman issues a written statement under Subsection
1176     13-43-204(3)(b) declining to arbitrate or to appoint an arbitrator.
1177          (ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional
1178     taking issue that is the subject of the request for arbitration filed with the property rights
1179     ombudsman by a property owner.
1180          (iii) A request for arbitration filed with the property rights ombudsman after the time
1181     under Subsection (2)(a) to file a petition has expired does not affect the time to file a petition.
1182          (3) (a) A court shall:
1183          (i) presume that a land use regulation properly enacted under the authority of this
1184     chapter is valid; and
1185          (ii) determine only whether:
1186          (A) the land use regulation is expressly preempted by, or was enacted contrary to, state
1187     or federal law; and
1188          (B) it is reasonably debatable that the land use regulation is consistent with this
1189     chapter.
1190          (b) A court shall:
1191          (i) presume that a final decision of a land use authority or an appeal authority is valid;
1192     and
1193          (ii) uphold the decision unless the decision is:
1194          (A) arbitrary and capricious; or
1195          (B) illegal.
1196          (c) (i) A decision is arbitrary and capricious [unless] if the decision is not supported by
1197     substantial evidence in the record.
1198          (ii) A decision is illegal if the decision is:
1199          (A) based on an incorrect interpretation of a land use regulation; or
1200          (B) contrary to law.
1201          (4) The provisions of Subsection (2)(a) apply from the date on which the county takes
1202     final action on a land use application for any adversely affected third party, if the county
1203     conformed with the notice provisions of Part 2, Notice, or for any person who had actual notice
1204     of the pending decision.
1205          (5) If the county has complied with Section 17-27a-205, a challenge to the enactment
1206     of a land use regulation or general plan may not be filed with the district court more than 30
1207     days after the enactment.
1208          (6) A challenge to a land use decision is barred unless the challenge is filed within 30
1209     days after the land use decision is final.
1210          (7) (a) The land use authority or appeal authority, as the case may be, shall transmit to
1211     the reviewing court the record of its proceedings, including its minutes, findings, orders and, if
1212     available, a true and correct transcript of its proceedings.
1213          (b) If the proceeding was recorded, a transcript of that recording is a true and correct
1214     transcript for purposes of this Subsection (7).
1215          (8) (a) (i) If there is a record, the district court's review is limited to the record provided
1216     by the land use authority or appeal authority, as the case may be.
1217          (ii) The court may not accept or consider any evidence outside the record of the land
1218     use authority or appeal authority, as the case may be, unless that evidence was offered to the
1219     land use authority or appeal authority, respectively, and the court determines that it was
1220     improperly excluded.
1221          (b) If there is no record, the court may call witnesses and take evidence.
1222          (9) (a) The filing of a petition does not stay the decision of the land use authority or
1223     appeal authority, as the case may be.
1224          (b) (i) Before filing a petition under this section or a request for mediation or
1225     arbitration of a constitutional taking issue under Section 13-43-204, the aggrieved party may
1226     petition the appeal authority to stay its decision.
1227          (ii) Upon receipt of a petition to stay, the appeal authority may order its decision stayed
1228     pending district court review if the appeal authority finds it to be in the best interest of the
1229     county.
1230          (iii) After a petition is filed under this section or a request for mediation or arbitration
1231     of a constitutional taking issue is filed under Section 13-43-204, the petitioner may seek an
1232     injunction staying the appeal authority's decision.
1233          Section 12. Section 17-27a-802 is amended to read:
1234          17-27a-802. Enforcement.
1235          (1) (a) A county or any adversely affected owner of real estate within the county in
1236     which violations of this chapter or ordinances enacted under the authority of this chapter occur
1237     or are about to occur may, in addition to other remedies provided by law, institute:
1238          (i) injunctions, mandamus, abatement, or any other appropriate actions; or
1239          (ii) proceedings to prevent, enjoin, abate, or remove the unlawful building, use, or act.
1240          (b) A county need only establish the violation to obtain the injunction.
1241          (2) (a) A county may enforce the county's ordinance by withholding a building permit.
1242          (b) It is unlawful to erect, construct, reconstruct, alter, or change the use of any
1243     building or other structure within a county without approval of a building permit.
1244          (c) The county may not issue a building permit unless the plans of and for the proposed
1245     erection, construction, reconstruction, alteration, or use fully conform to all regulations then in
1246     effect.
1247          (d) A county may not deny an applicant a building permit because the applicant has not
1248     completed an infrastructure improvement:
1249          (i) that is not essential to meet the requirements for the issuance of a building permit
1250     under the building code and fire code; and
1251          (ii) for which the county has accepted an [infrastructure] improvement completion
1252     assurance for landscaping or infrastructure improvements for the development.




Legislative Review Note
Office of Legislative Research and General Counsel