This document includes House Committee Amendments incorporated into the bill on Tue, Feb 22, 2022 at 11:28 AM by lfindlay.
Senator Wayne A. Harper proposes the following substitute bill:


1     
PROPERTY DECONTAMINATION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karen Mayne

5     
House Sponsor: Clare Collard

6     Cosponsor:
Wayne A. Harper

7     

8     LONG TITLE
9     General Description:
10          This bill modifies the authority of a municipality to regulate the abatement of certain
11     conditions on the property of an owner or occupant.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines the term "hazardous materials";
15          ▸     authorizes a municipality to designate and regulate the abatement of hazardous
16     materials;
17          ▸     modifies a municipality's authority regarding municipal inspectors and enforcement
18     of abatement ordinances; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          10-11-1, as last amended by Laws of Utah 2011, Chapters 144, 172 and last amended
27     by Coordination Clause, Laws of Utah 2011, Chapter 144
28          10-11-2, as repealed and reenacted by Laws of Utah 2011, Chapter 172
29          10-11-3, as last amended by Laws of Utah 2011, Chapter 172
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 10-11-1 is amended to read:
33          10-11-1. Abatement of weeds, garbage, refuse, and unsightly objects -- Selection
34     of service provider.
35          (1) As used in this chapter, "hazardous materials" means the same as that term is
36     defined in Section 19-6-902.
37          [(1)] (2) A municipal legislative body may:
38          (a) designate and regulate the abatement of:
39          (i) the growth and spread of injurious and noxious weeds;
40          (ii) garbage and refuse;
41          (iii) a public nuisance; [or]
42          (iv) an illegal object or structure; [and] or
43          (v) for a structure or any real property closed to occupancy or entry by a local health
44     department, hazardous materials; and
45          (b) appoint a municipal inspector for the purpose of carrying out and in accordance
46     with the provisions of this chapter.
47          [(2)] (3) A municipal legislative body may not:
48          (a) prohibit an owner or occupant of real property within the municipality's
49     jurisdiction, including an owner or occupant who receives a notice in accordance with Section
50     10-11-2, from selecting a person, as defined in Section 10-1-104, to provide an abatement
51     service for injurious and noxious weeds, garbage and refuse, a public nuisance, or an illegal
52     object or structure; or
53          (b) require that an owner or occupant described in Subsection [(2)] (3)(a) use the
54     services of the municipal inspector or any assistance employed by the municipal inspector
55     described in Section 10-11-3 to provide an abatement service described in Subsection [(2)]
56     (3)(a).
57          [(3)] (4) A municipality may require that an owner or occupant described in Subsection
58     [(2)] (3)(a) use the abatement services, as described in Section 10-11-3, of the municipal
59     inspector, including the use of a certified decontamination specialist as described in Section
60     19-6-906, or any assistance employed by the municipal inspector if:
61          (a) the municipality adopts an ordinance providing a reasonable period of time of at
62     least 10 days for an owner or occupant to abate the owner's or occupant's property after
63     receiving a notice described in Section 10-11-2; and
64          (b) the owner or occupant fails to abate the property within the reasonable period of
65     time and in accordance with the notice.
66          (5) A municipality may require that an owner or occupant use the abatement services of
67     a certified decontamination specialist to abate hazardous materials.
68          (6) Nothing in this chapter may be construed:
69          (a) as authorizing a municipality to regulate items that are within the exclusive
70     jurisdiction of the Department of Agriculture and Food as provided in Section 4-2-305,
71     including commercial feed, fertilizer, pesticides, and seeds; or
72          (b) as limiting or abrogating the authority of a local health department under Section
73     19-6-905.
74          Section 2. Section 10-11-2 is amended to read:
75          10-11-2. Inspection of property -- Notice.
76          (1) (a) If a municipality adopts an ordinance describing the duties of a municipal
77     inspector appointed under Section 10-11-1, the ordinance:
78          (i) may, subject to Subsection (1)(b), direct the inspector to examine and investigate
79     real property for:
80          (A) the growth and spread of injurious and noxious weeds;
81          (B) garbage and refuse;
82          (C) a public nuisance; [or]
83          (D) an illegal object or structure; [and] or
84          (E) hazardous materials; and
85          (ii) if an inspector conducts an examination and investigation under Subsection (1)(a),
86     shall direct the inspector to deliver written notice of the examination and investigation in
87     accordance with Subsection (2).
88          (b) An ordinance described in Subsection (1)(a) may not direct an inspector or
89     authorize a municipality to abate conditions solely associated with the interior of a structure,
90     unless required:
91          (i) for the demolition and removal of the structure[.]; or
92          (ii) to eliminate or remove hazardous materials within a structure that has been closed
93     to occupancy or entry by a local health department or fire department.
94          (c) An ordinance described in Subsection (1)(a) may direct an inspector or authorize a
95     municipality to issue an order limiting or restricting access to a structure and the real property
96     appurtenant to the structure while the municipal inspector or a certified decontamination
97     specialist destroys, removes, or abates hazardous materials within the structure.
98          (d) If a municipality has adopted an ordinance establishing an administrative
99     proceeding process for the violation of a municipal ordinance in accordance with the
100     requirements of Section 10-3-703.7, the municipality may adopt an ordinance imposing the
101     following for a violation of an order issued under Subsection (1)(c):
102          (i) a civil penalty in accordance with Subsection 10-3-703(2); or Ĥ→ [.] ←Ĥ
103          (ii) in accordance with Subsection 10-3-703(1), a criminal penalty, including by a fine
104     not to exceed the maximum class B misdemeanor fine under Section 76-3-301, by a term of
105     imprisonment up to six months, or by both the fine and term of imprisonment.
106          (e) An ordinance adopted in accordance with Ĥ→ Subsection ←Ĥ (1)(d) shall provide 180
106a     days after the day
107     on which the written notice from an inspector is delivered in person or the date the notice is
108     post-marked for the recipient of the notice to:
109          (i) abate the hazardous materials; or
110          (ii) appeal the notice and begin the administrative proceeding process.
111          (2) (a) (i) The municipal inspector shall serve written notice to a property owner of
112     record according to the records of the county recorder in accordance with Subsection (2)(b).
113          (ii) The municipal inspector may serve written notice in accordance with Subsection
114     (2)(b) to a non-owner occupant of the property or another person responsible for the property
115     who is not the owner of record, including a manager or agent of the owner, if:
116          (A) the property owner is not an occupant of the property; and
117          (B) the municipality in which the property is located has adopted an ordinance
118     imposing a duty to maintain the property on an occupant who is not the property owner of
119     record or a person other than the property owner of record who is responsible for the property.
120          (b) The municipal inspector may serve the written notice:
121          (i) in person or by mail to the property owner of record as described in Subsection
122     (2)(a)(i), if mailed to the last-known address of the owner according to the records of the
123     county recorder; or
124          (ii) in person or by mail to a non-owner occupant or another person responsible for the
125     property who is not the owner of record as described in Subsection (2)(a)(ii), if mailed to the
126     property address.
127          (c) In the written notice described in Subsection (2)(a), the municipal inspector shall:
128          (i) identify the property owner of record according to the records of the county
129     recorder;
130          (ii) describe the property and the nature and results of the examination and
131     investigation conducted in accordance with Subsection (1)(a); [and]
132          (iii) identify the relevant regulation or ordinance at issue and describe the violation of
133     the relevant regulation or ordinance;
134          (iv) describe each order, fine, or penalty that may be imposed;
135          (v) for a structure or any real property closed to occupancy or entry by a local health
136     department because of hazardous materials, explain the right of a property owner, occupant, or,
137     if applicable, another person responsible for the property to abate the hazardous materials or
138     appeal the notice within 180 days after the day on which notice is delivered in person or the
139     date the notice is post-marked; Ĥ→ and ←Ĥ
140          [(iii)] (vi) require the property owner, occupant, or, if applicable, another person
141     responsible for the property to:
142          (A) eradicate or destroy and remove any identified item examined and investigated
143     under Subsection (1)(a); and
144          (B) comply with Subsection (2)(c)(iii)(A) in a time period designated by the municipal
145     inspector but no less than 10 days after the day on which notice is delivered in person or
146     post-marked, or for a notice related to hazardous materials, no less than 180 days after the day
147     on which notice is delivered in person or post-marked.
148          (d) For a notice of injurious and noxious weeds described in Subsection (2)(a), the
149     municipal inspector is not required to make more than one notice for each annual season of
150     weed growth for weeds growing on a property.
151          (e) The municipal inspector shall serve the notice required under Subsection (2)(a)(i)
152     under penalty of perjury.
153          (f) For a structure or any real property closed to occupancy or entry by a local health
154     department because of hazardous materials, unless an order issued by a court of competent
155     jurisdiction states otherwise, a municipality may not impose a fine or penalty on a property
156     owner, occupant, or another person responsible for the structure or real property, and may not
157     authorize a municipal inspector or a certified decontamination specialist to begin abatement of
158     the hazardous materials, until:
159          (i) the appeal and administrative proceeding process is completed; or
160          (ii) the property owner, occupant, or another person responsible for the property has
161     missed the deadline for filing the appeal.
162          Section 3. Section 10-11-3 is amended to read:
163          10-11-3. Neglect of property owners -- Removal by municipality -- Costs of
164     removal -- Notice -- File action or lien -- Property owner objection.
165          (1) (a) If an owner of, occupant of, or other person responsible for real property
166     described in the notice delivered in accordance with Section 10-11-2 fails to comply with
167     Section 10-11-2, a municipal inspector may:
168          (i) at the expense of the municipality, employ necessary assistance to enter the property
169     and [destroy or remove an item] destroy, remove, or abate one or more items or conditions
170     identified in a written notice described in Section 10-11-2; and
171          (ii) (A) prepare an itemized statement in accordance with Subsection (1)(b); and
172          (B) mail to the owner of record according to the records of the county recorder a copy
173     of the statement demanding payment within 30 days after the day on which the statement is
174     post-marked.
175          (b) The statement described in Subsection (1)(a)(ii)(A) shall:
176          (i) include:
177          (A) the address of the property described in Subsection (1)(a);
178          (B) an itemized list of and demand for payment for all expenses, including
179     administrative expenses, incurred by the municipality under Subsection (1)(a)(i); and
180          (C) the address of the municipal treasurer where payment may be made for the
181     expenses; and
182          (ii) notify the property owner:
183          (A) that failure to pay the expenses described in Subsection (1)(b)(i)(B) may result in a
184     lien on the property in accordance with Section 10-11-4;
185          (B) that the owner may file a written objection to all or part of the statement within 20
186     days after the day of the statement post-mark; and
187          (C) where the owner may file the objection, including the municipal office and address.
188          (c) A statement mailed in accordance with Subsection (1)(a) is delivered when mailed
189     by certified mail addressed to the property owner's of record last-known address according to
190     the records of the county recorder.
191          (d) (i) A municipality may file a notice of a lien, including a copy of the statement
192     described in Subsection (1)(a)(ii)(A) or a summary of the statement, in the records of the
193     county recorder of the county in which the property is located.
194          (ii) If a municipality files a notice of a lien indicating that the municipality intends to
195     certify the unpaid costs and expenses in accordance with Subsection (2)(a)(ii) and Section
196     10-11-4, the municipality shall file for record in the county recorder's office a release of the lien
197     after all amounts owing are paid.
198          (2) (a) If an owner fails to file a timely written objection as described in Subsection
199     (1)(b)(ii)(B) or to pay the amount set forth in the statement under Subsection (1)(b)(i)(B), the
200     municipality may:
201          (i) file an action in district court; or
202          (ii) certify the past due costs and expenses to the county treasurer of the county in
203     which the property is located in accordance with Section 10-11-4.
204          (b) If a municipality pursues collection of the costs in accordance with Subsection
205     (2)(a)(i) or (4)(a), the municipality may:
206          (i) sue for and receive judgment for all removal and destruction costs, including
207     administrative costs, and reasonable attorney fees, interest, and court costs; and
208          (ii) execute on the judgment in the manner provided by law.
209          (3) (a) If a property owner files an objection in accordance with Subsection (1)(b)(ii),
210     the municipality shall:
211          (i) hold a hearing in accordance with Title 52, Chapter 4, Open and Public Meetings
212     Act; and
213          (ii) mail or deliver notice of the hearing date and time to the property owner.
214          (b) At the hearing described in Subsection (3)(a)(i), the municipality shall review and
215     determine the actual cost of abatement, if any, incurred under Subsection (1)(a)(i).
216          (c) The property owner shall pay any actual cost due after a decision by the
217     municipality at the hearing described in Subsection (3)(a)(i) to the municipal treasurer within
218     30 days after the day on which the hearing is held.
219          (4) If the property owner fails to pay in accordance with Subsection (3)(c), the
220     municipality may:
221          (a) file an action in district court for the actual cost determined under Subsection
222     (3)(b); or
223          (b) certify the past due costs and expenses to the county treasurer of the county in
224     which the property is located in accordance with Section 10-11-4.
225          (5) This section does not affect or limit:
226          (a) a municipal governing body's power to pass an ordinance as described in Section
227     10-3-702; or
228          (b) a criminal or civil penalty imposed by a municipality in accordance with Section
229     10-3-703.