1     
PROPERTY DECONTAMINATION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karen Mayne

5     
House Sponsor: Clare Collard

6     Cosponsor:
7     Wayne A. Harper


8     

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

29          10-11-2, as repealed and reenacted by Laws of Utah 2011, Chapter 172
30          10-11-3, as last amended by Laws of Utah 2011, Chapter 172
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 10-11-1 is amended to read:
34          10-11-1. Abatement of weeds, garbage, public nuisances, and hazardous
35     materials -- Selection of service provider.
36          (1) As used in this chapter, "hazardous materials" means the same as that term is
37     defined in Section 19-6-902.
38          [(1)] (2) A municipal legislative body may:
39          (a) designate and regulate the abatement of:
40          (i) the growth and spread of injurious and noxious weeds;
41          (ii) garbage and refuse;
42          (iii) a public nuisance; [or]
43          (iv) an illegal object or structure; [and] or
44          (v) for a structure or any real property closed to occupancy or entry by a local health
45     department, hazardous materials; and
46          (b) appoint a municipal inspector for the purpose of carrying out and in accordance
47     with the provisions of this chapter.
48          [(2)] (3) A municipal legislative body may not:
49          (a) prohibit an owner or occupant of real property within the municipality's
50     jurisdiction, including an owner or occupant who receives a notice in accordance with Section
51     10-11-2, from selecting a person, as defined in Section 10-1-104, to provide an abatement
52     service for injurious and noxious weeds, garbage and refuse, a public nuisance, or an illegal
53     object or structure; or
54          (b) require that an owner or occupant described in Subsection [(2)] (3)(a) use the
55     services of the municipal inspector or any assistance employed by the municipal inspector
56     described in Section 10-11-3 to provide an abatement service described in Subsection [(2)]

57     (3)(a).
58          [(3)] (4) A municipality may require that an owner or occupant described in Subsection
59     [(2)] (3)(a) use the abatement services, as described in Section 10-11-3, of the municipal
60     inspector, including the use of a certified decontamination specialist as described in Section
61     19-6-906, or any assistance employed by the municipal inspector if:
62          (a) the municipality adopts an ordinance providing a reasonable period of time of at
63     least 10 days for an owner or occupant to abate the owner's or occupant's property after
64     receiving a notice described in Section 10-11-2; and
65          (b) the owner or occupant fails to abate the property within the reasonable period of
66     time and in accordance with the notice.
67          (5) A municipality may require that an owner or occupant use the abatement services of
68     a certified decontamination specialist to abate hazardous materials.
69          (6) Nothing in this chapter may be construed:
70          (a) as authorizing a municipality to regulate items that are within the exclusive
71     jurisdiction of the Department of Agriculture and Food as provided in Section 4-2-305,
72     including commercial feed, fertilizer, pesticides, and seeds; or
73          (b) as limiting or abrogating the authority of a local health department under Section
74     19-6-905.
75          Section 2. Section 10-11-2 is amended to read:
76          10-11-2. Inspection of property -- Notice -- Penalties.
77          (1) (a) If a municipality adopts an ordinance describing the duties of a municipal
78     inspector appointed under Section 10-11-1, the ordinance:
79          (i) may, subject to Subsection (1)(b), direct the inspector to examine and investigate
80     real property for:
81          (A) the growth and spread of injurious and noxious weeds;
82          (B) garbage and refuse;
83          (C) a public nuisance; [or]
84          (D) an illegal object or structure; [and] or

85          (E) hazardous materials; and
86          (ii) if an inspector conducts an examination and investigation under Subsection (1)(a),
87     shall direct the inspector to deliver written notice of the examination and investigation in
88     accordance with Subsection (2).
89          (b) An ordinance described in Subsection (1)(a) may not direct an inspector or
90     authorize a municipality to abate conditions solely associated with the interior of a structure,
91     unless required:
92          (i) for the demolition and removal of the structure[.]; or
93          (ii) to eliminate or remove hazardous materials within a structure that has been closed
94     to occupancy or entry by a local health department or fire department.
95          (c) An ordinance described in Subsection (1)(a) may direct an inspector or authorize a
96     municipality to issue an order limiting or restricting access to a structure and the real property
97     appurtenant to the structure while the municipal inspector or a certified decontamination
98     specialist destroys, removes, or abates hazardous materials within the structure.
99          (d) If a municipality has adopted an ordinance establishing an administrative
100     proceeding process for the violation of a municipal ordinance in accordance with the
101     requirements of Section 10-3-703.7, the municipality may adopt an ordinance imposing the
102     following for a violation of an order issued under Subsection (1)(c):
103          (i) a civil penalty in accordance with Subsection 10-3-703(2); or
104          (ii) in accordance with Subsection 10-3-703(1), a criminal penalty, including by a fine
105     not to exceed the maximum class B misdemeanor fine under Section 76-3-301, by a term of
106     imprisonment up to six months, or by both the fine and term of imprisonment.
107          (e) An ordinance adopted in accordance with Subsection (1)(d) shall provide 180 days
108     after the day on which the written notice from an inspector is delivered in person or the date the
109     notice is post-marked for the recipient of the notice to:
110          (i) abate the hazardous materials; or
111          (ii) appeal the notice and begin the administrative proceeding process.
112          (2) (a) (i) The municipal inspector shall serve written notice to a property owner of

113     record according to the records of the county recorder in accordance with Subsection (2)(b).
114          (ii) The municipal inspector may serve written notice in accordance with Subsection
115     (2)(b) to a non-owner occupant of the property or another person responsible for the property
116     who is not the owner of record, including a manager or agent of the owner, if:
117          (A) the property owner is not an occupant of the property; and
118          (B) the municipality in which the property is located has adopted an ordinance
119     imposing a duty to maintain the property on an occupant who is not the property owner of
120     record or a person other than the property owner of record who is responsible for the property.
121          (b) The municipal inspector may serve the written notice:
122          (i) in person or by mail to the property owner of record as described in Subsection
123     (2)(a)(i), if mailed to the last-known address of the owner according to the records of the
124     county recorder; or
125          (ii) in person or by mail to a non-owner occupant or another person responsible for the
126     property who is not the owner of record as described in Subsection (2)(a)(ii), if mailed to the
127     property address.
128          (c) In the written notice described in Subsection (2)(a), the municipal inspector shall:
129          (i) identify the property owner of record according to the records of the county
130     recorder;
131          (ii) describe the property and the nature and results of the examination and
132     investigation conducted in accordance with Subsection (1)(a); [and]
133          (iii) identify the relevant regulation or ordinance at issue and describe the violation of
134     the relevant regulation or ordinance;
135          (iv) describe each order, fine, or penalty that may be imposed;
136          (v) for a structure or any real property closed to occupancy or entry by a local health
137     department because of hazardous materials, explain the right of a property owner, occupant, or,
138     if applicable, another person responsible for the property to abate the hazardous materials or
139     appeal the notice within 180 days after the day on which notice is delivered in person or the
140     date the notice is post-marked; and

141          [(iii)] (vi) require the property owner, occupant, or, if applicable, another person
142     responsible for the property to:
143          (A) eradicate or destroy and remove any identified item examined and investigated
144     under Subsection (1)(a); and
145          (B) comply with Subsection (2)(c)(iii)(A) in a time period designated by the municipal
146     inspector but no less than 10 days after the day on which notice is delivered in person or
147     post-marked, or for a notice related to hazardous materials, no less than 180 days after the day
148     on which notice is delivered in person or post-marked.
149          (d) For a notice of injurious and noxious weeds described in Subsection (2)(a), the
150     municipal inspector is not required to make more than one notice for each annual season of
151     weed growth for weeds growing on a property.
152          (e) The municipal inspector shall serve the notice required under Subsection (2)(a)(i)
153     under penalty of perjury.
154          (f) For a structure or any real property closed to occupancy or entry by a local health
155     department because of hazardous materials, unless an order issued by a court of competent
156     jurisdiction states otherwise, a municipality may not impose a fine or penalty on a property
157     owner, occupant, or another person responsible for the structure or real property, and may not
158     authorize a municipal inspector or a certified decontamination specialist to begin abatement of
159     the hazardous materials, until:
160          (i) the appeal and administrative proceeding process is completed; or
161          (ii) the property owner, occupant, or another person responsible for the property has
162     missed the deadline for filing the appeal.
163          Section 3. Section 10-11-3 is amended to read:
164          10-11-3. Neglect of property owners -- Removal or abatement by municipality --
165     Costs of removal or abatement -- Notice -- File action or lien -- Property owner objection.
166          (1) (a) If an owner of, occupant of, or other person responsible for real property
167     described in the notice delivered in accordance with Section 10-11-2 fails to comply with
168     Section 10-11-2, a municipal inspector may:

169          (i) at the expense of the municipality, employ necessary assistance to enter the property
170     and [destroy or remove an item] destroy, remove, or abate one or more items or conditions
171     identified in a written notice described in Section 10-11-2; and
172          (ii) (A) prepare an itemized statement in accordance with Subsection (1)(b); and
173          (B) mail to the owner of record according to the records of the county recorder a copy
174     of the statement demanding payment within 30 days after the day on which the statement is
175     post-marked.
176          (b) The statement described in Subsection (1)(a)(ii)(A) shall:
177          (i) include:
178          (A) the address of the property described in Subsection (1)(a);
179          (B) an itemized list of and demand for payment for all expenses, including
180     administrative expenses, incurred by the municipality under Subsection (1)(a)(i); and
181          (C) the address of the municipal treasurer where payment may be made for the
182     expenses; and
183          (ii) notify the property owner:
184          (A) that failure to pay the expenses described in Subsection (1)(b)(i)(B) may result in a
185     lien on the property in accordance with Section 10-11-4;
186          (B) that the owner may file a written objection to all or part of the statement within 20
187     days after the day of the statement post-mark; and
188          (C) where the owner may file the objection, including the municipal office and address.
189          (c) A statement mailed in accordance with Subsection (1)(a) is delivered when mailed
190     by certified mail addressed to the property owner's of record last-known address according to
191     the records of the county recorder.
192          (d) (i) A municipality may file a notice of a lien, including a copy of the statement
193     described in Subsection (1)(a)(ii)(A) or a summary of the statement, in the records of the
194     county recorder of the county in which the property is located.
195          (ii) If a municipality files a notice of a lien indicating that the municipality intends to
196     certify the unpaid costs and expenses in accordance with Subsection (2)(a)(ii) and Section

197     10-11-4, the municipality shall file for record in the county recorder's office a release of the lien
198     after all amounts owing are paid.
199          (2) (a) If an owner fails to file a timely written objection as described in Subsection
200     (1)(b)(ii)(B) or to pay the amount set forth in the statement under Subsection (1)(b)(i)(B), the
201     municipality may:
202          (i) file an action in district court; or
203          (ii) certify the past due costs and expenses to the county treasurer of the county in
204     which the property is located in accordance with Section 10-11-4.
205          (b) If a municipality pursues collection of the costs in accordance with Subsection
206     (2)(a)(i) or (4)(a), the municipality may:
207          (i) sue for and receive judgment for all removal and destruction costs, including
208     administrative costs, and reasonable attorney fees, interest, and court costs; and
209          (ii) execute on the judgment in the manner provided by law.
210          (3) (a) If a property owner files an objection in accordance with Subsection (1)(b)(ii),
211     the municipality shall:
212          (i) hold a hearing in accordance with Title 52, Chapter 4, Open and Public Meetings
213     Act; and
214          (ii) mail or deliver notice of the hearing date and time to the property owner.
215          (b) At the hearing described in Subsection (3)(a)(i), the municipality shall review and
216     determine the actual cost of abatement, if any, incurred under Subsection (1)(a)(i).
217          (c) The property owner shall pay any actual cost due after a decision by the
218     municipality at the hearing described in Subsection (3)(a)(i) to the municipal treasurer within
219     30 days after the day on which the hearing is held.
220          (4) If the property owner fails to pay in accordance with Subsection (3)(c), the
221     municipality may:
222          (a) file an action in district court for the actual cost determined under Subsection
223     (3)(b); or
224          (b) certify the past due costs and expenses to the county treasurer of the county in

225     which the property is located in accordance with Section 10-11-4.
226          (5) This section does not affect or limit:
227          (a) a municipal governing body's power to pass an ordinance as described in Section
228     10-3-702; or
229          (b) a criminal or civil penalty imposed by a municipality in accordance with Section
230     10-3-703.