This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 20, 2024 at 12:01 PM by lpoole.
Representative Anthony E. Loubet proposes the following substitute bill:


1     
PROPERTY RIGHTS OMBUDSMAN AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Kera Birkeland

5     
Senate Sponsor: Lincoln Fillmore

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Property Rights Ombudsman Act.
10     Highlighted Provisions:
11          This bill:
12          ▸ Ŝ→ [     clarifies] provides ←Ŝ that a party who prevails in court on an issue that the
12a     Office of the Property
13     Rights Ombudsman previously decided in the party's favor Ŝ→ [is] may be ←Ŝ entitled to an
13a     award of
14     attorney fees;
15          ▸     provides that the party described above may be entitled to collect a civil penalty and
16     consequential damages Ŝ→ in certain circumstances ←Ŝ ; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          13-43-206, as last amended by Laws of Utah 2020, Fifth Special Session, Chapter 4
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 13-43-206 is amended to read:
28          13-43-206. Advisory opinion -- Process.
29          (1) A request for an advisory opinion under Section 13-43-205 shall be:
30          (a) filed with the Office of the Property Rights Ombudsman; and
31          (b) accompanied by a filing fee of $150.
32          (2) The Office of the Property Rights Ombudsman may establish policies providing for
33     partial fee waivers for a person who is financially unable to pay the entire fee.
34          (3) A person requesting an advisory opinion need not exhaust administrative remedies,
35     including remedies described under Section 10-9a-801 or 17-27a-801, before requesting an
36     advisory opinion.
37          (4) The Office of the Property Rights Ombudsman shall:
38          (a) deliver notice of the request to opposing parties indicated in the request;
39          (b) inquire of all parties if there are other necessary parties to the dispute; and
40          (c) deliver notice to all necessary parties.
41          (5) If a governmental entity is an opposing party, the Office of the Property Rights
42     Ombudsman shall deliver the request in the manner provided for in Section 63G-7-401.
43          (6) (a) The Office of the Property Rights Ombudsman shall promptly determine if the
44     parties can agree to a neutral third party to issue an advisory opinion.
45          (b) If no agreement can be reached within four business days after notice is delivered
46     pursuant to Subsections (4) and (5), the Office of the Property Rights Ombudsman shall
47     appoint a neutral third party to issue an advisory opinion.
48          (7) All parties that are the subject of the request for advisory opinion shall:
49          (a) share equally in the cost of the advisory opinion; and
50          (b) provide financial assurance for payment that the neutral third party requires.
51          (8) The neutral third party shall comply with the provisions of Section 78B-11-109,
52     and shall promptly:
53          (a) seek a response from all necessary parties to the issues raised in the request for
54     advisory opinion;
55          (b) investigate and consider all responses; and
56          (c) issue a written advisory opinion within 15 business days after the appointment of
57     the neutral third party under Subsection (6)(b), unless:
58          (i) the parties agree to extend the deadline; or
59          (ii) the neutral third party determines that the matter is complex and requires additional
60     time to render an opinion, which may not exceed 30 calendar days.
61          (9) An advisory opinion shall include a statement of the facts and law supporting the
62     opinion's conclusions.
63          (10) (a) Copies of any advisory opinion issued by the Office of the Property Rights
64     Ombudsman shall be delivered as soon as practicable to all necessary parties.
65          (b) A copy of the advisory opinion shall be delivered to the government entity in the
66     manner provided for in Section 63G-7-401.
67          (11) An advisory opinion issued by the Office of the Property Rights Ombudsman is
68     not binding on any party to, nor admissible as evidence in, a dispute involving land use law
69     except as provided in Subsection (12).
70          (12) Subject to Subsection (13), if the Office of the Property Rights Ombudsman issues
71     an advisory opinion described in this section, and if the same issue that is the subject of the
72     advisory opinion is subsequently litigated in court on a cause of action alleging the same facts
73     and circumstances that are at issue in the advisory opinion, and if the court resolves the issue
74     consistent with the advisory opinion, the court Ŝ→ [shall] may ←Ŝ award the substantially
74a     prevailing party:
75          (a) reasonable attorney fees and court costs pertaining to the development of the cause
76     of action from the date the Office of the Property Rights Ombudsman delivers the advisory
77     opinion to the date of the court's resolution; and
78          (b) if the court finds that the opposing party knowingly and intentionally violated the
79     law governing the cause of action:
80          (i) a civil penalty of $250 per day; and
81          (ii) consequential damages;
82          [(12) Subject to Subsection (13), if a dispute involving land use law results in the
83     issuance of an advisory opinion described in this section, if the same issue that is the subject of
84     the advisory opinion is subsequently litigated on the same facts and circumstances at issue in
85     the advisory opinion, and if the relevant issue is resolved consistent with the advisory opinion,
86     the substantially prevailing party on that cause of action may collect:]
87          [(a) reasonable attorney fees and court costs pertaining to the development of that
88     cause of action from the date of the delivery of the advisory opinion to the date of the court's
89     resolution; and]
90          [(b) subject to Subsection (13), if the court finds that the opposing party knowingly and
91     intentionally violated the law governing that cause of action, a civil penalty of $250 per day:]
92          [(i) beginning on the later of:]
93          [(A) 30 days after the day on which the advisory opinion was delivered; or]
94          [(B) the day on which the action was filed; and]
95          [(ii) ending the day on which the court enters a final judgment.]
96          (13) (a) Subsection (12) does not apply unless the resolution described in Subsection
97     [(12)] (12)(a) is final.
98          (b) [A court may not impose a civil penalty under Subsection (12)(b) against or in
99     favor of a party other than the land use applicant or a government entity.] The civil penalty
100     described in Subsection (12)(b)(i):
101          (i) begins to accrue on the later of:
102          (A) 30 days after the day on which the Office of the Property Rights Ombudsman
103     delivers the advisory opinion; or
104          (B) the day on which the substantially prevailing party or opposing party filed the
105     action in court; and
106          (ii) ends the day on which the court enters a final judgment.
107          (c) A court may not impose a civil penalty against a party under Subsection (12)(b)(i)
108     unless the party is the land use applicant or a government entity.
109          (14) In addition to any amounts awarded under Subsection (12), if the dispute
110     described in Subsection (12) in whole or in part concerns an impact fee, and if the result of the
111     litigation requires that the political subdivision or private entity refund the impact fee in
112     accordance with Section 11-36a-603, the political subdivision or private entity shall refund the
113     impact fee in an amount that is based on the difference between the impact fee paid and what
114     the impact fee should have been if the political subdivision or private entity had correctly
115     calculated the impact fee.
116          (15) Nothing in this section is intended to create [any] a new cause of action under land
117     use law.
118          (16) Unless filed by the local government, a request for an advisory opinion under
119     Section 13-43-205 does not stay the progress of a land use application, the effect of a land use
120     decision, or the condemning entity's occupancy of a property.
121          Section 2. Effective date.
122          This bill takes effect on May 1, 2024.