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Second Substitute H.B. 114
Representative Gerry A. Adair proposes to substitute the following bill:
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IMPACT FEES AMENDMENTS
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1999 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Gerry A. Adair
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AN ACT RELATING TO CITIES, COUNTIES, AND LOCAL TAXING UNITS; MODIFYING
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THE REQUIREMENTS FOR IMPOSING IMPACT FEES; MODIFYING THE PROCESS FOR
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CHALLENGING AN IMPACT FEE; AND MAKING TECHNICAL CHANGES.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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11-36-201, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
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11-36-202, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
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11-36-401, as enacted by Chapter 11, Laws of Utah 1995, First Special Session
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ENACTS:
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11-36-103, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
11-36-103
is enacted to read:
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11-36-103. Allowable fees for providing documents.
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If a provision of this chapter allows or requires a local political subdivision to provide or
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make available a document to the public, the local political subdivision may charge a fee, as
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provided in Section
63-2-203
, for providing or making available that document.
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Section 2.
Section
11-36-201
is amended to read:
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11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Exemptions.
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(1) (a) Each local political subdivision shall comply with the requirements of this chapter
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before establishing or modifying any impact fee.
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(b) A local political subdivision may not:
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(i) establish any new impact fees that are not authorized by this chapter; or
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(ii) impose or charge any other fees as a condition of development approval unless those
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fees are a reasonable charge for the service provided.
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(c) Notwithstanding any other requirements of this chapter, each local political subdivision
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shall ensure that each existing impact fee that is charged for any public facility not authorized by
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Subsection
11-36-102
(11) is repealed by July 1, 1995.
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(d) (i) Existing impact fees for public facilities authorized in Subsection
11-36-102
(11)
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that are charged by local political subdivisions need not comply with the requirements of this
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chapter until July 1, 1997.
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(ii) By July 1, 1997, each local political subdivision shall:
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(A) review any impact fees in existence as of the effective date of this act, and prepare and
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approve the analysis required by this section for each of those impact fees; and
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(B) ensure that the impact fees comply with the requirements of this chapter.
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(2) (a) Before imposing impact fees, each local political subdivision shall prepare a capital
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facilities plan.
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(b) The plan shall [identify]:
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(i) include an inventory of all existing public facilities within the service area;
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[(i)] (ii) identify demands placed upon existing public facilities by new development
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activity; [and]
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[(ii)] (iii) identify the proposed means by which the local political subdivision will meet
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those demands; and
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(iv) include a detailed estimate of the capital costs for any proposed system improvements.
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(c) Municipalities and counties need not prepare a separate capital facilities plan if the
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general plan required by Sections
10-9-301
and
17-27-301
contains the elements required by this
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subsection.
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(d) (i) If a local political subdivision prepares an independent capital facilities plan rather
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than including a capital facilities element in the general plan, the local political subdivision
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shall[,]:
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(A) before adopting the capital facilities plan, give public notice of the plan according to
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this [subsection, make a copy of the plan available to the public] Subsection (2)(d);
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(B) at least 14 days before the date of the public hearing[,]:
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(I) make a copy of the plan, together with a summary easily understood by the general
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public, available to the public; and
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(II) place a copy of the plan and summary in each public library within the local political
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subdivision; and
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(C) hold a public hearing to hear public comment on the plan.
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(ii) Municipalities shall comply with the notice and hearing requirements of, and receive
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the protections of, Subsections
10-9-103
(2) and
10-9-402
(2).
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(iii) Counties shall comply with the notice and hearing requirements of, and receive the
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protections of, Subsections
17-27-103
(2) and
17-27-402
(2).
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(iv) Special districts shall comply with the notice and hearing requirements of, and receive
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the protections of, Section
17A-1-203
.
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(v) Nothing contained in Subsection (2)(d) or in the subsections referenced in Subsections
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(2)(d)(ii) and (iii) may be construed to require involvement by a planning commission in the
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capital facilities planning process.
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(e) Local political subdivisions with a population or serving a population of less than 5000
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as of the last federal census need not comply with the capital facilities plan requirements of this
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part, but shall ensure that the impact fees imposed by them are based upon a reasonable plan.
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(3) In preparing the plan, each local political subdivision shall [generally]:
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(a) consider all revenue sources, including impact fees, to finance the impacts on system
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improvements; and
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(b) specifically explain the effect that other revenue sources would have on the average
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household if the other revenue sources were used instead of impact fees.
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(4) A local political subdivision may only impose impact fees on development activities
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when its plan for financing system improvements establishes that impact fees are necessary to
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achieve an equitable allocation to the costs borne in the past and to be borne in the future, in
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comparison to the benefits already received and yet to be received.
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(5) (a) Each local political subdivision imposing impact fees shall prepare a written
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analysis of each impact fee that:
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(i) identifies the impact on system improvements required by the development activity;
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(ii) demonstrates how those impacts on system improvements are reasonably related to the
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development activity;
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(iii) estimates the proportionate share of the costs of impacts on system improvements
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that are reasonably related to the new development activity; and
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(iv) based upon those factors and the requirements of this chapter, identifies how the
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impact fee was calculated.
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(b) In establishing that impact fees are necessary to achieve an equitable allocation to the
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costs borne in the past and to be borne in the future, in comparison to the benefits already received
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and yet to be received, and in analyzing whether or not the proportionate share of the costs of
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public facilities are reasonably related to the new development activity, the local political
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subdivision shall identify[, if applicable]:
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(i) the original cost of all existing public facilities or, if the original cost is not readily
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ascertainable, a good faith estimate of the original cost;
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(ii) the manner of financing existing public facilities, such as user charges, special
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assessments, bonded indebtedness, general taxes, or federal grants;
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(iii) the relative extent to which the newly developed properties and the other properties
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in the municipality have already contributed to the cost of existing public facilities, by such means
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as user charges, special assessments, or payment from the proceeds of general taxes;
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(iv) the relative extent to which the newly developed properties and the other properties
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in the municipality will contribute to the cost of existing public facilities in the future;
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(v) the extent to which the newly developed properties are entitled to a credit because the
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municipality is requiring their developers or owners, by contractual arrangement or otherwise, to
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provide common facilities, inside or outside the proposed development, that have been provided
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by the municipality and financed through general taxation or other means, apart from user charges,
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in other parts of the municipality;
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(vi) extraordinary costs, if any, in servicing the newly developed properties; and
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(vii) the time-price differential inherent in fair comparisons of amounts paid at different
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times.
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(c) In identifying the items in Subsection (5)(b), each local political subdivision shall, in
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its written analysis, explain in detail the information on which the local political subdivision bases
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its determination of the equitable allocation of the costs borne by existing and new development
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in comparison to the benefits already received and yet to be received by both.
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(d) A local political subdivision may not adopt an impact fee enactment if any of the items
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in Subsection (5)(b) is not expressly identified or if the explanation required under Subsection
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(5)(c) is not provided for any of those items.
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(e) A local political subdivision may not begin to prepare a written analysis required under
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this Subsection (5) until 14 days after adoption of a capital facilities plan.
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(f) (i) Before adopting a written analysis under this Subsection (5), each local political
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subdivision shall:
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(A) give public notice of the written analysis according to this Subsection (5)(f);
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(B) at least 14 days before the date of the public hearing:
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(I) make a copy of the written analysis, with a brief summary, available to the public; and
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(II) place a copy of the written analysis and summary in each public library within the local
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political subdivision; and
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(C) hold a public hearing to obtain public comment on the analysis.
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(ii) Each municipality shall comply with the notice and hearing requirements and receive
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the protections of Subsections
10-9-103
(2) and
10-9-402
(2).
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(iii) Each county shall comply with the notice and hearing requirements and receive the
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protections of Subsections
17-27-103
(2) and
17-27-402
(2).
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(iv) Each special district shall comply with the notice and hearing requirements and
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receive the protections of Section
17A-1-203
.
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(6) Nothing in this chapter may be construed to repeal or otherwise eliminate any impact
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fee in effect on the effective date of this act that is pledged as a source of revenues to pay bonded
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indebtedness that was incurred before the effective date of this act.
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Section 3.
Section
11-36-202
is amended to read:
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11-36-202. Impact fees -- Enactment -- Required provisions.
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(1) (a) Each local political subdivision wishing to impose impact fees shall pass an impact
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fee enactment.
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(b) The impact fee imposed by that enactment may not exceed the highest fee justified by
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the impact fee analysis performed pursuant to Section
11-36-201
.
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(c) In calculating the impact fee, each local political subdivision may include:
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(i) the construction contract price;
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(ii) the cost of acquiring land, improvements, materials, and fixtures;
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(iii) the cost for planning, surveying, and engineering fees for services provided for and
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directly related to the construction of the system improvements; and
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(iv) debt service charges, if the political subdivision might use impact fees as a revenue
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stream to pay the principal and interest on bonds, notes, or other obligations issued to finance the
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costs of the system improvements.
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(d) In enacting an impact fee enactment:
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(i) municipalities shall:
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(A) make a copy of the impact fee enactment available to the public at least 14 days before
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the date of the public hearing; and
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(B) comply with the notice and hearing requirements of, and receive the protections of,
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Subsections
10-9-103
(2) and
10-9-802
(2);
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(ii) counties shall:
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(A) make a copy of the impact fee enactment available to the public at least 14 days before
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the date of the public hearing; and
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(B) comply with the notice and hearing requirements of, and receive the protections of,
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Subsections
17-27-103
(2) and
17-27-802
(2); and
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(iii) special districts shall:
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(A) make a copy of the impact fee enactment available to the public at least 14 days before
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the date of the public hearing; and
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(B) comply with the notice and hearing requirements of, and receive the protections of,
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Section
17A-1-203
.
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(e) Nothing contained in Subsection (1)(d) or in the subsections referenced in Subsections
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(d)(i)(B) and (ii)(B) may be construed to require involvement by a planning commission in the
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impact fee enactment process.
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(f) A local political subdivision may not begin to prepare an impact fee enactment until
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14 days after adoption of the written analysis required under Subsection
11-36-201
(5).
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(2) The local political subdivision shall ensure that the impact fee enactment contains:
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(a) a provision establishing one or more service areas within which it shall calculate and
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impose impact fees for various land use categories;
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(b) either:
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(i) a schedule of impact fees for each type of development activity that specifies the
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amount of the impact fee to be imposed for each type of system improvement; or
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(ii) the formula that the local political subdivision will use to calculate each impact fee;
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(c) a provision authorizing the local political subdivision to adjust the standard impact fee
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at the time the fee is charged to:
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(i) respond to unusual circumstances in specific cases; and
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(ii) ensure that the impact fees are imposed fairly; and
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(d) a provision governing calculation of the amount of the impact fee to be imposed on a
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particular development that permits adjustment of the amount of the fee based upon studies and
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data submitted by the developer.
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(3) The local political subdivision may include a provision in the impact fee enactment
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that:
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(a) exempts low income housing and other development activities with broad public
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purposes from impact fees and establishes one or more sources of funds other than impact fees to
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pay for that development activity; and
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(b) imposes an impact fee for public facility costs previously incurred by a local political
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subdivision to the extent that new growth and development will be served by the previously
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constructed improvement[; and (c) allows].
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(4) Each impact fee enactment shall include a provision that gives a fair market value
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credit against impact fees for any dedication of land for, improvement to, or new construction of,
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any system improvements provided by the developer if the facilities:
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[(i)] (a) are identified in the capital facilities plan; and
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[(ii)] (b) are required by the local political subdivision as a condition of approving the
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development activity.
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[(4) Except as provided in Subsection (3)(b), the]
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(5) A local political subdivision may not impose an impact fee to cure deficiencies in
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public facilities serving existing development.
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[(5)] (6) Notwithstanding the requirements and prohibitions of this chapter, a local
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political subdivision may impose and assess an impact fee for environmental mitigation when:
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(a) the local political subdivision has formally agreed to fund a Habitat Conservation Plan
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to resolve conflicts with the Endangered Species Act of 1973, 16 U.S.C. Sec 1531, et seq. or other
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state or federal environmental law or regulation; [and]
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(b) the impact fee bears a reasonable relationship to the environmental mitigation required
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by the Habitat Conservation Plan; and
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(c) the legislative body of the local political subdivision adopts an ordinance or resolution:
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(i) declaring that an impact fee is required to finance the Habitat Conservation Plan;
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(ii) establishing periodic sunset dates for the impact fee; and
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(iii) requiring the legislative body to:
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(A) review the impact fee on those sunset dates;
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(B) determine whether or not the impact fee is still required to finance the Habitat
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Conservation Plan; and
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(C) affirmatively reauthorize the impact fee if the legislative body finds that the impact
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fee must remain in effect.
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[(6)] (7) Each political subdivision shall ensure that any existing impact fee for
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environmental mitigation meets the requirements of Subsection (5) by July 1, 1995.
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[(7)] (8) Notwithstanding any other provision of this chapter, municipalities imposing
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impact fees to fund fire trucks as of the effective date of this act may impose impact fees for fire
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trucks until July 1, 1997.
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[(8)] (9) Notwithstanding any other provision of this chapter, a local political subdivision
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may impose and collect impact fees on behalf of a school district if authorized by Section
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53A-20-100.5
.
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Section 4.
Section
11-36-401
is amended to read:
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11-36-401. Impact fees -- Challenges -- Appeals.
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(1) Any person or entity residing in or owning property within a service area, and any
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organization, association, or corporation representing the interests of persons or entities owning
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property within a service area, may file a declaratory judgment action challenging the validity of
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the fee.
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(2) (a) Any person or entity required to pay an impact fee who believes the fee does not
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meet the requirements of law may file a written request for information with the local political
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subdivision who established the fee.
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(b) Within two weeks of the receipt of the request for information, the local political
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subdivision shall provide the person or entity with the written analysis required by Section
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11-36-201
, the capital facilities plan, and with any other relevant information relating to the impact
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fee.
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[(3) Within 30 days after paying an impact fee, any person or entity who has paid the fee
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and wishes to challenge the fee shall:]
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[(a) file a written request for information and pursue administrative remedies, if the local
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political subdivision has adopted an ordinance establishing an administrative appeals procedure;
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or]
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[(b) file an action challenging the impact fees with the district court, if the local political
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subdivision has not adopted an ordinance establishing an administrative appeals procedure.]
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[(4) (a) Any local political subdivision may establish, by ordinance, an administrative
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appeals procedure to consider and decide challenges to impact fees.]
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[(b) If the local political subdivision establishes an administrative appeals procedure, the
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local political subdivision shall ensure that the procedure includes a requirement that the local
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political subdivision make its decision no later than 30 days after the date the challenge to the
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impact fee is filed.]
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[(c) A person or entity who has failed to comply with the administrative remedies
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established by this section may not file or join an action challenging the validity of any impact fee.]
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[(5) (a) If the local political subdivision establishes an administrative appeals procedure,
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within 90 days of a decision upholding an impact fee by a local political subdivision or within 120
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days after the date the challenge to the impact fee was filed, whichever is earlier, any party to the
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administrative action who is adversely affected by the local political subdivision's decision may
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petition the district court for a review of the decision.]
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[(b) (i) The local political subdivision shall transmit to the reviewing court the record of
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its proceedings including its minutes, findings, orders and, if available, a true and correct transcript
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of its proceedings.]
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[(ii) If the proceeding was tape recorded, a transcript of that tape recording is a true and
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correct transcript for purposes of Subsection (b).]
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[(c) (i) If there is a record:]
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[(A) the district court's review is limited to the record provided by the local political
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subdivision; and]
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[(B) the court may not accept or consider any evidence outside the local political
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subdivision's record unless that evidence was offered to the local political subdivision and the
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court determines that it was improperly excluded by the local political subdivision.]
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[(ii) If there is an inadequate record, the court may call witnesses and take evidence.]
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[(d) The court shall affirm the decision of the local political subdivision if the decision is
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supported by substantial evidence in the record.]
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(3) At any time within two years after imposition of an impact fee, a person or entity may
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file an action in district court challenging an impact fee as not meeting all the requirements of this
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chapter if the person or entity:
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(a) resides in, owns, or has an interest in property within the service area affected by the
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impact fee; or
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(b) is required to pay the impact fee.
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[(6)] (4) The judge may award reasonable attorneys' fees and costs to the prevailing party
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in any action brought under this section.
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[(7)] (5) Nothing in this chapter may be construed as restricting or limiting any rights to
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challenge impact fees that were paid before the effective date of this [act] chapter.
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