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H.B. 137
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IMPACT FEE AMENDMENTS
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2000 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 PROCEDURE 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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11-36-402, as enacted by Chapter 148, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
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) demands placed upon existing public facilities by new development activity; and
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(ii) the proposed means by which the local political subdivision will meet those demands.
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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 (2)(b).
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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 shall,
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before adopting the capital facilities plan[,]:
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(A) give public notice of the plan according to this [subsection, make a copy of the plan
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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 designed to be understood by a lay
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person, 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, except
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as provided in Subsection
11-36-401
(4)(f), receive the protections of, Subsections
10-9-103
(2) and
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10-9-402
(2).
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(iii) Counties shall comply with the notice and hearing requirements of, and, except as
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provided in Subsection
11-36-401
(4)(f), receive the protections of, Subsections
17-27-103
(2) and
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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 consider all
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revenue sources, including impact fees, to finance the impacts on system improvements.
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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 analyzing whether or not the proportionate share of the costs of public facilities are
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reasonably related to the new development activity, the local political subdivision shall identify,
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if applicable:
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(i) the cost of existing public facilities;
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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) Each local political subdivision that prepares a written analysis under this Subsection
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(5) on or after July 1, 2000 shall also prepare a summary of the written analysis, designed to be
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understood by a lay person.
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(6) Each local political subdivision that adopts an impact fee enactment under Section
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11-36-202
on or after July 1, 2000 shall, at least 14 days before adopting the enactment, submit
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to each public library within the local political subdivision:
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(a) a copy of the written analysis required by Subsection (5)(a); and
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(b) a copy of the summary required by Subsection (5)(c).
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[(6)] (7) Nothing in this chapter may be construed to repeal or otherwise eliminate any
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impact fee in effect on the effective date of this act that is pledged as a source of revenues to pay
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bonded indebtedness that was incurred before the effective date of this act.
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Section 2.
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, except as provided in
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Subsection
11-36-401
(4)(f), receive the protections of, 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, except as provided in
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Subsection
11-36-401
(4)(f), receive the protections of, Subsections
17-27-103
(2) and
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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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(1)(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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(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;
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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
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(c) allows a credit against impact fees for any dedication of land for, improvement to, or
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new construction of, any system improvements provided by the developer if the facilities:
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(i) are identified in the capital facilities plan; and
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(ii) 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 local political subdivision may not impose
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an impact fee to cure deficiencies in public facilities serving existing development.
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(5) Notwithstanding the requirements and prohibitions of this chapter, a local political
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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) Each political subdivision shall ensure that any existing impact fee for environmental
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mitigation meets the requirements of Subsection (5) by July 1, 1995.
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(7) Notwithstanding any other provision of this chapter, municipalities imposing impact
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fees to fund fire trucks as of the effective date of this act may impose impact fees for fire trucks
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until July 1, 1997.
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(8) Notwithstanding any other provision of this chapter, a local political subdivision may
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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 3.
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)] (3) (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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(4) (a) In addition to the method of challenging an impact fee under Subsection (1), a
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person or entity that has paid an impact fee that was imposed by a local political subdivision may
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challenge:
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(i) if the impact fee enactment was adopted on or after July 1, 2000:
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(A) whether the local political subdivision complied with the notice requirements of this
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chapter with respect to the imposition of the impact fee; and
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(B) whether the local political subdivision complied with other procedural requirements
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of this chapter for imposing the impact fee; and
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(ii) except as limited by Subsection (4)(a)(i), the impact fee.
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(b) A challenge under Subsection (4)(a) may not be initiated unless it is initiated within:
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(i) for a challenge under Subsection (4)(a)(i)(A), 30 days after the person or entity pays the
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impact fee;
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(ii) for a challenge under Subsection (4)(a)(i)(B), 180 days after the person or entity pays
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the impact fee; or
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(iii) for a challenge under Subsection (4)(a)(ii), one year after the person or entity pays the
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impact fee.
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(c) A challenge under Subsection (4)(a) is initiated by filing:
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(i) if the local political subdivision has established an administrative appeals procedure
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under Subsection (3), the necessary document, under the administrative appeals procedure, for
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initiating the administrative appeal;
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(ii) a request for arbitration as provided in Subsection
11-36-402
(1); or
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(iii) an action in district court.
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(d) (i) The sole remedy for a challenge under Subsection (4)(a)(i)(A) is the equitable
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remedy of requiring the local political subdivision to correct the defective notice and repeat the
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process.
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(ii) The sole remedy for a challenge under Subsection (4)(a)(i)(B) is the equitable remedy
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of requiring the local political subdivision to correct the defective process.
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(iii) The sole remedy for a challenge under Subsection (4)(a)(ii) is a refund of the
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difference between what the person or entity paid as an impact fee and the amount the impact fee
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should have been if it had been correctly calculated.
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(e) Nothing in this Subsection (4) may be construed as requiring a person or entity to
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exhaust administrative remedies with the local political subdivision before filing an action in
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district court under this Subsection (4).
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(f) The protections given to a municipality under Subsection
10-9-103
(2) and to a county
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under Subsection
17-27-103
(2) do not apply in a challenge under Subsection (4)(a)(i)(A).
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[(6)] (5) 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)] (6) 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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Section 4.
Section
11-36-402
is amended to read:
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11-36-402. Challenging an impact fee by arbitration -- Procedure -- Appeal -- Costs.
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[(1) In addition to the procedure under Section
11-36-401
to challenge an impact fee, a
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person or entity may submit an impact fee challenge to arbitration if the person or entity:]
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[(a) (i) resides in or owns property within a service area; or]
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[(ii) is an organization, association, or corporation representing the interests of a person
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or entity owning property within a service area; and]
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[(b) files] (1) Each person or entity intending to challenge an impact fee under Subsection
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11-36-401
(4)(c)(ii) shall file a written request for arbitration with the local political subdivision
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within [30 days after the day the impact fee is paid] the time limitation provided in Subsection
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11-36-401
(4)(b) for the applicable type of challenge.
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(2) If a person or entity files a written request for arbitration under Subsection (1), an
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arbitrator or arbitration panel shall be selected as follows:
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(a) the local political subdivision and the person or entity filing the request may agree on
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a single arbitrator within ten days after the day the request for arbitration is filed; or
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(b) if a single arbitrator is not agreed to in accordance with Subsection (2)(a), an arbitration
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panel shall be created with the following members:
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(i) each party shall select an arbitrator within 20 days after the date the request is filed; and
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(ii) the arbitrators selected under Subsection (2)(b)(i) shall select a third arbitrator.
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(3) The arbitration panel shall hold a hearing on the challenge within 30 days after the
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date:
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(a) the single arbitrator is agreed on under Subsection (2)(a); or
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(b) the two arbitrators are selected under Subsection (2)(b)(i).
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(4) The arbitrator or arbitration panel shall issue a decision in writing within ten days from
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the date the hearing under Subsection (3) is completed.
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(5) Except as provided in this section, each arbitration shall be governed by Title 78,
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Chapter 31a, Utah Arbitration Act.
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(6) The parties may agree to:
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(a) binding arbitration;
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(b) formal, nonbinding arbitration; or
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(c) informal, nonbinding arbitration.
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(7) If the parties agree in writing to binding arbitration:
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(a) the arbitration shall be binding;
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(b) the decision of the arbitration panel shall be final;
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(c) neither party may appeal the decision of the arbitration panel; and
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(d) notwithstanding Subsection (10), the person or entity challenging the impact fee may
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not [file an action] also challenge the impact fee under [Section] Subsection
11-36-401
(1),
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(4)(c)(i), or (4)(c)(iii).
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(8) (a) Except as provided in Subsection (8)(b), if the parties agree to formal, nonbinding
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arbitration, the arbitration shall be governed by the provisions of Title 63, Chapter 46b,
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Administrative Procedures Act.
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(b) For purposes of applying Title 63, Chapter 46b, Administrative Procedures Act, to a
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formal, nonbinding arbitration under this section, notwithstanding Section
63-46b-20
, "agency"
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means a local political subdivision.
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(9) (a) An appeal from a decision in an informal, nonbinding arbitration may be filed with
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the district court in which the local political subdivision is located.
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(b) Each appeal under Subsection (9)(a) shall be filed within 30 days after the date the
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arbitration panel issues a decision under Subsection (4).
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(c) The district court shall consider de novo each appeal filed under this Subsection (9).
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(d) Notwithstanding Subsection (10), a person or entity that files an appeal under this
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Subsection (9) may not [file an action] also challenge the impact fee under [Section] Subsection
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11-36-401
(1), (4)(c)(i), or (4)(c)(iii).
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(10) (a) Except as provided in Subsections (7)(d) and (9)(d), this section may not be
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construed to prohibit a person or entity from challenging an impact fee as provided in [Section]
338
Subsection
11-36-401
(1), (4)(c)(i), or (4)(c)(iii).
339
(b) The filing of a written request for arbitration within [30 days after the date the impact
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fee is paid] the required time in accordance with Subsection (1) tolls all time limitations under
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Section
11-36-401
until the date the arbitration panel issues a decision.
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(11) The person or entity filing a request for arbitration and the local political subdivision
343
shall equally share all costs of an arbitration proceeding under this section.
Legislative Review Note
as of 1-10-00 4:06 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.