10-9a-801 - No district court review until administrative remedies exhausted -- Time for filing -- Tolling of time -- Standards governing court review -- Record on review -- Staying of decision.
10-9a-801. No district court review until administrative remedies exhausted -- Timefor filing -- Tolling of time -- Standards governing court review -- Record on review --Staying of decision.
(1) No person may challenge in district court a municipality's land use decision madeunder this chapter, or under a regulation made under authority of this chapter, until that personhas exhausted the person's administrative remedies as provided in Part 7, Appeal Authority andVariances, if applicable.
(2) (a) Any person adversely affected by a final decision made in the exercise of or inviolation of the provisions of this chapter may file a petition for review of the decision with thedistrict court within 30 days after the local land use decision is final.
(b) (i) The time under Subsection (2)(a) to file a petition is tolled from the date aproperty owner files a request for arbitration of a constitutional taking issue with the propertyrights ombudsman under Section 13-43-204 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the property rights ombudsman issues a written statement under Subsection13-43-204(3)(b) declining to arbitrate or to appoint an arbitrator.
(ii) A tolling under Subsection (2)(b)(i) operates only as to the specific constitutionaltaking issue that is the subject of the request for arbitration filed with the property rightsombudsman by a property owner.
(iii) A request for arbitration filed with the property rights ombudsman after the timeunder Subsection (2)(a) to file a petition has expired does not affect the time to file a petition.
(3) (a) The courts shall:
(i) presume that a decision, ordinance, or regulation made under the authority of thischapter is valid; and
(ii) determine only whether or not the decision, ordinance, or regulation is arbitrary,capricious, or illegal.
(b) A decision, ordinance, or regulation involving the exercise of legislative discretion isvalid if it is reasonably debatable that the decision, ordinance, or regulation promotes thepurposes of this chapter and is not otherwise illegal.
(c) A final decision of a land use authority or an appeal authority is valid if the decisionis supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.
(d) A determination of illegality requires a determination that the decision, ordinance, orregulation violates a law, statute, or ordinance in effect at the time the decision was made or theordinance or regulation adopted.
(4) The provisions of Subsection (2)(a) apply from the date on which the municipalitytakes final action on a land use application for any adversely affected third party, if themunicipality conformed with the notice provisions of Part 2, Notice, or for any person who hadactual notice of the pending decision.
(5) If the municipality has complied with Section 10-9a-205, a challenge to theenactment of a land use ordinance or general plan may not be filed with the district court morethan 30 days after the enactment.
(6) The petition is barred unless it is filed within 30 days after the appeal authority'sdecision is final.
(7) (a) The land use authority or appeal authority, as the case may be, shall transmit tothe reviewing court the record of its proceedings, including its minutes, findings, orders, and, if
available, a true and correct transcript of its proceedings.
(b) If the proceeding was tape recorded, a transcript of that tape recording is a true andcorrect transcript for purposes of this Subsection (7).
(8) (a) (i) If there is a record, the district court's review is limited to the record providedby the land use authority or appeal authority, as the case may be.
(ii) The court may not accept or consider any evidence outside the record of the land useauthority or appeal authority, as the case may be, unless that evidence was offered to the land useauthority or appeal authority, respectively, and the court determines that it was improperlyexcluded.
(b) If there is no record, the court may call witnesses and take evidence.
(9) (a) The filing of a petition does not stay the decision of the land use authority orauthority appeal authority, as the case may be.
(b) (i) Before filing a petition under this section or a request for mediation or arbitrationof a constitutional taking issue under Section 13-43-204, the aggrieved party may petition theappeal authority to stay its decision.
(ii) Upon receipt of a petition to stay, the appeal authority may order its decision stayedpending district court review if the appeal authority finds it to be in the best interest of themunicipality.
(iii) After a petition is filed under this section or a request for mediation or arbitration ofa constitutional taking issue is filed under Section 13-43-204, the petitioner may seek aninjunction staying the appeal authority's decision.
Amended by Chapter 306, 2007 General Session
Amended by Chapter 363, 2007 General Session