11-36-201 - Impact fees -- Analysis -- Capital facilities plan -- Notice of plan -- Summary -- Exemptions.
11-36-201. Impact fees -- Analysis -- Capital facilities plan -- Notice of plan --Summary -- Exemptions.
(1) (a) (i) Each local political subdivision and private entity shall comply with therequirements of this chapter before establishing or modifying any impact fee.
(ii) A fee that meets the definition of impact fee under Section 11-36-102 is an impactfee subject to this chapter, regardless of what term the local political subdivision or private entityuses to refer to the fee.
(iii) A local political subdivision or private entity may not avoid application of thischapter to a fee that meets the definition of an impact fee under Section 11-36-102 by referring tothe fee by another name.
(b) A local political subdivision may not:
(i) establish any new impact fees that are not authorized by this chapter; or
(ii) impose or charge any other fees as a condition of development approval unless thosefees are a reasonable charge for the service provided.
(c) Each local political subdivision shall ensure that the impact fees comply with therequirements of this chapter.
(d) (i) Each local political subdivision and private entity shall ensure that each impact feecollected on or after May 12, 2009 complies with the provisions of this chapter, even if theimpact fee was imposed but not paid before May 12, 2009.
(ii) Subsection (1)(d)(i) does not apply to an impact fee that was paid before May 12,2009.
(2) (a) Before imposing impact fees, each local political subdivision and private entityshall, except as provided in Subsection (2)(f), prepare a capital facilities plan to determine thepublic facilities required to serve development resulting from new development activity.
(b) (i) As used in this Subsection (2)(b):
(A) (I) "Affected entity" means each county, municipality, local district under Title 17B,Limited Purpose Local Government Entities - Local Districts, special service district under Title17D, Chapter 1, Special Service District Act, school district, interlocal cooperation entityestablished under Chapter 13, Interlocal Cooperation Act, and specified public utility:
(Aa) whose services or facilities are likely to require expansion or significantmodification because of the facilities proposed in the proposed capital facilities plan; or
(Bb) that has filed with the local political subdivision or private entity a copy of thegeneral or long-range plan of the county, municipality, local district, special service district,school district, interlocal cooperation entity, or specified public utility.
(II) "Affected entity" does not include the local political subdivision or private entity thatis required under this Subsection (2) to provide notice.
(B) "Specified public utility" means an electrical corporation, gas corporation, ortelephone corporation, as those terms are defined in Section 54-2-1.
(ii) Before preparing or amending a capital facilities plan, each local political subdivisionand each private entity shall provide written notice, as provided in this Subsection (2)(b), of itsintent to prepare or amend a capital facilities plan.
(iii) Each notice under Subsection (2)(b)(ii) shall:
(A) indicate that the local political subdivision or private entity intends to prepare oramend a capital facilities plan;
(B) describe or provide a map of the geographic area where the proposed capital facilities
will be located; and
(C) subject to Subsection (2)(b)(iv), be posted on the Utah Public Notice Website createdunder Section 63F-1-701.
(iv) For a private entity required to post notice on the Utah Public Notice Website underSubsection (2)(b)(iii):
(A) the private entity shall give notice to the general purpose local government in whichthe private entity's primary business office is located; and
(B) the general purpose local government described in Subsection (2)(b)(iv)(A) shallpost the notice on the Utah Public Notice Website.
(c) The capital facilities plan shall identify:
(i) demands placed upon existing public facilities by new development activity; and
(ii) the proposed means by which the local political subdivision will meet thosedemands.
(d) A municipality or county need not prepare a separate capital facilities plan if thegeneral plan required by Section 10-9a-401 or 17-27a-401, respectively, contains the elementsrequired by Subsection (2)(c).
(e) (i) If a local political subdivision chooses to prepare an independent capital facilitiesplan rather than include a capital facilities element in the general plan, the local politicalsubdivision shall before adopting or amending the capital facilities plan:
(A) give public notice of the plan or amendment according to Subsection (2)(e)(ii)(A),(B), or (C), as the case may be, at least 10 days before the date of the public hearing;
(B) make a copy of the plan or amendment, together with a summary designed to beunderstood by a lay person, available to the public;
(C) place a copy of the plan or amendment and summary in each public library within thelocal political subdivision; and
(D) hold a public hearing to hear public comment on the plan or amendment.
(ii) With respect to the public notice required under Subsection (2)(e)(i)(A):
(A) each municipality shall comply with the notice and hearing requirements of, and,except as provided in Subsection 11-36-401(4)(f), receive the protections of Sections 10-9a-205and 10-9a-801 and Subsection 10-9a-502(2);
(B) each county shall comply with the notice and hearing requirements of, and, except asprovided in Subsection 11-36-401(4)(f), receive the protections of Sections 17-27a-205 and17-27a-801 and Subsection 17-27a-502(2); and
(C) each local district, special service district, and private entity shall comply with thenotice and hearing requirements of, and receive the protections of, Section 17B-1-111.
(iii) Nothing contained in this Subsection (2)(e) or in the subsections referenced inSubsections (2)(e)(ii)(A) and (B) may be construed to require involvement by a planningcommission in the capital facilities planning process.
(f) (i) A local political subdivision with a population or serving a population of less than5,000 as of the last federal census need not comply with the capital facilities plan requirements ofthis part, but shall ensure that:
(A) the impact fees that the local political subdivision imposes are based upon areasonable plan; and
(B) each applicable notice required by this chapter is given.
(ii) Subsection (2)(f)(i) does not apply to private entities.
(g) (i) Subject to Subsection (2)(g)(iii), the plan shall include a public facility for whichan impact fee may be charged or required for a school district or charter school if the localpolitical subdivision is aware of the planned location of the school district facility or charterschool:
(A) through the planning process; or
(B) after receiving a written request from a school district or charter school that thepublic facility be included in the plan.
(ii) If necessary, the plan shall be amended to reflect a public facility described inSubsection (2)(g)(i).
(iii) (A) In accordance with Subsections 10-9a-305(4) and 17-27a-305(4), a localpolitical subdivision may not require a school district or charter school to participate in the costof any roadway or sidewalk.
(B) Notwithstanding Subsection (2)(g)(iii)(A), if a school district or charter school agreesto build a roadway or sidewalk, the roadway or sidewalk shall be included in the plan.
(3) In preparing the plan, each local political subdivision shall generally consider allrevenue sources, including impact fees and anticipated dedication of system improvements, tofinance the impacts on system improvements.
(4) A local political subdivision or private entity may only impose impact fees ondevelopment activities when its plan for financing system improvements establishes that impactfees are necessary to achieve an equitable allocation to the costs borne in the past and to be bornein the future, in comparison to the benefits already received and yet to be received.
(5) (a) Subject to the notice requirement of Subsection (5)(b), each local politicalsubdivision and private entity intending to impose an impact fee shall prepare a written analysisof each impact fee that:
(i) identifies the anticipated impact on or consumption of any existing capacity of apublic facility by the anticipated development activity;
(ii) identifies the anticipated impact on system improvements required by the anticipateddevelopment activity to maintain the established level of service for each public facility;
(iii) demonstrates how those anticipated impacts are reasonably related to the anticipateddevelopment activity;
(iv) estimates the proportionate share of:
(A) the costs for existing capacity that will be recouped; and
(B) the costs of impacts on system improvements that are reasonably related to the newdevelopment activity; and
(v) based upon those factors and the requirements of this chapter, identifies how theimpact fee was calculated.
(b) (i) Before preparing or contracting to prepare the written analysis required underSubsection (5)(a), each local political subdivision or private entity shall, subject to Subsection(5)(b)(ii), post a public notice on the Utah Public Notice Website created under Section63F-1-701 indicating the local political subdivision or private entity's intent to prepare or contractto prepare a written analysis of an impact fee.
(ii) For a private entity required to post notice on the Utah Public Notice Website underSubsection (5)(b)(i):
(A) the private entity shall give notice to the general purpose local government in whichthe private entity's primary business office is located; and
(B) the general purpose local government described in Subsection (5)(b)(ii)(A) shall postthe notice on the Utah Public Notice Website.
(c) In analyzing whether or not the proportionate share of the costs of public facilities arereasonably related to the new development activity, the local political subdivision or privateentity, as the case may be, shall identify, if applicable:
(i) the cost of each existing public facility that has excess capacity to serve theanticipated development resulting from the new development activity;
(ii) the cost of system improvements for each public facility;
(iii) other than impact fees, the manner of financing each public facility, such as usercharges, special assessments, bonded indebtedness, general taxes, or federal grants;
(iv) the relative extent to which development activity will contribute to financing theexcess capacity of and system improvements for each existing public facility, by such means asuser charges, special assessments, or payment from the proceeds of general taxes;
(v) the relative extent to which development activity will contribute to the cost ofexisting public facilities and system improvements in the future;
(vi) the extent to which the development activity is entitled to a credit against impact feesbecause the development activity will dedicate system improvements or public facilities that willoffset the demand for system improvements, inside or outside the proposed development;
(vii) extraordinary costs, if any, in servicing the newly developed properties; and
(viii) the time-price differential inherent in fair comparisons of amounts paid at differenttimes.
(d) Each local political subdivision and private entity that prepares a written analysisunder this Subsection (5) shall also prepare a summary of the written analysis, designed to beunderstood by a lay person.
(6) Each local political subdivision that adopts an impact fee enactment under Section11-36-202 on or after July 1, 2000 shall, at least 10 days before adopting the enactment:
(a) submit a copy of the written analysis required by Subsection (5)(a) and a copy of thesummary required by Subsection (5)(d) to each public library within the local politicalsubdivision; and
(b) obtain a written certification from the person or entity that prepares the writtenanalysis which states as follows:
"I certify that the attached impact fee analysis:
1. includes only the costs for qualifying public facilities that are:
a. allowed under the Impact Fees Act; and
b. projected to be incurred or encumbered within six years after eachimpact fee is paid;
2. contains no cost for operation and maintenance of public facilities;
3. offsets costs with grants or other alternate sources of payment;
4. does not include costs for qualifying public facilities that will raise the level ofservice for the facilities, through impact fees, above the level of service that issupported by existing residents; and
5. complies in each and every relevant respect with the Impact Fees Act."
(7) Nothing in this chapter may be construed to repeal or otherwise eliminate any impactfee in effect on the effective date of this chapter that is pledged as a source of revenues to paybonded indebtedness that was incurred before the effective date of this chapter.
Amended by Chapter 203, 2010 General Session
Amended by Chapter 315, 2010 General Session