11-36-401 - Impact fees -- Challenges -- Appeals.
11-36-401. Impact fees -- Challenges -- Appeals.
(1) Any person or entity residing in or owning property within a service area, and anyorganization, association, or corporation representing the interests of persons or entities owningproperty within a service area, may file a declaratory judgment action challenging the validity ofthe fee.
(2) (a) Any person or entity required to pay an impact fee who believes the fee does notmeet the requirements of law may file a written request for information with the local politicalsubdivision who established the fee.
(b) Within two weeks after the receipt of the request for information, the local politicalsubdivision shall provide the person or entity with the written analysis required by Section11-36-201, the capital facilities plan, and with any other relevant information relating to theimpact fee.
(3) (a) Any local political subdivision may establish, by ordinance or resolution, anadministrative appeals procedure to consider and decide challenges to impact fees.
(b) If the local political subdivision establishes an administrative appeals procedure, thelocal political subdivision shall ensure that the procedure includes a requirement that the localpolitical subdivision make its decision no later than 30 days after the date the challenge to theimpact fee is filed.
(4) (a) In addition to the method of challenging an impact fee under Subsection (1), aperson or entity that has paid an impact fee that was imposed by a local political subdivision maychallenge:
(i) if the impact fee enactment was adopted on or after July 1, 2000:
(A) whether the local political subdivision complied with the notice requirements of thischapter with respect to the imposition of the impact fee; and
(B) whether the local political subdivision complied with other procedural requirementsof this chapter for imposing the impact fee; and
(ii) except as limited by Subsection (4)(a)(i), the impact fee.
(b) A challenge under Subsection (4)(a) may not be initiated unless it is initiated within:
(i) for a challenge under Subsection (4)(a)(i)(A), 30 days after the person or entity paysthe impact fee;
(ii) for a challenge under Subsection (4)(a)(i)(B), 180 days after the person or entity paysthe impact fee; or
(iii) for a challenge under Subsection (4)(a)(ii), one year after the person or entity paysthe impact fee.
(c) A challenge under Subsection (4)(a) is initiated by filing:
(i) if the local political subdivision has established an administrative appeals procedureunder Subsection (3), the necessary document, under the administrative appeals procedure, forinitiating the administrative appeal;
(ii) a request for arbitration as provided in Subsection 11-36-402(1); or
(iii) an action in district court.
(d) (i) The sole remedy for a challenge under Subsection (4)(a)(i)(A) is the equitableremedy of requiring the local political subdivision to correct the defective notice and repeat theprocess.
(ii) The sole remedy for a challenge under Subsection (4)(a)(i)(B) is the equitable remedyof requiring the local political subdivision to correct the defective process.
(iii) The sole remedy for a challenge under Subsection (4)(a)(ii) is a refund of thedifference between what the person or entity paid as an impact fee and the correct impact feeamount.
(e) Nothing in this Subsection (4) may be construed as requiring a person or entity toexhaust administrative remedies with the local political subdivision before filing an action indistrict court under this Subsection (4).
(f) The protections given to a municipality under Section 10-9a-801 and to a countyunder Section 17-27a-801 do not apply in a challenge under Subsection (4)(a)(i)(A).
(5) The judge may award reasonable attorneys' fees and costs to the prevailing party inany action brought under this section.
(6) Nothing in this chapter may be construed as restricting or limiting any rights tochallenge impact fees that were paid before the effective date of this chapter.
Amended by Chapter 378, 2010 General Session