Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 30 First Substitute (2017GS)

Sponsor

Rep. Webb, R. C.

Final action

Governor Signed 3/15/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines "historic preservation commission";
• authorizes a legislative body to designate a historic preservation commission to make administrative decisions on land use applications related to historically significant real property;
• addresses an appeal from a decision of a historic preservation commission; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

HISTORIC PRESERVATION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: R. Curt Webb
Senate Sponsor: 
 Daniel W. Thatcher
LONG TITLE
Committee Note:
The Political Subdivisions Interim Committee recommended this bill.
General Description:
This bill enacts provisions of the Municipal Land Use, Development, and Management
Act related to historic preservation.
Highlighted Provisions:
This bill:
▸ defines "historic preservation commission";
▸ authorizes a legislative body to designate a historic preservation commission to
make administrative decisions on land use applications related to historically
significant real property;
▸ addresses an appeal from a decision of a historic preservation commission; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
10-9a-103
, as last amended by Laws of Utah 2015, Chapter 327
10-9a-701
, as last amended by Laws of Utah 2011, Chapter 92
10-9a-703
, as last amended by Laws of Utah 2008, Chapter 326
10-9a-704
, as last amended by Laws of Utah 2006, Chapter 240
10-9a-707
, as enacted by Laws of Utah 2005, Chapter 254
ENACTS:
10-9a-527
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
10-9a-103
 is amended to read:
10-9a-103.
Definitions.
As used in this chapter:
(1) "Affected entity" means a county, municipality, local district, special service
district under Title 17D, Chapter 1, Special Service District Act, school district, interlocal
cooperation entity established under Title 11, Chapter 13, Interlocal Cooperation Act, specified
public utility, property owner, property owners association, or the Utah Department of
Transportation, if:
(a) the entity's services or facilities are likely to require expansion or significant
modification because of an intended use of land;
(b) the entity has filed with the municipality a copy of the entity's general or long-range
plan; or
(c) the entity has filed with the municipality a request for notice during the same
calendar year and before the municipality provides notice to an affected entity in compliance
with a requirement imposed under this chapter.
(2) "Appeal authority" means the person, board, commission, agency, or other body
designated by ordinance to decide an appeal of a decision of a land use application or a
variance.
(3) "Billboard" means a freestanding ground sign located on industrial, commercial, or
residential property if the sign is designed or intended to direct attention to a business, product,
or service that is not sold, offered, or existing on the property where the sign is located.
(4) (a) "Charter school" means:
(i) an operating charter school;
(ii) a charter school applicant that has its application approved by a charter school
authorizer in accordance with Title 53A, Chapter 1a, Part 5, The Utah Charter Schools Act; or
(iii) an entity that is working on behalf of a charter school or approved charter
applicant to develop or construct a charter school building.
(b) "Charter school" does not include a therapeutic school.
(5) "Conditional use" means a land use that, because of its unique characteristics or
potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be
compatible in some areas or may be compatible only if certain conditions are required that
mitigate or eliminate the detrimental impacts.
(6) "Constitutional taking" means a governmental action that results in a taking of
private property so that compensation to the owner of the property is required by the:
(a) Fifth or Fourteenth Amendment of the Constitution of the United States; or
(b) Utah Constitution
,
 Article I, Section 22.
(7) "Culinary water authority" means the department, agency, or public entity with
responsibility to review and approve the feasibility of the culinary water system and sources for
the subject property.
(8) "Development activity" means:
(a) any construction or expansion of a building, structure, or use that creates additional
demand and need for public facilities;
(b) any change in use of a building or structure that creates additional demand and need
for public facilities; or
(c) any change in the use of land that creates additional demand and need for public
facilities.
(9) (a) "Disability" means a physical or mental impairment that substantially limits one
or more of a person's major life activities, including a person having a record of such an
impairment or being regarded as having such an impairment.
(b) "Disability" does not include current illegal use of, or addiction to, any federally
controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
802.
(10) "Educational facility":
(a) means:
(i) a school district's building at which pupils assemble to receive instruction in a
program for any combination of grades from preschool through grade 12, including
kindergarten and a program for children with disabilities;
(ii) a structure or facility:
(A) located on the same property as a building described in Subsection (10)(a)(i); and
(B) used in support of the use of that building; and
(iii) a building to provide office and related space to a school district's administrative
personnel; and
(b) does not include:
(i) land or a structure, including land or a structure for inventory storage, equipment
storage, food processing or preparing, vehicle storage or maintenance, or similar use that is:
(A) not located on the same property as a building described in Subsection (10)(a)(i);
and
(B) used in support of the purposes of a building described in Subsection (10)(a)(i); or
(ii) a therapeutic school.
(11) "Fire authority" means the department, agency, or public entity with responsibility
to review and approve the feasibility of fire protection and suppression services for the subject
property.
(12) "Flood plain" means land that:
(a) is within the 100-year flood plain designated by the Federal Emergency
Management Agency; or
(b) has not been studied or designated by the Federal Emergency Management Agency
but presents a likelihood of experiencing chronic flooding or a catastrophic flood event because
the land has characteristics that are similar to those of a 100-year flood plain designated by the
Federal Emergency Management Agency.
(13) "General plan" means a document that a municipality adopts that sets forth general
guidelines for proposed future development of the land within the municipality.
(14) "Geologic hazard" means:
(a) a surface fault rupture;
(b) shallow groundwater;
(c) liquefaction;
(d) a landslide;
(e) a debris flow;
(f) unstable soil;
(g) a rock fall; or
(h) any other geologic condition that presents a risk:
(i) to life;
(ii) of substantial loss of real property; or
(iii) of substantial damage to real property.
(15) "Historic preservation commission" means a board, commission, or other body
designated by a legislative body to make administrative decisions on land use applications that
affect:
(a) historically significant real property; or
(b) real property located within a local historic district or area, as defined in Subsection
10-9a-503
(4).
[
(15)
] 
(16)
 "Hookup fee" means a fee for the installation and inspection of any pipe,
line, meter, or appurtenance that connects to a municipal water, sewer, storm water, power, or
other utility system.
[
(16)
] 
(17)
 "Identical plans" means building plans submitted to a municipality that:
(a) are clearly marked as "identical plans";
(b) are substantially identical to building plans that were previously submitted to and
reviewed and approved by the municipality; and
(c) describe a building that:
(i) is located on land zoned the same as the land on which the building described in the
previously approved plans is located;
(ii) is subject to the same geological and meteorological conditions and the same law
as the building described in the previously approved plans;
(iii) has a floor plan identical to the building plan previously submitted to and reviewed
and approved by the municipality; and
(iv) does not require any additional engineering or analysis.
[
(17)
] 
(18)
 "Impact fee" means a payment of money imposed under Title 11, Chapter
36a, Impact Fees Act.
[
(18)
] 
(19)
 "Improvement completion assurance" means a surety bond, letter of credit,
financial institution bond, cash, assignment of rights, lien, or other equivalent security required
by a municipality to guaranty the proper completion of landscaping or an infrastructure
improvement required as a condition precedent to:
(a) recording a subdivision plat; or
(b) development of a commercial, industrial, mixed use, or multifamily project.
[
(19)
] 
(20)
 "Improvement warranty" means an applicant's unconditional warranty that
the applicant's installed and accepted landscaping or infrastructure improvement:
(a) complies with the municipality's written standards for design, materials, and
workmanship; and
(b) will not fail in any material respect, as a result of poor workmanship or materials,
within the improvement warranty period.
[
(20)
] 
(21)
 "Improvement warranty period" means a period:
(a) no later than one year after a municipality's acceptance of required landscaping; or
(b) no later than one year after a municipality's acceptance of required infrastructure,
unless the municipality:
(i) determines for good cause that a one-year period would be inadequate to protect the
public health, safety, and welfare; and
(ii) has substantial evidence, on record:
(A) of prior poor performance by the applicant; or
(B) that the area upon which the infrastructure will be constructed contains suspect soil
and the municipality has not otherwise required the applicant to mitigate the suspect soil.
[
(21)
] 
(22)
 "Infrastructure improvement" means permanent infrastructure that an
applicant must install:
(a) pursuant to published installation and inspection specifications for public
improvements; and
(b) as a condition of:
(i) recording a subdivision plat; or
(ii) development of a commercial, industrial, mixed use, condominium, or multifamily
project.
[
(22)
] 
(23)
 "Internal lot restriction" means a platted note, platted demarcation, or
platted designation that:
(a) runs with the land; and
(b) (i) creates a restriction that is enclosed within the perimeter of a lot described on
the plat; or
(ii) designates a development condition that is enclosed within the perimeter of a lot
described on the plat.
[
(23)
] 
(24)
 "Land use application" means an application required by a municipality's
land use ordinance.
[
(24)
] 
(25)
 "Land use authority" means:
(a) a person, board, commission, agency, or body, including the local legislative body,
designated by the local legislative body to act upon a land use application; or
(b) if the local legislative body has not designated a person, board, commission,
agency, or body, the local legislative body.
[
(25)
] 
(26)
 "Land use ordinance" means a planning, zoning, development, or
subdivision ordinance of the municipality, but does not include the general plan.
[
(26)
] 
(27)
 "Land use permit" means a permit issued by a land use authority.
[
(27)
] 
(28)
 "Legislative body" means the municipal council.
[
(28)
] 
(29)
 "Local district" means an entity under Title 17B, Limited Purpose Local
Government Entities - Local Districts, and any other governmental or quasi-governmental
entity that is not a county, municipality, school district, or the state.
[
(29)
] 
(30)
 "Lot line adjustment" means the relocation of the property boundary line in
a subdivision between two adjoining lots with the consent of the owners of record.
[
(30)
] 
(31)
 "Moderate income housing" means housing occupied or reserved for
occupancy by households with a gross household income equal to or less than 80% of the
median gross income for households of the same size in the county in which the city is located.
[
(31)
] 
(32)
 "Nominal fee" means a fee that reasonably reimburses a municipality only
for time spent and expenses incurred in:
(a) verifying that building plans are identical plans; and
(b) reviewing and approving those minor aspects of identical plans that differ from the
previously reviewed and approved building plans.
[
(32)
] 
(33)
 "Noncomplying structure" means a structure that:
(a) legally existed before its current land use designation; and
(b) because of one or more subsequent land use ordinance changes, does not conform
to the setback, height restrictions, or other regulations, excluding those regulations, which
govern the use of land.
[
(33)
] 
(34)
 "Nonconforming use" means a use of land that:
(a) legally existed before its current land use designation;
(b) has been maintained continuously since the time the land use ordinance governing
the land changed; and
(c) because of one or more subsequent land use ordinance changes, does not conform
to the regulations that now govern the use of the land.
[
(34)
] 
(35)
 "Official map" means a map drawn by municipal authorities and recorded in
a county recorder's office that:
(a) shows actual and proposed rights-of-way, centerline alignments, and setbacks for
highways and other transportation facilities;
(b) provides a basis for restricting development in designated rights-of-way or between
designated setbacks to allow the government authorities time to purchase or otherwise reserve
the land; and
(c) has been adopted as an element of the municipality's general plan.
[
(35)
] 
(36)
 "Parcel boundary adjustment" means a recorded agreement between owners
of adjoining properties adjusting their mutual boundary if:
(a) no additional parcel is created; and
(b) each property identified in the agreement is unsubdivided land, including a
remainder of subdivided land.
[
(36)
] 
(37)
 "Person" means an individual, corporation, partnership, organization,
association, trust, governmental agency, or any other legal entity.
[
(37)
] 
(38)
 "Plan for moderate income housing" means a written document adopted by
a city legislative body that includes:
(a) an estimate of the existing supply of moderate income housing located within the
city;
(b) an estimate of the need for moderate income housing in the city for the next five
years as revised biennially;
(c) a survey of total residential land use;
(d) an evaluation of how existing land uses and zones affect opportunities for moderate
income housing; and
(e) a description of the city's program to encourage an adequate supply of moderate
income housing.
[
(38)
] 
(39)
 "Plat" means a map or other graphical representation of lands being laid out
and prepared in accordance with Section 
10-9a-603
, 
17-23-17
, or 
57-8-13
.
[
(39)
] 
(40)
 "Potential geologic hazard area" means an area that:
(a) is designated by a Utah Geological Survey map, county geologist map, or other
relevant map or report as needing further study to determine the area's potential for geologic
hazard; or
(b) has not been studied by the Utah Geological Survey or a county geologist but
presents the potential of geologic hazard because the area has characteristics similar to those of
a designated geologic hazard area.
[
(40)
] 
(41)
 "Public agency" means:
(a) the federal government;
(b) the state;
(c) a county, municipality, school district, local district, special service district, or other
political subdivision of the state; or
(d) a charter school.
[
(41)
] 
(42)
 "Public hearing" means a hearing at which members of the public are
provided a reasonable opportunity to comment on the subject of the hearing.
[
(42)
] 
(43)
 "Public meeting" means a meeting that is required to be open to the public
under Title 52, Chapter 4, Open and Public Meetings Act.
[
(43)
] 
(44)
 "Receiving zone" means an area of a municipality that the municipality
designates, by ordinance, as an area in which an owner of land may receive a transferable
development right.
[
(44)
] 
(45)
 "Record of survey map" means a map of a survey of land prepared in
accordance with Section 
17-23-17
.
[
(45)
] 
(46)
 "Residential facility for persons with a disability" means a residence:
(a) in which more than one person with a disability resides; and
(b) (i) which is licensed or certified by the Department of Human Services under Title
62A, Chapter 2, Licensure of Programs and Facilities; or
(ii) which is licensed or certified by the Department of Health under Title 26, Chapter
21, Health Care Facility Licensing and Inspection Act.
[
(46)
] 
(47)
 "Rules of order and procedure" means a set of rules that govern and
prescribe in a public meeting:
(a) parliamentary order and procedure;
(b) ethical behavior; and
(c) civil discourse.
[
(47)
] 
(48)
 "Sanitary sewer authority" means the department, agency, or public entity
with responsibility to review and approve the feasibility of sanitary sewer services or onsite
wastewater systems.
[
(48)
] 
(49)
 "Sending zone" means an area of a municipality that the municipality
designates, by ordinance, as an area from which an owner of land may transfer a transferable
development right.
[
(49)
] 
(50)
 "Specified public agency" means:
(a) the state;
(b) a school district; or
(c) a charter school.
[
(50)
] 
(51)
 "Specified public utility" means an electrical corporation, gas corporation,
or telephone corporation, as those terms are defined in Section 
54-2-1
.
[
(51)
] 
(52)
 "State" includes any department, division, or agency of the state.
[
(52)
] 
(53)
 "Street" means a public right-of-way, including a highway, avenue,
boulevard, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement,
or other way.
[
(53)
] 
(54)
 (a) "Subdivision" means any land that is divided, resubdivided or proposed
to be divided into two or more lots, parcels, sites, units, plots, or other division of land for the
purpose, whether immediate or future, for offer, sale, lease, or development either on the
installment plan or upon any and all other plans, terms, and conditions.
(b) "Subdivision" includes:
(i) the division or development of land whether by deed, metes and bounds description,
devise and testacy, map, plat, or other recorded instrument; and
(ii) except as provided in Subsection [
(53)
] 
(54)
(c), divisions of land for residential and
nonresidential uses, including land used or to be used for commercial, agricultural, and
industrial purposes.
(c) "Subdivision" does not include:
(i) a bona fide division or partition of agricultural land for the purpose of joining one of
the resulting separate parcels to a contiguous parcel of unsubdivided agricultural land, if
neither the resulting combined parcel nor the parcel remaining from the division or partition
violates an applicable land use ordinance;
(ii) a recorded agreement between owners of adjoining unsubdivided properties
adjusting their mutual boundary if:
(A) no new lot is created; and
(B) the adjustment does not violate applicable land use ordinances;
(iii) a recorded document, executed by the owner of record:
(A) revising the legal description of more than one contiguous unsubdivided parcel of
property into one legal description encompassing all such parcels of property; or
(B) joining a subdivided parcel of property to another parcel of property that has not
been subdivided, if the joinder does not violate applicable land use ordinances;
(iv) a recorded agreement between owners of adjoining subdivided properties adjusting
their mutual boundary if:
(A) no new dwelling lot or housing unit will result from the adjustment; and
(B) the adjustment will not violate any applicable land use ordinance;
(v) a bona fide division or partition of land by deed or other instrument where the land
use authority expressly approves in writing the division in anticipation of further land use
approvals on the parcel or parcels; or
(vi) a parcel boundary adjustment.
(d) The joining of a subdivided parcel of property to another parcel of property that has
not been subdivided does not constitute a subdivision under this Subsection [
(53)
] 
(54)
 as to
the unsubdivided parcel of property or subject the unsubdivided parcel to the municipality's
subdivision ordinance.
[
(54)
] 
(55)
 "Suspect soil" means soil that has:
(a) a high susceptibility for volumetric change, typically clay rich, having more than a
3% swell potential;
(b) bedrock units with high shrink or swell susceptibility; or
(c) gypsiferous silt and clay, gypsum, or bedrock units containing abundant gypsum
commonly associated with dissolution and collapse features.
[
(55)
] 
(56)
 "Therapeutic school" means a residential group living facility:
(a) for four or more individuals who are not related to:
(i) the owner of the facility; or
(ii) the primary service provider of the facility;
(b) that serves students who have a history of failing to function:
(i) at home;
(ii) in a public school; or
(iii) in a nonresidential private school; and
(c) that offers:
(i) room and board; and
(ii) an academic education integrated with:
(A) specialized structure and supervision; or
(B) services or treatment related to a disability, an emotional development, a
behavioral development, a familial development, or a social development.
[
(56)
] 
(57)
 "Transferable development right" means a right to develop and use land that
originates by an ordinance that authorizes a land owner in a designated sending zone to transfer
land use rights from a designated sending zone to a designated receiving zone.
[
(57)
] 
(58)
 "Unincorporated" means the area outside of the incorporated area of a city
or town.
[
(58)
] 
(59)
 "Water interest" means any right to the beneficial use of water, including:
(a) each of the rights listed in Section 
73-1-11
; and
(b) an ownership interest in the right to the beneficial use of water represented by:
(i) a contract; or
(ii) a share in a water company, as defined in Section 
73-3-3.5
.
[
(59)
] 
(60)
 "Zoning map" means a map, adopted as part of a land use ordinance, that
depicts land use zones, overlays, or districts.
Section 2. Section 
10-9a-527
 is enacted to read:
 10-9a-527.
Historic preservation.
A legislative body may designate a historic preservation commission.
Section 3. Section 
10-9a-701
 is amended to read:
10-9a-701.
Appeal authority required -- Condition precedent to judicial review --
Appeal authority duties.
(1) Each municipality adopting a land use ordinance shall, by ordinance, establish one
or more appeal authorities to hear and decide:
(a) requests for variances from the terms of the land use ordinances;
(b) appeals from decisions applying the land use ordinances; and
(c) appeals from a fee charged in accordance with Section 
10-9a-510
.
(2) Each municipality that designates a historic preservation commission shall, by
ordinance, establish an appeal authority that is comprised of one or more elected officials to
hear and decide appeals from decisions of the historic preservation commission.
[
(2)
] 
(3)
 As a condition precedent to judicial review, each adversely affected person
shall timely and specifically challenge a land use authority's decision, in accordance with local
ordinance.
[
(3)
] 
(4)
 An appeal authority:
(a) shall:
(i) act in a quasi-judicial manner; and
(ii) serve as the final arbiter of issues involving the interpretation or application of land
use ordinances; and
(b) may not entertain an appeal of a matter in which the appeal authority, or any
participating member, had first acted as the land use authority.
[
(4)
] 
(5)
 By ordinance, a municipality may:
(a) designate a separate appeal authority to hear requests for variances than the appeal
authority it designates to hear appeals;
(b) designate one or more separate appeal authorities to hear distinct types of appeals
of land use authority decisions;
(c) require an adversely affected party to present to an appeal authority every theory of
relief that it can raise in district court;
(d) not require an adversely affected party to pursue duplicate or successive appeals
before the same or separate appeal authorities as a condition of the adversely affected party's
duty to exhaust administrative remedies; and
(e) provide that specified types of land use decisions may be appealed directly to the
district court.
[
(5)
] 
(6)
 If the municipality establishes or, prior to the effective date of this chapter, has
established a multiperson board, body, or panel to act as an appeal authority, at a minimum the
board, body, or panel shall:
(a) notify each of its members of any meeting or hearing of the board, body, or panel;
(b) provide each of its members with the same information and access to municipal
resources as any other member;
(c) convene only if a quorum of its members is present; and
(d) act only upon the vote of a majority of its convened members.
Section 4. Section 
10-9a-703
 is amended to read:
10-9a-703.
Appealing a land use authority's decision -- Panel of experts for
appeals of geologic hazard decisions -- Automatic appeal for certain decisions.
(1) The applicant, a board or officer of the municipality, or any person adversely
affected by the land use authority's decision administering or interpreting a land use ordinance
may, within the 
applicable
 time period [
provided by ordinance
], appeal that decision to the
appeal authority by alleging that there is error in any order, requirement, decision, or
determination made by the land use authority in the administration or interpretation of the land
use ordinance.
(2) (a) An applicant who has appealed a decision of the land use authority
administering or interpreting the municipality's geologic hazard ordinance may request the
municipality to assemble a panel of qualified experts to serve as the appeal authority for
purposes of determining the technical aspects of the appeal.
(b) If an applicant makes a request under Subsection (2)(a), the municipality shall
assemble the panel described in Subsection (2)(a) consisting of, unless otherwise agreed by the
applicant and municipality:
(i) one expert designated by the municipality;
(ii) one expert designated by the applicant; and
(iii) one expert chosen jointly by the municipality's designated expert and the
applicant's designated expert.
(c) A member of the panel assembled by the municipality under Subsection (2)(b) may
not be associated with the application that is the subject of the appeal.
(d) The applicant shall pay:
(i) 1/2 of the cost of the panel; and
(ii) the municipality's published appeal fee.
Section 5. Section 
10-9a-704
 is amended to read:
10-9a-704.
Time to appeal.
(1) The municipality shall enact an ordinance establishing a reasonable time of not less
than 10 days to appeal to an appeal authority a written decision issued by a land use authority.
(2) In the absence of an ordinance establishing a reasonable time to appeal, an
adversely affected party shall have 10 calendar days to appeal to an appeal authority a written
decision issued by a land use authority.
(3) Notwithstanding Subsections (1) and (2), for an appeal from a decision of a historic
preservation commission, an adversely affected person may appeal the decision within 30 days
after the day on which the historic preservation commission issues a written decision.
Section 6. Section 
10-9a-707
 is amended to read:
10-9a-707.
Standard of review for appeals.
(1) [
A
] 
Except as provided in Subsection (3), a
 municipality may, by ordinance,
designate the standard of review for appeals of land use authority decisions.
(2) If the municipality fails to designate a standard of review of factual matters, the
appeal authority shall review the matter de novo.
(3) An appeal authority established under Subsection 
10-9a-701
(2) to hear and decide
appeals from a decision of a historic preservation commission shall review each appeal de
novo.
[
(3)
] 
(4)
 The appeal authority shall determine the correctness of a decision of the land
use authority in its interpretation and application of a land use ordinance.
[
(4)
] 
(5)
 Only those decisions in which a land use authority has applied a land use
ordinance to a particular application, person, or parcel may be appealed to an appeal authority.
Legislative Review Note
Office of Legislative Research and General Counsel