Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 83 First Substitute (2021GS)

Sponsor

Rep. Ferry, J.

Final action

Governor Signed 3/11/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• extends the time for creating a migratory bird production area;
• provides a process to add property to a migratory bird production area;
• provides for inclusion of easements;
• addresses limitations on local ordinances;
• addresses use by a guest of a migratory bird production area under provisions related to limiting landowner liability under certain circumstances;
• prohibits exercising eminent domain under certain circumstances; and
• makes technical changes.

Every vote on this bill

Bill text

MIGRATORY BIRD PRODUCTION AREA AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Joel Ferry
Senate Sponsor: 
Scott D. Sandall
LONG TITLE
General Description:
This bill addresses migratory bird production areas.
Highlighted Provisions:
This bill:
▸ extends the time for creating a migratory bird production area;
▸ provides a process to add property to a migratory bird production area;
▸ provides for inclusion of easements;
▸ addresses limitations on local ordinances;
▸ addresses use by a guest of a migratory bird production area under provisions
related to limiting landowner liability under certain circumstances;
▸ prohibits exercising eminent domain under certain circumstances; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
23-28-201
, as enacted by Laws of Utah 2009, Chapter 273
23-28-202
, as last amended by Laws of Utah 2010, Chapter 218
23-28-302
, as enacted by Laws of Utah 2009, Chapter 273
57-14-202
, as renumbered and amended by Laws of Utah 2013, Chapter 212
78B-6-501
, as last amended by Laws of Utah 2020, Chapter 87
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
23-28-201
 is amended to read:
23-28-201.
Creation of a migratory bird production area.
(1) (a) On or before July 1, [
] 
, an owner or owners of at least 500 contiguous
acres of land in an unincorporated area may dedicate the land as a migratory bird production
area by filing a notice of dedication with the county recorder of the county in which the land is
located.
(b) The notice of dedication shall contain:
(i) the legal description of the land included within the migratory bird production area;
(ii) the name of the owner or owners of the land included within the migratory bird
production area; and
(iii) an affidavit signed by each landowner that all of the land, except as provided by
Subsection (2), within the migratory bird production area is:
(A) actively managed for migratory bird:
(I) production;
(II) habitat; or
(III) hunting; and
(B) used for a purpose compatible with the purposes described in Subsection
(1)(b)(iii)(A).
(c) A person who files a notice of dedication under this section shall give a copy of the
notice of dedication within 10 days of its filing to the legislative body of the county in which
the migratory bird production area is located.
(2) (a) The notice of dedication may designate land, the amount of which is less than
1% of the total acreage within a migratory bird production area, upon which the landowner
may build a structure described in Subsection 
23-28-302
(1)[
(b)
]
(c)
.
(b) (i) An owner may build or maintain a road, dike, or water control structure within
the migratory bird production area.
(ii) A road, dike, or water control structure is not considered a structure for purposes of
Subsection (2)(a).
(3) (a) Within 30 days of the day on which the county legislative body receives a copy
of the notice of dedication under Subsection (1)(c), the county legislative body may bring an
action in district court to cancel or revise a migratory bird production area on the basis that an
affidavit filed as part of the notice of dedication under Subsection (1)(b)(iii) is inaccurate.
(b) In bringing the action, the county legislative body shall specify the portion of the
migratory bird production area and the affidavit subject to the action.
(c) In an action brought under this Subsection (3), the person who files an affidavit
described in Subsection (3)(a) has the burden to prove by a preponderance of the evidence that
the affidavit is accurate.
(d) If the court cancels or revises a migratory bird production area, the person who filed
the original notice of dedication shall file a revision notice with the county recorder reflecting
the court's order.
(4) In accordance with Section 
23-28-202
, a person may at any time add land to a
migratory bird production area created under this section.
Section 2. Section 
23-28-202
 is amended to read:
23-28-202.
Adding to or removing land from a migratory bird production area.
(1) [
A
] 
Subject to the other provisions of this section, a
 landowner may file a revision
notice with the county recorder of the county in which the migratory bird production area is
located to 
add land to or
 remove land from a migratory bird production area.
(2) The revision notice shall contain:
(a) a legal description of the land 
added to or
 removed from the migratory bird
production area; and
(b) the name of the owner or owners of the land 
added to or
 removed from the
migratory bird production area.
(3) A person who files a revision notice under this section shall give a copy of the
revision notice within 10 days of its filing to the legislative body of the county in which the
migratory bird production area is located.
(4) If removing land from a migratory bird production area results in a migratory bird
production area of less than 300 contiguous acres:
(a) the migratory bird production area ceases to exist; and
(b) the landowner shall:
(i) notify each landowner within the former migratory bird production area; and
(ii) file the revision notice required by this section for the entire migratory bird
production area.
(5) A landowner may add land to a migratory bird production area only if:
(a) the land to be added is contiguous to the migratory bird production area; and
(b) all the landowners of the contiguous land to be added to the migratory bird
production area consent to the contiguous land being added to the migratory bird production
area.
(6) A landowner of a migratory bird production area may include an easement in the
migratory bird production area if:
(a) the landowner owns the easement;
(b) the easement is on land that is contiguous to the migratory bird production area;
and
(c) the owner of the land where the easement is located consents to the easement being
included in the migratory bird production area.
Section 3. Section 
23-28-302
 is amended to read:
23-28-302.
Limitations on local regulations.
(1) (a) A county within which a migratory bird production area is located shall
encourage the continuity, development, and viability of the migratory bird production area.
(b) Except as otherwise specifically provided in this chapter, the purposes, uses, and
activities of a migratory bird production area described in this chapter are afforded the highest
priority of use status.
[
(b)
] 
(c)
 A structure [
or
]
,
 improvement
, or activity
 historically or customarily used in
conjunction with a migratory bird production area is considered a permitted use under the
county's zoning law, ordinance, or regulation.
(2) A county within which a migratory bird production area is located may not:
(a) enact a law, ordinance, or regulation that unreasonably restricts an activity normally
associated with the migratory bird production area;
(b) change the zoning designation of, or a zoning regulation applying to land within a
migratory bird production area unless the county receives written approval for the change from
all the landowners within the migratory bird production area; or
(c) enact a law, ordinance, or regulation concerning the use, operation, or discharge of
a firearm [
that is more restrictive than state law, except as provided by Subsection
23-14-1
(3)(b).
] 
on a migratory bird production area.
(3) For purposes of Subsection (2)(a), a law, ordinance, or regulation is unreasonable if
it restricts or impairs the purposes, uses, and activities historically or customarily associated
with a migratory bird production area.
Section 4. Section 
57-14-202
 is amended to read:
57-14-202.
Use of private land without charge -- Effect.
(1)
 Except as provided in Subsection 
57-14-204
(1), an owner of land who either
directly or indirectly invites or permits without charge, or for a nominal fee of no more than $1
per year, any person to use the owner's land for any recreational purpose, or an owner of a
public access area open to public recreational access under Title 73, Chapter 29, Public Waters
Access Act, does not:
[
(1)
] 
(a)
 make any representation or extend any assurance that the land is safe for any
purpose;
[
(2)
] 
(b)
 confer upon the person the legal status of an invitee or licensee to whom a
duty of care is owed;
[
(3)
] 
(c)
 assume responsibility for or incur liability for any injury to persons or property
caused by an act or omission of the person or any other person who enters upon the land; or
[
(4)
] 
(d)
 owe any duty to curtail the owner's use of the land during its use for
recreational purposes.
(2) The limitations of liability provided in this part apply to the owner of land
designated as a migratory bird production area under Title 23, Chapter 28, Migratory Bird
Production Area, that is owned and operated for any purpose allowed under Title 23, Chapter
28, Migratory Bird Production Area, if:
(a) the owner allows a guest of the owner or, if the owner has shareholders, members,
or partners, a guest of a shareholder, member, or partner of the owner to engage in an activity
with a recreational purpose on that land; and
(b) the guest is not charged.
Section 5. Section 
78B-6-501
 is amended to read:
78B-6-501.
Eminent domain -- Uses for which right may be exercised --
Limitations on eminent domain.
(1) As used in this section, "century farm" means real property that is:
(a) assessed under Title 59, Chapter 2, Part 5, Farmland Assessment Act; and
(b) owned or held by the same family for a continuous period of 100 years or more.
(2) Except as provided in [
Subsection
] 
Subsections
 (3) 
and (4)
 and subject to the
provisions of this part, the right of eminent domain may be exercised on behalf of the following
public uses:
(a) all public uses authorized by the federal government;
(b) public buildings and grounds for the use of the state, and all other public uses
authorized by the Legislature;
(c) (i) public buildings and grounds for the use of any county, city, town, or board of
education;
(ii) reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water or
sewage, including to or from a development, for the use of the inhabitants of any county, city,
or town, or for the draining of any county, city, or town;
(iii) the raising of the banks of streams, removing obstructions from streams, and
widening, deepening, or straightening their channels;
(iv) bicycle paths and sidewalks adjacent to paved roads;
(v) roads, byroads, streets, and alleys for public vehicular use, including for access to a
development; and
(vi) all other public uses for the benefit of any county, city, or town, or its inhabitants;
(d) wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank
and turnpike roads, roads for transportation by traction engines or road locomotives, roads for
logging or lumbering purposes, and railroads and street railways for public transportation;
(e) reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes
for the supplying of persons, mines, mills, smelters or other works for the reduction of ores,
with water for domestic or other uses, or for irrigation purposes, or for the draining and
reclaiming of lands, or for solar evaporation ponds and other facilities for the recovery of
minerals in solution;
(f) (i) roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places
to access or facilitate the milling, smelting, or other reduction of ores, or the working of mines,
quarries, coal mines, or mineral deposits including oil, gas, and minerals in solution;
(ii) outlets, natural or otherwise, for the deposit or conduct of tailings, refuse or water
from mills, smelters or other works for the reduction of ores, or from mines, quarries, coal
mines or mineral deposits including minerals in solution;
(iii) mill dams;
(iv) gas, oil or coal pipelines, tanks or reservoirs, including any subsurface stratum or
formation in any land for the underground storage of natural gas, and in connection with that,
any other interests in property which may be required to adequately examine, prepare,
maintain, and operate underground natural gas storage facilities;
(v) solar evaporation ponds and other facilities for the recovery of minerals in solution;
and
(vi) any occupancy in common by the owners or possessors of different mines,
quarries, coal mines, mineral deposits, mills, smelters, or other places for the reduction of ores,
or any place for the flow, deposit or conduct of tailings or refuse matter;
(g) byroads leading from a highway to:
(i) a residence; or
(ii) a farm;
(h) telecommunications, electric light and electric power lines, sites for electric light
and power plants, or sites for the transmission of broadcast signals from a station licensed by
the Federal Communications Commission in accordance with 47 C.F.R. Part 73 and that
provides emergency broadcast services;
(i) sewage service for:
(i) a city, a town, or any settlement of not fewer than 10 families;
(ii) a public building belonging to the state; or
(iii) a college or university;
(j) canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes for supplying and
storing water for the operation of machinery for the purpose of generating and transmitting
electricity for power, light or heat;
(k) cemeteries and public parks; and
(l) sites for mills, smelters or other works for the reduction of ores and necessary to
their successful operation, including the right to take lands for the discharge and natural
distribution of smoke, fumes, and dust, produced by the operation of works, provided that the
powers granted by this section may not be exercised in any county where the population
exceeds 20,000, or within one mile of the limits of any city or incorporated town nor unless the
proposed condemner has the right to operate by purchase, option to purchase or easement, at
least 75% in value of land acreage owned by persons or corporations situated within a radius of
four miles from the mill, smelter or other works for the reduction of ores; nor beyond the limits
of the four-mile radius; nor as to lands covered by contracts, easements, or agreements existing
between the condemner and the owner of land within the limit and providing for the operation
of such mill, smelter, or other works for the reduction of ores; nor until an action shall have
been commenced to restrain the operation of such mill, smelter, or other works for the
reduction of ores.
(3) The right of eminent domain may not be exercised on behalf of the following uses:
(a) except as provided in Subsection (2)(c)(iv), trails, paths, or other ways for walking,
hiking, bicycling, equestrian use, or other recreational uses, or whose primary purpose is as a
foot path, equestrian trail, bicycle path, or walkway;
(b) (i) a public park whose primary purpose is:
(A) as a trail, path, or other way for walking, hiking, bicycling, or equestrian use; or
(B) to connect other trails, paths, or other ways for walking, hiking, bicycling, or
equestrian use; or
(ii) a public park established on real property that is:
(A) a century farm; and
(B) located in a county of the first class.
(4) (a) The right of eminent domain may not be exercised within a migratory bird
production area created on or before December 31, 2020, under Title 23, Chapter 28, Migratory
Bird Production Area, except as follows:
(i) subject to Subsection (4)(b), an electric utility may condemn land within a migratory
bird production area located in a county of the first class only for the purpose of installing
buried power lines;
(ii) an electric utility may condemn land within a migratory bird production area in a
county other than a county of the first class to install:
(A) buried power lines; or
(B) a new overhead transmission line that is parallel to and abutting an existing
overhead transmission line or collocated within an existing overhead transmission line right of
way; or
(iii) the Department of Transportation may exercise eminent domain for the purpose of
the construction of the West Davis Highway.
(b) Before exercising the right of eminent domain under Subsection (4)(a)(i), the
electric utility shall demonstrate that:
(i) the proposed condemnation would not have an unreasonable adverse effect on the
preservation, use, and enhancement of the migratory bird production area; and
(ii) there is no reasonable alternative to constructing the power line within the
boundaries of a migratory bird production area.