Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 289 Second Substitute (2024GS)

Sponsor

Rep. Birkeland, K.

Final action

Governor Signed 3/18/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• clarifies that a party who prevails in court on an issue that the Office of Property Rights Ombudsman previously decided in the party's favor is entitled to an award of attorney fees;
• provides that the party described above is entitled to consequential damages; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

PROPERTY RIGHTS OMBUDSMAN AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kera Birkeland
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill modifies the Property Rights Ombudsman Act.
Highlighted Provisions:
This bill:
▸ clarifies that a party who prevails in court on an issue that the Office of Property
Rights Ombudsman previously decided in the party's favor is entitled to an award of
attorney fees;
▸ provides that the party described above is entitled to consequential damages; and
▸ makes technical and conforming changes. 
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-43-206
, as last amended by Laws of Utah 2020, Fifth Special Session, Chapter 4
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-43-206
 is amended to read:
13-43-206.
Advisory opinion -- Process.
(1) A request for an advisory opinion under Section 
13-43-205
 shall be:
(a) filed with the Office of the Property Rights Ombudsman; and
(b) accompanied by a filing fee of $150.
(2) The Office of the Property Rights Ombudsman may establish policies providing for
partial fee waivers for a person who is financially unable to pay the entire fee.
(3) A person requesting an advisory opinion need not exhaust administrative remedies,
including remedies described under Section 
10-9a-801
 or 
17-27a-801
, before requesting an
advisory opinion.
(4) The Office of the Property Rights Ombudsman shall:
(a) deliver notice of the request to opposing parties indicated in the request;
(b) inquire of all parties if there are other necessary parties to the dispute; and
(c) deliver notice to all necessary parties.
(5) If a governmental entity is an opposing party, the Office of the Property Rights
Ombudsman shall deliver the request in the manner provided for in Section 
63G-7-401
.
(6) (a) The Office of the Property Rights Ombudsman shall promptly determine if the
parties can agree to a neutral third party to issue an advisory opinion.
(b) If no agreement can be reached within four business days after notice is delivered
pursuant to Subsections (4) and (5), the Office of the Property Rights Ombudsman shall
appoint a neutral third party to issue an advisory opinion.
(7) All parties that are the subject of the request for advisory opinion shall:
(a) share equally in the cost of the advisory opinion; and
(b) provide financial assurance for payment that the neutral third party requires.
(8) The neutral third party shall comply with the provisions of Section 
78B-11-109
,
and shall promptly:
(a) seek a response from all necessary parties to the issues raised in the request for
advisory opinion;
(b) investigate and consider all responses; and
(c) issue a written advisory opinion within 15 business days after the appointment of
the neutral third party under Subsection (6)(b), unless:
(i) the parties agree to extend the deadline; or
(ii) the neutral third party determines that the matter is complex and requires additional
time to render an opinion, which may not exceed 30 calendar days.
(9) An advisory opinion shall include a statement of the facts and law supporting the
opinion's conclusions.
(10) (a) Copies of any advisory opinion issued by the Office of the Property Rights
Ombudsman shall be delivered as soon as practicable to all necessary parties.
(b) A copy of the advisory opinion shall be delivered to the government entity in the
manner provided for in Section 
63G-7-401
.
(11) An advisory opinion issued by the Office of the Property Rights Ombudsman is
not binding on any party to, nor admissible as evidence in, a dispute involving land use law
except as provided in Subsection (12).
(12) Subject to Subsection (13), if the Office of the Property Rights Ombudsman issues
an advisory opinion described in this section, and if the same issue that is the subject of the
advisory opinion is subsequently litigated in court on a cause of action alleging the same facts
and circumstances that are at issue in the advisory opinion, and if the court resolves the issue
consistent with the advisory opinion, the court shall award the substantially prevailing party:
(a) reasonable attorney fees and court costs pertaining to the development of the cause
of action from the date the Office of the Property Rights Ombudsman delivers the advisory
opinion to the date of the court's resolution;
(b) consequential damages; and
(c) if the court finds that the opposing party knowingly and intentionally violated the
law governing the cause of action, a civil penalty of $250 per day.
[
(12) Subject to Subsection (13), if a dispute involving land use law results in the
issuance of an advisory opinion described in this section, if the same issue that is the subject of
the advisory opinion is subsequently litigated on the same facts and circumstances at issue in
the advisory opinion, and if the relevant issue is resolved consistent with the advisory opinion,
the substantially prevailing party on that cause of action may collect:
]
[
(a) reasonable attorney fees and court costs pertaining to the development of that
cause of action from the date of the delivery of the advisory opinion to the date of the court's
resolution; and
]
[
(b) subject to Subsection (13), if the court finds that the opposing party knowingly and
intentionally violated the law governing that cause of action, a civil penalty of $250 per day:
]
[
(i) beginning on the later of:
]
[
(A) 30 days after the day on which the advisory opinion was delivered; or
]
[
(B) the day on which the action was filed; and
]
[
(ii) ending the day on which the court enters a final judgment.
]
(13) (a) Subsection (12) does not apply unless the resolution described in Subsection
[
(12)
] 
(12)(a)
 is final.
(b) [
A court may not impose a civil penalty under Subsection (12)(b) against or in
favor of a party other than the land use applicant or a government entity.
] 
The civil penalty
described in Subsection (12)(c):
(i) begins to accrue on the later of:
(A) 30 days after the day on which the Office of the Property Rights Ombudsman
delivers the advisory opinion; or
(B) the day on which the substantially prevailing party or opposing party filed the
action in court; and
(ii) ends the day on which the court enters a final judgment.
(c) A court may not impose a civil penalty against a party under Subsection (12)(c)
unless the party is the land use applicant or a government entity.
(14) In addition to any amounts awarded under Subsection (12), if the dispute
described in Subsection (12) in whole or in part concerns an impact fee, and if the result of the
litigation requires that the political subdivision or private entity refund the impact fee in
accordance with Section 
11-36a-603
, the political subdivision or private entity shall refund the
impact fee in an amount that is based on the difference between the impact fee paid and what
the impact fee should have been if the political subdivision or private entity had correctly
calculated the impact fee.
(15) Nothing in this section is intended to create [
any
] 
a
 new cause of action under land
use law.
(16) Unless filed by the local government, a request for an advisory opinion under
Section 
13-43-205
 does not stay the progress of a land use application, the effect of a land use
decision, or the condemning entity's occupancy of a property.
Section 2. 
Effective date.
This bill takes effect on May 1, 2024.