11-36-202 - Impact fees -- Enactment -- Required and allowed provisions -- Limitations -- Effective date.
11-36-202. Impact fees -- Enactment -- Required and allowed provisions --Limitations -- Effective date.
(1) (a) Each local political subdivision and private entity wishing to impose impact feesshall pass an impact fee enactment.
(b) The impact fee imposed by that enactment may not exceed the highest fee justified bythe impact fee analysis performed pursuant to Section 11-36-201.
(c) In calculating the impact fee, a local political subdivision or private entity mayinclude:
(i) the construction contract price;
(ii) the cost of acquiring land, improvements, materials, and fixtures;
(iii) the cost for planning, surveying, and engineering fees for services provided for anddirectly related to the construction of the system improvements; and
(iv) debt service charges, if the political subdivision might use impact fees as a revenuestream to pay the principal and interest on bonds, notes, or other obligations issued to finance thecosts of the system improvements.
(d) In calculating an impact fee, a local political subdivision may not include an expensefor overhead unless the expense is calculated pursuant to a methodology that is consistent with:
(i) generally accepted cost accounting practices; and
(ii) the methodological standards set forth by the federal Office of Management andBudget for federal grant reimbursement.
(e) In calculating an impact fee, each local political subdivision shall base amountscalculated under Subsection (1)(c) on realistic estimates, and the assumptions underlying thoseestimates shall be disclosed in the impact fee analysis.
(f) Each local political subdivision and private entity that intends to enact an impact feeenactment shall:
(i) at least 10 days before the date of the public hearing:
(A) make a copy of the impact fee enactment available to the public; and
(B) mail a written copy of the impact fee enactment to:
(I) the registered agent of the Utah Home Builders Association;
(II) the registered agent of the Utah Association of Realtors; and
(III) the registered agent of the Utah Chapter of the Associated General Contractors ofAmerica; and
(ii) (A) for a municipality, 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;
(B) for a county, 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
(C) for a local district or special service district, comply with the notice and hearingrequirements of, and receive the protections of, Section 17B-1-111.
(g) Nothing contained in Subsection (1)(f) may be construed to require involvement by aplanning commission in the impact fee enactment process.
(2) The local political subdivision or private entity shall ensure that the impact feeenactment:
(a) contains:
(i) a provision establishing one or more service areas within which the local politicalsubdivision or private entity calculates and imposes impact fees for various land use categories;
(ii) (A) a schedule of impact fees for each type of development activity that specifies theamount of the impact fee to be imposed for each type of system improvement; or
(B) the formula that the local political subdivision or private entity, as the case may be,will use to calculate each impact fee;
(iii) a provision authorizing the local political subdivision or private entity, as the casemay be, to adjust the standard impact fee at the time the fee is charged to:
(A) respond to:
(I) unusual circumstances in specific cases; or
(II) a request for a prompt and individualized impact fee review for:
(Aa) the development activity of the state or a school district or charter school; and
(Bb) an offset or credit for a public facility for which an impact fee has been or will becollected; and
(B) ensure that the impact fees are imposed fairly; and
(iv) a provision governing calculation of the amount of the impact fee to be imposed on aparticular development that permits adjustment of the amount of the fee based upon studies anddata submitted by the developer; and
(b) allows a developer, including a school district or charter school, to receive a creditagainst or proportionate reimbursement of an impact fee if the developer:
(i) dedicates land for a system improvement;
(ii) builds and dedicates some or all of a system improvement; or
(iii) dedicates a public facility that the local political subdivision or private entity and thedeveloper agree will reduce the need for a system improvement.
(3) (a) A local political subdivision or private entity may include a provision in an impactfee enactment that:
(i) provides an impact fee exemption for:
(A) development activity attributable to:
(I) low income housing;
(II) the state;
(III) a school district; or
(IV) a charter school; or
(B) other development activity with a broad public purpose; and
(ii) establishes one or more sources of funds other than impact fees to pay for thatdevelopment activity.
(b) An impact fee enactment that provides an impact fee exemption for developmentactivity attributable to a school district or charter school shall allow either a school district or acharter school to qualify for the exemption on the same basis.
(4) A local political subdivision or private entity shall include a provision in an impactfee enactment that requires a credit against impact fees for any dedication of land for,improvement to, or new construction of, any system improvements provided by the developer ifthe facilities:
(a) are system improvements; or
(b) (i) are dedicated to the public; and
(ii) offset the need for an identified system improvement.
(5) A local political subdivision may not:
(a) impose an impact fee to:
(i) cure deficiencies in a public facility serving existing development; or
(ii) raise the established level of service of a public facility serving existing development;or
(b) delay the construction of a school or charter school because of a dispute with theschool or charter school over impact fees.
(6) Notwithstanding the requirements and prohibitions of this chapter, a local politicalsubdivision may impose and assess an impact fee for environmental mitigation when:
(a) the local political subdivision has formally agreed to fund a Habitat ConservationPlan to resolve conflicts with the Endangered Species Act of 1973, 16 U.S.C. Sec 1531, et seq. orother state or federal environmental law or regulation;
(b) the impact fee bears a reasonable relationship to the environmental mitigationrequired by the Habitat Conservation Plan; and
(c) the legislative body of the local political subdivision adopts an ordinance orresolution:
(i) declaring that an impact fee is required to finance the Habitat Conservation Plan;
(ii) establishing periodic sunset dates for the impact fee; and
(iii) requiring the legislative body to:
(A) review the impact fee on those sunset dates;
(B) determine whether or not the impact fee is still required to finance the HabitatConservation Plan; and
(C) affirmatively reauthorize the impact fee if the legislative body finds that the impactfee must remain in effect.
(7) (a) Notwithstanding any other provision of this chapter:
(i) an impact fee to pay for a public safety facility that is a fire suppression vehicle maynot be imposed on residential components of development;
(ii) an impact fee may not be imposed on a school district or charter school for a park,recreation facility, open space, or trail;
(iii) an impact fee may not be imposed on development activity that consists of theconstruction of a school, whether by a school district or a charter school, if:
(A) the school is intended to replace another school, whether on the same or a differentparcel;
(B) the new school creates no greater demand or need for public facilities than the schoolor school facilities, including any portable or modular classrooms that are on the site of thereplaced school at the time that the new school is proposed; and
(C) the new school and the school being replaced are both within:
(I) the boundary of the local political subdivision; or
(II) the jurisdiction of the private entity;
(iv) an impact fee may not be imposed on a school district or charter school unless:
(A) the development resulting from the school district or charter school's developmentactivity directly results in a need for additional system improvements for which the impact fee isimposed; and
(B) the impact fee is calculated to cover only the school district or charter school'sproportionate share of the cost of those additional system improvements;
(v) an impact fee for a road facility may be imposed on the state only if and to the extentthat:
(A) the state's development causes an impact on the road facility; and
(B) the portion of the road facility related to an impact fee is not funded by the state or bythe federal government; and
(vi) to the extent that the impact fee includes a component for a law enforcement facility,the impact fee may not be imposed on development activity for:
(A) the Utah National Guard;
(B) the Utah Highway Patrol; or
(C) a state institution of higher education that has its own police force.
(b) If the imposition of an impact fee on a new school is not prohibited under Subsection(7)(a)(iii) because the new school creates a greater demand or need for public facilities than theschool being replaced, the impact fee may be based only on the demand or need that the newschool creates for public facilities that exceeds the demand or need that the school being replacedcreates for those public facilities.
(8) Notwithstanding any other provision of this chapter, a local political subdivision mayimpose and collect impact fees on behalf of a school district if authorized by Section53A-20-100.5.
(9) An impact fee enactment may not take effect until 90 days after it is enacted.
Amended by Chapter 315, 2010 General Session