|Repeals and Reenacts:
Effective Date: May 14, 2013
Senate Bill 153 focuses on three areas of land use regulation: Residential facilities for the disabled or elderly, the relationship between a land use authority and other government entities in development approval, and warranties for required public improvements. The bill amends LUDMA, the Land Use, Development, and Management Acts (Chapter 10-9a and Chapter 17-27a of the Utah Code).
The bill repeals three sections governing residential facilities for the elderly, and also repeals definitions for “elderly person” and “residential facility for elderly persons.” The first three subsections of the statutes governing residential facilities for the disabled are amended to remove language purportedly allowing local control of such facilities. The only language that remains clearly states that licensing of facilities for the disabled is conducted by state agencies, and local governments may only regulate those facilities to the extent allowed by state and federal law.
The bill also addresses the common situation where governmental entities other than the land use authority participate in review or approval of development applications. The new language fills a gap in local land use law, by requiring the “other” entities to comply with LUDMA requirements when the entity participates in the development review and approval process (even in an advisory role). See § 17B-1-119. In addition, a land use authority may impose an exaction on behalf of another government entity, if the exaction is requested, and if it is transferred to the other entity. For example, a developer seeking approval from a local government may also need approval from a special district for a local utility service (such as water or sewer). The district may request that the developer be required to install facilities, which would be considered an exaction (and which would be subject to rough proportionality analysis like any other exaction).
In addition, the bill provides guidance on warranties for public improvements. The bill establishes new definitions for “improvement completion assurance,” meaning a bond or other warranty to guaranty completion of infrastructure or landscaping; and “improvement warranty,” meaning a warranty that completed improvements comply with standards for workmanship, materials, and design. These definitions clarify that completion bonds may be required, and that the improvement warranties guarantee against material failure as a result of poor workmanship or materials, rather than normal wear and tear. Another definition, “improvement warranty period” establishes a one-year warranty period, unless there is substantial evidence that a one-year period would be inadequate, because of prior poor performance, or because the improvement is constructed on “suspect soil,” (which is also defined).
Finally, the bill also enacts new language in § 604.5 of LUDMA, authorizing completion bonds and improvement warranties. Local governments are required to establish “objective inspection standards” for infrastructure or landscaping, and may require that the improvements be completed prior to plat recording or other development activity.