As a means of resolving land use disputes, The Office of the Property Rights Ombudsman is authorized to issue Advisory Opinions under § 13-43-205 of the Utah Code. An Advisory Opinion is a legal analysis of a specific land use question, thoroughly evaluating facts presented by all parties. An attorney is appointed to prepare a reasoned written opinion that attempts to predict how the matter would be decided by a court.
To view all Advisory Opinions, click the “Advisory Opinions” tab.
A keyword search of Advisory Opinions may be found under the “Find Advisory Opinions” link.
What is an Advisory Opinion?
An advisory opinion is a legal analysis of a specific land use question, evaluating facts presented by the parties. An attorney is appointed to prepare the opinion, the facts and positions of the parties are thorougly reviewed, and the written opinion attempts to predict how a court would resolve the matter. The Office makes every effort to ensure that the advisory opinion process is conducted in a transparent, fair, and neutral manner, and that all parties receive an opportunity to participate. The Utah Legislature created the Advisory Opinion process to promote the resolution of land use disputes without resorting to costly, stressful, and time-consuming litigation.
Who May Request an Advisory Opinion?
Property owners, developers, government agencies, and other parties potentially aggrieved by a land use decision or dispute may request an Advisory Opinion. Please contact our office to discuss whether an Advisory Opinion would be appropriate.
Are There any Limits to Topics Covered by an Advisory Opinion?
Advisory Opinions are limited to the topics listed in § 13-43-205 of the Utah Code. The Office may not issue opinions on subjects not included in that statute. For more information about these topics or about a specific matter, please contact the Ombudsman’s Office.
What Topics May be Addressed in an Advisory Opinion?
Currently, the list of topics includes the following:
Impact Fees are charges imposed by local governments to mitigate the impact of new development on public infrastructure, such as roads, water systems, sewers, storm water management, parks, and public safety facilities. Impact fees are authorized and governed by the Impact Fees Act, found at §§ 11-36a-101 to -705 of the Utah Code.
Conditional Uses are land uses with unique characteristics that may have detrimental impacts on a community. Because of those impacts, local governments may designate such uses as “conditional,” meaning that they may be approved if conditions are imposed that mitigate the detrimental impacts. (Utah Code § 10-9a-507 and § 17-27a-506).
Limit on Single Family Designation refers to a provision in the Utah Code which restricts local governments from limiting the number of unrelated individuals allowed in a residence. (Utah Code § 10-9a-505.5 and § 17-27a-505.5).
Exactions on Development are charges or property dedications required as a condition of development approval. Exactions include property dedications, construction of public improvements, or cash payments. Valid exactions must have (1) an essential link to a legitimate governmental interest, and (2) be roughly proportional to the impact caused by the development. (Utah Code § 10-9a-508 and § 17-27a-507).
Entitlement to Application Approval (i.e. Vesting) refers to the right to approval of a development application according to established land use statutes and ordinances. The right to development approval vests upon submission of a complete application which complies with the land use ordinances then in effect. Once the right to develop vests, the application is entitled to approval under the ordinances in place at the time, unless a compelling, counterveilling public interest arises. (Utah Code § 10-9a-509(1)(a) and § 17-27a-508(1)(a)).
Complete Land Use Application means that an application will only be deemed complete once it is in a form that complies with the local government’s land use ordinances, and all applicable fees have been paid. (Utah Code § 10-9a-509(1)(f) and § 17-27a-508(1)(f)).
Proceeding with Reasonable Diligence is a requirement imposed by the Utah Code relating to the speed at which a developer moves forward with the property development. A vested right to develop may be lost if the developer does not proceed with reasonable diligence. ((Utah Code § 10-9a-509(1)(g) and § 17-27a-508(1)(g)).
Compelling, Countervailing Public Interests are reasons to deny approval of development after the right to develop has vested. The public interests must be of significant importance to deny or affect the right to develop. (Utah Code § 10-9a-509(1)(a) and § 17-27a-508(1)(a)).
Pending Ordinances is an exception from the vesting rule. If the local government has initiated the process of adopting an ordinance change that would affect the development application, the right to develop does not vest if the ordinance is adopted. (Utah Code § 10-9a-509(1)(e) and § 17-27a-508(1)(e)).
Requirements Imposed Upon Development refers to conditions which may be required from new development, including subdivisions and building permits. Conditions must be either expressed at the time of development approval, or be found in statutes and ordinances. (Utah Code § 10-9a-509(1)(h) and § 17-27a-508(1)(h)).
Compliance With Mandatory Land Use Ordinances refers to the obligation placed on local governments to comply with state laws and local ordinances which govern land uses, including required notices and public hearings. Local governments are not allowed to make up rules “on the fly,” unless they follow proper procedures. (Utah Code § 10-9a-509(2) and § 17-27a-508(2)).
Review for Application Completeness means that local governments must decide in a timely manner whether an application is complete and ready for further processing. After a reasonable time, an applicant may request that the local government make a determination of completeness within 30 days. If an application is deemed incomplete, the local government must explain what is necessary to make it complete. (Utah Code § 10-9a-509.5(1) and § 17-27a-509.5(1)).
Substantive Review of Application refers to a requirement that local governments review and issue a decision on a land use application with reasonable diligence. After a reasonable time has passed, an applicant may request that the local government act within 45 days. The reasons to deny an application must be expressed in writing. (Utah Code § 10-9a-509.5(2) and § 17-27a-509.5(2)).
Review of Warranty Work for Completion refers to review and acceptance of required public improvements (such as roads) installed in a new development and subject to a warranty or completion bond. Upon request, a local government must inspect the work within a reasonable time, and explain what further work needs to be done. (Utah Code § 10-9a-509.5(3) and § 17-27a-509.5(3)).
Application Review Fees refers to limits placed on the amount of fees charged to process land use development applications. The fees must reflect the reasonable costs to process the application. An applicant may request an itemized statement of any fees, and also any analyses that show how the review fees were determined. (Utah Code § 10-9a-510 and § 10-9a-509).
Nonconforming Uses and Noncomplying Structures, sometimes referred to as “grandfathered uses,” are uses or buildings that were established when allowed, but are now prohibited by a zoning ordinance. Such uses are allowed to continue unless abandoned. (Utah Code § 10-9a-511 and § 17-27a-510).
How do I Request an Advisory Opinion?
Simply fill out the Advisory Opinion request form found here, and send it to the Ombudsman along with any supporting documents. The Utah Legislature requires a $150 filing fee for each Opinion. It is suggested that the OPRO be contacted prior to requesting an Advisory Opinion to determine if the subject matter and timing of the request are appropriate.
When May I Request an Advisory Opinion?
An Advisory Opinion may be requested at any time before a final decision on a land use application by a local appeal authority, or if no local appeal authority is designated to hear the issue, at any time before the deadline for filing an appeal with the district court. If an Opinion is not requested prior to those cut-off dates, state law mandates that one is no longer available.
Who Prepares Advisory Opinions?
Advisory Opinions are prepared by a neutral party. Most often the opinions are prepared by the staff attorneys in the Ombudsman’s Office. However, either party may request that an outside attorney prepare the Opinion. When that happens, the OPRO appoints a third-party neutral that is acceptable to all parties. If the parties cannot agree upon a attorney to prepare the Advisory Opinion, the OPRO will determine who will write the Opinion.
Will an Advisory Opinion Cost me Anything?
State law requires a filing fee of $150 for an Advisory Opinion. If an OPRO staff attorney prepares the Opinion, there is no further cost to the parties. If either party requests an outside professional to prepare the Advisory Opinion, the parties must each pay half of the professional’s fees.
What Happens After I Submit my Request for an Advisory Opinion?
Upon receipt of a complete request for an Advisory Opinion and the $150 filing fee, the Office will send the request to all necessary parties. Within four business days after receipt of the request, the parties are asked to contact the OPRO to discuss appointment of a neutral professional, and to discuss any responses to the request.
Is an Advisory Opinion Conclusion Binding?
Advisory Opinions are not binding on either party and are offered to help the parties resolve disputes. All parties are subject to state laws and local ordinances. The OPRO makes every effort to ensure that Advisory Opinions accurately state the laws that apply to the factual situation. If a party that does not agree with an Opinion’s conclusions may contact the Ombudsman to discuss the matter further.
May an Advisory Opinion be Used as Evidence in Court?
An Advisory Opinion may not be used as evidence in a legal proceeding and has no precedential value. It may, however, be used as a basis for awarding certain legal fees. If the same issue that is the subject of an Advisory Opinion is listed as a cause of action in litigation, and the court resolves that cause of action in the same manner as the Opinion, then the party that prevails in court may be awarded certain reasonable attorneys’ fees and court costs relating to that cause of action. Please contact our office to find out how the potential award of attorneys’ fees may apply.
Will a Local Land Use Application or Decision be Delayed Pending Completion of an Advisory Opinion?
The Advisory Opinion process does not delay the review or processing of a land use application, other local government land use proceedings, or any appeal deadlines.