Utah Code 10-9a-408. Moderate income housing report — Contents — Prioritization for funds or projects — Ineligibility for funds after noncompliance — Civil actions
10-9a-408. Moderate income housing report — Contents — Prioritization for funds or projects — Ineligibility for funds after noncompliance — Civil actions.
(1)
As used in this section:
Terms Used In Utah Code 10-9a-408
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
City: includes , depending on population, a metro township as defined in Section 10-3c-102. See Utah Code 68-3-12.5
Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
General plan: means a document that a municipality adopts that sets forth general guidelines for proposed future development of the land within the municipality. See Utah Code 10-9a-103
Moderate income housing: means housing occupied or reserved for occupancy by households with a gross household income equal to or less than 80% of the median gross income for households of the same size in the county in which the city is located. See Utah Code 10-9a-103
Municipality: means :
(a)
a city of the first class, city of the second class, city of the third class, city of the fourth class, city of the fifth class;
a metro township as that term is defined in Section 10-2a-403 unless the term is used in the context of authorizing, governing, or otherwise regulating the provision of municipal services. See Utah Code 10-1-104
Plaintiff: The person who files the complaint in a civil lawsuit.
State: includes any department, division, or agency of the state. See Utah Code 10-9a-103
Uphold: The decision of an appellate court not to reverse a lower court decision.
“Division” means the Housing and Community Development Division within the Department of Workforce Services.
(b)
“Implementation plan” means the implementation plan adopted as part of the moderate income housing element of a specified municipality‘s general plan as provided in Subsection 10-9a-403(2)(c).
(c)
“Initial report” or “initial moderate income housing report” means the one-time report described in Subsection (2).
(d)
“Moderate income housing strategy” means a strategy described in Subsection 10-9a-403(2)(b)(iii).
(e)
“Report” means an initial report or a subsequent progress report.
(f)
“Specified municipality” means:
(i)
a city of the first, second, third, or fourth class;
(ii)
a city of the fifth class with a population of 5,000 or more, if the city is located within a county of the first, second, or third class; or
(iii)
a metro township with a population of 5,000 or more.
(g)
“Subsequent progress report” means the annual report described in Subsection (3).
(2)
(a)
The legislative body of a specified municipality shall submit an initial report to the division.
(b)
(i)
This Subsection (2)(b) applies to a municipality that is not a specified municipality as of January 1, 2023.
(ii)
As of January 1, if a municipality described in Subsection (2)(b)(i) changes from one class to another or grows in population to qualify as a specified municipality, the municipality shall submit an initial plan to the division on or before August 1 of the first calendar year beginning on January 1 in which the municipality qualifies as a specified municipality.
(c)
The initial report shall:
(i)
identify each moderate income housing strategy selected by the specified municipality for continued, ongoing, or one-time implementation, restating the exact language used to describe the moderate income housing strategy in Subsection 10-9a-403(2)(b)(iii); and
(ii)
include an implementation plan.
(3)
(a)
After the division approves a specified municipality’s initial report under this section, the specified municipality shall, as an administrative act, annually submit to the division a subsequent progress report on or before August 1 of each year after the year in which the specified municipality is required to submit the initial report.
(b)
The subsequent progress report shall include:
(i)
subject to Subsection (3)(c), a description of each action, whether one-time or ongoing, taken by the specified municipality during the previous 12-month period to implement the moderate income housing strategies identified in the initial report for implementation;
(ii)
a description of each land use regulation or land use decision made by the specified municipality during the previous 12-month period to implement the moderate income housing strategies, including an explanation of how the land use regulation or land use decision supports the specified municipality’s efforts to implement the moderate income housing strategies;
(iii)
a description of any barriers encountered by the specified municipality in the previous 12-month period in implementing the moderate income housing strategies;
(iv)
information regarding the number of internal and external or detached accessory dwelling units located within the specified municipality for which the specified municipality:
(A)
issued a building permit to construct; or
(B)
issued a business license or comparable license or permit to rent;
(v)
a description of how the market has responded to the selected moderate income housing strategies, including the number of entitled moderate income housing units or other relevant data; and
(vi)
any recommendations on how the state can support the specified municipality in implementing the moderate income housing strategies.
(c)
For purposes of describing actions taken by a specified municipality under Subsection (3)(b)(i), the specified municipality may include an ongoing action taken by the specified municipality prior to the 12-month reporting period applicable to the subsequent progress report if the specified municipality:
(i)
has already adopted an ordinance, approved a land use application, made an investment, or approved an agreement or financing that substantially promotes the implementation of a moderate income housing strategy identified in the initial report; and
(ii)
demonstrates in the subsequent progress report that the action taken under Subsection (3)(c)(i) is relevant to making meaningful progress towards the specified municipality’s implementation plan.
(d)
A specified municipality’s report shall be in a form:
(i)
approved by the division; and
(ii)
made available by the division on or before May 1 of the year in which the report is required.
(4)
Within 90 days after the day on which the division receives a specified municipality’s report, the division shall:
(a)
post the report on the division’s website;
(b)
send a copy of the report to the Department of Transportation, the Governor’s Office of Planning and Budget, the association of governments in which the specified municipality is located, and, if the specified municipality is located within the boundaries of a metropolitan planning organization, the appropriate metropolitan planning organization; and
(c)
subject to Subsection (5), review the report to determine compliance with this section.
(5)
(a)
An initial report does not comply with this section unless the report:
(i)
includes the information required under Subsection (2)(c);
(ii)
demonstrates to the division that the specified municipality made plans to implement:
(A)
three or more moderate income housing strategies if the specified municipality does not have a fixed guideway public transit station; or
(B)
subject to Subsection 10-9a-403(2)(b)(iv), five or more moderate income housing strategies if the specified municipality has a fixed guideway public transit station; and
(iii)
is in a form approved by the division.
(b)
A subsequent progress report does not comply with this section unless the report:
(i)
demonstrates to the division that the specified municipality made plans to implement:
(A)
three or more moderate income housing strategies if the specified municipality does not have a fixed guideway public transit station; or
(B)
subject to the requirements of Subsection 10-9a-403(2)(a)(iii)(D), five or more moderate income housing strategies if the specified municipality has a fixed guideway public transit station;
(ii)
is in a form approved by the division; and
(iii)
provides sufficient information for the division to:
(A)
assess the specified municipality’s progress in implementing the moderate income housing strategies;
(B)
monitor compliance with the specified municipality’s implementation plan;
(C)
identify a clear correlation between the specified municipality’s land use regulations and land use decisions and the specified municipality’s efforts to implement the moderate income housing strategies;
(D)
identify how the market has responded to the specified municipality’s selected moderate income housing strategies; and
(E)
identify any barriers encountered by the specified municipality in implementing the selected moderate income housing strategies.
(6)
(a)
A specified municipality qualifies for priority consideration under this Subsection (6) if the specified municipality’s report:
(i)
complies with this section; and
(ii)
demonstrates to the division that the specified municipality made plans to implement:
(A)
five or more moderate income housing strategies if the specified municipality does not have a fixed guideway public transit station; or
(B)
six or more moderate income housing strategies if the specified municipality has a fixed guideway public transit station.
(b)
The Transportation Commission may, in accordance with Subsection 72-1-304(3)(c), give priority consideration to transportation projects located within the boundaries of a specified municipality described in Subsection (6)(a) until the Department of Transportation receives notice from the division under Subsection (6)(e).
(c)
Upon determining that a specified municipality qualifies for priority consideration under this Subsection (6), the division shall send a notice of prioritization to the legislative body of the specified municipality and the Department of Transportation.
(d)
The notice described in Subsection (6)(c) shall:
(i)
name the specified municipality that qualifies for priority consideration;
(ii)
describe the funds or projects for which the specified municipality qualifies to receive priority consideration; and
(iii)
state the basis for the division’s determination that the specified municipality qualifies for priority consideration.
(e)
The division shall notify the legislative body of a specified municipality and the Department of Transportation in writing if the division determines that the specified municipality no longer qualifies for priority consideration under this Subsection (6).
(7)
(a)
If the division, after reviewing a specified municipality’s report, determines that the report does not comply with this section, the division shall send a notice of noncompliance to the legislative body of the specified municipality.
(b)
A specified municipality that receives a notice of noncompliance may:
(i)
cure each deficiency in the report within 90 days after the day on which the notice of noncompliance is sent; or
(ii)
request an appeal of the division’s determination of noncompliance within 10 days after the day on which the notice of noncompliance is sent.
(c)
The notice described in Subsection (7)(a) shall:
(i)
describe each deficiency in the report and the actions needed to cure each deficiency;
(ii)
state that the specified municipality has an opportunity to:
(A)
submit to the division a corrected report that cures each deficiency in the report within 90 days after the day on which the notice of compliance is sent; or
(B)
submit to the division a request for an appeal of the division’s determination of noncompliance within 10 days after the day on which the notice of noncompliance is sent; and
(iii)
state that failure to take action under Subsection (7)(c)(ii) will result in the specified municipality’s ineligibility for funds under Subsection (9).
(d)
For purposes of curing the deficiencies in a report under this Subsection (7), if the action needed to cure the deficiency as described by the division requires the specified municipality to make a legislative change, the specified municipality may cure the deficiency by making that legislative change within the 90-day cure period.
(e)
(i)
If a specified municipality submits to the division a corrected report in accordance with Subsection (7)(b)(i) and the division determines that the corrected report does not comply with this section, the division shall send a second notice of noncompliance to the legislative body of the specified municipality within 30 days after the day on which the corrected report is submitted.
(ii)
A specified municipality that receives a second notice of noncompliance may submit to the division a request for an appeal of the division’s determination of noncompliance within 10 days after the day on which the second notice of noncompliance is sent.
(iii)
The notice described in Subsection (7)(e)(i) shall:
(A)
state that the specified municipality has an opportunity to submit to the division a request for an appeal of the division’s determination of noncompliance within 10 days after the day on which the second notice of noncompliance is sent; and
(B)
state that failure to take action under Subsection (7)(e)(iii)(A) will result in the specified municipality’s ineligibility for funds under Subsection (9).
(8)
(a)
A specified municipality that receives a notice of noncompliance under Subsection (7)(a) or (7)(e)(i) may request an appeal of the division’s determination of noncompliance within 10 days after the day on which the notice of noncompliance is sent.
(b)
Within 90 days after the day on which the division receives a request for an appeal, an appeal board consisting of the following three members shall review and issue a written decision on the appeal:
(i)
one individual appointed by the Utah League of Cities and Towns;
(ii)
one individual appointed by the Utah Homebuilders Association; and
(iii)
one individual appointed by the presiding member of the association of governments, established pursuant to an interlocal agreement under Title 11, Chapter 13, Interlocal Cooperation Act, of which the specified municipality is a member.
(c)
The written decision of the appeal board shall either uphold or reverse the division’s determination of noncompliance.
(d)
The appeal board’s written decision on the appeal is final.
(9)
(a)
A specified municipality is ineligible for funds under this Subsection (9) if:
(i)
the specified municipality fails to submit a report to the division;
(ii)
after submitting a report to the division, the division determines that the report does not comply with this section and the specified municipality fails to:
(A)
cure each deficiency in the report within 90 days after the day on which the notice of noncompliance is sent; or
(B)
request an appeal of the division’s determination of noncompliance within 10 days after the day on which the notice of noncompliance is sent;
(iii)
after submitting to the division a corrected report to cure the deficiencies in a previously-submitted report, the division determines that the corrected report does not comply with this section and the specified municipality fails to request an appeal of the division’s determination of noncompliance within 10 days after the day on which the second notice of noncompliance is sent; or
(iv)
after submitting a request for an appeal under Subsection (8), the appeal board issues a written decision upholding the division’s determination of noncompliance.
(b)
The following apply to a specified municipality described in Subsection (9)(a) until the division provides notice under Subsection (9)(e):
(i)
the executive director of the Department of Transportation may not program funds from the Transportation Investment Fund of 2005, including the Transit Transportation Investment Fund, to projects located within the boundaries of the specified municipality in accordance with Subsection 72-2-124(5);
(ii)
beginning with a report submitted in 2024, the specified municipality shall pay a fee to the Olene Walker Housing Loan Fund in the amount of $250 per day that the specified municipality:
(A)
fails to submit the report to the division in accordance with this section, beginning the day after the day on which the report was due; or
(B)
fails to cure the deficiencies in the report, beginning the day after the day by which the cure was required to occur as described in the notice of noncompliance under Subsection (7); and
(iii)
beginning with the report submitted in 2025, the specified municipality shall pay a fee to the Olene Walker Housing Loan Fund in the amount of $500 per day that the specified municipality, in a consecutive year:
(A)
fails to submit the report to the division in accordance with this section, beginning the day after the day on which the report was due; or
(B)
fails to cure the deficiencies in the report, beginning the day after the day by which the cure was required to occur as described in the notice of noncompliance under Subsection (6).
(c)
Upon determining that a specified municipality is ineligible for funds under this Subsection (9), and is required to pay a fee under Subsection (9)(b), if applicable, the division shall send a notice of ineligibility to the legislative body of the specified municipality, the Department of Transportation, the State Tax Commission and the Governor’s Office of Planning and Budget.
(d)
The notice described in Subsection (9)(c) shall:
(i)
name the specified municipality that is ineligible for funds;
(ii)
describe the funds for which the specified municipality is ineligible to receive;
(iii)
describe the fee the specified municipality is required to pay under Subsection (9)(b), if applicable, and
(iv)
state the basis for the division’s determination that the specified municipality is ineligible for funds.
(e)
The division shall notify the legislative body of a specified municipality and the Department of Transportation in writing if the division determines that the provisions of this Subsection (9) no longer apply to the specified municipality.
(f)
The division may not determine that a specified municipality that is required to pay a fee under Subsection (9)(b) is in compliance with the reporting requirements of this section until the specified municipality pays all outstanding fees required under Subsection (9)(b) to the Olene Walker Housing Loan Fund, created under 5.
(10)
In a civil action seeking enforcement or claiming a violation of this section or of Subsection 10-9a-404(4)(c), a plaintiff may not recover damages but may be awarded only injunctive or other equitable relief.
Amended by Chapter 88, 2023 General Session, (Coordination Clause) Amended by Chapter 88, 2023 General Session Amended by Chapter 501, 2023 General Session Amended by Chapter 529, 2023 General Session
