Utah Code 10-9a-604.5. Subdivision plat recording or development activity before required landscaping or infrastructure is completed — Improvement completion assurance — Improvement warranty
10-9a-604.5. Subdivision plat recording or development activity before required landscaping or infrastructure is completed — Improvement completion assurance — Improvement warranty.
(1)
As used in this section, “public landscaping improvement” means landscaping that an applicant is required to install to comply with published installation and inspection specifications for public improvements that:
Terms Used In Utah Code 10-9a-604.5
Development activity: means :
(a)
any construction or expansion of a building, structure, or use that creates additional demand and need for public facilities;
(b)
any change in use of a building or structure that creates additional demand and need for public facilities; or
(c)
any change in the use of land that creates additional demand and need for public facilities. See Utah Code 10-9a-103
Development agreement: means a written agreement or amendment to a written agreement between a municipality and one or more parties that regulates or controls the use or development of a specific area of land. See Utah Code 10-9a-103
Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
Improvement completion assurance: means a surety bond, letter of credit, financial institution bond, cash, assignment of rights, lien, or other equivalent security required by a municipality to guaranty the proper completion of landscaping or an infrastructure improvement required as a condition precedent to:
(a)
recording a subdivision plat; or
(b)
development of a commercial, industrial, mixed use, or multifamily project. See Utah Code 10-9a-103
Improvement warranty: means an applicant's unconditional warranty that the applicant's installed and accepted landscaping or infrastructure improvement:
(a)
complies with the municipality's written standards for design, materials, and workmanship; and
(b)
will not fail in any material respect, as a result of poor workmanship or materials, within the improvement warranty period. See Utah Code 10-9a-103
Improvement warranty period: means a period:
(a)
no later than one year after a municipality's acceptance of required landscaping; or
(b)
no later than one year after a municipality's acceptance of required infrastructure, unless the municipality:
(i)
determines for good cause that a one-year period would be inadequate to protect the public health, safety, and welfare; and
(ii)
has substantial evidence, on record:
(A)
of prior poor performance by the applicant; or
(B)
that the area upon which the infrastructure will be constructed contains suspect soil and the municipality has not otherwise required the applicant to mitigate the suspect soil. See Utah Code 10-9a-103
Infrastructure improvement: means permanent infrastructure that is essential for the public health and safety or that:
(a)
is required for human occupation; and
(b)
an applicant must install:
(i)
in accordance with published installation and inspection specifications for public improvements; and
(ii)
whether the improvement is public or private, as a condition of:
(A)
recording a subdivision plat;
(B)
obtaining a building permit; or
(C)
development of a commercial, industrial, mixed use, condominium, or multifamily project. See Utah Code 10-9a-103
a person, board, commission, agency, or body, including the local legislative body, designated by the local legislative body to act upon a land use application; or
(b)
if the local legislative body has not designated a person, board, commission, agency, or body, the local legislative body. 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
Plat: means an instrument subdividing property into lots as depicted on a map or other graphical representation of lands that a licensed professional land surveyor makes and prepares in accordance with Section 10-9a-603 or 57-8-13. See Utah Code 10-9a-103
State: includes any department, division, or agency of the state. See Utah Code 10-9a-103
(a)
will be dedicated to and maintained by the municipality; or
(b)
are associated with and proximate to trail improvements that connect to planned or existing public infrastructure.
(2)
A land use authority shall establish objective inspection standards for acceptance of a public landscaping improvement or infrastructure improvement that the land use authority requires.
(3)
(a)
Before an applicant conducts any development activity or records a plat, the applicant shall:
(i)
complete any required public landscaping improvements or infrastructure improvements; or
(ii)
post an improvement completion assurance for any required public landscaping improvements or infrastructure improvements.
(b)
If an applicant elects to post an improvement completion assurance, the applicant shall provide completion assurance for:
(i)
completion of 100% of the required public landscaping improvements or infrastructure improvements; or
(ii)
if the municipality has inspected and accepted a portion of the public landscaping improvements or infrastructure improvements, 100% of the incomplete or unaccepted public landscaping improvements or infrastructure improvements.
(c)
A municipality shall:
(i)
establish a minimum of two acceptable forms of completion assurance;
(ii)
if an applicant elects to post an improvement completion assurance, allow the applicant to post an assurance that meets the conditions of this title, and any local ordinances;
(iii)
establish a system for the partial release of an improvement completion assurance as portions of required public landscaping improvements or infrastructure improvements are completed and accepted in accordance with local ordinance; and
(iv)
issue or deny a building permit in accordance with Section 10-9a-802 based on the installation of public landscaping improvements or infrastructure improvements.
(d)
A municipality may not require an applicant to post an improvement completion assurance for:
(i)
public landscaping improvements or an infrastructure improvement that the municipality has previously inspected and accepted;
(ii)
infrastructure improvements that are private and not essential or required to meet the building code, fire code, flood or storm water management provisions, street and access requirements, or other essential necessary public safety improvements adopted in a land use regulation;
(iii)
in a municipality where ordinances require all infrastructure improvements within the area to be private, infrastructure improvements within a development that the municipality requires to be private; or
(iv)
landscaping improvements that are not public landscaping improvements, as defined in Section 10-9a-103, unless the landscaping improvements and completion assurance are required under the terms of a development agreement.
(4)
(a)
Except as provided in Subsection (4)(c), as a condition for increased density or other entitlement benefit not currently available under the existing zone, a municipality may require a completion assurance bond for landscaped amenities and common area that are dedicated to and maintained by a homeowners association.
(b)
Any agreement regarding a completion assurance bond under Subsection (4)(a) between the applicant and the municipality shall be memorialized in a development agreement.
(c)
A municipality may not require a completion assurance bond for the landscaping of residential lots or the equivalent open space surrounding single-family attached homes, whether platted as lots or common area.
(5)
The sum of the improvement completion assurance required under Subsections (3) and (4) may not exceed the sum of:
(a)
100% of the estimated cost of the public landscaping improvements or infrastructure improvements, as evidenced by an engineer’s estimate or licensed contractor’s bid; and
(b)
10% of the amount of the bond to cover administrative costs incurred by the municipality to complete the improvements, if necessary.
(6)
At any time before a municipality accepts a public landscaping improvement or infrastructure improvement, and for the duration of each improvement warranty period, the municipality may require the applicant to:
(a)
execute an improvement warranty for the improvement warranty period; and
(b)
post a cash deposit, surety bond, letter of credit, or other similar security, as required by the municipality, in the amount of up to 10% of the lesser of the:
(i)
municipal engineer’s original estimated cost of completion; or
(ii)
applicant’s reasonable proven cost of completion.
(7)
When a municipality accepts an improvement completion assurance for public landscaping improvements or infrastructure improvements for a development in accordance with Subsection (3)(c)(ii), the municipality may not deny an applicant a building permit if the development meets the requirements for the issuance of a building permit under the building code and fire code.
(8)
The provisions of this section do not supersede the terms of a valid development agreement, an adopted phasing plan, or the state construction code.
