Utah Code 17-27a-801. No district court review until administrative remedies exhausted — Time for filing — Tolling of time — Standards governing court review — Record on review — Staying of decision
17-27a-801. No district court review until administrative remedies exhausted — Time for filing — Tolling of time — Standards governing court review — Record on review — Staying of decision.
(1)
No person may challenge in district court a land use decision until that person has exhausted the person’s administrative remedies as provided in 7, if applicable.
Terms Used In Utah Code 17-27a-801
Adversely affected party: means a person other than a land use applicant who:
(a)
owns real property adjoining the property that is the subject of a land use application or land use decision; or
(b)
will suffer a damage different in kind than, or an injury distinct from, that of the general community as a result of the land use decision. See Utah Code 17-27a-103
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.
Appeal authority: means the person, board, commission, agency, or other body designated by ordinance to decide an appeal of a decision of a land use application or a variance. See Utah Code 17-27a-103
Constitutional taking: means a governmental action that results in a taking of private property so that compensation to the owner of the property is required by the:
(a)
Fifth or Fourteenth Amendment of the Constitution of the United States; or
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
General plan: means a document that a county adopts that sets forth general guidelines for proposed future development of:
(a)
the unincorporated land within the county; or
(b)
for a mountainous planning district, the land within the mountainous planning district. See Utah Code 17-27a-103
Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
Land use applicant: means a property owner, or the property owner's designee, who submits a land use application regarding the property owner's land. See Utah Code 17-27a-103
Land use authority: means :
(a)
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 17-27a-103
Land use decision: means an administrative decision of a land use authority or appeal authority regarding:
(a)
a land use permit;
(b)
a land use application; or
(c)
the enforcement of a land use regulation, land use permit, or development agreement. See Utah Code 17-27a-103
Person: means an individual, corporation, partnership, organization, association, trust, governmental agency, or any other legal entity. See Utah Code 17-27a-103
Remand: When an appellate court sends a case back to a lower court for further proceedings.
State: includes any department, division, or agency of the state. See Utah Code 17-27a-103
Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
(2)
(a)
Subject to Subsection (1), a land use applicant or adversely affected party may file a petition for review of a land use decision with the district court within 30 days after the decision is final.
(b)
(i)
The time under Subsection (2)(a) to file a petition is tolled from the date a property owner files a request for arbitration of a constitutional taking issue with the property rights ombudsman under Section 13-43-204 until 30 days after:
(A)
the arbitrator issues a final award; or
(B)
the property rights ombudsman issues a written statement under Subsection 13-43-204(3)(b) declining to arbitrate or to appoint an arbitrator.
(ii)
A tolling under Subsection (2)(b)(i) operates only as to the specific constitutional taking issue that is the subject of the request for arbitration filed with the property rights ombudsman by a property owner.
(iii)
A request for arbitration filed with the property rights ombudsman after the time under Subsection (2)(a) to file a petition has expired does not affect the time to file a petition.
(3)
(a)
A court shall:
(i)
presume that a land use regulation properly enacted under the authority of this chapter is valid; and
(ii)
determine only whether:
(A)
the land use regulation is expressly preempted by, or was enacted contrary to, state or federal law; and
(B)
it is reasonably debatable that the land use regulation is consistent with this chapter.
(b)
A court shall presume that a final land use decision of a land use authority or an appeal authority is valid unless the land use decision is:
(i)
arbitrary and capricious; or
(ii)
illegal.
(c)
(i)
A land use decision is arbitrary and capricious if the land use decision is not supported by substantial evidence in the record.
(ii)
A land use decision is illegal if the land use decision:
(A)
is based on an incorrect interpretation of a land use regulation;
(B)
conflicts with the authority granted by this title; or
(C)
is contrary to law.
(d)
(i)
A court may affirm or reverse a land use decision.
(ii)
If the court reverses a land use decision, the court shall remand the matter to the land use authority with instructions to issue a land use decision consistent with the court’s decision.
(4)
The provisions of Subsection (2)(a) apply from the date on which the county takes final action on a land use application, if the county conformed with the notice provisions of 2, or for any person who had actual notice of the pending land use decision.
(5)
If the county has complied with Section 17-27a-205, a challenge to the enactment of a land use regulation or general plan may not be filed with the district court more than 30 days after the enactment.
(6)
A challenge to a land use decision is barred unless the challenge is filed within 30 days after the land use decision is final.
(7)
(a)
The land use authority or appeal authority, as the case may be, shall transmit to the reviewing court the record of the proceedings of the land use authority or appeal authority, including the minutes, findings, orders and, if available, a true and correct transcript of the proceedings.
(b)
If the proceeding was recorded, a transcript of that recording is a true and correct transcript for purposes of this Subsection (7).
(8)
(a)
(i)
If there is a record, the district court’s review is limited to the record provided by the land use authority or appeal authority, as the case may be.
(ii)
The court may not accept or consider any evidence outside the record of the land use authority or appeal authority, as the case may be, unless that evidence was offered to the land use authority or appeal authority, respectively, and the court determines that the evidence was improperly excluded.
(b)
If there is no record, the court may call witnesses and take evidence.
(9)
(a)
The filing of a petition does not stay the land use decision of the land use authority or appeal authority, as the case may be.
(b)
(i)
Before filing a petition under this section or a request for mediation or arbitration of a constitutional taking issue under Section 13-43-204, a land use applicant may petition the appeal authority to stay the appeal authority’s decision.
(ii)
Upon receipt of a petition to stay, the appeal authority may order the appeal authority’s decision stayed pending district court review if the appeal authority finds the order to be in the best interest of the county.
(iii)
After a petition is filed under this section or a request for mediation or arbitration of a constitutional taking issue is filed under Section 13-43-204, the petitioner may seek an injunction staying the appeal authority’s land use decision.
(10)
If the court determines that a party initiated or pursued a challenge to a land use decision on a land use application in bad faith, the court may award attorney fees.
