HOME > Land Use > Advisory Opinions

This outline is subject to extensive review and revision as the process of preparing advisory opinions is implemented by the Office of the Property Rights Ombudsman. For the most current version, please request an update at the email address provided below. Your comments and suggestions on this procedure are welcome.

Click to download Request Advisory Opinion Form

Goal
The 2006 legislature created the process of issuing advisory opinions in order to promote early resolution of some specific issues related to land use decisions. When an advisory opinion is requested, someone from the ombudsman’s office or a neutral professional will contact the parties, attempt to review the issues, work to find a solution to the dispute, and prepare an advisory opinion only if a resolution of the issues cannot be otherwise achieved.

Issues
Advisory opinions can only be requested on certain specific issues, including:

1. Impact Fees Act (Title 11, Chapter 36, Utah Code Ann.)
2. Conditional use applications. (Utah Code Sections 10-9a-507 and 17-27a-506)
3. Exactions on development. (10-9a-508 and 17-27a-507)
4. Whether an applicant is entitled to approval of a land use application (such as a subdivision, home occupation, or other permit or approval requested under the land use ordinances) because the application conforms to the local land use maps, zoning maps, and land use ordinances. (10-9a-509 and 17-27a-508)
5. Whether a local government entity has imposed on the holder of an issued land use permit a requirement that is not expressed in the land use permit, documents on which the land use permit is based, the state land use statutes, or the local ordinances. (10-9a-509 and 17-27a-508 as amended in 2006 by HB 132)
6. Whether a local government entity has withheld issuance of a certificate of occupancy because of the applicant’s failure to comply with a requirement that is not expressed in the land use permit, documents on which the land use permit is based, the state land use statutes, or the local ordinances. (10-9a-509 and 17-27a-508 as amended in 2006 by HB 132)
7. Whether a municipality is complying with the mandatory provisions of applicable land use ordinances. (10-9a-509 and 17-27a-508)
8. Review of land use applications within a reasonable time. (10-9a-509 and 17-27a-508 as amended in 2006 by SB267)
9. Limits on fees for review and approving building plans. (10-9a-510 and 17-27a-509)
10. Nonconforming uses and noncomplying structures. (10-9a-511 and 17-27a-510).

Do not directly apply to requests for other land use approvals that do not trigger those specific statutes, such as most requests for rezoning, general plan amendments, annexations, etc.

Optional:
The advisory opinion process is voluntary and optional and not an essential part of any land use approval process.

Timing:
A request for an advisory opinion may be filed at any time before a final decision is made by a local land use appeal authority on an issue related to a land use application.

Initiation:
The applicant who has filed a land use application, the local government entity reviewing the application, a neighbor or other third party, a property owner or a citizen who may be "potentially aggrieved" by a land use decision may file a request with the Office of the Property Rights Ombudsman for an advisory opinion.

It is recommended that a person intending to request an advisory opinion call the office of the ombudsman to visit about the issues and facts so as to be confident that the matter is appropriate for an advisory opinion and that the timing of the request is appropriate.

The person or government entity filing a request for an advisory opinion will identify the issue, name the essential parties to the dispute including names and contact information, commit to pay an equal share of the cost of a professional who might be hired to issue an advisory opinion (if someone outside the ombudsman’s office is to prepare the opinion), and provide basic background facts of the dispute. A $150.00 fee will also be paid to initiate the procedure of preparing the opinion.

Review for Appropriateness
Upon receipt of the request for the advisory opinion the ombudsman will review the request to determine if it involves an issue that is within the statutory guidelines for advisory opinions. The ombudsman’s office will work with the requestor to make sure that the request includes essential information and to clearly state what the issues to be addressed in the opinion will be.

Notice:
Upon receipt of the request for an advisory opinion, the office of the ombudsman shall immediately provide notice to the essential parties that the request has been made. Local government entities will be notified through delivery to the city recorder or county clerk at the address they have provided to the Lieutenant Governor that is used to file a notice of claim under state law. If no such address is provided, the ombudsman’s office will use the address listed in the most recent version of the Utah League of Cities and Towns Directory of its members.

Notice will be provided by facsimile as well as certified mail. The ombudsman’s office will also notify the affected city, town or county attorney of the request. Once receipt has been confirmed by the clerk or recorder and other essential parties, the process of choosing a person to prepare the advisory opinion will proceed.

Choosing Someone to Prepare the Advisory Opinion
Within four business days after delivery of notice to essential parties, the parties must choose a neutral professional to proceed with the process of preparing the advisory opinion or agree that someone from the ombudsman’s office will prepare the opinion. If no neutral is chosen by the parties, then the ombudsman’s office will choose someone or prepare the opinion himself.

At this time, the other parties to the dispute may also challenge the appropriateness of the request and advise someone in the ombudsman’s office, if desired, that the request does not raise an issue that is within the statutory limitations that restrict when an advisory opinion is appropriate.

Extending the Deadline
The 15 business day deadline may be extended by mutual agreement of the parties or by the person preparing the opinion. If extended without the agreement of the parties, the maximum time is 30 calendar days. In a normal month without holidays, 15 business days is usually about three weeks, so the extension to 30 calendar days might add an additional 9 or 10 days.

Public Document
The advisory opinion is a public document and not a protected document under the Government Records Act. It is not, however, admissible as evidence in court other than as it may relate to attorney’s fees as described below.

Delays in the Land Use Approval Process:
The request for an advisory opinion is not meant to delay the review of a land use application or other local government land use processes. A request does not “stay” a local land use decision.

Effect of the Advisory Opinion:
The advisory opinion is not binding on the parties. It is to be hoped that the person preparing the opinion will help expedite the review and that the assistance of the professional will make the process smoother and more efficient, rather than more complicated and cumbersome. Nothing in the statute creating the advisory opinion process creates a new cause of action under land use law.

Legal Fees
If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the party that substantially prevails in court may collect reasonable attorneys fees and court costs pertaining to the development of that cause of action, from the date of delivery of the advisory opinion to the date of the court’s resolution.

Relevant Statute:
Utah Code Annotated, Title 13, Chapter 42, Property Rights Ombudsman, as amended by SB268, 2006 General Session of the Utah Legislature.

These guidelines are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. They are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law. Questions should always be directed to your attorney for specific advice. Suggestions and comments are always welcome.