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Can The Government Require Me To Donate Property In Order To Proceed With My Development?

Sections 10-9a-508 and 17-27a-507 of the Utah Code authorize local governments to impose exactions on new development, but prescribe limits on that authority:

A county [or municipality] may impose an exaction or exactions on development proposed in a land use application provided that:

1. an essential link exists between a legitimate governmental interest and each exaction; and
2. each exaction is roughly proportionate, both in nature and extent, to the impact of the proposed development

"Exactions are conditions imposed by governmental entities on developers for the issuance of a building permit or subdivision plat approval." B.A.M. Development, LLC v. Salt Lake County, 2006 UT 2, ¶ 34, 128 P.3d 1161, 1169. Exactions include impact fees, conditions on development, or dedications of property.

• "A Legitimate Governmental Interest":   Broadly defined as anything that enhances the public’s health, safety, or welfare. This includes such things as utility services, roads, parks, recreational facilities, open spaces, aesthetics, etc.
• "An Essential Link":   A condition must be linked to the governmental interest, and must also be a reasonable means of promoting that interest.
• "The Impact of the Development":   The "impact" refers to how much publicly-funded facilities or interests are affected by a new development. For example, a large retail store would bring more traffic onto public roads, but would not increase the use of public parks.
• "Roughly Proportionate":   The exaction must be proportionate to the impact. For example, a local government may require that a property owner provide water rights as a condition on a new subdivision. However, the amount of water expected by the government must be proportionate to the amount required to provide the water needs of the new subdivision.

Can The Government Tell Me What Kind Of Improvements To Construct?

Local governments may impose reasonable standards on the types and design of buildings, including private homes. These are usually referred to as "development standards," and cover such aspects as building size, height, exterior walls, windows, landscaping, etc. Reasonable development standards promote the legitimate interest in maintaining attractive neighborhoods and a pleasant community environment.

The standards must be reasonable and are subject to the "rough proportionality" analysis of §§ 10-9a-508 and 17-27a-507.

What Fees Can a Local Government Impose on a New Development?

Reasonable Application Fees:   Local governments may charge reasonable fees to process an application for a new development. Application fees are limited to either the actual cost to the government to review the application, or 65% of the amount charged for a building permit, which ever is less. (See §§ 10-9a-510 (municipalities) and 17-27a-509 (counties)).

Impact Fees:   Local governments are authorized to charge impact fees for the purpose of raising revenue for facilities required by new development. Impact fees are one-time charges on new development. Impact fees are a type of exaction, and are specifically authorized by Chapter 11-36 of the Utah Code. Local governments must comply with the procedures and standards of that ordinance before an impact fee may be charged.

Impact fees are only authorized to raise revenue for the following "capital facilities:"

• Water rights and water supply or distribution systems;
• Waste water collection and treatment facilities;
• Storm water, drainage, or flood control facilities;
• Municipal power facilities;
• Roads;
• Parks, trails, open space, and recreational facilities; and
• Police and Fire Facilities (including certain types of fire fighting equipment).

Capital facilities are buildings, land, or other property rights (in other words, permanent investments). Impact fees cannot be used for salaries or for "non-permanent" items (e.g. vehicles). The fees may only be used for the purpose for which they were charged.

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.