5.13 District Court Review Effect

date 11-11-2021 5.13.1 No person may challenge in district court a land use decision until that person has exhausted the person's administrative remedies. 5.13.2 (a) Subject to 5.13.1, 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 5.13.2(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 Utah State Code 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 Utah State Code Subsection 13-43-204(3)(b) declining to arbitrate or to appoint an arbitrator. (ii) Atolling under 5.13.2(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) Arequest for arbitration filed with the property rights ombudsman after the time under 5.13.2(a) to file a petition has expired does not affect the time to file a petition. 5.13.3 (a) Acourt 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) Acourt shall: (i) presume that a final land use decision of a land use authority or an Appeal Authority is valid; and (ii) uphold the land use decision unless the land use decision is: (A) arbitrary and capricious; or (B) illegal. (c) (i) Aland use decision is arbitrary and capricious if the land use decision is not supported by substantial evidence in the record. (ii) Aland use decision is illegal if the land use decision is: (A) based on an incorrect interpretation of a land use regulation; or (B) contrary to law. (d) (i) Acourt 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 ruling. 5.13.4 The provisions of 5.13.2(a) apply from the date on which Bear River City takes final action on a land use application, if the municipality conformed with the notice provisions of 5.13.2, Notice, or for any person who had actual notice of the pending land use decision. 5.13.5 If Bear River City has complied with Utah State Code Section 10-9a-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. 5.13.6 Achallenge to a land use decision is barred unless the challenge is filed within 30 days after the land use decision is final. 5.13.7 (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 5.13.7(a). 5.13.8 (a) (b) (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. If there is no record, the court may call witnesses and take evidence. 5.13.9 (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 Utah State Code Section 13-43-204, a land use applicant may petition the Appeal Authority to stay the Appeal Authority's land use decision. (ii) Upon receipt of a petition to stay, the Appeal Authority may order the Appeal Authority's land use decision stayed pending district court review if the Appeal Authority finds the order to be in the best interest of the municipality. (iii) After a petition is filed under this section or a request for mediation or arbitration of a constitutional taking issue is filed under Utah State Code Section 13-43-204, the petitioner may seek an injunction staying the Appeal Authority's land use decision. 5.13.10 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.