Bill Summary – FastDemocracy

Enrolled Copy                                                                           S.B. 137
                  PROPERTY DECONTAMINATION AMENDMENTS
                                     2022 GENERAL SESSION
                                          STATE OF UTAH
                                 Chief Sponsor: Karen Mayne
                                 House Sponsor: Clare Collard
 Cosponsor:
 Wayne A. Harper
 8
 LONG TITLE
 General Description:
        This bill modifies the authority of a municipality to regulate the abatement of certain
 conditions on the property of an owner or occupant.
 Highlighted Provisions:
        This bill:
        < defines the term "hazardous materials";
        < authorizes a municipality to designate and regulate the abatement of hazardous
 materials;
        < modifies a municipality's authority regarding municipal inspectors and enforcement
 of abatement ordinances; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        10-11-1, as last amended by Laws of Utah 2011, Chapters 144, 172 and last amended
 by Coordination Clause, Laws of Utah 2011, Chapter 144
       S.B. 137                                                                      Enrolled Copy
        10-11-2, as repealed and reenacted by Laws of Utah 2011, Chapter 172
        10-11-3, as last amended by Laws of Utah 2011, Chapter 172
31
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 10-11-1 is amended to read:
        10-11-1. Abatement of weeds, garbage, public nuisances, and hazardous
 materials -- Selection of service provider.
        (1) As used in this chapter, "hazardous materials" means the same as that term is
 defined in Section 19-6-902.
        [(1)] (2) A municipal legislative body may:
        (a) designate and regulate the abatement of:
        (i) the growth and spread of injurious and noxious weeds;
        (ii) garbage and refuse;
        (iii) a public nuisance; [or]
        (iv) an illegal object or structure; [and] or
        (v) for a structure or any real property closed to occupancy or entry by a local health
 department, hazardous materials; and
        (b) appoint a municipal inspector for the purpose of carrying out and in accordance
 with the provisions of this chapter.
        [(2)] (3) A municipal legislative body may not:
        (a) prohibit an owner or occupant of real property within the municipality's
 jurisdiction, including an owner or occupant who receives a notice in accordance with Section
 10-11-2, from selecting a person, as defined in Section 10-1-104, to provide an abatement
 service for injurious and noxious weeds, garbage and refuse, a public nuisance, or an illegal
 object or structure; or
        (b) require that an owner or occupant described in Subsection [(2)] (3)(a) use the
 services of the municipal inspector or any assistance employed by the municipal inspector
 described in Section 10-11-3 to provide an abatement service described in Subsection [(2)]
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 (3)(a).
           [(3)] (4) A municipality may require that an owner or occupant described in Subsection
 [(2)] (3)(a) use the abatement services, as described in Section 10-11-3, of the municipal
 inspector, including the use of a certified decontamination specialist as described in Section
 19-6-906, or any assistance employed by the municipal inspector if:
           (a) the municipality adopts an ordinance providing a reasonable period of time of at
 least 10 days for an owner or occupant to abate the owner's or occupant's property after
 receiving a notice described in Section 10-11-2; and
           (b) the owner or occupant fails to abate the property within the reasonable period of
 time and in accordance with the notice.
           (5) A municipality may require that an owner or occupant use the abatement services of
 a certified decontamination specialist to abate hazardous materials.
           (6) Nothing in this chapter may be construed:
           (a) as authorizing a municipality to regulate items that are within the exclusive
 jurisdiction of the Department of Agriculture and Food as provided in Section 4-2-305,
 including commercial feed, fertilizer, pesticides, and seeds; or
           (b) as limiting or abrogating the authority of a local health department under Section
 19-6-905.
           Section 2. Section 10-11-2 is amended to read:
           10-11-2. Inspection of property -- Notice -- Penalties.
           (1) (a) If a municipality adopts an ordinance describing the duties of a municipal
 inspector appointed under Section 10-11-1, the ordinance:
           (i) may, subject to Subsection (1)(b), direct the inspector to examine and investigate
 real property for:
           (A) the growth and spread of injurious and noxious weeds;
           (B) garbage and refuse;
           (C) a public nuisance; [or]
           (D) an illegal object or structure; [and] or
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        S.B. 137                                                                        Enrolled Copy
        (E) hazardous materials; and
        (ii) if an inspector conducts an examination and investigation under Subsection (1)(a),
 shall direct the inspector to deliver written notice of the examination and investigation in
 accordance with Subsection (2).
        (b) An ordinance described in Subsection (1)(a) may not direct an inspector or
 authorize a municipality to abate conditions solely associated with the interior of a structure,
 unless required:
        (i) for the demolition and removal of the structure[.]; or
        (ii) to eliminate or remove hazardous materials within a structure that has been closed
 to occupancy or entry by a local health department or fire department.
        (c) An ordinance described in Subsection (1)(a) may direct an inspector or authorize a
 municipality to issue an order limiting or restricting access to a structure and the real property
 appurtenant to the structure while the municipal inspector or a certified decontamination
 specialist destroys, removes, or abates hazardous materials within the structure.
        (d) If a municipality has adopted an ordinance establishing an administrative
 proceeding process for the violation of a municipal ordinance in accordance with the
 requirements of Section 10-3-703.7, the municipality may adopt an ordinance imposing the
 following for a violation of an order issued under Subsection (1)(c):
        (i) a civil penalty in accordance with Subsection 10-3-703(2); or
        (ii) in accordance with Subsection 10-3-703(1), a criminal penalty, including by a fine
 not to exceed the maximum class B misdemeanor fine under Section 76-3-301, by a term of
 imprisonment up to six months, or by both the fine and term of imprisonment.
        (e) An ordinance adopted in accordance with Subsection (1)(d) shall provide 180 days
 after the day on which the written notice from an inspector is delivered in person or the date the
 notice is post-marked for the recipient of the notice to:
        (i) abate the hazardous materials; or
        (ii) appeal the notice and begin the administrative proceeding process.
        (2) (a) (i) The municipal inspector shall serve written notice to a property owner of
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        Enrolled Copy                                                                           S.B. 137
 record according to the records of the county recorder in accordance with Subsection (2)(b).
        (ii) The municipal inspector may serve written notice in accordance with Subsection
 (2)(b) to a non-owner occupant of the property or another person responsible for the property
 who is not the owner of record, including a manager or agent of the owner, if:
        (A) the property owner is not an occupant of the property; and
        (B) the municipality in which the property is located has adopted an ordinance
 imposing a duty to maintain the property on an occupant who is not the property owner of
 record or a person other than the property owner of record who is responsible for the property.
        (b) The municipal inspector may serve the written notice:
        (i) in person or by mail to the property owner of record as described in Subsection
 (2)(a)(i), if mailed to the last-known address of the owner according to the records of the
 county recorder; or
        (ii) in person or by mail to a non-owner occupant or another person responsible for the
 property who is not the owner of record as described in Subsection (2)(a)(ii), if mailed to the
 property address.
        (c) In the written notice described in Subsection (2)(a), the municipal inspector shall:
        (i) identify the property owner of record according to the records of the county
 recorder;
        (ii) describe the property and the nature and results of the examination and
 investigation conducted in accordance with Subsection (1)(a); [and]
        (iii) identify the relevant regulation or ordinance at issue and describe the violation of
 the relevant regulation or ordinance;
        (iv) describe each order, fine, or penalty that may be imposed;
        (v) for a structure or any real property closed to occupancy or entry by a local health
 department because of hazardous materials, explain the right of a property owner, occupant, or,
 if applicable, another person responsible for the property to abate the hazardous materials or
 appeal the notice within 180 days after the day on which notice is delivered in person or the
 date the notice is post-marked; and
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        S.B. 137                                                                       Enrolled Copy
        [(iii)] (vi) require the property owner, occupant, or, if applicable, another person
 responsible for the property to:
        (A) eradicate or destroy and remove any identified item examined and investigated
 under Subsection (1)(a); and
        (B) comply with Subsection (2)(c)(iii)(A) in a time period designated by the municipal
 inspector but no less than 10 days after the day on which notice is delivered in person or
 post-marked, or for a notice related to hazardous materials, no less than 180 days after the day
 on which notice is delivered in person or post-marked.
        (d) For a notice of injurious and noxious weeds described in Subsection (2)(a), the
 municipal inspector is not required to make more than one notice for each annual season of
 weed growth for weeds growing on a property.
        (e) The municipal inspector shall serve the notice required under Subsection (2)(a)(i)
 under penalty of perjury.
        (f) For a structure or any real property closed to occupancy or entry by a local health
 department because of hazardous materials, unless an order issued by a court of competent
 jurisdiction states otherwise, a municipality may not impose a fine or penalty on a property
 owner, occupant, or another person responsible for the structure or real property, and may not
 authorize a municipal inspector or a certified decontamination specialist to begin abatement of
 the hazardous materials, until:
        (i) the appeal and administrative proceeding process is completed; or
        (ii) the property owner, occupant, or another person responsible for the property has
 missed the deadline for filing the appeal.
        Section 3. Section 10-11-3 is amended to read:
        10-11-3. Neglect of property owners -- Removal or abatement by municipality --
 Costs of removal or abatement -- Notice -- File action or lien -- Property owner objection.
        (1) (a) If an owner of, occupant of, or other person responsible for real property
 described in the notice delivered in accordance with Section 10-11-2 fails to comply with
 Section 10-11-2, a municipal inspector may:
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       Enrolled Copy                                                                              S.B. 137
        (i) at the expense of the municipality, employ necessary assistance to enter the property
 and [destroy or remove an item] destroy, remove, or abate one or more items or conditions
 identified in a written notice described in Section 10-11-2; and
        (ii) (A) prepare an itemized statement in accordance with Subsection (1)(b); and
        (B) mail to the owner of record according to the records of the county recorder a copy
 of the statement demanding payment within 30 days after the day on which the statement is
 post-marked.
        (b) The statement described in Subsection (1)(a)(ii)(A) shall:
        (i) include:
        (A) the address of the property described in Subsection (1)(a);
        (B) an itemized list of and demand for payment for all expenses, including
 administrative expenses, incurred by the municipality under Subsection (1)(a)(i); and
        (C) the address of the municipal treasurer where payment may be made for the
 expenses; and
        (ii) notify the property owner:
        (A) that failure to pay the expenses described in Subsection (1)(b)(i)(B) may result in a
 lien on the property in accordance with Section 10-11-4;
        (B) that the owner may file a written objection to all or part of the statement within 20
 days after the day of the statement post-mark; and
        (C) where the owner may file the objection, including the municipal office and address.
        (c) A statement mailed in accordance with Subsection (1)(a) is delivered when mailed
 by certified mail addressed to the property owner's of record last-known address according to
 the records of the county recorder.
        (d) (i) A municipality may file a notice of a lien, including a copy of the statement
 described in Subsection (1)(a)(ii)(A) or a summary of the statement, in the records of the
 county recorder of the county in which the property is located.
        (ii) If a municipality files a notice of a lien indicating that the municipality intends to
 certify the unpaid costs and expenses in accordance with Subsection (2)(a)(ii) and Section
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        S.B. 137                                                                         Enrolled Copy
 10-11-4, the municipality shall file for record in the county recorder's office a release of the lien
 after all amounts owing are paid.
         (2) (a) If an owner fails to file a timely written objection as described in Subsection
 (1)(b)(ii)(B) or to pay the amount set forth in the statement under Subsection (1)(b)(i)(B), the
 municipality may:
         (i) file an action in district court; or
         (ii) certify the past due costs and expenses to the county treasurer of the county in
 which the property is located in accordance with Section 10-11-4.
         (b) If a municipality pursues collection of the costs in accordance with Subsection
 (2)(a)(i) or (4)(a), the municipality may:
         (i) sue for and receive judgment for all removal and destruction costs, including
 administrative costs, and reasonable attorney fees, interest, and court costs; and
         (ii) execute on the judgment in the manner provided by law.
         (3) (a) If a property owner files an objection in accordance with Subsection (1)(b)(ii),
 the municipality shall:
         (i) hold a hearing in accordance with Title 52, Chapter 4, Open and Public Meetings
 Act; and
         (ii) mail or deliver notice of the hearing date and time to the property owner.
         (b) At the hearing described in Subsection (3)(a)(i), the municipality shall review and
 determine the actual cost of abatement, if any, incurred under Subsection (1)(a)(i).
         (c) The property owner shall pay any actual cost due after a decision by the
 municipality at the hearing described in Subsection (3)(a)(i) to the municipal treasurer within
 30 days after the day on which the hearing is held.
         (4) If the property owner fails to pay in accordance with Subsection (3)(c), the
 municipality may:
         (a) file an action in district court for the actual cost determined under Subsection
 (3)(b); or
         (b) certify the past due costs and expenses to the county treasurer of the county in
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       Enrolled Copy                                                                        S.B. 137
 which the property is located in accordance with Section 10-11-4.
        (5) This section does not affect or limit:
        (a) a municipal governing body's power to pass an ordinance as described in Section
 10-3-702; or
        (b) a criminal or civil penalty imposed by a municipality in accordance with Section
 10-3-703.
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Statutes affected: 
Introduced: 10-11-1, 10-11-2, 10-11-3
Amended: 10-11-1, 10-11-2, 10-11-3
Enrolled: 10-11-1, 10-11-2, 10-11-3