Resources



Creation of Special Districts

 

David B. Hartvigsen

 

                                        Smith Hartvigsen, pllc

                                             215 South State Street, Suite 650

                                                  Salt Lake City, Utah 84111

                                                  Telephone:   (801) 413-1600

                                                  Facsimile:   (801) 413-1620

                                            e-mail: david@smithlawonline.com

                                           web site: www.smithhartvigsen.com

 

                                           Lorman Education Services Seminar

                                                    Special Districts in Utah

                                                        Salt Lake City, Utah

                                                             May 16, 2006


                           Creation of Special Districts

 

                                                                      By

                                                   David B. Hartvigsen, Esq.

                                              Smith Hartvigsen, pllc

 

 

                                                        INTRODUCTION

            Special district law in Utah appears to have been modeled after the federal tax code.  It contains endless contingencies and exceptions.  It sets out a clear path for proceeding in one section, then creates a detour to a maze in the next section.  It is constantly changing and evolving, and rarely in a logical or well-planned manner.  A commendable effort to create a uniform code applicable to all districts was undertaken by the Utah legislature.  However, it was abandoned midway through the process, further confusing the process and creating new issues.

            The goal of this paper is to lay out some of the general statutory framework contained in Titles 17A and 17B of the Utah Code, identify basic considerations in choosing an appropriate type of district, and contrast the procedures for creating two common types of districts, i.e., a local district and a special service district.

            Districts are strictly creatures of state law.  They can only exist as expressly authorized by statute.  Most are created by local governmental entities, such as counties, cities, and towns, in accordance with the applicable state statues.  However, some are created by the legislature itself.  There are dozens of different types; most are single purpose districts, but a few are multi-purpose.  Some are independent, self-governing districts, while others are partially or totally dependent upon the entities which created them for their governance.

            Because of the large number of types of districts, and the sheer volume of statutory code which governs them (filling an entire 600-page volume of the Utah Code), the most efficient way to condense the relevant information is by the use of tables and charts and by focusing on the more common types of districts.  The remainder of this paper therefore uses that format and consists of the following:

Special Purpose Districts.  This is a fairly comprehensive list of types of districts contained in Utah Code Ann. §54-3-25, which requires that each district that is one of the types listed provide the local telephone company annually with the name, address, and telephone of the district.

 

Types of Districts.  This table divides the various types of districts into subcategories, identifies the initial code section that addresses each type and indicates which governmental entities can create each type of district.

 

Independent Special Districts.  This table highlights the various types of independent districts, shows when their respective enabling acts were passed and, in a few cases, were repealed, and identifies the location in the code where the applicable procedures for creating each type of district can be found.

 

Multi-Purpose Districts.  This chart highlights four key types of multi-purpose special districts and shows what types of services each can provide.  It also indicates the maximum number of services that any one district may provide.

 

The Creation of a Local District and Creation of a Special Service District charts compare and contrast key points in the creation process for each type of district, including the differences encountered between the petition and resolution processes.

 

Sample Checklist and Documents for Creating a Special Service District.  These documents provide more detailed instructions and sample documents for creating a special service district .


                  "Special Purpose Districts"

                                                  (Listed in U.C.A. §54-3-25)

 

 

1      Airport Authorities

2      Cemetery Maintenance Districts

3      Community Redevelopment Agencies (repealed in 1998)

4      County Improvement Districts for Water, Sewerage, Flood Control, Electric, Gas

5      County Improvement Districts (dependent “assessment” districts)

6      County Service Areas

7      Drainage Districts (repealed in 1975)

8      Fire Protection Districts (repealed in 1975)

9      Great Salt Lake Development Authority (repealed in 1991)

10    Hazardous Waste Facilities Management Authorities

11    Historic Districts

12    Irrigation Districts

13    [Local Districts (only 1 created before effective date delayed to 5/5/08)

14    Local Health Districts (or Authorities, now Departments under §26A-1-101)

15    Local Mental Health Authorities

16    Local Substance Abuse Authorities

17    Metropolitan Water Districts

18    Mosquito Abatement Districts

19    Municipal Building Authorities

20    Municipal Improvement Districts (dependent “assessment” districts)

21    Neighborhood Redevelopment Agencies

22    Parking and Business Improvements Districts

23    Port Authorities (repealed in 1991)

24    Public Transit Districts

25    Pure Sugar Beet Seed Districts (repealed in 2006, effective 5/1/06)

26    [Regional Service Areas (only 1 created between 1995 & 1998 when repealed)

27    Soil Conservation Districts

28    Special Road Districts

29    Special Service Districts

30    Sprinkling Districts (repealed in 2006, effective 5/1/06)

31    Water Conservancy Districts

                                                                                            (Multi-Purpose Districts in bold)


 

 

class=WordSection3>

                                          Types of Districts

 

Type of District

Section

Created by

Independent

Airport Authorities

Cemetery Maintenance Districts

Community Redevelopment Agencies

County Improvement Districts

County Service Areas

Drainage Districts

Fire Protection Districts

Great Salt Lake Development Authority

Hazardous Waste Facilities Mngt. Authorities

Irrigation Districts

Metropolitan Water Districts

Mosquito Abatement Districts

Neighborhood Redevelopment Agencies

Public Transit Districts

Regional Service Areas

Water Conservancy Districts

 

17A-2-1501

17A-2-201

17A-2-1101

17A-2-301

17A-2-401

17A-2-501

17A-2-601

17A-2-1601

17A-2-1701

17A-2-701

17A-2-801

17A-2-901

17A-2-1201

17A-2-1001

17A-2-1801

17A-2-1401

 

1st Class Cities

Counties, Cities & Towns

Repealed

Counties (?)

Counties (?)

Repealed (created now as an SSD)

Repealed (created now as an SSD)

Repealed

§19-9-101 Committee & Governor

Counties (?) & State Engineer

1 or more Cities

Counties, Cities & Towns

Counties, Cities & Towns

Counties, Cities & Towns

Repealed

Counties, Cities & Towns

Partially Independent

Special Service Districts

 

17A-2-1301

 

Counties, Cities, Towns & Independent Co. Imp. Dist.

Local / Limited Purpose (Uniform Code)

17B-2-201

Counties, Cities & Towns

Dependent

County Improvement Districts (Assessment)

Historic Districts

Local Health Districts/Authorities/Departments

Local Mental Health Authorities

Local Substance Abuse Authorities

Municipal Building Authorities

Municipal Improvement Districts (Assessment)

Parking and Business Improvements Districts

Port Authorities

Pure Sugar Beet Seed Districts

Soil Conservation Districts

Special Road Districts

Sprinkling Districts

 

17A-3-201

17A-3-1301

17A-3-501

17A-3-601

17A-3-701

17A-3-901

17A-3-301

17A-3-401

17A-3-1001

17A-3-1101

17A-3-801

17A-3-1201

17A-3-1401

 

Counties & Independent County Improvement Dist.

Counties, Cities & Towns

Renumbered – see §26A-1-101

Counties

Counties

Counties, Cities & School Districts

Cities & Towns

Counties, Cities & Towns

Repealed

Repealed

Soil Conservation Commission created under §4-18-4

Counties

Repealed

Other

Health Data Authority

Heber Valley Historic Railroad Authority

Higher Education Institutions

Housing Authorities

        Interlocal Cooperation Act Entities

Redevelopment Agencies

School Districts

 

26-33a-101

9-3-301

53B-12-101

9-4-602

11-13-101

17B-4-101

53A-2-218

 

Legislature

Legislature

Legislature

Cities, Counties & Legislature (for Indian H. Auth.)

Interlocal Agreement between governmental entities

Counties, Cities & Towns

Counties

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            Independent Special Districts

                                         (U.C.A. Title 17A, Chapter 2 Districts)

 

 

Title-Chap-Part/Sec.

Year

Enacted

Year

Repealed

 

Type

Created

Under

17A-2-2xx

1945

 

Cemetery Maintenance Districts

§17B-2-2xx

17A-2-3xx

1949

 

County Improvement Districts

§17B-2-2xx

17A-2-4xx

1957

 

County Service Areas

§17B-2-2xx

17A-2-5xx

1913

1975

Drainage Districts

(SSD)

17A-2-6xx

1951

1975

Fire Protection Districts

(SSD, CSA

or §17-34-1)

17A-2-7xx

1919

 

Irrigation Districts

§17B-2-2xx

17A-2-8xx

1935

 

Metropolitan Water Districts

§17B-2-2xx

17A-2-9xx

1953

 

Mosquito Abatement Districts

§17B-2-2xx

17A-2-10xx

1969

 

Public Transit Districts

§17B-2-2xx

17A-2-11xx

 

1998

Community Redevelopment Agencies

---

17A-2-12xx

1969

 

Neighborhood Redevelopment Agencies

§17A-2-1203

17A-2-13xx

1975

 

Special Service Districts

§17A-2-1304

17A-2-14xx

1941

 

Water Conservancy Districts

§17B-2-2xx

17A-2-15xx

1983

 

Airport Authorities

§17A-2-1504

17A-2-16xx

 

1991

Great Salt Lake Development Authority

---

17A-2-17xx

1981

 

Hazardous Waste Facilities Authorities

§17A-2-1703

17A-2-18xx

1995

1998

Regional Service Areas

---


                        Multi-Purpose Districts

                              District

 

Purposes

County Improvement District

County Service

Area

Special Service District

 

Local

District

Max. No. of Purposes

Unlimited

Unlimited

Unlimited

2*

Airports

 

 

Animal Control & Shelter

 

 

 

Cemeteries

 

 

Curb, Gutter & Sidewalk

 

 

Drainage

 

 

 

Economic Development

 

 

 

Electrical Service

 

 

Emergency 911 Dispatch

 

 

 

Fire Protection, Emergency Medical &/or Ambulance

 

Flood Control / Storm Water

Garbage

 

Health Care / Hospitals

 

Health Department

 

 

 

Jail Facilities (in 1st Class Co.)

 

 

 

Libraries

 

 

Mosquito Abatement

 

 

Natural or Manufactured Gas

 

 

Planning & Zoning

 

 

 

Police (extended)

 

 

 

Recreation

 

Sewer

Snow Removal

 

 

 

Streets & Roads

 

 

 

Street Lighting

 

Transportation

 

 

Underground Electrical Lines

 

 

Water

                                                                                               


Creation of a Local District

 

                             By Petition

                          By Resolution

File Request for Service with County or City.  §17B-1-204.  Signatures on Requests may be used later for Petition.  §207.

Convince the Legislative Body of the affected City or County to adopt a Resolution containing the items in §203(2).

Responsible Clerk has 30 days to Certify the Request or it is deemed Certified; delivers it to Legislative Body.  §206.

 

Legislative Body holds Public Hearing within 45 days after the Request is Certified.  §210.  Notice of Hearing is published in a newspaper or mailed to each registered voter and property owner.  §211.

Legislative Body holds Public Hearing within 45 days after the Resolution is Adopted.  §210.  Notice of Hearing is published in a newspaper or mailed to each registered voter and property owner.  §211.

Within 60 after the Public Hearing, the Legislative Body must adopt a Resolution stating whether or not it will provide the Requested Services, or it is deemed to have declined the Request.  §212.

Within 60 after the Public Hearing, Protests may be filed by land owners or registered voters.  If “adequate protests” (signed by owners of at least 25% of total private land having a value equal to at least 15% of total private land OR a Petition signed by 25% of the number of Registered Voters at the last gubernatorial election) are not timely filed, an Election shall be held.  §213.

If the Legislative Body resolves to provide the Requested Services, but fails to take substantial measures towards providing those services within 120 days after passing the Resolution, it is deemed to have declined the Request.  §212.

If Request is declined, file a Petition signed by owners of at least 33% of total private land having a value equal to at least 25% of total private land OR a Petition signed by 33% of the number of Registered Voters at the last gubernatorial election.  §203(1)(a) or (b)

 

The Petition must contain all of the items  listed in §205 (names, addresses, legal description, maps, services, 5 contact persons, etc.)

 

File Petition with the Responsible Clerk within 12 months after the Request is denied.   §208.

 


 

                    Creation of a Local District

                                                                     Continued

                             By Petition

                          By Resolution

The Petition is forwarded to any other Clerks within 5 days.  §209(1).

 

Within 35 days of filing, each Clerk shall “certify” their portions of the petition to the Responsible Clerk.  §209(2).

 

Within 45 days of filing, the Responsible Clerk shall Certify the Petition; or it is deemed Certified.  Delivers Certified Petition to the Responsible Body.  §209.

 

An Election on the creation of the district shall be held at the first special or general that is more than 45 days after the Petition is Certified.  §214(2).

An Election on the creation of the district shall be held at the first special or general that is more than 45 days after the Petition is Certified.  §214(2).

However, an Election is not necessary if the Petition was signed by owners of at least 67% of total private land having a value equal to at least 50% of total private land OR the Petition signed by 67% of the number of Registered Voters at the last gubernatorial election.  §214(2).

 

Within 10 days after the favorable Election (or after Certification of a Petition that does not require an Election), the Responsible Body shall file a Notice with the Lt. Gov. stating that all requirements for creating the District have been complied with.  §215.

Within 10 days after the favorable Election (or after Certification of a Petition that does not require an Election), the Responsible Body shall file a Notice with the Lt. Gov. stating that all requirements for creating the District have been complied with.  §215.

Within 10 days after receiving the above Notice, the Lt. Gov. shall issue a Certificate of Incorporation of the new District.  §215.

Within 10 days after receiving the above Notice, the Lt. Gov. shall issue a Certificate of Incorporation of the new District.  §215.

A District is conclusively presumed to be legally created if no challenge is filed in District Court within 90 days after the Lt. Gov. issues a Certificate of Incorporation.  §215.

A District is conclusively presumed to be legally created if no challenge is filed in District Court within 90 days after the Lt. Gov. issues a Certificate of Incorporation.  §215.

          Minimum 1 to 2 Years to Complete

      Minimum 0.75 to 1.5 Years to Complete

Creation of a Special Service District

 

                             By Petition

                          By Resolution

File a Petition with the Governing Authority of the affected City or County proposing the establishment of an SSD containing the boundaries and services to be provided signed by owners of 10% or more of the taxable value of the property to be included in the SSD or by 10% or more of the Qualified Electors as shown on the current Voter Registration List.  Upon receipt of a valid Petition, the Governing Authority shall adopt a Resolution containing the items in §17A-2-1305(1).   §1305(2).

Convince the Governing Authority of the affected City or County to adopt a Resolution containing the items in §17A-2-1305(1).   §1305(1).

The Governing Authority holds a Public Hearing on the Creation of the SSD.  Notice of the Hearing is published in a newspaper 21 to 35 days before the Hearing.  §1308.

The Governing Authority shall abandon the establishment of the SSD if written Protests are filed by more than 50% of the Qualified Voters in the proposed SSD OR by the Owners of more than 50% of the taxable value of the taxable property within the proposed SSD.  §1309(5).

Once 15 days have passed after the Hearing (for protests) and 30 days (for withdrawals and cancellation of withdrawals), the Governing Authority shall adopt a Resolution establishing the SSD or abandoning it.  §1311(1).

A person may obtain judicial review of the process if: (1) who filed a timely written Protest; (2)  who is either a Qualified Voter in the proposed SSD or is a Qualified Voter owning property that has been included in the proposed SSD; (3) who files a petition in District Court challenging the establishment of the SSD within 30 days of the date of the Resolution establishing the SSD; AND (4) who alleges either that his property will not be benefitted by the SSD or that the procedures used to establish the SSD violated the law.  §1311(3).

Within 90 days of adopting the Resolution establishing the SSD, the Governing Authority must file a Notice with the Lt. Gov. certifying that the requirements for establishing the SSD have all been complied with.  §1311(2).

Within 10 days of receipt of the Notice, the Lt. Gov. must issue a Certificate of Incorporation of the SSD.  The SSD is thereafter deemed duly created and incorporated unless overturned upon judicial review pursuant to a timely and valid petition to the courts.  §1311(2) & (3).

                                              Minimum 151 to 165 Days to Complete

                                        


Sample Checklist and Documents for

Creating a Special Service District

 

 

Checklist

 

1.   The governing body of the county, city, or town creating the district (this example assumes a city council) moves for the adoption of a resolution: (1) declaring that the public health, convenience, and necessity requires the establishment of a special service district to provide culinary and/or secondary water services (items in italics are case-specific) within the City’s boundaries; (2) designating the name of the proposed service district; and (3) setting a time and place for a public hearing on the matter approximately 28-42 days later (allowing 7 days to arrange for the publishing of the required notice, which must published 21-35 days before the hearing).  (See the attached sample resolution; see also §§ 17A-2-1305(1) and -1308.)

 

2.   Prepare a Notice of Intention to Establish Service District.  The Notice must: (1) describe the boundaries of the district; (2) describe the types of services to be provided; (3) state that taxes may be levied annually upon all taxable property within the district; (4) state that fees and charges may be imposed to pay for any or all services provided; and (5) designate a time and place for a public hearing on the matter. Notice of the protest procedure should also be included.  (See the attached sample notice; see also §1307.)

 

3.   Publish this notice in a newspaper of general circulation within the City once a week for three consecutive weeks, with the first publication being not less than 21 days nor more than 35 days before the hearing date.  (See §1308.)

 

4.   At the public hearing, the City Council shall allow all interested persons the opportunity to voice their protests.  The hearing may be continued to another date and time if necessary.  Written protests may be submitted any time up to and including 15 days after the end of the public hearing.  The City Council shall hear and give full consideration to all protests.  (See §1309.)

 

5.   In considering the protests, the City Council shall abandon the proposal to establish the district if written protests are filed: (1) by more than 50% of the qualified voters within the district’s proposed boundaries (County voter registration records are conclusive evidence of residency); or (2) by the owners of more than 50% of the taxable value of the taxable property within the district’s proposed boundaries.  (If property is owned by a corporation, a protest is valid if signed by any authorized officer or agent.  If property is owned in the name of more than one person or entity, all owners must join in signing the protest before it is valid.) (See §§1309 and 1310.)

 

6.   At a duly noticed City Council meeting held more than 30 days after the end of the public hearing, the Council shall adopt a resolution either establishing the district or abandoning the proposal to establish it.  (See §1311.)

 

7.   If the district is established, any qualified and registered voter who filed a written protest may petition the courts, within 30 days after the date that the district was established, for a writ of review based on either the procedures followed or the claim that the protestant will not be benefitted by the services provided.  If the establishment of the district is not so challenged within that 30-day period, the establishment cannot thereafter be challenged.

 

8.   Within 90 days of the adoption of the resolution approving the creation of the district, the City must file a notice with the Lt. Governor certifying that all of the requirements for the establishment of the district have been complied with.  A copy of the resolution approving the establishment of the district and a map prepared and certified by a licensed survey showing the boundaries of the district must be sent with the notice.  (See §1311(2).)

 

9.   The district should then adopt rules and regulations for its operations.  The City Council may either act as the governing board of the district or it may authorize the creation of an administrative control board having three to seven appointed or elected members with such powers as the Council may delegate to it.  Certain powers may not be delegated and the Council remains in a supervisory position.  (See §1313, §1326, and §17A-1-301, et seq.)


RESOLUTION 06-__

 

A RESOLUTION PROPOSING THE ESTABLISHMENT OF

THE SUPERIOR SPECIAL SERVICE DISTRICT

 

      WHEREAS, the Superior City Council has determined that the public health, convenience, and necessity require the establishment of the Superior Special Service District (the “District”) to provide culinary and/or secondary water services within the City’s boundaries, pursuant to the provisions of Article XIV, Section 8 of the Utah Constitution and Section 17A-2-1301, et seq. (the “Act”); and

 

      WHEREAS, all of the property to be included in the District will be benefitted by said District and its provision of water services.

 

      NOW THEREFORE, BE IT RESOLVED by the Superior City Council as follows:

 

      1.               The public health, convenience, and necessity require the establishment of a water special service district.

 

      2.               The name of this special service district shall be the Superior Special Service District.

 

      3.               The boundaries and service area of the District shall be the same as the boundaries of Superior City.

 

      4.               The services to be provided by the District are culinary and/or secondary water services.

 

      5.               The City shall hold a public hearing on the proposed creation of the District on ___________  ___, 2006, at ____  __.m., at _______________________, Superior, Utah.

 

      6.               The City shall prepare and publish the notice of intention to establish a service district and of the aforementioned public hearing thereon, in accordance with the terms of the Act.

 

      ADOPTED, APPROVED, and ORDERED by majority vote at a duly called meeting of the Superior City Council on this ____ day of ___________, 2006.

 

 

                                                                        SUPERIOR CITY COUNCIL

 

 

                                                                        By:  __________________________________

ATTEST:

 

 

_______________________________


NOTICE OF INTENTION TO ESTABLISH

THE SUPERIOR SPECIAL SERVICE DISTRICT

 

NOTICE is hereby given to all interested persons that on the ____ day of _______________, 2006, the Superior City Council adopted a resolution declaring that the public health, convenience, and necessity require the establishment of a water special service district, to be known as the Superior Special Service District (the “District”) to provide culinary and/or secondary water service to properties within the District’s boundaries and providing for the holding of a public hearing on the proposed establishment of the District.

 

The boundaries of the proposed District shall be the same as the boundaries of Superior City.

 

The public hearing shall be held on the __ day of ________, 2006, at ____ __.m. at the __________________________, Superior, Utah.  Any interested person may protest the establishment of the District either orally at said public hearing, or in a written protest filed with the City Clerk.  All written protests must be filed within 15 days after the conclusion of said public hearing and all withdrawals or cancellations of withdrawals must be filed within 30 days after the conclusion of said public hearing.  The City Council will hear all interested persons desiring to be heard and will give full consideration to all protests.  If special accommodations are required, please call _________ with reasonable advance notice.

 

Any written protest made on behalf of a corporation owning property within the District shall be signed by the president, vice president, or any duly authorized agent of the corporation.  Where property within the District is owned by more than one person or entity, all owners holding title to the property must join in the signing of the protest in order for it to be considered in the fifty percent (50%) calculation discussed below.

 

If, within 30 days after the conclusion of said public hearing, more than fifty percent (50%) of the qualified voters of the territory proposed to be included within the District, or the owners of over fifty percent (50%) of the taxable value of the taxable property proposed to be included within the District, file written protests against the establishment of the District, the City Council is required by law to abandon the proposed creation of the District.

 

After the 30-day protest period closes, the City Council shall adopt a resolution either establishing the District or abandoning the establishment of the District.  Any person who shall have timely filed a written protest and who is a qualified voter residing within, or owning property within, the District, may petition the district court within 30 days after the adoption of said resolution for a writ of review.  The grounds for such a petition are limited to: (1) a claim that the petitioner’s property will not be benefitted by the services to be provided by the District; and (2) a claim that the procedures used to establish the District violated the law.

 

FAILURE TO TIMELY FILE A WRITTEN PROTEST PRECLUDES THE PROTEST FROM BEING INCLUDED IN THE 50% CALCULATION DISCUSSED ABOVE AND THE PROTESTANT FROM FILING A PETITION FOR A WRIT OF REVIEW.  FAILURE TO TIMELY FILE A PETITION FOR WRIT OF REVIEW FORECLOSES ANY RIGHTS TO THEREAFTER OBJECT TO THE ESTABLISHMENT OF THE DISTRICT.