11-833; Version 2

11-833. Standards for enactment of moratorium;
land development; limitations; definitions

L10, Ch. 244, sec. 7. Eff. 10/1/11)

A. A county shall not adopt a moratorium on construction or land development unless
it first:

1. Provides notice to the public published once in a newspaper of general
circulation in the community at least thirty days before a final public hearing to be
held to consider the adoption of the moratorium.

2. Makes written findings justifying the need for the moratorium in the manner
provided for in this section.

3. Holds a public hearing on the adoption of the moratorium and the findings that
support the moratorium.

B. For urban land or land subject to potential urbanization, a moratorium may be
justified by demonstration of a need to prevent a shortage of essential public facilities
that would otherwise occur during the effective period of the moratorium. This
demonstration shall be based on reasonably available information and shall include at
least the following findings:

1. A showing of the extent of need beyond the estimated capacity of existing
essential public facilities expected to result from new land development, including
identification of any essential public facilities currently operating beyond capacity and
the portion of this capacity already committed to development, or in the case of water
resources, a showing that, in an active management area as defined in section 45-402, an
assured water supply cannot be provided, or outside an active management area, a
sufficient water supply cannot be provided, to the new land development, including
identification of current water resources and the portion already committed to
development.

2. That the moratorium is reasonably limited to those areas of the county where a
shortage of essential public facilities would otherwise occur and on property that has
not received development approvals based on the sufficiency of existing essential public
facilities.

3. That the housing and economic development needs of the area affected have been
accommodated as much as possible in any program for allocating any remaining essential
public facility capacity.

C. A moratorium not based on a shortage of essential public facilities under
subsection B of this section may be justified only by a demonstration of compelling need
for other public facilities, including police and fire facilities. This demonstration
shall be based on reasonably available information and shall include at least the
following findings:

1. For urban land or land subject to potential urbanization:

(a) That application of existing development ordinances or regulations and other
applicable law is inadequate to prevent irrevocable public harm from development in
affected geographical areas.

(b) That the moratorium is sufficiently limited to ensure that a needed supply of
affected housing types and the supply of commercial and industrial facilities within or
in proximity to the county are not unreasonably restricted by the adoption of the
moratorium.

(d) That the county has determined that the public harm that would be caused by
failure to impose a moratorium outweighs the adverse effects on other affected local
governments, including shifts in demand for housing or economic development, public
facilities and services and buildable lands and the overall impact of the moratorium on
population distribution.

(e) That the city or town proposing the moratorium has developed a work plan and
time schedule for achieving the objectives of the moratorium.

2. For rural land:

(a) That application of existing development ordinances or regulations and other
applicable law is inadequate to prevent irrevocable public harm from development in
affected geographical areas.

(b) The reasons that alternative methods of achieving the objectives of the
moratorium are unsatisfactory.

(c) That the moratorium is sufficiently limited to ensure that lots or parcels
outside the affected geographical areas are not unreasonably restricted by the adoption
of the moratorium.

(d) That the county proposing the moratorium has developed a work plan and time
schedule for achieving the objectives of the moratorium.

D. Any moratorium adopted pursuant to this section does not affect any express
provision in a development agreement entered into pursuant to section 9-500.05 or as
defined in section 11-1101 governing the rate, timing and sequencing of development, nor
does it affect rights acquired pursuant to a protected development right granted
according to chapter 9 of this title or title 9, chapter 11. Any moratorium adopted
pursuant to this section shall provide a procedure pursuant to which an individual
landowner may apply for a waiver of the moratorium's applicability to its property by
claiming rights obtained pursuant to a development agreement, a protected development
right or any vested right or by providing the public facilities that are the subject of
the moratorium at the landowner's cost.

E. A moratorium adopted under subsection C, paragraph 1 of this section shall not
remain in effect for more than one hundred twenty days, but such a moratorium may be
extended for additional periods of time of up to one hundred twenty days if the county
adopting the moratorium holds a public hearing on the proposed extension and adopts
written findings that:

1. Verify the problem requiring the need for the moratorium to be extended.

2. Demonstrate that reasonable progress is being made to alleviate the problem
resulting in the moratorium.

3. Set a specific duration for the renewal of the moratorium.

F. A county considering an extension of a moratorium shall provide notice to the
general public published once in a newspaper of general circulation in the community at
least thirty days before a final hearing is held to consider an extension of a
moratorium.

G. This section does not prevent a city or town from complying with any state or
federal law, regulation or order issued in writing by a legally authorized governmental
entity.

H. A landowner aggrieved by a county's adoption of a moratorium pursuant to this
section, at any time within thirty days after the moratorium has been adopted, may file a
complaint for a trial de novo in the superior court on the facts and the law regarding
the moratorium. All matters presented to the superior court pursuant to this section have
preference on the court calendar on the same basis as condemnation matters. The court may
award reasonable attorney fees incurred in the appeal and trial pursuant to this section
to the prevailing party.

I. For the purposes of this section:

1. "Compelling need" means a clear and imminent danger to the health and safety of
the public.

2. "Essential public facilities" means water, sewer and street improvements and
water resources to the extent that these improvements and water resources are provided by
the county or private utility.

3. "Moratorium on construction or land development" means engaging in a pattern or
practice of delaying or stopping issuance of permits, authorizations or approvals
necessary for the subdivision and partitioning of, or construction on, any land. It does
not include denial or delay of permits or authorizations because they are inconsistent
with applicable statutes, rules, zoning or other ordinances.

4. "Rural land" means all property in the unincorporated area of a county or in the
incorporated area of the city or town with a population of two thousand nine hundred or
less persons.

5. "Urban land or land subject to potential urbanization" means all property in the
incorporated area of a city or town with a population of more than two thousand nine
hundred persons.

6. "Vested right" means a right to develop property established by the expenditure
of substantial sums of money pursuant to a permit or approval granted by the city, town
or county.