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REFERENCE TITLE: land division; acting in concert |
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State of Arizona Senate Fifty-sixth Legislature First Regular Session 2023
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SB 1149 |
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Introduced by Senator Kavanagh
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An Act
amending sections 11-321, 11-831, 32-2185.09 and 33-422, Arizona Revised Statutes; relating to land division.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 11-321, Arizona Revised Statutes, is amended to read:
11-321. Building permits; issuance; state preemption; utilities; distribution of copies; subsequent owner; limitation; denial; definition
A. Except in those cities and towns that have an ordinance relating to the issuance of issuing building permits, the board of supervisors shall require a building permit for any construction of a building or an addition to a building exceeding a cost of $1,000 within its jurisdiction. The building permit shall be filed with the board of supervisors or its designated agent.
B. The regulation of a utility provider's authority to operate and serve customers is a matter of statewide concern. The regulation of building permits as it relates to a building permit applicant's ability to use a utility provider that is capable and authorized to provide utility service is allowed solely in accordance with subsections C and D of this section. A building permit applicant's ability to use a utility provider that is capable and authorized to provide utility service is not subject to further regulation by a county.
C. A county may not deny a permit application based on the utility provider proposed to provide utility service to the project.
D. A county issuing a building permit shall ensure that all applicable permits and associated fees assessed on a building permit applicant contain requirements and amounts that do not exceed the requirements and amounts for use of other utility providers and do not have the effect of restricting a the permit applicant's ability to use the services of a utility provider that is capable and authorized to provide utility service.
E. The board of supervisors may not require an applicant for a building permit to hold a transaction privilege tax license or business license as a condition for issuing the building permit.
F. Where deemed of public convenience, the board of supervisors shall allow the application for and the issuance of building permits by mail.
G. One copy of the building permit required by the terms of subsection A of this section shall be transmitted to the county assessor and one copy shall be transmitted to the director of the department of revenue. The permit copy provided to the assessor and the department of revenue shall have the permit number, the issue date and the parcel number for which the permit is issued. On the issuance of the certificate of occupancy or the certificate of completion or on the expiration or cancellation of the permit, the assessor and the department of revenue shall be notified in writing or in electronic format of the permit number, parcel number, issue date and completion date.
H. If a person has constructed a building or an addition to a building without obtaining a building permit, a county shall not require a subsequent owner to obtain a permit for the construction or addition done by the prior owner before issuing a permit for a building addition except that this section does not prohibit a county from enforcing an applicable ordinance or code provision that affects the public health or safety.
I. a county may deny a building permit application for one or more lots if a cease and desist or other similar notice has been sent to the applicant or applicants notifying the applicant or applicants that they are under investigation for acting in concert in violation of section 11-831.
I. j. This section does not prohibit a county from recovering reasonable costs associated with reviewing and issuing a building permit.
J. k. This section does not affect any authority of a county to manage or operate a county-owned utility.
K. l. For the purposes of this section, "utility service" means water, wastewater, natural gas, including propane gas, or electric service provided to an end user.
Sec. 2. Section 11-831, Arizona Revised Statutes, is amended to read:
11-831. Review of land divisions; penalties; definitions
A. The board of supervisors of each county may adopt ordinances and regulations pursuant to this section for staff review and approval of land divisions of five or fewer lots, parcels or fractional interests, any of which is ten acres or smaller in size. The county may not deny approval of any land division that meets the requirements of this section. If a review of the request is not completed within thirty days after receiving the request, the land division is considered to be approved. At its option, the board of supervisors may submit a ballot question to the voters of the county to allow the voters to determine the application of subsections B and C of this section to qualifying land divisions in that county.
B. An application to split a parcel of land shall be approved if:
1. The lots, parcels or fractional interests each meet the minimum applicable county zoning requirements of the applicable zoning designation.
2. The applicant provides a standard preliminary title report or other acceptable document that demonstrates legal access to the lots, parcels or fractional interests.
3. The applicant provides a statement from a licensed surveyor or engineer, or other evidence acceptable to the county, stating whether each lot, parcel or fractional interest has physical access that is traversable by a two-wheel drive passenger motor vehicle.
4. The applicant reserves the necessary and appropriate utility easements to serve each lot, parcel or fractional interest created by the land division.
5. The applicant signs an affidavit or similar document under oath acknowledging the following:
(a) the applicant is aware that it is unlawful for a person or group of persons to attempt to avoid this section or the subdivision laws of this state by acting in concert to divide a parcel of land into six or more lots or sell or lease six or more lots by using a series of owners or conveyances or by any other method that results in the division of land into a subdivision or subdivided land.
(b) The applicant is aware that the county where the land division occurred or the state real estate department may enforce this prohibition against a person or group of persons under investigation for unlawful acting in concert by denying building permits or certificates of OCCUPANCY or issuing fines or a combination of these penalties.
C. An application to split a parcel of land that does not comply with one or more of the items listed in subsection B of this section shall still be approved if the applicant provides an acknowledgment that is signed by the applicant and that confirms that no a building or use permit will not be issued by the county until the lot, parcel or fractional interest has met the requirements of subsection B of this section. The county may grant a variance from one or more of the items listed in subsection B of this section.
D. Any approval of a land division under this section may:
1. Include the minimum statutory requirements for legal and physical on-site access that must be met as a condition to the issuance of a building or use permit for the lots, parcels or fractional interests.
2. Identify topographic, hydrologic or other site constraints, requirements or limitations that must be addressed as conditions to the eventual issuance of a building or use permit. These constraints, requirements or limitations may be as noted by the applicant or through county staff review, but there shall be no requirement for independent studies.
E. If the requirements of subsections A through D of this section do not apply, a county may adopt ordinances and regulations pursuant to this chapter for staff review of land divisions of five or fewer lots, parcels or fractional interests but only to determine compliance with minimum applicable county zoning requirements and legal access and may grant waivers from the county zoning and legal access requirements. The county may not deny approval of any land division that meets the requirements of this section or where if the deficiencies are noticed in the deed. A county may not require a public hearing on a request to divide five or fewer lots, parcels or fractional interests. If a review of the request is not completed within thirty days from after receipt of the request, the land division shall be deemed approved. If no legal access is not available, the legal access does not allow access by emergency vehicles or the county zoning requirements are not met, the access or zoning deficiencies shall be noticed in the deed. If a county by ordinance requires a legal access of more than twenty-four feet roadway width, the county is responsible for the improvement and maintenance of the improvement. If the legal access does not allow access to the lots, parcels or fractional interests by emergency vehicles, neither the county nor its agents or employees are liable for damages resulting from the failure of emergency vehicles to reach the lot, parcel or fractional interest.
F. It is unlawful for a person or group of persons acting in concert to attempt to avoid this section or the subdivision laws of this state by acting in concert to divide a parcel of land into six or more lots or sell or lease six or more lots by using a series of owners or conveyances. Either the county where the division occurred or the state real estate department pursuant to title 32, chapter 20, but not both, may enforce this prohibition. A familial relationship alone is not sufficient to constitute unlawful acting in concert. a county where the land division occurred or the state real estate department may deny a building permit for one or more lots if a cease and desist or other similar notice has been sent to the person or group of persons under investigation for acting in concert in violation of this section.
G. For any subdivision that consists of ten or fewer lots, tracts or parcels, each of which is of a size as prescribed by the board of supervisors, the board of supervisors of each county may waive the requirement to prepare, submit and receive approval of a preliminary plat as a condition precedent to submitting a final plat and may waive or reduce infrastructure standards or requirements except for improved dust-controlled access and minimum drainage improvements.
H. For the purposes of this section:
1. "Legal access" means a public right of vehicular ingress and egress between the lots, parcels or fractional interests being created.
2. "Minimum applicable county zoning requirements" means the minimum acreage and dimensions of the resulting lot, parcel or fractional interest as required by the county's zoning ordinance.
3. "Utility easement" means an easement of eight feet in width dedicated to the general public to install, maintain and access sewer, electric, gas and water utilities.
Sec. 3. Section 32-2185.09, Arizona Revised Statutes, is amended to read:
32-2185.09. Civil penalties; limitation
A. A subdivider or agent who is subject to the jurisdiction of the department, who violates this chapter or any rule adopted or order issued by the commissioner or who engages in any unlawful practices defined in section 44-1522 with respect to the sale or lease of subdivided lands may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed one thousand dollars $1,000 for each infraction. An infraction which that concerns more than one lot in a subdivision is a single infraction for the purposes of this section.
B. A proceeding for imposition of a civil penalty or for suspension or revocation of a license for a violation of this article or any rule adopted or order issued by the commissioner must be commenced within five years of actual discovery by the department or discovery which that should have occurred with the exercise of reasonable diligence by the department.
C. A subdivider who sells or leases in this state any lots, parcels or fractional interest in a subdivision without first obtaining a public report from the commissioner except as provided in section 32-2181.01 or 32-2182.02 32-2181.02 for a lot or lots created from and after December 31, 2008 and on an order issued by the commissioner, may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed five thousand dollars $10,000 for each infraction. A proceeding for the imposition of a civil penalty or suspension or revocation of a license for a violation of this subsection or any rule adopted or order issued by the commissioner must be commenced within five years of actual discovery by the department or discovery that should have occurred with the exercise of reasonable diligence by the department.
Sec. 4. Section 33-422, Arizona Revised Statutes, is amended to read:
33-422. Land divisions; recording; disclosure affidavit
A. A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall furnish a written affidavit of disclosure to the buyer at least seven days before the transfer of the property and the buyer shall acknowledge receipt of the affidavit.
B. The affidavit must be written in twelve-point type.
C. A release or waiver of a seller's liability arising out of any omission or misrepresentation contained in an affidavit of disclosure is not valid or binding on the buyer.
D. The buyer has the right to rescind the sales transaction for a period of five days after the affidavit of disclosure is furnished to the buyer.
E. The seller shall record the executed affidavit of disclosure at the same time that the deed is recorded. The county recorder is not required to verify the accuracy of any statement in the affidavit of disclosure. A subsequently recorded affidavit supersedes any previous affidavit.
F. The affidavit of disclosure shall meet the requirements of section 11-480 and follow substantially the following form:
When recorded mail to:
__________________________
__________________________
__________________________
__________________________
Affidavit of Disclosure
Pursuant to A.R.S. § 33-422
I, ______________________________________________ (seller(s)) being duly sworn, hereby make this affidavit of disclosure relating to the real property situated in the unincorporated area of:
_______________________, County, State of Arizona, located at:
______________________________________________________________
and legally described as:
(Legal description attached hereto as exhibit "A")
(property).
1. There ◻ is ◻ is not . . . . legal access to the property, as defined in A.R.S. § 11-831 . . . . ◻ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
2. There ◻ is ◻ is not . . . . physical access to the property. ◻ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
3. There ◻ is ◻ is not . . . . a statement from a licensed surveyor or engineer available stating whether the property has physical access that is traversable by a two-wheel drive passenger motor vehicle.
4. The legal and physical access to the property ◻ is ◻ is not . . . . the same....◻ unknown ◻ not applicable.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
If access to the parcel is not traversable by emergency vehicles, the county and emergency service providers may not be held liable for any damages resulting from the inability to traverse the access to provide needed services.
5. The road(s) is/are ◻ publicly maintained ◻ privately maintained ◻ not maintained ◻ not applicable. If applicable, there ◻ is ◻ is not . . . . a recorded road maintenance agreement.
If the roads are not publicly maintained, it is the responsibility of the property owner(s) to maintain the roads and roads that are not improved to county standards and accepted for maintenance are not the county's responsibility.
6. A portion or all of the property ◻ is ◻ is not . . . . located in a FEMA designated regulatory floodplain. If the property is in a floodplain, it may be subject to floodplain regulation.
7. The property ◻ is ◻ is not subject to ◻ fissures or ◻ expansive soils. ◻ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
8. The following services are currently provided to the property: ◻ water ◻ sewer ◻ electric ◻ natural gas ◻ single party telephone ◻ cable television services.
9. The property ◻ is ◻ is not . . . . served by a water supply that requires the transportation of water to the property.
10. The property is served by ◻ a private water company ◻ a municipal water provider ◻ a private well ◻ a shared well ◻ no well. If served by a shared well, the shared well ◻ is ◻ is not . . . . a public water system, as defined by the safe drinking water act (42 United States Code § 300f).
Notice to buyer: If the property is served by a well, a private water company or a municipal water provider the Arizona department of water resources may not have made a water supply determination. For more information about water supply, contact the water provider.
11. The property or the water used on the property ◻ is ◻ is not the subject of a statement of claimant for the use of water in a general adjudication of water rights. ◻ unknown.
This is a lawsuit to determine the use of and relative priority of water rights. A map of adjudicated areas is available at the website of the department of water resources.
12. The property ◻ does have ◻ does not have . . . . an on-site wastewater treatment facility (i.e., standard septic or alternative system to treat and dispose of wastewater). ◻ unknown. If applicable: a) The property ◻ will ◻ will not . . . . require installation of an on-site wastewater treatment facility; b) The on-site wastewater treatment facility ◻ has ◻ has not been inspected.
13. The property ◻ has been ◻ has not been . . . . subject to a percolation test. ◻ unknown.
Notice to buyer: If the property contains solar energy devices, it is the responsibility of the buyer to verify the proper replacement and disposal method for the devices, as applicable. If the solar energy devices are leased, the seller or property owner shall disclose the name and contact information of the leasing company.
Leasing company name: _______________ Phone: _______________
15. The property ◻ does ◻ does not . . . . meet the minimum applicable county zoning requirements of the applicable zoning designation.
16. The sale of the property ◻ does ◻ does not . . . meet the requirements of A.R.S. § 11-831 regarding land divisions, including that the property is not currently subject to an investigation or finding that the lot was divided to avoid the subdivision laws of this state by acting in concert to CREATE more than five lots. If those requirements are not met, the property owner may not be able to obtain a building permit. The seller or property owner shall disclose each of the deficiencies to the buyer.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
17. The property ◻ is ◻ is not located in the clear zone of a military airport or ancillary military facility, as defined in A.R.S. § 28-8461. (Maps are available at the state real estate department's website.)
18. The property ◻ is ◻ is not located in the high noise or accident potential zone of a military airport or ancillary military facility, as defined in A.R.S. § 28-8461. (Maps are available at the state real estate department's website.)
19. Notice: If the property is located within the territory in the vicinity of a military airport or ancillary military facility, the property is required to comply with sound attenuation standards as prescribed by A.R.S. § 28-8482. (Maps are available at the state real estate department's website.)
20. The property ◻ is ◻ is not located under military restricted airspace. ◻ unknown. (Maps are available at the state real estate department's website.)
21. The property ◻ is ◻ is not located in a military electronics range as defined in A.R.S. § 9-500.28 and § 11-818. ◻ unknown. (Maps are available at the state real estate department's website.)
22. Use of the property ◻ is ◻ is not limited in any way relating to an encumbrance of title due to a lis pendens, a court order or a state real estate department order or a pending legal action. If the use of the property is limited due to an encumbrance of title, the seller or property owner shall disclose the limitations to the buyer.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
This affidavit of disclosure supersedes any previously recorded affidavit of disclosure.
I certify under penalty of perjury that the information contained in this affidavit is true, complete and correct according to my best belief and knowledge.
Dated this (date) __ day of (year) by:
Seller's name (print): ______________ Signature: _____________
Seller's name (print): ______________ Signature: _____________
State of Arizona )
) ss.
County of ___________)
Subscribed and sworn before me this _ (date) __ day of (year) , by _________________________.
__________________________
Notary public
My commission expires:
(date)
Buyer(s) hereby acknowledges receipt of a copy of this affidavit of disclosure this (date) day of (year)
Buyer's name (print): _______________ Signature: _____________
Buyer's name (print): _______________ Signature: _____________
G. For the purposes of this section, seller and subsequent seller do not include a trustee of a deed of trust who is selling property by a trustee's sale pursuant to chapter 6.1 of this title or any officer who is selling property by execution sale pursuant to title 12, chapter 9 and chapter 6 of this title. If the seller is a trustee of a subdivision trust as defined in section 6-801, the disclosure affidavit required by this section shall be provided by the beneficiary of the subdivision trust.