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HomeMy WebLinkAboutReso - CC - 019-2012RESOLUTION NO. 19-2012 RESOLUTION OF THE CITY OF BURLINGAME ADOPTING PROCEDURES FOR A PROTEST HEARING UNDER CALIFORNIA CONSTITUTION ARTICLE XIIID (PROPOSITION 218) RESOLVED by the CITY COUNCIL OF THE CITY OF BURLINGAME that: WHEREAS, Proposition 218 (Articles XIII C and XIII D of the California Constitution) requires the City to comply with the substantive and procedural requirements set forth in Section 6 of Article XIII D of the California Constitution prior to imposing or increasing a fee or charge upon any parcel of property or upon any person as an incident of property ownership; and WHEREAS, Article XIII D requires the City to notice the record owner of the parcel upon which the fee or charge is proposed to be imposed; and WHEREAS, Article XIII D and the Proposition 218 Implementation Act, Government Code Sections 53750 and following, establish certain procedural and substantive requirements but do not set forth all procedures that are necessary to conduct a protest hearing; and WHEREAS, the City wishes to adopt certain procedures for the protest hearing and to make them available to the public; NOW, THEREFORE, IT IS RESOLVED AND ORDERED that: 1. The City Council declares that its intent in enacting this Resolution is to adopt procedures that are in compliance with the requirements of the California Constitution and the Proposition 218 Implementation Act. 2. The City Council hereby adopts the procedures entitled "Procedures for a Protest Hearing Pursuant to Article XIIID, Section 46 of the California Constitution for the Establishmnent of an Assessment" set forth in Exhibit A, attached hereto and incorporated herein by reference. 3. The City Council finds that this activity is not a project and therefore is not subject to the California Environmental Quality Act pursuant to CEQA Guidelines Section 15060(c)(3). n OHSUSA:750164081.3 I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 2nd day of April, 2012, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: BAYLOCK, BROWNRIGG, DEAL, KEIGHRAN, NAGEL NOES: COUNCILMEMBERS: NONE ABSENT: COUNCMMEMBERS: NONE A i y Ellen Kearney, City Clerk OHSUSA:750164081.3 PROCEDURES FOR A PROTEST HEARING PURSUANT TO ARTICLE XIIID, SECTION 4 OF THE CALIFORNIA CONSTITUTION FOR THE ESTABLISHMENT OF AN ASSESSMENT A. Written Report The City shall prepare a written report (Engineer's Report) which shall contain a list of all parcels to which the proposed assessment will apply and the amount of the proposed assessment for each identified parcel. 2. The Engineer's Report shall be placed on file in the office of the City Clerk at least forty- five (45) days prior to the date set for the public hearing on the proposed assessment and shall remain available for public inspection. B. Notice of the Public Hearing on the Proposed Assessment Notice of the public hearing on the proposed assessment shall be sent, postage prepaid, by first class mail at least forty-five (45) days prior to the date set for the public hearing to the record owner of each identified parcel. "Record Owner" means the owner of an identified parcel whose name and address appears on the last San Mateo County equalized secured property tax assessment roll (the "Assessment Roll"), or in the case of any public entity, the State of California, or the United States, means the representative of that public entity at the address of that entity known to the City. 3. Notices shall be mailed to the record owners of the identified parcels, addressed to the names and addresses as they appear on the Assessment Roll, and, in the case of any public entity, the State of California, or the United States, addressed to the public entity at the address of that entity known to the City. 4. Each mailed notice shall contain all of the following: a) the date, time and location of a public hearing on the proposed assessment; b) the effect of a majority protest; c) the reason for the proposed assessment; d) a reference to filing of the Engineer's Report; e) the basis upon which the amount of the proposed assessment was calculated; and the amount of the proposed assessment to be imposed upon the identified parcel covered by the notice. 5. The City Clerk, or designee of the City Clerk, may certify the proper mailing of notices by an affidavit, which shall constitute conclusive proof of mailing in the absence of fraud. OHSUSA:750164078.3 6. Failure of any person to receive notice shall not invalidate the proceedings. The notice provided by these procedures, in accordance with Article XIIID, Section 4 of the California Constitution, shall supersede and be in lieu of notice required by any other statutes to levy or increase such assessments. C. Eligibility to Cast an Assessment Ballot The Assessment Roll shall be presumptive evidence of ownership of an identified parcel for assessment ballot purposes. 2. If the owner of any identified parcel is not shown on the Assessment Roll, such owner may cast an assessment ballot for such parcel by filing with the City Clerk a proxy from the Record Owner in a form satisfactory to the City Attorney or evidence of ownership satisfactory to the City Attorney. Any such proxy or evidence must be received by the City Clerk prior to the conclusion of the public hearing. 3. When an identified parcel is held by a partnership, as community property, in joint tenancy, or as a tenancy in common, any partner, spouse, joint tenant, or tenant in common, as the case may be, may cast the assessment ballot for such parcel. However, at the request of any owner, separate ballots may be provided pursuant to California Government Code Section 53753(e)(3). 4. An executor, administrator, or guardian may cast the assessment ballot for an identified parcel on behalf of the estate it represents. If such representative is shown on the Assessment Roll as paying taxes and assessments levied against the parcel, that fact shall establish the right of such representative to cast the assessment ballot. If such representative is not shown on the Assessment Roll, the representative must file with the City Clerk written documentation satisfactory to the City Attorney establishing the legal representation. Any such documentation must be filed with the City Clerk prior to the conclusion of the public hearing. 5. When an identified parcel is held by a corporation or unincorporated association, an assessment ballot may be cast by any person authorized in writing by the board of directors or trustees or other managing body thereof to take such actions. The corporation or unincorporated association must file with the City Clerk written authorization satisfactory to the City Attorney. Any such written authorization must be filed with the City Clerk prior to the conclusion of the public hearing. 6. Trustees may cast the assessment ballot provided for in these procedures on behalf of the trust they represent. If a trustee is not shown on the latest assessment roll, the trustee may file with the City Clerk a declaration signed under penalty of perjury prior to the commencement of the public hearing. If more than one representative is shown on the latest assessment roll as paying taxes and assessments on behalf of the property owner(s), the provisions relating to co - ownership in paragraph C3, above, shall govern the right to sign the ballot. OHSUSA:750164075.3 B. The owner of any parcel to which the assessment is proposed to apply, which has been assessed in the wrong name or to unknown owners, or which has passed from the owner listed on the assessment roll, may cast the assessment ballot for such parcel by filing with the City Clerk, at any time prior to the commencement of the public hearing: (a) a duly acknowledged proxy from such former owner; or (b) a declaration, signed under penalty of perjury, that the person signing is the owner of the property. 9. A tenant of real property shall not have the power or authority to participate in the ballot proceedings. 10. The City Manager is designated as the voting representative with respect to City -owned property. 11. If, prior to the commencement of the public hearing, no documentation relating to the voting authority for a parcel is filed with the City Clerk as provided for in this section C, the ownership information shown in the latest secured equalized property tax assessment roll shall be conclusive evidence of ownership for assessment ballot purposes, and the owner of representative listed on that assessment roll who casts the assessment ballot on behalf of the parcel shall be presumed to be legally authorized to do so. 12. In any case where the documentation provided to the City Clerk in accordance with this section C is ambiguous or unclear; the City Attorney shall determine whether the documentation is adequate for the purpose provided. D. Submission of Assessment Ballots Assessment ballots may mailed (via U.S. mail) to the City Clerk at City Hall or delivered in person to the City Clerk at City Hall or at the public hearing. No assessment ballots delivered via e-mail will be counted for purposes of determining whether a majority protest exists. 3. Each assessment ballot must identify the property covered by the protest and be signed. 4. All assessment ballots must be submitted before the close of the public testimony portion of the public hearing. The City Clerk shall endorse the date of submission on each assessment ballot, and shall indicate whether the assessment ballot was timely submitted. No assessment ballot received after the close of the public testimony portion of the public hearing shall be counted in determining the amount of protest. 5. Assessment ballots may be changed or withdrawn in writing at any time before the conclusion of the public testimony portion of the public hearing by the person who submitted the assessment ballot. 6. Prior to the conclusion of the public hearing, all assessment ballots submitted shall be kept secret and confidential. OHSUSA:750164078.3 3 7. During and after the assessment ballot tabulation, all assessment ballots and the information used to determine the weight of each assessment ballot shall be considered public records. 8. For purposes of determining whether a majority protest exists, only one assessment ballot for each Identified Parcel will be counted, except as provided in Section 53753(e)(3). A majority protest exists if the assessment ballots submitted, and not withdrawn, in opposition to the proposed assessment exceed the assessment ballots submitted, and not withdrawn, in its favor, weighting those assessment ballots by the amount of the proposed assessment to be imposed upon the identified parcel for which each assessment ballot was submitted. E. Conduct of the Public Hearing; Determination of A Maiority Protest At the time, date and place fixed for the public hearing, the City Council shall: (a) hear a staff presentation pertaining to the proposed assessment; (b) hear all persons interested in the matter of the proposed assessment,; (c) hear all objections, protests, or other written communications from any person; 2. The hearing may be continued from time to time, as the Council determines necessary to complete its consideration of the proposed assessment. Tabulation of Assessment Ballots. The following procedures are hereby adopted for calculating whether a majority protest against the assessment has been received: The City Clerk, or designee, shall inform the City Council as to the validity of all assessment ballots. The City Clerk shall not accept as valid any assessment ballot if the City Clerk determines that any of the following applies: (a) The assessment ballot does not identify a parcel subject to the proposed assessment; (b) The assessment ballot does not bear an original signature of the person casting the assessment ballot; (c) The assessment ballot is not clearly marked indicating its support for or opposition to the proposed assessment which is the subject of the protest proceeding; (d) The assessment ballot was not received by the City Clerk before the close of the public hearing on the proposed assessment; (e) A request to change or withdraw an assessment ballot was received prior to the close of the public hearing on the proposed assessment. 2. The City Clerk's decision regarding the validity of the assessment ballot shall constitute a final action of the City and shall not be subject to appeal to the City Council or to any other board or employee of the City. OHSUSA:750164078.3