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HomeMy WebLinkAboutReso - CC - 102-2008RESOLUTION NO. 102-2008 RESOLUTION OF THE CITY OF BURLINGAME AUTHORIZING PROCEDURES FOR A PROTEST HEARING UNDER CALIFORNIA CONSTITUTION ARTICLE XHID (PROPOSITION 218) STORM DRAINAGE FEE 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 Under Proposition 218—Storm Drainage Fee" 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). I, Doris Mortensen, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was adopted at a regular meeting of the City Council held on the 1" day of December, 2008, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEM 3ERS: ABSENT: COUNCILMEMBERS: MYLOCK, DEAL, KEIGHRAN, NAGEL, O'NAHONY NONE NONE %,A,,A� <� L �4� �5 F Pu T CITY CLERK PROCEDURES FOR A PROTEST HEARING PURSUANT TO ARTICLE XIIID, SECTION 6 OF THE CALIFORNIA CONSTITUTION FOR THE ESTABLISHMENT OF A STORM DRAINAGE FEES 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 Storm Drainage Fee will apply and the amount of the Proposed Storm Drainage Fee for each identified parcel for Fiscal Year 2009-2010. 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 Storm Drainage Fee and shall remain available for public inspection. B. Notice of the Public Hearing on the Proposed Storm Drainage Fee Notice of the public hearing on the proposed Storm Drainage Fee 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. 2. "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 Storm Drainage Fee; b) the effect of a majority protest; c) the reason for the proposed Storm Drainage Fee; d) a reference to filing of the engineer's report; e) a reference to the proposed ordinance imposing the proposed Storm Drainage Fee and providing for the collection of the Fee on the County tax roll beginning Fiscal Year 2009-2010; fl the basis upon which the amount of the proposed Storm Drainage Fee was calculated; and g) the amount of the proposed Storm Drainage Fee 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. 6. Failure of any person to receive notice shall not invalidate the proceedings. 7. Notice of the filing of the Engineer's Report and the public hearing shall be published once a week for two successive weeks with the first publication at least fourteen (14) days prior to the date of the public hearing, and with at least (5) days intervening between the first and second publications. 8. The notice provided by these procedures, in accordance with Article XI IID, Section 6 of the California Constitution, shall supersede and be in lieu of notice required by any other statutes to levy or increase such fees. C. Eligibility to File a Protest The Assessment Roll shall be presumptive evidence of ownership of an identified parcel for protest purposes. 2. If the owner of any identified parcel is not shown on the Assessment Roll, such owner may file a protest 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 file a protest for such parcel. An executor, administrator, or guardian may file a protest 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 file the protest. 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 fled with the City Clerk prior to the conclusion of the public hearing. When an identified parcel is held by a corporation or unincorporated association, a protest may be filed 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 sign the protest 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 2 the. City Clerk a declaration signed under penalty of perjury prior to the commencement of the public hearing. If more than on 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 protest or ballot. 8. The owner of any parcel to which the fee 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 sign the protest 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 protest or ballot proceedings. 10. The City Manager is designated as the voting representative with respect to City -owner property. 11. If, priorto 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 protest purposes, and the owner of representative listed on that assessment roll who votes 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 Written Protests Written protests may be 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. 2. No protests delivered via e-mail will be counted for purposes of determining whether a majority protest exists, but the City Council may, in its discretion, consider such protests in making determinations regarding the proposed Storm Drainage Fee. Each written protest must identify the property covered by the protest and be signed. Protests must (1) be in writing; (2) identify the parcel for which the protest is made; (3) state opposition to the proposed storm drainage fee; and (4) contain a legible signature of an eligible property owner. Protests that do not meet these requirements will not be considered; however, the Council may waive any irregularities in the form or content of any written protest if the protest is in substantial compliance with these procedures. 5. All protests must be filed before the close of the public testimony portion of the public hearing. The City Clerk shall endorse the date of filing on each written protest, and shall indicate whether the protest was timely filed. No protest received after the close of the public testimony portion of the public hearing shall be counted in determining the amount of protest, but the Council may, in its discretion, consider such protests in making its decision. 6. Protests may be withdrawn in writing at any time before the conclusion of the public testimony portion of the public hearing by the person who submitted the written protest. Prior to the commencement of the public hearing, all written protests submitted shall be kept secret and confidential. 8. After the City Council opens the public hearing, all written protests shall be considered public records. 9. For purposes of determining whether a majority protest exists, only one protest for each Identified Parcel will be counted. E. Conduct of the Public Hearing; Determination of A Majority 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 Storm Drainage Fee; (b) hear all persons interested in the matter of the proposed fee increase, whether or not they have filed a protest; (c) hear all objections, protests, or other written communications from any owner of property subject to the proposed fee increase; the City Clerk may summarize a protest for the City Council; 2. The hearing may be continued from time to time, as the Council determines necessary to complete its consideration of the proposed fee increase. If the Council determines, after the close of the public testimony portion of the public hearing, that written protests have been received from property owners representing a majority of the parcels subject to the proposed fee, the Mayor shall declare the proceedings closed and the establishment of the fee shall not be approved. 4. If the Council determines, after the close of the public testimony portion of the public hearing, that written protests have not been received from property owners representing a majority of the parcels subject to the proposed fee, the Council may: (a) remedy, correct, and/or revise any error or informality in the report containing the proposed fee increase for each property, any minor defect in the proceedings, and any of the acts or determinations of any City officers or employees in the proceedings or report. Modifications or corrections that increase the fee proposed for any individual parcel to an amount greater than that shown in the notice mailed to the property owner will not be allowed; and (b) confirm the report containing the proposed fee increase for each property; and (c) adopt a resolution calling for a ballot proceeding; (d) Introduce/adopt the ordinance imposing the Storm Drainage Fee, subject to voter approval; and (e) Take such other action as is deemed appropriate. Tabulation of Written Protests. The following procedures are hereby adopted for calculating whether a majority protest against a fee or charge has been received: The City Clerk shall inform the City Council as to the validity of all protests. The City Clerk shall not accept as valid any protest if the City Clerk determines that any of the following applies: (a) The protest does not identify a parcel which receives the property -related service for which the fee or charge is imposed; (b) The protest does not bear an original signature of the person submitting the protest; (c) The protest does not state its opposition to the proposed fee which is the subject of the protest proceeding; (d) The protest was not received by the City Clerk before the close of the public testimony portion of the public hearing on the proposed fee; (e) A request to withdraw the protest is received prior to the close of the public hearing on the proposed fee. 2. The City Clerk's decision regarding the validity of a protest 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. 3. Prior to the public hearing, the City Clerk may open and review any written protests received for the validity of such written protests as provided in section F, subsection 1 of these procedures. Prior to the public hearing, the City Clerk shall perform a cursory review of the number of written protests received. If this cursory review demonstrates that the number of protests received is manifestly less than one-half of the parcels served by the City with respect to the fee which is the subject of the protest, the City Clerk may forego an actual tally of the protests received and at the public hearing may merely advise the City Council of the absence of a majority protest based on this cursory review. If the cursory review demonstrates that the number of protests received is not manifestly less than one- half of the parcels served by the City with respect to the fee which is the subject of the protest, the City Clerk shall perform an actual tally of the written protests received for purposes of determining majority protest. The City Manager may retain or designate persons to assist the City Clerk with this tally if necessary. At the close of the public testimony at the public hearing, the City Clerk shall incorporate into this tally the written protests received at the public hearing and shall advise the City Council as to whether there is majority protest or not based on the results of the tabulation. Prior to the commencement of the public hearing, all written protests submitted and the tally of those written protest shall be kept secret and confidential by the City Clerk.