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.