§ 98-39. Imposition of assessments; procedure.

(a)

General authority. The board may provide for the cost of an individual project or several projects through imposition of assessments upon benefitted property within the benefit unit at a rate of assessment based on the special benefit accruing to such property from such project. The computation of assessments may be made on the basis of a general methodology designed to provide the maximum achievable equity among properties within each benefit unit, which methodology shall be applied uniformly against all similar properties. Nothing contained in this division shall be construed to require the imposition of assessments against property in public ownership.

(b)

Initial assessment resolution. The initial proceeding for imposition of an assessment shall be the passage by the board of an initial assessment resolution ordering the acquisition, construction or reconstruction of assessable improvements constituting an individual project, indicating in general, the location (the location may be established by reference to boundaries or a map or by reference to the benefit unit) and description of such improvements, which shall be sufficient to enable the assessment coordinator to prepare or cause preparation of the preliminary plans and specifications of such improvements as described in subsection (c) hereof. The initial assessment resolution shall state the estimated costs of the project, if available, and the method of assessment which may be by frontage, acreage, square footage, parcel or any other combination thereof or any other method deemed equitable by the board. The improvements constituting the project need not be contiguous and may be in more than one locality or street. The initial assessment resolution shall be recorded in the official records book in the office of the clerk. The initial assessment resolution shall include the notice of intent to levy non-ad valorem assessments. Publication of the initial assessment resolution shall be once in a newspaper of general circulation in the county following adoption by the board.

(c)

Plans and specifications. The assessment coordinator shall, as soon as possible after the passage of the initial assessment resolution, prepare or cause preparation of preliminary plans, specifications and cost estimates for the improvements constituting the project. The plans and specifications need only be in sufficient form to enable the assessment coordinator to estimate or cause estimation of the costs of the project and prepare the preliminary assessment roll.

(d)

Preliminary assessment roll. The assessment coordinator shall prepare or cause preparation of the preliminary assessment roll, which shall contain the following:

(1)

A summary description of lots and parcels of land within the benefit unit (conforming to the description contained on the tax roll) which will benefit from such assessable improvements constituting the project or projects and the amount of such benefits to each such lot or parcel of land.

(2)

The name of the owner of record of each lot or parcel as shown on the tax rolls.

(3)

The estimated total cost of the improvements to be assessed against each benefitted lot or parcel.

(4)

The proposed method of assessment for each parcel or lot within the benefit unit.

(5)

Notice by publication and notice by U. S. mail shall be provided as defined in section 98-36 [definition of "notice by mail" and "notice by publication"].

Such cost estimates and the preliminary assessment roll shall be provided to the clerk, plans and specifications shall be retained by the assessment coordinator and shall be open to public inspection. The foregoing shall not be construed to require that the preliminary assessment roll be in printed form if the amount of the assessment for each parcel of property can be determined by use of a computer terminal available at each location.

(e)

Adoption of preliminary assessment resolution. At the time named in the notice of public hearing, or to which an adjournment or continuance may be taken by the board, the board shall receive any written or verbal complaint of proposed assessments of interested persons and may then or at any subsequent meeting of the board adopt the preliminary assessment resolution which shall:

(1)

Approve the plans, specifications and cost estimates, with such amendments as it deems just and right;

(2)

Repeal or confirm the initial assessment resolution with such amendments, if any, as may be deemed appropriate by the board;

(3)

Approve the preliminary assessment roll, including the method of assessment, with such amendments as it deems just and right;

(4)

Establish the terms of prepayment and premiums charged, if any.

Assessments shall be levied against all property in the applicable benefit unit specially benefitted by the project. The board shall not approve any assessment in excess of the special benefits to the property assessed, and the assessments so approved shall be in proportion to the special benefits. Property owners within the benefit area shall be provided with written notice by U.S. Mail, return receipt requested, advising the owners of the proposed assessment, hereinafter called "benefit," manner of assessment and deadlines for complaining. Property owners within the benefit area with a complaint or comment as to the amount of the benefit determined for their parcel or proposed manner of assessment shall file a brief explanation of the owner's disagreement to the assessment at least five days prior to the preliminary assessment public hearing. The complaint shall be provided to the assessment coordinator. The assessment coordinator shall provide a copy of the complaint and a recommendation to the board at the preliminary assessment public hearing. All property owners shall have the right to appear at the hearing to make public comment, to provide information, or answer questions. The board shall consider all complaints and public comment at the preliminary assessment hearing and adjust assessments in the benefit unit as needed. No complaints, appeal or objections to the benefit determined or proposed manner of assessment will be allowed following the board's final adoption of the assessment.

(f)

Effect of preliminary assessment resolution. assessments shall be established upon adoption of the preliminary assessment resolution. Notice of the assessments shall be recorded as a special assessment lien in the official records book in the office of the clerk. Such notice shall provide in general the locations of the property which are assessed and direct interested parties to the assessment roll, upon approval thereof.

(g)

Adoption of final assessment resolution. Upon completion of the project, the board, in public hearing, shall consider adoption of the final assessment resolution. Notice by publication and by U.S. mail shall be provided to the property owners within the benefit unit as defined in section 98-36 [definition of "notice by mail" and "notice by publication"]. Adoption of this resolution shall cause the approval of the final assessment roll, establish the procedure for the collection of assessments and establish the interest rate or the method of determining the rate of interest which the assessments shall bear, including the date from which such interest shall accrue. All complaints of assessments shall be made in accordance with section 98-39(e). The board shall meet as an equalizing board to hear and consider any and all verbal and written complaints as to the assessments and shall adjust and equalize the assessments to reflect the final cost of the improvements. The adoption of the final assessment resolution shall be the final adjudication of the issues presented including, but not limited to, the method of assessment, the assessment roll, the plans and specifications and the final cost of the project. Otherwise, proper steps must be initiated in a court of competent jurisdiction to secure relief within 20 days from the date of board action of the final assessment roll. The interest payable on the assessment may be a variable rate. In the event the interest rate changes, no renotification of property owners is required.

(h)

Payment of assessments. Prepayments of assessments shall be accepted by the tax collector prior to the adoption of the final assessment resolution and as specified by the final assessment resolution. In the case where prepayment is made, no interest will accrue to the property owner. If not prepaid, all assessments shall be payable in equal annual principal installments (unless otherwise provided by resolution of the board), with interest on the outstanding balance at the rate and from the date set by the final assessment resolution. Assessments shall be collected in the manner set forth in section 98-40 hereof. The assessments shall bear interest at a rate not to exceed two percent above the true interest cost of such bonds, notes or any funding mechanism secured by the board (provided the true interest cost on the bonds, notes or funding mechanism may include any ongoing expenses related to the bonds, notes or funding mechanism and collection of the assessments). Interest will begin to accrue from the date the final assessment resolution is adopted or such other date as the board may provide by resolution payable in each of the succeeding number of years which the board shall determine by resolution. The interest payable on the assessment may be a variable rate. In the event the interest rate changes, no renotification of property owners is required.

(i)

Lien of assessments. All assessments shall constitute a lien against such property equal in rank and dignity with the liens of all state, county, district or municipal taxes and other non-ad valorem assessments. Except as otherwise provided by law, such liens shall be superior in dignity to all other liens, titles and claims, until paid.

(j)

Interest rate adjustment. If assessments made under the provisions of this division to defray the costs of the project shall be deemed by the board to be inadequate to meet the obligation owed for borrowed funds and to pay fees required for credit enhancement on the borrowed funds, if any, the board may adjust the rate of interest on installment payments of the assessment so that payments of assessments shall be sufficient to satisfy the contractual obligation. However, such adjustment shall not have the effect of increasing the assessment of any property.

(k)

Revisions to assessments.

(1)

If any assessment made under the provisions of this division to defray the costs of any project shall be either in whole or in part annulled, vacated or set aside by the judgment of any court, or if the board shall be satisfied that any such assessment is so irregular or defective that the same cannot be enforced or collected, or if the board shall have omitted to include any property on the assessment roll which properly should have been so included, the board shall take all necessary steps to cause a new assessment to be made against any property benefitted by any project, following as nearly as may be practicable the provisions of this division and in case such second assessment shall be annulled, the board may obtain and make other assessments until a valid assessment shall be made.

(2)

If the actual cost of the project exceeds the estimated cost on which the assessments were based in the preliminary assessment resolution, the board may, at its option, increase the amount of the assessment to be considered in the adoption of the final assessment resolution against all benefitted properties within the benefit unit, following the provisions of this division. In case such increased assessment shall be annulled, the board may obtain and make other assessments until a valid assessment shall be made.

(3)

If the actual cost of the project is less than the estimated cost on which the assessments in the preliminary assessment resolution were based, the board shall reduce the assessments to be considered in the adoption of the final assessment roll to an amount consistent with the actual cost of the project. Interest payments following any such reduction shall reflect the reduced principal amount of the assessments. If any assessment has been prepaid in full prior to the date of any such reduction, the amount of the reduction applicable to such assessment shall be refunded to the owner of the assessed property as of the date of prepayment; provided, however, that the county shall not be required to refund an amount less than $10.00 to any single owner.

(4)

The board may adjust assessments up to 15 percent of the values indicated in the adopted preliminary assessment roll at the public hearing for the final assessment roll based on complaints of assessment presented in accordance with section 98-39(e). If complaints presented warrant adjustments greater than 15 percent, the board must continue the public hearing and notice the property owners within the benefit unit by mail in accordance with section 98-36 [definition of "notice by mail"].

(l)

Procedural irregularities. Any informality or irregularity in the proceedings in connection with the levy of any assessment under the provisions of this division shall not affect the validity of the same after the approval thereof, and any assessment as finally approved shall be competent and sufficient evidence that such assessment was duly levied, that the assessment was duly made and adopted, and that all other proceedings adequate to such assessment were duly had, taken and performed as required by the division; and no variance from the directions hereunder shall be held material unless it be clearly shown that the party objecting was materially injured thereby. Notwithstanding the provisions of this subsection (l) any party objecting to an assessment imposed pursuant to this division must file an objection with a court of competent jurisdiction within the time periods prescribed herein.

(m)

Apportionment of assessments. The county may, by resolution, provide a procedure by which the lien of an assessment on property may be apportioned between subdivided parcels of such property. Such apportionment shall be reflected on the assessment roll. The county may establish a different procedure of apportioning an assessment lien for each benefit unit. The county shall not establish a procedure which has a material adverse effect on the security for bonds issued to finance the project related to such assessments.

(n)

Correction of errors and omissions.

(1)

No act of error or omission on the part of the property appraiser, tax collector, clerk, assessment coordinator, board or their deputies or employees, shall operate to release or discharge any obligation for payment of an assessment imposed by the board under the provision of this division. Any errors or omissions may be corrected at any time by the board or its designee, and when so corrected shall be considered valid ab initio and shall in no way affect the enforcement of the assessment imposed under the provisions of this division.

(2)

When it shall appear that any assessment should have been imposed under this division against a lot or parcel of property specially benefitted by the project, but that such property was omitted from the assessment roll, the board may, upon provision of appropriate notice as set forth in this section 98-36, impose the applicable assessment against such benefitted property and adjust assessments within the benefit unit accordingly. The assessment so imposed shall constitute a lien against such property equal in rank and dignity with the liens of all state, county, district or municipal taxes and non-ad valorem assessments, and superior in rank and dignity to all other liens, encumbrances, titles and claims in and to or against the real property involved and may be recorded as provided in subsection (e) and collected as provided in section 98-40 hereof.

(3)

The board shall have the authority at any time, upon its own initiative, to correct any error or omission in the adoption of any assessment roll, or in the implementation of this division, including, but not limited to, an error in inclusion or exclusion of any property.

(Code 1979, § 21-43; Ord. No. 97-07, § 1, 3-11-97)