RES-10858 Adopting Proposition 218 AssessmentRESOLUTION NO. 10858
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ORANGE ADOPTING PROPOSITION 218
ASSESSMENT BALLOT PROCEEDINGS
PROCEDURES.
WHEREAS, the City Council of the City of Orange, California("City") hereby finds,
determines, declares, and resolves as follows:
WHEREAS, Proposition 218 was adopted on November 6, 1996, adding Articles
XIIIC and XIIID to the California Constitution.
WHEREAS, Article XIIID of the California Constitution imposes certain procedural
and substantive requirements relating to assessments (as defined).
WHEREAS, the City believes it to be in the best interests of the City and its property
owners to confirm and memorialize the City's procedures and guidelines regarding
implementation of the provisions of Proposition 218 and pertinent statutes relating to
assessments.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE
DOES HEREBY RESOLVE AS FOLLOWS:
1.That the above recitals are all true and correct; and
2.Statement of Legislative Intent: In adopting this resolution, it is the City
Council's intent to adopt assessment ballot proceedings, which are consistent
and in compliance with Articles XIIIC and XIIID of the California
Constitution and with Government Code §§ 53750 through 53754. It is not
the intent of the City Council to vary in any way from the requirements of
either the California Constitution or the laws of the State of California. If
there is any inconsistency of each between a provision of this resolution and
state law, state law will govern; and
3.Definition of Assessment: Proposition 218 defines "assessment" as "any levy
or charge by an agency upon real property that is based upon the special
benefit conferred upon the real property by a public improvement or services,
that is imposed to pay the capital cost of the public improvement, the
maintenance and operation expenses of the public improvement or the cost of
the service being provided." "Assessment" includes, but is not limited to,
special assessment," "benefit assessment," "maintenance assessment," and
special assessment tax"; and
4.Assessment Ballot Proceeding: The following procedures shall be used in an
assessment ballot proceeding that follows the requirements of California
Constitution, Article XIIID, § 4:
A. Amount of Assessment: Only special benefits are assessable. The
amount of assessment shall be each identified parcel's proportionate
share of the cost of the landscape maintenance services based upon
that parcel's special benefit from the services provided. The amount
shall be proportional to, and no greater than, the special benefits
conferred on the property.
B. Engineer's Report: The City Council shall direct the filing of an
engineer's report that shall comply with the applicable state statute(s)
authorizing the assessment and with California Constitution, Article
XIIID, § 4. The engineer's report shall explain the special benefits
conferred by the improvements and/or services funded by the
assessments. The engineer's report shall also provide the evidence
upon which the City Council may find that a special benefit exists. If
the improvement or service confers a general benefit, the engineer's
report shall describe the general benefit and an alternative funding
source for any general benefits. The engineer's report shall be
prepared by a registered professional engineer certified by the State of
California, ("Assessment Engineer"). The cost of preparing the
engineer's report shall be included as a cost of the assessment.
C. Notice: The following guidelines shall apply to giving notice of an
assessment:
1) The record owner(s) of each parcel to be assessed shall be
determined from the last equalized property tax roll. If the
property tax roll indicates more than one owner, each owner shall
receive notice. Only property owners shall receive notice;
2) The notice shall be sent at least forty-five (45) days prior to the
date set for the public hearing on the assessment;
3) The notice provided by this section shall contain the following
information:
a) The total amount to be assessed for the entire assessment
district;
b) The amount to be assessed to the owner's particular parcel;
c) The duration of the payments;
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d) The reason for the assessment;
e) The basis upon which the amount of the proposed
assessment was calculated;
The date, time and location of the public hearing on the
proposed assessment;
g) A summary of the procedures for the completion, return
and tabulation of the assessment ballots;
h) A disclosure statement that the existence of a majority
protest will result in the assessment not being imposed; and
i) A ballot to be completed by the owner, as further described
in paragraph IV, D of this resolution.
4) The notice provided by this section and in accordance with
California Code §§ 53753(b) and (c) shall supersede and be in
lieu of any other statutes requiring notice to levy or increase an
assessment, including but not limited to the notice required by
the state statute authorizing the assessment and California
Government Code § 54954.6;
5) Failure of any person to receive notice shall not invalidate the
proceedings;
6) The cost of providing notice shall be included as a cost of the
assessment.
D. Assessment Ballot: The following guidelines shall apply to the
assessment ballot:
1) The ballot required by Article XIIID, § 4(d), of the California
Constitution shall be mailed to all property owners of record
subject to the proposed assessment at least forty-five (45) days
prior to the date of the public hearing on the proposed
assessment. Said ballot shall comply with the requirements of
California Government Code §§ 53753(b) and (c). The ballot
shall be designed in such a way that, once sealed, its contents are
concealed.
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2) All ballots must be returned either by mail or by hand delivery;
not later than the date for return of ballots stated on the notice
and ballot described in this section. Mailed ballots must be
returned to City of Orange, City Clerk, 300 East Chapman
Avenue, Orange, CA 92866, or, if delivered at the time and
location of the public hearing, to be held at the City of Orange
City Council Chambers, located at 300 East Chapman Avenue,
Orange, CA, and handed to the City Clerk. Ballots must be
returned either by mail or by hand delivery prior to the
conclusion of the public input portion of the public hearing. The
City Clerk shall tabulate the ballots ("Tabulator") at a time and
location which will be accessible to the public.
3) Each ballot must be signed under penalty of perjury. In the event
that more than one (1) of the record owners of a parcel submits
an assessment ballot, the amount of the proposed assessment to
be imposed upon the parcel shall be allocated to each ballot
submitted in proportion to the respective record ownership
interests or, if the ownership interests are not shown on the
record, as established to the satisfaction of the City Council or
Assessment Engineer by documentation provided by the record
owners. If two (2) or more persons own a parcel subject to the
assessment, any one (1) owner may cast an assessment ballot for
all owners.
4) If a parcel has multiple owners, any owner may request a
proportional assessment ballot. If the ownership interest of the
owner is not shown on the last equalized secured property tax
assessment roll, such request must include evidence, satisfactory
to the City, of the owner's proportional rights in the parcel. The
Assessment Engineer will provide the proportional ballot to the
owner at the address shown on the assessment roll. Any request
for a ballot to be mailed to another location must include
evidence, satisfactory to the City, of the identity of the person
requesting the ballot. Each proportional ballot will be marked to
identify it as a proportional ballot and to indicate the owner's
proportional rights in the parcel. The Assessment Engineer shall
keep a record of each proportional ballot provided to an owner.
5) The City will only accept official ballots mailed or otherwise
provided to owners by the Assessment Engineer.
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6) If an assessment ballot is lost, withdrawn, destroyed or never
received, the Assessment Engineer will mail or otherwise provide
a replacement ballot to the owner upon receipt of a request
delivered to the City or the Assessment Engineer. The
replacement ballot will be marked to identify it as a replacement
ballot or a replacement proportional ballot. Any request for a
replacement or replacement proportional ballot to be mailed to
another location must include evidence, satisfactory to the City or
the Assessment Engineer, of the identity of the person requesting
the ballot. The same procedure applies to replacement ballots or
replacement proportional ballots, which are lost, withdrawn,
destroyed, or never received.
7) If an assessment ballot is returned by the United States Post
Office as undeliverable, the Assessment Engineer may mail a
redelivered ballot to the current property owner, if updated
ownership or owner mailing address can be determined. The
redelivered ballot will be marked to identify it as a redelivered
ballot.
8) An assessment ballot proceeding is not an election or voting for
purposes of Article II of the California Constitution or of the
Elections Code.
9) An assessment ballot is a disclosable "public record" as that
phrase is defined by California Government Code § 6252 during
and after tabulation of the ballots.
10) The California Government Code requires that assessment
ballots be signed by property owners. However, property owner
names and corresponding votes will remain strictly confidential,
except as necessary to count the votes or as disclosure is required
by California law.
11) To complete an assessment ballot, the owner of the parcel or his
or her authorized representative must (1) mark the appropriate
box (or circle) supporting or opposing the proposed assessment,
and (2) sign, under penalty of perjury, the statement on the ballot
that the person completing the ballot is the owner of the parcel or
the owner's authorized representative. Only one (1) box (or
circle) may be stamped or marked on each ballot. All incomplete
or improperly marked ballots shall be disqualified from balloting.
The Tabulator will retain all such invalid ballots.
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12) After returning an assessment ballot to the City, or the Tabulator
on behalf of the City, the person who signed the ballot may
withdraw the ballot by submitting a written statement to the City
directing the City to withdraw the ballot. Such statement must be
received by the City or the Tabulator prior to the close of the
public input portion of the public hearing on the proposed
assessment. When ballots for the assessment are tabulated, the
Tabulator will segregate withdrawn ballots from all other
returned ballots. The Tabulator will retain all withdrawn ballots
and will indicate on the face of such withdrawn ballots that they
have been withdrawn.
13) In order to change the contents of a ballot that has been
submitted, the person who has signed that ballot may (1) request
that such ballot be withdrawn, (2) request that a replacement
ballot be issued, and (3) return the replacement ballot fully
completed. Each of these steps must be completed according to
the procedures set forth above.
E. Tabulating Ballots: The following guidelines shall apply to tabulating
assessment ballots:
1) Assessment ballots shall remain sealed until tabulation
commences.
2) The City Clerk shall oversee and direct the tabulation of the
assessment ballots. The Tabulator shall follow the rules and
procedures of the laws of the State of California, this Resolution
and any other rules and procedures of the City Council. If the
Tabulator needs clarification, then he or she shall inquire of the
City Council, which is the final arbiter. All ballots shall be
accepted as valid except those in the following categories:
a) A photocopy of a ballot, a letter or other form of a ballot
that is not an official ballot provided by the City or the
Assessment Engineer on behalf of the City;
b) An unsigned ballot, or ballot signed by an unauthorized
individual;
c) A ballot which lacks an identifiable mark in the box for a
yes" or "no" vote or with more than one (1) box marked,
will not be counted;
d) A ballot which appears tampered with or otherwise invalid
based upon its appearance or method of delivery or other
circumstances;
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e) A ballot for which the barcode representing the parcel
number is damaged or obstructed, unless the parcel number
or property ownership information is legible and allows the
Tabulator to clearly determine the property(s) identified on
the ballot.
A ballot received after the close of the balloting time
period.
The Tabulator's decision, after consultation with the City Council's legal
counsel, that a ballot is invalid shall be final and may not be appealed to the
City Council.
3) If more than one (1) of the record owners of a parcel submits an
assessment ballot, the amount of the proposed assessment to be
imposed upon the parcel shall be allocated to each ballot in
proportion to the respective record ownership interests, as shown
on the record or as established to the City's satisfaction by
documentation provided by the record owners.
4) In the event of a dispute regarding whether the signer of a ballot
is the owner of the parcel to which the ballot applies, the City
Council will make such determination from the official County
Assessor records and any evidence of ownership submitted to the
City Council prior to the conclusion of the public hearing. The
City Council shall be under no duty to obtain or consider any
other evidence as to ownership of property and its determination
of ownership will be final and conclusive.
5) In the event of a dispute regarding whether the signer of a ballot
is an authorized representative of the owner of the parcel, the
City Council may rely on the statement on the ballot signed under
penalty of perjury that the person completing the ballot is the
owner's authorized representative and any evidence submitted to
the City Council prior to the conclusion of the public hearing.
The City Council will be under no duty to obtain or consider any
other evidence as to whether the signer of the ballot is an
authorized representative of the owner and its determination will
be final and conclusive.
6) A property owner who has submitted an assessment ballot may
withdraw the ballot and submit a new or changed ballot up until
the conclusion of the public input portion of the public hearing
on the assessment. Assessment ballots may be withdrawn and
newer changed ballots submitted up until the conclusion of the
public input portion of the public hearing on the assessment.
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7) A property owner's failure to receive an assessment ballot shall
not invalidate the proceedings conducted under this section and
California Constitution Article XIIID, § 4.
8) The City shall retain all ballots for a period of two (2) years from
the date of the public hearing.
F. Public Hearing.
1) At the public hearing, the City Council shall hear and consider all
public testimony, objections and protests regarding the proposed
assessment and accept ballots until the close of the public input
portion of the public hearing.
2) Reasonable time limits may be imposed on both the length of the
entire hearing and the length of each speaker's testimony.
3) At the conclusion of the public input portion of the hearing, but
prior to the conclusion of the public hearing, the Tabulator shall
begin tabulation of the ballots at the direction of the City
Council, including those received during the public hearing.
4) If it is not possible to tabulate the ballots on the day of the public
hearing, or if additional time is necessary far public testimony,
the City Council may continue the public hearing from time to
time in order to receive additional testimony, information, or to
finish tabulating the ballots.
5) If, according to the final tabulation of the ballots, ballots
submitted against the assessment exceed the ballots submitted in
favor of the assessment, weighted according to the proportional
financial obligation of the affected property, a "majority protest"
exists and the City Council shall not impose the assessment.
ADOPTED this 14t" day of April, 2015
E
ere a E. Smith, Mayor, City of Orange
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A i TEST:
Mary E. Nlurph ' Clerk, City of ran e
I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby
certify that the foregoing Resolution was duly and regularly adopted by the City Council of
the City of Orange at a regular meeting thereof held on the 14th day of April, 2015, by the
following vote:
AYES: COLINCILMEMBERS: Alvarez, Whitaker, Smith, Murphy
NOES: COiJNCILMEMBERS: None
ABSENT: COiJNCILMEMBERS: None
ABSTAIN (RECUSED): COLTNCILMEMBERS: Nichols
r
Mary E. City Clerk, City ge
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