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HomeMy WebLinkAboutSouth 8th protest Packet materials.pdf1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Greg Sullivan, City Attorney Debbie Arkell, Director of Public Services SUBJECT: Public Hearing and Decision on Written Protests for Creation of South 8th Avenue Special Improvement District No. 713 MEETING DATE: April 2, 2012 AGENDA ITEM TYPE: Action RECOMMENDATION: Finding the written protests to create Special Improvement District (SID) No. 713 for improvements to South 8th Avenue do not amount to the number of protests required by Montana Code Annotated, adopt a motion to pass on all protests, determine creation of SID No. 713 to be in the public interest, and instruct the City Manager to bring a Resolution before the Commission on April 16, 2012 to create SID No. 713. RECOMMENDED MOTION: Having conducted a public hearing after the expiration of the time for written protests against the creation of the South 8th Avenue Special Improvement District (SID) No. 713 to be filed with the City Clerk and having reviewed all written protests to the creation of SID No. 713 and finding the written protests do not amount to the number of protests required by Section 7-12-4113(1), MCA, to bar the Commission from creating SID No. 713, I hereby move the Commission pass on all protests, determine creation of SID No. 713 to be in the public interest, and instruct the City Manager to bring a Resolution before the Commission creating SID No. 713 on April 16, 2012. INTRODUCTION: The purpose of this agenda item is for the Commission to conduct a public hearing and review written protests to the creation of proposed Special Improvement District No. 713 (the “SID”) and to determine whether submitted protests are sufficient to bar the Commission from moving forward with the proposed SID. If the Commission determines the number of protests is not sufficient to bar moving forward with creation of the proposed SID, the Commission may instruct the City Manager to bring forward a final resolution creating the proposed SID. As explained below, written protests have been received from the owners of two parcels of real property within the proposed SID and are not sufficient to bar the Commission from proceeding with a final resolution to create the proposed SID. 2 BACKGROUND: On March 5, 2012, the Commission adopted Commission Resolution No. 4368, a Resolution of Intent to Create Special Improvements District No. 713 (the “SID”), for the purpose of financing a portion of the reconstruction of South 8th Avenue. The proposed SID is proposed to be created to pay the costs of the curb, sidewalk, and pedestrian ramp removal and replacement completed by the project. These costs will be determined upon opening of the bids, but are estimated to be approximately $255,488. Pursuant to Resolution 4368, the costs of these improvements to be paid by the proposed SID will be assessed using the lineal frontage method of assessment per Section 7-12-4163, MCA. There are 5,270.74 lineal feet within the District, and 66 property owners within the proposed SID. The approximate costs of the improvements, exclusive of interest, to be paid by the District shall not exceed $49.00 per lineal foot. The proposed SID will be funded by a loan from the City’s special improvement district revolving loan fund with interest on the outstanding assessments estimated at 2% annually. Upon adoption of the Resolution of Intent and as required by State law, the City Clerk mailed a copy of a Notice of Passage of the Resolution of Intent to every property owner within the proposed SID on March 9, 2012. The Notice of Passage of the Resolution of Intent was also published twice in the Bozeman Daily Chronicle, on March 11 and 18, 2012. Opportunity to Submit Written Protests: Pursuant to State law, property owners within the proposed SID have fifteen (15) days from the date of the first published Notice of Passage of Resolution of Intent to formally protest the creation of the SID. Every protest must have been submitted in writing, identify the property in the district owned by the protestor, and be signed by all the owners of the property. The protest must have been delivered to the City Clerk not later than 5 pm on the last day within the protest period, which ended on Monday, March 26. Public Hearing to Review Protest Received: Pursuant to Sect. 7-12-4112, MCA, the City Commission must “hear and pass upon all protests made” at the next regular meeting of the Commission following the end of the protest period. This is the action the Commission is required to take under this agenda item. The purpose of this agenda item is to determine if sufficient written protests have been made by the owners of property in the district to be assessed for more than 50% of the cost of the proposed work pursuant to Sect. 7-12-4133(1)(a), MCA (see below). If adequate protest has not been received, the Commission should then consider whether or not to adopt a motion to pass on all protests, determine if the creation of the proposed SID is in the public interest, and instruct the City Manager to bring a Resolution before the Commission on April 16, 2012 to create the proposed SID. The Commission is barred from taking any action on the proposed SID for a period of six months if the protest thresholds in Sect. 7-12-4113, MCA are met: 7-12-4113. Sufficient protest to bar proceedings -- exceptions. (1) Except as provided in subsections (2) and (3), no further proceedings shall be taken for a period of 6 months from the date when said protest shall have been received by said clerk of the city or town council or commission when: (a) the council or commission finds that such protest is made by the owners of property in the district to be assessed for more than 50% of the cost of the proposed work, in accordance with the method or methods of assessment described in the resolution of intention; or (b) the cost thereof is to be assessed upon the property within an extended district and the council or commission finds that such protest is made by the owners of more than 50% of the area of the property to be assessed for said improvements. (2) The council or commission shall have the right to overrule any and all objections and pave the proposed block with gravel and oil surface when the improvement proposed is the paving, with 3 necessary incidentals, of not more than one cross block to connect with streets or avenues already paved for a continuous distance of three blocks or more running at a right angle (or substantially so) with the single cross block so proposed to be paved. (3) In case the improvement is the construction of a sanitary sewer, such protest may be overruled by an affirmative vote of a majority of the members of the council or commission unless such protest is made by the owners of property in the district to be assessed for more than 75% of the cost of the district, in accordance with the methods of assessment described in the resolution of intention, in which event the protest must be sustained as to the construction of such sanitary sewer. Sufficiency of Written Protests: As of the end of the protest period two written protests have been made against creation of the District. The written protests are attached. The total frontage for both properties included in the protests amounts to 190 feet resulting in a maximum of $9,310 in total approximate assessments. As the Resolution of Intent considered $255,488 as the approximate total amount of assessments, the amount of assessment related to the protesting properties is approximately 3.6% of the total approximate assessed amount. These protests, when taken together, are from property owners whose assessments will amount to significantly less than 50% of the proposed work and as such are not sufficient to bar the Commission from proceeding with final resolution to create the proposed SID. UNRESOLVED ISSUES: There are no unresolved issues related to the written protests. As discussed at the March 5, 2012 commission meeting, a number of identified elements related to the larger South 8th Avenue Reconstruction project are still in flux: Total Bid Price, Maximum Allowable INTERCAP Loan, other contributing funds to complete the financing if necessary. ALTERNATIVES: The Commission could determine to accept the protests and while those protests are not legally sufficient to bar the Commission from proceeding on creating the proposed SID, the Commission could choose to not create this SID and either find another source of funds to pay for the described improvements, or not proceed with the improvements at all (cancelling the entire South 8th Avenue Reconstruction.) FISCAL EFFECTS: As described herein. Attachments: Written protests from: (i) Donald G. Frye; and (ii) Charles M. Paden and Janis Rae Bullock. Report compiled on: March 27, 2012