§ 19-107 - Levy and payment of special assessments.
The Council may provide for the cost of a project by the levying in the area in which the project is located special assessments upon benefitted property within such area at a rate of assessment based on the special benefit accruing to the property from the project. The special assessments shall be assessed in conformity with the following special assessment procedure:
(a) The initial proceeding shall be the passage by the Council of the initial resolution ordering the acquisition, construction or reconstruction of assessable improvements constituting an individual project, indicating, in general, the location and description of such improvements, which shall be sufficient to enable the Utilities Director to prepare the plans and specifications of the improvements as described in subsection (b) of this section. The initial resolution shall also state the portion, if any, of the project to be paid by the city, the estimated costs of the project 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 Council. The Initial resolution may provide for alternative descriptions of the improvements and method of assessment. The improvements need not be continuous and may be in more than one locality or street. The initial resolution ordering any such improvement may give any short and convenient designation to each improvement ordered thereby. The initial resolution shall be recorded in the official records book in the office of the Lee County Clerk.
(b) (1)
As soon as possible after the passage of the initial resolution, the Utilities Director shall prepare, or cause to be prepared, in triplicate, plans, specifications and cost estimates for the improvements constituting the project. If the initial resolution shall provide alternative descriptions of the improvements or method of assessment, the plans, specifications and cost estimates shall include an estimate of the cost of the improvement of each such alternative.
(2) a.
The Utilities Director shall also prepare, or cause to be prepared, in triplicate, the tentative assessment roll, which roll shall contain:
1. A description of the lots and parcels of real property which will benefit from such assessable improvements and the estimated amount of benefits to each such lot or parcel of property, provided the lots and parcels shall include the property of the city and any school district, special district, municipality or political subdivision;
2. The name of the owner of record of each lot and parcel as shown on the tax rolls or such other source or sources as the Utilities Director or Clerk deems reliable;
3. The total estimated cost of the improvements to each benefitted lot or parcel; and
4. The method or alternative methods of assessment utilized in determining the cost of the improvements to be assessed to property owners, including any formulas for dealing with irregular lots and any assumptions of depth of the improvements.
b. The tentative assessment roll shall not be held to limit or restrict the duties of the Utilities Director in the preparation of the preliminary assessment roll under the provision of subsection (h) hereof. One of the triplicates of such plans, specifications, cost estimates and the tentative assessment roll shall be filed with the City Manager, one shall be filed with the Clerk and the other triplicate shall be retained by the Utilities Director in his or her files, all of which shall remain open to public inspection.
(c) (1)
The City Manager upon the filing with him or her of the plans, specifications, cost estimates and the tentative assessment roll shall publish once in a newspaper of general circulation, published in Lee County, and circulating in the city, a notice stating that at a meeting of the Council on a certain day and hour, not earlier than 15 calendar days from the publication (including Saturdays, Sundays and legal holidays), which meeting shall be a regular, adjourned or special meeting, the Council will hear objections of all interested persons to the adoption of the approving resolution which shall approve the aforementioned plans, specifications, cost estimates and tentative assessment roll. The notice shall state:
a. In brief and general terms a description of the applicable project with the location thereof (location may be established by reference to boundaries or a map);
b. The procedure for objecting provided in subsections (d) and (e) of this section; and
c. That plans, specifications, cost estimates and the tentative assessment roll, which shall include the method or alternative methods of assessment, are on file with the City Manager and the Clerk and all interested persons may ascertain the amount to be assessed against a lot or parcel of property at the office of the Clerk.
(2) In addition to the published notice described above, the City Manager shall cause to be mailed a copy of the notice by first class mail to each property owner proposed to be assessed. Notice shall be mailed, at least 15 calendar days prior to the hearing, to each property owner at such address as is shown on the tax rolls or such other source or sources as the Utilities Director or Clerk deems reliable. Notice shall be deemed mailed upon delivery thereof to the possession of the U.S. Postal Service. The failure of the City Manager to mail the notice shall not constitute a valid objection to holding the hearing as provided in this section or to any other action taken under the authority of this section. The City Manager or the Clerk may provide proof of the notice by affidavit.
(d) (1)
At the time named in the notice, or to which an adjournment may be taken by the Council, the Council shall receive any objections of interested persons and may then or thereafter adopt the approving resolution which shall:
a. Approve the aforementioned plans, specifications, cost estimates and tentative assessment roll, including the method of assessment, with such amendments as it deems just and right; and
b. Repeal or confirm the initial resolution with such amendments, if any, as may be desired by the Council.
(2) Special assessments shall be levied against all property in the applicable area specially benefitted by the project. In the event the Council established alternative descriptions or methods of assessment in the initial resolution, the Council shall provide in the approving resolution the description of improvements and method of assessment which shall be utilized.
(e) All objections to the approving resolution shall be made either in writing, filed with the City Manager at or before the time or adjourned time of the hearing, or orally at the time of the hearing. Special assessments shall be established upon adoption of the approving resolution. The adoption of the approving resolution shall be the final adjudication of the issues presented (including, but not limited to, the method of assessment, the tentative assessment roll, the plans and specifications, the estimated cost of the project, the interest rate the special assessments shall bear, and the terms of prepayments of the special assessments) unless proper steps shall be initiated in a court of competent jurisdiction to secure relief within 20 days from the date of Council action on the approving resolution. Notice of the special assessments intended to be levied and imposed shall be promptly recorded by the City Attorney in the official records book in the office of the Lee County Clerk. The notice shall provide the locations of the property which are to be assessed and direct interested parties to the tentative assessment roll or assessment roll, upon approval thereof. The tentative assessment roll, as approved by the approving resolution, shall be delivered to, and kept by, the Clerk.
(f) Whenever any approving resolution shall have been adopted, as hereinabove provided, or at any time thereafter, the Council may issue bonds, the interest and principal of which are payable from the pledged revenues. The bonds shall mature not later than two years after the last installment in which the special assessments may be paid, as provided in § 19-109 hereof, and shall bear interest at a rate not exceeding the maximum rate provided by law.
(g) If, subsequent to the adoption of the approving resolution, the costs of an assessable improvement increase over the estimate of the costs provided in the tentative assessment roll, the Council shall not assess the property on which the assessable improvement has been constructed any costs in excess of a 10% increase over the estimate provided therefor in the tentative assessment roll. The excess costs shall be borne by the city; provided, however, the increased costs not in excess of ten percent may be assessed against property in accordance with subsection (j) of this section. Nothing in this subsection (g) shall be construed as preventing the city from reassessing the costs of assessable improvements pursuant to the provisions of this article.
(h) Completion of the acquisition and construction of the project shall be certified by the Council; provided the certification may not occur until such time as the costs of the project have been identified and approved by the Council. Within the period of time after the certification of the completion of the acquisition or construction of the project as may be directed by the City Manager (but in no event more than six months after the certification of the project), the Utilities Director shall prepare the preliminary assessment roll and file the same with the City Manager and the Clerk, which roll shall contain the following:
(1) A description of lots and parcels of real property within the assessed area which will benefit from the assessable improvements and the amount of the benefit from the assessable improvements and the amount of the benefits to each such lot or parcel of property. The lots and parcels shall include the property of the city and any school district, special district, municipality or other political subdivision. There shall also be given the name of the owner of record of each lot or parcel as shown on the tax rolls or such other source or sources as the Utilities Director or Clerk deems reliable.
(2) The total cost of the improvement to each benefitted lot or parcel, which cost shall be no greater than the cost of such improvement as provided in the tentative assessment roll, plus any additional cost described in subsection (g) of this section.
(3) The method of assessment utilized in determining the cost of improvements to be assessed to property owners, including any formulas for dealing with irregular lots and any assumptions of depth of the improvements.
(i) The preliminary assessment roll shall be advisory only and shall be subject to the action of the Council as hereinafter provided. Subsequent to the filing with the City Manager of the preliminary assessment roll, the City Manager shall publish at least once in a newspaper of general circulation, published in Lee County, and circulating in the city, a notice stating that at a meeting of the Council to be held on a certain day and hour, not earlier than 15 calendar days from publication (including Saturdays, Sundays and legal holidays), which meeting may be a regular, adjourned or special meeting, all interested persons may appear and file written objections to the approval of the preliminary assessment roll. The notice shall describe in general terms the assessable improvements, the location thereof (location may be established by reference to boundaries or a map), and the procedure for objecting, and advise all persons interested that the description of each property to be assessed, along with the amount of the special assessment lien to be levied against the benefitted property, may be ascertained at the office of the Clerk. In addition to the published notice described above, the City Manager shall cause to be mailed at least 15 calendar days prior to the hearing a copy of the notice by first class mail to each property owner proposed to be assessed. Notice shall be mailed to each property owner at such address as is shown on the tax rolls or such other source or sources as the Utilities Director or Clerk deems reliable. The failure of the City Manager to mail the notice shall not constitute a valid objection to the approval of the preliminary assessment roll. Notice shall be deemed mailed upon delivery thereof to the possession of the U.S. Postal Service. All objections shall be made either in writing, filed with the City Manager at or before the time or adjourned time of the hearing, or orally at the time of the hearing. The City Manager or the Clerk may provide proof of the notice by affidavit.
(j) At the time and place stated in such notice, the Council shall meet and receive the objections of all interested persons as stated in the notice. The Council may adjourn the hearing from time to time. After the completion thereof the Council shall adopt the final resolution which shall either annul or sustain or modify in whole or part the preliminary assessment as indicated on the preliminary assessment roll, either by approving the preliminary assessment and the levy of a special assessment lien against the benefitted property, against any or all lots or parcels described therein or by cancelling, increasing (provided the increase does not exceed the cost provided in the tentative assessment roll, plus any additional cost described in subsection (g) of this section) or reducing the same, according to the special benefits which the Council shall decide each lot or parcel has received or will receive on account of the improvements. If any property which may be chargeable under this section shall have been omitted from the preliminary assessment roll or if the preliminary assessment shall not have been made against it, the Council may, upon compliance with the procedures set forth in this section, provide for the assessment of the omitted property. The Council shall not confirm and levy any special assessment lien in excess of the special benefits to the property assessed, and the special assessment so confirmed and the special assessment lien to be levied by the adoption of the final resolution shall be in proportion to the special benefits. Upon adoption of the final resolution, the preliminary assessment roll shall become the assessment roll. The final resolution shall be the final adjudication of the issues presented including the levy and lien of the special assessments, and shall provide for the rate of interest which the special assessments shall bear. Forthwith after adoption of the final resolution, the assessment roll shall be delivered to, and kept by, the Clerk and the final resolution shall be promptly recorded by the City Attorney in the official records book in the Office of the Clerk of Lee County, Florida. The special assessments so made shall be final and conclusive as to each lot or parcel assessed and the adoption of the final resolution shall be the final adjudication of the issues presented unless proper steps be initiated within 20 days in a court of competent jurisdiction to secure relief; provided, however, issues adjudicated in the approving resolution may not be disputed except as provided in subsection (e) of this section. If the special assessment against any property shall be sustained or reduced or abated by the court, the Clerk shall note that fact on the assessment roll opposite the description of the property affected thereby. The amount of the special assessment against any lot or parcel which may be reduced or abated by the court, unless the special assessment upon the entire assessed area be reduced or abated, may by resolution of the Council be made chargeable against the applicable assessed area at large or, at the discretion of the Council, a new assessment roll may be prepared and approved in the manner hereinabove provided for the preparation and the approval of the original assessment roll.
(k) (1)
Except as otherwise provided by resolution of the Council, no prepayments shall be accepted prior to adoption of the final resolution. Thereafter, any prepayments shall be made only upon payment of applicable interest, including interest included as a cost of the related improvement, at the office of the Clerk. The Council, by resolution, may determine the time during which prepayments may be made and the amount of interest and premium payable at the time of a prepayment. If not prepaid, all special assessments shall be payable in equal principal installments, with interest on the balance at the rate set by the final resolution, or, if bonds are issued pursuant to this article, and except as otherwise provided in § 19-109 hereof, at a rate not to exceed 2% above the true interest cost at which the bonds are sold (provided the true interest cost may include any ongoing expenses related to the bonds or collection of the assessments), subject to the provisions of subsection (m) of this section, from the date the final resolution is adopted or such other date as the Council may by resolution provide, payable in each of the succeeding number of years which the Council shall determine by resolution, not exceeding 20; provided, however, that the Council may provide by resolution that any special assessment may be paid at any time before due, together with any applicable prepayment premium and interest accrued thereon to the date of payment or the later date as shall be determined by the Council by resolution, if the prepayment shall be permitted by the proceedings authorizing any bonds or other obligations for the payment of which the special assessments have been pledged.
(2) All special assessments and installments thereof shall constitute a lien upon the property so assessed from the date the assessment roll is approved, by the adoption of the final resolution, of the same nature and to the same extent as the lien for general county and municipal taxes falling due in the same year or years in which the assessments or installments thereof fall due. The lien shall be superior in dignity to all other liens, titles and claims, until paid. Any special assessment or installment not paid when due shall be collectible with such interest and with reasonable costs and expenses incurred by the city and its agents, including reasonable attorney fees, in the collection of the delinquent assessments or as a result of the delinquent assessments (including interest costs paid for draws on a credit facility), by the city or its agents as described in subsection (k)(3) of this section.
(3) The city shall have the right to appoint an agent, in addition to the City Attorney, to foreclose and collect all delinquent assessments in the manner provided by law. If the owner of any lot or parcel of land assessed pursuant to this article shall be delinquent in the payment of any special assessment for a period of 30 days, the city or its agent may declare the entire unpaid balance of the special assessment to be in default and cause the delinquent property to be foreclosed in the same method now or hereafter provided by law for the foreclosure of mortgages on real estate, or otherwise as provided by law. All costs, fees and expenses, including reasonable attorney fees, related to any foreclosure action as described in subsection (k)(2) of this section shall be borne by the delinquent property owner.
(4) If prior to any sale of the property under decree of foreclosure in the proceedings, payment is made of the installment or installments which are shown to be due under the provisions of the final resolution, and by this subsection (k), and all costs, fees and expenses of the city and its agent, as a result of the delinquent assessment, including reasonable attorney fees and costs for draws on a credit facility, the payment, at the option of the city, shall have the effect of restoring the remaining installments to their original maturities as provided by the resolution passed pursuant to this subsection (k) and the proceedings shall be dismissed.
(5) It shall be the duty of the city and its agent, if any, to enforce the prompt collection of special assessments by the means herein provided, and such duty may be enforced at the suit of any holder of bonds issued under this article in a court of competent jurisdiction by mandamus or other appropriate proceedings or action.
(6) The city may join in one action the collection of special assessments against any or all property assessed in accordance with the provisions hereof. All delinquent property owners whose property is foreclosed shall pay fees, costs and expenses incurred by the city and its agents, including reasonable attorney fees, in collection of the delinquent assessments and any other costs incurred by the city as a result of the delinquent assessments (including costs paid for draws on a credit facility), and the same shall be collectible as a part of or in addition to, the costs of the action.
(7) At the sale pursuant to decree in any such action, the city may be the purchaser to the same extent as an individual person or corporation. Property so acquired by the city may be sold or otherwise disposed of, the proceeds of the disposition to be placed in the fund as provided by any ordinance or resolution authorizing the issuance of the bonds.
(l) If special assessments made under the provisions of this article to defray the costs of the project shall be deemed by the Council to be inadequate to meet the obligation owed to bondholders and to pay fees required for credit enhancement on the bonds, if any, the Council may adjust the payment period of and the rate of interest on installment payments of the assessment so that payments of special assessments shall be sufficient to satisfy the contractual obligation owed to bondholders and the provider of the credit enhancement. However, the adjustment shall not have the effect of increasing the special assessment of any property, including the effect of increasing the amount of special assessment of any property in proportion to the amount of benefits conferred on that property. Further, the Council in adjusting the interest rates and the period of payment of special assessments, shall follow the provisions of this section providing for notice and hearing to interested persons and providing for passage of resolutions establishing special assessments.
(m) If any special assessment made under the provisions of this article 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 Council shall be satisfied that any such special assessment is so irregular or defective that the same cannot be enforced or collected, or if the Council shall have omitted to include any property on the assessment roll which properly should have been so included, the Council shall take all necessary steps to cause a new special assessment to be made against any property benefitted by any project, following as nearly as may be practicable the provisions of this article and in case the second special assessment shall be annulled, the Council may obtain and make other special assessments until a valid special assessment shall be made.
(n) The Council may pay out of any special fund that may be provided for that purpose such portion of the costs of any project as it may deem proper.
(o) Any informality or irregularity in the proceedings in connection with the levy of any special assessment under the provisions of this article shall not affect the validity of the same after the confirmation thereof, and any special assessment as finally approved and confirmed shall be competent and sufficient evidence that the special assessment was duly levied, that the special assessment was duly made and adopted, and that all other proceedings adequate to such special assessment were duly had, taken and performed as required by this article; 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 (o), any party objecting to a special assessment imposed pursuant to this article must file an objection with a court of competent jurisdiction within the time periods prescribed herein.
(p) The Council may, by resolution, provide a procedure by which the lien of a special assessment on property may be apportioned between subdivided parcels of such property. The Council may establish a different procedure of apportioning a special assessment lien for each assessed area. The Council shall not establish a procedure which has a material adverse effect on the security for bonds issued to finance the project related to the special assessments.
(Ord. 63-89, 10-10-1989; Ord. 44-11, 8-22-2011) (Ord. 63-89, 10-10-1989; Ord. 44-11, 8-22-2011) (Ord. 63-89, 10-10-1989; Ord. 49-96, 9-24-1996; Ord. 44-11, 8-22-2011) (Ord. 63-89, 10-10-1989; Ord. 49-96, 9-24-1996; Ord. 44-11, 8-22-2011) (Ord. 82-88, 9-14-1988) (Ord. 63-89, 10-10-1989; Ord. 44-11, 8-22-2011) (Ord. 63-89, 10-10-1989; Ord. 49-96, 9-24-1996; Ord. 44-11, 8-22-2011) (Ord. 82-88, 9-14-1988; Ord. 63-89, 10-10-1989; Ord. 49-96, 9-24-1996; Ord. 44-11, 8-22-2011) (Ord. 82-88, 9-14-1988) (Ord. 82-88, 9-14-1988) (Ord. 85-87, § 1, 11-23-1987)
