Pomona Municipal Code § 50-491 Contesting of validity of an assessment

This article may be referred to as the "City of Pomona Commercial Improvement District Ordinance."

(Ord. No. 4086, § 1, 6-4-2007)

The City Council of Pomona finds and declares all of the following:

(a) Real properties and/or businesses located and operating within commercial and other zones of the City of Pomona are economically disadvantaged, underutilized and unable to attract customers due to inadequate facilities, services, and activities in such area.

(b) It is in the public interest to promote the economic revitalization and physical maintenance of the commercial districts within the City of Pomona in order to create jobs, attract new businesses, and prevent the erosion of the commercial districts.

(c) It is of a particular local benefit to fund commercial related improvements, maintenance, and other activities through the levy of assessments upon the real properties and/or businesses that benefit from those improvements.

(d) Assessments levied for the purpose of providing improvements and promoting activities that benefit real properties and/or businesses are not taxes for the general benefit of the City of Pomona, but are assessments for the improvements and activities which confer special benefits upon the real properties and/or businesses for which the improvements and activities are provided.

(Ord. No. 4086, § 1, 6-4-2007)

Whenever the public interest or convenience may require, the City Council of the City of Pomona may assist specifically defined and boundaried commercial districts within the City of Pomona in the formation of commercial improvement districts. The city shall determine and declare the commercial improvement district receives special benefit from the improvements, maintenance and activities, including all expenses incurred incidentally thereto, upon the commercial interest, or lots or parcels of real property on which such commercial interest occurs, in proportion to the estimated special benefit to be received by the commercial interest, or lot or parcel, as specified in the management plan.

(Ord. No. 4086, § 1, 6-4-2007)

The procedures established in this article shall be additional or alternative to any other procedure established by ordinance or state law. The election to proceed under this article shall be expressed in the resolution of intention to form the district which shall be referred to as a commercial improvement district ("CID" or "district").

(Ord. No. 4086, § 1, 6-4-2007)

Activities which benefit real property and/or businesses located in the district, means, but is not limited to, all of the following:

(1) Promotion of public events which benefit real properties and/or businesses in the district;

(2) Furnishing of music in any public place within the district;

(3) Promotion of tourism to the district;

(4) Marketing and economic development, including promotion of new and existing businesses through improvement, retention and recruitment; and

(5) Providing security, sanitation, graffiti removal, street and sidewalk cleaning and other municipal services supplemental to those normally provided by the municipality.

Advisory association shall mean a private nonprofit entity that is under contract with the city to administer or implement activities and improvements specified in the management plan. An advisory association may be an existing nonprofit entity or a newly formed nonprofit entity. The city council may appoint members to the advisory association prior to adoption of the resolution of intention to create the area, so that the advisory association may recommend the provisions of the resolution of intention. The city council may set membership of the advisory association board to persons paying the assessments under this part and may set the number of members as deemed necessary at time of adoption of resolution and at such time prior to the adoption of the CID.

(1) The advisory association shall comply with the Ralph M. Brown Act (Chapter 9 (commencing with section 54950) of Part I of Division 2 of Title 5 of the Government Code), at all times when matters are within the subject matter of the districts are heard, discussed, or deliberated and with the California Public Records Act (Chapter 3.5 (commencing with section 6250) of Division 7 of Title 1 of the Government Code), for all documents relating to activities of the district. Notwithstanding the foregoing, except for the requirements pertaining to open meetings and documents relating to activities of the district being writing subject to the Public Records Act, an advisory association is a private entity and may not be considered to be a public entity for any purpose, nor may its board members, employers of board members, nor staff of the association be considered to be public officials for any purpose.

(2) Notwithstanding the forgoing, prior to taking office as a member of the advisory association, each April 1 thereafter while a member thereof, and upon leaving the advisory association, board members shall file with the city clerk a statement of economic interest, under penalty of perjury. Such statement of economic interest shall be provided by the city clerk. Such statement shall identify the occupations, employers, and interests in businesses and real property owned by that member and by the employer of that member within the CID over the previous 12 months. In no event shall that member be required to provide any information regarding the primary place of residence of i) that member or ii) any real person associated with the member's employer.

(3) No member of the advisory association may vote on an issue where such member or that member's employer is under consideration for a contract for goods or services. Nothing in the foregoing sentence or any other provision shall preclude a member or a member's employer from providing goods or services to the advisory association, or from receiving any benefit from CID activities, improvements, or maintenance.

Assessee means a real property and/or business which will have a special benefit conferred upon them and upon which an assessment will be imposed.

Improvement means the acquisition, construction, installation, lease, maintenance, modification, repair, rehabilitation, or removal of any tangible property with an estimated useful life of five years or more including, but not limited to, the following:

(1) Parking facilities;

(2) Benches, booths, kiosks, display cases, pedestrian shelters and signs;

(3) Trash receptacles and public restrooms;

(4) Lighting and heating facilities;

(5) Decorations;

(6) Landscaping and planting areas;

(7) Closing, opening, widening, or narrowing of existing streets;

(8) Facilities or equipment or both, to enhance security of persons and property within the district;

(9) Structures on public land;

(10) Ramps, sidewalks, plazas, conference centers, town centers or pedestrian malls;

(11) Statuary, fountains and other ornamental structures and facilities; and/or

(12) Facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, including, but not limiting to, grading, clearing, removal of debris, the installation or construction of curbs, gutters, walls, sidewalks or paving, or water, irrigation, drainage or electrical facilities;

Maintain or maintenance means the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of any improvement, including:

(1) Repair, removal, or replacement of any part of an improvement;

(2) Providing for the life, growth, health and beauty of landscaping including cultivation, irrigation, trimming, spraying, fertilizing, or treating for disease or injury;

(3) The removal of trimmings, rubbish, debris and other solid waste; and

(4) The cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti.

(Ord. No. 4086, § 1, 6-4-2007)

Upon presentation to the city clerk of a written petition, signed and acknowledged, by business and/or property owners in the proposed district who will pay more than 30 percent of the assessments proposed to be levied, the city council may initiate proceedings to form a CID by the adopting of a resolution expressing its intention to form a CID. The petition of property owners shall include a management plan.

(Ord. No. 4086, § 1, 6-4-2007)

The management plan to be submitted before the city council can take any action on the establishment of a CID under this article shall contain all of the following:

(a) The name of the proposed district;

(b) An assessment diagram of the proposed district in sufficient detail to locate each parcel of property and/or business within the proposed district;

(c) A description of the boundaries of the district, including the boundaries of any benefit zones, proposed for the establishment or extension of the district in a manner sufficient to identify the lands included. Under no circumstances shall the boundaries of a proposed district overlap with the boundaries of another existing district created pursuant to this part. Nothing in this part shall require that the boundaries of a district created pursuant to this part to be contiguous. Nothing in this part prohibits the boundaries of an district created pursuant to this part to overlap with assessment districts established pursuant to other provisions of law including, but not limited to, the Parking and Business Improvement District Law of 1989 or the Business Improvement District Law of 1994;

(d) The improvements and activities proposed for each year of operation of the district and the maximum cost thereof;

(e) The total annual amount proposed to be expended for improvements, maintenance and operations;

(f) The proposed source or sources of financing including the proposed method and basis of levying the assessment in sufficient detail to allow each property or business owner to calculate the amount of the assessment to be levied against his or her property or business;

(g) The time and manner of collecting the assessments;

(h) The specific number of years in which assessments will be levied. In a new district, the maximum number of years shall be ten per term, or such other period as established by council at time of creation of the district. Upon renewal, a district shall have a term not to exceed 40 years. Notwithstanding these limitations, a district created to finance capital improvements with a lease or other agreement may levy assessments until the maximum maturity of the lease or other agreement. The management plan may set forth specific increases in assessments for each year of operation of the district. The increases set forth shall not be considered an increased assessment according to the provisions of Article XIII D of the Constitution of the State of California; and

(i) Any proposed rules and regulations to be applicable to the district.

(Ord. No. 4086, § 1, 6-4-2007; Ord. No. 4089, § 1, 7-2-2007; Ord. No. 4105, § 1, 6-2-2008)

(a) The city council shall identify all assessees which will have a special benefit conferred upon them and upon which an assessment will be imposed. The proportionate special benefit derived by each identified assessee shall be determined in relationship to:

(1) The entirety of the capital cost of an improvement;

(2) The maintenance and operation expense of an improvement; and

(3) The cost of the service being provided.

No assessment shall be imposed on any assessee which exceeds the reasonable cost of the proportional special benefit conferred on that assessee. Assessees within a district that are owned or used by any governmental agency, the State of California, or the United States shall not be exempt from assessment unless the city council finds that it has been demonstrated, by clear and convincing evidence, that such publicly owned real property will in fact receive no special benefit.

(b) All assessments must be supported by a detailed engineer's report prepared by a registered professional engineer certified by the State of California. The engineer's report may be incorporated in the management plan.

(c) The amount of the proposed assessment for each identified assessee shall be calculated.

(1) In the event of a parcel based assessment, the recorded owner of each parcel shall be given written notice by mail of the proposed assessment, the total amount thereof chargeable to the entire district, the amount chargeable to the owner's particular parcel, the duration of such payments, the reason for such assessment and the basis upon which the proposed assessment was calculated together with the date, time and location of a public hearing on the proposed assessment.

(2) In the event of a business based assessment, the identified owner of each business shall be given written notice by mail of the proposed assessment at the principal place of business within the district to be assessed, the total amount thereof chargeable to the entire district, the amount chargeable to the owner's particular business, the duration of such payments, the reason for such assessment and the basis upon which the proposed assessment was calculated together with the date, time and location of a public hearing on the proposed assessment.

(d) Each notice shall also include, in a conspicuous place thereon, a summary of the procedures applicable to the completion, return and tabulation of the ballots required including a disclosure statement that the existence of a majority protest will result in the assessment not be imposed.

(e) Each such notice mailed to owners of identified assessees within the district shall contain a ballot which includes the city's address for receipt of any such ballot once completed by any assessee receiving such notice whereby each such assessee may indicate his or her name, reasonable identification or the parcel and support or opposition to the proposed assessment.

(f) The city council shall conduct a public hearing upon the proposed assessment not less than 45 days after mailing the notice of the proposed assessment to each identified assessee. At the public hearing, the agency shall consider all protests against the proposed assessment and tabulate the ballots. The city council shall not impose an assessment if there is a "majority protest." A "majority protest" exists if, upon the conclusion of the hearing, ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the assessment. In tabulating the ballots, the ballots shall be weighted according to the proposed proportional financial obligation of the assessee.

(Ord. No. 4086, § 1, 6-4-2007)

When presented with a written petition, signed and acknowledged, of the business and/or property owners in the proposed district who will pay more than 30 percent of the assessments proposed to be levied, and the management plan, the city clerk shall prepare and submit a "preliminary report" in writing to the city council before the city council may take any action on such resolution of intention. The preliminary report shall include the following:

(a) Recommend that the proceeding be commenced as requested in the petition;

(b) Designate the plans and specifications of the proposed maintenance, improvements and activities for the proposed district;

(c) An estimate of the cost and expenses of said work for each year during which the proposed work will be done;

(d) An engineer's report stating the district establishment is consistent with the provisions of Article XIII D of the Constitution of the State of California in that each lot, parcel, or business interest within said district is being assessed in proportion to the estimated benefit to be received; and

(e) An assessment diagram showing the boundaries of the proposed assessment district and each lot, parcel or business within said district proposed to be assessed.

Nothing shall obligate the city to bear any cost in preparation of the engineer's report or the assessment diagram of the boundaries of the proposed district. Such costs shall be borne by the petitioning owners in support of the district. Such costs may be reimbursed to such petitioning owners from assessment proceeds upon recommendation of the advisory association by inclusion in the proposed annual budget, and upon approval by the city council. Such reimbursement shall be allowed at any time after completion of the first year after formation.

(Ord. No. 4086, § 1, 6-4-2007)

Before the city council can establish a CID pursuant to this article, the city council shall pass a resolution declaring its intention to do so. Such resolution, in addition to all other matters it is herein required to contain, shall briefly describe the proposed improvements, state the period of time, which shall not exceed 40 years, for which the proposed improvements are to be made, state the period of time, which shall not exceed 40 years, for which the assessment shall be levied, and contain a description of the district to be benefited thereby and to be assessed to pay the costs and expenses thereof. The resolution of intention shall further do all of the following:

State that a CID is proposed to be established pursuant to this article and describe the boundaries of the proposed district and boundaries of each separate benefit zone to be established within the district. The boundaries may be described by reference to the assessment diagram and description contained in the preliminary report of the city clerk on file in the office of the city clerk;

State the name of the proposed district;

State the type or types of improvements and activities proposed to be funded by the levy of assessments on assessees within the district, including any improvements to be acquired;

State the amount of the proposed assessment for the entire district, the amount chargeable to the owner's particular parcel or business, the duration of the payments, the reason for such assessment and the basis upon which the proposed assessment was calculated;

State the date, time and location of a public hearing on the proposed assessment;

Include a ballot as described in section 50-482(e);

State, in a conspicuous place, a summary of the procedures applicable to the completion, return and tabulation of the ballots, including a disclosure statement that the existence of a majority protest will result in the assessment not being imposed;

State that the public hearing the testimony of all interested persons for or against the establishment of the district, the boundaries of the district, or the furnishing of specified types of improvements or activities will be heard;

Refer to the preliminary report of the city clerk on file in the office of the city clerk; and

State the manner of collection of the assessment.

(Ord. No. 4086, § 1, 6-4-2007; Ord. No. 4089, § 2, 7-2-2007; Ord. No. 4105, § 2, 6-2-2008)

Upon a demonstrated show of support, through petition, by the real property and/or business owners who will pay at least 30 percent of the proposed assessment, the city clerk will bring the issue of the proposed district to the city council. The city council may approve a resolution of intention to continue with the formation process or deny the petition at that time. Upon denial, petitioning parties may resubmit their proposal after 180 days.

(Ord. No. 4086, § 1, 6-4-2007)

Notice of the proposed district shall be given as follows:

(a) A complete copy of the resolution of intention shall be mailed by first-class mail to each owner of a property or business in the proposed district, and to each local chamber of commerce and business organization known by the city council to be located within the proposed district, no later than 45 days before the public hearing; and

(b) A complete copy of the resolution of intention shall be published in a newspaper of general circulation in the city once, at least seven days before the public hearing.

(Ord. No. 4086, § 1, 6-4-2007)

(a) At any time prior to the date set for hearing protests, any person affected by the proposed assessment may make a written protest stating his or her objections thereto. Such protests must contain the information contained in the ballot mailed to the property owner in sufficient detail to allow the city clerk to:

(1) Identify the owner,

(2) Identify the amount of the proposed assessment, and

(3) Identify the parcel number (if a property based assessment), or the property address and name of the business (if a business based assessment).

(b) At the time set for hearing protests, or any time to which the hearing may be continued, the city council shall proceed to hear and pass up on all such protests. The city council shall not impose an assessment if there is a "majority protest." A "majority protest" exists if, upon the conclusion of the hearing, the ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the assessment. The ballots shall be weighted in proportion to the assessment upon the affected property.

(Ord. No. 4086, § 1, 6-4-2007)

Not earlier than 45 days after the adoption of the resolution of intention to establish the proposed district, and if there is no majority protest as described in section 50-488, the city council may adopt a resolution consistent with the resolution of intention which shall establish the district and levy the assessment or if the district has been previously established, levy a new assessment. The adoption of the resolution establishing the district and levying the assessment, or if the district has been previously established, levying a new assessment, and recordation of the notice and assessment diagram pursuant to section 50-490, shall constitute the levy of an assessment in each of the fiscal years referred to in the management plan.

The resolution establishing the district shall contain all of the following:

(a) The management plan;

(b) The number, date of adoption, and title of the resolution of intention;

(c) The time and place where the public hearing was held concerning the establishment of the district or the levying of a new assessment;

(d) A determination regarding any protests received;

(e) A statement that a CID has been established;

(f) A statement that the improvements and activities to be provided in the district will be funded by the levy of assessments. The revenue from the levy of assessments within an district shall not be used to provide improvements or activities outside the district or for any purpose other than the purposes specified in the resolution of intention, as modified by the city council at the hearing concerning the establishment of the district; and

(g) A finding that the property within the CID receive special benefit from the improvements and activities funded by the assessment to be levied.

(Ord. No. 4086, § 1, 6-4-2007)

Within 15 days following adoption of the resolution establishing the district and levying the assessment, the city clerk shall record a notice and assessment diagram describing the CID pursuant to California Streets and Highways Code Division 4.5 (commencing with Section 3100). All the provisions of that Division 4.5 apply to the district established pursuant to this article.

(Ord. No. 4086, § 1, 6-4-2007)

The validity of an assessment levied under the provisions of this article shall not be contested in any action or proceeding unless the same is commenced within 30 days after the time said assessment is levied, and any appeal from a final judgment in such action or proceeding must be perfected within 30 days after entry of such judgment.

(Ord. No. 4086, § 1, 6-4-2007)

The city may advance funds for the first quarter of a new district so that the district may commence work prior to the initial collection of the assessments. The funds advanced will not exceed one quarter of the total assessment for the first year. The funds advanced will then be deducted from the first year's assessment collections.

(Ord. No. 4086, § 1, 6-4-2007)

The collection of assessments levied pursuant to this article shall be made at the time and in the manner set forth by the city council in the resolution of intention. The assessment may be collected at the same time and in the same manner as for the ad valorem property tax, and may provide for the same lien priority and penalties for delinquent payment.

(Ord. No. 4086, § 1, 6-4-2007)

(a) Before adopting a resolution establishing the district, the city council shall appoint an advisory association which shall make a recommendation to the city council on the expenditure of revenues derived from the levy of assessments, on the classification of properties applicable, and on the method and basis of levying the assessments. The city council may designate existing advisory boards, associations, or commissions to serve as the advisory association for the district or may create a new advisory association for that purpose. At least one member of the advisory association shall be a business licensee within the district who is not also a property owner within the district, unless no such licensee shall be assessed.

Any advisory association appointed by the city council pursuant to subsection (a) of this section shall comply with provisions of the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division of Title 5 of the Government Code).

(Ord. No. 4086, § 1, 6-4-2007)

(a) The advisory association shall cause to be prepared a report of each fiscal year, except the first year, for which assessments are to be levied and collected to pay the costs of the improvements and activities described in the report. The report may propose changes, including, but not limited to, the boundaries of the CID or any benefit zones within the district, the basis and method of levying the assessments, and any changes in the classification of a real property and/or business, if a classification method is used.

(b) The report shall be filed with the city clerk and shall refer to the CID by name, specify the fiscal year to which the report applies, and with respect to that fiscal year, shall contain all of the following information:

(1) Any proposed changes in the boundaries of the CID or in any benefits zones within the district;

(2) The improvements and activities to be provided for that fiscal year;

(3) An estimate of the cost of providing the improvements and the activities for that fiscal year;

(4) The method and basis of levying the assessment in sufficient detail to allow each real property or business owner to estimate the amount of the assessment to be levied against his or her property for that fiscal year;

(5) The amount of any surplus or deficit revenues to be carried over from a previous fiscal year; and

(6) The amount of any contributions to be made from sources other than assessments levied pursuant to this part.

(c) The city council may approve the report as filed by advisory association or may modify any particular contained in the report and approve it as modified. Any modification shall be made pursuant to section 50-489, except that any proposed increase in the amount of the levy above levels previously noticed and approved must be approved as provided in sections 50-482 through 50-489. The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessment.

(Ord. No. 4086, § 1, 6-4-2007)

(a) Request for modification of management plan.

(1) The advisory association may, at any time, request that the city council modify the management plan. Any modification of the management plan shall be made pursuant to this section.

(b) Modification by adoption of resolution—Written request of advisory association—Hearing.

(1) Upon the written request of the advisory association, the city council may modify the management plan by adopting a resolution after holding hearings on the proposed modification pursuant to sections 50-482 and 50-489;

(2) The city council may adopt a resolution of intention which states the proposed modification prior to the public hearing required by this section. The public hearing shall be held not more than 60 days after the adoption of the resolution of intention. Notice of the public hearing shall be provided in section 50-487. The public hearing shall be conducted as provided in section 50-488.

(c) Modification of improvements and activities funded—Adoption of resolution—Hearing.

(1) The city council may modify the improvements and activities to be funded with the revenue derived from the levy of the assessments by adopting a resolution determining to make the modifications after holding a public hearing on the proposed modifications. Notice of the public hearing and the proposed modifications shall be published as provided in section 50-487.

(2) The public hearing shall be conducted as provided in section 50-488.

(d) Subsequent modification of resolution—Reflection in notices and assessment diagrams. Any subsequent modification of the resolution shall be reflected in subsequent notices and assessment diagrams recorded pursuant to Division 4.5 (commencing with Section 3100 of the California Streets and Highways Code).

(Ord. No. 4086, § 1, 6-4-2007)

(a) Any district established or extended pursuant to the provisions of this article, may in either of the following circumstances, be disestablished by resolution of the city council if there is no indebtedness, lease agreement or other obligation outstanding or unpaid which was incurred to accomplish any of the purposes of the district:

(1) If the city council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district, it shall notice a hearing on disestablishment. The notice and hearing shall be held pursuant to sections 50-487 and 50-488.

(2) During the operation of the district, there shall be a 30-day period each year in which the assessed property owners may request disestablishment of the district. The first such period shall begin one year after the date of establishment of the district and shall continue for a 30-day period. The next such 30-day period shall begin two years after the date of the establishment of the district. Each successive year of operation of the district shall have such a 30-day period. Upon the written petition of the owners of real property in the district who pay 30 percent or more of the assessments levied, the city council shall notice a hearing on disestablishment. The notice and hearing shall be held pursuant to sections 50-487 and 50-488.

(b) The city council shall adopt a resolution of intention to disestablish the district prior to the public hearing required by this section. The resolution shall state the reason for the disestablishment, shall state the time and place of the public hearing, and shall contain a proposal to dispose of any assets acquired with the revenues of the assessments levied within the property and business improvement district. The public hearing shall be held not less than 45 or more than 90 days after the adoption of the resolution of intention. Notice of the public hearing shall be published as provided in section 50-487.

(c) Upon the disestablishment of an district, any remaining revenues derived from the levy of assessments, or any revenues derived from the sale of assets acquired with the revenues, shall be refunded to the owner of the real property and/or business then located and operating within the district in which assessments were levied by applying the same method and basis that was used to calculate the assessments levied in the fiscal year in which the district was disestablished. If the disestablishment occurs before an assessment is levied for the fiscal year, the method and basis that was used to calculate the assessment levied in the preceding fiscal year shall be used to calculate the amount of refund, if any.

(d) Notice of the disestablishment of a district shall be published once in a newspaper of general circulation in the city, not later than 15 days after the resolution disestablishing the district is adopted.

(Ord. No. 4086, § 1, 6-4-2007)