San Rafael Municipal Code Ch. 11.16 Special Assessment Proceedings

This chapter may be cited as "San Rafael Assessment Procedure Ordinance."

(Ord. 590).

All work, improvements and acquisitions provided for in this chapter are found by the Council of the City of San Rafael to be, and are hereby declared to be, a municipal affair, and no general law of the State of California, or other law of said State, shall be applicable thereto, except insofar as the procedure of any particular law shall be adopted in and by this chapter. Where the procedure of any general law is adopted for such work and improvement or acquisition by this chapter, or both, the provisions of such law as now in effect or hereafter amended or codified shall be applicable thereto.

(Ord. 590).

This chapter shall not apply to any proceedings in which the resolution or ordinance of intention was adopted prior to September 7, 1954, but in such case the work done or proposed to be done, or acquisition made or proposed to be made, shall be completed in accordance with the statute under which such proceedings were instituted. In pending proceedings for acquisition or improvement, or both, where the ordinance or resolution of intention has not yet been adopted, any and all such proceedings shall be consolidated with the procedure authorized under this chapter, and after September 7, 1954 all proceedings therein shall be taken pursuant to the procedure authorized in this chapter.

(Ord. 590).

The procedures provided for in this chapter are alternative and the City Council of the City of San Rafael may operate by any one or all, or any combination thereof, or may operate by any other procedure authorized by law.

(Ord. 590).

The provisions of this chapter shall be controlling over the provisions of any general law in conflict herewith. When the City Council elects to take proceedings pursuant to the provisions of the Improvement Act of 1911, it shall be vested with all the powers, rights, and authority for procedure provided in said act or general law in addition to the powers granted by this chapter, and shall be authorized to do all things and take all proceedings authorized therein except as modified, prohibited or changed by this chapter. The rights shall be cumulative and supplemental. The words "act" or "general law" shall mean an act of the legislature of the State of California and, unless herein otherwise provided, shall mean said act or law as now or hereafter amended or codified.

(Ord. 590).

Where the word "city" is used in any of the general laws referred to in this chapter, the same shall be deemed to mean the City of San Rafael. Where the word "act" is referred to in any of the general laws of the State of California referred to in this chapter, the same shall be deemed to be this chapter. Where a power is given in and by any of said acts, the said power shall thereby be conferred upon the City of San Rafael. The public officials referred to in any of said acts are the public officials of the City of San Rafael, and the matters and things therein mentioned with reference to a city shall be deemed to be and apply to the City of San Rafael. Wherever the word "ordinance" is referred to in any of said acts, the same shall be deemed to be a resolution. Where any of said acts require and provide for the adoption of an ordinance, the same shall be deemed to provide for the adoption of a resolution, and the adoption of a resolution shall be deemed to be full and sufficient compliance therewith.

(Ord. 590).

One or more acquisitions and improvements or acquisitions or improvements may be had in a single proceedings under this chapter and any assessment districts created in any one proceedings. If more than one district is created, they need not be contiguous.

(Ord. 590).

In the event that any proceeding had and taken pursuant to this chapter shall be adjudged to be a state affair, it is hereby declared to be the intention of the City Council of the City of San Rafael that said proceedings were had and taken pursuant to the general law or laws specified in the resolution of intention or mentioned in the sections of this chapter mentioned in said resolution of intention.

(Ord. 590).

Whenever the public interest or convenience requires, the legislative body of the City of San Rafael may:

(1) Acquire or install any or all of the works and improvements mentioned in the Improvement Act of 1911.

(2) Acquire any or all of the improvements mentioned in the Street Opening Act of 1903.

(3) Do all of the work provided for in the Street Improvement Act of 1913.

(4) Make the acquisitions and improvements authorized by the provisions of the Municipal Improvement Act of 1913.

(5) Make the acquisitions and improvements authorized by the Vehicle Parking District Law of 1943.

(6) Acquire by gift, purchase, contract or eminent domain proceedings, land, right of ways and easements necessary for such works, improvements and acquisitions.

(7) Make any other improvements or do any other work of a local nature.

(Ord. 590).

The words "acquisition and improvement," when used in this chapter, refer to that which is done, that which is to be done, or that which may be done under proceedings had and taken under this chapter, shall be understood to be generic and as being employed for the purpose of brevity, and shall refer to and include any or all of the things comprehended in the meaning of the words "acquire" and "improve." The term "work or improvement," whether used singly or in combination, means and includes any work which is authorized to be done or any improvement which is authorized to be made by this chapter, as well as the construction, reconstruction and repair of all or part of any such work or improvement.

(Ord. 590).

All streets, places, public ways, or property, or right of ways, or tidelands, or submerged lands owned by the City of San Rafael, open or dedicated to public use, and any property for the immediate possession and use of which, as right of ways required for public use, an order has been obtained in compliance with the provisions of Section 14 of Article I of the Constitution of the State of California, and all tidelands or submerged lands to which all the right, title and interest of the state have been granted to the City of San Rafael, are open public streets, places, public ways, or property or right of ways owned by the city, for the purposes of this chapter, and the City Council of the City of San Rafael may establish and change the grades of the respective ways, properties, and rights of way hereinbefore enumerated and fix the width thereof and is hereby invested with jurisdiction to order to be done therein, over or thereon, either singly or in any combination thereof, any of the work mentioned in this chapter under the proceedings described in this chapter. It is also vested with the power to acquire any of the works mentioned in this chapter and to acquire any land, place, way, easement, right of way, tideland or submerged land for public purposes.

(Ord. 590).

The term "incidental expenses," when referring to proceedings for work, improvement, or acquisition, shall be deemed to mean and shall include:

(1) All incidental expenses authorized by the provisions of the Improvement Act of 1911.

(2) Any other expenses incurred by authority of this chapter or incidental or necessary to the completion of the proceedings or work in the manner herein specified.

(3) In the event acquisition of land, easements or right of ways is involved, either singly or in combination with an improvement, incidental expenses for the acquisition shall be deemed to mean and shall include:

(a) The amounts agreed or contracted to be paid for land, easements or right of ways.

(b) The amounts awarded to the defendants by any judgment of condemnation.

(c) The costs of the defendants in any action of condemnation.

(d) The compensation and expenses of referees, if and as allowed by court.

(e) All other costs of the plaintiff in such action and expenses incurred by it in the trial thereof, including the compensation paid expert appraisers and witnesses.

(f) All expenses necessarily incurred in connection with such proceedings for the publication, mailing and posting of resolutions, notices and orders in any of the proceedings and all process costs and all investigation costs.

(g) All expenses in connection with preparation or procuring of maps, plats, surveys, searches, and certificates of title to the property to be acquired.

(h) The compensation of the attorney or attorneys.

(i) The compensation of the engineer or engineers.

(j) The clerical, stenographic or printing expenses incident to the action or actions and the acquisitions.

(k) The estimated cost of preparing and selling the bonds.

(l) The cost of the City of San Rafael for servicing of said bonds over the period thereof.

(m) Any other expenses incurred by authority of this chapter or incidental or necessary to completion of the acquisition.

(Ord. 590).

The resolution of intention shall specify that it is taken pursuant to the provisions of this chapter which shall apply thereto. Notwithstanding the procedure provided in any law under which proceedings are taken, it shall not be necessary in the resolution of intention to describe the work to be done or acquisition to be had except in general terms. It shall be adequate if the resolution of intention shall refer to the plans for a complete description of the locations in which the work is to be done or to show where the acquisitions are to be made or to show what land is to be acquired. The plans must show the location and nature of the work to be done and must show the location of all land or easements or rights of way to be acquired in the proceedings, and said plans shall govern for all particulars with respect thereto. In all resolutions, notices, orders, and findings or determinations of the City Council subsequent to the resolution of intention, it shall be sufficient to refer to the resolution of intention and the plans and specifications for a detailed description of the work or improvement and of the land, right of ways or easements to be acquired.

(Ord. 590).

Every resolution of intention and every notice of hearing upon the adoption of a resolution of intention, whether said notice is one by publication, posting or mailing, shall, in addition to other matters provided by laws, contain:

(1) Notice that the grades to which the work is to be done are established by the plans and specifications and that any property owner whose property is to be assessed and who wishes to make objection to the proposed grade or proposed modification of grade, must render a protest in writing at the time fixed in the resolution of intention for hearing objections to the proposed work.

(2) Notice that any property owner whose property is to be assessed to pay the costs and expenses of the work and who claims that the nature of the work proposed to be done or that the work as proposed to be done, if completed in accordance with the plans and specifications on file, will cause damage to property, may, at the time fixed in the resolution of intention for hearing objections to the proposed work or acquisition, file a written claim and state in writing the nature of the damage to property which said property owner claims may or will be done as a consequence of the completion of the proposed work, and right to which damage is allowed by the provisions of Section 14 of Article I of the Constitution of the State of California.

A failure to make claim at the time fixed in the resolution of intention for hearing objections to the proposed work or acquisition shall be deemed a waiver of all objections to the proposed grade or proposed change or modification of grade, shall be deemed a waiver of all objections to the nature of the proposed work to be done or acquisition to be made, and shall operate as a bar to any claim for damages or any subsequent action looking to the prevention of the work, or recovery of damages on account of the performance of the work or damages which are a consequence of the nature of the work proposed to be done, and shall operate as a bar for any claim to damage to property or subsequent action based thereon which is permitted or allowed by the provisions of Section 14 of Article I of the Constitution of the State of California.

(Ord. 590).

Whenever any notice, resolution, order or other matter is required to be published, posted or mailed, no step in any proceeding shall be invalidated or affected by any error or mistake or departure from the provisions of this chapter or general law as to the officer or person mailing, posting or publishing the same or procuring the mailing, posting, or publication of the same, provided that notice has actually been given by any one of the methods provided by this chapter or by general law.

(Ord. 590).

Objections may be made to ordering the acquisition or improvement, or both, objection may be made to the grades and claim may be made of consequential damages resulting from the nature of the work to be done, objection may be made to an assessment, the extent of the district, or the legality of any act or proceeding of the City Council of the City of San Rafael or its officers, agents or employees, at or before the hour set for hearing thereon. Anyone not objecting or filing a protest or making a claim within the time herein provided shall be deemed to have consented to the work, improvement, acquisition or act and to have waived any claims of illegality, irregularity or damage.

(Ord. 590).

Protests must be in writing, signed by the owner of the property involved. They must contain a description of the property owned by the signer of the protest sufficient to identify it, shall state the property owner's interest therein, and shall also state the grounds of the protest. Such protests must be filed with the City Clerk at or before the hour set for hearing thereon.

(Ord. 590).

Objections and protests shall specify the ground either of illegality or basis thereof, and no other alleged illegality or basis of protest need be considered by the City Council than that specified in writing.

(Ord. 590).

Notwithstanding the provisions of any general law, the City Council, by the affirmative vote of four-fifths of its members, may find that the public convenience and necessity require the proposed acquisition and improvement or either of them, and may overrule by said four-fifths vote written protests filed in accordance with this chapter by the owners of more than one-half of the area proposed to be assessed to pay for the cost of the work and improvement or acquisition, or both.

(Ord. 590).

At any hearing or any continuance of any hearing, the City Council shall consider and pass upon the protests. It may remedy or correct any irregularity in the proceedings or the work and it may order any acquisition or improvement, or both, to be made and completed according to the plans and specifications and to its satisfaction. Any hearing may be continued by the City Council from time to time. Where any matter has been noticed for hearing and is not heard, it shall be deemed submitted and may be acted upon by the City Council at any subsequent meeting thereof.

(Ord. 590).

Not only property owners but the contractor or any other person or persons who are interested in the work and improvement, or either or both, and who have any objection or claim, shall present such objection, protests or claim in the manner provided in this chapter and in the time provided in this chapter for protests to be made by property owners within the boundaries of the district, and any such objections or claims not made by any such person or persons shall be deemed waived.

(Ord. 590).

Any objections or claims not made within the time and manner herein provided are waived and the property owner or person entitled to object or make claim shall thereafter be estopped from making any such objection or claim.

(Ord. 590).

All decisions, findings and determinations of the City Council upon notice and hearing shall be final and conclusive upon the property owner, the contractor, and any and all persons entitled to appeal to the City Council as to all errors, informalities, omissions and irregularities which might have been avoided or which might have been remedied during the progress of the proceedings or which can be remedied, except illegalities amounting to a want of due process of law.

(Ord. 590).

Notices to pay assessments under the Street Opening Act of 1903, the Street Improvement Act of 1913 or the Municipal Improvement Act of 1913, and any notice confirming an assessment or re-assessment under any general law or this chapter shall have the curative effect of the notice of award under the Improvement Act of 1911 and shall be binding upon all persons entitled to appeal to the legislative body with relation to the matter noticed.

(Ord. 590).

Regardless of the general law under which any work and improvement may be carried out or done or acquired, the Superintendent of Streets or other person authorized to perform his functions shall record a notice of completion as provided in Section 7212 of the Street Improvement Act of 1913, and the date of recording said notice shall constitute completion of the work and improvement with the provisions of this chapter.

(Ord. 590).

This chapter and the general laws made applicable thereby shall be liberally construed in order to effectuate the purpose. No error, irregularity, informality, omission or illegality, and no neglect or omission of any officer, in any procedure taken hereunder, which does not directly affect the jurisdiction of the legislative body to order the work or improvement or acquisition shall void or invalidate such proceeding or any assessment for the cost of any work or acquisition hereunder. The exclusive remedy of any person affected or aggrieved thereby shall be by appeal to the City Council in accordance with the provisions hereof.

(Ord. 590).

No assessment, re-assessment, supplemental assessment, warrant, diagram or bond or proceedings for their levy or issuance shall be held invalid by any court for any error, informality, omission, irregularity, illegality or other defect in the same where the resolution of intention or the notice of improvement has been actually published or posted, or notice thereof mailed as herein provided.

(Ord. 590).

No proceeding for acquisition or improvement, or both, shall be held to be invalid on the ground that the property, easement or right of way upon, in or under which any work or improvement is to be or was done had not been lawfully acquired or dedicated, providing that said property, easement or right of way shall have been lawfully acquired or dedicated, or an order for immediate possession and use thereof shall have been obtained at any time before judgment is entered in any legal action determining the validity of said proceeding.

(Ord. 590).

No action, suit or proceeding to set aside, cancel, void, annul or correct any assessment or re-assessment or to review any of the acts, proceedings or determinations or to question the validity of, or to enjoin the collection of, any assessments, reassessments or bonds shall be maintained by any person unless such action, suit or proceeding shall have been commenced within thirty (30) days after the assessment or acquisition or improvement, or both, shall have been confirmed by the City Council. No action for damages by reason of change of grade and no action for damages by reason of consequential damages to property resulting from the nature of the work done or to be done, shall be maintained by any person unless (1) claim has been filed in accordance with the provisions of this chapter and (2) said action, suit or proceeding shall have been commenced within thirty (30) days after the completion of the work or improvement made in the proceedings. Where such time has expired, no defense of the same nature shall be raised by any person in any action to establish validity or to enforce any remedy.

(Ord. 590).

The City Council or the contractor or the assignee of the contractor may at any time after the adoption of the resolution of intention bring action in the Superior Court of the State of California in and for the County of Marin to determine the validity of the proceedings, contract, assessment or bonds issued or to be issued. The validation proceedings provided for in the Improvement Act of 1911 shall apply to such proceedings.

(Ord. 590).

Whenever it appears that public convenience and necessity require an acquisition and/or improvement and that proceedings should be taken without complying with the provisions of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, a public hearing shall be held on said question of public convenience and necessity and said hearing shall be called and notice of the time and place thereof shall be given in accordance with the provisions of this chapter.

(Ord. 590).

Before adopting any resolution of intention, a resolution of preliminary determination shall be adopted, describing the proposed improvement or acquisition and setting a time and place when and where any and all persons interested may appear and show cause, if any they have, why the Council should not find and determine that the public convenience and necessity require the proposed acquisition or improvement without compliance with said Investigation Act.

(Ord. 590).

Said resolution shall contain a notice of the time and place of hearing. A notice of said time and place of hearing shall be published in one or more issues of a newspaper published and circulated in the city, and a copy shall be posted. Said posting and the first of such publications shall be had at least ten (10) days before said date of hearing. Said resolution and notice of its adoption may be incorporated in the resolution of intention and notice of improvement.

(Ord. 590).

Any person interested may object to undertaking said proceedings without first complying with the provisions of said Investigation Act.

(Ord. 590).

If no protests are made, or when said protests shall have been heard and overruled, the council may adopt a resolution finding and determining that the public convenience and necessity require the proposed improvements and/or acquisitions, and that said Investigation Act shall not apply. Said finding may be incorporated in the resolution ordering the improvement or acquisition.

(Ord. 590).

The resolution determining said necessity shall be adopted by the affirmative vote of four members of the City Council, and its finding and determination shall be final and conclusive.

(Ord. 590).

When proceedings are taken pursuant to Sections 11.16.370 to 11.16.420, inclusive, the work and improvement shall be done and assessments and reassessments for the cost and expenses of the same shall be made, confirmed and collected, and bonds shall be issued, in accordance with the provisions of the Improvement Act of 1911, as modified by this chapter.

(Ord. 590).

The resolution of intention or a resolution adopted prior to the confirmation of the assessment shall provide for the collection of all assessments of less than Twenty-five Dollars ($25.00) upon the general tax rolls of the City of San Rafael and in accordance with the procedure provided for in Chapter 18.1 of the Improvement Act of 1911.

(Ord. 590).

The City Council shall have the power, under proceedings taken under the Improvement Act of 1911, to do any or all of the things authorized in Sections 11.16.090 to 11.16.120, inclusive, of this chapter, including the acquisition of land, easements and right of ways and including the acquisition of land and construction of improvements for public parking places.

(Ord. 590).

If, at the time of hearing upon the resolution of intention when proceedings have been taken pursuant to the Improvement Act of 1911 and this chapter, claims have been filed that the proposed work and improvement and acquisition, or either of them, will cause damage to property by reason of either (a) change of grade or (b) consequential damages arising under the provisions of Article I, Section 14 of the Constitution of the State of California by reason of the nature of the work proposed to be done, then all proceedings thereafter shall be taken in accordance with the procedure for work provided for in the Street Improvement Act of 1913 of the State of California, now embodied in the Streets and Highways Code as Division 8 thereof. If such claims are filed and proceedings subsequent to said hearing upon said resolution of intention are taken pursuant to said Street Improvement Act of 1913, then all of the provisions of said Street Improvement Act of 1913 with relation to determination of damages by reason of change of grade shall also apply to procedure to determination of damages by reason of consequential damages to property under the provisions of said Article I, Section 14, of the Constitution of the State of California.

(Ord. 590).

If bonds are issued pursuant to the proceedings had and taken under the Street Improvement Act of 1913, the bonds may be issued and sold as the legislative body directs. The proceeds from the bonds shall be deposited in the fund provided for in the Street Improvement Act of 1913 of the State of California, now embodied in the Streets and Highways Code as Section 7290 thereof. All bonds shall be payable to bearer and the City Council shall have the right to provide after the redemption clause in said bonds the words "together with a premium of 5% of said unpaid principal."

(Ord. 590).

If an acquisition of land, rights of way or easements is included in the proceedings, said land, easements or right of ways may be acquired by gift, purchase, contract or condemnation. If condemnation proceedings are undertaken, said condemnation proceedings shall be as provided in Chapter 3 of the Vehicle Parking District Law of 1943 or as provided in the Street Improvement Act of 1913, and the Council shall elect.

(Ord. 590).

When proceedings are taken pursuant to Sections 11.16.440 and 11.16.450, the Vehicle Parking District Law of 1943 shall apply.

(Ord. 590).

Wherever in the Vehicle Parking District Law of 1943 any power is vested in any parking authority, such power shall be vested in the City Council of the City of San Rafael and the City Council of the City of San Rafael shall be and constitute the parking authority provided for by said Act and shall exercise all of the rights and powers of said parking authority therein provided. All powers of the authority shall be exercised in the name of the City Council of the City of San Rafael.

(Ord. 590).

Bonds may be issued and sold as the legislative body directs.

(Ord. 590).