Visalia Municipal Code Ch. 12.40 Open Space Maintenance Districts

A. The purpose of this chapter is to provide a means whereby the city may form open space maintenance districts within which owners of property may be charged the cost and expenses of the maintenance of street lighting, landscape services normally provided by the city, and which are of direct benefit to the open space district, the property owners of the district and the inhabitants of the district. It is the intent of this chapter to establish and provide procedures by which open space land may be maintained either in its natural state or appropriately landscaped for scenic purposes or for passive or active park and recreational purposes. This chapter is intended to provide a method for the maintenance of the landscaping which serve localized interests but which are not susceptible to administration in funding by the typical homeowner's association, and which should not be imposed as a burden upon the general taxpayers of the city.

B. The city council of the city, in establishing the purpose and intent, declares the open space areas to be maintained are of special benefit to the property owners within the district. (Prior code § 7073)

As used in this chapter, the following terms are defined in this section:

Cost. The annual maintenance cost shall be calculated by the city public service department. The cost shall be based on a separate entity performing the work and shall include all direct and indirect expenses, such as, but not limited to, labor, materials, and overhead.

Incidental Expenses. "Incidental expenses" means and includes:

1. The cost of preparation of any report, including plans, specifications, estimates, diagrams, and estimating service charges;

2. The cost of printing, advertising, and the giving of published, posted, or mailed notices;

3. Compensation of any engineer or attorney employed to render services in proceedings pursuant to this part;

4. Any other expenses incidental to the maintenance of the open space areas.

Maintenance. "Maintenance" means the furnishing of services and materials for the ordinary and usual upkeep, operation, and servicing of any of the improvements, including but not limited to:

1. Repair, removal, or replacement of all or any part of the 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.

Property Owner. "Property owner" means any person who owns a parcel of land and is shown as said owner on the last equalized county assessment roll; when such person is no longer the owner, any person entitled to be shown as owner on the next county assessment roll, if such person is known to the local agency; where residence is subject to recorded written agreement of sale, any person shown therein as purchaser.

Public Lighting Facilities. "Public lighting facilities" means all works or improvements used or useful for the lighting of any public places, including ornamental standards, luminary poles, supports, tunnels, man holes, vaults, conduits, pipes, wires, switches, fasteners, capacitors, meters, communication circuits, appliance attachments, conductors, guys, stubs, platforms, braces, transformers, insulators, contacts and appurtenances.

Public Places. "Public places" means one or any combination of the following:

1. Any public street, highway, road, alley, lane, boulevard, parkway, or other way dedicated to or used for public use;

2. Any public property, right-of-way, easement or leasehold interest which is in use in the performance of a public function and which adjoins any of the ways described in Part 1 above.

Public Utility. "Public utility" means any public utility subject to the jurisdiction and regulated by the public utilities commission.

Service or Servicing. "Service" or "servicing" means the furnishing of:

1. Electric current, or energy, gas, or other illuminating agent for any public lighting facilities or for the lighting or operation of any other improvements;

2. Water for the irrigation of any landscaping, the operation of any fountains, or the maintenance of any other improvements. (Prior code § 7073.1)

The procedure established herein for the maintenance of street lighting, landscaping and other improvements shall be additional or alternative to any of the other procedures established by ordinance of the city or state law; provided, however that in the proceeding pursuant to this chapter only the provisions contained herein need be followed. It is understood that open space developments undertaken pursuant to this chapter shall serve to augment any other open space programs including park land dedication requirements in new subdivisions or in lieu payments therein, and shall not be considered as a substitute therefore. (Prior code § 7073.2)

A. Proceedings for the formation of an open space district may be initiated by petitions signed by the property owner of the separately assessed parcels and lots in the proposed district, who own at least fifty (50) percent of the parcels or lots within the district, or said proceedings may be initiated by resolution of city council. The petition shall be filed with the city clerk. The city clerk shall check or cause such a petition to be checked. If it is signed by the requisite number of qualified signers, the clerk shall certify to that effect and shall present the petition and certificate to the legislative body.

B. A district shall only be formed to maintain street lighting, landscaping, and other open space improvements which are in addition to the services normally provided by the city, and which are of direct benefit to the open space district, the property owners of the district and the inhabitants of the district. (Prior code § 7073.3)

The petition which may consist of one instrument, or any number of separate instruments, shall contain:

A. A general description of the exterior boundaries of the proposed district(s) for reference to the attached map showing such boundaries;

B. A general description of the open area(s) proposed to be maintained by the district;

C. A general description of the maintenance desired, including but not limited to the maintenance of bikeways, pathways, pedestrian walks, street landscaping and lighting and drainage facilities;

D. A statement that the petition is filed pursuant to this chapter and is intended to carry out the purposes of this chapter. (Prior code § 7073.4)

If the petition is not signed by the requisite number of qualified signers, the clerk shall certify to the council that said petition is insufficient. If the petitions is insufficient, supplemental petitions may be filed within six months from the date of certificate of insufficiency. (Prior code § 7073.5)

Before city council considers the adoption of a resolution of intention to form the district, a report shall be filed with the city clerk and forwarded to the planning commission and city council for review. The report shall contain:

A. An analysis of the information contained in the petition;

B. An estimate of the annual cost and expense of maintenance of the open space areas which benefit property within the proposed district;

C. A diagram or map showing the boundaries of the district proposed to be assessed and generally locating the improvements to be constructed and/or maintained. (Prior code § 7073.6)

After reviewing the preliminary report the city council may require revisions take place to the proposed district. If the legislative body determines that the public interest and convenience require the formation of an open space district, it may adopt a resolution declaring its intention to form a district pursuant to the provisions of this chapter. The resolution of intention, in addition to making the foregoing determination, shall also contain:

A. All contents set forth in the preliminary report;

B. A statement of the service charge necessary to finance the maintenance of the items specified in Section 12.40.050(C) as estimated, which is subject to change periodically by city council based upon documentation of increasing maintenance costs;

C. A statement regarding the method of collection of the service charge which is subject to change based upon city council approval;

D. The day, hour and place for the hearing by the council of protests and objections to the formation of the proposed district. A statement that any owner of any separately assessed parcel or lot liable to be assessed a service charge for the maintenance, may protest the formation of the proposed district, or the extension of the district boundaries, or both, by filing a written protest with the clerk at any time not later than the hour fixed for the hearing. The time for the hearing shall not be less than ten or more than sixty (60) days from the date of the adoption by the council of the resolution of intention. (Prior code § 7073.7)

Notice of the adoption of the resolution of intention shall be mailed, postage prepaid, by the clerk to each person who owns a separately assessed parcel or lot within the district as shown on the last equalized county assessment roll. (Prior code § 7073.8)

If after the hearing has been closed it appears that the owners of more than one-half of the separately assessed parcels or lots within the proposed district and subject to the assessment have made objection in writing to the formation of the district, the council shall so find. Thereafter, the legislative body shall not proceed further under the resolution of intention and the proceedings shall be terminated unless a four-fifths vote by council is in favor of proceeding with the district. A new hearing may be held no sooner than one year after such finding. (Prior code § 7073.9)

Any separately assessed parcels or lots which, in the judgment of council will not be benefitted shall not be included within the district. (Prior code § 7073.10)

A. Withdrawal of Protest. Any protest or objection made pursuant to this chapter, or any signatures to such objection protests, may be withdrawn by written withdrawal signed, by the person or persons who sign the protest or objection and filed with the clerk at any time prior to the determination by the council as to whether or not a majority protest exists. Any protest, objection, or signature withdrawn shall not be counted in computing a majority protest.

B. Waiver of Protest. Any objections or protests not made at the time and in the manner provided by this chapter are deemed waived voluntarily.

C. Determination of Protest. Except in the case of the majority protest, the council may sustain or deny by resolution any or all objections and protests, and its determination is final. (Prior code § 7073.11)

Unless the power to proceed has been terminated pursuant to this chapter, at the conclusion of the hearing the council, by resolution, may find and determine that the public interest and the necessity require the maintenance described in the resolution of intention and may order the open space district formed. At such time council shall also fix and establish the boundaries of the district and declare that the district is formed pursuant to this chapter. (Prior code § 7073.12)

Each open space district formed pursuant to this chapter shall be numbered and the designation of the district shall be substantially (using the appropriate number) "Open Space District Number of the City of Visalia". (Prior code § 7073.13)

Any land subject to subdivision and/or additional parcels or lots may be annexed to an existing maintenance district by following the procedures of this chapter. The parcels or lots or area to be annexed shall be created as a separate district and the district merged after council passes the resolution ordering the formation of the new district. (Prior code § 7073.14)

The method of fee collection and amount charged for maintenance shall be established by resolution of the city council in accord with the procedure and requirements specified in California Constitution, Article XIII(C) and (D), or successor statute. (Ord. 2001-01 § 2, 2001: prior code § 7073.15)

A. In the event that any property owner shall fail to pay any billing within seventy-five (75) days from the beginning of the calendar month which the billing covers, a late charge as set by resolution of the city council for each such billing month shall be added to the bill, and the city shall have no authority to accept any payment thereafter without collecting the late charge. This charge shall be collected to defray the cost of billing and bookkeeping involved in late payments.

B. In addition or in the alternative, and at the option of the city, the city may file a civil action for the collection of any amounts due and unpaid. This remedy shall be cumulative and in addition to the remedy of means of enforcing payment of the sum required to be paid by this chapter stated in subsection (A) of this section.

C. As an alternate means of collection of amounts due and unpaid:

1. Once a year the city council shall cause to be prepared a report of delinquent fees and late charges. The council shall fix a time, date and place for hearing the report and any objections or protests thereto;

2. The council shall cause notice of the hearing to be mailed to the landowners listed on the report not less than ten days prior to the date of the hearing;

3. At the hearing the council shall hear any objections or protests of landowners liable to be charged for delinquent fees. The council may make such revisions or corrections to the report as it deems just, after which, by resolution, the report shall be confirmed;

4. The delinquent fees set forth in the report as confirmed shall constitute special charges against the respective parcels of land and are a lien on the property for the amount of such delinquent fees. A certified copy of the confirmed report shall be filed with the county auditor for the amounts of the respective charges against the respective parcels of land as they appear on the current assessment roll. The lien created attaches, upon recordation, in the office of the county recorder a certified copy of the resolution of confirmation. The assessment may be collected at the same time and in the same manner as ordinary county ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for such taxes. All laws applicable to the service charge, collection and enforcement of county ad valorem property taxes shall be applicable to such assessment, except that if any real property to which such lien would attach has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of such taxes would become delinquent, then the lien which would otherwise be imposed by this section shall not attach to such real property and the delinquent fees, as confirmed, relating to such property shall be transferred to the unsecured roll for collection;

5. The city may, at its discretion, issue separate bills for such special fees and separate receipts for collection on account of such fees. (Prior code § 7073.16)