DowntownNow
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« Reply #53 on: April 10, 2009, 08:03:29 pm » |
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Well in that case Michael, its a shame the law isn't defined by "thoughts" and "hopes" or we might all be happy. We could all hope the cranes go up tomorrow for immense new construction, we could hope property values increase well beyond what they did in California, hope that every empty building space gets flooded with tenants and waiting lists are the norm, hope that every restaurant is filled to capacity and a line out the door with a 4 hour wait and that would satisy the law entirely for the portion that each and every assessment payer be provided a direct benefit. Oh wait, sadly thats not the case.
Forget addressing any of the points or arguments I made above.
But just to prove the law doesnt allow for "thoughts" and hopes," I'll list it for you here. Please show me where in here it lists "hopes" and "thoughts" as criteria for an assessment.
Section 39 101. This act may be cited as the Improvement District Act. Laws 1978, c. 233, § 1, emerg. eff. April 25, 1978. §11-39-102. Definitions. As used in the Improvement District Act, the singular includes the plural and: 1. “Acquired” means the acquisition of property or interests in property by purchase, gift, condemnation or other lawful means; 2. “City” means any city or town incorporated pursuant to the laws of Oklahoma; 3. “Engineer” means a city engineer, city official, employee or other person competent to advise and assist the governing body in planning and making an improvement; 4. “Cost” means any cost necessarily or reasonably incurred in making the improvement, including but not limited to cost of: a. preparation of preliminary reports, b. preparation of plans and specifications, c. preparation and publication of notices of hearings, resolutions, ordinances and other proceedings, d. fees and expenses for engineers, attorneys, laborers and other personal services, e. rights-of-way, materials and other lawful expenses incurred in making any improvement, and f. capitalized interest, funding of reserves, premiums for reserve surety bonds, and obtaining bond insurance, letters of credit or other credit enhancements or liquidity instruments; 5. “District” means an area designated by the governing body to be benefited by an improvement and subjected to payment of special assessments for all or a portion of the cost of the improvement; 6. “Governing body” means the city council, city commission or board of trustees of an incorporated city or town; 7. “Improve” means to construct, reconstruct, maintain, restore, replace, renew, repair, install, equip, extend, purchase, alter or otherwise perform any work which provides a new facility, or enhances, extends or restores the value or usefulness of an existing facility; 8. “Improvement” means any type of improvement made by authority of this Improvement District Act and includes reimprovement of any prior improvement made pursuant to any other act; 9. “Mail” means by first-class mail; 10. “Trustee” means a city acting pursuant to this act; 11. “Street” means any highway, street, alley, boulevard, avenue, right-of-way, public ground, or other public facility, or any part thereof; and 12. “Publish” or “publication” means printing in a newspaper which maintains an office in the city or town and is of general circulation within the city or town, or, if there is no newspaper which maintains an office in the city or town, a newspaper of general circulation within the city or town and in two (2) separate issues thereof, at least seven (7) days apart. Laws 1978, c. 233, § 2, emerg. eff. April 25, 1978. Amended by Laws 2007, c. 362, § 4, eff. Nov. 1, 2007. §11-39-103. Creation of improvement districts - Purpose - Contents. The governing body of any city may create one or more districts for the purpose of making or causing to be made any improvement or combination of improvements that confer special benefit upon property within the district. Such improvement or combination of improvements may include the following, without limitation because of enumeration: 1. Acquisition of property or interest in property when necessary for any of the purposes authorized by the Improvement District Act; 2. Opening, creating, widening and extending or altering of streets to improve paving, and surfacing, constructing and reconstructing gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage facilities, and service connections from sewers, water, gas, electricity and other utility mains, conduits or pipes; 3. Constructing or improving main and lateral storm water drains and sanitary sewer systems and facilities; 4. Installation or improvement of street lights and street lighting systems; 5. Construction or improvement of water mains and waterworks systems; 6. Improvement (See Definition above) of parks, playgrounds and recreational facilities; 7. Improvement of any street, parking or other facility by landscaping, or planting of trees, shrubs and other plants; 8. Constructing or improving dikes, levees and other flood control works, gates, lift stations, bridges and streets appurtenant thereto; 9. Constructing or improving vehicle and pedestrian bridges, overpasses and tunnels; 10. Constructing or improving retaining walls and area walls on public ways or land abutting thereon; 11. Constructing or improving property for off-street parking facilities, including construction and equipment of buildings thereon; 12. Constructing or improving pedestrian malls; or 13. Constructing or improving offsite facilities or infrastructure serving all or a portion of land within a district; notwithstanding that, such facilities or infrastructure may also serve areas outside a district, but subject to cost apportionment requirements of subsection A of Section 39-110 of this title. Added by Laws 1978, c. 233, § 3, emerg. eff. April 25, 1978. Amended by Laws 2007, c. 362, § 5, eff. Nov. 1, 2007. §11-39-103.1. Additional improvement districts - Assessments - Objections - Termination. A. In addition to those purposes set out in Section 39-103 of this title, the governing body of any municipality having a population of more than one thousand five hundred (1,500) may create one or more districts and levy assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement described in Section 39-103 of this title, whether or not the improvement was financed or constructed pursuant to this act and such governing body may exclude or modify such assessments according to benefits received on properties which are exempt from ad valorem taxation, except those assessments provided for by Section 39-103 of this title. In addition, such districts may also be used to fund maintenance, management, marketing and other services being provided through an active Main Street Program recognized as such by the Oklahoma Department of Commerce. General street repair and maintenance on any street used by vehicular traffic shall not be made a part of any assessments provided for hereunder. B. If the governing body determines that it is desirable to continue to provide or cause to be provided the improvements and services authorized by this section, the governing body shall annually prepare and cause to be filed in the office of the municipal clerk an assessment roll containing, among other things: 1. The name and address of the last-known owner of each tract or parcel of land to be assessed, or if the name of the owner is unknown, state "unknown". The name and address of the owner of each tract of land shall be obtained from the records of the county treasurer; 2. A description of the tract or parcel of land to be assessed; and 3. The amount of the assessment against each tract or parcel of land. If after filing the assessment roll, it appears that the amount of the assessment against any tract or parcel of land shall be increased, the governing body shall by resolution set a time and place for the assessment hearing at which an owner may object to the amount of the assessment. C. Not more than thirty (30) days nor less than ten (10) days before the day of the hearing, the municipal clerk, the deputy municipal clerk or the engineer shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land on which the amount of assessment is increased. Proof of the mailing is to be made by affidavit by the municipal clerk, the deputy municipal clerk or the engineer, which shall be filed in the office of the municipal clerk. Failure of the owner to receive any notice shall not invalidate any of the proceedings authorized in the Improvement District Act. Notice of the hearing shall also be published. The last publication shall be at least seven (7) days prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher which is to be filed in the office of the municipal clerk. D. No district created under this section shall continue beyond the date that final payment of all principal, interest and other amounts due in connection with bonds issued by that district has been made, or if no bonds have been issued by the district, beyond the date that is thirty (30) years after the adoption of the resolution creating the district, unless re-created as provided in Section 39-101 et seq. of this title for creation of districts. Provided that, at any time after its creation, and provided further that, no bonds or other financial obligations of a district are then outstanding, the district shall cease to exist if: 1. The governing body by resolution terminates the district; or 2. The owners of a majority in area of the tracts or parcels of land within the district and a majority of the owners of record of property within the district petition in writing to terminate the district. Such termination shall take effect at the end of the fiscal year in which the governing body adopts such resolution or determines the validity of such petition. Nothing herein shall excuse a tract or parcel of land from its liability for deferred payments or any assessment. Added by Laws 1981, c. 139, § 1, emerg. eff. May 5, 1981. Amended by Laws 1983, c. 154, § 1, emerg. eff. May 26, 1983; Laws 1988, c. 152, § 4, eff. Nov. 1, 1988; Laws 1998, c. 30, § 1, eff. Nov. 1, 1998; Laws 2007, c. 362, § 6, eff. Nov. 1, 2007.
The law allows for the "Improvement" of parks, playgrounds and recreational facilities...not their creation. There was no established or existing park, playground or recreational facility to be found on the parcel under development.
Furthermore, any improvement or combination of improvements must confer special benefit upon property within the district.
What special benefit is confered upon the County and State owned lands? What special benefit is confered to the property owners that is quantifiable and not speculative? And sorry to disappoint but increased property value is speculative.
In lieu of finding a similar OK AG opinion (perhaps there is one out there) I offer the following: Florida AGO 98-57 In evaluating whether a "special benefit" is conferred to property by the services (or one could argue Improvement) for which the assessment is imposed, the test is not whether the services confer a "unique" benefit or are different in type or degree from the benefit provided to the community as a whole; rather, the test is whether there is a "logical relationship" between the services (or Improvement) provided and the benefit to real property (within the district).
An example of which is: A lot parcel derives a "special benefit" from the construction of a sewer and its ability to connect to it.
The law does however allow for the creation of the improvement district for the services portion and allows the levy of assessments for the purpose of providing or causing to be provided any maintenance, cleaning, security, shuttle service, upkeep, marketing, management or other services which confer special benefits upon property within the district by preserving, enhancing or extending the value or usefulness of any improvement.
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