HomeMy Public PortalAboutGulf Stream - Proposed ordinance for April 28 Special Mtg
Renee Basel
From:Susan Schoettle-Gumm <spgumm@mailmt.com>
Sent:Thursday, April 21, 2011 1:49 PM
To:Rita Taylor
Cc:Bill Thrasher; 'Lee Evett'; 'Habib Isaac'; 'Pamela Bernaba'; 'Danny Brannon'
Subject:Gulf Stream - Proposed ordinance for April 28 Special Mtg
Attachments:MEMORANDUM ord 1st read.pdf; Ordinance 1st reading.pdf
Rita - Attached please find a one-page memo and a proposed ordinance for consideration by the Town Commission at the
April 28, 2011 Special Meeting. The memo is on letter-size paper but the ordinance is formatted for legal-size paper.
Please contact me if you have any questions or concerns.
Thank you, Susan
Susan Schoettle, PLLC
Phone 941-377-4948 Cell phone 941-320-3054 Fax 941-371-8317 E-mail spgumm@mailmt.com
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18099 DEER PRAIRIE D RIVE,SARASOTA,FLORIDA 34240 PHONE 941♦377♦4948 FAX 941♦371♦8317
SUSAN SCHOETTLE-G UMM,PLLC
ATTORNEY -AT -LAW
MEMORANDUM
TO:William Thrasher, Town Manager, Town of Gulf Stream, Florida
FROM:Susan Schoettle-Gumm, Esq.
DATE:April 21, 2011
RE:Proposed Ordinance regarding proposed Utility Undergrounding Project and Non-ad
Valorem Special Assessments to fund the Undergrounding Project
Attached please find an ordinance for consideration by the Town Commission with a first reading at
the Special Meeting scheduled for April 18, 2011. This Ordinance provides initial statement s of
policy by the Commission regarding the proposed Utility Undergrounding Project and proposed
non-ad valorem special assessments to fund the Project,establishes legislative findings by the
Commission related to the proposed Project and associated special assessments ,and directs that the
consideration and adoption of special assessments for the Project proceed pursuant to Chapter 170,
Florida Statutes.
In a previous discussion with the Commission, I outlined a process for adopting the special
assessments under the Town’s home rule authority.However, a recent favorable decision on a bond
validation for a similar utility undergrounding project in Jupiter Inlet Colony, which adopted its
assessments under Chapter 170,has caused me to recommend that the Town proceed under Chapter
170. The Chapter 170 process is slightly different from the procedures I previously outlined but
does include provisions for notice of assessments by first-class mail and by publication and for a
public hearing on the assessments prior to final adoption by the Commission.
In accordance with the process in Chapter 170, F.S., the Commission must take two additional
legislative actions in order to adopt and impose special assessments to fund the Undergrounding
Project. First, a Resolution Declaring Special Assessments must be considered and adopted after
the preparation of plans and specifications for the Project. This Resolution will establish a date for
a future Equalization Hearing and direct notice by mail and publication.Notices must be mailed at
least 30 days prior to the date of the equalization hearing. The Final Assessment Resolution and
final assessment roll can be adopted only after the Commission sits as an “Equalization Board” at
the public hearing.Dates for consideration of the resolutions/hearing need to be explored with the
Commission.
Please feel free to contact me if you have any questions or concerns regarding the proposed
ordinance or other legal issues related to the project and special assessments. I will be attending the
April 28, 2011 Special Meeting to answer questions from the Commission and assist the Town on
this matter.
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ORDINANCE NO.011 /2
AN ORDINANCE OF THE TOWN OF GULF STREAM,
FLORIDA ,REGARDING A UTILITY UNDERGROUNDING
PROJECT AND NON -AD VALOREM SPECIAL
ASSESSMENTS TO FUND SUCH PROJECT; PROVIDING
FOR AUTHORITY; PROVIDING FOR LEGISLATIVE
FINDINGS;PROVIDING FOR DEVELOPMENT AND
CONSIDERATION OF UTILTY UNDERGROUNDING
PROJECT NON -AD VALOREM ASSESSMENTS
PURSUANT TO CHAPTER 170, FLORIDA STATUTES;
PROVIDING FOR AN ASSESSMENT ADOPTION
PROCESS, INCLUDING MAILING AND PUBLICATION OF
NOTICES AND AN EQUALIZATION HEARING ;
PROVIDIN G FOR ORDINANCE AS AN ALTERNATIVE
METHOD;PROVIDING FOR LIBERAL CONSTRUCTION
AND SEVERABILITY;PROVIDING FOR TRANSMITTAL
TO THE SECRETARY OF STATE;AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS , the Town Commission (the "Commission") of the Town of Gulf Stream ,
Florida (the “Town”)is con sidering a capital improvements project to underground overhead
utility lines, including but not limited to electrical, fiber optic/cable,and telephone utilities ,to
specially benefit and serve properties located within a portion of the Town ; and
WHERES, the Commission is considering the adoption of non-ad valorem special
assessments imposed on specially benefited properties within the Town to fund the Utility
Undergrounding Project; and
WHEREAS , the Commission has advert ised and held a public hearing on this
ordinance ;
NOW, THEREFORE BE IT ORDAINED BY THE TOWN COMMISSION OF
THE TOWN OF GULF STREAM, FLORIDA, AS FOLLOWS:
Sec tion 1.Authority .This Ordinance is enacted pursuant to Chapter 170, Florida Statutes, and the
mun icipal home rule powers granted under Section 2(b), Article VIII of the Constitution of the State
of Florida and Florida Statutes ch. 166, pts. I and III.
Sec tion 2.Legislative Findings.
(A)The Commission has determined that the undergrounding of overhead utilities, including,
but not limited to ,lines related to electrical, telephone,and cable services,located within the
municipal boundaries of the Town (the “Undergrounding Project” or “Project”)is in the public
interest and is in the best interests of the health, safety and welfare of the Town.
(B)The Commission directed the mailing of ballots to affected property owners to measure
support for the Undergrounding Project and to provide preliminary notice of the Commission’s
intent to impose s pecial assessments to fund the Project, if constructed. Ballots properly submitted
to the Town were counted on February 7, 2011. A majority of those ballots indicated support for
construction of the Undergrounding Project to be funded through non -ad valorem special
assessments.
(C)The Commission hereby finds and determines, based upon the “Overhead Utility
Undergrounding Feasibility Study”, by Brannon & Gillespie, LLC, and the “Town of Gulf Stream
Utility Undergrounding Assessment Methodology Report”,by Willdan Financial Services, Inc., as
well as additional evidence and testimony provided by such consultants that: (1)the Project
provides direct and special benefit to those parcels that will be served by the undergrounded
utilities, and (2) the imposition of special assessments to fund the Project is authorized and
appropriate. Additional information and testimony will be considered regarding special benefit and
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the allocation of project costs to assessed parcels during future hearings, including the Equalization
Hearing.
(D)The Commission has determined that the Project will be funded by a combination of non-ad
valorem special assessments imposed on the properties specially benefited by the Project and other
lawfully available funds of the Town as may be determined to be necessary and appropriate by the
Commission.
(E )The Commission has the legal authority to levy non-ad valorem special assessments on
benefited properties pursuant to Chapter 170, Florida Statutes, and its municipal home rule powers
under the Florida Constitution and statutes.Specifically, Subsections 170.02(1)(d) and (1)(k),
Florida Statutes, authorize a municipality to pay for the relocation of utilities, including the
placement underground of electrical, telephone and cable television services and to pay for all or
any part of the costs of such improvements by levying and collecting special assessments on the
abutting, adjoining, contiguous, or other specially benefited property.
(F )The Commission has adopted Resolution No.010-8, a duly advertised Resolution declaring
its intent to use the uniform method of collecting non -ad valorem special assessments on property in
Gulf Stream to be specially benefited by the construction of the Project,pursuant to Section
197.3632, Florida Statutes, as amended. Section 197.3632, F.S, provide authority for such special
assessments to be collected annually commencing in November 2011, in the same manner as
provided for ad valorem taxes.
Section 3. Assessments.The Commission hereby auth orizes the further development and adoption
of Assessments against benefited Parcels located within the Town to fund the Undergrounding
Project.The Commission hereby directs that the procedures for adoption of special assessments as
provided in Chapter 170, Florida Statutes, shall be followed. The Town may use revenue from the
collection of Assessments to directly fund the Project or to refund other revenues of the Town
advanced to fund the Project.
Section 4.Assessment Adoption Process.
(A)Pursuant to Section 170.03, F.S., the Commission shall adopt a resolution that, including but
not limited to,declares the nature of the proposed improvement and identifies the costs to be paid
by special assessment, the manner in which said assessments shall be made, when paid and
designates the parcels on which the assessments shall be levied.Upon adoption by the
Commission, this Resolution Declaring Special Assessments shall be published as required under
Section 170.05, Florida Statutes.
(B)At the tim e of adoption of the Resolution Declaring Special Assessments, copies of the plans
and specifications, estimated cost, and an assessment plat showing the area to be assessed shall also
be available in the office of the Town Clerk and open to public inspection.When completed, copies
of the P reliminary Assessment Roll shall be on file in the office of the Town Clerk and open to
public inspection.The foregoing shall not be construed to require that the Assessment Roll be in
printed form if the amount of the total Assessment and annual installment for each Parcel can be
determined or produced by use of a computer terminal.
(C)After preparation of the Preliminary Assessment Roll and adoption of the Resolution Dec laring
Special Assessments, the Town Clerk shall publish notice stating that at a meeting of the
Commission,t he Commission will hear testimony from all interested persons as to the propriety and
advisability of the Utility Undergrounding Project,the cost of such Project, the manner of paying
for the Project,funding of such Project with special assessments on property,and the amount to
be assessed against each benefited Parcel.Notice of this Equalization Hearing shall be published
twice in a newspaper of general circulation within Palm Beach County. The second notice shall be
published at least one week prior to the hearing date.This notice may be combined with
publication of the Resolution Declaring Special Assessments as required under Section 170.05,
Florida Statutes, so long as the requirements of Section 170.07, Florida Statutes, are also fulfilled.
Publication of notice of the hearing on the proposed Assessments shall be verified by the affidavit
of the publisher ,which affidavit shall be filed with the Town Clerk.
(D )In addition to the published notice required by Section 170.05, F.S., the Town Clerk , or
authorized agent of the Town,shall provide notice of the proposed Assessment and Equalization
Hearing by first class mail to the owner of each Parcel subject to the Assessment. The mailed notice
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shall conform to the requirements set forth in the Uniform Assessment Collection Act and Florida
Statutes Chapter 170 .Notice shall be mailed at least 30 calendar days prior to the hearing to each
Parcel owner at such address as is shown in the public records of the Property Appraiser on the
forty-fifth calendar day prior to the date of mailing, or if such address is not publicly available,at
the street address of the assessed Parcel.Notice shall be deemed mailed upon delivery thereof to
the possession of the U.S. Postal Service.The Town Clerk , or authorized agent of the Town,may
provide proof of such notice by affidavit.
(E)At the date and time for the Equalization Hearing named in such notice, or to which an
adjournment or continuance may be taken, the Commission shall receive written objections and
hear testimony of interested persons and may then, or at any subsequent meeting of the
Commission, adopt a Final Assessment Resolution , pursuant to Section 170.08, F.S.,which shall
approve the Final Assessment Roll, with such amendments as it deems just and right and determine
the method of collection.The Final Assessment Roll, as approved by the Final Assessment
Resolution, shall be delivered to the Palm Beach County Tax Collector, as appropriate under the
collection method(s) determined by the Commission .
Section 5. Ordinance as Alternative Method .This Ordinance shall be deemed to provide an
additional and alternative method for the doing of the things authorized hereby and shall be
regarded as supplemental and additional to powers conferred by other laws, and shall not be
regarded as in derogation of any powers now existing or which may hereafter come into existence.
Section 6.Liberal C onstruction.The provisions of this article shall be liberally construed to
effectively carry out its purposes in the interest of public health, safety, welfare and convenience.
Section 7.Severability Clause.If any provision of this article or the application thereof to any
person or circumstance is finally held invalid by a court of competent jurisdiction, the invalidity
shall not affect other provisions or applications of the act which can be given effect without the
invalid provision or applications. To this end, the provisions of this article are declared severable.
Section 8.Transmittal to the Secretary of State.The Town Clerk shall transmit this
Ordinance to the Secretary of State.
Section 9.Effective Date of Ordinance .This Ordinance shall become effective upon adoption
and transmittal to the Secretary of State of Florida.
PASSED AND ADOPTED this _____day of _________,2011.
William Koch, Mayor
ATTEST:
Rita Taylor ,Town Clerk