Ordinance 17-15 Amending Penalty Structure for Natural Gas Assessments

CITY OF HOMER
HOMER, ALASKA

Aderhold

ORDINANCE 17-15

AN ORDINANCE OF THE CITY COUNCIL OF HOMER, ALASKA, updating and clarifying the implementation of a penalty and interest structure for special assessments in the Homer Natural Gas Distribution Special Assessment District that became delinquent on or after July 1, 2016, and providing terms for reinstatement on or after July 1, 2016 of assessments that became delinquent before that date, and the policies and procedures for waiving penalties on delinquent special assessment payments if they meet certain requirements, and creating an appeal process for waiver denials to the board of adjustment.

                WHEREAS, The Council adopted Resolution 16-052 that implemented a penalty and interest structure for special assessments in the Homer Natural Gas Distribution Special Assessment District that became delinquent on or after July 1, 2016, and provided terms for reinstatement on or after July 1, 2016 of assessments that became delinquent before that date; and

                WHEREAS, The Council adopted Resolution 16-079(S)(A) which provides policies and procedures for waiving penalties on delinquent special assessment payments (“waivers”) if they meet certain requirements; and

                WHEREAS, It is in the City of Homer’s (“City’s”) best interest to update the penalty and interest structure for special assessments in the Homer Natural Gas Distribution Special Assessment District found in Resolution 16-052 and the policies and procedures for waiving penalties on delinquent payments in Resolution 16-079(S)(A) to clarify the process, and to establish an appeal process to the Board of Adjustment (“Board”) for denials of applications for waivers.  

NOW, THEREFORE, THE CITY OF HOMER ORDAINS:

Section 1: The City hereby determines:

PAYMENT

If an assessment in the District has not been delinquent before July 1, 2016, a delinquent annual installment of principal and interest on the assessment that is due on or after July 1, 2016 shall be subject to a late payment penalty equal to fifty dollars ($50.00) multiplied by the number of calendar months (or portions thereof) that elapse until the delinquent installment, plus interest and penalty are paid in full, or are being paid in installments in accordance with a payment plan approved by the Finance Director; provided, that the amount of this penalty shall not exceed two hundred dollars ($200.00).  If the delinquent installment, plus interest and penalty, are not paid in full within four calendar months after the installment due date, the entire outstanding principal amount of the assessment shall be in default and shall be immediately due and payable, and thereafter the entire outstanding assessment principal shall bear interest at the rate of ten and one-half percent (10.5%) per annum until paid.  The penalty imposed under this paragraph does not bear interest.

Notwithstanding Resolutions 15-017, 15-047(S)(A) and 15-081(S), an assessment in the District that became delinquent before July 1, 2016 shall not be immediately due and payable in full because of that delinquency, but may continue to be payable in installments of principal plus interest at a rate of four percent (4%) per annum and thereafter shall be subject to the penalty and interest structure provided in the preceding paragraph, if on or before July 1, 2016, the City received payment of (i) the delinquent assessment installment plus a penalty of ten percent (10%) of the total assessment amount and interest on the total assessment amount at a rate of ten and one-half percent (10.5%) per annum, and (ii) the assessment installment that was due on July 1, 2016.

POLICY

It is the policy of the City of Homer to provide fair and consistent administration of Alaska statutes and City ordinances with respect to waiving the assessment of penalties on delinquent assessment payments in special assessment districts, and to recognize that exceptional circumstances may occur in which, in the interest of fairness, a penalty on a delinquent assessment should be waived.

PROCEDURE

An owner of property in a special assessment district who is delinquent in making an assessment payment may apply to the Finance Director for a waiver of the penalty on the delinquent assessment payment on a form provided by the Finance Director.

The application to waive the penalty shall be accompanied by payment of all delinquent assessment payments that the property owner owes to the City.

The Finance Director will review and either approve or disapprove the application.  The Finance Director will approve an application to waive a penalty on a delinquent assessment payment if one of the following criteria is met:

A clerical error by the City Clerk or Finance Department contributed substantially to the late payment.

For the purpose of this procedure, a clerical error is a mistake made by City personnel that resulted in the failure of the City to correctly and timely notify the property owner of the due date for the delinquent assessment payment, or to correctly credit a timely assessment payment to the property owner’s account.  Examples of a clerical error include, but are not limited to:

Application of a timely payment to the wrong account.
Failing to send the property owner timely notice of the payment due date.
Sending the property owner notice of the payment due date using a name or address other than the name and addresses of the property owner that currently appear on the Kenai Peninsula Borough property tax roll.

The property owner is responsible for notifying the Kenai Peninsula Borough Assessor of any change in property owner name or address.  The City is not responsible for updating the property owner name and address on the Kenai Peninsula Borough property tax roll, or for investigating the accuracy of the property owner name or address that currently appears on the Kenai Peninsula Borough property tax roll.

A U.S. Postal Service error contributed substantially to the late payment.  A waiver on this ground requires proof of one of the following:

The Postal Service failed to deliver either the payment or the notice of the payment due date to the address that appeared on the envelope.

The Postal Service delayed delivery of either the payment or notice of the payment due date to a degree that contributed substantially to the lateness of the payment.

The postmark on the payment did not accurately reflect when the property owner delivered the payment to the Postal Service.

Proof that the property owner was unable to make the payment on time because of an extreme non-financial personal hardship.  This could include a serious illness or death of the property owner or an immediate family member that reasonably prevented making the payment on time.

Other circumstances deemed relevant by the Finance Director that substantially interfered with the property owner’s ability to make the payment on time.

The property owner bears the burden by substantial evidence of proving that one of the grounds for waiving the penalty exists, based on relevant documentation and sworn testimony.

The Finance Director will decide whether to approve or disapprove an application to waive a penalty on a delinquent assessment payment. Within thirty days of receiving the application the City Clerk shall give the property owner a written notice of the Finance Director’s decision, stating the Finance Director’s reasons for the decision. An appeal from the Finance Director’s final decision may be taken to the Board of Adjustment by the applicant, and shall be filed within 30 days of the date of distribution of the Finance Director’s final decision.

All appeals must be heard within 90 days of the applicant filing a notice of appeal. The Board may for good cause shown extend the time for hearing. The decision on appeal must be rendered within 60 days after the appeal hearing.

The appeal hearing shall be in compliance with the requirements contained in Homer City Code (“HCC”) 21.93.540 and HCC 21.93.550.

The applicant may present oral argument at the appeal hearing, subject to the order of presentation and time limitations that the chair adopts at the commencement of the hearing. The rules of evidence are relaxed during the Board’s appeal hearing. 

The Board shall defer to the findings of the Finance Director regarding disputed issues of fact. Findings of fact adopted expressly or by necessary implication by the Finance Director shall be considered as true if they are supported by substantial evidence. If the Finance Director fails to make a necessary finding of fact and substantial evidence exists in the record to enable the Board to make the finding of fact, the Board may do so in the exercise of its independent judgment. “Substantial evidence,” as used in this section, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The decision of the Board of Adjustment on the application is final and not subject to appeal.

Section 2: All applications for waiver of penalty subject to approval at the February 13, 2017 Council meeting may apply for reconsideration under the above procedure so long as an application for reconsideration is filed within 30 days of the adoption of this ordinance.

Section 3: This Ordinance is general and permanent in nature, but shall not be codified.

ENACTED BY THE CITY COUNCIL OF HOMER, ALASKA, this ________ day of ______________, 2017.

                                                                                                                CITY OF HOMER

_____________________________

                                                                                                                BRYAN ZAK, MAYOR

ATTEST:

_____________________________

JO JOHNSON, MMC, CITY CLERK

YES:

NO:

ABSTAIN:

ABSENT:

First Reading:

Public Hearing:

Second Reading:

Effective Date: 

Reviewed and approved as to form.

Mary K. Koester, City Manager                                                              Holly C. Wells, City Attorney

Date:                                                                                                                    Date:                                                                   

Fiscal Note: NA