ORD 36235 - Amend SLO 10022 . 1
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• :A o �Fe�� ' R E C E I \f E.. [� Finance Department
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..1 Omaha/Douglas Civic Center
U ' �7 1819 Farnam Street,Suite 1004
w ® `�I � m mi Omaha,Nebraska 68183-1004
• ,�A '�� "y, 03 MAR� 2� ��i- ��� �� (402)444-5416
op�rFD Fss�°r�� Telefax(402)444-5423
City of Omaha CITY C I r `1 U Stanley P.Timm
0 M. li A, K t;t,R A '\ Director
Mike Fahey,Mayor Allen R.Herink
Acting City Comptroller
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Honorable President
and Members of the City Council,
Attached is an Ordinance requested by Councilmember Frank Brown, to amend Special
Ordinance No. 10022, levying special tax assessments for litter removal costs.
The amendment would remove the special assessment on'the property at 3712 North 36`h Street,
in the amount of$260.00 plus accrued interest.
Sincerely, Referred to City Council for Consideration:
a3 71r- )- ‘'3
Stanley P. T. m Date Mayor's Office Date
Finance Director
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ORDINANCE NO. ,.3 s?36
AN ORDINANCE to amend certain portions of Special Ordinance No. 10022 levying
assessments for the costs of litter removal, by removing the assessment on 3712 North
36th Street in the amount of$260.00 plus accrued interest; and to provide the effective
date.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
Section 1. That such portion of Special Ordinance No. 10022, passed January 28, 2003,
relating to and levying the special assessment for litter removal costs on the following described
property:
Daniel W. Buzbee Parce1:3122-0002-10 $260.00
3712 N 36 St. Lot 27
Omaha, Douglas County Lts. 26 & 27
NE 68111 Block 0
Dist.-Num. 1-107 Fairfax
3712 N 036 St.
Be and hereby is amended to remove and delete the said assessment and accrued interest thereon;
and that the total amount of Special Ordinance No. 10022 be amended accordingly.
Section 2. This Ordinance shall be in full force and take effect fifteen days from and
after its passage.
INTRODUCED BY COUNCILMEMBER
APPROVED BY:
• y �
MAYOR OF THE CITY F OMAHA DA E
PASSED \APR - 8 2003
ATtES'h,
°'-'ITY OF OMAHA" Dt�T E�
LERK OF THE.,
APPROVED AS TO FORM:
CITY ATTO DATE
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INTEROFFICE MEMORANDUM
Law Department
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DATE: March 21, 2003
TO: Sandie Moses, City Clerk
Frank Brown, City Councilmember
FROM: Alan M. Thelen, Assistant City Attorney
SUBJECT: 3712 No. 36th Street Special Assessment
Logbook#79-02-City Clerk
As requested, attached for placement on the March 25, 2003 agenda are originals and
copies of a cover letter and ordinance to remove the special assessments on 3712 No. 36th St.
Street.
We should again note that the practice of reducing or removing the amount of the
principal or accrued interest of a special assessment already levied, absent some irregularity or
good faith dispute as to the same, is legally questionable. While this has been done on occasion
in the past, attached are copies of opinions (dated June 28, 1993 and March 7, 1995)raising legal
concerns about the practice. The statutes and cases cited in the 1993 opinion indicate that the
removal cannot be done, unless there was some defect or irregularity in the initial assessment or
unless the removal is part of a good faith settlement of a disputed claim.
Respectfully submitted,
(24-1_
Alan M. Thelen
Assistant City Attorney
AMT/dlm
Attachments
INTER-OFFICE COS I'UNICATION
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Law Department
.June 28 , 1993 .
TO : . Lou D ' Ercole, Acting City Comptroller
FROM: Thomas 0 . Mumgaard, Assistant City Attorney
SUBJECT : Waiver of accrued interest on specials-eTSments
Legal Opinion - .Response to Log Book.9-93-Financ e
You have asked for a legal opinion discussing restrictions on
when the City may waive interest accrued on a building
demolition special assessment . The new •owner of property
subject to demolition special assessments is willing to pay the
delinquent taxes and the principal amount . of the building
demolition assessments . He wishes , however for the City to
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waive accrued interest . •
I . Waiver of Accrued Interest .
• The primary • hurdle to waiving interest . appears to be Nebraska
Statute § 77-1737 . It provides , in part :
"No county or township board, city council , •
or village trustees shall have the power to
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release,' discharge, remit, or commute any
portion of the taxes assessed or levied
• against any person or property within 'their
• respective jurisdictions for any reason
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• whatever . Any taxes , so discharged,
released; remitted, or commuted, may ' be
• recovered by civil action from the members •
of any such board, council, . or trustees , and
the sureties on their official bonds at the
• suit of any citizen of the county, township ,
city, or village as the case , may be, and
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when collected shall be paid into the proper
treasury. "
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This statute expressly applies only to "taxes" . ' However, the
word " taxes" includes special assessments . " ' Special
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assessment ` is a tax, ' intended to offset cost of local
improvements such as sewer, water and streets , which is
selectively imposed upon beneficiaries . " Dosedel v . City of
Ham Lake , 414 N .W. 2d 751, 755 (Minn. App . 1987) . See also ,
Falldorf v . City of 'Grand Island, 292 N .W. 598 ; 601 (Neb. 1940)
(special assessments are a peculiar species of taxation) .
Thus , Neb . Stat . § 77-1737 prohibits the City Council from
Lou D 'Ercole , Acting City Comptroller '
June 28 , 1993
Page 2
• SUBJECT : Waiver of accrued interest on special assessments
Legal Opinion - Response to Log Book 69-93-Finance
----------------------------------------------------------------
releasing , discharging , remitting , or commuting any portion of
special assessments taxed for building demolition .
In Falldorf v . City of Grand Island, 292 N .W. 598 , the Nebraska
Supreme Court held that, without a special grant of power from
the legislature , a city council has no power to reduce,
discharge or release the interest accrued on delinquent special
assessments . In that case, a taxpayer sued to enjoin the City
of Grand Island from accepting payment of special improvement
assessments less accrued interest and penalties . The Court
reasoned that a city, possesses only such power as is expressly
conferred upon * it by statutes or as is necessarily implied from
the statutes . A municipal corporation is a creature of the law
and it cannot act except as authorized by law . When statutes
require interest accrue on special assessments , a city council
cannot act contrary to those statutes without an express grant
of special authority. The Court distinguished the case of
Farnham v . City of Lincoln, 75 Neb . 502 , 106 N .W. 666 (1906) ,
in which special assessments and interest were compromised as
part of a good faith settlement of a litigated case .
Nebraska statutes applicable to the City of Omaha require that •
interest shall be imposed upon delinquent special assessments .
Section 18-1722 provides that special assessments resulting
• from demolition of dangerous buildings shall be collected in
• the same manner as other special assessments . Thus , • the
mandatory requirement of interest found in § 14-537 applies to
demolition special assessments . *I find no authority in that
statute or other statutes for the City to vary fromthis
direction that interest" shall". be assessed.
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Under the rule laid out by the Court in Falldorf v . City of
Grand Island, supra, I believe the City of Omaha does not have
* ' the authority to disregard the direction of § 14-537 . The City
cannot fail . to assess interest on special assessments or to
release interest once it has accrued . ,Interest can be waived'.
• only as part of. a good-faith settlement of a disputed claim.
II . Reassessment of Special Assessment .
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With respect to reassessing the property so interest will begin
to accrue anew, several statutes come into play. Section
14-538 permits a city council to .relevy special taxes or
assessments if the tax or assessment is "invalid, uncollectible
and void, or . . . adjudged to be void by a court . . r because
of any defect, .irregularity or invalidity, in any of the
proceedings or on account of the failure to observe and comply
Lou' D ' Ercole , Acting City Comptroller •
• June 28 , 1993 ,
A Page 3
- SUBJECT : Waiver of_.accrued interest on special .assessments
Legal Opinion - Response to Log Book 69-93-Finance
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with any of the conditions , prerequisites , and requirements of
any statute or ordinance . . . . " Similarly, § 14-562 permits a
city council to relevy a municipal tax upon property when the •
tax remains uncollected because . of " any defect , error or
irregularity in either the power or. manner of making the levy
• thereof . ' Section 14-540 permits a city council , sitting
as a board of equalization, to levy or relevy a special
assessment to correct an "omission, mistake, defect or any
irregularity in the preliminary proceedings . .
The statutes do not permit a city council to relevy a tax
otherwise validly assessed simply to make the property more
attractive to potential purchasers . In my opinion, Nebraska
statutes do not authorize relevying the special assessment in
the circumstances your question .presents .
III . Future Legislation. •
In Tukey v.. Douglas County, 277 N .W. 57 (Neb . 1938) , the
Supreme Court suggested that the state legislature could pass a
statute granting the , city broader authority to release or
discharge interest owed. on special assessments . In that case .
the Court held that Article VIII section a of . the Nebraska
Constitution would not prohibit the Legislature from granting
cities that authority. .
The constitutional provision says that the legislature has. no •
power to release or discharge persons from their proportionate
share of taxes levied for state purposes or due any municipal
corporation unless the tax or assessment against real property
remains delinquent and unpaid for a period . of fifteen years or
longer . In Tukey, supra , the Supreme Court held that interest
• and penalty charges were not part of the " taxes" referred to in
.the' constitutional provision. However, absent that act by the
. legislature, the City of Omaha cannot itself create or exercise
such authority.
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• Respe gully submitted,
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7L��/Ji, .1 0- •
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Thomas O . Mumgaar-d
TOM: km
9302B
INTER-OFFICE COMMUNICATION 6 ji;or'
Law Department S ;61 e u1a I s
31 JPf�a.0 S5955 er1+
March 7, 1995
TO: Lou Andersen, Assistant to the City Council
FROM: Michael A. Goldberg , Assistant City Attorney
SUBJECT: Council's ability to forgive/modify assessment on
a sidewalk improvement district
Responding to Councilmember Christensen's query made when the Council's sat as a Board
of Equalization on March 7, 1995, please note the attached legal opinion authored by
Assistant City Attorney Thomas O. Mumgaard under date of June 28, 1993.
Premised upon the preemptive nature of the State Statutes referenced in Mr. Mumgaard's
opinion, and the lack of any "hardship" ordinance contained in the Omaha Municipal Code,
it is my opinion that the Council cannot forgive/modify the assessment against a property
owner for a sidewalk improvement district based upon financial hardship.
Should you desire further clarification or information with regards to this matter, please feel
free to contact the undersigned at 444-5123.
Respectfully,
///,- (7
MICHAEL A. GOLDBERG
Assistant City Attorney ( .
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"NOTICE TO PUBLIC" THE DAILY RECORD
The following Ord' a ce has been set for OF OMAHA
City Council her'., pril 1,20. , a[
2:00 o'clock ' Ott .an. :the Legislative ,
Chambers, Omah gta •Civic Center, RONALD A. HENNINGSEN,Publisher
1819Ens interested,
Strted, Nat which•hearing all PROOF OF PUBLICATION
persons interested,inafieard.
AN ORDINANCE t .lamend certain
portions of Special Ordinance_,No. 10022 UNITED STATES OF AMERICA
levying assessments for the costs'of litter r
.removal, by removing the':ass hment on Use State of Nebraska,
3712 North 36th Street in'the mount of District of Nebraska, ss,
fs
$260.00 plus accrued interests_' and to' Coun ofCity of am Douglas,
,
provide the effective date. '._, Omaha.
BUSTER BROWN,
City Clerk
3-28-03 JOHN P. EGLSAER
being duly sworn.deposes and says that he is
ADVERTISING MANAGER
of THE DAILY RECORD,of Omaha,a legal newspaper,printed and
published daily in the English language, having a bona fide paid
circulation in Douglas County in excess of 300 copies, printed in
Omaha,in said County of Douglas,for more than fifty-two weeks last
past; that the printed notice hereto attached was published in THE
DAILY RECORD,of Omaha,on
March 28, 2003
it ,_8 •-,t .perthat time was regularly
'� ,� during gu y published and
'�f irAL-tl�yt,,:as i`',n in the County of Douglas, and State of
". 3h0
Pub�lishe S... ...`/ ... -- ., �.-�—�
i... ribed In my resence and sworn to
t �,�,�� i beforeme s 28th f .day of
'I •
�Jj:. 6. 2p.0 A,v,i' 0.. N�arch .20.
‘‘ FOF EBB
Notary c f ,I .:T. ..,
to of Nebraska
__ _ , . 'wh,
"NOTICE TO PUBIC" THE DAILY RECORD
ORDINANCE NO.36235 A��
AN ORDINANCE to amend certain OF O11T�//��I.AIIA
portions of Special Ordinance 'No. 10022
levying assessments for the costs of litter RONALD A. HENNINGSEN Publisher
removal, by.removin'§Wthe assessment on f
37126 North 36tha rued iri the ; and
tof
o PROOF OF PUBLICATION
$260.00 plus accrued interest; and to
provide the effective date.
SUMMARY: •UNITED STATES OF AMERICA,
AN ORDINANCE ,�M end certain
portion. ,.i•'Spe i _r m tcek Na: 10022 The State of Nebraska,
le asm nts, r ii-costs of litter SS.
re • 11 b -rem vin the assessment on District of Nebraska,
371 ort 36tti Street in the^amount of
$2.•.• din'accrued' interest; and to County of Douglas,
provide the effective,date, City of Omaha,
PASSED:'Apnl'8,2003,6-0
APPROVEDAY:.
MIKE'ThLTTEEY, '• 4/10/03 LYNDA K. HENNINGSEN
MAYOR OF•THE
CITY OF OMAHA being duly sworn,deposes and says that she is
BUSTER BROWN,
City Clerk 4-16-03 ASSOCIATE PUBLISHER
of THE DAILY RECORD, of Omaha, a legal newspaper, printed and
• published daily in the English language, having a bona fide paid
circulation in Douglas County in excess of 300 copies, printed in
Omaha,in said County of Douglas,for more than fifty-two weeks last
past; that the printed notice hereto attached was published in THE
DAILY RECORD,of Omaha,on
April 16, 2003
1 ; • aper during that time was regularly published and
• e4thalMi 'on in the Co 4, of Douglas, State of Nebraska.
•
ci r>fI s bed in my pre nce and swo .-fore
t*Iibllllèr'sFeeN • 9 0 me this 16th ,day of
_� j April ' 03
Additional Copies $ 20
Mr
rFOF NEW bli •n : o I•• .• ty,
tate of Nebraska