MSB Response to the MLCC Having More Influence Using the SpUD Administrative Review Process

posted Jun 14, 2011, 10:38 AM by Tim Swezey   [ updated Jun 14, 2011, 11:13 AM ]
At the last meeting an issue came up concerning the Administrative Review Process in the SpUD. The community wanted more of a say in the administrative review instead of a advisory role. 

Lauren Kruer sent an email to the Borough attorney Nicholas SpiropoulosBelow is a copy of the email exchange. Also a question about property taxes came up and the answer is at the bottom of the email from Nicholas Spiropoulos. 

From: Lauren Kruer 
Sent: Thursday, June 09, 2011 12:49 PM
To: Nicholas Spiropoulos
Subject: meadow lakes

 

The Meadow Lakes Community Council is proposing to create an administrative review process for their SpUD.  The admin permit would make the community council the decision make body of the permit.  Can the community council do that and what are the related affects of that action?

 

Also what is the section of state statue I should site for the citizen interested in knowing more about taxation?

 

Thanks, Lauren


 

From: Nicholas Spiropoulos 
Sent: Monday, June 13, 2011 4:51 PM
To: Lauren Kruer
Subject: RE: meadow lakes

 

As to the Meadow Lakes CC being the decision making body, it raises some issues:

The Alaska Statutes on the subject are relatively close to a standard zoning enabling act found across the country. 

 

First:

AS 29.40.020 proscribes the duties and powers of the Planning Commission.  In part, the law reads that the Planning Commission is to “review recommend and administer the measures necessary to impellent the comprehensive plan, including measures provided under AS 29.40.040.”  In turn AS 29.40.040 provides that in order to implement the comprehensive plan, the Assembly shall adopt ordinances governing the use and occupancy of land that include, but are not limited to, zoning, permitting and other measures.  This is where the legal authority to have permits comes from.

 

What you are essentially talking about here is the Meadow Lakes CC being the authority to decide if a permit is appropriate or not.  I would have serious concerns that such a proposition for a second class Borough in Alaska is illegal.  If it were possible to do, the Assembly could designate whomever they want and bypass the Planning Commission altogether.  Researching this question and fully assessing all the risks could involve some substantial research.

 

Second:

Even if it were possible, there are administrative and legal functioning reasons cautioning against such an action.  To be a decision making body of the MSB, the Meadow Lakes CC would then need staff support from the Planning Department and Clerk’s Office.  They would also need to know how to conduct a quasi-judicial hearing without regard to the influence of outside factors and refrain from ex-parte contacts.  Any failure to do so on their part would render a decision vulnerable to attack.  In addition, as a government, the MSB is always charged with a duty to ensure that everyone’s due process and equal protection rights are honored.  Sometimes these concepts can be very hard to administer.  With a single Planning Commission, they have bi-weekly meetings, are constantly staffed and have the opportunity to get trainings at the municipal league, etc.  In addition, the PC members see various types of permits on a frequent basis because they see all the conditional use permits in the MSB.   

 

Were the Meadow Lakes CC to take on these tasks, they would become part of the MSB, but only for the limited purpose of conducting quasi-judicial hearings.  If the Community Council members make honest mistakes simply because they don’t perform a quasi-judicial function very often, it would still fall to the MSB as the entity responsible to deal with adverse effects of any errors they make.  In addition, the situation it could also cause confusion as people may perceive the Meadow Lakes CC as part of the MSB government even when the CC is not conducting quasi-judicial hearings (which would be inaccurate).

 

Third:

Even if it were legal for the Meadow Lakes CC to take this responsibility, the Meadow Lakes CC to hear these conditional use permits would not be elected from the Meadow Lakes community.  In a second class Borough in Alaska, all boards and commissions which are part of the MSB are appointed by the Mayor and confirmed by the Assembly (Except for the BOAA and BOE it can be done this way, or the Assembly themselves can sit as the BOAA or BOE).  See AS 29.20.320.  The Meadow Lakes CC would then be in a quandary if they have an election as a Community Council (which is self governing under MSB 2.76) and the Mayor appoints different people.  The Mayor cannot be compelled or severely limited as to whom he must select for a board or commission.

 

Hopefully this answers your larger question.  Let me know if you have others.

 

As to municipal taxation, Chapter AS 29.45 grants the MSB the authority to levy a property tax and collect it in the manner specified. It contains the authority, mechanisms and exemptions etc.  Specifically, AS 29.45.290 to AS 29.45.500 mandate foreclosure to satisfy unpaid taxes

 

 

 

Nicholas Spiropoulos

Borough Attorney

Matanuska-Susitna Borough

350 E. Dahlia Avenue

Palmer, AK  99645

(907) 745-9677

(907) 745-6070 FAX

nspiropoulos@matsugov.us

www.matsugov.us

 

The making of an error in one case gives others no right to its perpetuation.

Silides v. Thomas, 559 P.2d 80, 89 (Alaska 1977).

 

THIS COMMUNICATION AND ANY DOCUMENT(S) ACCOMPANYING IT ARE

CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION(S)

AND/OR PROTECTED BY OTHER LEGAL GROUNDS OF CONFIDENTIALITY.  IT SHOULD NOT BE REPRODUCED, FORWARDED, DISTRIBUTED OR OTHERWISE DISCLOSED OR DISSEMINATED WITHOUT THE EXPRESS PERMISSION OR UPON THE ADVICE OF AN ATTORNEY IN THE MATANUSKA-SUSITNA BOROUGH ATTORNEY'S OFFICE.

 

DISCLOSURE OF CONFIDENTIAL INFORMATION IS PROHIBITED BY LAW.


On the question of collecting property taxes you can for the Alaska Statutes can be found here: http://www.commerce.state.ak.us/dca/logon/pubs/29_45.htm 

Article 2. Enforcement of Tax Liens

Sec. 29.45.290. Validity.Certified assessment and tax rolls are valid and binding on all persons, notwithstanding a defect, error, omission, or invalidity in the assessment rolls or proceedings pertaining to the assessment roll. (§ 12 ch 74 SLA 1985

Sec. 29.45.295. Collection of delinquent taxes on certain governmental property. AS 29.45.300 – 29.45.490 do not apply to property taxable under AS 29.45.030(a)(1)(B) or (C) or to federal property not exempted under AS 29.45.030(a)(8). A municipality may bring an action in the superior court to compel payment of property taxes due from the state, municipal, or federal entity if the entity does not pay the amount due within six months after the date that the taxes are due. (§ 2 ch 85 SLA 1991)

Sec. 29.45.300. Tax liability.
(a) The owner of assessed personal property is personally liable for the amount of taxes assessed against the property. The tax, together with penalty and interest, may be collected in a personal action brought in the name of the municipality.

(b) Property taxes, together with penalty and interest, are a lien upon the property assessed, and the lien is prior and paramount to all other liens or encumbrances against the property. (§ 12 ch 74 SLA 1985)

Sec. 29.45.310. Enforcement of personal property tax liens by distraint and sale.
(a) A lien for personal property taxes may be enforced by distraint and sale of the property. The municipality shall provide the procedure for distraint and sale by ordinance. A seizure, levy, or distraint is not legal unless demand is first made of the person assessed for the amount of the tax, penalty, and interest, and a sale is not valid unless made at public auction no sooner than 15 days after notice is published. The seizure is made by virtue of a warrant issued by the municipal clerk to a peace officer.

(b) If the personal property sold is not sufficient to satisfy the tax, penalty, and interest, and costs of sale, the warrant may authorize the seizure of other personal property sufficient to satisfy the tax, penalty, interest, and costs of sale. If the property is sold for more money than is needed to satisfy the tax, the municipality shall remit the excess to the former record owner upon  presentation of a  proper claim. A claim for the excess filed after six months of the date

Sec. 29.45.320. Real property tax collection.
(a) The municipality shall enforce delinquent real property tax liens by annual foreclosure, unless otherwise provided by ordinance.

(b) If the tax on property described in AS 29.45.070 or on a taxable interest in tax-exempt property is not paid when due, a municipality may enforce the tax by a personal action against the delinquent taxpayer brought in the district or superior court, in addition to other remedies available to enforce the lien. (§ 12 ch 74 SLA 1985)

Sec. 29.45.330. Foreclosure list.
(a) A municipality shall

        (1) annually present a petition for judgment and a certified copy of the foreclosure list for the previous year's delinquent taxes in the superior court for judgment;

        (2) publish the foreclosure list for four consecutive weeks in a newspaper of general circulation distributed in the municipality or, if there is no newspaper of general circulation distributed in the municipality, post the list at three public places for at least 30 days;

        (3) within 10 days after the first publication or posting, mail to the last known owner of each property as the owner's name and address appear on the list a notice advising of the foreclosure proceeding in which a petition for judgment of foreclosure has been filed and describing the property and the amount due as stated on the list.

(b) The list must be arranged in alphabetical order as to the last name and shall include

         (1) the last known owner;

         (2) the property description as stated on the assessment roll;

         (3) years and amounts of delinquency;

         (4) penalty and interest due;

         (5) a statement that the list is available for public inspection at the clerk's office;

          (6) a statement that the list has been presented to the superior court with a petition for judgment and decree.

(c) Completion of the requirements of (a) of this section constitutes and has the same force and effect as the filing of an individual  and  separate  complaint  and  service  of  summons to foreclose a lien against each property described on the foreclosure list. (§ 12 ch 74 SLA 1985)

Sec. 29.45.340. Clearing delinquencies. During the publication or posting of the foreclosure list and up to the time of transfer to the municipality a person may pay the taxes, together with the penalty, interest, and costs. The collector shall note payment on the foreclosure list. (§ 12 ch 74 SLA 1985)

Sec. 29.45.350. List to lienholder. A holder of a mortgage or other lien on real property may request the clerk to send by certified mail notice of a foreclosure list that includes the real property. (§ 12 ch 74 SLA 1985)

Sec. 29.45.360. General foreclosure.A municipality shall bring one general foreclosure proceeding in rem against the properties included in the foreclosure list. If the owner is unknown, the property is proceeded against as belonging to "unknown owner."  (§ 12 ch 74 SLA 1985)

Sec. 29.45.370. Answer and objection. A person having an interest in a lot on the foreclosure list may file an answer within 30 days after the date of last publication, specifying the person's objection. The court shall make its decision in summary proceedings. The foreclosure list is prima facie evidence that the assessment and levy of the tax is valid and that the tax is unpaid. (§ 12 ch 74 SLA 1985)

Sec. 29.45.380. Judgment.The court shall in a proper case give judgment and decree that the tax liens be foreclosed. It is a several judgment against each lot and a lien on each lot. (§ 12 ch 74 SLA 1985)

Sec. 29.45.390. Transfer and appeal.
(a) Foreclosed properties are transferred to the municipality for the lien amount. When answers are filed the court may enter judgment against and order the transfer to the municipality of all other properties on the list pending determination of the matters in controversy. The court shall hear and determine the issues raised by the complaint and answers in the same manner and under the same rules as it hears and determines other actions.

(b) The court clerk shall deliver a certified copy of the judgment and decree to the municipal clerk. The certified judgment and decree constitutes a transfer to the municipality.

(c) The judgment and decree stops objections to it that could have been presented before judgment and decree. Appeal from a judgment and decree of foreclosure, or from a final order in the proceeding, may be taken in a manner provided for appeals in civil actions. (§ 12 ch 74 SLA 1985)

Sec. 29.45.400. Redemption period. Properties transferred to the municipality are held by the municipality for at least one year. During the redemption period a party having an interest in the property may redeem it by paying the lien amount plus penalties, interest, and costs, including all costs incurred under AS 29.45.440(a). Property redeemed is subject to all accrued taxes, assessments, liens, and claims as though it had continued in private ownership. Only the amount applicable under the judgment and decree must be paid in order to redeem the property. (§ 12 ch 74 SLA 1985)

Sec. 29.45.410. Effect.Receipt of redemption money by the municipality releases the judgment obtained under AS 29.45.380. The clerk or the clerk's designee shall record the redemption and issue a certificate containing a property description, the redemption amount, and the dates of judgment and decree of foreclosure. The clerk or the clerk's designee shall collect the recording fee at the time of redemption and shall file the certificate with the record as part of the judgment roll. (§ 12 ch 74 SLA 1985)

Sec. 29.45.420. Additional liens.If a property included in a foreclosure list is removed after payment of delinquencies or redemption  by  another  lienholder,  the  payment  represented by receipt for payment constitutes an additional lien on the property, collectible by the lienholder in the same manner as the original lien. (§ 12 ch 74 SLA 1985)

Sec. 29.45.430. Possession during redemption period. Foreclosure does not affect the former owner's right to possession during the redemption period. If waste is committed by the former owner or by anyone acting under the permission or control of the former owner, the municipality may declare an immediate forfeiture of the right to possession. (§ 12 ch 74 SLA 1985)

Sec. 29.45.440. Expiration.
(a) At least 30 days before the expiration of the redemption period the clerk or the clerk's designee shall publish a redemption period expiration notice. The notice must contain the date of judgment, the date of expiration of the period of redemption, and a warning that all properties ordered sold under the judgment, unless redeemed, shall be deeded to the municipality immediately on expiration of the period of redemption and that every right or interest of a person in the properties will be forfeited forever to the municipality. The notice appears once a week for four consecutive weeks in a newspaper of general circulation distributed in the municipality. If there is no newspaper of general circulation distributed in the municipality, the notice is posted in three public places for at least four consecutive weeks. The clerk shall send a copy of the notice by certified mail to each record owner of property against which a judgment of foreclosure has been taken and, if the assessed value of the property is more than $10,000, to all holders of mortgages or other liens of record on the property. The notice shall be mailed within five days after the first publication. The mailing shall be sufficient if mailed to the property owner and to the holder of a mortgage or recorded lien at the last address of record.

(b) The right of redemption expires 30 days after the date of the first notice publication.

(c) Costs incurred in the determination of holders of mortgages and other liens of record and costs of notice publication incurred by a municipality under (a) of this section are a lien on the property and may be recovered by the municipality. (§ 12 ch 74 SLA 1985)

Sec. 29.45.450. Deed to borough or city.
(a) Unredeemed property in the area of the borough outside all cities is deeded to the borough by the clerk of the court. Unredeemed property in a city is deeded to the city subject to the payment by the city of unpaid borough taxes and costs of foreclosure levied against the property before foreclosure. The deed shall be recorded in the recording district in which the property is located.

(b) Conveyance gives the municipality clear title, except for prior recorded tax liens of the United States and the state.

(c) If unredeemed property lies in a city and if the city has no immediate public use for the property but the borough does have an immediate public use, the city shall deed the property to the borough. If unredeemed property lies in the borough outside all cities and if the borough does not have  an  immediate  public  use for the property but a city does have an immediate public use, the borough shall deed the property to the city.

(d) A deed is not invalid for irregularities, omissions, or defects in the proceedings under this chapter unless the former owner has been misled so as to be injured. Two years after the date of the deed, its validity is conclusively presumed and a claim of the former owner or other person having an interest in the property is forever barred. (§ 12 ch 74 SLA 1985)

Sec. 29.45.460. Disposition and sale of foreclosed property.
(a) The municipality shall determine by ordinance whether foreclosed property deeded to the municipality shall be retained for a public purpose. The ordinance must contain the legal description of the property, the address or a general description of the property sufficient to provide the public with notice of its location, and the name of the last record owner of the property as the name appears on the assessment rolls.

(b) Tax-foreclosed property conveyed to a municipality by tax foreclosure and not required for a public purpose may be sold. Before the sale of tax-foreclosed property held for a public purpose, the municipality, by ordinance, shall determine that a public need does not exist. The ordinance must contain the information required under (a) of this section.

(c) The clerk or the clerk's designee shall send a copy of the published notice of hearing of an ordinance to consider a determination required under (a) or (b) of this section by certified mail to the former record owner of the property that is the subject of the ordinance. The notice shall be mailed within five days after its first publication and shall be sufficient if mailed to the last record owner of the property as the name appears on the assessment rolls of the municipality.

 (d) The provisions of (c) of this section do not apply with respect to property that has been held by the municipality for a period of more than 10 years after the close of the redemption period. (§ 12 ch 74 SLA 1985)

Sec. 29.45.470. Repurchase by record owner.
(a) The record owner at the time of tax foreclosure of property acquired by a municipality, or the assigns of that record owner, may, within 10 years  and  before  the sale  or contract  of sale  of the  tax-foreclosed property by the municipality, repurchase the property. The municipality shall sell the property for the full amount applicable to the property under the judgment and decree plus

       (1) interest not to exceed 15 percent a year from the date of entry of the judgment of foreclosure to the date of repurchase;       

       (2) delinquent taxes assessed and levied as though it had continued in private ownership;

       (3) costs of foreclosure and sale incurred by the municipality; and

       (4) costs of maintaining and managing the property incurred by the municipality including insurance, repairs, association dues, and management fees, that exceed amounts received by the municipality for the use of the property.

(b) After adoption of an ordinance providing for the retention of tax-foreclosed property by the municipality for a public purpose, the right of the former record owner to repurchase the property ceases. (§ 12 ch 74 SLA 1985; am § 1 ch 192 SLA 1990)

Effect of amendments. — The 1990 amendment rewrote the second sentence of subsection (a).

Sec. 29.45.480. Proceeds of tax sale.
(a) On sale of foreclosed real or personal property the municipality shall divide the proceeds less cost of collection, between the borough and the city having unpaid taxes against the property. The division is in proportion to the respective municipal taxes against the property at the time of foreclosure.

(b) If tax-foreclosed real property that has been held by a municipality for less than 10 years after the close of the redemption period and never designated for a public purpose is sold at a tax-foreclosure sale, the former record owner is entitled to the portion of the proceeds of the sale that exceeds the amount of unpaid taxes, the amount equal to taxes that would have been assessed and levied after foreclosure if the property had continued in private ownership, penalty, interest, and costs to the municipality of foreclosing and selling the property, and costs to the municipality of maintaining and managing the property that exceed amounts received by the municipality for the use of the property. If the proceeds of the sale of tax-foreclosed property exceed the total of unpaid and delinquent taxes, penalty, interest, and costs, the municipality shall provide the former owner of the property written notice advising of the amount of the excess and the manner in which a claim for the balance of the proceeds may be submitted. Notice is sufficient under this subsection if mailed to the former record owner at the last address of record of the former record owner. On presentation of a proper claim, the municipality shall remit the excess to the former record owner. A claim for the excess filed after six months of the date of sale is forever barred. (§ 12 ch 74 SLA 1985; am § 2 ch 192 SLA 1990)

Effect of amendments. — The 1990 amendment, in subsection (b), added all of the language of the first sentence beginning "and costs to the municipality."

Sec. 29.45.490. Payment of taxes upon public utilization. If a municipality takes title to tax-foreclosed property for a public purpose, the municipality shall satisfy unpaid taxes and assessments against the property held by other municipalities, with accrued interest but without penalty. If the amount required to satisfy the  unpaid taxes  and  assessments  exceeds  the  assessed value of the property, the municipality shall pay the other municipalities the assessed value, which shall be divided between the other municipalities in proportion to their respective taxes and assessments against the property at the time of foreclosure. (§ 12 ch 74 SLA 1985)

Sec. 29.45.500. Refund of taxes.
(a) If a taxpayer pays taxes under protest, the taxpayer may bring suit in the superior court against the municipality for recovery of the taxes. If judgment for recovery is given against the municipality, or, if in the absence of suit, it becomes obvious to the governing body that judgment for recovery of the taxes would be obtained if legal proceedings were brought,  the municipality shall refund  the amount of the taxes to the taxpayer with interest at eight percent from the date of payment plus costs.

(b) If, in payment of taxes legally imposed, a remittance by a taxpayer through error or otherwise exceeds the amount due, and the municipality, on audit of the account in question, is satisfied that this is the case, the municipality shall refund the excess to the taxpayer with interest at eight percent from the date of payment. A claim for refund filed one year after the due date of the tax is forever barred.

(c) The governing body may correct manifest clerical errors at any time. (§ 12 ch 74 SLA 1985)

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