§ 3-326. Common area fees

(a) Common area fees are charges levied upon the owners of taxable properties located in the District which shall be used to defray the expenses incurred by the City in connection with the operation, maintenance, and repair of the Marketplace.

(b) Any amount appropriated under section 325 of this charter which is not anticipated from gifts, grants, voluntary contributions, and rentals and fees other than common area fees shall be raised by common area fees. The City Council after not less than one duly warned public hearing shall propose standards to aid in the determination of the benefit described herein. The City Council after public hearing and after considering the advice of the Commission shall establish standards to aid in the determination of the benefits described herein and shall levy such common area fees upon such properties in the proportion that it judges such properties to be benefited by the construction and/or operation of the Marketplace. An important but not necessarily exclusive factor in determining the extent to which the fair market value of such property has been enhanced by virtue of the construction and/or operation of the Marketplace. The amount raised by such assessments shall be appropriated to the Church Street Marketplace District.

(c) The City Council shall set such common area fees for the ensuing fiscal year no later than June 15 of each year, and in doing so shall have given 12 days' notice of the time and place of hearing to the parties interested and shall set forth in its notice a complete schedule of all common area fees set by it and of the properties so assessed. During the 12 days' notice period all parties so assessed, if aggrieved, may appeal, in writing, the assessment to the City Council. The City Council, immediately following termination of the 12 days' notice period and after soliciting the advice of the Commission, shall make final determination of common fees and shall cause such decision to be recorded in full by the Chief Administrative Officer; and when such decision is so recorded, the amount so assessed shall be and remain a lien in the nature of a tax upon the properties so assessed, until the same shall be paid, or such lien is otherwise discharged by operation of law. The City Assessor, at the expense of the District, shall thereupon forthwith notify in writing the owner or owners of record as of April 1 of each year of properties so assessed, their agents, or attorneys, stating therein the amount of such fees, and such fees shall be due and payable to the Chief Administrative Officer in four installments, on the 15th day of August, November, March, and June following the making thereof. Notice shall be deemed adequate if made by publication of notice not less than three times not less than five days nor more than 12 days preceding each installment date. Such notice may also be given by including such common area fees upon the property tax bill mailed to the owners of taxable properties within the District.

(d) [Reserved.]

(e) Any person owning or interested in properties so assessed who is dissatisfied with the amount of such fee shall have the right to judicial review of the City Council's decision. Such review shall be initiated by first paying the first installment of the fee so assessed under protest and by filing a notice of appeal in the Chittenden Superior Court within 20 days following August 12 of each year. Notwithstanding the filing of a notice of appeal, all subsequent installments of such fee must also be paid under protest before the Court shall have subject matter jurisdiction to render a judgment affecting any such installment. A copy of such notice of appeal shall be served upon the Burlington Chief Administrative Officer. The proceeding before the Superior Court shall be de novo and the appellant may demand trial by jury. An appeal from the determination of the Superior Court may be taken to the Vermont Supreme Court, pursuant to the Vermont Rules of Civil and Appellate Procedure. The pendency of such proceedings shall not vacate the lien created upon the properties assessed. Should the Court find that a common area fee assessed against an appellant to have been excessive, it shall order the excess payment to be refunded together with such interest thereon that it shall deem appropriate. When such proceedings shall be finally determined, a duly certified copy thereof shall be duly recorded by the Chief Administrative Officer in the records of streets and highways in said Chief Administrative Officer's office, within 20 days after the final determination of such proceedings. The amount assessed in such proceedings shall be and remain a lien in the nature of a tax upon the properties so assessed until such assessments are fully paid to the Chief Administrative Officer of the City. In case no assessment shall be made in such proceedings, such records shall discharge said properties from all liens created by the assessments thereon made by the City Council as aforesaid.

(f) If the owner or owners of any property so assessed shall neglect to pay to the Chief Administrative Officer any quarterly installment of such fee on the date such installment is due and payable, the amount of such installment shall be increased by a penalty of five percent. If such installment increased by the five percent penalty is not paid by the 15th day of the month after the date upon which it became due and payable, it shall be delinquent and the Chief Administrative Officer shall increase the amount due by an additional one percent of the original installment. On the 15th day of every month thereafter that the installment or any part thereof remains due, the Chief Administrative Officer shall add to the total amount due an additional amount equal to one percent of the original installment, or any portion thereof, remaining unpaid. The Chief Administrative Officer shall issue a warrant for the collection thereof. The amount due from any person against whom a common area fee has been assessed shall thereafter be deemed to be the amount of any such installment or delinquent portion of such original common area fee increased by all penalties and interest accruing thereon to date and also 12 percent interest, compounded annually on all of such delinquent amounts and any penalties and interest added thereto, from the date of such warrant. The City shall proceed to collect the same in the manner prescribed in this charter for the collection and enforcement of assessments made in laying out or altering streets and highways.

(g) The Mayor, two members of the City Council, and two members of the Commission, on appointment of the City Council, shall constitute a Board for the Abatement of Assessments whenever the same are illegal or in the judgment of the Board cannot be collected or are manifestly unjust.

(h) Meetings of such Board shall be convened in the manner herein prescribed for calling special meetings of the City Council; and notice thereof signed by the Mayor or Chief Administrative Officer, and shall be given to all persons paying common area fees by the publication of notices for two days in all the daily newspapers printed in the City, the first of which publication shall be not more than 10 days, and the last not less than three days prior to said meeting. Whenever any common area fee, or any part thereof, is abated, the Chief Administrative Officer shall make a minute of such abatement on the original assessment on file in his or her office on the margin of the record thereof.