HomeMy WebLinkAboutORD 2002-082 2000-2002
COUNTY OF I3AWAI~I ST'AT'E OF ~IAWAI~I
SILL NO. ~ ~ ~
OJ[~DINANCE NO.
A BILL FOR AN ORDINANCE AMENDING CHAPTER 12 OF THE HAV6~AI`I COUNTY CODE
1983 (1995 EDITION), AS AMENDED, RELATING TO IMPROVEMENT DISTRICTS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. PURPOSE. The purpose of this measure is: (1) to define an "assessment unit" in
an improvement district; (2) to specify that a "condominium unit" may be subject to a levy of special
assessment in an improvement district; (3) to define an "owner" of an "assessment unit" as the person to
whom the real property tax for such assessment is assessed; (4) to remove "lessees" and "occupants" from
certain provisions of this chapter, thereby removing the County from any legal relationships an owner
may have with a lessee or occupant; (5) to clarify to whom the county clerk must send the public mail
notice to establish an improvement district; (6) to specify what the notice should contain; (7) to clarify
how an objection or protest against a proposed improvement district assessment should be counted for an
assessment unit; (S) to authorize the director of public works or the department of water supply manager
rather than the council to award the contract in accordance with the state procurement code; (9) to
authorize the director of public works or the department of water supply manager to award more than one
contract for different kinds of work to be performed; (10) to eliminate language relating to the award of a
contract extending beyond the fiscal year of contract issuance, as existing contract procedures, fiscal
policies and County Charter requirements adequately address this section; (11) to authorize the director of
finance, upon termination of an improvement district, to make any cash refunds to the property owner(s)
of record at the time that the director of finance authorizes such refund; (12) to allow the reallocation of
an assessment if there is an increase in the number of assessment units resulting from subdivision,
annexation or other means if provided in the resolution establishing the improvement district; (13) to
authorize, in the case of improvements financed by bonds issued to secure loans from the federal
government, th4€~ the maximum number of annual principal installments may be increased so as to permit
the repayment of the principal of such bonds over a period not to exceed 35 years; and (14) to amend all
other sections of Chapter 12, Hawaii County Code, to conform with language and definitions contained
within these amendments.
SECTION 2. Chapter 12, Article 1, Section 12-1, Hawaii County Code 1983 (1995 Edition,
relating to Definitions, is amended to read as follows:
"Section 12-1. Definitions.
(a) As used in this chapter:
"Assessment unit" means, with respect to a special assessment, a subdivided parcel of
land and/or condominium unit that will be subject to such special assessment; provided,
however, that every assessment unit shall have a unique tax map key number.
"Condominium unit" means an "apartment" as defined in Section 514A-3, Hawaii
Revised Statutes, and may include, if so determined by the council, the common elements
and/or limited common elements appurtenant thereto, as set forth in the declaration of
condominium property regime or horizontal property regime which created such
apartment.
[(1)] ~ "Cost" means the cost, either estimated or actual, as the case may be, of the
improvements to be opened, constructed or improved in proceedings taken pursuant to
this chapter for which assessments are to be levied. There may be included within the
definition of "cost," amounts for construction contingencies, bond discounts, reserve
funds, capitalized interest, and incidentals.
[(2)] ~ "Improvement district" means any contiguous or noncontiguous [areas] area within
the County which [had] has been designated by the council as an improvement district for
the purposes of this chapter.
[(3)] ~ "Incidentals" means expenses in carrying out proceedings pursuant to this chapter
for:
(A) Preparation of maps, notices, and other documents;
(B) Posting, mailing and publication costs;
(C) Preparation and printing of bonds, bond registers and transfer books;
(D) Fees of financial, legal, engineering and surveying consultants; and
(E) Such other administrative or miscellaneous expenses which relate directly to the
proceedings.
[(4)] ~ "Manager" means the manager of the County of Hawaii department of water
supply.
[(5) "Owner" includes:
(A) The person or persons with fee simple estates in property;
(B) A buyer under a recorded agreement of sale which agreement is recorded in the
appropriate public office so that the agreement which appears as of public record,
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and which agreement contains terms which require the buyer to pay the assessments
contemplated by this part;
(C) A lessee of property who holds a lease for said property which lease is recorded in
the appropriate public office, so that the lease which appears as of public record,
and which lease contains terms which require the lessee to pay the assessments
contemplated by this part;
(D) A trustee of property held in trust; and
(E) A life tenant or vested remainderman of property.]
"Owner" of an assessment unit means the person to whom the real property tax for such
assessment is assessed, as shown on the real property tax assessment roll, regardless of
whether such person is exempt from the payment of such tax.
[(6)] ~ "Premium" means:
(A) An amount payable by a property owner at the time the owner makes an advance
payment of unpaid installments of the assessment in accordance with the provisions
of section 12-35 (Advance payment assessment installment) which amount is in
addition to the unpaid principal amount of the owner's assessment and the interest
thereon to the next date for the payment of installments;
(B) An amount payable to the holder of a bond issued pursuant to this chapter which is
called by the director of finance for payment before maturity in accordance with the
pravisions of section 12-54 (Payment of bonds), and which is in addition to the face
amount of such bond and the interest thereon payable to such bondholder; or
(C) An amount paid by the purchaser of the bonds in excess of the par value of the
bonds.
[(7)] ~ "Special improvement," "improvement," "the making of a special improvement,"
"make any special improvement" and equivalent expressions include any one or any
combination of the following:
(A) The establishment, opening, extension, widening, or altering of any street, alley, or
other highway or sidewalk;
(B) The grading, paving, curbing, or otherwise improving of the whole or any part of
any existing public street, alley, or other highway or sidewalk;
(C) The construction of a storm drainage facility;
(D) The construction of a street lighting system;
(E) The construction of a water system;
(F) The construction and installation of underground or overhead utility facilities
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including gas, electrical, telephone or television facilities, and the removal,
relocation, replacement or reconstruction thereof;
(G) The establishment, extension, or construction of public off-street parking facilities,
pedestrian malls, parks, playgrounds, beach areas, or other public recreational areas
and facilities;
(H) [To make improvements] Improvements related to the foregoing, and to otherwise
improve any of the foregoing to an extent exceeding maintenance or repair thereof;
(I) Any other public improvement, which will specially benefit the [land] assessment
units to be assessed.
[(8)] 10 "Storm drainage facility" includes "sanitary sewerage system."
[(9)] 11 "Water system improvement district" means an improvement district in which the
improvements to be made are exclusively those to construct a water system or upgrade an
existing water system."
SECTION 3. Chapter 12, Article 1, Section 12-2, Hawaii County Code 1983 (1995 Edition),
relating to method and authority to issue bond, is amended to read as follows:
"Section 12-2. Method; authority to issue bond.
(a) Whenever in the opinion of the council it is desirable to make any special improvement in any
improvement district, the special improvement shall be made and done under the provisions of
this chapter. The cost of the special improvement including the cost of acquiring (whether
prior to or after the commencement of the proceedings for such improvements) any new land
therefor, shall be assessed against the [land] assessment unit specially [benefitted] benefited on
the basis of any method or methods which the council finds assesses the assessment unit
according to the special benefits conferred thereon, which may include, without limitation, any
of the following:
{1) [On a frontage basis;] Fronta e;
{2) [According to area of the land within an improvement district;] The area of the
assessment unit;
(3) The permissible number of dwelling units [assigned to] permitted on each parcel [in the
improvement district] under applicable zoning provisions;
(4) [In the case of a water system the] The amount of water allotted to each [parcel in the
improvement district;] assessment unit;
(5) [Required] Minimum required sewer capacity of the assessment unit;
(6) Traffic generation/usage for road improvements;
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(7) [Square footage of building) The square footage of buildings and/or other improvements;
or
(8) Any method [which] that the council finds assesses said [land] assessment units
according to the special benefits conferred on said [land] assessment units or any
combination thereof.
(b) The County may issue and sell bonds to provide the funds for such improvements, which bonds
shall be secured by such assessments as a lien upon the [lands) assessment units assessed. For
such purpose, the council may create, define and establish improvement districts, all according
to the provisions of this chapter."
SECTION 4. Chapter 12, Article 1, Section 12-4, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-4. Improvements outside designated districts.
(a) Improvements which may be outside the improvement district boundaries but which confer
special benefits on [land] assessment units within the improvement district may be included as
part of the special improvements in the improvement district and the cost thereof shall be
assessed as provided in this chapter.
(b) The cost of improvements described in section 12-4(a) which benefit more than one
improvement district shall be apportioned among the affected improvement districts according
to the special benefits conferred upon the [lands] assessment units within said improvement
districts."
SECTION 5. Chapter 12, Article 1, Section 12-7, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-7. Costs advanced and borne by owners and County.
(a) The County or an affected owner of [real property] an assessment unit may advance costs,
including incidentals, for improvement districts, whether before or after the commencement of
proceedings for creation of improvement districts and, to the extent that said costs are included
in the cost of improvements for said improvement districts, the council may direct partial or
full reimbursement to the County or such owner for such costs from improvement district
funds. Upon a request by an affected owner of [real property] an assessment unit, the director
of finance may apply all or part of any such refund toward payment of improvement district
assessments or installments thereof. The County may expend such funds to the same extent as
if it advanced its own funds for that purpose. If the improvement district is not created or if it is
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terminated by the council under section 12-6, said owner shall not be entitled to any refund or
credit, except as authorized by the council.
(b) For main or general thoroughfares, the County may assume and pay out of all available funds,
the costs of improvements thereto which: (1) exceed the special benefits conferred on the
assessed [land] assessment units or (2) the council finds should not be covered by special
assessments. As used in this section "main or general thoroughfare" means a street or highway
that is used as an arterial highway between substantially different or naturally separated
localities or sections of the County."
SECTION 6. Chapter 12, Article 1, Section 12-8, Hawaii County Code 1983 (1995 Edition),
relating to Limitation on time to sue, is amended to read as follows:
"Section 12-8. Limitation on time to sue.
[No action or proceeding to review any acts or proceedings to question the validity or enjoin the
performance of any act, the issue or payment of any bonds, or the levy or collection of any
assessments authorized under this chapter, whether based upon irregularities or jurisdictional
defects, or otherwise, shall be maintained unless begun within thirty days after the performance of
the act or the passage of the resolution or ordinance complained of.] Any objections to any actions
undertaken pursuant to this chapter shall be governed by Section 46-80.5, Hawaii Revised Statutes."
SECTION 7. Chapter 12, Article 2, Section 12-10, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Article 2. Procedure.
Section 12-10. Initiation by council; study of proposed improvement; adoption of
improvement; hearing.
(a) The council shall, by resolution requiring not more than one reading far its adoption, direct the
director of public works, or the manager in the case of a water system improvement district, to
prepare and submit to the council a report containing the following:
(1) Preliminary data concerning the special improvement proposed to be opened,
constructed, or improved;
(2) The general character and extent of any improvement to be proposed;
(3) The proposed assessment unit and method of assessment (whether on a frontage, area or
other basis];
(4) Whether any new land will be necessary to be acquired, and the estimated cost thereof
and the proportion of the cost which should be borne by the County;
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(5) The materials recommended to meet the conditions of the improvement;
(6) The boundaries of the proposed improvement district and any subdistricts or zones
therein as to which different portions of the cost of improvements should be charged;
(7) The estimated cost of the improvement, the portions of the cost to be borne by the
County, and the portions of the cost to be assessed against the [lands] assessment units
specially [benefitted] benefited with the maximum unit of assessment to be made against
each [lot] assessment unit to be assessed; and
(8) All necessary plans and other data, details, and specifications for the improvements and
any other matters or details intended to apply thereto.
The report of the director of public works, or of the manager in the case of a water system
improvement district, when so furnished and filed with the council, shall not be acted upon
until one week has elapsed from the date of the filing of the report with the council.
(b) If the proposed improvement includes the construction or improvement of a water system or
the laying or the installation of conduits, pipes, hydrants, or any appliance for supplying or
distributing a water supply, the director of public works shall obtain from the department of
water supply preliminary plans and estimates for such proposed water system, and the director
of public works shall furnish the department of water supply with such preliminary plans of the
proposed improvement as will enable the department of water supply to make its plans and
estimates for the proposed water system. The director of public works shall incorporate such
preliminary plans and estimates of the department of water supply in [his] the report to the
council.
(c) Thereafter the council may, by resolution requiring one reading for its adoption, propose the
making of an improvement or improvements, specifying:
(1) The special improvements to be opened, constructed, or improved;
(2} The area, owners, so far as known, and general description and location of new land to be
acquired, if any;
(3) The materials proposed to be used;
(4) The proposed assessment unit and method of assessment including the minimum number
of installment payments to be proposed;
(5) The maximum term of assessment bonds to be issued to represent unpaid installments;
(6) The maximum rate of interest to be borne by the bonds;
(7) The maximum premium required to be paid on the advance payment of installments or
the call and redemption of any bond prior to its maturity;
The maximum amount of the reserve fund either as set forth in the report of the director
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of public works or as otherwise determined by the council;
(9) The general boundaries of the district or frontage, subdistricts and zones to be assessed;
and
(10) The maximum estimated units of assessment.
The resolution shall refer to and incorporate by reference such surveys, plans, maps, and other
data reported by the director of public works or the manager in the case of a water system
improvement district as are approved by the council. The resolution shall also fix a date of
public hearing upon the proposed improvement, which date shall be not less than fifteen days
after the first publication of notice thereof in [a] at least one newspaper of general circulation
in the County.
(d) The council may adopt the plans and estimates so furnished by the department of water supply
and incorporated in the report of the director of public works. If the plans and estimates of the
department of water supply are adopted by the council, the plans and estimates shall be
referred to and incorporated by reference in such resolution.
(e) After the adoption of the resolution, the County clerk shall [cause]:
Cause a notice of the public hearing to be published twice a week for two
successive weeks (four publications in all) in [a] at least one newspaper of general
circulation in the County, giving notice, generally, to all owners of [land] assessment
units proposed to be assessed or land to be acquired and to all others interested in the
general details of the proposed improvements as adopted by the council and stating the
time and place of public hearing and where the resolution and reports and other data may
be seen and examined prior to the hearings[.];
[Like notices shall be posted] Post copies of the notice described in the preceding
paragraph at least ten days prior to the hearing at a public place in the district in which
the proposed improvement district is located[.]; and
[A similar] Mail a notice of public hearing [shall be mailed] to all owners of [land] the
assessment units proposed to be assessed at least two weeks prior to the hearing. The
notice to be mailed shall contain:
[(1)] (A~ The material contained in the published and posted notices;
[(2)] ~ A description of the [property] assessment unit of such owner[, lessee, or
occupant of land] set forth in such manner as to enable such owner[, lessee, or
occupant] to identify the [property; and] assessment unit;
((3)] (C~ A statement that the [property] assessment unit described on said notice
is proposed to be assessed to pay for a portion of the cost of the proposed
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improvements[.];
A statement that the testimony of all interested persons and owners of assessment
units for or against the establishment of the district, the extent of the district, and the
levy of the special assessment will be heard; and
A statement that a protest against making all or part of the proposed improvements
or against the methods by which such assessments are to be made, or the inclusion
of certain costs therein must be submitted in writing, in accordance with Section 12-
12 of this chapter, to be considered by the council.
[(f) Affidavits of publication in the newspaper and posting at the public place, respectively, shall
be filed with the council on or before the hearing.]
~ The clerk of the county shall file with the council on or before the hearing an affidavit by the
clerk of the county attesting that he or she completed the publication, posting, and mailings
described in the preceding Section 12-10(e) in accordance with the requirement thereof;
provided, however, that the failure of the clerk to timely file such affidavit shall not invalidate
the proceedings held thereafter.
(g) Any failure to post, mail, or receive the notice described above, shall not invalidate the
proceedings held thereafter.
(h) No improvement district shall be approved unless:
(1) The assessed valuation for taxation purposes of the [land] assessment units to be
improved is at least twice the estimated costs of the proposed improvement; or
(2) The council finds the appraised value of such [land] assessment units as improved is at
least twice the estimated cost of the proposed improvement. The appraisal shall be
conducted in accordance with prevailing standards for appraisals used by banks for loans.
(i) No improvement district shall be approved unless the council finds that such improvement is in
the public interest."
SECTION 8. Chapter 12, Article 2, Section 12-12, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-12. Filing of protests[; lessee's right to protest].
[(a)] Any owner of [property to be assessed] an assessment unit may at or before the public hearing file in
writing, with the council, any protest, objection, or suggestions as to the proposed improvement, stating
[briefly his reason therefor, or present the same in person orally at the public hearing.] the reason(s)
therefor, and may present such written protest, objection, or suggestions in person at the public hearing.
If the owners of [property] assessment units which [is] are proposed to have fifty percent or more of the
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total assessments (whether such assessments are to be assessed by frontage, area or otherwise) file written
protests, duly acknowledged by such owners, against making all or part of the proposed improvements or
against the methods by which such assessments are to be made, or the inclusion of certain costs therein,
then the improvements or methods of assessment shall not be made contrary to said written protests. If the
protest is against the making of any improvement, the same shall not be made, and the proceedings shall
not be renewed within six months from the date of closing the public hearing, unless [each and every
owner protesting withdraws his protest] all owners withdraw their protests.
[(b) Any lessee or buyer under agreement of sale (as such persons are described in section 12-1) of
any property to be-assessed under this chapter, who by the express terms of the lease must pay
the assessments contemplated by this part, shall be subrogated to all the rights of such owner to
protest by filing with the council, prior to or at the hearing, a certified copy of the lease or
agreement of sale, together with a citation of the book and page of the public record of the
same if it is recorded; provided, that any lessor of such lessee, or any owner of the property to
be assessed, may, at any time before the closing of the public hearing, make void the protest or
the rights of protest of any lessee of the property on consideration of filing with the council a
duly acknowledged waiver of the stipulation in the lease which required the lessee to pay the
special assessment, and a written undertaking by the lessor or owner to pay the special
assessment to be made under the proposed improvement.]"
SECTION 9. Chapter 12, Article 2, Section 12-15, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-15. Petition by twenty percent of owners.
(a) If the owners of not less than twenty percent of the frontage upon any street, alley ar highway
designated by them or of twenty percent of the area of land designated by them as a proposed
improvement district, file with the council a petition duly acknowledged by the owners
requesting the construction of special improvements, together with the surveys, maps, plans and
other preliminary data and estimates mentioned in section 12-10, the council may reject or
accept the petition. If the council accepts the petition, it shall proceed in the manner hereinafter
provided. The council shall act on the petition provided:
(1} The petition of twenty percent of the owners includes the signatures of at least fifty
percent of the resident owners residing in the proposed improvement district; and
(2) A state of emergency is found to exist by the council that requires the formation of the
improvement district.
(b) The cost of the preliminary surveys, maps and other data shall be deemed part of the cost of
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the improvement provided fifty-one percent of the owners of the improvement district
hereinabove described do not object to the improvement district. If fifty-one percent or more of
the owners involved in the improvement district oppose the improvement district, all such cost
of the preliminary surveys, maps and other data shall be borne by the County as if the
proceeding had been initiated by the council in accordance with section 12-10.
(c) Upon such petition and prior to the hearing thereon, the council shall, at its option, have the
power to abandon the proceedings or make any change or modification of the plans or the
details or specifications for the proposed improvements without the written consent of the
petitioning owners of the frontage or area of the land to be assessed. With. regard to the
petition, the council may at any time decline to acquiesce in or may modify any part of the
plan which contemplates the payment by the County of any part of the cost of acquiring new
land or of any part of the cost of improving any main or general thoroughfare.
(d) Upon receipt of the petition, the council shall by resolution requiring not more than one
reading for its adoption, direct the director of public works, or the manager in the case of a
water system improvement district:
(1) To investigate and report to the council:
(A) Preliminary data concerning the special improvements proposed to be opened,
constructed, or improved;
(B) The general character and extent of any improvement to be proposed;
(C) [Whether such improvements should be proposed on a frontage or an area basis;)
The proposed assessment unit and method of assessment;
(D) Whether any new land will be necessary to be acquired, and the estimated cost
thereof and the proportion of the cost which should be borne by the County;
(E) The materials recommended to meet the conditions of the improvement;
(F) The boundaries of the rp
oposed improvement [to be proposed] district and any
subdistricts or zones therein as to which different portions of the cost shall be
charged; and
(G) The estimated cost of the improvement, the portions of the cost to be borne by the
County, and the portions of the cost to be specifically assessed against the [lands]
assessment units specially benefited with the maximum unit of assessment to be
made [against the property posed]; and
(2) To prepare and furnish all necessary drawings and other data, details, and specifications
for the improvements and any other matters or details intended to apply thereto.
The report when so furnished and filed with the council[,] shall not be acted upon until one week has
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elapsed from the date of the filing of the same.
(e) If the proposed improvement includes the construction or improvement of the water system or
the laying or installation of conduits, pipes, hydrants, or any appliance for supplying or
distributing a water supply, the director of public works shall obtain from the department of
water supply preliminary plans and estimates for such proposed water system and the director
of public works shall furnish the department of water supply with such preliminary plans of the
proposed improvement as will enable the department of water supply to make its plans and
estimates for the proposed water system. The director of public works shall incorporate
preliminary plans and estimates of the department of water supply in [his] the report to the
council.
(f) The council may, by resolution requiring one reading for its adoption, propose the making of
an improvement or improvements specifying:
(1) The streets, storm drainage, sanitary sewerage system, water system or street lighting
system, or combination thereof, to be opened, constructed, or improved;
(2) The area, owners, so far as known, and general description and location of new land to be
acquired, if any;
(3) [Materials] The materials proposed to be used;
(4) [Proposed] The proposed unit of assessment and method of assessment including the
minimum number of installment payments to be proposed;
(5) The maximum term of assessment bonds to be issued to represent unpaid installments;
(6) The maximum rate of interest to be borne by the bond;
(7) The premium required to be paid on the advance payment of installments for the call and
redemption of any bond prior to its maturity;
(8) The amount of the fund either as set forth in the report of the director of public works or
as otherwise determined by the council;
(9) The general boundaries of the district or frontage, subdistricts and zones to be assessed;
and
(10) The maximum amount estimated to be assessed against a unit of assessment.
(g) The council may adopt the plans and estimates so furnished by the department of water supply
and incorporated in the report of the director of public works. If the plans and estimates of the
department of water supply are adopted by the council, the plans and estimates shall be
referred to and incorporated by reference in such resolution. The resolution shall refer to and
incorporate by reference such surveys, plans, maps and other data reported by the director of
public works as are approved by the council. The resolution shall also fix a date of public
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hearing upon the proposed improvement, which date shall be not less than forty-five days after
the first publication of notice thereof in a newspaper of general circulation in the County. The
hearing shall provide owners of [lands] assessment units within the improvement district with
a reasonable opportunity to object or approve in writing of the proposed improvement.
(h) After the adoption of the resolution, the County clerk shall [cause]:
Cause a notice of the public hearing to be published twice a week for [four] two
successive weeks ([eight] four publications in all) in [a] at least one newspaper of
general circulation in the County, giving notice, generally, to all owners lessees and
occupants] of [land] assessment units proposed to be assessed or acquired and to-all
others interested in the general details of the proposed improvements as adopted by the
council and stating the time and place of public hearing and where the resolution and
reports and other data may be seen and examined prior to the hearing[.];
(2~ [Like notices shall be posted conspicuously] Post copies of the notice described in the
preceding paragraph at least ten days prior to the hearing [approximately every two
hundred fifty feet along the highway or highways proposed to be opened or improved. A
similar] at a public place in the district in which the proposed improvement district is
located; and
Mail a notice of public hearing [shall be mailed] to all owners lessees, and occupants of
land] of the assessment units proposed to be assessed at least [thirty days] two weeks
prior to the hearing. The notice to be mailed shall contain:
[(1)] ~ The material contained in the published and posted notices;
[(2)] ~ A description of the [property] assessment unit of such owner[, lessee, or
occupant of land) set forth in such manner as to enable such owner[, lessee, or
occupant] to identify the [property; and] assessment unit;
[(3)] ~ A statement that the [property] assessment unit described on said notice is
proposed to be assessed to pay for a portion of the cost of the proposed
[improvement. In case of a storm drainage, sanitary sewerage, water or street
lighting system proposed to be constructed or improved independently, like notices
shall be posted conspicuously at various places within the area along the place to be
assessed.] improvements;
A statement that the testimony of all interested persons and owners of assessment
units for or against the establishment of the improvement district, the extent of the
improvement district, and the levy of the special assessment will be heard; and
A statement that any protest, objection, or suggestion relating to the making of all or
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part of the proposed improvements or against the methods by which such
assessment are to be made, or the inclusion of certain costs therein must be
submitted in writing, in accordance with Section 12-12 of this chapter, to be
considered by the council.
[(i) Affidavits of publication both in the newspaper and along the route of improvement,
respectively, shall be filed with the council at the hearing.]
The clerk of the county shall file with the council on or before the hearing an affidavit by the
clerk of the county attesting that he or she completed the publication, posting, and mailings
described in the preceding Section 12-15(h) in accordance with the re uirement thereof;
provided, however, that the failure of the clerk to timely file such affidavit shall not invalidate
the proceedings held thereafter. Any failure to post, mail, or receive the notice described above
shall not invalidate the proceedings held thereafter.
(j) All notices referred to in this section shall also contain a provision providing that if the owner[,
lessee, or occupant of land proposed to be assessed] does not object in writing at or before the
time of hearing, such inaction will be construed as a conclusive presumption that said owner[,
lessee, or occupant] does not object to the proposed improvement and that the improvement
district may be put into effect unless fifty-one percent of the owners who will be assessed as a
result of the improvement district object in writing at or prior to the time of hearing.
(k) Should fifty-one percent or more of the owners of the [land] assessment units affected by the
improvement district fail to object prior to or at the hearing, the proposed improvement by
assessment shall be approved by council passing a resolution requiring one reading for its
adoption, provided, that no such improvement shall be approved unless:
(1) The assessed valuation for taxation purposes of the [land] assessment units to be
improved is twice the estimated cost of the proposed improvement; or
(2) The council by resolution finds the appraised value of such [land] assessment units in
accordance with prevailing standards of appraisal and used by banks for loans thereon is
twice the estimated cost of the proposed improvement and that such approval is in the
public interest.
(1) This section shall apply only to subdivisions created prior to March 1, 1967."
SECTION 10. Chapter 12, Article 2, Section 12-16, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-16. Petition by owners of one hundred percent of frontage or area,
(a) If a petition is filed and is acknowledged by the owners of one hundred percent of the frontage
]4
upon any street, alley, or highway or of the area of land designated by them as a proposed
improvement district, [and by all lessees of any property to be assessed under this chapter,
who, by the express terms of the lease, must pay the kind of assessment contemplated by this
chapter, unless the lessor shall, with the petition, file a duly acknowledged waiver of the
stipulation in the lease which requires the lessee to pay the special assessments to be made
under the proposed improvement,] then the council may reject or accept the petition. If the
petition is accepted, the council shall proceed in the same manner as though the plan for the
improvement had been initiated on its own motion, except that it shall be unnecessary for the
council to give, publish, mail, or post notices of the proposed improvements, as provided for in
section 12-10. In the case of a petition acknowledged by the owners of one hundred percent of
the frontage or area designated as an improvement district, section 12-12 shall be inapplicable
thereto, any other provision or section to the contrary notwithstanding. In the case the owners
of one hundred percent of the frontage or area of land designated as a proposed improvement
district consent in writing to the amount and apportionment of the proposed assessments for
such improvements, it shall be unnecessary to give the notice or to hold the hearing specified
by section 12-27 and the council may immediately proceed to fix the assessments in the
manner provided by section 12-29.
(b) No such improvement shall be approved by the council unless:
(1) The assessed valuation for taxation purposes of the [land] assessment units to be
improved is twice the estimated cost of the proposed improvement; or
(2) The council by resolution finds the appraised value of such [land] assessment units in
accordance with prevailing standards of appraisal then used by banks for loans thereon is
twice the estimated cost of the proposed improvement and that such approval is in the
public interest."
SECTION 11. Chapter 12, Article 2, Section 12-18, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-18. Resolution to define extent of improvement.
If, after initial or further advertisement and hearing when no changes are made which will require
further advertisement or hearing, the council determines to proceed with the improvements, it shall, by
resolution requiring not more than one reading for its adoption:
(1) Create, define, and establish the extent of the frontage improvement or the improvement
district to be assessed;
(2) Define the kind, extent, and general details of the proposed improvements;
IS
(3) Describe each parcel of land to be acquired, if any;
(4) Declare the part or proportion of the cost of the improvement which is to be borne by the
County;
(5) Describe the assessment units and method of assessment;
(6) Describe the kinds of materials to be used;
(7) Direct the director of public works, or the manager in the case of a water system improvement
district, as provided in section 12-19; and
(8) If the proposed improvement includes construction or improvements of a water system, make
requests as provided in section 12-20."
SECTION 12. Chapter 12, Article 2, Sections 12-23 through 12-26, Hawaii County Code 1983
(1995 Edition), is amended to read as follows:
"Section 12-23. [Awarding of contract; dividing into separate contracts.
(a) All improvements made under the provisions of this chapter shall be constructed under a
contract awarded to the lowest responsible and reliable bidder therefor, after public
advertisement by the council in some newspaper of general circulation in the County twice a
week for not less than two weeks, except as provided in sections 103-21 to 103-32, and part III
of chapter 64*, Hawaii Revised Statutes.
(b) The council may either award the work as an entire contract, or, in its discretion, make one or
more contracts separately for the different kinds of work to be performed, or for the
improvement of different highways or special improvements or parts of highways or special
improvements to be improved or constructed under one proceeding.] Reserved."
"Section 12-24. Bidding; award of contract.
(a) The bid process for the construction of special improvements shall be administered by the
Department of Public Works or by the Department of Water Supply in the case of a water
system improvement district in accordance with procedures and requirements applicable to
County of Hawaii projects and the state procurement code.
(b) The bid specifications shall contain provisions that specify that the award of the contract will
not occur until the improvement district is created and the necessary funds for construction are
appropriated.
The Department of Public Works or the Department of Water Supply, as the case may be, may
award the work as an entire contract or, in its discretion, make one or more contracts
separately for the different kinds of work to be performed."
16
"Section 12-25. [Contracts extending beyond fiscal year.
The council may, any other provision of the law to the contrary notwithstanding, award the contract
without having the total amount of the contract price available. If the completion of the contract will
extend beyond the fiscal year in which the same is executed it may be awarded without the council
appropriating the total amount the County is obliged to pay towards the contract price. In the latter event,
however, the County must have available and appropriated at the time of awarding the contract, if the
contract is to be completed during the next succeeding fiscal year, at least fifty percent or if the contract
by its terms is not to be completed until beyond the next succeeding fiscal year, at least thirty-three and
one-third percent of the amount the County is obliged to pay toward the contract price. The balance shall
in the first event be a first charge on the revenues of the County for the next succeeding fiscal year and in
the latter event shall be a first charge on the revenues of each of the next two succeeding fiscal years in
the amount that the same will be required during such fiscal years but in an amount of not less than fifty
percent of the balance at the beginning of the first succeeding fiscal year and the remainder at the
beginning of the second succeeding fiscal year. The contract shall not be legal unless, before it is
awarded, the council by resolution provides for the automatic appropriation at the beginning of the next
succeeding fiscal year or years of the amounts herein made a first charge on the revenues of the County
for such fiscal year or years and the director of finance shall make the appropriations on his books as by
the resolution provided.] Reserved."
"section 12-26. Contract for off-site water facilities.
(a) Notwithstanding any other provisions in this chapter to the contrary, in the event that a portion
of the improvements proposed to be made consist of water facilities outside of the boundaries
of a proposed improvement district which in whole or in part will serve the [land within such]
improvement district, and if there exists with respect to such facilities an arrangement or
agreement pursuant to which:
(1) The responsibility for the costs of such facilities in excess of a specified sum has been
fixed;
(2) The plans and specifications for such facilities will be approved by the department of
water supply; and
(3) The plans and specifications will not be prepared nor the contract for construction of such
facilities be ready to be advertised and awarded until a time or times beyond the time or
times when the proceedings pursuant to this chapter for construction of the proposed
improvements by assessment could otherwise be commenced and prosecuted; then the
council may determine to proceed pursuant to this section.
17
(b) The determination to proceed shall be made in the resolution proposing to make the
improvements, and the following provisions shall then be applicable to the proceedings:
(1) For the purpose of the report provided for in section 12-10 the preliminary plans for such
off-site water facilities need only be general in nature and the estimates therefor shall be
the sums specified by the aforementioned arrangement or agreement.
(2) Section 12-20 shall not be applicable, and for the purpose of the report provided for in
sections 12-18 and 12-19 the preliminary plans used for the report provided for in section
12-10(a) and (b) (general in nature only as provided in subsection (b)(1) above) shall be
sufficient, if adopted by the council in its resolution proposing to make the
improvements.
(3) For the purpose of section 12-27, the portion of the total amount of the cost of the
improvements attributable to such off-site water facilities shall be based upon said sum or
sums specified by the aforementioned arrangement or agreement, rather than upon a bid
of a lowest responsible and reliable bidder for such off-site water facilities
(4) If section 12-28(4) is applicable to the proceedings, the council need not request a call for
bids on such off-site water facilities.
(5) At such time as the final details, plans and specifications for such off-site water facilities
are prepared, approved by the department of water supply and by resolution approved and
adopted by the council, the contract for construction thereof shall be advertised and
awarded by the [council] department of water supply pursuant to the provisions of
sections 12-23, 12-24 and 12-25. All remaining funds after payment of the costs of such
facilities shall be transferred to and become a part of the reserve fund."
SECTION 13. Chapter 12, Article 2, Sections 12-27, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Section 12-27. Corrected map; preliminary assessment roll and description; notice of
authorized improvement.
(a) The council shall have the director of public works, or the manager in the case of a water
system improvement district, prepare a corrected map, a preliminary assessment roll,
description of [properties] assessment units to be assessed, a list of all known owners of the
[land) assessment units within the improvement district, and the director's or manager's
estimate of cost or the bid of the lowest responsible and reliable bidder (if such bid is made).
(b} The preliminary assessment roll and description of [properties) assessment units to be assessed
shall contain for the [land) assessment units in the proposed improvement district or in the
18
several subdistricts or zones, if any, the following:
(1) Where assessments are based on frontage, the maximum proposed amount per foot of
frontage;
(2) Where assessments are based on area, the maximum proposed amount per square foot;
(3) Where assessments are based on methods other than frontage or area, the [maximum]
method of assessment and the amount of which each unit of assessment [to] shall be
[applied] assessed;
(4} The maximum proposed amount of assessment for each [property] assessment unit; and
(5) A list of all known owners of the. [properties] assessment units within the proposed
improvement district.
(c) Upon receipt of the corrected map, preliminary assessment roll, and description of [properties]
assessment units, the council shall give notice of the following:
(1) The total cost of improvements as established by the estimate of the director of public
works or by the bid of the lowest responsible and reliable bidder, or as otherwise
provided in this chapter;
(2) The contents of the preliminary assessment roll;
(3) The availability of the corrected map, preliminary assessment roll and description of
[properties] assessment units for inspection at the office of the director of public works
during business hours at any time prior to and including the hearing date; and
(4) The time, date, and place of the public hearing to be held concerning said items; provided
that the date shall not be less than ten days nor more than three weeks after the date of the
first newspaper publication of the notice.
(d) The notice of improvement and hearing shall be advertised, mailed, and posted in the same
manner as provided in section 12-10.
(e) At the public hearing, the council shall act as a board of equalization to receive complaints or
objections concerning the amounts of the proposed assessments."
SECTION 14. Chapter 12, Article 2, Sections 12-28 and 12-28.1, Hawaii County Code 1983 (1995
Edition), is amended to read as follows:
"Sec4ion 12-28. Combination hearings; applicable proceedings.
(a) The council may combine the hearings provided for in sections 12-10 and 12-27. If it does so,
such determination shall be made in the resolution proposing to make the improvement or
improvements, and the following provisions shall then be applicable to the proceedings:
(1) The resolution need not specify the maximum estimated amount to be assessed on the
19
unit of assessment nor fix the date of public hearing upon the proposed improvement, but
shall direct the preparation by the director of public works, or the manager in the case of
a water system improvement district, of the documents and data to be prepared by him as
provided in sections 12-18 and 12-19 and in section 12-27 and if applicable shall include
the request and direction provided in section 12-20. A$er the combined hearings, if the
council determines to proceed with the improvements, the resolution specified in section
12-20 need not again direct preparation by the director of public works of the documents
and data as provided in sections 12-18 and 12-19. The clerk shall not cause the notices to
be given. as provided in section 12-10 until the documents and data have .been so prepared
by the director of public works, and if applicable, by the department of water supply, and
preliminarily approved by the council, at which time the council shall by resolution
requiring not more than one reading for its adoption fix the date of combined hearings.
(2) The matters to be contained in the notices provided for in sections 12-10 and 12-27 shall
be combined into single notices to be so published, posted and mailed; for the purpose
thereof the total amount of the cost of the improvement shall be based on the estimated
cost of the work to be included in bids when received, not upon the bid of the lowest
responsible and reliable bidder as specified in section 12-27.
(3) The council may request the director of public works or the department of water supply
manager, as the case may be, to call for bids on all improvements to be constructed under
contract to be received on or before the date of the combined hearings pursuant to the
provisions of sections 12-23, 12-24 and 12-25.
(4) The director of public works, or the manager in the case of a water system improvement
district, shall prepare an amended preliminary assessment roll based on any revisions in
the estimate of the director of public works or the manager or on the results of the bids
received for improvements as the case may be and shall send said amended assessment
roll to the council on or before the public hearing.
(A) If the amended preliminary assessment roll shows a proposed amount of assessment
for any of the [properties] assessment units to be assessed which is more than that
shown on the preliminary assessment roll, then, unless the affected owner[, lessee
and occupant] shall waive the same, the council shall postpone the public hearing and
readvertise and mail an amended notice of hearing containing the amended
preliminary assessment roll. Said readvertisement and mailing shall be done under
the provisions of section 12-27(c) and (d). Said postponed public hearing shall be
conducted in the same manner as provided in section 12-27(e).
20
(B) If the amended preliminary assessment roll shows a proposed amount of assessment
for each of the [properties] assessment units to be assessed which is the same or less
than the preliminary assessment roll, the public hearing shall be held as scheduled
and the amended preliminary assessment roll shall be considered at said public
hearing."
"Section 12-28.1. Termination of improvement districts.
The council by ordinance shall provide for the procedures to terminate an improvement district
created under this chapter once the improvements have been completed and the obligations of the
improvement district have been satisfied.
(a) 'The ordinance directing termination of an improvement district shall contain the provisions
enumerated below:
(1) The director of finance shall be directed to set aside sufficient funds to cover all
outstanding or anticipated debts or obligations of the improvement district, including cost
and expenses of making any distributions to [lot] assessment unit owners and the cash
refund obligations in section 12-28.1(a)(3) below.
(2) Any outstanding assessment installments which are not needed to pay the debts or
obligations described in section 12-28.1(a)(1) above, shall be canceled.
(3) If assessment installments are canceled, those owners whose [lots] assessment units have
prepaid assessments will be entitled to cash refunds equal to the assessment principal
which would be prepaid as of cancellation. For these purposes, "prepaid assessments"
shall include all payments made upon the assessments for [a lot] an assessment unit,
whether such payments were made before or after the assessment liens were created.
(4) The council may provide that from any funds remaining in the improvement district after
the payments described in sections 12-28.1(a)(1) or (3) that the director of finance be
authorized to make cash refunds to [lotJ assessment unit owners from remaining
improvement district funds in such amounts and at such times as the director of finance
finds are reasonable. Any cash refund will be made to the owner of record at the time
that the director of finance authorizes such refund.
(5) The effective date of termination shall be at such time that the director of finance has
determined that all outstanding or anticipated debts or obligations of the improvement
district have been paid or can be satisfied and that the cash refunds provisions described
above have been made.
21
(b) The ordinance directing termination of the improvement district shall not be enacted prior to
the redemption date fixed in the call for redemption of all outstanding improvement district
bonds at which time the director of finance or paying agent of the County, as the case may be,
shall have sufficient funds on hand to pay all outstanding bond principal, interest and any
premiums thereon."
SECTION 15. Chapter 12, Article 3, Section 12-29, Hawaii County Code 1983 (1995 Edition), is
amended to read as follows:
"Article 3. Assessments.
Section 12-29. Assessments fixed by ordinance; owner application to pay reduced
assessment.
(a) After the hearing, the council shall forthwith proceed to make such modifications or changes
as to them may seem equitable or just, or shall confirm the first proposed assessment. Upon
reaching a final decision the council shall by ordinance, fix the portions of the cost to be
assessed against the [benefitted properties] benefited assessment units and against the owners
thereof respectively. The ordinance shall incorporate by reference the assessment roll as
approved by the council. After the final enactment of such ordinance the amounts of the
several assessments so listed, advertised and incorporated and not previously objected to shall
be conclusively presumed to be just and equitable and not in excess of the special benefits
accruing or to accrue by reason of the improvement to the specific [property] assessment unit
assessed.
(b) After commencement of improvement district proceedings and prior to the adoption of the
improvement district ordinance described in section 12-29(a), an owner may apply for a
reduction in the proposed assessment against [a lot] an assessment unit as follows: (1) file a
written application with the County clerk for a reduced assessment not later than one week
prior to the time that the ordinance is placed on the council agenda for first reading; (2) deposit
the full amount of the proposed reduced assessment, said deposit being an irrevocable
commitment by the owner to the payment of the reduced assessment. The amount of reduction
shall be as provided by the council, but shall not exceed the applicant's proportionate share of
the sum of the improvement district bond reserve fund and the improvement district bond
discount allowance and other incidental expenses directly related to the issuance of
improvement district bonds. For purposes of the deposit requirements of this section, the
owner may direct that refunds due under section 12-7(a) be applied as a deposit hereunder.
Such refund amounts shall thereafter be treated as a deposit under this section, except that no
22
cash refund shall be made for or on account of such refund amounts, whether or not they are
treated as deposits in this section.
(1) The director of finance shall submit a report with recommendations to the council with
respect to any such applications. The council shall consider such applications and, to the
extent that such applications are acceptable to the council, include the same in the
improvement district ordinance. Upon approval of the application by inclusion of the
reduced assessment in the ordinance, the director of finance shall immediately deposit
such funds in the construction special account for the improvement district.
(2) If the assessment is not reduced by the council, the funds deposited shall be refunded to
the owner, except that no refund shall be made for or on account of refunds due for
advances made under section 12-7(a). In that event, the owner shall make payment of the
assessment as provided in this chapter."
SECTION 1 b. Chapter 12, Article 3, Sections 12-30 through 12-35, Hawaii County Code 1983
(1995 Edition), are amended to read as follows:
"Section 12-30. Amended assessments upon consolidation or subdivision (of lot].
[(a) In the event that an assessment unit previously assessed is subsequently subdivided or
consolidated with any other lot within the improvement district, the council, upon petition by
the owners of such lots as may be subdivided or consolidated, or upon petition by the lessees of
such lots who by the express terms of their leases are obligated to pay the kind of assessments
covered by this chapter, may prorate the original assessment among the lots resulting from the
subdivision or consolidate the assessments upon the component lots and assess the consolidated
lot therefor, by an appropriate amendment to the ordinance declaring the assessment; provided
that prior to the introduction of the amendment to the ordinance declaring the assessment:
(1) The subdivider or consolidators shall deposit with the County legal tender or a certified
check in an amount sufficient to be used to cover the cost of making such allocation, and
to cover the assessment allocable to areas used or to be used for purposes that are public in
nature, such as, but not limited to, roadways, parks, school sites, sewage treatment plant
sites and reservoir sites, developed in connection with the subdivision or consolidation
(together with any interest and premium payable thereon pursuant to section 12-38 by
reason of prepayment of unpaid principal); and
(2) The director of finance shall send notice of the proposed proration or consolidation
by certified mail to the original purchaser of any bonds which maybe outstanding for the
improvement district involved, together with a notice that unless a written request for a
23
hearing thereon is received within fourteen days from the date of mailing of such notice
the proration or consolidation will be presented to the council for approval and amendment
of the original assessment ordinance in accordance therewith.
(b) If a written request for a hearing is received, the council shall fix a date, time and place of such
hearing, notice of which shall be mailed by certified mail to each person making such
request. Such notice shall be so mailed at least fourteen days prior to the hearing. An affidavit
of mailing shall be filed with the clerk.
(c) The cost of making the reallocation of assessments, when determined by the director of finance
- and approved by the council, shall be paid into the general fund of the County. The amount of
the assessment allocable to areas used or to be used for purposes that are public in nature, and
developed in connection with the subdivision or consolidation, together with the above
specified premium and interest, as recommended by the director of public works and approved
by the council, shall be credited to the special fund described in section 12-49. The amended
assessments shall be a lien upon the subdivided assessment units or consolidated assessment
unit as of the date of the first publication of the original ordinance declaring the assessment.
(d) The amended assessments shall be paid in installments equal in number to that remaining under
the original assessment, at the same rates of interest, and each of such installments for the
respective amended assessments shall be its pro rata share of the corresponding installment that
would have been payable upon the original assessment, or, in the case of consolidation the total
of the corresponding installments that would have been payable upon the original assessments,
if proration of the original assessment or consolidation of the original assessments had not been
made.]
~ For purposes of this section 12-30:
"Subdivide", "subdivision", and "subdividing" shall refer to the subdividing of an
assessment unit pursuant to Chapter 23 of the Hawaii County Code, or the subjection of
real property to a condominium property regime pursuant to Chapter 514A, Hawaii
Revised Statutes.
"Consolidate", "consolidation", and "consolidating" shall refer to the consolidation of
more than one assessment unit into a single assessment unit.
In the event that an assessment unit previously assessed is subsequently subdivided, the
assessments previously levied against such original assessment unit shall be divided pro rata
among the resulting assessment units in accordance with the original method of assessment,
subject to section 12-30(c).
~ In the event of an increase in the number of assessment units within an improvement district
24
resulting from subdivision, annexation, or otherwise, if so provided in the resolution establishing
the improvement district in which such assessment units are located, the Department of Finance,
within sixty days following receipt of notification b the Planning Department of such approved
subdivision, annexation, or other action establishing a new assessment unit or units within the
improvement district, shall reallocate the outstanding assessments within the improvement
district among the assessment units subject to such outstanding assessments, including the
resulting new assessment units.
In the event that two or more assessment units previously assessed are subsequently
consolidated, .the total assessments previously levied against such original-assessment units shall
be levied against the resulting assessment unit."
SECTION 17. Chapter 12, Article 3, Sections 12-31, 12-32, 12-33, 12-34, 12-35, 12-37, 12-38,
12-39, 12-40, and 12-43, Hawaii County Code 1983 (1995 Edition), are amended to read as follows:
"Section 12-31. Notice and collection of assessments.
The director of finance shall forthwith publish notice of assessment once in [a] at least one daily
newspaper of general circulation in the County, and notify the several owners [and lessees] of the [land]
assessment units assessed, respectively, by registered letter or certified mail with request for a return
receipt, of the several amounts assessed on the respective [properties] assessment units and of the date
and place the assessments are payable. Such mailed notice shall be addressed to the owners [and lessees
of the lands] appearing in the records of the [department of taxation, State of Hawaii] real property tax
division of the department of finance, County of Hawaii, as the addresses appear in the records, or as
otherwise known to the director of finance if not shown in the records. The director of finance shall also
collect the assessments and set aside all moneys collected in a special fund or funds for the frontage
improvement or improvement district, as the case maybe."
"Section 12-32. Assessment as lien; order of priority; mistakes or errors.
(a) All assessments made pursuant to this chapter shall be a lien against each [lot or parcel of land]
assessment unit assessed from the date of the first publication of the ordinance declaring the
assessment until paid and shall have priority over all other liens except the lien of property
taxes and for other public purposes. The lien of assessments levied pursuant to this chapter
shall be on a parity with the lien of property taxes and liens for other public purposes. As
between liens of assessments made pursuant to this chapter, the earlier lien shall be superior to
the later lien.
(b) No delay, mistake, error, defect, or irregularity in any act or proceeding authorized by this
25
chapter shall prejudice or invalidate any assessment. The delay, mistake, error, defect or
irregularity may be remedied by subsequent or amended acts or proceedings and, when so
remedied, the same shall take effect as of the date of the original act or proceeding.
(c) If in any court of competent jurisdiction any assessment made under this chapter is set aside
for irregularity in the proceedings, the council may, upon notice as required in making an
original assessment, make a new assessment in accordance with the provisions of this chapter."
"Section 12-33. Due date of payments; election to pay by installments.
All assessments-under. this chapter shall be due and payable within thirty days after the date of the
last publication of the ordinance; provided that any assessments may, at the election of the owner of the
[land] assessment unit assessed, be paid in installments with interest, as hereinafter provided. Failure to
pay the whole of any assessment within the period of thirty days shall be conclusively considered and
held an election an the par[ of all persons interested in such assessments, whether under disability or
otherwise, to pay in installments. All persons so electing to pay in installments shall be conclusively
considered and held to have consented to the improvement and such election shall be conclusively held
and considered as a waiver of any and all right to question all power or jurisdiction of the County to make
the improvement, the regularity or the sufficiency of the proceedings, or the validity or correctness of the
assessment."
"Section 12-34. Payment of installments.
(a) In case of an election to pay any assessment in installments, the assessment shall be payable in
not less than five nor more than twenty annual installments of principal[, provided]; provided
that, in the case of improvements financed by bonds issued to secure loans from the federal
government, the maximum number of annual principal installments may be increased so as to
permit the repayment of the principal of such bonds over a period not to exceed 35 years from
the date of issuance; and provided further that the council may, in its discretion, determine the
date on which payment of such annual installments shall commence, which date shall be no
more than three years from the thirty-first day following the last publication of the ordinance
required to be enacted pursuant to section 12-29. The annual installments shall be in such
amounts as determined by the council, and each annual installment may be made payable in
twelve equal monthly installments; provided that principal, interest or both on any bonds
outstanding due prior to collection of annual assessment shall be paid in accordance with
section 12-49, and except as provided in sections 12-44, 12-45, and 12-4b regarding temporary
advances, shall not be paid out of any moneys available in the County treasury. Interest in all
26
cases shall be paid on the unpaid principal, at such rate or rates as may be determined by the
council.
(b) The date on which such annual installments shall commence, the number of such annual
installments, the respective amounts of the annual installments, the period of payment, and the
rate of interest shall be as determined by the council. Interest for each year may be computed
and collected up to the next succeeding date for payment of principal and interest on the bonds
issued pursuant to sections 12-44, 12-45, and 12-46, no deduction being made by reason of any
installment being due and payable prior to such date; provided, that after the annual
installments are determined and. fixed if it appears. to be of advantage.to the.assessee, the
council may permit the director of finance to accept payments in monthly installments as
hereinabove provided."
"Section 12-35. Advance payment of assessment installment.
The owner of any [lot or parcel] assessment unit subject to unpaid assessment installments which are
not delinquent may, at any time after the thirty day period specified in section 12-33, pay the entire
unpaid principal provided the total of the following sums are also paid therewith:
(1) An amount to be fixed by the director of finance for publishing notice calling bonds;
(2) Interest on the unpaid principal to the interest due date on the bonds next succeeding forty-five
days after the date of advance payment, plus interest for an additional six months on any
portion of the unpaid principal which is not evenly divisible by $1,000; and
(3) The premium required to be paid on advance payment of installments, if any, as specified in
the resolution adopted by the council pursuant to section 12-10. The premium shall not exceed
five percent of the unpaid amount."
"Section 12-37. Payment in bonds.
The director of finance may accept in lieu of cash in payment of any assessment, installment thereof,
interest, penalty, cost, expense or any portion thereof, bonds of the improvement district in which the
[land] assessment unit is situated, whether such bonds are outstanding or hereafter issued, to a value of
par, plus accrued interest to the date of acceptance of such bonds by the director of finance. Upon the
receipt of such bonds, the director of finance shall cancel the bond and credit the improvement district
with the amount allowed on the bonds."
"Section 12-38. Failure to pay installments.
(a) Failure to pay any installment, whether of principal or interest, when due, shall cause the
2?
whole of the unpaid principal to become due and payable immediately, and the delinquent
installment or installments shall thereafter bear penalty at the rate of two percent per month or
fraction of a month from the date of delinquency until the day of sale as provided in this
chapter. At any time prior to the date of sale, the owner may pay the amount of all delinquent
installments, with penalty, and all costs and expenses accrued, and shall thereupon be restored
to the right thereafter to pay in installments in the same manner as if default had not been
made.
(b) The council may, by resolution, approve a waiver of such amounts of penalty and upon such
terms, as it fords is. needed to induce payment of substantial. funds to be used for the payment
of obligations which are owed and which will be owing to bondholders; in approving such a
waiver, due consideration shall be given to an equitable apportionment of the costs of the
affected improvement district among the various assessed [lots] assessment units."
"Section 12-39. Oevner of undivided interest.
The owner of any undivided interest in any [land] assessment unit may pay the whole assessment
thereon and may have a joint or several right of action against the other owners of any interest in the
[land] assessment unit for their proportionate share of the assessments."
"Section 12-40. Sale for default.
(a) In case of default in the payment of any installment of principal and interest when due, the
director of finance shall within one hundred twenty days after such default commence to
advertise and sell the [property] assessment unit concerning which default is made for the
whole of the unpaid assessment thereon, interest and costs. The purchaser of such [property]
assessment unit shall be permitted to pay in cash the total amount of the delinquent installment
or installments of principal and interest and penalty, and the balance in equal annual or
monthly installments as originally provided, in which event the lien of the unpaid assessment
shall remain in full force and effect until final payment of such balance. Such sale and
advertisement shall be made by the director of finance in the same manner, under the same
conditions and penalties and with the same effect as provided by general law for sales of real
property for default in payment of property taxes.
(b) In the event of the failure of the director of finance to so commence and diligently complete
advertisement and sale of [property] the assessment unit pursuant to the provisions of this
section, the director of finance shall not be personally liable for such failure, but if a default
28
exists in payment of principal or interest upon bonds, issued to represent an assessment for
which any such installment of principal and interest is in default, or if the levy provided for by
section 12-51 has been made or it appears probable that the levy will be required to be made,
the holder of such bonds in the former case, and any persons who are owners[, lessees or
occupants] of [land] the assessment units subject to such levy and liable to pay same in the
latter case, or both, shall have the right to enforce performance of the duties of the director of
finance hereunder by action in the nature of mandamus, as provided by law."
"Section 12-41. Purchase at sale.
At any sale for default in payment of any assessment levied as provided in this chapter, the director
of finance may accept, in lieu of cash, in payment for the [land] assessment unit so sold, bonds of such
improvement district whether such bonds are then outstanding or hereafter issued, to a value of par plus
accrued interest to date of sale. Upon the receipt of such bonds, the director of finance shall cancel the
bonds and credit the improvement district with the amount allowed on the bonds."
"Section 12-43. Sale of land by director; terms.
Whenever any [land] assessment unit has been bid in by the director of finance at any sale for
default of the owner thereof, the director of finance, in making such sale thereof as may by law be
authorized, may sell the [land] assessment unit, upon the following terms and conditions:
(1) A down payment at the sale of twenty percent of the sale price;
(2} The balance payable in monthly installments of not less than one and one-third percent of the
total sale price, plus interest at the rate of five percent per annum upon all unpaid balances;
(3) Failure for thirty days to pay any installment due shall effect an entire forfeiture of the
purchaser's right, title and interest in such [land and] assessment unit in any payments
previously made by him on account thereof;
(4) Such building restrictions as the director of finance may prescribe; and
(5) The [land] assessment unit when sold shall be subject to real property taxes."
SECTION 18. Chapter 12, Article 4, Sections 12-49 and 12-50, Hawaii County Code 1983 (1995
Edition), are amended to read as follows:
"Article 4. Finance and Payment.
Section 12-49. Special fund for payment of bonds; use of surplus; insufficient funds.
(a) All moneys collected on account of assessments and interest for any improvement after the
issuance of any bonds shall be kept by the director of finance in a special fund and applied
29
solely to the payment of interest and principal of bonds issued for the improvement until the
bonds have been paid. The director of finance of the County shall pay the principal of the
bonds at maturity and the interest thereon as and when the same become due at the place or
places and in the manner prescribed for the payment under this chapter and the proceedings
authorizing those bonds from such special fund.
(b) If any surplus remains in any special fund after the disbursement of funds described in section
12-28.1 of this chapter, such surplus or premium shall be credited to and become a part of a
fund to be known as the improvement district revolving fund, the moneys in which shall be
available to make up deficiencies in the proceeds of bonds sold below par, to cover
deficiencies in interest realized on account of diminishing balances of installments
outstanding, and to advance interest due on bonds outstanding prior to collection of annual
assessments, and also for the purpose of paying all expenses in connection with the sale of
delinquent improvement district [lots] assessment units and the prices of the delinquent [lots]
assessment units as are bid for and purchased by the director of finance. The director of
finance may upon such purchase, transfer the proper amounts so bid to the proper special funds
for the respective improvement districts concerned.
(c) If moneys in the applicable special fund prove insufficient at any time to pay the principal and
interest, or the interest only, as the case may be, on bonds outstanding, moneys shall be
transferred from the reserve fund established pursuant to section 12-50, or from the
improvement district revolving fund into such special fund in such amounts as will enable the
director of finance to make the payments of principal or interest, or interest only, as the same
becomes due."
"Section 12-50. Reserve fund.
(a) The council may provide in the resolution adopted pursuant to section 12-10 for a reserve fund
as additional security for the payment of principal and interest on improvement bonds issued in
proceedings taken pursuant to this chapter. The reserve fund shall be initially funded from the
proceeds from the sale of improvement bonds with respect to which such reserve fund is
established in such amount as is designated by the council in the resolution authorizing such
bonds. Moneys in a reserve fund shall be used in accordance with the provisions of
section 12-49 and to pay the principal or interest, or both, in whole or in part, on the last
outstanding maturity or maturities of the bonds, and assessment installments or such portions
thereof which would otherwise be collected to make such payments shall be canceled,
provided that in making use of moneys in the reserve fund to pay principal or interest, or both,
30
on the last outstanding maturity or maturities of the bonds, the director of finance shall make
provisions for expected delinquencies in payment of any portions of assessment installments
which will not be canceled by such use of the reserve fund, and provided further that insofar as
the moneys are attributable to fully paid assessments rather than to cancellation of installments
or portions thereof, the moneys shall be paid pro rata to the persons who at the time of such
apportionment own (as shown on the records of the County tax office) the [lands] assessment
units subjected to the assessments.
(b) There shall be transferred to the improvement district revolving fund of the County:
(1) .Any portion of such moneys which shall not have been paid to or claimed by the persons
entitled thereto within two years after the due date of the last bonds; and
(2) Any interest earned from the investment of such moneys during the two year period."
SECTION 19. Chapter 12, Article 5, Sections 12-59, 12-60, 12-61, and 12-63, Hawaii County
Code 1983 (1995 Edition), are amended to read as follows:
Article 5. Refunding.
"Section 12-59. Initiation of refunding.
(a) The owners of [real property] assessment units in any improvement district whose [property
represents] assessment units represent seventy-five percent or more of the outstanding
improvement assessments at the time of the filing of the petition shall, if it is desired that the
indebtedness of the district be refunded, file with the council a petition, which petition shall set
forth the indebtedness of the district, that it is desired that the indebtedness be refunded, and
the proposed method of refunding the outstanding indebtedness.
(b) The council shall thereupon, by resolution requiring not more than one reading for its adoption,
direct the director of public works to investigate and report to the council:
(1) The amount of unpaid assessments and the [property] assessment units subject to the
assessment in the improvement district;
(2) The detail of any delinquent assessments and of any unpaid penalties;
(3) Whether the petitioners own [real estate] assessment units representing seventy-five
percent or more of the unpaid assessments in the district;
(4) The proposed method of reassessment of the [lands] assessment units subject to existing
assessments;
(5) Anew assessment roll showing the proposed new assessments;
(6) The cost of the proposed refunding scheme; and
(7) Other details which may be necessary to carry into effect the proposed refunding project.
31
(c) The report of the director of public works shall be filed with the council. Within seven days
after the filing of the director's report, the petitioners shall deposit with the director of finance
a sum sufficient to meet the cost of the refunding project as reported by the director of public
works.
(d) Thereafter the council shall, by resolution requiring one reading for its adoption, propose the
adoption of the suggested refunding plan specifying:
(1) The outstanding indebtedness of the district;
(2) That the owners of [land] assessment units representing not less than seventy-five percent
of the unpaid improvement assessments have petitioned that the outstanding indebtedness
of the district be refunded;
(3) The proposed refunding plan in detail; and
(4) The proposed method of reassessment, including the minimum number of installment
payments to be proposed, and the maximum [estimated] amount to be assessed against a
unit of assessment.
The resolution shall refer to and incorporate by reference the preliminary assessment roll and
such other data reported by the director of public works as shall be approved by the council.
The resolution shall also fix the date of public hearing upon such plan, which date shall not be
less than fifteen days after the first publication of notice thereof in a newspaper of general
circulation in the County.
(e) After the adoption of the resolution, the clerk shall cause a notice of the public hearing to be
published as provided in section 12-10, giving notice generally to all owners[, lessees and
occupants] of the [land] assessment units still under assessment in the improvement district,
[and to all others interested in the general detail of the proposed refunding plan,] stating the
time and place of the public hearing and where the resolution, preliminary assessment roll and
other data maybe seen and examined prior to the hearing. Like notices shall be posted in three
of the most conspicuous places in the improvement district for which the outstanding bonds are
issued. Affidavits of publication, both in the newspaper and of the posting, respectively, shall
be filed with the council at the hearing."
"Section 12-60. Protest against refunding.
(a) Any owner of [property] an assessment unit, the assessments on which to pay the outstanding
indebtedness have not been fully discharged, may at any time prior to or at the public hearing,
file in writing with the council any protest, objection or suggestion as to the proposed
refunding measure, stating briefly the reason therefor, or may present the same in person orally
32
at the public hearing. If the owners of [real property] assessment units representing thirty
percent or more of the outstanding improvement assessments shall at the hearing, or prior
thereto, file with the council written protests duly acknowledged by the owners against the
proposed refunding project, or against any part of the refunding plan, the refunding shall not be
made contrary to protest. If the protest is against the adoption of any refunding plan, the plan
shall not be made, and the proceedings shall not be renewed within one year from the date of
closing the public hearing, unless each owner protesting shall sooner withdraw the protest.
[(b) Any lessee of any property to be assessed under this chapter who by the express terms of his
lease must pay the kind of assessments contemplated by this chapter shall be subrogated to all
the rights of the owner to protest by filing with the council prior to or at the hearing a certified
copy of his lease, together with a citation of the book and page of the public record of the lease
if it is recorded; provided, that any lessor or any owner of property to be assessed_may, at any
time before the closing of the public hearing, make void the protest or the right of protest of
any lessee of the property on consideration of filing with the council a duly acknowledged
waiver of the stipulation in the lease which required the lessee to pay the special assessment,
and a written undertaking by the lessor or owner to pay the special assessment to be made
under the proposed improvement.]
The council shall also at the hearing sit as a board of equalization to receive complaints or
objections respecting the total amounts of the proposed assessments."
"Section 12-61. Determination by council.
(a) A$er the hearing, the council shall consider any protests or suggestions which may have been
made or filed and whether sufficient valid protests have been filed to compel it to abandon the
proposed refunding plan. If the council has jurisdiction to continue, it shall then proceed to
determine whether or not the refunding plan shall be adopted as proposed, or adopted with
modifications. In the latter event the clerk shall be directed to give notice again of the hearing
as provided in section 12-59.
(b) If after such initial and further advertisement and hearing the council determines to proceed
with the refunding measure, it shall, by ordinance, promulgate the refunding measure. Should
the refunding project provide for the issuance of new bonds in the improvement district, the
ordinance shall provide for the form of new bonds to be issued, approve of the assessment roll,
and incorporate the assessment roll by reference. The assessment roll, as provided in section
12-26 shall contain only the names of the [property] owners of assessment units who have not
fully paid the assessments originally provided for the payment of the outstanding improvement
33
bonds and shall provide for the levying of new assessments in amounts sufficient to retire the
refunding bonds to be issued pursuant to the terms hereof.
(c) After the final enactment of the ordinance, the amounts of the several assessments listed,
advertised or incorporated, not previously objected to, shall conclusively be presumed to be
just and equitable and not in excess of the special benefits accruing or to accrue by reason of
the original improvement project. Upon final passage of the ordinance as provided above, all
assessments therein made shall be a lien in the same manner and to the same extent as
provided in section 12-32; provided, that in no case shall this new assessment constitute a lien
on [property] any- assessment unit which has been discharged from the payment of the original
assessment."
"Section 12-63. Petition by all oe~vners.
If the petition is filed and acknowledged by the owners of [land] assessment units representing one
hundred percent of the unpaid assessments in any improvement district, and by all lessees of any
[property] assessment unit to be assessed, who, by the express terms of their respective leases must pay
the kind of assessments contemplated by this article, unless the lessor of such lease files with the petition
a duly acknowledged waiver of the stipulation in the lease which requires the lessee to pay such special
assessments, and a written undertaking by the lessor or owner to pay the special assessments to be made
under the proposed refunding plan, then the council upon the payment to the director of finance of the
cost of the refunding plan, as estimated by the director of public works, shall proceed as provided above
to have a hearing on the proposed new method of assessment and the assessment roll; provided that in
case the owners of [land] assessment units representing one hundred percent of the unpaid assessment as
provided in this section consent, in writing, to the amount and apportionment of the proposed assessments
under the refunding plan, it shall be unnecessary to give the notice or to hold any of the hearings specified
above and the council may immediately proceed to fix the assessment in the manner provided."
SECTION 20. New material is underscored. Material to be repealed is bracketed. In printing this
ordinance, the brackets, bracketed material, and underscoring, need not be included.
SECTION 21. If any provision of this ordinance, or the application thereof to any person or
circumstance is held invalid, such invalidity shall not effect other provisions or applications of the
ordinance which can be given effect without the provision or application, and, to the end, the provisions
of this ordinance are declared to be severable.
34
SECTION 22. This ordinance shall take effect upon its approval.
RODU
r, ~
C UN IL MEMBE , CO Y OF HAWAII
Kona , Hawaii
Date of Introduction: June 5, 2002
Date of 1 S` Reading: June 5, 2002
Date of 2nd Reading: June 19, 2002
Effective Date: June 25, 2002
R~FERENC~: Cwnrn. 637
35
OFFICE OF THE COUNTY CLERK
County of Hawaii
x i 10 ,Hawaii
ROLL CALL VOTE
Introduced By: J. Curtis Tyler III AYES NOES ABS EX
Date Introduced: June 5, 2002 Arakaki X `--1
First Reading: June 5, 2002 Chung X ~
Published: June 16, 2002 Elarionoff X
Jacobson X Y~m;
REMARKS: Leithead-Todd X
Pisicchio X
Safarik X
Tyler X ' ~
Yagong X
9 0 0 0
Second Reading: June 19, 2002 ROLL CALL VOTE
To Mayor: June 24, 2002 AYES NOES ABS EX
Returned: June 26, 2002 Arakaki X
Effective: June 2 5, 2 0 0 2 Chung X
Published: July 10, 2002 Elarionoff X
Jacobson X
REMARKS: Leithead-Todd X
Pisicchio X
Safarik X
Ty]er X
Yagong X
7 0 2 0
I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council published as
indicated above.
APPROVED AS TO
FORM AND LEGALITY:
~
f ~ ~ ~ ~ o~ UNCIL CHAIRMAN
lL z ~ ~ 1, h:
DEP Y CORPOI~AT ON COUNSEL
COUNTY OF HAWA ,
COUN Y CLERK
1. F~ ~z
Date ~
n 223
Bill No.:
(-G,- C-637/Waived-FC
Approved/Disapproved this day Reference:
Ord No.:
of JIA,h~ , 20 OY
MAYOR, TYOFHAWAII