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4. Resolution 4549 - Resolution of Intent to Create an Urban Forestry DistrictREPORT TO: FROM: SUBJECT: �L r1A Honorable Mayor & Kalispell City Council Michael Baker, Director of Parks & Recreati i Intent to establish Urban Forestry District No. MEETING DATE: April 17, 2000 BACK GROUND: In 1990-91 the City inventoried 5,149 trees along our community streets and neighborhoods. These street trees are comprised of an amazing 48 different species and speciecultivars. The estimated value of our tree asset was above 15 million dollars at the time of the inventory. Early this year I brought before City Council the unique concept of establishing a "Tree Maintenance District" for Kalispell; enabling the City to plant, protect, maintain, preserve and care for public trees located on City owned right-of-ways, parks, green belts and public open space land. The following resolution is an intent to create such an Urban Forestry District No. 1. The proposed district shall be comprised of all land located within the City limits of Kalispell inclusive of all newly annexed properties. The preservation and maintenance components will include, but not be limited to: A comprehensive city wide planting program identifying vacant tree locations, and scheduling for their planting. Keying on streets, avenues, neighborhoods and additions that are presently void of street tree plantings (establishment of 60- 100 new trees per yea, potentially 15 blocks per year). Continuation of a proactive pruning/maintenance program addressing each individual tree on a 7 to 10 year pruning schedule, for trees greater than 5" diameter, all trees less than a Post Office Box 1997 • Kalispell, Montana 59903-1997 Telephone (406) 758-7700 • FAX (406) 758-7758 REPORT TO: Honorable Mayor & Kalispell City Council SUBJECT: Intent to establish Urban Forestry District No. 1 MEETING DATE: April 17, 2000 PAGE 2 5 inch diameter will be trained annually. (As recommended by the standards set forth by the National Arborist Society). (Budget consideration for addressing every street tree in the designated Urban Forest over a three year schedule, utilizing contract pruning.) • Commitment to a strict hazard reduction program for dead, damaged and deceased trees. • Establishment of a consistent replacement program for previously removed trees. • Continue the development and education of a forestry division, maintenance unit specifically for the management of public trees. • Completing early developmental training for all trees less than 5 inches in diameter. • Continue an extensive information education campaign to advise property owners with selection and location of trees and assist them with compliance to the street tree and boulevard maintenance ordinances. • Include related maintenance tasks such as; leaf pickup, recycling events, composting, and pesticide control within the forestry division. The majority of parcels in Kalispell are residential lots averaging approximately 10,000 sq.ft. These households will be assessed .00 13 5 times the square footage per parcel (which computes to $13.50 for a 10,000 square foot lot). Each parcel would have a maximum assessment that would be triggered automatically at $300.00 or 222,222 sq.ft. Based on the 1998 special street REPORT TO: Honorable Mayor & Kalispell City Council SUBJECT: Intent to establish Urban Forestry District No. MEETING DATE: April 17, 2000 PAGE 3 maintenance data base, this would identify a total of 27 properties that exceed the 222,222 sq.ft cap. The total assessment will raise approximately $120,000 per year to fund the entire urban forestry maintenance district as described in detail previously. RECOMMENDATION: I would strongly recommend the establishment of the Urban Forestry District for Kalispell. The facts that support this recommendation are outlined as "Benefits" that are experienced by all residents and properties of Kalispell. In establishing a District the City will ensure a proactive maintenance and planting program that allows us to preserve and sustain our remaining trees and begin planting our new forest for the next generation. FISCAL EFFECTS: Property assessments for all city properties up to 222,222 sq.ft are based on .00135 per square foot. Above 222,222 sq.ft each parcel will be assessed a maximum of $300.00 a year. For a total assessment value of approximately $120,000.00. ALTERNATIVES: Respectfully submitted, As suggested by Council. Michael Baker, Director of Parks Chris Kukulski, City Manager Attachments - None Report Compiled March 30, 2000 NOTICE OF PUBLIC HEARING RESOLUTION NO. 4549 A RESOLUTION OF INTENTION TO CREATE URBAN FORESTRY DISTRICT NO. 1 IN THE CITY OF KALISPELL, MONTANA. WHEREAS, pursuant to §§7-12-4102 and 7-12-4179, MCA, the City of Kalispell is authorized to create special improvement and maintenance districts for improvements and maintenance to rights -of -way, public parks and open space land; and WHEREAS, a City-wide tree planting and maintenance district is needed to plant, protect, maintain, preserve and care for public trees on City owned rights -of -way, public parks and open space land so as to enhance Kalispell's beauty and environment for the greater benefit of the community; and WHEREAS, pursuant to §7-12-4104, MCA, the City Council must pass a resolution of intention before creating any special improvement or maintenance district; and WHEREAS, it appears to be in the best interest of the City of Kalispell and the inhabitants thereof that the City Council create a special maintenance district to be known as Urban Forestry District No. 1. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, AS FOLLOWS: SECTION I. That the City Council intends to create Urban Forestry District No. 1 which will include all property located within the exterior boundaries of the limits of the City of Kalispell. SECTION II. The general purpose of the district is to plant, protect, maintain, preserve, and care for public trees located on City owned rights - of -way, public parks and open space land. SECTION III. The estimated annual cost of the district initially is $ 120,000. This cost will be assessed to each lot or parcel in the City of Kalispell on an area basis as specified in §7- 12-4162(1), MCA. SECTION IV. That the City Council of the City of Kalispell shall consider whether to pass a final resolution creating an Urban Forestry District as set forth herein at a meeting to be held on June 5, 2000 at 7:00 P.M., in the Council Chambers, City Hall, Kalispell, Montana, and at the conclusion of said meeting the City Council will consider a Resolution to create such district. SECTION V. The City Clerk is authorized and directed to give notice of this meeting in accordance with Section 7-1-4128, MCA. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS 17TH DAY OF APRIL, 2000. Wm. E. Boharski Mayor ATTEST: Theresa White City Clerk STATE OF MONTANA ) ss County of Flathead ) COMES NOW Theresa White, City Clerk for the City of Kalispell, Montana and states as follows: 1. That she is the City Clerk for the City of Kalispell, Montana. 2. That she caused to be published in the Daily Inter Lake, the above Resolution and Notice of Public Hearing, pursuant to Section 7-1-4128, MCA on May 10, 2000, and May 17, 2000. Dated this 17th day of April, 2000. Theresa White City Clerk BERGER v. CITY OF BILLINGS, 186 Mont. 326 --1980 ARNOLD A. BERGER ET AL., PLAINTIFFS AND RESPONDENTS V. CITY OF BILLINGS ET AL., DEFENDANTS AND APPELLANTS. No. 14902. Submitted Feb. 21, 1980. Decided March 10, 1980. 607 P.2d 558. Appeal from the District Court of Yellowstone County. Thirteenth Judicial District. Hon. C.B. Sande, Judge presiding. See C.J.S., Municipal Corp., Sec. 1373. Affirmed. Peterson & Hunt, Billings, K.D. Peterson argued, Billings, for defendants and appellants. Berger, Anderson, Sinclair & Murphy, Billings, Arnold Berger argued, Billings, for plaintiffs and respondents. MR. CHIEF JUSTICE HASWELL delivered the opinion of the Court. Lead Opinion In 1977 the City of Billings (City) assessed certain storm sewer charges for the year. After the assessments were made, various Billings property owners (Plaintiffs) paid the assessments under protest and filed an action in District Court. Depositions were taken / /N0 .11mil. _s'' %Jand a trial was held without a jury before the Honorable C.B. Sande on March 15, 1979. The court entered final judgment in favor of plaintiffs on June 21, 1979. From this judgment, the City appeals. The plaintiffs in this case are owners of property within the Billings city limits. The land involved consists of four separate subdivisions: Sand Cliff Subdivision, Spring Valley Subdivision, Lot 2 of Block 1 Eagles Nest Subdivision, and Certificate of Survey No. 380 which is known as Wanigan Subdivision. In 1966, pursuant to Ordinance 3251, an improvement of the sewer system of the City was undertaken. This ordinance authorized the issuance of revenue bonds to pay the cost of the improvements and created special funds and accounts for the administration of the moneys derived. The rates charged for the services and facilities were to be "calculated on the basis of anticipated use." A method of assessment was established by the City, but there were some problems in the equity of that method. As a consequence, a new method was devised and was used commencing in 1977. This new method classified land by the zone in which the land was situated, and by the actual square footage of the property as shown on the tax rolls. Pursuant to this new method the plaintiffs were assessed for a portion of the costs of the storm sewers. It is this assessment which the plaintiffs paid under protest. At trial the City put forward testimony to the effect that water coming from the four parcels of land flowed into the City's storm sewer system. The plaintiffs introduced evidence to the contrary. As to each parcel of land the District Court made several findings of fact; however for the purposes of this case, only the following findings are pertinent: (1) That the land is classified for purposes of the storm sewer assessment by the zone in which the land is situated rather than by the actual physical characteristics of the land, (2) that all the information necessary to classify and levy assessment according to the physical characteristics of the land //8G Alortt. 3 8/was available to the City but had not yet been "computerized", and (3) that the charges or assessments levied by the City on the plaintiffs' lands were not as nearly as possible equitable in proportion to the services rendered. In the conclusions of law the District Court stated, in part, that the presumption that official duty has been duly performed has been overcome by the plaintiffs. The District Court also stated as a conclusion of law that the assessments were not as nearly as possible equitable in proportion to the services rendered. It was ordered that the City pay back the assessments which had been paid under protest. The City appeals from the judgment. The controlling issue is whether the District Court erred in finding that the storm sewer assessments were not as nearly as possible equitable in proportion to the services rendered. The storm sewer system which is the subject of this case was properly authorized by the City pursuant to Ordinance 3251 in 1966. The authority for the Ordinance were sections 11-2217 to 11-2221, R.C.M.1947. These statutes have been recodified at 7-13-4301 et seq., MCA, and the wording has been changed somewhat. The pertinent part of the statute can now be found at section 7-13-4304(4), MCA, which states: "The water and sewer rates, charges, or rentals shall be as nearly as possible equitable in proportion to the services and benefits rendered." For purposes of this case the recodification is not material, because the essential language has not been changed. The plaintiffs paid the storm sewer assessments under protest and instituted this action. This procedure is authorized by section 15-1-402, MCA. In discussing this statute, this Court has said that the function of the trial court in such actions is to determine whether a correct method of assessing the tax was pursued and whether there was substantial evidence to support this assessment. Johnson v. Johnson (1932), 92 Mont. 512, 519, 15 P.2d 842. / /80 /Llnrrl. 3 9/ In discussing such actions in the Johnson case, this Court said: "[I]n ... challenges [to] the sufficiency of the evidence to warrant the order of the board and, in determining the question thus presented, the court does not substitute its judgment for that of the taxing authorities, but merely determines, as a matter of law, whether or not the evidence presented to the board is sufficient to sustain the order made." 92 Mont. at 520, 15 P.2d at 845. In the case of Power v. City of Helena (1911), 43 Mont. 336, 116 P. 415, the plaintiff claimed that his property was so situated that it did not receive any benefit from the city's storm sewer. He brought suit to secure an injunction restraining the city from enforcing a tax which was to defray the cost of the sewer. This Court set out the following test where the applicable statute provided that each parcel of land was to be taxed in proportion to the benefit it received: "If it appeared from the face of the council proceedings that plaintiffs property is so situated that it is a physical impossibility for it to be benefited, or that the amount of the tax assessed against it clearly exceeds the benefit to be derived from the improvement, then the complaint would be invulnerable; for it is the settled law in this country that 'the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.' Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443.)" 43 Mont. at 341, 116 P. at 416. [1] In the present case the District Court made findings as to each of the properties involved. As to each of these it was found that they received little or no benefit from the sewer system. There was also a specific finding that the assessments "were not as nearly as possible equitable in proportion to the services rendered." In such a case, the District Court is not substituting its judgment for that of the taxing body. The District Court is making a finding that the method of assessment was contrary to the express provisions of section 7-13-4304(4), MCA. �/80 ;h101?/. 3.301 As this Court said in Goza v. District Court (1951), 125 Mont. 296, 298-299, 234 P.2d 463, 465: "It is only when the action of the board is arbitrary, fraudulent, or that a wrong method of assessment was employed ... that the courts will interfere." (Emphasis added.) As a consequence the District Court was well within its jurisdiction in making the judgment that was made in this case. [2] This Court, in turn, will not disturb the judgment of a District Court unless the evidence preponderates against it. Our duty in this regard is to see whether there was sound, competent evidence to uphold the findings of the District Court. Duffle v. Metro. San. & Storm. Dist. (1966), 147 Mont. 541, 545, 417 P.2d 227. There is substantial evidence in the record to support the findings of the District Court. Simply because the City had expert testimony which the plaintiffs lacked does not mean that the City's testimony is inherently superior. The expert's testimony was, to a very large extent, in the form of opinion. His testimony was to the effect that some of the water from these properties might end up in the sewer system through infiltration or various other routes. The plaintiffs, in turn, put forth evidence based upon personal observation to the effect that it was highly unlikely or impossible that such water would contribute to the sewer system. Certainly the evidence is conflicting, but the findings were supported by substantial credible evidence. Affirmed. MR. JUSTICES DALY, HARRISON, SHEA and SHEEHY concur.