LEGAL NOTICE CITY OF MONTGOMERY Please take notice that the Council of the City of Montgomery is considering amending, enacting, and reenacting certain portions of the City Code of Montgomery, including Chapter 2, Article V, by adding a new Section 2-50, Chapter 6, Sections 6-8 and 6-11, and Chapter 13, Article II, Sections 13-17, along with the Schedule of Rates and Charges for Refuse Collection/Disposal Services incorporated by reference therein, 13-19, 13-20, and 13-22, all relating to the administrative procedures for the assessment and collection of fees for city services and, in addition, to a proposed increase in the fee rate for residential, rental, and commercial refuse collection/disposal services provided by the City. The proposed rate increase is from $21 to $25 per month for residential and rental users and a 30% per month increase for commercial users. The subject matter and general titles of the proposed ordinance are listed below in the text of the ordinance. The proposed final vote on adoption of the ordinance and new Schedule of Rates and Charges for Refuse Collection/Disposal services will take place on April 1, 2025, at 6:00 p.m. in the Council Chambers, Montgomery City Hall. Members of the public with questions may contact the City Administrator at 304-442-5181 and/or may inspect or obtain copies of the proposed ordinance and/or Schedule of Rates and Charges for Refuse Collection/Disposal Services at the City Administrator’s Office located at Montgomery City Hall, 321 4th Avenue, Montgomery, WV 25136. Interested parties may appear at the meeting and be heard with respect to the proposed ordinance. In the event thirty percent of the qualified voters of the City of Montgomery by petition duly signed by them in their own handwriting and filed with the City Recorder of Montgomery on or before forty days after the adoption of the ordinance, petitioning against the following ordinance, the ordinance shall not become effective until it shall be ratified by a majority of the legal vote cast thereon by the qualified voters of the City of Montgomery at a regular municipal election or special municipal election, as the governing body shall direct. An Ordinance amending Montgomery City Code by: creating and adopting a new Section 2-50 within Chapter 2, Article V; amending and readopting Chapter 13, Article II, Sections 13-17, along with the Schedule Of Rates And Charges For Refuse Collection/Disposal Services incorporated by reference therein, 13-19, 13-20, and 13-22; and amending and readopting Chapter 6, Sections 6-8 and 6-11, all of which is set forth as follows: CHAPTER 2. ARTICLE V. FISCAL MATTERS Sections 2-48 & 2-49 ARE HEREBY RESERVED Section 2-50. City service fees. Administrative Lien Procedures for Delinquent City Service Fees Notice of lien; hearing procedure; administrative decision; right of appeal; lien creation. (a) Any municipal fee, interest or penalties due and payable under this Code shall be a debt due the city. It shall be a personal obligation of the city service customer (“fee payer”) chargeable therefor and shall be a lien upon the real property within the city’s jurisdiction owned by the fee payer until paid. This lien shall have priority over all other liens except those due the state and the United States of America. (b) If the city desires to file a notice of lien with the Clerk of the of the County Commission (Kanawha or Fayette County) in which the city service customer’s real property is located regarding one or more delinquencies in payment of any municipal fee, including penalties and/or interest, the city shall give the delinquent fee payer and, if applicable, his/her duly authorized agent, written notice via certified U.S. Mail, return receipt requested, to such fee payer’s last known address and/or to the address of his/her duly authorized agent, of the City’s intent to file the notice of lien and setting forth the amounts due, the status of delinquency, and the date the delinquency must be paid in full to avoid the City’s filing of a lien, which shall be no less than 90 days from the date the notice is mailed. On or before the date of payment set forth in the written notice, the delinquent fee payer shall either pay the delinquent amount in full, including any penalties and/or interest, or, alternatively, the delinquent fee payer may file with the city a petition for a hearing, setting forth with particularity any charges or amounts objected to along with specific reasons for the objection and any evidence supporting such objections. Unless the fee payer either pays the delinquent amount in full or files with the city a petition for hearing on or before the date of payment set forth in the city’s written notice, the city may at any time thereafter file the notice of lien against real property owned by the delinquent fee payer located within the city’s jurisdiction. (c) When a petition for hearing as prescribed in subsection 2-50(b) is filed within the time prescribed, the city shall assign a time and a place for a hearing thereon and shall notify the petitioner of such hearing by written notice at least 20 days in advance thereof. Such hearing shall be held within 90 days from the date of filing the petition, unless continued by agreement of the parties or by the city for good cause. The hearing shall be informal and shall be conducted in an impartial manner by the city administrator, a committee appointed by the Mayor, or a hearing examiner designated by the city. The burden of proof shall be upon the petitioner to show that the notice of delinquency and lien is inaccurate or improper, in whole or in part. After such hearing, the city administrator, committee, or hearing examiner designated by the city shall, within a reasonable time, give notice in writing of the final decision of the city on the petition, which shall be served via certified mail, return receipt requested. (d) If aggrieved by the decision of the city, the fee payer may appeal the decision of the city to the Circuit Court of the county in which the fee payer’s property subject to lien is located (Kanawha or Fayette County) within 30 days after service of the city’s written decision. (1) The appeal shall be filed as a petition and notice of appeal, both of which shall be served upon the city via personal service or certified mail at the same time as the petition and notice of appeal is filed with the Circuit Clerk. The petition and notice of appeal shall be filed in the Office of the Clerk of the County Circuit Court in the county in which the fee payer’s property that is subject to the lien is located (Kanawha or Fayette County) and shall be docketed as other cases, with the fee payer identified as plaintiff/petitioner and the city as defendant/respondent. Pursuant to W.Va. Code 8-13-13(d), the Circuit Court shall consider the petition as an appeal under its general authority, including but not limited to W.Va. Code 59-3-1 et seq. (2) The filing of the appeal shall not stay the collection of any delinquent fee unless the fee payer shall file with such Circuit Clerk a bond in favor of the city, with sureties approved by the Circuit Clerk. The amount of the bond shall be not less than the total amount of the delinquent fee, including accumulated penalties and interest, as of the date of the appeal, shall be conditioned upon plaintiff/petitioner’s compliance and performance with the orders of the Circuit Court, and shall be available to city, in whole or in part, for payment of the delinquency upon the Circuit Court’s ruling in favor of city for any or all of the delinquent amount; provided, that the Circuit Court judge assigned to the appeal shall have sole discretion to stay collection activities and/or waive the bond requirement herein upon a proper showing by the plaintiff/petitioner that the real property of the plaintiff/petitioner is sufficient to secure performance of the Circuit Court’s orders or based on the Circuit Court’s determination that the interests of justice will be served thereby. (3) The Circuit Court shall hear the appeal de novo. (e) The administrative remedies set forth in this section are exclusive. Failure to file a timely petition in accordance with this section shall preclude any challenge to the filing of the notice of lien. If no appeal is taken pursuant to this section within 30 days after service of the city’s decision, said decision shall become final and conclusive and not subject to administrative or judicial review. (f) The lien created by this section shall continue until the fee delinquency is satisfied or becomes unenforceable by reason of lapse of time. The city shall issue a certificate of release of any lien imposed pursuant to this section upon finding that the delinquency has been satisfied or the lien has become legally unenforceable. The lien created by this section shall be subject to the restrictions and conditions which apply to municipal tax liens under W. Va. Code ch. 38, art. 10C. 6-8 Charges for fees constitute debt to city, collectable by civil action; Notice of Lien for failure to timely pay fee. (a) The fees, rates, and charges imposed, levied and assessed by this chapter shall be in addition to all other assessments, licenses and taxes levied under the statutes of the state or by the ordinances of the city and the payment thereof shall be a condition precedent to the use and enjoyment of the special and essential services of police protection and fire protection within the city. The fees, rates, and charges imposed, levied and assessed by this chapter shall be a debt due to the city of Montgomery from each user of such service, and may be collected in a civil action before any court having jurisdiction thereof under the statutes of the state. (b) The fees, rates and charges for the services set forth herein shall, if not paid when due, constitute a lien upon the premises served and/or upon real property owned by the fee payer within the city’s jurisdiction, which lien may be foreclosed against the lot or parcel of land, and any building thereon, in accordance with state law relating to the foreclosure of liens on real property. If the city desires to file a notice of lien with the Clerk of the applicable County (Kanawha or Fayette) regarding a delinquency in payment of fees, rates, penalties, interest and other charges for the services set forth herein, the city shall follow the administrative procedures set forth in W. Va. Code Section 8-13-13 and Chapter 2, Article V, Section 2-50 of this Code. In addition to the fees, penalties, and interest provided for herein, the city may also collect as reimbursement from the fee payer any amount charged by the Clerk for recordation of any lien filed by the City. Any lien filed by the city shall have priority over all other liens except those due the state and the United States of America. (c) The administrative remedies set forth in Chapter 2, Article V, Section 2-50 of this Code are exclusive. Failure to timely file a petition in accordance with Section 2-50, or to appeal any decision of the city to the Circuit Court in the manner and within the time period set forth therein, shall preclude any challenge to the filing of a notice of lien. 6-11 When Fees Payable; Late Fees and Penalties. (a) Fees for police and municipal fees shall be billed in the calendar month of July. Said fees shall be due in full no later than the last day of September (end of the third quarter) of the same year. A late penalty of ten percent (10%) shall be assessed for fees, or any portion thereof, not paid in full as of October 1st, and for each 30 days thereafter an additional five percent (5%) penalty shall be added to the balance until the total amount is paid in full. (b) For purposes of this Section, payments for rates, fees, and charges due under this section that are postmarked after the due date by which they are owed shall be considered late and may be subject to late fees or penalties: Provided, That payments that are received by the city after the due date, but that were postmarked on or before the due date, shall be considered to be on time and shall not be assessed any late fees or penalties. 13-17 Refuse Fees Authorized; Schedule of Rates and Charges for Refuse Collection/Disposal Services adopted; Minimum charges for standard service; when charges payable; penalty for late payment. (a) The rates and charges for refuse collection/disposal services within the City shall be set forth in a “Schedule of Rates and Charges for Refuse Collection/Disposal Services”, as may be amended from time to time, which is incorporated by reference as if fully set forth herein. The Schedule of Rates and Charges for Refuse Collection/Disposal Services shall be included as an Appendix to this Code and a copy shall also be maintained by the City Recorder. Any amendments to the Schedule of Rates and Charges for Refuse Collection/Disposal Services shall be authorized by City Council by Ordinance and a copy of the proposed amended rates shall be attached as an exhibit to the authorizing Ordinance and available for inspection by the public. The rates and charges authorized herein shall remain in effect until and unless amended as permitted by law, subject to adjustment for abnormal/different service requirements and/or to account for changes in material circumstances that impact city costs as permitted by this Code. (b) Residences and apartment houses/residential rental property: The owner of each residence and the owner of each apartment house/residential rental property shall be responsible for payment of all garbage and trash removal service fees and charges. The rates charged for residences and apartment houses/residential rental property shall be as set forth on the Schedule of Rates and Charges for Refuse Collection/Disposal Services. (c) Commercial/Business Property: The rates charged for businesses shall be as set forth on the Schedule of Rates and Charges for Refuse Collection/Disposal Services. Commercial Rates for each business shall be subject to adjustment based on changes to service usage, size of dumpster, per week pickup, additional weight, method & condition of stored refuse, disposal of special types of refuse, recyclables, shared disposal, and other material circumstances that impact city costs for performance of refuse collection/disposal services for each business.. (d) Dumpster Rental for Special/Extra Disposal of Refuse. The rates charged for special/extra dumpster rental and disposal of refuse shall be as set forth on the Schedule of Rates and Charges for Refuse Collection/Disposal Services. (e) When Fees Payable; Penalty for late payment; Suspension of Service. Unless otherwise permitted or modified by city as provided for herein, all fees shall be due and payable on or before the seventeenth (17th) of each month. A penalty of ten percent (10%) shall be assessed for any monthly payment that is not paid when due and such penalty shall be added to/become a part of the outstanding balance thereafter. The City reserves the right to suspend service to any residence, apartment house/residential rental property, or business for failure to timely pay the fees and charges set forth herein. For purposes of this Section, payments for rates, fees, and charges due under this section that are postmarked after the due date by which they are owed shall be considered late and may be subject to late fees or penalties: Provided, That payments that are received by the City after the due date, but that were postmarked on or before the due date, shall be considered to be on time and shall not be assessed any late fees or penalties. Editor’s note(s) – It should be noted that the rates and charges referenced above are not set out at length herein, but are incorporated by reference as if fully restated herein, are included as an appendix to this Code, and are on file and available for inspection by the public in the office of the city recorder. 13-19 Charges constitute debt to city, collectable by civil action; Notice of Lien for failure to timely pay fee. (a) The fees, rates, and charges imposed, levied and assessed by this chapter shall be in addition to all other assessments, licenses and taxes levied under the statutes of the state or by the ordinances of the city and the payment thereof shall be a condition precedent to the use and enjoyment of essential refuse collection/disposal services within the city. The fees, rates, and charges imposed, levied and assessed by this chapter shall be a debt due to the city of Montgomery from each user of such service, and may be collected in a civil action before any court having jurisdiction thereof under the statutes of the state. (b) The fees, rates and charges for the services set forth herein shall, if not paid when due, constitute a lien upon the premises served and/or upon real property owned by the fee payer within the city’s jurisdiction, which lien may be foreclosed against the lot or parcel of land, and any building thereon, in accordance with state law relating to the foreclosure of liens on real property. If the city desires to file a notice of lien with the Clerk of the applicable County (Kanawha or Fayette) regarding a delinquency in payment of fees, rates, penalties, interest and other charges for the services set forth herein, the city shall follow the administrative procedures set forth in W. Va. Code Section 8-13-13 and Chapter 2, Article V, Section 2-50 of this Code. In addition to the fees, penalties, and interest provided for herein, the city may also collect as reimbursement from the fee payer any amount charged by the Clerk for recordation of any lien filed by the City. Any lien filed by the city shall have priority over all other liens except those due the state and the United States of America. (c) The administrative remedies set forth in Chapter 2, Article V, Section 2-50 of this Code are exclusive. Failure to timely file a petition in accordance with Section 2-50, or to appeal any decision of the city to the Circuit Court in the manner and within the time period set forth therein, shall preclude any challenge to the filing of a notice of lien. 13-20 Right of city to deny service at standard rates and to impose special charges in certain cases. The city shall have the right to deny the service of refuse collection at the standard rates established in this article to any person or business whose refuse requirements are sufficiently abnormal or different in type, quantity, frequency, location, condition, storage, accessibility, or other circumstance, that in the reasonable opinion of the street commissioner justifies special handling, in which case a special charge may be assessed to reasonably reimburse city for any additional costs, expenses, or resources incurred/expended by city. 13-22 Promulgation of Rules and Regulations; Reserved power of city council to revise rates and charges. The city council shall have the right to make and promulgate rules and regulations governing the service fees and charges herein, including, but not limited to, payment dates, categories for commercial rates, waiver or reduction of certain rates or payments upon proper showing, and any other appropriate rules and regulations as it may deem proper or necessary for the implementation, administration, and enforcement of this chapter. The city council reserves the right, subject to applicable state law, to revise the charges, rates and schedules established by or referred to in this article and so adjust them that costs will be distributed as equitably as possible among all citizens of the city on the basis of benefit received. At no time, however, shall rates be continued which are disclosed to be producing less revenue than is required to meet all obligations and costs involved in rendering refuse service to the public. This Ordinance shall be effective upon passage, subject to the dates established within this Ordinance and compliance with applicable requirements set forth in W.Va. Code 8-13-13 & 8-11-4; provided, the rate increase for refuse collection/disposal services provided to residential, rental, and commercial property adopted by this Ordinance shall not become effective until July 1, 2025, and shall continue in effect thereafter until and unless lawfully amended. LC-223551 03-18,25;2025