(A) The Town Clerk or Finance Director may assess and file a lien on real property for the nonpayment of utility user fees for services provided to the property if the payment of the fees is delinquent for more than 90 days.
(B) Before filing the lien, the Town Clerk or Finance Director shall provide written notice to the owner of the property. The notice shall be given at least 30 days before filing the lien and shall include an opportunity for a hearing before an official, to be designated by the town council for such purposes. Subject to division (C), below, the notice shall be either served personally on or mailed to the property owner, at the last known address by certified mail, return receipt requested, or to the address to which the tax bill for the property was last mailed as shown in the county records.
(C) If the owner does not reside on the property, the notice shall be sent to the last known address.
(D) If served by mail, notice shall be deemed to be complete on the date on which the notice is deposited in the United States mail.
(E) The notice shall inform the property owner that:
(1) He or she has the opportunity for a hearing regarding the delinquency before a designated town official;
(2) If a timely objection is not filed, the unpaid delinquency shall be deemed due and owing and failure to pay shall result in the town pursuing all available means of collection as authorized by the town code;
(3) If a hearing is requested and it is determined as a result of the hearing that the unpaid delinquency is due and owing, failure to pay shall result in the town pursuing all available means of collection as authorized by the town code.
(F) In the event the property owner requests a hearing, such request must be received not later than 15 days from the date of the notice. The request for hearing must include copies of all documents that support the owner’s position, including any documents that there is no delinquency or that the amount claimed delinquent by the town is in error. A hearing shall be scheduled and held not later than 30 days following a request for a hearing by a property owner. The property owner shall be notified in writing of the time and date of the hearing.
(G) The hearing shall be held by a hearing officer who shall be a non-town employee retained by the town, or a town employee who has no involvement with the Utilities Division or the Finance Department. The hearing officer shall have the authority prescribed to public officers pursuant to A.R.S. § 12-2212, as may be amended from time to time.
(H) The hearing may be continued one time by the hearing officer upon the written request of either party for good cause.
(I) The hearing shall be held during regular town business hours.
(J) The hearing shall be recorded by an electronic recording device.
(K) The property owner and the town shall each be given an opportunity to present their respective cases. The town shall present its case first. Presentation by either party may include:
(1) Sworn testimony;
(2) Submission of evidence;
(3) Presentation of witnesses; and
(4) Cross examination.
The Arizona Rules of Evidence shall not apply, and the hearing officer may permit the admission of any evidence deemed relevant to the issues at hand.
(L) The hearing officer shall render a decision within 15 days of the close of the hearing. The record of the hearing and the decision by the hearing officer shall be filed with the Town Clerk. The hearing officer’s order shall be mailed to the property owner by certified mail, return receipt requested, and notice of the order shall be deemed to be complete upon the date on which the notice is deposited in the United States mail.
(M) The hearing officer may find the following:
(1) The property owner does not owe the delinquent amount and the notice of delinquency shall be canceled;
(2) The property owner does owe the delinquent amount as noticed by the town and order that the amount be paid within 20 days of the date the decision is rendered; or
(3) A different (lesser) amount than that which was noticed by the town is owed and delinquent and order that amount be paid within 20 days of the date the decision is rendered.
(N) The hearing officer’s decision may be appealed by either party by filing an action in the Yavapai County Superior Court.
(O) In the event no hearing is requested by the property owner, or in the event payment is not made on a delinquent amount as determined by a hearing officer after a hearing, the town shall place a lien on the property in accordance with this section.
(P) The unpaid utility user fees are a lien on the property from the date of the recording of the lien in the Office of the County Recorder until all fees are paid in full. The lien is subject and inferior to the lien for general taxes and to all prior recorded mortgages and encumbrances of record. A sale of the property to satisfy a lien obtained under this section shall be made following a judgment of foreclosure and order of sale. The town may bring an action to enforce the lien in the Yavapai County Superior Court at any time after the recording of the lien, but failure to enforce the lien by a foreclosure lawsuit shall not affect the validity of the lien. The recorded unpaid utility user fees lien shall be prima facie evidence of the truth of all matters recited in the recording and of the regularity of all proceedings before the recording.
(Q) Notwithstanding any of the provisions of this section, any lien placed on a property pursuant to this section shall be enforceable pursuant to and in accordance with A.R.S. § 9-511.02.
(Ord. 10-741, passed 10-28-2010; Am. Ord. 2022-913, passed 2-22-2022)