Audit Review 03-04
JEANNETTE M. LAUNER
ATTORNEY
November 17, 2004
Mr. Ben Gillespie, Finance Director
City of Woodburn
270 Montgomery Street
Woodburn, OR 97071
RE: C rban Renewal Questions from FY 2003-2004 Audit Review
Dear Ben,
I have been asked by the City of Woodburn to give my legal opinion on two
questions raised by your independent auditor relating to the 2003-2004 fiscal year audit. As
framed in a letter from N. Robert Shields, City Attorney, the auditor seeks to confirm that:
. Taxes levied and collected for the Urban Renewal Agency were done in compliance
with Oregon law; and
. The debt created through the City's expenditure for urban renewal activities qualifies
as urban renewal debt.
After our telephone conversations in the past two weeks, and my conversation with
Brad Bingenheimer, I believe the question can be narrowedl: Did the urban renewal agency
("\'VURA") meet the debt requirements of the statute to allow collection of tax increment
revenues in 2003-2004?
LEGAL CONTEXT
ORS 457.420 - 457.450 set out the method for collection of tax revenues to support
urban renewal activities. There is no need to review the entire process, except to state that I
have assumed that:
1. The Woodburn l'rban Renewal Age-::cy ("\'VCRA") was lawfully activated pursuant
to ORS 457.035;
2. The Urban Renewal Plan ("Plan") was lawfully adopted and approved by the voters
as required by Charter;
I I note that the agency has correctly filed its Form UR-SO with the ~-\ssessor, whIch is the only administrative
requirement to collect tax 1I1crement revenues.
5216 S,W. BURTON DR,. PORTLAND, OR 97221
PHONE (503) 502-1030 . FAX (503) 221-7045
j 111l a u n (' r ((1 C () In cas t. n (' t
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3. The Assessor has properly prepared the certified statement required by ORS
457.430(1); and
4. The .Assessor's computation of the amount of taxes to be divided and paid into a
special fund to pay urban renewal debt. ("Tax Increment Financing funds" or "TIF
funds") is correct for FY 2003-2004.
The questions arise because ORS 457.450 requires that an urban renewal agency
notify the assessor when the principal and interest on indebtedness to which a portion of
taxes is irrevocably pledged is fully paid, or it is found that the amounts in the urban renewal
special debt fund is sufficient to pay that indebtedness. After the notice, the assessor will not
use ORS 457.440 to divide taxes in future tax years2. The urban renewal agency, through the
County Treasurer, is obligated to pay to the overlapping taxing districts any excess remaining
in the special debt fund after the indebtedness is paid. The statute's use of the phrase "is
irrevocably pledged" means that the debt has to be incurred in order to be counted to offset
amounts in the special debt fund. It is my understanding that your auditor is concerned that
WC~\ had insufficient debt to receive tax increment revenues in FY 2003-2004.
FACTS
FY 2003-2004 was the first year in which WURt\ was authorized to receive 'fIF
funds. In June 2003, WURA adopted a Budget Resolution appropriating the entirety of the
estimated tax increment revenues ($105,000) to the urban renewal debt service fund to pay
for a portion of the costs of the City constructing the Downtown Plaza, an urban renewal
project.' On July 10, 2003, WU~-\ flied its UR-50 with the County Assessor, authorizing
collection of the full, available amount from division of taxes4. However, in FY 2003-2004,
WU~\ received $273,653.02 in TIF funds. This increase in collections was due to the use
of an incorrect "base" tax year in estimating the revenues, the timing of two major projects
reaching the tax rolls, and a higher than estimated tax rate used by the Assessor for
calculating TIF funds. No funds were expended from the urban renewal debt service fund
in FY 2003-2004 due to a delay in the anticipated Downtown Plaza project.
OPINION
For the Agency to have collected tax.increment revenues contrary to state law, the
Agency must have taken some prohibited acuon, or failed to take some required action,
either in initiating the collections or in stopping collections once they had begun. I believe
WU~\ did neither of these, and that the tax increment revenues were lawfully collected.
2 ORS 457.450 does not say what the assessor is to do after it receives the notice from the urban renewal
agency. Therefore, the notice has no conseguence in the plain words of the statute. However, the context of
the provisions has led urban renewal practitioners to the conclusion that after the notice is received, no
additional tax revenues 'J,rill be di\'ided for the affected urban rencwal plan.
1 The Budget ;\Iessage to the \'\!oodburn Urban Rencwal .\gency Budget Committee noted that, "Debt will be
established contractually between the City and the .\genc)'-" .\ccording to the Finance Director, no formal
written debt instrument was executed in 2003-2004.
j "Ne\\!" plans like Woodburn's plan have only this option for collection. ORS 457.440(2)(d).
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ORS 457.450 does not require that there be urban renewal debt outstanding in any
amount at the time that an agency gives the CR-50 notice. Therefore, WURA's UR-50
notice was lawfully given on July 10, 2004.
Once the Assessor pays tax collections into the debt service fund, the Agency is
subject to the possibility that it will have to give the notice under ORS 457.450(2) which
notice would inform the Assessor to stop the division of taxes in future years5.
Interestingly, the notice statute is phrased in the passive voice (". . . when it is found. . .") and
does not impose on an agency an obligation ~o m..mitor the debt service fund against debt
balance. Therefore, since WCRA had no statutory obligation to monitor the debt service
fund balance against outstanding indebtedness during FY 2003-2004, its obligation to notify
the Assessor could not have been triggered unless \X1UR.A had actual knowledge of an
excess of funds over debt. The facts as presented show no evidence of this knowledge. If
one accepts that since WURA had no exph'cit statutory obligation to compare the debt
service fund balance to the outstanding urban renewal deGt, it did not have any obligation to
make the comparison, the inquiry ends here.
However, this conclusion is contrary to municipal financial management and
budgeting obligations. Since an agency must review its finances in conjunction with
budgeting for the coming year at the fiscal year end, it would very difficult to argue that
prudent municipal finance officers would not have good reason to examine the debt service
fund balance and the outstanding debt of the agency-(' Assuming for argument that WURA
discovered that its debt service fund was larger than its outstanding debt, the only
requirement is to then notify the Assessor to stop future collections.7 The future collections
that would not be received if WURA gives t!;-e netice under ORS 457.450(2) would have
been in future tax years, not in FY 2003-2004. Applying this simple analysis to WURA's case
affIrms that, whether or not debt exceeds the debt service fund balance at fiscal year's end,
the 2003-2004 TIF funds were lawfully received.
This concludes the opinion requested. Nonetheless, I anticipate that my opinion
whether there was outstanding debt in excess of the debt service fund balance is important
to the auditor's recommendations, since a negative answer could result in refunds of TIF
funds to the taxing districts under ORS 457.450(3). It is my opinion that WURA created
urban renewal "debt" beginning in FY 2003-2004 in an amount equal to at least
$273,653.02.
"Dcbt" or "indebtedness" is not a defined tcnn in ORS Chapter 457. There has
been significant discussion over the years whether the urban renewal agencies should
propose such a definition. However, thc statute has ncver been modified. In practice, there
are three general categories of debt gcncrally recognized by urban renewal legal counsel:
) This issue is very important because the law does not provide for a reactivation of tax increment revenue
collections for a plan once they have been discontinued under ORS 457.450(2). For that reason, many agencies
have taken the cautious approach and issued so-called "du lOur" debt near the end of every fiscal year, using
any tax collections in the special fund to payoff the debt, leaving the proceeds of the borrowing as debt
proceeds to be used for projects.
(, I have no information regarding \v1J~'\'s knowledge of any facial discrepancy between debt and the fund
balance, or about \v1J~ '\'S knowledge of the legal consequences of the comparison between the two.
; There is no financial or criminal penalty for having failed to give the notice.
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. Bonded debt, both long-term bonds, and so-called "dujour" bonds;
. Contractual debt, created by a written contract to pay a sum of money upon
a certain and express agreement; and
. Obligations paid without a written contract, but based on ancillary
commitments.
The application of these categories varies with the facts. Obviously, debt is best
evidenced by an express writing, either a bond or a contract, with definite repayment terms
and an interest rate. This has led to the practice of converting all remaining tax increment
revenues at the end of the fiscal year into bond proceeds by selling a "dujour" bondH. But
bonded debt is not required. Clearly, a contract for the construction of an improvement is
debt. Intergovernmental agreements between an urban renewal agency and its sponsoring
municipality for administrative and staff costs or for reimbursement of speClfic eligible
project costs are debt. The third category is more elusive, but recognized if there is
evidence in other than a specific writing of the urban renewal agency's obligation to pay a
sum of money. WURA's obligations beginning in FY 2003-2004 were of this third type.
The Budget Message presented to the Budget Committee on May 28, 2003 stated
that WCRA was expected to have $3,350,000 available for projects during FY 2003-2009.
The recommended budget "distributes that revenue to projects intended to show irnmediate
impact in the downtown, address longstand;'lg ddiciencies in the transportation system in
the Urban Renewal Area, to improve access to and provide incentive for physical
improvements in the Urban Renewal Area, an to make progress within all areas identified in
the C rban Renewal Plan."
The Budget l\Iessage goes on to explain,
"This approach concentrates early years funding on two projects - the
Downtown Plaza project and the renovation of North and South Front
Streets. These two projects have a combined total estimated cost of
$2,768,000, of which $2,151,000 is proposed from urban renewal funding."
"The cost of these projects absorbs virtually all urban renewal money
estimated as available through the end of FY 2006-2007."
Based on this presentation, WURA adopted an appropriation resolution
appropriating all estimated tax increment revenue funds for 2003-2004 to the above
proiects.~ This resolution, coupled with the ~xplanatory Budget Message, expressed the
commitment of WURA of all its available tax increment revenue to those projects for the
succeeding four fiscal years. This commitment is an obligation upon which the City has
relied in its budgeting and planning for the two projects. With that reliance, WURA's action
became a contract with the City to pay to the City in each of the next four fiscal years, the
agency's projected TIF funds in each year, with an established minimum over those years, as
x \V'oodburn may want to discuss this concept with its bond counsel.
'J Except $5,000, which was a reserve in case the tax increment revenue collections fell short in this first year.
Of course, the actual collections exceeded the appropriated amount significantly.
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its share of the two projects. Therefore, in FY 2003-2004, the obligation was to pay the
amount collected: $273,653.02. The funds in the debt service fund did not exceed the debt
incurred at that time.
RECOMMENDATION
Although there is a continuing debt obligation between the City and WURA, I
recommend that, in absence of formal bonded debt, WURA and the City enter into a
separate written contract that evidences that debt, and WCRA's obligation to pay, including
terms and timing,
If you have any questions about thi~' Jpih~on, please feel free to give me a call,
Sincerely,
fh.~
Jeannette M. Launer
cc: N Robert Shields, City Attorney
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