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Audit Review 11/17/2004 JEANNETTE M. LAUNER ATTORNEY November 17, 2004 Mr. Ben Gillespie, Finance Director City of Woodburn 270 Montgomery Street Woodburn, OR 97071 RE: Urban 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 narrowed!: Did the urban renewal agency ("WURA") 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 t:ix 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 Urban Renewal Age~cy ("WURN') 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 fued its Form UR-50 with the Assessor, which is the only administrative requirement to collect tax increment revenues. 5216 S.W. BURTON DR., PORTLAND. OR 97221 PHONE (503) 502-1030 . FAX (503) 221-7045 j 111 1 a u n c r Q~ co 111 cas t , net '1r r -2- November 17, 2004 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 WURA had insufficient debt to receive tax increment revenues in FY 2003-2004. FACTS FY 2003-2004 was the first year in which WURA was authorized to receive TIF 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, WURA flied its UR-50 with the County Assessor, authorizing collection of the full, available amount from division of taxes4. However, in FY 2003-2004, WURA 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 action, or failed to take some required action, either in initiating the collections or in stopping collections once they had begun. I believe WURA 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 consequence 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 "vill be divided for the affected urban renewal plan. 3 The Budget i\fessage to the Woodburn Urban Renewal Agency Budget Committee noted that, "Debt will be established contractually between the City and the Agency." According to the Finance Director, no formal written debt instrument was executed in 2003-2004. ~ "New" plans like Woodburn's plan have only this option for collection. ORS 457.440(2)(d). '1r T -3- November 17,2004 ORS 457.450 does not require that there be urban renewal debt outstanding in any amount at the time that an agency gives the UR-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 WURA 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 WURA 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 explicit statutory obligation to compare the debt service fund balance to the outstanding urban renewal debt, it did not have any obligation to make the comparison, the inquiry ends here. However, this conclusion is contrary to municipal f11lancial management and budgeting obligations. Since an agency must review its f11lances in conjunction with budgeting for the coming year at the fiscal year end, it would very difficult to argue that prudent municipal f11lance officers would not have good reason to examine the debt service fund balance and the outstanding debt of the agency.6 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 ne tice 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. "Debt" or "indebtedness" is not a defined term in ORS Chapter 457. There has been significant discussion over the years whether the urban renewal agencies should propose such a defmition. However, the statute has never been modified. In practice, there are three general categories of debt generally 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 jour" 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 \X1URXs knowledge of any facial discrepancy between debt and the fund balance, or about \VURXs knowledge of the legal consequences of the comparison between the two. 7 There is no financial or criminal penalty for having failed to give the notice. ''lit' T -4- November 17, 2004 · 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" bond8. 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 specifIc 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 WURA 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 immediate 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 Urban Renewal Plan." The Budget Message 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 projects.9 This resolution, coupled with the t:'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, \V'URA'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 K \Voodburn may want to discuss this concept with its bond counsel. 9 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. ......" ... -5- November 17, 2004 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 WURA's obligation to pay, including terms and timing. If you have any questions about thi~'.Jpir"";'on, please feel free to give me a calL Sincerely, Ih.~ Jeannette M. Launer cc: N. Robert Shields, City Attorney ...... Y'