Chapter 12.10
PUBLIC IMPROVEMENTS
Sections:
12.10.020 Declaration of intention – Report of city engineer – Recommendations.
12.10.030 Council consideration of engineer’s report.
12.10.040 Public hearing on council-approved report.
12.10.050 Hearing and written remonstrances.
12.10.060 Manner of doing work, contracts, bids, bonds.
12.10.070 Special hearing when low bid exceeds estimate.
12.10.080 Proposed assessment.
12.10.090 Assessment ordinance.
12.10.100 Method of assessment and alternative methods of financing.
12.10.120 Lien recording – Interest – Foreclosure.
12.10.130 Notice of assessment – Bonding.
12.10.140 Errors in assessment calculation.
12.10.170 Abandonment of proceedings.
12.10.180 Curative provisions.
12.10.010 Definitions.
A. “Owner” means the record holder of the legal title to the land in question, except that if there is a purchaser of the land whose interest therein is evidenced by a recorded land sale contract thereof, or by a written verified statement by the record holder of the legal title to the land duly filed with the recorder of the city, then such purchaser shall be deemed the “owner”.
B. “City engineer” means the duly appointed incumbent of the office of city engineer of the city of Fairview, if such office then exists and is occupied. If no such office shall exist or said office shall be vacant, the council shall designate an engineer or firm of engineers in connection with any proposed improvement in which event the term “city engineer” shall be held to refer to the engineer or firm of engineers so designated. (Ord. 1-1966 § 1)
12.10.020 Declaration of intention – Report of city engineer – Recommendations.
Whenever the council shall deem it advisable to construct, alter, repair or improve any street, sidewalk, sewer, or other public improvement, to be paid for in whole or in part by special assessments according to benefits, it shall, by resolution, declare its intention to initiate such improvement and direct the city engineer to make a survey and written report of such project and file the same with the city recorder within the time set forth by the council in said resolution. Such report shall contain:
A. A plat or map showing the general nature, location and extent of the proposed improvements and the lands to be assessed to pay all or any part of the costs thereof;
B. Plans, specifications and estimates of the work to be done;
C. An estimate of the probable costs of the improvements, including legal, administrative and engineering costs attributable thereto;
D. A recommendation as to the method of assessment to be used to arrive at a fair apportionment of the whole or any portion of the costs of the improvement to the property specially benefitted, which recommendation shall be in accord with the provisions of FMC 12.10.100;
E. An estimate of the unit cost of the improvement to the specially benefitted properties, derived from applying the recommended assessment method to the estimated cost of the improvement;
F. A description of the location and assessed value of each lot, tract or parcel of land, or portion thereof, to be specially benefitted by the improvement, with the names of the record owners thereof, and, when readily available the names of other owners thereof as herein defined;
G. A statement showing outstanding assessments against the property to be assessed;
H. Any other information required by the council, who may designate the city recorder or other public official to assist the city engineer in obtaining the information required in subsections F and G of this section. (Ord. 1-1966 § 2)
12.10.030 Council consideration of engineer’s report.
After the city engineer shall have filed his report with the city recorder as above provided, the city recorder shall present said report to the council for its consideration. The council may approve the report as submitted, may amend the report and approve as amended or may direct the city engineer to furnish it with a further report or information or, on the basis of said report, may, by resolution, record its intention to abandon the proposed improvement. (Ord. 1-1966 § 3)
12.10.040 Public hearing on council-approved report.
After the council has given preliminary approval, as above provided in FMC 12.10.030, to the engineer’s report as submitted or amended the council shall:
A. Direct the city recorder to prepare a notice stating that such report is on file at the city and subject to examination by interested parties, giving the date when the same was filed and containing the following information:
1. That the report is on file for examination as above provided;
2. The date such report was filed;
3. The estimated probable cost of such proposed improvement;
4. A brief statement of the area proposed to be assessed therefor;
5. The date of public hearing by the council when any objections thereto shall be considered;
6. That written remonstrances may be filed against the proposed improvement at the office of the city recorder not later than the scheduled time for the council hearing of objections to the proposed improvement;
7. The method of assessment proposed to be used to arrive at a fair apportionment of the total cost of the improvement against the property specially benefitted;
8. The city engineer’s estimated unit cost of the improvement to the specially benefitted property, clearly indicating that this is an estimate and not an assessment.
B. The council shall specify in the resolution approving the city engineer’s report, if such be the case, whether the notice as above provided shall be made by publication, posting or mail, or by a combination of such methods. If the council shall declare notice be published, the city recorder shall prepare notice of publication containing the information set forth above, together with the names of the record owners of the property and a description thereof, either by street number or other legal description and cause the said notice to be published in a newspaper of general circulation, either daily or weekly, within the city of Fairview; that publication if so ordered shall take place at least twice prior to the hearing provided for therein. If the council shall determine to give notice by posting, the city recorder shall prepare a notice containing the same information as provided by published notice, one copy thereof to be posted in the City Hall, one further copy shall be posted in a public place within the city in general, and at least two copies shall be posted within the confines of the area where the proposed improvement is to be carried out.
C. In addition to the publication or posting as above set forth, if such be the case, the city recorder shall cause to be mailed to the last known address of each record owner and, when readily known, to each owner, as defined herein, of property to be specially benefitted by the proposed improvement a copy of said notice; if notice be mailed as set forth herein, publication or posting need not take place.
D. Said notices, whether by publication, posting or mail, shall provide for the hearing before the city council, which may not be less than 10 days from the date of the mailing or posting whichever is later, of the said notices; if notice be by publication said hearing shall not be less than 14 days from the date of the first publication. (Ord. 1-1966 § 4)
12.10.050 Hearing and written remonstrances.
At the hearing provided in FMC 12.10.040, the council shall hear oral objections to the proposed improvement and consider all pertinent points of inquiry concerning the proposed improvement. The council shall also consider any written remonstrances filed with the city recorder to said improvements. As provided by Section 35 of the Charter, remonstrances by the owners of 60 percent of the property to be specially assessed for the proposed improvement, owner to be as herein defined, shall suspend action regarding the improvement for six months, unless such public improvement shall benefit the city as a whole or an emergency regarding the necessity for such improvement shall exist and be so declared by the council.
If the city council, after hearing objections and considering any remonstrances, finds that there is not sufficient remonstrance or the conditions as so provided by the city Charter and above set forth exist, then it may proceed with the improvement. (Ord. 1-1966 § 5)
12.10.060 Manner of doing work, contracts, bids, bonds.
The council shall provide by resolution the time and manner of doing the work of such improvement, and may provide for the city to do the work, or it may award the work on contract. In the event the work is done under contract, the contract shall be let in accordance with the city’s purchasing rules.
In no instance may such a contract as above provided be let until the notice set forth in FMC 12.10.040 be properly given, public hearing be held and the time for making or filing of remonstrances have expired and the city council determined by resolution to proceed with the proposed public improvement. (Ord. 1-1966 § 6)
12.10.070 Special hearing when low bid exceeds estimate.
If the council finds, upon the opening of bids for a public improvement requiring the assessment of property specially benefitted thereby, that the lowest responsible bid for such improvement substantially exceeds the engineer’s estimate it may, in its discretion, hold a special hearing of objections to proceeding with the improvement on the basis of such bid and may direct the city recorder to publish or post reasonable notice thereof in the manner of posting or publishing the original notice as set forth in FMC 12.10.040. (Ord. 1-1966 § 7)
12.10.080 Proposed assessment.
After the council has determined that a local improvement shall be made and when the estimated cost has been ascertained on the basis of contract awarded or city departmental costs, or after the work has been done and the cost thereof actually determined, the council shall, if it has not already done so, determine whether the property specially benefitted shall bear all or a portion of said cost and thereafter the council shall designate the city recorder or other city official to prepare the proposed assessment to the respective lots or parcels of land specially benefitted by said improvement and within the assessment district; said proposed assessment shall be filed in the office of the city recorder. Thereafter notice of said proposed assessment shall be mailed or personally delivered to the owner of each lot or parcel of land proposed to be assessed, which notice shall state the amount of proposed assessment on said property, a date by which time objections thereto shall be filed with the recorder and said notice shall indicate that any objections to said proposed assessment shall state the grounds thereof. (Ord. 1-1966 § 8)
12.10.090 Assessment ordinance.
The council shall, after the expiration of the date by which time objections shall be filed with the recorder to said proposed assessment, consider such objections and may adopt, correct, modify or revise the proposed assessments and shall thereafter determine the amount of actual assessment to be charged against the various lots, parcels and tracts of property specially benefitted by said improvement with their apportioned share of the cost of said improvement; and the council shall by ordinance spread the assessments upon the property in the manner and amounts so determined. The council may delay the passage of such an assessment ordinance until the contract for the work is let or the improvement completed and the total cost thereof determined if the council shall desire to avoid deficit assessments or rebates or for any other reason deemed sufficient. (Ord. 1-1966 § 9)
12.10.100 Method of assessment and alternative methods of financing.
The council in adopting a method of assessment of the costs of the public improvement may:
A. Use any just and reasonable method of determining the extent of any improvement district consistent with the benefits derived;
B. Use any method of apportioning the sum to be assessed as is just and reasonable between the properties determined to be specially benefitted.
C. Authorize payment by the city of all or any part of the cost of any such improvement when in the opinion of the council, due to topographical or physical conditions or excessive public travel, or other character of the work involved, or when the council otherwise believes the situation warrants it, provided the method selected creates a reasonable relation between the benefits derived by the property specially assessed and the benefits derived by the city as a whole.
Nothing herein contained shall preclude the council from using other available means of financing public improvements, including federal or state grants-in-aid, sewer service or other types of service charges, revenue bonds, general obligation bonds, or other legal means of finance. In the event any of such other means of finance are used, the council may, in its discretion, levy special assessments hereunder according to benefits to cover any part of the costs of the improvement not covered by such means. (Ord. 1-1966 § 10)
12.10.110 Appeal.
Any person feeling aggrieved by assessments made as herein provided may, within 20 days from the passage of the ordinance levying the assessment by the council, appeal therefrom to the Circuit Court of the State of Oregon for the County of Multnomah. Such appeal and the requirements and formalities thereof shall be heard and governed and determined and the judgment thereon rendered and enforced so far as practicable in the manner provided for appeals from assessments contained in Section 223.401 Oregon Revised Statutes, as now or hereafter amended. The result of such appeal shall be a final and conclusive determination of the matter of such assessment, except with respect to the city’s right of reassessment as provided herein. (Ord. 1-1966 § 11)
12.10.120 Lien recording – Interest – Foreclosure.
After the ordinance levying assessments has been passed, the city recorder shall enter in the docket of city liens a statement of the respective amounts assessed upon each particular lot, tract or parcel of land with the names of the record owners thereof, and, so far as readily known, the names of the owners thereof as defined herein. Upon such entry in the lien docket, the amount so entered shall be a lien and charged upon the respective lots, tracts, or parcels of land against which the same are placed. Such liens shall be first and prior to all other liens or encumbrances thereon whatsoever insofar as the laws of the state of Oregon allow. Interest shall be charged at a percentage rate per annum fixed by resolution of the city council on all amounts not so paid within 30 days from the date of such entry, or entry corrected pursuant to FMC 12.10.140. The city may proceed to foreclose or enforce any lien to which it shall be entitled pursuant to the provisions of this chapter at any time after 30 days from the date on which the assessment, or assessment corrected pursuant to FMC 12.10.140, was entered in the lien docket, in the manner provided for the foreclosure and/or enforcement of liens by the general laws of the state of Oregon. (Ord. 5-1983 § 12; Ord. 5-1972 § 1; Ord. 1-1966 § 12)
12.10.130 Notice of assessment – Bonding.
Within 10 days after the ordinance levying assessments has been passed, the city recorder shall send by mail, to the last known address, a notice of assessment to the record owner and, so far as is readily known, to the owner as herein defined, of each lot, tract or parcel of land assessed. This notice shall state the time within which such assessments must be paid or bonded and that assessments which are not paid or bonded within the time stated in the notice shall bear interest at the percentage rate per annum fixed by the city council in accordance with FMC 12.10.120, and that the property so assessed is subject to foreclosure if such assessments are not paid or bonded within the time stated in the notice. Such record owner or other owner as herein defined may make application to bond such assessment pursuant to the provisions of Section 223.205 to 223.300, which is known as the “Bancroft Bonding Act,” Oregon Revised Statutes, together with amendments or future amendments thereof. (Ord. 5-1983 § 13; Ord. 5-1972 § 1; Ord. 1-1966 § 13)
12.10.140 Errors in assessment calculation.
Claimed errors in the calculation of assessments shall be called to the attention of the city recorder prior to any payment on account thereof. Said city recorder shall determine whether there is an error in fact and if he shall find that there is an error in fact, he shall recommend to the council an amendment to the assessment ordinance to correct the error. Upon the enactment of such an amendment or corrected ordinance by the council, the city recorder shall make the necessary correction in the docket of city liens and send by mail to the last known address of the owner a corrected notice of the assessment. (Ord. 1-1966 § 14)
12.10.150 Deficit assessment.
If assessment is made before the total cost of the improvement is known and it be found that the amount assessed is insufficient to defray the expenses of the improvement, the council may by resolution declare such deficit and prepare a proposed deficit assessment. The council shall set a time for a hearing of objections to such deficit assessment and shall direct the city recorder to publish, post or mail reasonable notice thereof in the manner heretofore set forth for publishing, posting or mailing notice. The council upon such hearing shall make a just and equitable deficiency assessment by ordinance. Such deficit assessment shall be consolidated with the assessment in the lien docket in accordance with the provisions of FMC 12.10.120. Thereafter, the provisions of FMC 12.10.130 and 12.10.140 herein shall be applicable with regard to such deficit assessment. (Ord. 1-1966 § 15)
12.10.160 Rebate.
If, upon the completion of the project it is found that any sum theretofore assessed therefor upon any property is more than sufficient to pay the cost thereof, the council must ascertain and declare the same by ordinance, and when so declared, it must be entered in the docket of city liens as a credit upon the appropriate assessment. If any such assessment has been paid, the person who paid the same, or his legal representative, shall be entitled to the payment of any portion of the rebate credit which exceeds the assessment, by a warrant on the city treasury. (Ord. 1-1966 § 16)
12.10.170 Abandonment of proceedings.
The council shall have full power and authority to abandon and rescind proceedings for improvements hereunder at any time prior to the final consummation of such proceedings, and if liens have been assessed upon any property under this procedure, they shall be cancelled, and any payments made thereon shall be refunded to the payor, his assigns, or legal representatives. (Ord. 1-1966 § 17)
12.10.180 Curative provisions.
No improvement assessment shall be held invalid by reason of a failure to give, in any report, in the proposed assessment, in the assessment ordinance or ordinances, in the lien docket or elsewhere in the proceedings, the name of the owner of any lot, tract or parcel of land or part thereof or the name of any person having a lien upon or interest in such property, or by reason of any error, mistake, delay, omission, irregularity, or other act, jurisdictional or otherwise, in any of the proceedings or steps hereinabove specified, unless it appears that the assessment as made, insofar as it affects the person complaining, is unfair and unjust, and the council shall have power and authority to remedy and correct such matters by suitable action and proceedings.
If any article, section, subsection, subdivision, phrase, clause, sentence or word in this chapter, shall for any reason whatsoever, be held invalid or unconstitutional by a court of competent jurisdiction, it shall not nullify the remainder of this chapter but shall be confined to the article, section, subsection, subdivision, clause, sentence, phrase or word so held invalid or unconstitutional. (Ord. 1-1966 § 18)
12.10.190 Reassessment.
Whenever an assessment, deficit assessment or reassessment for any improvement which has been or may be hereafter made by the city has been or shall be hereafter set aside, annulled, declared or rendered void or its enforcement refuted by any court of this state or any federal court having jurisdiction thereof, whether directly or by virtue of any decision of such court, or when the council shall be in doubt as to the validity of such assessment, deficit assessment or reassessment or any part thereof, the council may make a new assessment or reassessment. Such reassessment shall be made in the manner provided by Section 223.405 through 223.485, Oregon Revised Statutes, as now or hereafter amended. (Ord. 1-1966 § 19)
12.10.200 Equitable apportionment of final assessments – Procedures – Recovery of city costs – Agreement – Filing.
A. In the event an owner, mortgagee or other lienholder as to a parcel of property formed from the partition or other division of a larger tract against which a final assessment is levied requests in writing, the city shall apportion the final assessment in such a way that the smaller parcel is assessed an equitable and pro rata share of said final assessment. Any apportionment shall be done such that it is consistent with the assessment method utilized by the council in establishing the final assessment under FMC 12.10.100.
B. A request for said equitable apportionment shall be made in writing and addressed to the city manager and set out the legal and factual basis for the requested apportionment; provided, the city manager shall then direct the city’s finance director to determine the appropriate apportionment based on the division of the property in question. The city’s finance director, in consultation with the city’s public works director and planning director, shall then make his/her determination on the terms and conditions under which the equitable apportionment is to be done such that it results in a fair division of the assessment as against all properties affected by the request.
C. The finance director shall determine the costs associated with the apportionment and cause an agreement to be developed and/or approved by the city attorney which agreement shall include the conditions under which the equitable apportionment is to take place and imposing on the requesting party(ies) liability for all city costs associated with the apportionment process, be those costs current or projected. Once an agreement is found to be satisfactory by the city and the requesting party(ies), it is to be presented to the council by the finance director along with a resolution authorizing the mayor and city manager to sign it on behalf of the city.
D. The agreement and authorizing resolution shall be filed with the city recorder as well as with Multnomah County so that a permanent record of the final assessments and payment schedules and amounts therefore is available.
E. The above provisions shall also be available to estimated assessments with respect to any tract or parcel divided into smaller parcels prior to the levy of a final assessment. (Ord. 8-2021 § 1; Ord. 9-2001 § 1)