Chapter 13.04 LOCAL IMPROVEMENTS

The provisions of this chapter apply to all future local improvement districts and, to the extent further actions or proceedings may require, to all existing districts as of the effective date of the ordinance codified in this chapter. (Ord. 84-15 § 26)

13.04.020 Definitions.

As used in this chapter, except where the context clearly indicates a different meaning, the terms “local improvement,” “owner” and “lot” have the meanings given those terms by ORS 223.387, as constituted on or after the effective date of the ordinance codified in this chapter; and the property which is to be assessed for the cost or part of the cost of a local improvement and the property on which the local improvement is located shall be known together as a “local improvement district.” (Ord. 84-15 § 1)

13.04.030 Initiation – Resolution of intention.

A. Whenever the city council in its discretion deems it necessary to consider a local improvement, upon its own motion, or upon the petition of the owners of one-half of the property to benefit specially from the improvement, where such improvement would be paid for in whole or in part by special assessment according to benefits, then the city council shall by motion direct an appropriate city employee or agent to make a survey and written report for such project and file the same with the director of planning for the city. Unless the council directs otherwise, such report shall at a minimum contain the following information:

1. A map or plat showing the general nature, location and extent of the proposed improvement and the land to be assessed for the payment of any part of the cost thereof.

2. Preliminary plans, specifications and estimates of the work to be done; provided, however, that where the proposed project is to be carried out in cooperation with any other governmental agency, the report may adopt the plans, specifications and estimates of such agency.

3. An estimate of the probable cost of the improvement, including any legal, administrative and engineering costs attributable thereto.

4. An estimate of the unit cost of the improvement to the specially benefitted properties.

5. 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 cost of the improvement to the properties specially benefitted.

6. The description and assessed value of each lot, 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 the contract purchasers thereof.

7. A statement of outstanding assessments against property to be assessed.

B. Council’s Action on Report. After the report has been filed with the city director of planning, the council may thereafter by motion approve the report; modify the report and approve it as modified; require additional or different information for such improvement; or it may abandon the improvement. The council shall not consider any improvement for the formation of a local improvement district unless the total assessed valuation of the area in the district to be specially benefitted by the improvements is at least double the estimated cost of the improvement, including any legal, administrative, and engineering costs attributed thereto, unless council excepts said project from the requirements of this subsection based on findings that indicate the estimated amount of the improvement costs that will be assessed and paid in installments shall not exceed one-half the assessed valuation of the area specifically benefitted by the improvements.

C. Resolution. After the city council has approved the report as submitted or modified, the council shall by resolution declare its intention to make such improvement, and provide the method and manner of carrying out the improvement. The improvement resolution may include alternative proposals relating to a proposed local improvement; provided, however, that all of the information required for a particular local improvement shall be included for each alternative proposal. (Ord. 90-28 § 1; Ord. 84-15 § 2)

13.04.040 Hearing – Notice.

A. After adoption of the improvement resolution, the city recorder shall cause notice of the proposed improvement and of the public hearing to be given by one publication, not less than 10 days prior to the public hearing, in a newspaper of general circulation within the city, and by mailing copies of the notice to the owner(s) of the lot(s) affected by the proposed improvement.

B. The notice shall contain:

1. A general description of the proposed local improvement and the property to be specially benefitted thereby. The description of the property need not be by metes and bounds, but shall be such that an average person can determine from it the general location of the property;

2. An estimate of the total cost of the improvement and the portion anticipated to be paid for by the special assessments;

3. The date, time and place of the public hearing at which time and place the city council will hear testimony and consider objections and remonstrances to the proposed improvement by any party aggrieved thereby;

4. A statement of a place where preliminary project design and other additional information concerning the improvement is available to the public; and

5. Any other information the council may direct to be included.

C. Any mistake, error, omission or failure with respect to the mailing of notice shall not be jurisdictional or invalidate the local improvement proceedings. (Ord. 90-28 § 2; Ord. 84-15 § 3)

13.04.050 Hearing – Decision by council.

A. At the time of the public hearing, the council shall hear and consider testimony, both oral and written, on the proposed local improvement; and may continue the hearing as it deems necessary. After such hearing the council may, in its discretion, order the improvement to be made. If the council elects to order such improvement, it shall, within 90 days after the date of the hearing, provide by resolution for the establishment of the local improvement district and the construction of the improvement.

B. Notwithstanding the fact that the proposed improvement was petitioned for by the owners of 50 percent of the property to benefit, the council may refuse to proceed with the improvement if it finds the proposed improvement to be untimely or not in the best interests of the city.

C. At the public hearing, the council may direct a modification of the proposed local improvement by revising the scope of the improvement, by reducing or enlarging the local improvement district which it deems will be benefitted by the improvement, or may make such other modifications in the proceedings as it finds reasonable. If the council modifies the scope of the improvement so that assessment is likely to be substantially increased upon one or more lots, or if the council enlarges the local improvement district, or if the council causes a substantial change in any of the particulars contained in the improvement resolution, a new improvement resolution shall be adopted, new estimates made and new notices mailed to the owners within the proposed local improvement district. However, no new publication shall be required. (Ord. 84-15 § 4)

13.04.060 Initiation – Alternative procedure.

Whenever all of the owners of any property to be benefitted and assessed for any local improvement have signed a petition, directed and presented to the council, requesting such local improvement, the council may initiate and construct such local improvement without mailing notice to the owners of the affected property if notice is published and a public hearing is held. (Ord. 90-28 § 3; Ord. 84-15 § 5)

13.04.070 Creation of local improvement district.

The council, by resolution, shall provide for the establishment of the local improvement district and the making of the local improvement in substantial conformity with the proposal set forth in the initiating resolution. (Ord. 84-15 § 6)

13.04.080 Manner of doing work.

Local improvements may be made in whole or in part by the city, by another governmental agency, by contract, or by any combination thereof. The city manager, on behalf of the city, shall determine the engineer for all work to be accepted by the city for public maintenance. (Ord. 84-15 § 7)

13.04.090 Construction and improvement – Bids.

A. Immediately after the date the resolution establishing the local improvement district is adopted, the engineer for the city shall cause necessary right-of-way and easements to be acquired and the improvements to be made in accordance with the terms of said resolution if the work is to be performed by the city or another governmental agency. If any part of the work of the improvement is to be done under contract bids, the engineer for the city shall cause detailed plans and specifications to be prepared and filed, and notice for bids to be published in accordance with requirements of public contracting laws as specified in the Oregon Revised Statutes and city ordinances and resolutions.

B. Contracts for all or part of the work of the local improvement may be let by the council to the lowest responsible bidder whose bid is in the best interest of the city as determined in the sole discretion of the council. The council shall have the right to reject any or all bids when they are deemed unreasonable or unsatisfactory in the council’s discretion. If the council rejects all bids, it may direct the engineer for the city to readvertise for bids or direct the work to be performed by city forces. The city shall provide for the bonding of all contracts for the faithful performance of any contract let under its authority, and the provisions thereof in case of default shall be enforced by action in the name of the city.

C. If the council finds, upon opening bids for the work of such improvement, that the bid in the best interest of the city is substantially in excess of the engineer’s estimate, it may, in its discretion, provide for holding a special hearing to consider objections to proceeding with the improvement on the basis of such bid. (Ord. 90-28 § 4; Ord. 84-15 § 8)

13.04.095 Alternate local improvement street and stormwater standard.

When authorized in the local improvement district formation resolution, an alternate local improvement street and stormwater standard is permitted. The resolution shall include an engineering report and the report shall review and approve use of an alternate local improvement street and stormwater standard as described herein for construction of the local improvement by the city. The subject local improvement must serve developed or partially developed residential areas in which right-of-way is constrained by natural features, topography or existing buildings. The constraint must be such that typical bicycle and pedestrian facilities and typical travel lane widths are not feasible. The minimum standard which may be authorized by the city engineer for the LID improvement shall be a minimum of 16 feet paved roadway with two-foot-wide compacted shoulders on both sides of the roadway. Design shall include stormwater management but instead of collecting stormwater and conveying runoff through inlets, curbs, gutters and pipes as typical, the alternate standard may include swales, ditches and overland flow to convey stormwater safely without causing erosion. The city engineer shall not authorize the alternate standard unless the following additional criteria are met:

A. Average daily traffic shall be 1,500 or less vehicle trips per day.

B. Minimum emergency response access shall be met.

C. Traffic calming elements shall be required. (Ord. 2016-02 § 1)

13.04.100 Assessable costs and expenses.

The costs and expenses of local improvements which may be assessed against the property specially benefitted by the improvement shall include the costs of construction and installation of the improvement; advertising, legal, administrative, engineering and assessment costs; financing costs, including interest charges; the costs of any necessary property, right-of-way or easement acquisition and condemnation proceedings; and any other necessary expenses. (Ord. 84-15 § 9)

13.04.110 Assessment method – Alternative financing.

A. The council, in adopting a method of assessment of the costs of any local improvements, may:

1. Use any just and reasonable method of determining the extent of the local improvement district consistent with the benefits derived;

2. Use any method of apportioning the sum to be assessed as is just and reasonable between the properties determined to be specially benefitted;

3. Authorize payment by the city of all or any part of the costs of a local improvement when, in the opinion of the council, the topographical or physical conditions, or unusual or excess public travel or use, or other character of the work involved warrants only a partial payment or no payment by the benefitted property of the costs of the local improvement.

B. Nothing contained in this chapter shall preclude the council from using any other available means of financing local improvements, including federal or state grants-in-aid, water or sewer fees or charges, revenue or general obligation bonds, or any other legal means of financing. If such other means of financing local improvements are used, the council may, in its discretion, levy special assessments according to the benefits derived to cover any remaining part of the costs of the local improvement. (Ord. 84-15 § 10)

13.04.120 Assessment ordinance.

When the estimated cost of an authorized local improvement has been ascertained on the basis of the contract award or estimate of costs of the engineer for the city, or after the work is done and the cost thereof has been actually determined, the council shall determine whether the property benefitted shall bear all or a portion of the cost. The city recorder, or such other person as the council may direct, shall prepare the assessment to the respective lots within the assessment district and file it in the appropriate city office. Notice of such assessment shall be mailed or personally delivered to the owner, or reputed owner, of each lot to be assessed. Such notice shall state the name of the owner or reputed owner, the description of the property proposed to be assessed, the amounts of assessment proposed on that property, and shall fix a date by which time objections shall be filed with the recorder, or other person designated by the council. Any such objection shall state the grounds for the objection. The city council shall consider such objections at a public meeting and may adopt, correct, modify or revise the proposed assessments and shall determine the amount of assessments to be charged against each lot within the district, according to the special and peculiar benefits accruing thereto from the improvement, and shall by ordinance spread the assessments. (Ord. 90-28 § 5; Ord. 84-15 § 11)

13.04.130 Notice of assessment.

Within 10 days after the ordinance levying assessments has been passed, the city recorder shall send by registered or certified mail a notice of assessment to the owner of the assessed property and shall publish notice of such assessment once in a newspaper of general circulation in the city, which shall be made not later than 10 days after the date of the assessment ordinance. The notice of assessment shall include the name of the property owner, a description of the assessed property, the amount of the assessment, and the date of the assessment ordinance, and shall state that interest will begin to run on the assessment and the property will be subject to foreclosure unless the owner either makes application to pay the assessment in installments within 20 days after the date of the publication of notice or pays the assessment in full within 30 days after the date of the assessment ordinance. No application for installment payments shall be approved or filed by the city if the amount remaining unpaid upon such assessment together with the unpaid balance of any previous assessments for improvements against the same property exceeds the assessed valuation of the property, as shown by the last county tax roll. (Ord. 90-28 § 6; Ord. 84-15 § 12)

13.04.140 Lien records – Collection and foreclosure proceedings.

A. After passage of the assessment ordinance by the council, the city recorder shall enter in the city lien docket a statement of the amounts assessed upon each particular lot, parcel of land or portion thereof, together with a description of the improvement, the name of the owners and the date of the assessment ordinance. Upon such entry in the lien docket, the amount so entered shall become a lien and charge upon the respective lots, parcels of land or portions thereof which have been assessed for such improvement. All assessment liens of the city shall be superior and prior to all other liens or encumbrances on property insofar as the laws of the state permit. Interest shall be charged at a rate that shall be variable, depending on (1) the rate the city would earn in the local government investment pool on the date of final assessment, plus two percent, during any period during which the improvement is financed out of the city’s unbonded assessment fund; and thereafter (2) the average interest rate the city must pay the purchasers of Bancroft bonds, issued under the Bancroft Bonding Act procedures of state law, plus two percent to cover the city’s costs of financing, such as but not limited to bond risk, during any subsequent period during which the improvement is financed out of revenues from the sale of Bancroft bonds. If the owners of real property have signed applications to pay in installments, the owners shall pay at the time of submission of the application a processing fee in the amount of one-half percent of the final assessment to cover the costs of processing the application, and also shall pay the amount of the county recording fee for the assessment lien.

B. Any assessments for which the owners of real property have signed applications to pay in installments, which are more than 30 days delinquent, may be charged a late payment charge, equal to one and one-half percent interest per month or part thereof, provided the owners have been notified in writing in advance by the city.

C. After 60 days from the date the assessments are due and payable, the city may proceed to foreclose the liens or enforce collection of the assessments in the manner provided by the general law of the state.

D. The city may charge all assessment accounts which are delinquent and subject to collection the city’s reasonable attorney fees attributable to the collection process or foreclosure of the city’s lien.

E. If the owners of real property have signed applications to pay in installments, the owners at any time may pay to the city the unpaid balance of the amount of the assessment, together with the full amount of interest to the next installment date, charges, and late payment penalties and charges accrued thereon to the date of payment, in full payment thereof. (Ord. 2016-02 § 2; Ord. 96-2 § 1; Ord. 90-28 §§ 7, 8; Ord. 84-15 § 13)

13.04.150 Errors in assessment calculations.

Claimed errors in the calculation of assessments shall be brought to the attention of the city recorder, who shall determine whether there has been an error in fact. If the city recorder finds that there has been an error in fact, he shall recommend to the council an amendment to the assessment ordinance to correct such error. Upon enactment of any such amendment, the city recorder shall cause the necessary correction to be made in the city lien docket and shall cause a correlated notice of assessment to be sent by mail. (Ord. 84-15 § 14)

13.04.155 Deferral of potential unit assessment payments.

An owner may elect to defer payment of the amount of special assessment for a local improvement assessed on potential units pursuant to this chapter. The election shall be made by filing a claim for deferral with the city recorder after final assessment. The effect of filing the claim shall be to defer payment of the amount of special assessment for local improvement on potential units. Potential units are those lots identified as such in the resolution fixing the estimated and final assessments for a local improvement district. Potential units are determined by using the potential unit method which establishes the maximum number of potential units on properties within a proposed local improvement district by taking into consideration the zoning, densities, topography, transportation, utilities and such other factors as necessary to evaluate the development potential of the properties. The claim for deferral shall be effective for the calendar year for which it is filed and for each subsequent year until the occurrence of one or more of the events described in this section.

A. In order to qualify for deferral of payment of special assessment for local improvement amounts under this section, the owner must meet the following requirements at the time the claim for deferral is filed and thereafter so long as payment of the amount of special assessment for local improvement is deferred:

1. The owner filing the claim must own the fee simple estate or be purchasing the fee simple estate under a recorded instrument of sale.

2. The property with respect to which the claim is filed must have an assessment levied upon it for potential units. The deferment will only apply to the potential units, not lots or parcels which exist as of the date final assessments are imposed.

B. A claim for deferral under this section shall be in writing on a form prescribed by the city recorder and shall:

1. Describe the lot or parcel upon which the potential units exist.

2. Recite facts establishing the eligibility for the deferral under the provisions of this section.

3. Be verified by a written declaration of the applicant making the claim to the effect that the statements contained in the claim are true and correct under penalty of perjury and false swearing.

4. Be filed within 30 days after final notice of the assessment is received.

C. The city recorder shall show by an entry in the assessment lien record which property specially assessed is accorded deferral under this section.

D. Interest shall accrue on the amount of the deferred special assessment for local improvement at the rate established in the resolution imposing final assessments.

E. The liens for deferred special assessment for local improvement shall have the same priority as special assessment liens against real property.

F. All deferred special assessments for local improvement, including accrued interest, become payable when:

1. The property with respect to which deferral of collection of special assessment for local improvement is claimed is sold, or a contract to sell is entered into, or some person, other than the owner who claimed the deferral or other than a surviving spouse of such owner who elects to continue the deferral, becomes the owner of the property. The surviving spouse may elect to continue the property in its deferred status if the election is filed in the same manner as a claim for deferral is filed under subsection B of this section within six months of the death of the spouse who claimed the deferral. Thereupon, the property with respect to which the deferral is claimed shall continue to be subject to special assessment deferral.

2. When any sale, contract to sell or any other transfer occurs and a surviving spouse does not elect to continue the deferral, the amounts of deferred special assessment for local improvement, including accrued interest, shall be due and payable on the sale or transfer of the property.

3. When subsequent approval of a development order occurs (as in the case of a site plan for multifamily development) or approval of a subdivision; provided, that in the case of a subdivision the owner may elect to continue deferral until sale of the individual lots.

4. If the amounts falling due as provided in this section are not paid on the indicated due date, the amounts shall be deemed delinquent as of that date and the property shall become subject to foreclosure.

G. Potential unit/lot deferral is not available by right; any authorized potential unit/lot deferral (or partial deferral) must be specifically authorized in the formation resolution or subsequent assessment ordinance for the LID. Notwithstanding the above, a negotiated development agreement (ORS Chapter 94) may be used to bind a property owner to a specific unit/lot number and payment arrangement for purposes of the LID assessment. (Ord. 2013-17 § 1)

13.04.160 Installment payment of assessments.

The Bancroft Bonding Act (ORS 223.205, 223.210 through 223.295) shall apply to assessments levied in accordance with this chapter. If any of the provisions of this chapter differ from the statutory provisions of the Bancroft Bonding Act, the provisions of this chapter shall apply. The owner of any property assessed for a local improvement in accordance with this chapter, in the sum of $500.00 or more, at any time within 20 days after notice of the assessment is mailed, pursuant to LCMC 13.04.130, may file with the city recorder a written application to pay the whole of the assessment in equal semiannual installments over a period not to exceed 20 years, as the city council may provide by resolution, together with interest and charges as provided in LCMC 13.04.140. Until the city council by resolution shall adopt a different period, the period over which installments shall be paid shall be 10 years. If any part of the assessment has been paid, the unpaid balance of the assessment, in such installments, shall be charged with any such interest and charges. (Ord. 96-2 § 2; Ord. 90-28 § 9; Ord. 84-15 § 15)

13.04.170 Filing of resolutions and ordinances.

The city recorder shall file copies of the resolution establishing a local improvement district and the assessment ordinance with the county recorder; provided, however, that failure to file such resolutions and ordinances shall not invalidate or affect any proceedings in connection with the local improvement district and shall not impose any liability on the city, the city recorder or any official, officer or employee of the city. (Ord. 84-15 § 16)

13.04.180 Deficit assessments.

If the initial assessment has been made on the basis of estimated cost, and upon the completion of the improvement the actual cost is found to be greater than the estimated cost, the council may make a deficit or supplemental assessment for the additional cost. Proposed assessments upon the respective lots within the local improvement district for the proportionate share of the deficit shall be made, notices sent, a public hearing held and opportunity for objections considered, and determination of the assessment against each particular lot, block or parcel of land shall be made as in the case of the initial assessment, and the deficit or supplemental assessment spread by ordinance. The deficit assessments shall be entered in the city lien docket, notices published and mailed, and the collection of the assessment made in accordance with the provisions of this chapter relating to the original assessment. (Ord. 84-15 § 17)

13.04.190 Rebates and credits.

If assessments have been made on the basis of estimated cost, and upon completion of the improvement project the cost is found to be less than the estimated cost, the council shall ascertain and declare the same by ordinance; and when so declared, the excess amounts shall be entered on the city lien docket as a credit upon the appropriate assessment. In the event any assessment has been paid in full, the person who paid the assessment or his legal representative shall be entitled to repayment of the excess amount. (Ord. 90-28 § 10; Ord. 84-15 § 18)

13.04.200 Abandonment of proceedings.

The council shall have full power and authority to abandon and rescind proceedings for local improvements made under this chapter at any time prior to the final completion of such improvements. If liens have been assessed upon any property under such procedure, they shall be canceled, and any payments made on such assessments shall be refunded to the person paying the same, his assigns or successors. (Ord. 84-15 § 19)

13.04.210 Curative provisions.

No improvement assessment shall be rendered invalid by reason of failure to have all of the information required to be in any engineer’s or city recorder’s report, the improvement resolutions or the assessment ordinance, the lien docket or notices required to be published, mailed or posted; nor by the failure to list the name of, or mail notice to the owner of any property as required by this chapter; nor by reason of any other error, mistake, delay, omission, irregularity or other act, jurisdictional or otherwise, in any of the proceedings or steps herein specified, unless it appears that the assessment is unfair or unjust in its effect upon the person complaining. The council shall have the power and authority to remedy and correct all such matters by suitable action and proceedings. (Ord. 84-15 § 20)

13.04.220 Reassessments.

A. Whenever all or part of any assessment for any local improvement has been or shall be declared void or set aside for any reason or its enforcement refused by any court having jurisdiction thereof, or whenever the council is in doubt as to the validity of all or any part of such assessment, the council may make a new assessment or reassessment in the manner provided by the laws of the state.

B. For purposes of this section, the term “assessment” includes deficit and supplemental assessments or reassessments. (Ord. 84-15 § 21)

13.04.230 Remedies.

Subject to the curative provisions of LCMC 13.04.210 and the rights of the city to reassess pursuant to LCMC 13.04.220, all actions of the council taken pursuant to this chapter are reviewable solely and exclusively by writ of review in accordance with the procedures in ORS 34.010 through 34.100. Review of an ordinance levying any assessment may be commenced only by a property owner who has filed a written objection to the proposed assessment in accordance with LCMC 13.04.120. (Ord. 84-15 § 22)

13.04.240 Segregation of liens.

A. Whenever the ownership of any portion of a tract of real property, less than the entire tract, is transferred, any lien against such real property in favor of the city shall, upon request of the owners of any portion of the tract, be segregated as provided in this section and not otherwise.

B. Applications for the segregation of liens shall be made to the city recorder, describing the tract to be segregated and the names of the owners of the respective tracts. A certificate of the county assessor shall be furnished showing the assessed valuation of the various tracts of land concerned as of July 1st of the calendar year in which the segregation is requested or, if not available, as of July 1st of the preceding year.

C. The city recorder shall thereupon compute a segregation of the lien against the real property, upon the same basis as the lien was originally computed and apportioned, and reflect this segregation in the city lien docket; provided, however, that no segregation shall be made unless all parts of the original tract of land after the segregation have a true cash value, as determined from the certificate of the assessor, of 120 percent or more of the amount of the lien as to each of the various tracts concerned.

D. An application for segregation shall not be processed until the applicant pays a fee to defray the costs of evaluating the application. Such fee shall be calculated by the finance department and be based on the administrative and other costs incurred in processing the segregation. Apportionment of a special assessment under this section shall be done in accordance with a resolution of the council. The resolution shall describe each parcel of real property affected by the apportionment, the amount of the assessment levied against each parcel, the owner of each parcel and such additional information as is required to keep a permanent and complete record of the assessments and payments. (Ord. 96-2 § 3; Ord. 90-28 §§ 11, 12; Ord. 84-15 § 23)