Chapter 14.46 PROTESTS, HEARINGS AND COUNCIL ACTION

Any owner of property proposed to be assessed or lessee of such property, as provided in Section 14.46.020, may object to the proposed improvement or any portion thereof, the extent of the proposed improvement district, or to any other matter contained in the preliminary report by filing a duly acknowledged written request with the county clerk at or before the time set for the hearing upon the proposed improvement. Such protest must contain a statement of the reasons therefor, a description of the property in which each signer thereof is interested sufficient to identify the same and, if the signers are not shown as the owners of such property in the records of the Department of Taxation of the state, must contain or be accompanied by written evidence that such signers are the owners, or such lessees, of such property. The clerk shall endorse on each protest the date of its receipt, and at the time appointed for the hearing shall present to the council all protests filed with him. Any filed protest may be withdrawn, in writing, at any time prior to the conclusion of the hearing. (Ord. 801 § 1 (part), 1974: prior code § 25-5.1)

Any lessee of any property proposed to be assessed under this article, who by the express terms of his lease must pay the kind of assessments contemplated by this article, shall be entitled to exercise the same rights to protest as an owner of such property upon filing with the county clerk prior to the hearing a certified copy of his lease; provided, that any lessor of such lessee, or any owner of such property, may, at any time before the closing of the hearing, make void the protest or the rights of protest of any such lessee by filing with the county clerk or the council a duly acknowledged waiver of the stipulation in the lease which requires the lessee to pay the proposed assessment, and a written undertaking by such lessor or owner to pay the proposed assessment to be made for the proposed improvement. (Ord. 801 § 1 (part), 1974: prior code § 25-5.1.1)

If owners, including lessees as provided in Section 14.46.020, of fifty-five percent of the total area, or of the total frontage if it is proposed that the method of assessment shall be based solely on frontage, of all land proposed to be assessed for the proposed improvement file duly acknowledged written protests, exclusive of duly withdrawn protests, against the proposed improvement, or any portion thereof, no further proceedings shall be taken for the making of the proposed improvement, or such portion thereof, as the case may be, for a period of six months from the closing of the hearing upon the proposed improvement. (Ord. 801 § 1 (part), 1974: prior code § 25-5.1.2)

A protest of the quantum specified in Section 14.46.030 may be overruled by the affirmative vote of two-thirds of the members of the council insofar as such protest is against a proposed improvement involving only sanitary sewerage or storm drainage facilities or against the sanitary sewerage and/or storm drainage portion of a proposed improvement; and if such protest is against a proposed improvement involving sanitary sewerage and/or storm drainage facilities and other improvements, it may be so overruled as to the sanitary sewerage and/or storm drainage portion of such proposed improvement. The council may proceed forthwith notwithstanding such a protest in the event same is overruled as provided in this section. (Ord. 801 § 1 (part), 1974: prior code § 25-5.1.3)

If it shall be necessary, in order to find whether a protest of the quantum specified in Section 14.46.030 exists, to determine whether any or all of the signers of written protests are the owners or lessees of property to be assessed, the council shall make such determination from the records of the Department of Taxation of the state any written evidence submitted with a written protest and any other evidence received at the hearing. The council shall be under no duty to obtain or consider any other evidence as to ownership or leases of property and its determinations shall be final and conclusive. (Ord. 801 § 1 (part), 1974: prior code § 25-5.1.4)

A. At the time and place fixed for public hearing in the resolution adopted pursuant to Section 14.42.050, any interested person may orally present any protest, objection, or suggestions with respect to the proposed improvement or any matter contained in the preliminary report. After conclusion of the hearing, the council shall first consider any protests, objections, or suggestions which may have been made or filed and whether sufficient valid written protests have been filed to compel it to abandon all or any part of the proposed improvement. If the council has jurisdiction to proceed, by overruling protests pursuant to Section 14.46.040 or otherwise, it shall then determine whether or not the proposed improvement or any portion thereof shall be made as proposed, or made with changes or modifications.

B. If the council determines that the proposed improvement should be made with changes or modifications which require a hearing thereon, as provided in Section 14.46.120, the council shall proceed as provided in Section 14.46.130. (Ord. 801 § 1 (part), 1974: prior code § 25-5.2)

When, after the hearing referred to in Section 14.46.070, the council determines that the improvement shall be made either as proposed or with changes or modifications which do not require a hearing, or with changes or modifications which require a hearing, and such hearing has been duly

held, it shall by resolution create, define and establish the district benefited by the improvement and to be assessed to pay the cost thereof, which resolution shall, by reference to the resolution proposing to make the improvements or otherwise, describe the character and extent of the improvement to be made, including the kinds of materials to be used and the acquisitions to be made, and declare the portions of the cost of the improvement to be paid by the

county or others and the method of assessment to be used. The resolution shall also refer the matter to the mayor for preparation of the final report provided for by Section 14.42.070. (Ord. 801 § 1 (part), 1974: prior code § 25-5.3)

At the time and place fixed for public hearing in the resolution adopted pursuant to Section 14.42.110, the council shall receive complaints or objections respecting the proposed assessments from any interested persons. After conclusion of the hearing, the council shall make any modifications or changes in the proposed assessments as to appear to be equitable and just or necessary to enable it to find and determine that each lot or parcel is or will be benefited by the improvement to the amount of the assessment to be levied thereon. If the council determines that changes or modifications should be made which require a hearing thereon, as provided in Section 14.46.120, the council shall proceed as provided in Section 14.46.130. (Ord. 801 § 1 (part), 1974: prior code § 25-5.4)

The council may determine to combine the hearings upon the proposed improvement and upon the proposed assessment. If it does so, such determination shall be made in the resolution proposing to make the improvement, and the following provisions shall then be applicable to the proceedings:

A. The resolution need not specify the estimated maximum unit or rate of assessment nor fix the date of public hearing upon the proposed improvement, but shall refer the matter to the mayor for preparation of the final report and the assessment report, as provided for in Sections 14.42.070 and 14.42.100, respectively. For the purpose of the assessment report, the estimate of the costs of the proposed improvement shall be based on the estimated cost of the work to be included in bids when received, not upon the bid, or bids, of the lowest responsible bidder, or bidders. The amounts proposed to be assessed against lots or parcels shall be computed pursuant to the method of assessment set forth in the preliminary report or, in the event the council does not approve of such method, then pursuant to such variation thereof as the council sets forth in the resolution proposing to make the improvement. After the combined hearing, if the council determines to proceed with the proposed improvement, it need not again direct preparation of the final and assessment reports.

B. The county clerk shall not cause the notices to be given pursuant to Chapter 14.44 until the final report and assessment report have been so prepared by the director of public works and preliminarily approved by the council, at which time the council shall by resolution fix the date, time and place of the combined hearing; and the director of finance shall call for bids for the improvements to be constructed, in accordance with the provisions of Section 14.42.090, and such bids shall be received on or before the date of the combined hearing.

C. The provisions of both Sections 14.46.070 and 14.46.090 shall be applicable to the combined hearing, the same as though the time and place thereof had been fixed by resolutions adopted pursuant to Sections 14.42.050 and 14.42.110. (Ord. 801 § 1 (part), 1974: prior code § 25-5.5)

Unless jurisdiction to proceed has ceased or terminated, the council may, at any time before completion of the proceedings, make changes or modifications (which may include corrections, alterations, additions, deletions, increases or decreases) in the proceedings, or any act, determination or provision made, or permitted to be made, by the council under and pursuant to this article, including changes or modifications in any matter or item contained in the filed preliminary report, final report and assessment report or provided for in the resolutions proposing to make the improvement, creating the improvement district and the ordinance levying the assessments, the change or modification of which act, determination, or provision does not affect the jurisdiction of the council to make the improvement; provided, that after award of a contract no change or modification affecting such contract shall be made except as permitted by or in accordance with the provisions thereof. Except as provided in Section 14.46.120, such changes or modifications may be made without notice or hearing. (Ord. 801 § 1 (part), 1974: prior code § 25-5.6)

A. After the notices of the hearing upon the proposed improvement have been given, and such hearing held without the giving of a new notice thereof, no changes or modifications shall be made without a hearing if same will:

1. Reduce the number of installment payments for unpaid assessments below the minimum specified in the resolution proposing to make the improvement, or increase the term of bonds or the rate of interest thereon, or increase the premiums to be paid on advance payment of assessment installments or the call of any bond prior to maturity above the maximums specified in said resolution;

2. Add to or delete from the proposed improvement district any assessable land;

3. Substantially alter the character or extent of the proposed improvements so that the extent or distribution of benefits from the improvement is materially affected;

4. Materially alter the proposed method of assessment.

B. After the notices of the hearing upon the proposed assessments have been given, and such hearing held without the giving of a new notice thereof, no changes or modifications shall be made without a hearing if same will increase the amount of the assessment against any one or more lots or parcels above the amounts set forth therefor in the preliminary assessment roll.

C. Notwithstanding the provisions of this section, no hearing shall be required with respect to any such changes or modifications if the owners, including lessees as provided in Section 14.46.020, of all of the land within the boundaries of the proposed improvement district which is affected by such changes or modifications consent thereto in writing, duly acknowledged. (Ord. 801 § 1 (part), 1974: prior code § 25-5.6.1)

If the council proposes to make changes or modifications which require a hearing, it shall adopt a resolution briefly describing such changes or modifications, including their effect on any of the matters specified in Section 14.46.120, and fixing a date, time and place of hearing upon the changes or modifications when and where any interested person having any objection to the changes or modifications proposed to be made may appear before the council and show cause why the changes or modifications should not be made. The resolution shall state that written objections may be filed with the county clerk at or before the time fixed for the hearing, and may refer to maps, plats, plans, drawings, specifications or other documents and data on file in the office of the county clerk, which indicate the changes or modifications proposed to be made and which shall govern for all details thereof. (Ord. 801 § 1 (part), 1974: prior code § 25-5.6.2)

At the hearing, the council shall hear and pass on all objections filed or presented orally. If no written objections to the changes or modifications have been delivered to the county clerk at or before the time fixed for hearing, or if the objections have been heard and found by the council to be insufficient or have been overruled or denied, immediately thereupon the council by an affirmative vote of two-thirds of its members may, by resolution, make the changes or modifications. The decisions and determinations of the council in making such changes or modifications after notice and hearing shall be final and conclusive upon all persons entitled to appeal thereupon to the council. (Ord. 801 § 1 (part), 1974: prior code § 25-5.6.3)

A. When, after the hearing referred to in Section 14.46.090, the council determines that the assessments shall be made either as proposed or with changes or modifications which do not require a hearing or with changes or modifications which require a hearing and such hearing has been duly held, it shall, in cases involving changes or modifications, refer the matter to the mayor in the resolution making the changes or modifications, for preparation and filing by the director of public works of a final assessment roll reflecting the changes or modifications so determined and ordered in the resolution. Upon the filing of such final assessment roll, in cases in which same is so prepared, or when the council determines that the assessments should be made as first proposed, the council shall by ordinance fix the portions of the cost of the improvement to be assessed against the benefited properties and levy the assessments upon the respective lot or parcels of land in the respective amounts set forth in the preliminary or final assessment roll, as the case may be, which roll shall be incorporated in the ordinance by reference.

B. The ordinance shall also:

1. Direct the county clerk to certify upon the face of the roll, and upon the face of the map or plat described in subdivision 1 of subsection A of Section 14.42.100, that by the ordinance the assessments set forth in the roll were levied upon the lots or parcels, respectively, shown on the map or plat;

2. Establish the number of annual installment payments for unpaid assessments, and fix the date on which same shall commence;

3. Order that the liens of the assessments levied therein shall not extend to or cover any portions of the lots or parcels to be acquired as a part of the improvement to pay the cost of which the assessments were levied;

4. Provide with respect to any lots or parcels of land within the improvement district which are exempted by law from assessments, as recognized and provided for in Section 14.38.020, that the amounts otherwise assessable against such lots or parcels, respectively, as set forth in the roll shall be inchoate liens against each of such lots or parcels, respectively, for the same number of years as the number of annual installment payments for unpaid assessments as established in the ordinance, which liens shall secure the obligation as provided for in Section 14.38.030 for payments of assessments in the event of and from the date of sale or lease of any such lot or parcel. (Ord. 801 § 1 (part), 1974: prior code § 25-5.7)

After enactment of the ordinance levying assessments, the amounts of the several assessments, respectively, not previously objected to, shall be conclusively presumed to be just and equitable and not in excess of the benefits accruing or to accrue to the property assessed by reason of the improvement. No delay, mistake, error, defect, or irregularity in any act or proceeding authorized by this article shall prejudice or invalidate any assessment; but the same may be remedied by subsequent or amended acts or proceedings and, when so remedied, the same shall take effect as of the date of the original act or proceeding. All persons electing to pay assessments in installments, as provided in Section 14.50.070, shall be conclusively considered and held to have consented to the improvement, and such election shall be conclusively held and considered as a waiver of any and all right to question all power or jurisdiction of the county to make the improvement, the regularity or the sufficiency of the proceedings, or the validity or correctness of the assessment. (Ord. 801 § 1 (part), 1974: prior code § 25-5.7.1)