Cammack v. City of Port Angeles, 1684--II

• Decision Date: 26 March 1976
• Docket Number: No. 1684--II,1684--II
• Citation: 15 Wn.App. 188,548 P.2d 571
• Parties: James CAMMACK and Barbara Cammack, his wife, Appellants, v. The CITY OF PORT ANGELES, a Municipal Corporation, Respondent.
• Court: Washington Court of Appeals

Page 188

15 Wn.App. 188

548 P.2d 571

James CAMMACK and Barbara Cammack, his wife, Appellants, v. The CITY OF PORT ANGELES, a Municipal Corporation, Respondent.

No. 1684--II.

Court of Appeals of Washington, Division 2.

March 26, 1976.

John R. Rutz of Niichel & Cossel, Port Angeles, for appellants.

Stanley A. Taylor and George L. Wood, Jr., of Conniff, Taylor & Behrhorst, Port Angeles, for respondent.

PEARSON, Judge.

This appeal involves the extent of the court's authority to review a local improvement district assessment levied by the City of Port Angeles against plaintiff's property for street and storm drainage improvements.

The LID was initiated at the request of several residents, including plaintiff, ¹ of the Canyonedge Addition adjacent to the southern boundary of Port Angeles. The addition consists of some 38 lots of various sizes and shapes.

Ordinance No. 1828, which established the LID, contained an estimated cost of $119,543.59 and provided:

Such assessments shall be made against the property . . . in accordance with the special benefits said property will derive from said improvements, without regard to the zone and termini method.

The LID included construction and installation of storm sewers and the grading, ballasting, and paving of the streets, including construction of curbs and gutters throughout the subdivision.

The city council determined that each lot would be assessed in proportion to its size, computed by a square footage method. Plaintiff's lot was considerably larger than most of the lots in the LID. As a consequence the 7,274.61 assessment was one of the highest assessments levied.

Prior to the hearing before the city council on the assessment, plaintiff filed written objections contesting both the method and the amount of the assessment levied against his property. The minutes of the hearing conducted pursuant to RCW 35.43.150 show only that plaintiff and several other property owners within the LID appeared and 'verbally objected to their assessments.' There is no indication in the hearing minutes that any evidence was presented concerning the question of how the market value of plaintiff's property was affected by the assessment. The minutes do show that 'the Public Works Director's certificate of evaluation and outstanding assessments and certificate of mailing of notices on hearing were read in full.' This certificate of evaluation was not made a part of the record brought to the superior court or to this court. We assume, however, that the certificate complied with RCW 35.43.150 and contained the public Works Director's evaluation of the estimated benefits to all property, including plaintiff's property, from the improvements. The minutes reveal that after a discussion of the assessments the protestors appeared to represent only 16 percent of the property affected by the assessment, and the council voted 4 to 1 to proceed with the LID.

On appeal to the superior court, plaintiff testified that his lot (17) was the largest and most choice lot in the entire subdivision and was selected by him because its higher elevation provided a view of the Strait of Juan De Fuca across to Victoria. He also stated that in constructing a home on lot 17, he encountered serious erosion and drainage problems. In the winter months 'we experienced nothing but a muddy situation (because of the poor drainage) and during the summer months nothing but a dusty, dirty situation (becaue of the unimproved roads).' These factors caused plaintiff to participate in the request for the LID improvements.

Plaintiff contended, however, that the assessment against his lot was more than double the value of the special benefit to his property, and consequently was substantially excessive and levied on a fundamentally wrong basis.

In support of his contentions plaintiff offered in evidence the portions of the city council records mentioned above and a map showing the improvements in relation to each of the 38 lots. In addition, plaintiff testified that in his opinion his particular lot was monetarily benefited in the sum of $1,500, but he was willing to assume $3,500 of the assessment. Plaintiff was not a qualified real estate appraiser. Plaintiff's expert, who was a qualified appraiser, expressed his opinion on the market value benefits most reluctantly. At one point, he testified he could not put a value on the improvements. At another point, he testified that a purchaser might pay $51,000 for the property otherwise worth $47,500, but he conceded that since the assessment was payable over 10 years or more, the impact of the assessment on a prospective buyer would be difficult to determine. On cross-examination the witness conceded that a reasonable market value for the property might be $47,500, plus the assumption of the LID.

At the conclusion of plaintiff's evidence, the trial court granted the City's motion to dismiss the appeal. The order of dismissal subsequently entered found and concluded that plaintiff did not establish the LID was founded upon a fundamentally wrong basis, or that the amount of the assessment was arbitrary or capricious. RCW 35.44.250. ² Specifically, the order recited that plaintiff did not 'establish by a preponderance of the evidence that the plaintiffs' property will not receive special benefits commensurate with the amount levied.'

On appeal to this court plaintiff contends it was error to dismiss the action at the conclusion of his case because he made a prima facie showing that the assessment was substantially excessive as to his property; the fact that it was substantially excessive also established prima facie that the method of assessment was fundamentally wrong. Since there was no other evidence before the trial court to establish the validity of the assessment, plaintiff contends it was error to dismiss his appeal.

Plaintiff's contentions require a consideration of two questions pertaining to appeals from LID assessments: (1) What burden of proof is upon the challenger of the assessment? (2) What standard of review is the court obliged to apply in considering the validity of the assessment? Both of these questions require a general consideration of the legislative history of the local improvement statutes, RCW 35.43 Et seq. and RCW 35.44 Et seq. Also preliminary consideration must be given to the posture of plaintiff's appeal at the time the order of dismissal was entered.

When the sufficiency of plaintiff's evidence was challenged, the trial court had the option of either ruling as a matter of law on the sufficiency without weighing the evidence or weighing the evidence and entering findings and conclusions based thereon. Maynard Invest. Co. v. McCann, 77 Wash.2d 616, 465 P.2d 657 (1970). Since the trial court found and concluded that plaintiff did not 'establish by a preponderance of the evidence that (his) property will not receive special benefits commensurate with the amount levied,' it is likely that the court weighed plaintiff's opinion evidence and rejected it as not credible. On the basis that a trial judge may totally reject opinion evidence if he believes its foundation is not sound, we could perhaps affirm the judgment on this ground alone. See Jarstad v. Tacoma Outdoor Recreation, Inc., 10 Wash.App. 551, 519 P.2d 278 (1974); Segall v. Ben's Truck Parts, Inc., 5 Wash.App. 482, 488 P.2d 790 (1971); In re Estate of Hastings, 4 Wash.App. 649, 484 P.2d 442 (1971).

It is not totally clear, however, that the trial court did, in fact, weigh the opinion evidence and reject it. The conclusional statement that plaintiff's evidence did not show that the assessment was founded on a fundamentally wrong basis or was arbitrary or capricious suggests that the court may have accepted the evidence as true, and nevertheless found it to be legally insufficient. Accordingly, we feel obliged to consider not only what plaintiff's burden of proof was, but also what standard of review is properly applied.

The local improvement statutes as they presently exist evidence a clear policy favorable to the construction and financing of local improvement. ³ This is best illustrated by RCW 35.43.020, which provides:

The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this and the following chapters relating to municipal local improvements but the same shall be liberally construed for the purpose of carrying out the objects for which intended.

In furtherance of this policy a strong judicial presumption was created as to the correctness of the assessment roll which placed the burden of proof upon the party challenging the assessment to establish that it was not correct. In re Local Improvement, 52 Wash.2d 330, 324 P.2d 1078 (1958); In re Sixth Avenue, 155 Wash. 459, 284 P. 738 (1930).

However, from the inception of the local improvement statutes in 1911 until a significant amendment in 1957, the courts played an ever-increasing role in reviewing local improvement district improvements honestly and upon due consideration, by the use of detailed do novo court review of the evidence relating to the question of whether or not a particular property received a benefit commensurate with the size of the assessment. ⁴ In re Schmitz, 44 Wash.2d 429, 268 P.2d 436 (1954). See Trautman, Assessments in Washington, 40 Wash.L.Rev. 100, 128 (1965).

The detailed de novo review approach was understandable since prior to 1957 the statute authorizing review of LIDs by the courts provided in RCW 35.44.250: 'The judgment of the court shall (confirm), correct, change, modify, or annul the assessment in so far as the same affects the property of the appellant.'

This broad statutory review authority was significantly restricted in 1957 by the amendment of RCW 35.44.250 to provide:

The judgment of the court shall confirm, unless the court shall find from the evidence that such assessment is founded upon a fundamentally wrong basis...