Emery v. City of Rawlins

• Decision Date: 20 June 1979
• Docket Number: A,No. 1977-2,No. 4962,1977-2,4962
• Citation: 596 P.2d 675
• Parties: Marvin EMERY, Jack Marzolf, Carl Matson, Byron Sundberg, Alfred Diest, Vernon Brodsho, Marvin Townsend, James Shultz, Darrell Snyder, Robert Evans, Richard Williams, Robert Salisbury, Alan Garbutt, Martin Pedersen, William Emery, David Funderburk, Roy E. Minard, Ronald R. Baker and Tony Papantonakis, Appellants (Appellants below), v. CITY OF RAWLINS, a Wyoming Municipal Corporation and City of Rawlins, Carbon County, Wyoming Local Improvement Districtppellees (Appellees below).
• Court: Wyoming Supreme Court

Page 675

596 P.2d 675

Marvin EMERY, Jack Marzolf, Carl Matson, Byron Sundberg, Alfred Diest, Vernon Brodsho, Marvin Townsend, James Shultz, Darrell Snyder, Robert Evans, Richard Williams, Robert Salisbury, Alan Garbutt, Martin Pedersen, William Emery, David Funderburk, Roy E. Minard, Ronald R. Baker and Tony Papantonakis, Appellants (Appellants below), v. CITY OF RAWLINS, a Wyoming Municipal Corporation and City of Rawlins, Carbon County, Wyoming Local Improvement District No. 1977-2, Appellees (Appellees below).

No. 4962.

Supreme Court of Wyoming.

June 20, 1979.

Kermit C. Brown, MacPherson, Golden & Brown, Rawlins, for appellants.

Michael W. McCall, Borthwick & McCall, Cheyenne, Harold M. Johnson and Steve D. Noecker, Johnson & Noecker, Rawlins, for appellees.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

McCLINTOCK, Justice.

Marvin Emery and others, owners of lots or tracts within the boundaries of an improvement district in the city of Rawlins, attack the assessments against those properties. Their written protests were denied after hearing before the city council, sitting as a board of equalization, and the district court of Carbon County affirmed. On appeal to this court it is contended that the ordinance confirming the assessment was enacted in violation of § 9-11-101, et seq., W.S.1977 entitled "Meetings of Governmental Agencies," and that the method of assessment employed by the city should be set aside for failure to conform to and implement standards set forth in § 15-6-404(b)(iv), W.S.1977. This statute provides in pertinent part that property within an improvement district "shall be assessed on an area basis, or lineal foot basis, or any other uniform basis so that property similarly benefited will be similarly assessed." The statute is not attacked but the alleged failure properly to apply it is claimed to be in violation of appellants' rights under the due-process and equal-protection clauses of the federal and state constitutions.

Appellants' protests mainly involved an alleged lack of uniformity in assessments as between adjacent or comparable properties, in most cases involving variations between interior and corner lots claimed to have resulted from improper credit allowed for existing improvements. Martin Pedersen and Vernon Brodsho further allege an improper computation of benefits resulting from the use of commercial or residential classifications in fixing the amount of acreage to be charged with the benefits. We shall affirm.

The district was formed for the purpose of installing sewer, curb and gutter, and asphalt paving. Assessments for the storm sewer, imposed on an area basis, were not contested. The district is somewhat unusual in that within its area some curb and gutter, or paving, or both, had already been installed. In some instances this had been done by the developer, in others by the owners of the particular properties. The record does not show the exact quantity and location of such existing improvements, nor the cost thereof. The council, in its resolution of intention to make the improvements and in the ordinance ordering the construction to proceed, does not mention commercial and residential classifications. It did set forth the method of assessment of benefits that should be followed and it is not denied that that method was applied. Essentially, the council determined that a computation should first be made of total quantities and costs of all improvements within the district as if none then existed. This total cost would be determined by using the contractor's unit bid price of $6 per lineal foot for curb and gutter, and $5.75 per square yard of paving. The resulting project cost (being an amount materially in excess of the total amount which was to be paid to the contractor) was then to be spread against each lot or tract in the district in the proportion that the square footage of that property bore to the total square footage of all properties within the district. Both the resolution and ordinance then provide:

"* * * Deductions from individual property owners' assessments for existing curb and gutter, pavement, and all other appurtenances of existing improvements will then be made for each lot, parcel and piece of property with existing improvements."

Neither document sets forth the manner in which these deductions are to be computed but both refer to a unit price of $6 per lineal foot for curb and gutter and $5.75 per square yard of paving. The record clearly shows that the consulting engineer for the city and the council used those figures in computing the deductions. Ordinance of the council approved the assessment roll, which showed a spread assessment of 21.34cents for curb and gutter and paving, with deduction where pertinent for existing improvements, resulting in the "total assessment due on lot." The ordinance confirming this assessment further directed that the assessment roll be turned over to the city treasurer for collection and that notice of such filing be published. The ordinance was effective March 15, 1977. No contention is made of any procedural defect other than violation of the public-meeting law.

Neither the resolution nor the ordinance defines the manner in which the square footage of the particular lot or tract charged with benefits is to be determined. In most instances it was determined upon the actual number of square feet. The record is not entirely clear what happened in some instances but it appears that during the course of computing the assessments the engineering firm for the city made its own determination that no "residential" lot would be treated as being more than 125 feet in depth and no "commercial" lot would be more than 180 feet in depth. This fact was made known during the course of the hearings on the assessment roll and by the final ordinance the acts of officers of the city are ratified so it may be considered that final approval of the assessment district and the computation of acreages is the action of the council. The appellants Vernon Brodsho and Martin Pedersen include alleged discrimination in this respect as an additional ground of their protest.

The alleged violation of the public-meetings law

Chapter 11 of Title 9, W.S.1977, Meetings of Governmental Agencies, first declares that the various agencies exist to conduct public business. "Action" of a governing body is defined as "the transaction of official business, including a collective decision * * * commitment or promise" to make a decision, or an actual vote "upon a motion, * * * resolution, * * * rule * * * or ordinance." "Meeting" is an assembly of the governing body at which action is taken. § 9-11-102(a)(i) and (iii). The law further directs that meetings of a governing body be open and that no action of the body shall be taken except at a meeting held in accordance with the act. "Action taken at a meeting not in conformity with this act is null and void." § 9-11-103.

In their appeal timely filed in the district court appellants said nothing about any violation of the public-meetings law but by motion filed almost two months later they asked the court to set aside the action of the council overruling their protests and also to set aside the ordinance confirming the assessment roll. If the denial of the protests as announced at the end of the hearing on September 21 was the result of an agreement or decision reached by the council in a secret meeting held before the open meeting, this court would be obliged to declare the formal action of the council void. However, before reaching that point we first consider the city's contention that this attack upon the denial of the protests and the passage of the ordinance confirming the assessment roll was not timely and should not have been considered by the district court.

Section 15-6-407, W.S.1977 permits review by the district court of the council decision approving the assessment roll. It directs that the notice of appeal shall set forth a description of the property "and the objections of the appellant to the assessment." Within ten days of filing the notice the appellant must also file a transcript of the assessment roll and "his objections thereto." If we considered the notice of appeal in light of this section only, we perhaps could say that appellants were confined by their appeal to the objections which they had specifically raised. In Mayland v. State, Wyo., 568 P.2d 897, 899 (1977) we held that the district court should have dismissed an appeal from justice court where the appellant had failed in his notice of appeal to state with particularity the alleged errors or other grounds for the appeal as required by Rule 23(c), W.R.Cr.P.J.C. However, we think that the statutory requirement that the objections be stated in the notice of appeal must be construed in connection with § 15-6-405 relating to the filing of objections and hearing thereon. That section requires the city clerk to give notice of hearing upon the assessment roll. Interested persons may then object in writing, filing the same before the hearing. The council then sits as a board of equalization to consider the objections to the tax roll. They are then to consider the objections and correct or revise the roll, may set it aside, order new assessments, and then proceed to confirm the roll by ordinance. Paragraph (c) of the section directs that:

"All objections to the roll shall state clearly the grounds of objections and unless made within the time and in the manner prescribed are conclusively presumed to have been waived."

If any roll is amended so as to raise assessments or to include omitted property a new hearing on a new notice must be held.

"However, when any property has been entered originally upon the roll and the assessment upon the property has not been raised, no objections thereto may be considered by the governing body or by any court on appeal, unless they were made in...