Stanley v. City of Salem
| Decision Date | 10 May 1967 |
| Citation | 247 Or. 60,427 P.2d 406 |
| Parties | Lewis A. STANLEY et al., Respondents, v. CITY OF SALEM, a municipal corporation, Appellant. A. C. HAAG & CO., a corporation et al., Respondents, v. CITY OF SALEM, a municipal corporation, Appellant. |
| Court | Oregon Supreme Court |
William J. Juza, Salem, argued the cause for appellant. With him on the brief was Ted Barbera, Salem.
Myron L. Enfield, Salem, argued the cause for respondents. With him on the brief were George A. Rhoten and Rhoten, Rhoten & Speerstra, Salem.
Before PERRY, C. J., and McALLISTER, SLOAN, GOODWIN, DENECKE, FORT and BELLONI, * JJ.
The plaintiffs brought suits to enjoin the City of Salem from enforcing special assessments against their properties. The assessments were for the purpose of paying part of the city's cost of widening Silverton Road. The trial court held that the adjoining property owners received no special benefits from the improvement and, therefore, the assessments were invalid.
The court enjoined the city and it appeals.
Silverton Road runs southwesterly into Portland Road, the most traveled northsouth street in the north half of Salem. Approximately three-quarters of a mile, that is the westerly end, of Silverton Road was improved. The city council recited in the resolution authorizing the project: '* * * SILVERTON ROAD * * * is in such condition because of narrowness and roughness that it is unsafe and dangerous to persons and vehicles passing on, along and over same, and for that reason, and for the further reason that it is now necessary to improve said portion of Silverton Road in order to facilitate the flow of traffic into, from and through the City of Salem * * *.'
Prior to the improvement the road was paved to a width of 20 feet and it had gravel shoulders with no curbs. The improvement consisted of widening the pavement to 44 feet and sidewalks and curbs were installed. (The property owners are not complaining about the assessment for the sidewalks.) Four traffic lanes were designated and 35 miles per hour was made the posted speed. Apparently soon after the finish of the project the average daily traffic on the road was 8,700 cars.
The westerly portion of the improved street runs through a commercial area; for example, plaintiff A. C. Haag & Company sells and services farm and light industrial machinery. The easterly portion of the project runs through a residential area, a portion of which is zoned so that some commercial buildings can be constructed.
The property owners in the commercial area were assessed the full cost of the improvement, except for the cost of the intersections, which reduced the cost by approximately 12 per cent. In the area which was primarily residential, the abutting owners were assessed for all the improvement, except the intersections and 10 feet in width of the paved area, a total reduction of approximately 35 per cent. Because of this difference between the commercial and residential areas two assessments were levied, necessitating these two suits, which have been consolidated.
All the property owners testified that the improvement, except for the sidewalks, did not in any way benefit their property, but, in fact, was a detriment. One witness qualified as an expert and was as well a trustee of affected property. He testified that when a street is improved to speed up traffic it decreases the value of both the commercial and residential property. He testified that there may be some types of business that would be benefited by an improvement such as was made, but he could not think of any.
On the other hand, two expert witnesses called by the city testified that the Silverton Road improvement enhanced the value of all the adjoining property.
This court has decided many special-assessment cases. The law has by now become fairly settled. Special assessments can be levied upon property to the extent that property is specially benefited by the improvement for which the levy is assessed. Generally, special benefit is shown by an enhancement of value. The difficulty arises in the application of this law to the facts of the particular case.
The relative functions of the city council and the courts and the scope of the court's review of the assessment by the council are stated in Boyle v. City of Bend, 234 Or. 91, 100-102, 380 P.2d 625 (1963). The power to determine that an improvement is to be made and that a tax will be imposed to pay for the improvement is strictly legislative, i.e., for the city council. However, the power to determine that certain property owners have been benefited by such improvement and how much, while initially in the city council, is subject to judicial review.
The scope of judicial review in this area is limited. We have stated that the method of assessment fixed by the council is 'presumed to be correct.' King v. City of Portland, 38 Or. 402, 414, 63 P. 2, 55 L.R.A 812 (1900). In Raz v. City of Portland, 226 Or. 515, 520, 360 P.2d 549 (1961), we stated the principle as follows:
'The city council's determination that the improvements made in the district were for the benefit of the property assessed and in the amount of the assessment is conclusive upon the courts unless it can be said that the city's action is arbitrary, or, as was said in Northern Pacific Terminal Co. of Oregon v. City of Portland, 80 F.2d 738, 741-742 (9th Cir. 1935), unless the city's finding that the assessed land is benefited is 'palpably arbitrary and a plain abuse.' * * *.'
McQuillin states: 'Only 'clear proof of great force' will warrant a conclusion that an assessment is erroneous.' 14 McQuillin, Municipal Corporations (3d ed. 1950), 438, § 38.186, and in 14 Cum.Supp.1966, p. 78, new textual material is added as follows: 'Where reasonable men differ, the determination of the assessing officer will be upheld.'
From the above statements it is clear that the property owner has a heavy burden in attempting to persuade the...
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