Summary
In Martin v. City of Tigard, 78 Or.App. 181, 714 P.2d 1115 (1986) (Martin I), this court held that the LID was lawfully formed but ruled that a portion of the planned improvement was not within the legal boundaries of the LID, that the assessment could not include the costs of constructing that portion of the improvement, and that the assessment was therefore void.
Summary of this case from Martin v. City of TigardOpinion
84-0517C; CA A33250
Argued and submitted October 7, 1985.
Assessment held void, remanded for further proceedings February 26, 1986.
Appeal from Circuit Court, Washington County, Holger M. Pihl, Jr., Judge.
G. Kenneth Shiroishi, Portland, argued the cause for appellants. With him on the briefs was Dunn, Carney, Allen, Higgins Tongue, Portland.
Kenneth M. Elliott, Portland, argued the cause for respondents. On the brief were Timothy V. Ramis, and O'Donnell, Ramis, Elliott Crew, Portland.
Before Gillette, Presiding Judge, pro tempore, and Joseph, Chief Judge, and Van Hoomissen, Judge.
PER CURIAM
Assessment held void; remanded for further proceedings not inconsistent with this opinion.
Plaintiffs appeal from a judgment on a writ of review brought to challenge the city's formation of a local improvement district (LID) for the construction of a public street and the city's assessments levied for that purpose. We find no merit to plaintiffs' particular challenges to the formation of the LID. The parties concede, however, that a portion of the planned improvement is not within the legal boundaries of the LID and that, therefore, the cost of constructing that portion cannot lawfully be included in the assessment. We agree. See ORS 223.389.
Specifically, that portion involves the section of S.W. Dartmouth Street between S.W. 68th and S.W. 69th Avenues. The defect was discovered by the court, not by the parties.
When a defect in an LID assessment occurs, the city council may reassess for up to the full cost of the improvement within the district. ORS 223.410; Heritage Square Dev. v. City of Sandy, 58 Or. App. 485, 493, 648 P.2d 1317, rev den 293 Or. 653, 653 P.2d 998 (1982). We therefore set aside the original assessment as void and remand.
Assessment held void; remanded for further proceedings not inconsistent with this opinion.