SUMMARY OF REMONSTRANCES
November 30, 2005
Create a local improvement district to construct street and traffic calming improvements from Barbara Welch Road to north of Bybee Drive in the SE 152nd Avenue Local Improvement District (Hearing; Ordinance; C-10017)
I. SUMMARY.
One (1) letter of support was received by the filing deadline (see Attachment No. 1).
Remonstrances representing owners of 29 of the 484 properties in the SE 152nd Avenue Local Improvement District were received by the filing deadline registering a remonstrance against formation of the local improvement district (see Exhibit F and see Attachment No. 2 through Attachment No. 29 in this Exhibit G). City Council retains jurisdiction over formation of the local improvement district since the total remonstrance level is less than the 60% threshold set by Section 9-403 of the City Charter.
Objections by owners of four (4) properties in the SE 152nd Avenue Local Improvement District were received by the filing deadline registering an objection to formation of the local improvement district (Exhibit F and see Attachment No. 30 through Attachment No. 32 in this Exhibit G). Rights to remonstrate against local improvement district formation have been waived for these properties and therefore do not count against the 60% threshold set by Section 9-403 of the City Charter; however, the issues raised within these objections are summarized herein.
II. SPECIFIC RESPONSES TO THE SUBSTANTIALLY SIMILAR REMONSTRANCES INDIVIDUALLY FILED BY MULTIPLE PROPERTY OWNERS.
Multiple property owners submitted substantially similar remonstrances. Properties for which substantially similar remonstrances were filed are identified with an asterisk in Exhibit F.
ISSUES RAISED BY THE REMONSTRANCES:
Issue No. 1: The project was voted down by 95% of the owners during the last proposal. Twenty homeowners should not be able to dictate that this project be accepted.
Findings:
a. A petition for the previous local improvement district proposal was mailed to property owners approximately four (4) years ago. While the boundaries of the local improvement district are substantially similar to the original proposal, there has since been considerable turnover of property owners.
b. A remonstrance level of 95% of the local improvement district area would result in City Council no longer having the prerogative to form the local improvement district. As shown in Exhibit F of this Ordinance, the actual remonstrance level was significantly below this threshold, and a strong majority of the property owners did not file a remonstrance nor an objection. Further, even if objections from waivered properties were counted as remonstrances, the level of remonstrances within any single assessment zone did not rise to the level specified in Section 9-403 of the City Charter.
Issue No. 2: The only thing that has changed since then is that the project has become more expensive.
Findings:
a. There has been an increase to the scope and project limits of the new project proposal in comparison to the previous project proposal.
b. Additional development in Hawthorne Ridge and adjacent neighborhoods has resulted in increased need for a secondary emergency access route. Development continues to approach full buildout in this area. Therefore, future opportunities for pending development to bear a significant proportion of the costs of the project, whether via a permit or via a local improvement district, will be increasingly limited. Pending development will bear $225,000 of the project costs over and above their normal allocation of project costs, resulting in cost savings for other properties in the local improvement district; this “buy-down” of costs was not an attribute of the previous local improvement district proposal.
Issue No. 3: The Hawthorne Ridge neighborhood president has tried to make this a safety issue. He has attempted to scare people into voting for the proposal by telling them that safety personnel would not be able to get to them if the road is blocked. This is untrue!
Findings:
a. This issue, and therefore the findings that follow, does not apply to homes within the East Assessment Zone. Estimated assessments for properties in the East Assessment Zone are one-third the amount for properties in the Central Assessment Zone due to a lesser degree of benefit. Benefit for properties in the East Assessment Zone, includes, but is not limited to, an easier left-turn movement from either SE Flavel Drive or SE Henderson Way to SE 162nd Avenue northbound, due to a dispersal of some of this traffic to SE 152nd Avenue.
b. A blockage to the intersection of SE Henderson Way & SE Flavel Drive would block both routine and emergency access to this property. This project will offer additional secondary access via SE 152nd Avenue & SE Henderson Way.
c. The Bureau of Fire, Rescue & Emergency Services has concluded that reopening and improving SE 152nd Avenue between SE Barbara Welch Road and SE Henderson Way will improve emergency operations and will also improve emergency response times. Refer to Resolution No. 36350 approved on November 9, 2005 and related testimony.
d. National model codes, including those adopted in Oregon, call for more than one connection to any road network serving more than 30 homes. The cost of this local improvement district for the properties in the Central Assessment Zone is significantly less than the cost would be to install a fire sprinkler system in this existing single-family residence, which would then result in national and state model codes being met. In sum, this project improves safety to this property.
Issue No. 4: The last time this project was voted on, the Local Improvement District Administrator, Andrew H. Aebi, sent out a ballot to all the homes affected. He refused to do it this time saying it would cost too much to mail out.
Findings:
a. A valid petition is not the only means by which local improvement district formation proceedings can be initiated (see Subsection 17.08.040.A.3 of City Code). The Local Improvement District Administrator was directed by City Council to bring a local improvement district proposal to City Council for consideration; Council approved Resolution No. 36350 on November 9, 2005.
b. Regardless of how formation of a local improvement district is initiated, owners of property not previously bound by a waiver of remonstrance, and which are within the proposed local improvement district, are given an opportunity to remonstrate against formation of the local improvement district. Also see Finding 1b above.
Issue No. 5: The majority of homeowners are unable to attend the City Council meeting since it is during work hours.
Findings:
a. All property owners were invited to the Pleasant Valley Neighborhood Association meeting that was held during the evening of October 26, 2005. At this meeting, the Portland Office of Transportation and the Bureau of Fire, Rescue & Emergency Services provided information on the project and the local improvement district proposal, and took questions and comments from the audience. Contact information for the Local Improvement District Administrator was mailed to all property owners in the local improvement district on September 30, 2005. Since then, property owners have been afforded the opportunity to contact the Local Improvement District Administrator with any questions or comments they might have on the project.
b. All remonstrances (which have met the requirements of Subsection 17.08.070.B of City Code and Section 9-403 of the City Charter) are included in this Ordinance being considered by City Council. Remonstrances are being submitted to City Council regardless of whether the property owners submitting the remonstrance attended the November 9th Resolution of Intent Hearing and/or the December 7th Local Improvement District Formation Hearing in person.
III. SPECIFIC RESPONSES TO THE REMONSTRANCE FILED BY DEAN & BRIDGET ROEMMICH.
A remonstrance was submitted by Dean & Bridget Reommich, the owner of the property at 15816 SE Hawk Court; State ID #1S2E24DA 134; Tax Account #R251510390; legal description HAWTHORNE RIDGE NO 2; LOT 129; NEW PLAT-1998 (3/98); Auditor’s record #138686 (see Attachment No. 20).
ISSUES RAISED BY THE REMONSTRANCE:
Issue No. 1: This is an issue to effectively help out new developments at the top of the hill. It will allow the fire department to get to these proposed new homes in a specific time allowance allowed, otherwise the builder will have to install sprinkler systems.
Findings:
a. Emergency access will be improved for properties in the Central Assessment Zone, including the Roemmichs’ property, and for properties in other assessment zones in the local improvement district. The benefit of improved emergency access is not limited to properties within the Pending Development Assessment Zone.
b. National model codes, including those adopted in Oregon, call for more than one connection to any road network serving more than 30 homes. The cost of this local improvement district for the Roemmichs’ property is significantly less than the cost would be to install a fire sprinkler system in this existing single-family residence which would then result in national and state model codes being met. In sum, this project will improve safety for this property.
Issue No. 2: I know I will not benefit or use the proposed road at all. It is simply not a logical way or convenient access to my house.
Finding:
a. Routine or everyday access is not the only potential benefit of this project. Emergency access will also be improved; see Finding 2a and Finding 2b.
Issue No. 3: Fire access already has two ways into Emerald Crest (our development), either by the Flavel Drive road to 157th Ave or by a road behind the houses at the entrance of Hawthorne Ridge on Henderson Way and SE 162nd Ave.
Findings:
a. A blockage to the intersection of SE Henderson Way & SE Flavel Drive would block both routine and emergency access to this property. There is no adequate and existing secondary access to this property.
b. There appears to be some type of drive adjacent to this property, but this in no way would provide additional access for this lot. This drive is not adequate for a second means of fire department access. To be adequate, It would need to be improved to at least a 20-foot width, have an emergency vehicle access easement over its entirety, and also would have to connect to the nearest collector or arterial road.
Issue No. 4: A minority of homeowners, the ones not working who could attend the meetings, are able to decide that this project be accepted.
Finding:
a. As shown in Exhibit F of this Ordinance, the actual remonstrance level was significantly below the threshold set in Section 9-403 of the City Charter, and a strong majority of the property owners did not file a remonstrance nor an objection. Further, even if objections from waivered properties were counted as remonstrances, the level of remonstrances within any single assessment zone did not rise to the level specified in Section 9-403 of the City Charter.
Issue No. 5: I believe that the new buyers of the homes at the top of the hill and the developer should take full responsibility for this project.
Findings:
a. Presumably the Roemmichs are referring to properties within the Pending Development Assessment Zone. The combined estimated assessments of properties within this assessment zone represent 25.9% of the total costs estimated to be assessed to property owners in a subsequent and separate Final Assessment Ordinance.
b. The properties in the Pending Development Assessment Zone do not receive 100% of the benefit of this project, and therefore should not be assessed the entire cost of this project.
IV. SPECIFIC RESPONSES TO THE REMONSTRANCE FILED BY GERALD & SUZANNE KALAPUS.
A remonstrance was submitted by Gerald & Suzanne Kalapus, the owner of the property at 15928 SE Flavel Drive; State ID #1S2E24AD 13600; Tax Account #R367105290; legal description HAWTHORNE RIDGE NO 2; LOT 168; NEW PLAT-1998 (3/98); Auditor’s record #138893 (see Attachment No. 12).
ADDITIONAL ISSUES RAISED BY THE REMONSTRANCE NOT ADDRESSED IN SECTION 2 ABOVE:
Issue No. 1: We are not even obliquely in the main traffic line for any point this proposed link leads to. Hence, we need no calming improvement.
Findings:
a. The only access to this property is through the intersection of SE Flavel Drive & SE Henderson Way. See Section II, Finding 3b.
b. Traffic calming improvements will manage potential traffic from this and other properties in the local improvement district. These traffic calming improvements have been requested by property owners throughout the local improvement district, some of whom abut the portion of SE 152nd Avenue to be improved, and some of whom do not abut the portion of SE 152nd Avenue to be improved. These traffic calming improvements will increase neighborhood livability and safety.
Issue No. 2: Our contention is why would anyone take Flavel Drive, a circuitous route to get to their destination in the upper reaches of the development, or down: simply answer – they wouldn’t.
Finding:
a. SE 152nd Avenue north of SE Barbara Welch Road is the street proposed for improvement. SE Flavel Drive from SE 159th Place to SE Henderson Way was previously improved to prevailing City standards and is not proposed for improvement as part of this project, nor is benefit predicated upon increased traffic volume on SE Flavel Drive.
Issue No. 3: It is fatuous even to consider that traffic on Henderson Way will be substantially reduced when considering it is the direct access to the upper reaches of Gresham and points north and east. Hence, do we need a new road which adds asphalt to an already asphaltic city?
Findings:
a. Emergency operations to Hawthorne Ridge and adjacent neighborhoods within this local improvement district will be enhanced by multiple access points.
b. Dirt and gravel streets cannot be relied upon as an emergency access route.
c. Multiple access points to Hawthorne Ridge and adjacent neighborhoods within this local improvement district will disperse traffic. Nearly all homes in this area currently have no alternative means of access other than SE Henderson Way. Given an alternative access route, some portion of routine access will be via this alternative access, especially given that not all trips are to Gresham and points north and east.
Issue No. 4: The proposed 152nd street irrefutably will add traffic on 162nd, 40 yards from our home, adding to the noise and pollution levels which are now annoying. The sparse intervening greenway doesn’t alleviate the greenway at all. So we’re paying $690 to have more traffic on 162nd. This is hardly a calming influence.
Finding:
a. This project will disperse neighborhood access among both SE 152nd Avenue and SE 162nd Avenue. Currently all access to the neighborhood with the sole exceptions of properties in the East Assessment Zone and in the South Assessment Zone, is via SE 162nd Avenue. Traffic on SE 162nd Avenue originating from or terminating at properties in this local improvement district will therefore decrease, not increase.
Issue No. 5: We are agreeable to pay for that which is logical and reasonable. However, we feel no responsibility to fund that which should be shouldered by people who are directly impacted. We are not these people.
Findings:
a. See Finding 3b.
b. See Section II, Finding 3b.
c. See Section II, Finding 3c.
d. See Section II, Finding 3d.
V. SPECIFIC RESPONSES TO THE REMONSTRANCE FILED BY ERVIN & JOSEPHINE SCHWEIGER.
A remonstrance was submitted by Ervin & Josephine Schweiger, the owner of the property at 15535 SE Bybee Drive; State ID #1S2E24AC 300; Tax Account #R367104120; legal description HAWTHORNE RIDGE NO 2; LOT 129; NEW PLAT-1998 (3/98); Auditor’s record #138854 (see Attachment No. 22).
ISSUES RAISED BY THE REMONSTRANCE:
Issue No. 1: When “Hawthorne Ridge” was allowed to be developed, where were city planners, the commissioners, the fire dept., the Portland transportation division, etc., at the particular time that they did not foresee the need for the improvement of SE 152nd? Who was responsible for issuing permits for this development?
Finding:
a. The City of Portland has collaborated with the neighborhood on possibilities for improving SE 152nd Avenue since prior to the Schweigers purchasing their home on April 30, 2002. The local improvement district simply results in the timing of the expense to improve SE 152nd Avenue being borne later rather than earlier; e.g., at the time of initial development as a permit project by the developer. The effect of a local improvement district assessment is to postpone realization of the expense for street improvements, but the expense of such a street improvement would not have been avoided if the street were constructed via a permit.
Issue No. 2: We will not be utilizing SE 152nd Avenue.
Findings:
a. Emergency operations to Hawthorne Ridge and adjacent neighborhoods within this local improvement district will be enhanced by multiple access points.
b. Multiple access points to Hawthorne Ridge and adjacent neighborhoods within this local improvement district will disperse traffic. Nearly all homes in this area currently have no alternative means of access other than SE Henderson Way. Given an alternative access route, some portion of routine access will be via this alternative access.
VI. SPECIFIC RESPONSES TO THE REMONSTRANCE FILED BY JOSEPH & ELIZABETH BOCZKI.
A remonstrance was submitted by Joseph & Elizabeth Boczki, the owner of the property at 7450 SE 152nd Avenue; State ID #1S2E24AC 4200; Tax Account # R992240540; legal description SECTION 24 1 S 2 E; TL 4200 2.09 ACRES; Auditor’s record #139102 (see Attachment No. 28). This remonstrance also covers the adjacent property to the north under similar or same ownership; State ID #1S2E24AC 4100; Tax Account #R992240600; legal description SECTION 24 1 S 2 E; TL 4100 2.33 ACRES; Auditor’s record #139103.
ISSUES RAISED BY THE REMONSTRANCE:
Issue No. 1: The project is too expensive and economically unfeasible.
Findings:
a. Apportionment of assessments is based on benefit to property.
b. The highest and best use of the Boczkis’ properties is to develop the vacant north property and to redevelop part or all of the south property. This local improvement district project will construct what otherwise would be frontage improvements required as a condition of this future development.
c. Combining the Boczkis’ combined 351.50 abutting linear feet of frontage with the remaining substandard portion of SE 152nd Avenue will result in economies of scale, and will eliminate the Boczkis’ maintenance responsibility for this combined 351.50 abutting linear feet of unimproved street frontage. Improving all of SE 152nd Avenue will provide much better connectivity and access in comparison to a piecemeal frontage improvement that otherwise might be constructed via a permit in lieu of this local improvement district. A permit project by the Boczkis to improve their frontage would also incur costs of stormwater conveyance downhill beyond their southernmost property line. This local improvement project will provide that necessary stormwater conveyance.
Issue No. 2: The proposed street would cost many times the value of our property and make it impossible to develop in a reasonable manner.
Findings:
a. The size of the Boczkis’ properties combined is 192,506 square feet. The Boczkis’ combined estimated assessments are $96,173.25. Therefore the estimated cost of the street and traffic calming improvement to the Boczkis’ properties combined is approximately 50 cents per square foot. For this cost to be “many times” the value of the Boczkis’ property implies that the value of the Boczkis’ properties is on the order of 25 cents per square foot or less, which is unlikely given a very unusual circumstance, such as severe environmental contamination, on these properties.
b. See Finding 1b.
Issue No. 3: We also oppose the formation of an LID which includes many properties not abutting the proposed project. Only abutting properties should be allowed to vote on the project, since they alone will be required to bear its cost.
Findings:
a. All properties in the local improvement district proposed for assessment, some of which abut SE 152nd Avenue and some of which do not, benefit from this local improvement district project.
b. Nonabutting properties are paying a significant portion of the project cost, currently estimated at $621,980.06. If the Boczkis’ suggestion to form the LID to include only abutting properties was adopted, it would be necessary to increase the abutting properties owners’ assessments by over 2.4 times to cover the $1,040,905.24 estimated cost of the LID. Applying this proportion to the Boczkis’ properties would result in their combined estimated assessment increasing from $96,173.25 to $238,962.10. In effect, the Boczkis’ proposal is an argument that their properties benefit more from the local improvement district than what is reflected in the allocation of assessments, not less.
c. Each assessment zone within this local improvement district generated an insufficient number of remonstrances to defeat formation of the LID by the threshold identified in Section 9-403 of the City Charter. Therefore it is not necessary to combine different assessment zones, whether abutting or not, to avoid formation of the entire LID being defeated.
Issue No. 4: We object to the proposal that our land be assessed on the basis of frontage, while those put in the south area are to be assessed at a much lower rate on a different basis.
Finding:
a. The properties in the South Assessment Zone are much smaller than the Boczkis’ properties in the Future Development – Abutting Zone. The Boczkis’ properties combined have only one house, but are a combined 192,506 square feet in a residential 10,000 square foot (R10) zone. Assessing the properties in the South Assessment Zone in the same manner as the Future Development – Abutting Zone would result in hugely skewed and inequitable assessments. The difference in assessment methodologies reflects the proportional difference in benefit from the street and traffic calming improvements to the properties in the respective assessment zones.
Issue No. 5: It makes little sense to have a half street improvement in the middle of two full street developments, with lower assessments for tax lots 100, 200 and 300..
Findings:
a. The half-street improvements to the north of the Boczkis’ properties will fully complete the local street network and will also help to minimize the likelihood of head-on collisions due to the current inadequate street width of the half-street improvement. These half-street improvements will also complete frontage improvements that have been or would be required as a condition of development for tax lots 100, 200 and 300, thereby increasing their development potential.
b. Tax lots 100, 200 and 300 are being assessed at the same rate as the Boczkis’ properties. The assessment rate for all properties in the Future Development – Abutting Assessment Zone will be uniform, and is currently estimated at $274 per abutting linear foot.
VII. SPECIFIC RESPONSES TO THE REMONSTRANCE FILED BY KEITH DIERINGER.
A remonstrance was submitted by Keith Dieringer, the owner of the property at 7315 SE 152nd Avenue; State ID #1S2E24BD 300; Tax Account #R992240070; legal description SECTION 24 1 S 2 E; TL 300 6.18 ACRES; Auditor’s record #139096 (see Attachment No. 29).
ISSUES RAISED BY THE REMONSTRANCE:
Issue No. 1: The current condition of SE 152nd Avenue is unsafe.
Findings:
a. Mr. Dieringer states that, “the grade is unsafe for the traffic flow based on the accidents that have happened to date.” The existing vertical grades on the full-street improvement portion of the project will be changed once the street improvements are constructed, and will minimize the steepness of grades wherever feasible, also taking into account the goal of minimizing physical impacts to abutting properties. Improvement of SE 152nd Avenue will help to minimize potential liability to Mr. Dieringer as a result of injuries or accidents on abutting frontage. By City Code, the abutting property owner has a responsibility to maintain this frontage in a safe condition, and this project will eliminate this maintenance responsibility.
b. Mr. Dieringer states, “My car, truck, the cities barricade, cement barricade, retention pond have all been damaged from auto traffic accidents.” Existing barricades in the existing and future rights of way of SE 152nd Avenue will be removed subsequent to completion of construction. After completion of the project, there will be curbs on both sides of the street for the entire length of SE 152nd Avenue, which will keep vehicles in the public right-of-way and significantly minimize the likelihood of vehicles crashing into objects outside the public right-of-way.
c. Mr. Dieringer states that he is against the road reopening for many reasons, including for “traction problems.” Replacement of the existing dirt and gravel surface on SE 152nd Avenue with asphaltic concrete will significantly improve traction for vehicles using this street.
Issue No. 2: It “is not fair on the homeowner of one home to be charged unfairly with benefits they do not need.”
Findings:
a. Properties must be assessed on potential as well as current benefit, regardless of whether the owner has an economic “need” for such benefit. This property has significant development potential; it is a 267,591 square foot property in a residential 10,000 square foot zone.
b. The highest and best use of Mr. Dieringer’s property is to redevelop part or all of the property. This local improvement district project will construct what otherwise would be frontage improvements required as a condition of this future development.
VIII. SPECIFIC RESPONSES TO THE OBJECTION FILED BY JAY & LYNN BALDWIN.
An objection was submitted by Jay and Lynn Baldwin, the owners of the property at 7425 SE 152nd Avenue; State ID #1S2E24BD 600; Tax Account #R992241080; legal description SECTION 24 1S 2E; TL 600 0.38 ACRES; Auditor’s record #139106 (see Attachment No. 30). Rights to remonstrate against local improvement district formation has previously been waived for this property and therefore does not count against the 60% threshold set by Section 9-403 of the City Charter; however, the issues raised within these objections are summarized below.
ISSUES RAISED BY THE OBJECTION:
Issue No. 1: Our property will be the most adversely affected of all the homes in the LID by this proposed improvement.
Findings:
a. The Baldwins will receive just compensation as provided for under state law as part of the right-of-way acquisition process.
b. Various elements of the project, including, but not limited to traffic calming elements, will be constructed to maximize the safety of the public infrastructure and to minimize adverse impacts to the Baldwins’ property balanced with impacts to other properties adjacent to SE 152nd Avenue. Mr. Baldwin will be invited to meeting to be held by the Portland Office of Transportation prior to the City Engineer stamping the plans. At this meeting, there will be opportunities to discuss any impacts trees, landscaping or other features on the Baldwins’ property.
Issue No. 2: The Baldwins are concerned about is the safety regarding traffic entering Barbara Welch Road from 152nd Ave.
Findings:
a. While the scope of the project includes only transition areas of the intersection with SE Barbara Welch Road, during the design phase this intersection will be closely reviewed for opportunities to maximize safety within the limits of this project.
b. The proportional difference in traffic volumes between the two segments cited by the Baldwins will be reduced, which will likely increase awareness of drivers on SE Barbara Welch Road of turn movements from SE 152nd Avenue. Currently this awareness is likely quite very low, given the extremely low traffic volumes of vehicles making this turn movement.
Issue No. 3: Construction of SE 155th Avenue would give Hawthorne Ridge the secondary access it needs without impact to existing property owners on lower 152nd (in the South Assessment Zone) who simply do not want the busy street proposed.
Findings:
a. Neither a permit has been issued nor a local improvement district formed to construct SE 155th Avenue to connect to SE Barbara Welch Road. Therefore, there is no assurance that a secondary emergency access to routes other assessment zones within this LID would be constructed in a timely fashion, or for that matter, at all.
b. In the event that both SE 152nd Avenue and SE 155th Avenue were improved, the Bureau of Fire, Rescue & Emergency Services would normally utilize SE 152nd Avenue for emergency access in lieu of SE 155th Avenue. In terms of priority of usage, SE 155th Avenue would be subordinate to SE 152nd Avenue, especially given the location of Station 42 (at SE 136th Avenue & Foster Road) and the logical emergency response routing to properties within this local improvement district.
Issue No. 4: The Waterleaf developer should contribute $225,000 from the Waterleaf project toward constructing SE 155th Avenue in lieu of SE 152nd Avenue.
Findings:
a. The condition of the land use approval for the Waterleaf development is that the $225,000 can be applied only to the improvement of SE 152nd Avenue, not for the improvement of SE 155th Avenue.
b. See Finding 3b.
Issue No. 5: The assessment formula was devised to be certain that the LID would be approved. It is not based on the benefit received.
Findings:
a. Each assessment zone within this local improvement district generated an insufficient number of remonstrances to defeat formation of the LID by the threshold identified in Section 9-403 of the City Charter. Therefore it is not necessary to combine different assessment zones, whether abutting or not, to avoid formation of the entire LID being defeated.
b. The highest share of the project cost being assigned to any single assessment zone is being assigned to the Pending Development Zone in the amount of $269,850 or the equivalent of $4,152 per future household given the future development of 65 homes in this assessment zone. The Baldwins’ proposed assessment for their existing single family residence is only about 4% higher at $4,313. Any significant increase in the allocation of $690 per tax lot in the Central Assessment Zone with an equivalent increase in the Pending Development Assessment Zone would result in a higher per future tax lot rate in the Pending Development Assessment Zone (upon completion of development) than in the South Assessment Zone. All properties in the South Assessment Zone abut the frontage improvements while none of the properties in the Pending Development Assessment Zone abut the frontage improvement. The allocation of benefit as proposed is both proportional and equitable.
c. In the absence of forming a local improvement district, the Baldwins would continue to have maintenance responsibility for the frontage of unimproved SE 152nd Avenue which abuts their property. This maintenance responsibility was significant problem for the previous owner of this property, which resulted in him contacting the LID Administrator on August 9, 2001 requesting that the road be improved. This project will eliminate maintenance responsibility for the Baldwins as abutting property owners.
d. The combined assessments for properties in the South Assessment Zone are only 2.5% of the total assessment, with 97.5% of the assessment being derived from properties in other assessment zones. The allocation of benefit as proposed is both proportional and equitable.
IX. SPECIFIC RESPONSES TO THE OBJECTION FILED BY SEAN & CHERYL BEASLEY.
An objection was submitted by Sean and Cheryl Beasley, the owners of the property at 7618 SE 152nd Avenue; State ID #1S2E24DB 400; Tax Account #R992240430; legal description SECTION 24 1 S 2 E; TL 400 0.24 ACRES; Auditor’s record #139101 (see Attachment No. 31). Rights to remonstrate against local improvement district formation has previously been waived for this property and therefore does not count against the 60% threshold set by Section 9-403 of the City Charter; however, the issues raised within these objections are summarized below.
ISSUES RAISED BY THE OBJECTION:
Issue No. 1: Abutting property owners along SE 152nd Ave. should not have to pay more than other property owners in the local improvement district, and absent this change in principle, not all abutting property owners in the local improvement district are being asked to pay more.
Findings:
a. The highest assessments in the LID are proposed for properties in the Pending Development Assessment Zone, which do not abut SE 152nd Avenue. Properties which do abut SE 152nd Avenue are in the Future Development – Abutting Assessment Zone and in the South Assessment Zone. The Beasleys’ property is in the South Assessment Zone. The total amount allocated to the South Assessment Zone is 2.5 percent of the total cost of the LID to property owners, with 97.5% from properties in other assessment zones.
b. Properties in the South Assessment Zone should not pay the same or less than properties in the Central Assessment Zone and/or in the East Assessment Zone. Properties in the Central Assessment Zone and in the East Assessment Zone have already paid for abutting street improvements and do not have maintenance responsibility for their abutting street frontages. Unlike properties in the South Assessment Zone, properties in the Central Assessment Zone and in the East Assessment Zone will not use SE 152nd Avenue 100% of the time for both routine and emergency access. Allocating the same (or less) cost to properties abutting SE 152nd Avenue as to properties which do not abut SE 152nd Avenue would be inequitable and a grossly skewed allocation of benefit.
c. The Beasleys’ statement that “There are several abutting properties within the Central Zone whose assessments are $690” is predicated upon an erroneous concept of abutment. Seven (7) properties in the Central Assessment Zone abut SE 152nd Avenue (i.e., the right-of-way) but do not abut frontage not yet improved to City standards. In fact all seven of these properties are corner lots with two abutting frontages, and the costs of both frontage improvements were borne upon development. These seven properties in the Central Assessment Zone should not be asked to bear a disproportionate burden for a yet a third frontage improvement on the opposite side of SE 152nd Avenue. In contrast, the properties in the South Assessment Zone, including the Beasleys’ property, are being asked to bear the cost of only a single frontage improvement with no future expense for local streets within the local improvement district. Further all of the properties in the South Assessment Zone were developed without any expense to improve any frontage at the time of development.
d. The Beasleys state that two properties in the Future Development – Abutting Assessment Zone abut a “full street improvement.” In fact, none of the properties in this assessment zone have borne the expense of any frontage improvements, and none have abutment to frontage which has yet been fully improved to City standards. Further, benefit to properties in this assessment zone extend beyond solely the frontage improvements; these properties will significantly benefit from a second access route. Ceteris paribus, a lowering of the assessment allocations to the Future Development – Abutting Assessment Zone would significantly increase the assessments to all properties in the South Assessment Zone, which would conflict with the objective of the Beasleys’ objective of their remonstrance; i.e., to be allocated less of the cost of the local improvement district.
e. The Beasleys cite references to abutting linear footage assessment methodology not being a “fair method for use on residential street improvements,” yet there is very little or no existing residential development on all of the properties contained with the Future Development – Abutting Assessment Zone. The abutting linear footage assessment methodology is being used only for large lots with significant development or redevelopment potential. It is not being used for lots with existing single-family residences which lack this significant development or redevelopment potential.
f. The Beasleys state that the Local Improvement District Administrator testified to City Council that the Waterleaf project homeowners would be paying $4,132 per lot, which is far greater than the $690 being assessed on the Central Zone homeowners, and yet none of the Waterleaf properties abut SE 152nd Ave. See Finding 1c. Also, properties in the Pending Development Zone have a pending requirement to install fire sprinklers in the new homes in lieu of contributing to street improvements, so the opportunity cost of the fixed portion of the Pending Development Zone ($225,000) is effectively zero. This fixed cost reduces the costs to properties in all other assessment zones in the local improvement district, including for the Beasleys’ property.
Issue No. 2: The last property to develop should not bear the entire cost of the street improvement.
Findings:
a. The local improvement district assessment methodology is consistent with this principle. In the absence of forming a local improvement district, the first property to develop would bear a disproportionate share of the project costs. The one concession that the assessment methodology makes to timing of development is to assess the properties in the Pending Development Assessment a higher than normal allocation of benefit, but this is with the concurrence of the developer of properties in this assessment zone (see Attachment 1), but formation of this local improvement district and improvements to SE 152nd Avenue will benefit whoever ultimately develops the properties in the Pending Development Assessment Zone.
b. Properties in other assessment zones are not being assessed the $225,000 “premium” because for purposes of City requirements, secondary access and/or fire sprinkler systems will already have been fulfilled. Similarly, the lack of an assessment “premium” for properties in the Future Development – Nonabutting Zone reflect this reasoning.
c. The assessment methodology was proposed and recommended to City Council by the Local Improvement District Administrator, not by an aide to a City Commissioner. City Council approved this assessment methodology with the passage of Resolution No. 36350 without amendment.
Issue No. 3: Higher assessments for abutting properties are not justified by a subsequent increase in the market value of their property.
Findings:
a. Higher allocations of cost for abutting properties relative to nonabutting properties are justified by their higher degree of benefit, of which an increase in market value is not the only potential benefit.
b. Prospective purchasers of homes on unimproved streets in Portland frequently contact the Local Improvement District Administrator City of Portland to determine whether the abutting street is slated for improvement, and also to determine the cost of an improvement, whether done in conjunction with a local improvement district project or as a permit project. Both factors influence decisions whether to purchase property and amounts to offer for property. See Attachment 33.
c. Even if there were theoretically no increase in market value as a result of the street improvements, the buyer pool for properties on improved streets is much larger than the pool of buyers of properties on unimproved streets. A 2005 market value of $254,760 is identified for the Beasleys’ property (http://www.portlandmaps.com/detail.cfm?x=7687362.205&y=663061.92). 2005 property taxes for the Beasleys’ property were $4,179.70. Assuming a 5% cost of capital and taking into account only property taxes and the opportunity cost of a longer market time to sell the home, the cost of holding this property would begin to exceed the Beasleys’ estimated local improvement district assessment after just 93 days, even assuming no increase in market value. A nearby property in the South Assessment Zone was put up for sale on or about September 11, 2001. Due to difficulties in attracting buyers, this property was withdrawn from the market and was rented out, and was not sold until August 3, 2004, nearly three years later.
Issue No. 4: Those who benefit the most should pay the most.
Findings:
a. The South Assessment Zone, in which the Beasleys’ property is located, pays only 2.5% of the estimated costs of the local improvement district, while properties in other assessment zones pay 97.5% of the estimated costs of the local improvement district. This very small percentage of benefit allocated to properties in the South Assessment Zone takes into account the increased traffic volume.
b. There is no guarantee that SE 152nd Avenue will remain closed between SE Barbara Welch Road and SE Henderson Way, even in the absence of street improvements. Once the street is improved, safety for neighborhood children, including those residing in homes in the South Assessment Zone, will be improved with the addition of sidewalks. In addition, safety will be increased during inclement weather, with curbs built to keep vehicles in the public right-of-way. Vertical grades will be lessened to the extent practicable while also balancing physical impacts to properties that abut the portion of SE 152nd Avenue to be improved. Finally, traffic calming has been incorporated into the legal scope of this project.
c. The combined benefit allocated to all properties within the South Assessment Zone, in which the Beasleys’ property is located, is lower than for any other benefiting assessment zone except for only the East Assessment Zone. Therefore, the combined assessments in the South Assessment Zone are less than for any other benefiting assessment zone except for only the East Assessment Zone.
Issue No. 5: A combination of an equal share and/or equivalent dwelling unit assessment methodology should be used to equalize assessments on all properties in the local improvement district except for properties in the Pending Development Assessment Zone, and not all properties in the South Assessment Zone will receive compensation for right-of-way.
Findings:
a. The Local Improvement District Administrator did not recommend during his testimony at the November 9, 2005 City Council hearing that properties within the South Assessment Zone be assessed $270,000 each under an equal share assessment methodology as part of a means of equalizing assessments; rather, he was explaining the effect of how an equal share assessment methodology would hypothetically be applied.
b. Consistent with this testimony, it would not be possible to achieve the Beasleys’ objective of equalized assessments of $1,162.63 per tax lot by using an equal share assessment methodology alone. While it would be possible to utilize a combination of assessment methodologies to achieve the Beasleys’ objective, it would not be possible to do so without also making a finding of equal benefit among virtually all properties in the local improvement district. While doing so within the existing assessment zones as proposed appropriately reflects benefit, doing so across the entire local improvement district would effectively eliminate nearly all of the currently-proposed assessment zones. The effect of such a combination of assessment methodologies among fewer assessment zones would be an inequitable and a grossly skewed allocation of benefit. Equitable and equal distribution of benefit (and therefore cost) across all (or virtually all) properties in a local improvement district are rarely mutually achievable objectives, especially in a local improvement district of this size with significantly different property characteristics among the assessment zones as currently proposed by the Local Improvement District Administrator.
c. The Beasleys refer to the October 26, 2005 Pleasant Valley Neighborhood Association meeting at which this project was discussed, and correctly state that, “A number of residents of Hawthorn Ridge do not see why they should have to pay for the city’s ability to resolve this earlier.” However, this sentiment is not unanimous. As shown in Exhibit F of this Ordinance, the actual remonstrance level was significantly below the threshold identified in Section 9-403 of the City Charter, and a strong majority of the property owners filed neither a remonstrance nor an objection. Further, even if objections from waivered properties were counted as remonstrances, the level of remonstrances within any single assessment zone, including the South Assessment Zone in which the Beasleys’ property is located, did not rise to the level specified in Section 9-403 of the City Charter.
d. A combination of assessment methodologies was proposed in 2002, with very few properties subject to an equal share assessment methodology, and all properties subject to an equal share assessment methodology having substantially similar physical characteristics and benefits from the project. The absence of an approximately $270,000 combined assessment for properties in what is now proposed as the Pending Development Assessment Zone is irrelevant to the concept of equal share; rather it reflects the lack of pending development for these properties in 2002, and therefore less benefit to these properties. The change in assessments for these properties reflect a change in the overall distribution of benefit (and therefore cost) within the local improvement district. Again, the equitable and equal distribution of benefit (and therefore cost) across all (or virtually all) properties in a local improvement district are rarely mutually achievable objectives, especially in a local improvement district of this size with significantly different property characteristics among the assessment zones as currently proposed by the Local Improvement District Administrator.
e. The Beasleys’ statement that 60% of the property owners in the South Zone will receive little or not compensation is speculative at this point, and even if ultimately accurate is also irrelevant to the finding of benefit for this local improvement district. The explanation of the right-of-way compensation process at the November 9, 2005 City Council hearing by the Local Improvement District Administrator was in response to questions by members of the City Council and to testimony of property owners. The Local Improvement District Administrator on more than one occasion in this testimony stated that assignment of benefit and right-of-way acquisition and compensation are separate and unrelated transactions. Ultimately all property owners in the local improvement district bear the cost of right-of-way acquisition, which are included in property owners’ future assessments. No specific amount of right-of-way compensation has been promised for any individual property owner, nor for all property owners collectively in the South Assessment Zone. It will not be possible to accurately estimate right-of-way needs and compensation until design is underway, given different right-of-way alignment and width options. This in turn will not occur until and unless this local improvement district is approved by City Council. Finally it was important for the Local Improvement District Administrator to clarify for the members of the City Council and for the audience that this local improvement district proposal did not assume lack of compensation for right-of-way, nor that compensation would be paid to all property owners in the South Assessment Zone, given the difference in assessment methodology from the 2002 proposal.
X. SPECIFIC RESPONSES TO THE OBJECTION FILED BY JOHN DRAKE.
An objection was submitted by John Drake, the owners of the property at 752 SE 152nd Avenue; State ID # 1S2E24DB 300; Tax Account # R992241370; legal description SECTION 24 1 S 2 E; TL 300 0.64 ACRES; Auditor’s record #139110 (see Attachment No. 32). Mr. Drake also owns the adjacent property which is not proposed for assessment with State ID #1S2E24AC 4300, Tax Account #R992241390, legal description SECTION 24 1 S 2 E; TL 4300 0.01 ACRES, Auditor’s record #139111.
Rights to remonstrate against local improvement district formation has previously been waived for these properties and therefore does not count against the 60% threshold set by Section 9-403 of the City Charter; however, the issues raised within these objections are summarized below.
Note that Attachment No. 32 is in the form of an e-mail; however, this communicated was in printed form and was hand-delivered to the City Auditor prior to the filing deadline consistent with the procedures set forth in Subsection 17.08.070 of City Code, so it was accepted as an objection.
ISSUES RAISED BY THE OBJECTION:
Issue No. 1: Property owners abutting the improvements should not always pay the most.
Finding:
a. The South Assessment Zone, in which Mr. Drake’s property is located, pays only 2.5% of the estimated costs of the local improvement district, while properties in other assessment zones pay 97.5% of the estimated costs of the local improvement district. This very small percentage of benefit allocated to properties in the South Assessment Zone offsets the decreased benefit from increased traffic volume. However, safety for neighborhood children, including those residing in homes in the South Assessment Zone, will be improved with the addition of sidewalks. In addition, safety will be increased during inclement weather, with curbs built to keep vehicles in the public right-of-way. Vertical grades will be lessened to the extent practicable while also balancing physical impacts to properties which abut the portion of SE 152nd Avenue to be improved.
b. The combined benefit allocated to all properties within the South Assessment Zone, in which Mr. Drake’s property is located, is lower than for any other benefiting assessment zone except for only the East Assessment Zone. Therefore, the combined assessments in the South Assessment Zone are less than for any other benefiting assessment zone except for only the East Assessment Zone.
Issue No. 2: An assessment methodology, or a combination of assessment methodologies, should be employed such that all properties “pay the same.”
Finding:
a. The equitable and equal distribution of benefit (and therefore cost) across all (or virtually all) properties in a local improvement district are rarely mutually achievable objectives, especially in a local improvement district of this size with significantly different property characteristics among the assessment zones as currently proposed by the Local Improvement District Administrator.
Issue No. 3: The assessment methodology may have been derived to charge “whatever the traffic will bear.”
Finding:
a. The assessment methodology reflects benefit to property, not ability and/or willingness to pay, noting that the City has negotiated with the Waterleaf developer to secure the $225,000 developer contribution to street improvements in lieu of fire sprinklers, given that this additional assignment of benefit would not normally be applied.
XI. RECOMMENDATION
It is the recommendation of the Local Improvement District Administrator that the City Council overrule any and all remonstrances and objections, and form the SE 152nd Avenue Local Improvement District.
Respectfully submitted,
Andrew H. Aebi
Local Improvement District Administrator