2016-05-09-minutes-public-works-study-session

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C. Right of Cross -Examination In addition to having the right to produce his or her own testimony and documentary evidence, the property owner has a right to cross-examine any person who provides information or evidence in support of the final assessment roll. If a property owner asks, this right should be freely given. 5. Rebuttal A. When Presumptions Vanish As noted above, there are a number of presumptions which favor the actions of a city in levying assessments. These presumptions are not absolute or set in stone, however. Even though the city council members take the role of judge and sit as fact finders and have the right to weigh evidence provided by a property owner, they cannot rely exclusively upon presumptions in the face of property owner evidence. A presumption itself is not evidence and its power is lost when the opposing party produces credible evidence which contradicts the presumption. As one court has stated, "presumptions are the'bats of the law, flitting in thetwilight butdisappearing in the sunshine of actual facts.'" In re Indian Trail Trunk Sewer System, 35 Wn. App. 840, 843, 670 P.2d 675 (1983). The sole purpose of the presumptions is to establish which party has the burden of going forward with the evidence on a particular issue. Because of the five basic presumptions, the burden of going forward with evidence rest initially on those persons attacking an assessment. Once evidence is produced, however, the ultimate burden of showing that land within an LID is benefitted remains with the city. Therefore, when a property owner produces evidence from which a reasonable person could conclude that an assessment is erroneous in any respect, the city must be prepared to rebut that evidence. Otherwise, the property owner will probably prevail in the event of an appeal. B. The Appraiser By farthe most common issue raised at assessment roll hearings is whether the property in question is specially benefitted by the improvements. As noted above, whether property is specially benefitted by an improvement and the extent of the benefit are questions of fact to be proved by expert testimony. In re Indian Trunk Sewer System, 35 Wn. App. at 842. Property owners who have sought the advice of lawyers will appear at the assessment roll hearing with an appraiser prepared to testify that there is no difference between the fair market value of the property before the improvements were installed and after the improvements were installed. if the city receives this kind of testimony, it is imperative to retain the service of a qualified appraiser to appraise the property. If the city does not already have an appraiser working with it in conjunction with the L,D, it should adjourn the assessment hearing and reconvene at a time when an appraisal study can be presented. This is an example of the city using to its own advantage its power to control the manner and time of the hearing. if a hearing is adjourned or continued, the city must rememberto complywith the requirements of the Open Public Meetings Act. C. The LID Administrator or Engineer With the exception of the appraiser, the most common person to testify on behalf of the city in rebuttal to evidence produced by the property owner is the LID administrator. When specific challenges are raised with regard to the nature of the improvements, the Local and Road improvement Districts Manual for Washington State Sixth Edrtian 71