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

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Fhe Formation ?fearing There are a number of attributes of the formation hearing which should be kept in mind by city officials. The participants in a hearing to form an LID should remember that the majcrity of the decisions to be made at such a hearing are ones with which our courts are reluctantto interfere. Under our LID laws, in the absence of fraud or bad faith, a judge is required to defer to the city council with respect to items which fall within its':egislative judgment, such as the necessity of the improvements, the character of the improvements and design, the location of the improvements, the boundaries of the LID, the cost of the improvements, and the city's contribution to the cost of the improvements. Each of these matters involves discretionary, legislative acts of the city council with which a court may not interfere. Any arguments concerning special assessments, whether as to theirvalidity or amount, can only be raised at the subsequent hearing on the assessment roll. This includes any arguments as to whether benefits conferred by the contemplated improvementwill be special or general. Citizens for Underground Equality v. Seattle, 6 Wn. App. 388,492 P.2d 1071 (1972). Itis for these reasons that lawsuits challenging the formation of an LID are less common and less successful than lawsuits challenging final assessments. So long as the city and its employees take steps to comply with the statutory requirements necessaryto form an LID, the chances of a successful challenge to the formation of an LID are remote. The courts have invalidated the formation of an LID where a municipality attempted to dilute the power of property owners to prevent or protest out the formation of an LID. Thus, where certain property owners within an LID are otherwise legally obligated to construct some or all of the proposed LID improvements, their "vote" should not be considered when determining whether the 60 percent protest level (which would divestthe municipality of its power to proceed with the LID improvements) has been reached. Kasper v. Edmonds, 69 Wn.2d 799,420 P.2d 346 (1966); Esping v. Pesicka, 19 Wn. App. 646,577 P.2d 152 (1978). The courts are loathe to let the limited voice of property owners in LID proceedings be impinged upon: Theformation of ULID's is underthe control of the landowners only atthe initiation stage. Landowners can force the commission into adopting a resolution to form a ULID by using the petition method, orthey can preventthe commissioners from forming a ULID by using the protest procedure. Once a resolution of intent has been validly passed and no protest has been successful, however, landowner control over whether a ULID is formed is effectively at an end. If the commissioners are permitted to exclude land from the calculations necessary to determine if the requisite number of landowners have signed a petition for formation of a ULID, they can seriously lessen the ability of landowners to control whether or not a ULID, for which they maybe assessed, will be formed. 13chmitt v. Cape George Sewer District No. 1, 61 Wn. App. 1, 6, B09 P.2d 217 (1991)]. If the city staff carefully follows the statutory prerequisites to formation, the primary concern of the city council should be the adoption of a plan and policy for the conduct of the formation hearing. City officials and employees must recognize that an LID hearing is a special proceeding, the format of which may be completely dictated and controlled by the city. This aspect of LID hearings is discussed in greater detail under "Final Assessment Roll Hearing" on the following page. The formation nearing differs in one fundamental way from the final assessment roll hearing. Because thefirst hearing is forthe purpose of deciding the basic question of whether to farm the LID, the city should permit all parties to present fully their views on the LID formation. The city 60 Local and Road Improvement Districts Manual for Washington State Siwh Edition