* 1999 Stokes Family Llc, Et Al, Respondents V City Of Edgewood, Appellant

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r I L E D
t 0U""'TtGE APPEALS
Ji tr1S1O( Y I'
2014 MAR N 10: 16
IN THE COURT OF APPEA.ES OF THE STATE OF WASHINGTON-,
T r WASHl TGIF
1rvT.CTnN TT \
HASIT, LLC, a Washington limited liability
company,
Appellant,
V.
CITY OF EDGEWOOD ( LOCAL
IMPROVEMENT DISTRICT # 1), a municipal
corporation,
1999 STOKES FAMILY LLC, a Washington
limited liability company, and RAY REMPEL
and ELDEAN REMBEL, as Trustees for
REVOCABLE TRUST AGREEMENT OF
RAY E. REMPEL AND ELDEAN B.
REMPEL DATED DECEMBER 12, 2006, a
Trust,
Respondents/ Cross- Appellants,
V.
CITY OF EDGEWOOD, a municipal
corporation,
ERIC DOCKEN PROPERTIES, LP; ENID
AND EDWARD DUNCAN, JAMES AND
PATRICIA SCHMIDT; DARLENE
MASTERS a/ k/ a THE BRICKHOUSE, LLC;
GEORGE AND ARLYN SKARICH; S' .! ELO
MARINA, LLC,
Respondents /Cross -Appellants,
V.
CITY OF EDGEWOOD, ( LOCAL
No. 42842 -3 -II
i
PUBLISHED OPINION
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
IMPROVEMENT DISTRICT # 1),
Appellant/ Cross Respondent.
BJORGEN, J. — The City of Edgewood (City) appeals from a superior court order
remanding local improvement district (LID) assessments, levied against respondents' property,
for further proceedings before a hearing examiner and the Edgewood City Council (Council).
We hold that the assessments rested in part on a fundamentally wrong basis, that they were
arbitrary and capricious, and that the nature of the notice and the inadequate time between it and
the hearing deprived the respondents of the due process of law. Accordingly, we annul the
assessments against respondents' properties.
FACTS
The Council created LID No. 1 by ordinance in October 2008 in response to a petition
from various property owners. The City, incorporated in 1996, had no sewer service, and its
reliance on on -site septic systems limited potential for development in the area. The LID
financed the construction of a $ 21, 238, 268 sewer system, imposing the entire cost on the owners
of 161 parcels in a 312 -acre area.. A portion of this cost resulted from the accommodation of
flows from properties outside the LID that would connect to the system in.the future. The
contractor substantially completed the sewer system by March 2011, and the Council officially
accepted the work by resolution on April 12, 2011.
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No. 42842 -3 -H
A. Calculation of the Assessments Based on " Special Benefits"
In October 2009 the City hired a professional appraisal firm, Macaulay & Associates, to
estimate the increase in value accruing to each parcel due to the sewer project, characterized as
each parcel' s " special benefit." 1
Clerk' s Papers ( CP) at 1528. Macaulay was also charged with
allocating the cost of the project among the LID parcel owners in proportion to those benefits.
Between December 2010 and May 2011, Macaulay' s certified appraisers prepared a " mass
appraisal report," using a valuation date of May 10, 2011. CP at 1464.
The Macaulay report established general value ranges per square foot of land, both with
and without the sewer project, for the various zoning categories in the LID. It also provided an
estimated with- and without -sewer value for each parcel based on " highest and best use" and
described the various methods, assumptions, and sources of information used. CP at 1464 -626.
The report did not, however, provide actual appraisals of each parcel or the specific calculations
used to arrive at the estimated values.
On May 9, 2011, amendments to the City' s zoning ordinance substantially increased the
ensity and building heights allowed for imst of the zoning designations in the LID. Macaulay
used these zoning changes as a " major assumption" in estimating the with -sewer values of the
LID parcels, but did not consider the new zoning in estimating values without sewer. Macaulay
1 The report defines " special benefit" as follows:
a specific, measurable increase in value of certain real property. in excess of
enhancement to the general area '( and benefitting the public at large) due to a
public improvement project. It is measured as the difference, occurring by reason
of the LID project, between the market value of each parcel studied, without the
LID project and market value of the same parcel with the LID project completed
and as of the same time frame.
CP at 1528.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
made this distinction because the " zoning changes could not be implemented without the
availability of sanitary sewer service." CP at 1532.
To calculate the recommended assessments, Macaulay divided the total cost of the sewer
project by the combined special benefit estimate for all LID parcels, $ 28, 818, 000, then
multiplied the resulting quotient, approximately 0.74, by the estimated special benefit to each
parcel. As long as the estimates of value with and without sewer were reasonably accurate, this
approach would as a matter of logic maintain proportionality among the assessments and ensure
that no parcel' s assessment exceeded its 'special benefit.
B. Public Hearing Before the Examiner
The city manager sent property owners in the LID a letter dated April 20, 2011, 2
providing " general information" concerning the assessment roll confirmation process and
informing them that they could object to the assessments at a public hearing planned for June 1,
2011. CP at 216 -17. The letter informed owners that the purpose of the hearing was " to hear
from individual property owners regarding their individual assessments" and cautioned that
o] nly those property owners that have fired written objections .:. at or prior to the hearing ...
may testify." CP at 216. Although the letter stated that "[ t]he hearing examiner will consider all
written and oral testimony," it added that "'[ p] roperty owners must limit their testimony to ( 1)
whether their property' s benefit from the improvements is at least as high as the assessment on
their property; and ( 2) whether their assessment is proportional to the assessments on other
property in the LID." CP at 216.
2
The date actually appearing on the letter is April 20, 2010 and the City' s brief also states that
the City mailed the letter on that date. The context makes clear, however, that both instances are
scriveners' errors.
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No. 42842 -3 -H
On May 12, 2011, the City mailed an official notice of the proposed assessments to the
LID parcel owners and made the Macaulay report available for inspection at city hall. The
notice informed the owners of the specific amounts proposed to be assessed against their
properties and invited them to attend the public hearing before a hearing examiner on the
assessment roll scheduled for June 1, 2011.
The official notice again advised dhe owners that they had to submit any objections in
writing by the June 1 hearing, and it also *Informed them, as required by statute, that any owner
who submitted a written protest at or prior to the hearing could appeal the hearing examiner' s
recommendation to the Council. The notice also included an " information sheet" that contained
the same language that appeared in the city manager' s April 20 letter.
On May 27, 2011, respondent Docken requested a continuance on the grounds that the
City' s notice was defective. The City denied the request.
The examiner proceeded with the hearing as scheduled. Owners timely submitted 24
protests involving 41 LID parcels, and the examiner heard testimony from 16 owners or their
representatives. Appraiser Robert Macaulay and an assistant appeared and answered questions
from protestors, their attorneys, and the attorney representing the City. Respondents all timely
submitted protests in writing.
3
At the end of the hearing, the examiner stated that he would " leave the record open for
one week for any written responses or closing argument [ from the owners] to the City' s
3 The respondents' protests appear in the record as follows: Eric Docken and Docken Properties
LP; Enid and Edward Duncan; James and Patricia Schmidt and Darlene Masters; AKA the
Brickhouse LLC and Ronald Acosta; George and Arlyn Skarich; Suelo Marina LLC
collectively, " Docken "); 1999 Stokes Family LLC; and Ray and Eldean Rempel as Trustees for
the Revocable Trust Agreement of Ray E. Rempel and Eldean B. Rempel.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
presentation, and then ... an additional Week [ for the City] to respond to ... the arguments." CP
at 2257. The examiner specified that no new evidence could be submitted or made part of the
record.
The examiner issued his report and recommendation to the Council on June 30, 2011. In
making the recommendations, the examiner applied various presumptions in favor of the
appraiser' s proposed assessment roll:
A. The City' s action in forming the LID and its assessments are correct.
B. A property owner challenging the assessment has the burden of proving its
correctness. [4]
C. The City has acted legally and properly.
D. An improvement is a benefit to the property.
E. An assessment is no greater than the benefit.
F. An assessment is equal or ratable to an assessment upon other property
similarly situated.
G. The assessment is fair.
CP at 56 ( citing Abbenhaus v. Yakima, 89 Wn.2d 855, 576 P.2d 888 ( 1978)).
The examiner also stated that "[ t] hose protesting an assessment have a heavy burden of
proof," which he described as follows: " a party challenging a final assessment must present
expert appraisal evidence that their property is either not benefitted by-the improvement or that
their assessment is not equal or ratable to assessments of other property similarly situated." CP
at 57. The examiner then quoted at length from an opinion of Division Three of this court:
Even if the presumption of an a'ssessment' s validity is successfully rebutted,
however, the objector must still show that the assessment was founded on a
fundamentally wrong basis or was imposed arbitrarily or capriciously.... A city
council proceeds on a fundamentally wrong basis if it uses a method of
assessment so flawed that it necessitates a nullification of the entire LID.... An
arbitrary and capricious action refers to legislative decisions ( such as the decision
4
The context makes clear that the examiner intended this to mean that the owners bore the
burden of proving the proposed assessments incorrect. See Abbenhaus v. Yakima, 89 Wn.2d
855, 860 -61, 576 P. 2d 888 ( 1978).
on
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
of the council here) made willfully and unreasonably, without regard or
consideration of facts or circumstances.
CP at 57 ( quoting Kusky v. City of Goldendale, 85 Wn. App. 493, 933 P.2d 430 ( 1997)
omissions in original)).
Ultimately, the examiner concurred in the recommendations in a June 13 letter from
Macaulay to reduce three assessments, and the examiner further recommended investigation of a
claim made by one protestor that Macaulay had relied on incorrect zoning designations in its
estimates. The examiner recommended rejecting all the other protests entirely.
C. The Council' s Confirmation of the Assessment Roll
The Council considered the examiner' s recommendations and heard appeals from the
protestors at a closed- record hearing on July 19, 2011. The Council had by ordinance limited
argument to facts already in the record before the examiner, ultimately allowing three minutes'
argument for each appeal. Ten owners, including all the respondents, timely submitted written
appeals and appeared at the hearing either in person or through counsel.
After hearing the protestors' arguments and rebuttal from the attorney representing the
City, the Council briefly discussed the issues raised in some of the appeals. The Council then
voted on an ordinance to confirm the roll exactly as recommended by the examiner except for
reductions to two additional assessments, but it failed to pass. After additional deliberations,
mostly involving the financial consequences to the City of further delay, the Council held
another vote on the same ordinance, this time passing it. The ordinance took effect August 1,
1_ 2011
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No. 42842 -3 -II
D. Appeal to the Superior Court
Nine protesting owners, including the respondents, timely appealed the Council' s
decision to Pierce County Superior Court pursuant to RCW 35. 44.250, alleging both substantive
defects in the appraiser' s assessment and flaws in the protest procedures.5 The -court
consolidated the cases and ultimately filed its decision on November 10, 2011. The court
concluded that the City' s procedures suffered from many defects, notably, that " the City' s notice
and advisement of the hearing set for June 1, 2011 [ before the examiner] was so inadequate as to
violate the appellants' right to a fair hearing." CP at 2843. The court remanded the matter " for a
revised and de novo hearing and evidentiary process before the Hearing Examiner," requiring the
examiner and the Council to provide specific procedural protections to the protestors on remand.
CP at 2843 -45.
The City timely appealed the superior court' s decision. Respondent Docken timely
cross -appealed.
ANALYSIS
Because this case involves a complex and specialized area of law, we set forth the
relevant principles governing LID assessments in some detail before evaluating the property
owners' claims.
5 A tenth protestor, North Meridian Associates, sought to intervene in the matter in the court
below, which motion that court denied as untimely. North Meridian appealed that decision, but
we dismissed the appeal as untimely filed -on the City' s motion. Another protestor who had
timely appealed its assessment in the superior court and in this court, Hasit LLC, agreed to
voluntary dismissal with prejudice on a stipulated motion.
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R . MEMB-A
A. LID Assessments in Washington
Within a local improvement or related district, local governments may impose special
assessments on property owners to pay for certain improvements that specially benefit those
properties. Covell v. City of Seattle, 127 Wn.2d 874, 889, 905 P. 2d 324 ( 1.995). " Special
benefit" is " the increase in fair market value attributable to the local improvements." Doolittle v.
City of Everett, 114 Wn.2d 88, 103, 786 P.2d 253 ( 1990). Most constitutional limitations on the
taxing power do not apply to LID assessments because they serve merely as " compensation paid
by the property owner for the improved value" of the benefitted property. Heavens v. King
County Rural Library Dist., 66 Wn.2d 558, 564, 404 P. 2d 453 ( 1965). Courts have long
considered installation of sewers a valid purpose for such assessments. Heavens, 66 Wn.2d at
563.
An assessment against property which does not receive a special benefit from the
improvement constitutes a " depriv[ ation] of property without due process of law." Heavens, 66
Wn.2d at 564. To be subject to an LID assessment, a property must realize a benefit that is
actual, physical and material[,] . not merely- speculative or conjectural," and that is
substantially more intense than [ the benefit] to the rest of the municipality." Heavens, 66
Wn.2d at 563. Consistently with this rule, a special assessment may not substantially exceed a
property' s special benefit. In re Local Improvement No. 6097, 52 Wn.2d 330, 333, 324 P.2d
1078 ( 1958). Furthermore, a property should not bear " proportionately more than its share" of
the total assessment relative to other parcels in the LID. Cammack v. Port Angeles, 15 Wn. App.
188, 196, 548 P.2d 571 ( 1976) ( citing Sterling Realty Co. v. Bellevue, 68 Wn.2d 760, 415 P.2d
627 ( 1966)). However, the requirement Of proportionality does not mandate that all properties
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No. 42842 -3 -II
within an LID be assessed the same percentage of the special benefits received. See Bellevue
Assoc. v. City of Bellevue, 108 Wn.2d 671, 678, 741 P. 2d 993 ( 1987).
Because LID assessments involve a deprivation of property, affected owners have the
right to a hearing as to whether the improvement resulted in special benefits to their properties
and whether their assessments are proportionate, which necessarily includes the right to adequate
notice of the hearing. Carlisle v. Columbia Irrigation Dist., 168 Wn.2d 555, 569 -70, 229 P.3d
761 ( 2010). The LID statute specifies that cities must mail notices giving the time and place of
the hearing to the affected owners "[ a] t least fifteen days before" the hearing and publish the
notice once a week for two consecutive weeks in the city' s official newspaper, with the final
publication at least fifteen days prior to the hearing. RCW 35. 44.090.
The city council may designate an officer to conduct hearings on proposed assessments.
RCW 35. 44: 070. The hearings officer considers all objections and evidence and makes a
recommendation to the city council. The council, serving as a board of equalization, may either
adopt or reject the officer' s recommendations and may accept, revise, or reject the assessments in
woe or in part. RCW 3 . 7 , . 3 _
The decision of the Council may be appealed to superior court. RCW 35. 44.200. The
court may " correct, change, modify, or annul the assessment insofar as it affects the property of
the appellant" if it finds from the evidence that the " assessment is founded upon a fundamentally
wrong basis and /or the decision of the council was arbitrary or capricious." RCW 35. 44. 250.
An assessment is founded on a fundamentally wrong basis where the method of assessment
or the procedures used by the city involve "` some error .... the nature of which is so
fundamental as to necessitate a nullification of the entire LID, as opposed to a modification of
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No. 42842 -3 -II
the assessment as to particular property. "' Abbenhaus, 89 Wn.2d at 859. Even if a challenger
establishes such a fundamental error, however, " the court is limited to nullification or
modification only of those parcel assessments before it." Abbenhaus, 89 Wn.2d at 859. Courts
consider a municipality' s decision regarding an LID assessment arbitrary and capricious only if
it constitutes
willful and unreasoning action, taken without regard to or consideration of the
facts and circumstances surrounding the action. Where there is room for two
opinions, an action taken after due consideration is not arbitrary and capricious
even though a reviewing court may believe it to be erroneous.
Abbenhaus, 89 Wn.2d at 858 -59. Courts may also annul an assessment if imposed through an
unconstitutional procedure. See Pratt v. Water Dist. No. 79, 58 Wn.2d 420, 423, 363 P.2d 816
1961).
In applying these standards, courts may consider only " the record of proceedings before
the City Council." Doolittle, 114 Wn.2d at 93 ( citing Abbenhaus, 89 Wn. 2d at 859). An owner
challenging the assessment bears the burden of production, and the court will presume that the
action of the city council was legal and proper. Doolittle, 114 Wn.2d at 93 ( citing Abbenhaus,
89 Wn.2d at 860 -61). Furthermore, a reviewing court must "` presume[] that an improvement is a
benefit; that an assessment is no greater than the benefit; that an assessment is equal or ratable to
an assessment upon other property similarly situated; and that the assessment is fair. "'
Abbenhaus, 89 Wn.2d at 861 ( quoting Phillip Trautman, Assessments in Washington, 40 WASH.
L. RE,v. 100, 118 ( 1965)). Whether a property received a special benefit and the amount of the
6
The difference in phrasing between " arbitrary or capricious" in RCW 35. 44.250 and " arbitrary
and capricious" in Abbenhaus and other ease law is without significance..
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No. 42842 -3 -II
benefit ordinarily present questions of fact. Bellevue Assoc., 108 Wn.2d at 676 -77 ( citing In re
Jones, 52 Wn.2d 143, 146, 324 P.2d 259 ( 1958))
These presumptions, however, merely "` establish which party has the burden of going
forward with evidence, "' and when "` the other party adduces credible evidence to the contrary, "'
the burden shifts to the city. Bellevue Pldw, Inc. v. City ofBellevue, 121 Wn.2d 397, 403, 851
P.2d 662 ( 1993) ( quoting In re Indian. Trail Trunk Sewer Sys., 35 Wn. App. 840, 843, 670 P.2d
675 ( 1983)). Thus, where a protesting owner alleges her assessment exceeds the special benefit
and presents sufficient evidence to overcome the presumptions, but the city confirms the
assessment roll regardless, a court will reduce or annul the assessment as arbitrary and capricious
unless the city presented sufficient competent evidence to the contrary. Bellevue Plaza, 121
Wn.2d at 403 -04.
B. Procedural Defects in the Vote To 'Confirm the Assessment Roll Did Not Render the
Resulting Ordinance Invalid
Respondent Docken argues that the ordinance confirming the assessment roll is void
because the vote violated the Council' s own rules of procedure. Because a Council member on
the losing side of the initial vote made the motion to vote on the ordinance again, without a
proper motion for reconsideration, it appears that the vote did, in fact, violate procedural rules.
EDGEWOOD CITY COUNCIL RULES OF PROCEDURE 6. 17. This does not, however, invalidate the
ordinance.
A well -established principle of the law governing municipal corporations is that " failure
to conform to parliamentary usage will not invalidate [legislative] action when the requisite
number of members has agreed to the particular measure." 4 EUGENE MCQuiLuN, LAw OF
MUNICIPAL CORPORATIONS § 13: 63 ( 3d ed. 2004) (footnotes omitted). Furthermore, a city
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No. 42842 -3 -H
council may suspend its own rules by implication. 4 MCQUILLIN, supra, at § 13. 62. Had a
member of the Council timely raised a point of order, it should have been sustained, but none
did. Under these rules, the arguably improper reconsideration process does not invalidate the
ordinance.
C. The City Calculated the Assessments on a Fundamentally Wrong Basis by Including
Costs for " Oversizing" the Sewer _pipes
1. The assessments were properly based on the entire cost of the project, even though
the improvements also provided general benefits beyond the borders of the LID.
Respondent Docken first argues that the assessments are founded on a fundamentally
wrong basis because they cover the entire cost of the project, even though the improvement will
confer benefits on the broader community outside the LID. In support Docken cites Bellevue
Plaza, Inc., 121 Wn.2d 397, which held that assessed property must be specially benefitted by
the improvements, as distinguished from a general benefit to the entire district.
Nearly every conceivable improvement that confers special benefits on nearby properties
also confers some present or future benefit to the community in general. This is especially true
of the health benefits -from improved sewer systems: The definition of special benefit, one that is
substantially more intense than [ the benefit] to the rest of the municipality," Heavens, 66 Wn.2d
at 563, clearly contemplates that the general public will also likely benefit in some way from the
improvement. Yet the statutory default method of assessment, zone and termini, distributes the
entire cost of the project among specially benefitted parcels. RCW 35. 44.030, .040. With this, it
can hardly be said that requiring the specially benefitted parcels to bear the entire cost proceeds
on a fundamentally wrong basis under the statute. Indeed, our Supreme Court rejected an
argument very similar to Docken' s nearly a century ago:
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No. 42842 -3 -II
It is also claimed that the city council in assessing the entire cost of the
improvement of a street which was a portion of an arterial highway, upon the
abutting property within the termini of the improvement, proceeded upon a
fundamentally wrong basis.... Since the statute authorizes the placing of the
burden of the entire cost of the improvement upon the abutting property, it could
not well be held that such an assessment was upon a fundamentally wrong basis,
where the evidence shows that the property is not assessed for more than it is
benefited.
Moore v. City of Spokane, 88 Wash. 203; 208, 152 P. 999 ( 1915). Docken' s claim fails.
2. The assessments were improperly based on costs that resulted in a benefit only to
future users not assessed under the LID.
Docken also argues that the assessments rest on a fundamentally wrong basis because
they include costs for " oversizing" the sewer pipes, which will benefit only future users not
assessed under the LID. Br. of Respondent Docken at 46 -53. We agree with this argument,
because the City' s decision to oversize the sewer pipes presents a situation far different from the
incidental general benefits that sewer improvements always confer on the community at large.
In keeping with the principle that special assessments serve as compensation for special
benefits, Heavens, 66 Wn.2d at 564, our court has held that "` only that portion of the cost of the
local improvement which is of special benefit to the property can be levied against the
property."' Bellevue Assoc., 108 Wn.2d at 676 ( quoting In re Schmitz, 44 Wn.2d 429, 433, 268
P.2d 436 ( 1954)). This principle is well illustrated by In re Shilshole Ave., 85 Wash. 522, 525,
148 P. 781 ( 1915), which held invalid an assessment levied for the purpose of raising the grade
of a road by 16 to 18 feet, because the evidence showed that the specially benefitted properties
would have benefitted equally from an increase of only nine feet. Assessments for the portion of
the project that raised the street more than nine feet, " being made against the property of these
appellants to pay damages for a thing which did not benefit that property, was founded upon a
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No. 42842 -3 -II
fundamentally wrong basis and is wholly indefensible." Shilshole Ave., 85 Wash. at 536. The
Court emphasized that " the basic principle and the very life of the doctrine of special
assessments [ is] that there can be no special assessment to pay for a thing which has conferred no
special benefit upon the property assessed." Shilshole Ave., 85 Wash. at 537.
The same principle was more obliquely treated in Morse v. Wise, 37 Wn.2d 806, 226 P.2d
214 ( 1951). The city of Chelan decided to finance additions to its sewer system through rates
and charges on all users, new and existing. Morse, 37 Wn.2d at 809. A number of existing users
had paid special assessments to finance the portion of the system serving them. They objected to
paying charges for new mains and laterals capable of serving only new users, arguing that they
would be of no benefit to them. Morse, 37 Wn.2d at 809 -10. The court upheld the charges as, an
exercise of the police power, but noted' that there would be merit to the appellants' contention " if
the city had proceeded to make the improvements and construct a sewer system to serve the
additional areas pursuant to local improvement statutes." Morse, 37 Wn.2d at 810 -11.
More recently, our Supreme Court 'rejected an argument in City of Seattle v. Rogers
Clothing for Men, Inc., 114 Wn.2d 213, 227 -28, 787 P.2d 39 ( 1990), that an LID assessment was
invalid because the improvements at issue benefitted businesses not assessed. In upholding the
assessment the court relied on the ground that the City " had apportioned the costs of programs
between city funds and [ LID] funds" and had charged the Business Improvement Area funds
only so much of the overall costs as the Downtown Seattle Association deemed to reflect
activities that took place within, and advertising that benefit[ t] ed" the assessed properties.
Rogers Clothing, 114 Wn.2d at 227 -28. ' This suggests that the City would have erred had it
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No. 42842 -3 -II
assessed against the LID owners the entire cost of improvements that admittedly accrued entirely
to the benefit of others.
We recognize also that by their nature the legal standards governing special assessments
are not applied with the precision of a jeweller' s eye. For example, a special assessment may not
substantially exceed a property' s special benefit. Local Improvement No. 6097, 52 Wn.2d at
333. Property is to be assessed "` as nearly as reasonably practicable in accordance with the
special benefits gained by that parcel from the entire improvement. "' Bellevue Assoc., 108
Wn.2d at 677 ( quoting Sterling Realty C6., 68 Wn.2d at 765). Proportionality does not require
that all properties be assessed the same percentage of the special benefits received. See Bellevue
Assoc., 108 Wn.2d at 678. The flexibility in these principles acknowledges that the calculation
of special benefit is not an entirely exact undertaking and that local governments cannot be held
to an.unrealistic standard of precision in deing so. A per se rule that condemned any excess
capacity in a system funded by local assessments would be blind to these realities. The mere
presence of any capacity over the bare minimum needed to serve the LID does not descend into
illegality for that reason alone.
The City' s decision here, however, does not fall within the reach of the flexibility granted
by these principles. The record shows that the City deliberately built the pipes larger than was
needed to serve the LID because it wanted to have capacity to serve future users outside the LID.
The City had available other methods of financing this excess capacity, such as rates and charges
consistent with Morse, 37 Wn.2d at 810 -11, or latecomers' fees under RCW 35. 91. 020(b). The
City spurned these methods and instead required property owners within the LID to pay for this
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No. 42842 -3 -II
excess capacity through their special assessments. The City' s reasons for this choice may be
excavated in the following exchange at the hearing:
EXAMINER]: I just have one question. You said —when you talked about the
latecomers agreement, you said you couldn' t identify any method to do that. What
did you mean by that?
MR. BOURNE: There are methods that have been used. If the —if the City was —
was a robustly financed city and was old like the City of Seattle or Bellevue, then
they could, perhaps, have a latecomers fee on future connections and we could
upfront some of the money today, but the City does not have any money, and
because the sewers are built in core one ( phonetic) and there' s not expected to be
a lot of expansion in the near Future, that really wouldn' t earn much revenue
anyway.
CP at 2237 -38. In other words, the City rejected the other financing options because it did not
have the money required initially and the Future uses were not imminent. Its solution was to
have the LID owners pay for capacity that would create no special benefit for them.
The City' s approach does not represent the sort of flexibility demanded by the realities of
local improvements. Rather, it attempts to finance capacity needed only to serve property
outside the LID exclusively through special assessments on property within the LID. Even
though the assessments remained less than the special benefits for each property owner, the
choice by the City to make the owners finance capacity with no special benefits to them runs
afoul of the rule in In re Shilshole Avenue and other decisions discussed above. In the absence of
legislative authorization, the City cannot shift costs in this manner
For these reasons, the assessments were made on a fundamentally wrong basis, as defined
in Abbenhaus, 89 Wn.2d at 859. Consistently with Abbenhaus, we annul the respondents'
assessments. 89 Wn.2d at 859.
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No. 42842 -3 -II
D. Macaulay Properly Considered Zoning Changes Which Took Effect the Day Before the
Date of its Appraisal
Respondents argue next that the assessments rested on a fundamentally wrong basis
because Macaulay considered the increased density permitted by the zoning changes which
became effective the day before its valuation date in estimating the value of properties with
sewer provided. We disagree. The zoning changes directly influenced the value of the
properties with sewer, and the appraiser properly considered them for that purpose.
Respondents argue that consideration of the zoning change violates the rule expressed in
Doolittle that the " measure of special benefits ... is the increase in fair market value attributable
to the local improvements." 114 Wn.2d at 103. Doolittle owned four contiguous lots, three of
which were improved with one commercial use and the fourth with a separate commercial use.
114 Wn.2d at 90. The city' s appraiser, in establishing the with -improvement value, assumed that
all four lots would be combined and all existing improvements removed, thus increasing the
overall square -foot value. Doolittle, 114 'Wn.2d at 90, 92. The Court held that this assumption
constituted a fundamentally wrong basis for assessment because the increase in value would not
be derived solely from the local improvements, but from the improvements and the combination
of the lots, with the owner' s actual use disregarded. Doolittle, 114 Wn.2d at 103 -04. This, the
court held, would be inconsistent with the principle that the assessment be based on the special
benefits resulting from the local improvements. Doolittle, 114 Wn.2d at 103 -04.
Similarly, in Bellevue Plaza, 121 Wn.2d at 411 -12, our Supreme Court invalidated an
assessment based on various assumptions, including that the improvement would lead to
properties joining into " superblocks," without regard to present use and that the improvement
would allow owners to comply with a traffic ordinance which had not yet been implemented.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
The Court specified that special benefits are limited to " the increase in the fair market value of a
particular property caused by the improvements," which " cannot include a speculative value."
Bellevue Plaza, 121 Wn.2d at 411.
The zoning changes considered by Macaulay, however, share none of the speculative
nature of the assumptions held invalid in Doolittle and Bellevue Plaza. Both opinions affirmed
the principle that "` future use to which property is reasonably adaptable within a reasonably
foreseeable time is considered in determining the amount of special assessments. "' Bellevue
Plaza, 121 Wn.2d at 413 ( quoting Doolittle, 114 Wn.2d at 104). Zoning restrictions in large part
fix the uses to which property will be legally adaptable. The zoning changes at issue here were
adopted before the valuation date. Thus, the City would have erred if it had not considered these
changes in estimating values with the sewer project in place.
Furthermore, the Macaulay report also stated that the absence of a sewer system
precluded owners from developing their properties even to the maximum density permitted by
the old zoning regulation. Thus, Macaulay properly considered the increased density only in the
with -sewer valuation; because owners could-not have achieved even the previously allowed
densities under the old zoning.
Macaulay properly considered the zoning amendments in the with -sewer valuations.
E. The City Showed That the Mass -Appraisal Method More Fairly Reflected the Special
Benefits than the " Zone- and -Termini" Method
Docken argues that the assessments rest on a fundamentally wrong basis because the City
did not establish that Macaulay' s mass -appraisal method more fairly reflected the special
benefits than the " zone- and -termini" method set out in RCW 35. 44.030, et seq. Br. of Resp' t
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No. 42842 -3 -II
Docken at 64, citing Sterling Realty Co., '68 Wn.2d at 766 in support. However, after Sterling
Realty the legislature amended the statute to specify that
n] otwithstanding the methods of assessment provided in RCW 35. 44.030,
35. 44. 040 and 35. 44.045, the city or town may use any other method or
combination of methods to compute assessments which may be deemed to more
fairly reflect the special benefits to the properties being assessed. The failure of
the council to specifically recite in its ordinance ordering the improvement and
creating the local improvement district that it will not use the zone and termini
method of assessment shall not invalidate the use of any other method or methods
of assessment.
LAws of 1969, ch. 258 § 7 ( codified as R'CW 35. 44.047) ( additions italicized). A city need only
show " slight evidence," if any, to meet this requirement. Hansen v. Local Improvement Dist. No.
335, 54 Wn. App. 257, 261 -62, 773 P.2d 436 ( 1989). The record contains sufficient evidence to
do so.
F. The City' s Confirmation of the Assessment Roll Was Arbitrary and Capricious
The owners contend that the City' s actions in confirming the assessment roll were
arbitrary and capricious in the ways discussed below. We agree with the owners in part.
1. The City denied the protests in part due to the absence of. evidence that the City' s
notice prohibited the protestors from presenting.
As noted above, the information sheet the City included with the official hearing notice,
as well as the April 20 letter from the city manager, indicated that only property owners who had
filed written objections would be allowed to speak or testify at the hearing. To state that only
certain property owners " are allowed to speak at the hearing," plainly and literally means that
only these property owners may testify at the hearing. In other words, the statement prohibits
owners from bringing other witnesses, sitch as appraisers, to testify for them. It may be that the
City intended to convey the notion that of the class of property owners, only those who have
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No. 42842 -3 -II
filed objections may testify, an interpretation more consistent with surrounding restrictions in
RCW 35. 44.080. That, however, is not what its communication said. A property owner not
trained in the intricacies of LID law would likely have taken the City' s statement at face value:
that she could testify only if she filed an objection, but could not bring witnesses to testify on her
behalf at the hearing or bring an attorney to speak on her behalf. Furthermore, it appears that the
examiner never informed the protestors that they might call witnesses at the hearing. The City' s
attorneys, on the other hand, came prepared with four expert witnesses.
Yet the examiner relied heavily on the absence of expert testimony on behalf of the
protestors in rejecting their challenges to the assessments. The examiner recommended, for
example, that the Council reject 15 of the protests because none of those owners " submitted
expert appraisal testimony or expert evidence to substantiate their protests." CP at 60 -61.
Indeed, the examiner explicitly based his ultimate conclusion that " the presumption of the
validity of Macaulay' s before and after assessments was not overcome" on the fact that " no
appraiser appeared at the hearing and none of the written appraisals /appraiser statements
established before and after LID values." CP at 67.
To deny the protests based on the protestors' failure to produce evidence that the City
told them they could not present is unquestionably willful and unreasoning action, taken without
regard to the facts and circumstances. Thus, under Abbenhaus, 89 Wn.2d at 858 -59, the City' s
action was arbitrary and capricious. Although we appreciate the time, pressure, and financial
constraints under which the Council acted, and do not doubt that the City attempted in good faith
to follow the law, we find no room for a reasonable difference of opinion on this question.
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No. 42842 -3 -II
2. The City erred in requiring protestors to submit expert appraisal evidence.
Apart from the flaw in the notice just discussed, the City also erred in requiring protestors
to present expert appraisal evidence demonstrating certain points. The examiner properly noted
the following passage from Cammack, establishing the central role of expert evidence in these
proceedings:
Expert evidence is clearly required to establish whether or not property is
especially benefit[ t] ed by an improvement and the extent of the benefit. Expert
testimony also may be required to establish a disproportionate assessment.
CP at 57 ( quoting Cammack, 15 Wn. App. at 197). The examiner interpreted this passage as
follows:
Thus, a party challenging a final assessment must present expert appraisal
evidence that their property is either not benefitted by the improvement or that
their assessment is not equal or ratable to assessments of other property similarly
situated.
CP at 57 ( quotation marks omitted). However, neither precedent nor the plain meaning of the
passage from Cammack imply the requirements that ( 1) the challenging party present the
evidence; ( 2) the expert evidence be " appraisal evidence "; or ( 3) that a party claiming
disproportionate assessment " must" support the claim with such evidence.
With respect to the requirement that the protesting owner must present the evidence, we
have explicitly rejected an argument that, because certain protestors " failed to offer expert
testimony at the city council hearing[,] the presumptions [ in favor of the assessment] were still
operative as to their property." In re Indian Trail Trunk Sewer, 35 Wn. App. 840, 843, 670 P.2d
675 ( 1983). On the contrary, in Indian Trail we held that " the burden of proving special benefit"
shifted to the City because the protestors' parcels stood " in close proximity to the property on
which expert testimony was given." 35 Wn. App. at 843 -44. Thus, protestors plainly may
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No. 42842 -3 -II
benefit from expert evidence which they themselves did not present. The rejection of 15 of the
protests because none of those owners " s'ubmitted ... expert appraisal testimony or expert
evidence [ to] substantiate] their protestosI," therefore rests on an erroneous application of the
law. CP at 60 -61.
Furthermore, the examiner told the protestors prior to hearing testimony that he " only
need[ ed] to hear it once as far as the property is concerned" and " if someone covers ... the
reason you' re here, you don' t need to repeat." CP at 2135 The examiner subsequently reiterated
that " if someone came and gave testimony or raised issues that would apply to everybody else,
no one else needed to come forward to say it," specifically stating that he would apply " whatever
is relevant in" respondent Docken' s prote's't to his consideration of other protests. CP at 2135,
NM
Next, the requirement that appraisal evidence be presented, including before and after
values, is also erroneous. The Doolittle Court sustained a challenge to an assessment despite
holding that the protestor' s. " expert testimony as to increased valuation" was founded on an
improper basis and thus inadmissible. 114 Wn.2d at 107.- The Court sustained the challenge
because, even without the appraisal testimony, the protestor' s expert established that the
assessment was " clearly grounded upon a fundamentally wrong basis" due to an error in the
method employed by the City' s appraiser. Doolittle, 114 Wn.2d at 106. A property owner, then,
need not necessarily present her own independent appraisal, or before and after values, to
successfully challenge an LID assessment. Doolittle required only that some "[ v] aluation
testimony [ be] presented to the Council." 114 Wn.2d at 106.
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No. 42842 -3 -II
Finally, the requirement that even protestors alleging disproportionate assessment must
present appraisal evidence runs counter to the plain meaning of the language quoted above from
Cammack. That opinion' s observation that expert evidence " may be required to establish a
disproportionate assessment," Cammack, 15 Wn. App. at 197, does not mean that a protestor
must present expert appraisal for that purpose. It means simply that the necessity for such
evidence depends on the circumstances of the challenge.
The requirement that each protestor present expert appraisal evidence is contrary to
governing law. As such, it counts as arbitrary and capricious action under Abbenhaus, 89 Wn.2d
at 858 -59.
3. The City erred in requiring protestors to prove that assessments were founded on a
fundamentally wrong basis or were imposed arbitrarily or capriciously.
Relying on Kusky v. City of Goldendale, 85 Wn. App. 493, 933 P. 2d 430 ( 1997), the
examiner required that those challenging an assessment show that it was founded on a
fundamentally wrong basis or was imposed arbitrarily or capriciously. Under both statutory and
case law, though, these standards apply at the stage of judicial review, not to the hearing before
the examiner.
The fundamentally wrong basis and arbitrary and capricious standards are imposed in
RCW 35. 44.250, a statute governing assessment challenges at superior court. In pertinent part,
this provision requires the court to confirm the assessment roll, " unless the court shall find from
the evidence that such assessment is founded upon a fundamentally wrong basis and /or the
decision of the council or other legislative body thereon was arbitrary or capricious." RCW
35. 44.250. Although this statute does not explicitly prohibit the City from applying these
standards, its plain force is to direct superior court to apply them.
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No. 42842 -3 -II
Kusky is wholly consistent with the view that these standards apply only to judicial
review. Citing Abbenhaus, 89 Wn.2d at 860 -61, and Indian Trail, 35 Wn. App. at 841, it cites
the fundamentally wrong basis and arbitrary and capricious criteria in discussing the standards
applied by the appellate court. Kusky, 85 Wn. App. at 498. Similarly, Abbenhaus, 89 Wn.2d at
860, and Indian Trail, 35 Wn. App. at 841, only apply these standards to appellate review.
One may argue, though, that if these heightened standards apply to judicial review of a
city' s decision, they also ought to apply to the route the city takes to that decision. This
argument may shine on its surface, but cannot withstand what the legislature has actually said
about the process at the municipal level. When considering the assessment roll, the city council
sits " as a board of equalization." RCW 35. 44. 080(2). As such, the council or hearings officer
will consider the objections made and will correct, revise, raise, lower, change, or modify the
roll or any part thereof or set aside the roll." RCW 35. 44.080( 3). A board of equalization
presumes the value used by the county assessor to be correct, unless overcome by clear, cogent
and convincing evidence. WAC 458 -14=046(4).
Since a council or hearings officer considering an assessment roll sits as a board of -
equalization, these provisions disclose legislative intent that it make de novo determinations
while presuming the assessments to be correct, constrained perhaps by the clear, cogent and
convincing standard. The heightened presumption of correctness carried by the fundamentally
wrong basis and arbitrary and capricious standards contradicts this legislatively mandated role.
Further, applying these elevated standards at the municipal hearing would afford unwarranted
deference to a report prepared under contract by a private appraisal firm. For these reasons, the
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No. 42842 -3 -II
City erred in applying the fundamentally wrong basis and arbitrary and capricious standards in
making its decision on the assessment roll.7
4. With this decision on the standard of proof, it is unnecessary to determine whether the
City erred in applying the remaining Abbenhaus presumptions.
In reviewing a municipal decision on an assessment roll, the court must presume that the
decision is correct, that the City has acted legally and properly, that the improvement is a benefit,
that an assessment is no greater than the benefit, that an assessment is equal or ratable to an
assessment upon other property similarly situated, and that an assessment is fair. Abbenhaus, 89
Wn. 2d at 860 -61. Property owners contend that the Council' s confirmation of the assessment
roll as recommended by the examiner was arbitrary and capricious because the examiner applied
the presumptions articulated in Abbenhaus to the Macaulay report and imposed a heightened
burden of proof.
We held above that the City erred by imposing heightened burdens of proof at its hearing
through the fundamentally wrong basis and arbitrary and capricious standards. With that
corrected, and with burden -shifting commanded by Bellevue Plaza, 121 Wn.2d at 404, and
Indian Trail, 35 Wn. App. at 843, the extent to which the remaining Abbenhaus presumptions are
used by municipal decision makers may a question of little consequence. In any event, it is
not a question that must be confronted to resolve this appeal.
5. The alleged motives of certain city council members do not make the Council' s
decision arbitrary and capricious.
Respondents claim that the Council' s vote to confirm the assessment roll was arbitrary
7 These appeals do not require deciding whether the clear, cogent and convincing standard for
boards of equalization applies to municipal decisions on assessment rolls.
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No. 42842 -3 -II
and capricious because ( 1) comments made by one council member indicated that he thought the
protest procedures were unfair to the owners, ( 2) another member' s remarks in support of a
failed motion to reduce respondent Rempel' s assessment indicated that he agreed the assessment
was disproportionate, and ( 3) the Council' s discussions leading up to the vote focused on the
financial consequences to the City of delaying confirmation of the roll rather than the merits of
the appeals. Because we may not consider such comments in evaluating the reasonableness of
legislation, we reject this argument.
A well -established rule " governs a determination by a court of the reasonableness of an
ordinance," and provides that
e] xcept as they may be disclosed on the face of the act or are inferable from its
operation, the courts will not inquire into the motives of legislators in passing or
doing an act, where the legislators possess the power to pass or do the act and
where they exercise that power in a mode prescribed or authorized by the organic
law. Therefore, neither the motives of the members of a municipal legislative
body nor the influences under which they act can be shown to nullify an
ordinance duly passed in legal form, within the scope of their powers. In such
case, the doctrine is that the legislators are responsible only to the people who
elect them.
C uinm, supra, at § 1 ( footnotes omitted
Similarly, our Supreme Court has tong held that courts " are not permitted to speculate on
the motives prompting the city council in the enactment of the ordinance, so long as we find it
reasonable upon its face and within the city' s power." Cont' l Baking Co. v. City of Mount
Vernon, 182 Wash. 68, 73, 44 P. 2d 821 ( 1935). Thus, these comments and alleged motives of
council members do not transmute the City' s actions into arbitrary and capricious conduct.
27
 	 	 	 	 	 	 	 	 	 	 	 	 	

lir . 1 1—	Imsi_	I
6. Summary of holdings under arbitrary and capricious standard.
In its approval of the assessment roll, the City erroneously used the fundamentally
wrong basis and arbitrary and capricious standards, erroneously required protestors to
submit expert appraisal evidence, and erroneously relied on the absence of evidence that
the City' s notice letter informed owners 'they could not present. We hold the Council' s
action in confirming the assessment roll under such circumstances to be arbitrary and
capricious and annul the assessments imposed against respondents' properties. 8
G. The City Violated Respondents' Due Process Rights
Having annulled the assessments ,Oh statutory grounds, we ordinarily would not reach the
respondents' constitutional due process claims. See Cary v. Mason County, 1.73 Wn.2d 697, 703,
272 P. 3d 194 ( 2012). In this case, however, we must reach the constitutional question. The
respondents' cross -appeal assigns error to the superior court' s decision to limit relief to those
owners who followed the statutory protest procedure, alleging that the City' s notice and protest
procedure infringed on the due process rights of all the property owners assessed under the LID,
amounting to a " jurisdictional defect" that requires annulment of the entire assessment roll. Br.
of Resp' t Docken at 14 -22. Thus, in order to determine the scope of relief, we must decide
whether a due process violation occurred and, if so, whether it amounted to such a jurisdictional
defect.
8
We note that the court below remanded this matter to the City for further proceedings. In a
challenge to a LID assessment, we review the decision of the municipality directly, not the
decision of the superior court. See Schmitt v. Cape George Sewer Dist. No. 1, 61 Wn. App. 1,
809 P.2d 217 ( 1991). While we appreciate the superior court' s attempt to remedy the defects in
the City' s process by fashioning a suitable remand order, the LID statute allows a reviewing
court only to " correct, change, modify, or annul the assessment insofar as it affects the property
of the appellant." RCW 35. 44.250.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
Because the notice was misleadino, and because the interval between its mailing and the
hearing did not allow the owners sufficient time to obtain the type of evidence necessary to
successfully challenge an LID assessment, we agree that the City denied the owners' due process
right to a meaningful opportunity to be heard. We do not reach the question whether this is a
jurisdictional defect, though, but instead dispose of the cross -appellants' assignment of error on
the ground that property owners other than the respondents have waived their due process
challenges.
1. Standard of review for due process claims.
The fourteenth amendment to the federal constitution provides that no state shall " deprive
any person of life, liberty, or property, without due process of law." Article 1, section 3 of the
Washington State Constitution similarly provides that "[ n] o person shall be deprived of life,
liberty, or property, without due process oflaw." We give "` great weight "' to federal cases
interpreting the fourteenth amendment when construing our constitution' s due process provision.
Olympic Forest Prod., Inc. v. Chaussee Corp., 82 Wn.2d 418, 421 -22, 511 P.2d 1002 ( 1973)
quoting Pastel, Inc. v. County of King, 77 Wn.2d 144; 153, 459 P. 2d 937 ( 1969)). To the extent
that it provides greater protection, of course, the federal provision controls. Olympic Forest
Prod., 82 Wn.2d at 422.
Although " the boundaries of the concept of due process are not capable of precise
formulation," Olympic Forest Products, '82 Wn.2d at 422, at a minimum it requires " the
opportunity to be heard," Grannis v. Oraein, 234 U.S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363
1914), and " notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their objections,"
919
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -H
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865
1950). Thus, due process requires " notice and opportunity for hearing appropriate to the nature
of the case" before a state deprives a person of "life, liberty or property." Mullane, 339 U.S. at
313. Furthermore, the opportunity " must be granted at a meaningful time and in a meaningful
manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 ( 1965).
The particulars of what process is due " may vary according to the exigencies of the
particular situation." Olympic Forest Prod., 82 Wn.2d at 423. Thus,
t]he formality and procedural requisites for the hearing can vary, depending upon
the importance of the interests involved and the nature of the subsequent
proceedings. That the hearing required by due process is subject to waiver, and is
not fixed in form does not affect its root requirement that an individual be given
an opportunity for a hearing befio -re he is deprived of any significant property
interest, except for extraordinary situations where some valid governmental
interest ... justifies postponing the hearing until after the event.
Boddie v. Connecticut, 401 U.S. 371, 378 -79, 91 S. Ct. 780, 28 L. Ed. 2d 113 ( 1971) ( citations
and quotations omitted). Furthermore, a " procedural rule that may satisfy due process in one
context may not necessarily satisfy procedural due process in every case." Bell v. Burson, 402
U.S. 535, 540, 91 S. Ct. 1586, 29 L. Ed. 2d 90 ( 1971): " The procedural safeguards afforded in
each situation should be tailored to the specific function to be served by them." Olympic Forest
Prod., 82 Wn.2d at 423 ( citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 25 L. Ed.
2d 287 ( 1970)).
2. The City failed to provide the -Owners with constitutionally adequate notice.
As set out above, the City' s " information sheet" misled the property owners as to what
type of testimony they could present at the hearing by indicating that the only people who could
speak at the hearing were owners who had timely submitted written protests. This likely worked
30
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -H
to the owners' prejudice because, as discussed above, the examiner relied on the failure to
present live expert testimony in recommending denial of most of the protests. When a notice
bars a certain type of evidence, yet the subsequent decision relies on the absence of that evidence
in denying relief, the notice cannot be said to have afforded individuals a meaningful opportunity
to present their objections, as required by Mullane, 339 U.S. at 314. For this reason, the notice
violated the due process clause.
Next, the City did not notify the owners sufficiently far in advance of the hearing to allow
them time to obtain the kind of evidence necessary to challenge the assessments. The owners
claim that the time between receipt of the notice from the City, mailed May 12, 2011, and the
June 1 hearing was too short to obtain an appraisal. Respondent Enid Duncan; for example,
stated at the hearing that due to " the short amount of time that we have" she had not yet obtained
an appraisal of her property. CP at 2143. One Council member acknowledged prior to the vote
to confirm the assessment roll that the time provided was " insufficient for anybody to be able to
get an appraisal in a 15 -day period of time in a commercial application. "9 CP at 2301. The
attorney or the City responded that the property owners had known for three ears that the	Y Y P p p Y Y
project was in the works and that assessments would eventually be imposed.
The court in Time Oil Co. v. City of Port Angeles, 42 Wn. App. 473, 475, 481, 712 P.2d
311 ( 1985), expressed similar reasoning in refusing to hold arbitrary and capricious a city' s
denial of a continuance, requested for the purpose of obtaining an appraisal:
9 The record does disclose that one protestor, Pastor Stephan Janho of the Edgewood Bible
Church, obtained a professional appraisal 'on May 31, 2011, that explicitly gave an opinion as to
special benefit. That protest is not before tits because the Council ultimately sustained it in part
and Janho did not appeal. The fact that one protestor succeeded in obtaining an appraisal the day
before the hearing does not establish that the owners had sufficient notice.
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No. 42842 -3 -II
The original assessment, received by Time Oil in November 1979, differed from
the final assessment [ of $20, 133. 32], received by Time Oil in April 1981, by less
than $ 600; thus, Time Oil had been on formal notice of the assessment amount for
almost 18 months. The council understandably was motivated to move the LID
process to a conclusion. It considered the circumstances surrounding Time Oil's
request; there was certainly room for two opinions concerning it.
In the present appeal the preliminary estimate of assessments, made at the formation of
the LID, is not in the record. Respondents George and Arlyn Skarich, however, included a copy
of their preliminary estimate with their protest to the examiner. Their final assessment of
51, 022 exceeded the preliminary estimate of $16, 515 by nearly $35, 000. Because the final
assessment before the Time Oil court differed from the preliminary assessment by less than five
percent, while the final assessments here amounted to as much as three times the preliminary
assessments, the reasoning in Time Oil is inapposite.
Furthermore, because Time Oil alleged no special benefit at all, the specific amount of
the final assessment had little bearing on the need for evidence to substantiate its protest. In
contrast, many of the protests here allege disproportionate assessment. Thus, the grounds for
objection and the type of evidence necessary to support those objections would not have become
apparent until after May 12, 2011, when the owners learned of the specific amounts assessed
against their properties and had an opportunity to compare their assessments with those of their
neighbors. Unlike in Time Oil, the short time period here between notice and the hearing
effectively crippled many of the protests.
The City relies on its compliance with RCW 35. 44. 090, which requires that the notice be
sent only 15 days in advance of the hearing. Adherence to the requirements of state law,
however, does not alone establish that a city' s procedures for challenging LID assessments
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No. 42842 -3 -II
satisfy due process. 10 Londoner v. City & 'County of Denver, 210 U.S. 373, 386 -87, 28 S. Ct.
708, 52 L. Ed. 1103 ( 1908); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541,
105 S. Ct. 1487, 84 L. Ed. 2d 494 ( 1985) ( noting that "` minimum [ procedural] requirements [ are]
a matter of federal law, they are not diminished by the fact that the State may have specified its
own procedures that it may deem adequate for determining the preconditions to adverse official
action. "') ( quoting Vitek v. Jones, 445 U.S. 480, 491, 100 S. Ct. 1254, 63 L. Ed. 2d 552 ( 1980)
alterations in original). Here, the grounds for a disproportionate assessment challenge would
not have become clear until the owners actually knew the amounts of their assessments and those
of their neighbors. Under those circumstances, due process at least required the City to allow
sufficient time for the owners to obtain an expert appraisal and analysis of the assessment roll.
The constitutional problem is further exacerbated by the City' s apparent failure to timely
make available the information on which Macaulay relied in preparing parcel- specific value
estimates. For example, respondent Docken stated that he did not receive parcel- specific
information until the day of the hearing, and the information consisted of only one page, with no
explanation of how the special benefits were calculated.
The City claims that it promptly provided all requested information. The record contains
a May 18, 2011 e -mail from Edgewood Finance Director and City Clerk Janet Caviezel to
10 We also note that the legislature enacted the current 15 -day notice period in 1929, long before
the Cammack and Abbenhaus courts limited the scope of judicial review to the record created
before the city council. LAws of 1929, ch. 97, §§ 189, 191; Abbenhaus, 89 Wn.2d at 859 -60;
Cammack, 15 Wn. App. at 197 -98. At that time, protestors could obtain a de novo hearing in
superior court, at which they could present evidence not submitted to the city authorities. See,
e. g., In re Schmitz, 44 Wn.2d 429, 432 -33, 268 P. 2d 436 ( 1954); Trautman, supra, at 128 -29.
Thus, because protestors who failed to persuade the city council would have additional time to
adduce evidence in support of their challenges prior to the hearing in the superior court, the 15-
day notice period posed much less of a constitutional problem then than it does today.
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respondent Duncan, informing Duncan as follows: " Mark Bauer forwarded me your request for
the appraisal files for your property. I wanted to let you know that we are working on an
estimated date to receive the files from Macaulay and Associates and will follow -up with a letter
soon." CP at 1179. Thus it appears that, less than two weeks prior to the hearing, interested
property owners had not yet learned when they could expect to receive parcel- specific
information concerning their assessments. At the June 1, 2011 hearing, Macaulay admitted that
much of the information supporting his valuations of particular parcels did not appear in the
report or the worksheets provided to the 'City, and that " we would have .to do a report on it to
really show you." CP at 2214 -15.
Under the totality of the circumstances presented in this case, the owners did not have
notice reasonably calculated, under all the circumstances, to ... afford them an opportunity to
present their objections." Mullane, 339 U.S. at 314. They faced a deprivation of property at the
hands of the government, Mullane, 339 U,S. at 313, and were thus entitled to an opportunity to
present their objections " at a meaningful time and in a meaningful manner." Armstrong, 380
U.S. at 552. Instead, they received notice of large assessments against their property less than
three weeks before the hearing. At least one assessment far exceeded the initial estimate and the
time until the hearing did not reasonably suffice to obtain the type of evidence demanded at the
hearing and necessary to mount a successful challenge in the courts. The notice, furthermore,
misled them as to the type of evidence they could present. These procedures denied respondents
the fair hearing to which due process entitles them.11
11 The respondents' remaining due process arguments are not well taken. The rule in Mullane
and related cases did not require the City to notify property owners of the legal standards the
examiner would apply, such as the Abben -haus presumptions and the heightened standard of
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H. Even If the Defects in the Notice were Jurisdictional, Property Owners Other Than the
Respondents Waived Their Challenges to Them
The owners allege that " cumulative due process and notice violations" resulting from the
City' s protest procedures amount to a " jurisdictional" defect that makes the entire " assessment
roll null and void as to all LID property owners," not just those who timely protested and
appealed. Br. of Resp' t Docken at 15.
The violation of a constitutional right does not necessarily create a jurisdictional defect.
Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 237 n.7, 119 P.3d 325 ( 2005).
Instead, a jurisdictional defect is one going " to the underlying legality of the entire LID."
Tiffany, 155 Wn.2d at 235 -36. Our Suprerhe Court has found a jurisdictional defect when a city
failed to give statutory notice of proceedings to confirm the assessment roll, when the
improvement was not for public benefit, when improved property was not public property, and
when the property was not subject to an LTD assessment. Tiffany, 155 Wn.2d at 235. We strictly
construe the concept of jurisdictional defect when deciding whether an error or defect falls
within its scope. Tiffany, 155 Wn.2d at 236.
In Tiffany, the heart of the property owner' s argument was that the City assessed a
disproportionate amount against it. 155 Wn.2d at 233. The court held this would not constitute a
jurisdictional defect, because it would not mean that the entire LID was illegal and without basis.
Tiffany, 155 Wn.2d at 237. Here, the misleading and temporally inadequate notice went to every
proof discussed above. Respondents also point out that the ordinance appointing the examiner
did not expressly authorize him to raise a's'sessments, while the public notice and the governing
statute did authorize the raising of assessment levels. While arguably confusing, this disparity
had no effect on either the reasonableness of the notice or the meaningfulness of the opportunity
to be heard.
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property owner, not just those involved in this appeal. It consequently infected the entire LID,
coming closer to a jurisdictional defect than the claimed error in Tiffany.
The defects claimed to be jurisdictional, though, are those of due process. A party may
waive the due process right to a meaningful hearing by failing to timely raise it. See Boddie, 401
U.S. at 378 -79 ( noting that " the hearing required by due process is subject to waiver "); Mellish v.
Frog Mountain Pet Care, 172 Wn.2d 208, 221, 257 P. 3d 641 ( 2011) ( holding that " Frog
Mountain waived its [ failure -of-notice] elate process claim by failing to present it to the superior
court "). Here, the record contains no evidence that any owner assessed under the LID failed to
receive notice of the hearing. Each property owner, therefore, had ample opportunity to register
its objections to the assessments and to any perceived defect in the notice or any procedure, as
many did. Those who received notice of this opportunity should not be able to spurn it and
potentially be able to raise constitutional challenges at some later date after the project is
operating and its financing is in place. For these reasons, property owners other than the
respondents have waived their due process challenges. The flaws in the notice described above,
therefore, require only annulment of the respondents' assessments.
SUMMARY OF HOLDINGS
We hold that procedural irregularities in the Council' s vote to confirm the assessment roll
did not render the ordinance invalid; that, except for the oversized pipes, the City did not err in
assessing the entire cost of the improvements against the LID property owners; that the City' s
appraisal did not err by taking recent zoning amendments into account; and that the City showed
that the mass appraisal method more fairly reflected special benefits than would the zone and
termini method.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 42842 -3 -II
We also hold that the assessments were calculated on a fundamentally wrong basis
because the City decided to finance excess capacity in the pipes through assessments on LID
property owners who would receive no special benefit from that capacity. Further, we hold that
approval of the final assessment roll was arbitrary and capricious for three reasons: ( 1) some
protests were denied for failing to present evidence which the notice prohibited, (2) the
requirement that each protestor present expert appraisal evidence was erroneous, and ( 3) the
requirement that protestors prove that the assessments rested on a fundamentally wrong basis or
were arbitrary and capricious was erroneous.
Finally, the City deprived property owners of due process because the period from the
notice to the hearing did not reasonably allow property owners time to obtain the type of
evidence demanded at the hearing and because the notice misled as to the type of evidence that
could be presented. However, we hold that these due process claims were waived by all property
owners other than the respondents.
For these reasons, we annul the special assessments imposed against respondents'
properties.
01HANsoN, A.C.J.
B RG , J.
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