A court ruled in their favor, but the North Bend property owners who successfully appealed their sewer assessments may have won the issue in principle only.
The Washington Court of Appeals annulled the city’s sewer assessments on several parcels of land in North Bend’s Utility Local Improvement District #6 (Tanner ULID) in an Oct. 21 opinion, claiming the city erred in changing the sewer system design without adopting a new ordinance. However, it also stated that the annulment would allow the city to reassess those properties.
“The court did leave the door slightly open for reassessment,” Todd Wyatt, attorney for the appealing property owners, wrote in a message to the Record. However, he added that he’s filed a motion to change that.
“We believe the Court should correct that language to hold that, in fact, reassessment cannot occur.”
For now, the appellants named in the opinion, owners of about 20 properties, “do not owe the city anything,” Wyatt said.
Prior to their successful appeal, the property owners had been assessed a combined total of more than $1.5 million, their share of the $19 million cost to build the sewer system out to the community.
The sewer project got its start in 2007, when property owners petitioned the city for sewer service. North Bend officials created ULID 6, to build an $11.7 million vacuum sewer sytem. In 2008, more property owners, part of the upcoming Tanner annexation, wanted to join the ULID. The project was expanded, and city staff and consultants recommended the change to a gravity system, at a revised cost of $19 million.
No ordinance specifying the gravity system was adopted, and that was the basis of the recent appeal.
According to the court opinion, “the city does not have authority to impose assessments for an improvement not created under the ULID statutes.” The opinion also states “Apellants did not have the opportunity to protest the change to a gravity sewer system and its resulting 63 percent cost increase because the city did not pass a new ordinance under RCW 35.43.070 specifying this material change.”
In response, the city argued that the state statute does not prevent a city from approving a cost increase on a construction project.
“We thought it was crystal-clear in the ordinance, that the city could have a gravity system, or it could have a vacuum system,” said North Bend Administrator Londi Lindell, in a phone call last week.
Regarding the court’s opinion, she added, “We don’t really see it as a ruling against the city. It just requires us to do a clean-up of an ordinance.” She anticipated the city council would address the issue in the first quarter of the new year, then re-assess the property owners whose assessments were annulled. The remaining property owners should not be affected.
The Tanner sewer project was completed in 2011, and the city began the assessment process for the 400-plus properties in the ULID. To fairly divide the costs among all property owners, the city chose to assess each property according to the benefit it would receive from having the sewer.
Many owners appealed what they felt were unreasonably high costs, since the combined assessments totaled more than $25 million, over $6 million more than the project cost. Several appealed successfully to lower their assessments before the council approved the final assessment rolls Feb. 21, 2012.