The city council may establish the grade of any street when such grade has not been
established, and may by vote of two-thirds (
2/3
) of the members of the council change the grade of any street after such grade has
been established. Accurate profiles of the grades of all streets shall be made and
kept in the department of public works. Before any ordinance is passed providing for
a change of grade on any street or alley, the city engineer shall notify by mail all
owners of property abutting on the street when the proposed grade change is to be
made, so far as the owners can be readily ascertained by the city engineer.
Whenever the grade of any street shall be established or changed by the city council,
the owner of abutting property may file with the city clerk, within twenty (20) days
after the city council votes to establish or change the grade of a street in front
of an abutting property, notice that the owner of the abutting property will claim
damages by reason of the establishment or change of grade in front of the owner's
abutting property, giving the description of the land and the buildings thereon, together
with the amount of the value of such land and buildings, in the owner's judgment,
and the amount of the alleged damages which such establishment or change of grade
will, in the owner's judgment, cause to the owner's land and buildings, which notice
shall be sworn to and shall be accompanied by the certificate of the city assessor
of the city of the value in the city assessor's judgment of such land and buildings,
and of the damages which in the city assessor's judgment such establishment or change
of grade will cause to the land and buildings and the city assessor shall examine
said buildings and land, and the change of grade, as so voted, and make the requested
certificate pursuant to the request of the owner of such property. After the expiration
of the twenty (20) days and within thirty (30) days after the expiration of the twenty
(20) days, if the city council shall, from the amount of damages claimed by such notices,
deem it unwise to establish such grade or to make such change of grade of such street,
it may reconsider the vote by which such establishment or change of grade was made,
which reconsideration of such vote shall be by a majority of all the members of the
city council. But if no such reconsideration of such vote shall be had within fifty
(50) days after the vote of the city council so establishing or changing the grade
of the street, where damages are so claimed, or if on such reconsideration two-thirds
(
2/3
) of the members of the council shall again vote for such establishment or change
of grade, then after the expiration of six (6) months after the work of grading such
street shall have been fully completed, the city council shall appoint five (5) free-holders
of the city, no two (2) of whom shall reside in the same ward, as commissioners, to
view the premises and to ascertain and award the amount of damages and compensation
to be paid to the owners of such abutting property and permanent buildings who have
filed the sworn notices and certificates of such city assessor required herein, and
to assess the amount of such damages and compensation upon the lands and property
to be benefited by the improvement, and in proportion to the benefits to be received
by each parcel and without regard to a cash valuation. It shall take at least four
(4) of these commissioners to make any award of damages. The commissioners shall be
sworn by the clerk or any officer authorized to administer oaths, to discharge their
duties as such commissioners in the matter, with fidelity and impartiality, and make
due return of their action to the city council.
They shall give notice by two (2) publications in the official paper of the city that
they will, on a day designated in such notice, which shall be at least ten (10) days
after the first publication of such notice, meet at a place designated in the notice
on or near the lands and buildings which it is claimed shall have been damaged by
the establishment or change in the grade of such street, and view the same, and ascertain
and award therefor compensation and damages, and view the premises to be benefited
by such improvement, and assess thereon, in proportion to benefits, the amount necessary
to pay the compensation and damage, and that they will then and there hear such allegations
and proofs as interested persons may offer, and the commissioners shall meet and view
the premises pursuant to such notice, and may adjourn from time to time after having
viewed the premises, and may for the hearing of evidence and the preparation of their
award and assessment, adjourn or go to any other convenient place in the city, and
may have the aid and advice of staff of the department of public works and of any
other officer of the city. After viewing the premises, and hearing the evidence offered,
the commissioners shall prepare and make a true and impartial appraisement and award
of the compensation and damages to be paid to each person whose land or buildings
shall have been damaged by the establishment or change of grade of the subject street.
But if the remainder of the land or of the property on which the subject buildings
stand, or the remainder of the lot or parcel connected therewith, shall be benefited
by such establishment or change of grade of the street, then the commissioners, in
considering and awarding compensation and damages, shall also consider, estimate and
offset the benefits which will accrue to the same owner in respect to the remainder
of the same property, and award the owner only the excess of the compensation or damages
over and above such benefits. The commissioners shall then assess the amount of such
compensation and damages so awarded upon the land and real property benefited by such
change of grade, and in proportion to the benefits, but in no case shall the amount
of the assessment exceed the actual benefit to the lot or parcel of land, or other
real property so assessed, deducting therefrom any damages or injuries to the same
parcels which are less than such benefits, and assessing only the excess, and prepare
and report to the city council their appraisement and award, and if, in the judgment
of the commissioners, the whole amount of such compensation and damages, together
with the cost of making such improvement, shall exceed the actual benefit to the specific
property subject to assessment, they shall so indicate in their report, and shall
state the amount of the excess. The commissioners shall also report to the city council
an assessment list containing their assessment of such compensation and damages, or
so much thereof as shall not exceed the actual benefits to the property so assessed,
which list shall contain a brief description of each tract or parcel of real property
assessed, the name or names of the owner or owners thereof, if known, and the amount
assessed thereon and the amount of the excess of such compensation and damages aforesaid,
which they shall return unassessed. The report shall be presented by the commissioners
to the city clerk of the city, who shall give notice by one (1) publication in the
official paper of the city that the report and assessment list will be presented to
the city council for confirmation at the next meeting or session of the council occurring
at least one (1) week after the publication of the notice, at which meeting or at
any subsequent meeting or session of the council, the city council may act upon the
report and hear any complaint touching any award or assessment, or it may refer the
matter to a committee of the council to hear any complaints and report thereon. The
council may confirm the award and assessment, or either, or send the same back to
the commission for further consideration; and the commissioners may in such case again,
upon giving notice, published once in the official paper of the city, meet at any
time and place to be designated in the notice, which time shall be at least two (2)
weeks after the publication of the notice, and hear any further evidence that may
be adduced by interested persons, and may adjourn from time to time, and may correct
any mistakes in the award and assessments and alter and revise the same as they shall
deem just and again report the same to the city council, who may thereupon confirm
or annul the same, or the city council may appoint a new commission, with like powers,
duties and obligations of the first commission to make such assessment and awards,
and to report the same to the city council in like manner that the first commission
might do, and when the report and assessment lists are finally confirmed by the city
council, such confirmation shall make the award and assessment final and conclusive
upon all parties interested. The city council shall proceed, at the same time or any
subsequent meeting, to levy the assessment upon the several parcels of land described
in the assessment list reported by the commissioners in accordance with the assessment
so confirmed, and cause to be made, and adopt, an assessment roll of the same which
may be in any form which the city council may adopt, and from which award and assessment
as so confirmed by the city council the owner of an affected parcel may appeal to
district court by serving notice of appeal upon the mayor or the city clerk within
thirty (30) days after the city council has adopted the assessments and by filing
the notice with the clerk of district court within ten (10) days after its service;
and the city clerk, under the instruction of the city council, shall make and prepare
all forms necessary to carry out the provisions of this section. Provided, that no
award shall be greater than the amount so claimed in the sworn notice filed with the
city clerk. Provided further, that the damages and compensation to be awarded shall
be the damages and compensation which shall be apparent at the end of six (6) months
after the final completion of the work of the grading of the subject street. (Code
1960, As Amend., § 578.010; 2014-Or-106, § 2, 12-5-14, eff. 1-1-15)
