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1994-16577-Ordinance No. 94-025 Recorded 4/22/199494-16577 REVIEWS ,YJ w LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Adding Chapter 12.4 8 , "Local Improvements," to the Deschutes County Code and Declaring an Emergency. ORDINANCE NO. 94-025 0135-1423 WHEREAS, ORS 371.610 authorizes a County governing body to enact its own ordinances to authorize the use of assessments to finance local improvements and provide a procedure for levying such assessments; and WHEREAS, use of assessments to finance local improvements and providing procedures for levying such assessments is a matter of County concern under ORS 203.035; and WHEREAS, it is the desire of the Board of County Commissioners to provide for local improvement projects in a manner that is in compliance with Section llb, Article XI of the Oregon Constitution and its implementing statutes; and WHEREAS, the Board wishes to provide safeguards regarding approval of local improvements specially benefitting undeveloped land; Inow, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Adoption of Chapter 12.48. The provisions of Chapter 12.48, "Local Improvements," attached hereto and incorporated herein as Exhibit "A," are hereby enacted and made a part of the Deschutes County Code. Section 2. Severability. The provisions of this Ordinance are severable. If any section, sentence, clause, phrase, area, overlay or other separable part of this Ordinance or any exhibit thereto is adjudged to be invalid by a court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this Ordinance or any exhibit thereto. Section 3. Effect on Existing Assessments and Pending Assessment Proceedings. Nothing contained herein shall affect the validity of any local improvements ordered prior to the effective date of this Ordinance and all existing assessments for local improvements shall continue to be valid. Nothing in this ordinance shall affect any pending proceeding to authorize local improvements and to assess properties therefore, nor shall any pending enforcement proceeding be affected. Section 4. Emergency. This Ordinance immediate preservation of the public peace, 1 - ORDINANCE NO. 94-025 (4/20/94) being necessary for the health and safety, an Kc A35-1424 emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this 20th day of April, 1994. ATT T: Recording Secr tary OF COUNTY COMMISSIONERS CHUTES�COUNTY, OREGON NANCY P fE ISC"LANGEN, Chair �. le�� TOMITHROOP, z mmissioner BARRY H. SLAUGHTE , Commissioner 2 - ORDINANCE NO. 94-025 (4/20/94) Exhibit A Chapter 12.48 LOCAL IMPROVEMENTS 12.48.010 Purpose. 0135-1425 The purpose of this chapter is to implement the authority granted by the Oregon Revised Statutes to create local improvement districts to construct local improvements, as that term is defined herein, that are to be financed wholly or in part by special assessment against benefitted property and to provide a procedure for levying, collecting and enforcing payment of such special assessments. 12.48.020 Applicability. This chapter shall apply to local improvements located in unincorporated areas of the county. 12.48.030 Relationship to state law. A. The procedures for making local improvements, as that term is defined herein, shall be those set forth in this chapter, which procedures are adapted from ORS chapter 371. Where there is a conflict between ORS chapter 371 and the provisions contained herein, the provisions of this chapter shall prevail. B. In addition to the provisions of this chapter, the following state statutes shall apply to the assessment of properties for local improvements: ORS 223.205 and ORS 223.210 to ORS 223.295; ORS 223.405 to 223.485; ORS 223.505 through ORS 223.650; ORS 223.770; ORS 287.502 to 287.515 and ORS 288.765. If there is a conflict between the statutes listed in this subsection and this chapter, the provisions of this chapter shall prevail. C. When officials of cities are referred to in the statutes listed in subsection (B) of this section, the corresponding officials of Deschutes County shall perform the required functions. The duties required of the governing body of a city under those statutes shall be performed by the board. 12.48.040 Definitions. As used in this chapter, unless the context requires otherwise the words and phrases are defined as set forth in 12.48.041-101. 12.48.041 Definition - Actual cost. "Actual cost" means all direct or indirect costs incurred by the County to deliver goods or provide services or undertake a capital construction project. The "actual cost" of providing services to a property or property owner includes the average cost or an allocated 3 - ORDINANCE NO. 94-025 (4/20/94) 0135-1426 portion of the total amount of the actual cost whether stated as a minimum, fixed or variable amount. "Actual cost" includes, but is not limited to the cost of labor, materials, supplies, equipment rental, property acquisition, permits, engineering, financing, legal, administration, depreciation, amortization, reserve for delinquencies or defaults, debt service and any other item allowed by law. Administrative expenses include those incurred in preparation for formation of a local improvement district such as meeting with property owners, preparing and processing the feasibility report, providing notice and conducting hearings. 12.48.042 Definition - Assessment for Local Improvement "Assessment for local improvement" means any fee, charge or assessment that does not exceed the actual cost incurred by the county for a local improvement. 12.48.046 Definition - Board. "Board" means the Board of County Commissioners for Deschutes County, Oregon. 12.48.051 Definition - Capital construction. "Capital construction" means the construction, modification, replacement, repair, remodeling or renovation of a structure or addition to a structure, which is expected to have a useful life of more than one year, and includes, but is not limited to: A. Acquisition of land, or a legal interest in land, in conjunction with the capital construction of a structure. B. Acquisition, installation of machinery or equipment, furnishings or materials which will become an integral part of a structure. C. Activities related to the capital construction such as planning, design, acquisition of interim or permanent financing, research, land use and environmental impact studies, acquisition of permits or licenses or other services connected with the construction. D. Acquisition of existing structures, or legal interests in structures, in conjunction with capital construction. 12.48.056 Definition - Engineer. "Engineer" means the county engineer, roadmaster, surveyor or other engineer selected by the county governing body. 12.48.061 Definition - Estimated assessment. A. "Estimated assessment" means, with respect to each property to be assessed in connection with a local improvement, the total 4 - ORDINANCE NO. 94-025 (4/20/94) 0135-1427 assessment that, at the time of giving notice of the assessment and the right to object or remonstrate, the board estimates will be levied against the property following completion of the local improvement. The estimate shall be based on the board's estimate at that time of the actual costs of the local improvement and the proposed formula for apportioning the actual costs to the property. B. Estimated assessment shall be determined by: 1. Excluding from estimated actual costs the estimated financing costs associated with any bonds issued to accommodate the payment of the assessment in installments; and 2. Including in estimated actual costs the estimated financing costs associated with interim financing of the local improvement. 12.48.066 Definition - Final assessment. "Final assessment" means, with respect to each property to be assessed in connection with a local improvement, the total assessment levied against the property following completion of the local improvement. The total assessment shall be based on the actual costs of the local improvement and the formula for apportioning the actual costs to the property. 12.48.071 Definition - Financing. A. "Financing" means all costs necessary or attributable to acquiring and preserving interim or permanent financing of a local improvement. B. The costs of financing may include the salaries, wages and benefits payable to employees of the county to the extent the same are reasonably allocable to the work or services performed by the employees in connection with the financing of a local improvement or any part thereof. However, as a condition of inclusion of any salaries, wages or benefits payable to employees of the county as financing costs of a local improvement or any part thereof, the county shall establish a record keeping system to track the actual work done or services performed by each employee on or in connection with such local improvement. C. Financing costs that are to be incurred after the levy of a final assessment may be included in the final assessment based on the county's reasonable estimate of the financing costs if the county first documents the basis for the estimate and makes the documentation available to interested persons on request. 12.48.076 Definition - Local improvement. "Local improvement" means a capital construction project, or part thereof, undertaken by the county under the authority of this chapter financed by assessments upon lots or parcels that have been benefitted 5 - ORDINANCE NO. 94-025 (4/20/94) by all or a part of the local improvement: 0135-148 A. Which provides a special benefit only to specific properties or rectifies a problem caused by specific properties; B. The costs of which are assessed against those properties in a single assessment upon the completion of the project; and C. For which the property owner may elect to make payment of the assessment plus appropriate interest over a period of at least 10 years. For purposes of this section, the status of a capital construction project as a local improvement is not affected by the accrual of a general benefit to property other than the property receiving the special benefit. 12.48.081 Definition - Owner. "Owner" means a vendee under a recorded land contract or if there is no such contract, the holder of the record title, which vendee or holder has a present interest equal to or greater than a life estate. 12.48.086 Definition - Road, county road and public road. "Road," "county road" and "public road" have the meanings given those terms in ORS 368.001. 12.48.091 Definition - Structure. "Structure" means any temporary or permanent building or improvement to real property of any kind, which is constructed on or attached to real property, whether above, or beneath the surface. 12.48.096 Definition - Undeveloped land. "Undeveloped land" means a lot or parcel with no improvements or with improvements that constitute less than 25 percent of the land value. 12.48.101 Definition - Value. "Value" means the real market value of property or improvements, as shown by the most recent valuation by the county assessor or by evidence of recent sales of comparable property in the same development. 12.48.110 Petition or resolution for improvement of roads in unincorporated areas. A. Proceedings to cause any local improvement to be made or constructed in an unincorporated area may be initiated by the board by resolution or by a petition signed by not less than 60 percent of the owners of the land representing not less than 60 percent of the land 6 - ORDINANCE NO. 94-025 (4/20/94) ")135--1429 abutting on the proposed local improvement and presented to the board asking for the local improvement. B. The resolution or petition shall indicate where the proposed local improvement would be made and describe the nature of the local improvement desired. 12.48.120 Signers of petition and objection in event of cotenancies. In case of tenants by the entireties, joint tenants or tenants in common, the parcel of land is considered as having one owner, which owner shall be deemed to have signed the petition provided for in section 12.48.110 or the objection provided for in section 12.48.160 only if every cotenant of the parcel has signed. Signatories on behalf of corporate owners must include a resolution of the board demonstrating authority. 12.48.130 Designation. The properties that are to be assessed for part or all of the cost of a public improvement shall be included within the boundaries of, and known together as a local improvement district or LID. In addition, the property on which the public improvement is to be located and such other incidental properties as necessary for a logical boundary may be included. 12.48.140 Filing fees. The board may by resolution or order adopt filing fees and deposit requirements for petitions for local improvements. 12.48.150 Investigation of feasibility; estimation of cost of local improvement; assessment by engineer. A. When the resolution is adopted or the petition is filed with it, the board shall refer the resolution or petition to the engineer, who shall investigate the proposed local improvement. If the local improvement is feasible, either as proposed or as modified under section 12.48.150(B), the engineer shall make an estimate of the cost of the local improvement and report the same to the board. T h e engineer's report may consider financial, land use and assessment apportionment aspects of feasibility of the project as well as technical feasibility. The engineer may consult with the assessor's office, planning division or county counsel's office and any other office as necessary. In addition, the engineer may solicit from owners of affected properties and other parties such information as he deems necessary to complete the report required by this section. B. If initiation was by resolution, the engineer may propose modifications to the scope of the proposed local improvement if in his judgment modifications are necessary to make the project feasible. C. If the local improvement is to be paid for in whole or in 7 - ORDINANCE NO. 94-025 (4/20/94) 0135-1430 part by special assessments against property benefitted by the local improvement -- the engineer shall include in the report: 1. A map or plat showing the general nature, location and extent of the proposed local improvement and of the proposed local improvement district; 2. A description of the work to be done, including where appropriate preliminary plans and/or specifications; 3. An estimate of the probable actual cost of the improvement, including interim financing; 4. A recommendation as to the method of assessment to be used to arrive at a fair apportionment of the whole or any portion of the probable actual cost of the local improvement to the properties specially benefitted; 5. A description and assessed value of each lot, parcel of land or portion thereof, to be specially benefitted by the local improvement, with the names of the record owners thereof; 6. The estimated assessment or assessments against each lot or parcel; and 7. In local improvements involving undeveloped land, whether the criteria of section 12.48.330(A) have been met. D. Where the local improvement petitioned for includes the construction and installation of lateral sewers, street mains or similar facilities, a separate statement of the estimated cost of and estimated assessment for the construction and installation of lateral sewers, street mains or similar facilities shall be included. 12.48.160 Description of real property - Effect of error in name of owner. A. For the purposes of the engineer's report and any subsequent listing of properties as part of an estimated or final assessment, the real property to be assessed may be described by giving the subdivision according to the United States survey when coincident with the boundaries thereof, or by lots, blocks and addition names, by metes and bounds, or by reference to the book and page of any public record where the description may be found, so that the description can be made certain. B. If the property owner is unknown, the land may be assessed to "unknown owner," or "unknown owners." If the property is correctly described, no final assessment shall be invalidated by a mistake or omission in the name of the owner. Where the name of the true owner, or the owner of record, or any parcel of real property is given, the final assessment shall not be held invalid on account of any error or irregularity in the description if the description would be sufficient in a deed or conveyance from the owner, or is such that, in a suit to 8 - ORDINANCE NO. 94-025 (4/20/94) 431 enforce a contract to convey, employing such description a court of equity would hold it to be good and sufficient. C. Any description of real property that conforms substantially to the requirements of this section shall be sufficient in all proceedings relating to a final assessment for a local improvement, foreclosure and sale of delinquent assessments, and in any other proceeding relating to or connected with levying, collecting and enforcing final assessments. 12.48.170 Engineer's report - Determination to proceed with LID formation - Filing of objections. A. The engineer shall forward his report to the board for consideration. The board may approve the report, modify the report and approve it as modified, require additional or different information or abandon the project. B. If the board approves a report, it shall enact an order creating and describing the local improvement district, declaring its intention to make the local improvement, providing the manner and method of carrying out the improvement, setting a public hearing on the improvement and directing that notice be given of the public hearing. Written notice containing the information set forth in section 12.48.170 of this chapter shall thereupon be mailed to the owner of each lot or parcel to be assessed for the proposed local improvement. C. Owners shall have the right to object to the further prosecution of the local improvement either by filing with the board a written objection within 20 days after the mailing of the notice or by oral testimony at the hearing, the date of which shall be not less than 20 days after the date the notice was mailed. 12.48.170 Notice contents. The hearing notice shall contain the following information: A. A general description of the proposed local improvement and of the local improvement district. The description need not be by metes and bounds and shall be such that an average person can determine from it the general location of the property and shall include a listing of the affected parcels or lots; B. A statement that an engineer's report has been filed for the proposed local improvement and that the report is on file and subject to public examination; C. The estimated cost of the local improvement and the amount of the estimated assessment against the land of the owner; D. The time and place of a public hearing on the improvement to hear objections; E. A statement explaining the remonstrance process; and 9 - ORDINANCE NO. 94-025 (4/20/94) 0135-1432 F. A statement that a single owner of more than three lots or parcels to be assessed will be required to furnish security in the amount of 110 percent of the estimated assessment for each lot or parcel held by the owner in excess of three lots or parcels. 12.48.190 Mailing of notice. Notice required to be sent to the owner of a lot affected by a proposed estimated or final assessment shall be addressed to the owner or the agent of the owner. If the address of the owner or of the agent of the owner is unknown, the notice shall be addressed to the owner or the agent of the owner at the address where the property is located. Any mistake, error, omission, or failure with respect to the mailing shall not be jurisdictional or invalidate the assessment proceedings, but there shall be no foreclosure or legal action to collect until notice has been given by personal service upon the property owner, or, if personal service cannot be had, then by publication once a week for two successive weeks in a newspaper designated by the board and having general circulation in Deschutes County. 12.48.200 Board order for improvement - Recording - Vacation of order. A. At the time of the public hearing, the board shall hear any testimony on the proposed local improvement and may continue the hearing as it deems necessary. If objections are received by the board signed by more than 50 percent of the owners of land representing more than 50 percent of the total amount of the estimated assessment for the proposed local improvement, the proposed local improvement shall, by order of the board, be declared abandoned and no new petition may be filed and no new resolution may be adopted for the local improvement within a period of one year after the date of the order, unless the board exercises its discretion under subsection (C) to modify the proposal in response to the testimony and objections. B. If following the hearing the board determines that the proposed local improvement should be made and the number of objections mentioned in this section has not been received, the board may at its discretion, by order describing the land to be assessed, direct the local improvement to be made by contract or by force account. If by contract, it shall be awarded in the same manner as provided for other contracted county road improvements. C. Following the hearing, the board may modify the proposed local improvement, the estimated cost, the assessment method or the estimated assessments in response to information received and objections raised, in which case an additional hearing shall be noticed in accordance with section 12.48.170 to 12.48.200 of this chapter. D. The board can suspend or abandon proceeding with a local improvement at any time up to letting contracts for construction if it determines that the minimum requirements of section 12.48.330(A) are not being met or for any other reason. 10 - ORDINANCE NO. 94-025 (4/20/94) 0135-1433 12.48.210 Recording order with county clerk. A. The board shall cause to be filed in the appropriate lien records in the county clerk's office a copy of the order. Filing of the order shall serve as notice that upon completion of the local improvement described in the order a lien in a fixed amount representing each listed properties' equitable share of the actual costs of the local improvements will be imposed on each of the listed properties. B. If the proposed local improvement described in the order of the board is not commenced within two years after the notice is recorded, the board may by a new order vacate its former order for the proposed local improvement. The board shall record with the county clerk the order vacating the former order for the proposed local improvement. Thereupon the land described shall be free of the effect of the former order. The county clerk shall indorse upon the new order the date of the filing thereof, and shall record and index the same in the lien record referred to in subsection (A) of this section. 12.48.220 Engineer to compile local improvement actual cost - Source of payment - Reimbursement of source; additional work. A. After the local improvement has been completed, inspected by the engineer and accepted by the board, the engineer shall compile the actual cost of the local improvement. Where the local improvement includes the construction and installation of lateral sewers, street mains or similar facilities, the engineer shall separately compile the total cost of those local improvements. B. Payment of the cost of the local improvement other than for the construction and installation of lateral sewers and street mains or similar facilities shall be made from the general road funds, from any funds available for the construction or improvement of county roads or from revenues available from interim financing methods authorized by law. Payment of the cost of the construction and installation of lateral sewers and street mains or similar facilities shall be made from any funds available to the county for such improvements. C. The funds expended for the local improvement shall be reimbursed or the local improvement warrants shall be retired to the extent of the proceeds of an assessment against the land benefitted by the local improvement, but no estimated or final assessment shall be made against any operating railroad right of way without the consent of the owner thereof. The final assessment shall assess each landowner a portion of the cost of the local improvement corresponding to the relative benefit to the land of the landowner from the local improvement. D. All of the cost of improvements within intersections connected with any local improvement under this chapter may be borne by the county. 11 - ORDINANCE NO. 94-025 (4/20/94) 0135-1 d34 E. Unless notified to the contrary by the owner prior to the acceptance of bids for local improvements under this chapter, an existing driveway shall be reconstructed to the property line to conform with the new grade. Additional driveways or other road connections, including retaining walls, may be constructed simultaneously with the local improvements when a written request is filed with the board prior to the acceptance of bids by the affected abutting landowners. The cost of the driveway and all requested work shall be charged to the abutting owner and added to the final assessment against the land of the owner. 12.48.230 Allocation of costs of sidewalk or curb construction and other improvements. Notwithstanding any provision to the contrary in this chapter, the cost of construction of sidewalks under this chapter shall be assessed in proportion to the front footage of the land or otherwise, as provided in those sections, to the owners of land abutting on the side of the street or road on which the sidewalks are constructed and fronting on such sidewalks. The cost of construction of all other local improvements under this chapter shall be assessed in the manner provided in this chapter, to the owners of land benefitted by the local improvement. 12.48.240 Engineer to ascertain assessment - Hearing on objections - Board order. A. The engineer shall ascertain the amount of the final assessment against each parcel of land assessed for the local improvement and report the same to the board. B. The board by order shall thereupon set the time and place for a hearing of objections to the final assessments as fixed in the report of the engineer. C. Not less than ten days prior to the date of the hearing, the board shall mail to the owner of each property proposed to be assessed, at the address of the owner as shown on the petition or on the latest tax roll of the county, a written notice of the time and place for the hearing of objections and of the amount of the proposed final assessment against the land of the owner. D. After hearing any written or oral objections, the board shall by order, listing and describing each property to be assessed and listing and describing the ownership of each such property, determine from the evidence submitted the amount of the final assessment against each individual listed property. The order shall certify the amount of the final assessment against each listed individual property. In addition, the order shall (1) specify the terms for installment payments and, subject to section 12.48.260, the date that payments or applications for installment payments are due; (2) order in accordance with ORS 223.210 that notice of the final assessment be published; (3) order in accordance with ORS 223.210 that the director of public works mail to the owners of the assessed properties notice of the final 12 - ORDINANCE NO. 94-025 (4/20/94) 0135-1435 assessment and an application to finance the local improvements; and (4) direct that the list, excluding any property known to be subject to bankruptcy proceedings, be filed in the appropriate lien docket of the county. 12.48.250 Recording of final assessment - Lien. A. After passage of the order determining the final assessments, the board shall cause the list of assessed properties, excluding any properties known to be subject to bankruptcy proceedings, to be filed with the county clerk for entry in the approprate lien docket. The list shall include a statement of the amounts assessed against each lot or parcel, the name of the owners, the date of the order levying the assessment and the date on which payment or application for installment payment is due. The county clerk shall indorse thereon the date of the filing thereof and record and index it in the county lien docket. B. For properties known to be subject to bankruptcy proceedings, the lien may be imposed separately consistent with the requirements of applicable bankruptcy law. C. Upon such entry in the lien docket, the final assessments and interest are a lien upon the land against which the same are assessed. Each lot or parcel is deemed to be benefitted by the local improvement to the full amount of the final assessment levied thereon. The lien shall have priority over all other liens and encumbrances whatsoever to the fullest extent provided by law. D. No transfer, sale or division of any such lot or parcel, or change in the legal description thereof, in any way divests the lien from the original parcel and the whole thereof. Failing to enter the name of the owner or a mistake in the name of the owner does not in any way render void any estimated or final assessment and does not in any way affect the lien on the land described. E. All payments shall be entered in the lien docket and shall discharge the lien to the amount of such payment. Upon payment of the final assessment in full, the board shall satisfy the same by a notation in the lien docket referred to above, and the parcel of land charged with such assessment is thereby discharged from the lien. 12.48.260 When assessment due, payable and delinquent - Interest - By whom collected. A. Except as provided in subsection (B) of this section, 30 days after the final assessment is certified, the entire amount against each lot or parcel shall be due and payable at the office designated by the board; and if not so paid, shall be delinquent from that date and shall bear interest at a rate established by the board. B. The owner of property assessed under this chapter shall have the right to apply for installment payment of the assessment as provided in ORS 223.210. Notwithstanding ORS 223.210(2), unless otherwise stated in the order of final assessment, the time period for 13 - ORDINANCE NO. 94-025 (4/20/94) 0135-1436 making application for installment payments shall be within 30 days after the publication of notice of assessment. In no case shall the deadline for application for installment payments be fewer than 10 days after the publication of notice of assessment. C. The provisions of ORS 223.205 and 223.210 to 223.295 (Bancroft Bonding Act), 223.770 relating to the assessment of property benefitted by public improvements and to the issuance of bonds and other obligations for the cost of the improvements, the provisions of ORS 287.502 to 287.515 relating to the issuance of improvement warrants by cities, and the provisions of ORS 288.165 relating to interim financing shall apply insofar as practicable and applicable in relation to the assessment by the county of the cost or any portion of the cost of local improvements against the property benefitted in accordance with this chapter and to the issuance of bonds and other obligations by the county. However, notwithstanding the provisions of ORS 223.295 issuing bonds and other obligations under the provisions of this section, a county may incur indebtedness to an amount not exceeding .0375 of the latest real market valuation of the county. D. Where, in ORS 223.205 to 223.295, 223.770 and 287.502 to 287.515, officials of governmental units or cities are referred to, the corresponding officials of Deschutes County, where applicable, shall perform the required functions. The duties required of the common council, board of trustees, or other governing body of a city shall be performed as to this section by the board. The duties required of the auditor, clerk or other officer charged with keeping the records of a city shall be performed as to this section by the county clerk. The duties required of the mayor or other executive head of a city shall be performed as to this section by the chairman of board. The duties of the city treasurer shall be performed as to this section by the county treasurer. 12.48.270 Errors in assessment calculation or determination. If the county finds that there has been an error in the calculation of the assessment or in any other aspect of the certification of the assessments, the board may amend the order levying the assessments to correct such errors; cause the necessary correction to be made in the county lien docket; and send a corrected notice of assessment by mail. 12.48.280 Deficit assessments or refunds when initial assessment based on estimated cost. If it is found that the amount of the assessment is insufficient to defray the expenses of the local improvement, the board may, by motion, declare such deficit and declare a deficit assessment and shall mail notice of the hearing to owners of the affected property. After such hearing, the board shall make an equitable deficit assessment, by order, which shall be entered in the appropriate county lien docket as provided by this chapter; and notices of the deficit assessment shall be mailed and the collection of the assessment shall be made in 14 - ORDINANCE NO. 94-025 (4/20/94) 0135-1937 accordance with this chapter consistent with the collection of the original assessment. 12.48.290 Rebates. If for any reason the County collects more than is due under this chapter or any order of the board authorized herein, then the board must ascertain and declare the same by order; and when so declared, the excess amounts must be entered on the lien docket as a credit on the appropriate assessment. In the event that the assessment has been paid, the person who paid the same or his legal representative, shall be entitled to the repayment of such rebate credit, or portion thereof, that exceeds the amount unpaid on the original assessment. Notice of the rebate shall be sent to the person who paid the amount at the person's last address as shown on the LID records of the county. If within 60 days the person cannot be located, payment shall be made to the current owner of the property from which overpayment arose without recourse against the county by the original payor. 12.48.300 Curative provisions. No assessment shall be rendered invalid by reason of a failure of the report to contain all of the information required by this chapter; or by reason of a failure to have all of the information required to be in the order authorizing improvement, the order levying assessments, the lien docket or notices required to be published or mailed; nor by the failure to list the name of, or tax list of, or mail notice to, the owner of any property as required by this chapter; or by reason of any other error, mistake, delay, omission, irregularity, or other act, jurisdictional or otherwise, in any of the proceedings or steps herein specified, unless it appears that the assessment is unjust in its effect upon the person complaining; and the board shall have the power and authority to remedy and correct all such matters by suitable action and proceedings. 12.48.310 Remedies. Actions of the board pursuant to this chapter are subject to judicial review exclusively by writ of review in accordance with the procedures in ORS 34.010 to 34.100. Review of an order of the board directing that an improvement be made or levying an assessment may be commenced only by a property owner who has filed a written remonstrance or objection or who has remonstrated or objected in person at a hearing before the board as provided in this chapter. Failure to so remonstrate or object shall constitute a waiver and failure to exhaust administrative remedies. 12.48.320 Collection. A. An assessment or installment payment is delinquent from the date it is due as ordered by the board or specified by the treasurer. Delinquencies shall accrue interest at a rate specified by the treasurer. If any installment payment remains delinquent for a period 15 - ORDINANCE NO. 94-025 (4/20/94) 1135--1438 of one year, the entire outstanding assessment amount shall then be accelerated and become due along with any interest and penalties. B. If any installment on any lien bonded as provided by law remains delinquent for a period of one year from the time it became due and payable, or at any time after 60 days from the time it became due and payable if not bonded, the county may order the initiation of foreclosure proceedings against the affected property. C. The order shall: (1) list the person or persons in default and the description of the property or properties on which the sum or sums are owing; (2) state the sums due, including principal, interest and any late payment penalties or charges for each property in default; (3) declare the entire balance of the assessment to be due and payable at once; and (4) direct that all unpaid assessments, interest and penalties be collected in any manner provided by law. D. Enforcement of assessment liens and collection shall be carried out in conformance with ORS 223.505 to 223.650. 12.48.330 Minimum requirements for local improvements involving undeveloped land. A. Prior to approval of local improvements specially benefitting properties that are predominantly undeveloped, the board shall subject to subsections (B) and (C) of this section find that each of the requirements listed in this subsection (A) has been met or will be met prior to commencement of construction: 1. The value of the land and improvements for each of the lots or parcels to be assessed, other than those held by public agencies, exceeds the assessment by a ratio of no less than 2:1; 2. Any lots or parcels requiring conditional use approvals for dwellings in residential subdivisions are subject to clear and objective approval standards, and it can be demonstrated that there is a reasonable expectation that dwellings on such parcels can be approved; 3. All services (electricity, water, telephone, sewer, if applicable) have been installed in the right of way adjacent to the lot or parcel; 4. No lots or parcels to be assessed are subject to land sale contracts or are encumbered by a blanket mortgage, trust deed or land sale contract; 5. Proof of payment of all current and prior years' ad valorem taxes, interest and penalties for 90 percent of the lots in the development proposed to be assessed and 100 percent of the lots or parcels held by a developer; 6. Security in accordance with section 12.48.340 will be posted by the owner to cover 110 percent of the amount of the estimated 16 - ORDINANCE NO. 94-025 (4/20/94) 11135-1439 assessment for each lot or parcel in excess of three lots or parcels held in single ownership. For purposes of this subsection, separate properties each held in the names of separate spouses will be deemed to be held in single ownership. In addition, properties held in the name of a closely held corporation will be deemed to be held in the name of the principal shareholder. For purposes of this section, the board retains the right to ignore what it regards to be sham transactions the purpose of which it finds to be to evade this provision. B. In addition, the county may require submission of such additional information as it deems necessary, such as but not limited to financial statements, credit reports, title reports, etc., to evaluate the financial viability of the project and the risk to the county. C. The board may at its discretion allow for a variance from any of the standards of this section if it determines, based upon the totality of the circumstances surrounding the LID, that risk to the County would not be appreciably heightened by relaxation of the standard in question. D. In any event, notwithstanding that the minimum standards of this section have been met, the board may exercise its discretion to refuse to proceed with the local improvements if it concludes that the financial risks to the county of proceeding are too great. 12.48.340 Interim security. A. Security required by section 12.48.330 shall take the form of cash or a certificate of deposit deposited with the county or an irrevocable letter of credit in a form and issued by a financial institution acceptable to the county for 110 percent of the amount of the estimated assessment on each lot or parcel subject to this requirement. B. Such security shall be held for the period between commencement of construction until 90 days after the lien of the final assessment attaches to the subject property, unless the security is resorted to under subsection (C) of this section or the board abandons prosecution of the local improvement. C. The security shall serve as collateral for the owner's ability to provide a lien to the county at the completion of construction of the local improvements. If the posting party is not able to provide the county with a lien due to the stay of bankruptcy at the completion of construction of the local improvements, the county may (1) find the owner to be in breach and resort to the security for payment of the final assessment; or (2) use the security as collateral for purposes of seeking relief from the stay of bankruptcy so as to allow assessment of the subject property or properties with the final assessment for the local improvements. 17 - ORDINANCE NO. 94-025 (4/20/94) X135-14Np D. The security and an agreement reflecting the terms of this section shall be in place prior to the awarding of contracts for construction of the local improvement. E. Cash deposited with the county shall be deposited in an interest bearing account, which interest shall be credited to the owner. F. To the extent that the security offered is segregable, the security will be released to the owner to reflect any reduction by bona fide sale in the number of lots or parcels held by the owner prior to commencement of construction. 18 - ORDINANCE NO. 94-025 (4/20/94)