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Ordinance No. 98-12 CITY OF TIGARD ORDINANCE NO. 98-/v1 AN ORDINANCE OF THE CITY OF TIGARD, OREGON, SPREADING THE ASSESSMENTS AGAINST BENEFITTED PROPERTIES IN THE DARTMOUTH LOCAL IMPROVEMENT DISTRICT; DIRECTING THE ENTRY OF THE ASSESSMENTS IN THE CITY LIEN DOCKET AND THE COUNTY LIEN RECORDS; AND SETTING THE INTEREST RATE FOR DELINQUENT INSTALLMENT PAYMENTS AND DECLARING AN EMERGENCY. WHEREAS, the City Council finds that: 1. The Dartmouth Local Improvement District was created by Ordinance No. 84-14, adopted in February 1984, and Ordinance No. 84-17, adopted in April 1984, and amended by Ordinance No. 88-08 in May 1988. The Local Improvement District was created for the purpose of financing street improvements in or near I-5, Highway 217 and Pacific Highway. 2. The improvements were made in accordance with the City's plans and specifications for the project and are now complete. 3. The total cost of the improvements is $4,576,837.01. By Resolution No. 98-17, adopted on February 24, 1998, the City Council determined that the benefitted properties would pay one hundred percent (100%) of the total cost or $4,576,837.01. 4. An assessment roll has been prepared listing the assessment for the properties benefitted by M the improvements. Notice of the proposed assessment was mailed to the owner of each iot to be assessed pursuant to Tigard Municipal Code Section 13.04.060(c)(3). 5. A public hearing was held to consider objections to the proposed assessments on March 17, April 14 and May 12, 1998. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1. The final assessment of each property is as shown on the assessment roll, attached hereto and incorporated herein as Exhibit "A". The assessments are spread by tax lot in order to arrive at a just and reasonable apportionment of the cost of $4,576,837.01 between the benefitted properties. The City Council determines that the amount of assessment has been made according to the special and peculiar benefits accruing thereto from the improvement. i Section 2. Within ten days of the adoption of this ordinance, the Finance Director shall send a notice of assessment to each property owner shown on the assessment roll in accordance with Tigard Municipal Code Section 13.04.070. Section 3. The Finance Director shall enter the assessment for each tax lot in the City's lien docket pursuant to Tigard Municipal Code Section 13.04.080 and shall record a lien for each assessment in the County records pursuant to ORS 93.643. ORDINANCE NO. 98-/A Page 1 1 Section 4. Pursuant to Tigard Municipal Code Section 13.04.070(b), within ten days after notice of assessment, the owner of property assessed may file a written application to pay the assessment in installments. Interest will begin accruing on any unpaid portion of the assessment on the 31st day after the Finance Director has entered the assessment in the City lien docket. The interest rate shall be 9% per annum. Section 5. The Finance Director shall file a copy of the ordinance forming the local improvement district and the ordinance spreading the assessment with the director of records and elections of Washington County. Section 6. The City has prepared findings to support the method for spreading the assessment adopted pursuant to this ordinance. The City Council hereby adopts those findings which are attached hereto and incorporated herein as Exhibit "B". Section 7. The City Council finds that it is necessary that the provisions of this ordinance become effective immediately. The interim debt financing for the project is due and payable no later than December 1, 1998. The City needs as much time as possible to refinance these notes. The refinancing into a permanent long term debt instrument will save substantial sums in financing costs. Therefore, an emergency is declared to exist, and this ordinance shall take effect immediately upon passage by the City Council and signature by the Mayor. PASSED: By rn l)('1 +LJ vote of all Council members present after being read by number and title only, this ~ day of , 1998. /U 01) - Catherine Wheatley, City Recorder :Zhl , 1998. APPROVED: By Tigard City Council this y of "-Xze'4~1 Nicoli, ayor Approved as to form: C'y _ttorney nY~., Date j mc(acm/90024!li dassess. or2(5/22/98) ORDINANCE NO. 98J Page 2 Exhibit "A" Dartmouth Street LID Proposed Final Assessment Roll Ordinance No. 98-12 Parcel Dartmouth Dartmouth Net Developable Area Street Street Area (Prior Within Added-Width Center 70-Feet To Added-Width Traffflc Percent LID Rlghf-of-Way Right-of-Way Wetland Rlghl-of-Way Zoning Generation Assessment of Total Boundary Dedicatlon Dedication" Area Dedication Dasi nation Factor Rate Assessment Assessment Tax Map Tax Lot + acres + ecras acres{ acres netacres (trips) (trip-acres Pacific Highway Fronting Parcels 1.3219 0.00000% $0.00 1St 36CD 1700 0.8132 0.8132 C-G 0.00 0.00 0.00000% $0,00 1SI 36CO 1800 0.1738 0.1738 C-G 0.00 0.00 0.00000% $0.00 1St 36CO 1900 0.3349 0.3349 C-G 0.00 0.00 0.00000% $0,00 Costco Parcels 11.8342 22.62696% $1,035,59923 IS1 36CD 2200 6.6800 0.2488 0.2736 - 6.6652 C-G 4.00 26.66 12.74367% $583,266.09 2S1 18A 200 9.7204 4.5514 5.1690 C-G 4.00 ! 20.68 9.08309% $452,333.14 Waratnart Parcels 12.9667 24.79224% $1,134,700.44 1S1 36CO 2000 6.3805 1.3892 1.1221 3.8693 C-G 4.00 15.48 _ 7.39811% _ $3_38,599.47 1St 36CO 4200 0.5935 0.0729 _ 0.1518 0.5146 C-G _ 4.00 2.06 _ 0.98396%_ $45,034.23 1S1 36CO 4300 3.5384 0.0952 1.3353 2.2983 C-G 4.00 9.19 4.39431% T $201,120.21 1S136DC 2503 0.3198 0.3198 C-G 4.00 1.28 0.61144%$27,984.42 1S136DC 2504 0.3167 0.3167 C-G 4.00 1.27 0.60560% $27,7!7.24 1St 36DC 4500 3.8015 0.1794 3.9809 C-G 4.00 15.92 7.61143% 5348,362.87 1S1 360C 4600 1.4904 0.1766 1.6670 C-G 4.00 6.67 3.18740% $145,882.01 Pollock Parcels 7.3265 10.02569% $458,859.66 1St 36DC 4400 1.9109 1,9109 C-G 4.00 _ 7.64 3.65360% $167,219.48 1S1 36DC 4402 0.5279 0.5279 C-G 0.00 0.00 0.00000% $0,00 iS1 36DD 7500 0.3897 0.3897 C-P 1.00 _ 0.39 _ 0.18628% $8,525.91 1S136DD 7600 0.5775 -0.5775 C-P _ 1.00 0.50 _ 0.27603-1 $12,633.67 2S1 IAA 2800 0.1719 0.1719 C-P 0.00 0.00 0.00000% $0.00 2S1 1AA 2900 0.8770 0.8770 C-P 1.00 0.80 0.41918°!. $19,185.30 2S1 IAB 100 3,3425 0.4708 2.8716 C-G 4.00 11.49 5.49059% $251,295.30 Marlin Parcels 22.2569 42.555101% $1,947,677.67 2S1 18A 100 1.5521 0.6575 0.2915 0.6031 C-G 4.00 2.41 1.15313% $52,776.65 2S1 IBA 101 5.8333 0.6080 0.1783 5.0470 C-G 4.00 20.19 9.64989% $441,659.69 2SI1BA 300 14.4087 1.1460 13.2607 C-G _ 4.00 53.04 25.35435% $1,160,427.44 2S1 iBA 401 3.8461 0.5000 3.3461 C-G 4.00 13.38 6.39773% $292,813.90 Dartmouth Street Center 70-Feet Ri ht-ot-Wa Dedication Parcels 0.0000 0.00000% $0.00 isi 36CD 4400 0.6898 0.6898 0.0000 C-G 4.00 0.00 0.00000% $0.00 1S11 360C 4700 0.01'.85 0.0885 0.0000 -G _ 4.00 0.00 0.00000% $0.00 1 C -1 Totals: 68.3889 0.7729 3.9329 9.5228 55.7061 209.21 100.000000!0 $4,576,837.01 v ' A value of zero indicates a non-assessed parcel: 1) at Pacific Highway due to lack of benefit or 2) exempted at inception of LID. 0.5-acre exemption for 2Si I BA 401 Is shown In `Dartmouth Street Center 70-Feet Right-of-Way Dedication' s CITY OF TIGARD DARTMOUTH LOCAL IMPROVEMENT DISTRICT ASSESSMENT FORMULA FINDINGS AND CONCLUSION 1. The Dartmouth Local Improvement District (LID) was formed by the City pursuant to Ordinance No. 84-14 and Ordinance No. 84-17 to construct a roadway within the area bounded by Interstate Five, Highway 217, and Pacific Highway, an area commonly known as the "Tigard Triangle." 2. The Martins were the only property owners within the LID to remonstrate against its formation. They were unsuccessful. 3. The Martins filed a lawsuit challenging the LID formation and the LID pre-assessments. The circuit court ruled in favor of the City on all issues, and the Martins appealed to the Oregon Court of Appeals. 4. The Court of Appeals upheld the City's formation of the LID. But the court found, on its own, that the City had included among its assessed costs charges for improvements on land outside the LID boundaries. On that basis, the Court of Appeals set aside the original pre-assessment as void and remanded the case to the City, with permission to assess for up to the full cost of the improvement. Martin v. City of Tigard, 78 Or App. 181, 714 P.2d 1115 (1986). 5. In 1987 and 1988, the City held hearings on whether, and how, it would proceed with the LID. By Ordinance No. 88-08, the City reaffirmed its decision to proceed with the LID. Pursuant to the same ordinance, the City changed the timing of the assessment from a pre-assessment process to a final assessment process. Under the final assessment process the LID assessments are determined and levied after the completion of construction. 6. In 1994 Dartmouth Street had been constructed and the City was finalizing its acquisition of the right-of-way upon which the street was constructed. Because the completion of that Exhibit B of Ordinance No. 98-LD Page 1 acquisition would allow the City to determine the total cost of the LID, the City turned to an analysis of the assessments by which the LID costs would be spread. The City determined that it did not have the staff expertise necessary to analyze whether the proposed assessment formula set out in the Preliminary Engineer's Report was still sufficient or proper. In an attempt to resolve the assessment formula issue in a matter satisfactory to all major affected property owners, the City proposed and the property owners agreed to a process whereby, with the City's assistance and partial funding, the property owners could develop and recommend to the City their own agreed-upon assessment formula. 7. Beginning in late 1994, and running into 1996, the City and the property owners, sometimes with a mediator and sometimes without, using various negotiation devices, attempted to develop an agreed-upon assessment formula. All of the major affected property owners proposed ® assessment formulas different than that contained in the Preliminary Engineer's Report. Ultimately, the property owners could not agree among themselves as to an assessment formula and the negotiation effort was abandoned. 8. Having determined that it did not have sufficient staff expertise to review and analyze the assessment formula proposed in the Preliminary Engineer's Report, and because all of the major property owners had proposed their own formulas different than that in the Preliminary Engineer's Report, the City decided to obtain the services of an outside consultant. That consultant, the engineering firm of Harper Righellis, was retained to develop a proposed assessment formula. The principal consultant working on the report, Anthony Righellis, has considerable experience with various types of local improvement district assessment methods, having worked as Washington County's Road Engineer and as private consultant. The City gave no direction to Harper Righellis as to whether or not it should recommend the formula proposed in the Preliminary Engineer's Report or some other formula. 9. Harper Righellis analyzed the assessment of costs for the LID, and independently developed and recommended an assessment method that fairly distributes the LID's costs in proportion to the benefits received for each property within the LID. The City received the Harper Righellis Exhibit B of Ordinance No. 98- )a Page 2 1 Report ("the Righellis Report") on March 7, 1997. (Assessment Analysis Report Review Version). 10. The City did not move to the assessment phase of the project until 1998 because it needed first to complete acquisition of the Martin right-of-way, which it ultimately did via settlement of its condemnation lawsuit against the Martins in late 1997. 11. The assessment method proposed by Harper Righellis differed from that contained in the Preliminary Engineer's Report. The Harper Righellis formula was challenged by the Martins on a variety of procedural and substantive bases. 12. The City Council approved Resolution 98-11 on February 17, 1998, adopting proposed assessments consistent with the Righellis Report and setting the date for a public hearing on March 17, 1998. The Council heard testimony on March 17, 1998, continued the hearing to April 14, 1998, and continued the hearing finally to May 12, 1998. The purpose of the hearing was to consider written and oral objections to and comment on the proposed final assessments. Public testimony and evidence were taken at the first two hearings, and the Council provided for the submission of written materials after each of the first two hearings. The record was closed at the May 12 meeting. 13. The Council finds that the only applicable standard to be considered in adopting the assessment formula for the Dartmouth LID is found at TMC 13.04.060(c)(6), which provides, in part, that "The council shall determine the amount of assessment to be charged against each lot within the local improvement district according to special and peculiar benefits accruing thereto from the improvement." 14. Prior to the March 17 hearing, the Martins submitted substantial written materials. At the March 17 hearing, their attorney and consultants presented lengthy testimony. Tony Reghellis was present for that presentation. The Council granted the requests of the property owners supportive of the Reghellis Report to submit written responses to the Martins' materials and presentation. Exhibit B of Ordinance No. 984c) Page 3 The Council further agreed to accept from the Martins any written reply they might have to the proponents' response. A "briefing schedule" was established. The Council also agreed to continue the hearing to April 14 to receive additional testimony. 15. The City's consultant reviewed the Martins' materials and presentation and responded to the key points at the Council hearing on April 14. Property owners supportive of the Reghellis Report also testified. Most of the testimony received after the Martins' initial submittal was rebuttal, and for the most part did not raise new issues. 16. Over the course of the three meetings, and in the process of reviewing the written submissions, the Council weighed arguments raised by the opponent's experts, and countered by proponents' experts and the City's consultant, Righellis. The following is a brief summary of the most important issues raised by the Martins and answered by Righellis and the proponents. This summary is not intended to be all inclusive. The City has adopted the Reghellis Report and the rationale therefor as testified to by Tony Reghellis, and that report and testimony are incorporated herein as if set forth verbatim. a. Proximity Zone Method The opponents raised many technical issues to support using the proximity zone method, as originally proposed in 1984 by R.A. Wright. One of the issues raised was assessment exemptions for areas close to existing and future intersecting streets (corner parcels). Righellis said, as detailed in the Righellis Report, that these corner parcels should be assessed because the benefit provided by Dartmouth Street is overwhelming compared to the benefits provided by the intersecting streets. Another issue raised was that the extension of utilities is more expensive for deeper parcels, and the proximity zone method helps to equalize those differences. Righellis noted that the LID was formed to pay for public improvements whereas the utility costs referred to are private improvements. Further, Reghellis found no supportable rationale for the 3:2:1 "ratio" incorporated into the proposed proximity zone method. b. Trip generation The assessment method contained in the Righellis Report includes a trip generation adjustment based on zoning. Opponents argued that Dartmouth Street is needed for development regardless of the intensity of the use. Righellis countered by saying it is valid to assess based both on need and on use. While all the parcels need the street Exhibit B of Ordinance No. 98- /Q Page 4 r improvements, uses allowed on General Commercial lands can be more intense than those allowed on Professional Commercial lands, so that general commercial properties should be assessed more because they will be receiving more benefit through use. C. Wetlands The opponent's engineer, Ed Christensen, stated that the wetlands located on the Martins property may restrict development and thus reduce the benefit from the street improvement. As Righellis pointed out, all of the properties in the LID contain wetlands, which areas were exempted from assessment. d. Through Traffic The opponents claim that much of the traffic using Dartmouth Street is passing through to other areas. This is a public street, and regardless of where the traffic goes, the properties in the LID still benefit. Without this street, the through traffic would find other routes but the properties that have direct benefit from Dartmouth Street have no alternative. Righellis noted it is common for property owners within an improvement district to fully fund major street improvements that do not serve solely their direct interest. e. Proximity to Existing Roads --The opponents claim that the Harper Reghellis formula fails to make a reasonable adjustment in recognition of the fact that the Martin properties Aft abut 72 na Avenue and, thereby, benefit less from Dartmouth Street and the other properties. The Council was persuaded by the Harper Reghellis analysis that, without Dartmouth Street, there would not have been significant development in the Tigard Triangle, and all properties within the LID benefitted, regardless of their location in relation to pre-existing streets. f. No Special Benefit to Highway 99 Properties The opponents objected to the Harper Reghellis finding of no special benefit for a 10,000 square foot portiop of a tax lot located on Pacific Highway. The Council was persuaded by the Harper Reghellis Report that Dartmouth Street did not provide a special benefit to those properties on Pacific Highway. g. Fairness Righellis agreed with the opponents that "cost should be spread in proportion to benefit received." All of the issues cited above (a-f) relate to the issue of fairness. Again the Council notes the approval standard requiring that properties be assessed according to the specicil and peculiar henefits accruing thereto from the improvement. Righellis told the Council he evaluated seven different methods of assessment in preparing his report, including the "Proximity Zone Method" originally proposed for this District in 1984. For the reasons discussed in the report, Righellis recommended using the "Net Developable Area Method with Zoning- Exhibit B of Ordinance No. 98-101 Page 5 Based Traffic Generation Adjustment." As opponent's engineer, Jerry Palmer, testified in writing and at the March 17 hearing, there is no right or wrong method of assessment, only the search for fairness. The Council was convinced by the analysis in the Righellis Report that the method proposed in 1984 was no longer the best assessment method, in part because the conditions in the area have changed. 17. In all of these issues, the Council fines that the expert arguments presented by Righellis, orally and in the Righellis Report, are reasonable and convincing. We paid attention to, but are not swayed by, the opponent's experts, whom we find to be no more believable than Righellis. The Council notes that Righellis has no direct interest in assessing one property or another, while the opponents clearly have a vested interest in supporting the method that will cost them the least amount of money. Without meaning that the opponents were in any way disingenuous in their efforts, this is a factor in our choice to rely our neutral expert where there is conflicting evidence and opinion. 18. The Council also heard from representatives of other.land owners in the LID, Waremart and Costco, who testified in writing and at the hearing in support of the Righellis report. As with the opponents, these proponents have a vested interest in supporting the method that will cost them the least amount of money. The Council considered their arguments along with those of the opponent and the City's expert. To the extent the proponents' submissions are consistent with the City's decision, they have been relied upon and are incorporated by this reference as if set forth herein. 19, In summary, the City hired a competent, qualified consulting firm which developed a fair and reasoned method of assessment as set forth in the Righellis Report. The opponents have raised several issues, supported by consultants whose job it was to find flaws with the method proposed in the Righellis Report. We accept the Righellis Report because it considers and explains the City's options, and is reasonable and fair in recommending the method of assessment the Council has now selected. AMI Exhibit S of Ordinance No. 98-) a Page 6 20. The Martins have contended that, Ordinance No. 88-08 created a lega',:y binding commitment requiring the City to spread the LID assessments pursuant to the Preliminary Engineer's report, which report was "adopted" by Ordinance No. 88-08. The City has concluded otherwise for several reasons. First, by converting the assessment mechanism from a pre-assessment process to a final assessment method, the City Council by accessity was delaying the initiation of an assessment process until after construction (which had not started in 1988) was finished. Tigard Municipal Code (TMC) 13.04.060(b)(2), which reads today as it did in 1988, provides that the final assessment process "begins after the project is completed and is based on actual cost." (Emphasis added.) Further, TMC 13.04.060(b)(3) allows for the issuance of short term construction financing and provides, in part, "Upon the completion of the improvement, the benefitted property owners will be finally assessed proportionate to the benefits derived from the improvement, (Emphasis added.) Pursuant to these provisions, no method for spreading the assessments could have been established prior to completion of the project. 0 21. The second reason that the City was not legally obligated to spread the assessments pursuant 9ft to the proposed formula in the Preliminary Engineer's Report is found at TMC 13.04.060(c)(2), which provides that after City staff presents the proposed assessments to the Council, the Council "may make modifications." Thus, even if staff had presented assessments calculated pursuant to the proposed formula in the Preliminary Engineer's Report, the City's code (in 1988 and today) provides that the Council may "make modifications." Assuming, for the sake of argument, that when the Council "adopted" the Preliminary Engineer's Report it "adopted" the roc gag i assessment formula, that action cannot be considered as a waiver of the code provision allowing the Council to make modifications to the assessments, once their dollar amounts were determined by the application of a given formula to the total cost of the project. Nothing the Council did in 1988 could be fairly interpreted as a guarantee that the proposed assessments it would nPimately adopt by resolution, and circulate for comment and hearing, were to be pursuant to the proposed formula found in the Preliminary Engineer's Report. 22. The third reason that the City was not legally obligated to spread the assessments pursuant to the proposed formula in the Preliminary Engineer's Report is found at TMC 13.04.060(c)(3)-(6). Exhibit B of Ordinance No. 98-i-a Page 7 Those code sections provide the mechanism whereby the proposed assessments, as initially created by staff and after any modification by the Council, are circulated to the property owners for review and comment. TMC 13.04.060(c)(6) requires that after circulation of the proposed assessments: The council shall hold the public hearing on the proposed assessments to consider those objections filed in writing and may adopt, correct, modify or revise the proposed assessments. The council shall determine the amount of assessment to be charged against each lot within the local improvement district according to the special and peculiar benefits accruing thereto from the improvement. Thus, in 1988 it was a stated legal requirement that, whatever formula the staff and Council ultimately relied upon to create proposed assessments, any proposal had to be circulated to the property owners, and the Council had to consider the property owners' comments on and criticism of that formula. After receiving the written and oral presentations of the property owners, their attorneys and consultants, the only standard by which the Council could determine the final assessments was, and is, "according to the special and peculiar benefits accruing thereto from the improvement." Nothing the Council did in 1988 could fairly be interpreted as a guarantee that its final determination as to the assessments would be pursuant to the proposed formula found in the Preliminary Engineer's Report. In 1988, .the City Council simply did not have the legal authority to establish a final assessment formula before the property owners had an opportunity to be heard. 23. The fourth reason that the City was not legally obligated to spread the assessments pursuant to a formula proposed in the Preliminary Engineer's Report is that all of the affected property owners, asked by the City to present a formula that they supported, offered formulas that were different than that in engineer's report. 24. The Martins have raised a series of objections based upon their reading of the requirements of Article 11 § l lb. of the Oregon Constitution (Measure 5). The 1991 legislature interpreted and implemented the provisions of Measure 5 through a series of statutory additions. Or. Laws Exhibit B of Ordinance No. 9841~ Page 8 Chapter 459. Measure 5 places a maximum allowable property tax that can be imposed by governments other than schools of $10 per $1000 of real market value. The Martins assert that the assessment proposed for the Dartmouth LID is a property tax which is subject to the $10 per $1000 limitation. Measure 5 excludes from the property tax limitation assessments for "local improvements." For an assessment to fall within that exclusion from the property tax limitation it must be for a capital construction project, the costs of which are assessed in a single assessment upon completion of the project, the assessed costs must not exceed the actual cost incurred in the designing, constructing, and financing the project, and the taxpayer must be able to pay the assessment in installments over a period of at least ten years. 25. The Martins do not contest that the project is a capital construction project as defined by Measure 5, or that the costs are being assessed in a single assessment at the completion of the project. 26. The Martins object to the assessment on the basis that the City has included attorney's fees within the assessment costs. Attorney's fees are specifically allowed to be included in the cost to be assessed against property in an improvement district by the City's Code. TMC 13.04.060(a)(1)(G). ORS 310.140(13), added to the ORS by 1991 Or. Laws Chapter 459, defines "actual costs" which can be assessed and excluded from the property tax limit to include all direct and indirect costs incurred by a government to undertake a capital construction project. Attorney's fees are an indirect cost of the project. It is the City's position that it is authorized by TMC and this statute to include attorney's fees within the costs assessed, and that attorney's fees, therefore, are within the scope of "actual costs" for the purpose of the Measure 5 tax exclusion. 27. The Martin's also assert TMC 13.04.070(a)(3)(A), requiring them to waive all irregularities in the proceedings in order to take advantage of the installment payment method, is a limitation which removes this assessment from the local improvement exclusion of Measure 5. The requirement to waive irregularities in the TMC is virtually the same as the language of ORS 223.215(1)(a). If those persons who take advantage of installment financing do not waive their rights to object to irregularities in the proceedings, the council has been informed by its bond Exhibit B of Ordinance No. 98-1G Page 9 counsel that it will be impossible for the City to sell the necessary financing instruments to allow for the long term financing of the debt incurred through this assessment district. The Legislature, through its implementation of Measure 5 in 1991, chose to not repeal ORS 223.215(1)(a). The Council concludes from this that it is the position of the State of Oregon that the requirement of a waiver, as a precondition for installment financing, is not inconsistent with the requirements of Measure 5 allowing the assessment to be excluded from the tax limitation. 28. As shown by the Martin's Exhibit No. 17, at the February 13, 1989, deposition of Robert A. Wright, who authored the Preliminary Engineer's Report, the Martin's attorney inquired as to which assessment formula would be used when the LID project was completed. The City's attorney objected to the question as calling for "rank speculation." He stated that "The City Council will detern-une that after the project is completed." He also said to the Martins' attorney, "you're asking him to say what five elected officials are going to decide sometime in the future." The Council finds that as of February, 1989, if not sooner, the Martins were on notice that it was the City's intention to establish an assessment formula after the project was completed. limb, 29. When the LID was formed in 1984, the City did not include two parcels located within the LID boundaries. Those properties were not included because they were residences that the Council deemed would not benefit from the construction of Dartmouth Street. The Council has decided to treat the Martin residence similarly and it will be excluded from the LID assessment. Exhibit B of Ordinance No. 98- la Page 10