Opinion
No. 40179
Decided January 18, 1967.
Municipal corporations — Special assessments — Power to levy and collect — Section 727.01, Revised Code — Abutting land and land specially benefited — Assessment in proportion to benefits — Suit to enjoin collection — Claim legal requirements not complied with — Burden of proving such claim — Enhancement of value special benefit — Omission of benefited property — Due process and equal protection.
1. Both Section 727.01, Revised Code, and Section 164 of the Columbus City Charter authorize special assessments not only upon land abutting, adjacent and contiguous to a public improvement but also upon other land specially benefited by such improvement.
2. Where lots of the same depth are so located that they are likely to receive comparable benefits from an improvement, apportionment of assessments in proportion to benefits will usually result in assessments also being in proportion to the front feet of such lots; and the mere fact that they are does not indicate that assessments were made on a front-foot basis instead of in proportion to benefits.
3. Where a party seeks, in equity, to enjoin the collection of an assessment on the ground that certain legal requirements were not complied with in making the assessment, such party has the burden of alleging and proving that such requirements were not complied with. (Paragraph three of the syllabus of Bolton v. City of Cleveland, 35 Ohio St. 319; paragraph five of the syllabus of Chesbrough v. Commissioners, 37 Ohio St. 508; and paragraph one of the syllabus of Spangler v. City of Cleveland, 43 Ohio St. 526, approved and followed. Chamberlain v. City of Cleveland, 34 Ohio St. 551, distinguished.)
4. The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community.
5. In order to be entitled to an injunction against any part of an assessment for the cost of a public improvement against a lot, the owner thereof has the burden of proving that the lot was not enhanced in value as a result of the improvement in an amount equal to the amount of the assessment.
6. The omission of benefited property from the area, that encompasses property assessed for an improvement, does not deprive the owner of property, that is assessed, of due process of law or of the equal protection of laws, if there is no showing that the omission was arbitrarily or fraudulently made.
APPEAL from the Court of Appeals for Franklin County.
This action was instituted on May 10, 1961, in the Common Pleas Court of Franklin County by the filing of a petition praying for a permanent injunction against the collection of $20,542.43 of the $229.925.89 special assessments levied by the city of Columbus to pay part of the cost of the $597,213 improvement of Livingston Avenue from James Road to Hamilton Road, a distance of over two miles.
The assessments sought to be enjoined were levied upon 66 lots owned by plaintiffs and those whom they represent. These lots are located between Elderwood Avenue and Hamilton Avenue, a distance of about three-quarters of a mile. Their situation, the situation of the 115 other lots and parcels assessed, and the nature of the improvements are described in part, as follows, in the findings of fact by the Court of Appeals:
"1. Livingston Avenue is a major artery and through street in Columbus, Ohio. In 1961, the project area contained both newly developed residential subdivisions and undeveloped land. Livingston Avenue was formerly a county road having 22-foot pavement with a ditch drainage. The original right of way was 60 feet in width.
"2. The properties assessed fall into two categories: (a) The majority, at least in frontage, abut upon the original 60-foot right of way. The improvement in front of these properties consisted of constructing a 52-foot pavement with curbs and storm sewers. There also was provided a number of individual improvements such as driveways, sidewalks, house drains, sanitary sewer connections, etc. The charges for these were either separately assessed or separately computed. We are concerned only with the assessment attributable to the road improvement itself. (b) The second group of properties, those of * * * [plaintiffs] consists of the first tier of lots in several major subdivisions stretching approximately three blocks along Livingston Avenue. These lots do not abut on the original 60-foot right of way, but rather face upon a dedicated way of up to 170 feet in width. The stipulations and testimony show that the City Planning Commission, acting under its subdivision regulatory power, required each subdivision developer to dedicate 55 feet of land frontage on Livingston Avenue, and to construct within it a residential `service road.' This street serves the first tier of lots in the subdivision. Thus these lots abut directly on a fully paved residential street 25 feet in width. In front of that street was a grass strip about 30 feet in width, which, in turn, was adjacent to the 22-foot pavement and ditch on Livingston Avenue proper.
"3. The improvement in the area of these properties facing on the service road did not, of course, include any driveways, house drains, etc. The original 22-foot pavement was replaced with the 52-foot pavement, curbs and storm sewers (which sewers provide drainage for Livingston Avenue proper but not for the adjacent properties). The intervening `planting strip' was reduced to about 20 feet in width * * *
"4. There is no direct access from the lots to the through traffic portion of Livingston Avenue. Both before and after the improvement, the intervening strip was a physical and legal barrier between the `service' street and the through street. Indirect access to the throughway portion is available at the end of each block, i.e., at the intersection of the service street and one of the side streets which intersects with Livingston Avenue. The lots average about 65 feet in width, and the blocks are between 14 and 18 lots long. The owner of lot 332, Pinecrest No. 2 Subdivision, would apparently travel the maximum distance, i.e., about 900 feet on the service road to the intersection of Yearling Road and then on [ sic] Livingston Avenue proper."
The assessments involved range from slightly under $300 to as high as slightly under $375 per lot.
The Common Pleas Court denied the injunction and dismissed the petition.
Plaintiffs appealed to the Court of Appeals on questions of law and fact.
The judgment of the Court of Appeals (See opinion at 4 Ohio App.2d 234) found for plaintiffs and permanently enjoined collection of the assessments on plaintiffs' lots.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Frick Volotini and Mr. Bruno E. Volotini, for appellees.
Mr. John C. Young, city attorney, Mr. Alba L. Whiteside and Miss Georgena Howell, for appellants.
Plaintiffs contend and the Court of Appeals found that plaintiffs' lots were not "bounding and abutting upon the improvement" of Livingston Avenue. In our opinion, it is not necessary to consider whether they were or were not. The contention, that they were not so bounding and abutting, was apparently made because both Section 727.01 (c), Revised Code, and Section 165 of the Columbus Charter limit use of the front-foot method of assessment to property "bounding and abutting upon the improvement." However, all the evidence, including the resolution declaring the necessity of and the ordinance determining to proceed with the improvement, indicates that the assessments were to be made in proportion to the special benefits resulting from the improvement; and both Section 727.01, Revised Code, and Section 164 of the Columbus City Charter authorize "special assessments" not only "upon the abutting, adjacent and contiguous" but also upon "other specially benefited" land. See Chamberlain v. City of Cleveland (1878), 34 Ohio St. 551 (paragraph four of syllabus); City of Cincinnati v. Batsche (1895), 52 Ohio St. 324, 341, 40 N.E. 21.
The only evidence as to the amounts of assessments on individual lots was an exhibit identified only as a "schedule of assessments."
Because the amount of the assessments on plaintiffs' lots usually equaled about $5 a front foot, and because the amount of the assessments on other lands, admittedly bounding and abutting on Livingston Avenue, usually equaled about $10 a front foot, the Court of Appeals concluded that the front-foot method of assessment had been used. However, no one testified that it had. Further, no records were offered tending to show that that method had been used.
From the resolution, ordinance and the testimony of the city's Chief Engineer, it is established without dispute that $10 represents what the resolution and ordinance refer to as the "rate * * * per assessable unit." The facts, that the number of assessable units assigned to a lot bounding and abutting on Livingston Avenue usually equals about the front feet of that lot and that the number of such units assigned to a lot of plaintiffs' bounding and abutting only on a service road (with four exceptions) usually equals about one-half of the front feet of that lot, do not indicate that assessments were not made in proportion to benefits. The four exceptions demonstrated this. For example, the number of such units assigned to lot 173 in Thunderbird Acres, which bounds and abuts only on a service road, equals only one-fourth of the frontage of that lot. An examination of the "schedule of assessments" indicates the reason for this, i.e., the depth of lot 173 is only 70 feet instead of the usual 120-foot depth of the lots bounding and abutting on a service road.
Where lots of the same depth are so located that they are likely to receive comparable benefits from an improvement, apportionment of assessments in proportion to benefits will usually result in assessments also being in proportion to the front feet of such lots. The fact, that they are, does not indicate that assessments were made on a front-foot basis instead of in proportion to benefits. See Spangler v. City of Cleveland (1885), 43 Ohio St. 526, 537, 3 N.E. 365, quoted infra; Shoemaker v. City of Cincinnati (1903), 68 Ohio St. 603, 613-14, 68 N.E. 1.
The Court of Appeals based its judgment in part upon a conclusion that, in levying the assessments enjoined, Columbus had not complied with certain legal requirements of statutes and of the City Charter.
For example, it found that there was no evidence of or determination of the actual benefit to any parcel, no evidence of the aggregate amount of benefits to all properties and no determination of the proportion that the benefits to any parcel bore to the total benefits to all parcels.
Further, the Court of Appeals found that there was no report of the City Engineer, as required by the Charter, and no evidence that the Board of Revision, as required by the Charter, either adopted the engineer's report or issued any report of its own other than the "schedule of assessments." The latter schedule is identified in the stipulation of the parties only as the "schedule of assessments," and there is nothing in the record tending to prove that such schedule was adopted by the Board of Revision as found by the Court of Appeals.
Where a party seeks, in equity, to enjoin the collection of an assessment on the ground that certain legal requirements were not complied with in making the assessment, such party has the burden of alleging and proving that such requirements were not complied with. Bolton v. City of Cleveland, 35 Ohio St. 319 (paragraph three of the syllabus and page 322 in the opinion); Chesbrough v. Commissioners, 37 Ohio St. 508 (paragraph five of the syllabus and page 518 in the opinion); Spangler v. City of Cleveland, supra ( 43 Ohio St. 526) (paragraph one of the syllabus). In the latter case, it is said in the opinion by Follett, J., at pages 536 and 537:
"* * * Plaintiff claims the benefit of the facts — of what was in fact done — as opposed to presumptions; yet she did not try to show what was in fact done, and she now seeks the benefit of a conclusive presumption, that nothing was done that was not fully recorded and shown by the particular records plaintiff gave in evidence. [Emphasis not added.]
"The facts asked by plaintiff to be presumed are such as plaintiff could seek to establish with evidence; and, as it does not appear that any evidence was offered that the court did not receive and consider, we must disregard presumptions, and we must look only to the plaintiff's evidence for the proof of her right to an injunction.
"* * *
"In her amendment to the petition plaintiff averred, 1. `There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue;' 2. `nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening;' 3. `or that said assessment did not exceed said benefits;' 4. `and in truth and in fact said assesment was not on the property benefited thereby, but only on the property fronting on said street.' All these averments were denied; and the plaintiff had the burden of proving a clear right to an injunction; and, in proof of the averments and of such right, * * * plaintiff put in evidence certain records and papers, some that tended to prove and some that tended to disprove the averments. The paper showing an assessment and the paper showing the equalization of the same, did not prove the assessment to be by the front foot merely, but at least that the same may have been `in proportion to benefits.' * * * The defendants were not called upon affirmatively to establish a right or a valid assessment. For aught that appears, there may have been record evidence of a valid assessment, which the plaintiff would not introduce, and the defendants need not introduce."
Not only does the petition in the instant case fail to allege the noncompliance with legal requirements, found by the Court of Appeals, but the findings of the Court of Appeals indicate no evidence to sustain its finding of such noncompliance. This case differs from Chamberlain v. City of Cleveland, supra ( 34 Ohio St. 551), where it was affirmatively established by evidence that there had been no compliance with the legal requirements for the assessments.
Plaintiffs allege and contend that no special benefits accrued to plaintiffs as a result of the improvement.
The Court of Appeals made no finding in response to this contention. Its findings "that any special benefits accruing to * * * [plaintiffs'] properties equally accrued to" and "are no different in kind or degree from those accruing to some of the other lots in the same subdivision which were not assessed" will be discussed later.
As plaintiffs contend, it is often stated that "the benefits * * * to private property from the construction of a public improvement, which may be made the basis of an assessment, must be special benefits, by which is meant benefits above and beyond those which are enjoyed in common with the public at large or with the rest of the community." 49 Ohio Jurisprudence 2d 244, Section 7. (Emphasis not added.)
Such statements have generated some confusion. For example, it is sometimes argued that, since the general public can and will use a particular improvement as much as or more than the owner of nearby property, there can be no special benefit to such owner from the improvement. See, for example, the Court of Appeals' opinion in the instant case ( 4 Ohio App.2d 234, at 241, paragraphs numbered 1 and 2).
The enhancement in the value of property that results from a public improvement is the special benefit that will support an assessment against that property to pay for the improvement. Such enhancement in value of such property is a benefit to its owner that accrues to him and not to the public or to the rest of the community.
In Walsh v. Barron, Treas. (1899), 61 Ohio St. 15, 55 N.E. 164, it is stated in the opinion by Minshall, J., at page 24:
"* * * an assessment, being sustainable only on the theory of special benefits conferred on the land by the improvement over those received by the general public, is necessarily limited to the value of the benefits so conferred. The value of the entire benefits so conferred may be assessed upon the land for the cost of the improvements; more, however, cannot be exacted, without impairing the inviolability of private property, guaranteed by the Constitution, or in other, if not more appropriate words, confiscating it." (Emphasis added.)
In order to be entitled to an injunction against any part of an assessment for the cost of a public improvement against a lot, the owner thereof has the burden of proving that the lot was not enhanced in value as a result of the improvement in an amount equal to the amount of the assessment. See Spangler v. City of Cleveland, supra ( 43 Ohio St. 526), Bolton v. City of Cleveland, supra ( 35 Ohio St. 319).
There is no evidence in the record that would support any such conclusion with respect to any of plaintiffs' lots. There is not even any evidence as to the value of any lot, either before or after the improvement.
This case differs from Alf v. Flick, Dir. (Hamilton County C.P. 1962), 1 Ohio Misc. 17, 204 N.E.2d 418, where the evidence established and the court found that the value of the properties assessed for an improvement had not been enhanced but had been reduced as a result of the improvement.
As hereinbefore mentioned, the Court of Appeals in the instant case found "that any special benefits accruing to * * * [plaintiffs'] properties equally accrued to" and are "no different in kind or degree from those accruing to some of the other lots in the same subdivision which were not assessed."
Based upon this finding of fact, the Court of Appeals concluded that an assessment levied only upon those lots in a subdivision that abutted on service streets was an illegal classification and an arbitrary discrimination.
The burden of proving the facts, so found by the Court of Appeals, as a basis for that conclusion, was on plaintiffs. They offered no evidence as to the value of any lot or parcel of land either before or after the improvement. Hence, it is impossible to determine that any unassessed lot in a subdivision was enhanced in value by the improvement as much as an assessed lot in such subdivision.
There was evidence which would support a finding that most of the potential benefits from the improvement, that accrued to the assessed lots in a subdivision, would also accrue to lots therein that were not assessed. However, we believe that the evidence establishes as a matter of law that potential benefits from this improvement accrued to the lots, which front on the service streets and were assessed, but did not accrue to the other lots in the subdivision, which did not front on the service streets and were not assessed.
For example, before this improvement, the roadway of Livingston Avenue was elevated about two feet above the adjacent land. On either side of the roadway was a drainage ditch, two feet wide at the bottom and two to four and one-half feet deep. Thus, those subdivision lots, that fronted on a service street, looked out on a dirt dam about two feet high and about 70 feet away. Next to that dam was a two to four and one-half foot deep drainage ditch. On top of the dam were automobiles and trucks frequently involved in traffic jams and accidents, resulting from the availability of only two lanes for traffic and the archaic condition of the roadway. Such a view from the front of a lot would obviously have an adverse effect on its value as compared with any lot in the subdivision which did not have such a front view or was not as close to it.
After the improvement, there was no longer the unsightly two-foot dam and open drainage ditch. Instead, there was a modern four-lane curbed highway at the level of the adjacent land. Thus, the record discloses that the lots in a subdivision, that fronted on a service street, did receive from this improvement of Livingston Avenue a potential special benefit that did not equally accrue to other lots in the same subdivision.
It may be that the value of this particular potential special benefit to each of the lots of plaintiffs exceeded the amount of the assessment (approximately $300 to $375 per lot) against it. If it did, then the assessments against plaintiffs' lots could be justified as being for special benefits not accruing to other unassessed lots in the subdivision.
There being no evidence as to the value of any lot before and its value after the improvement, it is impossible to determine whether the value of this particular special benefit to any one of the lots of plaintiffs, that did not accrue to other lots in its subdivision, did not equal or exceed the amount of the assessment against it.
It was stipulated that the cost of this improvement was $597,213 and that the total assessments were only $229,925.89. The difference between the cost and the assessments will be paid by Columbus. The amount paid by Columbus may well include payment for all those special benefits to plaintiffs from the improvement that accrue equally to other unassessed lots in the same subdivisions.
In our opinion, therefore, there is no factual basis on the record in this case for the contention that the levying of assessments, only upon those lots in a subdivision which abutted on service streets, involved an illegal classification or an arbitrary discrimination.
Furthermore, the omission of benefited property from the area, that encompasses property assessed for an improvement, has been held by respectable authority not to deprive the owner of property, that is assessed, of due process of law or of the equal protection of laws, if there is no showing that the omission was arbitrarily or fraudulently made. Butters v. City of Oakland (1923), 263 U.S. 162, 68 L. Ed. 228, 44 S. Ct. 62; Moore v. City of Yonkers (2d Cir. 1916), 235 F. 485, 9 A.L.R. 590; close v. Parker, Treas. (1908), 11 C.C.N.S. 85 (affirmed without opinion, 79 Ohio St. 444); Weston v. Commrs. of Hamilton County (1892), 6 C.C. 641 (affirmed without opinion, 30 W.L.B. 291).
In the instant case, there is no contention that other lots in the subdivisions, where plaintiffs' lots are located, were fraudulently omitted from assessment. It is obvious that plaintiffs' assessed lots were closer to the improvement than the unassessed lots in their subdivisions. In such an instance, it cannot be inferred that the lots not assessed were arbitrarily omitted from assessment, especially where there is no evidence of an equal or greater increase in the value thereof as a result of the improvement. As stated in the opinion in Close v. Parker, Treas., supra (11 C.C.N.S. 85), at page 87:
"* * * if in seeking to assess all property benefited we go beyond the abutting property [or, as in the instant case, that not abutting but substantially next to the improvement], it is a little difficult to tell where to stop; that is, if the court assumes that other property is so benefited that it was the duty of the assessing authorities to assess such other property, there would seem to be hardly a limit to the jurisdiction of the court as to the boundaries of territory which might be assessed * * *."
We therefore conclude that there is no evidence in the record to support plaintiffs' contention that no special benefits accrued to plaintiffs as a result of the improvement; and that there is no evidence in the record to support the findings of the Court of Appeals (a) that the front-foot method of assessment had been used, (b) that, in levying the assessments, Columbus had not complied with certain legal requirements, and (c) that any special benefits accruing to plaintiffs' properties equally accrued to the other lots in the same subdivision which were not assessed.
It follows that the judgment of the Court of Appeals must be, and it hereby is, reversed, and final judgment is rendered for appellants.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
BROWN, J., dissents.