Ninth Street Community Paving Project Committee v. City of IrontonNinth Street Community Paving Project Committee v. City of Ironton
Thе first issue presented for our consideration is whether the appellees substantially complied with the notice provisions set forth in R.C. Chapter 727 in a manner satisfying due process, as a matter of equity. The appellees contend that they substantially complied with these requirements in notifying affected property owners of potential assessments arising out of the street projects. The appellant property owners counter that the record is replete with examples of either sloppily attempted notification or simply no notification at all, and that such amounts to a denial of due process. Within this notice issue, appellants contend that the appellees failed to file the profiles and plans of the projects with the clerk of city council in a timely manner as mandated by
With respect to this notice issue, as well as the other issues involved in the cause sub judice, principles of equity must be taken into account along with constitutional considerations of due process. The use of equitable principles is proper not only because appellants have sought injunctive relief, but also by virtue of this court’s longstanding application of equity to real estate assessment controversies. See Kellogg v. Ely (1864),
Our review of the record herein leads us to conclude that while the ap-pellees’ mеthods were less than perfect in apprising affected property owners of the proposed projects and assessments, the appellees did
“Active participаtion in causing the improvement to be made will estop the party engaged therein from denying the validity of the assessment; but to create an estoppel from silence merely, it must be shown that the owner had knowledge: 1. That the improvement was being madе; 2. That it was intended to assess the cost thereof, or some part of it, upon his property; 3. That the infirmity or defect in the proceedings existed which he is to be estopped from asserting; and, 4. It must appear that some special benefit accrued to his property from such improvement which it is inequitable, under the circumstances, he should enjoy without compensation.”
The record reveals that some of the instant appellants participated in meetings and hearings held with respect to the Block Grant applications and the street improvement projects. Moreover, other property owners who had knowledge of the projects under the Tone standard are estopped from claiming that the assessments herein were void ab initio.
We find that appellees made a bona fide, albeit imperfect, attempt to notify property owners in the affected areas of Ironton by certified mail and by publication. In addition, we believe that the lower courts were correct in determining that the improvements made were within the common knowledge of the persons residing within the areas of the street projects. Our implementation of equitable principles to the matter at hand prevents the hypertechnical application of the notice provisions within R.C. Chaptеr 727, and compels us to affirm the finding of substantial compliance with respect to those provisions. Our holding of substantial compliance with respect to proper notice necessarily entails a rejection of appellants’ due prоcess argument. We therefore affirm the appellate court majority on this issue.
With regard to the issue concerning the lack of profiles and plans for the projects filed with the clerk of city council as required under
We also reject appellants’ argument that the assessments levied by ap-
Turning our focus to the next issue presented, the appellees on cross-appeal contend that the weight of еvidence supports the trial court’s finding that the city properly used and accounted for the federal funds involved in the projects. We disagree, and uphold the court of appeals’ reversal and remand with the express direction that the trial сourt deduct the sum of $403,982.60 from the total assessment costs and modify each landowner’s assessment in proportion to the relative costs of the project in his or her area.
In Boellner v. Maumee (1974),
“* * * The obvious objective of special assessment statutes, such as those in R.C. Chapter 727, is to allow a municipality to reimburse its treasury for expenditures actually made. Stockdale Borough v. Astle (1963),410 Pa. 257 ,189 A. 2d 152 . If a city were allowed to assess property owners for the total cost of an improvement, without reduction for funds received from other sources such as county, state or federal agencies, the city would reap a financial windfall at the expense of the assessed property owners. Such a result would also be contrary to the rule that a special assessment is valid only if the funds collected thereunder are used for the project for which the assessment was levied. See Butler v. Toledo (1855),5 Ohio St. 225 . Therefore, this court holds that theR.C. 727.05 phrase, ‘total cost of improvements for which special assessments are levied,’ means only those costs for which the city is responsible.”
We find that Boellner is directly aрplicable to the case at bar, and further, we adopt the analysis rendered by Judge Stephenson in his concurring opinion below, with respect to this issue:
“* * * The city received approximately $1,253,000.00 in federal grants. The city used some odd $324,000.00 for start-up and miscellaneous costs, which were not the subject of any dispute in this litigation. The city used the remaining $929,000.00 to pay off four contracts. The city accounted for roughly $525,000.00 of these funds ($410,000.00 on NinthStreet Project and $115,000.00 on Twelfth Street work) as the city’s costs and offset that amоunt (i.e., $525,000.00) from the total cost of the project. The remaining difference between the $929,000.00 in federal funds used to pay on the contracts and the $525,000.00 which was offset from the total cost amounted to roughly $404,000.00. This amount was never deducted from the total cost of the project and, thus, appellants were assessed an additional $404,000.00. It appears from the record that the city intended to hold this sum, still assess the landowners for it and then use the $404,000.00 they had reserved for assessment relief.”
Since appellees’ actions here amount to a violation of
The final issue submitted for our consideration is whether the trial court erred in denying the appellant landowners the right to prеsent evidence of alleged damages to their properties caused by the street projects. The appellees, on cross-appeal, contend that
In reviewing appellees’ contention on this issue, it seems ironic to this court that appellees would argue for an equitable and less restrictive interpretation of the notice provisions and then turn around and contend that
“An owner * * * claiming that he will sustain damages by reason of a proposed public improvement * * * shall, within two weeks from the date of completion of the notice required under section 727.13 of the Revised Code, file a claim in writing with the clerk of the legislative authority of the municipal corporation, setting forth the amount of the damages claimed and a general description of the property with respect to which it is claimed such damages will accrue. An owner who fails to file suсh a claim, shall be deemed to have waived damages and shall be barred from filing a claim or receiving damages. This section applies to all damages which will obviously result from the improvement, but shall not deprive the owner of his right to recover damages arising, without his fault, from the acts of the municipal corporation or its agents. * * *” (Emphasis added.)
Based on this statute, we concur with the reasoning of the court of appeals below in finding that a distinction must be drawn between damages that will obviously result from an improvement (e.g., removal of shrubbery) and damages resulting from work negligently performed. A strict application of
In summary, we affirm the court of appeals majority on each and every aspect decided in this complex controversy. On remand, the trial court is instructed tо carry out the explicit directions with respect to the calculation of the assessments in light of the federal funds received by ap-pellees; and to also allow appellants the occasion to present evidence concerning damages alleged to have been caused by negligent construction.
Judgment affirmed.