Standard Optical Co. v. Salt Lake City Corp.

ELLETT, Justice: The defendants had for a number of years considered forming a special improvement district for downtown Salt Lake City. They had appointed an ad hoc citizens committee for the purpose of considering the nature of the improvements which should be made. [1152] In December, 1973, the city engineer submitted to the Board of Salt Lake City Commissioners a cost estimate of the proposed improvement, which was approved by the Board. A Notice of Intention was prepared by the city attorney and approved by the Board providing that it was the intention to make the following described improvements : To remove all existing curbs, gutters, sidewalks and street paving and construct new street paving, pedestrian paving, landscape structures, planters and planting, curbs and gutters, together with new street lighting and drainage structures, and to do all other work necessary to complete the project in accordance with Salt Lake City Standards. The Notice of Intention further provided: All other necessary things shall be done to complete the whole project in a proper and workmanlike manner according to plans, profiles and specifications on file in the office of the Salt Lake City Engineer. . It set forth the boundaries of the proposed district and the estimated cost of the improvements. The property owners were to be assessed a charge of not to exceed $505 per front foot, and the city was to pay the remainder of the estimated cost in the amount of $872,405.20. It further provided that protests should be filed on or before January 16, 1974, and that any protests so filed would be considered on January 17, 1974. The Notice of Intention was published pursuant to law,1 and on December 26, 1973, a copy thereof was duly mailed to the registered owners of each lot, parcel or plot of real property located within the proposed Special Improvement District. On January 17, 1974, at a regularly scheduled meeting of the Board of City Commissioners all written protests were received, filed, and referred to the city engineer, the city attorney, and the Planning and Zoning Department for reports and tabulation. Furthermore, every person present at the meeting was given an opportunity to make protest and to state any objections which he cared to make to the proposed Special Improvement District. It was then decided that a second meeting should be held after a complete tabulation of the written protests was made. The next day a notice was sent to all registered property owners within the proposed district requesting their attendance at the second meeting to be held on January 25, 1974, at 2:00 p. m., in the commission chambers. In addition thereto, notice of the meeting was published on January 21, 1974, in a newspaper having general circulation in the city and county. A tabulation of the protests filed showed that less than two thirds of the owners of the property to he assessed were opposed to the proposed district, to wit, only 49.15 per cent, or, if three questionable protests were counted, there would be 51.23 per cent. At the announced meeting on January 25, 1974, there were more people in attendance than there had been at the meeting held January 17, 1974. All of the plaintiffs herein were either present in person or through counsel, and all who desired to speak either for or against the proposed district were given an opportunity to do so. After the meeting a number of those who previously had protested the matter withdrew their protests, so that the final number of protestants was only 44.4 per cent of the total owners within the district. On or about February 13, 1974, the defendants approved the plans and specifications of the architect and caused to be duly published a notice to contractors requesting the submission of bids to be opened on March 7, 1974, The date of opening the bids was subsequently postponed until March 21, 1974. Only two bids were received, each on a “line item” basis, but at a price greatly in excess of the estimated cost of the improvement. [1153] Because of the assurance given by the city to the property owners that the cost would not exceed $505 per front foot, the city undertook to eliminate or change some of the proposed improvements. Based upon the opinion of the consulting architects and the facts before the city commission, it was determined to make certain modifications and deletions which would have no adverse effects on the aesthetic appearance or the overall general utility of the project. Thereafter a “Target Vitality” summary sheet containing possible revisions to the lowest base bid was prepared which brought the cost of the project to a figure within the original estimate. A notice of another meeting to be held April 16, 1974, was sent to all property owners. A summary of the proposed changes patterned after the “Target Vitality” summary was distributed to all persons attending the meeting, and all persons desiring to be heard were permitted to speak. The adjusted line bid of Gibbons & Reed Company as computed by the city was below the engineer’s preliminary estimate and below a similarly adjusted bid of Shocker Construction Company, the other bidder on the project. The contract was thereupon awarded to Gibbons & Reed Company. The appellants claim that the formation of Improvement District Curb and Gutter Extension No. 38 — 480 was irregular and contrary to law because certain changes in the vehicular-traveled portion of the street were not stated in the Notice of Intention and were not made by a regularly enacted ordinance. They also claim that the contract with Gibbons & Reed Company was not awarded pursuant to law. They make other assertions of error as offshoots of the foregoing. To begin with, it is to be noted that the establishment of an improvement district by a municipality in pursuance of statutory power is a legislative act which is conclusive in the absence of any evidence that it was procured by fraud or of proof that it is manifestly arbitrary or unreasonable or unjust and oppressive.2 There can be no claim of fraud in regard to this matter, nor is there anything arbitrary, unreasonable, unjust or oppressive about it. If there could be any such claim, the burden of proving the same would be upon the plaintiffs herein,3 and there is no evidence to justify it. The appellants assert that by deleting certain of the plans and specifications and inserting new ones in the contract, particularly in narrowing that part of the street used for vehicular traffic, the city did not act in accordance with law, and that had the property owners known that such was to be done, there would have been more protests filed, to wit, more than two thirds, which under the statute4 would have prevented the formation of the district. They rely upon the case of Gwilliam v. Ogden City5 in support of their claim. However, since that case was decided, the law regarding the notice of intention existing at the time has been repealed and a new law6 enacted which only requires that the improvements proposed be described in a general way. Not only were the improvements described generally in the notice of intention, but the notice specifically referred to the plans ánd specifications in the office of the city engineer. In the case of Williams v. City of Caldwell 7 the ordinance of intention provided, “That the character of the proposed lateral sewer system shall be that of gravity, and according to the plans and specifica [1154] tions now on file in the office of the city engineer of the city of Caldwell.” In that case it was contended that the ordinance of intention did not sufficiently describe the character of the proposed improvement as required by the statute. In holding the ordinance sufficient, the Idaho Supreme Court held that the reference to the plans and specifications was sufficient to give notice to all parties interested in the general character of the proposed works. As regards the narrowing of that portion of the street used for vehicular traffic, the appellants assert that the street was narrowed without an ordinance being passed to that effect as required by Section 10-8-8.2, U.C.A.1953 (Replacement Vol. 2A), which provides: . When in the opinion of the governing body of the city there is good cause for vacating, or narrowing the street . . ., it may, by ordinance, . . vacate or narrow such street. In the improvement proposed by the city the sidewalks are to be widened, and that part of the street used by vehicles is to be narrowed. The width of the street itself is not affected, as the street extends from property line to property line,8 and the city can under its police power designate the portions of the street which shall be used by pedestrians and which part by vehicles and horses. As to the contract with Gibbons & Reed, the city considered calling for new bids, but costs were rising rapidly and unless the bids as made were accepted, the cost of the project would be greatly increased. Both bids which had been received were made on a line item basis, and since no significant change was made in the overall appearance or utility of the project, the decision of the city to adjust the proposals seemed to be wise. The bid of Gibbons & Reed Company was the low bid when considered on the line item basis. No other bidder or prospective bidder makes any challenge to the procedure, and the plaintiffs obviously are not and were not interested in having a new set of bids called for. They simply do not want the improvements to be made. They may be justified in seeking to avoid paying $505. per front foot, which the project requires. It may be that they will sustain a loss of business during the period of time in which the street and the sidewalk will be torn up. However, the defendants have the power to make the determination of establishing the improvement district unless two thirds of the abutting owners protest the proposal. Since over one half of the owners make no protest to the matter, these plaintiffs cannot prevent the work because they feel that it will not benefit them individually.9 We are of the opinion that the requirements of the statute were sufficiently complied with in the forming of the special improvement district and that the trial court was correct in so holding. The judgment is affirmed. No costs are awarded. CROCKETT, J., concurs. TUCKETT, J., concurs in the result. Footnotes [1] Sec. 10-16-5, U.O.A.1953 as amended (Replacement Vol. 2A). [2] 14 McQuillin Mun.Corp. (3rd Ed., 1970 Revised Volume) § 38.56. [3] Feldhake v. City of Santa Fe, 61 N.M. 348, 300 P.2d 934 (1956). [4] Section 10-16-7, U.C.A.1953 as amended (Replacement Vol. 2A). [5] 49 Utah 555, 164 P. 1022 (1917). [6] See. 10-16-5(d), U.C.A.1953 as amended (Replacement Vol. 2A). [7] 19 Idaho 514, 114 P. 519 (1911). [8] Stringham v. Salt Lake City, 114 Utah 517, 201 P.2d 758 (1949) ; Davidson v. Utah Independent Telephone Co., 34 Utah 249, 97 P. 124 (1908). [9] The Chief Justice in his dissent speaks of the closing of Main Street. That street is not closed at all. At the South Temple Street intersection with Main Street, there is a monument in the middle of the street which has for years been somewhat of an impediment to north-south traffic. Now, north and southbound traffic will be required to detour to the right for one block only.