Simmons v. City of Moscow

720 P.2d 197, 111 Idaho 14, 1986 Ida. LEXIS 472

Opinions

BISTLINE, Justice,

concurring and dissenting.

**

I concur in Justice Huntley’s opinion for the Court, except for that portion which supplants the district court’s determination of the “benefit derived” issue.

Briefly I will point out our difference. A requirement of the L.I.D. code is that assessments must be against “property benefited by the making of the improvements.” I.C. § 50-1703(b). Section 50-1707(c) provides (inferentially) that benefits by improvements will be according to:

(1) A front foot method

(2) A square foot method

(3) A combination of (1) and (2), or

(4) In proportion to benefits derived by improvements to the property.

We are all agreed that this is so. I agree with Justice Huntley that “benefits derived” is the more flexible method, and that front and square foot methods, or a combination of those two, are readily adaptable to sewers, roadways, sidewalks, and water lines.

What I do not understand is how the majority concludes that “The method of assessment was in fact a benefits derived method.” (Emphasis added.) Nor do I understand the balance of that sentence which adds that “the assessments levied appear to be reasonable approximations of value of benefits derived by each property owner.” (Emphasis added.) Each clause of that sentence is a separate appellate finding of fact. Each is contrary to the district court’s determination of fact that the City made its assessment on a footage basis, as applied differently to the three zones.

The district court’s view that “benefits derived” requires an appraisal reflecting market value increase is consistent with the only prior legislative concern with the language benefits to property which is to be found in the Idaho Code, I.C. § 7-711(3). That provision has been applied without question for the 104 years since first enacted. At the time L.I.D. code was first enacted the State of Idaho and lesser condemning authorities had forever used appraisals to determine such benefits for almost 80 years. It is to be presumed that the legislature was well aware of the practice when it used language similar to § 7-711(3) in the L.I.D. code. Language in the case of City of St. Louis Park v. Engell, 238 Minn. 309, 168 N.W.2d 3 (1969) supports the view of the district court:

It is made clear in our cases dealing with special benefits that the same measure is utilized in this state to determine the amount of special benefits in a condemnation proceeding or in a levy of a special assessment.

This court has held that in assessment procedures special benefits are determined by the amount of the increase in the market value of the property attributable to the improvement. See, In re Improvement of Superior Street, Duluth, 172 Minn. 554, 216 N.W. 318; Spencer, The New Minnesota Improvement-Assessment Procedure (Chapter 398, Laws of 1953), 38 Minn.L.Rev. 582. The same measure is utilized in condemnation cases where special benefits are properly deducted from the damages awarded. State, by Mondale, v. Mecklenburg, [273 Minn. 135, 140 N.W.2d 310]; State, by Lord, v. Hayden Miller Co., 263 Minn. 29, 116 N.W.2d 535.

It is clear from the foregoing authorities that in both eminent domain and assessment proceedings the value of special benefits is found by determining what increase, if any, there has been in the fair market value of the benefited land. St. Louis Park, supra, 168 N.W.2d at 8 (emphasis added).

As I comprehend today’s opinion for the Court, its thrust is that the district court did not err in applying the fourth method of “benefits derived,” but that the district court did err in not realizing that the City’s use of the footage method was simply a part of its “benefits derived” method — and was in fact superior in quality to utilizing appraisals to determine what value of benefit, if any, has accrued to the property by virtue of the improvement. It seems inescapable, however, that § 50-1707(c) is worded in the disjunctive. Assessment of benefits to the property benefited by the improvements are to be determined

according to a front foot method,

or

a square foot method,

or

a combination thereof,

or

in proportion to the benefits derived to such property by said improvements. (Emphasis added.)

While I do not mount any challenge to the system of assessing which is envisioned in the majority opinion, nonetheless the statute is being rewritten by the Court in order to uphold city taxation of some property owners who do not abut on the area actually improved, and on whose property not one single copper has been expended. Some may remember that it was in part such taxation as this which prompted the thirteen colonies to exit the kingdom of Great Britain.

It has been suggested that the use of appraisers in determining benefit derived would be cumbersome and expensive, and hence have a chilling effect on such projects. I am not persuaded by that undocumented concern, having had considerable experience with the use of contract appraisers in government condemnation proceedings. In the instant case, if this Court takes the statutory law as written— as did the district court — then the benefits derived method requires a determination that property assessed has been benefited by the L.I.D. improvements. The amount of the benefit requires opinion testimony. As stated by the Supreme Court of Minnesota in In re Superior Street in Duluth, 172 Minn. 554, 216 N.W. 318 (1927):

The determination of whether or not a particular tract of land is or is not specially benefited by a local improvement is essentially a question of fact. It is usually a matter of opinion, to be determined from the opinions given by witnesses having qualifications entitling them to give their opinions. It is a subject upon which men may honestly differ. Id. at 321.

As already indicated, our holdings are that in this state assessments for local improvements must be based on the special benefits received by such property and must not materially exceed such benefits; that, in determining such benefits, the market value of the property is to be considered, and that, while the present use of the property may be taken into consideration, it is not controlling, and the property may be assessed irrespective of its then particular use, on the same basis as other property in the locality; ____ Id. at 323.

Any attorney of even limited experience well knows that opinion testimony often differs. The problem here is not with the differing, but with the fact that the City of Moscow did not obtain any testimony in that regard in making its determination. For that reason the district court held in particular instances that the City’s procedure was invalid as to certain owners. It very well might be that the district court should have set aside the assessments and allowed the City to do the re-assessing. But with the disposition the majority makes today, the propriety of the district court’s decision to reassess rather than remind need not be unilaterally addressed.

Ed. note: This opinion was filed July 16, 1985.