RAUEN & RAUEN DEVELOPMENT, LLC, DENNIS J. RAUEN, VIRGINIA A. RAUEN, ERTL LIMITED PARTNERSHIP, and MOLO PETROLEUM, LLC, Plaintiffs-Appellees,
CITY OF FARLEY, IOWA, Defendant-Appellant.
from the Iowa District Court for Dubuque County, Monica L.
appeals the district court's reduction of special
AFFIRMED. William J. Miller and Kirk W. Schuler of Dorsey
& Whitney LLP, Des Moines, for appellant.
J. Locher of Locher & Davis PLC, Farley, for appellees.
by Danilson, C.J., McDonald, J., and Blane, S.J. [*]
City of Farley specially assessed certain property owners for
the costs of road and storm sewer improvements made in the
city's industrial-business district. The project included
widening a roadway, adding a paved shoulder and curb to the
roadway, and improving the storm sewer along the roadway. The
city specially assessed the property owners abutting the
roadway at a rate of fifty-five dollars per linear foot of
property running along the improved roadway. Some property
owners, including Ertl Limited Partnership, Rauen & Rauen
Development LLC, Molo Petroleum, and Dennis and Virginia
Rauen challenged the special assessment in district court.
The district court found the property owners had been
assessed in excess of the special benefits received from the
project and reduced the assessments. The City timely filed
Code governs special assessments. Iowa Code section 384.61
(2015) requires "[t]he total cost of a public
improvement . . . be assessed against all lots within the
assessment district in accordance with the special benefits
conferred upon the property, and not in excess of such
benefits." An assessment is capped at twenty-five
percent of the value of the land improved. See Horak
Prairie Farm, L.P. v. City of Cedar Rapids, 748 N.W.2d
504, 507 (Iowa 2008).
to special assessments are reviewed de novo. See id.
at 506. "We will give weight to, but we are not bound
by, the district court's findings." Gray v. City
of Indianola, 797 N.W.2d 112, 117 (Iowa 2011). We
presume "assessments are correct and do not exceed the
special benefit[s] received" by the assessed parties.
See id. The property owners bear the burden of
showing the special assessment is excessive. See id.
However, "[a] property owner cannot generally argue that
he has not received any benefit from a public improvement;
rather, a property owner must show that the benefit received
was not as great as that determined by the city."
Horak Prairie Farm, 748 N.W.2d at 507. Because
mathematical certainty is not possible, "we must rely on
approximations to determine the correct amount of the
assessment." Gray, 797 N.W.2d at 117.
Ultimately, the court must consider "whether the
assessment 'represents a fair proportional part of the
total cost.'" Horak Prairie Farm, 748
N.W.2d at 507 (quoting Rood v. City of Ames, 60
N.W.2d 227, 238 (Iowa 1953)).
the outset, according to the evidence, the project was
ill-conceived. The industrial-business district is isolated
on the outskirts of the city. The city did not initiate the
project in response to any professional study, such as a
water-drainage study or traffic study. Instead, the city
initiated the project because of some concern the roadway was
deteriorating. The city widened the road and added curb and
gutter to match a small segment of the roadway in front of
one of the businesses in the industrial-business area.
Specifically, a construction company abutting the roadway had
added a curb and gutter to the roadway immediately in front
of its business.
the genesis of the project, it is unsurprising the project
generated very little, if any, benefit for assessed property
owners. The property owners testified the project failed to
provide them with meaningful improvements. None of the owners
had any prior issue with tire rutting on their properties
from vehicles turning in, therefore, the shoulder apron
provided no benefit. None benefitted from the increased
turning radius provided by the widened street. Those who had
some water drainage issues received no relief upon the
project's completion. The testimony shows the water
drainage issues actually increased after the completion of
property owners' testimony was bolstered by their expert
witness, Harold Smith, a former city engineer of the City of
Des Moines, who testifies regularly in these types of
proceedings. See, e.g., Gray, 797 N.W.2d at 114.
Smith testified the owners received only a de minimis benefit
from the project. The project did not reduce noise. The
project did not reduce roadway dust. The project did not
improve police or fire access to the industrial-business
district. The project did not improve the ability to remove
snow or ice. The project did not improve water drainage. The
project did not reduce ditch maintenance. The project did not
improve street parking. The project widened the roadway,
however, the widening was excessive and not useful because
the city did not widen the road enough to add additional
traffic lanes. Smith did testify the property owners received
a minimal special benefit in the form of increased market
value of the properties due to the aesthetic improvement from
the added curb and gutter.
the lack of benefits from the project, Smith opined the
project was best classified as a curb and gutter
installation. Smith testified the Flint formula is commonly
used to determine the special benefits associated with a
project of this type. See id. at 114 n.4.
(discussing the Flint formula). Smith testified, without
objection, the appropriate formula in this case as follows:
"One-and-a-half feet of curb and gutter times the lineal
feet of a frontage for the property . . . which gives you
square feet, divided by nine, gives you square yards, times
$44.50 a square yard." He again testified to the
formula, without objection, describing it as "[th]e
area, the frontage times one-and-a-half foot of curb and
gutter times the $44.50 a yard." While Smith testified
about the formula, he did not provide any testimony regarding
the specific dollar amounts derived from applying the formula
to the various properties in this case. The data regarding
the amount of linear feet of frontage for each assessed
property was admitted into evidence without objection.
city contends the court should not have considered
Smith's formula because it was not disclosed prior to
trial. However, the city did not object to Smith's
testimony regarding the formula. Error is not preserved.
See Van Iperen v. Van Bramer, 392 N.W.2d 480, 486
(Iowa 1986) (concluding challenge to expert testimony ...