Title:ارزیابی‌های ویژه باید مزایای ویژه‌ای ایجاد کند: چگونه از «گرفتن‌های» غیرقانونی اجتناب کنیم

۲۰۱۱-۰۳-۱۸ ارائه دهنده: بن اورسبون این وب‌کست فقط برای مشاهده در دسترس است، برای اعتبارات AICP CM قابل استفاده نیست. در تابستان ۲۰۱۰، دادگاه عالی داکوتای جنوبی به اتفاق آرا درخواست تجدیدنظر دادگاه مداری را در مورد ارزیابی ویژه ای که توسط شهر پیر برای جایگزینی کرب و ناودان وضع شده بود، تایید کرد. تصمیم دیوان عالی که تأیید می‌کند «گرفتن» رخ داده است، به یک فرآیند طولانی پایان داد که با اعلامیه ارزیابی ویژه به شهروندان آسیب‌دیده در دسامبر ۲۰۰۷ آغاز شد. برای جلوگیری از “گرفتن” توسط ارزیابی شوندگان دریافت شود. این ارائه همچنین سازماندهی جامعه، آمادگی برای تبدیل شدن به یک شاهد و منشور اخلاقی AICP را مورد بحث قرار خواهد داد. مجری شاهد، ارزیابی شونده و درخواست کننده پرونده، سازمان دهنده جامعه بود و در تهیه خلاصه های حقوقی کمک کرد. ارائه مطالب را از دیدگاه ارزیابی شونده یا درخواست کننده مورد بحث قرار می دهد.

قسمتي از متن فيلم: Hello my name is cody price and i just want to welcome everyone it is now one o’clock so we’ll begin our presentation shortly today on march 18th we’ll have a presentation on special assessments create special benefits avoiding an unconstitutional taken given by ben orsman for help during today’s webcast please

Feel free to type your questions in the chat box found on the webinar toolbar to the right of your screen or call 1-800-263-6317 for content questions please feel free to type those in the questions box and we’ll be able to answer those at the end of the presentation during the question

And answer session here’s a list of our participating chapters divisions in universities and i just want to do a personal thank you to the western central chapter for sponsoring today’s webcast for our upcoming webcasts our next one will be on march 25th for planning for an aging society technologies for safe

Transportation mobility and that will end our march webcast series and then we’ll start up again on april 1st on new tools for public participation possibilities and pitfalls and then we’ll have a few more throughout april and you’ll be able to find a complete listing for 2011 and to register for

These events please go to www.utah.apa.org webcast and you’ll be able to find the complete listing you can select your select your webcast of choice to register for to log your cm credits for attending today’s session you’ll need to go to www.planning.org cm select activities by date and then underneath march 18th

You’ll see special assessments create special benefits avoiding an unconstitutional taking and this is listed underneath the western central chapter and so um this is uh logged and up already and so after today’s session you’ll be able to log those credits and then we are recording today’s

Session until you’ll be able to find a video recording in a pdf of today’s webinar at www.youtube.apa.org webcast dash archive and then this should be up by monday so as of right now i would now like to hand it over to pepper who will be introducing our speaker for today

Thank you cody welcome everybody good morning my name is pepper mcclenahan i’m the professional development officer for the western central chapter and i’d like to welcome ben orsman faicp who is our speaker today ben is a special assistant to the secretary for policy and legislation of the south dakota department of

Transportation he is on the board of directors and a founder of the western planning resources incorporated a private non-profit organization educating and training planners in 14 western states he was educated as an environmental and land use planner and has over 30 years of experience in transportation and state and local

Planning he has a masters of regional planning degree from the university of north carolina at chapel hill and ben enjoys singing downhill skiing in backpacking and most things outdoors his presentation today will focus on the theory and reality of balancing special assessment fees with the special benefit

That must be received by the assessee to avoid a taking it will also discuss organizing neighborhoods for action preparing to become a witness and the aicp code of ethics as it relates to this topic he was a witness a community organizer an assessee and a petitioner in the case questioning the city’s

Approach that he’ll be discussing today and this discussion will be mostly from an assessee or petitioner’s perspective so with that please help me in welcoming ben orsman thank you ben i appreciate it i think i may have just closed the powerpoint we’ll see if we get it back up okay all right uh

I’ll begin good afternoon to everyone on eastern time good morning to everyone on mountain in pacific and i’m sorry to make you miss lunch if you’re on central time but we’ll get started right away the details the focus of the presentation today will be on a recent curb and gutter

Assessment case decided by the south dakota supreme court on june 30 2010 we’ll discuss the general legal principles for special assessment to avoid it takings aicp ethics considerations neighborhood organizing and steering and lessons learned i’ll begin with a short overview of special assessments and a short definition special assessment is formally defined

As a paid government may levy on property owners to fund the public project which creates a benefit reflected by the market value of properties lying in a special assessment district basically if government funds make a property more valuable the government can recover from each property owner a portion of the costs

Consist of the private benefits created landowners must benefit directly uniquely and specifically from the public project some states may define benefit to be more than an increase in market value benefit may mean a special adaptability of the land or a relief from some burden but it should influence the value

You know assessment charges can be led to its land for installing drinking water lines and sewer lines street painting police or fire protection parking structures street lighting and many of the other purposes permitted by state and local statutes the finding the boundaries of the district so that the properties are measurably benefited

Is an art if the condition in this case of existing curve and gutter is already good improvement of the existing infrastructure will have a negligible impact on existing property values and existing benefits under those circumstances replacement of functioning curving gutter probably would not increase local benefits the objectives of the presentation will

Really be to focus on the case wait and leave lisa hubbard at all versus the city appear it is a curve and gutter case but it goes beyond curb and gutter in terms of the lessons that you can learn and the guidance that it provides in terms of special assessment

Some fundamental questions and so forth of the case and what it answers is what is the primary function of curving gutter and is it part of the stream what are the benefits from initial construction of curving gutter compared to replacing functioning curving cover what is the magnitude of the benefit of

Replacement for the sse and what is its magnitude in relationship to the assessment fee is using cost per linear front foot to establish the assessment fee speculative and conjectural which is a legal test for taking in south africa this presentation will answer fundamental questions to help the audience avoid the pitfalls of

Unconstitutional special assessment the assessment does not have to be for new construction or new services in our case it was for replacement and like i said before this is a software supreme court case on an assessment led by the city of pier excuse me ben

I’m sorry to break in but we’re having a lot of comments people are having a very difficult time hearing you it sounds like you’re in a tin can that you’re too far away from the microphone that you’re garbled can you see if you can make some adjustments to maybe

Get a little bit better voice audio across and also have you advanced your slide from slide one yet because if you have people are not seeing your you have advanced your slide yes slide number four now uh we’re not seeing that um are you um

Are you on are you running it from the slideshow because the screen that we have up is yes i am should i end the show and come back in no don’t end it um underneath screen sharing on the toolbar is that is the play button um press like show my

Screen or is it still paused i can’t see it because i’ve got the full screen up well can you exit out of that like press escape and then um get to that sorry about this everyone i’ll have to end the show to do it well yeah the powerpoint presentation it’s escape it’ll okay

I’ve done that and it’s showing uh the fourth slide now okay i’ll go ahead and make you the presenter again because i think what happened is just that it got paused in your screen and so so if you can just click the show my screen button again

Okay and then hopefully this will fix things are we ready to start from the beginning again yes okay can you see it now yes should i minimize the portion over here on the right yeah just click the orange button with the white arrow and then that should

Just minimize it for you and then you can go ahead and get started with your presentation okay okay thank you all right this is the slide that i’m on now before slide and we’re going to talk about the primary function of curving gutter whether it’s part of the stream um

Like i said before the outcome might have been very different had the case been for initial construction of curving gutter instead of replacement pair of the other because of the different benefits the facts of the case were the assessment fee was the contractor’s cost per front linear foot of curb and gutter

And the primary purpose of the entire project was to replace water mains which involve reconstructing the street and replacing portions of the curve in gutter adjacent land owners will assess the contractor’s cost for linear foot for curb and gutter and driveway replacement and assessed only for that not for streets or anything

Else only curb and gutter the rest was paid by the city the city assessed over 160 000 dollars for curbing government driveways the ultimate question in this case is did the sscs receive at a minimum a fair approximation of special benefits relative to the amount of the assessment

Otherwise a limited number of assessees financed improvements for the benefit of the public at large under broad-based speed or attacks would have been more appropriate such an action is an unconstitutional taking the fifth amendment states that private property cannot be taken for public use without justice compensation the courts consider the assessment

Compensation in some form of positive outcome for the property owner the linear foot assessment method costs the same per foot to every landlord no matter if the curve was built last year or 50 years ago except for the differences in the linear front footage of the line hypothetically carbon gutter could be

Replaced every year at full cost using this approach some of the curve had been replaced at least twice since 1986. concrete curve should have at least 50 years of service life but no financial adjustment occurred based on differences in depreciation and local cycles graphically you can describe it as shown in the

Attached figure as you see where i’m pointing here this would be the benefit that you can constitutionally capture in an assessment fee structure private or special benefits may or may not exist and determining and measuring the benefit is and this graph for basically showing that there is private benefit at this level

And the difference between that and the public benefit is basically this portion right here that i’m pointing to and this can be assessed if the benefit is present uh the benefit here that i’m showing is basically a current benefit without any replacement at all this line may be sloping upward it may

Slope downward depending on if you have significant deterioration or so forth over time with the curve and gutter you’re replacing but this kind of gives you a visual aspect to what benefit you can constitutionally capture if it is present but all of this within this area here on this graph can

Be captured constitutionally as it exists i’m going to show you a few pictures of the neighborhood where the assessment occurred uh this is a basically a picture of our house in the center of a postcard used by the city of pure chamber of commerce it’s in a historic district here and a

Very nice old neighborhood but you can see this is our house right here now this is the adjacent house this house was appeared this summer in this old house magazine you can see this what a neighbor what a nice neighborhood it is this is a 1909 house right here

I’m showing you now a picture of the old curb and gutter in front of my house it has pavement that’s over what’s called a gutter pan and this is the gutter pan and there was some question by the city of whether or not the gutter pan was solid whether there was leaking of

Water through the gutter pan into the sub base of the street and so forth but this is a picture of our common occurred right in front of our house with the pavement extending somewhat over the gutter pan but as you can see uh there’s no cracks in this cutting pad

This is a picture of the new curve together that we placed it almost exactly the same location uh you can see here that there’s no payment extending over the gutter pan but in terms of its condition and so forth and its strength they appear to be very similar

We were asked to pay slightly less than a thousand dollars for the difference between these two curves and guns in our assessment here’s another view extending outward from that initial curve and gutter that i showed you of the old kerbin gutter but you can see here um the other pan is still

Structurally sound all through this segment but many years of service life left like it said before 50 years this is probably a good estimate of of the service life that should exist from concrete curve and gutter here’s another view looking in the opposite direction you can see once again

The together pan is pretty solid and the curb itself is very solid there’s no significant cracks other than expansion cracks that were built into the gutter initially to make sure that it had room to expand without cracking and breaking it up here’s a view of the curve and gutter after the

Pavement was removed and the water line was being installed and this shows the view of the gutter pan with no uh pavement existing adjacent to it and you can see here that there’s no cracks in the gutter pan here’s another view of the exposed curvature that’s basically uh showing the same thing

Another view showing the same thing this is a close-up of the curve in gutter showing the aggregate that’s used in in our kerbin gutter and this was pink this pink stone here is limestone aggregate that can only come from the black hills in south dakota so it was not you know inexpensive

Local aggregate aggregate that you get from uh glacial gravel pit or something like that in the area the black hills are more than 180 miles from here and much of the oldest curve and gutter had local gravel which is kind of different than our curve here’s a picture of some of the other

Curve and gutter and it does show some significant differences in condition you’ll see here there’s a chunk that looks like it might be close to falling out there has been a chunk that has fallen out here uh there’s some cracks noticeable cracks that you can see in this curve this is the

The neighbor with the house that’s just adjacent to us and he wanted his curving better replaced and was willing to pay full cost for the replacement and this condition as you can see is very different from what the curving gutter that my wife and i have but you notice that the curvature pan

And drainage would still function here but there’s not any significant cracking or so forth that you could see that water would still flow here’s another view of some other turbine gutter uh showing some cracking in this general area here but you can still see that the kerbin gutter pan would still allow

Water to flow there’s another view a little bit further down and you can see that this curve together shows some more deterioration and some obvious replacement which occurred because of the lateral offset that you can see in this area right here the photos that i’m showing you here were

Not the only neighborhood affected there were three neighborhoods and then the two other neighborhoods some of the curving gutter was only partially replaced and a front foot thieve was only applied for the curving gutter that was replaced so they were trying at least in some instances outside of our neighborhood where

The water line and the street was not being replaced of trying to use some of the existing curve together now i’m going to talk a little bit about the functions of curve and gutter and show you some of the references and so forth that verify those functions the american public works association publications

Basically say that curving reduces payment failure it controls drainage aids straight cleaning and snow plowing reduces required lighter blade and promotes safety the american concrete painting association says it reduces the water under the pavement combines pavement structures confines low speed traffic within the pavement the american association of state high officials

Provides drainage control roadway edge delineation flight of wave requirements are reduced and improves aesthetics it delineates pedestrian walkways controls access to the street reduces maintenance the american society of civil engineers the national association of home builders the urban lands institute says that it controls drainage protects pavement edges and sidewalks

And logs from vehicles based on these references which are leading authorities it would be difficult to find a private purpose other than aesthetics reducing modulated and keeping vehicles off lines most of the other purposes are primarily public in a sense essence related to street preservation and maintenance modern storm water management is

Actually promoting eliminating curves in many residential environments and going back to vegetated depression that allows storm water infiltration into the groundwater pavement edge support with granted or concrete retainers that the pavement’s surface level provides provides the pavement edge support and supports the increased pavement life that would come from a

Curve even though it doesn’t exist except through that edge support by not allowing the pavement edges to break off as easily i’m going now into the case law or the state statutes pardon me that seemed to be the primary culprits here and the heart of the matter and the

Point of confusion i think for the city that led to this case to begin with south dakota codified law 943-7 says the total benefit of the improvement shall be deemed to be not less than the total cost thereof as such total cost shall constitute the amount of the apportioned and shall include the

Contract price and all the engineering inspection publication physical legal and other expenses incidentally there too and this is basically a section in the assessment chapter that says the city can capture all of those costs and this was the city choice that they really hung their hat on in terms of their defense

South dakota codified lodge 945-30 says the cost may be assessed to a budding property by front foot and the total cost may be divided i’m thinking and i think the circuit court and the supreme court in our case said the two may be intended more for new development

And special effect benefits must be available here in order to make this appropriate and this final section of codify law i think really verifies this south dakota codified law 945-32 says instead of the method prescribed in 945-30 and 31 the cost may be assessed according to the benefits determined by the governing body

Each lot shall be assessed the amount in which each lot will be especially beneficial and such amounts shall not exceed said petty trip the city’s primary reliance on 437 may be the biggest short coming of the city’s approach applied procedures and i think they applied procedures for new streets through replacement curve

And gutter the law does show that 4057 can be used for total cost but you must look at the entire chapter in not just one section 4530 allows for cost by front foot and 4532 says it may be assessed according to the benefits determined by the governing body

An amount not to exceed the benefit you have to ask what is the spirit of the entire chapter i met with the mayor the city administrator the city engineer and the engineering technician and explained the tradition of my current better but they would not make exceptions nor would they treat our property any

Differently even though the conditions of their curb and government and gutter were different they were convinced that 45 30 was all they needed the bottom line is that no matter which section or sections are applied they have to be applied so the outcome is consistent with constitutional requirements so that these was

There’s way too much reliance on a particular section by the city and not enough investigation into all the statutes of the case law the most significant point is that state statutes do not trump the u.s and state constitution now i’m going to talk a little bit about the national and regional case law

The foremost case is the village of norwood versus baker which is a u.s supreme court case in 19 or 1898 it basically said assessment in substantial excess of special benefits is obtained the excess is taxation on private property for public use in cats band versus the city of

Granville which was a michigan case the court said you have to prove you did not receive special benefit because of the presumption of validity of the city ordinance in essence the city uh ordinance is presumed to be valid unless you could prove you did not receive special benefit

And the dixon road group versus the city of milwaukee which is a michigan case in 1986 the report said the benefit must be financial resulting from an increased market value of the land that must relieve it from a burden or make it specifically adaptable to a purpose which enhances its values and is

Reflected in that fact and goodall versus the city of clinton which was an iowa case the court said approximation of assessments and benefits of assessment and benefits is all that can be reasonably expected the plenus should not pay for those benefits accruing to the community at large but should pay for what they

Receive saint fair county home builders association versus the city of penn city which is a 2010 case in alabama and it was a user fee instead of case instead of a special assessment case the court said the user fee only has to be a fair approximation of the benefits cat’s band the assessment

Basically is invalid only if there is a substantial or unreasonable disproportionality between the amount assessed and the value which accrues to the land as a result of the improvements the defendants must present credible evidence to refute the presumption that the assessments are valid to contest the assessment in dickson road the assessment is

Considered fair if it considers the value of realty benefited and is proportioned to the property assessed there must be a reasonable relationship between the assessment amount and the amount of the benefit in the dixon road case the hearing officer ruled that the allocated costs to the assessees for the improvements

Were approximately 2.6 times the increase in value that their proven that the improvements would confer upon the parcel success in the same plant case it does give one pause even though it is a user feed case because the great freedom given to cities in the fair approximation concept

Real question is what benefit does replacing functioning curve and gutter provide this is the fundamental question the court had to answer in this case but there is a presumption that the city ordinance is valid and the assessees have proved that it is invalid to have a case in the south dakota

Case law which i’m showing on the next slide these are all supreme court cases south of the supreme court case in the city of brookings versus associated developers the court said there must be a special benefit to the assessees different from that according to the public at large

The fees must be apportioned according to the value of the benefit conferred and the assessment statutes must be strictly construed in favor of the property owners so you can see in south dakota that there’s a little bit more of a conservative lien i guess to the court then they’re saying that the

Assessment statutes must be construed in favor of the property owner as opposed to the city and the benefits and so forth that the city gets from the presumption of the lydia validity of its ordinance in holly versus which is the same case the court said a special benefit must be

Different than the benefit the public at large enjoys in rural versus rapid city which was a 69 case the court said the benefit must be above and beyond that enjoyed in common with the public at large for the rest of the community and the benefits should not be diffused throughout the community

The benefits must be actual physical and material and not merely speculative or conjectural the supreme court south dakota supreme court has very specific elements that is used to determine the constitutionality of special assessments and they’ve required some rigor on the part of cities in estimating special benefits in terms of the case itself

In circuit court i’m going to talk a little bit about how we made our case in the relative testimony necessities witnesses were basically the county assessor a real estate appraiser the realtor um hubbard who was the primary person on the case name and i the presenter the county assessor basically said there

Is no increase in property value due to replace curve and gutter but it would increase value for initial construction of current the real estate appraiser said there’s no increase in property due to replace curving cutter but it is difficult to determine value from replacement you would have to look at each property

To determine if the parcel received a benefit the realtor basically said the age of curving gutter and replacement makes no difference in a property sale bag and is not a factor in the sale that’s what she said hubbard said there was no increase in value of

His home and his wife’s home as a result of that but since he was a landowner and a an assessee you’ve got to take that with a grain my testimony basically was not so much associated with value but i described that curving gutter is a public capital improvement benefiting the entire municipality

It primarily aids drainage it keeps water out of the base of the street increasing street life and prolonging its function i also said that our jericho gutter was in good condition with a minimum of 30 years of remaining life special assessment i also said special assessment is not unconstitutional but

It must be defendable against unconstitutional claims by providing special benefits with some reasonable connection to the assessment fee they assess these witnesses really found no increase in value from replacing curbing gutter or that it was difficult to determine the fact and i basically spoke about how different assessment assessments and fees work

Based on new construction and replacement there must be some special benefit connected to the assessment fee and the benefit needs to be similar to the to the level of the fee the city’s witnesses basically said in particular the city engineer that he agreed with public curb and gutter function but that it

Could keep water from private uh property possibly a private function he also said carbon gutter replaced was replaced primarily because of the water line replacement and strength construction he said curve elevations and consequently drainage would not be consistent to facilitate drainage from one property to another

So all the current gutter had to be replaced regardless of condition they also testified you could see nothing wrong with the presenter’s curb and gutter the engineering technician said also said he could see nothing wrong with the presenters could recover but he did say you know there’s possible benefit

To the owner from uniform elevation and elevation changes in gutter would not allow property drainage without full replacement of everyone’s current government the former former mayor said it’s very difficult to place a dollar value and quantify landowners benefits but it creates an intangible value intangible seems to me to be very close

To speculative and conjecture it has and he also said it has always been done was to uh save general fund money the primary purpose for current gutter replacement once again was the replacement of the water lines and the repaving of the street quantification of the contractor’s cost

Was not quantification of the benefit of the adjacent property owners the city may have confused construction impact fees or exactions with special assessment or a general citywide or a general citywide fee or tax replacement would have been more appropriate at a minimum the benefits must be a fair approximation of the assessment fee

As was described in 945-32 where it says each watch shall be assessed the amount in which each lot will be especially beneficial and such amount shall not exceed said benefit nor would the u.s supreme court case presents a high standard and the state case is an even higher one

Relative to the benefits to be received the city witnesses showed a lot of ugly curve and gutter for about an hour and a half in part as part of their testimony and much of it was another neighborhood one pitcher had a board behind the curb holding the soil from leaking through

But the gutter pan was solid and the street face was drained and protected once again the city engineer and the engineering technician could find nothing wrong with my curb and gutter in the city’s case and there are witnesses after we were done with our presentation of evidence city engineering the engineering technician

Described and showed many examples of curb and gutter and poor conditions numerous photos primarily showing defects not the entire sections to be replaced they said calculating curve and gutter block driveway fee amounts based on each property’s linear linear front footage allowed the replacement to be tailored to the individual needs and benefits to

Each property owner they were cautious not to impose unreasonable expense on landowners so they did not charge more than the linear front flip feeding for curve and gutter and driveway replacement and most properties were assessed a different amount because they had different linear frontage the city’s legal council basically said

State statutes allowed such a practice because some of the state chapter sections specifically referred to and the city emphasizing the testimony the dramatic damage to private property that could result without functioning curb and gutters like infiltration of water into lawns lawn depression erosions vehicles leaving the roadway etcetera

They disagreed with the sscs and the level of precision needed an alternative benefits and that was understandable since they used a very simple simple method they argued that cost per linear foot for curb and gutter and for driveway approaches was not speculative in conjunction and was close enough to approximate the benefit

Once again they emphasized the lawn damage that could occur in water infiltration and they thought that any wrong approximation of value was okay in assessment it did not have to have precision or rigorous estimation methods behind it the presumption of validity creates a high bar for contesting any decision

Of the city but it does not purchase arbitrary unreasonable decisions i’m going to talk a little bit about the rules of evidence here because this was my first time to ever be in court and it might be helpful to at least some of the planners who’ve never had to defend anything like this

To go through a little bit of what i learned in that the most important point is there’s no do-overs that all evidence arguments must be presented at circuit court and nothing new could be presented and no new argument arguments after that point in hindsight we assess he should have

Taken more widely distributed photos of functioning curving gutter throughout the affected neighborhoods as a result of that more and better photos would have showed varying conditions of the deterioration and the weakness of the linear foot approach to establishing benefits fair and balanced testimony increases credibility and agreeing up front constitutional is health

Acknowledging property may receive benefit from replacing curbing better if it is not functioning and deteriorating may have also helped presenting the three types of fees those being special assessments general fees and development exactions or impact these terrifying differences of appropriateness under proper circumstances being aicp was helpful along with

Experience with patient management and curb functions which i do have as part of my background but lacking engineering testimony and i’m not a pe um i’m just trained as a planner uh lacking engineering testimony on the ssc site the highly credible engineering reference that’s shown previously documenting the positive

Functions that occurred together were extremely helpful the sixth judicial circuit court ruling basically said that special assessments must be strictly construed in favor of the property owner the city estimated benefits are assumed to be correct and this perception can be overcome only by a strong direct clear and positive proof

The benefit must be measured by the amount the improvement causes the property to increase in value and also the special benefit beyond what the public in general endures such a special benefit was shown to result no or no such special benefit was shown to result from the replacement of

Curving gutter the old curving gutter provided benefits because it was still functioning and the assessees enjoyed the same benefits shared by the city and the community as a whole the court basically implied the cost or linear foot foot was not sufficient approximation of the benefits received and the method was speculative and conjectural

It relied heavily on the logic of 945-32 which once again said each lot shall be assessed the amount in which each line will be especially benefited and such amounts shall not exceed symptoms in summary the south dakota circuit court found that replacing the curving governor provided no special benefits

And that the assessment was levied using speculative and conjectural methods in excess of the increase of specific monetary value incurred for a project that provided significant benefits to the city and the community as a whole that was not the end of the case by any means and the city

Appealed the case to the south dakota supreme court and the claims of the circuit court aired by misinterpreting 4530 and 45-32 once again 45 30 was the linear front foot method which is the city group 45 32 was the special benefit method in which the ssc’s preferred

They also said that circuit court aired by not giving proper deference to the city’s special assessments in essence of this presumption of validity and also by concluding that the assessees did not receive a special benefit beyond that enjoyed by the public the south dakota supreme court said in their room that

The city argued in their supreme court priests that south dakota 4530 required no showing of special benefits but the supreme court held the circuit court did not care in focusing on pluto’s special benefit for the receipt the city attorneys also agreed that they must show special benefits during questioning from the supreme court

Justices during oral arguments their position didn’t last long under the questioning by the justices a special assessment can be constitutionally imposed if the assessment does not exceed the benefit of receipt if the benefit is local in nature a cost can be assessed against adjacent property if the property receives a special benefit

If both general and local benefits are involved only part of the cost of the project can be assessed to the adjacent property owners the circuit board court they also said that the circuit court made proper deference to approve but because the city assessment that violated constitutional principles

It was by its very nature arbitrary unreasonable and beyond its authority evidence was considered and it was not mere assertions and plausible contentions and this is their language and frivolous the vows the city’s quantification of the benefits where ambiguous and conclusionary and that the benefits that the benefits equal the cost

The court said its ruling should not be broadly interpreted however that special assessments cannot be used to finance replacement curve and gutter that depends on the nature and character of the project the link i’m showing down there is a link to the supreme court case and that will be included in the

Presentation the pdf in summary basically the presumption of validity only goes so far the supreme court wanted to limit the effect of the ruling implying it was mostly factually based the linkage to the private function of curb cutter is a key in its constitutionality

This is a real lesson to keep in mind in all special assessment how much of the function is public and how much is private and how can you separate your estimates of the public benefits from the private benefits ferdinand’s landowner those are critical things to consider i’ll talk briefly about the aicp ethical

Considerations that came into play at least in my mind when i was considering the case one of those is to provide timely adequate clear and accurate information to all effective many of the local citizens lawyers city officials and others were not aware of the great legal areas

Of the cities in the city’s assessment practice and it’s questionable constitutionality the practice had not been challenged and it was enacted in 1986 since people uh you also have to give people the opportunity to have meaningful impact and include those lacking formal organization and insults many of the affected were on fixed

Incomes elderly or otherwise disadvantaged and the large assessment fee with little prior notice was a hardship to make most many of those were not in our neighborhood but the two others the other principle seeks social justice recognizing a special responsibility plan for the needs of the disadvantaged

And urged the alteration of policies and decisions that oppose such needs there did not appear to be an unbiased consideration of the facts of legal precedence by the city but because of a long history of the old linear foot assessment practice and they were not open to a new approach

The other principle to deal fairly with all participants in the planning process many curving gutters in good condition were being replaced but no finance financial adjustments from the contractor’s cost or linear foot were ever offered to the presenters knowledge there were many aicp ethics issues involved in this case

We know that dental work and some surgeries were postponed by some of the residents that covered the assessment of this litigation was occurring there was no prior notice other than the requirements for public notice so the quarter residents could save up to pay the fee

A 10 per year charge was levied on all late assessment fees we think that the city could have been more understanding just to give you an example the assessment for our property was 965 uh dollars to replace our current gutter even though it was in relatively good condition

Now i’m going to talk briefly about the neighborhood organizing and how we went about acquiring legal fees for the case all assessees were mailed an invitation to a meeting with our potential legal counsel to discuss the lawsuit there are 151 affected properties our attorney explained the legal issues

In our prospects of running this view at the meeting a sign up list was circulated and potential litigants were identified contribute a portion of the legal fee based on their front footage 42 of the 151 affected properties joined the lawsuit wade hubbard the primary litigant and the lawyer

And another lake neighborhood lawyer and i agreed to assist the legal priests to control the costs a seven-member steering committee was born from the participants to direct the process and to help stir the steer the case and so forth it keeps the residents informed at all stages of the process

The legal fees amounted to about 18.5 of the original assessment are about 4.63 per linear foot compared to an assessment fee of about 41.50 but the money was secondary to protecting the constitution and the legal and ethical issues to protect the underprivileged and others on fixed incomes

We had a very transparent and open and participatory process and we tried to keep participants informed at all the critical steps we had to go back to the assessees once more for money to cover the additional attorney’s fees because we didn’t assess enough to begin

With but the total was the 4.63 that i discussed but the attorney in the neighborhood lawyers did everything they could to control the cost and we used emails significantly to communicate with the assessors in terms of assessment guidance and general lessons you could provide in any assessment case beyond just

Recruiting together i would say that you need to know the fundamental fundamental purpose of the assessment and the infrastructure or service you are trying to finance is the primary public of purpose public or private and what proportion for each affected property don’t paint with too broad a brush and generalized to each property

You need to examine each property individually before you assess you need to ask will the improvement for which the assessment is to be levied performed as it did before replacement or is there some new additional special benefit that will improve exclusively to only bsse if you struggle to answer yes to this

Question don’t assess if you are estimating the benefits of special assessment err on the site of drug proportionality with the assessment fee the closer the assessment fee is to the actual benefit conferred to each property the more defendable the assessment becomes make sure the outcome primarily benefits

The local or adjacent owners if a special assessment is being used instead of a general citywide fee you have to ask what is the real improvement for changing benefits to each property that will result from the assessment and will it be reflected in the appraisers or the county assessor’s valuation

Make sure you have a method to calculate at least a fair approximation of the special benefits in south dakota the assessment should be of the amount the property has especially benefited based upon 45-32 a broad-based general infrastructure maintenance fee for a tax is appropriate and i’m going to leave you with a maybe

A little bit more of a hypothetical here but could a city’s curb and gutter or any other public infrastructure be so dilapidated dilapidated and aesthetically unpleasing that it would adversely affect the value of adjacent property and couldn’t any public infrastructure in poor condition do that and if so could

And more importantly should a special assessment be applied the municipal revenues continue to decline this issue may become more common you should be able to prematurely demolish any infrastructure with any service life remaining and then fully assessed to replace it otherwise you can have an absurd conclusion year after year

Of charging assessment fees and replacing good curve and gutter as the dixon case said there must be a reasonable relationship between the amount of the assessment and the amount of the benefit the final let view really brings up some real issues regarding sustainability and priorities for the city

There should where should revenues be directed first preservation or expansion what are the fundamental purposes for cities regarding health safety and welfare there are many answers and there’s quite a little bit of gray area in that regard in summing up i’ve talked about the legal principles for special assessment aicp ethics considerations

Neighborhood organizing and security and lessons learned are there any questions thank you very much ben i was great presentation we do have some questions so if um if you’ll stand by i’ll read those to you for your answers we’re still getting some folks that are saying they’re

Having a difficult time hearing you so if you could begin into the microphone and speak up just a little bit hopefully that will help the first question is would it also be accurate to say that to the extent they aid in street cleaning curbs and gutters also help to preserve and minimize

Maintenance costs of storm water drainage i would say probably uh because if you didn’t have curvy gutters existing to facilitate storm water drainage you might have more erosion and so forth than if you used uh what what i would describe as diction pitch depressions and so forth uh that would definitely be a

Consideration uh you might be able to align the bottom of the ditches with stone or some other thing that would hold the vegetation such that it wouldn’t erode as much but it probably would reduce storm water maintenance cost okay our next question is in the south uh

Actually it’s mostly a comet in the south very little curb is provided in the mid-century neighborhoods said i like curb and gutter better for the look but it’s not always available and maintenance in no an older neighborhood seems to be a problem due to the cost

So i don’t know if you have any comments on that then well that’s i think that’s a valid uh point i mean it really wasn’t framed as a question for instance my brother lives in the south he lives in the city of charlotte and in the neighborhood in the southern part

Of the city and there are no curbs and gutters in his neighborhood and it’s a relatively high-end neighborhood um and they maintain everything with ditch ditch sections and so forth there in terms of storm water drainage and the point that the questionnaire made about the maintenance costs associated with german gutters

It shouldn’t be that high high a cost to maintain once it’s constructed because of this particularly if it’s concrete or granite like you see it in the district of columbia for instance because it’s service life should be somewhere close to 50 years unless you’re having snow plows hitting

It or some other disruption or you have uh utility cuts and that kind of thing that are occurring through you know solid and good uh conditioned current gutter there really shouldn’t be that much of a problem with maintenance costs until it gets to the end of its service okay okay thanks ben

I’m cutting and pasting questions that are coming in as we go here the next question is was the drainage basin of the community looked at as part of the public-private benefit uh that’s a little bit unclear to me if you’re trying to in most cases kirby gutter expedites storm drainage and

That can have both positive and negative effects it increases the speed of the of the drainage stolen water and filtration which curb uh basically uh restricts as a result of that you know you might have more flooding and so forth associated with curving gutter than you would if you had storm water infiltration

That was not a significant consideration in our case because storm water drainage is handled relatively easily within our city and it’s never been an issue in our drainage basin if you were in a drainage basin large drainage basin with not a lot of elevation differential which you could have in flatter areas

And so forth where you would expedite storm water flow curving gutter might actually be an impediment because of increasing the speed of flood waters and storm water drainage we also have a another question that’s similar to badasses what’s part of the city’s discussion relative to storm to water runoff from private property

Into the area of the curb and gutter i.e cellar drains sub-pumps roof leaders distributing the curb and gutter and how would this relate to current ms4 requirements in certain areas yeah i’m not sure what ms4 requirements are but in most of the instances that we’re talking about here

All of the lawns but basically have provided infiltration for the runoff from all of the properties none of the none of the properties in our neighborhood for instance that i am aware of i ever have had any of the drainage from the roofs into the street there could be some

Drainage i think for moves if you had your say your your gutter down flow or so or something like that would go immediately into a driveway and that type of thing which fed into the street that would definitely be an issue that would expedite uh the drainage and have storm water

Flowing into the curb and gutter at a more rapid rate but most of the incidences in our historic neighborhood the gutters and so forth just go onto the lawns so that we can water our lawns with the rainwater and then there’s a relatively dry climate uh compared to

You know eastern climates so that kind of thing uh rainfall and gutter drainage is actually a benefit in most tenses instances in our part of the world right and somebody also questioned doesn’t the curb and gutter also assist in snow removal so that’s kind of an ancillary

Part of some of the previous discussion uh in our case it generally gets covered up by snow removal if i could go back to that other slide i could show you that it does facilitate drainage once the snow starts to melt but uh the snows are generally deep enough until

It’s kind of difficult to determine where the location of the curving gutter so they stay away from the curb and gutter in our neighborhood probably by a foot a half to two feet would be my guess base based on the way i look at it having you know working for a south

Carolina department of transportation i can tell you that the curb and gutter and other obstructions like that can sometimes make it difficult for plow drivers because of not being able to see and determine exactly where the location of the curve is if their plow blade hits that curve it can throw them

And actually causes accidents in some instances for example if you have uh something like a curve and or a median and if the snow’s so deep you can’t really determine where the boundary is if your plow blade hits that we’ve had several plows that have had accidents as a result of that

Thanks ben i’m not sure how to put this question in context but at earlier in your presentation somebody asked would you expect the same logic and law could be applied to driveway aprons yes and it was when i talked about curving gutter everything that i basically described to you was actually

Uh considered in the driveway aprons and they actually charged for not driveway aprons as a part of the curb and gutter replacement the fee was different because of the the cost per lead to your foot was a little different but they actually did charge for that and it was all built into

The special assessment but at a slightly different rate okay great one of the participants also wanted to you to describe how many neighbors contributed to the lawsuit um had that documented in one of those slides let me go back at home uh 142 151 properties or 68 people and some of those people

Were like joint household owners still like my wife but there were 68 people and 42 151 affected properties okay great somebody asked an ethics question uh they asked where do you work would you have challenged the city if you worked for the city and what aicp ethics issues would that have presented

I know i might have been looking for a job if i had been employed with the city but that’s definitely a consideration uh that you’d have to make as an ethical determination on your part i think the least that you should be required to do and that’s initially what we did even though

We were not employed by the city is both mr hubbard and i presented most of the case law that you’ve seen at the public meetings before the special assessment enrollment decision was voted upon by the city council and we basically described to them that what we thought the constitutional issues were over the

Practice and his unconstitutionality and finally thought it was that constitution and i think minimally even if you did work for the city you might want to bring that up now the question is after that how far you would take it as a in terms of a legal challenge i guess you’d have to

Put as a i guess a soul-searching measure that you might have at a personal level right somebody wanted to know why you didn’t argue that all the improvements all the improvement was in the public right-of-way and not on private property the way the property ownership is described in south dakota

Property owners really own the property to the center of the street so a lot of it was actually on our property for instance if there’s an issue associated with uh a landowner’s sewer line going out to the sewer line in the street the landowner basically has to pay for any maintenance or rehabilitation

Whatever that’s required as a result of keeping their sewer line to the middle of the street maintained and operable so it’s a little different possibly here than it might be in the location of the question thanks ben the next question is is if the whole area was disturbed by the water main installation

Why wouldn’t the replacements be part of the water main job special assessments for replacement appears to have been unnecessarily separated from the water main job i’m not sure that i understand are they saying which we should have been assessed for the street and water main question um if the whole area was

Disturbed by the water main installation let’s be part i think i think that’s basically the point we were making in our case in the sense that we did not feel that our current gutter because of its condition was required to be replaced that was still functioning

And did not need to be replaced because of the city’s decision to replace the water line which led basically to extremely pavement street replacement they should have picked up the whole thing and that was really one of them i guess the metal points of the case in particular for instance if you

Remember the questioning and and so forth around um the particular pictures of kermit gutter that i showed about the property that my wife and i own you know they both the city engineer and the engineering technician said they can see no need for it to be replaced

Based upon its condition but because the streak and water line were being replaced they were changing the elevation of the street so consequently they would have to change the elevation of a curve and particularly the gutter pan in order to allow drainage and facilitate drainage throughout the entire project

Because the elevation differences would have been different between my curve and got better and the replace turbine gutter had they not done that even though the condition of my german guns was good but they still assess me for its full value for the linear front foot cost

Okay and i think you probably answered this question later in your presentation somebody wanted to know if the special assessment was repealed it looks like it’s going to be they have not made a special assessment this in this case it was declared unconstitutional and valid the city has not letting special

Assessments for kermit together since this case was decided by the south korean supreme court actually since it was decided by the circuit court they did have a bill in the legislature this year uh to make some clarifications to state statutes that allow for a city-wide uh street maintenance fees street carbon

Gutter maintenance fee that they can assess to all landowners now to finance things like this for replacement okay so that speaks to another question that we got about what was final outcome did you still wind up having to pay the 965 or did they reassess or did they not

Assess at all so they gave us our money back they gave all of the assessees and petitioners our money back they did not give the money back to the people who were not part a party to the case oh that’s very interesting okay i’m sure there’s other questions coming

In and i’ll check back with those but going continuing down our list from earlier questions that were submitted somebody wanted to know what type of legal team did the residents have was it like a constitutional legal team a takings land use etc well mr hubbard is a neighbor

That’s one block down for me the other attorney lives across the street on the same block mr hubbard has a relatively experienced attorney he’s been before the south dakota supreme court several times and many arguments before them he was an assistant attorney general for the state of south dakota for a while

The other attorney that lives across the street from me she is an assistant attorney general now and i think she is in charge of all appeals from the state so both of them are very experienced attorneys the attorney that we actually hired to do uh the final

Arguments before the court and the final reviews and so forth of our draft uh legal documents is also a very experienced attorney probably 35 minimum 35 40 years of experience the other two attorneys are probably 30 plus years of experience also i’m very familiar with the united states

And the state constitution as am i although i’m not in the church i do have a brother i have an older brother that’s an attorney with my nephew that’s an attorney and i know lots of attorneys we talk about these things all the time and

As you know pepper you know we attend a lot of legal training and so forth to give us the background for these kinds of cases but i’ve attended many of those cases many of those courses great thanks thanks ben i’m sure that’s helpful to them to know how

You got in contact with somebody that had such great background and and knowledge the next question um kind of goes back to some earlier ones but i think it has a little bit of a different twist they said your curb and gutter was intact and perfectly fine but

She showed pictures that many other locations were not in very good condition was the result of the lawsuit that the property owners with poor condition curb and gutters also did not have to pay the special assessment and i think you mentioned that everybody that was in the lawsuit

Got their money back but those that didn’t enjoin in the lawsuit were not refunded right and basically and basically because i think a lot of that was because of the functioning carbon better particularly the gutter pan because the city made such a case about damage from the water uh to effective

Properties but as long as the gutter pan was functioning that could never occur okay i think it’s an it’s an interesting you know thought about how it might have come down how they might have determined if section you know segregated that out that based on condition and i think that’s

What that question kind of asked but that wasn’t the way that the that the lawsuit went so yes i do think that brings up a very good point that had they approached properties differently and assessed different amounts based upon condition instead of the linear foot approach their case would have been

Much stronger and particularly if they had used an appraiser to make those judgments now the real question that we always had in the back of our minds as those successes and the people who are steering the cases how much what would the administrative costs be for letting a fee like that

Uh compared to what you know their costs were for doing it with this simple front foot method because they would have significantly higher costs to administer than a special assessment using that method but it would have been i think a far more defendable method and frankly i was kind of surprised that

They didn’t do it that way when i met with the city engineer and the city administrator and the mayor informally before this thing ever began it i was going to say well you can’t assess people with good curb and gutter the same amounts but they wouldn’t think any

Adjustment or so forth based upon curving the other conditions ben we have about three more questions and about five more minutes roughly five six more minutes to address them the next question is somebody want to know if individual real estate appraisals are needed to contest special benefits when the city says that uniform

Additional benefits are accruing to properties within the project i think we’ve kind of implied that you have to treat and when united stated specifically you have to treat each property differently and in south dakota the way the case law described how the benefits have to be you know at least a fair approximation

Of the assessment fee i think that’s leaning very closely toward that suggestion that an appraisal of some sort would have to be applied in order to make it valid the importations are very strong if that’s the case in south dakota okay the next question is municipalities

Assess homes and land based on a wide number of factors for taxes this would seem a clear way to define individual benefits for some capital improvements as such as the provisions of water and sewer it would also suggest that because homes with sewer and water are taxed at a higher

Rate that let’s see yeah there’s a question i think it said would it also suggest that because homes with water and sewer are taxed at a higher rate that such higher rates should cover the maintenance costs including uh related gutter repair replacement that’s kind of what we were thinking as assessees

The property taxation in the city up here is is not low uh we don’t have a lot of other types of taxes in the state of south because we have a sales tax which picks up a lot of the state’s revenue we have no income tax

And the property tax is the tax that’s basically used to finance education and most local government functions i was surprised in one and prior to this uh assessment i was unaware that the city was actually doing special assessment replacing i you know i don’t attend a lot of the city needs and

I was surprised by it there’s only two cities that we were aware of after we began this litigation in the state of south dakota that that actually did assess a proline your foot for curb and gutter and once one was the city of fear the other was the city of fort pierce

None of the other cities in the state that we were aware of and i actually did some informal inquiries of my planning colleagues across the state well most of whom i know pretty well because of the number of years i’ve lived here and none of them

Did it nor were they aware of anyone else that did and as we discussed earlier i’m also affiliated with this 14 state association and we have a listserv that we use quite often for inquiries related to issues like this and i also use the listserv ask those other states if they never

Heard of things like this for linear front footage total cost replacement and none of them had ever heard of great ben we’ve got just a couple more questions see if we can get through those in the next couple minutes and then we’ll give cody a chance to put up um

How to log your cm slides and we’ll wrap up the webinar here it says while this issue is making its way to the court system what was the general mood of the class of assessees when it came to applying for unrelated permits for instance residential editions or accessory buildings did they tend to

Delay those plans until after the matter was resolved or i think they mean did the city did they’ve uh or no they they mean the property owners did they file those permit applications with the expectation that the curb and gutter issue would be kept separate from those applications yes

And the city of up here was totally fair and unbiased in any of those types of decisions there’s no question that they performed their municipal functions for the utmost integrity great to hear ben did you and somebody else want to know did you live in a special uh sewer

District that is taxed differently no i do not okay and then the last question is what if the city would have required property owners to pay for improvements out of their pockets versus being assessed would you have still challenged the requirement uh depends on whether they were required me to pay for them

Had mine been in the same condition that it was at that time i certainly could have seen no reason for me to replace mine now had they changed the elevation differences and so forth and caused say my property to being flooded as a result of my property having a lower elevation

Than adjacent properties or something i might have sued them for basically destroying the value of my existing current government or i might have at least thought about it um because other decisions they made that would have i guess imperiled the function of the curve and gutter that i

Had at that time it would have been i think a very similar impact to a curb and gutter a special assessment because it’s it’s basically the same they would be taking the function if nothing else in your existing curvature by doing that by making that decision great i appreciate your time today um

I’d like to very much thank cody for providing some technical support on this webinar and definitely thank ben orsman for his presentation and all his hard work on this this project for those that were attending we did get a lot of comments that was difficult to

Hear for some of you we’re hoping that the recording of the session didn’t have the same audio problems that some of you were experiencing that will be posted cody correct me if i’m wrong you’ll have that up sometime next week on the utah apa website so i guess i’d encourage those of you

That had a difficult time hearing the entire presentation to revisit the recording and perhaps we’ll be able to pick up some of the information that you that you might have missed today and so ben thank you again so much for helping out the western central chapter with providing this valuable information to

The other planners around the country and thank those of you who joined us today cody or ben do you have any last wrap-up items i thank you all for allowing me to present this information um i am planning on writing a short paper associated with this topic that will

Probably be published in the western uh planner journal sometime within the next year so those a written description may be available also okay um i’ll just yes yes thank you ben and thank you pepper i’ll just go through a few of the closing remarks and then we can end the session

Um so for those of you still in attendance i’ll just go over on how to log your cm credits as you can see here you’ll just need to go to www.planning.org cm select activities by day and then underneath today’s date friday march 18th you’ll see special assignments assessments create special benefits

Avoiding an unconstitutional taking and this is listed underneath the western central chapter um it is up already so once you click out of here you can go and log those credits and then as pepper was saying earlier we are recording today’s session so for those of you that did have audio problems

Be sure to check out the video recording and a pdf of today’s presentation at www.utah webcast dash archive and this should be up by monday so i’ll leave this up and so you guys can copy this down and thanks again for today’s session thank you very much cody and just a

Reminder though to those of you that are still on this was approved for 1.5 cms of law credits so in case that in case we neglected to mention that earlier yes thanks again ben and cody appreciate it thank you thanks and that will conclude the webinar

ID: OAWu5aAtm6M
Time: 1344303557
Date: 2012-08-07 06:09:17
Duration: 01:32:00

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