Sharon K. Nelson G. Jean Connelly John P. Rusinack and Beverly A. Rusinack, Husband and Wife and Lois Johnson v. City of Hampton, Iowa

IN THE SUPREME COURT OF IOWA

No. 08–0563

Filed August 26, 2011

SHARON K. NELSON; G. JEAN CONNELLY; JOHN P. RUSINACK and

BEVERLY A. RUSINACK, Husband and Wife; and LOIS JOHNSON,

Appellants,

vs.

CITY OF HAMPTON, IOWA,

Appellee.

Appeal from the Iowa District Court for Franklin County, Bryan H.

McKinley, Judge.

Landowners appeal from district court decision denying their

challenge to special assessments against their property for public

improvements made by a city to a residential subdivision. AFFIRMED.

Raymond P. Drew, Hampton, for appellants.

James R. Wainwright of Ahlers & Cooney, P.C., Des Moines, for

appellee.

2

CADY, Chief Justice.

In this appeal, we must primarily decide whether a city council’s

decision to make public improvements within a subdivision renders the

city unable to assess the costs of the improvements to landowners when

a city ordinance provides for the improvements to be made by the

subdivider.1 The district court determined the city failed to enforce a

subdivision ordinance requiring the subdivider to pay for street

improvements, but concluded the plaintiffs failed to state a claim upon

which relief could be granted because a city cannot be sued for its failure

to enforce ordinances. The district court further found the assessments

were not excessive. On our review of the issues presented on appeal, we

affirm the decision of the district court.

I. Background Facts and Proceedings.

Nearly twenty years ago, Arthur Raisch and landowners in the

northwest edge of the City of Hampton, Iowa, began to develop plans for

a high-end residential housing project. The basic plan eventually

developed into three separate subdivisions, each connected by streets

dedicated within each subdivision. These streets were accessed from the

northern end of Third Street Northwest. Although this litigation

primarily centers on the third subdivision, the other two phases are

relevant to understanding the legal issues presented in this case.2

The first subdivision was located directly north of Third Street

Northwest. It is known as Oak Hill First Addition. The preliminary plat

1Although the terms “subdivider” and “developer” are often used synonymously,

in this case, the words refer to distinct roles. The term “subdivider” is defined in the

Hampton ordinance as “any person, firm, corporation, or legal entity undertaking the

subdivision or resubdivision of a tract or parcel of land.” Hampton, Iowa, Code

§ 170.04(18) (2002). The term “developer” is defined as “the owner of land proposed to

be subdivided or the owner’s agent.” Id. § 170.04(8).

2A map of the plat at issue in this case appears at the end of this opinion.

3

provided for the dedication of a street and cul-de-sac identified as Oak

Court, which extended north off Third Street Northwest. Twelve lots

abutted the cul-de-sac and street. The plat also called for the dedication

of an east/west street called Oak Hill Drive that would intersect Oak

Court. Oak Hill Drive would run east from Oak Court approximately

300′ into a cul-de-sac to provide access to the second subdivision

immediately east of Oak Hill First Addition. This subdivision would

consist of six lots and would be known as the Gallogly Subdivision.

The plans also called for Oak Hill Drive to run west of Oak Court to

a cul-de-sac and would provide access to the third subdivision. This

subdivision would be known as Oak Hill Second Addition. Ultimately,

this third housing development would be separated from the Oak Hill

First Addition by approximately 300′ of land owned by Raisch and other

persons. Raisch, the primary developer, had preliminarily platted this

area to be part of this subdivision, but eventually decided to limit the

Oak Hill Second Addition to the west half of the land. Raisch had

acquired ownership of the land over which Oak Hill Drive would extend

from Oak Hill First Addition to Oak Hill Second Addition. Oak Hill Drive

would then extend approximately 400′ within the subdivision containing

ten abutting lots.

The Oak Hill First Addition was developed first, followed by the

Gallogly Subdivision. Final plats were filed for both subdivisions, and

the streets and municipal service lines were installed during the same

time that the lots were sold and homes were built on the lots. The plans

to develop Oak Hill Second Addition did not proceed forward, and the

land to the west of Oak Hill First Addition remained largely undeveloped.

The first three lots on the west side of Oak Court in the Oak Hill

First Addition, beginning at the southern portion of the point where

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Northwest Third Street enters the subdivision, are identified as “lots one,

two, and twelve.” A sixty-six-foot strip of land between lots two and

twelve was dedicated as the beginning of the street that would extend

westerly from Oak Court into Oak Hill Second Addition to complete Oak

Hill Drive. Plaintiffs John P. Rusinack and Beverly A. Rusinack

purchased lot one in 1992. A house was erected on the lot at the time.

Plaintiff Lois Johnson purchased lot twelve in 1993 with her late

husband. The Johnsons built a home on the lot. Plaintiff G. Jean

Connelly purchased lot two in 1998, together with her husband, who is

now deceased. A house was erected on the lot at the time of the

purchase. The land dedicated as the street between the Johnson and

Connelly lots consisted of dirt and gravel.

The Rusinacks also purchased a tract of land immediately to the

west of lot one. A portion of the northern boundary of the tract fronts

the planned future development of Oak Hill Drive running into the Oak

Hill Second Addition. The Johnsons also purchased a tract of land

immediately to the west of lot twelve. The southern border of the tract

fronts the planned development of Oak Hill Drive.

Plaintiff Sharon Nelson owns approximately three acres of land to

the west of the second Rusinack lot. The land is rectangular in shape.

The border to the north is 100′ and runs along the planned future

development of Oak Hill Drive. The lot extends 650′ to the south. A

house is located on the southern end of the lot, which fronts another

street south of the development that runs east and west. Nelson and her

husband had lived on the acreage for some time and used the northern

border of their land as pasture for horses for many years.

The land between Oak Hill First Addition and Oak Hill Second

Addition had been preliminarily platted by Raisch for development.

5

However, Raisch decided he did not want to include the land in the

development of Oak Hill Second Addition. In April 2000, Raisch entered

into a written development agreement with the City of Hampton in

conjunction with his decision to proceed with the development of Oak

Hill Second Addition. Under the agreement, Raisch agreed to employ an

engineer to survey the property and proceed with the residential housing

development. In return, the city agreed to make certain improvements to

the property. In particular, Raisch agreed to dedicate the land to extend

Oak Hill Drive 300′ from the west edge of Oak Hill First Addition to the

Oak Hill Second Addition, and the city agreed to install the water main

within the three-hundred-foot section. Raisch, however, agreed to

compensate the city for the construction cost. Raisch agreed to engineer

and install the sewer and water mains within Oak Hill Second Addition

and connect them to the water and sewer mains extended by the city to

the subdivision. The city agreed to furnish the pipes and materials to

Raisch for the installation of the sewer and water mains within the

subdivision. Additionally, Raisch agreed to install the storm sewers

along the entire street extending west from the Oak Hill First Addition.

He also agreed to be responsible for grading the entire street. Finally, the

city agreed to surface the entire street and assess the cost to the

adjoining property owners. This agreement was approved by the city

council.

In 2001, Raisch hired a civil engineering firm to survey and

subdivide the land as well as prepare the preliminary and final plats for

the Oak Hill Second Addition. The engineering company understood the

subdivision would be separated from Oak Hill First Addition by 300′, and

that Oak Hill Drive would be extended from Oak Hill First Addition

across the undeveloped land into the new subdivision.

6

The plans and plats for Oak Hill Second Addition were completed

in 2002, and the project began in 2003 with the installation of sewer and

water mains along Oak Hill Drive running west to the cul-de-sac. The

street was also graded, leaving a dirt surface from Oak Hill First

Addition. The city chose not to pave the street and not to install curbs,

gutters, and the remaining storm sewer until the lots began to sell and

homes were built.

The final plat of Oak Hill Second Addition was approved by the city

council and recorded in June 2004. This plat consisted of nine lots

abutting the street and cul-de-sac designated as Oak Hill Drive. The

street then extended east from the lots to the land dedicated as the street

between lot two and lot twelve of Oak Hill First Addition.

By 2005, over half the lots in the subdivision had sold, and the

owners were experiencing some problems with the dirt surface street, as

well as experiencing problems with surface drainage. The city decided to

proceed with plans to surface the street. Raisch had passed away by this

time, and the subdivision project had slowed. The city, however,

continued to move ahead with the project. It hired the same engineering

company that had surveyed the land and prepared the plat for Raisch to

prepare the preliminary and final assessments for the street resurfacing

project.

In November 2006, the city council adopted a resolution of

necessity for the Oak Hill Drive improvements. The street improvements

essentially consisted of the installation of 325′ of storm sewer and 905′ of

six-inch concrete paving with integral curb and gutter. The surfacing

would begin at Oak Court in the Oak Hill First Addition and run west

into the cul-de-sac in the Oak Hill Second Addition.

7

The costs of the project in 2006 were estimated to be $183,100.

An assessment plat and schedule were prepared. The city intended to

assess 89.6% of the costs of the project to the owners of the lots and

tracts abutting the improved street, pursuant to the special benefits

derived from the improvements. The assessments were described in a

preliminary assessment plat and schedule. A total of eighteen parcels of

land abutting Oak Hill Drive were subject to the assessment. The

property included the nine lots within the Oak Hill Second Addition, the

two lots within Oak Hill First Addition, and seven tracts of land abutting

the street between the two subdivisions. Thus, the property owners

affected by the assessment included Connelly, Johnson, Nelson, and the

Rusinacks. The two lots owned by Johnson on the north side of the

street were included in the assessment. The lot owned by Connelly on

the south side of the street was also included in the assessment. The

back lot owned by the Rusinacks on the south side of the street was

included in the assessment, and the lot owned by Nelson was included in

the assessed area because the north boundary of the lot abutted the

street.

The assessment schedule was prepared by the same engineering

company that had originally surveyed the land and prepared the

preliminary and final plats for the Oak Hill Second Addition. The

company essentially assigned a portion of the construction costs to the

owners of the property abutting the proposed street according to the

number of feet of property fronting the street. Under this method, the

engineer proposed the following assessments:

Nelson $9417.55

Rusinacks $5481.16

Connelly $6030.18

Johnson $7663.96

8

In December 2006, Nelson, Connelly, Johnson, and the Rusinacks

filed a petition with the district court to contest the assessments. The

petition claimed the assessments were void because they were contrary

to a city ordinance that required the subdivider to “make and install” the

grading and improvement of streets within the final plat of a subdivision

by “surfac[ing] or caus[ing] to be surfaced the roadways” in a manner

prescribed by regulations. Hampton, Iowa, Code § 170.09(18)(A) (2002).

In the alternative, the petition claimed the assessments of the properties

exceeded the statutory limitations for assessments, and no special

benefit was derived from the proposed improvement of the street.

The street construction project and assessments went forward, as

did the lawsuit brought by the property owners on the east end of the

street project. Additionally, the city hired a second engineering firm to

review the final assessment schedule. The engineer recalculated the

assessments of the street construction costs under a formula known as

the “Flint Formula.” Generally, this formula distributes the costs

according to the special benefit conferred on the property as result of the

paved street, based not only on the frontage foot of the property but also

the depth of the property within the assessment district. The special

benefits are considered in the formula by assigning a point value to each

benefit. Based on the Flint Formula, the engineer determined the

following assessments:

Nelson $8210.80

Rusinacks $8199.54

Connelly $9698.36

Johnson Tract $6717.41

Johnson Lot $9894.41

The city council considered the assessments reached by both

engineers in making its final determination. It directed the final

9

assessments to be corrected by decreasing the amounts of the

assessments against the lots owned by Connelly and Johnson by fifty

percent because they were corner lots that had existing access through

Oak Court and Northwest Third Street. The city council adopted the

Flint Formula calculations for the tract of land owned by the Johnsons

and the tract of land owned by Nelson. It increased the assessment to

the tract owned by the Rusinacks in an amount between the final

assessment and the Flint Formula assessment.

The street improvements were completed by the city during 2007,

and a final assessment schedule and levy was adopted by the city council

in January 2008.

The final costs of the project were less than the expected costs, and

the five lots and tracts subject to litigation were collectively assessed

$30,807.90 of the total assessed costs of $148,439.33. Ultimately, the

assessments were made as follows:

Nelson $8210.80

Rusinacks $6083.30

Connelly $4849.18

Johnson Tract $6717.41

Johnson Lot $4947.21

The case proceeded to trial. The plaintiffs testified they would not

use the new street and would derive no benefit from its presence. A

property appraiser also testified on behalf of the plaintiffs. He did not

value their property, but indicated that any benefit derived from the

paved street was offset by the loss of privacy resulting from the street

and the increased traffic. The city introduced expert testimony showing

the street increased the value of plaintiffs’ properties. The testimony

applied the Flint Formula, as well as other factors.

10

Following the trial, the district court rejected the claims by the

plaintiffs that the city had no authority to assess street construction

costs to them when a city ordinance made the subdivider responsible for

the costs. In doing so, the district court also rejected the claim by the

plaintiffs that the subdivider would have been required to pay for the

street construction if the ordinance had been enforced and that they

were entitled to the benefit they would have received if the ordinance had

been enforced. It concluded the plaintiffs failed to state a cause of

action. Finally, the district court found the plaintiffs failed to prove the

assessment by the city was excessive and that their properties were not

benefited by the construction of the street.

The plaintiffs filed an appeal. They first claim the city had no

authority to assess the costs of making improvements because the

ordinance required the subdivider to make the improvements. They

assert this claim is properly raised by a petition to test the legality of the

assessment and assert no assessment would have been necessary if the

ordinance had been followed. Alternatively, the plaintiffs argue the

assessments were excessive.

The city argues the claim by the plaintiffs based on the city

ordinance is factually deficient because a portion of the street surfaced

by the city was outside the subdivision, and the ordinance only makes

the subdivider responsible to improve streets within the subdivision.

Thus, the city asserts it was responsible to surface this portion of the

street, even if the ordinance had been enforced. They also argue the city

is not required to follow the ordinance, and it may utilize any available

authority to make public improvements. Finally, the city argues the

assessments were not excessive.

11

II. Scope of Review.

Our review of decisions on property assessments is de novo. Gray

v. City of Indianola, 797 N.W.2d 112, 117 (Iowa 2011). We give weight to

the findings by the district court but are not bound by them. Id. On

appeal, the plaintiffs have the burden to show that the special

assessments were excessive. Id.

III. Plaintiffs’ Claim Concerning the Ordinance.

The plaintiffs argue their claim is authorized under Iowa Code

section 384.66(1) (2007). This section permits a person to test the

“legality of the assessment procedures by a petition in equity filed in

district court.” Iowa Code § 384.66(1). The plaintiffs’ claim, however,

does not challenge the legality of the procedures to assess property under

chapter 384. Instead, the plaintiffs have brought an equity claim

predicated on the perceived unfairness of allowing the city to assess lot

owners for improvements it made when a city ordinance directs the

improvements to be made by a private subdivider. They argue the city

may not exercise its assessment authority under chapter 384 under such

circumstances.

We agree with the city that the plaintiffs have not stated a claim

under section 384.66(1). The claim by the plaintiffs does not challenge

the assessment procedures. We also agree that those plaintiffs who own

property within the Oak Hill First Addition do not fall within the

parameters of the claim. The ordinance at issue does not require a

subdivider to make improvements outside the platted area of the

subdivision. Additionally, these plaintiffs make no special claim of

prejudice to support any other claim other than the city was required to

enforce the ordinance. Nevertheless, those plaintiffs who own property

12

abutting the subdivision plat have stated a claim in equity, and it is this

claim that we proceed to resolve.

IV. Impact of City Ordinance on Assessment by the City.

Municipalities are “creature[s] of the state legislature.” 1 Eugene

McQuillin, The Law of Municipal Corporations § 3.02, at 234 (3d ed. rev.

vol. 1999) [hereinafter McQuillin]. In Iowa, cities are given the power of

self-government or the authority to “exercise any power and perform any

function it deems appropriate to . . . preserve and improve the peace,

safety, health, welfare, comfort, and convenience of its residents.” Iowa

Code § 364.1. One exception to the broad powers conferred to cities is

the power to tax residents. A city has no power to tax unless specifically

authorized by the legislature. Id. § 364.3(4). The assessment of the

costs of street improvements is generally considered to be a form of

taxation.

Our legislature has specifically authorized cities to assess the costs

of building or repairing streets and other associated public improvements

within its borders to property owners based on the benefit derived from

the improvements. Id. § 384.38; see also Des Moines City Ry. v. City of

Des Moines, 183 Iowa 1261, 1273, 159 N.W. 450, 454–55 (1916).

Although the legislature has provided cities with a specific procedural

mechanism for financing public improvements, it expressly recognized

and reserved cities’ right and power to “establish and enforce ordinances

regulating the division and use of land.” Iowa Code § 354.1(3). As a

result, we generally employ a “liberal approach to [a city’s] subdivision

decisions.” Blumenthal Inv. Trusts v. City of W. Des Moines, 636 N.W.2d

255, 268 (Iowa 2001).

Iowa’s statutory property assessment authorization is found in

Iowa Code chapter 384. The chapter recognizes that the construction

13

and improvement of city infrastructure is a necessary component to

community development by establishing a procedure for the assessment

of the costs to the benefited property. See Iowa Code § 384.61. Yet, the

statutory scheme does not limit the power of a city to pursue public

improvement projects through its independent authority to contract with

subdividers to share in the costs of installing public improvements. See

id. § 384.41(3). Generally, a city is authorized to enter into contracts,

including contracts governing the construction of streets and the

installation of public improvements. 10 McQuillin § 29:6, at 337 (3d ed.

rev. vol. 2009); see also 13 McQuillin § 37:98, at 362 (3d ed. rev. vol.

2008).

Streets and other public services are a normal part of most real

estate development, especially development projects involving the

subdivision of land. A subdivision divides a tract of land into multiple

lots and generally requires the development and integration of streets

and other public services. See Iowa Code § 354.6(1)–(2) (defining

standards for subdivision of private property and including requirement

that recorded subdivision plats clearly designate area reserved for streets

and other future public areas). A subdivider works with the owner of the

tract to ultimately develop the land into lots for sale with the goal of

making a profit from the sale of the lots.

The city subdivision ordinance at issue in this case regulates the

construction standards that must be met before a final plat is approved

by the city council for recording and includes a requirement that all

subdivisions include streets and storm sewers, as well as water and

sanitary sewer lines. See Hampton, Iowa, Code § 170.09(18). The

ordinance conditions the city council’s approval of a final plat of a

subdivision upon the subdivider “mak[ing] and install[ing]” the

14

improvements pursuant to detailed specifications, procedures, and

oversight by the city. Id. The ordinance does not address the authority

of the subdivider to contract with other entities to install the

improvements. Generally, the obligations of one can be performed by

another. See Restatement (Second) of Contracts § 318, at 19 (1981)

(noting the general rule that the duty to perform may be delegated).

The logical premise behind the imposition of an obligation on the

subdivider to make public improvements within a subdivision is that the

subdivider can pass the expense of the work to lot owners by adjusting

the price of the lots. See Preston v. Oliphant, 256 Iowa 128, 130, 126

N.W.2d 329, 329–30 (1964) (buyers of residential property sued seller for

failing to install roads and other improvements promised to be included

in purchase price of lot); Village Square No. 1, Inc. v. Crow-Frederick

Retail Ltd. P’Ship, 551 A.2d 471, 474 (Md. Ct. Spec. App. 1989) (noting,

in argument, that cost of roads and sewers provided at the expense of the

developers is passed on by the developer to the ultimate owners of the

property). See generally Jerry S. Williford & C. Todd Sinnett, Tax

Planning for the Developer: Allocating Costs Among Land and

Improvements, 103 J. Tax’n 335, 342 (2005) (recognizing developers must

account for all expenses involved in making improvements to property

and that improvements made to land should be allocated to the different

lots or parcels for tax purposes). Thus, the costs of the improvements

are ultimately borne by the property owners who are the primary

beneficiaries of the improvements, just as is ultimately done under the

assessment procedures of chapter 384 when the city incurs costs in

making street improvements. See Divan Builders, Inc. v. Planning Bd. of

Twp. of Wayne, 334 A.2d 30, 39 (N.J. 1975) (noting the end result of a

city requiring the developer to fund improvements in a subdivision is the

15

same as though the city directly assessed the costs against the owners of

the property within the subdivision).

The fighting question presented in this case is whether the city

may exercise its statutory assessment authority to defray the costs of

making street improvements as a part of the development of a

subdivision when an ordinance conditions the city’s approval of the

subdivision plat on the private subdivider making the improvements. At

its core, the resolution of this issue hinges on a more narrow question of

whether the ordinance imposed a mandatory enforcement obligation on

the city.

Generally, the question whether a municipality is required to

enforce its ordinances has been obliquely addressed within the

parameters of such legal concepts as standing and the discretionary

function immunity. See Schmitz v. City of Dubuque, 682 N.W.2d 70, 74

(Iowa 2004) (applying a two-part test for discretionary immunity to

actions of city in constructing trail); White v. Robinson, 260 S.W.3d 463,

472 (Tex. Ct. App. 2008) (holding referendum sponsors lacked standing

to challenge city’s construction of, and refusal to enforce, an adopted

proposition). Additionally, other legal theories have surfaced in the

context of tort liability involving the failure to enforce an ordinance. See

Ball v. Town of Woodbine, 61 Iowa 83, 85, 15 N.W. 846, 847 (Iowa 1883)

(holding city not liable when council members, who shot off fireworks in

violation of city ordinance, injured citizens); accord Harris v. City of

Des Moines, 202 Iowa 53, 58, 209 N.W. 454, 455 (1926) (holding failure

to enforce municipal ordinance regulating streets did not impose liability

on municipality). Yet, the action in this case is framed solely in equity

and only seeks a declaration that the city may not exercise its

assessment authority. Thus, we must decide if the city’s failure to

16

enforce an ordinance conditioning approval of a subdivision plat upon

the subdivider financing street improvements prevents the city from

waiving the condition and instead exercising its statutory authority to

assess the costs it incurs in making the improvements.

One approach we have taken to decide whether the governmental

failure to fulfill the terms of an ordinance affects the validity of

subsequent government action is to consider whether the specific terms

of the ordinance are mandatory or directory. Cf. Taylor v. Dep’t of

Transp., 260 N.W.2d 521, 522 (Iowa 1977) (considering whether a statute

is mandatory or directory). Under this approach, when the enactment at

issue does not expressly resolve the question, we look to the main

objective of the enactment to determine if the requirement is essential to

furthering the objective. Id. at 522–23. If it is, the requirement is

ordinarily mandatory, and the failure to perform the requirement

invalidates the subsequent governmental action. Id. While other related

approaches could be considered, we find this approach particularly

helpful in the resolution of this case.

In making this determination under subdivision regulations, we

also apply the statutory requirements for cities considering subdivision

plats under chapter 354. If the ordinance at issue is required to be

enforced, the city is directed by the legislature to “apply reasonable

standards and conditions in accordance with applicable . . . ordinances.”

Iowa Code § 354.8. Otherwise, the city is granted the authority to

approve plats for recordation by considering “the possible burden on

public improvements and . . . a balance of interests between the

proprietor, future purchasers, and the public interest in the subdivision.”

Id.

17

In this case, the City of Hampton ordinance does not expressly

resolve the issue, but the purpose of the condition is expressly described

in the opening paragraph of the subdivision regulation chapter. The

declared purpose or objective is “to establish minimum standards for the

design, development and improvement” of subdivisions so as to protect

“existing developments” and to make adequate provisions “for public

services,” and to promote “health, safety, and general welfare.”

Hampton, Iowa, Code § 170.01. Additionally, the ordinance seeks to

ensure improvements are uniformly made in accordance with certain

specifications to the city’s satisfaction. Id. § 170.03. The ordinance

describes specific requirements for the submission of subdivision plats

for approval by the city, and it specifies a host of rules required for the

development of a subdivision. Thus, we must decide if the city’s failure

to enforce the plat approval condition requiring the subdivider to

personally finance the improvements would undermine these objectives.

We recognize a certain symmetry in using subdividers to help build

streets and install other public services within the development of a city.

The city, of course, has the authority to make such improvements and to

pass the costs onto abutting property owners who most benefit from the

improvements through assessment procedures. See Iowa Code

§ 384.38(1)–(2). Yet, the same end result occurs when the requirement to

make improvements within a subdivision is given to a subdivider. When

improvements are made by a subdivider, the costs of the improvements

are still passed to those property owners who most benefit from the

improvements, but through the use of free-market forces instead of a

forced assessment. In many instances, the two approaches work to

develop city streets without overlap. However, unique circumstances can

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arise that may justify a shared development effort between subdividers

and the city. The background of this case presents a good illustration.

Here, the particular area of the subdivision where the property was

divided into lots was separated from the nearest existing street by over

300′. This portion of the subdivision could not be connected to the

existing street without extending the street to reach the area containing

the subdivided lots. The presence of the extended street and the

underground improvements arguably benefited property owners outside

the subdivision. If the subdivider was required to make all of the

improvements, the subdivider would have no means to pass the costs to

those outside property owners. Instead, the subdivider could only pass

on the costs through the sale of the lots. The result is the property along

the street but outside the plat would receive the benefit of the street

without the owner paying for the benefit. Moreover, the sale price of the

subdivided lots within the subdivision may need to be increased beyond

what the market forces would bear, forcing the subdivider to ultimately

shoulder the costs. In any event, such unique circumstances can

disrupt the normal symmetry of the city-subdivider approach to make

public improvements. Importantly, the objectives of the ordinance to

protect existing developments, make adequate provisions for public

services, and promote the general welfare could be undermined if the city

and subdivider could not work together to make street improvements

under some circumstances. The city’s development through subdivision

could be adversely affected, and street development near existing

developments could suffer as well.

Thus, we conclude that the portion of the ordinance requiring the

subdivider to make improvements as a condition to the city’s approval of

a plat does not describe a mandatory enforcement duty on the city.

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Instead, the city may waive its subdivision plat approval standards when

the objectives of its standards would not be met by strict adherence to

them and when waiver would not otherwise conflict with the mandatory

platting standards contained in Iowa Code chapter 354. See York v.

Town of Ogunquit, 769 A.2d 172, 177 (Me. 2001) (recognizing the

authority of city planning board to waive subdivision standards but not

to waive zoning provisions subject to analysis mandated by state

statute); see also City of Mequon v. Lake Estates Co., 190 N.W.2d 912,

917 (Wis. 1971) (finding city acted within delegated authority conferred

by legislature in varying subdivision standards in ordinance in special

agreement with subdivider). But see Allen v. St. Tammany Parish Police

Jury, 690 So. 2d 150, 153 (La. Ct. App. 1997) (noting language

conditioning final subdivision approval upon design details and

specifications approved by department of public works imposed

mandatory obligation on city). Such an approach is consistent with the

legislature’s grant of authority to cities in development planning as well

as our court’s flexible approach to city subdivision decisions. See Iowa

Code § 354.1(3); see also Blumenthal Inv. Trusts, 636 N.W.2d at 268.

Consequently, the city’s failure to require the subdivider to personally

make all improvements does not invalidate the authority of the city to

assess property owners under chapter 384.

V. Special Benefit to Property Assessed.

The statutory scheme for the assessment of costs incurred by a

city in making public improvements provides that lots in the assessment

district may be assessed according to the special benefit conferred on the

property. Iowa Code § 384.61. One qualification, however, is the

assessment cannot exceed twenty-five percent of the property value. Id.

§ 384.62(1). The statutory assessment scheme seeks to protect

20

individual property owners from subsidizing the benefit from

improvements enjoyed by the public in general. Horak Prairie Farm, L.P.

v. City of Cedar Rapids, 748 N.W.2d 504, 507 (Iowa 2008).

When a municipality has properly made public improvements, a

presumption of necessity arises, as well as a presumption that some

benefit has resulted to assessed property owners. Goodell v. City of

Clinton, 193 N.W.2d 91, 93 (Iowa 1971). The law not only presumes the

assessments are correct, but it also presumes that they do not exceed

the special benefit derived. Id. Many factors are considered in the

assessment, including the future use and expectations of the property,

as well as its present use. Id. Mathematical exactness is not required.

Gray, 797 N.W.2d at 119.

The plaintiffs argue the new street does not provide any special

benefit to them. They point out that the street does not provide access

that did not previously exist. Moreover, they point out that any benefit

from the street is offset by the loss of privacy. Primarily, the plaintiffs

argue the street is not something they desired and was only installed to

allow access to the new lots within the subdivision.

The arguments made by the plaintiffs are familiar. In Gray, we

reiterated our understanding of the displeasure felt by property owners

who are asked to share in the expense of street improvements they did

not want or believe will provide any benefit to them. Id. at 118–19. Yet,

these arguments are insufficient to rebut the presumption that the

assessments were correct. Id. at 119.

The property in dispute in this case was ultimately assessed by

considering a wide variety of factors in conjunction with the Flint

Formula. See Milton O. & Phyllis A. Thorson Revocable Estate Trust v.

City of W. Des Moines, 531 N.W.2d 647, 650 (Iowa Ct. App. 1995)

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(identifying factors the court will consider when distinguishing between a

general benefit and a special benefit). Even though the plaintiffs testified

they would not use the street, the improvements did increase the value of

their property, especially the three parcels of land west of Oak Hill First

Addition. The presence of the street abutting these tracts increased their

value as future residential development. Moreover, the mere

transformation of the street from gravel and dirt to pavement conferred a

number of benefits on the Connelly and Johnson lots located within

Oak Hill First Addition, even though the lot owners were personally

satisfied with a dirt street. See Gray, 797 N.W.2d at 119 (recognizing

that the pavement of a gravel road confers substantial benefits on

abutting landowners). Nevertheless, the city council understood the

benefits to these two lots were not as great as the benefit provided to the

other three tracts and substantially reduced the assessments. Overall,

the plaintiffs did not establish the assessments to their property

exceeded the special benefit provided by the improvement. The

assessments did not exceed twenty-five percent of the value of the

property owned by the plaintiffs.

VI. Conclusion.

We have carefully considered all issues raised in this appeal. We

affirm the decision of the district court.

AFFIRMED.

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