#25312-a-JKM 

2010 SD 55

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

WADE and LISA HUBBARD, ET AL., Plaintiffs and Appellees, 

v. 

CITY OF PIERRE, SOUTH DAKOTA, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

HUGHES COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE KATHLEEN F. TRANDAHL 

Judge 

* * * * 

CHARLES P. SCHROYER of 

Schmidt, Schroyer, Moreno, Lee & 

 Bachand, PC Attorneys for plaintiffs 

Pierre, South Dakota and appellees. 

LINDSEY RITER-RAPP 

ROBERT C. RITER, JR. of 

Riter, Rogers, Wattier & 

 Northrup, LLP Attorneys for defendant 

Pierre, South Dakota and appellant. 

LARRY A. NELSON of 

Frieberg, Nelson & Ask, LLP 

Canton, South Dakota 

E. JAMES HOOD of 

Hood & Nies, PC Attorneys for amicus SD 

Spearfish, South Dakota Municipal League. 

* * * * 

ARGUED JANUARY 14, 2010 

 OPINION FILED 06/30/10 
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MEIERHENRY, Justice 

[¶1.] Wade and Lisa Hubbard et al. (Petitioners) brought a declaratory 

judgment action against the City of Pierre, South Dakota. The Petitioners sought to 

enjoin the City from imposing special assessments for curb, gutter, and driveway 

replacements as part of a street reconstruction project. The Petitioners claimed 

that the City’s special assessments were imposed in violation of the Fifth 

Amendment of the United States Constitution and Article VI, Sections 2 and 13 of 

the South Dakota Constitution. The circuit court agreed and entered a declaratory 

judgment against the City and an injunction prohibiting the City from collecting the 

special assessments. The City appeals. 

FACTS AND PROCEDURAL BACKGROUND

[¶2.] In 2007, the City began a street improvement project on North Grand 

Avenue, East Dakota Avenue, and North Tyler Avenue. The improvement project’s 

primary purpose was to replace water mains, but it also involved reconstructing and 

resurfacing streets, replacing sewer mains, and replacing portions of curb, gutter, 

and driveways. The Petitioners’ residential properties were located on the streets 

affected by this project. 

[¶3.] Before the project began, City officials inspected each property’s curb 

and gutter to determine its condition. The officials determined that the curb and 

gutters’ installation dates ranged from the 1930s to as recently as 2006. The 

projects on Tyler and Dakota Avenues involved total reconstruction of the street but 

only partial reconstruction of the curb and gutter. The City determined that the 
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project on North Grand Avenue required complete reconstruction of the street and 

the curb and gutter. 

[¶4.] In February 2007, the City proposed a resolution of necessity to 

“install, repair or rebuild curb and gutter, associated concrete work, and sidewalks 

on certain streets, avenues, and alleys in the City of Pierre, South Dakota” and to 

levy individual special assessments at a set rate per linear foot of reconstructed 

curb and gutter and a set rate per square foot of reconstructed driveway 

approaches. See SDCL 9-45-20. Owners of the abutting lots were notified. See

SDCL 9-45-23. Several Petitioners, including property owners Wade Hubbard and 

Ben Orsbon, appeared at the City Commission meeting on February 27, 2007,to 

object to the proposed resolution of necessity regarding the special assessments. 

The Petitioners challenged the resolution, arguing that the assessments would 

constitute a taking of private property in violation of the United States Constitution 

and the South Dakota Constitution. The City Commission took no action at the 

February 27, 2007, meeting, but later adopted the proposed resolution without 

amendment on March 20, 2007. The resolution was not challenged by referendum 

or written protest. See SDCL 9-45-26. 

[¶5.] The reconstruction project proceeded as planned and was completed in 

the fall of 2007. The City filed its assessment roll on November 1, 2007, and set a 

public hearing for December 4, 2007. See SDCL 9-43-11; SDCL 9-43-14. The City 

assessed each lot the per linear foot cost for curb and gutter replacement and per 

square foot cost for driveway replacement. The Petitioners’ counsel appeared at the 

public hearing and again challenged the constitutionality of the special 
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assessments. The City Commission approved the assessment roll and its 

publication. See SDCL 9-43-15; SDCL 9-43-25. On December 14, 2007, the City 

notified all affected property owners of the amount specially assessed against each 

lot. On January 2, 2008, the Petitioners filed a timely petition in circuit court 

challenging the special assessment. The Petitioners sought a declaratory judgment 

and permanent injunction against the City. 

[¶6.] The Petitioners challenged the City’s decision to impose special 

assessments for replacing curb, gutter, and driveways. They contended that the 

City violated the Fifth Amendment of the United States Constitution and Article 

VI, Sections 2 and 13 of the South Dakota Constitution because the amount of the 

special assessments exceeded the benefits received. The Petitioners claimed 

replacing curb, gutter, and driveways gave no benefit to the abutting lots. 

Alternatively, the Petitioners argued that the City would have had to assess each 

lot based on the benefits received according to SDCL 9-45-32 rather than on the per 

linear foot cost of the construction authorized in SDCL 9-45-30. The Petitioners did 

not challenge the constitutionality of any statutes. 

[¶7.] The circuit court determined that either method of assessment – per 

linear foot or accrued benefits – required a showing of special benefits to the 

assessed property. The circuit court also concluded that the special assessments for 

the replacement curb and gutter constituted an unconstitutional taking in violation 

of the South Dakota and United States Constitutions and enjoined the City. The 

City appeals, claiming that the circuit court erred as follows: (1) by misinterpreting 

SDCL 9-45-30 and SDCL 9-45-32; (2) by not giving proper deference to the City’s 
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decision to impose special assessments for replacement curb, gutter, and driveways, 

and by allowing general assertions to prevail over examination of each specific 

property before and after construction; and, (3) by concluding that the Petitioners 

did not receive a special benefit above and beyond that enjoyed in common with the 

public. 

ANALYSIS 

Application of Special Assessment Statutes SDCL 9-45-30 and SDCL 9-45-32 

[¶8.] Cities are given the power to apportion special assessments for local 

improvements against “property fronting or abutting upon the improvement.” 

SDCL 9-43-5; SDCL 9-43-8. In this case, statutes govern the methods of 

apportioning street improvements, including curb and gutter. SDCL 9-45-30 

provides assessment based on front footage: 

The cost of the improvement except the cost of street and alley 

intersections may be assessed to the property fronting or 

abutting on the improvement. Such cost of each portion of the 

project on which the construction is by resolution substantially 

uniform shall be divided by the number of feet fronting or 

abutting on said portion of the project, and the quotient shall be 

the rate of assessment per front foot throughout said portion of 

the project on which such uniformity exists. 

(Emphasis added.) SDCL 9-45-32 provides assessment based on accrued benefits: 

In lieu of the method of apportionment prescribed in §§ 9-45-30 

and 9-45-31, it may be provided in and by the resolution 

determining the necessity of any street improvement that the 

cost thereof shall be assessed against all assessable lots and 

tracts of land fronting or abutting thereon or lying within onehalf block or three hundred feet thereof, whichever is less, 

according to the benefits determined by the governing body to 

accrue to each of such lots and tracts from the construction of the 

improvement. In such event the governing body, in preparing, 

considering, and hearing objections to the assessment roll as 

provided in chapter 9-43, shall make such investigation as may 
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be necessary and shall find and determine the amount in which 

each such lot and tract will be especially benefited by the 

construction of the improvement, and shall assess against each 

such lot and tract such amount, not exceeding said benefit as 

shall be necessary to pay its just portion of the total cost of the 

work to be assessed. 

(Emphasis added.) 

[¶9.] The City primarily used the front foot method of apportionment in 

SDCL 9-45-30. On appeal, the City argues that assessments using SDCL 9-45-30 

require “no showing of special benefits.” The City relies on the different language 

used in the two statutes. SDCL 9-45-32 expressly addresses the need to show an 

“especial benefit” to the adjoining property while SDCL 9-45-30 does not. The City 

argues that including the special benefit requirement in SDCL 9-45-32 and 

excluding it in SDCL 9-45-30 indicates legislative intent not to require a showing of 

a special benefit if a city makes a special assessment under SDCL 9-45-30. The 

City’s counsel advanced this argument in its brief, but acknowledged at oral 

argument that under both statutes a property must receive a special benefit for a 

special assessment to be constitutional. See Village of Norwood v. Baker, 172 US 

269, 279, 19 SCt 187, 190-91, 43 LEd 443 (1898); Hawley v. City of Hot Springs, 276 

NW2d 704, 705 (SD 1979). Thus, the circuit court did not err by focusing on the 

underlying constitutional requirement that the Petitioners receive special benefits 

commensurate with the amounts they were specially assessed. 

Constitutional Requirements for Special Assessments 

[¶10.] The constitutional analysis of special assessments stems from the 

constitutional provisions prohibiting the government from taking private property 

without just compensation. Norwood, 172 US at 279, 19 SCt at 190-91. The Fifth 
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Amendment of the United States Constitution provides that “[n]o person shall be . . 

. deprived of life, liberty, or property, without due process of law; nor shall private 

property be taken for public use without just compensation.” U.S. Const. amend. V. 

The South Dakota Constitution provides that “[p]rivate property shall not be taken 

for public use, or damaged, without just compensation, which will be determined 

according to legal procedure established by the Legislature[.]” S.D. Const. art. VI, § 

13. Furthermore, the South Dakota Due Process Clause provides that “[n]o person 

shall be deprived of life, liberty or property without due process of law.” S.D. Const. 

art. VI, § 2. The United States Supreme Court explained the application of the 

Fifth Amendment to a government’s special assessments: 

In our judgment, the exaction from the owner of private property 

of the cost of a public improvement in substantial excess of the 

special benefits accruing to him is, to the extent of such excess, a 

taking, under the guise of taxation, of private property for public 

use without compensation. 

Norwood, 172 US at 279, 19 SCt at 191. Thus, if a local public improvement confers 

a special benefit on private property, a special assessment can be constitutionally 

imposed if the assessment does not exceed the benefit received. 

[¶11.] A public improvement is considered local if it benefits “adjacent 

property, as distinguished from benefits diffused throughout the municipality.” 

Ruel v. Rapid City, 84 SD 79, 85, 167 NW2d 541, 544 (1969). The classification as a 

local improvement depends on the character and nature of the improvement. We 

have said, “[t]he primary purpose of the improvement is largely determinative and 

classification depends ‘upon the nature of the improvement and whether the 

substantial benefits to be derived are local or general in their nature.’” Id. at 86, 
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167 NW2d at 544. If the project is general in nature, the cost cannot be assessed 

against adjacent property. If the project is local in nature, the cost can be assessed 

against the adjacent property but only if the property receives a special benefit. 

Whether a project is local or whether property receives a special benefit are factual 

inquiries. Subject to court review, a city’s decision to impose a special assessment 

should be founded on those inquiries. See Norwood, 172 US 269, 19 SCt 187. 

[¶12.] The South Dakota Legislature has authorized municipalities to 

impose special assessments on landowners for local public improvements. See 

SDCL ch. 9-43; Brookings v. Assoc. Developers, Inc., 280 NW2d 97 (SD 1979). 

Special assessments are imposed “to defray the expenses of a local municipal 

improvement on the theory that the property has received special benefits from the 

improvements in excess of the benefits accruing to property or people in general.” 

Nebco, Inc. v. Bd. of Equalization of City of Lincoln, 547 NW2d 499, 503 (NE 1996). 

This Court has previously described municipal special assessments: 

Special assessments are understood to refer to money raised or 

levied for some local municipal purpose to which the funds so 

collected are to be specifically applied in making the local 

improvements. The assessment is not laid upon a whole 

community, but only on a small and defined part thereof; and, 

while a tax is levied upon all property of a state, county, city, or 

town without any reference to special benefits to the individuals 

taxed, special assessments are presumed to be made on account 

of special benefits to the property assessed, conferred by the 

improvements for which the special tax is levied. 

Winona & St. P. R. Co. v. City of Watertown, 1 SD 46, 44 NW 1072, 1073 (1890). 

Some public improvement projects may involve both general and local benefits. In 

those cases, only part of the cost of the project can be assessed against the adjacent 
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property owners, and the rest is funded by the city. See Des Moines Union Ry. Co. 

v. City of Des Moines, 459 NW2d 271, 272 (Iowa 1990). 

[¶13.] A municipality’s power to impose special assessments is limited by the 

constitutional requirement that the project confer a special benefit on the assessed 

property. In Haggart v. Alton, this Court stated that “it is settled by the decisions 

of this Court, sustained by the great weight of authority, that special assessments . . 

. [are] lawful and constitutional only when founded upon special benefits accruing 

from the improvement for which the . . . assessment is laid.” 29 SD 509, 137 NW 

372, 375 (SD 1912). This statement is consistent with the United States Supreme 

Court’s holding in Norwood: 

It is one thing for the legislature to prescribe it as a general rule 

that property abutting on a street opened by the public shall be 

deemed to have been specially benefited by such improvement, 

and, therefore, should specially contribute to the cost incurred 

by the public. It is quite a different thing to lay it down as an 

absolute rule that such property, whether it is in fact benefited 

or not by the opening of the street, may be assessed by the front 

foot for a fixed sum, representing the whole cost of the 

improvement, and without any right in the property owner to 

show, when an assessment of that kind is made, or is about to be 

made, that the sum so fixed is in excess of the benefits received. 

172 US at 279, 19 SCt at 190-91. 

[¶14.] Determining whether a project confers special benefits requires a 

finding that the assessed property receives a benefit above and beyond or differing 

from the benefit enjoyed by the general public. In Hawley, this Court set out the 

applicable law and constitutional requirements for special assessments in South 

Dakota. Hawley recognized that “[s]pecial assessments can be sustained only upon 

the theory that the property assessed receive some special benefit from the 
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improvement differing from the benefit that the general public enjoys.” 276 NW2d 

at 705. In Ruel, this Court said that a special benefit had to be “above and beyond 

that enjoyed in common with the public at large or the rest of the community.” 84 

SD at 85, 167 NW2d at 544 (1969). 1

[¶15.] Whether a property receives a special benefit above and beyond or 

differing from the general public is often driven by opinion and conjecture of the 

property owner on the one hand and the city on the other. See Hawley, 276 NW2d 

at 707. This Court has said that the special benefits must “be actual, physical and 

material and not merely speculative or conjectural.” Ruel, 84 SD at 87, 167 NW2d 

at 545. Even so, this Court has recognized that an “exact and actual monetary 

benefit” to property may “be difficult to measure and at most can only be estimated 

with a fair degree of exactness.” Hawley, 276 NW2d at 706. One obvious indicator 

that property receives a special benefit is if the public project enhances its market 

value. Id. “Future prospects and reasonable expectations of the future use” may be 

another indicator. Id. Other courts have found a special benefit when the property 

realizes aesthetic enhancement. See Town of Tiburon v. Bonander, 103 CalRptr3d 

485, 180 CalApp4th 1057 (2009); City of Winter Springs v. State, 776 So2d 255 (Fla 

2001); Des Moines Union Ry., 459 NW2d 271. 

[¶16.] When a special assessment is challenged in circuit court, a city’s 

findings are presumed correct. Hawley, 276 NW2d at 706. The property owner “has 

1. In Ruel, the challenge involved whether building a convention center was a 

local improvement. This Court held that building a convention center was 

not a local improvement because its benefits to the public were greater than 

the benefits to the adjacent property. 84 SD at 88, 167 NW2d at 546. 
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the burden of going forward with evidence sufficient to overcome the presumption” 

as well as the ultimate burden of persuasion. South Dakota’s rule on presumptions 

“imposes on the party against whom it is directed the burden of going forward with 

evidence to rebut or meet the presumption.” SDCL 19-11-1; In re Estate of Dimond, 

2008 SD 131, ¶9, 759 NW2d 534, 538 (discussing SDCL 19-11-1). This rule requires 

that “substantial, credible evidence be introduced to rebut the presumption.” SDCL 

19-11-1. This Court has explained the rule’s application: 

Reading this statute as a whole, therefore, we deduce that the 

substantial, credible evidence requirement means that a 

presumption may be rebutted or met with such evidence as a 

trier of fact would find sufficient to base a decision on the issue, 

if no contrary evidence was submitted. But mere assertions, 

implausible contentions, and frivolous avowals will not avail to 

defeat a presumption. What may suffice as substantial, credible 

evidence will, of course, vary depending on the nature of the 

presumption. A presumption implementing vital public policy, 

like the presumption of legitimacy, for instance, would require 

weighty evidence to surmount it. Conversely, a presumption 

established primarily as a procedural device may require some 

lesser quantum of substantial, credible evidence for rebuttal. 

Dimond, 2008 SD 131, ¶9, 759 NW2d at 538 (citations omitted). In the context of 

rebutting special assessments, this Court has required “weighty evidence” in that it 

should be “strong, direct, clear and positive.” Hawley, 276 NW2d at 705 (citing 

Meyer v. City of Oakland Park, Fla., 219 So2d 417, 420 (Fla 1969)). Here, the 

Petitioners also have the ultimate burden of persuasion to prove by clear and 

convincing evidence that the property did not receive a benefit over and above or 

differing from the benefit received by the general public.2 See Dimond, 2008 SD 

 

 (continued . . .) 

2. The “strong, direct, clear and positive” language used in Ruel and Hawley has 

always referred to the type of evidence needed to overcome the presumption 
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131, ¶9, 759 NW2d at 538; In re Tax Assessment of Foster Found.’s Woodlands 

Retirement Cmty., 672 SE2d 150, 163 n20 (WVa 2008).

Whether the Circuit Court Gave Proper Deference to the City’s Decision 

[¶17.] The City claims that the circuit court erred by not giving proper 

deference to the City’s decision to impose special assessments and, in effect, 

substituted the court’s judgment for the City’s. The City argues that the decision to 

assess the adjacent properties was a legislative decision and that a court should not 

interfere with its actions unless the action is “palpably arbitrary, unreasonable or 

beyond [its] authority.” See Sanderson v. City of Mobridge, 317 NW2d 828, 829 (SD 

1982). But if a city’s action violates constitutional principles, the action is by its 

very nature arbitrary, unreasonable, and beyond its authority. The 

constitutionality of a city’s act in specially assessing property requires the 

assessment “be measured or limited by the special benefits accruing to [the 

property].” Norwood, 172 US at 294, 19 SCt at 196. Any assessment in excess of 

the special benefit received is constitutionally impermissible and, consequently, 

arbitrary, unreasonable and beyond its authority. See id. at 288, 19 SCt at 194 

________________________ 

(. . . continued) 

that the special assessment is correct. Our prior cases have not discussed the 

level of proof related to the burden of persuasion. But other jurisdictions 

using similar language for the presumption use the clear and convincing 

standard for the ultimate burden of persuasion. See Ashbar Enters. v. City of 

Akron, 2001 WL 1142354 *2 (Ohio Ct App 2001) (citing Smith v. City of Avon, 

2000 WL 1729484 (Ohio Ct App 2000) (citing Burton v. City of Middletown, 

446 NE2d 793, 799 (Ohio Ct App 1982); Schiff v. City of Columbus, 223 NE2d 

54, 59 (Ohio 1967)). See also 2nd Roc-Jersey Assocs. v. Town of Morristown, 

731 A2d 1, 9 (NJ 1999). We adopt a similar standard for the ultimate burden 

of persuasion in special assessment cases in South Dakota. 
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(referring to principle generally recognized by courts). A careful review of the 

circuit court’s analysis indicates that it was aware of this principle. The circuit 

court noted in its decision that the City’s “findings as to benefits are correct and the 

presumption may be overcome only by strong, direct, clear and positive proof.” 

Evidence at Trial 

[¶18.] The City’s remaining issues are directed at the circuit court’s manner 

of considering the evidence. The trial commenced with the Petitioners’ evidence, 

consisting of testimony from two property owners and three real estate experts. 

Property owner Hubbard testified that his residential lot was part of a three block 

portion of North Grand Avenue designated as the Pierre Hill Historic District. 

Hubbard testified that the curb in front of his home was an older style curb with 

square corners and was in good condition before replacement. In Hubbard’s 

opinion, the replacement curb and gutter did not enhance the value or aesthetics of 

his property and may, in times of heavy rain, give less protection to his lot than the 

older, higher curb. Likewise, he found no benefit in the portion of his driveway that 

needed to be replaced. Property owner Orsbon also testified that his property 

received no benefit from the replaced curb and gutter. Orsbon had a master’s 

degree in city planning, was a member of the American Institute of Certified 

Planners, and had over twenty years of experience working for local and state 

governments in his field of expertise. Based on this experience, Orsbon testified 

that the primary function of curb and gutter was to keep water out of the base of 

the street to preserve the strength of the pavement and underlying structure. His 

opinion was that installing curb and gutter along property that did not have curb 
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and gutter would generally increase the value of the property. He also testified that 

replacement curb and gutter adds no value to the property and that his property did 

not benefit from the curb and gutter replacement. Orsbon claimed his original curb 

and gutter was in good condition with an estimated life span of another 30 years. 

But he acknowledged that property may receive a benefit from replacing curb and 

gutter when the curb and gutter is nonfunctioning and deteriorating. 

[¶19.] The Petitioners also presented testimony from the county assessor, a 

real estate broker, and a real estate appraiser. The assessor testified that replacing 

existing curb and gutter does not increase the assessed value of residential property 

for tax purposes. The real estate broker testified that replacing curb and gutter 

does not increase the market value of the property. The certified property appraiser 

testified that it is “almost impossible” to determine an amount that a property 

might benefit in value by replacing its curb and gutter. In his opinion, the cost of 

replacing curb and gutter would not reflect the benefits received. 

Rebuttable Presumption 

[¶20.] The initial question before the circuit court was whether the 

Petitioners’ evidence was sufficient to overcome the presumption in favor of the 

City’s action. The circuit court had to determine if the Petitioners’ evidence was 

“sufficient to base a decision on the issue, if no contrary evidence was submitted.” 

Dimond, 2008 SD 131, ¶9, 759 NW2d at 538. The circuit court specifically found 

that the Petitioners had overcome the presumption of the City’s special assessment 

by presenting sufficient evidence that the property received no special benefit by 

“strong, direct, clear and positive proof.” The City does not challenge these findings 
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as clearly erroneous, and the record supports the circuit court’s findings. The 

evidence consisted of more than “mere assertions, implausible contentions, and 

frivolous avowals.” Id. The circuit court determined the evidence credible. Thus, 

the circuit court did not err in finding that the Petitioners overcame the 

presumption. 

Consideration of the Evidence 

[¶21.] Once the presumption was rebutted, the Petitioners still had the 

ultimate burden of persuasion to prove by clear and convincing evidence that the 

property was not specially benefited. The City does not specifically challenge the 

circuit court’s findings as clearly erroneous. But the City disagrees with how the 

circuit court considered and weighed the evidence. Specifically, the City takes issue 

with the circuit court’s failure to give the City’s testimony and evidence greater 

weight. The City also claims the circuit court erred when it failed to give separate 

consideration to the special benefit provided to each property, particularly the 

properties affected on Tyler and Dakota Avenues. The City claims that the circuit 

court erred by focusing on the testimony of the two property owners, Hubbard and 

Orsbon, and disregarding the evidence of “a myriad of problems” demonstrated by 

the City’s exhibits showing the pre-replacement conditions of other properties. The 

City claims that “[t]he before and after photographs of the affected properties are 

evidence in and of themselves of the significant benefits [the Petitioners] received 

by virtue of the improvements.” 

[¶22.] The City called John Childs, the City Engineer, who testified that the 

primary reason for the City’s project was to replace the water mains. Childs noted 
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that the streets and curb and gutter were also replaced to meet current standards 

as part of the replacement project. He testified that the curb and gutter was a 

nonstandard configuration and had reached the end of its useful life in many areas. 

He indicated that the condition of the road pan could not be determined because it 

was covered with asphalt. The City estimated the condition of the pan based on the 

age and condition of the curb. The decision to replace all the curb and gutter on 

Grand Avenue, rather than just the defective sections as it had done on Tyler and 

Dakota Avenues, was to ensure an even and continuous flow line. Childs testified 

that the benefits of replacing the curb, gutter, and driveways was “to provide[] 

proper drainage away from the properties and the streets to where there is not an 

opportunity for water to penetrate the subsurface and damage properties.” Childs 

also admitted that the pictures taken by the City did not show the entire curb 

sections to be replaced. Instead, Childs testified that the photographs “primarily 

show[ed] the defects.” 

[¶23.] The circuit court noted that “Child’s key admission was that a uniform 

curb style throughout an area provides no more benefit to property owners than 

does a collective variety of curb styles.” The circuit court also noted that Childs 

“had difficulty specifying any area in any of the exhibits where the curb and gutter 

structure prior to replacement had damages or could damage the homeowner’s 

property.” This finding by the circuit court referred to the before and after 

photographs of the replaced curb and gutter segments. 

[¶24.] The City’s mayor, Dennis Eisnach, also testified. He explained the 

difference in the three projects and why the piecemeal curb and gutter replacement 
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was used on Tyler and Dakota Avenues and why total replacement was used on 

Grand Avenue. The Grand Avenue total replacement was done to direct the flow of 

storm water, create contour uniformity, and update aging curb. The mayor 

indicated that the decision to specially assess for curb, gutter, and driveway costs 

was due to a belief that the property owners individually benefited more than the 

City in general. The mayor acknowledged that the benefit may not increase the 

value of property, but there was “an element of protecting the property, the private 

property as well as the City property.” The mayor candidly admitted that the 

decision to impose special assessments for curb and gutter helps defray the City’s 

cost for the total project and that “it’s always been done that way.” 

[¶25.] The circuit court gave more weight to the Petitioners’ testimony and 

evidence. The circuit court noted that it was undisputed that replacing the curb 

and gutter did not enhance the value of the abutting property. Recognizing that 

special benefits may accrue in other ways, the circuit court considered the City’s 

claim that the new curb and gutter protected the property by providing proper 

drainage. The circuit court determined that the benefit of replacement curb and 

gutter was the same for the property owners as it was for the community at large 

and that many of the benefits only benefited the City. The circuit court analyzed 

the evidence as follows: 

The City and the property owners do enjoy the joint benefit of 

having old concrete curb and gutter replaced by new concrete, 

increasing its useful life and the lifespan of the streets. 

However, it is difficult to ascertain which properties benefited 

from this improvement since the old curb and gutter was 

installed anywhere from the mid-1930’s up until 2006. Another 

benefit cited by the City is that the profile of the curb and gutter 

would be uniform throughout the City of Pierre. Since the 
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profile of the curb has nothing to do with its functionality, this is 

a public benefit only. In addition, Petitioners in the historic 

district view the new profiles as detrimental to their 

neighborhood as it fails to match the architecture of the historic 

homes, and the lower profiles fail to protect their property as 

well as the older, higher curbs. The City has indicated that 

replacing the curb and gutter at the same time they replaced the 

streets was the most efficient and economical course to follow 

which is beneficial to the City and the taxpayers. Finally, 

another benefit cited by the City is that the property owners 

benefited by the “individualized” approach [taken] in addressing 

the needs of each property, which included utilizing driveway 

approaches when required. However, conforming the project to 

the adjoining property also benefits the City by insuring the 

functionality of the curb and gutter which in turn benefits the 

streets by protecting their integrity and increasing their 

lifespan. 

The circuit court concluded, based on the testimony and evidence, “that replacing 

the curb and gutter and driveway approaches provided no actual, physical, material 

and quantifiable special benefits to the adjacent properties.” It further determined 

that the special assessments “were levied using ‘speculative and conjectural’ 

methods, creating an alleged benefit in excess of the increase in specific monetary or 

extrinsic value conferred, for projects that provided significant benefits to the City 

and the community as a whole.” The parties did not request the circuit court to 

examine individual property assessments in relation to accrued benefits. The focus 

was on the assessment as a whole. The circuit court found that, based on the 

evidence, the Petitioners had shown that replacement curb and gutter did not 

provide a measurable benefit to abutting property.3

 

 (continued . . .) 

3. The City did not raise the issue whether SDCL 9-43-74 limited the 

Petitioners’ remedy to reducing or eliminating their individual assessments. 

SDCL 9-43-74 provides: 
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[¶26.] On review, this Court defers to the circuit court, as fact finder, to 

determine the credibility of witnesses and the weight to be given to their testimony. 

On appeal, “[t]he question is not whether this Court would have made the same 

findings the circuit court did, but whether on the entire evidence, ‘we are left with a 

definite and firm conviction that a mistake has been committed.’” Wangsness v. 

Builders Cashway, Inc., 2010 SD 14, ¶9, 779 NW2d 136, 139 (quoting New Era 

Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶7, 603 NW2d 202, 204). This 

Court resolves conflicts in evidence in favor of the circuit court’s determinations. 

See Baun v. Estate of Kramlich, 2003 SD 89, ¶21, 667 NW2d 672, 677 (citing In re

Estate of Till, 458 NW2d 521, 523 (SD 1990)). This Court has said: “[t]he 

credibility of the witnesses, the import to be accorded their testimony, and the 

________________________ 

(. . . continued) 

Whenever any action or proceeding shall be commenced and 

maintained in any court to restrain the collection of any assessment 

levied for any municipal local improvement, to recover any such 

assessment previously paid, to recover the possession or title of any 

real property sold for such an assessment, to invalidate or cancel any 

deed or grant thereof for such an assessment, or to restrain or delay 

the payment of any such assessment, the true and just amount of such 

assessment due upon such property must be ascertained and judgment 

must be rendered therefor, making the same a lien upon the property 

and authorizing execution or process to issue for the collection thereof 

by a sale of the property. If in the opinion of the court the assessment 

has been rendered void or voidable by any act or omission, it may order 

that a reassessment be made under the provisions of §§ 9-43-20 and 9-

43-21 and require the payment of the same as a condition for granting 

such relief, or declare by its judgment that the same shall be a lien 

upon the property, and authorize the issuing of execution or proper 

process for its collection by a sale of the property, to the end that the 

whole matter may be adjudicated in the one action or proceeding and 

the proper proportion or ratio of the assessment be paid by the 

property owner. The cost of such an action or proceeding shall be 

taxed as the court may direct. 
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weight of the evidence must be determined by the trial court, and we give due 

regard to the trial court’s opportunity to observe the witnesses and examine the 

evidence.” Id.

[¶27.] The City claims the circuit court incorrectly weighed the evidence and 

should have given more weight to the City’s testimony and evidence. It is not our 

role on appeal to retry this case or substitute our judgment as to credibility and 

weight of the evidence. This Court defers to the circuit court because of its ability to 

observe the witnesses. The circuit court was persuaded by the credibility and 

weight of the Petitioners’ evidence. The circuit court was unable to conclude from 

the evidence that the replaced curb, gutter, and driveways provided “actual, 

physical, material and quantifiable special benefits” to the property assessed. The 

most that could be determined from the City’s evidence was that replacing the curb 

and gutter extended its useful life by varying estimates and in some cases may have 

improved the flow of water away from the property. The City’s quantification of the 

benefits, however, was ambiguous and conclusory in that the City assumed the 

benefits equaled the cost. The circuit court determined that the Petitioners’ 

evidence demonstrated that the replaced curb, gutter, and driveway did not provide 

a benefit above and beyond or differing from the benefit enjoyed by the rest of the 

community. Because the circuit court’s findings of fact are based on the evidence 

and not clearly erroneous, we decline to substitute our judgment as to the weight 

and credibility of the evidence, as urged by the City. The circuit court applied the 

correct law regarding the question whether the special assessments were 

constitutional. The circuit court’s findings of fact support its conclusions of law that 
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the special assessments were unconstitutional. Thus, the City has not shown that 

the circuit court erred. 

[¶28.] We note that this opinion should not be read broadly to mean that as a 

matter of law special assessments cannot be used for replacement curb and gutter. 

Whether special assessments are constitutional depends heavily on the nature and 

character of the project and the facts of the individual case. Additionally, we 

decline to address whether enjoining the entire assessment role was the appropriate 

remedy. That issue was neither raised to the circuit court nor preserved for 

appeal.4

[¶29.] The circuit court is affirmed. 

[¶30.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON, 

Justices, and GIENAPP, Circuit Court Judge, concur. 

[¶31.] GIENAPP, Circuit Court Judge, sitting for ZINTER, Justice, 

disqualified. 

 

4. The appropriateness of injunctive relief was only raised by the Municipal 

League’s amicus brief wherein it claimed that the property owner’s remedy 

was through SDCL 9-43-74. We do not consider issues neither presented to 

the trial court nor properly raised on appeal by the parties. See State v. 

Wright, 2009 SD 51, ¶68, 768 NW2d 512, 534.