                 IN THE SUPREME COURT OF IOWA
                                 No. 09–1147

                              Filed May 6, 2011


PHILLIP GRAY, LINDA GRAY, RANDALL INGRAM,
LOREN MEYER, LINDA MEINTS-MEYER,
DENNIS RIPPERGER, MARY RIPPERGER,
LUCILLE MAE SINDRIC, JAMES STEFFEN,
and TRACY STEFFEN,

      Appellees,

vs.

CITY OF INDIANOLA, IOWA,

      Appellant.


      Appeal from the Iowa District Court for Warren County, Peter A.

Keller, Judge.



      City appeals from district court’s decision reducing special

assessments      against   property   owners   for   a   public   improvement.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.


      Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C.,

Des Moines, for appellant.



      Joseph A. Happe and Jason T. Farley of Huber, Book, Cortese,

Happe & Lanz, P.L.C., West Des Moines, for appellees.



      Terrence L. Timmins, Des Moines, and Amy S. Beattie of Brick

Gentry, P.C., West Des Moines, for amicus curiae Iowa League of Cities.
                                  2

      Amy S. Beattie of Brick Gentry, P.C., West Des Moines, for amicus

curiae American Council of Engineering Companies of Iowa and Iowa

Engineering Society.
                                               3

HECHT, Justice.

       Several property owners sued the city of Indianola challenging the

special assessments levied for paving a gravel road abutting their

property and installing a sidewalk. The district court found the property

owners had been assessed in excess of the special benefits received from

the project and reduced the assessments. The city appealed. We affirm

in part, reverse in part, and remand for further proceedings.

       I. Factual and Procedural Background.

       Plaintiffs own residential acreages along West Euclid Avenue on

the west edge of the city of Indianola. West Euclid was a gravel road

until the school board decided to build an elementary school along the

avenue and the city council decided to pave it.                      The paving project

included expanding and paving the avenue, reconfiguring ditches, and

installing sidewalks on both sides. The city council’s decision to pave

was based on the location of the school, and none of the owners of the

residential acreages had requested that the road be paved.

       The paved road was thirty-one feet wide and eight inches thick.

The city levied a total of $360,448.81 in special assessments for the

pavement of the road and $41,080.32 for the installation of the sidewalk.

The assessment district included the properties abutting West Euclid

and back to a depth of 300 feet. 1 The final assessments levied against

the plaintiffs were as follows:

       Phillip and Linda Gray                                  $20,855.45
       Randall Ingram                                          $11,697.64
       Loren Meyer and Linda Meints-Meyer                      $16,694.32
       Lucille Sindric                                         $16,694.32
       James and Tracy Steffen                                 $16,694.32
       Dennis and Mary Ripperger                               $20,036.51 2

       1All   of the plaintiffs’ properties were more than 300 feet deep.
       2When the suit was first filed, the assessments were preliminary. However, the

proposed final assessments were used at trial and are the amounts included here.
                                        4

      Several owners of property within the assessment district sued the

city, 3 contending the assessment exceeded the special benefits they

received from the project.      The various owners testified they did not

receive much, if any, benefit from the paving of the road. They asserted

they had purchased their property because they valued the rural

atmosphere of which the gravel road was a feature. They believed their

property values had decreased as a consequence of increased traffic

prompted by the pavement of the road and the location of the school in

the neighborhood. The owners opined access to their properties was not

improved by the paving of the road. They also testified that the expected

benefits of paving a gravel road, such as reduced noise and dust, were

offset by the detriment resulting from the increased traffic due to the

school.    The owners also testified they did not believe the sidewalk

benefitted their properties at all but actually constituted a detriment

because they would now be required to maintain the sidewalks, including

clearing snow in the winter. The owners further believe their exposure to

liability for personal injuries to pedestrians increased as a consequence

of the construction of the sidewalks which prompted an increase of

pedestrian traffic. At least one owner purchased additional insurance to
address his perception of this increased risk.         Some owners conceded

their properties might have more curb appeal because of the paved

avenue, but none admitted any interest in selling their property.

      The owners presented the expert testimony of Harold Smith, a

former city engineer of the city of Des Moines. Smith opined that the

method utilized by the city to spread part of the cost of the paving project

      3Initially,
                the suit involved several more plaintiffs, many of whom have since
dismissed their cases. The remaining ten plaintiffs own six residential properties
abutting West Euclid.
                                           5

among the abutting landowners, commonly called the Flint formula, was

improper in this situation because the assessed properties are residential

acreages. He testified that the city’s use of the Flint formula, a purely

mathematical formula based on frontage feet and distance from the

improvements, resulted in excessive assessments. Smith criticized the

city’s application of the formula, asserting it failed to consider (1) the

unique features of each parcel of land and (2) whether special benefits

would actually be conferred to the properties burdened by the

assessments. 4 He proposed an alternate formulation of the assessments,

multiplying the number of frontage feet of each parcel abutting the

improvement by his calculation of the cost per foot of a twenty-five-foot

wide, seven-inch thick road. 5 He then considered fifteen “special benefit

factors” to determine whether the paved street conferred special benefits

upon the properties or general benefits to the city as a whole and

concluded the paved road conferred little, if any, benefit upon the


       4The  Flint formula, also known as the area assessment method, “focuse[s] on the
frontage size and depth of the abutting property, and assign[s] ‘benefit points’ for each
tract.” Milton O. & Phyllis A. Thorson Revocable Estate Trust v. City of West Des Moines,
531 N.W.2d 647, 650 (Iowa Ct. App. 1995). The formula’s application was summarized
this way in a prior case:
              In computing the assessments the city engineer first determined
       the benefited area, i.e., half way to the next block but not more than
       three hundred feet. By mathematical computation, involving frontage
       and depth factor, total cost, points of benefit and cost by point, the
       assessment was determined. It was based on the premise “that any
       square foot on the improvement pays the same assessment as any other
       square foot the same depth on [or distance from] the improvement.”
Beh v. City of West Des Moines, 257 Iowa 211, 222, 131 N.W.2d 488, 495 (1965).
       5Smith   opined it was appropriate to assess only the costs of installing a road
twenty-five feet wide because that is the maximum width of a minor residential street.
He contended the additional width of the road installed by the city (thirty-one feet)
conferred only a general benefit to the public because it provided room for parking along
one side of the road. He further opined that while the city should not have assessed for
any portion of the cost of installing the sidewalk, in no case should more than fifty
percent of the cost of the sidewalk be assessed.
                                          6

abutting landowners. 6 Finally, after considering the unique features of

each parcel, including whether it could be subdivided, his report

concluded
       [w]ith all the property characteristics being nearly uniform,
       the assumption is that residential home owners receive
       Special Benefit and not land. Consequently, the 15 Special
       Benefit factors outlined herein uniformly apply to these
       owners. No property Owner receives any more or any less
       Special Benefit.      Consequently, the Ingram property
       represented by parcel number 24 is the most common
       property that receives no more or no less Special Benefit
       than any other assessed property. Under the scenario of
       these residential property owners being assessed for a
       minimal residential paving slab only, and one-half the
       sidewalk assessment, the combined maximum assessment
       would be $8,453.78. No property on West Euclid Avenue
       should have a maximum combined assessment for the
       pavement and sidewalk that exceeds $8,453.78.

       The city presented evidence that while the Flint formula was

utilized in part, the assessments in this case were not based entirely on a

mechanical application of the Flint formula without consideration of the

special benefits conferred upon the properties.               Jeremy Enano, the

engineer who prepared the plat and assessment schedule for the city,

explained that, before the Flint formula was even applied to any of the

project costs, the city had deducted the cost of paving the intersections

and had only considered the cost of installing pavement seven inches

thick, rather than the eight inches that was actually installed. The city

had also not included the cost of installing sidewalks in the intersections

in the sidewalk assessment. The city manager, Timothy Zisoff, testified

the formula was adjusted for certain lots at the direction of the city

council. Enano and Zisoff explained the adjustments:

       6The special benefit factors identified and assessed by Smith included noise
reduction, dust reduction, increased police and fire protection, better snow and ice
removal, improved access, improved drainage, ditch removal, improved safety, high life
expectancy of roadway, street lighting, lower maintenance costs, pedestrian access,
increased market value, beautification, and increased traffic capacity.
                                     7
             For lots that were relatively large or lots that could
      potentially have a smaller lot subdivided out from it, we
      analyzed that subdividable lot as a separate entity, and in
      doing so we were able to determine what the assessment
      would be for the smaller portion and the larger portion. And
      at the direction of the City, we used the assessment from the
      smaller portion and classified it as a deficiency and
      specifically lowered the overall assessment to anybody that
      could have a lot divided out by $6,250.

            ....

            We were very conscious of the fact that there were
      large lots on West Euclid, 200-, 300-foot wide lots, so we
      developed a way and instructed the engineer to put a
      valuation, because having done enough assessments, we
      know the State allows a 25 percent assessment of up to the
      property’s value. So we took the property – again, any lot
      that could have been subdivided, even though there’s no
      intent to subdivide, we still reduced the size in order to limit
      the amount of the assessment.

      Zisoff also testified that city council members inspected the

properties and met with the owners to evaluate the special benefits

received by the properties.    He explained that the final assessments

represented the cost of installing a twenty-five-foot wide, seven-inch

thick road, even though the road was wider and thicker.

      In addition, the city presented evidence explaining that the Flint

formula has for decades been the preferred and established method of

calculating special assessments in Iowa.       Smith, the owners’ expert,

conceded that the Flint formula, in various forms, is the most common

method used by cities and engineers in the state, and he admitted it was

the method he utilized during his tenure as city engineer of Des Moines.

The city’s experts testified the Flint formula is commonly used by

municipalities to allocate assessments whether the property is residential

or commercial.

      The city’s expert, Duane Wittstock, had been the city engineer for

the city of West Des Moines since 1988.        He testified that the Flint
                                          8

formula was applied appropriately in this case, citing the fact that the

properties are fairly uniform in shape as an important consideration. He

also identified a list of twenty special benefits the properties were likely

to receive. 7

       The district court concluded that the assessments were excessive

and reduced them, relying on Smith’s testimony.                  The district court

determined the general benefit derived from paving the road was greater

than the special benefit accruing to the abutting property owners. The

court reasoned that because the lots at issue extend beyond 300 feet

from the road, the application of the Flint formula amounted to nothing

more than an inappropriate frontage-foot method, which has been

disapproved by our caselaw.           Concluding the city did not take other

factors into consideration but rendered the assessments based solely on

the Flint method, the district court found the assessments excessive and

reduced them.         The district court relied on Smith’s report and

determined that the assessments may not exceed $8,453.78 8 and

reduced the sidewalk assessments by half. The city appealed.




       7Wittstock’s nonexhaustive special benefits list included reduction of fugitive
dust, lower vehicle maintenance, reduced roadway noise, improved sense of place for
the neighborhood, aesthetic enhancements, improved drainage, decreased potential for
trash accumulation due to elimination of ditches, decreased response time for
emergency services, improved street lighting, improved ability to maintain nonpaved
right of way, decreased chance of broken windshields due to rocks, enhanced access to
parcels, opportunity to develop property to highest and best use, improved ability to
keep home and vehicles clean, updating street to current design standards to enhance
safety, decreased environmental contamination of streams, potential for preservation of
property value, potential for increased property value, improved pedestrian access, and
improved recreational activities.
       8Smith, in his report and testimony, proposed $8,453.78 as a final total

assessment—including both the assessments for the street and the sidewalk. However,
the district court concluded $8,453.78 was the maximum assessment for the street
improvement and additionally reduced the sidewalk assessment by fifty percent.
                                         9

        II. Scope and Standards of Review.

        Our review is de novo. Horak Prairie Farm, L.P. v. City of Cedar

Rapids, 748 N.W.2d 504, 506 (Iowa 2008). We will give weight to, but we

are not bound by, the district court’s findings. Id. On appeal, as in the

district court, the burden is on the plaintiffs to show that the special

assessments were excessive. Mulford v. City of Iowa Falls, 221 N.W.2d

261, 268 (Iowa 1974).       Once the city has “properly ordered a special

improvement . . . there is a presumption of necessity and a presumption,

too, that some benefit results to the assessed property owners.” Goodell

v. City of Clinton, 193 N.W.2d 91, 93 (Iowa 1971). Further, there is a

presumption that the assessments are correct and do not exceed the

special benefit received from the improvement. Id. It is appropriate to

consider “future uses and expectations as well as [the] present use to

which the property is put.”        Id.       “Unfortunately, mathematical and

analytical certainty is usually impossible in these cases, and thus, we

must rely on approximations to determine the correct amount of the

assessment.” Horak Prairie Farm, 748 N.W.2d at 508.

        III. Discussion.

        Iowa Code section 384.61 (2007) addresses the assessment of

costs    incurred   by   municipalities      in    the   development    of   public

improvements.

               The total cost of a public improvement, except for
        paving that portion of a street lying between railroad tracks
        and one foot outside the tracks, or which is to be otherwise
        paid, must be assessed against all lots in the assessment
        district in accordance with the special benefits conferred
        upon the property, and not in excess of such benefits.

Iowa Code § 384.61.        A special assessment cannot exceed twenty-five

percent of the value of the property.             Id. § 384.62(1).   The statutory

scheme provides limitations to “ensure that individual property owners
                                     10

are not subsidizing the general benefits enjoyed by the public resulting

from the improvements, particularly when street improvements are at

issue.”   Horak Prairie Farm, 748 N.W.2d at 507.          In this case, the

controversy centers on whether the property owners were assessed in

excess of the special benefits they receive from the improvement.

Specifically, the plaintiffs contend the city inappropriately relied on a

purely mathematical formula, the Flint formula, to spread the costs of

the street paving project among the abutting landowners resulting in

assessments which are higher than the special benefit conferred upon

their properties. The owners contend the city should have engaged in an

individualized assessment of each parcel to gauge the benefits conferred

upon the property.

      The city does not dispute that it applied the Flint formula to spread

the cost of the assessment to the properties; however, it contends the

application of the formula was not inappropriate for two reasons. First,

the city argues the assessments did not exceed the special benefits

conferred upon the properties.     Additionally, the city argues it did not

merely apply a mathematical formula to calculate the assessments but

instead used the formula as part of its individualized assessment of the

benefits conferred upon the properties. The city requests we make clear

that the use of the Flint formula is not proscribed by law, as the formula

is currently being used in the vast majority of jurisdictions in the state.

      A. Special Benefits Conferred upon the Properties. Upon our

review of the record, we are not persuaded the plaintiffs have met their

burden of establishing their assessments exceed the special benefits

conferred on their properties as a consequence of the improvements on

and along West Euclid. We have no doubt the city’s primary purpose in

undertaking this improvement project was the achievement of a public
                                       11

benefit after an elementary school was built in the neighborhood. West

Euclid was widened and paved to accommodate the traffic to the school

and connect other paved roads in the city to a relatively new housing

development situated to the north of the plaintiffs’ properties and

accessible only via West Euclid. The development of a paved surface on

the roadway conferred a broader public benefit as well because

commuters use the improved road to connect to highways leading to Des

Moines. The substantial benefits derived by the general public from the

West Euclid paving project do not render the special assessment

excessive, however, as the city did not assess the full cost of the project

against the properties within the assessment district. Instead, at several

points in the assessment process, the city reduced the assessment

against the private landowners to balance the general benefits conferred

upon the public with the special benefits conferred upon the abutting

properties.

      Initially, the city determined not to assess the cost of paving

intersections against the abutting landowners. The city also decided to

only assess for the cost of a seven-inch thick pavement, even though the

road was eight inches thick. Of the cost remaining for the improvement

of   the   road,   $660,448.81,     the   city   assessed    $360,448.81, 9    or

approximately fifty-five percent, against the abutting landowners.

Further, as we have already noted, when the Flint formula was utilized to

spread the fifty-five percent of the cost of the road among the properties

benefitted, the city directed the engineer to divide large lots and apply the

formula to those lots in a way that would adjust the assessment for

larger lots.

      9The   final amount assessed against the properties, according to the city
manager, was roughly the cost of building a road twenty-five feet wide. As we have
noted, the width of West Euclid is thirty-one feet.
                                   12

      Few property owners are happy about sharing through special

assessments the cost of public improvements, particularly ones that they

did not ask for.

      It is natural for the average property owner to resent the
      burden thus laid upon him, and he easily persuades himself
      that the thing for which he is asked to pay is a detriment,
      rather than a benefit, to his land, and ordinarily it is not
      difficult for him to find plenty of sympathizing neighbors who
      will unite in supporting his contention.

Chicago, R.I. & P. Ry. v. City of Centerville, 172 Iowa 444, 449, 153 N.W.

106, 108 (1915). One expects “property owners [to seek to] minimize the

taxes they must pay for an improvement they did not want.” Des Moines

Union Ry. v. City of Des Moines, 459 N.W.2d 271, 273 (Iowa 1990).

      According to the plaintiffs, virtually nothing about the paved road

is better than the prior gravel road. One owner testified the pavement

was worth one hundred dollars to him. Some of the plaintiffs testified

the noise is louder and the dust is heavier than before the project was

undertaken. They contend they have received little benefit in the way of

improved access to their properties and that the road is not maintained

better than before. The plaintiffs note increased vehicular traffic, more

children and pedestrians, and the loss of the rural nature of their

property as consequences of the project. Some of the owners admit that

they will see slightly less wear on their cars because of the pavement and

that there might be some improved curb appeal to a prospective buyer.

Overall, however, they believe their property values have decreased since

the road was paved.

      We find the special benefits conferred upon the properties at issue

in this case are numerous, despite the owners’ testimony that they have

actually been harmed by the paving of the road. Paving a gravel road

confers substantial benefits on an abutting landowner, benefits that are
                                    13

“manifest to anyone having the slightest knowledge of the subject.”

Camp v. City of Davenport, 151 Iowa 33, 38, 130 N.W. 137, 139 (1911).

The parties’ experts identified many of them, including fugitive dust

control, reduced roadway noise, lower vehicle maintenance costs,

aesthetic enhancements, improved drainage, decreased potential for

trash accumulation due to the elimination of ditches, increased safety,

easier maintenance of the property abutting the road, and decreased

response time for emergency services.           Our review of the owners’

testimony reveals that the heart of their complaint comes not from the

improvement of the road but from the location of the school nearby, the

increased traffic it has engendered, and the urban growth in the

neighborhood.

      Determining how much an improvement specially benefits abutting

landowners rather than generally benefits others “cannot be done with

mathematical precision. Approximation is the best we can do.” City of

Clive v. Iowa Concrete Block & Material Co., 298 N.W.2d 585, 592 (Iowa

1980) (citation omitted). We conclude the owners failed in this case to

prove the assessments exceeded the special benefits conferred upon their

properties, and the presumption that the assessments are correct has

not been rebutted. Accordingly, we conclude the district court erred in

setting aside the city council’s assessments.

      B. Use of the Flint Formula. The plaintiffs argue that while the

Flint method may be appropriate in some situations, it should not be

applied in the allocation of assessments to residential acreages.    The

plaintiffs contend the formula should not be used because it does not

take into account variations in the assessed properties, such as

topography, woods, ditches, and suitability for subdivision. Our caselaw

has disapproved assessments calculated solely on area or frontage. See
                                      14

Wharton v. City of Oskaloosa, 158 N.W.2d 834, 835 (Iowa 1968) (“The

area or frontage methods cannot be made the sole or conclusive basis of

determining the assessments without regard to all other factors . . . .”);

see also Des Moines Chrysler-Plymouth, Inc. v. City of Urbandale, 488

N.W.2d 711, 714 (Iowa Ct. App. 1992).           The use of a mathematical

formula, however, as a tool in the principled allocation of assessments is

not proscribed. 10

      Our cases have noted various factors relevant to the determination

of the appropriate amount of special assessments, including the present

and future use of the abutting property, the increase in the market value

occasioned by the improvement, the size and shape of the property, the

proximity of the property to the improvement, the amount of property

fronting the improvement, the needs of the property owners served by the

improvement, and the primary purpose behind the improvement.                See

Thorson, 531 N.W.2d at 650. The enterprise of quantifying and allocating

special benefits conferred on affected properties is not an exact science.

      [N]o plat and schedule of special assessments could, as a
      matter of practical exercise of the function, be prepared
      without the use of some more or less arbitrary rule for this
      preliminary and tentative distribution of the cost of the
      improvement upon the property liable to assessment.

In re Resurfacing Fourth St., 203 Iowa 298, 301, 211 N.W. 375, 377

(1926). We do not think the city’s use of the Flint formula in this case

was inconsistent with the applicable legal principles.

      Furthermore, the challenged assessments were not based solely on

the Flint formula. The city’s council members viewed the properties at

issue and discussed the proposed assessments with people in the


      10We  note the plaintiffs’ own expert began his calculations with a purely
mathematical frontage foot formula.
                                         15

neighborhood before the assessments were approved. At the direction of

the city council, assessments of larger properties suitable for subdivision

were adjusted in furtherance of the goal to quantify the special benefits

derived by the respective properties.         Under the circumstances of this

case, we conclude the city’s use of the Flint formula in the allocation of

special assessments to benefitted properties was not improper. 11

       C. Sidewalk Assessments. Although an Indianola city ordinance

requires property owners to install their own sidewalks, the city included

the sidewalk installation as part of the West Euclid paving project and

assessed the plaintiffs for the entire cost of the sidewalk fronting their

properties. The district court concluded that because the city decided to

install the sidewalks as part of the paving project and did not utilize a

city ordinance compelling property owners to install their own sidewalks,

the assessment for the sidewalk must not exceed the special benefits

conferred upon the property as required by Iowa Code section 384.61.

We agree that the special assessment levied against the properties for the

installation of the sidewalk must not exceed the special benefit conferred

upon the property. Brush v. Inc. Town of Liscomb, 202 Iowa 1155, 1158,

211 N.W. 856, 857 (1927) (holding special assessments levied for

installation of sidewalk must not exceed special benefit conferred as

required by statute even though city ordinance permitted assessment of

full cost of sidewalk).

       The property owners contend they suffered harm but derived no

benefit from the installation of the sidewalk because they must now

maintain the sidewalk and they are required to remove snow and ice


       11We are by no means implying that the Flint formula, or some version of it, is
the only appropriate method of spreading assessments to abutting landowners or that
the formula must be used by cities.
                                          16

from the walkways in the winter. They contend these new unsolicited

responsibilities constitute a significant hardship, especially given the fact

they will rarely use the sidewalks. The property owners also assert they

now are burdened with unwelcome liability for injuries to pedestrians

using the walkways.         One property owner testified that he purchased

additional insurance to cover this potential liability.

       The record establishes the public benefit derived from the sidewalk

improvements within the assessment district is significant.                   The city

engineer testified the sidewalk was installed along West Euclid in

furtherance of student safety, and the owners testified that students

utilize the sidewalk to access the school.            Sidewalks, particularly ones

that connect with other sidewalks in the city, are used by the general

walking public, just as streets are used by drivers. However, it is equally

evident that sidewalks confer special benefits upon adjacent properties.

Despite the protestations to the contrary, the plaintiffs in this case do

receive special benefits from the sidewalk which will reduce the incidence

of pedestrians walking through their property at other locations. Even

the plaintiffs’ expert conceded that an allocation of fifty percent of the

cost of the construction of the sidewalk to the plaintiffs was appropriate.

Like the district court, we find the assessment of the entire cost of the

sidewalk improvements against the plaintiffs’ properties cannot be

sustained on this record because such an assessment would exceed the

benefit conferred upon the adjacent properties. 12 We affirm that portion




       12Our   opinion in this case should not be understood as a determination that a
municipality can never assess the entire cost of sidewalks to abutting properties. We
simply find on this record that the amount of the special assessments allocated to the
plaintiffs’ properties for the installation of the sidewalk exceeded by fifty percent the
special benefit conferred upon them.
                                          17

of the district court’s judgment reducing the sidewalk assessments by

fifty percent.

      IV. Conclusion.

      We conclude the assessments levied by the city of Indianola

against the plaintiffs for the road improvements did not exceed the

special benefits conferred upon the plaintiffs’ properties.            We therefore

reverse   that   part     of   the   district   court’s    judgment    revising   the

assessments for the road improvements. However, we affirm that part of

the district court’s judgment reducing the special assessments against

the plaintiffs’ properties for the sidewalk improvements because the

assessments      failed   to    account   for   the significant public       benefit

occasioned by the sidewalks. Accordingly, we affirm in part, reverse in

part, and remand for entry of a judgment consistent with this opinion.

      AFFIRMED          IN     PART,   REVERSED           IN   PART,   AND    CASE

REMANDED.

      All justices concur except Appel, J., who takes no part.
