Interpretation of ‘gap and extend’ law properly allowed extension of pavement to unpaved intersection

by Gary Taylor

Johnson v. City of Fremont
(Nebraska Supreme Court, April 18, 2014)

[Note:  The court includes a map of the area in question!  I wish the courts would include maps in their published opinions more often.  They make land use cases much easier to understand. I urge you to follow the link to the case to see the map.]

Neb. Rev. Stat. 18-2001 provides

Any city or village may, without petition or creating a street improvement district…pave any portion of a street otherwise paved so as to make one continuous paved street, but the portion to be so improved shall not exceed two blocks, including intersections, or thirteen hundred and twenty-five feet, whichever is the lesser  Such city or village may also pave any unpaved street or alley which intersects a paved street for a distance of not to exceed one block on either side of such paved street.

Known as the gap and extend law, the City of Fremont used the statute to pave one block of Donna Street and assess the costs to abutting landowners, including the plaintiffs in this case, Roland and Karen Johnson. The pavement extended the paved portion of Donna Street one block to the west, but stopped at the intersection of Howard Street, which is unpaved.

The City argued that the action “was the paving of an extension of Donna Street for one block from where it intersects Jean Drive, a paved street,” and was a proper application of the gap and extend law.  The Johnsons argued a narrower interpretation of the statute; specifically that the phrase “so as to make one continuous paved street” in the first sentence limits the statute’s application in all instances to circumstances where the pavement closes an unpaved gap between two paved streets.

The Nebraska Supreme Court sided with the City.  Concluding that the terms of the law are clear and unambiguous, the Court found that the statute’s second sentence clearly applied to the City’s extension of Donna Street.  “The first sentence [which included the language ‘so as to make one continuous paved street’] provides the power to fill a gap….The section sentence, empowers a city to make a single-block extension of paving from an intersecting street.  The Legislature used the word ‘also’ to make it clear that the second sentence provided an additional power beyond that granted by the first sentence….The [Johnson’s] interpretation would effectively eliminate the second sentence of section 18-2001.”

City failed to show special benefits conferred on abutting landowners when assessing for street improvements

by Melainie Thwing and Gary Taylor 

Hubbard v. City of Pierre
(South Dakota Supreme Court, June 30, 2010) 

In 2007 the City of Pierre, South Dakota began an improvement project on the street Wade and Lisa Hubbard live on. This project was primarily to replace water mains, but also included replacing sewer mains, resurfacing streets, and replacing curb, gutter, and driveway portions that had been installed between 1930 and 2006. In February of 2007 the City proposed a resolution to issue special assessments at a set rate per linear foot cost of reconstructed curb and gutter, and at a set rate per square foot cost for reconstructed driveway approaches.  The Hubbards, Ben Orsbon, and several other petitioners appeared at the Commission meeting that month and argued that the special assessment was an unconstitutional taking of private property, but the resolution later passed. 

After the assessments were filed in November 2007, the petitioners (with counsel present) again contested the assessment citing the Fifth Amendment of the U.S. Constitution, and the South Dakota Constitution Article VI § 2 which states, “[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.” The petitioners argued that the amount of the special assessments levied exceeded the benefits provided to the abutting landowners.  They claimed that the replacement of curb, gutter and driveway approaches provided no benefits to the abutting landowners.  Alternatively, petitioners argued that the city should have calculated the special assessments according to South Dakota Codified Law (SDCL) 9-45-32 which provides that the assessment should be levied, “according to the benefits determined by the governing body,” rather than SDCL 9-45-30 which provides that, “the rate of assessment per front foot,” is the proper way to levy special assessments.  Nevertheless, the City still approved the assessments, and the petitioners filed for a permanent injunction with the circuit court.  The circuit court determined that under either statute a showing of benefits conferred is required, and that the assessments were unconstitutional under the South Dakota and U.S. Constitutions.  The city then appealed to the South Dakota Supreme Court. 

The Supreme Court stated the framework for the constitutional analysis:   

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. A public improvement is considered local if it benefits adjacent property, as distinguished from benefits diffused throughout the municipality….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.
During the circuit court hearing Hubbard testified that his home is in a three-block historic neighborhood, and that the curb that was replaced was an older style curb with square corners, was still in good shape, and that, in fact, the new curb provided less, rather than more protection against stormwater damage.  Thus, no property value was added.  Orsbon, who was an AICP-certified planner with a masters degree in planning and over twenty years experience in the field, stated that because a gutter and curb already existed, were in good condition, and could have lasted thirty more years, the replacement of the gutter and curb added no benefits to his property. An assessor testified that no property value was added with the replacements.  On the other hand, the city’s engineer testified that the curb and gutter were failing in several places along the streets in question, and that all properties benefitted from replacement of existing curb and gutter with a uniform design. 
 
The circuit court found that the city engineer’s testimony that all properties benefitted from the uniform design showed that the benefits provided to the petitioners were, in fact, no different than those provided to the general public.  It concluded that the general public, and not specific property owners, were the beneficiaries of a uniform design.  The circuit court noted that its decision was based on “strong, direct, clear, and positive proof” from the petitioners.  The Supreme Court found no evidence of a “clear mistake” in the ruling of the circuit court and, therefore, affirmed the lower court’s decision in favor of petitioners.   

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