Edmunds County Tribune -

To the Editor:

Justice has a Price

I have been in contact with an attorney regarding the curb, gutter and sidewalk assessment and the decision by the City Counsel to disregard the petition to bring the resolution to a vote. I raised a couple of questions about the validity of the Ipswich city attorney’s opinion and find that he is not quite correct.

Below is part of my attorney’s opinion regarding my assessment.

I do not disagree in principle with any of the points that you have made. There is definitely an argument that the first resolution does not make it clear to anyone that a tax would be assessed later, and certainly does not set forth what the tax will be.

Additionally, there is the South Dakota Supreme Court 2010 decision in the Wade & Lisa Hubbard et al vs. City of Pierre. The court ruled in favor of the plaintiffs based in part on the fact that the City of Pierre did not compensate property owners for existing curb and gutter that, although aged and in a state of disrepair, was still functioning as designed. In other words, you can’t just say that any curb and gutter that is over 15 years old is condemned and stick the land owners with the bill to replace functional infrastructure.

Neither did the city address the mandate, Fifth Amendment of the United States Constitution and Article VI, Sections 2 and 13 of the South Dakota Constitution, that the assessment must be at least equal to the provable increase in value to the affected properties. The key word here is “provable”, which is to say that an independent realtor(s) would have to appraise each property and determine that the property will increase in value enough to cover the cost to the property owner. In the Pierre case, testimony by licensed realtors determined that the new curb and gutter did not meet that standard. The City of Ipswich has not done that as far as I know.

To take the City of Ipswich to court, and obtain a Writ of Mandamus over their denial of our right to vote on the assessment, could cost up to $10,000. I don’t have the financial means to proceed.

The Supreme Court decision in the suit against the City of Pierre is pretty interesting though. The affected property owners have a real shot at this one.

- Ed Bierman