West Great Falls Flood Control and Drainage Dist., In re
| Decision Date | 11 May 1972 |
| Docket Number | No. 11946,11946 |
| Citation | 496 P.2d 1143,159 Mont. 277 |
| Parties | In the Matter of the WEST GREAT FALLS FLOOD CONTROL AND DRAINAGE DISTRICT. |
| Court | Montana Supreme Court |
Swanberg, Koby & Swanberg, Randall Swanberg argued, Great Falls, for respondents.
This is an appeal from an order and decree of the Cascade County district court confirming with modifications proposed assessments against property within the West Great Falls Flood Control and Drainage District to cover initial construction costs of a flood control project.
Appellants are approximately sixty in number, all of whom are property owners within the district; they can be classified in three groups: (1) individual property owners, principally those whose property is situated in the Country Club Addition; (2) the Montana Power Company; (3) the Montana Highway Department. Respondents are the district and its commissioners.
The West Great Falls Flood Control and Drainage District, herein called the District, was created by order of the district court on March 22, 1967 following a petition therefor, signed by approximately sixty-three percent of the landowners. The district contains about 2950 acres with about 1900 landowners. The purpose of the district was the construction and maintenance of levees, dikes and other flood control facilities.
The flood control project was designed by the United States Army Corps of Engineers to protect property from the effects of a recurrence of a flood or floods of the severity of the 1953 flood, the 1964 flood, which caused approximately six million dollars damages, and a 'design' (hypothetical) flood of greater severity than either the 1953 or 1964 floods. According to the Corps of Engineers, it is estimated that the possibility of recurrence of a flood equal to the flow discharge of the 1964 flood is approximately once every 160 years, and the possibility of a 'design' flood is approximately once every 250 years. Estimated cost of the project is six million dollars.
On or about December 23, 1968, the District, by and through its acting commissioners, mailed notices to the various property owners, including appellants, setting forth the amount of alleged 'Benefits Assessed' and proposed 'Assessment for Costs' in connection with the initial construction of the project.
On December 30, 1968, the District commissioners filed their Third and Final Report with the court, which report, among other things, requested the court to approve and confirm said assessments.
In due course appellants objected to the confirmation of their respective assessments, among other things contending that the methods used in determining and fixing assessments by the commissioners were arbitrary, capricious, discriminatory, illegal, invalid After hearings were held, the order and decree, from which this appeal was taken, was entered on August 17, 1970.
and void, and that the costs being assessed by the District were oppressive and far exceeded the value of any benefits which might reasonably accrue from the construction of the project.
Thereafter, appellants timely served exceptions to the findings of the court and their motion for an order to amend the findings.
The district court took no action within fifteen days and the exceptions were deemed denied.
A 'Stipulation of Facts' was entered into by counsel for appellants and respondents, and paragraph (10) of said Stipulation of Facts provides, in pertinent part, as follows:
'(10) That the manner and method of working out assessments is covered for the most part by the Commissioners' reports; that wherever improvements are located on any of the land within the District their valuation was, and will be, included, for assessment purposes, both for the initial costs in connection with the construction of the project and for maintenance assessments thereafter. That, in general, all property within the District, for purposes of assessment, was divided by the Commissioners into three zones, with different rates of assessment, based on the assessed value of land and improvements as shown on the Cascade County assessment rolls. The basis asserted by the Commissioners for the three zones referred to is as set forth in the reports of the Commissioners and testimony and evidence, to-wit: the purpose of the zones was to relate the assessed values obtained on various properties to danger from flood. The District was divided into three zones: Zone A including all lands and improvements which were flooded by high water in 1953 and/or 1964; Zone B including lands and improvements not flooded in 1953 or 1964, but which would be subject to the 'design' flood; and Zone C including lands and improvements which would not be flooded under the 'design' flood but which, the Commissioners concluded, would be benefited by virtue of increased property values in the immediate neighborhood, prevention of flooding of access roads, sewers, gaslines, waterlines, health hazards, etc. It was determined by the Commissioners that the benefits to improved lands in Zone A, should be valued at 100% of assessed value; benefits to improved lands in Zone B, valued at 60% of its assessed value; and benefits to improved lands in Zone C, valued at 35% of assessed value, and that improvements on the land were to carry the same classification as the land itself (i. e., if the level of the land placed it in a certain zone the improvements thereon were considered as being in the same zone even if, in fact, part or all of the improvements would be above the water level of the zone into which the land was placed). That the Commissioners, in arriving at the amount of assessments for Appellants (or others within the District whose property did appear on the assessment rolls of Cascade County) did not make, nor have made for them, any appraisal(s) relating to the value of alleged benefits to be received by Appellants by reason of the creation of the District or the construction of the project; that the Commissioners, in arriving at said assessments, did not assign any dollar and cents value(s) to any particular alleged benefit(s) to be received by Appellants; and that the assessments for the initial costs of the project were arrived at (and the assessments for maintenance costs will be arrived at) by programming into the computer the total assessed value of all real property and improvements within the District considered by the Commissioners and obtained from the Cascade County Reclassification Office as adjusted by the percentage of such value for the Zone or Zones in which the property was situated in each case (i. e., if the property was in Zone A, 100% of assessed value was used; if in Zone B The issues for review upon appeal relate generally to the assessment and assessment procedures used against the property of the three classes of appellants. We deem it unnecessary to go into all the details of the objections raised other than to say that each group of appellants claims that the assessments and assessment method is arbitrary and capricious and therefore illegal as to their property.
60%; if in Zone C, 35%), including the zone-adjusted assessed values of land and improvements of Appellants, and, in the case of the initial costs of the project, the $2,000,000.00 estimated local initial costs (and in the case of maintenance the estimated annual maintenance costs) to arrive at what the percentage of the estimated initial local costs (or annual maintenance costs) was (will be) of the total zone-adjusted assessed values of property considered by the Commissioners. This percentage (which approximated 25% in the case of the initial [159 Mont. 282] project costs) was then applied (will hereafter be applied in the case of maintenance costs) to the zone-adjusted assessed values of Appellants' properties to arrive at the amount of Appellants' assessments.'
The Commissioners, in arriving at the amount of individual initial assessments, used the full assessed value of the property owner's land and improvements (or 60% and/or 35% in those lands in Zones B and/or C) in determining the 'Amount of Benefits Assessed' appearing in the various assessment notices given by the District. It is clear that the Commissioners assessed benefits against improvements as well as land, although the Commissioners have argued that they merely used the value of improvements as well as the value of land as a 'yardstick' of benefits.
The statutory authority for the assessments of the properties, mostly residential, with which we are here concerned, must be found under section 89-2330, R.C.M.1947, which provides in pertinent part as follows:
'* * *
'All lands from which surface or seepage waters will enter or can be conducted into the proposed drainage system;
'All lands upon which or through which, surface or seepage water will be prevented from flowing, or can be prevented from flowing, by virtue of the construction of the proposed drainage system;
'All lands which will sustain any direct benefit of any kind or character whatsoever;
'* * *
'The assessment against each tract, lot, easement, town, city, county, irrigation ditch, railroad, individual or corporation...
To continue reading
Request your trial
-
Estate of Ventling, Matter of
... ... Wendell-West, 7 Wash.App. 90, 497 P.2d 1348 (1972). See cases ... In re West Great Falls Flood Control & Drain District, 159 Mont ... ...
-
Morse v. Morse
... ... In the Matter of West Great Falls Flood Control and Drainage District, ... ...
-
Cosgrove v. Industrial Indem. Co.
... ... Hoyt (argued), Great Falls, for plaintiff and appellant ... In Matter of West Gt. Falls Fl. Cont. Dist., 159 Mont ... ...