Let’s Revisit- What are the legal steps to impose a special assessment in South Dakota?

To impose a lawful special assessment in South Dakota, governing bodies (such as municipalities or, by reference, road districts) must follow a strict, multi-step process that ensures due process and proportionality of benefit. This process is highly procedural and detailed in SDCL Chapters 9-43 and 9-55. 

Here are the general legal steps required:

1. Project Initiation and Resolution of Necessity

The process begins with the governing body determining that a local improvement is necessary. 

• Determination/Petition: The governing body may determine the need itself, or landowners may initiate the process via a petition signed by a specified percentage (e.g., 55%) of property owners in the proposed district.
• Resolution of Necessity/Intent: The governing body must pass a formal resolution of intention to create the improvement district and define the scope of work and the proposed method for assessing costs. 

2. Public Notice and Opportunity for Protest

Crucial due process requirements mandate that property owners be informed and given a chance to object. 

• Publication of Notice: Notice of the proposed resolution and a public hearing must be published in a daily or weekly newspaper of general circulation within the municipality/county at least once a week for two weeks.
• Mailing of Notice: A copy of the notice must be mailed to each property owner within the proposed district.
• Public Hearing and Protest Period: A public hearing is held to consider objections. Property owners typically have a set period (e.g., 15 days after the final publication of notice) to file a written protest against the proposed project or the method of assessment.
• Protest Threshold: If protests are received from owners whose property represents a certain percentage of the cost (often over 50%), the governing body may be barred from proceeding with the project. 

3. Creating the Assessment Roll (Proving Benefit)

After the protest period closes and the project moves forward, the actual costs are calculated and allocated. This is where the special benefit rule is enforced. 

• Calculating Costs: The total costs of the project are determined.
• Developing an Assessment Roll: A detailed assessment roll is prepared. This document must list:
  • The name of the property owner.
  • The legal description of the property.
  • The specific amount assessed against each lot.
• Method of Assessment: The method used must be “fair and equitable” and spread costs only to the extent of the special benefit received by each property. A municipality might use a “frontage,” “square footage,” or “zone” method, but it must be able to demonstrate that the assessment amount does not exceed the increase in the property’s value attributable to the improvement. A flat fee, without a detailed benefit analysis, often fails this legal test. 

4. Hearing on the Assessment Roll and Final Approval

Property owners are given a final chance to challenge the specific amount they are being charged.

• Notice of Hearing on Roll: Another notice must be mailed to property owners not less than 10 nor more than 20 days before a hearing where the governing body reviews and confirms the final assessment roll.
• Equalization and Confirmation: The governing body acts as a board of equalization to review all assessments, ensure they are fair, and hear final appeals from property owners. They then pass a resolution or ordinance confirming the assessment roll. 

5. Collection and Recording

• Mailing Final Notice: The finance officer mails a final notice specifying the exact amount due, payment installment options, and interest rates.
• Recording: The assessments are entered into a special record of assessments and often certified to the county auditor to be added to the property tax records for collection. 

The failure to perform any of these mandatory steps, particularly the due process steps of proper notice and proving a proportional special benefit to each assessed property, typically renders the assessment unlawful and voidable in South Dakota courts