Pieper, Inc. and Mep Co. v. Green Bay Levee and Drainage District No. 2

IN THE COURT OF APPEALS OF IOWA

No. 15-2032
Filed December 21, 2016

PIEPER, INC. and MEP Co.,
Plaintiffs-Appellants,

vs.

GREEN BAY LEVEE AND DRAINAGE DISTRICT NO. 2,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County, John M.

Wright, Judge.

Pieper, Inc. and MEP Co. appeal from the district court’s ruling rejecting

claims the drainage district improperly classified and assessed annexed drainage

district landowners. AFFIRMED.

Nicholas D. K. Petersen and Robert S. Hatala of Simmons Perrine Moyer

Bergman, P.L.C., Cedar Rapids, for appellants.

Wm. Scott Power of Aspelmeier, Fisch, Power, Engberg & Helling, P.L.C.,

Burlington, for appellee.

Heard by Danilson, C.J., and Doyle and McDonald, JJ.
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DANILSON, Chief Judge.

Pieper Inc. and MEP Co. appeal from the district court’s rulings rejecting

claims the drainage district improperly classified and assessed district

landowners. Our review is limited to whether the Green Bay Levee and Drainage

District No. 2 Board of Trustees acted illegally or in excess of its jurisdiction.

Because Pieper has not established that the board acted illegally or in excess of

its jurisdiction, we affirm.

I. Background Facts and Proceedings.

Michael Pieper is the owner of Pieper, lnc. and MEP Co. He also was a

member of the Green Bay Levee and Drainage District No. 2 (Green Bay District)

Board of Trustees at all relevant times in this case.

The Green Bay District was formed in 1916 and encompasses land in Lee

County located along the Mississippi river. In 1916, the Mississippi River Power

Company and landowners within an area known as the Green Bay Bottoms

signed an agreement to establish a levee and drainage district. The document

notes “proceedings for the establishment of a levee and drainage district in

Green Bay Township, Lee County, Iowa, are now pending before the Board of

Supervisors.” The parties acknowledged that the farmers had filed

remonstrances (protests) against establishing the district but had come to

acceptable terms. In determining damages to the farmers, the agreement

references “Title X, Chapter 2-A of the Iowa Code Supplement 1913, as

amended.” Under the 1916 agreement, the power company was to pay the

“entire cost” of the proposed improvement, and the farmers would pay an annual
 3

assessment of five cents per acre for maintenance of the district upon

“completion of the construction of the proposed improvement.” However,

if the Mississippi River Power Company, or any agent or
employe[e] thereof, shall hereafter acquire any lands within the
proposed levee and drainage district owned by any Green Bay
Farmer who is a party to this agreement, that then the agreed
annual assessment of five (5¢) cents per acre shall no longer be
applicable, but such lands shall then and thereafter be subject to
annual assessments for maintenance and operation proportionate
to the benefits derived by them from the district. This agreement
shall run with such lands.

In a prior suit by the trustees of the drainage district, the Green Bay

District asserted the 1916 agreement and the five-cent-assessment limitation

were not binding. Trustees of Green Bay Levee & Drainage Dist. No. 2 v.

Alexander, 108 N.W.2d 593, 596 (Iowa 1961). The supreme court determined

the matter had been determined by way of a 1930 default decree enjoining the

collection of assessments in excess of the agreement. Id. at 598. The supreme

court wrote:

A period of 40 years has elapsed during which time the district has
operated as one established by mutual agreement and such person
must be held to have acquiesced in the establishment of the
district. The plan of assessments set forth in the contract made
part of the proceedings establishing the district has been followed
during all of this time, except for the assessment of 1928 enjoined
by the 1930 decree. When grantors of the individual plaintiffs
purchased at tax sales all of these matters were of record, as it was
when these plaintiffs purchased the land. The tax sales do not
have the effect claimed for them.
The last proposition is that land in a drainage district is
always subject to reclassification. This is true of a district
established by petition and notice. . . . Actually, this argument is
answered by the holding the district was established by mutual
agreement and those not signing have acquiesced in the mutual
agreement. At all times the parties to the agreement could fix the
amount of the assessment and the time when the same would be
paid. The board was to establish the district, have complete
jurisdiction and order such procedure as may be necessary to carry
 4

out the object, purpose and intent of such agreement. Section
1989–a28, Code of Iowa, Supplement 1913. When this section
was recodified, now sections [468.142, 468.143, 468.144, and
468.145], the general provisions are retained and section [468.145]
provides the board was to carry out the provisions of the agreement
in the same manner as in districts established on petition “except
as in said mutual agreement otherwise provided.” It is apparent the
legislature intended the residents of the district could set up the
district and arrange for the payment of construction and
maintenance as such persons agreed. If the right of reclassification
was to be retained the parties could have so proceeded. This does
not constitute an unconstitutional delegation of the taxing power.
We have examined all of the authorities cited by plaintiffs but
do not find they reach the question of a district established by
mutual agreement. The authorities cited dealing with drainage
districts relate to those established on petition and notice.

Id. at 600-01 (emphases added).

The present litigation arose after a recent improvement to the Mississippi

River levee and a proposal to construct a large fertilizer plant on land benefited

by the improvement. Iowa Fertilizer Company (IFC) began construction of the

fertilizer plant on a site that is adjacent to land within the Green Bay District. The

Green Bay District believed IFC benefited from the drainage district’s purpose,

and by August 30, 2012, the drainage district began discussing the annexation of

IFC property, as well as other area property believed to benefit.

The annexation was officially proposed the following month. The Green

Bay District hired an engineering firm to prepare a proposed annexation plan.

The engineering report was received in 2013.

At a special meeting held September 12, 2013, the Green Bay District

Board of Trustees appointed three commissioners to “assess benefits and

classify the lands” of the property to be annexed. The board also scheduled a

public hearing on the issue of proposed annexation for November 21, 2013.
 5

Notice of the November meeting was sent to affected landowners and

published in a local publication. The landowners were informed they must make

their objections in writing prior to the scheduled hearing. Pieper Inc. and MEP

Co. (hereinafter collectively referred to as Pieper) objected to the annexation.

The engineering report indicated over 1100 acres were benefiting from the

drainage district and should be annexed and assessed, it also noted some

properties were being assessed that were not in the district, some properties had

originally been included in the district but should not be, and other properties

were included and had not before been assessed. Section 4.2 of the engineering

report states:

The current method of assessment employed by the District
varies throughout the District. There are four different assessment
rolls. Almost every parcel appears on the 0.84 [of drainage district
bond] roll in addition to appearing on either the 5¢ roll, the 2% roll,
or the 55% roll. The 5¢ roll (Area 1) represents most of the higher
elevated parcels in the northwest portion of the District. The 55%
roll (Area 3) represents the majority of the other parcels being
assessed. The 2% roll (Area 2) represents several other parcels in
the northwest portion of the District.

Two of the three trustees voted to annex the land set forth in the map within the

engineering report and to levy a tax using the assessment method previously

used. Michael Pieper objected, asserting the assessment method did not

conform to the method prescribed by Iowa Code section 468.39 (2013).

After the November 21 meeting, the board requested that the

commissioners reconsider some of the properties to be assessed. Minor

changes were proposed. At a meeting on December 19, 2013, the trustees

passed a resolution, as amended in handwritten form, which “rescinded” the

November 21, 2013 resolution regarding the “partial assessment roll,” i.e., the list
 6

of annexed properties and assessments. The trustees then adopted the partial

assessment roll compiled after that November meeting. This amended roll

involved a lower assessment for six landowners.

On December 20, 2013, and January 17, 2014, Pieper filed writs of

certiorari in the district court, asserting the annexation and assessment by the

board of trustees was illegal in that there was not proper notice given to rescind

the November 21, 2013 assessment roll and adopt the revised assessment roll

on December 19. Pieper also asserted the board of trustees used a method of

assessing the annexed properties not contemplated by Iowa Code section

468.39.1

1
The two matters were consolidated. Green Bay District filed a motion to dismiss,
contending Pieper’s exclusive remedy was by notice of appeal filed within twenty days of
the board’s final decision. See Iowa Code §§ 468.83(1) (“Any person aggrieved may
appeal from any final action of the board in relation to any matter involving the person’s
rights, to the district court of the county in which the proceeding was held.”), 468.84 (“All
appeals shall be taken within twenty days after the date of final action or order of the
board from which such appeal is taken by filing with the auditor a notice of appeal, . . . .
This notice shall be accompanied by an appeal bond with sureties to be approved by the
auditor . . . .”), 468.96 (“The remedy by appeal provided for in this subchapter, parts 1
through 5, shall be exclusive of all other remedies.”).
The district court concluded a writ of certiorari pursuant to Iowa Rule of Civil
Procedure 1.1401 was available because Pieper asserted the board “exceeded proper
jurisdiction or otherwise acted illegally.” See Iowa R. Civ. P. 1.1403 (“The writ shall not
be denied or annulled because plaintiff has another plain, speedy or adequate remedy;
but the relief by way of certiorari shall be strictly limited to questions of jurisdiction or the
legality of the challenged acts, unless otherwise provided by statute.”). The parties do
not challenge that ruling on appeal.
In Goeppinger v. Boards of Supervisors of Sac, Buena Vista, & Calhoun
Counties, 152 N.W. 58, 61 (Iowa 1915), the supreme court noted that in drainage district
matters, appeal and certiorari are not necessarily inconsistent remedies.
The remedies are consistent as to some questions; for instance, the
question of jurisdiction may be raised on appeal, and if there is no
jurisdiction, or the lower tribunal has exceeded its proper jurisdiction, the
matter may be raised by certiorari. Under the statute, certiorari will lie
where the proper jurisdiction has been exceeded, and where there is
some illegality for which there is no other plain, speedy, and adequate
remedy. The illegality just referred to is something more than a mere
error and less than jurisdiction. It is not always easy to make the
 7

After a hearing, the district court concluded that the 1916 agreement—

establishing a new drainage district and determining the assessments for the

properties—overcame the scale-of-benefits method provided for in Iowa Code

section 468.39. The district court wrote:

At first blush it appears this agreement would fall under Title
X, Chapter 2-A, section 1989-a28, Iowa Code (1913). That
particular code section was in effect at the time of the landowners’
agreement. It now appears in sections [468.]142 to [.]144, Iowa
Code (2015). The statutes state that landowners may establish a
levee and drainage district by mutual agreement. It may include
the classification of the lands to be benefited, but it does not require
the landowners to use the benefit scale method of determining this.
The law also requires the board of supervisors to establish the
district and do what is, “required or necessary to carry out the
object, purpose and intent of such agreement.” In other words, the
board of [trustees] must not change the agreement in any way,
including the method of the classification of the lands to be
benefitted.
However, the agreement references in paragraph one that
proceedings to establish the drainage district, “are now pending
before the Board of Supervisors.” Paragraph 2 references the
farmers’ objections. So, it must be assumed that one or more
landowners petitioned the board of supervisors for the district and
that other landowners objected thereto. The Mississippi River
Power Company, obviously wanting to ensure the district would be
established, reached a settlement with the objecting landowners.
Part of that settlement was the five cent per acre annual
assessment. Unfortunately, we do not have the opportunity to
consider any other documents from this early process to help us
better understand how the classifications and assessments came
about.

The district court ruled the commissioners carried out their duties, the

board of trustees’ decisions to classify and assess were based on the 1916

agreement, and the board of trustees “acted in conformity with the original

application. There may be instances where, in the same case, some
questions might be reviewable by appeal and others by certiorari.
Goeppinger 152 N.W. at 61; see also W. Davenport Improvement Co. v. Theophilus, 158
N.W. 689, 691 (Iowa 1916). Because the question here is the legality of the board’s
assessment methodology, we conclude the matter was reviewable by writ of certiorari.
 8

establishment of the drainage district when it used the same means of classifying

and assessing the new [annexed] land.”

The district court concluded the Green Bay District did not act illegally:

Primary is the fact that this carried out the original intent of the
landowners who formed the drainage district in 1916. Furthermore,
it is consistent with the classification in place for nearly 100 years.
The trustees determined the original classification method was the
fair manner by which to classify newly annexed land. Using the
benefit scale method would create a second and inconsistent
means of classification. The decision was not made arbitrarily or in
a capricious manner. Every landowner would be classified in the
same way.

Because it concluded no illegality had occurred, the district court annulled the

writ of certiorari.

Pieper appeals.

II. Scope and Standard of Review.

We review a certiorari action for the correction of errors at law. Meyer v.

Jones, 696 N.W.2d 611, 613-14 (Iowa 2005). When reviewing for correction of

errors at law, we are bound by “the district court’s well-supported factual findings”

but not its legal conclusions. State Pub. Def. v. Iowa Dist. Ct. for Clarke Cty.,

745 N.W.2d 738, 739 (Iowa 2008) (quoting State Pub. Def. v. Iowa Dist. Ct. for

Johnson Cty., 663 N.W.2d 413, 415 (Iowa 2003)).

III. Discussion.

“A writ of certiorari lies where a lower board, tribunal, or court has

exceeded its jurisdiction or otherwise has acted illegally.” State Pub. Def. v. Iowa

Dist. Ct. for Story Cty., 886 N.W.2d 595, 598 (Iowa 2016) (citation omitted); see

also Iowa R. Civ. P. 1.1401. “Illegality exists when . . . the [tribunal] has not
 9

properly applied the law.” Iowa Dist. Ct. for Story Cty., 886 N.W.2d at 598

(citation omitted).

On appeal, Pieper does not challenge the annexation of additional lands.

The present suit asserts that even though the district was created by mutual

agreement, land annexed into the district is subject to statutory assessment

provisions applicable to the establishment of “an original district,” that is, a district

established by petition and notice.

At the time the Green Bay District was established, the Iowa Code

provided:

Additional lands—procedure for annexation. That after
the original establishment of a drainage district, as in this chapter
provided, if the said board is satisfied that additional lands should
be included within any drainage district, and that said lands are
benefited by the improvement therein, and that said lands should
have been included in said original district, then, in such case, the
board may order the engineer to make a plat of said lands, with the
elevations thereof, and report thereon; and thereupon if said report
be in favor of including additional lands, which shall be particularly
described in the report, said board shall proceed in such matter as
to said proposed annexed territory as in the original establishing of
such district, including the fixing and levying of the special tax for
benefits, and thereafter the said annexed territory shall be a part of
said district, and governed in all respects as lands within the
original district; or said annexation may be made and brought under
the jurisdiction of the board for all of said purposes upon the
petition of the owners of all the lands to be annexed.

Iowa Code § 1989-a54 (1913 Supp.) (emphasis added).

The current statutory procedures to annex land to a drainage district are

found in Iowa Code sections 468.119 through 468.121. Section 468.119 states

that the board “may adopt, with or without a petition from owners of the proposed

annexed lands, a resolution of necessity for the annexation” and appoint an

engineer that is to “examine such additional lands, to make a survey and plat
 10

thereof showing their relation, elevation, and condition of drainage with reference

to such established district,” and prepare a report “as in this subchapter . . .

provided for the original establishment of such district.” (Emphasis added.)

Section 468.120 states:

If the report recommends the annexation of the lands or any
portion of them, the board shall consider the report, plats, and
profiles and if satisfied that any of the lands are materially benefited
by the district and that annexation is feasible, expedient, and for the
public good, it shall proceed in all respects as to notice, hearing,
appointment of appraisers to fix damages and as to hearing on the
annexation; and if the annexation is finally made, as to
classification and assessment of benefits to the annexed lands
only, to the same extent and in the same manner as provided in the
establishment of an original district. However, the annexation and
classification of the annexed lands for benefits may be determined
at one hearing. Those parties having an interest in the lands
proposed to be annexed have the right to receive notice, to make
objections, to file claims for damages, to have hearing, to take
appeals and to do all other things to the same extent and in the
same manner as provided in the establishment of an original
district.

(Emphasis added.)

Section 468.121 continues,

After annexation is made the board may levy upon the
annexed lands an assessment . . . . If the finding of the board as
provided in section 468.119 was based on the fact that additional
lands are now benefited by virtue of the repair, improvement, or the
change of the topographical conditions made to the district and
were not benefited by the district as originally established, then the
board shall levy upon the annexed lands an assessment sufficient
to pay their proportionate share of the costs of the repair or
improvement which was the basis for the lands being annexed.

(Emphasis added.)

Because Pieper has not challenged the annexation on appeal, he has

acquiesced in or waived his challenge to both the district’s authority and the act

of annexation. See Alexander, 108 N.W.2d at 596 (concluding the failure to
 11

appeal the establishment of the district by a person who failed to sign the original

agreement may constitute acquiescence in the agreement); Kelley v. Drainage

Dist. No. 60, 138 N.W. 841, 845-46 (Iowa 1912) (finding evidence that the land

would not benefit was not competent in an appeal of the assessment).

A. Statutory notice. Pieper contends the drainage district board of

trustees acted illegally in rescinding and then approving an assessment without

statutorily-required notice. Pieper complains that no notice was given before the

board voted on December 19 to adopt the revised partial assessment roll. See

Thompson v. Joint Drainage Dist. No. 3-11, 143 N.W.2d 326, 331 (Iowa 1966)

(“Failure to provide hearing and give notice as required by statute voids the entire

assessment.”).

Green Bay District asserts proper notice was given prior to the November

21, 2013 meeting at which the annexation and assessment was to be

determined. There were nine objections filed. At the regular meeting of the

board of trustees on November 21, 2013, which followed the public hearing, the

board adopted the proposed Partial Assessment Roll and determined that

annexation should proceed. The board then resolved to accept the assessment

roll recommendations submitted by the commissioners, which might be modified

by the board of trustees in its discretion after public hearing. The resolution

further provided that the Partial Assessment Roll assessments be levied against

the lands being annexed into the district.

Green Bay District contends that after posting an agenda notifying the

landowners that an annexation assessment adjustment would be considered at

its December 19, 2013 meeting, the Partial Assessment Roll was “revised
 12

slightly” based on the recommendation of the commissioners received December

17, 2013. The assessments levied against six parcels within the annexed area

were lowered and a column “R” was added to the chart “for the benefit of the Lee

County Auditor’s office.” The district maintains any December 19 revisions to the

Partial Assessment Roll adopted on November 21, 2013, “were minimal and

inconsequential” to Pieper.

We do not find any support for the requirement of a subsequent notice to

be served on affected landowners for the December 19 public hearing. Pieper

does not challenge the notice given for the November 21 hearing, and the board

made clear at the November 21 hearing that its work was not yet completed and

there could be modifications at the December 19 hearing. “The adjournment of

the board from the day fixed in the notice to a subsequent date for further

consideration did not deprive the board of jurisdiction” or require further notice.

Gary v. Anderson, 118 N.W. 526, 527 (Iowa 1908). Rather, the landowner was

bound to take notice of the subsequent proceedings. Id.

We also note, Michael Pieper—owner of both Pieper Inc. and MEP Co.—

was a trustee on the board of the Green Bay District at all times relevant here.

Pieper had actual notice of and participated in all actions taken by the board of

trustees. There is no illegality by the board in this regard, and Pieper’s failure-of-

notice claim fails.

B. Assessment method.

1. Pieper’s position. Pieper asserts that under section 468.120, the

assessment of the annexed land must be by the method used “in the
 13

establishment of an original district,” arguing the scale-of-benefits method of

assessment found in Iowa Code sections 468.38 and 468.39 is required.

Iowa Code section 468.38 provides in part:

When a levee or drainage district has been located and
finally established or, unless otherwise provided by law, when the
required proceedings have been taken . . . to annex additional
lands to a district, . . . the board [of trustees of the drainage district]
shall appoint three commissioners to assess benefits and classify
the lands affected by the improvement . . . .

Section 468.39 provides:

At the time of appointing said commissioners, the board shall
fix the time within which said assessment, classification, and
apportionment shall be made . . . . Within twenty days after their
appointment, [the commissioners] shall begin to inspect and
classify all the lands within said district, or any change, extension,
enlargement, or relocation thereof in tracts of forty acres or less
according to the legal or recognized subdivisions, in a graduated
scale of benefits to be numbered according to the benefit to be
received by each of such tracts from such improvement . . . . The
lands receiving the greatest benefit shall be marked on a scale of
one hundred, and those benefited in a less degree with such
percentage of one hundred as the benefits received bear in
proportion thereto. They shall also make an equitable
apportionment of the costs, expenses, fees, and damages
computed on the basis of the percentages fixed.

(Emphasis added.)

Pieper asserts the Green Bay District acted illegally because the board of

trustees did not use the scale-of-benefits method. Pieper’s counsel argued

during oral argument that the annexed land can be classified separately much

like an intercounty drainage district using the scale-of-benefits method. Pieper

also contends there is no known rational basis for the current assessments as

shown in the engineer’s report and, thus, no consideration of the benefits or
 14

apportionment of the costs was made “despite the Board having specifically

recognized that it must do so at its September 12, 2013, special meeting.”

2. Green Bay District’s position. The Green Bay District, on the other

hand, asserts section 468.39 is not applicable. It argues, “Nothing in Chapter

468 provides guidance to commissioners or Trustees as to how to assess

benefits to land annexed into a levee and drainage district originally formed by

agreement.” The drainage district contends the method adopted was in keeping

with that already in use. It asserts the adopted assessments in the annexed land

graduated from higher assessments closer to the levee where the landowner

received more flood protection and drainage, to a lower assessment where the

ground was higher and received fewer benefits. The commissioners then

compared the assessments of district land to adjacent parcels to be annexed and

calculated “assessments for benefits based on the benefits received by the

landowners based on their proximity to the levee and the drainage benefits

received. In this fashion the benefits received by the annexed property would be

similar to the benefits received by properties already within the levee and

drainage district.” The chair of the board of trustees testified at trial that while the

method and resulting “Partial Assessment Roll” was complex and difficult to

understand, the board believed the assessments as calculated were “fair and

equitable“ to annexed landowners. The Green Bay District argues the

assessment is in accord with section 468.46, which provides:

At the time fixed or at an adjourned hearing, the board shall
hear and determine all objections filed to said report [of the
commissioners] and shall fully consider the said report, and may
affirm, increase, or diminish the percentage of benefits or the
apportionment of costs and expenses made in said report against
 15

any body or tract of land in said district as may appear to the board
to be just and equitable.

(Emphasis added.)

Here, the engineer’s report states:

A study of the current Assessment Roll for Green Bay Levee
& Drainage District No. 2 was performed. This study revealed that
there are 15 parcels inside the District that are not paying
assessments and two parcels outside the District that are paying
assessments. These parcels are listed in Appendix J. Additionally,
several inconsistencies were found with the assessments being
paid by some parcels and the acreage listed on the Assessment
Roll for several other parcels. These parcels are also listed in
Appendix J. The updated assessment boundaries on the District
map are shown on Sheet 4 included in Appendix H. This map also
includes landowners by parcel, acreage, and assessment per acre
for each parcel. Where the data could not fit on the drawing due to
parcel size, see the supplemental ownership information included
as Appendix K.
The current method of assessment employed by the District
varies throughout the District. There are four different assessment
rolls. Almost every parcel appears on the 0.84 roll in addition to
appearing on . . . the 5¢ roll, the 2% roll, or the 55% roll. The 5¢
roll (Area 1) represents most of the higher elevated parcels in the
northwest portion of the District. The 55% roll (Area 3) represents
the majority of the other parcels being assessed. The 2% roll (Area
2) represents several other parcels in the northwest portion of the
District.
The District currently assesses several parcels belonging to
the Burlington Northern Santa Fe Railroad. However, there are
several parcels to be annexed that also belong to the railroad.
Iowa Code section 468.42 addresses the assessment of railroad
property . . . .
....
It is recommended that the District consider employing an
updated method of assessment that would assess parcels based
on the amount of benefit received, rather than the varied method of
assessment currently in use. The amount of benefit received could
be based on elevation, drainage provided, flood protection, and soil
erosion protection. It would be worthwhile for the District to also
consider assessing any public highways and state-owned lands
included within the District as described in Iowa Code section
468.43. An example of an updated assessment methodology is
included as Appendix L.
 16

It is recommended that the Board adopt a Resolution of
Necessity and order annexation of these lands currently receiving
benefits from the District, listed in Appendix 1 and shown on Sheet
3 in Appendix F.

The engineering firm also sent a letter stating in part:

It has been a challenging process to ascertain the basis for
assessment that was used nearly 100 years ago.
....
It was the general consensus as well that the new parcels
coming into the district should be assessed on the 2% roll as most
of the surrounding ground is on the 2% roll. We still do not know
the actual basis of the 2% and 5% roll, and no further information
was provided by the Lee County Auditor. Historic index cards
provide the numbers, but they do not reveal the basis of the
numbers.
In our final meeting, we undertook the task of going through
the 2% roll and 5% roll. All 2% roll parcels were assessed at $5
regardless of Units Assessed. Therefore, we set the value of “Units
Assessed” to “1” for those parcels. We analyzed the 55% roll and
the parcels surrounding the area to determine a fair standard
considering elevation. A factor of 550 for “Units Assessed” for a
standard 40 acre parcel was determined to be the most equitable
number to use, and this is documented in the notes.
We have not undertaken any work related to assessing
roads, highways, pipelines, or other infrastructure that may be
present in the District and benefited by the levee and drainage
facilities. That is beyond the scope given to the present
assessment commissioners.
Therefore, the spreadsheet and notes enclosed represent
the results of our work to fairly and appropriately assess the parcels
needing assessment. The maps we used are included for your
reference. Please review these documents carefully so that we can
formally present them to the levee and drainage trustees at their
October 24th meeting. It is expected that they will set a public
hearing date where we will be called to present our findings and
answer questions prior to their adoption of our numbers.

3. Analysis. We acknowledge Iowa Code section 468.120 provides

annexed land must be annexed “to the same extent and in the same manner as

provided in the establishment of an original district.” Iowa Code § 468.120

(emphasis added). But we believe this language, upon which Pieper relies, is
 17

premised on the original lands in the original district being classified and

assessed upon the same statutory methodology. And if this district had been

created by petition, we would agree with Pieper. But a mutually agreed upon

district is a different animal.

There is no dispute that a district created by mutual agreement is

permitted to establish its own method of classification and assessment. See

Iowa Code § 468.143(5); see also Alexander, 108 N.W.2d at 601 (“At all times

the parties to the agreement could fix the amount of the assessment and the time

when the same would be paid.”). And, in Alexander, our supreme court

determined the district could not reclassify the lands because that authority was

not authorized in the original agreement. See 108 N.W.2d at 601.

The original agreement simply provided that landowners would be

assessed five cents per acre. Prior to Green Bay District’s annexation, the

assessment of the district land appears to have evolved into some sort of

assessment based in part upon benefit, although there is no record evidence of

the basis for all the various current assessments. Clearly the methodology used

by the district in the past has not been entirely consistent with the method

provided in Iowa Code sections 468.38 and 468.39. However, we can conclude

the assessments made after the execution of the agreement either constituted a

modification of the original agreement or the drainage district landowners

acquiesced in the subsequent assessments or waived their right to challenge

them. See Iowa Code § 468.96; see also footnote 1 herein.

Here, if the newly annexed lands are classified and assessed pursuant to

the statutory method as sought by Pieper, and the original lands in the district are
 18

assessed by the past methods, two separate methods of classification and

assessment would exist within the same district. This could result in two

adjoining properties with similar characteristics and benefits received from the

district being classified and assessed differently within the same district. We find

such a result clearly contrary to the numerous expressions in Iowa Code chapter

468 requiring all lands to be classified the same and assessed the same unless

reclassified or the land has so eroded away that it can be removed from being

classified. See Iowa Code §§ 468.49(1) (“A classification of land for drainage,

erosion or flood control purposes, when finally adopted, shall remain the basis for

all future assessments for the purpose of said district . . . .”), .13(3) (“If the board

establishes the district as provided in section 468.22, the classification which is

finally approved at the hearing by the board shall remain the basis of all future

assessments for the purposes of said district as provided in section 468.49.”).

And there is no statutory provision authorizing annexed land to be assessed

differently than lands originally included in the district. See Iowa Code

§§ 468.120, .121. Because the original agreement did not authorize

reclassification, see Alexander, 108 N.W. at 601, the only manner in which a

different classification may be applied under these facts is if a new district is

formed that includes the old district.2 See Iowa Code § 468.124.

The engineer and commissioners attempted to ascertain the basis of the

previously imposed assessments and made a professional recommendation on

2
We acknowledge other exceptions exist within Iowa Code chapter 468, such as
classifications and assessments for lateral ditches. See Iowa Code § 468.41.
 19

how to equitably apply the assessments to the annexed lands. The board relied

upon the expertise provided.

Classification and assessments are notoriously difficult. Our supreme

court has stated, “The enterprise of quantifying and allocating special benefits

conferred on affected properties is not an exact science.” Gray v. City of

Indianola, 797 N.W.2d 112, 120 (Iowa 2011). It has also been said, “Exactitude

is impossible. An approximation is alone feasible.” Harriman v. Drainage Dist.

No. 7-146 of Franklin & Wright Ctys., 199 N.W. 974, 975-76 (Iowa 1924); see

also Bloomquist v. Bd. of Supervisors, 177 N.W. 95, 99 (Iowa 1920)

(“[A]pproximation is the best that we can do in this class of cases.”). Similarly,

the application of past assessments to the annexed lands presents an inexact

science.

In Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435 (Iowa 1994), it

was said:

When reviewing drainage proceedings of boards of
supervisors [or trustees] we have applied three principles: the
drainage statutes shall be liberally construed for the public benefit;
strict compliance with statutory provisions is required to establish a
drainage district, while substantial compliance is sufficient as to
repairs or improvements; and the procedural requirements should
not be too technically construed.

(Emphasis added.)

Pieper would have us construe the procedural requirements too

technically. After the hearing on assessments, the board “may affirm, increase,

or diminish the percentage of benefits or the apportionment of costs and

expenses made in said report against any body or tract of land in said district as

may appear to the board to just and equitable.” Iowa Code § 468.46. We agree
 20

with the district court the Green Bay District assessed the annexed land in

accordance with the agreement and previously imposed assessments and, thus,

did not act illegally or in excess of its jurisdiction. Pieper does not claim he was

treated inequitably by the district’s methodology as compared to its application to

other lands in the district.3

We conclude Pieper waived his right to challenge the classification and

assessment methodology used by the mutually agreed upon district by his failure

to appeal the annexation. He, of course, retained his right to appeal the

assessments based upon principles of equity or misapplication of Iowa Code

section 468.121, assuming the latter section applies to districts created by mutual

agreement. But we are not persuaded he is entitled to have his land, or even all

annexed land, be classified and assessed by a different methodology than all

other landowners in the district under these facts. We therefore affirm.

AFFIRMED.

Doyle, J., concurs; McDonald, J., dissents.

3
Pieper also does not contend his land should be classified and assessed by any of the
alternative methods provided for levee districts in Iowa Code section 468.184
 21

MCDONALD, Judge. (dissenting)

“A court has inherent power to determine whether it has jurisdiction over

the subject matter of the proceedings before it.” Cooper v. Kirkwood Cmty. Coll.,

782 N.W.2d 160, 164 (Iowa Ct. App. 2010). Where the district court lacks

jurisdiction over a proceeding, this court lacks jurisdiction over the appeal. See

id. at 167-68. I would dismiss this appeal for lack of subject matter jurisdiction.

The right to appeal from the action of a drainage district is provided by

statute. Iowa Code section 468.84 provides:

All appeals shall be taken within twenty days after the date
of final action or order of the board from which such appeal is taken
by filing with the auditor a notice of appeal, designating the court to
which the appeal is taken and the order or action appealed from,
and stating that the appeal will come on for hearing thirty days
following perfection of the appeal with allowances of additional time
for good cause shown. This notice shall be accompanied by an
appeal bond with sureties to be approved by the auditor
conditioned to pay all costs adjudged against the appellant and to
abide the orders of the court.

“The remedy by appeal . . . shall be exclusive of all other remedies.” Iowa Code

§ 468.96. “When interpreting a statute, we will not look beyond the express

terms of the statute if the text of the statute is plain and its meaning clear.” Neal

v. Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012). The text of the

statute could not be clearer: any person aggrieved from a final action of a

drainage district may challenge the final action by timely filing a notice of appeal

with the county auditor.

The plaintiffs failed to comply with the exclusive appeal procedure. The

plaintiffs did not timely file notice of appeal with the auditor. Indeed, the plaintiffs
 22

did not file notice of appeal at all. Instead, the plaintiffs filed a petition for writ of

certiorari pursuant to Iowa Rule of Civil Procedure 1.1401.

Notwithstanding the plain language of the statute, there is case authority

providing a party may challenge a drainage district action by petition for certiorari

where the challenged action was illegal and void. See, e.g., Voogd v. Joint

Drainage Dist. No. 3-11, 188 N.W.2d 387, 390 (Iowa 1971). I question the

ongoing vitality of this line of authority or at least the scope of this line of

authority. Regardless, this line of authority does not provide a basis for

jurisdiction here. Controlling authority provides any challenge to the district’s

assessment method or amount—the issues raised in the plaintiffs petition for writ

of certiorari—is not a challenge to the district’s authority to act and must be

mounted by appeal according to statute and not collateral attack. See

Whisenand v. Van Clark, 288 N.W. 915, 919-20 (Iowa 1939) (holding change in

assessment “was not a jurisdictional defect but a voidable act not subject to

collateral attack”); Petersen v. Sorensen, 185 N.W. 42, 45 (Iowa 1921) (“If an

improper classification were adopted, or if lands properly assessable were

omitted from the levy, or if the assessment was not according to benefits or for

other reasons inequitable, the remedy by appeal was sufficient and exclusive.

This remedy having been provided, it must be followed. If the board of

supervisors acquired jurisdiction to levy assessments, but there was an

irregularity or illegality in the proceedings, relief can only be had upon appeal,

and no ground for injunctive relief existed.”).

For the foregoing reason, I respectfully dissent.