Paul T. Ostrow, Sweeney, Borer & Ostrow, P.A., Suite 1200, Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.

Appellant Rockne Waite challenges the district court's dismissal of his appeal of the City of Little Canada's assessments for street, curb, and gutter improvements. Respondent City of Little Canada argues that because a challenge to a special assessment is a special proceeding, this appeal is untimely. We affirm.

The City argues that because a challenge to a special assessment is a special proceeding, Waite's appeal was not timely. In Kokesh v. City of Hopkins, 307 Minn. 159, 162, 238 N.W.2d 882, 884 (1976), the supreme court stated that an appeal from a proceeding challenging a special assessment is "taken from the final order of the district court affecting a substantial right in a special proceeding in accordance with [Minn. R. Civ. App. P. 103.03 (g)]." The City is therefore correct that special assessment proceedings are special proceedings and Waite's appeal must comply with rule 103.03 (g), which provides that an appeal may be taken from

a final order, decision or judgment affecting a substantial right made in an administrative or other special proceeding, provided that the appeal must be taken within the time limited for appeal from an order.

Id.

Unless a different appeal time is provided by statute, a judgment in a special proceeding must be appealed within 30 days after an adverse party serves written notice of filing. Minn. R. Civ. App. P. 104.03, 104.01. The City served notice of filing of the order for judgment, rather than notice of filing of the judgment itself. The notice was not effective to limit the time for appeal because the order for judgment is not a final appealable order. This appeal is therefore timely.

2. Validity of assessment.

Waite argues that the district court's decision must be reversed because it erred in adopting the appraisal of the City's expert.

"The cost of any improvement, or any part thereof, may be assessed upon property benefited by the improvement, based upon the benefits received * * * ." Minn. Stat. § 429.051 (1996). To determine the value of a benefit, the taxing authority must consider the increase in market value of the benefited land. Schumacher v. City of Excelsior, 427 N.W.2d 235, 236-37 (Minn. 1988). If the assessment exceeds the benefit to the property, it is a taking of property without compensation that violates the Fourteenth Amendment. Id. at 237. The increase in market value is calculated by determining what a willing buyer would pay for the property before and after the improvements. Id.

This court reviews the district court's determination of a challenge to a special assessment by carefully examining the record to ascertain whether the evidence supports the district court's findings and whether the findings support its conclusions. Id. The district court's findings of fact will not be disturbed unless clearly erroneous, giving due regard to its opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.

The district court found incredible the testimony of Waite and his appraiser, Stokes, that the improvements did not increase the value of Waite's property, citing Schumacher, in which the court noted that common experience teaches that when a property receives better municipal services and amenities, its value increases. Id. at 238. The district court found the testimony of the City's appraiser, Peterson, to be credible and adopted his conclusion regarding the increase in the value of Waite's property.

Waite argues that the district court erred in crediting Peterson's testimony. Waite contends that when using the sales prices of other properties to determine the value of improvements to a subject property, accepted trade practice requires appraisers not to adjust the sales prices of the other properties by more than 25% to compare them with the subject property. In other words, he claims that if the other properties are in excess of 25% more or less expensive than the subject property, they are not comparable. Waite asserts that because Peterson had to adjust his comparable sales by more than 25%, his conclusions are invalid. Peterson admitted that adjustments ideally would be less than 25%, but he testified that adjustments in excess of 25% do not invalidate an appraisal. He stated that an appraiser may have to adjust more than 25% if those are the only properties available for comparison.

Waite also points out that there is a discrepancy in the age and "effective age" in Peterson's appraisal of Waite's property and his appraisal of another property. Peterson acknowledged that an error was made, but nonetheless stood by his appraisal.

All of Waite's objections to Peterson's analysis were raised on cross-examination and were considered by the district court. The district court did not clearly err in crediting Peterson's testimony and disregarding that of Waite and Stokes.

Affirmed.