May 6, 1981

Mr. Max T. Merry 
City Attorney 
City of Dell Rapids 
Post Office Box 100 
Dell Rapids, South Dakota 57022

Official Opinion No. 81-17

Municipality's Authority to Levy Special Assessment For Tree Removal

Dear Mr. Merry:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The City of Dell Rapids has passed an ordinance or ordinances consisting of Sections 22-16 through 22-25, inclusive, that provide a procedure for removal of diseased trees from private property. The procedure provides that the cost of removal, if not paid, may be levied against the affected property as a special assessment.  The city council is considering enforcement of the ordinance including the special assessment section. 

The pertinent sections are: 

Section 22-24.  When a person to whom an order to preserve or remove trees or plants is directed shall fail to comply within the specified time, the city council shall remedy this condition or contract with others for such purpose and charge the cost thereof to the person to whom the order is directed.  The person remedying a condition under a contract made hereunder shall be authorized to enter premises for that purpose. 

Section 22-25.  If the cost of remedying a condition for which an order to preserve or remove trees or plants was issued is not paid for within thirty (30) days after receipt of a statement therefor from the city council, such cost may be levied against the property benefited or upon which the condition existed as a special assessment.  The levying of such  special assessment shall not affect the liability of the person to whom the order is directed to fine and imprisonment for the violation of this article.

Based on the above facts, you have asked the following question:

QUESTION: 

Does a municipality have the authority to specially assess for tree removal, and if so where does that authority originate?

It is a generally accepted rule of law in the State of South Dakota that a governmental entity may not proceed to grant a benefit or impose a sanction by ordinance unless specifically authorized by statute.  I cite the seminal case of City of Mobridge v. Brown, 39 S.D. 270, 164 N.W. 94 (1917).

I find no statutory authority to remove trees and assess for the removal of diseased trees.  Specific statutory authority does exist to authorize special assessments for snow removal and weed control. See SDCL 93-30-5.

It is therefore my opinion the City of Dell Rapids has no authority to levy costs of tree removal against the affected property as a special assessment.

Respectfully submitted,

Mark V. Meierhenry
Attorney General