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    James F. SCHAER, Appellant, v. WEBSTER COUNTY, Iowa, and Webster County Treasurer, Appellees.
    No. 00-1678.
    Supreme Court of Iowa.
    May 8, 2002.

      James E. Nervig of Petosa, Petosa, Boecker & Nervig, L.L.P., Clive, for appellant.

      Stephen J. Liekiss, Assistant County Attorney, for appellees.
   CADY, Justice.

In this action by the assignee of a certificate of purchase of real estate against a county and county treasurer, we must decide if Iowa Code section 448.10 (1995) authorizes a claim for damages when the description of the parcel used by the county treasurer to sell the real estate and assign the certificate of purchase failed to exclude a platted subdivision located within the parcel. On review, we conclude the assignee has no cause of action, and affirm the decision of the district court.

I. Background Facts and Proceedings.

James F. Schaer is a resident of the city of Des Moines. He is a commercial real estate broker and a self-described “lender,” based on his practice of purchasing assignments of certificates of purchase of real estate from county treasurers following tax sales. Schaer considers the assignments to be a loan of the amount of the delinquent taxes on the property until the taxpayer redeems the property. Schaer also considers the certificate of purchase to be a security device that entitles him to acquire title to the property in the event the taxpayer fails to redeem the property. Schaer has engaged in this practice for nearly thirty years.

On June 19, 1995, the Webster County Treasurer, Janice F. Horton, conducted the annual Webster County tax sale. She offered at public sale all parcels of real estate in the county on which taxes were delinquent, including a parcel of real estate described within the county data storage and retrieval system as:

31-89-28 FTD AG LAND-W PT OF NE NE (EX 756.31' X 155’) (EX N1003.69' OF E311' OF NE NE).

The parcel was known as the Donald Grell property. It is located within the city limits of Fort Dodge, near the southern border, in the southwest part of the city. The description identified a portion of a forty-acre unplatted parcel within an original unplatted section.

After the County Treasurer failed to receive a bid for the Grell property at the public sale, Webster County submitted a bid for the parcel in the amount of $20,198, which equaled the amount of the delinquency. The County Treasurer then issued a certificate of purchase. The certificate included the same description of the parcel as contained in the notice of sale.

On August 30, 1995, the County assigned the certificate of purchase of the Grell property to Schaer, along with certificates of purchase of numerous other parcels of real estate in Webster County purchased by the County at the tax sale. Schaer paid the County Treasurer $21,430 as consideration for the assignment of the Grell property. Schaer received a certificate of purchase for the real estate. The following provision was added to the bottom of the certificate:

ASSIGNMENT: FOR THE PAYMENT OF $21,430.00, AS PER AGREEMENT, I HEREBY ASSIGN ALL RIGHTS, TITLE, AND INTEREST IN THE CERTIFICATE TO: James F. Schaer ....

The provision also contained Schaer’s address and social security number. It was dated August 30, 1995, and signed by Janice F. Horton, as assignor.

Prior to purchasing the assignment, Schaer checked with the office of the county assessor and learned the parcel contained 21.95 acres. He believed the “AG” in the description meant the land was zoned agricultural, but did not verify the zoning classification with city officials. He also observed the real estate by driving by the land in his vehicle.

In October 1998, after Schaer served notice of the expiration of the right of redemption on the possessor of the Grell property, he discovered the description of the parcel contained in the certificate of purchase did not match the tracing of the parcel made from the original plat book of Webster County. First, the certificate description failed to exclude a platted housing subdivision located in the upper northwest corner of the original forty-acre parcel. This subdivision was 651.2 feet on its east line and 363.2 feet on its south line. Second, the first exception noted in the certificate description failed to identify its location. Finally, the certifícate description purportedly identified the parcel as agricultural land. It was actually zoned for heavy industrial use. As a result, the description of the parcel used by the County Treasurer described an area which was larger than the actual size of the parcel, and was inadequate, without reference to the plat books, to determine its boundaries.

After discovering the inconsistencies, Schaer refused to return the certificate of purchase to the County Treasurer and remit the appropriate fees to acquire the deed for the property. Instead, he filed a petition with the district court asking the certificate and assignment be declared void and that he be awarded damages for the amount of money he paid in connection with the assignment, plus interest. Schaer claimed that the failure to include the subdivision as an exception in the description resulted in a misleading overstatement of the boundaries of the parcel, and that the rights in the parcel he received from the assignment were significantly less than the description led him to believe. He claimed he would not have purchased the assignment if he had known the true boundaries.

The case was submitted to the district court for trial on stipulated facts and other evidence. The evidence revealed the description contained in the certificate of purchase was developed by the county auditor and was the description of the property as maintained by the county system of legal descriptions. This system contains descriptions for each parcel of real estate in the county. Additionally, the deputy county auditor, Alan Wooters, testified the description of the Grell property properly identified the property as it appeared in the plat books, and he was able to use the description to trace the correct boundaries of the parcel from the plat books. Without looking at the plat books, however, the description contained in the certificate of purchase did not reveal the existence of the subdivision in the tract. Under the system used by the county auditor to describe parcels in the county system, an unplatted parcel is described by governmental survey. The description does not specifically exclude any platted subdivisions created within the parcel because subdivisions are maintained in different plat books and are described differently. The subdivision within the original forty-acre tract in this case was separately described as “Auditor’s Subdivision of Part of NE1/4 of the NE1/4 of Section 31, Township 89 North, Range 28 West, Webster County, Iowa.” It contained eighteen lots, numbered one through eighteen.

The district court determined Schaer had no statutory right to damages based on any deficiency in the description of the property because the County Treasurer was not responsible for creating the description, but merely used the description utilized by the county system. The district court also rejected Schaer’s claim that the assignment was void.

Schaer appeals. He claims the County is liable for his expenditures, with interest, under the statutory provision providing for indemnification from the county when a parcel of land is sold at tax sale “in consequence of error in describing it.” See Iowa Code § 448.10. He also claims the assignment is void because the endorsement on the certifícate of purchase does not constitute a written agreement as required by section 446.31. He further claims the assignment is void because the deficiencies in the description prevented the parties from acquiring a mutual intent to enter into the assignment.

II. Standard of Review.

We review a district court’s interpretation of a statute for the correction of errors at law. T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 161 (Iowa 1999). Likewise, we review the interpretation of a contract for errors. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999).

III. Statutory Indemnification.

The county treasurer in each county in Iowa is authorized to conduct a tax sale in June of each year for all real estate in the county on which taxes are delinquent. See Iowa Code § 446.7. The county auditor annually provides a list of the taxes due on each parcel in the county to the county treasurer, which is used to collect the taxes and determine any delinquency for any parcel. See id. §§ 443.2, 443.4, 445.10. The sale of property at the tax sale can result in the transfer of ownership of the property to the purchaser or the assignee of the purchaser if the parcel is not subsequently redeemed by payment of the delinquent taxes, fees, costs, and interest. See id. §§ 447.1, 448.1. The law further details the procedures that must be followed for the sale, redemption, and issuance of a deed. See generally id. chs. 446 (tax sales), 447 (tax redemption), 448 (tax deeds). One statutory procedure governing tax sales requires the county treasurer to give public notice of the sale. This notice must contain “a description of the parcel to be sold that is clear, concise, and sufficient to distinguish the parcel to be sold from all other parcels.” Id. § 446.9(2). The parcels may be described using “letters and figures ... to denote townships, ranges, [and] sections... I’ Id. § 446.13. The county treasurer is also required to record each sale “in the county system” by “describing each parcel ... as they are described in the copy of the notice....” Id. § 446.24. The county, system is defined as that “method of data storage and retrieval as approved by the auditor of state,” and includes tax lists. Id. § 445.1(3). The county treasurer is also required to deliver a certificate of purchase to the purchaser of each parcel “describing the parcel ... as shown in the county system identifying the parcel....” Id. § 446.29.

If the parcel is not subsequently redeemed following the tax sale, the purchaser or assignee can receive a deed to the property by returning the certificate of purchase to the county treasurer. Id. § 448.1. Chapter 448 sets out the procedure for the issuance of a deed. See id. It also describes the effect of the deed and the requirements and consequences of any challenge to that deed. See id. §§ 448.3, .6-12. Foremost, the deed vests title of the property in the purchaser. Id. § 448.3. The deed also constitutes presumptive evidence in any action that may arise regarding the rights of the purchaser to the parcel conveyed by the county treasurer that specific procedures were properly followed, and further constitutes conclusive evidence of other matters. Id. §§ 448.4, .5.

The Code then sets out the limited facts and circumstances that must be proven for a person claiming title adverse to the title conveyed by the county treasurer to defeat the deed. See id. §§ 448.6-.12. These circumstances generally involve mistakes in the tax sale so the parcel sold was not subject to taxes or was properly redeemed, or the taxes were paid prior to the sale or never properly assessed or levied. See id. § 448.6. The Code then describes the legal consequences. In the event the tax sale took place due to a mistake in an entry made in the county system, so that the taxes and other amounts due on the parcel had been paid prior to the sale, the deed issued by the county treasurer is deemed not to convey title. Id. § 448.8. Similarly, the sale and title are void if the owner of the parcel sold defeats the title by proving fraud by the officer selling the parcel or by the purchaser. Id. § 448.9. Iowa Code section 448.10 then provides a remedy for the purchaser. It states:

If, by mistake or wrongful act of the county treasurer, a parcel has been sold on which no tax was due at the time, or when a parcel is sold in consequence of error in describing it within the county system, the county shall hold the purchaser harmless by paying the purchaser the amount due to which the purchaser would have been entitled had the parcel been rightfully sold, and the treasurer and the treasurer’s surety shall be liable to the county to the amount of the treasurer’s official bond; or the purchaser, or the purchaser’s assignee, may recover the amount directly from the treasurer and the treasurer’s surety.

This statute is entitled “Wrongful sales — purchaser indemnified,” and contains two alternative conditions. Schaer relies only on the second condition for his claim of relief. The first condition involves a sale of a parcel where, due to mistake or wrongful act, no tax was due. Id. The second condition pertains to the sale of a parcel “in consequence of error in describing it within the county system.” Id.

Under either condition, the purchaser is given a remedy against either the county or the county treasurer and the treasurer’s surety. First, the statute requires the county to “hold the purchaser harmless.” The statute defines this remedy as requiring the county to pay “the purchaser the amount due to which the purchaser would have been entitled had the parcel been rightfully sold.” Id. In turn, the treasurer and treasurer’s surety are made liable to the county. Id. Alternatively, the purchaser, or assignee, may seek recovery “directly from the treasurer [or] the treasurer’s surety.” Id.

Schaer claims he is entitled to void the sale under the statute and receive damages because the description used by the County to describe the parcel he purchased overstated its size and wrongfully included an area that was not subject to tax sale. Schaer does not claim he purchased the wrongfully included land, but asserts the description used by the County to describe the parcel he purchased was misleading and insufficient to convey title. Thus, we must determine if the remedy provided under section 448.10 was intended to apply to the type of error asserted by Schaer.

Section 448.10 was enacted by our legislature in 1851, see id. § 509 (1851), and has essentially maintained its present language since 1860. See id. § 785 (1860). It was amended in 1991 to insert the present phrase “within the county system” in place of the former phrase “in the tax receipt.” See 1991 Iowa Acts ch. 191, § 109 (codified at Iowa Code § 448.10 (1992)).

We have not had an opportunity to construe this statute for over a century. In 1898, we held the remedy under the statute was limited to mistakes by the county treasurer. Lonsdale v. Carroll County, 105 Iowa 452, 457, 75 N.W. 332, 333 (1898). We reasoned that our legislature would not have specifically made the county treasurer and the treasurer’s surety ultimately liable under the statute if it had intended the remedy to apply to the mistakes or errors by other county officials who supply information to the county treasurer. See id. The district corut relied on Lonsdale in dismissing Schaer’s petition.

Earlier, we held that the remedy under the statute was inapplicable to a claim by a purchaser of a parcel of land that the description of the property in The certificate of purchase was too vague to convey title. See Lindsey v. Boone County, 92 Iowa 86, 89-90, 60 N.W. 173, 174-75 (1894). We observed that the doctrine of caveat emptor applied to tax sales, and the purchaser at a tax sale must beware and fully investigate the description of the premises. Id. at 88, 91, 60 N.W. at 174-75. We emphasized each description was open to inspection, and a purchaser at a tax sale buys only what the county offered to sell. Id. at 90, 60 N.W. at 175.

Schaer maintains these holdings are no longer applicable in light of the 1991 amendment to the statute. He claims the amendment inserting the phrase “within the county system” expanded liability under the statute to include mistakes or errors by other county offices who are part of the county system, including the county assessor and county auditor. We disagree. The 1991 amendment merely reflects the adoption of the modern system of data storage and retrieval utilized by a county. See Iowa Code § 445.1(3) (1995) (“ ‘County system’ means a method of data storage and retrieval as approved by the auditor of state-”). The “county system” is a collective term that includes records, tax lists, and other matters kept by the county auditor, assessor, and treasurer. Id. § 443.23. For purposes of section 448.10, it still refers to the description of the property utilized by the county for the purpose of taxation. Moreover, as in the past, the language of the statute continues to make the county treasurer and treasurer’s surety ultimately liable for mistakes and errors. This limitation on liability continues to imply that the remedy under the statute is confined to the mistakes and errors of the county treasurer, not other county offices. See id. § 448.10.

However, at the time we decided Lonsdale and Lindsey, the county treasurer was required to use the description of the property from the tax list prepared by the county auditor in giving notice of sale. See Lonsdale, 105 Iowa at 456, 75 N.W. at 333; Lindsey, 92 Iowa at 89, 60 N.W. at 174. Furthermore, this same description was required to be used by the county treasurer in recording the sale and issuing the certificate of purchase. See Lindsey, 92 Iowa at 89, 60 N.W. at 174. These statutory mandates - clearly influenced our holdings in Lonsdale and Lindsey. Any error or mistake in the description was not the responsibility of the county treasurer. See id. In 1986, section 446.9 was amended to require the county treasurer to serve the notice of tax sale containing “a description of the parcel to be sold which is clear, concise, and sufficient to distinguish the parcel to be sold from all other parcels.” 1986 Iowa Acts ch. 1139, § 4 (codified at Iowa Code § 446.9 (1986)) (striking the requirement that description of tract in notice of tax sale be taken from tax list). Under this statute, the county treasurer has a duty to describe property sold at a tax sale in the manner set forth in section 446.9. Additionally, the description used by the county treasurer in the notice of sale is required to be recorded in the county system at the time of the tax sale, and is used in issuing the certificate of purchase. See id. §§ 446.24 (record of sales), .29 (certificate of purchase). Thus, in this case, Schaer argues the County Treasurer was responsible for the description, and is liable to him under the statute.

We agree the county treasurer is responsible under section 446.9 to describe property in a certain manner in offering it for a tax sale. Thus, an error in a description is a mistake of the county treasurer. Yet, this does not mean the remedy under section 448.10 is available to Schaer. We must consider whether the type of description error claimed by Schaer was intended to fall within the remedy provided by section 448.10.

We begin by emphasizing that the remedy established by section 448.10 arises within this comprehensive statutory scheme authorizing the county to sell a parcel of land in order to pay delinquent taxes owed on the land by the owner of the parcel. This perspective helps explain the necessity and nature of the remedy provided under section 448.10. The statutory scheme ultimately empowers the county to transfer ownership of a parcel of land by delivering a deed to the purchaser. This deed terminates the rights of the person who had owned the parcel subject to the delinquency. Under such a scheme, the need for a remedy arises in the event the county is unable to deliver a deed to the buyer for the parcel purchased, or cannot deliver a deed that could not be defeated by the owner, because the parcel was wrongfully subject to tax sale by the county. In this case, the rights of the owner prevail over those of the purchaser, and a remedy is necessary to compensate the purchaser. Thus, the remedy rests on the wrongful sale of a parcel by the county, together with the superior rights of the owner of the parcel over any purchaser.

The two conditions that give rise to the remedy under section 448.10 reflect this backdrop. They involve tax sales that should not have occurred because the owner’s rights were never implicated by the delinquent tax provisions. Under the first condition, the rights of the owner were never implicated because “no tax was due at the time” the parcel was sold. Id. § 448.10. Under the second condition, the rights of the owner were never subject to delinquency because an “error [made] in describing [the parcel] within the county system” caused the wrong parcel to be sold by the county. Id. Schaer attempts to broaden the second condition to include description errors not implicating the rights of the owner, but which only create confusion and uncertainty for the purchaser regarding the size and nature of the parcel sold. Yet, the language of the statute precludes such a broad interpretation. By using the language “a parcel is sold in consequence of error in describing it within the county system,” our legislature targeted the reason the county sold the parcel, not the reason the buyer -purchased the parcel. This is also consistent with our approach over the past century that an error in the certificate of purchase of property at a tax sale cannot be the consequence of the sale. Lindsey, 92 Iowa at 89, 60 N.W. at 174. The relevant inquiry is not whether the description error caused the buyer to purchase the parcel. Instead, the description error must exist “within the county system” that caused the county to erroneously sell the parcel. Indeed, that is what the legislature meant by the phrase “a parcel is sold in consequence of error in describing it within the county system.”

The remaining portions of the statute support this interpretation. See McCracken v. Iowa Dep’t of Human Servs., 595 N.W.2d 779, 784 (Iowa 1999) (we “construe all parts of a statute together”). We observe the remedy under section 448.10 requires the county to “hold the purchaser harmless by paying the purchaser the amount due to which the purchaser would have been entitled had the parcel been rightfully sold.... ” Iowa Code § 448.10. The requirement to hold a purchaser “harmless” typically refers to indemnification, which is a form of restitution that places “final responsibility between two obligated persons where equity would lay the ultimate burden.” Iowa Elec. Light & Power Co. v. Gen. Elec. Co., 352 N.W.2d 231, 236 (Iowa 1984). This language supports the concept that the county is responsible to the buyer of a parcel at a tax sale in the event a deed cannot be ultimately delivered under those specific circumstances set forth in the statute when the rights of the buyer can be defeated by the rights of the owner. We do not believe our legislature would have articulated the remedy using the “hold harmless” language if it intended a buyer to void a sale based on descriptions that merely generated confusion over the size or location of a parcel, and when the buyer’s rights to the parcel could not be defeated by the owner’s. It would have simply provided for a refund, as in section 448.11. See Greenwood Manor v. Iowa Deft of Pub. Health, 641 N.W.2d 823, 835 (Iowa 2002) (if legislature wanted to provide for a certain thing, it could have so provided, as it did in other statutes).

The nature of the remedy under the statute also supports our interpretation. The statute requires the county to pay “the purchaser the amount due to which the purchaser would have been entitled had the parcel been rightfully sold.... ” Iowa Code § 448.10. When a parcel has been “rightfully sold” at a tax sale, the purchaser or assignee becomes “entitled” to the return of the amounts paid to the county only in the event the parcel is redeemed so that the county is unable to deliver the deed following the sale. Thus, the remedy for wrongful sales follows the same approach. The “amount due” in the event of a wrongful sale relates to the amount to which the purchaser would have been entitled had the county rightfully sold the parcel and, as with a rightful sale, is subsequently unable to deliver the deed. Thus, whether the sale was right or wrong, the remedy under the statute hinges upon the inability of the county to deliver a proper deed. On the other hand, description errors do not necessarily prevent the delivery of a deed or make a sale wrongful.

This interpretation of the statute is also consistent with our longstanding principle that the doctrine of caveat emptor applies to tax sales, which requires a purchaser to fully investigate the description of the parcel. Lindsey, 92 Iowa at 91, 60 N.W. at 175. The interpretation sought by Schaer is contrary to this principle. We will not interpret a statute to be inconsistent with our common law principles absent a clear intent. State v. Carter, 618 N.W.2d 374, 377 (Iowa 2000); State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999).

We are convinced the statute exists to give a purchaser of a parcel at a tax sale a remedy against the county in the event the county wrongfully sold the parcel due to one of the two circumstances described in section 448.10. When a parcel is erroneously sold, the county cannot transfer ownership to the purchaser and, consequently, the purchaser may recover the amount to which the purchaser would have been entitled had the county rightfully sold the parcel but was subsequently unable to deliver the deed. See Iowa Code § 448.10. There is nothing within the statute to indicate the legislature intended the remedy to extend to claims based on erroneous descriptions that did not implicate the interest of the owner of the parcel at the time of the tax sale.

Our examination of the claim urged by Schaer in this case reveals he does not claim the County sold him a parcel that was not subject to tax sale and is now unable to deliver the deed. Instead, he claims the description was defective, principally because it overstated the size and character of the parcel. Yet, he acknowledges the subdivision contained within the area described was not subject to the tax sale and was not purchased by him. His only complaint is that he did not discover this discrepancy until after he purchased the parcel.

We believe this type of claim falls precisely within our holding in Lindsey, and outside the parameters of section 448.10. Schaer had a duty to investigate the description prior to purchasing the parcel and should not have waited to conduct his investigation until after the sale. See Lindsey, 92 Iowa at 91, 60 N.W. at 175. If he had conducted his investigation prior to the sale, he would have discovered exactly what he discovered in the investigation he performed after the sale.

IV. Written Assignment.

Iowa Code section 446.31 requires an assignment of a certifícate of purchase acquired by the county “be by written agreement,” with a copy “filed with the treasurer.” Iowa Code § 446.31. Schaer claims the addendum to the certificate of purchase failed to comply with this statutory mandate because it did not detail the terms of the assignment and was not signed by Schaer. He claims noncompliance with the statute renders the assignment void.

“An assignment is a transfer to another of the whole of any property or right in property.” Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 533 (Iowa 1995); see Midland Mut. Life Ins. Co. v. Mercy Clinics, Inc., 579 N.W.2d 823, 833 (Iowa 1998). In the absence of a statutory provision prescribing a particular form for an assignment, no special words are necessary to effect an assignment. Petty v. Mut. Benefit Life Ins. Co., 235 Iowa 455, 465, 15 N.W.2d 613, 618 (1944); 6A C.J.S. Assignments § 43(b), at 655 (1975); III E. Allan Farnsworth, Farnsworth on Contracts § 11.3, at 67 (2d ed.1998) [hereinafter Farnsworth]. Any language is sufficient to vest property in an assignee if it shows the intent of the owner to transfer the property. Petty, 235 Iowa at 465-66, 15 N.W.2d at 618; 6A C.J.S. Assignments § 43(b), at 655-56; III Farnsworth, § 11.3, at 67 & n.4.

As determined by the district court, the language added to the certificate of purchase clearly expressed the intent of the County to transfer all rights in the certificate to Schaer. The language expressed the essential terms of the assignment, including the consideration paid by Schaer. Moreover, the statute does not require any specific terms of the assignment, or that the agreement be signed by the assignee. See Iowa Code § 446.31. The statute also does not require the written agreement to be a separate document from the certificate. See In re Dalbey’s Estate, 143 Neb. 32, 8 N.W.2d 512, 515 (1943) (“ ‘A valid assignment ... evidenced by a written [agreement] may be made either by a separate writing, or by indorsement on the original instrument (citation omitted)); 6A C.J.S. Assignments § 49, at 664 (valid assignment may be by separate writing); see also III Farnsworth, § 11.3, at 75 (discussing assignments “by indorsement on the writing under which the rights arise” and “by a separate writing”). Thus, the district court did not err in concluding the County Treasurer complied with the writing requirements of section 446.31.

V. Lack of Mutual Assent.

Schaer asserts the vague description utilized by the County Treasurer in describing the property destroyed the mutual assent necessary to support the assignment because the assignment covered a smaller parcel than he bargained for. He claims the lack of mutual assent rendered the assignment void.

For a contract to be valid, the parties must express mutual assent to the terms of the contract. See Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 268 (Iowa 2001); Magnusson Agency v. Pub. Entity Nat’l Company-Midwest, 560 N.W.2d 20, 26 (Iowa 1997); 17 C.J.S. Contracts § 37, at 470 (1999); I Farnsworth, § 3.1, at 184. If there is a misunderstanding in the language that relates to the object of the agreement so that “one party [understands] [it] is buying one thing and the other party thinks [it] is selling another thing, no meeting of the minds occurs, and no contract is formed.” Hill-Shafer P’ship v. Chilson Family Trust, 165 Ariz. 469, 799 P.2d 810, 814 (1990); see II Farnsworth, § 7.9, at 266-67. Yet, “mutual assent is based on objective evidence, not on the hidden intent of the parties.” Hill-Shafer P’ship, 799 P.2d at 815; see Heartland Express, Inc., 631 N.W.2d at 268; McCarter v. Uban, 166 N.W.2d 910, 913 (Iowa 1969); I Farnsworth, § 3.6, at 192-94. The misunderstandings of the parties must be reasonable under the circumstances to support a finding of a lack of mutual assent. See Hill-Shafer P’ship, 799 P.2d at 815; Restatement (Second) of Contracts § 20 (1979) (effect of misunderstanding).

In this case, we have previously determined that the description used by the County Treasurer met the statutory standard. Moreover, the description was adequate for Schaer to determine the precise boundaries of the property by using the plat books maintained by the county auditor. See Ray v. Robben, 225 Ark. 824, 285 S.W.2d 907, 908 (1956) (description sufficient when extrinsic evidence used as a guide in identifying land); Foster v. Ci-vale, 134 Conn. 469, 58 A.2d 520, 521 (1948) (same); Welsh v. Jakstas, 401 Ill. 288, 82 N.E.2d 53, 58 (1948) (sufficient if contract furnishes the means of identifying the intended property so surveyor can locate the specific boundaries by examining listed physical conditions, measurements, and monuments); Posey v. Kimsey, 146 Ky. 205, 142 S.W. 703, 706 (1912) (writing need not identify the exact location of the boundaries); Burgon v. Cabanne, 42 Minn. 267, 44 N.W. 118, 118 (1890) (description adequate if writing provides the means to determine boundaries); Meyer v. Kesterson, 151 Or.App. 378, 950 P.2d 896, 903 (1997) (description of land adequate if possible to ascertain from the description, and the aid of extrinsic evidence, which property was intended to be conveyed); Case v. Brier Hill Collieries, 145 Tenn. 1, 235 S.W. 57, 59 (1921) (same); McDonald v. Denson, 199 S.W.2d 707, 708 (Tex.App.1947) (where portion of larger tract conveyed, description adequate if designated acreage and general location, despite failure to define length and course of conveyed property); Kight v. Kight, 64 W.Va. 519, 63 S.E. 335, 336 (1908) (description sufficient if contract refers to lines or objects that can be identified). It was not reasonable for Schaer to rely upon the description for the precise boundaries to the property without investigating the actual size and shape as revealed by the plat books. He had a duty to investigate. Lindsey, 92 Iowa at 91, 60 N.W. at 175. Thus, the claim of a misunderstanding by Schaer was not justified under the circumstances, and does not constitute a lack of mutual assent.

VI. Conclusion.

We conclude Schaer had no remedy under section 448.10. The assignment was proper under section 448.31 and was not void based on lack of mutual assent. Because Schaer failed to establish a legal basis for recovery, it is unnecessary for us to address his damage claim. We affirm the district court.

AFFIRMED.

      . When no bid is received on a parcel offered at a tax sale, or the bid received is less than the amount due, the county must bid for the property in a sum equal to the amount due. Iowa Code § 446.19. However, the county is not actually required to pay the county treasurer for the purchase. Id.

      . Our country developed a uniform method to describe land following the Revolutionary War and the subsequent growth of our country through the acquisition of vast areas of land under the Louisiana Purchase and other acquisitions. 14 Richard R. Powell, Powell on Real Property § 81A.05[2][c][i], [ii], at 81A-87 (Michael Allan Wolf ed., Matthew Bender 1999). This method was based on surveyed grids controlled by longitude and latitude lines, and is still maintained today. See id. § 81A.05[2][c][ii], at 81A-87. The juncture of a particular prime meridian line, or north-south longitude line, and an east-west latitude line, or base line, controls each grid. Id. These grids divide land into square townships that are a length of six' miles by six miles, “identified by a combination of range and township numbers.” Id. at 81A-88. "A range is a tier of townships measured either east or west of the prime meridian.” Id. "[A] tier of townships [is] measured either north or south of the baseline[,][and] is [also] called a township." Id. This system allows each township to be distinguished from all other townships. Id. Each township is then subdivided into thirty-six-one-square-mile parcels containing 640 acres, known as sections. Id. at 81A-89. These sections are then numbered in a distinct order, which again describes a distinct parcel of land. Id. Each section is further subdivided into half-sections and quarter-sections, with each quarter section further broken down into halves and quarters so that a quarter-quarter section represents a forty-acre tract of land. Id. at 81A-90. A forty-acre tract can be further divided into smaller tracts by the same method. Id.

      This system gives each tract a distinct description. Id. When a parcel cannot be described in this fashion because it is an odd shape, then the older metes and bounds system of delineating the boundaries of land based on a designated beginning point can be used in combination with the governmental survey method to describe the land. Id. The metes and bounds method of description dates back to colonial times. See id. § 81A.05[2][c][i], at 81A-87.

      . Land can also be described by reference to a plat. Id. § 81A.05[2][d], at 81A-92. “A plat is a recorded survey of a subdivision” approved by a governmental authority, which shows a beginning point of the subdivision and the dimensions of each lot. Id. Each lot is then assigned a number, which allows each tract to be described by reference to a number within the plat instead of a physical description of the boundaries. See id. Plats are normally created in urban areas, particularly as a means to develop land into residential lots. Id. Although the plat is carved out of a grid, it takes on a new identity of platted land and is described by a lot number. Id.

      In Iowa, the county auditor maintains plat books showing the surveyed grids covering the unplatted property, including any exclusions that may have been created. The method of describing sections is the same method used to describe each unplatted parcel as shown in the plat book, and is the same description used within the county system to describe an unplatted parcel of land for the purposes of the tax sale.
      When land is subdivided, it is no longer considered by the county auditor to be a part of the unplatted section. Platted or subdivided parcels are removed from the plat book containing the unplatted property, and are recorded in a separate subdivision plat book. A notation is made in the plat book containing unplatted property, at the location of the subdivision, indicating the subdivision has been created, and the boundaries are marked. A notation is also made indicating the page of the subdivision plat book where the addition can be found. The subdivision plat book contains a drawing of the subdivision. Under this system, all unplatted land automatically excludes any platted subdivision that may have been created within the unplatted tract. Thus, the county auditor does not exclude subdivisions within an unplatted tract in the description of an unplatted tract.

      . Redemption includes interest on the amount paid by the purchaser or assignee of two percent per month, with a fraction of a month counting as the entire month. Id. § 447.1.

      . Iowa Code section 448.11 provides:
      When it is made known to the county treasurer, before the execution of a deed for a parcel sold, or if the deed is returned by the purchaser, that a parcel was sold which was not subject to taxation, or upon which the taxes had been paid, the treasurer shall make an entry in the county system that the parcel was erroneously sold, and the entry shall be evidence of the fact, and the purchase money shall be refunded to the purchaser.
      This section allows the county treasurer to correct certain mistakes without formal action or a legal proceeding. Schaer is not entitled to relief under this section because the two conditions do not apply. The parcel sold in this case was subject to taxation, and the taxes had not been paid.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    HOME BUILDERS ASSOCIATION OF GREATER DES MOINES, Appellee, v. CITY OF WEST DES MOINES, Appellant.
    Nos. 99-2025, 00-0351.
    Supreme Court of Iowa.
    May 8, 2002.
    As Amended May 31, 2002.

      Ivan T. Webber of Ahlers, Cooney, Dor-weiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.
    Brent R. Appel of Dickinson, Macka-man, Tyler & Hagen, P.C., Des Moines, for appellee.
    William F. Sueppel of Meardon, Sueppel & Downer, P.L.C., of Iowa City, for ami-cus curiae, Iowa League of Cities.
   TERNUS, Justice.

The appellee, Home Builders Association of Greater Des Moines, challenges the collection of fees by the appellant, City of West Des Moines, Iowa, pursuant to the City’s Mandatory Park Dedication Fee Ordinance. The challenged fees are imposed on land developers and builders and are used by the City to pay for its neighborhood park system. The trial court declared that the fees are an illegal tax and enjoined the City from collecting such fees. The court also ruled that the ordinance violated the Takings Clause of the United States Constitution, the Equal Protection Clause of the Constitution, and substantive due process. Based on the constitutional violations, the court held that the plaintiff was entitled to recover its attorney fees under 42 U.S.C. §§ 1983 and 1988.

The City has appealed the trial court’s decision granting declaratory relief, injunctive relief, and attorney fees, challenging its rulings on each claim asserted by the plaintiff. We review the court’s ruling on the state law claim that the fee was an illegal tax for correction of errors of law. See Iowa R.App. P. 6.4. Under this scope of review, we are bound by the trial court’s findings of fact if they are supported by substantial evidence. See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 59 (Iowa 1999). Our review of the court’s rulings on the plaintiffs constitutional claims is de novo. See Blumenthal Inv. Trusts v. City of West Des Moines, 636 N.W.2d 255, 260 (Iowa 2001).

I. Relevant Facts.

The City of West Des Moines is a municipal corporation organized and existing under the laws of the State of Iowa. In 1985 the City enacted Ordinance No. 777, the Mandatory Park Dedication Fee Ordinance, in an effort to ensure adequate funds for the purchase of suitable park-lands to serve developing areas of the City. This ordinance, applicable citywide, provided for the imposition of a fee on developers and residential builders. Specifically, whenever a parcel of land within the City was “subdivided and presented to the City for residential development purposes, the developer [was] required to make a fee payment of $100.00 per acre.”

In addition to the subdivision fee, the ordinance also imposed a fee on residential building permits. Upon application for a residential building permit, a builder was required to make the following payments under the ordinance: $200 per unit for a detached, single-family home; $150 per unit for an attached, single-family home; and $75 per apartment unit. In the case pf private developments that provide facilities or amenities such as swimming pools, court game facilities and playground equipment for common use without a charge to residents in the development, the homebuilder was entitled to a credit not to exceed twenty-five percent of the fee otherwise required under the ordinance. The ordinance also provided that if, within a twelve-month period, “additions, improvements, alterations or repairs in excess of 50% of the current assessed fair market value” were made to a residence, a fee for park development would be collected. In a 1995 amendment to the ordinance, all fees were doubled.

The fees generated by the ordinance are deposited in a sub-fund of the City’s general fund and, according to the ordinance, are to “be used exclusively for park site acquisition and/or physical improvement of the Neighborhood Park System.” The “neighborhood park system” is defined under the ordinance as “a network of active and passive recreation areas including neighborhood parks, neighborhood mini parks and greenbelts which are designed and located to serve a surrounding neighborhood.” Funds collected under the ordinance are used for land acquisition and initial site development, such as water hookup, seeding and grading. Any additional improvements such as shelters, playgrounds and other amenities are paid with general fund monies.

For purposes of planning, the City is divided into park districts. Although the ordinance does not prohibit the use of fees collected in one district from being spent on land and facilities in another district, in practice, funds have been segregated by district and the monies spent only within that district.

The City’s master park plan contemplates each neighborhood park serving an area within a radius of ⅝ to ⅛ mile in the newer areas of town and ¾ of a mile in established neighborhoods. Nonetheless, parks in new developments are often larger than the City’s standard of 2.5 acres per 1000 population in order to accommodate larger facilities that will compensate for the deficiency of parks in older areas of the City.

Although fees have been collected throughout the City, no funds have been expended in two park districts. In addition, no park facilities are planned for a development known as Glen Oaks, even though the fees required by the ordinance have been assessed on residences in that neighborhood.

We turn now to the issues raised in this appeal.

II. Is the Fee an Illegal Tax?

The plaintiff claims that the parks fee is an illegal tax. The City asserts that the fee is a valid impact fee that is authorized under the City’s broad home-rule power.

An impact fee is generally a monetary payment assessed as a condition of the issuance of a building permit or plat approval. Country Joe, Inc. v. City of Eagan, 560 N.W.2d 681, 685 (Minn.1997). It is typically used to finance “ ‘large-scale, off-site public facilities and services necessary to serve new development.’ ” Id. (citation omitted). Courts concluding that such fees are valid have usually required that the fee be “ ‘in an amount which is proportionate to the need for the public facilities generated by [the] new development.’ ” Id. (citation omitted); accord Hollywood, Inc. v. Broward County, 431 So.2d 606, 611 (Fla.Dist.Ct.App.1983). Such fees “have been lauded by local governments in recent years as a welcome means to ‘shift a portion of the cost of providing capital facilities to serve new growth from the general tax base to the new development generating the demand for the facilities.’ ” Country Joe, Inc., 560 N.W.2d at 684-85 (citation omitted).

Although some states have enabling legislation authorizing local government to charge impact fees, e.g., Home Builders Ass’n v. City of Scottsdale, 187 Ariz. 479, 930 P.2d 993, 994 (1997); N. III. Home Builders Ass’n, Inc. v. County of DuPage, 165 Ill.2d 25, 208 Ill.Dec. 328, 649 N.E.2d 384, 387 (1995), Iowa does not. Therefore, the City must justify the parks fee at issue here as an exercise of its police power. We turn now to a review of Iowa law with respect to the police power of municipalities and the scope of their taxing authority.

A. Applicable legal principles.

In 1968 the State of Iowa amended its constitution to give municipalities home rule authority. See Iowa Const, art. Ill, § 38A. Under the home rule amendment, a city has the “power and authority, not inconsistent with the laws of the general assembly, to determine [its] local affairs and government, except that [it does] not have power to levy any tax unless expressly authorized by the general assembly.” Id. (emphasis added); see also Iowa Code §§ 364.2(2) (1997) (“A city may exercise its general powers subject only to limitations expressly imposed by a state or city law.”), .3(4) (“A city may not levy a tax unless specifically authorized by a state law.”). The principle of home rule authority is further clarified in the Iowa Code, which provides:

A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate ... to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.

Id. § 364.1. An action taken pursuant to this provision is an exercise of a city’s police power. See Kelley v. Story County Sheriff, 611 N.W.2d 475, 481 (Iowa 2000); Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995). To summarize the scope of home rule authority in Iowa, a city has broad police powers, but it cannot impose taxes without express authorization from the legislature.

The City argues that its parks fee is an appropriate incident of the exercise of its police power to promote the public’s health, comfort and welfare. The plaintiff does not challenge the City’s authority to build parks; clearly, parks improve the welfare and comfort of city residents. Rather, the plaintiff claims that the financing for parks must come from the City’s general fund and not through the imposition of an unauthorized tax on developers and homebuilders. See generally Iowa Code § 384.3 (requiring, in general, that “[a]ll moneys received for city government purposes from taxes and other sources must be credited to the general fund of the city”). In order to resolve this dispute, we must determine the nature of the parks fee. We begin by examining the differences between taxes and fees.

This court has defined a tax as “a charge to pay the cost of government without regard to special benefits conferred.” In re Shurtz’s Will, 242 Iowa 448, 454, 46 N.W.2d 559, 562 (1951); accord Neuman v. City of Indianola, 232 N.W.2d 568, 573 (Iowa 1975). In other words, taxes are for the primary purpose of raising revenue. See City of Hawarden v. US W. Communications, Inc., 590 N.W.2d 504, 507 (Iowa 1999). If the fee at issue here is determined to be a tax, it would fall -within the category of an excise tax — a tax imposed on a transaction or as a condition to the exercise of a privilege. See Waters Landing Ltd. P’ship v. Montgomery County, 337 Md. 15, 650 A.2d 712, 716-17 (1994) (holding that development impact tax was an excise tax, not a property tax or a personal property tax); 9 Beth A. Buday & Julie Rozwadowski, The Law of Municipal Corporations § 26.18, at 50 (3d ed., rev.vol.1995) (stating that a tax imposed as a condition of licensure is an excise tax, not a property tax) [hereinafter “The Law of Municipal Corporations ”]; see also Cedar Valley Leasing v. Iowa Dep’t of Revenue, 274 N.W.2d 357, 361 (Iowa 1979) (defining excise tax as a tax on a transaction or the privilege to conduct the transaction); Black’s Law Dictionary 563 (6th ed.1990) (defining “excise tax” as “[a] tax imposed on the performance of an act, the engaging in an occupation, or the enjoyment of a privilege”). That is because, notwithstanding its relationship to real property, the fee is transaction based; it is made a condition of obtaining plat approval or a building permit. See Waters Landing Ltd. P’ship, 650 A.2d at 717; 71 Am. Jur.2d State and Local Taxation § 22, at 318 (2000) (stating that an excise tax “does not become a property tax because it is proportioned in amount to the value of the property used in connection with the occupation, privilege, or act which is taxed”).

We find no legislative authority for cities to impose an excise tax on developers or builders. Amicus curiae, the Iowa League of Cities, argues that the City’s authority to charge a parks fee can be derived from its statutory authority to condition plat approval on the installation of public improvements. See Iowa Code § 354.8 (allowing city to “requir[e] the installation of public improvements in conjunction with approval of a subdivision”); see also Blumenthal Inv. Trusts, 636 N.W.2d at 266. Even if we assume that the term “public improvements” as used in section 354.8 encompasses parks, the League’s argument fails. The League overlooks the fact that the city ordinance at issue here does not require a developer to construct a park; it imposes a monetary fee. This distinction is significant under Iowa home rule principles because if the fee is a tax, there must be express legislative authority for imposing the tax. Although the League advances practical and sound reasons for allowing a City to require a monetary exaction from a developer in lieu of a dedication of parkland, the decision to extend that power to local government is for the legislature, not this court. Clearly, the legislature did not do so in section 354.8; that statute does not expressly permit local government to require payment of a tax as a condition of subdivision approval. Consequently, if the parks fee is a tax, it is not authorized by section 354.8.

Having examined the sources and scope of the City’s taxing authority, we now examine its authority to charge fees under its police power. Before municipalities had home rule authority, this court had interpreted the regulatory authority granted by statute to cities to include the power to charge a fee to meet the expenses of the city in exercising its regulatory authority. Felt v. City of Des Moines, 247 Iowa 1269, 1273, 78 N.W.2d 857, 859 (1956) (holding that fee charged to cover city’s expenses in exercising its statutory authority was “a proper incident to the authority granted under the statute”); see City of Pella v. Fowler, 215 Iowa 90, 98, 244 N.W. 734, 738 (1932); Solberg v. Davenport, 211 Iowa 612, 617, 232 N.W. 477, 480 (1930). The same principle applies with respect to a city’s home rule authority: a city may charge a fee to cover its administrative expenses in exercising its police power. Thus, the reasonable cost of inspecting, licensing, supervising, or otherwise regulating an activity may be imposed on those engaging in the activity in the form of a license fee, permit fee, or franchise fee. See City of Hawarden, 590 N.W.2d at 506-07. In addition to regulatory fees, a municipality may charge a citizen when it provides a service to that citizen. See Newman, 232 N.W.2d at 573.

The rather narrow range of fees permitted by our cases is consistent with our long-standing definition of a tax. As noted above, a tax is “a charge to pay the cost of government without regard to special benefits conferred.” In re Shurtz’s Will, 242 Iowa at 454, 46 N.W.2d at 562 (emphasis added). Consistent with this definition, the regulatory and service fees permitted under Iowa law are based on a special benefit conferred on the person paying the fee. In the regulatory context, fees enable the government to administer a particular activity or occupation to the peculiar benefit of those engaged in that activity or occupation. Therefore, fees de-signed to cover the administrative expense of regulating a particular activity, occupation, or transaction are not taxes. Similarly, when one pays for a service such as admission to the municipal swimming pool, one has received a special benefit — admission to the pool — and so the admission fee is not a tax.

In summary, because the fee at issue here does not fall within the authorized taxing authority of the City, it is proper only if it qualifies as a regulatory fee or service fee. To qualify as one of these permissible fees, the parks fee must cover the administrative expenses of the city in regulating residential development or be compensation for a specific benefit or service conferred on those paying the fee. We now turn to an analysis of whether the parks fee is an unauthorized tax or a permissible fee.

B. Application of law to facts.

We first consider whether the parks fee is a regulatory fee. We do not think it is. The fees charged under the city ordinance are not based on the cost of regulating development or issuing building permits, but rather are based on the impact the development of the property owner’s land will have on the public infrastructure. Because the fee has no relation to the expenses of the city in approving subdivision plats or building permits, it cannot be justified as an incident of the exercise of its police powers. See City of Hawarden, 590 N.W.2d at 507 (distinguishing a fee from a tax by focusing on whether the fee is reasonably related to and does not exceed the city’s necessary and probable administrative and regulatory expenses); Solberg, 211 Iowa at 617, 232 N.W. at 480 (stating that where charge “is imposed in the exercise of the police power, the amount which may be exacted may include and must be limited and measured by the necessary or probable expense of issuing the license and such inspection, regulation, and supervision as ... may be lawful and necessary” (emphasis added)); City of Pella, 215 Iowa at 98, 244 N.W. at 738 (holding that franchise fee calculated as a percentage of the franchisee’s gross earnings was not proper because the exaction was not “based on the cost of regulation or supervision”); 9 The Law of Municipal Corporations § 26.15, at 42 (stating that fee permitted as an incident of police regulatory power is “only as will legitimately assist in regulation and will not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business or other subject that it covers”); see also E. Diversified Props., Inc. v. Montgomery County, 319 Md. 45, 570 A.2d 850, 855 (1990) (holding that impact fee was not a regulatory fee where it was not charged to “defray expenses of the development regulatory process”).

The City attempts to justify its parks fee on the basis that the monies raised are spent solely on neighborhood parks to the benefit of developers and homebuilders whose activities generate the need for such facilities. We do not think the fee can be supported on this basis either. First of all, a neighborhood park is not provided specifically to the residents of a development or even the neighborhood in which it is located. A neighborhood park is available for general public use and benefits the entire community. See Wielepski v. Harford County, 98 Md.App. 721, 635 A.2d 43, 47 (1994) (noting road improvements benefit the public in general, so fee charged to bordering property to pay for improvements cannot be justified on basis that improvements benefit that particular property), vacated on other grounds by Harford County v. Wielepski, 336 Md. 281, 648 A.2d 192, 193 (1994); cf. Milton O. & Phyllis A. Thorson Revocable Estate Trust v. City of West Des Moines, 531 N.W.2d 647, 650 (Iowa Ct.App.1995) (noting in the context of special assessment that public improvement usually confers special benefits to property owners and a general benefit to the city and its residents). Therefore, if the fee is to be justified under the City’s police power as conferring a special benefit, it must provide some benefit to nearby property beyond the mere existence of the park. See E. Diversified Props., Inc., 570 A.2d at 855 (noting that “[t]he relationship between the fee and the benefit to the property owner necessary for the measure to be regulatory in effect is not just that the property owner receive some benefit from the improvement”); cf. Goodell v. City of Clinton, 193 N.W.2d 91, 95 (Iowa 1971) (holding in special assessment case that benefits accruing to the public at large are not special benefits that may be assessed against individual properties).

We think one could hypothesize that a special benefit is conferred by the construction of a neighborhood park in the form of increased property values or sala-bility resulting from the park’s proximity. Cf. Milton O. & Phyllis A. Thorson Revocable Estate Trust, 531 N.W.2d. at 650 (noting distinction between general community benefit and special benefit of public improvement in context of special assessment). But even if we assume that developers and homebuilders who pay the parks fee receive a special, economic 'benefit from the building of neighborhood parks, we still cannot sustain the fee as an exercise of the City’s police power. That is because the fee is not premised on the special benefits bestowed on developers and builders nor limited to the value of those special benefits. Rather, the fee is based on the cost of building the neighborhood parks, an expense representing the general benefit to the community at large. Therefore, the parks fee is not based on special benefits conferred on the property owners so as to fall outside the definition of a tax. See E. Diversified Props., Inc., 570 A.2d at 855 (holding that impact fee was not a regulatory fee where it was not based on the “service provided to the property owner”); Haugen v. Gleason, 226 Or. 99, 359 P.2d 108, 111 (1961) (holding fee charged as condition of plat approval was an illegal tax because the fees were not required to be used for “the direct benefit of the regulated subdivision”). To conclude otherwise would in essence permit the City to assess property for a public improvement without regard to the limitations on its taxing authority under chapter 384. See generally 9 The Law of Municipal Corporations § 26.18, at 50 (noting that unless it is shown that the fee collected is devoted to the cost of regulation, “there would be nothing to distinguish a revenue ordinance from a police ordinance”).

In reaching our conclusion that the parks fee cannot be sustained under the City’s police power, we have considered the cases cited by the City from other jurisdictions wherein courts have upheld impact fees similar to the fee before us. Notwithstanding those cases, Iowa statutory and case law is clear and well established with respect to the powers of local government. The home rule amendment, while giving local government broad authority to promote the peace, safety, health, welfare, comfort, and convenience of its residents, did not bestow such broad powers with respect to the financing of local government activities. A municipality may charge a fee to cover the cost of regulation or the cost of providing a service, but beyond that the municipality must have specific authorization from the legislature to raise revenue for general city purposes.

In contrast, in the cases upon which the City relies, the state legislatures had either adopted an enabling statute permitting local government to charge impact fees, or the taxing power of local government was not as severely circumscribed under state law as it is in Iowa. E.g., Home Builders Ass’n, 930 P.2d at 995 (state statute allowed impact fee); N. Ill. Home Builders Ass’n, Inc., 649 N.E.2d at 30-31 (same); McCarthy v. City of Leawood, 257 Kan. 566, 894 P.2d 836, 839 (1995) (Kansas home rule provision granted cities power to levy “taxes, excises, fees, charges and other exactions” unless prohibited by legislative enactment). Although in a few cases the statutory framework was similar to that present here, e.g., Coulter v. City of Rawlins, 662 P.2d 888 (Wyo.1983), we do not find such cases persuasive. It is our belief the courts in those cases erroneously implied local authority to impose a revenue-raising impact fee as an incident of local government’s regulatory powers. See 8 Eugene McQuillin, The Law of Municipal Corporations § 25.118.50, at 384 (3d ed., rev.vol.2000) (stating “in the absence of legislative intent, municipalities cannot depart from traditionally authorized methods of financing public facilities so as to allocate the costs of substantial public projects among new developments on the basis of their anticipated impact”). In essence, they have recognized an implied power to tax, a notion antithetical to Iowa’s home rule principles. See Iowa Code § 364.3(4) (“A city may not levy a tax unless specifically authorized by a state law.”); accord Haugen, 359 P.2d at 111 (noting that “[t]he power to tax is never inferred,” nor is it inherent in local government). In summary, the cases in which courts have upheld impact fees are either distinguishable or unconvincing. Therefore, we decline to follow them.

C. Conclusion.

We conclude the parks fee is a tax because it is “a charge to pay the cost of government without regard to special benefits conferred.” In re Shurtz’s Will, 242 Iowa at 454, 46 N.W.2d at 562. The fee is not compensation for a direct service to the developer or homebuilder paying the fee, nor is it intended to cover the administrative costs of the City. To the contrary the fee is, pure and simple, a measure to raise revenue for public infrastructure. See Idaho Bldg. Contractors Ass’n v. City of Coeur d’Alene, 126 Idaho 740, 890 P.2d 326, 330 (1995) (holding that an impact fee was a tax because it served “the purpose of providing funding for public services at large, and not to the individual assessed”); Hillis Homes, Inc. v. Snohomish County, 97 Wash.2d 804, 650 P.2d 193, 196 (1982) (ruling that an impact fee was an illegal tax because the primary purpose of the fee was “to offset the costs of providing specified services” rather than to regulate development); 9 The Law of Municipal Corporations § 26.17, at 48 (stating “if the charge exceeds the expense of issuance of a license and costs of regulation, it is a tax”). Because such a tax has not been expressly authorized by the legislature, the City was without authority to impose it. Accordingly, we affirm the district court’s declaratory judgment that the mandatory park dedication fee imposed by the City’s ordinance is illegal. See 9 The Law of Municipal Corporations § 26.32.20, at 97 (“Permit fees exacted for revenue-raising purposes or to offset the cost of general governmental functions are invalid.”). Likewise, we affirm the court’s grant of an injunction preventing the future collection of such fees.

III. Constitutional Claims.

The plaintiff also sought relief under 42 U.S.C. § 1983, claiming a deprivation of rights under the United States Constitution. See generally Petersen v. Davenport Cmty. Sch. Dist., 626 N.W.2d 99,103 (Iowa 2001) (stating that claim under § 1983 must be based on a violation of federal law). The trial court ruled that the ordinance violated the Takings Clause, the Equal Protection Clause, and substantive due process; the court also awarded attorney fees under 42 U.S.C. § 1988. We consider these claims despite the fact that we have already invalidated the parks fee under state law because a violation of the plaintiffs federal constitutional rights under § 1983 would permit the plaintiff to recover its attorney fees.

A. Takings.

The Fifth Amendment guarantees that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. The “just compensation” clause is made applicable to the states by the Fourteenth Amendment. Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 430 (Iowa 1996).

Although the parties spend much effort in debating the appropriate test to employ in determining whether a monetary exaction or impact fee has effected a taking, we do not reach that issue. We have already determined that the fee at issue is a tax, not a regulatory fee or impact fee. Therefore, we turn to the principles applicable to Fifth Amendment challenges to taxes.

The imposition of a tax, even an invalid one, is generally considered not to constitute a Fifth Amendment taking. See Halliburton Co. v. United States, 41 Fed. Cl. 272, 274 (Fed.Cl.1998); Swisher Int’l, Inc. v. United States, 178 F.Supp.2d 1354, 1362 (Ct.Int’l Trade 2001); Home Builders Ass’n v. City of Scottsdale, 183 Ariz. 243, 902 P.2d 1347, 1350 (1995), rev’d on other grounds, 187 Ariz. 479, 930 P.2d 993 (1997). See generally 71 Am.Jur.2d State and Local Taxation § 61, at 351 (2001) (stating that Takings Clause is “applicable to the power of eminent domain, but not to the power of taxation”). The plaintiff argues, nonetheless, that the United States Supreme Court held in Frick v. Pennsylvania, 268 U.S. 473, 496, 45 S.Ct. 603, 607, 69 L.Ed. 1058, 1065 (1925), that an invalid tax is a constitutional due process violation. We do not think Frick stands for this broad proposition. In Frick, the Court held that a state tax was invalid because the state had no power under the federal constitution to impose it. 268 U.S. at 488, 496, 45 S.Ct. at 604, 607, 69 L.Ed. at 1062, 1065. Here, the parks fee is invalid under state law. We have previously held that the invalidity of local government action under state law does not rise to the level of a federal constitutional violation. See Blumenthal Inv. Trusts, 636 N.W.2d at 267; Petersen, 626 N.W.2d at 103.

We do note that a few courts have entertained a Takings Clause challenge to a taxing measure. These courts have required that the tax be confiscatory before it could be considered a taking. See Quarty v. United States, 170 F.3d 961, 969 (9th Cir.1999). To prove that a tax is confiscatory, a plaintiff “must establish-that the tax was not reasonably related to a substantial public purpose.” Swisher Int’l, Inc., 178 F.Supp.2d at 1362 (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631, 650 (1978)).

Here the fees imposed under the City’s ordinance were intended for and used to finance public parks. Thus, the fees were “reasonably related to a substantial public purpose,” and, therefore, were not confiscatory. Accordingly, we think the fees do not constitute a taking. Therefore, we reverse the trial court’s contrary ruling.

B. Equal protection.

The plaintiff argues that the City’s ordinance violates the Equal Protection Clause of the United States Constitution and the comparable provision in the Iowa Constitution. See U.S. Const, amend. XIV, § 1; Iowa Const, art. 1, § 6. It formulates the alleged violation in several ways: (1) the ordinance irrationally creates two classes of taxpayers, those who paid fees before 1995 and those who paid after the 1995 increase in fees; (2) it irrationally creates two classes of taxpayers, taxing land developers without regard to the anticipated density of occupancy and taxing single family detached dwellings more than justified based on occupancy rates; (3) it irrationally excludes commercial development from imposition of the fee; and (4) it fails to give taxpayers credit for property taxes paid in the past to develop neighborhood parks in older areas of the City. We begin by identifying the applicable legal principles.

Taxing statutes are presumed to be constitutional. Sperfslage v. Ames City Bd. of Review, 480 N.W.2d 47, 49 (Iowa 1992). Moreover, because the ordinance establishing the parks fee is an economic measure, any classifications made by the ordinance need only have a rational basis. See Blumenthal Inv. Trusts, 636 N.W.2d at 268; Kraft, Inc. v. Iowa Dep’t of Revenue & Fin., 465 N.W.2d 664, 668 (Iowa 1991), overruled on other grounds by Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue & Fin., 505 U.S. 71, 112 S.Ct. 2365, 120 L.Ed.2d 59 (1992). Under the rational basis test, the plaintiff “must negate every reasonable basis that may support the disparate treatment.” ACCO Unlimited Corp. v. City of Johnston, 611 N.W.2d 506, 511 (Iowa 2000). The promotion of a legitimate state interest will support a classification against an equal protection challenge. Sperfslage, 480 N.W.2d at 49

As for the first classification challenged by the plaintiff — those who paid fees before the 1995 fee increase and those who paid the higher fees, the City argues that the increased cost of building city parks was a reasonable basis for raising the fees and thereby creating two classifications of fee payers. We think the rationale offered by the City is reasonable and supports the challenged classification.

The plaintiff also attacks the ordinance on the basis that the fee structure is not proportional to the anticipated occupancy of the property. For example, the plaintiff points out that the parks fee is assessed against developers based on the geographical size of the developed parcel, without regard to the anticipated density of the proposed subdivision. We first note that a taxing statute need not classify taxpayers on a basis related to the purpose served by earmarking the revenue. Motor Club of Iowa v. Dep’t of Transp., 265 N.W.2d 151, 155 (Iowa 1978) (upholding taxing statute on vehicles based on value rather than weight). Thus, the ordinance is not infirm under the Equal Protection Clause simply because taxpayers are classified on a basis — geographical size — that may not relate directly to the need generated for park facilities. Nor is the fee structure invalid based on the disparate treatment of homebuilders who are categorized on the basis of anticipated occupancy, e.g., single versus multi-family dwellings. As the City contends, it has the freedom in economic matters to encourage one type of property usage over another by differentiating the fees imposed on different usages. The City’s fee structure does not discriminate between similarly-used properties; all single-family-detached-dwelling builders pay the same fee, all apartment builders pay the same fee, and so on. The Equal Protection Clause does not require that persons not similarly situated be treated alike. Blumenthal Inv. Trusts, 636 N.W.2d at 268. See generally 9 The Law of Municipal Corporations § 26.60, at 188 (stating that a “classification may reasonably distinguish between business or trades”).

The plaintiffs third equal protection challenge — the immunity of commercial devélopment from the parks fee — suffers the same fate. The City is free to encourage commercial development by relieving it from payment of the parks fee. See Hearst Corp. v. Iowa Dep’t of Revenue & Fin., 461 N.W.2d 295, 306 (Iowa 1990) (upholding sales and use tax exemption for newspapers on the basis that lower price encourages reading of newspapers and citizens’ literacy). In addition, the City asserts that it may reasonably assume that commercial users of property generate less need for park facilities than do residential developers. We cannot say this rationale is so arbitrary that it fails to support the disparate treatment of commercial developers and builders. See Home Builders Ass’n v. City of North Logan, 983 P.2d 561, 565 (Utah 1999) (holding that exemption of commercial development from park impact fee was not unconstitutional based on the assumption that “residential growth placed the primary burden upon park facilities”); see also Waters Landing Ltd. P’ship, 650 A.2d at 721-22 (upholding “impact tax” that did not apply uniformly across the county, noting “ ‘as long as the classifications made in imposing the tax are not utterly arbitrary, the tax statute meets the rational basis test’” (citation omitted)); cf. Krull v. Thermogas Co., 522 N.W.2d 607, 613-15 (Iowa 1994) (finding no equal protection violation in statute that protected manufacturers who might be responsible for defective improvements to real property, but not owners, occupants, or operators of such improvements or property). See generally Kraft, Inc., 465 N.W.2d at 668-69 (noting in discussion of equal protection claim that with respect to local economic regulation, “ ‘it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment’ ” (citation omitted)).

The plaintiffs final equal protection challenge is based on the City’s failure to give fee payers a. credit for property taxes paid in the past. We fail to understand how this failure implicates equal protection principles. Accordingly, we find no equal protection violation. See Waters Landing Ltd. P’ship, 650 A.2d at 722 (finding no equal protection violation on basis of claim that impact fee imposed a duplica-tive tax burden).

C. Substantive due process.

The Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution serve as a limit on the power of the government to infringe on a person’s constitutional rights. See ACCO Unlimited Corp., 611 N.W.2d at 510. When a governmental unit infringes on a right that is not fundamental, “substantive due process demands no more than ‘a “reasonable fit” between governmental purpose ... and the means chosen to advance that purpose.’ ” Id. (citation omitted).

Assuming that the parks fee at issue here infringes on a right protected by the federal constitution, such right is not fundamental. See Blumenthal Inv. Trusts, 636 N.W.2d at 266. Therefore, we merely examine whether there is a reasonable fit between imposition of the fee and the purpose prompting the City to charge the fee.

We have already determined in connection with our takings analysis that the parks fee is reasonably related to the City’s goal of establishing neighborhood parks. This conclusion also disposes of the plaintiffs substantive due process claim.

D. Conclusion.

In conclusion, we find no constitutional violation so as to entitle the plaintiff to attorney fees under 42 U.S.C. §§ 1983 and 1988. Therefore, we reverse the trial court’s award of attorney fees, and remand this ease for entry of a judgment awarding declaratory and injunctive relief only. Upon remand, the district court shall also address the disposition of funds being held in escrow that represent payment of park fees during the pendency of this litigation. In this regard, the court may provide for notice and hearing, as appropriate, and enter any order that it deems necessary and proper.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Three entities, The Oaks Development Company, Country Club Ridge, L.C., and Midland Builders, L.C., intervened in this action. These parties had in the past and will in the future pay fees required by the City’s ordinance. Since the interests of the intervenors correspond to that of the Home Builders Association, all references to the plaintiff include the intervenors.

      . Even if we were to classify the fee at issue as a tax on property, neither of the two types of property taxing authority given to local government by the legislature applies in this case. First, cities may levy taxes "on all taxable property within the city limits, for all city government purposes.” Iowa Code § 384.1; see id. § 384.12. As already noted, the fee at issue here is not levied on property per se but is made a condition of plat approval or a prerequisite to the issuance of a building permit. Therefore, it is not a general property tax authorized by section 384.1. Secondly, cities may impose a special tax assessment on property for "the cost of construction and repair of public improvements.” Id. § 384.38(1); see also id. § 384.61 (stating that special assessments against property must be "in accordance with the special benefits conferred upon the property”). See generally Newman, 232 N.W.2d at 573-74 (stating the imposition of a special assessment is considered an exercise of a city's taxing authority). Although special assessments may be made against property benefited by a "public improvement,” parks are not included in the extensive statutory definition of "public improvement.” See Iowa Code § 384.37(19) (defining “public improvement” to include, among other things, sewers, sidewalks, streets, plazas and utility connections). Therefore, the parks fee is not authorized as a special assessment.


author: NEUMAN, Justice.

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR WAPELLO COUNTY, Defendant.
    No. 00-1380.
    Supreme Court of Iowa.
    May 8, 2002.

      Thomas G. Becker, State Public Defender and Mark C. Smith, First Assistant State Public Defender, for plaintiff.
    No appearance for defendant.
   NEUMAN, Justice.

This case concerns Iowa Code section 915.37 (1999). The statute plainly authorizes the district court to appoint an attorney to represent the interests of child victims in connection with criminal prosecutions for sex abuse, obscenity and child endangerment. What is less plain is who must pay for those legal services, the State or the county. We granted the State Public Defender’s application for writ of certio-rari to consider its claim that the district court acted illegally when it ordered the State to pay such fees. Because we agree with the district court’s interpretation of the pertinent statutes, we annul the writ.

The pertinent facts are undisputed. Attorney Kenneth Duker was appointed by the juvenile court to serve as guardian ad litem for three minor children involved in child in need of assistance proceedings. Related criminal charges of child endangerment were filed against the children’s parent. The district court then appointed Duker to serve as the children’s guardian ad litem in the criminal proceedings.

The court’s authority to appoint Duker to represent the children’s interests in the criminal proceedings stems from Iowa Code section 915.37. The statute states:

A prosecuting witness who is a child, as defined in section 702.5, in a case involving a violation of chapter 709 [sex abuse], or section 726.2, 726.3, 726.6 [child endangerment], or 728.12 [obscenity], is entitled to have the witness’s interests represented by a guardian ad litem at all stages of the proceedings arising from such violation. The guardian ad litem shall be a practicing attorney and shall be designated by the court after due consideration is given to the desires and needs of the child and the compatibility of the child and the child’s interests with the prospective guardian ad litem. If a guardian ad litem has previously been appointed for the child in a proceeding under chapter 232 or a proceeding in which the juvenile court has waived jurisdiction under section 232.45, the court shall appoint the same guardian ad litem under this section. The guardian ad litem shall receive notice of and may attend all depositions, hearings, and trial proceedings to support the child and advocate for the protection of the child but shall not be allowed to separately introduce evidence or to directly examine or cross-examine witnesses. However, the guardian ad li-tem shall file reports to the court as required by the court. If a prosecuting witness is fourteen, fifteen, sixteen, or seventeen years of age, and would be entitled to the appointment of a guardian ad litem if the prosecuting witness were a child, the court may appoint a guardian ad litem if the requirements for guardians ad litem in this section are met, and the guardian ad litem agrees to participate without compensation.

Iowa Code § 915.37.

At the conclusion of the criminal trial, Duker sought payment for the services he rendered on behalf of the young victims. The court entered an order directing the State Public Defender to pay Duker the “fair and reasonable” sum of $645. The public defender refused to pay the claim. The matter was then set for hearing on Duker’s petition for judicial review.

The district court found that all of the statutory requirements for appointment of counsel under section 915.37 had been met. It further found, by inverse implication, that since the statute authorizes appointment of counsel for children fourteen years and older when “the guardian ad litem agrees to participate without compensation,” the legislature must have intended appointed counsel for younger children to be paid. That payment, the court reasoned, is imposed upon the State under section 815.10, which authorizes “legal assistance at public expense” for indigent persons involved in criminal or juvenile proceedings. This petition by the State Public Defender followed.

I. Scope of Review.

“Relief through certiorari is strictly limited to questions of jurisdiction or illegality of the challenged acts.” French v. Iowa Dist. Ct. for Jones County, 546 N.W.2d 911, 913 (Iowa 1996). So our review is for the correction of errors at law. Id. The district court’s well-supported factual findings are binding upon us; its legal conclusions are not. Fisher v. Chickasaw County, 553 N.W.2d 331, 333 (Iowa 1996).

II. Analysis.

This is the court’s first occasion to consider the import of Iowa Code section 915.37. It is a relatively new statute but we think the district court was wise to observe that its provisions should not be considered in a vacuum. Section 915.37 is one of many statutes authorizing the appointment and payment of counsel consistent with constitutional and statutory mandates. The public defender argued in the district court, and urges in this certiorari proceeding, that appointment of counsel under section 915.37 is not among the “instances in which funds appropriated to the State Public Defender may be applied to the payment of claims.” Its claim rests principally on the assertion that Duker’s legal services did not involve the defense of the children; they were prosecution witnesses. And while the public defender concedes that a guardian ad litem is entitled to compensation from the indigent defense fund when appointed for a child in juvenile court, see Iowa Code § 815.7, this representation involved criminal court.

The district court rejected the public defender’s arguments, observing that section 815.10 authorizes appointment of counsel — not just for defendants — but for any “indigent person ... entitled to legal assistance at public expense.” (Emphasis added.) To this the public defender responds that appointment under section 915.37 “falls far short of ‘legal assistance.’ It provides for the appointment of a guardian ad litem, not counsel for these mere witnesses.” (Emphasis added.)

Although the statutes at issue furnish no clear answer, we believe the trial court’s rationale is more consistent with the legislative intent revealed by section 915.37. We are convinced, by the same process of inverse implication used by the district court, that the statute contemplates payment for services rendered on behalf of children younger than fourteen. Indeed the legislative history of section 915.37 reveals it was amended in 1992 precisely to add this provision. See 1992 Iowa Acts ch. 1231, § 66. We suspect the amendment was made to clarify the legislature’s position in light of then-current decisions of this court rejecting payment of guardian ad litem fees in civil cases where neither statutory nor constitutional authority existed to do so. See Grant v. Iowa Dist. Ct. for Hancock County, 492 N.W.2d 683, 686 (Iowa 1992); Garcia v. Wibholm, 461 N.W.2d 166,171 (Iowa 1990).

The more difficult question is determining whom the legislature intended to foot the bill for these services. The statute is silent on the matter. But by its terms, the statute contemplates the appointment of counsel in the criminal proceeding as an extension of counsel’s role in juvenile court. Contrary to the public defender’s assertion, the lawyer’s role under the statute is to “support the child and advocate for the [child’s] protection” rather than aid the prosecution. See Iowa Code § 915.37 (guardian ad litem authorized to support and advocate for child but “shall not be allowed to directly examine or cross-examine witnesses”). Thus we do not share the public defender’s view that the statute is an anomaly in the world of indigent defense.

We are convinced that the language of section 815.10(1), which authorizes the appointment and payment of counsel for “an indigent person at any stage of the criminal ... or juvenile proceedings,” is broad enough to encompass payment of counsel for children, like those represented by Duker here, whose interests extend from the juvenile court to the criminal court. 1999 Iowa Acts ch. 135, § 28 (codified at Iowa Code § 815.10(1) (2001)). Their interests as victims deserve protection in either forum and the legislature, in crafting section 915.37, recognized the importance of maintaining consistency in that representation.

We reject the public defender’s claim that this case should be treated like a mental health proceeding, where the costs of counsel are born by the county. See Iowa Code § 229.8. The case before us involves children embroiled in juvenile proceedings and a companion criminal trial, both of which rightly fall within the realm of legal services payable from state, not county, funds. The district court committed no legal error in interpreting section 915.37 to authorize payment for their counsel in accordance with Iowa Code sections 815.10 and .7.

WRIT ANNULLED.

      . See, e.g., Iowa Code §§ 229.8 (involuntary hospitalization of the mentally ill); 232.141 (juvenile proceedings); 229A.6 (sexually violent predators); 598.12 (dissolution of marriage proceedings); 815.10 (defense of indigent person charged with criminal defense or serving as counsel or guardian ad litem to person in juvenile court).