Comparison of Levy and Special Assessment Powers (2026)
The table below clarifies which districts have the authority to impose a general tax (Levy) and which can use a special assessment (for new improvements). The authority to use a specific, annual “Maintenance Fee” is highly restricted.
| District Type |
|---|
| General Levy Power | Special Assessment Power (New Construction) | Annual Maintenance Fee Authority (per SDCL 9-43-138) | |
|---|---|---|---|
| Road Districts (31-12A) | Yes | Yes (Follows municipal procedure) | No. Authority is not explicitly granted in Chapter 31-12A. Districts must rely on general levies or formal assessments. |
| Sanitary Districts (34A-5) | Yes | Yes (Follows municipal procedure) | No. Rely on general levies and service charges for maintenance. |
| Water Development (46A-3E) | Yes (30 cent cap) | Yes (Requires 66.7% petition) | No specific authority. |
| Townships (31-13) | Yes | Yes (General levy or annual front-foot assessment via 31-13-52) | No. Townships use their own “front foot assessment” statute. |
| Municipalities (9-43) | Yes | Yes | Yes. Explicitly granted in SDCL 9-43-138. |
Analysis of the “Fee” vs. “Assessment” Anomaly
The specific authority for a “Special Maintenance Fee” (SDCL 9-43-138) is unique to the Municipal Code, and that statute is not explicitly cross-referenced into the Special District chapters.
This creates a significant legal distinction:
- Municipalities have a clear, statutory right to charge a maintenance fee without the full public hearing process.
- Special Districts only have the power to levy a general tax or impose a highly procedural special assessment.
Any special district currently imposing a charge and calling it a “maintenance fee” (as opposed to a general levy or a formal special assessment) is operating outside of its statutory authority. This is a critical point for the argument that these fees are currently unlawful in any special district context.
If you (the reader) are wondering whether you can verify this, simply go to the South Dakota Legislature site and do a search for ‘Special Maintenance Fee’.
It does not appear in special district chapters. Here are the primary locations where the term or its direct function is codified:
1. SDCL 9-43-138 (The Primary Statute)
This is the “source” statute. It explicitly uses the term and defines its purpose:
“The governing body of a municipality may, by resolution, designate the property that is to be charged a special maintenance fee for the purpose of maintaining or repairing public improvements…”
2. SDCL 9-43-139 (Notice to Auditor)
This procedural statute explains how the fee is processed:
“The amount of the special maintenance fee shall be certified to the county auditor… and shall be collected as other municipal taxes.”
3. SDCL 9-43-140 (Exclusion of Agricultural Property)
This section provides a mandatory protection:
“No special maintenance fee may be levied against any property that is classified as agricultural property for the purposes of taxation…”
4. SDCL 9-43-141 (Uniformity in Municipality)
This ensures the fee is applied fairly within the city:
“If a municipality imposes a special maintenance fee, the fee shall be uniform for all property in the municipality within the same class.”
Why this search result is critical for us:
- The Term is Missing in 31-12A: The term “special maintenance fee” does not appear anywhere in the Special District chapters. While special districts can “borrow” the procedures for special assessments from Title 9, the legislature did not explicitly grant them the power to impose the “special maintenance fee.”
- Legislative Intent: The fact that the term is isolated to Title 9 proves that the legislature intended it to be a municipal-only tool. Municipalities have broad “Home Rule” powers that special districts—as limited, special-purpose governments—do not possess.
- The “Ultra Vires” Argument: If a special district is using the term “special maintenance fee” on their tax certifications to the Auditor, they are using a legal authority that does not belong to them. They are essentially pretending to be a city to bypass the strict procedural “guardrails” of a true special assessment.
Summary: The search confirms that the “Special Maintenance Fee” is a creature of municipal law. Any special district board claiming they have the right to impose this specific fee is operating without a statutory foundation.