Ahearn v. BLOOMFIELD TP.

• Decision Date: 09 August 1999
• Docket Number: Docket No. 204335.
• Citation: 597 N.W.2d 858,235 Mich. App. 486
• Parties: Brian AHEARN, Virginia Grow, Emily Kay Murphy, Thomas N. Murphy, Ann Reed, Eleanor Whitson and Frank Whitson, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF BLOOMFIELD, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

597 N.W.2d 858

235 Mich. App. 486

Brian AHEARN, Virginia Grow, Emily Kay Murphy, Thomas N. Murphy, Ann Reed, Eleanor Whitson and Frank Whitson, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF BLOOMFIELD, Defendant-Appellee.

Docket No. 204335.

Court of Appeals of Michigan.

Submitted December 1, 1998, at Detroit.

Decided May 14, 1999, at 9:00 a.m.

Released for Publication August 9, 1999.

Hainer, Demorest & Berman, P.C. (by Mark S. Demorest), Troy, for the plaintiffs.

Secrest, Wardle, Lynch, Hampton, Truex and Morley (by William P. Hampton and Lanie Anderson), Farmington Hills, for the defendant.

Before: McDONALD, P.J., and JANSEN and TALBOT, JJ.

TALBOT, J.

Plaintiffs appeal as of right the circuit court's order granting defendant's motion for summary disposition. We affirm.

The material facts of this case are undisputed. During the late 1920s, the Oakland County drain commissioner constructed a combined storm water and sanitary sewer system in an area of the county that was primarily vacant. Today, those sewers (hereafter referred to as the Bloomfield Village System) serve residents and commercial establishments in portions of the city of Birmingham, the city of Bloomfield Hills, and the defendant Bloomfield Charter Township. The Bloomfield Village System carries storm water and untreated sanitary sewage into the Evergreen Farmington Sewage Disposal System (EFSDS), a facility operated by the Oakland County drain commissioner. From there, the untreated wastewater flows on to a treatment plant in the city of Detroit. Because of physical limitations of the EFSDS, the amount of wastewater defendant is permitted to discharge into the EFSDS at any given time is controlled by flow regulators within defendant's sewers. Other municipalities served by the EFSDS are subject to similar limitations.

During periods of heavy precipitation, the amount of wastewater in the Bloomfield Village System occasionally exceeds that which may be discharged into the EFSDS. When this happens, untreated sewage must be diverted elsewhere in order to prevent it from backing up into houses. This event, known as a combined sewer overflow (CSO), is a common problem associated with combined sewer systems. CSOs do not occur in separate (two-pipe) storm water and sanitary sewer systems because in two-pipe systems storm runoff does not mix with sanitary sewage. Until recently, CSOs occurring in the Bloomfield Village System were diverted directly into the Rouge River.

The Clean Water Act, 33 USC 1251 et seq., was passed by Congress in part to address the problems caused by CSOs. Pursuant to the National Pollutant Discharge Elimination System (NPDES) permit program established under that act, the Oakland County drain commissioner and the municipalities served by the Bloomfield Village System were required to take steps to abate the pollution of the Rouge River. In order to comply with the requirements of federal law—and in particular with a NPDES permit issued on October 12, 1992—the municipalities agreed to construct the ten-million-gallon Lincoln Hills CSO Retention Treatment Basin (RTB).¹ The RTB now serves as a repository for the excess wastewater that would otherwise have been diverted into the Rouge River. Wastewater diverted into the RTB is either held there until the flow rate decreases (at which time it is conveyed to the EFSDS), or treated and released into the river. The result is a cleaner Rouge River.

Construction of the RTB was financed by the drain commissioner through the sale of bonds. Each of the three municipalities using the RTB is responsible for paying its allocated share of the total cost of the project over a period of years. In order to raise money to pay its share, defendant created a special assessment district and adopted a special assessment roll in the amount of $8,887,016.² See M.C.L. § 280.490; MSA 11.1490. The special assessment district, which includes over two thousand residences, commercial establishments, and the Oakland Hills Country Club, is comprised of all of the parcels within the defendant township served by the Bloomfield Village System. Defendant levied rates ranging from $35 a year to $350 a year on each parcel within the district for a period of twenty years.³ All of the parcels inside the township but outside the boundaries of the special assessment district are served either by (1) a two-pipe sewer system, or (2) private septic systems. Accordingly, before construction of the RTB, the only sanitary sewage from the defendant township diverted into the Rouge River was that from those properties within the special assessment district.

Plaintiffs are a group of property owners residing within the special assessment district. In 1994, they brought a class action in the Oakland Circuit Court challenging the creation of the special assessment district. Although the class was never certified, the parties stipulated that defendant would adhere to the result of the action with respect to all of the property owners within the special assessment district. Defendant removed the case to federal court and moved for summary judgment. A federal district court granted defendant's motion for summary judgment, but its opinion was vacated by the Sixth Circuit Court of Appeals on the ground that the district court lacked removal jurisdiction. When the case was eventually remanded back to the Oakland Circuit Court, defendant moved for summary disposition pursuant to MCR 2.116(C)(10). The circuit court granted defendant's motion and plaintiffs brought this appeal.

On appeal, plaintiffs challenge the circuit court's decision to grant defendant's motion for summary disposition. We review de novo a trial court's decision regarding a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Summary disposition may be granted under MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Quinto v. Cross & Peters, 451 Mich. 358, 362, 547 N.W.2d 314 (1996). Because there is no factual dispute in this case, the question is simply whether defendant was entitled to judgment as a matter of law.

A special assessment is a levy upon property within a particular district. Kadzban v. Grandville, 442 Mich. 495, 500, 502 N.W.2d 299 (1993). Unlike a tax, which is imposed to raise revenue for general governmental purposes, a special assessment is designed to recover the costs of improvements that confer local and peculiar benefits upon property within a defined area. Id. Two requirements must be met in order for a special assessment to be deemed valid: (1) the improvement funded by the special assessment must confer a special benefit upon the assessed properties beyond that provided to the community as a whole, and (2) the amount of special assessment must be reasonably proportionate to the benefits derived from the improvement. See id. at 501-502, 502 N.W.2d 299; Dixon Rd. Group v. Novi, 426 Mich. 390, 398-403, 395 N.W.2d 211 (1986). In order for an improvement to be deemed to have conferred a "special benefit," it must cause an increase in the market value of the land specially assessed. Kadzban, supra at 501, 502 N.W.2d 299; Dixon Rd, supra at 400-401, 395 N.W.2d 211. A determination of increased market value is necessary to determine whether the benefit is proportionate to the cost incurred. Dixon Rd, supra at 401, 395 N.W.2d 211. The decisions of municipal officers regarding special assessments are presumed to be valid and "`generally should be upheld.'" Kadzban, supra at 502, 502 N.W.2d 299, quoting Dixon Rd, supra at 403, 395 N.W.2d 211.

Plaintiffs first contend that the special assessments are invalid because the RTB project conferred no special benefit on their property. We disagree. Plaintiffs assert that the only tangible benefit resulting from the RTB is a cleaner Rouge River. This benefit, they reason, has been conferred upon the community as a whole as much as it has upon those owning property within the special assessment district. Although we do not question the soundness of plaintiffs' reasoning, we believe they have overlooked the most direct and particularized benefit they receive from the RTB: it allows them to continue receiving sewer service from defendant. As a result of the change in federal law, defendant could not legally continue to provide sewer service to plaintiffs without first building the RTB or making an equivalent capital improvement. Plaintiffs admit as much in their brief on appeal, stating that "[t]he construction of the [RTB was] necessary for the Township to continue to operate its sewer system."

Despite this fact, plaintiffs contend that the change in federal law and the construction of the RTB had no practical effect on their use and enjoyment of the subject properties. Of course, plaintiffs' contention rests on the assumption that defendant had an affirmative duty to continue providing sewer service to them. Plaintiffs have offered no authority directly in support of this proposition.⁴ Moreover, we have found nothing to support the existence of such a duty. Cf. Kuriakuz v. West Bloomfield Twp., 196 Mich.App. 175, 177, 492 N.W.2d 757 (1992) (finding no duty to construct storm sewers); McSwain v. Redford Twp., 173 Mich.App. 492, 499-500, 434 N.W.2d 171 (1988) (finding no duty to construct sanitary sewers). While the NPDES permit obligated defendant to construct the RTB as a prerequisite to continued sewer service, it did not impose a duty to continue providing service. Accordingly, as a alternative to building the RTB, defendant could have discontinued sewer service to plaintiffs. Although it is highly unlikely that defendant would have elected to take this course of action, we must acknowledge that hypothetical possibility in order to view plaintiffs' claim in the proper perspective.

If defendant sought to provide new sanitary sewers to an area within the...