Buda v. Town of Masontown

Decision Date22 March 2005
Docket NumberNo. 31779.,31779.
Citation617 S.E.2d 831
PartiesJuanita BUDA, James and Pamela Friend, James and Janice Polce, Harold and Donna Rehe, and Terry and Sharalyn Shreve, Plaintiffs Below, Appellants, v. TOWN OF MASONTOWN, Defendant Below, Appellee.
CourtWest Virginia Supreme Court

Melvin C. Snyder, III, Esq., Kingwood, for Appellants.

Sheila Kae Williams, Esq., Kingwood, for Appellee.

The Opinion of the Court was delivered PER CURIAM.

PER CURIAM.

Appellants appeal the April 25, 2003, order of the Circuit Court of Preston County that denied Appellants' complaint for declaratory judgment and ruled that Appellee Town of Masontown complied with all notice requirements prior to its approval of a new sewer system to which Appellants are compelled to connect. For the reasons that follow, we affirm the circuit court.

I. FACTS

Appellants and plaintiffs below1 are Preston County citizens who live a short distance outside of Appellee Town of Masontown (hereafter "Appellee," "Masontown," or "Town"). Appellee avers that Appellants are residents of an unincorporated area known as the Bretz area.2 Appellants, on the other hand, claim that they do not live in the Bretz area but that their area of residence is separated from Masontown by the Bretz area. The parties agree, however, that Appellants do not live within the corporate limits of Masontown. Appellants are not currently connected to any sewer system, but instead have individual septic systems.

On December 21, 1999, Appellee filed with the Public Service Commission (hereafter "PSC") an application for a certificate of convenience and necessity for the construction of a new sewer system. On January 5, 2000, a legal notice of Masontown's application for a certificate of convenience and necessity appeared in The Preston County Journal, a weekly newspaper of general circulation. By final order dated January 23, 2000, the PSC approved Masontown's application. The certificate of convenience and necessity indicates that the sewer project is funded through revenue bonds and grants pursuant to W.Va.Code § 16-13-1 et seq. The revenue bonds of Masontown were created by ordinance pursuant to W.Va.Code § 16-13-5 (1933) and adopted by Masontown's council on July 11, 2001. Pursuant to W.Va.Code § 16-13-6 (1981), legal notice of the ordinance was published in The Preston County Journal on July 18, and July 25, 2001, and a public hearing was held on the ordinance on July 30, 2001.

In July of 2002, Appellants filed a complaint for declaratory judgment in the Circuit Court of Preston County requesting the circuit court to declare that they could not be compelled pursuant to W.Va.Code § 8-18-22 (1999)3 to connect to Masontown's new sewer system. Under W.Va.Code § 8-18-22, the owner of a parcel which abuts on any street on which a municipal sewer is located may be compelled by the municipality to connect with the sewer4 even if the parcel of land is located outside of the municipality. In their complaint, Appellants argued that Masontown failed to give proper notice under W.Va Code § 8-18-3 (1969), prior to the Town's resolution to apply to the PSC for a certificate of convenience and necessity, that Appellants' properties would be affected by the new sewer system.

After oral argument and the submission of legal memoranda with accompanying documents and affidavits, the circuit court of Preston County denied Appellants' complaint for declaratory judgment. Specifically, the circuit court found that Masontown did not fund its sewer system by an assessment on abutting landowners. As a result, the notice provision of W.Va.Code § 8-18-3 does not apply. Instead, the circuit court found that the sewer system was funded with bonds and grants pursuant to W.Va.Code § 16-13-1. Accordingly, the notice provision in W.Va.Code § 16-13-6 (1981)5 is applicable. The circuit court concluded:

The Town of Masontown complied with all notice requirements under its application for Certificate of Convenience and Necessity and Revenue Bond Ordinance. While the matter of notices to Plaintiffs could have been better handled and could have been more specific, the Court finds and concludes that the Plaintiffs did have notice of [Masontown's] application for Certificate of Convenience and Necessity, did have the right to protest to the PSC, and did receive all notices required by the PSC and the West Virginia Code.

Shortly after the circuit court's ruling, Appellants received notices from Masontown that they must connect to the new sewer system. Appellants now appeal the circuit court's order denying them declaratory relief.

II. STANDARD OF REVIEW

This Court has held,

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With these standards in mind, we now review the circuit court's order.

III. DISCUSSION

The sole issue before this Court is whether Masontown gave proper notice to Appellants, prior to approval of its new sewer system, that Appellants would have to connect to the system. Appellants first assert that they were due personal notice and an opportunity to be heard under constitutional due process principles. According to Appellants, they have a property interest which is affected by the requirement that they connect to the new sewer system. Specifically, they will lose the value of their existing septic systems and will be required to permanently pay monthly sewage fees over which they have little or no control. Therefore, Appellants claim that Masontown was required to provide them with personal notice and a hearing on the proposed sewer system prior to the Town's application to the PSC for a certificate of convenience and necessity.

We find no merit to Appellants' constitutional argument. First, we do not believe that the mandatory connection to Masontown's new sewer system and the resulting abandonment of Appellants' septic systems constitute a taking for constitutional purposes. This Court long ago recognized that "[u]ncompensated obedience to a regulation enacted for the public safety, or which may hereafter be enacted, under the police power of the state, is not a taking or damaging without just compensation of private property, or private property affected with a public interest." Syllabus Point 7, City of Welch v. Norfolk & W. Ry. Co., 104 W.Va. 660, 140 S.E. 839 (1927). Clearly, it is within the police power of the State to regulate sewer systems and to delegate this power to subordinate public entities such as municipalities. See West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957) (holding that a municipal ordinance creating a sanitary board and authorizing this board to contract for the construction of a sewage system is within the police power of the State).

In Kingmill Valley Public Serv. v. Riverview, 182 W.Va. 116, 386 S.E.2d 483 (1989), we addressed the question of whether the owner of a private sewer system who has been compelled to join the sewer lines of a public service district may claim that the disuse of its system constitutes a de facto taking and recover its value from the public service district. In Kingmill, the appellant mobile home park alleged that the forced abandonment of its privately owned sewage treatment facility constituted an unlawful taking of private property in violation of Article III, Section 9 of the Constitution of West Virginia and sought to recover from the public service district the value of its system which the parties stipulated to be worth $33,700.00. This Court concluded that the mandatory connection to the public service district's sewer system and the forced abandonment of the private system was not a taking and held in Syllabus Point 1 that "[a]ll citizens hold property subject to the proper exercise of the police power for the common good. Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor." Accordingly, we find that Appellants' mandatory connection to Masontown's sewer system and the forced abandonment of Appellants' septic systems do not amount to a constitutional taking of Appellants' property.

Second, we conclude that Appellants were not due personal notice and a hearing under constitutional principles prior to Masontown's approval of its new sewer system. In the Kingmill decision noted above, this Court discussed the case of Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290, 57 L.Ed. 520 (1913). In Hutchinson, the City of Valdosta, Georgia, passed an ordinance requiring owners of homes abutting upon any street along which sewer mains had been laid to install toilets in their houses and to connect the same to the public sewer lines within 30 days from the date of passage of the ordinance. In reviewing this ordinance, the Supreme Court found that it was a valid exercise of the police power and that it did not deny due process even though it afforded no prior personal notice or an opportunity to be heard. The Court explained:

It is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith. . . . It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health.

Hutchinson, 227 U.S. at 308, 33 S.Ct. at 292. "Numerous state courts have followed [the Supreme Court's] holding that personal notice and a hearing are not required prior to ordering...

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