Downtown Rutland Special Tax Challengers v. City of Rutland

• Decision Date: 14 August 1992
• Docket Number: No. 91-125,91-125
• Citation: 159 Vt. 218,617 A.2d 129
• Court: Vermont Supreme Court
• Parties: DOWNTOWN RUTLAND SPECIAL TAX CHALLENGERS, Bruce Utley and George H. Looker v. CITY OF RUTLAND, The Rutland Redevelopment Authority, Ronald Graves, The City Treasurer, and Vernon Richards, City Tax Collector.

Page 129

617 A.2d 129

159 Vt. 218

DOWNTOWN RUTLAND SPECIAL TAX CHALLENGERS, Bruce Utley and George H. Looker v. CITY OF RUTLAND, The Rutland Redevelopment Authority, Ronald Graves, The City Treasurer, and Vernon Richards City Tax Collector.

No. 91-125.

Supreme Court of Vermont.

Aug. 14, 1992.

Motion for Reargument Denied Sept. 14, 1992.

Brian P. Dempsey, Castleton, for plaintiffs-appellants.

John Paul Faignant and Robin S. Richards of Miller & Faignant, Rutland, for defendant-appellee Rutland Redevelopment Authority.

Frank H. Zetelski, City Atty., Rutland, for defendants-appellees City of Rutland, Graves and Richards.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiffs, owners of property within a special assessment district in the City of Rutland, appeal from a superior court order denying their request to declare the assessment void and enjoin its implementation. They argue that the Rutland Redevelopment Authority (RRA) violated various statutory and constitutional provisions when it created the district and imposed the special assessment. We hold that the RRA failed to follow applicable statutory requirements and therefore reverse and remand.

In early 1989, the voters of the City of Rutland approved a revised city charter that provided for the creation of the RRA. The new charter was duly adopted by the Legislature and signed by the Governor. Among the enumerated RRA powers was the following, which is the focus of the instant dispute: "[t]o assess, in the name of the City of Rutland, impact fees and special benefit assessments within those parts of the City of Rutland designated by the Board of Aldermen." 1989, No. M-8, § 36-4(c). Although the Board of Aldermen designated the entire city as the special assessment district, the RRA proposed an ordinance imposing a special benefit tax only on property located in the downtown district. After conducting hearings and making various revisions to the district boundary, the RRA unanimously adopted the ordinance. The City's voters did not vote on the special assessment district, and the owners of property within the district did not consent in writing to the assessment.

The ordinance established the tax rate for the special district as "an amount no greater than twenty-five percent of the property tax levied and assessed" and provided for annual assessments. For the first year, beginning July 1, 1990, the RRA set the rate at 16.75%. Planned benefits for the district included promotion of the downtown area through special events, advertising, landscaping, and the installation of park benches, signs, and waste receptacles.

Plaintiffs sought to enjoin the RRA and the City from implementing the special assessment and to have the assessment declared void on various procedural and substantive grounds. They argued that (1) the RRA failed to adhere to the provisions of Title 24 chapter 87 when imposing the special assessment, (2) the Board of Aldermen, not the RRA, should have designated the special assessment district, (3) certain members of the RRA's Board of Commissioners violated the charter's conflict of interest provision because they owned land within the district, (4) the RRA derived no authority from either Title 24 chapter 85 or 24 V.S.A. § 2744 for the assessment, (5) the ordinance violates the common law of special assessments, and (6) the assessment violates provisions of both the Vermont and United States constitutions. We address the first two of these issues and do not reach the others.

As a preliminary matter, we note that the authority delegated by the Legislature to a municipality to levy special assessments is strictly construed, and that reasonable doubts regarding such authority will be resolved in favor of the taxpayer. Garden Development Co. v. City of Hastings, 231 Neb. 477, 480, 436 N.W.2d 832, 834 (1989); 14 E. McQuillin, Municipal Corporations § 38.07, at 62 (1987).

We agree with plaintiffs that the RRA should have followed the mandates of chapter 87 of Title 24 before imposing the special assessment. Section 3254 of that chapter provides that a special assessment "shall be levied only by vote of a majority of the qualified voters of the municipality." 24 V.S.A. § 3254. No vote is required "if all of the owners of record of property to be assessed ... consent in writing to the assessment." Id. Here, the RRA did not obtain voter approval or owner consent before implementing the special assessment. Defendants claim, and the trial court agreed, that chapter 87 did not apply because the grant of authority from the Legislature to the RRA conflicted with the provisions of the chapter. We conclude that the superior court erred when it found the charter provision and chapter 87 to be in conflict and ruled that the charter, as the more specific and later enactment, prevailed.

We find no conflict. The charter delegates to the RRA the necessary authority to make special assessments. See Welch v.Town of Ludlow, 136 Vt. 83, 87, 385 A.2d 1105, 1108 (1978) (municipality has no powers beyond those specifically authorized by the Legislature). The charter does not, however, set forth any procedures for how that authority is to be carried out. Chapter 87, on the other hand, establishes the purposes for special assessments and the procedures for their levy....