Gaut v. City of Southfield

• Decision Date: 30 August 1972
• Docket Number: No. 7,7
• Citation: 200 N.W.2d 76,388 Mich. 189
• Parties: Merlin GAUT et al., Plaintiffs-Appellants, v. CITY OF SOUTHFIELD, a Michigan corporation, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 76

200 N.W.2d 76

388 Mich. 189

Merlin GAUT et al., Plaintiffs-Appellants, v. CITY OF SOUTHFIELD, a Michigan corporation, Defendant-Appellee.

No. 7.

Supreme Court of Michigan.

Aug. 30, 1972.

James E. Wells, Detroit, for plaintiffs and appellants.

Sigmund A. Beras, Southfield, City Atty., Southfield, for appellee.

Before the Entire Bench.

BRENNAN, Justice.

This action was commenced in the circuit court for Oakland County for a declaratory judgment invalidating a special assessment for sewer construction.

The gist of the action is that plaintiff property owners, and others similarly situated, have been denied The right to veto the construction of the sewer, pursuant to an ordinance of the City of Southfield, and further that they have been denied the opportunity to be heard before the City Council on the necessity for the improvement as required by ordinance.

Finally, plaintiffs claim that if they are not entitled to such hearing, the entire special assessment procedure is invalid as violating the equal protection clauses of State and Federal Constitutions.

Both parties sought summary judgment in circuit court. Defendant prevailed, and the summary judgment in defendant's favor was affirmed by the Court of Appeals, 34 Mich.App. 646, 192 N.W.2d 123.

The sewer involved is formally designated Sanitary Lateral System #7. Construction of the sewer has long since been completed, and presumably, the sewer is now in operation.

There is no dispute that the sewer was constructed by the County of Oakland through its Department of Public Works, under contract with the City of Southfield. Statutory authority for such an arrangement is contained in M.C.L.A. § 123.742; M.S.A. § 5.570(12); and M.C.L.A § 123.743; M.S.A. § 5.570(13). These statutes provide:

'Sec. 12. (1) The county operating under this act and any 1 or more municipalities including the county itself may enter into a contract or contracts for the acquisition, improvement, enlargement or extension of a water supply, a sewage disposal or a refuse system or the making of lake improvements and for the payment of the cost thereof by such contracting municipalities, with interest, over a period not exceeding 40 years.

'(2) In any such contract or contracts each contracting municipality shall pledge its full faith and credit for the payment of its obligations thereunder and if the municipality has taxing power, shall each year levy a tax, which shall not be within any statutory or charter limitation, in an amount which, taking into consideration estimated delinquencies in tax collections, will be sufficient for the prompt payment of that part of the contract obligations as shall fall due before the following year's tax collection. For the payment of contractual obligations incurred pursuant to this act, township shall levy a tax only on the taxable property in the unincorporated areas of the township unless the township and a village have agreed that a part of the capacity in the county system allocated to the township by contract pursuant to this act will be used to serve areas in a village located wholly or partly within the township and the village has not itself agreed to purchase such capacity in the county system. If any contracting municipality at the time of its annual tax levy shall have on hand in cash any amount pledged to the payment of the current obligations for which the tax levy is to be made, then the annual tax levy may be reduced by that amount. For the purpose of obtaining such credit, funds may be raised by any municipality in any 1 or more of the following methods:

'(a) By service charges to users of the system or lake improvements.

'(b) By special assessment upon lands benefited.

'(c) By the exaction of charges for the connection of properties, directly or indirectly, to the system.

'(d) By setting aside any state collected funds disbursed to the municipality and usable therefor.

'(e) By setting aside any other available moneys.

'The foregoing tax requirements when applied to a county or township shall be subject to any constitutional tax limitation or any lawful increase thereof. Any municipality may agree to raise all or any part of its contract obligation by any 1 or more of the foregoing methods which may be available. The various powers in this act granted to any municipality shall be exercised by its governing body. Any contract heretofore entered into which complies with the provisions of this act, as now amended, is hereby validated.

'Sec. 13. When the board of public works shall determine to spread all or part of the cost of a project to a special assessment district, it shall proceed as provided in chapter 2 of this act. If a municipality other than a county operating under this act elects to raise moneys to pay all or any portion of its share of the cost of a project by assessing the same upon benefited lands, its governing body shall so determine by resolution and fix the district therefor. The governing body shall then cause a special assessment roll to be prepared and thereafter the proceedings in respect to the special assessment roll and the making and collection of the special assessments thereon, shall be in accordance with the provisions of the statute or charter governing special assessments in the municipality, except that the total assessment may be divided into any number of installments not exceeding 30, and any person assessed shall have the right at the hearing upon the special assessment roll to object to the special assessment district previously established in which event due consideration shall be given to the objections.'

Chapter 2 of the Act, referenced in section 13 above, provides in part as follows:

'Sec. 22. The board of public works shall cause to be prepared by a registered engineer, plans showing the project and an estimate of the cost thereof. Upon receipt of such plans and estimate the board of public works shall order the same to be filed with the director of public works and if it shall desire to proceed with the said project, it shall by resolution tentatively so declare and also tentatively designate the special assessment district against which the cost of the project is to be assessed. The board of public works shall then fix a time and place when and where it will meet and hear any objections to the improvement and to the special assessment district therefor, and shall cause notice of the hearing to be given by the publication thereof twice prior to the hearing in a newspaper circulating in the special assessment district, the first publication to be at least 10 days prior to the time of the hearing. The notice shall state that the plans and estimate are on file with the director of public works for public examination and shall contain a description of the proposed special assessment district. At the time of the hearing, or at any adjournment thereof which may be without further notice, the board of public works shall hear any objections to the improvement and to the special assessment district. The board of public works may revise, correct, amend or change the plans, the estimate of cost or the special assessment district. No final action shall be taken in respect to the addition of any property to the district or to increasing the estimated cost in excess of 10% Of the original estimate, until after a new hearing upon notice given as above provided.' M.C.L.A. § 123.752; M.S.A. § 5.570(22).

'Sec. 24. When any special assessment roll shall have been made the same shall be filed in the office of the director of public works. Before confirming the assessment roll the board of public works shall fix a time and place when it will meet and review the same and hear any objections thereto, and shall cause notice of the hearing and of the filing of the assessment roll, to be published twice prior to the hearing in a newspaper circulating in the special assessment district, the first publication to be at least 10 days before the hearing. The hearing may be adjourned from time to time without further notice. Any person objecting to the assessment roll shall file his objection thereto in writing with the director of public works before the close of the hearing or within such further time as the board may grant. After the hearing the board of public works may confirm the special assessment roll as reported to it or corrected by it, or may refer it back for revision, or may annul it and direct a new roll to be made. When a special assessment roll shall have been confirmed the secretary of the board shall indorse thereon the date of confirmation. After the confirmation the special assessment roll and all assessments thereon shall be final and conclusive unless attacked in a court of competent jurisdiction with 30 days after the date of confirmation.' M.C.L.A. § 123.754; M.S.A. § 5.570(24).

The ordinance of the defendant City governing special assessments is No. 147. It contains these provisions:

'Section 3. To Initiate Special Assessment Projects:

'Proceedings for the making of local public improvements within the City may be commenced by resolution of the Council, on its own initiative or by an initiatory petition signed by property owners whose aggregate property in the special assessment district was assessed for not less than 60% Of the total assessed value of the privately owned real property located therein, in accordance with the last preceding general assessment roll; Provided However, that in the case of special assessments for paving or similar improvements which are normally assessed on a frontage basis against abutting property, such petitions shall be signed by the owners of not less than 60% Of the frontage property to be assessed.

'Such petitions shall contain in addition to the signatures of the owners, a brief description of the property owned by the respective signers thereof.

'Such petitions shall be verified by the affidavit of one or more of the owners or by some...