Green v. Sussex County

• Decision Date: 17 February 1995
• Docket Number: 92A-06-007 and 93A-12-002,Nos. 91A-12-001,s. 91A-12-001
• Court: Delaware Superior Court
• Parties: William S. GREEN, Paul Klinkowski and Miles Weigold (in respect to 1993 assessment only), Plaintiffs, v. SUSSEX COUNTY, Delaware, Defendants. Town of Bethany Beach, Intervenors. C.A. . Submitted:

Page 770

668 A.2d 770

William S. GREEN, Paul Klinkowski and Miles Weigold (in respect to 1993 assessment only), Plaintiffs, v. SUSSEX COUNTY, Delaware, Defendants Town of Bethany Beach, Intervenors.

C.A. Nos. 91A-12-001, 92A-06-007

and 93A-12-002.

Superior Court of Delaware Sussex County.

Submitted: Feb. 17, 1995.

Decided: May 1, 1995.

Upon Consideration of Cross Motions for Summary Judgment.

Karl Haller, Haller & Hudson, Georgetown, for Plaintiffs.

William S. Green, Bethesda, Maryland, pro se.

Dennis Schrader, Wilson, Halbrook & Bayard, Georgetown, for Sussex County.

Thomas I. Barrows, Hudson, Jones, Jaywork, Williams & Liguori, Dover, for Bethany Beach.

TERRY, Resident Judge.

Sussex County Council created the Bethany Beach Sanitary Sewer District pursuant to 9 Del.C. Ch. 65 in 1970 for the purpose of providing sewer service to the residents of Bethany Beach; the boundaries of the district being the corporate limits of the town. In accordance with the statutory scheme, an annual assessment calculated on front footage was levied on each of the properties benefited by the sewage facilities for the purpose of retiring the debt which the county incurred in order to construct the facilities.

In 1986 the boundaries of the district were expanded in accordance with the provisions found at 9 Del.C. § 6502 so as to encompass a larger area which extended from the northern boundary of Bethany Beach to the Indian River Inlet which was called the North Bethany Expansion. The legality of the expansion was challenged in a suit filed by some of the residents of the area (including the wife of one of the plaintiffs in this case) and was eventually settled by a stipulation which dismissed the action in return for an agreement by the county to limit the density of future development in the expansion area. The county then proceeded to sell bonds and constructed sewage facilities in the North Bethany Expansion area. Rather than run a direct line to the treatment plant, the new facilities constructed in the expansion area were connected for sewage transportation purposes to the existing sewage disposal facilities which had been previously constructed for the original Bethany Beach Sanitary Sewer District. Another expansion area called Sussex Shores was similarly incorporated into the Bethany Beach Sanitary Sewer District and was also provided with sewage disposal facilities and connected to the original sewage facilities.

The Bethany Beach Sanitary Sewer District is one of eight sanitary sewer districts created and operated by the Sussex County Council. Each district is assessed annually by the county pursuant to 9 Del.C. § 6513 in amounts sufficient to raise the necessary funds to make the annual payments on the bonds issued to finance the cost of constructing the sewage facilities for each district. The amount assessed to each district is collected by levying a charge on the properties benefited therein calculated on the front foot method through the adoption of assessment rolls each year after a public hearing.

The Bethany Beach Sanitary Sewer District assessment roles for the years 1991, 1992 and 1993 adopted by the Sussex County Council provided for different rates of assessment for each of the three regions within the district. Properties in the original Bethany Beach Sanitary Sewer District which encompasses the town of Bethany Beach were assessed $0.69 per front foot in 1991, whereas properties in the Sussex Shore portion of the Bethany Beach Sanitary Sewer District were assessed $5.02 and properties in the North Bethany Expansion area were assessed $13.09. This discrepancy has continued in slightly varying amounts up to the present.

The county's policy is to assess the cost of facilities against those properties which are benefited by the facilities. The original Bethany Beach Sanitary Sewer District facilities for the area covered within the limits of the town of Bethany Beach were constructed a number of years back when construction costs were cheaper and governmental grants abundant. When the Bethany Beach Sanitary Sewer District was expanded to bring in the North Bethany and Sussex Shores areas, the original district already had facilities in the ground and the residents of the original area were paying a relatively low annual debt service to retire the bonds issued to construct their facilities. The county had to sell other bond issues to build the facilities for the North Bethany and Sussex Shores areas at a time when grants had shrunk dramatically and costs had risen. The county's policy was and is to assess costs against the North Bethany Expansion area and Sussex Shores so that properties in each area would retire the debt actually incurred for their facilities while the properties in the older Bethany Beach area would continue to retire the debt for their facilities. ¹ This goal was accomplished by creating subdivisions within the Bethany Beach Sanitary Sewer District whereby the assessments per front foot would differ between the three identifiable areas.

The plaintiffs who own properties in the North Bethany Beach Expansion area filed a complaint for a declaratory judgment and also sought a writ of certiorari for the purpose of invalidating the assessment policy on the theory that they are entitled to have the annual assessments equalized throughout the entire district. Such an equalization would lead to a dramatic rise in the charge to each property in the original area and an even larger drop in the charge to each property in the expansion area. Both sides have filed motions for summary judgment and the simplest way to decide this matter is to consider it in the context of the writ of certiorari first and the declaratory judgment action second. ²

Certiorari

A number of Delaware decisions have made it clear that the Superior Court may review the legality of property assessments on a common law writ of certiorari. Delaware Barrel & Drum Co. v. Mayor, etc., of Wilmington, Del.Super., 175 A.2d 403 (1961). The scope of review, however, is limited to correct errors of law; to review proceedings not conducted according to law; and to restrain an excess of jurisdiction, all of which must appear on the record. The transcript of the evidence below is not part of the reviewable record and the Court cannot examine the transcript in order to evaluate the adequacy of the evidence which supports the conclusion rendered below. Goldstein v. City of Wilmington, Del.Supr., 598 A.2d 149 (1991); Shoemaker v. State, Del.Supr., 375 A.2d 431 (1977); Matter of Butler, Del.Supr., 609 A.2d 1080 (1992); Brandywine Securities, Inc. v. Department of Licenses and Inspection, City of Wilmington, Del.Super., 1993 WL 18784, C.A. No. 92A-05-012, Toliver, J. (Jan. 22, 1993); Rodenhiser v. Department of Public Safety, Del.Super., 137 A.2d 392 (1957).

In respect to the plaintiff's writ of certiorari, I will consider that the record consists of the assessment rolls duly adopted by resolution of the Sussex County Council for the years 1991, 1992 and 1993 and I will consider whether by adopting them the council has exceeded its power or otherwise acted contrary to law.

Thus, the question is whether the county council can levy higher assessments on properties in one part of a sanitary sewer district than it levies on those in another or, conversely, do the rates of assessment of properties in the same sanitary sewer district have to be equal? The county's rationale is that differences in assessment rates are necessary to further a policy that residents of an area which is being connected to existing sewage disposal facilities will pay the cost of the new facilities with which they are provided, so that users of an existing sewage system will not be required to subsidize the extension of the system to new users.

The starting point is the statute under which the assessments are levied. At 9 Del.C. § 6513 (which was enacted in 1965) it says:

a. The county government each year, at a time to be fixed by it, shall, after a public hearing, establish an annual assessment roll for the sanitary sewer or water district which shall be known as the "Sanitary Sewer District Assessment," or "Water District Assessment." b. The total amount assessed for each year shall be sufficient to provide funds required to reimburse the County for sums to be expended for retiring the bonds which have been issued, for the payment of the interest due on the bonds, for maintaining or improving the sewerage or water system and for paying the necessary general expenses of the sanitary sewer or water district.

The General Assembly subsequently enacted 9 Del.C. § 7001(a) in 1970 which granted home rule to Sussex County by conferring on Sussex County Council "all the powers which, under the Constitution of the State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute." The General Assembly also provided at § 7001(b) that the powers under this reorganization law "shall be construed liberally in favor of the county."

Thus, it is apparent that the county has the specific statutory authority by virtue of 9 Del.C. § 6513 to establish an assessment roll for a sanitary sewer district and by virtue of 9 Del.C. § 6514 to collect the annual assessments as the county collects other county taxes. The county does not have specific statutory authority to adopt an assessment roll which levies different rates of assessment between subdivisions within a sanitary sewer district in order to further the county's policy as stated above.

Historically, counties, being political subdivisions of the State, have been considered to have only those powers expressly delegated to them by the General Assembly. Indeed, that is the thrust of the cases cited by plaintiffs of which State v. Penn Central, Del.Super., 445 A.2d 939 (1982) and Mayor v. Smentkowski, Del.Supr., 198 A.2d 685 (1964) are good examples. However, with...