Haymes v. Holzemer

• Citation: 445 N.E.2d 681,3 Ohio App.3d 377
• Parties: , 3 O.B.R. 441 HAYMES et al., Appellees, v. HOLZEMER et al., Appellants. *
• Decision Date: 09 October 1981
• Court: Ohio Court of Appeals

Page 377

3 Ohio App.3d 377

445 N.E.2d 681, 3 O.B.R. 441

HAYMES et al., Appellees, v. HOLZEMER et al., Appellants. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

Oct. 9, 1981.

Syllabus by the Court

1. Where a major waste water treatment plant is constructed but the board of county commissioners levy tap-in and user charges after the completion of said construction, the board's failure to comply strictly with the mandate of R.C. 6117.02 (i.e., that "prior to such connection, such charges shall either be paid in full, or, * * * provision * * * made for payment in installments * * * ") renders the tap-in fees improper and unlawful.

2. Governmental authorities have broad discretion in establishing fees and rates and in maintaining financing schemes to support sewer systems. Such fees and rates must be reasonable with the methods and manner of financing such systems left largely with the authorities.

3. It is permissible for a board of county commissioners to use connection or tap-in charges to recoup the costs of sewer systems construction without assessment procedures and charges being implemented first. The assessment procedure under R.C. 6117.30 and 6117.31 is not the exclusive method to recoup such costs.

4. A board of county commissioners has the power to directly inject debt service charges for sewer systems construction costs into the computation of the total user charges.

William Moore and Willard Johnson, Toledo, for appellees.

Paul Goldberg and Mary Trimboli, Toledo, for appellants.

CONNORS, Presiding Judge.

This cause comes upon appeal from the granting of a motion for summary judgment in favor of plaintiffs-appellees by the Common Pleas Court of Lucas County, Ohio.

This cause of action arises from the billing procedure employed by the Board of Lucas County Commissioners for sewer service. Sewer charges were levied on certain landowners, the appellees herein, pursuant to County Resolutions 98, 99 and 100. Two types of charges are in issue. The first is a "tap-in" fee in the amount of $250 per dwelling unit. The second is a "user" charge in the amount of $132 per year per dwelling unit. Both charges stem from the construction of the Jerome Road sanitary sewage treatment plant and sanitary sewer 500 C, which presently service appellees, and a rather large area in the western portion of Lucas County.

Prior to the construction of the Jerome Road Plant, appellees were serviced by a package sewage treatment plant. A development company constructed the "package plant" at its expense, prior to the development of the subdivision in which appellees' property is located. The costs of the plant were passed on to the purchasers of the lots. On March 13, 1964, the developer and the Lucas County Commissioners agreed that Lucas County would assume ownership and operation of the package plant.

On June 10, 1970, the Board of Lucas County Commissioners (hereinafter referred to as board) enacted a resolution providing for the construction of a major waste water treatment plant at Jerome Road. This resolution was repealed on January 19, 1978, and in its place the county commissioners enacted Resolutions 98, 99 and 100 which, taken together, established regulations governing the operation of said Jerome Road plant and its tributaries, established charges for the use thereof, and established tap-in charges.

It was not until after construction of the new plant and connectors, when the effluent from the package plant was diverted to the connector and then into the Jerome Road Plant, that the county levied the tap-in and user charges enacted under Resolutions 98, 99 and 100 on the property in question. The appellee property owners objected to both charges and filed suit. The Common Pleas Court of Lucas County, in a judgment entry dated November 26, 1980, granted summary judgment in favor of appellees on the first two issues, the court holding that the Board of County Commissioners is prohibited by statute from levying a connection (tap-in) charge on property owners for the privilege of connecting into the county sewer system when such charges are utilized to recoup the cost of construction of the county's sewer system. The court also held that the board was statutorily prohibited from injecting a $7.74 amount into the user charge, such amount representing a monthly debt service charge used to assist in amortizing the cost incurred in the construction of the sewer and treatment facility. From this decision and judgment entry appellants now appeal.

Appellants' first assignment of error states the following:

"The trial court erred in holding that the tap-in charge levied on the plaintiffs was improper in that the Board of County Commissioners of Lucas County failed to follow the precise procedures specified in R.C. 6117.02."

R.C. 6117.02 states, in pertinent part:

"The board shall also establish reasonable charges to be collected for the privilege of connecting to the sewers or sewerage treatment or disposal works of the district with the requirement that prior to such connection, such charges shall either be paid in full, or, if determined to be equitable by the board in its resolution providing for the payment of such charges, provision deemed adequate by the board shall be made for payment in installments at such times and in such amounts and with such security, carrying charges, or penalties as may be found by the board in such resolution to be fair and appropriate, and no person shall be permitted to connect to the sewers or sewerage treatment or disposal works of the district until such charges have been paid in full, or until such provision for payment in installments has been made. * * * " (Emphasis added.)

In the instant case, the trial court held that the tap-in charge levied on the appellees was improper under R.C. 6117.02, the court stating that R.C. 6117.02 "provides that prior to the tap-in the charge shall be paid in full or the county may provide for an installment payment procedure by provision in its resolution * * *. It is apparent that the Board made no payment collection arrangement prior to the tap-in * * *. The Board's failure to comply with the strict mandate of O.R.C. 6117.02 renders the tap-in fee improper in this case."

The trial court's findings are supported by the case of Parente v. Day (1968), 16 Ohio App.2d 35, 241 N.E.2d 280 . In Parente, the County Commissioners of Cuyahoga County adopted a resolution which authorized construction of a sewage treatment plant and created an assessment district in the city of Brecksville. Four years later, after the tap-ins had been completed, the board of county commissioners, for the first time, established a schedule of tap-in charges for the homes owned by the plaintiffs. The plaintiff homeowners then petitioned the court to enjoin collection of the tap-in charges. The Cuyahoga County Court of Appeals held that the failure to follow the requirements of R.C. 6117.02 made the tap-ins improper and unlawful, for R.C. 6117.02 required that such charges be made at or prior to the time of the tap-in. See, also, New Landing Utility v. Illinois Commerce Comm. (1978), 58 Ill.App.3d 868, 16 Ill.Dec. 705, 375 N.E.2d 578.

Based on the clear language of R.C. 6117.02 and the case of Parente v. Day, supra, this court affirms the findings of the trial court, and appellants' first assignment of error is found not well taken.

Appellants' second assignment of error states:

"The trial court erred as a matter of law in holding that the tap-in charge is, in reality, an assessment."

The trial court made the following findings:

"Even if the Court had found the Board in compliance with R.C. 6117.02, the tap-in fee could not be upheld as the present charge is, in reality, an assessment. R.C. 6117.02 also requires that the funds collected 'be used first for the payment of the cost of the management, maintenance, and operation' of the sewerage treatment plant, 'and second for the payment of interest or principal of any outstanding debt incurred for the construction' of the sewerage treatment plant. (Emphasis added.) Yet in County Resolutions 98 and 99 it is expressly provided that funds collected from the tap-in fee be directly applied to payment of the construction costs. See Exhibit 2 at 3 and 3 at 12. This contravenes R.C. 6117.02 which requires payment of operation and maintenance expenses first. * * * The Board argues that there is no language in R.C. 6117 where it specifically declares an assessment procedure as the sole means to pay construction costs. By implication, however, it is clear to the court that a tap-in charge is not proper in this case. * * * Thus, assessment was the appropriate procedure where the proceeds were to pay solely for the costs of construction."

Hence, the trial court, in effect, ruled that the tap-in or connection charge is not the proper means to recoup the costs of construction of the sewer system. Where it is attempted to recoup the costs of construction, the trial court ruled that the assessment procedure is the appropriate means.

However, R.C. 6117.02 states, in pertinent part:

"All moneys collected as rents for use of such sewers or sewerage treatment or disposal works or as connection charges in any sewer district shall be paid to the county treasurer and kept in a separate and distinct fund * * *. [S]uch funds shall be used first for the payment of the cost of the management, maintenance, and operation of the sewers of the district and sewerage treatment or disposal works used by the district and second for the payment of interest or principal of any outstanding debt incurred for the construction of such sewers or sewerage treatment * * *." (Emphasis added.)

Furthermore, R.C. 6117.02 continues in the following manner, the statute stating:

"No provision of this section shall limit or restrict the power and discretion of the board to determine how much of the cost of such improvements shall be borne by...