Home Builders Ass'n of Greater Salt Lake v. Provo City, 12819

• Decision Date: 17 November 1972
• Docket Number: No. 12819,12819
• Citation: 28 Utah 2d 402,503 P.2d 451
• Parties: d 402 HOME BUILDERS ASSOCIATION OF GREATER SALT LAKE, a corporation, et al., Plaintiffs and Appellants, v. PROVO CITY, a municipal corporation of the State of Utah, Defendant and Respondent.
• Court: Utah Supreme Court

Page 451

503 P.2d 451

28 Utah 2d 402

HOME BUILDERS ASSOCIATION OF GREATER SALT LAKE, a corporation, et al., Plaintiffs and Appellants, v. PROVO CITY, a municipal corporation of the State of Utah,

Defendant and Respondent.

No. 12819.

Supreme Court of Utah.

Nov. 17, 1972.

LaVar E. Stark, Ogden, for plaintiffs and appellants.

Glen J. Ellis, Provo, for defendant and respondent.

CALLISTER, Chief Justice:

Plaintiffs initiated this action, claiming the right to recover certain sewer connection fees, on the ground that such sums were exacted under an invalid ordinance of Provo City. Based on the pleadings, depositions, and exhibits, plaintiffs moved for summary judgment, which the trial court denied on the ground that the ordinance was valid and within the power of the city to enact and that it was constitutional. Judgment was entered in favor of defendant, and plaintiffs appeal therefrom.

On August 18, 1970, Provo City Commission enacted an ordinance, which imposed a connection fee of $100 for each living unit of newly constructed buildings connecting to the existing sewer system.

The ordinance was a result of certain detailed engineering studies, which recommended a service connection fee in addition to the existing monthly sewer charge, to provide the requisite funds to improve and enlarge the sewer system. The figure of $100 was derived by dividing the number of sewer connections into the net value of the system. The monies from this connection fee together with the monthly sewer service fee and federal grants are deposited in the Sewer Disposal Operating Fund. This fund is used to pay for new collector trunk lines, replacement of existing sewer lines, enlargement of the sewage treatment plant, retirement of certain bonded indebtedness on the sewers, and general operating expenses.

On appeal, plaintiffs urge that this sewer connection fee, which exceeds the cost of inspection or regulation, is a revenue measure, which the city was not authorized by the relevant statutory provisions to enact. Plaintiffs contend that under Sec. 10--8--38, U.C.A., 1953, as amended (the statute in effect at the time the ordinance was enacted) only a monthly sewer service fee is authorized and that the power to exact a sewer connection fee may not be implied thereunder. The relevant provisions of § 10--8--38, U.C.A., 1953, as amended 1969, specify:

Any city or town may, for the purpose of defraying the cost of construction, reconstruction, maintenance or operation of any sewer system or sewage treatment plant may make a reasonable charge for the use thereof . . . (Emphasis added.)

In Murray City v. Board of Education of Murray City School District ¹ this court denied the characterization of a sewer charge and connection charge ² as a revenue measure and stated that such charges are neither taxes nor assessments but payments for services furnished. ³ Provo City was within its statutory authorization to exact a reasonable charge for the right to connect and use the sewer system.

Plaintiffs further urge that the ordinance is unconstitutional in that it exacts from a single class of the population, funds to defray expenses which should be borne by the entire community equally, i.e., the connection fees go into a fund that finances the development, expansion, and rebuilding of the entire sewer system. Plaintiffs cite as authority to sustain their argument Weber Basin Home Builders Ass'n v. Roy City, ⁴ wherein this court upheld the determination of the trial court that an increment from $12 to $112 in the flat-fee charge for a building permit, which was for the declared purpose of raising general revenue for the city, placed a disproportionate and unfair burden on new households, as compared to the old ones, in the maintenance of the city and was consequently discriminatory and constitutionally impermissible.

The instant action is distinguishable in that the charge is for a service rendered and not a revenue measure. In Hayes v. City of Albany, ⁵ the court held that the city had power to levy a sewer connection charge reasonably commensurate to meet the burden currently imposed or reasonably to be anticipated upon the city's sewage disposal system and that the ordinance providing for such a charge was a valid exercise of that power. The court cited Weber Basin Home Builders Ass'n v. Roy City ⁶ and explained that in that case the funds derived went into the general fund of the municipality and thus might be used for...