Kirchner v. Giebink
| Decision Date | 13 May 1988 |
| Docket Number | No. 85-431,85-431 |
| Parties | Gerard J. KIRCHNER; Franklin Kellogg and Marion Kellogg v. John C. GIEBINK and West Hill Development Corp. and Stowe Club Associates, et al. |
| Court | Vermont Supreme Court |
Stevens & Elliott, Stowe, for plaintiffs-appellants.
Lisman & Lisman, Burlington, for defendants-appellees Giebink and West Hill Development Corp.
David A. Barra of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees Dresser, O'Brien, Demeritt, Stowe Bd. of Selectmen, and Town of Stowe.
Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.
Plaintiffs, residents of Stowe, appeal from a superior court order dismissing their action to nullify an agreement between the Town and a developer with respect to expansion of the town sewage facility. We affirm in part and remand in part for further proceedings consistent with this opinion.
Following discussion at a regularly scheduled meeting, in May, 1985, the town selectmen entered an agreement with Stowe Club Associates (SCA), under which SCA's proposed hotel and condominium project could dispose of 40,000 gallons per day of its sewage at the municipal treatment plant if SCA agreed to pay for the costs of upgrading the plant's capacity from 200,000 to 250,000 gallons per day. The upgrade consisted mainly of constructing a flow equalization tank and a 1.5 mile sewer line to connect with the existing line. SCA agreed to convey the sewer connection line and other improvements to the Town. The Town agreed to obtain easements for the extended sewer line and to repay SCA for part of its costs should other users connect to the line.
Following execution of the agreement a petition was circulated calling for a town vote at a special town meeting. The trial court found that more than five percent of the town's registered voters signed the petition but the selectmen, on advice of counsel, declined to call such a meeting. Plaintiffs filed a class action in the Lamoille Superior Court in July, 1985, seeking a declaration that the agreement was invalid and an injunction against the selectmen and SCA acting on the agreement until it was approved by the voters. Plaintiffs sought relief on four main theories: (1) the agreement called for the "construction of a sewage disposal plant" and thus needs voter approval under 24 V.S.A. § 3618; (2) because 5% of the voters signed a petition demanding a special town meeting on the agreement, such a meeting must be held with the result binding the town; (3) the agreement must be approved by the voters of the town because the town charter requires a vote whenever town real estate is purchased or sold; and (4) the agreement contemplates the levying of special assessments which require a town vote under 24 V.S.A. § 3254. Plaintiffs also alleged that their fundamental right to vote was impaired by the action of the selectmen.
The court certified the action as a class action under V.R.C.P. 23 and after trial concluded that the selectmen had acted properly, pursuant to their broad authority under 24 V.S.A. chapters 97 and 101. The court rejected plaintiffs' statutory arguments and concluded that their constitutional rights were not violated by the lack of a special town meeting. Accordingly, it dismissed the complaint and this appeal followed. The issues here are the same as those in the trial court and we take them in order.
Plaintiffs' first claim relies on 24 V.S.A. § 3618, 1 which states:
Any section [action] taken by such municipal corporation under the provisions of this chapter or relating to the matters therein set forth, may be taken by vote of the legislative body of such municipal corporation, excepting the issuance of bonds and, in municipalities wherein such body is not otherwise given the power to levy taxes, the levying of a tax under section 3613 of this title; provided, however, that no action shall be taken hereunder unless the construction of a sewage disposal plant shall have first been authorized by majority vote of the legal voters of such municipal corporation attending a meeting duly warned and holden.
Plaintiffs contend that the agreement between SCA and the Town contemplates the Town's "construction of a new, improved and expanded sewage plant and system for the town" within the meaning of § 3618. They further contend that neither chapter 97 nor chapter 101 of Title 24 authorizes the selectmen to undertake more than maintenance, operation, and repair of existing systems. Specifically, they contend that the selectmen cannot undertake construction, which they argue is implied in any expansion and improvement of the system.
It is crucial at the start of our analysis to emphasize that absent some specific statutory limitation on their authority, the selectmen have the general supervisory power over town matters. 24 V.S.A. § 872. In Lawton v. Town of Brattleboro, 128 Vt. 525, 529, 266 A.2d 816, 819 (1970), this Court observed:
A formal vote of the electorate is not an indispensible prerequisite to the authority of the selectmen to function in this area of their official responsibility.
(citation omitted). In Okemo Trailside Condominiums, Inc. v. Blais, 135 Vt. 500, 503, 380 A.2d 84, 87 (1977), we recognized the broad powers of the selectmen to decide the sewage system capacity "and how much, if any, can safely be contracted away...." The legislature can create exceptions to the broad authority of the selectmen, and, in fact, the requirement of 24 V.S.A. § 3618 that voters approve construction of a sewage disposal plant is a good example of such a specific limitation. The question before us is whether this limitation applies to this case.
It is also clear that the legislature intended to grant broad powers to a municipality with respect to sewage disposal. For example, 24 V.S.A. § 3613 provides that "[f]or the purpose of adequately making disposal of sewage ... and operating its sewage plant ... and making such improvements as may be necessary," the municipality is authorized to: (1) "take and hold real and personal estate"; (2) "borrow money"; and (3) "levy and collect taxes ... necessary for the payment of municipal corporation sewage and sewage disposal expenses and indebtedness...." By virtue of 24 V.S.A. § 3618, these broad powers are lodged in the selectmen unless there is a specific exclusion to this grant of power.
It is undisputed in this case that the initial construction of the town sewage treatment plant was undertaken and approved in accordance with § 3618, but plaintiffs contend that we should construe the statute to regard any expansion of a plant as additional "construction" requiring a new vote. Despite plaintiffs' emphasis on limiting its proposed reading of the statute to "improved and expanded" treatment plants, such a reading would not distinguish substantial expansion projects from relatively minor ones--all would be subject to voter approval. All changes in the physical configuration of the plant other than maintenance could raise questions as to whether voter approval was needed. 2
More importantly, the statute contains no such distinction. While the meaning of the term "construction" is not defined in the statute and the question has not previously come before this Court, similar questions have been posed in other states. In State ex rel. Taxpayers League v. Noll, 11 Ohio St.3d 190, 191, 464 N.E.2d 1007, 1009 (1984), plaintiff demanded a referendum pursuant to the Ohio Constitution, which provided for such a referendum where:
Any municipality proceeding to acquire, construct, own, lease or operate a public utility, ... shall act by ordinance and no such ordinance shall take effect until after thirty days from its passage.
The municipality involved was substantially enlarging and improving its existing sewage system pursuant to an ordinance that had been in effect over thirty days. The court, relying on prior Ohio case law, 3 held that once a sewage system has been duly approved and operated by a municipality as a public utility, an ordinance providing for even substantial reconstruction, alteration, rebuilding, enlargement or improvement did not require a referendum. Id. at 191, 464 N.E.2d at 1009.
In Illinois Power Co. v. City of Jacksonville, 18 Ill.2d 618, 624-25, 165 N.E.2d 300, 304 (1960), the statute provided that "no municipality shall acquire or construct a public utility unless such action is first approved in a referendum vote of the electors of the city." The court explained the intent of the statute in the following way:
The question for the voters is one of policy--shall the city go into the public utility business? Having decided, as has the city of Jacksonville, to enter into municipal ownership of a public utility, no policy decisions requiring voter approval are thereafter required by section 49-3.
The Illinois Supreme Court read the referendum provision as asking whether the municipality had voter approval to go into the utility business, a threshold decision with diverse implications about the nature and extent of municipal government. Once the municipality had voted to go into the utility business, the court held that a further vote of the municipality was unnecessary for expansions of the utility--in that case, in order to construct a transmission line to import power from another municipality. While there are differences between undertaking a business and merely constructing a sewage facility, there are also strong similarities. On balance, the logic of both Noll and Illinois Power applies to the case at bar. And see Baird v. Webster City, 256 Iowa 1097, 130 N.W.2d 432 (1964) (); Indiana Service Corp. v. Town of Warren, 206 Ind. 384, 189 N.E. 523 (1934) (...
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