Mayor and Council of Rockville v. Goldberg

• Decision Date: 07 April 1970
• Docket Number: No. 300,300
• Parties: The MAYOR AND COUNCIL OF ROCKVILLE v. Carl GOLDBERG.
• Court: Maryland Court of Appeals

Page 563

257 Md. 563

264 A.2d 113

The MAYOR AND COUNCIL OF ROCKVILLE v. Carl GOLDBERG.

No. 300.

Court of Appeals of Maryland.

April 7, 1970.

Roger W. Titus, City Atty., Rockville, for appellant.

Robert L. Burchett, Rockville (James R. Miller, Jr., and Miller, Miller & Canby, Rockville, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

The appellee in this case, Mr. Carl Goldberg (Goldberg), exercising a not so silent majority of one, voted as they only qualified registered voter against the annexation by the Mayor and Council of Rockville (City), appellant, of a tract of 5.9 acres of land which he owned. Thereafter, he was successful in having the Circuit Court for Montgomery County issue a writ of mandamus compelling the City to extend its sewer and water service to this property outside the City limits. It is from the lower court's order issuing the writ that this appeal is taken.

The 5.9 acre tract lies in an unincorporated area of Montgomery County. It is bounded on three sides by land lying within the City and fronts on Seven Locks Road. The tract immediately to the south of appellee's property was annexed to the City of Rockville in 1967. The appellee is the survivor of the joint tenancy between himself and Franklin R. Immerman, and together they acquired the property in January, 1965. On October 27, 1964, while contract purchasers, they successfully obtained rezoning of the property by the Montgomery County Council from R-R (Rural Residential) to R-T (Town House) classification. Master plans of the City of Rockville and the Maryland National Capital Park and Planning Commission, both adopted prior to 1964, proposed medium density residential development for this property (single family residence on lots in the 9,000 square foot range).

On three occasions (January of 1965, 1966 and 1967), the appellee or his representatives sought to have legislation enacted by the General Assembly which would include his property in the Washington Sanitary District, a necessary prerequisite if that agency is to provide public sewer and water for the property. The appellant opposed such legislation and it was never enacted. In July of 1965, upon application of the appellee, a resolution was passed by the appellant granting annexation of the property to the City. Simultaneously, the property was placed in the City R-75 zoning classification (single family residence on lots in the 7,500 square foot range). Immediately thereafter, the appellee filed a petition for a referendum on the question of the annexation, and in a special election held in September, 1965, he voted against the annexation and, he being the only qualified voter on the issue, the annexation and rezoning never became effective. On September 13, 1968, the appellee, by a letter from his attorney, requested that the appellant furnish his property with water and sewer services and offered to pay all costs. On October 2, 1968, the appellant, in a letter from the City Manager, denied the request. The City Manager's letter advised the appellee that the Mayor and Council had considered his request at their meeting of September 30, 1968, and in denying the request, the letter went on to say that the Mayor and Council '* * * reiterated its policy not to extend water and sewer services to properties located outside the corporate limits.'

The City's water treatment plant has sufficient excess capacity to serve the subject property as presently zoned through the waterline in Seven Locks Road adjacent to it.

At the trial of this case, the appellee offered the testimony of a civil engineer, Alden E. Imus, who testified that he had made a study of the feasibility of serving the appellee's property with existing water and sewer lines of the appellant. He had concluded that an existing city water line in Seven Locks Road in front of the property could adequately serve it and that an existing city sewer line 800 feet away from the property could be extended and adequately serve the property. In other testimony, he stated that no other public sewer or water line was available to serve the property.

Clifford A. Hilton, an Assistant Planning and Design Division Engineer for the Washington Suburban Sanitary Commission, was the next witness for the appellee. He testified that the property was not in the Washington Suburban Sanitary District and that he would therefore 'conclude that they would not provide service' to the property. The closest Sanitary Commission water line, he said, was 'in Seven Locks Road approximately half a mile away.'

Next to testify for the appellee was C. Richard Foote, City Manager for the City of Rockville, who also appeared for the appellant. In response to a subpoena duces tecum, Mr. Foote provided information as to the actual city operating expenses and income for water and sewer for fiscal 1968 and 1969, and the projected figures for fiscal 1970. In every case, the figures used showed that the water and sewer services were receiving income in excess of expenses, but he explained that in all cases the excess of income over expenses was transferred to a debt retirement fund. In addition, he said that general tax funds pay part of the debt service on some of the water and sewer bonds. Mr. Foote also stated that in three instances, the appellant is providing water or sewer services outside the corporate limits. In the first, the appellant is providing water service to an area known as Glen Hills which is specifically defined by metes and bounds in a franchise granted to the City in 1959 by the Montgomery County Council pursuant to an application filed by the appellant on March 31, 1959, for a franchise to use the County's public streets for the purpose of laying water pipes therein. The franchise is for a period of 25 years, but is subject to termination earlier by agreement between the Washington Suburban Sanitary Commission and the appellant. This area is not in the vicinity of the appellee's property. The appellant does not provide sewer service to the area. Service to this area did not require the extension of any City water transmission (as opposed to distribution) lines. In both of the remaining instances of existing extraterritorial service, sewer service was provided to respective individual property owners. In both cases a City sewer outfall line leaving the City to join Sanitary Commission sewer lines (which in turn join D. C. lines) existed prior to the development of the property ultimately served. In both cases sewerage service was provided by the City to avoid duplication of facilities in order to provide service at the minimum cost without the overlapping and paralleling of exact same facilities.

In both of the foregoing cases, the properties served are not in the vicinity of the subject property. In another instance the City provided sewer service outside its corporate limits on an emergency basis due to a malfunctioning private sewerage system, creating a health hazard, on the express condition that the owner of the property petition for annexation immediately. A petition was immediately filed and the property is now in the City. This property is also not in the vicinity of the subject property.

The City Manager stated that, in all instances, extraterritorial water or sewer service has been provided at the request of the property owner and that, to his knowledge, the City has never solicited property owners outside the City limits to use its water and sewer services. The City policy with regard to requests for extraterritorial service, he said, is to require annexation before providing sewer or water service. In answer to a question from the Court as to the reason for that policy, he stated:

'I think it is simply a question of building development policy. It is one of the tools under which the City can control the growth and development of the City, along with zoning authority and everything thag goes with a functioning municipality. The goal of the Mayor and Council in maintaining a water and sewer system has been purely to serve the residents of the City of Rockville; not to run utility systems specifically for profit or as a separate business, but to serve the corporate limits. And the exceptions to that as noted were not in any case where the City sought to provide a service outside its corporate limits. It is felt that the property owner who might wish to annex or might wish to have water and sewer services, which are partly supported by the general taxpayer, should be a full fledged taxpayer of the City and not just a customer of the water and sewer system.'

The City Manager further stated that present extraterritorial users of City water and sewer services pay a higher rate than users of those services located within the City limits, the difference in amount being at least enough to take into account whatever contributions the general tax fund of the City makes in the payment of debt service on certain of the water and sewer bonds. When asked by trial counsel for the appellant what effect the development of the subject property in the R-T zone would have on the surrounding property in terms of the management of the City water and sewer systems, the City Manager stated that he did not know that it would have any direct effect. He also testified that the extension of the sewer line 800 feet to the subject property would be a normal estension.

The testimony of the remaining witnesses duplicated in part that of the prior witnesses, and there again was testimony that the City sewer system is capable of serving the subject property if developed in its present R-T zoning classification.

We think that the court below in the memorandum opinion, accompanying its order, misconstrued the case law applicable to the facts of this case, wherein the principal issue is: does the law require a municipality to furnish a utility service,...