R & C Robertson, Inc. v. Avon Tp.

• Decision Date: 02 December 1970
• Docket Number: Docket No. 8565,No. 2,2
• Citation: 28 Mich.App. 305,184 N.W.2d 261
• Parties: R AND C ROBERTSON, INC., a Michigan corporation, Plaintiff-Appellee, v. TOWNSHIP OF AVON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 261

184 N.W.2d 261

28 Mich.App. 305

R AND C ROBERTSON, INC., a Michigan corporation, Plaintiff-Appellee, v. TOWNSHIP OF AVON, Defendant-Appellant.

Docket No. 8565.

Court of Appeals of Michigan, Division No. 2.

Dec. 2, 1970.

Released for Publication March 5, 1971.

Roscoe R. Martin, Rochester, Kenneth B. McConnell, Hartman, Beier, Howlett, McConnell & Googasian, Pontiac, for defendant-appellant.

Lewis R. Bebout, Township Atty., Rochester, for plaintiff-appellee; Gilbert E. Gove, Detroit, of counsel.

Before BRONSON, P.J., and FITZGERALD and CHURCHILL, ^* JJ.

FITZGERALD, Judge.

Defendant Township of Avon, which is located in northwest Oakland County and surrounds the City of Rochester, has experienced a rapid urbanization and population growth during the last decade. In an effort to keep pace with the charging needs of the community, defendant embarked upon a plan for the improvement and expansion of its water and sewage facilities. Having considered a preliminary engineering study submitted in the summer of 1966, the township board passed a resolution on December 28, 1966, which provided for the establishment of capital charges in the amount of $350 for water and sewers and provided that such capital charges be levied against each single residence, multiple residence, and gasoline service station. It was further provided that:

'All new construction must pay the capital charges in cash. Existing structures have the option of making the capital charges over a period of 30 years in equal quarterly installments. If the time payment method of payment is elected, the amount of the capital charges shall be increased by 30%.'

Subsequently, on March 26, 1968, the township board adopted Ordinance No. 44 which embodied the types of structures upon which these capital charges for water and sewers were to be levied. Ordinance No. 44 retained the time payment provision available under the earlier resolution, however, its terms were slightly modified.

As a result of some confusion regarding application of Ordinance No. 44, it was amended on February 26, 1969, the amendment in part stating:

'The above $350.00 per unit capital charge will not be applicable to existing premises now connected to municipally-owned and operated water and/or sanitary sewer systems.'

On March 4, 1969, plaintiff R and C Robertson, Inc., brought action against defendant township alleging that it was a building contractor engaged in the construction of residential dwellings and that in the course of its business after December 28, 1966, it was required by defendant to pay a capital charge of $350 for water before being issued a building permit for construction of each of 51 homes in the township. Plaintiff alleged a denial of equal protection and sought to have the 1966 Resolution and Ordinance No. 44 declared void and uneforceable and a return of all sums paid under protest.

The trial court ruled that the 1969 amendment embodied an arbitrary and discriminatory classification violative of both the State and Federal Equal Protection Clauses and hence was null and void. The time payment provision embodied in Ordinance No. 44 was found so discriminatory as to be in violation of equal protection and therefore was declared severed and void. The amendment of February 26, 1969, was also declared void and judgment was entered for plaintiff for the amount of the capital charges, with interest, which had been paid pursuant to the 1966 resolution. Defendant now appeals as of right. Several issues are raised on this appeal, all of which concern the resolution of 1966, Ordinance No. 44, and its amended provisions.

First we shall consider whether one who pays a municipally-imposed benefit charge is denied equal protection of the laws where the possibility exists that others similarly situated might avail themselves of the same benefit without charge. Relying upon Queenside Hills Realty Co. v. Saxl (1945), 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096, defendant contends that plaintiff should not have been heard to complain of 'possible' discrimination. In Queenside the United States Supreme Court addressed an alleged denial of equal protection in an ordinance which required only existing lodging houses to install sprinkler systems for fire protection. The argument set forth by the appealing party was that a newly-constructed duplicate of his building would not be governed by the ordinance, thus creating a denial of equal protection. The Court held that so long as a favored class cannot be shown to exist, no lack of equal protection can be maintained. The reasoning behind this decision is stated in part as follows:

'The point is that lack of equal protection is found in the actual existence of an invidious discrimination (Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, ann Cas 1917B, 283; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655), not in the mere possibility that there will be like or similar cases which will be treated more leniently.'

In the case at bar, the trial judge stated in his opinion:

'While it is true that there was no rush to construct other classes of structures during the period that the Resolution was in effect, nevertheless there was no reasonable basis for the exemptions.'

While it appears that the 1966 Resolution was restricted in its application to single residences, multiple residences, and service stations, there existed no specific or enumerated exemptions.

Testimony elicited from Mrs. Spencer, Avon Township Clerk, indicated that no building permits were issued for structures requiring new water connections other than those enumerated in the 1966 Resolution. Therefore, we are unable to find that discrimination in fact occurred during the effective time of the 1966 Resolution. An application of the principles set forth in Queenside, supra, leads to the inescapable conclusion that the trial court erred in finding a denial...