Robert T. Foley Co. v. Washington Suburban Sanitary Commission, 90

Decision Date14 July 1978
Docket NumberNo. 90,90
CourtMaryland Court of Appeals

Barbara A. Sears, Silver Spring (Charles G. Dalrymple and Linowes & Blocher, Silver Spring, on the brief), for appellants.

J. Eugene Cleary, Hyattsville, for appellees.



This case concerns the validity of sewer service charges levied upon the developers of a Montgomery County subdivision by the Washington Suburban Sanitary Commission.

The Washington Suburban Sanitary Commission, created by the General Assembly in 1918, is a public body providing water and sewer services in Montgomery and Prince George's Counties, Maryland. 1 In 1970, however, the Commission's sewage treatment facilities had become critically overtaxed. This crisis led to the imposition of moratoria on sewer connections in several areas of Prince George's and Montgomery Counties. These moratoria, in general, banned the authorization of all new sewer connections until such time as sufficient treatment facilities for sewage became available.

In response to this problem, the Commission initiated the planning and construction of new, permanent sewage treatment facilities. However, the length of time required to construct permanent facilities was substantial. Consequently, the Commission in 1975 adopted its Interim Sewage Treatment Program, Resolution No. 75-278. This program was designed to provide interim relief from the sewer crisis by the construction of temporary sewage treatment facilities to be used until the proposed permanent facilities became available. The program was to be financed by the establishment of an Interim Sewerage Service Charge, applicable to all new connections to the public sewer system. This charge revised the then existing schedule of charges for sewer services.

Prior to 1975, sewer hook-up charges included "subdistrict" charges, levied in accordance with § 6-3(a) of the Washington Suburban Sanitary District Code, which provides:

"(a) If the commission finds and determines that in any area or subdistrict of the sanitary district the conditions for service from any of its systems, including the financial aspect of instituting and maintaining such service, are substantially different from those obtaining generally in the sanitary district, the commission may define such area or subdistrict and provide for a different rule, regulation, rate or charge to apply therein, notwithstanding any other provisions of this section otherwise requiring said rule, regulation, rate or charge to be uniform throughout the sanitary district."

In 1975, the various subdistrict charges were replaced by the Interim Sewerage Service Charge: "Subdistrict charges, as now applicable in the Sanitary District, shall be merged into and become a part of the Interim Sewerage Service Charge as applicable herein. . . ." Resolution No. 75-278. The charges established by this resolution were as follows:

"(1) A dwelling unit and each separate unit within a multi-dwelling unit, shall be subject to an Interim Sewerage Service Charge of $750.00.

"(2) Single family dwelling units within an apartment building shall be subject to an Interim Sewerage Service Charge of $500.00 per unit.

"(3) All other structures, not otherwise excluded herein, shall be subject to an Interim Sewerage Service Charge based upon $750.00 per each 10 commercial fixture units, subject to a minimum charge of $750.00, and educational institutions, volunteer fire departments, churches and other eleemosynary associations, public service buildings and each trailer space in a trailer camp shall be included herein at 1/2 the total charge, as applicable.

"(4) The following categories shall be subject to 1/2 of the Interim Sewerage Service Charge, as applicable.

(a) dwelling units in existence on the effective date of this Resolution.

(b) property where prior commitments have been made and house connections paid, and are under construction as herein defined.

(c) service to properties, defined in Section A, served by private sewage treatment plants . . . "

It is the attempted application of this charge to a subdivision in Montgomery County known as Quail Valley which gives rise to this litigation.

The developers of Quail Valley, desiring sewer service for their properties, filed in 1970 applications with the Washington Suburban Sanitary Commission for authorizations to extend existing water and sewer lines to the Quail Valley subdivision. The Commission approved these applications subject to the fulfillment by Quail Valley of certain specified conditions. 2 These conditions included, Inter alia, the payment by Quail Valley of a portion of the capital cost of extending the water and sewer lines, recordation of plats, grading of streets, and the submission of various construction plans. In addition, the Commission's authorizations provided:

"The property for which service is requested lies within the Upper Montgomery County sewerage subdistrict and is subject to the special connection charges as is approved for such district. Special charges are contained in the subdistrict information sheet enclosed for your information. Subdistrict charges will be paid to our Plumbing Division at the time of filing the regular house connection applications."

The subdistrict charges for the Upper Montgomery County sewerage subdistrict were $300.00 at the time the Commission issued its authorizations to Quail Valley. By 1973, Quail Valley had complied with the conditions set forth in the Commission's authorizations. In addition, it had paid the $300.00 subdistrict fee for each of the proposed units in the development. Thereafter, the Commission extended water and sewer lines through the newly graded streets of Quail Valley and stubbed all connections from these lines to the property line of each lot. As construction of each unit was completed, the prior authorization was implemented, and the plumbing of the completed unit was hooked up to the existing connection.

In May 1975, some five years after its initial authorization, 319 of the 593 proposed units of the Quail Valley subdivision were neither "in existence or under construction" as defined in the Interim Sewage Treatment Program, and were therefore subject to the Interim Sewerage Service Charge by the terms of the program. The Commission refused to process necessary permits for these new units until the Quail Valley developers paid the Interim Sewerage Service Charge ($750.00 less a credit of $300.00 paid in subdistrict fees).

The developers paid the new charges under protest, and then filed a bill of complaint in the Circuit Court for Montgomery County, for declaratory and injunctive relief. They sought (1) a declaration that the resolutions establishing the Interim Sewerage Service Charge were invalid on various grounds, including the contention that the resolutions impaired a contractual obligation owed by the Commission to the developers, and (2) an injunction restraining the Commission from collecting the Interim Sewerage Service Charge and directing the Commission to return all such charges paid under protest. Both parties then filed motions for summary judgment.

Before the circuit court rendered a decision, this Court handed down Northampton Corp. v. Wash. S. S. Comm'n, 278 Md. 677, 366 A.2d 377 (1976). In Northampton, we upheld the Commission's Resolution No. 75-278 and the imposition of the Interim Sewerage Service Charge against a variety of attacks, constitutional and otherwise. Specifically, we upheld the imposition of the Interim Sewerage Service Charge upon properties where the owners had, prior to Resolution No. 75-278, obtained authorizations for sewer connections and paid the required charges then in effect, 278 Md. at 685, 366 A.2d 377.

Following our decision in Northampton, the circuit court in the instant case granted the Commission's motion for summary judgment, holding that Northampton was controlling. The developers then took an appeal to the Court of Special Appeals, and prior to any proceedings in that court we granted the Commission's petition for a writ of certiorari.

Although not clearly defined and separated in their brief, the developers of Quail Valley appear to mount a two-pronged constitutional attack upon the imposition of the Interim Sewerage Service Charge on their properties: (1) a substantive due process argument, namely that the action of the Commission is not a valid exercise of the police power and thus deprives the developers of property rights without due process of law in violation of the Fourteenth Amendment; (2) a Contract Clause argument, to the effect that the developers had obtained a contractual right to receive sewer service at the rates specified by the Commission prior to the adoption of the Interim Sewerage Service Charge, and that the attempt by the Commission to impose the interim rates impairs the obligation of this contract in violation of the United States Constitution, Art. I, § 10, cl. 1. The developers acknowledge that our decision in Northampton would be dispositive of these contentions if the facts of this case were not materially different from the facts there, and they expressly "do not challenge any of the . . . holdings" in Northampton. However, they seize upon the one distinguishing factor between Northampton and the present case. In Northampton, the sewer moratoria were applicable to the properties for which authorizations for sewer service had been obtained prior to the adoption of Resolution No. 72-278 and its imposition of the Interim Sewerage Service Charge. On the other hand, the moratoria were not specifically applicable to the authorizations for the Quail Valley subdivision, and sewer service to the properties here involved was not legally precluded by any particular sewer moratorium order itself. This...

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