Rocky Hill Convalescent Hospital, Inc. v. Metropolitan Dist.

• Decision Date: 02 March 1971
• Citation: 160 Conn. 446,280 A.2d 344
• Court: Connecticut Supreme Court
• Parties: ROCKY HILL CONVALESCENT HOSPITAL, INC. v. The METROPOLITAN DISTRICT.

Page 344

280 A.2d 344

160 Conn. 446

ROCKY HILL CONVALESCENT HOSPITAL, INC. v. The METROPOLITAN DISTRICT.

Supreme Court of Connecticut.

March 2, 1971.

Bourke G. Spellacy, Hartford, with whom were Hubert J. Santos, and, on the brief, Stuart N. Updike, Hartford, for appellant (defendant).

Robert P. Kuzmak, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

RYAN, Associate Justice.

On May 11, 1966, the plaintiff applied to The Metropolitan District, hereinafter referred to as the defendant, for permission to construct an eight-inch sanitary sewer line as a public sewer under a developer's permit-agreement to tie into the defendant's existing sanitary sewer on Main Street in the town of Rocky Hill, in lieu of a private house connection and payment of a connection charge. The defendant denied the application and levied a connection charge. The plaintiff appealed to the Court of Common Pleas, alleging two basic grounds: first, that the defendant's charge was made in violation of the provisions of § 7-255 of the General Statutes and second that the defendant was without authority under its charter and ordinances to make such a charge. The Court of Common Pleas sustained the appeal and the defendant has appealed to this court.

The trial court found the following facts: On May 3, 1962, the defendant assessed benefits because of the construction of a sewer in Main Street, Rocky Hill, against property owned by Julia F. Hammond on the west side of Main Street. The assessment against her property was for a width of 333.17 feet and a depth of 200 feet. The property assessed included the land on which the Hammond residence stood. In back of this property so assessed lay other property undeveloped at the time, which was also owned by Mrs. Hammond and is presently owned by the plaintiff, the Rocky Hill Convalescent Hospital, Inc. The defendant normally assesses residential property to a depth of 200 feet. The original layout of the sewer and the proposed assessment were published and sent to all property owners whom the defendant believed would be benefited and, on June 11, 1962, a public hearing was held on assessments made generally in Rocky Hill, at which hearing a representative of Mrs. Hammond objected to the assessment against her property. The defendant then voted to delete the southerly 200 feet of this assessment against the Hammond property and published a new assessment thereon. On July 25, 1962, a caveat was filed setting forth the new assessment against the Hammond property. No appeal from this assessment was ever taken.

On October 21, 1963, Mrs. Hammond transferred her title to Ann H. Ransom and Cathryn J. Stevenson. On May 14, 1964, Cathryn J. Stevenson transferred the title to her portion of this property to Ann H. Ransom. On September 17, 1965, Ann H. Ransom transferred title to the plaintiff of that part of the property which was formerly owned by Mrs. Hammond and which had not been assessed by the defendant. On August 2 and 3, 1965, the final assessment was published setting forth the actual cost of the sewer. In 1965 the defendant sent a bill for the assessment to Ann H. Ransom and she elected a time payment plan to pay it. A lien was filed on the assessed property on October 27, 1965, to secure payment of the assessment. The lien contained a description of the property assessed, which was 133.17 feet on Main Street, to a depth of 200 feet. The property in the rear, which is now owned by the plaintiff was never assessed nor was any caveat or lien ever filed against it. On May 11, 1966, the plaintiff applied for permission to construct an eight-inch sanitary sewer line from this property across the property of Ann H. Ransom to the sewer of the defendant in Main Street. The plaintiff's property is within the same sewer district as the property formerly owned by Mrs. Hammond on Main Street which had been assessed by the defendant. Construction of the sewer in Main Street was completed before May 11, 1966. The total cost of the sewer in Main Street (except for certain excess costs) had been assessed before May 11, 1966.

An assessment is based on three factors, namely, engineering costs, construction costs and benefit to the property. A connection charge is based on comparables for preceding years. The defendant permitted the plaintiff to connect into the Main Street sewer but required it to pay a connection charge of $6600. This charge was based on a rate of $1500 per acre for the 4.4 acres owned by the plaintiff and was computed on the basis of a schedule which previously had been established by the defendant. No public hearing was held on the connection charge levied against the plaintiff. The plaintiff paid this charge and it was placed in a perpetual revolving accessible sewer fund which is used to defray costs for sewer mains in any area of the defendant's territory. The court concluded that the defendant could establish a charge for connection with its sewer only under the provisions of § 7-255 of the General Statutes and that the connection charge paid by the plaintiff was improperly levied.

The defendant makes no attack upon the findings of subordinate facts, but assigns error in the conclusions of the trial court. The basic question to be determined is whether the provisions of § 7-255 of the General Statutes, or the provisions of the defendant's charter and ordinances, applied to the factual situation of the present case. An examination of the legislative histories of these enactments is required.

The defendant is a municipal corporation created in 1929 by a special act of the General Assembly. 20 Spec.Acts 1204, No. 511. It was given broad powers relating to sewage disposal, water supply and regional planning as well as powers limited to certain highways. Among the powers and duties conferred on the corporation were the following general powers relating to sewers: 'The layout, building, creation, maintenance, improvement, alteration, repair and discontinuance of sewers and sanitary systems and plants for the disposal of sewage, * * * the construction of drains for water or sewage and the control and maintenance of all the foregoing in the public highways and elsewhere throughout the district, together with such control of the streams and water courses of said district as is necessary or convenient for the foregoing as hereinafter more particularly stated.' Compiled Charter, Metropolitan District (1960 Ed.) § 1-2b. ¹ Chapter 8 of the charter covers in detail the powers conferred upon the defendant concerning sewers and other public works. Chapter 9 concerns powers and proceedings for the layout, construction and assessment of sewers. The General Assembly adopted number 282 of the Special Acts of 1949 authorizing the defendant to enact ordinances regulating the use of sewers: 'The Metropolitan District may make rules, bylaws and ordinances with respect to connections with, the use of and the discharge of substances into drains, sewers and their appurtenances which belong to or are under the jurisdiction or control of said district.' 25 Spec.Acts 1021, No. 282. This became § 8-4 of the charter. In pursuance of the authority conferred by this section the defendant adopted the following amendments to its general sewer ordinance effective July 21, 1960, and designated as §§ S7o and S7p of the Ordinances of the Metropolitan District relating to sewers: 'Whenever a sewer has been laid out and constructed by the District to serve a particular section of highway or a particular area, no connection will be permitted thereto for any property which has not been assessed therefor or has not shared in an equitable manner in the expense thereof, unless prior to such connection, the owner of such property first enters into a special agreement, to be recorded in the land records and providing for advance payment by the owner of a sanitary connection charge, and providing that the permission granted will not affect the power of the District under the provisions of its Charter and Ordinances to make future sewer layouts, and benefit assessments therefor, against the property of the said owner, in the same manner as if the permission to connect has never been granted by the District, and agreeing to credit the said connection charge payment toward any such future assessment, without allowance for interest between the date of payment of the said charge and the date of any future final assessment billed said owner.' § S7o.

On August 23, 1966 the plaintiff entered into a written agreement in accordance with the provisions of the ordinance.

Section S7p of the Ordinances of the Metropolitan District relating to sewers provides as follows: 'The amount of the sanitary sewer connection charge for connections under Sections S7m-o incl. hereof shall be determined by multiplying the actual or adjusted linear feet of frontage of said property ot its area by the sanitary sewer connection charge rates in effect at the date of issuance of the house connection permit. The sanitary sewer connection charge schedule of rates for frontage and area shall be determined and adopted from time to time by vote of the Bureau of Public Works, based on current average sewer assessment rates for sewers constructed under normal...