Strahan v. City of Aurora

• Decision Date: 27 April 1973
• Docket Number: No. 72,72
• Citation: 311 N.E.2d 876,38 Ohio Misc. 37
• Parties: , 67 O.O.2d 215 STRAHAN et al. v. CITY OF AURORA. * CI 1288.
• Court: Ohio Court of Common Pleas

Page 37

38 Ohio Misc. 37

311 N.E.2d 876, 67 O.O.2d 215

STRAHAN et al. v. CITY OF AURORA. ^*

No. 72 CI 1288.

Court of Common Pleas of Ohio, Portage County.

April 27, 1973.

Norman Sandvoss, Ravenna, for plaintiffs.

Seabury Ford, law director, Ravenna, for defendant.

JONES, Judge.

This case arises over a dispute between a group of property owners and the city of Aurora over certain tap-in charges provided for in Ordinance No. 1972-794 of the City of Aurora adopted on September 12, 1972. The properties of the plaintiffs in question are all within what has been known as Aurora Water and Sewer District No. 1. The pertinent part of Ordinance No. 1972-794 reads as follows:

'Section 1. That the connection fee of Five Hundred Fifty Dollars ($550.00) for all properties with existing inhabitable structures as of September 12, 1972 so assessed for the construction of the water system in Aurora Water and Sever District No. 1 be, and is hereby waived, provided that:

a. The service connection line is one-inch (1 ) or less in diameter;

b. And a water tie-in permit at no charge shall be secured from the Office of the Director of Public Service on or before November 30, 1972;

c. And such permits shall be valid up to and including November 30, 1974.'

The court granted a temporary restraining order, which was later made a preliminary injunction. Upon final hearing, at the conclusion of the plaintiffs' case, and again at the conclusion of all the evidence, counsel for the defendant, city of Aurora, moved to dismiss the complaint on the following grounds:

(1) That there had been no proof of any injury or damage.

(2) That there is an adequate remedy at law under Section 2723.03 of the Revised Code.

(3) That there has been no proof of any estoppel.

(4) That the action is prematurely brought.

The court reserved ruling on this motion, and now overrules the same.

Both counsel argued and briefed the case extensively, and the court has reviewed all of the authorities cited by both counsel, together with certain other authorities. As to the first proposition advanced by defendant's counsel, the court does not feel that it is necessary to show an actual injury, and injunctive relief may be granted to prevent injury. See 29 Ohio Jurisprudence 2d 208, Section 34. The testimony in this case shows clearly that certain of the plaintiffs are the owners of vacant lots, and the assessment of a tap-in charge of this magnitude could well impair the value of a vacant lot, and perhaps even of a lot with a house erected on it.

The law is clear that equity may be invoked to avoid a multiplicity of suits, and indeed, an injunction may issue even when there is a legal remedy, if such remedy involves a multiplicity of suits. See annotation, 32 A.L.R. 1266; annotation, 156 A.L.R. 319; and 29 Ohio Jurisprudence 2d 336-337, Section 124. Furthermore, it is stated in 29 Ohio Jurisprudence 2d 209, Section 35, that:

'The avoidance of a multiplicity of actions is also ground for enjoining the enforcement of unconstitutional statutes or ordinances which interfere with property rights, at least where the unconstitutionality of the statute or ordinance is clear.'

As to the second portion of defendant's motion, the court does not consider that R.C. Section 2723.03 necessarily provides an adequate remedy at law. In fact, R.C. 2723.01 specifically authorizes Courts of Common Pleas to enjoin illegal levy or collection of taxes and assessments and then provides that such courts may entertain actions to recover them when collected. In essence, the statute gives citizens a choice of alternative remedies.

The court will deal with the third branch of defendant's motion in a later part of this opinion. As to the fourth branch of defendant's motion, it is the opinion of this court that one does not have to wair until the actual injury is suffered-but may seek injunctive relief from the court to prevent suffering damage or loss, and this is especially true where the constitutionality of a statute or ordinance is involved. See 29 Ohio Jurisprudence 2d 335, Section 124.

Having disposed of the motion of the defendant, except for that portion of it directed to the claim of estoppel made by plaintiffs, the court will now consider the matter on its merits.

That municipalities may adopt ordinances providing for tap-in charges is established law. In the case of Englewood Hills v. Englewood (1967), 14 Ohio App.2d 195, 237 N.E.2d 621, the Court of Appeals for Montgomery County held as follows:

'Municipalities may adopt ordinances providing for tap-in charges for water and sanitary sewer services subject only to the qualification that the fees established by the ordinances must be fair and reasonable and bear a substantial relationship to the cost involved in providing the service to the landowner.'

Examination must necessarily be made to determine from the evidence if the tap-in charge in the ordinance under question is reasonable and bears a substantial relationship to the cost involved in providing the service to the landowner, especially since the plaintiffs herein were assessed ratably on a front-foot basis for their proportionate share of the cost of this improvement. In the case of Zehman Construction Co. v. Eastlake (1962), 92 Ohio Law Abs. 364, 195 N.E.2d 361, the Court of Appeals for this district held as follows:

'An ordinance which imposes a 'tap-in charge' which substantially exceeds the cost to the city of supervising the connection of an adjoining property to a sanitary sewer and which, by the terms of the ordinance, is to be used in making other sewer improvements is unconstitutional and void as applied to a lot owned by one whose predecessor paid for...