Whitmer v. City of Lindon, 960124

• Decision Date: 29 July 1997
• Docket Number: No. 960124,960124
• Parties: 322 Utah Adv. Rep. 43 Peter WHITMER, Plaintiff and Appellant, v. CITY OF LINDON, a Utah municipal corporation, E. Ray Brown, Wilma Taylor, Don Peterson, Scott J. Cullimore, Noal T. Greenwood, M. Dean Blackhurst, Richard D. Draper, Jerald I. Hatch, James A. Dain, Steven L. Smith, Randy L. Childs, Mark L. Walker, John Does I to X, Defendants and Appellees.
• Court: Utah Supreme Court

Page 226

943 P.2d 226

322 Utah Adv. Rep. 43

Peter WHITMER, Plaintiff and Appellant, v. CITY OF LINDON, a Utah municipal corporation, E. Ray Brown Wilma Taylor, Don Peterson, Scott J. Cullimore, Noal T Greenwood, M. Dean Blackhurst, Richard D. Draper, Jerald I Hatch, James A. Dain, Steven L. Smith, Randy L. Childs, Mark L. Walker, John Does I to X, Defendants and Appellees.

No. 960124.

Supreme Court of Utah.

July 29, 1997.

Peter Whitmer, Orem, Pro se.

Gordon Duval, Pleasant Grove, for City of Lindon.

DURHAM, Justice:

Plaintiff Peter Whitmer, a resident and owner of real property in Lindon City, appeals from a district court order denying his cross-motion for summary judgment and dismissing his claim in favor of defendant Lindon City (Lindon), a municipal corporation. We affirm.

At a public meeting in January 1992, the Lindon City Council enacted ordinance 1-92, containing policies and regulations governing a proposed pressurized secondary water system to be used for irrigation. Lindon maintains that this legislation was designed to reduce the cost, waste, and burden on the City's culinary water system created by the diversion of culinary water for irrigation. Lindon has experienced recent rapid growth, including the conversion of irrigated farmland to residences, which draw heavily on the culinary water supply. Prior to establishing the secondary water system, Lindon residents obtained water for irrigation exclusively through open canals administered by mutual irrigation companies. Property owners who did not own shares in these irrigation companies and therefore did not have access to irrigation canals relied upon Lindon's culinary water system for their outside watering. The recent growth in Lindon placed a demand on the culinary system that required the development of an efficient and viable secondary source of irrigation to ensure adequate culinary water for Lindon residents.

In 1991, Lindon contacted potential subscribers and proposed an agreement that committed the City to construct a secondary irrigation system and required residents who desired connection to the secondary system and owned shares in Lindon's mutual irrigation companies to transfer water shares to the City in an amount determined by the size of their property. Lindon proposed that Whitmer consider the agreement after identifying him as owning shares in the North Union Water Irrigation Company (North Union). In January 1991, plaintiff's wife, Cynthia Whitmer, signed this agreement. Lindon encouraged residents to commit to the secondary system and transfer their water shares to the City so that Lindon would have adequate water resources and could obtain state funding for the secondary system.

Lindon passed a bond resolution for the secondary water system in January 1992, which provided notice of a thirty-day period to contest the bond resolution. Under ordinance 10-93, Lindon adopted a water share transfer requirement and monthly user fee schedule applicable to all users, whether parties to the earlier agreement or not. These provided that if Lindon has sufficient water for its pressurized secondary system, it can waive the water share dedication and transfer requirement for nonshareholders and instead allow applicants to pay in an amount equal to the value of the required water stock.

Citing this provision, Whitmer requested a secondary water connection but refused to exchange his shares in North Union for that connection. Instead, Whitmer tendered a $750 cash payment for his connection. Lindon returned Whitmer's cash payment, notifying him that as a water share owner he must transfer his shares in North Union to connect to the City's secondary water system. In 1993, as Lindon completed construction of its secondary water system, it mistakenly connected Whitmer to the secondary system and began to bill him. Lindon later notified Whitmer of the mistaken connection and refunded Whitmer's payments. Lindon also notified Whitmer by letter that to maintain his water connection he must relinquish his North Union shares to the City. In this letter, Lindon referenced ordinance 13.18.260, which provides, after notice of secondary water connection termination, a ten-day period for written appeals of proposed service terminations. Lindon's notice was dated August 19, 1993. Whitmer hand-delivered a notice of appeal to Lindon on September 7, 1993. After notifying Whitmer that his notice of appeal was untimely, Lindon terminated Whitmer's secondary water connection.

The trial court granted Lindon's motion for summary judgment and generally dismissed Whitmer's constitutional challenges. ¹ Whitmer argues on appeal that Lindon's requirement that water shareholders transfer their water shares to the City in exchange for connection to the municipal secondary water system when those without water shares can pay cash for their connection is unlawful under the Utah and United States Constitutions. Whitmer contends that Lindon's statutory scheme effects an unconstitutional taking of his water shares, that as a water shareholder he is denied the equal protection and uniform operation of the laws, and that Lindon violated his due process rights in its procedure for terminating his secondary water connection.

All issues in this case present questions of law. We therefore review the trial court's conclusions for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994). While considering the constitutionality of a statute, we will resolve reasonable doubts in favor of constitutionality. Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993). Moreover, where Whitmer bases his claims on both the United States and Utah Constitutions, because we can decide this case under the Utah Constitution, we need not reach questions of federal Constitutional law. See City of Logan v. Utah Power &amp Light Co., 796 P.2d 697, 700 n. 6 (Utah 1990); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 890 (Utah 1988) (holding that where level of protection under state constitution meets or exceeds federal standards, there is no need to reach federal constitutional challenges when we can reach decision under Utah Constitution).

Takings Challenge

Whitmer contends that Lindon's statutory scheme creating its secondary water system effects an unconstitutional taking of his North Union water shares under article I, section 22 of the Utah Constitution, which provides, "Private property shall not be taken or damaged for public use without just compensation." Utah Const. art. I, § 22. We disagree. Lindon residents' connection to the municipal pressurized secondary water system is optional. To connect to the secondary water system, Whitmer was required to pay a connection fee of two North Union shares. However, as a shareholder in North Union, he could have continued to irrigate with water from the North Union Canal. Lindon's statutory scheme does not affect the North Union Canal or Whitmer's access to it. Since the value of Whitmer's shares and his use of the North Union Canal were not taken or damaged by Lindon's legislation, there is no violation of article I, section 22 of the Utah Constitution. Furthermore, should Whitmer choose to connect to Lindon's secondary system and transfer his North Union shares to the City, he will receive the value of access to the municipal secondary system in exchange for his shares in North Union. Whitmer has nowhere argued that the value of the North Union shares the City required of him was less than the value of the shares in the municipal secondary system...