January 2005 Term
JUANITA BUDA, JAMES AND PAMELA FRIEND,
JAMES AND JANICE POLCE,
HAROLD AND DONNA REHE, AND
TERRY AND SHARALYN SHREVE,
Plaintiffs Below, Appellants
TOWN OF MASONTOWN,
Defendant Below, Appellee
Appeal from the Circuit Court of Preston County
Honorable Lawrance S. Miller, Jr., Judge
Civil Action No. 02-C-134
Submitted: February 8, 2005
Filed: March 22, 2005
The Opinion of the Court was delivered PER CURIAM.
1. Uncompensated obedience to a regulation enacted for the public safety, or which may hereafter be enacted, under the police power of the state, is not a taking or damaging without just compensation of private property, or private property affected with a public interest. Syllabus Point 7, City of Welch v. Norfolk & W. Ry. Co., 104 W.Va. 660, 140 S.E. 839 (1927).
2. All citizens hold property subject to the proper exercise of the police power for the common good. Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor. Syllabus Point 1, Kingmill Valley Public Serv. v. Riverview, 182 W.Va. 116, 386 S.E.2d 483 (1989).
3. A statute should be so read and applied as to make it accord with the spirit, purposes, and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law applicable to the subject-matter, whether constitutional, statutory, or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith. Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).
the April 25, 2003, order of the Circuit Court of Preston County that denied
Appellants' complaint for declaratory judgment and ruled that Appellee Town
of Masontown complied with all notice requirements prior to its approval
of a new sewer system to which Appellants are compelled to connect. For the
reasons that follow, we affirm the circuit court.
Appellants and plaintiffs below (See footnote 1) are Preston County citizens who live a short distance outside of Appellee Town of Masontown (hereafter Appellee, Masontown, or Town). Appellee avers that Appellants are residents of an unincorporated area known as the Bretz area. (See footnote 2) Appellants, on the other hand, claim that they do not live in the Bretz area but that their area of residence is separated from Masontown by the Bretz area. The parties agree, however, that Appellants do not live within the corporate limits of Masontown. Appellants are not currently connected to any sewer system, but instead have individual septic systems.
On December 21, 1999, Appellee
filed with the Public Service Commission (hereafter PSC) an application
for a certificate of convenience and necessity for the construction of a
new sewer system. On January 5, 2000, a legal notice of Masontown's application
for a certificate of convenience and necessity appeared in The Preston
County Journal, a weekly newspaper of general circulation. By final order
dated January 23, 2000, the PSC approved Masontown's application. The certificate
of convenience and necessity indicates that the sewer project is funded through
revenue bonds and grants pursuant to W.Va. Code § 16-13-1 et seq. The
revenue bonds of Masontown were created by ordinance pursuant to W.Va. Code § 16-13-5
(1933) and adopted by Masontown's council on July 11, 2001. Pursuant to W.Va.
Code § 16-13-6 (1981), legal notice of the ordinance was published in The
Preston County Journal on July 18, and July 25, 2001, and a public hearing
was held on the ordinance on July 30, 2001.
In July of 2002, Appellants
filed a complaint for declaratory judgment in the Circuit Court of Preston
County requesting the circuit court to declare that they could not be compelled
pursuant to W.Va. Code § 8-18-22 (1999) (See
footnote 3) to connect to Masontown's new sewer system. Under W.Va. Code § 8-18-22, the owner of a parcel which abuts
on any street on which a municipal sewer is located may be compelled by the
municipality to connect with the sewer (See
footnote 4) even if the parcel of land is located outside
of the municipality. In their complaint, Appellants argued that Masontown
failed to give proper notice under W.Va. Code § 8-18-3 (1969), prior
to the Town's resolution to apply to the PSC for a certificate of convenience
and necessity, that Appellants' properties would be affected by the new sewer
After oral argument and the submission of legal memoranda with accompanying documents and affidavits, the circuit court of Preston County denied Appellants' complaint for declaratory judgment. Specifically, the circuit court found that Masontown did not fund its sewer system by an assessment on abutting landowners. As a result, the notice provision of W.Va. Code § 8-18-3 does not apply. Instead, the circuit court found that the sewer system was funded with bonds and grants pursuant to W.Va. Code § 16-13-1. Accordingly, the notice provision in W.Va. Code § 16-13-6 (1981) (See footnote 5) is applicable. The circuit court concluded:
The Town of Masontown complied with all notice requirements under its application for Certificate of Convenience and Necessity and Revenue Bond Ordinance. While the matter of notices to Plaintiffs could have been better handled and could have been more specific, the Court finds and concludes that the Plaintiffs did have notice of [Masontown's] application for Certificate of Convenience and Necessity, did have the right to protest to the PSC, and did receive all notices required by the PSC and the West Virginia Code.
Shortly after the circuit court's ruling, Appellants received notices from Masontown that they must connect to the new sewer system. Appellants now appeal the circuit court's order denying them declaratory relief.
challenges to the findings and conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and the ultimate disposition
under an abuse of discretion standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard. Questions of law are subject
to a de novo review.
Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With these standards in mind, we now review the circuit court's order.
We find no merit to Appellants'
constitutional argument. First, we do not believe that the mandatory connection
to Masontown's new sewer system and the resulting abandonment of Appellants'
septic systems constitute a taking for constitutional purposes. This Court
long ago recognized that [u]ncompensated obedience to a regulation
enacted for the public safety, or which may hereafter be enacted, under the
police power of the state, is not a taking or damaging without just compensation
of private property, or private property affected with a public interest. Syllabus Point 7, City of Welch
v. Norfolk & W. Ry. Co., 104 W.Va. 660, 140 S.E. 839 (1927). Clearly,
it is within the police power of the State to regulate sewer systems and
to delegate this power to subordinate public entities such as municipalities. See
West Virginia W. Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d
891 (1957) (holding that a municipal ordinance creating a sanitary board
and authorizing this board to contract for the construction of a sewage
system is within the police power of the State).
In Kingmill Valley Public
Serv. v. Riverview, 182 W.Va. 116, 386 S.E.2d 483 (1989), we addressed
the question of whether the owner of a private sewer system who has been
compelled to join the sewer lines of a public service district may claim
that the disuse of its system constitutes a de facto taking and
recover its value from the public service district. In Kingmill, the
appellant mobile home park alleged that the forced abandonment of its privately
owned sewage treatment facility constituted an unlawful taking of private
property in violation of Article III, Section 9 of the Constitution of
West Virginia and sought to recover from the public service district the
value of its system which the parties stipulated to be worth $33,700.00.
This Court concluded that the mandatory connection to the public service
district's sewer system and the forced abandonment of the private system
was not a taking and held in Syllabus Point 1 that [a]ll citizens
hold property subject to the proper exercise of the police power for the
common good. Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation
therefor. Accordingly, we find that Appellants' mandatory connection
to Masontown's sewer system and the forced abandonment of Appellants' septic
systems do not amount to a constitutional taking of Appellants' property.
Second, we conclude that Appellants were not due personal notice and a hearing under constitutional principles prior to Masontown's approval of its new sewer system. In the Kingmill decision noted above, this Court discussed the case of Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290, 57 L.Ed. 520 (1913). In Hutchinson, the City of Valdosta, Georgia, passed an ordinance requiring owners of homes abutting upon any street along which sewer mains had been laid to install toilets in their houses and to connect the same to the public sewer lines within 30 days from the date of passage of the ordinance. In reviewing this ordinance, the Supreme Court found that it was a valid exercise of the police power and that it did not deny due process even though it afforded no prior personal notice or an opportunity to be heard. The Court explained:
It is the commonest exercise
of the police power of a State or city to provide for a system of sewers and
to compel property owners to connect therewith. . . . It may be that an arbitrary
exercise of the power could be restrained, but it would have to be palpably so
to justify a court in interfering with so salutary a power and one so necessary
to the public health.
Hutchinson, 227 U.S. at 308, 33 S.Ct. at 292. Numerous state courts have followed [the Supreme Court's] holding that personal notice and a hearing are not required prior to ordering connection to a public sewer system. Alperstein v. Three Lakes Water & Sanitation, 710 P.2d 1186, 1189 (Colo.Ct.App. 1985), citing Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); Weber City Sanitation Commission v. Craft, 196 Va. 1140, 87 S.E.2d 153 (1955); Houpt v. County of Stephenson, 63 Ill.App.3d 792, 20 Ill.Dec. 851, 380 N.E.2d 1060 (1978). In Alperstein, the court relied on Hutchinson in rejecting the plaintiffs' claim that the due process clauses of the United States and Colorado Constitutions prohibit the sanitation district from compelling any owners of property located within its boundaries to connect to its sewer lines absent individual notice and the opportunity to be heard at a judicial-type hearing. See also McNeill v. Harnett Co., 327 N.C. 552, 398 S.E.2d 475 (N.C. 1990) (concluding that statutes and ordinances which were passed without notice and an opportunity to be heard and which mandate connections to sewer lines as well as the payment of related connection charges and user fees are consistent with federal due process protections and are a valid exercise of the police power).
During oral argument before
this Court, counsel for Appellants sought to distinguish Hutchinson from
the instant case on the basis that the plaintiffs in Hutchinson who
were compelled to connect to the town's sewer system lived within town limits
whereas Appellants live outside the corporate limits of Masontown. We believe
that this distinction is legally insignificant. The Supreme Court in Hutchinson hinged
its decision on the police power of a state or a city to provide for sewer
systems and to compel property owners to connect to these systems. Our Legislature has expressly provided municipalities
with the authority to construct sewer systems outside of their corporate
limits and to compel property owners located outside of their corporate limits
to connect to those systems. (See
footnote 6) Accordingly, based on Hutchinson and
the numerous decisions that follow Hutchinson, we find that Appellants
had no constitutional due process right to personal notice and an opportunity
to be heard before Masontown approved the construction of its new sewer system.
Next, Appellants assert that Masontown failed to give notice to them pursuant to W.Va. Code § 8-18-3 (1969), which provides, in part:
the adoption of such ordinance or resolution of necessity or convenience, the
governing body shall cause notice to be given to owners or abutting property
that such ordinance or resolution will be considered before adoption at a public
meeting of the governing body at a date, time and place named in the notice and
that all persons shall at that meeting, or an adjournment thereof, be given an
opportunity to protest or be heard concerning the adoption or rejection of said
ordinance or resolution. Such notice to owners of property abutting on the portion
of the street, alley, public way or easement, or sewer right-of-way or easement,
to be improved may be by service on such owners in the manner in which process
commencing a civil action under the laws of this State is permitted to be served
at least ten days before said meeting. In lieu of such service of such notice,
the following described notice, or one in substantially the same form, may be
given, and shall be deemed to have been served on all such owners of abutting
property, by publication of such notice as a Class II legal advertisement in
compliance with the provisions of article three [§§ 59-3-1 et seq.], chapter fifty-nine of this code, and the publication area for such
publication shall be such municipality[.]
Appellee responds, and the circuit court found, that the notice provisions in W.Va. Code § 8-18-3, relied upon by Appellants, are not applicable here because these provisions apply only to sewer systems paid for by assessments on properties. Here, there are no such assessments. Rather, Masontown's new sewer system was paid for by grants and a bond issuance as provided for in W.Va. Code §§16-13-1, et seq.
The circuit court's construction of W.Va. Code § 8-18-3 is correct. We have held,
should be so read and applied as to make it accord with the spirit, purposes,
and objects of the general system of law of which it is intended to form a part;
it being presumed that the legislators who drafted and passed it were familiar
with all existing law applicable to the subject-matter, whether constitutional,
statutory, or common, and intended the statute to harmonize completely with the
same and aid in the effectuation of the general purpose and design thereof, if
its terms are consistent therewith.
Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908). Chapter 8, article 18 of the West Virginia Code pertains to, in relevant part, assessments to improve sewer systems. Specifically, W.Va. Code § 8-18-1 (1969) authorizes municipalities to construct sewer systems and to assess the cost on abutting property owners. According to W.Va. Code § 8-18-10 (1969), the property abutting the sewer right-of-way shall be subject to a lien, from the date of the ordinance or resolution laying the assessment, which has priority over all other liens except for land taxes due the State, county, municipality or preexisting special assessments.
The record shows that Masontown
did not assess the cost of its new sewer system on abutting properties under
W.Va. Code §§ 8-18-1 et seq. Instead, it funded its sewer
project through revenue bonds and grants pursuant to W.Va. Code § 16-13-1 et
seq. According to W.Va. Code § 16-13-1(a)(2)(b) (2001), municipalities
are authorized to pay for construction of sewer systems and to issue bonds
to pay the cost of the systems. Pursuant to W.Va. Code § 16-13-15 (1986),
the payment of the bonds and interest thereon shall be paid from the revenues
of the sewer system which have been placed in a special fund for solely that
purpose. Therefore, because the cost of construction of Masontown's sewer
system was not paid for by assessment of the cost on Appellants, they are
not due notice and a hearing as set forth in W.Va. Code § 8-18-3. (See
Appellants contend, however, that W.Va. Code § 8-18-3 applies because even though Masontown did not directly assess the costs of the sewer system, it issued bonds for the project which are paid off by the fees charged the users of the new system. This argument must fail. The Legislature clearly set forth the statutory meaning of assessment for the purposes of Chapter 8, article 18 of the West Virginia Code and it does not include the issuance of bonds to pay for a new sewer system which, as noted above, is provided for in a separate section of the West Virginia Code. (See footnote 8)
In sum, we determine that
Masontown did not violate constitutional due process principles in failing
to give Appellants personal notice and an opportunity to be heard prior to
approval of the construction of Masontown's new sewer system to which Appellants
are compelled to connect. (See
footnote 9) We also find that Masontown did not err in
failing to give notice and an opportunity to be heard pursuant to W.Va. Code § 8-18-3
inasmuch as that code section is not applicable to the financing of Masontown's
Finally, we note that the issue herein is limited to the propriety and opportunity to be heard provided Appellants by Masontown. Appellants did not allege in their declaratory action below or before this Court that the Public Service Commission (hereafter PSC) failed to give Appellants proper notice. (See footnote 10) The record shows that Masontown filed its application for a certificate of convenience and necessity on or about December 21, 1999, and on January 5, 2000, the PSC published the required legal notice of the application in The Preston County Journal. This legal notice, however, nowhere specifies that the construction of the new sewer system will affect areas outside of Masontown's corporate limits. We believe that in the future it would be preferable for such legal notices to state with greater specificity the areas that will be affected by the construction of new sewer systems. (See footnote 11) Specific notices by both the PSC and the municipalities seeking to construct new sewer systems will doubtless prevent the kind of misunderstandings and resulting litigation which occurred in this case. (See footnote 12)
The owner or owners shall connect to the municipal sewer within thirty days after notice to connect has been sent by the municipality. Regardless of whether the owner or owners connect to such sewer, the municipality may bill the owner or owners of the lot or parcel and the owner or owners shall pay the municipality's charge based on the actual water consumption on the lot or parcel. If the lot or parcel is not metered, the
municipality's charge shall be based on the municipality's good faith estimate
of the consumption on the lot or parcel.
Appellants do not challenge the constitutionality of this code section.