*1 view, value in of market evidence, my conceded Even if it be case.
this as to the statement out-of-court
plaintiff's to establish is sufficient of the well
value far well, testimony falls value of the basis a reasonable providing
short of par the whole value of determining market Surely in this working well.
cel without not have been evidence
case such point cannot by. come
hard to principle that some general
avoided damage is to be evidence of
uncertainty in especial appli principle has
expected. That profits dealing with lost in cases
cation sales, J. Winsness v. M. see
because of lost Utah, Distributors, Inc., 593 P.2d Conoco will; losses occa (1979); good loss of costs; etc. reduce unit by inability to
sioned inevitably are bur types of losses
These uncertainty be with considerable
dened which of the factors of the nature
cause value, as a Market
must be considered. may give rise to con damages,
measure factors to testimony, but the basic
flicting evalu so difficult are not
be considered event, some there must be
ate. value, and there is none. market
evidence of dissenting opin- J.,
HOWE, concurs STEWART, J.
ion CORPO DEVELOPMENT
BANBERRY Compa RATION, Construction McKean Inc., Finance, Realty ny, Midwest and Re corporation, Plaintiffs
Utah
spondents, CITY, cor JORDAN
SOUTH Appellant. poration, Defendant
No. of Utah.
Supreme Court 3, 1981.
June *2 Mazuran, City,
Michael J. Salt Lake for appellant. defendant and McDonald, John Cook, H. Craig S. Salt Lake plaintiffs for respondents. OAKS, Justice: This is a suit three against subdividers challenge of water connection fees im- posed as a condition to connection to the city water main and as a condition to final approval of the plat. subdividers' At issue appeal in this legality are any such fees, and, they legal, if are the criteria for judging their reasonableness. procedure charging for park im- provement appear does not in the rec- City 13-1-5, ord. Ordinance which the sub- dividers lawfully concede was enacted and constitutional, requires a subdivider who desires to connect to the water agreement enter into an "specifying the terms and conditions under which the water extensions and connection shall be made payment that shall required." Paragraph agreement 10 of the adopt- form ed required of all subdivid- plat ers approval obligates before the subdi- pay viders to the entire cost of all water lines required subdivision, to service the including extensions existing from water mains and connecting all lines within the provides subdivision. -It also that "the charge Applicant shall a connection fee in the amount of for $. each individu- al dwelling unit to be served within the subdivision, which payable sum shall be full to the before the sys- tem is existing City connected to water required mains." The connection fee was $1,000 for a Y%-inchline $800 for a 1l-inch line. 10-8-38 au as § the water manner in the same the collection fees Objecting fees, the of sewer collection devel- for the from the thorizes fees in advance urged two statutes these combination of tax and an unlawful oper constituted collecting water fees from to forbid cities without taking property unconstitutional sewer authorized not circumstances injune- sought subdividers process, due 17-6- not follow. Section fees. This does city's challenged the They tive relief. *3 mandatory. poses It not permissive, 22 is the per lot on of improvement fee $285 against the statutory prohibition no fees as both They also attacked basis. same collec subdi- a from fee water of a tion discriminatory. the at subdivision in a lot each for vider trial, of the dis- On motions in advance city the up to is hooked the time (1) validity the of the
trict court sustained system. water the granted fee and improvement The a sewer connection fee to of it, (2) held city's to dismiss as to and motion improve money enlarge raise and a sewer of the water connec- the advance collection system by this Court in was sustained law, granted contrary statutory tion fee City, Provo 28 Home Builders Ass'n v. Utah judg- summary motion for the subdividers' (1972), 451 discussed here 2d 508 P.2d ment, enjoined city permanently and trial In a decision issued after city after. Both the and its enforcement. from case, we sustained a appealed. court acted in this have the subdividers privi municipality's power to withhold the I. lege service until a of water WATER THE VALIDITY OF landowner municipal sewer connection paid had a valid AND PARK CONNECTION Utah, Rupp fee. v. Grantsville IMPROVEMENT FEES P.2d 338 In two other decisions the ad The district court ruled that acted in this after the trial court issued fee vance collection of the water connection case, municipality's require a we sustained illegal by the combined effect was rendered portion of ment that subdividers dedicate U.C.A., 1953, and 17-6-22. of 10-8-38 § § purposes recreational subdivision land for empowers city, for the 10-8-38 Section lieu) (or as a condition of final pay cash in defraying costs of construction purpose of plat. City v. of West approval of their Call system, require operation or of a sewer Utah, Jordan, (1979). On payment charges mandatory and case, rehearing we held that in this same within 300 when a sewer is available and cash of the dedication or the reasonableness property containing building feet of ques requirement particular case was in a occupancy. used for human Section 17-6- at trial. be resolved tion fact that must provides municipal corporation that a Jordan, Utah, 614 P.2d of West Call improvement contracts with an dis which sewage shall trict for services have authori have resolved the These four decisions charges parties ty to make service who park im- legality of water connection system. to its sewer If the munici connect designed to raise funds to provement fees pality operates system, a waterworks also sys- and water improve sewer charges enlarge and provides that these the section opportunities, as well charge tems and recreational "may combined with the made conditioning hook- water legality water furnished the water as for on their collection. ups plat approval collection may be collected and the or open However, leave in the same manner as that these decisions thereof secured 10-8-38, any indi- Annotated specified question in Utah Code of the reasonableness Section re- charged or land dedication 195 3." vidual reasonableness question quired. This Because § 10-8-88 does not authorize the partic- in each on the facts charging resolved of a sewer connection fee judg- reverse both lots, case therefore of vacant ular case. We and because 17-6-22 § provides case for trial the entire city may ments and remand collect water municipal improvements, statutory limits fees the the reasonableness on taxation, legal on limits on in this case. imposed has restrictive exclusionary zoning. being remanded for this is Because case the water argue that The subdividers trial, this Court appropriate it costs in city's exceed the park fees far standards of constitutional elaborate on the respect to these matters and that the excess govern the va- reasonableness would be city's general operat- used these. charges such as lidity of subdivision ing fund. The maintains in its brief in IL this Court the water connection fees THE REASONABLENESS OF SUBDIVI- enlarge used water lines and would. be SION IN FEES GENERAL storage facilities, and pumping and the Like many so municipalities other in this fees would be used to state, of South Jordan confronts enlarge develop city parks. parties problems providing a fast-growing differ on whether such an intent was se- city with adequate water, services for sew- cured restriction, such as enforceable *4 er, recreation, and other common needs. In deposit separate to a fund. These conten- 1978, city had to deal with develop- tions, all reasonableness, relevant are
ment of about 600
(including
lots
the 400 in:
matters for consideration at trial.
subdividers' development), up from about
65
prior years.
in
growth
Such
puts a
The
argue
subdividers also
that
the water
severe strain on the
personnel
financial and
imposed
connection fee cannot be
on the
resources of a small municipality, and if not
developer, but
imposi
must be deferred for
properly managed could well overburden
tion on the lot owner or homeowner at the
common facilities like water and sewer to
hookup.
time of
We
argument
find this
point
where their service would deterio-
unpersuasive. This is not a case where the
rate severely for the existing occupants and
party burdened with the exaction will de
inadequate
be
for the new ones.
appro-
An
rive no benefit from it.2 When the subdivi
priate way
provide
adequately for such
sion is
city's
connected to the
water and
by
services is
advance planning and finance-
systems,
sewer
prepared
ing.
perform
demand,
its services on
and from
financing mu
The conventional means
that fact
the subdividers derive immediate
revenues,
special
nicipal
are tax
facilities
provision
standby
benefit. The
capacity
addition,
assessments,
bonding.
in
requires
to subdivision
the commitment of
units
many
governmental
years
local
recent
capital.
substantial
The
does not have
country
employed subdivision
this
have
in
to wait until someone
tap
turns on a
fees,
as the
require
such
plat controls to
flushes a
requires
toilet before it
participa
case,
in this
park fees involved
water and
tion
providing
in the cost of
its services.
developers to contribute to
force
Subject
requirements
to the
of reasonable
serv
capital costs
centralized
below,
ness discussed
fee that
concededly
valid
ices in addition to
requires
pay
a subdivider to make advance
solely
de
applicable
to their
costs
localized
portion
ment of some
capital
of the common
this state and
The courts of
velopment.
committing
costs attributable
service to
legality
of such
approved
others have
the lots in the subdivision is valid. The
fees,
struggling to define
are still
but
same is true of the
fee.
that must be im
reasonableness
limits of
proceedings
The
on remand in this
legal
case
Without
posed upon their amount.1
governed by
leading
will be
two
decisions of
or constitution-
limits-imposed
statute
Court,
dealing
this
one
with a municipal
charges
easily
could
be used to
employs
expensive
service that
bonding
requirements
central
statutory
avoid
Through
Johnson,
1.
J.
of Subdivision
Subdivision
"Constitutionality
Exactions,"
73 Yale LJ.
Control Exactions:
The
for a Rationale,"
Quest
(1967);
52 Cornell
Gilhool,
&
L.Q.
Heyman
Imposing
"The
Increased
Constitutionality
of Denver
County
Greenspoon,
402,
Costs on New Suburban Residents
140 Colo.
905 Mo., equitably upon services "falls City, Kansas v. of Kansas 555 those who are similarly S.W.2d 832 situated and in a just proportion to benefits conferred."
IV,
Estates,
Deerfield
Township
Inc. v.
of E.
PARK
OF
REASONABLENESS
Brunswick,
115,
498,
60 N.J.
286 A.2d
FEE
IMPROVEMENT
(1971). The measurement of "benefits con-
(In
Jordan, Utah,
v. City
Call
of West
may
significant
ferred"
impact
have a more
rehearing,
(1979), opinion on
606 P.2d
on the reasonableness of
fees than on
upheld the
(1980), this Court
water connection fees. The central
facili-
required
validity of a
ordinance
support
ties that
water and sewer service
approval,
subdividers,
plat
as a condition
generally
confer the same benefits in
subdivision
proposed
to dedicate
certain
every part of the municipality, but the ben-
lieu) for
(or pay cash in
land to
recreational,
efits conferred
flood con-
recreation
park and
and/or
flood control
trol,
dispersed
may
or other
resources
be
remanding
case for trial
facilities.
measurably
parts
different in different
as
constitutionality
of the ordinance
on
municipality.
improvement
Park
fees
e.,
seven
(i.
requirement
applied
equita-
should therefore be fixed so as to be
land be dedicat
percent
light
in
ble
of the relative benefits con-
ed),
that "the dedication
this Court
ruled
on,
ferred
as well as the relative burdens
relationship to
some reasonable
should have
previously
yet
borne and
to be borne
Id. at
by the subdivision."
the need created
newly developed properties
comparison
in
following from
quoted the
1258. The Court
properties
with the
municipali-
other
of Greater Kansas
Builders Ass'n
Home
ty
question
as
The fees
a whole.
Mo.,
Kansas
S.W.2d
City City
not exceed the amount
equal-
sufficient
(1977):
8
ize the relative benefits
and burdens of
upon the subdivider
cast
the burden
[I]f
newly developed
properties.
and other
activity,
reasonably attributable
to his
is
The factors
considered
the deter-
requirement
dedication
then the
[of
mination of relative burden are similar to
not,
permissible;
if
in lieu
fees
thereof]
the factors discussed in Part
III in connec-
to a confisca
and amounts
it is forbidden
tion with water connection fees. The flexi-
in contravention
private property
tion
bility
presump-
to be tolerated within the
rather
prohibitions
of the constitutional
regularity
tion of
and the disclosure of the
regulation under
than a reasonable
specified in Part III is
basis of calculation
power.4
police
applicable
type
to this
of subdivision
also
munici
obviously holds the
Reasonableness
charge.
rationality
higher standard
pality to a
not be
its actions
*7
requirement
than
judgments
The
of the trial court are re-
capricious.
arbitrary or
appeal
versed in
cross-appeal,
and the
in Call v.
test
the reasonableness
Under
and the cause
proceedings
is remanded for
Jordan,
supra,
the benefits
City of West
opinion.
consistent with this
No costs
need not accrue
exaction
from the
derived
awarded.
1259);
(614
at
P.2d
solely
the subdivision
STEWART, JJ.,
HALL and
concur.
needs that
recreation are
control
flood
HOWE,
(concurring
Justice
and dissent
rest
from the
in isolation
be treated
cannot
ing):
time, the
municipality. At the same
of the
from the exaction
derived
I concur
benefits
city may
defendant
subdivi
to the
benefit"
lawfully require
of "demonstrable
water connection fees to be
paid
running
1259).
at
the time the
line
(Id. at
main
sion
fees,
through the subdivision is
connected to the
As with water
city system and
brought
water
is
or fees should be
of such exactions
amount
edge of each lot. I arrive
providing these
at this conclusion
such that
the burden
Jordan,
4. Call v.
of West
in view of the invested in cities "construct, oper maintain and towns to Betty Harper CULBERTSON, Executrix U.C.A.1958; waterworks," ate 10-8-14 § Joyce Culbertson, of the Estate of K. use," paid for the water "fix the rates individual, and as an Plaintiff and Re 10-8-22; ordinances, and to "enact rules § spondent, regulations management for the conduct of the waterworks owned or it," 10-7-14. It is controlled not un § CONTINENTAL ASSURANCE COMPA require payment reasonable of the con NY, corporation, Chicago a Tennessee nection fee when the water is turned into Bridge Company and Iron Profit-Shar coursing through the main line the subdivi ing Trust, Trust, Plan an Illinois Beth sion time because at that the defendant Rowley Conrad, Culbertson an individu obligated to furnish water to each and al, Culbertson, individual, Loretta an every requested. prepare lot as In order to Culbertson, individual, Richard an this, to do had the defendant to make Chrystella Culbertson, individual, an capital enlarge expenditures capacity its Culbertson, individual, Elizabeth De so that it could meet the new demands to be Appellants. fendants and imposed upon it. concur I 10-8-38 is § prohibition against not a advance collection. No. 17148. I also concur with the criteria of reasona- Supreme Court of Utah. bleness in Parts contained III and IV of the majority opinion. June dissent, however, I holding from the majority opinion city may law fully impose improvement fees. I con reasoning
cur with the of Justice Wilkins in dissenting opinion
his in Call v. Jordan, Utah,
West imposition
fees is even more offensive in this case furnishing
since the conditioned the
water service upon to the subdivision their
payment. subjects To me the two are en
tirely separate and I believe it to be an city's authority
abuse of the to own and
operate system (a proprietary a waterworks
operation) furnishing to use the of water as
leverage to collect fees for other unrelated
purposes. 10-8-38 Section authorizes cities
and towns to discontinue water service to
premises charges where the sewer service paid,
have not been I but find no authoriza deny park improve
tion to also service until paid.
ment fees have been *8 MAUGHAN, J.,C. concurs opinion HOWE, J.