*1 Commission, accepted criteria of the satisfy at a fair upon arriving
which it relies rate, regard same
reasonable testimony for its conclusion that
basis acceptable
offered its Staff accords words, should be stated. In other
criteria the reasons why
the order should reflect view over the other expert’s
one was chosen subject do so does view. Failure to
expert’s as being to attack
the order PSC contrary to law.
arbitrary, capricious, permit this court
We hold that order to judicial review accomplish law the must be remanded
required by case supplemen- requisite so PSC can be findings
tal made.
The order of district court affirmed part part and reversed in with instruc- that the case remanded to PSC
tions findings entry relating additional return
to a fair and reasonable rate of with this opinion.
accordance COULTER, Stage
Milton L. d/b/a Coach
Apartments, partnership, a limited
Appellant (Plaintiff),
v. RAWLINS, Woodbury,
The CITY OF Glen Doug Smith, Gonzales,
Mayor, Pauline Martinez, Grabow, Jay
Debari Harlan Comeaux,
Patchen and Donald G. Council,
members of
Rawlins, (Defendants). Appellees
No. 5764.
Supreme Wyoming. Court of
April
Edwin H. Urbigkit Whitehead of & Whitehead, P.C., Cheyenne, appellant. Johnson, Rebecca H. Noecker of Mac- Noecker, Rawlins, Pherson appellees. & ROONEY, C.J., RAPER, Before THOMAS, BROWN, JJ. ROSE (cid:127) ROSE, Justice. appeal
This involves important questions regarding power of Wyoming munici- palities charge developers for con- fees necting their to water and sewer lines, require as well as the dedica- such, and, is without as in lieu of dedica- assessment payments land or tion of appellant’s property to burden purposes. authority recreational parks and tion for purposes. rule on the or assessment we are asked to taxation Specifically, adopted by several ordinances validity of by assert- responds of Rawlins of Rawlins Council charges that the levied are not taxes ing priv- fees requiring but are such fees or assessments *3 to the connecting development his of ilege be- may require appellant City the and one ordinance system, water sewer and developing property. City his fore City remit to the appellant to requiring the challenged the ordinances contends dedicating portion of his a sum in lieu au- adopted compliance in with the were park. the establishment by the thority City vested in the Council appellant the brought by was An action state of and statutes constitution the authority City of the challenging the Wyoming. the above ordinances. enact and enforce expressed by agree position We with the of the chal- upheld court each The district authority to its City the of Rawlins relative and, a con- pursuant lenged ordinances ordinances, we challenged but adopt the awarded by parties, into the tract entered for the award of attor- authority find no were associ- attorney’s fees as City the such in will affirm fees. We therefore ney’s the action. In the defense of ated with part. and reverse in part ruling, appellant ap- to an adverse response following court and raises peals to this FACTS review: issues for our devel- appellant In Milton Coulter finding err in the Trial Court “1. Did housing project oped a 96-unit low-income Rawlins, enacting in ordi- City that the Rawlins, Wyoming. This City in the fees, acting was with- prescribing nances Stage is as the Coach development known Legislature? by power granted in also the name of a Apartments, which is finding err in Trial Court “2. Did the is partnership limited and sewer connection fees that the water general partner. park- in lieu of money and the exacted energy develop- onslaught With the constitutional, pur- were land dedication 1970’s, Wyoming during ment expressly granted by to powers suant substantial- of Rawlins increased population bur- Legislature, proportionate 1990 the by indicate ly projections City by of the put upon den facilities will in- total number of inhabitants City’s complex? Appellant’s apartment population. over the 1970 crease 148% finding err in “3. Did the Trial Court projections, City to these response agreement an by signing Appellant, City that the demand for reasoned Council he, owner, reim- agreed wherein water, park sewer and fa- services such as for all administrative costs City burse the increase and that there cilities would also City incurred expenses projected was a need to offset the impact. equipping acquisition, construction developed by City, According plan persons, for low income housing project $36,- approximately estimated that it was attorney’s fees had left himself liable would be 000,000 capital improvements the constitution- challenging and costs in sys- water expand the sewer and needed City ality imposed of the fees population in order to meet the 1990 tem paid by Appellant protest?” under estimate. position is that Appellant’s or constitu- statutory Rawlins is without THE ORDINANCES challenged or- authority to enact the tional respectively, 21 and January premised upon This is On argument dinances. adopted Rawlins of the fees Council questioned that each of the the belief water ser- requiring IB-80 No. as either a tax Ordinance must be characterized service, need of a water the service vice fees and Ordinance No. connection tapping 1-80 fees for into the requiring payable connection fee be due and shall No. IB-80 City’s system. Ordinance at the time the water meter requested, is for, provides: applied building permit whichever comes first. The service con- Council “BE IT ORDAINED nection fee shall be calculated on Rawlins, Wyoming: basis of service connection fees in effect 28-13 of the Code “Section Sec. as of the request date of such for water of Rawlins is Ordinances of the application building permit. meter or hereby hereby repealed and Sec. 28-13 is Wherever, opinion “f. re-enacted to read as follows: duly desig- his Superintendent Water connection Service Water 28-13. “Sec. pressure a reduced representative, nated fees. to elimi- required preventer backflow fee shall be “a. A service connection contamination nate *4 each on the charged tap connec- service through specified a supply in accordance system, Rawlins’ water type tion, preventer such backflow schedule: following Super- by the Water design approved installed be furnished
intendent shall specifications. in accordance with fire private protec- “g. taps Fees for charged in accord- tion facilities shall be pro- following schedule ance with the vided, however, water service any to said distribution tapped connections multiple connection fees for “b. Service protection fire private line extension or com- residential construction shall be unit at charged for facility shall be $1,000 unit. living for each puted at specified. applicable rates herein event, connection fee no shall the service specified minimum
ever be less than the
herein. fees for tem- connection
“c. Service computed at 25 shall be
porary facilities minimum service the normal
percent of year portion each or
connection fee for facility is temporary year in existence.
expected to be All larger
“d. service connections than uniform
three-fourths inch shall be size tap building from the service line Responsibility: “h. Construction Building structure or structures. shall, make the expense, at its right require Official shall reserve the main and physical tap on water larger any service connection to build- meter, water furnish and install the structure, ing, development or if the con- applicant for the water service service requirements through such shall, expense, nection at his sole may, operation, normal connection under trench, conduit for pipe, service line as velocity per cause a of ten feet second required, pres- remote reader units where Code, Plumbing specified in the Uniform reducing required, sure valves where through such service connection. required, where preventer backflow trench, all to install shall install same and backfill necessary it is “e. Whenever specification advance of with the in accordance water service connection actual prior to construction and of Rawlins. street 892 sanitary sewer To the cost meters and defray “i. Rawlins, hereby estab- Wyoming, installations, surcharges following
their paid imposed, which shall lished and fees: shall be added to connection or connection prior physical X n " “1. with a ¾" For service sani- any authorizing of construction meter, 125 for the the sum dollars into the tary system tying waste yoke 125 dollars plus meter and meter sewerage sanitary system, owned if pit and cover for the meter fee shall be development vault, plus in a pit meter located or follows: pit excavation and 150 dollars units, multiple “a. On con- family all backfill, provided by the owner. if not townhomes, dominiums, home mobile meter, with a ¾" “2. For service parks, multiple family or the meter and dollars for sum of 155 dwellings, by description whatever or for the plus meter dollars yoke name, motels, except hotels and there meter is meter and cover if the pit be charged development shall a sewer vault, pit plus located in per living fee of 750 dollars unit. if excavation and backfill pit dollars for office buildings, “b. On all commercial provided by not the owner. hotels, motels, buildings, and business meter, the with a 1" “3. For service there buildings every description, the meter and sum 205 dollars for fee of development shall be a sewer plus 125 dollars yoke meter urinal, the first 750 dollars for toilet cover if the meter is pit meter for each additional plus 200 dollars vault, plus pit in a located *5 toilet urinal in excess of one. and/or backfill, excavation and pit dollars for Any having principal its structure if not owner. provided a that would accessory facility or use larger “4. with meters For services require high sewage discharge rate of inch, labor, than cost of one actual sanitary to the sewer shall a fee equipment. materials and negotiated be and shall by contract “5. For all meters protection on fire relationship bear a reasonable lines, labor, cost the actual of materials size of water and the service and equipment. average single for a discharge rate “j. All water service connection fees family dwelling. fees, private protection upon fire tap dwelling units family single “c. On all delivery City Treasurer, shall be sanitary sewer charged be there shall deposited credit develop- to the of a water of 750 dollars. development fee fund, ment made to be available for the development “d. tem- Sewer fees for
purpose paying development porary computed facilities shall be at only.” debts service percent normal minimum provided: 1-80 Ordinance No. development year sewer fee for each City “BE portion IT ORDAINED or year temporary Rawlins, Wyom- facility Council of expected is to be in existence. ing: it is to install necessary “e. Whenever 28-42 of the Code of “Section 1. Sec. street tap a sewer in advance of of Rawlins is Ordinances of need of prior construction and actual 28-42 is repealed and Sec. hereby service, development a sewer the sewer follows: hereby reenacted read as payable fee shall be due and at Sanitary tapping “Sec. 28-42. sewer same time the water service connection fees. fee or at the time becomes due sanitary for, A development building applied fees: is which- permit “Sewer privi- development fee first. The fee shall sewer ever comes connecting sewer devel- lege tapping calculated on the basis of of. final platting in one the date or any fees in effect as of opment combina- tion of the following ways: due. such fee becomes “1. By dedicating to the City of fees, development .upon “f. All sewer Rawlins on the final plat. Treasurer, shall be delivery to the By “2. granting the land areas in of a sewer deposited to the credit simple general fee warranty deed to fund, avail- development to be made City. purpose paying able for the
development debts service.” Suitability “b. of Land. land to Any enacted July requirement Council be dedicated as a of this for dedica- providing Ordinance No. 7-80 reasonably section shall be adaptable open spaces tion of land for parks park for use active and recreational subdivisions, or, at new residential purposes and shall be at a location con- in lieu of City’s option, money payment venient to the people be served. read: provisions land. The of this ordinance Factors in evaluating adequa- used BY THE GOVERN- “BE IT RESOLVED cy proposed park and recreation RAW- THE CITY OF ING BODY OF shape, areas shall include size and to- LINS: cover, access, pography, geology, tree That of Ordi- 30-66 Code § “§ and location. Rawlins, nances, hereby re- persons “c. The number of of the Code of pealed and a new 30-66 generated by land uses particular Rawlins, Ordinances, is enacted to zone within a districts subdivision for follows: read as purposes calculating the amount of PARKS, RECREATIONAL “§ 30-66— provision parks land area recre- PLACES, AND OTHER PUBLIC SITES ation areas shall be based on the fol- shall “a. All residential subdivisions lowing calculations: recreation- public parks in accord- al sites dedication of land PER PERSONS “TYPE OF USE DWELLING UNIT Subject regulations. ance with these 4.0 Single-Family Dwellings Planning Com- approval and all Apartments, duplexes mission, of such sites and dedication *6 dwelling having units two bed- at the City option land areas to the 3.2 rooms thereof, the the and in lieu City dwelling having All one units including payment make a to bedroom, subdividers apart- 2.5 ments, etc. condominiums, equal to City money the of a sum of Dwelling aged, units for the oth- value of the land which would the nursing homes, buffet-type City. to the The erwise be dedicated units with no bed- apartment 1.5 etc. land to be dedicated shall rooms, value of the Bunkhouses, dormitories, etc., on the basis of full and be determined 1.0 etc. bedroom, per raw land. The fair market value of the 4.0 Mobile Homes means land without term ‘raw land’ is determined “d. Where such as water and any improvements required for of land is amount greater lines, gutter, curb and paving, meet the Mas- parks open spaces values of the raw etc. Fair market for that area requirements ter Plan time be as of the land shall determined is determined or where it City, the plat. Any filing preliminary the type of any required land is sums, shall be held required, such when at the facilities, subdivider the public im- acquisition by City the with the plat final filing the time of land areas. of such sites and provement must offer Planning Commission parks Provision of land areas City, to the price a fair market sell at be at the rate of sites shall recreational following immediately year within one 1,000 in the subdi- per persons six acres land any plat, the final recording sites and Dedication of such the vision. the time of in accordance be made at be dedicated required land areas shall reducing City’s funds for use in bonded any proposed such 30-36a. If with § capital indebtedness which resulted from purchased not been areas have expenditure sys- for the sewer and water after the City year within one by designed 7-80 was tem. Ordinance No. areas plat, final such recording of the expansion and mainte- create a fund for the and blocks subdivided into lots may be park land. City's nance of the requirements with the in accordance this Ordinance. ordinances, with these compliance ded- cash in lieu of land City, pro- “e. Whenever under remitted recrea- parks required $240,750 ication is test, in sewer and water line con- of the sites, fair market value $119,660.54 tion payment nection fees and mutu- determined raw land shall be dedication. park-land lieu of the subdivider between agreement al upon This was initiated and tried dispute In the event of Council. complaint sought which a de- appellant’s parties of the above inability judgment to the effect claratory of the a fair market value agree on they were unlawful in that had ordinances being a sites, party independent an authority of the laws adopted been without shall be selected qualified appraiser, pertain Wyoming of the state of disagreeing of the agreement mutual governing bodies legislative powers find- independent party’s parties. Said municipalities. judge The trial Wyoming of the site on fair market value ings challenged all of the ordinances held that parties. on all binding final and shall be in accordance adopted pursuant were to and shall be a mem- qualified appraiser A with the vested Council (M.A.I.) Appraisal Institute ber legislature of Rawlins (A.R. Appraisal Rural or an Accredited fees were reasonable and and that all of the the cost shall A.). developer legitimate govern- rationally related to appraiser. of said designed were to fur- purpose they mental require- Payments “f. made under ther. shall be made ments of this section which we are asked to address The issue of Rawlins. payable to City of Rawlins is whether or not at shall receive such funds City Council Wyoming empowered by was Constitu- plat approval of the final the time statutes to enact and en- tion and various Treasurer, them with the deposit question.1 the three ordinances in We force such funds in deposit shall in turn who requiring ordinances first address the fi- approved designated fees and will sewer and water connection City. institution within nancial park-land dedication ordi- then address special deposited funds shall Such section. separate nance in a accounts. The bearing interest escrow report- *7 these accounts shall be status of CONSIDERATIONS GENERAL City Council and annually ed vari- discussing reviewing Before to the Parks shall be made available which we consider statutory provisions ous general Board and the and Recreation appeal, it is to the facts of this applicable from may Funds be withdrawn public. principles general review some necessary to City escrow accounts special municipal regarding powers of law Council, specific purposes for the legislate. corporation and recreation acquiring park lands for making im- and of respectively sites corpo municipal It is settled to the sites.” provements legislature and of the rations are creatures had as and sewer ordinances These water 2 control. subject statutory thereby special 8; development Corp 4.03, purpose (3d Ed), p. their McQuillin Mun § only positions expressed charges concerned with and the at oral and is The briefs City adopt argument challeng- of the of Rawlins to them. reflect that is not ing of the amount of the the reasonableness
895
Wyoming State Treasurer v. City of Raw
ly granted.”
(Footnotes omitted and em-
lins, Wyo.,
(1973). Thus,
pal corporations
In the
possess certain
last above-cited
implied,
opinion we
incidental,
that,
sometimes referred to
pow-
noted
although the home-rule amend
* *
include,
ers
*.
implied powers
13,
Such
(Art.
1(b)
ment
of the Wyoming
§
Con
to,
generally
held to be limited
stitution) empowered
of Laramie
following:
affairs,
control and determine local
cer
“1. Powers
tain areas of
necessarily arising
municipal authority
from
remained
subject
control,
those expressly granted,
legislative
and also those
including the
reasonably
taxes, excises,
inferred from the powers
“levying
fees,
expressly granted.
charges.”
THE STATUTES3 powers to enact and en been vested with regula zoning regulations, force with said (1980 Re- 15-l-103(a), In W.S.1977 § to: being designed tions powers of following general placement), streets; “(A) congestion Lessen cities and towns set out: fire, safety panic from “(a) “(B) of all cities Secure governing bodies dangers; may: and towns wel- “(C) general Promote health fare; “(ix) special assess- Levy collect air; “(D) light and adequate Provide persons property against ments land; allowed constitution overcrowding extent “(E) Prevent law; and the popu- “(F) Avoid concentration of undue [*] [*] [*] [*] [*] [*] lation; and “(G) adequate provisions dis- Facilitate “(xxx) into suitable Divide water, schools, transportation, sewerage, establishing tricts public requirements.” and other sanitary parks sewers and drainage, added.) 15-l-601(d)(i), (Emphasis § mains and: (1980 Replacement). W.S.1977 regulate the con- “(A) Provide and struction, of sewers and repair and use 15-7- provisions, to the above addition drains; (1980 101, Replacement) reiterates W.S.1977 for violations
“(B) penalties Provide municipalities powers of comprehensive of regulations; construct, maintain and facilities for their inhabitants.
“(C) against con- and water Assess pertinent subdivisions language or costs and ex- The any penalty cerned regulations; is: penses compliance this, parties statutory opinion will do not because the In this we refer to the We
3. will upon they appear revised their have relied briefs, numbers in the revised Title numbers as comparison though ques- Wyoming of the old title but because statutes even applica- has adopted in the revised version shown were 1980 and the tioned ordinances respects statutory provisions January in all made be effective ble revised act was substantially 1980.) Wyoming to the former sections. (Chapter similar S.L. *9 “(a) pro- Establish, construct, all powers “(iv) purchase, addition to other ex- law, city or town any may tend, vided make regulate system maintain and improvements as follows for added.) sewerage;’’ (Emphasis to the or may bonds be issued contractor are again expressed Similar provided sold as in this to: chapter 15-7-502(a)(i), (1980 Replace- W.S.1977 § nn nn * * * % ment): “(a) or “(ü) Establish, construct, Any city town purchase, may: ex- tend, regulate maintain and a system Construct, reconstruct, “(i) improve works, sup- of water purpose for extend, acquire, improve, and or extend plying extinguishing water fires for system, operate sewerage and within domestic, and for and manufacturing its corporate or without limits and may purposes. carry other To out pow- this grants for and or apply accept loans or er, or prevent pollution injury or to aid any other from the United States streams, or springs supply source of or any agency of America or instru- works, of its water ditches or reser- mentality any thereof under federal voirs, any city may go or town beyond law aid in the prevention and abate- take, corporate its and limits hold water or pollution, may ment of borrow acquire by purchase or other- property source;” any from other money wise and all may and take condemn With respect op- revenues derived from necessary land and legislature eration sewerage system manner provided condemnation goes provide: on to companies. real estate railroad “(a) All revenues opera- derived from the city Jurisdiction or town shall ex- sewerage system tion of the shall be set up along tend the stream or and source deposited spe- aside as collected and in a entire supply for the distance occu- only cial fund to be used for: works, pied or by such water ditches “(i) Paying operating the cost of and or reservoirs. Cities towns enact maintaining system; all necessary ordinances and make rules “(ii) Providing an adequate deprecia- regulations government and fund; tion and works, protection and of their water “(iii) Paying the and principal interest reservoirs, ditches and fix water and bonds issued this article.” under rates for their and collection. 15-7-507(a), (1980 Replace- W.S.1977 § All except water rent collected ment). expense amount required empowered Municipalities extending and maintaining, improving charge rates services rendered works, shall part water become a 15-7-508, (1980 provisions W.S.1977 fund, applied the water bond and be Replacement): principal payment “(a) borrowing money and bonds issued for or town Any interest of the construction, maintaining receiving grants improving, and con- purchase, works; improving a structing acquiring and extension of the system, charge shall sewerage collect “(iii) es- any necessary Take action users of the at a rate from the extend, tablish, purchase, maintain to: sufficient system for regulate supplying a water “(i) Pay operating cost of water to its inhabitants maintaining including: system; public purposes, depreciation “(A) “(ii) adequate an property; Condemnation Provide fund; “(B) Prescribing regulating water; interest on “(iii) Pay principal
rates for the use issued; and the bonds “(C) ordinances for Enacting their “(iv) Repay grants. enforcement collection. *10 lines
“(b) operat- extending or ated with the to facilitate Any city owning town and In this ing sewerage apartment project. arguing constructed or ac- the system of quired provisions points provisions under the of law to the point, appellant may 15-7-512, (1980 that the users provide Replacement): ordinance W.S.1977 § of sufficient system pay the a service rate “(a) Any city may special or town make to pay operating the cost of and main- assessments for the construction of sew- taining system provide the to an ade- The ers and water mains. assessments quate depreciation fund. of pieces shall be made all lots and “(c) city special town fix Any may or block, the the or if ground to center of provided rates as in 15-7-407.” W.S. the sewers or water mains are construct- alley, pieces ed in then on all lots and an placed power One of the limitations on the ground of to the to collect rents or for the use of nearest street or avenue along City’s system alley, extending water is 15—3— on each side the found § 305(c), (1980 street, Replacement), alley, avenue the W.S. the or distance provides: according the to the area improvement, pieces ground or without of the lots
“(c)
collected, except
All water rents
the
regard
buildings
improvements.
to the
required
pay
expenses
amount
to
the
The
to be paid
property
amount
each
maintaining,
extending
improving
dividing
shall be determined by
holder
the
the
shall be
city,
water
the
construction of the
applied
princi-
expenses
to
the
only
payment
the
among
or water
all
pal
outstanding
proposed
water
sewer
main
and interest of the
the
property
until full
the
holders for
benefit
payment
bonds
thereof.”
whose
the sewer
water main
property
statutory provi-
we read
When
the above
is to be
In the
of un-
constructed.
case
sions
that
together, we are convinced
limits,
platted acreage
city
within the
legislature
empower
has
to
chosen
munici-
city
only
or town shall consider that
palities
authority
with full
over
and control
seventy-five (75)
first
feet
each di-
sewerage
The
systems.
water
from the
or water main is
rection
sewer
City
only
of Rawlins is therefore not
However,
and so
if
benefited
assessed.
charged
providing appellant
with
sewer and
any property
unplatted
an
area is later
services,
“construct,
water
must
but it
connected to or receives service from
extend,
purchase,
regulate”
maintain and
main,
sewer
that
shall
property
or water
those
for the benefit of its resi-
systems
its
proportionate
assessed
share.
(iii),
7—101(a)(ii),
dents.
Section 15—
against
prop-
amount to be assessed
each
(iv),
municipal
In
out
supra.
carrying
this
erty
shall
to the
proportion
holder
be in
responsibility,
City of Rawlins has been
each
square
number of
feet
owns to
empowered
necessary.”
to take
action
“any
entire
feet
square
number
assessed
7—101(a)(iii),supra.
only
Not
Section 15—
of the construction.
expense
required
of Rawlins
City
appellant and
of its incor-
other inhabitants
“(b)
ordi-
adopt
town
services,
area with
and water
porated
sale,
the manner of
providing
nances
charge
but the
must also
the users of
conveyance
of lands sold
redemption
systems
those
order
the costs
special
nonpayment
assess-
maintaining, operating
associated
ments.”
expanding them.
15-7-507 and
Sections
short,
way
that
appellant argues
only
15-7-508, supra.
charge
him for
Rawlins
Notwithstanding
above-quoted
is for the
sewer and
services
provisions,
levy
pursuant
contends
statutory
special assessment
15-7-512(a), supra,
that
empowered
provisions
of Rawlins is not
connecting
legislature expressly
him for
to the sewer
in no statute has the
charge
lines,
connec-
only empowered
given
charge
and water
but is
words, it is
against
appellant’s
his
the costs associ-
tion fees.
In other
assess
of Rawlins can
the reason
position
placed
the burden of
expansion
fund the
of its system through
providing
capital
all new
improvements on
levying
special assessments and it
new users of
system.
did,
The court
*11
without
for
authority
however,
to establish funds
this
recognize the power
City
to
through
purpose
the collection of connection
impose connection
on a
charges
new user:
“ * * *
disagree.
fees. We
however,
In principle,
we see
question
power municipali-
nothing wrong
of
with
to
transferring
ties
sewer
levy
to
and water service connec-
new user
municipally
owned water
fees,
tion
although
impression
one of first
system
sewer
a fair share of the costs
us,
for
been exhaustively developed
has
in
new use of
involves.” 329
the case law. An
question
identical
was
at 317.
So.2d
Rocky
addressed in
Hill Convalescent Hos-
fees,
Connection
such as those involved in
District,
pital,
Metropolitan
Inc. v.
160
present
dispute,
upheld
have been
446,
344,
(1971),
Conn.
280 A.2d
348
and in
numerous other
Rupp
decisions. See:
v.
holding for the municipality the court con-
Utah,
City,
(1980);
Grantsville
[*] [*] [*] [*] [*] [*] noted earlier, municipalities are vested with broad zoning to enact ordinances “(xxii) regulate parks, Establish and zoo- which can be designed to facilitate “ade- gardens logical and recreation areas with- * * * quate provisions parks and other owned, city upon limits and land requirements.” Section 15-1- city leased controlled outside of the 601(d)(i)(G), supra. provided: limits “(A) The police city court points correctly out that jurisdiction punish any town has vio- upon there is no statute which the lator the ordinances of the rely Rawlins can as express serves areas; governing town those authority for the park-land enactment of a *13 “(B) ordinance, game state and fish commis- dedication which also contem- sion is to any city authorized furnish to for plates plan payment money a the of in or game request- town or animals However, lieu of dedication. the statutory ed, and the or town shall the city provisions previously out clearly set necessary expenses;” (Emphasis add- unqualifiedly empower City of the Rawlins ed.) acquire pur- to hold and property for the of pose establishing parks and recreational terms, general above-quoted In statute regard facilities thereon. With to provides this and expressly power for the of all cities the City’s power plan, to zone and acquire property regulate towns and hold development, as public parks property use with the added authori- counsel for the “regulate” ty general argues power the same. This that adopt Ordinance power 15-7-101(a)(ix), is reiterated be fairly No. 7-80 can im- necessarily (1980 Replacement), W.S.1977 where is it plied. agree. We stated: jurisdictions strug Courts have for, “(ix) purchase Contract and hold ordinances, gled park-land dedication rights lands and and erect thereon holdings and the in these decisions are far buildings amusement halls and to be used however, say, from consistent. It fair to parks use, public grounds for the majority upheld that a of the decisions have enjoyment benefit and of the public; and power require park of municipalities “(A) ordinances, Enact and make all Annot., 43 land dedication. A.L.R.3d 862. necessary regulations rules and for the Falls, Village In Jordan v. of Menomonee protection, maintenance and beautifica- 608, 137 (1965), Wis.2d N.W.2d 442 the court park of any tion located within or with- upheld requiring park-land an ordinance town; city out limits of the or dedication or a fee in lieu thereof. was It Establish, “(B) purchase hold reasoned the statutes authorizing that parks on corporate lands outside the planning were formation commission limits, thirty if the lands within development designed to facilitate the limits;” (30) miles of the or town parks require and therefore (Emphasis added.) portions subdividers to dedicate certain was a reasona park purposes
The legislature has also authorized mu- nicipalities offsetting ble method of the burden created planning establish commis- purpose formulating development existing sions for the the new on facili master plans city’s or ties. The court also decided that the fee development of just require- hold that a “The cases cited actual in lieu of charged
which could
developer
open
dedicate
ment
that
a tax
rather
raw-land dedication was not
but
ground
to the
is valid on
space
having
charge imposed
a
on the transaction
him is
imposed
that
burden
This
approval.
obtaining plat
to do with
activity
his own
uniquely attributable to
Develop
in Brookhill
holding was followed
population
increase in
because the
Waukesha, Wis.2d
ment Ltd. v.
activity
that
area which will result from
485,
(1980), where the court
903 1, 11 (1949), it reasonable, P.2d A.L.R.2d 503 noted that termination is and there is a not that re imperative was the dedication park already developed close to the subdi- quirement development benefit new residents, vision to meet the needs its alone, acceptable and it was if the benefit it employ seems reasonable to the fee to by municipality were be received as a purchase land in another area of the city whole. Home Associated Builders park purposes to maintain the proper Bay, Incorporated Greater East v. balance between the of persons number Creek, however, Walnut court supra, community and the amount of park was concerned a re statute which land available. The subdivider who delib- quired payment that in lieu of land be erately fortuitously develops land close for park utilized or recreational facilities to an already completed park diminishes particular subdivision, foot but in a supply open land adds resi- note the court discussed the rationale be require space dents who park within the hind not requiring any direct benefit to be city as whole. A similar rationale was recovered land: by parcel the actual Co. v. employed Southern Pac. “Amicus urges curiae Club that Sierra Angeles (1966) 38, Los Cal.App.2d 51 the requirement pay- of dedication or the 197, Cal.Rptr. uphold an ordinance re- justified ment of fee under quiring dedication of street police state’s even if the recrea- widening as a of obtaining condition provided by tional facilities the subdivid- permit. building (See Bringle v. er’s contribution are not used for the Supervisors (1960) 86, Board of 54 Cal.2d specific benefit of the future residents of 765; Cal.Rptr. 493, Jenad, 351 P.2d Inc. the subdivision for fa- employed but Village (1966), v. of Scarsdale 18 N.Y.2d general cilities used Ordi- public. 78, 955, 957-958, 271 N.Y.S.2d 218 N.E.2d if narily land within the subdivision is 6, 673.)” Cal.Rptr. n. at 484 P.2d park may dedicated for a be assumed 612, n. 6. at those that who will reside the subdivi- We are of the fact aware park. will sion make use of the primary several of the cases above-cited involved problem connecting the facilities statutes; so, construction even we are of with the use made them the subdi- opinion specific the lack of statu vision residents arises when a in lieu fee tory provision in this not case is determina required. of dedication is In view of the tive. have concluded previously We not provisions of section we need legisla delegated broad decide in the case a sub- present whether *15 fairly power ture the encompass can to compelled con- may divider be to make a challenged dedication adopt park-land the is, example, tribution to a for park agree ordinance. We the with rationale to conveniently not located the subdivi- in expressed City the cases that the cited however, Parenthetically, per- sion. we require appellant Rawlins could to pay the ceive merit in the curi- position amicus park-land a sum in lieu of dedication in light It is to see why, ae. difficult in the pressure the and impact order to lessen on the need for de- recreational facilities park facilities that the result from influx mobility scribed above the increasing and development. of inhabitants caused the by our in population, subdivider’s fee is the require The limitation this lieu dedication not be used ment fees in lieu of any that collected raw- land purchase develop some distance land dedication must be earmarked to from the subdivision but which would purpose acquiring the need be accounts for by also available for use subdivision existing ed land and If, park maintenance example, governing residents. the Here, determined, park ques facilities. the ordinance in body of a the city has as has case, specifies in tion that the collected are present specific the that a funds park-land acquisition by is used for park required amount of land be limitation, inhabitants, stated number of if this de- Council. With this the 904 City for “all administrative costs and particu- of “direct benefit”
problem cover Open space attorney’s was intended to expenses” overcome. lar subdivision impacted increasingly commodity present in incurred action. The a rare fees in the governing municipalities and Wyoming it was never intended argued that appellant and cities can of the towns bodies various attorney’s be included. that fees as those impose requirements, such fairly matter, we reviewing In 7-80, to assist them in Ordinance No. found attorney’s holds that look to rule that demands for meeting current and future except ordinarily are not recoverable fees No. land. We hold that Ordinance park statute or a contract. provided by where appellant adopted applied was and 7-80 Surety Company v. American Werner delegated express pursuant York, Wyo., (1967); P.2d 86 Yel New fairly implied legislature those Ellis, Sheep Wyo. v. lowstone Co. therefrom. Here, (1939). when we read the P.2d 895 contract, we are un language of plain ATTORNEY’S FEES reference to recovery able to find judge awarded judgment, In his the trial to recover at “attorney’s fees.” order attorney’s of Rawlins fees because contract, torney’s agree fees under a entered into be- he found that contract must for such unequivocally ment required appellant tween Here, recovery. we cannot conclude that challenges this same. “all costs and ex the term administrative agree we judgment of the with aspect recovery attorney’s fees penses” covered position. his considering language the fact that the “all between the The contract entered into expenses” administrative costs and refers to parties provided: acquisition, con expenses incurred “WHEREAS, requested has Owner housing of the equipping struction acquisi- in the participate If the had intended attor project. parties tion, equipping construction and by appellant, they ney’s paid fees persons housing project for low income therefore, We, have said reverse should so. of the United pursuant Section 8 portion judgment awarding of the Housing of 1937 as amended Act States attorney’s of Rawlins fees. to as and hereinafter referred * * * ‘Project’, “NOW, THEREFORE, for and consid- CONCLUSION eration of the City’s participation opinion We are satisfied that this settles construction acquisition, the Owner by appellant all of the issues raised in his housing project equipping not Any corollary brief. issue addressed in con- persons, low income and further fairly was deemed us to be resolved herein con- sideration covenants In summary, the conclusions reached. each tained, agreed it is as follows: challenged upheld ordinances is reimburse agrees “1. The Owner is affirmed the district court’s order upon documentation City, appropriate acted regard. of Rawlins within *16 by the for all administra- provided City, statutory its authority. expenses costs and incurred the tive participating in with the Owner in ROONEY, Justice, concurring in Chief and acquisition, equip- the construction dissenting part. and in part housing project for low income ping is and for which the not persons, part majority I concur with that of the ”* * * compensated for. otherwise relating of opinion attorney’s to the award added.) (Emphasis part relating to the inapplica- fees and that of the constitutional emphasized bility claimed home-rule The that the above amendment to this matter. language requiring appellant to reimburse issue, disagree opinion sidering (2) I with the in its the majority the extent and that the nature of the authority levy charge— conclusion water and sewer connec- the “fee,” be a parklands “assessment,” fees and the fees in lieu of it called an or tion a also be “rate” —must addressed proper. dedication were purpose. same majority opinion The purports AND to not ad- WATER SEWER CONNECTION dress the reasonableness of charge, the stat- FEES ing in footnote 1 that: From a or stand- practical common-sense “The and the positions expressed briefs at point wrong there must with something argument oral reflect that is in people1 a situation which the in an area challenging not reasonableness of the being annexed to the can be made to charges amount is con- only all, part, or a disproportionate with cerned of the City of capital cost a water and sewer for to adopt Rawlins them.” city. opinion The creates majority this things wrong There are two absolutely situation since there with this state- nothing is in One, accurate, ment: it is partially relationship the record reflect the two, internally it is inconsistent. amount of such any aspect fees with annexed area. The sewer connection fee it Although is true that appellant said in dwellings, for single-family multiple-family argument oral that he was contesting not units, condominiums, etc., is set at $750.00 the argu- reasonableness of the charge, the “per living unit.” The water connection fee ment so. argued itself did do And his brief three-quarter-inch for standard is pipe set the lack of uniformity and reasonableness $1,000.00 at “for each living unit.” The charges length. at Appellant worded $1,000.00 figures seem to have $750.00 appeal part:2 second issue on plucked been out thin air. There was no “2. Did Trial Court err in finding evidence to reflect the manner in which that the and sewer fees connection * * * * ** figures these came into existence. There proportionate were was no evidence to support the reasonable- put upon burden facilities They just easily ness them. could as by Appellant’s apartment complex?” $7,500.00 per living have been unit added.) (Emphasis $10,000.00 sewer connection and each complaint declaration, sought $75,- living unit for a water connection —or among things, charges that the were $100,000.00 000.00 for sewer and for water. proportionate “not to the benefits received majority opinion, Under the such would be appellant. by” This fact was recited in said, proper. practi- As common sense and appellant’s brief. He further noted in his cality proper. would dictate that such is not protested brief that fees were his Bricker, Somewhere scheme of this situa- agent, grounds: Mrs. on the “ * * * tion, guidelines we must set of reasonable- First, tap that the ex- fees were ness, fairness, We uniformity. cannot actually cessive and unrelated to the costs “fee,” say charge that once a is called Rawlins; incurred fairness, perimeters, will have no or uni- second, recognition given that no was formity. legal restrictions no commensurate tap reduction called “rates” or “assessments” are a result charged fees was afforded as a result of necessity uniformity, fairness and Appellant’s project the fact brings This practicality. the conclusion complex, requiring multi-unit but one ac- (1) the reasonableness uniformity tap tual for each units and that other charge must be con- addressed in have communities conducted studies fee, developer charged by appellant quoted paying 1. The The issue as worded but, course, majority opinion. economic facts of life result in full *17 being passed people the cost on who will to occupy development. that multi- way in such graduated burden apartments have revealed that charged a de- units were family housing but a frac- systems the water and family single rate, that multi-fami- recognizing amount that clining tion of the result As a upon burden those facilities. burden units a lesser ly put units infor- readily available statistical of such family resi- single than do facilities city’s mation, noted that other Ms. Bricker Ap- to respond did not dences. communities, Cheyenne such as refund and the for partial claim pellant’s ” * * * tap fee or charge a lesser [sic], Gllette resulted. lawsuit fee and sewer fee for water development is not that be said It cannot for than apartment for each extension reasonableness challenging housing unit.” single family each charge. fee, appellant arguing the nature of case relative to the in this The evidence the necessi- in his brief to continually refers charged for for the amount foundation mon- of the application ty proportionate for fees reflected sewer connection water and the statuto- points received. He ey to be in Rawlins system and sewer that the water propor- propriety ry recognition inadequate but was only was not 15-7-512(a): in 1977 tionate assessment worth; plans that were and little great age as- special make or town “Any system; that a reconstitute the made to of sewers for construction sessments been plans have great portion shall mains. The assessments and water the fi- accomplishment; pieces ground brought all lots and be made on block, for or if the sewers million nancing (approximately to the center of the $32 in an are constructed million for sewer or water mains and $17½ water pieces on all lots and alley, grants) through then was including system —not nearest street or avenue ground loans; to the per-person bond issues extending along alley, each side of the by dividing present cost was obtained street, the distance of alley, avenue or 12,000 money al- population figure of. to the area improvement, according pop- with a future together ready expended ground without pieces of the lots or 20,000 expendi- for future figure of ulation improvements. regard buildings capaci- figures; into the cost tures paid by property to be each The amount persons; was 306.24 development ty of be determined owner shall [holder] per-person multiplied by that 306.24 of the construction dividing expenses $500,000.00 and to between cost amounts sewer or water main proposed $700,000.00 appellant’s as share. property holders for the among all of (60 foregoing to 65 presenting After property of whose the sewer benefit testimony), trial it was percent of the entire constructed .... water main is to be in in with the ordi- never tied manner against to be assessed each The amount $1,000.00 for water and charge nance proportion holder shall be charges * for sewer. These latter $750.00 square feet as- the number *] [* $178,000.00 develop- for the about totaled expenses of the construc- sessed for the figures was ment. The foundation added.)” (Emphasis tion. never evidenced. that he did Appellant also noted in his brief course, per allocate costs effort Of City for refund of not make claims on the testimony the extensive person pursuant paid protest the entire amount under to fu- Speculation flaws: many contains charges and sewer connection for cost of mon- population; ture allowance that: “ * * * recognize depreciation ey; failure had, com- past He recognize appreciation plant; failure munities, tap modest fees with- paid more failure to system; use of the fees, proportionate connection tap out Those protest. to con- of debt attributable were not restrict amount development fees or fees Rawlins, paid but were to that not to be less than incurred nection
907 “ * * * etc., future, all e.g. users in the if the according assessment to le- [A]n operative day would become be- gal intendment is ‘A valuation made it, development fore the went on a connec- authorized persons according to their dis- charge approximately $178,000.00 tion cretion. It is valuation the property would be compared unreasonable as to no tax, of those who are to charge at all if it operative day became purpose of fixing proportion ”** * development after the it. went on Both the each man pay.’ must Union Pa- development and the other units would an, 478, cific Railway Wyo. v. Donnell 2 equal receive equal benefits should bear (1882). 488 system collapsed costs. Likewise if the “(a) The shall board fix the rates for use day from after the development * * water, sanitary sewer *. services it, on charge went the connection be would The rates an shall secure income suffi- unreasonable. The charge reasonable cient to: population basis must be con- computed by “(i) Pay the interest charges prin- sidering etc., depreciation, the factors of as cipal payments on all bonds issued to noted. pay the purchase price, construction Furthermore, the 1977 bond issue is sub- cost, enlargements extensions and ject revenue, to payment general from respective systems they as are subject other bond issues are pay- 15-7-407(a), due.” Section W.S.1977. user charges ment from and connection “ * * * A public utility fees. is entitled to charge product and receive for its or ser- Most of the cases cited in the majority rates, vice such only, just and such áre opinion quotations and from which tak- and reasonable. en necessity refer for connection fair charges to be and reasonable.3 “Fair” “The term ‘rate’ as used connection is “non-discriminatory.” public utilities signifies charge Having qualities “Fair. impartial- open a service to all and on * * * terms;
ity honesty; prejudice, free from fa- the same measured by a ” * ** Just; voritism and equita- self-interest. specified (Em- unit or standard. ble; even-handed; equal, as con- between phasis Utilities, added.) 73 Public C.J.S. flicting interests.” Black’s Law Diction- 13, 1008. § p. (5th Ed.1979), “ ary p. 535. ‘It is a principle universally declared The testimony computations present- municipal and admitted that corporations ed trial at were never tied into the alloca- taxes, general can no levy special, upon $1,000.00 tion of charges “per and $750.00 the inhabitants or their property, unless unit.”4 To allow living such to be done plainly be and unmistakably ’ ” * * * does extend the of municipal corpo- conferred. Town Council of rations far beyond the intention as ex- Hudson v. Board Commissioner Fre- pressed in the constitution and statutes. It 164, County, Wyo. mont 259 P. seems incongruous municipalities be (1927), quoting from 4 Dillon “taxes,” regard restricted law with on Municipal Corporations, “rates,” only “assessments” to be given W.S.1977, 15-7-512(a), supra. And see § reign impose free connection charges be, tax, Called whatever name it any amount without consideration reasonableness, assessment, rate, fee, charge, discriminatory fairness cannot fair, reasonable, nature of them. proper unless it cases, “living person, 3. In all but one these connection A4. unit” could have one two persons, persons, persons, amounted to a few dol- hundred three four etc. They usually approximate “Population” “living lars. reflected the not does correlate with paid amount to be for labor and materials nec- units.” essary to make the connection. *19 streets, grounds by avenues and other on It must be based non-discriminatory. or numbers. name to these ends. On designed some formula faces, $1,000.00 water their shall: “(b) plat connection The sewer connection and the charge $750.00 acknowledged before some offi- “(i) Be requirements. not meet these charge do deeds; acknowledge cer authorized to survey by a made
“(ii) appended Have certif- surveyor with a competent some FEE PARKLANDS DEDICATION accurately surveyed he has icate that philos- quarrel general I have no with the addition, parts thereof and that majority opinion rela- expressed ophy marked. accurately staked off and are city to insure desirability tive to the out, plat is made “(c) map When the or park- developer proper by dedication by acknowledged, approved certified and may It development. area within a lands it shall be filed and governing body, for a cash even be desirable to clerk. county in the office of the recorded fund in lieu parklands-use to a payment a deed in equivalent filed it is When area is parklands where the such dedication or town from the simple city fee to the without the dedication. already sufficient owner, streets, avenues, alleys, pub- of all implied However, express not find or I do commons and of squares, parks lic and to mandate Wyoming city for a apart portion of the land set dedica- parklands in lieu of payment cash use, or dedicated to chari- public city and of a subdi- approval tion in connection with table, purposes. educational religious or plat. vision part thus laid out are a All additions purposes, or town for all and city recognized my be concern It must are entitled to inhabitants of addition annexation, zoning, or not addressed subject privileges and rights all the These factors are planning requirements.5 ordinances, laws, reg- rules to all the develop- The land for the not in this case. city or town. ulations been annexed and rezoned already ment has ordinance, “(d) governing body, by It was parklands requirement. any without any addition to may compel the owner it to be subdi- when the directed streets, alleys lay out avenues requirement was parklands vided that in width and direction and be correspond introduced. streets, ways and continuations of the W.S.1977, 15-1-415, provides: Section town or other addi- alleys city within or valid unless “(a) any The owner of land tions thereto. No addition is of the ordinance subdi- the terms and conditions city or town contiguous plat with and the submitted complied are streets, lots, blocks, land into vide the governing body.” approved by un- grounds and other alleys avenues added.) (Emphasis city der the name of .... addition map plat (town) of .... An accurate gives to a Certainly, this section designating made the subdivided shall be require reasonable dedica- implied power lots, particularly describing land in connection with subdi- parklands tion of blocks, streets, alleys avenues and stretching reason to viding, but would the addition. The lots a cash grounds authorization in it to extract find quota- numbers, payment in lieu of dedication. See designated and the must be brief, provides appellees point for establishment of a master 15-1-501 section to § their governing W.S.1977, plan regulations legislative subdi- seq., street and for autho- et to indicate land, regulations govern- visions of here taken them. rization for action * * * ing body “may adopt plan- after a hear- Such concern establishment of a sections ing nothing resulting procedures. in the record to ning thereon.” There is commission and 15-1-510, powers granted by appellees point Appellees specifically W.S.1977, reflect use to § support That these sections. their contention. tion in majority opinion from Aunt Hack judicial becomes legislation to gen- stretch Ridge Estates, Inc. v. Planning Commission eral language authorizing regulation and operation parklands Danbury, 160 Conn. 273 A.2d to include authority to extract a cash (1970). fee in lieu of majority opinion dedication *20 comments “we are of the opinion that
lack specific statutory provision in this
case is not determinative.” I agree. do not
I believe it determinative, and that notes plat. subdivision that other cases cited therein premised statutes, construction of but the opinion