City of Sullivan can charge a higher sewer connection fee in one area of the community than another.

Issue – Can a city charge some citizens more for a service than what it charges other citizens for the same service? Our political DNA has been trained to think that all citizens should be treated equally under the law so our initial reaction is that this is not fair even though the underlying reasons and the law disclose something far different.

Update 2013 – In 2012, the United States Supreme Court held in Armour v. City of Indianapolis,  that the City had a rational basis under the Equal Protection Clause for not making refunds to customers who had already paid special assessment while forgiving special assessment still owed by other customers. The test used by the United States Supreme Court Court was whether or not there was “any reasonably conceivable state of facts that could provide a rational basis for the classification.” The City was able to show administrative concerns and costs based upon the complexity and expense of making the refunds arising out of 20+ different construction projects built over the course of a decade involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. For a more detailed discussion of the Indianapolis case click here.

Will the Manchester Case Be Heard by the Supreme Court?

U. S. Supreme Court

The Indianapolis case lends strong support to the earlier decision by the Missouri Supreme Court in the Sullivan case discussed below.

Sullivan Case 2011 – The Missouri Supreme Court in 2011  upheld an ordinance of the City of Sullivan holding that the ordinance was uniform with respect to all persons in the class to which the sewer connection fee naturally related. The opponents of the ordinance argued that since the ordinance did not apply uniformly to all areas of the community but only to one particular area based on the historic fact that this area did not have sewers; therefore, it violated the Missouri Constitution prohibiting special legislation. The Southern District of the Missouri Court of Appeals agreed with the opponents writing a very adverse opinion with far-reaching consequences to Sullivan and other communities. The essence of the opponent’s argument was that they were paying a higher fee than others in the community to connect to the city sewer. After the case was transferred to the Missouri Supreme Court the MML hired me to write an amicus brief on behalf of the MML and its members. The opinion by the Missouri Supreme Court in City of Sullivan v. Sites, rejected the opponents argument noting that access to the new sewer was provided in return for a fee and that the residents received a benefit that they did not have before – access to the sewer system. The creation of the class – customers who get access to new sewers – was related to an important governmental function, providing sewer service to more households through public sewer infrastructure.

The opinion by the Missouri Supreme Court was extremely straightforward providing  an excellent framework for examining other ordinances when questions are raised as to whether or not the ordinance is special legislation under the Missouri Constitution. The opinion by the Missouri Supreme Court was a great victory for Sullivan and the MML. The Sullivan case is reviewed in more detail in my January 2011 MMAA newsletter.

The information provided in this Post is not intended to constitute legal advice. (©) 2011 Howard Wright

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