Opinion
No. 91-125
Opinion Filed August 14, 1992 Motion for Reargument Denied September 14, 1992
1. Taxation — Assessment of Real Property Taxes — Special Assessments
Authority delegated by legislature to municipality to levy special assessments is strictly construed and reasonable doubts regarding such authority will be resolved in favor of taxpayer. 24 V.S.A. § 3251 et seq.
2. Taxation — Assessment of Real Property Taxes — Special Assessments
All laws relating to special assessments should be construed together and in harmony if possible. 24 V.S.A. § 3251 et seq.
3. Taxation — Assessment of Real Property Taxes — Special Assessments
City charter provision which gave Rutland Redevelopment Authority (RRA) authority to make special assessments but did not set forth any procedures for how that authority was to be carried out did not conflict with statute providing procedures for levy of special assessments. 24 V.S.A. § 3251 et seq.
4. Taxation — Assessment of Real Property Taxes — Special Assessments
Special assessments levied by Rutland Redevelopment Authority (RRA) which were not approved by voters of Rutland nor consented to by property owners in special assessment district were invalid. 24 V.S.A. § 3254.
5. Taxation — Assessment of Real Property Taxes — Special Assessments
City charter provision which granted Rutland Redevelopment Authority (RRA) authority to make special assessments "within" parts of Rutland designated by board of aldermen did not permit RRA to create smaller district anywhere within city limits where board of aldermen had designated entire city as special assessment district.
Appeal by property owners from order denying request to declare special assessment void and enjoin its implementation. Rutland Superior Court, Valente, J., presiding. Reversed and remanded.
Brian P. Dempsey, Castleton, for Plaintiffs-Appellants. John Paul Faignant and Robin S. Richards of Miller Faignant, Rutland, for Defendant-Appellee Rutland Redevelopment Authority.
Frank H. Zetelski, City Attorney, Rutland, for Defendants-Appellees City of Rutland, Graves and Richards.
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Plaintiffs, owners of property within a special assessment district in the City of Rutland, appeal from a superior court order denying their request to declare the assessment void and enjoin its implementation. They argue that the Rutland Redevelopment Authority (RRA) violated various statutory and constitutional provisions when it created the district and imposed the special assessment. We hold that the RRA failed to follow applicable statutory requirements and therefore reverse and remand.
In early 1989, the voters of the City of Rutland approved a revised city charter that provided for the creation of the RRA. The new charter was duly adopted by the Legislature and signed by the Governor. Among the enumerated RRA powers was the following, which is the focus of the instant dispute: "[t]o assess, in the name of the City of Rutland, impact fees and special benefit assessments within those parts of the City of Rutland designated by the Board of Aldermen." 1989, No. M-8, § 36-4(c). Although the Board of Aldermen designated the entire city as the special assessment district, the RRA proposed an ordinance imposing a special benefit tax only on property located in the downtown district. After conducting hearings and making various revisions to the district boundary, the RRA unanimously adopted the ordinance. The City's voters did not vote on the special assessment district, and the owners of property within the district did not consent in writing to the assessment.
The ordinance established the tax rate for the special district as "an amount no greater than twenty-five percent of the property tax levied and assessed" and provided for annual assessments. For the first year, beginning July 1, 1990, the RRA set the rate at 16.75%. Planned benefits for the district included promotion of the downtown area through special events, advertising, landscaping, and the installation of park benches, signs, and waste receptacles.
Plaintiffs sought to enjoin the RRA and the City from implementing the special assessment and to have the assessment declared void on various procedural and substantive grounds. They argued that (1) the RRA failed to adhere to the provisions of Title 24 chapter 87 when imposing the special assessment, (2) the Board of Aldermen, not the RRA, should have designated the special assessment district, (3) certain members of the RRA's Board of Commissioners violated the charter's conflict of interest provision because they owned land within the district, (4) the RRA derived no authority from either Title 24 chapter 85 or 24 V.S.A. § 2744 for the assessment, (5) the ordinance violates the common law of special assessments, and (6) the assessment violates provisions of both the Vermont and United States constitutions. We address the first two of these issues and do not reach the others.
As a preliminary matter, we note that the authority delegated by the Legislature to a municipality to levy special assessments is strictly construed, and that reasonable doubts regarding such authority will be resolved in favor of the taxpayer. Garden Development Co. v. City of Hastings, 231 Neb. 477, 480, 436 N.W.2d 832, 834 (1989); 14 E. McQuillin, Municipal Corporations § 38.07, at 62 (1987).
We agree with plaintiffs that the RRA should have followed the mandates of chapter 87 of Title 24 before imposing the special assessment. Section 3254 of that chapter provides that a special assessment "shall be levied only by vote of a majority of the qualified voters of the municipality." 24 V.S.A. § 3254. No vote is required "if all of the owners of record of property to be assessed . . . consent in writing to the assessment." Id. Here, the RRA did not obtain voter approval or owner consent before implementing the special assessment. Defendants claim, and the trial court agreed, that chapter 87 did not apply because the grant of authority from the Legislature to the RRA conflicted with the provisions of the chapter. We conclude that the superior court erred when it found the charter provision and chapter 87 to be in conflict and ruled that the charter, as the more specific and later enactment, prevailed.
We find no conflict. The charter delegates to the RRA the necessary authority to make special assessments. See Welch v. Town of Ludlow, 136 Vt. 83, 87, 385 A.2d 1105, 1108 (1978) (municipality has no powers beyond those specifically authorized by the Legislature). The charter does not, however, set forth any procedures for how that authority is to be carried out. Chapter 87, on the other hand, establishes the purposes for special assessments and the procedures for their levy. Moreover, the charter expressly states that "[u]nless provided for to the contrary . . . the [RRA] and its Board of Commissioners shall be subject to and have the benefit of all general laws of the State of Vermont relating to municipal corporations . . . ." 1989, No. M-8, § 36-6. Even were it possible to find conflict between the two enactments, all laws relating to this subject should be construed together and in harmony if possible. See Lomberg v. Crowley, 138 Vt. 420, 423, 415 A.2d 1324, 1326 (1980). Here, the disputed provisions are readily harmonized — the charter authorizes the RRA to make special assessments and chapter 87 instructs it how to make them. Furthermore, the Board of Commissioners itself recognized the applicability of chapter 87 in its ordinance, where the Board expressly relied on § 3253 of that chapter for authority to impose the special assessment. The Board neglected, however, to follow § 3254, which requires voter approval or consent of the owners.
Once we conclude that 24 V.S.A. § 3254 applies to assessments levied by the RRA, the special assessment here necessarily fails. The RRA did not gain either the approval of the voters or the consent of the property owners as required by that section. Kirchner v. Giebink, 150 Vt. 172, 180, 552 A.2d 372, 377 (1988) ("an agreement by the Town to levy special assessments without following the statutory procedure would be unenforceable"); see also Alberty v. City of Henderson, 106 Nev. 299, 302, 792 P.2d 390, 393 (1990) (local improvement district invalid where city failed to follow mandatory statutory procedures).
Although the first issue is dispositive of the case, we address the second in the interest of judicial economy. We conclude that the failure of the Board of Aldermen to designate the district is also fatal to the disputed special assessment. The revised charter grants authority to the RRA to make special assessments "within those parts of the City of Rutland designated by the Board of Aldermen." 1989, No. M-8, § 36-4(c). Here, the Board designated the entire city, and we cannot agree with the superior court's conclusion that the word "within" permits the RRA to create a smaller district anywhere within city limits. That construction renders part of the provision superfluous by eliminating any meaningful function for the Board, the City's elected representative body. See Pacific Gas Electric Co. v. City of San Jose, 172 Cal.App.3d 598, 602, 218 Cal.Rptr. 400, 402 (1985) (special assessment district is "result only of legislative power grounded in the taxing authority of the sovereign"). We decline to adopt the trial court's interpretation, see State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980), and instead rely on the plain wording of the provision. Absent a designation of the district by the Board of Aldermen, the instant assessment was without effect.
Reversed and remanded for further proceedings not inconsistent with this opinion.