Downriver Plaza Group v. Southgate

513 N.W.2d 807, 444 Mich. 656

• Court: Michigan Supreme Court
• Decided: March 22, 1994
• Docket: 95019, (Calendar No. 11)
• Status: Published

Opinions

Cavanagh, C.J.

Plaintiffs, property owners in the City of Southgate, filed this action against Southgate because the city placed a charge for the operation and maintenance costs of the Southgate-Wyandotte Drainage District (swdd) on their 1987 and 1988 tax bills. Plaintiffs allege that the charges were illegal, and seek recovery of monies paid. The trial court ruled that the fees were valid, and denied recovery. The Court of Appeals reversed,¹ and ordered Southgate to refund an estimated $1.7 million in collected fees. We granted leave in this case to resolve the following issues: (1) whether Southgate had lawful authority to assess the fees for fiscal years 1987-91, and (2) if so, did retroactive validation of fees assessed in fiscal years 1987-88 violate the plaintiffs’ rights to due process?

We hold that (1) Southgate was legally permitted to assess user fees in fiscal years 1987-91, and

(2) the retroactive validation of previously collected fees is consistent with the requirements of due process.²

I. FACTUAL AND PROCEDURAL HISTORY

In 1975, Southgate, through Wayne County, received a $40,793,250 federal grant to construct a flood and pollution control plan that would operate in the swdd. The swdd services sixty percent of the population of Southgate. The federal government made the grant pursuant to the federal Water Pollution Control Act amendments of 1972.³

The federal statute, and its accompanying regulations,⁴ required grant recipients to adopt "a system of charges” so as to assure that users of the improved drains would pay a proportionate share of the operating and maintenance costs for the drains.⁵ To that end, on April 17, 1975, the South-gate City Council passed a resolution in which it expressly adopted, and agreed to implement "a system of User Charges.”_

In 1976, Southgate levied a general ad valorem tax to help finance the construction of the new drainage system. By 1980, construction was complete, and the drains were ready for use.

Between 1980-87, the Wayne County Drainage Board (wcdb) assessed operation and maintenance costs against Southgate. However, the wcdb did not bill Southgate directly for these costs because the Wayne County Drainage Commissioner had unilaterally decided to apply excess construction funds to the initial charges. By 1988, this surplus had been depleted, and on March 17, 1988, the wcdb sent Southgate its first bill for operation and maintenance costs.

In response, the Southgate City Council planned a special public hearing for April 13, 1988, to discuss implementation of the user charge system that it had previously approved in 1975. The Southgate City Council published notice of the meeting in the city newspaper on April 3, 1988, and April 6, 1988.

On April 13, 1988, participants at the meeting discussed the user charge system and, in particular, the mathematical formula used to calculate individual user charges.⁶ Because less than a full Southgate City Council was present, the participants did not pass a resolution to implement the user charge system. Instead, the Southgate City Council tabled the user charge item until the next scheduled city council meeting._

On April 27, 1988, the Southgate City Council met, and this time passed a resolution regarding user charges. The resolution resolved, among other things, that user charges would be levied on the next tax roll.

Plaintiffs, users of the drains, were assessed charges on their 1987 and 1988 tax bills. While plaintiffs paid the assessments, they subsequently claimed that the fees were invalid. Thereafter, plaintiffs filed suit in the Wayne Circuit Court, demanding a refund of monies paid.

On July 28, 1989, the trial judge granted the plaintiffs’ partial summary disposition, finding that Southgate had violated its charter when it collected user charges for 1987 and 1988. Specifically, the Southgate City Council had failed to incorporate the rate for user charges into the relevant resolutions, contrary to charter requirements. On the basis of this error, the trial judge concluded that the 1987 and 1988 assessments were invalid.

On August 30, 1989, the Southgate City Council passed a resolution adopting "the individual user charge formula as presented initially at the public hearing on April 13, 1988 . . . .” The Southgate City Council then scheduled another hearing for January 3, 1990, in order to discuss assessed fees with the public.

On January 3, 1990, the Southgate City Council passed its final resolution regarding the user charge system. This resolution effectively validated all prior resolutions, and affirmed or reaffirmed user charges for fiscal years 1987-91.

On April 19, 1990, the trial judge entered a judgment of no cause of action in favor of South-gate, and against the plaintiffs. The trial judge found that the January 3, 1990, resolution sufficiently cured the previous charter violation. The trial court concluded that the January 3, 1990, resolution had retroactive effect from December 1, 1987.

The Court of Appeals reversed this decision, ruling that retroactive application of the January 3, 1990, resolution would violate the plaintiffs’ rights under due process. The Court ordered Southgate to refund monies paid for the 1987 and 1988 assessments.⁷

On June 23, 1993, this Court granted leave.⁸

II. VALIDITY OF THE USER CHARGES

The plaintiffs claim that the assessments on their 1987 and 1988 tax bills are invalid. We disagree. Southgate had the authority to levy user fees in 1987 and thereafter, and, while the implementation of the user charge system was initially deficient, the 1990 resolution satisfactorily corrected the defect. Moreover, this Court finds that the retroactive application of the 1990 resolution is justified. Thus, we reverse the Court of Appeals decision, and hold that the assessments for years 1987-91 are valid.

A. AUTHORITY TO ASSESS USER CHARGES

Michigan’s Drain Code enabled Southgate to legally assess user charges. The Drain Code is the comprehensive authority for drain systems operating in Michigan. As explained in Toth v Waterford Twp, 87 Mich App 173, 176; 274 NW2d 7 (1978),

The statute represents the Legislature’s attempt to codify all laws regarding drains and to provide for detailed, specific and exclusive procedures to be followed in proceedings to construct and maintain drains. . . . Absent fraud, all matters pertaining to the locating, constructing, cleaning, extending, etc., of drains are to be determined according to the procedures set forth in the Drain Code.

The swdd is an intracounty drain system governed by chapter 20 of the Drain Code. Section 490 of chapter 20 unreservedly authorizes public corporations, such as Southgate, to collect "service charges” from property owners who utilize public drains.

In place of or in addition to levying special assessments, the public corporation, under the same conditions and for the same purpose, may exact connection, readiness to serve, availability, or service charges to be paid by owners of land directly or indirectly connected with the drain project, or a combination of projects .... [MCL 280.490(4); MSA 11.1490(4).]

The plaintiffs argue that Southgate lacked the authority to assess user fees in 1988 because, by that time, the drain project had already been completed. Plaintiffs rely upon § 489a to support this assertion. Section 489a sets forth various prerequisites regarding assessments that must be followed before the construction of a drain project.⁹ Plaintiffs contend that none of these requirements were met by 1988, and, therefore, any attempt to assess in 1988, or thereafter, violates the Drain Code.

The plaintiffs’ reliance upon § 489a in this context is improper. Section 489a amended § 490, and went into effect in 1980. By 1980, the construction of Southgate’s new drain system was finished. Consequently, it would not have been possible for Southgate to ever have complied with §489a’s requirements. Clearly, the Legislature intended that § 489a would have only prospective effect. Thus, we agree with the trial judge’s conclusion that 489a is "without meaning in this case.” Further, we conclude that Southgate had valid authority to levy user fees under the appropriate Drain Code sections.

In addition, the Southgate City Council’s own resolution, passed unanimously in 1975, empowered Southgate to collect user charges. In effect, the resolution obligated Southgate to make users pay the operation and maintenance costs for the new drain system.

On these bases, this Court holds that Southgate had the legal authority to assess user charges in 1987 and thereafter.

B. RETROACTIVE VALIDATION OF THE 1987-88 USER CHARGES

While finding that Southgate was legally permitted to assess user charges, we also recognize that implementation of the user charge system was originally flawed. Section 162 of the Southgate City Charter provides that when rates are established, the "Council shall fix such rates and charges by resolution.” This provision thus required the Southgate City Council to explicitly set forth the individual user rates in one of its resolutions. Undoubtedly, the Southgate City Council attempted in good faith to comply with § 162’s direction. Nonetheless, the efforts technically fell short because the individual formula, while repeatedly discussed, was never expressly incorporated into a resolution. For this reason, the trial court was forced to find the 1987-88 assessments to be invalid.

However, Southgate subsequently took comprehensive steps to remedy the procedural oversight.

On August 30, 1989, a little over a month after the trial judge’s decision, Southgate unanimously passed a resolution that (1) incorporated the precise individual user charge formula, (2) directed interested persons, to review the formula at the Office of the City Clerk, and (3) directed persons aggrieved by the formula to file a complaint with city officials within twenty-eight days. The South-gate City Council also attached a copy of the user formula to the resolution.

The Southgate City Council also notified property owners of another public meeting scheduled for January 3, 1990, in order to discuss assessed user charges. While not required under the Drain Code to do so, the Southgate City Council advertised the meeting by providing the estimated eight thousand property owners with individual notices through first class mail. The Southgate City Council also caused a notice to be published in the local newspaper, which stated that the formula was available for review at the Southgate Finance Department. Further, the notice indicated that those wishing to protest the charge could do so by either (1) appearing at the meeting, or (2) mailing a letter to the Southgate Finance Department.

Lastly, the Southgate City Council unanimously passed the final resolution regarding the user charge system at the January 3, 1990, hearing. The resolution reaffirmed the substance of all prior related resolutions. In particular, the resolution (1) readopted the individual user charge formula, (2) affirmed or reaffirmed that aggrieved users had twenty-eight days within the annual adoption of the user charge to file a grievance with city officials, and (3) reaffirmed the operation and maintenance costs for the swdd for fiscal years 1987-91.

Despite Southgate’s extensive efforts to cure the charter violation, the Court of Appeals ruled that retroactive application of the January 3, 1990, resolution would violate the plaintiffs’ rights under due process. To reach this conclusion, the Court of Appeals relied exclusively upon Metro Homes v City of Warren, 19 Mich App 664; 173 NW2d 230 (1969), cert den 398 US 959 (1970). We find this reliance improper because the Metro Homes pronouncements regarding due process limits on retroactivity are outdated. The appropriate focus rests -with this Court’s recent analysis of the retro-activity issue set forth in Romein v General Motors, 436 Mich 515; 462 NW2d 555 (1990), and the United States Supreme Court’s subsequent affir-mance of that analysis in General Motors Corp v Romein, 503 US —; 112 S Ct 1105; 117 L Ed 328 (1992). On the basis of this precedent, we hold that retroactive operation of the January 3, 1990, resolution is consistent with the Due Process Clauses of the Michigan and United States Constitutions.

We begin our analysis of plaintiffs’ due process claim with mention of the applicable standard of review. We construe the Southgate City Council’s January 3, 1990, resolution to be an economic legislative measure. When scrutinizing economic and social legislation, this Court applies the rational basis standard of review.¹⁰ Applying this standard, the resolution " 'come[s] to the Court with a presumption of constitutionality,’ ” and "the burden is on the one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Romein, 436 Mich 525, quoting Pension Benefit Guaranty Corp v R A Gray & Co, 467 US 717, 730; 104 S Ct 2709; 81 L Ed 2d 601 (1984).

Our specific concern in this case lies with the retroactive components of the January 3, 1990, resolution. As explained by the United States Supreme Court, retroactivity invokes special considerations:

Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions. [Romein, 112 S Ct 1112.]

The Court has also advanced that what may be a justification for prospective legislation, may not suffice for retroactive legislation.¹¹

While cognizant of the unique concerns associated with retroactivity, we recognized in Romein that the same standard of review is employed regardless of whether the economic legislation has prospective or retroactive effect:

The rational relationship test applies to economic legislation whether it is retroactive or not. The retroactive aspects of legislation must meet the test of due process, "but that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” [Romein, 436 Mich 528, quoting Pension Beneñt Guaranty, supra at 730.]

In affirming our decision in Romein, the United States Supreme Court articulated the due process test for retroactivity as follows: "a legitimate legislative purpose furthered by rational means.” Ro-mein, 112 S Ct 1112.

Applying the requisite test, this Court finds that the retroactive features of the January 3, 1990, resolution serve a legitimate purpose. Retroactive validation of the 1987-88 user charges enable Southgate to impose operation and maintenance costs for the much needed and improved drain system, and only upon those that directly benefit from that system — the drain users. Significantly, when the plaintiffs challenge the retroactive application, they do not specifically argue that the costs are unreasonable in amount — they simply do not want to pay for their use of the drains.

When a court evaluates whether retroactive operation promotes a sound objective, it must specifically consider the extent of the parties’ reliance:

The justification for retrospective legislation must take into account the possibilities that the parties acted in reliance on current law and that they may have altered their conduct to reduce liability if they had anticipated the imposition of later liability. [Romein, 436 Mich 527.]

While plaintiffs do not point to a specific law, they do contend that they relied on the fact that they did not have to pay user fees in 1980-87. They urge that they developed an expectation that Southgate would not charge them for using the drains. This Court acknowledges that the plaintiffs may have relied as they describe because of the situation that resulted when the County Drain Commissioner applied surplus ad valorem construction funds to starting-operation and maintenance costs. However, we are not persuaded by the plaintiffs’ belated assertion that they would have relocated within Southgate had they known that they would eventually have to pay user charges.

The swdd provides service for sixty percent of the population in Southgate. Before 1975, the flooding and pollution within the swdd had escalated to immense proportions — so much so that the federal government found it necessary to extend a $40 million grant in an effort to remedy the problem. Since 1980, the enhanced drainage system has provided users with health and economic benefits and has operated as an effective solution to an obstacle that was both widespread and serious. In light of the beneficial service that the drain system provides, we are not convinced that the plaintiffs would have considered actually moving outside of the swdd simply to avoid paying user charges for the service.

This Court also finds that the January 3, 1990, resolution is a rational means of achieving the city’s legitimate objective. The form of retroactivity should not produce arbitrary or unreasonable results.¹² In Romein, this Court explained that "[t]o determine if the retroactivity is arbitrary or unreasonable, the party’s reliance on the preexisting state of the law should be considered.” 436 Mich 530. We conclude that the plaintiffs’ inferences, derived from their reliance on the absence of direct charges between 1980-87, were not justifiable.

Since 1975, the plaintiffs had been aware of the new drain system on the basis of the ad valorem taxes that they had paid to help meet the drains’ construction costs. More importantly, by virtue of the 1975 resolution, the plaintiffs had been given direct notice that Southgate would impose charges on users. At no time did Southgate represent that drain service would be gratuitous. Hence, the plaintiffs’ conclusion that they would never be charged for drain usage was unreasonable.

"This Court has held that a remedial statute which acts retroactively does not violate due process so long as it does not impair vested rights.” Romein, 436 Mich 531. Plaintiffs’ reliance did not give rise to a vested right. The plaintiffs may have hoped that they would never be charged for drain usage. However, their obligation to pay user fees had been in place since 1975. While the plaintiffs’ direct liability was deferred between 1980 and 1987, the plaintiffs did not possess a vested right to have that deferral continue. But for the charter violation, Southgate’s collection of fees would have been proper in 1987, and would not have infringed on any legitimate rights of the plaintiffs. Similarly, when, on January 3, 1990, Southgate retroactively validated collected fees for 1987-89, it did not abrogate any vested rights belonging to the plaintiffs.

To underscore that retroactivity in this case is a rational means, we note the inequities that would result if the January 3, 1990, resolution was given only prospective effect. Southgate would have to refund approximately $1.7 million in collected user fees. Southgate no longer has this money in its accounts because, upon collection, it promptly turned the fees over to Wayne County. As a result, Southgate’s general taxpayers would have to provide money for the plaintiffs’ refunds. These same taxpayers have already underwritten the bill for operation and maintenance costs accruing in 1980-87 when their ad valorem taxes were applied to initial fees. Taxpayers who have no access to the drain system would again be forced to pay for a service from which they derive no direct benefit. The only way that this unfairness can be avoided is to retroactively validate the 1987-89 user charges.

This Court concludes that retroactive application of the January 3, 1990, resolution represents a rational means to a legitimate purpose, and, thus, is consistent with due process. Accordingly, we reverse the Court of Appeals decision.

III. CONCLUSION

We hold that Southgate had the legal authority to assess the plaintiffs user fees. We also find that retroactive application of the January 3, 1990, resolution, curing a procedural irregularity regarding prior charges, comports with notions of due process.

Accordingly, we reverse the decision of the Court of Appeals.

Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.

1 195 Mich App 192; 489 NW2d 178 (1992).

2 Because of the disposition we make in favor of the defendant on these grounds, we do not find it necessary to address the other issue raised in its brief.

3 33 USC 1251. Subchapter II specifically deals with construction grants. See 33 USC 1281.

4 40 CFR 35.

5 33 USC 1284.

6 The individual user charge formula for the drains is based on established "runoff-coefficients” assigned to each category of property (i.e., churches, residences, schools, etc.). The actual acreage per parcel is multiplied by the runoff coefficient to yield the impervious acreage per parcel. The total impervious acreage in the Southgate portion of the swdd is then multiplied by Southgate’s share of annual operation and maintenance costs for the swdd. The product of these two factors is the unit cost per impervious acre. As the final step in the calculation, the unit cost per impervious acre is multiplied by the impervious acreage of each Southgate parcel. The result is the annual fee charged to each Southgate parcel in the swdd.

7 The Court of Appeals did not specifically invalidate the 1989 assessments. Rather, it remanded to the trial court for a finding as to whether the August 30, 1989, resolution properly implemented a user charge.

8 442 Mich 929.

9 In pertinent part, § 489a requires that the legislative body of a public corporation:

(c) Forward by first-class mail to each person whose name and address appears on the tax rolls as owning land within the proposed district, at the address shown on the last tax assessment roll of the public corporation, a notice which contains all of the following:

(i) A general description of the proposed drain project.

(ii) Expected benefits of the proposed drain project.

(iii) Notice that the proposed project is to be fully or partly financed by special assessment against property owners within the proposed district.

(iv) A statement that alternative plans of financing the proposed project will be on the meeting agenda.

(v) Notice of the time, date, and place of a meeting to be held by the legislative body of the public corporation to hear objections to the proposed drain project or special assessment, fee, or charge to be levied under this section. Notice prescribed by this subparagraph shall be mailed not less than 10 days before the meeting, and in addition, shall be given the manner prescribed by Act No. 267 of the Public Acts of 1976, as amended, being sections 15.261 to 15.275 of the Michigan Compiled Laws, and shall be published in a newspaper of general circulation in the public corporation. [MCL 280.489a(c); MSA 11.1489(l)(c).]

10 Romein, 436 Mich 525.

11 Usery v Turner Elkhorn Mining Co, 428 US 1, 16-17; 96 S Ct 2882; 49 L Ed 2d 752 (1976).

12 Romein, 436 Mich 530.