Paulsen v. Hooper Water Improvement District

656 P.2d 459, 1982 Utah LEXIS 1120
CourtUtah Supreme Court
DecidedNovember 12, 1982
DocketNo. 17934
StatusPublished
Cited by2 cases

This text of 656 P.2d 459 (Paulsen v. Hooper Water Improvement District) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paulsen v. Hooper Water Improvement District, 656 P.2d 459, 1982 Utah LEXIS 1120 (Utah 1982).

Opinion

DURHAM, Justice:

In this action, the defendant below, Hooper Water Improvement District, sought to prevent the withdrawal of the plaintiffs’ property from the defendant’s district on the ground that the plaintiffs failed to comply with the requirements of U.C.A., 1953, § 17-6-29. After hearing the evidence, the trial court found against the defendant and granted the plaintiffs’ petition to withdraw. The defendant now appeals that decision. We affirm the judgment of the trial court.

On November 20, 1979, Roy City properly adopted a “Master” Policy Declaration for annexation in general. In January of 1980, the plaintiffs filed a petition with Roy City for annexation of their property, consisting of approximately 188 acres. The plaintiffs’ property lies within the area set forth in Roy City’s Master Policy Declaration and also within the boundaries of the defendant’s district.

On February 12, 1980, Roy City held the first public hearing concerning the plaintiffs’ petition for annexation. Additional hearings were subsequently conducted by Roy City to resolve some problems with respect to the annexation, such as an error in the legal description of the plaintiffs’ property in their petition for annexation. On June 10, 1980, Roy City held a public hearing at which it adopted a resolution approving the annexation of the plaintiffs’ property.

Meanwhile, during the annexation process affecting the plaintiffs’ property, the defendant held a bond election in December of 1979 for the construction of a new water line. The plaintiffs, as owners of property within the defendant’s district, participated [461]*461in that bond election. The bonds were issued on March 28, 1980, and construction began on April 1, 1980. The defendant’s water line runs contiguous to the plaintiffs’ property, and continues on to another area sought to be developed by the defendant. However, there were no water connections at any time from the defendant’s main line to any portion of the plaintiffs’ property.

After Roy City adopted the resolution of annexation, the plaintiffs filed a petition on June 23, 1980, with the trial court requesting withdrawal of their property from the defendant’s district pursuant to U.C.A., 1953, § 17-6-29. The defendant contested the withdrawal claiming that it was improper under U.C.A., 1953, § 17-6-29, because (1) the defendant was “furnishing services” to the plaintiffs’ property at the time that the petition for withdrawal was filed and (2) the plaintiffs’ property did not lie within the boundaries of Roy City because Roy City’s annexation of the plaintiffs’ property failed to comply with U.C.A., 1953, §§ 10-2-401 to -423 (Supp.1981). Specifically, the defendant alleged that the annexation of the plaintiffs’ property was improper because Roy City did not adopt a specific policy declaration with respect to the plaintiffs’ property as required by Utah’s annexation law. In addition, the defendant also challenged the legality of the annexation on the ground that Roy City had adopted the resolution of annexation prior to the expiration of the five-day period provided for in U.C.A., 1953, § 10-2-415 (Supp.1981).

After trial, the trial court found that, even though the defendant had installed main culinary water lines adjacent to the area in question, the “installation and availability” of water is not the same as furnishing culinary water services to the plaintiffs’ land. Thus, the court entered a finding that the defendant “was not, at the date of the filing of the petition, furnishing culinary water service to the territory sought to be withdrawn.” In addition, the trial court also entered a finding that “Roy City complied with the intent of the Annexation Law of 1979 as set forth in Utah Code Annotated [§§] 10-2-401, et seq., and that an additional Policy Declaration every time an annexation of more than five acres was attempted is not required under said law.” Based on these findings of fact, the trial court granted the plaintiffs’ petition to withdraw from the defendant’s district.

On appeal, the defendant alleges three points of error, advancing essentially the same arguments as at trial. These arguments necessitate a close examination of the statutes in question. Sections 17-6-28 to -32 set forth a step-by-step procedure to be followed by property owners who desire to withdraw their property from an improvement district. A necessary step in that procedure is for the trial court, upon petition, to appoint a commission to set the terms of the severance so as to protect the improvement district with respect to liabilities incurred while the property sought to be withdrawn was part of the district. That section reads as follows:

If the court finds [1] that the petition was signed by a majority of the real property owners of the territory concerned and [2] that the allegations of the petition are true and [3] that the territory lies within the boundaries of an incorporated city or town operating or furnishing similar services as the improvement district from which the territory would be withdrawn and [4] that the improvement district was not, at the date of the filing of the petition, furnishing service to the territory sought to be withdrawn, the court shall appoint three disinterested persons as commissioners to fix the severance and withdrawal terms as to any liabilities of the improvement district that have been incurred during the connection of the territory with the improvement district and as to the mutual property rights of the improvement district and the territory to be withdrawn.

U.C.A., 1953, § 17-6-29 (emphasis and numbering added). As outlined in the statute quoted above, four conditions are set forth which must be satisfied before the trial court can appoint a severance commission. In the present case, the defendant asserts that the latter two conditions were [462]*462not satisfied, and therefore, the trial court’s granting of the plaintiffs’ petition for withdrawal was improper.

The defendant contends that the fourth condition of § 17-6-29 was not satisfied because it was “furnishing” water service to the plaintiffs’ property at the date of the filing of the plaintiffs’ petition. The facts demonstrate that the defendant had installed a main culinary water line adjacent to the plaintiffs’ property. They also show that there were no water connections whatsoever at any time from the defendant’s main line to any portion of the plaintiffs’ property. The trial court found that the “installation and availability” of water is not the same as “furnishing” services. Thus, in compliance with the fourth condition of § 17-6-29, the trial court found that the defendant “was not, at the date of the filing of the petition, furnishing culinary water service to the territory sought to be withdrawn.”

“This Court will not substitute its judgment for that of the trial court or disturb the trial court’s findings of fact when they are based on substantial, competent and admissible evidence.” Dang v. Cox Corporation, Utah, 655 P.2d 658 at 660, 1982. In the present case, the defendant has not even installed service lines from its main water line to the plaintiffs’ property. In fact, the defendant has only installed a main water line adjacent to the plaintiffs’ property, which merely happens to continue on to another area sought to be developed by the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
656 P.2d 459, 1982 Utah LEXIS 1120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paulsen-v-hooper-water-improvement-district-utah-1982.