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City of Pontiac v. Mason





APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.


Rehearing denied August 4, 1977.

This is an appeal from an order granting defendants-appellees' motion for summary judgment in an action brought by the City of Pontiac to recover a sewer connection charge assessed against the Masons pursuant to city ordinance.

Plaintiff-appellant City of Pontiac operates, as part of the city sewer system, a sewer line known as the Vermillion Plaza sewer near the Masons' property. On June 26, 1972, their property was annexed to the City of Pontiac; four days later a building permit was signed by the city building inspector for the construction thereon of a Hornsby's Shopping Center. On October 28, 1972, the Masons were issued a plumbing permit by the city plumbing inspector; the actual physical connection to the Vermillion Plaza sewer occurred on December 1, 1972.

On August 6, 1973, the Pontiac City Council adopted an ordinance requiring the payment of a sewer connection fee. That portion of the ordinance applicable to shopping centers provided for payment of a $17,500 fee at the time of the issuance of an occupancy permit. It is agreed that on August 6, 1973, the construction of the shopping center was not complete, and, in fact, development was not completed until August 21, 1973, at which time the city issued an occupancy permit to appellees. One of the conditions of the occupancy permit was that appellees pay the $17,500 "connection charge."

The only issue raised by defendants' motion for summary judgment and which is before this court is whether or not the defendants, having physically connected their privately owned sewer pipes to the city's sewer lines in December of 1972, can be forced to pay the connection fee of $17,500 prescribed by a city ordinance passed some eight months later but prior to the issuance of an occupancy permit.

In the area of city planning, it has been common practice in Illinois for municipalities to extend trunk sewer lines to and beyond the perimeter of the incorporated areas in anticipation of expansion of residential, commercial, and industrial developments. The next steps are for a developer to obtain annexation of the property to the municipality and to obtain proper zoning for the anticipated use. This requires a considerable amount of effort and liaison with city planners and officials. Thereafter, application is made for a building permit based upon architectural plans and specifications; fees are charged by the city to cover the cost of city inspection during the course of the construction in order to determine full compliance with all city ordinances. In addition thereto, it is necessary to obtain special permits, in this case, a plumbing permit. The plumbing inspector must visit the construction site to determine the workmanship of the connections of water and sewer pipes within the framework of the proposed construction. These fees are usually nominal in amount to cover these rather trivial inspections. At the conclusion of the construction, and at the time the builder is accepting the work from the general contractor and architect, the municipality makes a final inspection to see that all ordinances have been complied with; an occupancy or user permit is thereafter issued.

Inasmuch as the extension of the main sewer usually precedes actual use by owners or tenants by one or more years pending the development of the property, sewer construction cost recoupment is deferred until the property is developed and the identity of the ultimate user is known. In recognition of this practice, Illinois adopted, as part of the Municipal Code, section 11-150-1 (Ill. Rev. Stat. 1973, ch. 24, par. 11-150-1). This section states as follows:

"The corporate authorities of any municipality operating a waterworks, sewerage or combined waterworks and sewerage system have the power by ordinance to collect a fair and reasonable charge for connection to any such system in addition to those charges covered by normal taxes, for the construction, expansion and extension of the works of the system, the charge to be assessed against new or additional users of the system and to be known as a connection charge. The funds thus collected shall be used by the municipality for its general corporate purposes with primary application thereof being made by the necessary expansion of the works of the system to meet the requirements of the new users thereof."

The statute specifically provides for the charge to be assessed against new or additional uses of the system and to be known as a connection charge. The statute is silent as to when this charge is to be made in regard to the development of the construction site; that is, whether it is to be assessed at the time of the building permit, the actual connection of the pipes, or at the time of the issuance of the occupancy permit.

Pursuant to the authority granted in this statute, the City of Pontiac adopted the ordinance in question on August 6, 1973. Section I of the ordinance sets forth the policy of the city to extend lines into new and developing areas and to recoup the costs thereof from users as the properties are developed. Section II requires that every property adjacent to public sewage lines must hook onto the public sewer. Section III provides that no occupancy certificates shall be issued for any lot or parcel of land adjacent to a public sewer until the sewer connection fee has been determined and assessed. Section IV, subsection B provides as follows:

"The Vermillion Plaza Sewer System, heretofore established by the City shall have a tap-on fee based as follows:

1. Additional shopping center tap-ons to be paid at the time of issuance of occupancy permit, $17,500.

2. Individual tap-ons, for each building, shall be determined at the time of the ...

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