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HomeMy WebLinkAbout2002-3110 Civil BENT CREEK LIMITED PARTNERSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SILVER SPRING NO. 2002-3110 CIVIL TOWNSHIP AUTHORITY IN RE: PLAINTIFF'S AMENDED POST TRIAL MOTIONS BEFORE GUIDO, 1. OPINION AND ORDER OF COURT The instant action was filed by plaintiff to recover certain sewer fees it alleged were improperly assessed against its residential development known as Bent Creek. The issues raised may be summarized as follows: 1.) Whether plaintiff was entitled to a waiver of the collection component of the tapping fee because of the sewer facilities it was required to construct on its property. 2.) Whether the defendant's failure to maintain and make available for public inspection the data used to calculate its sewer fees required the voiding of all ordinances enacted pursuant to Act 203 of 1990.1 3.) Whether the connection fee levied against it was appropriate under the law. 4.) Whether the sewer fees imposed were correctly calculated. 1 53 P.S. ~ 306(B)(t) and (z). This action was brought under Act 203 which was enacted in 1990 as an amendment to the Municipality Authorities Act of 1945. In 2001 the entire Municipality Authorities Act was reorganized and recodified under 53 Pa. C.S.A. ~ 5601 et seq. Act 203 now appears at 53 Pa. C.S.A. ~ 5607(d)(24). Our references in this opinion will be to the sections in effect and applicable to this cause of action, i.e. 53 P.S. ~ 306 (t) and (z). NO. 2002-3110 CIVIL We presided over a three day bench trial during which we heard many hours of testimony and were presented with reams of documentary evidence. At their request, we gave the parties time to file post trial briefs. We also heard argument thereon. On October 19,2004 we issued an opinion and order which decided the first two issues against plaintiff. We remanded the remaining issues to defendant for further proceedings in accordance with the dictates of our opinion. Pursuant to the remand, defendant recalculated the appropriate tapping fees it was entitled to charge under the law.2 It went on to pass resolutions adopting the recalculated tapping fees. On December 8, 2004 plaintiff filed the Amended Post Trial Motions which are currently before us. The bulk of the issues raised were addressed in the opinion accompanying our order of October 19, 2004. We have seen no authority nor heard any argument that would persuade us to alter that decision. However, plaintiff also questions the propriety of the Authority's action on remand.3 Specifically, it challenges the Authority's failure to allocate between the capacity and collection component of the tapping fee. Since this particular issue was not previously addressed, we will address it in the opinion that follows. The determination of the issue at hand revolves around the construction of that portion of Act 203 which authorizes the imposition of the tapping fee. At issue is the following language: 2 The Authority abandoned its effort to charge a connection fee, refunding all amounts paid by plaintiff in that regard. 3 On December 8, 2004 the parties filed a stipulation of facts outlining the action taken by Defendant Authority in connection with our remand Order of October 19,2004. Consequently, the parties agreed that no additional testimony needed to be taken. 2 NO. 2002-3110 CIVIL B. Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: (t) To charge certain enumerated fees to property owners who desire to or are required to connect to the Authority's sewer or water system. (1) The fees may include some or all of the following fee components, which shall be separately set forth in the appropriate resolution of the Authority establishing such fees: (iii) Tapping fee. A fee which shall not exceed an amount based upon some or all of the following fee components, which shall be separately set forth in the appropriate resolution of the Authority establishing the fee. (A) Capacity part. A fee for capacity - related facilities which may not exceed an amount that is based upon the cost of such facilities, (B) Distribution or collection part. A fee which may not exceed an amount based upon the cost of distribution or collection facilities required to provide service, such as mains, hydrants and pumping stations. 53 P.S. S (B)(t)(l)(iii)(A)(B).4 The tapping fees at issue are those charged in the years 1999,2000 and 2001. We will illustrate the problem before us by examining the Authority's actions in connection with the 2000 tapping fees. The Authority originally set its tapping fees for 2000 in ordinance No. A-99-2. The ordinance included the following language: (1) Base Tapping Fee: The Authority has researched its historical costs and contemplated its future costs and concludes that the applicable parts or components and maximum amounts to be used in determining such Base Tapping Fee are as follows: Capacity Part: $1,050 per Equivalent Dwelling Unit Collection Part: 4,658 per Equivalent Dwelling Unit Special Purpose 4 There are other components authorized by the statute. However, they are not at issue in the case at bar. 3 NO. 2002-3110 CIVIL Part: -0- per Equivalent Dwelling Unit Reimbursement Part: -0- per Equivalent Dwelling Unit Total: $5,708 Section 6(A)(1).5 The Authority went on to set the relevant 2000 tapping fee at $3653 per Equivalent Dwelling Unit.6 Upon remand the Authority recalculated the various amounts chargeable for the components at issue. It adopted Resolution A-2004-06 which amended Section 6(A)(1) of the above resolution as follows: (1) Tapping Fee: The Authority through its engineer, Pennoni Associates, Inc., has prepared an Expert Report on Tapping Fee Charges, dated September 26,2003, revised on October 28, 2003 and further revised by letter attachment dated November 30,2004, pursuant to Act 203, and in accordance with the Expert Report concludes that the applicable parts or components and maximum amounts to be used in determining such Tapping Fee are as follows: Capacity Part: Collection Part: Special Purpose Part: Reimbursement Part: Total: $1,217.28 per Equivalent Dwelling Unit $2,526.89 per Equivalent Dwelling Unit None As Applicable $3,744.17 Section 6(A)(1)? Notwithstanding the substantial reduction in the "collection part" from $4658 to $2478.80, the authority maintained the 2000 tapping fee at $3653 per Equivalent Dwelling Unit. 8 Plaintiff argues that it is entitled to a reduction in the tapping fees it paid commensurate with the reduction in the maximum "collection part" chargeable by the 5 See Plaintiff's Exhibit 30. 6 See Plaintiff's Exhibit 30. 7 See Exhibit D to the Stipulation filed December 8, 2004. 8 See Section 6 (B) (1) of Exhibit D to the Stipulation filed December 8, 2004. 4 NO. 2002-3110 CIVIL Authority. Its position is based upon the premise that the tapping fee actually charged must be allocated between the various components included therein.9 While we were originally sympathetic to plaintiff s position, upon further review we must conclude that the tapping fees set on remand are appropriate. Our remand order specifically directed that the Authority "recalculate the appropriate tapping fees.,,10 We are satisfied that nothing in the Act requires the authority to allocate its tapping fee among the various components. It does require that the fee components "shall be separately set forth in the appropriate resolution of the Authority establishing the fee."ll The authority did that in each ordinance adopted on remand. The Act also requires that the fee imposed "not exceed an amount based upon some or all" of those components.12 So long as the fee imposed is less than the various components set forth in the ordinance, the dictates of the Act have been satisfied. Since the total fee imposed by the Authority is less than the sum of the components, there has been no violation of the law. Therefore, we will enter the order that follows. 9 It also argues that the Authority erred by using the 266.3 gallons per day flow figure in determining the maximum amount for each component on remand rather than the 225 gallons per day flow figure used in the original ordinances setting the tapping fees. However, we are hard-pressed to quarrel with the authority's use of the 266.3 gallons per day flow figure since we specifically found as a fact that said figure was reasonable. See October 19, 2004, Opinion p. 4. 10 See Order of October 19,2004. 11 53 P. S. ~ 306 (B) (t) (1) (iii). 1253 P.S. ~ 306 (B) (t) (1) (iii). 5 NO. 2002-3110 CIVIL ORDER OF COURT AND NOW, this 13TH day of APRIL, 2005, the Plaintiffs Post Trial Motions are DENIED. By the Court, Isl Edward E. Guido Edward E. Guido, 1. Bridget E. Montgomery, Esquire Allen C. Warshaw, Esquire :sld 6