STARLINE CONST. CO. v. City of Swartz Creek

393 Mich. 250 (1974)

224 N.W.2d 53

STARLINE CONSTRUCTION COMPANY v. CITY OF SWARTZ CREEK

Docket No. 56212.

Supreme Court of Michigan.

Decided December 23, 1974.

Robert M. Crites, for plaintiff.

Edward P. Joseph, for defendant.

PER CURIAM:

On order of the Court, the application by plaintiff-appellant for leave to appeal is considered, and the same is hereby granted. Pursuant to GCR 1963, 865.1(7) the Court reverses the determination of the Court of Appeals that the ordinance in question is constitutional.

Plaintiff-appellant is the owner of several lots in the Otterburn Heights subdivision, City of Swartz Creek, Genesee County. Prior to April 28, 1969, the city constructed sewer lines throughout the city, and issued bonds to pay for the cost of the lines. To retire the bonds, defendant city assessed the lots served by the sewer lines on a front-foot basis. Plaintiff's lots in question have been so assessed annually.

On April 28, 1969, the City of Swartz Creek enacted an ordinance to provide for the operation of the sewage disposal system which provided in part that those homes constructed and occupied after the effective date of the ordinance would be required to pay additional fees for tapping into the public sewer system.

Prior to the effective date of the ordinance, only the front-foot assessment plus an installation inspection charge was required. While the ordinance under attack does not specifically exempt existing structures that are occupied but not tapped-in, as *252 was the case in Beauty Built Construction Corp v City of Warren, 375 Mich 229; 134 NW2d 214 (1965), the effect of the language of the ordinance is the same for it burdens those structures which are constructed and occupied after the effective date of the ordinance. By implication those constructed and occupied before the effective date of the ordinance are not required to pay the additional tap-in fees.

"We conclude therefore, that the defendant city's resolution of January 13, 1959, and the pertinent portion of ordinance No 58, created an arbitrary and discriminatory classification of persons required to pay the sewer tap fee, contrary to the equal protection clauses of article 2, § 1, Michigan Constitution (1908) and the Fourteenth Amendment to the Federal Constitution, in failing to treat equally all those persons connecting with the facility by compelling all to pay the same fees." Beauty Built Construction Co v City of Warren, supra at 237.

Reversed. No costs, a public question.

T.M. Kavanagh, C.J., and T.G. KAVANAGH, SWAINSON, WILLIAMS, LEVIN, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred.