Rutland Special Tax Challengers v. Rutland City

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-125

 Downtown Rutland Special Tax                 Supreme Court
 Challengers, Bruce Utley and
 George H. Looker                             On Appeal from
                                              Rutland Superior Court
      v.

 City of Rutland, The Rutland                 May Term, 1992
 Redevelopment Authority, Ronald
 Graves, The City Treasurer, and
 Vernon Richards, City Tax Collector


 Silvio T. Valente, J.

 Brian P. Dempsey, Castleton, for plaintiffs-appellants

 John Paul Faignant and Robin S. Richards of Miller & Faignant, Rutland, for
   defendant-appellee Rutland Redevelopment Authority

 Frank H. Zetelski, City Attorney, Rutland, for defendants-appellees City of
   Rutland, Graves and Richards


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Plaintiffs, owners of property within a special
 assessment district in the City of Rutland, appeal from a superior court
 order denying their request to declare the assessment void and enjoin its
 implementation.  They argue that the Rutland Redevelopment Authority (RRA)
 violated various statutory and constitutional provisions when it created the
 district and imposed the special assessment.  We hold that the RRA failed to
 follow applicable statutory requirements and therefore reverse and remand.
      In early 1989, the voters of the City of Rutland approved a revised
 city charter that provided for the creation of the RRA.  The new charter was
 duly adopted by the Legislature and signed by the Governor.  Among the
 enumerated RRA powers was the following, which is the focus of the instant
 dispute:  "[t]o assess, in the name of the City of Rutland, impact fees and
 special benefit assessments within those parts of the City of Rutland
 designated by the Board of Aldermen."  1989, No. M-8, { 36-4(c).  Although
 the Board of Aldermen designated the entire city as the special assessment
 district, the RRA proposed an ordinance imposing a special benefit tax only
 on property located in the downtown district.  After conducting hearings and
 making various revisions to the district boundary, the RRA unanimously
 adopted the ordinance.  The City's voters did not vote on the special
 assessment district, and the owners of property within the district did not
 consent in writing to the assessment.
      The ordinance established the tax rate for the special district as "an
 amount no greater than twenty-five percent of the property tax levied and
 assessed" and provided for annual assessments.  For the first year,
 beginning July 1, 1990, the RRA set the rate at 16.75%.  Planned benefits
 for the district included promotion of the downtown area through special
 events, advertising, landscaping, and the installation of park benches,
 signs, and waste receptacles.
      Plaintiffs sought to enjoin the RRA and the City from implementing the
 special assessment and to have the assessment declared void on various
 procedural and substantive grounds.  They argued that (1) the RRA failed to
 adhere to the provisions of Title 24, chapter 87 when imposing the special
 assessment, (2) the Board of Aldermen, not the RRA, should have designated
 the special assessment district, (3) certain members of the RRA's Board of
 Commissioners violated the charter's conflict of interest provision because
 they owned land within the district, (4) the RRA derived no authority from
 either Title 24 chapter 85 or 24 V.S.A. { 2744 for the assessment, (5) the
 ordinance violates the common law of special assessments, and (6) the
 assessment violates provisions of both the Vermont and United States
 constitutions.  We address the first two of these issues and do not reach
 the others.
      As a preliminary matter, we note that the authority delegated by the
 Legislature to a municipality to levy special assessments is strictly
 construed, and that reasonable doubts regarding such authority will be
 resolved in favor of the taxpayer.  Garden Development Co. v. City of
 Hastings, 231 Neb. 477, 480, 436 N.W.2d 832, 834 (1989); 14 McQuillin,
 Municipal Corporations, { 38.07, at 62 (1987).
      We agree with plaintiffs that the RRA should have followed the mandates
 of chapter 87 of Title 24 before imposing the special assessment.  Section
 3254 of that chapter provides that a special assessment "shall be levied
 only by vote of a majority of the qualified voters of the municipality."  24
 V.S.A. { 3254.  No vote is required "if all of the owners of record of
 property to be assessed . . . consent in writing to the assessment."  Id.
 Here, the RRA did not obtain voter approval or owner consent before
 implementing the special assessment.  Defendants claim, and the trial court
 agreed, that chapter 87 did not apply because the grant of authority from
 the Legislature to the RRA conflicted with the provisions of the chapter.
 We conclude that the superior court erred when it found the charter
 provision and chapter 87 to be in conflict and ruled that the charter, as
 the more specific and later enactment, prevailed.
      We find no conflict.  The charter delegates to the RRA the necessary
 authority to make special assessments.  See Welch v. Town of Ludlow, 136 Vt.
 83, 87, 385 A.2d 1105, 1108 (1978) (municipality has no powers beyond those
 specifically authorized by the Legislature).  The charter does not, however,
 set forth any procedures for how that authority is to be carried out.
 Chapter 87, on the other hand, establishes the purposes for special
 assessments and the procedures for their levy.  Moreover, the charter
 expressly states that "[u]nless provided for to the contrary . . . the [RRA]
 and its Board of Commissioners shall be subject to and have the benefit of
 all general laws of the State of Vermont relating to municipal corporations
 . . . ."  1989, No. M-8, { 36-6.  Even were it possible to find conflict
 between the two enactments, all laws relating to this subject should be
 construed together and in harmony if possible.  See Lomberg v. Crowley, 138
 Vt. 420, 423, 415 A.2d 1324, 1326 (1980).  Here, the disputed provisions are
 readily harmonized -- the charter authorizes the RRA to make special
 assessments and chapter 87 instructs it how to make them.  Furthermore, the
 Board of Commissioners itself recognized the applicability of chapter 87 in
 its ordinance, where the Board expressly relied on { 3253 of that chapter
 for authority to impose the special assessment.  The Board neglected,
 however, to follow { 3254, which requires voter approval or consent of the
 owners.
      Once we conclude that 24 V.S.A. { 3254 applies to assessments levied by
 the RRA, the special assessment here necessarily fails.  The RRA did not
 gain either the approval of the voters or the consent of the property owners
 as required by that section.  Kirchner v. Giebink, 150 Vt. 172, 180, 552 A.2d 372, 377 (1988) ("an agreement by the Town to levy special assessments
 without following the statutory procedure would be unenforceable"); see also
 Alberty v. City of Henderson, 106 Nev. 299, 302, 792 P.2d 390, 393 (1990)
 (local improvement district invalid where city failed to follow mandatory
 statutory procedures).
      Although the first issue is dispositive of the case, we address the
 second in the interest of judicial economy.  We conclude that the failure of
 the Board of Aldermen to designate the district is also fatal to the
 disputed special assessment.  The revised charter grants authority to the
 RRA to make special assessments "within those parts of the City of Rutland
 designated by the Board of Aldermen."  1989, No. M-8, { 36-4(c).  Here, the
 Board designated the entire city, and we cannot agree with the superior
 court's conclusion that the word "within" permits the RRA to create a
 smaller district anywhere within city limits.  That construction renders
 part of the provision superfluous by eliminating any meaningful function for
 the Board, the City's elected representative body.  See Pacific Gas and
 Electric Co. v. City of San Jose, 172 Cal. App. 3d 598, 602, 218 Cal. Rptr. 400, 402 (1985) (special assessment district is "result only of legislative
 power grounded in the taxing authority of the sovereign").  We decline to
 adopt the trial court's interpretation, see State v. Tierney, 138 Vt. 163,
 165, 412 A.2d 298, 299 (1980), and instead rely on the plain wording of the
 provision.  Absent a designation of the district by the Board of Aldermen,
 the instant assessment was without effect.
      Reversed and remanded for further proceedings not inconsistent with
 this opinion.

                                         FOR THE COURT:




                                         Chief Justice