Milestone v. Washington Suburban Sanitary Commission ( 1969 )

Smith, J.,

delivered the opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 258 infra.

This litigation is produced by what the appellants, David Milestone et al., believed to be an attempt on the part of the appellee, Washington Suburban Sanitary Commission (the Commission), to assess a parcel of land twice for the same sewer. The trial judge (Meloy, J.) was convinced there had not been a prior assessment. We shall sustain the action of Judge Meloy.

The reporter is directed to reproduce the attached plat. It is a copy of a portion of the plat filed in this case and printed in the record extract. The situation here can best be understood by reference to that plat.

In the spring of 1962 David Milestone (Milestone) owned a tract of land on the Laurel-Bowie road in Prince George’s County said to comprise 21.4064 acres. The frontage of Milestone on this road was broken by two parcels previously conveyed by someone to Messrs. Hanauer and Poole which, for purposes of the Commission, have been called “Block 257/10” and “Block 258/10”, respectively.¹ A sewer main was constructed by the Commission in 1961. This line ended at block 257. It apparently reached the edge of the remaining frontage of Milestone on this road, that area being known for Commission purposes as block 256, but was not constructed in front of it. Water lines along the entire Milestone frontage on this road were installed at the same time the sewer lines were installed for a portion of the frontage. The Commission, for purposes of making its assessments, assigned block numbers. Although the land of Milestone was. a single tract of 21.4064 acres, the Commission assigned four different block numbers to this land, 188, 256, 259’ and 260.²

In March of 1962 Milestone was notified of a sewer-benefit charge assessment for block 259 pertaining to a frontage of 330 feet on the Laurel-Bowie road, precisely the number of feet appearing on the plat attached to this, opinion for that block. The notice at one place had on it:

“Lot 3.534 ac., 1 ac. & 14 ac. Block 259/10 Subdivision Bowie Road near B. & O.RR — 10th Dist.”

Below the assessment data the following appeared:

“Parcels 188/10, 256/10, 259/10 & 260/10 continuous frontage”

On the same day Milestone was notified of an assessment for sewer purposes pertaining to block 260 for 69 feet, the precise frontage specified on the attached drawing. This notice had above the data relative to the front foot benefit charge:

“Lot 2.8405 acres Block 260/10 Subdivision South Laurel 10th Dist.”

At the foot the notice said:

“Parcels 188/10, 256/10, 259/10 & 260/10 continuous frontage”

Notices of water assessments for blocks 259 and 260 were issued on the same day as the sewer assessment notices with the same data appearing on the notices. On the same date a notice of assessment was issued relative to block 256 for water purposes. This assessment was originally for 376 feet, but the assessment notice has on it a notation stating:

“376' corrected to 380' effective 1-1-62”

in longhand with the signature of William A. Ryon (Supervisor of Assessments) written on it. Reference to the attached plat will reveal that the frontage of block 256 as it there appears is 379.77 feet (283 feet plus 96.77 feet). The course down the road is S 07° 24' 00" W 379.77 feet. This notice had on it above the front foot benefit charge assessment the legend:

“Lot 3.534 ac., 1 ac. & 14 acres Block 256/10 Subdivision Bowie Rd. near B. & O RR—10th Dist.”

Below that it said:

“Parcels 188/10, 256/10, 259/10 & 260/10 continuous frontage”

On March 16, 1962, Milestone wrote the Commission enclosing “photostatic copies of 5 notices of water main benefit charges and sewer benefit charges” and requested “the redemption figure necessary to pay off these front foot benefit charges in full.” On April 4, 1962, the Supervisor of Assessments of the Commission wrote Milestone as follows:

“Reference is made to your letter of March 16, 1962 in which you enclosed photo-copies of five benefit charge notices, mailed you under date of March 8, 1962, on certain properties in the 10th (Laurel) Election District, Prince George’s County, Maryland.

“You are advised that the amount necessary to redeem, or pay off in one lump sum, the water and sewer benefit charges indicated on the five notices, are as follows:

Amount to redeem water benefit charge levied on 3.534 Ac., 1 Ac. & 14 Ac. (Parcel 256/10) $2,481.71

Amount to redeem water benefit charge levied on 3.534 Ac., 1 Ac. •& 14 Ac. (Parcel 259/10) $2,155.17

Amount to redeem sewer benefit charge levied on 3.534 Ac., 1 Ac. & 14 Ac. (Parcel 259/10) $2,753.83

Amount to redeem water benefit charge levied on 2.8405 Acres (Parcel 260/10) $ 809.82

Amount to redeem sewer benefit charge levied on 2.8405 Acres (Parcel 260/10) $ 575.80

“We trust this furnishes you with the information requested.”

The above listed charges totaled $8,776.33. It will be noted that no reference is made in that letter to block 188. On June 5, 1962, Milestone paid the Commission the sum of $12,873.85, of which $4,097.52 was for assessments for block 188. The receipt stated it was:

“For: Redeeming effective Jan. 1, 1962, water & sewer front foot benefit charges levied against 21.3705 acres of land (Parcels 188/10, 256/10, 259/10 & 260/10), in the 10th (Laurel) Election District, Prince George’s County, assessed to David Milestone.”

The plat filed in the record extract and a portion of which is here reproduced was prepared subsequent to the 1962 assessment. It was approved by the National Capital Park and Planning Commission on June 20, 1962.

On September 21, 1965, 6.7 acres of the land owned by Milestone was conveyed so that Philip Milestone now has an interest in it. That land is shown as block 256 B on the plat. In 1967 this 6.7 acre parcel was improved by the erection of buildings containing 161 apartment units. The apartments were connected to the existing sewer in Laurel-Bowie road by a line running through other land of Milestone (block 259). In March of 1968 a sewer benefit charge notice was sent to Milestone as a result of this construction and connection. The annual charge was in the amount of $1,999.62 on the unit basis of 161 units at 18 feet each or a total of 2,898 feet. The property was identified in the notice as:

“6.70 Ac. at Center Lot Pt. of Block 256B/10 Subdivision Milestone Apartments — 10th District Parcel A”

There are two statute's here pertinent. Section 1571 a³ of the 1953 Code of Public Local Laws of Prince George’s County at the time of the 1962 assessment provided in pertinent part:

“(a) * * * [W]ithin twelve months after the completion of a * * * sewerage project the Commission is empowered and directed to fix and levy a benefit charge upon all property abutting upon said * * * sewer, in accordance with the classification * * *. Said benefit shall be levied for * * * sewerage construction and shall be based for each class of property upon the approximate cost of said construction as an integral part of the whole system, and the number of front feet abutting upon the street, * * * in which the * * * sewer is placed.

* * *

“ (d) In classifying property and levying said front foot benefit charge, * * * any irregular shaped lot having only one frontage may be assessed for such frontage as the Commission may determine to be reasonable and fair * *

At the time of the 1962 assessment the only classes for assessment purposes were “agricultural, small acreage, industrial or business and sub-division property.” By a 1963 amendment the “agricultural, small acreage [and] industrial or business” classifications were retained, and there were added as classifications “sub-division residential, multi-unit residential, multi-unit business and institutional”. Moreover, the provision relative to assessment was amended so that it read:

“Said benefit charge shall be levied for * * * sewerage construction and shall be based for each class of property upon the approximate cost of said construction as an integral part of the whole system, and either the number of front feet abutting upon the street, * * * in which the * * * sewer is placed, or with respect to multi-unit classes, the number of units in or on the property abutting said * * * sewer line.” (emphasis added)

It was pursuant to this latter amendment that the assessment here contested was made on the multi-unit residential basis.

Section 1571 (g)⁴ of the 1953 Code of Public Local Laws of Prince George’s County at the time of the 1962 assessment and also at the time of the 1967 connection provided in pertinent part:

“The commission shall at any time permit a connection with a * * * sewer by a property owner whose property does not abut on said * * * sewer and who has not previously thereto paid a benefit charge for the construction of said * * * sewer provided said commission shall classify said property and determine a front foot charge to be paid by said property owner as though his property abutted upon said * * * sewer; and in the event of such connection being made said property owner and said property, as to all charges, rates and benefits shall stand in every respect in the same position as if the said property abutted upon a * * * sewer.”

Milestone says:

“As evidence of the proposition that the sewer has been redeemed, the Court’s attention is invited to the two sewer benefit charge notices [as to blocks 259 and 260] * * * [which] were exhibits before the lower Court. It is clear that the notices refer to the sewer in question. It should be noted that the notices contain acreage references in the following amounts: 2.8405, 3.534, 1.0, and 14.0. Simple addition results in a total land area of 21 -f- Acres, the same number of acres owned by the appellant. The appellee, by its Supervisor of Assessments, in a letter to the appellant dated April 4, 1962, [printed in full above] * * * stated that the amount necessary to redeem sewer benefit charges levied on a total of 21 + Acres was a certain amount. A cashier’s receipt was given to the appellant, , dated June 6, 1962 [printed in full above] * * *. It also refers to the total land in question and to the same sewer.

“Thus it is clear that the sewer, which was constructed in 1961 along the Laurel-Bowie Boad, has been redeemed. Having been paid for and redeemed once, the Commission can not require the same sewer improvement to be redeemed and paid for a second time. This proposition is so elementary that appellant has been unable to find any cases wherein the question has been litigated.”

Milestone’s reference to the sewer’s having been “redeemed” is not absolutely accurate. The pertinent statute (§ 83-71 (f)) provides for extinguishing or redeeming the benefit charge, not redeeming the sewer. It also states:

“The extinguishment or redemption of any benefit charge shall be conditional until the last year of maturity of the bonds from the proceeds of which the construction was done, and if following redemption or extinguishment the use of the property changes to another class so that the property would be placed in a different class yielding a greater annual benefit charge than that utilized for computing the redemption amount, the commission may reclassify the property and re-impose a benefit charge for the remaining number of years, calculating the benefit charge, however, so as to give credit for the sum paid for extinguishment or redemption.”

The acreage references on which Milestone bases his argument were for purposes of identification of the entire tract, not for the purpose of stating for what the assessment was being made. The only reference in those various notices as to the actual property being assessed is the front footage assessment which corresponds precisely with the blocks as laid down on the plat.

It will be noted that the letter of the supervisor of assessments to which reference is made carefully spells out that water benefit charges are levied for each of the blocks comprising the Milestone land while sewer benefit charges were levied only for blocks 259 and 260. No reference is made in the letter to block 188, also a part of the tract, as that block apparently was not included in the letter written by Milestone requesting the redemption figure as to Ms land. Milestone’s letter refers to five notices. The reply listed the five assessments which we earlier summarized.

The cashier’s receipt does refer to “water and sewer front foot benefit charges levied against 21.3705 acres of land”. It does not say, however, that sewer charges were levied against all of the 21.3705 acres. Accordingly, the receipt is ambiguous and must be read with the Commission’s letter of April 4 and the notices furnished.

In Sanitary Commission v. Noel, 155 Md. 427, 142 A. 634 (1928), our predecessors had before them a situation in which the Commission increased the front foot benefit charges upon all properties of various classes for the purpose of defraying the cost of reinforcement and augmentation of the systems, required by unanticipated growth and spread of population within the district. Chief Judge Bond said for the Court:

“Taking the classification then to be a proper basis for assessment of front foot benefit charges, it is argued that the levy of the increase on the complainant’s property is still unconstitutional because the amount of benefits had been fixed for that property and partly paid, and because the increased outlay to be met by the commission was based on no change in construction in front of the property, and no change in supply to it, and that for these reasons the additional cost, must, following the benefits from it, be met by assessing other properties actually benefited, by increasing the general ad valorem tax throughout the district, or by general county taxes. We do not see any principle upon which the additional front foot assessment on this property could be held unconstitutional merely because there had already been an assessment levied on it. So long as the constitutional lim- • its are not exceeded on the whole, there seems to be no illegality in making a total permissible charge in more than one assessment. Supplemental assessments are common and have generally been upheld. 1 Page & Jones, Taxation by Assessment, sec. 954; Kadow v. Paul, 274 U. S. 175.” Id. at 434-85.

In Leonardo v. County Comm., 214 Md. 287, 134 A. 2d 284 (1957), cert. den., 355 U. S. 906, 78 S. Ct. 332, 2 L.Ed.2d 260 (1957), reh. den. 355 U. S. 967, 78 S. Ct. 534, 2 L.Ed.2d 543 (1958), Judge (later Chief Judge) Prescott said for the Court with reference to benefit charges:

“The mode of assessment is a legislative question, subject to constitutional limitations. The mode may be committed to municipal authorities and the general rule is that the exercise of their discretion therein, if made according to a definite and just plan, will not be reviewed by the courts where neither fraud nor mistake appears. [14] McQuillen, [Municipal Corporations,], § 38.111 [ (3rd Ed.) ].” Id. at 307.

Cf. Somerset County Sanit v. Chamberlin, 254 Md. 630,. 255 A. 2d 290 (1969).

There is no allegation of fraud here. The question here basically resolves itself into one of fact. Pursuant to the-grant of authority to it the Commission was permitted in the case of an irregularly shaped lot “having only one frontage” to assess as it might determine to be reasonable. The complete section makes it obvious that in speaking of “one frontage” reference is to frontage on only one street. In determining what was “fair and reasonable”, we believe the Commission on the peculiar facts here existing was justified in treating the Milestone tract as more than one lot. It is quite obvious that the actual assessment made by the Commission with reference to the Milestone land was only for the frontage which actually abutted on the sewer.

Had the Commission in 1962 made a sewer benefit, charge assessment against Milestone for the front footage of block 256 on the Laurel-Bowie road on the theory that the sewer by coming to the edge of block 256 (see plat) was available for the entire block, and had Milestone then proceeded to redeem or extinguish the benefit charge thus assessed, then we would agree that the-Commission would now be foreclosed from levying a. benefit charge on the basis then used. We are not obliged for the purpose of this decision to pass upon whether the Commission having levied on one basis would now be permitted to levy for a classification not in existence-at the time of the original assessment. If blocks 257 and 258 had run through to the railroad (see plat) with Milestone’s road frontage being identical with what he then owned, Milestone’s 1962 assessment would have been the same as what he in fact paid in 1962. In that situation favorable consideration would not be given to a Milestone contention that he should not now pay an assessment for block 256 because he owned other land on the road (blocks 259, 260 and 188) for which he had previously been assessed. We see no difference between that and this case.

The dissenting opinion makes reference to the fact that the plat was filed subsequent to the assessments and that it was for one parcel. The significance of the plat is that mathematically the front foot assessments for each block are in accordance with the road frontage as shown on the plat, a fact even Milestone did not dispute below. It ' is common knowledge that assessing authorities maintain assessment plats compiled from deed descriptions. See for instance Code (1969 Repl. Vol.) Art. 81, § 45.

In the case of Morris v. Ehlers, 211 Md. 23, 124 A. 2d 776 (1956), to which reference was made in footnote 2, .the tract of land comprised something in excess of 32 .acres. The property was broken up into parcels for assessment purposes.

The remainder of the Milestone land had made no contribution to the sewer installation. Under § 83-71 (g) of the Prince George’s County Code the Commission was obliged to permit connection arid to proceed to assess un- ■ der the then applicable law, that which provided a multiunit classification. This it did.

Judgment affirmed; appellants to pay the costs.

1 . The number “10” appears in all of the block references, apparently referring to the fact that the land is situate in the 10th Election District of Prince George’s County. For the sake of simplicity the blocks will be from time to time referred to without including the number “10”.

2 . For a similar method of assessment see Morris v. Ehlers, 211 Md. 23, 25, 124 A. 2d 776 (1956).

3 . Section 1B71 as amended is known as § 83-71 in the current Prince George’s Code.

4 . Now § 83-71 (g).