Beatty v. Metropolitan St. Louis Sewer District

KAROHL, Judge,

concurring.

I concur, but write separately in response to the dissenting opinion.

If I read the dissent correctly it adopts the view that the Federal Clean Water Act, 33 U.S.C. § 1251 et seq., imposes a mandate on MSD to upgrade its sewerage treatment by July 1, 1988; that any upgrade, described as “improvement or extension”, must have area wide benefit; and, therefore, since all property owners within the entire system necessarily “benefit by” any upgrade project they should share the expense of “improvements or extensions” that directly serve only one sub-district and indirectly benefit the entire system. The dissent justifies this view because a failure by MSD to comply with the Clean Water Act will have disastrous results.

When the voters approved the MSD Plan, provisions of the Federal Clean Water Act were not a consideration. The trial court was required to find whether the eight projects submitted only for area wide approval were authorized by the Plan. The ultimate finding is a matter of law. The Plan provides for various forms of financing, construction and operation of MSD facilities. If the Plan does not authorize area wide financing by revenue bonds for a subdistrict improvement then MSD is free to resort to the other forms of approved financing or to submit the revenue bonds to the subdistrict. In either event approval would avoid any disastrous consequences.

The trial court and this court must consider what the eight projects are and who must approve and pay for them. This implicates Article X, § 22 of the Missouri Constitution, The Hancock Amendment. A system wide vote in favor will impose a revenue bond obligation on residents of a subdistrict even if the voters of the subdis-trict disapprove.

Section 3.020(15)(f) of the Plan must therefore be interpreted. That section permits improvement or extension financed by revenue bonds “payable solely from the revenues to be derived from the operation of such facilities.” The dissent overrides or ignores the limitation of “solely” and replaces it with liabilities of all property owners in the entire district because an indirect benefit to the entire system will result when any part of the system is upgraded. The justification is the compulsion of the Clean Water Act and the disastrous consequences of failure to upgrade. But the Clean Water Act was not a consideration of the voters who approved the Plan and the results are avoidable by resort to other forms of financing. The plain meaning of the Plan must be considered without resort to speculation on consequences. The trial court was not at liberty to ignore the meaning of “solely” or “such facilities”. The latter term refers to the “sewer and drainage facilities” earlier mentioned in the same paragraph.

MSD admits that during the entire history of its operation under the Plan it financed subdistrict improvements just like some of the eight projects presently considered by revenue bonds approved by and payable “solely by those property owners directly affected within the subdistrict. It also admits that property owners in those other subdistricts who paid or are paying for their subdistrict upgrade will now have the burden of also paying for the new projects which lie in other subdistricts. The historical facts mentioned in the dissent would rewrite history and by-pass admitted facts that “served by” and “used by” have previously governed under MSD’s own interpretation of § 3.020(15)(f).

Nothing in the majority opinion will prevent MSD from financing long-range district-wide improvements with revenue bonds. They may do so by submitting district-wide projects to all voters in the district and subdistrict projects to voters within the affected subdistrict. Section 3.020(15))f) requires that procedure. Nothing would prevent MSD from securing voter approval to amend the Plan.

Oswald v. City of Blue Springs, 635 S.W.2d 332 (Mo. banc 1982) is not decisive here because the required voter approval by subdistrict was never obtained. There are other distinctions between the facts in Oswald and the present case. MSD apparently chose to by-pass the effect of the Hancock Amendment by changing its own interpretation of § 3.020(15)(f) in seeking only an area wide vote. Significantly the trial court excluded exhibits which were probative of MSD’s own statements on the scope, or rather, the limitations, of § 3.020(15)(f) which conform with the majority opinion.

Neither the compulsion of the Clean Water Act nor the limitations created by the Hancock Amendment authorize the trial court or this court to re-interpret the scope of authority of MSD as set forth in the Metropolitan St. Louis Sewer District Plan. The question before the enactment of these new laws was the same as after their enactment, who must approve and who must bear the burden of paying for subdistrict improvements which directly benefit the subdistrict and only indirectly benefit not only all property owners within the entire system, but others downstream from the system. Both before and after the enactment of these new laws the distinction between direct and indirect benefit existed. For more than twenty years before submission of these projects MSD respected the distinction which flows from interpreting § 3.020(15)(f) as appears in the majority opinion.

At oral argument before the court en banc MSD admitted that it is not at liberty to treat some property owners differently than others. If property owners within subdistricts not served directly by the current projects are required to pay for like projects in their own subdistricts, approved and financed solely by revenue bonds within their own subdistrict, and to now pay for similar projects in other subdistricts then they will be treated differently than property owners only within the subdistricts directly affected by the new projects.