Summary 2011 WY 81

Summary of Decision May 13, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Mountain Cement Co. v. The South of Laramie Water & Sewer Dist.

Citation: 2011 WY 81

Docket Number: S-10-0199, S-10-0238

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462190

Docket No. S-10-0199: Appeal from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge

Docket No. S-10-0238: W.R.A.P. 12.09(b) Certified Question from the District Court of Albany County. The Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff/Petitioner): Philip A. Nicholas & Mitchell H. Edwards of Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Nicholas.

Representing Appellee (Defendant/Respondent): Kermit C. Brown and Elisa M. Butler of Brown & Hiser LLC, Laramie, Wyoming. Argument by Mr. Brown.

Date of Decision: May 13, 2011

Facts: The Appellee Water and Sewer District (the District) was established by a Board of County Commissioners (the Board) in 1992. The persons attempting to organize the District represented that the District would not levy property taxes, but would fund itself solely through user fees. Both the Petition submitted to the Board and the District’s Amended Rules and Regulations provided that the District intended to fund its systems with user fees, and not to levy taxes. Since its inception, the District has obtained water pursuant to an agreement for the city to furnish municipal water to the District.

Appellant owns land south of the city, with a portion of said land exceeding 20 acres in size lying within the District. It is undisputed that, in 1992, Appellant’s plant manager signed a petition favoring organization of the District, but that no one with actual authority ever consented in writing to Appellant’s inclusion in the District. It is also undisputed that Appellant obtains no water or other services from the District.

In 2008, Appellant learned from the County Assessor that the District intended to levy a tax against property lying within the District. Subsequently, Appellant filed in the district court the Complaint that underlies the Court’s case no. S-10-0199. A day after the Complaint was filed in the district court, Appellant filed with the Board the Petition which underlies this Court’s case no. S-10-0238. The Petition contained the same allegations found in the Complaint, but sought relief under Wyo. Stat. Ann. § 41-10-120 (LexisNexis 2007) and Wyo. Stat. Ann. § 22-29-307 (LexisNexis 2007).

In these consolidated appeals, Appellant challenged the district court’s conclusions that Appellant’s property was properly included in the District, that the District lawfully issued certain general obligation bonds, and also challenged the refusal of the Board to exclude Appellant’s property from the District.

Issues in S-10-0199: 1) Whether the District had the authority to include Appellant’s property within the District’s boundaries without Appellant’s written consent; 2) Whether the District’s proposed general obligation bond issue for the purpose of improving and expanding the District’s existing water system is in violation of law; and 3) Whether the District’s proposed general obligation bond issue for the purpose of improving and expanding the District’s existing water system violates the District’s statutory indebtedness limitation.

Issues in S-10-0238: 1) Does a Wyoming board of county commissioners have the power and authority to remove real property from a water and sewer district?; 2) If the answer to the first question is “yes,” under what circumstances may a board of county commissioners remove property from a water and sewer district?; and 3) Does the Petition for Exclusion of Appellant Company from the South of Laramie Water and Sewer District (the Petition), taking the facts alleged in the Petition as true and the allegations viewed in the light most favorable to Appellant, state a claim upon which relief can be granted?

Holdings: The Court affirmed the district court in S-10-0199, finding that Appellant is barred from challenging the inclusion of its property in the District. The allegation is barred not only by the strict thirty day period of limitation found in § 41-10-107(g), but also by the quo warranto requirement of the same statutory section. The Court did not consider the issue of whether the period of limitations found in § 1-3-109 was also exceeded.

The Court also affirmed the district court in finding that the District’s proposed general obligation bond issue was not unlawful. The Court concluded that, when read in pari materia with the other provisions of the Water and Sewer District Law, the unambiguous intent of § 41-10-128 is to allow, but not to require, the use of revenue bonds to fund its proposed well water project.

The Court also affirmed the district court’s determination that the District’s proposed general obligation bond issue did not violate the District’s statutory indebtedness limitation under the provisions of § 41-10-127. The Court concluded that, within the Water and Sewer District Law, the legislature did not intend to distinguish between the act of creating a system for the purpose of supplying water and the act of supplying water, and could see no logical reason for exempting from the debt limitation part, but not all, of the process of obtaining and providing water to a district.

In regards to the certified questions of S-10-023, The Court answered as follows and affirmed the decision of the Board not to exclude Appellant’s property from the district:

1. Does a Wyoming board of county commissioners have the power and authority to remove real property from a water and sewer district? Yes.

2. If the answer to the first question is “yes,” under what circumstances may a board of county commissioners remove property from a water and sewer district? The legislature has not defined the circumstances under which a board of county commissioners may remove property from a water and sewer district, leaving such boards unable to act upon a petition for exclusion.

3. Does the Petition for Exclusion of Appellant from the District, taking the facts alleged in the Petition as true and the allegations viewed in the light most favorable to Appellant, state a claim upon which relief can be granted? No.

J. Voigt delivered the opinion for the court.