Whitmer v. City of Lindon
Annotate this CaseThis opinion is subject to revision before final publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Peter Whitmer,
Plaintiff and Appellant,
v.
City of Lindon, a Utah municipal
corporation, E. Ray Brown, Wilma
Taylor, Don Peterson, Scott J.
Cullimore, Noal T. Greenwood,
M. Dean Blackhurst, Richard D.
Draper, Jerald I. Hatch, James A.
Dain, Steven L. Smith, Randy L.
Childs, Mark L. Walker, John
Does I to X,
Defendants and Appellees.
No. 960124
F I L E D
July 29, 1997
Fourth District, Provo Dep't I
The Honorable Anthony W. Schofield
Attorneys: Peter Whitmer, Orem, for himself
Gordon Duval, Pleasant Grove, for City of Lindon
DURHAM, Justice:
Plaintiff Peter Whitmer, a resident and owner of real property in Lindon City, appeals from a
district court order denying his cross-motion for summary judgment and dismissing his claim in
favor of defendant Lindon City (Lindon), a municipal corporation. We affirm.
At a public meeting in January 1992, the Lindon City Council enacted ordinance 1-92, containing
policies and regulations governing a proposed pressurized secondary water system to be used for
irrigation. Lindon maintains that this legislation was designed to reduce the cost, waste, and
burden on the City's culinary water system created by the diversion of culinary water for
irrigation. Lindon has experienced recent rapid growth, including the conversion of irrigated
farmland to residences, which draw heavily on the culinary water supply. Prior to establishing
the secondary water system, Lindon residents obtained water for irrigation exclusively through
open canals administered by mutual irrigation companies. Property owners who did not own
shares in these irrigation companies and therefore did not have access to irrigation canals relied
upon Lindon's culinary water system for their outside watering. The recent growth in Lindon
placed a demand on the culinary system that required the development of an efficient and viable
secondary source of irrigation to ensure adequate culinary water for Lindon residents.
In 1991, Lindon contacted potential subscribers and proposed an agreement that committed the
City to construct a secondary irrigation system and required residents who desired connection to
the secondary system and owned shares in Lindon's mutual irrigation companies to transfer water
shares to the City in an amount determined by the size of their property. Lindon proposed that
Whitmer consider the agreement after identifying him as owning shares in the North Union
Water Irrigation Company (North Union). In January 1991, plaintiff's wife, Cynthia Whitmer,
signed this agreement. Lindon encouraged residents to commit to the secondary system and
transfer their water shares to the City so that Lindon would have adequate water resources and
could obtain state funding for the secondary system.
Lindon passed a bond resolution for the secondary water system in January 1992, which provided
notice of a thirty-day period to contest the bond resolution. Under ordinance 10-93, Lindon
adopted a water share transfer requirement and monthly user fee schedule applicable to all users,
whether parties to the earlier agreement or not. These provided that if Lindon has sufficient
water for its pressurized secondary system, it can waive the water share dedication and transfer
requirement for nonshareholders and instead allow applicants to pay in an amount equal to the
value of the required water stock.
Citing this provision, Whitmer requested a secondary water connection but refused to exchange
his shares in North Union for that connection. Instead, Whitmer tendered a $750 dollar cash
payment for his connection. Lindon returned Whitmer's cash payment, notifying him that as a
water share owner he must transfer his shares in North Union to connect to the City's secondary
water system. In 1993, as Lindon completed construction of its secondary water system, it
mistakenly connected Whitmer to the secondary system and began to bill him. Lindon later
notified Whitmer of the mistaken connection and refunded Whitmer's payments. Lindon also
notified Whitmer by letter that to maintain his water connection he must relinquish his North
Union shares to the City. In this letter, Lindon referenced ordinance 13.18.260, which provides,
after notice of secondary water connection termination, a ten-day period for written appeals of
proposed service terminations. Lindon's notice was dated August 19, 1993. Whitmer hand-delivered a notice of appeal to Lindon on September 7, 1993. After notifying Whitmer that his
notice of appeal was untimely, Lindon terminated Whitmer's secondary water connection.
The trial court granted Lindon's motion for summary judgment and generally dismissed Whitmer's constitutional challenges.(1) Whitmer argues on appeal that Lindon's requirement that water shareholders transfer their water shares to the City in exchange for connection to the municipal secondary water system when those without water shares can pay cash for their connection is unlawful under the Utah and United States Constitutions. Whitmer contends that Lindon's statutory scheme effects an unconstitutional taking of his water shares, that as a water shareholder he is denied the equal protection and uniform operation of the laws, and that Lindon violated his due process rights in its procedure for terminating his secondary water connection.
All issues in this case present questions of law. We therefore review the trial court's conclusions
for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994). While considering the
constitutionality of a statute, we will resolve reasonable doubts in favor of constitutionality.
Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993). Moreover, where
Whitmer bases his claims on both the United States and Utah constitutions, because we can
decide this case under the Utah Constitution, we need not reach questions of federal
constitutional law. See City of Logan v. Utah Power & Light Co., 796 P.2d 697, 700 n.6 (Utah
1990); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 890 (Utah 1988)
(holding that where level of protection under state constitution meets or exceeds federal
standards, there is no need to reach federal constitutional challenges when we can reach decision
under Utah Constitution).
Takings Challenge
Whitmer contends that Lindon's statutory scheme creating its secondary water system effects an
unconstitutional taking of his North Union water shares under article I, section 22 of the Utah
Constitution, which provides, "Private property shall not be taken or damaged for public use
without just compensation." Utah Const. art. I, 22. We disagree. Lindon residents' connection
to the municipal pressurized secondary water system is optional. To connect to the secondary
water system, Whitmer was required to pay a connection fee of two North Union shares.
However, as a shareholder in North Union, he could have continued to irrigate with water from
the North Union Canal. Lindon's statutory scheme does not affect the North Union Canal or
Whitmer's access to it. Since the value of Whitmer's shares and his use of the North Union
Canal were not taken or damaged by Lindon's legislation, there is no violation of article I,
section 22 of the Utah Constitution. Furthermore, should Whitmer choose to connect to
Lindon's secondary system and transfer his North Union shares to the City, he will receive the
value of access to the municipal secondary system in exchange for his shares in North Union.
Whitmer has nowhere argued that the value of the North Union shares the City required of him
was less than the value of the shares in the municipal secondary system that Lindon promised
him in return, nor has he argued that the value of his North Union shares exceeds $750 per share,
the price at which the municipal shares were available to Lindon residents who did not own any
shares in private water companies.
Due Process Challenge
Whitmer maintains that Lindon's procedure for terminating his secondary water system
connection violated his due process rights under Utah law. We reject this argument. Utah's due
process clause provides, "No person shall be deprived of life, liberty, or property, without due
process of law." Utah Const. art. I, 7. Lindon's statutory scheme adequately protects the due
process rights of its secondary water system users.
Before constructing the secondary water system, Lindon sought a commitment among its
residents through an agreement. Cynthia Whitmer, plaintiff's wife, signed this agreement.
Lindon provided Whitmer with adequate notice of its policies and rules through both publication
and correspondence with Whitmer. After mistakenly connecting Whitmer to the secondary water
system, Lindon provided Whitmer with an opportunity to appeal his secondary water service
termination within a ten-day period. Whitmer's notification to Lindon of his intent to appeal was
untimely. Lindon mailed the notice of termination on August 19, 1993, and Whitmer received it
on August 23, 1993. Regardless of which date begins the tolling of the ten-day period,
Whitmer's September 7, 1993, notice of appeal was too late.
Furthermore, connection to the secondary water system is optional. Lindon went beyond its
obligations under Utah Constitution article I, section 22 in providing Whitmer with notice and an
opportunity to be heard under its voluntary secondary water connection statutory scheme. In
Rupp v. Grantsville City, 610 P.2d 338, 342 (Utah 1980), we held that water service termination
for residents who failed to pay an initial sewer connection fee did not violate due process because
the city provided notice and an opportunity to be heard. In that case, the connection fee was
required of all residents. However, in this case, Whitmer was not required to transfer his water
shares because he was not required to connect to the secondary water system.
Equal Protection and Uniform Operation of the Laws Challenges
Whitmer contends that Lindon's scheme violates both federal and Utah law because it creates
two classes of secondary water users. Whitmer alleges that under Lindon ordinance 1-92, water
share owners must exchange their shares for a connection to Lindon's secondary water system,
while those without water shares may purchase the connection by paying in cash. Whitmer's
argument is not persuasive. The mere fact that legislation creates a classification does not mean
that it violates the Utah Constitution.
We have recognized that article I, section 24, the uniform operation of the laws provision of the
Utah Constitution, establishes different requirements from the federal Equal Protection Clause.
State v. Mohi, 901 P.2d 991, 997 (Utah 1995). However, we have made it clear that Utah's
uniform operation of the laws provision is "at least as exacting, and in some circumstances, more
rigorous than the standard applied under the federal constitution." Mountain Fuel, 752 P.2d at
889. Therefore, "we need only determine whether the ordinances in question satisfy article I,
section 24" of the Utah Constitution. "If so, they will pass federal muster." Id. at 890.
Whitmer attacks the constitutionality of Lindon's scheme under article I, section 24 of the Utah
Constitution, which states, "All laws of a general nature shall have uniform operation." In Blue
Cross & Blue Shield v. State, 779 P.2d 634, 637 (1989), we discussed the level of scrutiny
applied to a challenged classification under article I, section 24 of the Utah Constitution. We
held in Blue Cross that "[i]n scrutinizing a legislative measure under article I, 24, we must
determine whether the classification is reasonable, whether the objectives of the legislation are
legitimate, and whether there is a reasonable relationship between the classification and the
legislative purposes." Id. (citations omitted); see also Mountain Fuel, 752 P.2d at 890. The
burden upon a plaintiff to demonstrate unconstitutionality is a heavy one. Blue Cross, 779 P.2d
at 637.
Whitmer does not show that Lindon's scheme is unreasonable. While Lindon creates two classes
of residents, water share owners and those without water shares, this distinction is reasonably
related to Lindon's legitimate goal of protecting the viability of its culinary water system by
providing a secondary water system for irrigation. Whitmer acknowledges that this purpose is
legitimate. Therefore, this court must determine whether the classification itself is reasonable
and whether there is a reasonable relationship between Lindon's purpose and its legislative
classification.
We conclude that Lindon's statutory scheme is reasonable. First, the distinction Lindon draws
between water share owners and other residents is reasonable. Lindon needs the water shares to
supply its secondary water system adequately and, initially, required the commitment of some
water share owners to secure state funding for its secondary system. Second, Lindon's
classification reasonably relates to its purpose of providing an adequate water supply for the
secondary system.
Lindon took reasonable steps to offset the drain on its culinary water delivery system created by
growth and to avoid the waste and inefficiency of residents' irrigating with high-quality culinary
water. Requiring those water share owners who choose to connect to the municipal secondary
water system to transfer water shares to the City instead of paying cash for the connection
represents a reasonable means to secure the water resources necessary for the City's secondary
water system and therefore does not violate Utah's uniform operation of the laws provision.
In view of the foregoing conclusions, we affirm the trial court's judgment of dismissal.
Chief Justice Zimmerman, Associate Chief Justice Stewart, Justice Howe, and Justice Russon concur in Justice Durham's opinion.
Opinion Endnotes:
1. The only challenge not dismissed below concerned Lindon City ordinance 13.18.150, which required an owner who did not connect to the system and who did not surrender the required number of shares to do so when and if he or she transferred the property. The court ruled that this provision constituted an unconstitutional taking under the United States and Utah constitutions. This issue was not appealed, and we do not treat it.
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