I concur in the judgment and as to the findings as to assignments of error Nos. I and II but for the following reasons. The initial opinion supports the trial court's finding that since the board made no payment collection arrangement prior to the tap-in of November 1978, such tap-in fee is improper under R.C.6117.02. However, the record indicates that the proposed charge for a tap-in was originally made in June 1970, approximately eight years prior to the first connection. While the 1970 resolution was subsequently repealed in January 1978, and replaced by Resolutions 98, 99 and 100 establishing rates and charges, it is clear that such resolutions set forth a payment arrangement prior to the tap-in.
The initial opinion also relies upon the case of Parente v.Day (1968), 16 Ohio App.2d 35 [45 O.O.2d 321], in finding such tap-in fee improper. The court in Parente held that tap-in charges were unlawful where such charges were not imposed until after the time of tap-in. However, in Parente, the property owners were apparently not aware that they would be subject to the tap-in charge until after the connection was made, while, in the instant case, the property owners were given notice of such tap-in fee by the resolutions of June 1970 and January 1978. Furthermore, while the *Page 385 language of Parente is unclear, Parente apparently involved assessments and assessment procedures, while the instant case involves a one-time tap-in charge. Therefore, the Parente decision is not controlling in the instant case.
Turning to the aforementioned language in R.C. 6117.02, the statute states that "prior to such connection," such connection charges shall be either "paid in full" or provisions shall be made for "payment in installments." However, it is obvious from the clear words of the statute that the requirements that the tap-in fee be paid prior to connection to the system is for the benefit of the county. This requirement is designed to insure that the county has received its payment prior to the time that the user connects to the system. There is nothing in R.C. 6117.02 which suggests that the county loses the opportunity to collect a tap-in fee if it collects the fee subsequent to connection. If the county has, in fact, collected the fee subsequent to connection, the county has merely waived its right to receive payment prior to connection, but has not forfeited its right to receive the fee itself.
I find assignment of error No. I not well taken for the reasons hereinafter stated. The board tried to finance the initial construction of the sewer system in part by a connection fee. This connection fee was levied on every user in the district. There were no old or new users. The $250 charge was the same for those connecting in 1976 as for those who will connect in 1986. I quote the following from the stipulations of counsel:
"3. Said Resolutions provided that each single family residence thereafter connected to the Jerome Road Plant and its tributaries (`The System') would pay a one time charge called a tap-in charge, of Two Hundred Fifty Dollars ($250.00), to be used to recover part of the principal and interest on the outstanding debt incurred for the construction of The System, and authorizes the Lucas County Sanitary Engineer to collect said charges.
"* * *
"5. Said Two Hundred Fifty Dollar ($250.00) tap-in charge was not established as a percentage of the overall cost of The System and does not reflect any actual cost to Lucas County for the physical connection or `tap-in' of a residence to The System.
"6. Said Two Hundred Fifty Dollar ($250.00) tap-in charge was established as a constant and uncharging amount; that is, those who connected in 1976 would be charged the same as those who connected in 1986, i.e., Two Hundred Fifty Dollars ($250.00)."
The connection fee was not a charge for the "privilege of connecting" but in effect a flat charge against all improved property in the district connecting at the time of construction and thereafter. I do not find that this flat charge is reasonable, supported by the record, or lawful. Furthermore, it does not serve the purpose of a connection charge which is to "equalize the burden" between an old user and a new user. SeeAmherst Builders v. Amherst (1980), 61 Ohio St.2d 345, at page 347 [15 O.O.3d 432]. Cf. Airwick Indus., Inc. v. CarlstadtSewerage Auth. (1970), 57 N.J. 107, 270 A.2d 18. See, also,Rocky Hill Convalescent Hosp., Inc. v. Metropolitan Dist. (1971),160 Conn. 446, 280 A.2d 344, wherein it is said that a connection charge is based on comparables for proceding years.
Except as modified by my observations above, I concur in the finding as to assignment of error No. II. However, I find that the trial court is not precise in its reference to "assessment" but was concerned primarily with procedure and the expenditure of funds accruing from the connection fee. I, therefore, find as did the trial judge, that a tap-in charge is not proper under the facts in the instant case. I concur in the finding as to the remaining assignments of error and in the judgment. *Page 386