Beatty v. Metropolitan St. Louis Sewer District

CARL R. GAERTNER, Judge,

dissenting.

I respectfully dissent. The majority opinion has taken a finding of fact by the trial court and transmogrified it into a conclusion of law. The trial court did not interpret the phrase “such sewerage facilities” as used in § 3.020(15)(f) of the Plan as being synonymous with “the entire sewerage and drainage system.” Rather, the trial court found as fact that “the bond issue projects will improve or extend the [entire sewer and drainage] system.” Therefore, the plain and unambiguous language of § 3.020(15)(f) allows utilization of the revenues of the entire system to fund the cost of improving or extending the entire system. In characterizing as a mere argument made by M.S.D. that the pollution control facilities are improvements to the entire district, the majority has overlooked the finding of the trial court based upon extensive and uncontroverted evidence pertaining to the area-wide benefits to be derived from the bond issue projects, as well as the disastrous effects upon the entire system if the projects are not timely completed. The oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) narrowly circumscribes appellate review of a court-tried case. We must accept the findings of fact of the trial court if they are supported by substantial evidence. Here, the evidence supporting the trial court’s finding that the bond issue projects will improve or extend the entire system is substantial and uncontroverted.

That evidence can be briefly summarized. The Clean Water Act, 33 U.S.C. § 1251 et seq. mandates the upgrading of waste water treatment facilities from primary, i.e., fifty percent removal of pollutants, to secondary, i.e., ninety percent removal of pollutants, by July 1, 1988. In 1978 M.S.D. began the development of a comprehensive plan to be undertaken in stages to bring the entire system into compliance with the requirements of the Act. The comprehensive plan has been accepted by the Federal Environmental Protection Agency and the Missouri Clean Water Commission. Failure to comply with the scheduled start dates and completion dates of each of the projects encompassed by the comprehensive plan will result in not only the loss of several hundred million dollars in federal and state grants but also the assessment of fines and penalties against the district as a whole. In order to meet the matching funds requirement for federal and state grants pertaining to clean water projects scheduled prior to trial, M.S.D. “borrowed” money earmarked for other purposes. Regular maintenance and repair of facilities in various areas of the district were deferred. General fund expenditures were reduced by such measures as undercutting the proposed complement of personnel in order to make such funds available for M.S.D.’s matching share of three clean water projects. The evidence was undisputed that despite such temporary measures, without the bond issue revenue funds to meet the required match for federal funding of the remaining clean water projects, *322monies for those projects would be exhausted by January, 1987.

In addition to these district-wide financial benefits related to compliance with the Clean Water Act, the trial court found the eight remaining projects to be financed by the revenue bonds would “serve and benefit the entire sewer district by, among other things ... achievpng] economies of scale in the treatment of sewage and the operations of the district as a whole; and ... improv[ing] water quality throughout the district.” These findings are supported by the testimony, again undisputed, that the bond issue projects would eliminate 40 to 50 antiquated and inadequate treatment facilities scattered throughout the district. These are to be replaced by five to seven major treatment facilities serving various combinations of minor water sheds or sub-districts. This consolidation would materially reduce the administrative, operational and maintenance costs of the entire M.S.D. system, thereby benefiting all the users of the system. Furthermore, because of the natural water flow, improving the cleanliness of the water in one section of the area inevitably provides cleaner water in the other sections.

I cannot accept the conclusion of the majority that approval of the bond issue ordinances necessitates a misreading of § 3.020(15)(f) or an expansion of the definitions of “improving or extending.” It requires no strained construction to say that bringing an entire system into compliance with the Clean Water Act improves the entire system. The fact that each stage of this improvement might be scheduled for different times at different locations does not denigrate the improvement of the whole. Accomplishment of the total improvement in stages pursuant to a comprehensive plan is economical and efficient. Moreover, extension is not limited to the single dimension of distance, but includes time and quantity. Certainly avoidance of the loss of federal funding and the assessment of penalties against the district as a whole extends its ability to continue to provide service. The benefits of increased capacity to remove pollutants from the water are as extensive as the flow of water from the Missouri, Meramec, and Mississippi Rivers and their tributaries. Such benefits cannot be said to apply only within particular watershed areas.

The effect of the decision in this case is to preclude M.S.D. from financing long-range comprehensive district-wide improvements by revenue bonds. Each project of such a long-range plan would have to be financed separately and only by the revenues produced within the subdistrict in which a particular project might be located. Section 3.020(15)(f) is intended to prohibit district-wide financing for the construction of a sewer in an area where none existed before, which would benefit only residents of that area. It is unnecessary and unduly restrictive to apply that concept to each stage of a comprehensive project calculated to improve the district as a whole.

The majority opinion has enunciated an interpretation of § 3.020(15)(f) which is even more restrictive than that urged by appellant. In his brief, appellant argues that the funds available for retirement of revenue bonds are limited to the fees paid by the users “served” by the new facilities, thereby equating “served by” with benefited. In holding the present bond issue illegal because the proposed water treatment facilities will only “serve” eight distinct areas and ninety percent of the M.S.D. users, the majority implicitly equates “served by” with “used by.” The voluminous documentary evidence introduced by appellant clearly demonstrates a history of charging the cost of improvements to those “benefited” thereby. The trial court expressly found that “completion of the revenue project at issue here will, indeed, benefit the entire district.” As stated above, this finding is amply supported by substantial evidence and we are not at liberty to substitute our view of the facts for that of the trial court.

The majority found it unnecessary to address other contentions asserted by appellant as grounds for reversal. I find these contentions to be without merit. Appellant argues that the fees established by ordinance 5921 violate Article X, § 22 of the Missouri Constitution, The Hancock *323Amendment. The same argument was rejected by the Supreme Court of Missouri in Oswald v. City of Blue Springs, 635 S.W.2d 332 (Mo. banc 1982), wherein the court held that voter approval of a bond issue by necessary implication carries with it approval of rate increases to meet the covenant with the bond holders without further voter approval.

Appellant’s final contention charges trial court error in the exclusion of 17 of the more than 75 exhibits offered by appellant. Admission or rejection of evidence is generally not an issue on appeal of a court-tried case. Mattingly v. Bruckerhoff, 603 S.W.2d 11, 13 (Mo.App.1980). Pursuant to Rule 73.01(a) the excluded documents are before the reviewing court for such consideration as is appropriate. Bernard McMenamy Contractors, Inc. v. Missouri State Highway Commission, 582 S.W.2d 305, 314 (Mo.App.1979). I agree with the trial court that the excluded exhibits were irrelevant and, for the most part, cumulative. Exclusion of the exhibits does not warrant a finding of any abuse of the broad discretion vested in the trial court.

I would affirm the judgment of the trial court.