Montgomery County Council v. Summers

Smith, J., delivered the opinion of the Court. We shall here reinstate an assessment made by appellant, ¹¹¹ Montgomery County Council (the Council), for toad improvements in that county. The litigation apparently was produced by a basic misunderstanding of the formulae mandated by the code of that county for computation of such assessments. The Council adopted an ordinance on November 10, 1970, assessing a portion of the cost of construction and reconstruction of Tilden Lane against land owned by appellees, A. Burks Summers et ux.

(the Summers). The assessment was made pursuant to the authority of Montgomery County Code (1965), § 24-36 providing that upon completion of a project “the council shall by ordinance assess the costs thereof (including the actual cost of publication of notices, the conduct of hearings, advertising for bids, engineering, and all costs of financing incurred prior to the adoption of the ordinance) against the adjacent properties as provided in the road construction code in force at the time,” with the “assessments [to] be computed on the basis of the linear frontage of such properties . . . .” Pursuant to the right granted by that section, the Summers appealed the assessment to the Circuit Court for Montgomery County. The assessment comprised the following items: new construction (497.4 linear feet x $26.3795429 per foot) $13,121.18 reconstruction (45 linear feet x $5.20011388 per foot) 234.01 ¹¹² sidewalks (542.4 linear feet x $1.66914077 per foot) 905.34 sod (542.4 linear feet x $.867596771 per foot) 470.57 1 driveway entrance (SLB — special lot benefit; actual cost) 364.04 Subtotal $15,095.14 engineering (10% of subtotal) 1,509.51 advertising (1 cent per foot — 542.4 feet) 5.42 Total $16,610.07 Tilden Lane was improved to a width of 36 feet and was designated as a primary residential road. The land of the Summers had a total frontage on that road of 542.4 feet.

New construction took place on 497.4 feet of that frontage with reconstruction on the remainder of 45 feet. Montgomery County Code (1965), § 103-15 (b) (1) provides that in the case of the reconstruction of “an arterial road within the suburban district, or where it passes through or abuts a subdivision, a primary or secondary residential road, an alley or a service drive — the cost of curbs and gutters, sidewalks, returns of curbs, sidewalk and driveway entrances, and two-thirds of the cost of the paving” are to be “chargeable and assessed to the benefited abutting ¹¹³ properties” with the proviso “that where [, as was the case here,] a road is of greater width than twenty-six feet, two-thirds of the cost of paving a twenty-six foot road shall be the paving cost chargeable to the abutting owners.” Section 103-15 (b) (2) provides that “[i]n the case of any road which has not previously been accepted for maintenance or is not being maintained by the county, the cost shall include,” where the road is “a primary residential road — the cost of grading, drainage structures, curbs and gutters, sidewalks, returns of curbs, sidewalk and driveway entrances and paving.” As the trial judge put it, he “upheld the validity of the action of the Montgomery County Council in charging a special assessment against the property of the A. Burks Summers et ux. . . . for new construction and reconstruction of Tilden Lane abutting their property. The court further upheld the special assessment against the [Summers’] property for reconstruction of forty-five feet of the said public street in the amount of $8.51 per [front] foot. The court then took the question of the cost per foot of new construction under advisement. .. .” The problem that arose was that the trial judge was unable to reconcile the $8.51 per foot total assessment for reconstruction, of which $5.20 was the cost of paving two-thirds of a twenty-six foot road, with the $31.81 assessment for new construction for which he said no breakdown was included in the record. 2 We find such a breakdown.

Accordingly, he proceeded to reverse so much of the special assessment as exceeded $8.60