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24900 - State of South Carolina, etc. v. the City of Charleston, et al.

Davis Adv. Sh. No. 7
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina,

ex rel. Charles M.

Condon, in his official

capacity as South

Carolina Attorney

General,

Appellant,

v.

The City of Charleston

and Charleston County,

Respondents.



Appeal From Charleston County

Alexander S. Macaulay, Circuit Court Judge



Opinion No. 24900

Heard December 3, 1998 - Filed February 16, 1999



AFFIRMED



Attorney General Charles M. Condon, Assistant

Attorneys General Reginald I. Lloyd and Christie

Newman Barrett, all of Columbia, for appellant.



William B. Regan; and Carl W. Stent, both of

Charleston, for respondents.



TOAL, A.C.J.: This declaratory judgment action asks whether

the City of Charleston (Charleston) is authorized to impose a stormwater

utility fee on state owned or managed property under the Stormwater

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STATE OF SOUTH CAROLINA, etc. v. THE CITY OF CHARLESTON, et al.





Management Act, S.C. Code Ann. H 48-14-10 et seq. (Supp. 1998)(The Act).

The circuit court held the fee was proper, and the State appeals. We affirm.





The Act is primarily concerned with regulating "land-disturbing

activities," and in that regard requires prior approval of any action which will

result "in a change in the natural cover or topography that may cause erosion

and contribute to sediment and alter the quality and quantity of stormwater

runoff." S.C. Code Ann. § 48-14-20(8); see S.C. Code Ann. §§ 48-14-30 thru -

110. The State argues that it is exempt from all provisions of the Act

pursuant to S.C. Code Ann. § 48-14-40(H) (Supp. 1998), which provides that

the Act does not apply to land disturbing activities "undertaken on state-

owned or managed lands that are otherwise regulated by the provisions of

Chapter 18 of this title, the Erosion and Sediment Reduction Act."





As the circuit court judge correctly noted, the Act is not solely

concerned with the regulation of "land-disturbing activities." In addition to

the sections related to that function, the Act also authorizes local

governments to establish a "Stormwater Utility," and to fund it either

through a fee or a tax assessment. S.C. Code Ann. º 48-14-120(C) (Supp.

1998). As permitted by the Act, and in accordance with the regulations

promulgated pursuant to it,1 Charleston has created a Stormwater Utility by

ordinance, and opted to fund it through a fee. It is the propriety of the

assessment of this fee against State owned or operated property that is

challenged here.





We agree with the circuit court that the plain, ordinary, and

unambiguous language of the Act permits the assessment of this fee upon

State property, and that the exemption in § 48-14-40(H) is irrelevant to the

Stormwater Utility provisions of the Act. Fraternal Order of Police v. South

Carolina Dep't of Rev., 332 S.C. 496, 506 S.E.2d 495 (1998). State owned or

managed property is subject to the fee.





The State also contends that although denominated a fee, the

charge here is really a tax and therefore cannot properly be assessed against

its property. The plain, ordinary, and unambiguous language of the statute

allows local governments to fund the utility through either a fee or an


1 South Carolina Code Ann. Regs. 72-300 to 72-316 (Supp. 1998).

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STATE OF SOUTH CAROLINA, etc. v. THE CITY OF CHARLESTON, et al.





assessment. S.C. Code Ann. º 48-14-120 (C). We agree with the circuit court

that the statute permits the governmental unit the choice of funding options,

and that Charleston may choose to fund its utility through a fee. Fraternal

Order of Police, supra. Accordingly, the order of the circuit court is



AFFIRMED.





MOORE, WALLER, BURNETT, JJ., and Acting Associate Justice

Jasper M. Cureton, concur.

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