THE STATE OF SOUTH CAROLINA
In The Supreme Court
J.K. Construction, Inc.,
as property owner in
Authority, and on behalf
of all others similarly
Appeal From Greenville County
Charles B. Simmons, Jr., Master-in-Equity
Opinion No. 24981
Heard June 10, 1999 - Filed August 2,1999
James Andrew Smith of Love, Thornton, Arnold &
Thomason, P.A., Greenville, for appellant.
Steve A. Matthews of Sinkler & Boyd, P.A.,
Columbia, and Leo H. Hill of Hill, Wyatt & Bannister,
Greenville, for respondent.
WALLER, A.J.: J.K. Construction, Inc., (JKC) paid under protest
a 11new account fee" imposed by Western Carolina Regional Sewer Authority
(Authority), then brought a declaratory judgment action challenging the validity
of the fee. JKC asked the court to enjoin Authority from imposing the fee and
order Authority to reimburse everyone who had paid the fee. The circuit court
referred the case to a master-in-equity, granting the master authority to enter
a final judgment with appeal directly to this Court. The master granted
Authority's motion for summary judgment, ruling the fee was valid under
statutory law and the state constitution. JKC appeals.
The parties stipulated to all pertinent facts. Authority is a special
purpose. district created by the Legislature in 1925. The district includes most
of Greenville County and portions of three surrounding counties. Authority
owns and operates trunk sewer lines, sewage pumping stations, and sewage
treatment facilities. It disposes of sewage initially collected by other entities.
JKC receives service from the Metropolitan Sewer District, a special purpose
district that is a sub-district of Authority.
In 1995, on the recommendation of a consultant and after a public
hearing, Authority's Board of Commissioners voted to begin requiring each
person or entity to pay a new account fee when connecting to the sewer system
or upgrading to a larger water line. The fee ranges from $500 for a residential
user to $80,000 for a large industrial user. Authority began imposing the fee
November 1, 1995.
Before 1975, Authority relied on ad valorem property taxes to fund
operating, maintenance, capital, and debt service expenses. Authority began
that year, as a condition of continued eligibility for federal grants, to rely solely
on sewer use charges to pay all expenses and debt. Since the 1970s, Authority
has used revenue from its customers to pay about $120 million in debt service
on general obligation and revenue bonds. In addition, customers' revenue has
provided more than $28 million for capital projects not financed with bonded
Since 1995, Authority's customers, through payment of sewer use
charges, have built up retained earnings from a deficit to a balance of $26.5
million and funded a contingent account of $2.3 million, according to Authority's
1997 fiscal report. Those amounts, however, are not sufficient to pay for all
future capital improvements to the system. Proceeds from the new account fee
will be spent only on unspecified capital improvement projects in the future. The
new fee generated nearly $310,000 in revenue in fiscal 1996 and $1.27 million
in fiscal 1997.
STANDARD OF REVIEW
This appeal raises three questions of law. When an appeal involves
stipulated or undisputed facts, an appellate court is free to review whether the
trial court properly applied the law to those facts. Craig Constr. Co. v. Hendrix,
568 So.2d 752, 756 (Ala.1990); Miller v. Board of Trustees, 970 P.2d 512, 514
(Idaho 1998); cert. denied, _ U.S. _, 1999 WL 231546 (June 7, 1999); cf.
Harleysville Mut. Ins. Co. v. R.W. Harp and Sons, Inc., 305 S.C. 492,409 S.E.2d
418 (Ct. App. 1991) (stipulated facts leave only a question of law for trial court);
Independent Grain Dealers Marketing Ass'n, Inc. v. Beard, 284 S.C. 309, 326
S.E.2d 169 (Ct. App. 1985) (same). In such cases, the appellate court owes no
particular deference to the trial court's legal conclusions. See S.C. Const. art. V,
§§ 5 and 9; S.C. Code Ann. §§ 14-3-320, 14-3-330, and 14-8-200 (1976 & Supp.
1998) (granting Supreme Court and Court of Appeals the jurisdiction to correct
errors of law in both law and equity actions); accord Foss Alaska Line, Inc. v.
Northland Services, Inc., 724 P.2d 523, 526 (Alaska 1986) (appellate court may
review application of legal doctrine to undisputed facts without usual deference
to lower court); Gwinnett County v. Davis, 492 S.E.2d 523, 525 (Ga. 1997)
(same); cases collected in West's Digests, Appeal and Error, Key No. 841.
1. Did the trial court err in ruling that the new
account fee was a charge, rather than a tax that
must be uniformly applied to all customers in the
special purpose district?
2. Did the trial court err in ruling that Authority
may impose the new account fee on individuals
connecting to the sewer system after a given
3. Did the trial court err in ruling that imposition of
the new account fee does not violate the Equal
1. IS THE FEE A CHARGE OR A TAX?
JKC contends the trial court erred in ruling the new account fee is
a sewer service charge. The fee provides a general benefit to everyone who lives
in Authority's district because proceeds will be used to expand treatment
capacity. Consequently, the court erred in refusing to hold that the fee is
actually a tax which Authority must apply uniformly to all residents of the
district, not just to new customers, JKC argues.
We disagree. We hold that the required payment is a charge, not a
tax, and Authority has uniformly imposed the charge upon those who are
required to pay it.
First, the required payment primarily benefits those who must pay
it because they receive a special benefit or service as a result of improvements
made with the proceeds. That special benefit is the proper treatment and
disposal of sewage. Brown v. County of Horry, 308 S.C. 180, 184-85, 417 S.E.2d
565~ 568 (1992) (holding that road maintenance fee imposed on all motor vehicles
registered in county was a service charge, not a tax). It is true that the entire
area may benefit from improved and expanded sewage service, but a charge does
not become a tax merely because the general public obtains some benefit. Brown
v. County of Horry, supra; Robinson v. Richland County Council, 293 S.C. 27,33,
358 S.E.2d 392, 396 (1987) (holding that required payment imposed to fund
installation and maintenance of sewer facility was assessment, and not tax,
regardless of whether general public obtained health benefit from elimination
of sewage problem).
Second, proceeds from the required payments are dedicated solely
to capital improvement projects. The proceeds are not placed in a general fund
to be spent on Authority's ongoing expenses and maintenance, which is a
hallmark of a tax. Hagley Homeowners Ass'n v. Hagley Water, Sewer, and Fire
Auth., 326 S.C. 67~ 752 485 S.E.2d 92) 96 (1997) ("[g]enerally, taxes are imposed
on all property for the maintenance of government"); Brown v. County of Horry
supra (revenue from fees destined for general fund indicates a tax).
Third, as the parties stipulated, the revenue generated by the
required payment will not exceed the cost of capital improvements to the system.
C.R. Campbell Constr. Co. v. City of Charleston, 325 S.C. 235, 481 S.E.2d 437
(1997) (applying factors from Brown v. County of Horry, supra, to uphold validity
of municipal real estate transfer fee dedicated to parks and recreation).
Fourth, Authority uniformly has imposed the required payment
upon those who must pay it. The trial court ruled the required payment,
because it was a charge imposed by a special purpose district, was not mandated
by statute or the constitution to be uniform in the sense that every customer had
to pay it. The court noted, however, that Authority uniformly had imposed the
required payment on all new customers based on their anticipated water usage.
We agree with the trial court's reasoning. While no statute or
constitutional provision explicitly requires charges by special purpose districts
to be uniform, the Court has stated that charges or assessments imposed only
upon certain individuals "must be fairly and justly apportioned among those
charged with their payment. A method of apportionment, whether by statute or
by regulation, that is manifestly arbitrary or discriminatory does not fulfill the
constitutional requirements of due process and equal protection." Hagle
Homeowners Ass'n, 326 S.C. at 76-77, 485 S.E.2d at 97 (quoting Newton v.
Hanlon, 248 S.C. 251,149 S.E.2d 606 (1966)).
Fifth, we may consider the fact that Authority intended to classify
the payment as a charge. Brown v. County of Horry, 308 S.C. at 184, 417 S.E.2d
at 568 (while governmental entity's intent may be considered, the question of
whether a required payment is a charge or a tax depends on its real nature and
not the label assigned to it by the governmental entity that approved it).
Authority described it as a "new account fee" in the resolution adopting it, and
has not used tax levies since 1975 in order to maintain continued eligibility for
JKC's reliance upon Casey v. Richland County Council, 282 S.C. 387,
320 S.E.2d 443 (1984), is misplaced. In that case, the county imposed a required
payment upon all residents who lived in unincorporated areas of the county to
build a sewer system. The Court stated that each resident required to pay the
assessment must receive a specific benefit or service in order for the payment to
qualify as a valid assessment. Each resident did not because many residents of
unincorporated areas already were served by municipal systems; therefore, the
payment was not an assessment. Instead, the Court determined the required
payment was a tax because it would provide only a general benefit to those
residents already served by municipal systems. But as a tax, it was
unconstitutional because it was not uniformly applied to everyone who lived in
the county - residents of municipalities and unincorporated areas alike. Id.; S.C.
Const. art. X, §§ 1 and 6. Consequently, the Court struck down the required
We find Casey distinguishable from the present case. The new
account fee properly is classified as a charge, not a tax, as explained above.
Furthermore, every person or entity required to pay the new account fee will
receive a special benefit or service as a result of improvements made with the
proceeds. Unlike Casey, Authority has not required anyone who will not benefit
from the service to pay the fee. Accord Wright v. Proffitt, 261 S.C. 68, 72, 198
S.E.2d 275, 277 (1973) (assessment for a local improvement is valid when it
confers a benefit on property owners in the district where it is assessed, and that
benefit is distinct from general benefit enjoyed by those outside the district);
Newton v. Hanlon, 248 S.C. at 262-63, 149 S.E.2d at 612 (special purpose district
may use ad valorem property tax, frontage-foot assessments, monthly use
charges, or combination thereof, to build and maintain a sewer system); Distin
v. Bolding, 240 S.C. 545, 126 S.E. 2d 649 (1962) (upholding validity of legislative
act that allowed a special purpose district to impose assessments on real
property to pay for construction of sewage disposal facilities).
2. IMPOSITION OF FEE AFTER A GIVEN DATE
JKC contends that even if the new account fee is classified as a
charge, the trial court erred in ruling that Authority may impose it on
individuals connecting to the sewer system after the "magical date" of November
1, 1995. The fee violates Article X, Section 12 of the state constitution and a
statute requires any charges to be imposed upon all those to whom service is
rendered, not just new customers, JKC argues.
Article X, Section 12 states:
No law shall be enacted permitting the incurring.of
bonded indebtedness by any county for sewage disposal
or treatment, fire protection, street lighting, garbage
collection and disposal, water service or any other
service or facility benefitting only a particular
geographical section of the county unless a special
assessment, tax or service charge in an amount
designed to provide debt service on bonded
indebtedness or revenue bonds incurred for such
purposes shall be imposed upon the area or persons
receiving the benefit therefrom (emphasis added).
When construing the constitution, the Court applies rules similar to
those relating to the construction of statutes. McKenzie v. McLeod, 251 S.C.
226, 161 S.E.2d 659 (1968). In construing a statutory or constitutional provision,
the Court must give clear and unambiguous terms their plain and ordinary
meaning without resorting to subtle or forced construction to limit or expand the
provision's operation. See Gilstrap v. South Carolina Budget and Control Bd.,
310 S.C. 210, 423 S.E.2d 101 (1992). "This Court is bound to presume that the
framers of the constitution had some purpose in inserting every clause and every
word contained in the document. It is never to be supposed that a single word
was inserted in the law of this state without the intention of thereby conveying
some meaning." Davenport v. City of Rock Hill, 315 S.C. 114, 117, 432 S.E.2d
451, 453 (1993).
JKC urges the Court to read Article X, Section 12 to include special
purpose districts. We agree with Authority that the provision is inapplicable
because it explicitly applies only to counties, not to special purpose districts or
other political subdivisions.
JKC next asserts that S.C. Code Ann. § 6-15-60 (Supp. 1998)
requires Authority to impose the new account fee on everyone in the district, not
just on new customers who join the system after November 1, 1995. JKC relies
upon the following emphasized language of Section 6-15-60:
The General Assembly confirms the right of any
governmental entity1 to impose upon all those to whom
sewer service is rendered, (a) a sewer service charge
therefor, which may, in the discretion of its governing
body, be sufficient to provide for all or any part of the
cost of operating and maintaining the sewer facilities
districts. S.C. Code Ann. § 6-15-10(3) (Supp. 1998).
and to provide debt service on bonds or other
obligations of the governmental entity issued to provide
any type of sewer collection, disposal, or treatment
service, and (b) a sewer connection charge, or
connection fee or tapping fee designed to adequately
reimburse the governing body for effecting the
connection to provide sewer service.
We find JKC's argument unconvincing. As discussed above, the new
account fee is a uniform charge that applies to every individual in the district
who connects to the system or upgrades to a larger water line. Anything new -
whether it is a fee, a tax, or any of a thousand other things imposed by
government - must take effect on some date. The fact some individuals may
have avoided the new account fee due to astute planning or serendipity is no
reason to invalidate an otherwise legitimate fee. Cf. State v. Rush, 305 S.C. 113,
406 S.E.2d 355 (1991) (explaining the logical conclusion of arguing that a change
in a criminal statute creates two classes of offenders in violation of equal
protection would be that, once Legislature had enacted a statute, it could never
amend or repeal it without running afoul of the equal protection clauses).2
Another perhaps more controversial term that describes it, which the parties
have not used extensively, is "impact fee," or more accurately, "capital
improvement impact fee." Authority's counsel conceded at oral argument that
the new account fee is an impact fee.
Local governing bodies have turned to impact fees in recent years as funds
from the federal government dried up, mandates from state and federal
governments increased, and local residents fought property tax hikes. Arthur
C. Nelson, Development Impact Fees: The Next Generation, 26 Urb. Law. 541,
561 (1994) (defining capital improvement impact fees as those associated with
the acquisition or construction of a facility rather than the dedication of land;
article discusses why governments impose impact fees and the future of such
fees). The purpose of an impact fee is "to fairly distribute the capital
improvement costs of growth and development among those who are generating
the need for the improvements." Roger K. Dahlstrom, Development Impact
Fees: A Review of Contemporary Techniques for Calculation, Data Collection,
and Documentation, 15 N. 111. U. L. Rev. 557 (1995); see also Noreen A. Murphy,
(continued ... )
3. EQUAL PROTECTION CLAUSE
JKC contends the trial court erred in ruling that imposition of the
new account fee does not violate the Equal Protection Clause. S.C. Const. art.
1, § 3 ("nor shall any person be denied the equal protection of the laws"). We
To satisfy the Equal Protection Clause, a classification must (1) bear
a reasonable relation to the legislative purpose sought to be achieved, (2)
members of the class must be treated alike under similar circumstances, and (3)
the classification must rest on some rational basis. D.W. Flowe & Sons, Inc. v.
Christopher Constr. Co., 326 S.C. 17, 23, 482 S.E.2d 558, 562 (1997) (citing
Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990)). A legislative enactment
will be sustained against constitutional attack if there is "any reasonable
hypothesis" to support it. Id. (citing Thomas v. Spartanburg Ry., Gas & Elec.
Co., 100 S.C. 478, 85 S.E. 50 (1915)).
JKC first asserts the new account fee is not reasonably related to the
legislative purpose of expanding Authority's facilities because any expansion will
benefit everyone. Second, JKC defines the class as all residents of the district,
which means those who join after November 1, 1995, are treated differently.
Third, JKC contends there is no rational basis to charge only new customers for
expansions that will benefit everyone.
The Viability of Impact Fees after Nolan and Dolan, 31 N. Eng. L. Rev. 203, 213
(1996) (defining a type of impact fee as a "one-time charge imposed on a
developer as a condition to receiving a building permit").
The trial court observed in its order that JKC "has not seriously debated
the defendant's authority to impose the fee." We conclude JKC has not
challenged Authority's basic power to impose an impact fee. Consequently, we
express no opinion on that issue. See Hospitality Ass'n of South Carolina, Inc.
v. County of Charleston, 320 S.C. 219, 224, 464 S.E.2d 113, 116-17 (1995) (to
decide whether governmental entity has a particular power, court must
determine whether entity has the power to enact a given ordinance and, if so,
whether ordinance is inconsistent with constitution or general law of state);
accord Williams v. Town of Hilton Head Island, 311 S.C. 417, 429 S.E.2d 802
We hold that the new account fee does not violate the Equal
Protection Clause. First, the classification (requiring new customers to pay a
new account fee) is reasonably related to the legislative purpose to be achieved
(pay for future capital improvement projects). Authority wishes to ensure it has
adequate funds for such projects, and the fees are set aside in a special account
for that purpose.
Second, members of the class (new customers) are treated alike in
that all must pay a fee based on their anticipated water usage under a schedule
approved by Authority's board. We do not agree with JKC that the class is
comprised of all residents of the district.
Third, the classification rests on a rational basis. It is rational for
Authority to prepare to pay for future capital improvement projects. Imposing
a new account fee, while perhaps not the only way to raise such funds, is a
reasonable and legitimate method of accruing the funds. Existing customers
collectively have paid tens of millions of dollars to build the current system, and
it seems eminently fair and reasonable to require new customers to shoulder a
portion of the cost of future expansions their presence will demand. Accord
Robinson v. Richland County Council, 293 S.C. at 31, 358 S.E.2d at 395
(rejecting equal protection challenge to ordinance that allowed county to impose
charges on residents served by new sewer lines, but not neighbors whose lines
had been built with federal grant money); Newton v. Hanlon, 248 S.C. at 261,
149 S.E.2d at 611 (frontage-foot assessment limited to cost of construction of
sewer lines with assessment to be made upon lots abutting directly on lines did
not violate constitutional requirements of due process and equal protection).
We affirm the trial court's judgment by holding that (1) the new
account fee is a charge, not a tax, (2) Authority may begin imposing the fee on
new customers after a given date, and (3) the fee does not violate the Equal
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.