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24981 - J.K. Construction, Inc. v. Western Carolina Regional Sewer Authority

Shearouse Adv. Sh. No. 26
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

J.K. Construction, Inc.,

as property owner in

Western Carolina

Regional Sewer

Authority, and on behalf

of all others similarly

situated, Appellant,

v.

Western Carolina

Regional Sewer

Authority, South

Carolina, Respondent.

Appeal From Greenville County

Charles B. Simmons, Jr., Master-in-Equity

Opinion No. 24981

Heard June 10, 1999 - Filed August 2,1999

AFFIRMED

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.



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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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.





FACTS



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

indebtedness.







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

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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.





ISSUES



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

date?

3. Did the trial court err in ruling that imposition of

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





the new account fee does not violate the Equal

Protection Clause?





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

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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

federal grants.





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



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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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

payment.





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

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.







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


1 The definition of "governmental entity" includes special purpose

districts. S.C. Code Ann. § 6-15-10(3) (Supp. 1998).

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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


2 JKC describes the fee as a "capital improvement sewer service charge."

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 ... )

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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

disagree.







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.


... continued)

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

(1993).

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J.K. CONSTR. v. WESTERN CAROLINA REGIONAL SEWER AUTH.





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).





CONCLUSION





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

Protection Clause.





AFFIRMED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

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