Estes Funeral Home v. Adkins

Present: All the Justices

ESTES FUNERAL HOME, ET AL.

v. Record No. 022514 OPINION BY JUSTICE CYNTHIA D. KINSER
September 12, 2003
BOB ADKINS, ET AL.

FROM THE CIRCUIT COURT OF WISE COUNTY
Ford C. Quillen, Judge

This appeal involves an equal protection challenge to

an ordinance levying fees for solid waste disposal in Wise

County. We conclude that the classifications in the

ordinance do not bear a reasonable relation to a

legitimate governmental objective and that the record is

devoid of evidence of reasonableness sufficient to make

the issue fairly debatable. Thus, we will reverse the

judgment of the circuit court upholding the

constitutionality of the ordinance.

MATERIAL FACTS AND PROCEEDINGS

The Wise County Board of Supervisors (the Board)

enacted an ordinance levying fees for solid waste

disposal, Ordinance No. 3-1993, in 1993. 1 In January 2001,

1
The Board adopted Ordinance No. 3-1993 pursuant to
the authority granted in former Code § 15.1-362.1. The
current version of that statute, Code § 15.2-2159(A),
authorizes certain counties to “levy a fee for the
disposal of solid waste not to exceed the actual cost
incurred by the county in procuring, developing,
maintaining, and improving the landfill and for such
reserves as may be necessary for capping and closing such
the Board amended Ordinance No. 3-1993 and adopted a new

fee schedule in order “to appropriately address concerns

with increasing amounts of solid waste and more accurately

reflect the current costs of solid waste disposal in Wise

County.” 2 The new fee schedule set forth in the Ordinance

establishes the following classifications and rates:

SOLID WASTE FEE

Households $30.00 per year

BUSINESSES

Hospitals $1,200.00-[$]2,000.00 per year

Industries $1,800.00-[$]2,500.00 per year

Professional $100.00-[$]500.00 per year

Institutional $2,500.00 per year

FOOD ESTABLISHMENTS

Fast Food $400.00-$800.00 per year

Convenience Stores $600.00-$1,200.00 per year

Supermarkets $800.00-$1,200 per year

Other [R]estaurants $400.00-$800.00 per year

OTHER BUSINESSES

Large Retail $400.00-$1,200 per year

landfill in the future.” There is no claim in this case
that the fees levied exceed the actual solid waste
disposal costs incurred by Wise County.
2
Ordinance No. 3-1993, as amended in 2001, will be
referred to in this opinion as “the Ordinance.”

2
 Small Retail $100.00 per year

Small Service $100.00 per year

Other $50.00 per year

After the Board amended Ordinance No. 3-1993 and

adopted the new fee schedule, several Wise County

businesses filed an amended motion for declaratory

judgment against the County of Wise and the members of the

Board, alleging that the fee schedule in the Ordinance is

“ambiguous, uncertain and does not set any true criteria

for the assessment of the landfill use fees.” 3 The

complainants further alleged that the solid waste disposal

fee levied as to each one of them was “arbitrary” and

“made in a discriminatory manner,” and that the Ordinance

is “unconstitutional” and “void on its face.” The

complainants asked the court to declare that the Ordinance

is “void and of no effect” and that, therefore, they “are

under no obligation to make payment based upon an

unconstitutional and void [O]rdinance.”

In response, the defendants moved to dismiss. They

claimed that the complainants had failed to produce

3
The complainants are Estes Funeral Home, G & G Car
Wash #1, G & G Car Wash #2, Gary’s Accounting & Tax
Service, Gilliam Funeral Home, Holding Funeral Home,
Indian Creek Monument Sales, Jerry Baker Funeral Home,
Johnson Enterprise and Electric, Robo’s Drive In, and Roy
Green Funeral Home.

3
evidence establishing the Ordinance’s unreasonableness.

Continuing, the defendants asserted that the levies were

made using “a uniform methodology based on documentation

of container size, number of collections, and types of

waste generated and comparisons of similar businesses.”

At a hearing on the defendants’ motion, the circuit

court considered the depositions of Shannon C. Scott, who

served as the acting county administrator for Wise County

when the Board amended Ordinance No. 3-1993, and Delores

W. Smith, a deputy commissioner of revenue for Wise

County. 4 Scott first explained the rationale for the

Board’s decision to adopt a new fee schedule:

The Board of Supervisors was very concerned
about being fair, applying fairness and equity
among all the community of users and the Board
of Supervisors determined that the only fair way
was to attempt to measure how much solid waste
was being generated and that you should pay
based on how much waste that you were
generating.

Continuing, Scott testified that the commissioner of

revenue provided a list of businesses in Wise County and

using that list, the businesses were categorized.

According to both Scott and Smith, the factors then used

to classify the businesses and to establish the solid

waste disposal fees for the different classifications were

4
the size of containers available to businesses and the

number of times per week the contents of the containers

were “pick[ed] up.” The fee schedule set forth in the

Ordinance contains a range of fees for each business

classification, except the classifications of

“Institutional,” “Small Retail,” “Small Service,” and

“Other,” all of which have flat fees. A “LANDFILL USE

FEE-RATE SCHEDULE” prepared by Smith and attached as an

exhibit to her deposition establishes specific fees for

those business classifications in the Ordinance having

only a range of fees, except for the classifications of

“Industries” and “Professional.” 5

Scott acknowledged that a business “throwing out

cardboard” could be charged the same rate as a restaurant

“throwing out true refuse and heavy garbage.” This is so

because the only known factors were the container sizes

and the number of “pick-ups” per week. In fact, Smith

disavowed that the “contents” of a container played any

role in determining the rate classifications in the new

fee schedule.

4
Both Scott and Smith served on a committee that
drafted the new schedule of fees for solid waste disposal.
5
The “LANDFILL USE FEE-RATE SCHEDULE” is set out in
an addendum to this opinion.

5
 The $30 flat fee adopted for households, which

applies to occupied dwellings regardless of size of

container or number of “pick-ups” per week, is the same

rate set for that classification when Ordinance No. 3-1993

was first adopted in 1993. Smith stated that “[i]f you

lived under a roof and had electricity, you had to pay

thirty [dollars] whether you generated any garbage at

all.” According to Scott,

[t]hat figure came up . . . when the
original ordinance was adopted to retire the
debt on a 1.1 million dollar loan and when the
Board of Supervisors approved the 3.1 million
dollar loan from the Virginia Resources
Authority, it was not the desire and will of the
Board to change the residential rate.

They preferred to leave it at thirty
dollars and the Minutes would reflect that.

The circuit court concluded that the Ordinance

is “valid and constitutional.” The court found that

the defendants, “through depositions and exhibits,

set forth a methodology for the current fee schedule

using frequency of container pick-ups and container

size” and that such methodology is “reasonable and

thus valid.” Accordingly, the court granted the

motion to dismiss. The complainants appeal from the

circuit court’s judgment.

ANALYSIS

6
 The crux of the complainants’ argument before the

circuit court and on appeal is that the classifications in

the new fee schedule set forth in the Ordinance are not

based on “real differences.” They contend that the

distinction between households and businesses as well as

the classifications among businesses do not, in truth,

render one class different from another. Thus, the

complainants assert that the Ordinance violates the Equal

Protection Clause.

The defendants, in contrast, assert that the evidence

presented to the circuit court established the

reasonableness of the classifications in the Ordinance.

The broad categories were determined by separating types

of businesses, and the rates for each classification were

based on container size and number of “pick-ups” per week.

According to the defendants, this methodology and the

resulting classifications “are directly related to the

purpose of the [O]rdinance which is to collect and to

recover costs of waste disposal in a manner that

distributes the costs among the more intense producers of

waste.”

Our review of the challenged Ordinance is guided by

well-established principles. Ordinances such as the one

at issue in this case are presumed to be valid. That

7
“presumption governs unless it is overcome by

unreasonableness apparent on the face of the ordinance or

by extrinsic evidence which clearly establishes the

unreasonableness.” Kisley v. City of Falls Church, 212

Va. 693, 697, 187 S.E.2d 168, 171 (1972) (citing National

Linen Serv. Corp. v. Norfolk, 196 Va. 277, 279, 83 S.E.2d

401, 403 (1954)); accord Board of Directors of the

Tuckahoe Ass’n, Inc. v. City of Richmond, 257 Va. 110,

116-17, 510 S.E.2d 238, 241 (1999); Twietmeyer v. City of

Hampton, 255 Va. 387, 390, 497 S.E.2d 858, 860 (1998);

Town of Narrows v. Clear-View Cable TV, Inc., 227 Va. 272,

280, 315 S.E.2d 835, 839-40 (1984).

The litigant attacking legislative action
as unreasonable has the burden to establish
unreasonableness. . . . [L]egislative action is
reasonable if the matter in issue is fairly
debatable. If the presumptive reasonableness of
legislative action is challenged by probative
evidence of unreasonableness, the challenge must
be met by evidence of reasonableness. If such
evidence of reasonableness is sufficient to make
the issue fairly debatable, the legislative
action must be sustained; if not, the evidence
of unreasonableness defeats the presumption and
the legislative act cannot be sustained.

Town of Narrows, 227 Va. at 280-81, 315 S.E.2d at 840

(citations omitted); accord Mountain View Limited P’ship

v. City of Clifton Forge, 256 Va. 304, 314, 504 S.E.2d

371, 377 (1998); Tidewater Ass’n of Homebuilders, Inc. v.

City of Virginia Beach, 241 Va. 114, 122, 400 S.E.2d 523,

8
528 (1991). We also accord a “presumption of correctness”

to the circuit court’s finding. Tidewater Ass’n, 241 Va.

at 122, 400 S.E.2d at 528.

The classifications in the Ordinance and fee schedule

are not inherently suspect, see Duke v. County of Pulaski,

219 Va. 428, 432, 247 S.E.2d 824, 826 (1978), and do not

infringe upon the exercise of a fundamental right. Nor do

the complainants contend otherwise. Thus, those

classifications are “permissible if the governmental

objective is ‘legitimate’ and the classification[s] bear[]

a ‘reasonable’ or ‘substantial’ relation thereto.” Id.

(quoting Arlington County v. Richards, 217 Va. 645, 648,

231 S.E.2d 231, 233, vacated by 434 U.S. 976 (1977)); see

also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The

classifications in the Ordinance “carry with them the same

presumptions and burdens” as the Ordinance itself and “are

not in and of themselves discriminatory.” Kisley, 212 Va.

at 697, 187 S.E.2d at 171-72; accord Sheek v. City of

Newport News, 214 Va. 288, 290, 199 S.E.2d 519, 521

(1973).

The reasonableness of a classification rests on

“whether it embraces all of the classes to which it

relates.” City of Newport News v. Elizabeth City County,

189 Va. 825, 841, 55 S.E.2d 56, 65 (1949). The basis of a

9
classification “must have a direct relation to the purpose

of the law, and must present a distinction which renders

one class, in truth, distinct or different from another

class.” Id. Stated differently, equal protection

requires only that “ ‘the classification rest on real and

not feigned differences, that the distinction have some

relevance to the purpose for which the classification is

made, and that the different treatments not be so

disparate, relative to the difference in classification,

as to be wholly arbitrary.’ ” City of Portsmouth v.

Citizens Trust Co., 216 Va. 695, 698, 222 S.E.2d 532, 534

(1976) (quoting Walters v. City of St. Louis, 347 U.S.

231, 237 (1954)); accord Tuckahoe Ass’n, 257 Va. at 116,

510 S.E.2d at 241.

There is no question that the Board’s desire to levy

a fair and equitable fee on all users of the solid waste

disposal facilities in Wise County, to address the

increasing amounts of solid waste, and to adopt a fee

schedule that accurately reflects the current costs of

solid waste disposal is a legitimate governmental

objective. However, the complainants argue that the

classifications in the Ordinance and fee schedule bear a

no reasonable relation to the legitimate governmental

objective and that, therefore, the Ordinance violates the

10
Equal Protection Clause. See Duke, 219 Va. at 434, 247

S.E.2d at 827. Based on the record in this case, we agree

with the complainants.

The first distinction in the Ordinance is between

households and businesses. We recognize, as Scott and

Smith testified, that it is not possible to determine the

exact amount of solid waste produced by each household and

business. However, the only basis articulated for the $30

yearly flat fee set for the classification of “Households”

was that the Board simply wanted to leave the rate for

that classification at the same level that was established

when Ordinance No. 3-1993 was adopted. The Board’s

rationale bears no relation to the governmental objective

of establishing a fair and equitable fee schedule that is

based on the size of containers and the number of “pick-

ups” per week, and that reflects the current costs of

solid waste disposal in Wise County. Nor does it explain

why the Board set a flat rate for the classification of

“Households” as well as for certain business

classifications, i.e., “Institutional,” “Small Retail,”

“Small Service,” and “Other,” but established a range of

fees for the other business classifications. The

government “may not rely on a classification whose

relationship to an asserted goal is so attenuated as to

11
render the distinction arbitrary or irrational.” City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

446 (1985).

Our conclusion does not mean that flat fees are per

se impermissible. For example, in Mountain View the

municipal ordinance at issue established refuse collection

charges by classifying residential and commercial users

and setting different flat rates for the various

classifications. 256 Va. at 306, 504 S.E.2d at 372. The

rate for single family residences receiving weekly service

was $13.50 per month. However, the rate for apartment

house owners collecting refuse in “dumpsters” and

receiving weekly or biweekly service was $12.55 per month

for each residential unit. Id. Businesses requiring one

collection per week were charged $13.50 per month. Id. at

307, 504 S.E.2d at 372.

Although the former city manager conceded in Mountain

View that the cost of refuse collection from businesses

did not differ from the cost of collecting refuse from

apartment buildings, we concluded that the evidence of

reasonableness was sufficient to make the issue fairly

debatable. Id. at 313-14, 504 S.E.2d at 377. The

municipality presented evidence not only showing that it

was impractical to weigh refuse at the point of collection

12
but also establishing that the per residential unit rate

charged to an apartment complex reflected the greater

volume of waste generated by such a facility. Id. at 314-

15, 504 S.E.2d at 377. In contrast, evidence that would

make the reasonableness of the Ordinance’s distinction

between households and businesses a fairly debatable issue

is absent from the record in this case.

The absence of evidence demonstrating the

reasonableness of the various business classifications and

the relationship of those classifications to the Board’s

stated governmental objective is even more glaring.

Despite repeated assertions by Smith and Scott that the

business classifications turned on the size of containers

and number of “pick-ups” per week, that distinction is not

borne out in either the Ordinance itself or the “LANDFILL

USE FEE-RATE SCHEDULE.” For example, according to the

“LANDFILL USE FEE-RATE SCHEDULE,” a large retail business

with a small container of 0-1000 gallons that is picked up

one to three times per week is charged a fee of $400, a

“fast food” restaurant with the same size container but

with one to four “pick-ups” per week is also charged a fee

of $400, but a convenience store with a 0-1000 gallon

container and only one “pick-up” per week has to pay $600.

While the nature of the solid waste generated by a

13
convenience store may place greater demand on the solid

waste disposal facilities in Wise County than the solid

waste produced by a large retail business or “fast food”

restaurant, the record is devoid of any evidence

establishing such a distinction among these

classifications or any others. Instead, Smith

affirmatively stated that the “contents” of a container

had no bearing on the classifications in the Ordinance or

on the fees charged.

Nor is there any evidence explaining the basis for

classifying certain businesses like households and setting

a flat fee for those businesses when the classifications

were supposedly based on size of containers and number of

“pick-ups.” In other words, the classifications set forth

in the Ordinance and the “LANDFILL USE FEE-RATE SCHEDULE”

are not based on distinctions that render “one class, in

truth, distinct or different from another class.” City of

Newport News, 189 Va. at 841, 55 S.E.2d at 65. The Equal

Protection Clause “keeps governmental decisionmakers from

treating differently persons who are in all relevant

respects alike.” Nordlinger, 505 U.S. at 10.

CONCLUSION

In sum, we conclude that the complainants carried

their burden of establishing the unreasonableness of the

14
classifications in the Ordinance. That unreasonableness

not only is apparent on the face of the Ordinance but also

was clearly shown by extrinsic evidence. When, as here,

“the presumptive reasonableness of legislative action is

challenged by probative evidence of unreasonableness, the

challenge must be met by evidence of reasonableness . . .

sufficient to make the issue fairly debatable.” Town of

Narrows, 227 Va. at 281, 315 S.E.2d at 840. The

defendants failed to present evidence of reasonableness

sufficient to make the issue fairly debatable. Thus, the

Ordinance cannot be sustained. See id.

For these reasons, we will reverse the judgment of

the circuit court and enter judgment here in favor of the

complainants.

Reversed and final judgment.

15
ADDENDUM

COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

I. CONVENIENCE STORES

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------
CANS 1-4 CANS 1 PU
SMALL $600.00

SMALL CONTAINER 2 CUBIC YDS 1 PU
SMALL $600.00
(0-1000 GALLONS) 3-4 PU
MEDIUM $800.00
4+ PU
LARGE $1,200.00

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS-
(1000-3000 GALLONS) 1-2 PU
MEDIUM $800.00
3-5 PU
LARGE $1,200.00
6 CUBIC YDS-
1 PU
MEDIUM $800.00
2-5 PU
LARGE $1,200.00

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS-
(3001+ GALLONS) 1 PU
MEDIUM $800.00
2-5 PU
LARGE $1,200.00
10+ CUBIC YDS-
1+ PU
LARGE $1,200.00

16
COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

II. LARGE RETAIL

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------
CANS 1-4 CANS 1 PU
SMALL $400.00

SMALL CONTAINER 2 CUBIC YDS 1-3 PU
SMALL $400.00
(0-1000 GALLONS) 4-7 PU
MEDIUM $600.00
8+ PU
LARGE $1,200.00

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS-
(1000-3000 GALLONS) 1 PU
SMALL $400.00
2-3 PU
MEDIUM $600.00
4+ PU
LARGE $1,200.00
6 CUBIC YDS-
1-3 PU
MEDIUM $600.00
4+ PU
LARGE $1,200.00

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU
MEDIUM $600.00
(3001+ GALLONS) 3-5 PU
LARGE $1,200.00

17
COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

III. OTHER RESTAURANTS

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------
CANS 1-4 CANS 1 PU
SMALL $400.00

SMALL CONTAINER 2 CUBIC YDS 1-4 PU
SMALL $400.00
(0-1000 GALLONS) 5-7 PU
MEDIUM $600.00
8+ PU
LARGE $800.00

MEDIUM CONTAINER 4-6 CUBIC YD 4 CUBIC YDS-
(1000-3000 GALLONS) 1-2 PU
SMALL $400.00
3-4 PU
MEDIUM $600.00
5+ PU LARGE $800.00
6 CUBIC YDS-
1-3 PU
MEDIUM $600.00
4+ PU
LARGE $800.00

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU
MEDIUM $600.00
(3001+ GALLONS) 3-5 PU
LARGE $800.00

18
COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

IV. FAST FOOD RESTAURANTS

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------
CANS 1-4 CANS 1 PU
SMALL $400.00

SMALL CONTAINER 2 CUBIC YDS 1-4 PU
SMALL $400.00
(0-1000 GALLONS) 5-7 PU
MEDIUM $600.00
8+ PU
LARGE $800.00

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS-
(1000-3000 GALLONS) 1-2 PU
SMALL $400.00
3-4 PU
MEDIUM $600.00
5+ PU
LARGE $800.00
6 CUBIC YDS-
1-3 PU
SMALL $600.00
4+ PU
MEDIUM $800.00

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU
MEDIUM $600.00
(3001+ GALLONS) 3-5 PU
LARGE $800.00

19
COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

V. SUPERMARKETS

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------
SMALL CONTAINER 2-6 CUBIC YDS 1-6 PU
SMALL $800.00
(0-3000 GALLONS) 7+ PU
LARGE $1,200.00

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS-
(3001+ GALLONS) 1-4 PU
SMALL $800.00
5+ PU
LARGE $1,200.00
10 CUBIC YDS-
1-3 PU
SMALL $800.00
4+ PU
LARGE $1,200.00
12+ CUBIC YDS-
1-2 PU
SMALL $800.00
3+ PU
LARGE $1,200.00

20
COUNTY OF WISE, VA
LANDFILL USE FEE-RATE SCHEDULE

VI. HOSPITAL, MEDICAL, ETC.

SIZE #PICK-UPS
CLASSIFICATION FEE AMOUNT
-----------------------------------------------
---------------------------

SMALL CONTAINER 2-6 CUBIC YDS 1-6 PU
SMALL $1,200.00
(0-3000 GALLONS) 7+ PU
LARGE $2,000.00

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS-
(3001+ GALLONS) 1-4 PU
SMALL $1,200.00
5+ PU
LARGE $2,000.00
10 CUBIC YDS-
1-3 PU
SMALL $1,200.00
4+ PU
LARGE $2,000.00
12+ CUBIC YDS-
1-2 PU
SMALL $1,200.00
3+ PU
LARGE $2,000.00

21