PRESENT: All the Justices
GREGORY M. TWIETMEYER, ET AL.
OPINION BY
v. Record No. 971042 JUSTICE CYNTHIA D. KINSER
February 27, 1998
CITY OF HAMPTON
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
This appeal involves the validity of an interim
ordinance adopted by the City of Hampton to impose a
stormwater management fee on real property owners. Gregory
M. and Rita F. Twietmeyer (the Twietmeyers) refused to pay
the fee. They contend that the ordinance does not base the
fee on a property’s contribution to stormwater runoff, and
thus, does not comply with the enabling statute, Code §
15.1-292.4. 1 Because the Twietmeyers failed to overcome the
ordinance’s presumption of validity, we will affirm the
circuit court’s judgments against the Twietmeyers.
I.
Code § 15.1-292.4 2 authorized local governments to
adopt stormwater control programs and to impose charges on
1
This section was originally codified in Code § 15.1-
292.4, but is now codified in Code § 15.2-2114. For
purposes of this opinion, references are to the section in
effect at the commencement of this action.
2
Code § 15.1-292.4 stated in pertinent part:
property owners to finance the cost of the programs.
Pursuant to Code § 15.1-292.4, the City adopted an interim
stormwater management fee ordinance, Hampton City Code §
33.1-16, 3 (the Ordinance), which became effective on July 1,
1993.
_______________
Regulation of stormwater. – A. The governing
body of every county, city or town, by ordinance,
may adopt a stormwater control program consistent
with Article 1.1 (§ 10.1-603 et seq.) of Chapter
6 of Title 10.1, or any other state or federal
regulation, by establishing a utility or enacting
a system of service charges. Any locality which
administers a stormwater control program may
recover costs associated with planning, design,
land acquisition, construction, operation and
maintenance activities. Income derived from
these charges shall be dedicated special revenue
. . . .
B. The charges may be assessed to property
owners or occupants, including condominium unit
owners or tenants . . . and shall be based upon
their contributions to stormwater runoff . . . .
3
Section 33.1-16 of the Hampton City Code provides as
follows:
Stormwater management fees.
(a) Interim flat-rate stormwater management fees
are hereby authorized for all properties in the
city of Hampton, regardless of tax exemption,
with the exception of property owned by the city
of Hampton or a unit of the city which shall
receive a full waiver of charges. The following
monthly rates shall apply to each month since the
effective date of this ordinance or the last
assessment billing, whichever constitutes the
fewer months:
2
At that time, the Twietmeyers jointly owned seven
parcels of residential property in the City. During the
fiscal year July 1, 1993, through June 30, 1994, the
Twietmeyers did not pay the stormwater management fees
assessed by the City on any of their parcels of land.
Thus, on March 18, 1996, the City filed seven motions for
judgment against the Twietmeyers in the General District
Court for the City of Hampton to collect the stormwater
management fees attributed to or levied upon their parcels.
In response, the Twietmeyers asserted that the Ordinance
does not comply with Code § 15.1-292.4. The general
district court consolidated the actions and entered
judgment against the Twietmeyers for $210. The Twietmeyers
then appealed to the Circuit Court of the City of Hampton.
Neither the Twietmeyers nor the City presented any
testimony before the circuit court. The Twietmeyers did,
however, introduce into evidence a Feasibility Study of
Stormwater Management Financing Alternatives dated April
_______________
Monthly Rate
Residential Properties $ 2.50
Non-residential Properties $12.50
Residential and Non-Residential (which shall
consist of all other properties grouped together)
properties shall be as defined by the city
assessor.
3
13, 1993, and prepared for the City by the consulting firm
of Black & Veatch (Black & Veatch Study). The Black &
Veatch Study recommended that the interim fee be based upon
“equivalent residential units,” that a residential parcel
be equal to one such unit, and that a commercial parcel be
equal to five units. The Study also stated that stormwater
user fee structures are generally based on such parameters
as impervious area, percentage of impervious area, gross
area and intensity of development, or gross area and type
of development.
The Twietmeyers again argued that the Ordinance fails
to assess the fee on the basis of a property’s contribution
to stormwater runoff as required by Code § 15.1-292.4. In
support of their argument, they relied primarily on an
Attorney General Opinion, which concluded that the
Ordinance lacks any rational connection between the amounts
charged and runoff contributions. Conservation: Flood
Protection and Dam Safety – Stormwater Management, 1995 Op.
Va. Att’y Gen. 91.
After argument by the parties, the circuit court
entered seven judgments against the Twietmeyers in the
amount of $30 each, for a total of $210. Each judgment
involves a “matter not merely pecuniary.” Code § 8.01-672.
Thus, this Court is not prevented from exercising
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jurisdiction because of the amount of each judgment. The
Twietmeyers appeal.
II.
Our review of the Twietmeyers’ challenge to the City’s
Ordinance is guided by established principles regarding an
ordinance’s presumption of validity:
Municipal corporations are prima facie the sole judges
of the necessity and reasonableness of their
ordinances, and "the presumption of their validity
governs unless it is overcome by unreasonableness
apparent on the face of the ordinance or by extrinsic
evidence which clearly establishes the
unreasonableness. This presumption is based upon the
broad general principle that every intendment will be
made in favor of the lawfulness of the exercise of
municipal power.”
Town of Narrows v. Clear-View Cable TV, Inc., 227 Va. 272,
280, 315 S.E.2d 835, 839-40, cert. denied, 469 U.S. 925
(1984) (quoting National Linen Service v. Norfolk, 196 Va.
277, 279, 83 S.E.2d 401, 403 (1954)). Thus, for the
Twietmeyers to prevail, the Ordinance must be unreasonable
on its face, or they must present evidence clearly proving
its unreasonableness. We also “accord the trial court’s
finding a presumption of correctness.” Tidewater Ass’n of
Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114,
122, 400 S.E.2d 523, 528 (1991).
Applying this standard of review, we first address the
Twietmeyers’ argument that the Ordinance is facially
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unreasonable. They assert that, since the Ordinance
contains only two categories of fees, residential and non-
residential, and does not differentiate between properties
within each category on the basis of other factors such as
impervious area or type of development, the Ordinance does
not satisfy the mandate of Code § 15.1-292.4(B). In sum,
they contend that no correlation exists between the fees
and a property’s contribution to stormwater runoff. We do
not agree.
Although the Ordinance uses the term “flat rate,” it
does not charge all properties in the City the same fee.
Rather, the Ordinance, on its face, imposes a higher fee on
non-residential property at a ratio of five times the fee
imposed on residential property. 4 Thus, considering the
Ordinance solely on its face, we find that its fee
structure is neither unreasonable nor based on some factor
other than the amount of contribution to stormwater runoff.
Indeed, the Attorney General, in the opinion relied on by
the Twietmeyers, stated that “a locality adopting such
service charges may need to impose an initial schedule of
4
The City argued that it actually had three
classifications of property because it adopted a resolution
in February 1994 that remitted fees charged for undeveloped
properties, whether zoned residential or commercial.
However, we base our decision on the two categories
contained in the Ordinance.
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charges that categorizes properties in some manner that
only approximates, on an average basis, their respective
runoff contributions.” Conservation: Flood Protection and
Dam Safety – Stormwater Management, 1995 Op. Va. Att'y Gen.
91, 92. Because the Ordinance differentiates between
residential and non-residential property, we conclude that
the fee charged bears a rational correlation to the amount
of stormwater runoff.
The Twietmeyers, nevertheless, argue that our decision
in Violett v. City Council of Alexandria, 92 Va. 561, 23
S.E. 909 (1896), prescribes a different result. We do not
agree. In that case, Alexandria’s charter provided that
whenever a street was laid out, paved, or repaved,
Alexandria could charge two-thirds of the expenses to “the
owners of the real estate benefitted thereby.” Id. at 562,
23 S.E. at 909. Alexandria, however, assessed property
owners on the basis of the property’s frontage on the
improved street. We framed the question on appeal as:
[W]hen the Legislature has delegated the
authority to cities or towns to assess the
expense on the lots or property benefited,
whether such a delegation of power limits the
municipal authorities as to the mode of making
the assessment, or whether, having such
authority, they may select the mode of
apportioning the expense, and impose it by the
front foot, square foot, or value . . . .
Id. at 577-78, 23 S.E. at 914.
7
We concluded that Alexandria’s assessment was invalid
because the mode of assessment, the property’s frontage on
the improved street, differed from the mode authorized, the
property benefited by the improvement. Id. at 580, 23 S.E.
at 915. Unlike the assessment in Violett, the City’s
Ordinance does not employ an unauthorized mode of
assessment. On its face, the Ordinance differentiates
between residential and non-residential property, and we
cannot say that the differentiation bears no relation to a
property’s contribution to stormwater runoff.
We also find the Twietmeyers’ reliance on authorities
discussing a municipal corporation’s taxing power to be
misplaced. The General Assembly granted the City the
authority to enact the Ordinance under its police powers.
The fee is tied directly to the administration of
stormwater management and is not meant to raise general
revenue. Thus, the stormwater management fee is a
regulation, not a tax. City of Virginia Beach v. Virginia
Restaurant Assoc., 231 Va. 130, 134, 341 S.E.2d 198, 200
(1986); see also Weber City Sanitation Commission v. Craft,
196 Va. 1140, 1151, 87 S.E.2d 153, 160 (1955) (holding that
a charge for use and service of water system is not a tax).
8
Finally, we deny the Twietmeyers’ request that the
Court adopt the Attorney General’s Opinion that the
Ordinance lacks any rational connection between the amounts
charged and runoff contributions. “While [the opinion is]
entitled to due consideration, [it is] not binding on this
Court.” Virginia Restaurant Assoc., 231 Va. at 135, 341
S.E.2d at 201.
Since the Ordinance is not facially unreasonable and
the Twietmeyers did not present any evidence of
unreasonableness, the presumption of validity governs.
Town of Narrows, 227 Va. at 280, 315 S.E.2d at 839-40.
Therefore, we will affirm the judgments of the circuit
court.
Affirmed.
CHIEF JUSTICE CARRICO, with whom JUSTICE HASSELL and
JUSTICE KOONTZ join, dissenting.
I respectfully dissent from the majority’s decision to
uphold the validity of the ordinance at issue in this case.
In my opinion, the threshold question to be decided is not
whether the ordinance is reasonable or unreasonable, as the
majority posits, but whether, in adopting the ordinance,
the City of Hampton acted within the bounds of the
authority granted by the General Assembly in Code § 15.1-
292.4. Only if the threshold question is answered in the
9
affirmative would the question of reasonableness ever be
reached.
In my view, the answer to the threshold question
should be in the negative, and I think the fact that the
City exceeded its authority appears from the face of the
ordinance itself. Code § 15.1-292.4 provides that service
charges for stormwater control programs assessed to
property owners and occupants “shall be based upon their
contributions to stormwater runoff.” This language clearly
envisions some sort of individualized treatment of the
different parcels of land in the city. Yet, the Hampton
ordinance authorizes flat rate stormwater management fees
for all properties in the city. The flat-rate language
ignores the concept of individualized treatment and
disregards the statutory requirement that the charges
should be based upon contributions to stormwater runoff.
Nor, in my opinion, is the situation saved for the
City by the fact that different rates are prescribed for
residential properties and non-residential properties. The
flat-rate evil of the assessment permeates the entirety of
each of the two classes of property, still ignoring the
concept of individualized treatment and disregarding the
statutory requirement that the charges should be based upon
contributions to stormwater runoff.
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Accordingly, I would reverse the judgment of the trial
court.
11