NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: March 5, 2024
S23G0341. CITY OF WINDER v. BARROW COUNTY.
MCMILLIAN, Justice.
This case addresses three issues of first impression involving
the interpretation and application of the Services Delivery Strategy
(“SDS”) Act (the “Act”), OCGA § 36-70-20 et seq.,1 in connection with
disputes between the City of Winder (the “City”) and Barrow County
(the “County”) about the delivery of services to County and City
residents and property owners and how those services are to be
funded.2 As we explain below, we conclude that whether the
1 OCGA § 36-70-20 explains that the Act is intended “to provide a flexible
framework within which local governments in each county can develop a service delivery system that is both efficient and responsive to citizens in their county;” “to minimize inefficiencies resulting from duplication of services and competition between local governments[;] and to provide a mechanism to resolve disputes over local government service delivery, funding equity, and land use.” 2 The Court thanks the Georgia Municipal Association, Inc.; the Cities of
Stockbridge and Valdosta; the Association County Commissioners of Georgia maintenance of county roads primarily benefits the unincorporated
area of a county requires consideration of the totality of the
circumstances involved and cannot be resolved as a matter of law;
that services that primarily benefit the unincorporated area of the
county must be funded through the mechanisms delineated in the
Act; and that the proceeding set out in the Act for resolution of SDS
disputes does not permit the County to challenge whether water
rates charged by the City are an illegal tax and whether the City
may transfer profits from providing water service into its general
fund.
In 1999, Barrow County and the municipalities located within
the County—the cities of Winder, Auburn, and Statham and the
towns of Bethlehem, Braselton, and Carl—entered into a
comprehensive SDS Agreement for the provision of a number of
services to County and municipal residents and property owners
(“ACCG”); and Bulloch, Cherokee, Dawson, Forsyth, Greene, Gwinnett, Henry, Lowndes, Lumpkin, Newton, Rabun, Screven, and Walker Counties for their amici curiae briefs, which greatly assisted us in our consideration of these important questions of Georgia law. This case was orally argued before this Court on October 17, 2023. 2 including road maintenance and water utility service. That
Agreement was extended several times and was set to expire on
February 28, 2019. In advance of that deadline and in an effort to
avoid sanctions under the Act,3 the parties attempted to come to a
consensus on a new SDS Agreement, but the negotiations between
the parties did not successfully resolve all of their issues. As a result,
in 2018 and 2019, the County, City, and other municipalities within
the County participated in voluntary mediation under the Act. See
OCGA § 36-70-25.1 (c).4 The parties were able to settle all but two of
forty-one service issues in dispute through mediation.
3 Because the parties failed to agree to an updated SDS Agreement by
the February 28, 2019 deadline, sanctions under OCGA § 36-70-27 (a) were imposed on the County and each municipality. However, after the County filed a petition seeking resolution of these issues, the superior court ordered that the sanctions be held in abeyance during the pendency of the litigation. See OCGA § 36-70-25.1 (d) (2) (“It shall be in the discretion of the judge to hold the sanctions specified in Code Section 36-70-27 against one or more of the parties in abeyance pending the disposition of the action.”). 4 OCGA § 36-70-25.1 (c) provides for the use of alternative dispute
resolution, as follows: If a county and the affected municipalities in the county are unable to reach an agreement on the strategy prior to the imposition of the sanctions provided in Code Section 36-70-27, a means for facilitating an agreement through some form of alternative dispute resolution shall be employed. 3 To resolve the remaining conflicts, the County filed a three-
count petition pursuant to OCGA § 36-70-25.1 (d)5 seeking court-
ordered mediation and/or a judicial resolution of the disputes. The
petition identified the remaining service issues as relating to (1) the
funding for the County’s road maintenance and (2) the water utility
service, including “(a) the arbitrariness of the water rate
differentials charged by [the City] to customers located inside and
outside of [the] city limits and (b) [the] County’s authority to provide
water service to all customers located in the unincorporated area of
the County.”
The County later amended its petition to add another count
5 OCGA § 36-70-25.1 (d) (1) (A) allows the parties to seek resolution of
their disputes in superior court: In the event that the county and the affected municipalities in the county fail to reach an agreement after the imposition of sanctions provided in Code Section 36-70-27, then the following process is available to the parties: . . . [t]he county or any affected municipality located within the county may file a petition in [the] superior court of the county seeking mandatory mediation. If the court-ordered mediation does not resolve the disputes, “any aggrieved party may petition the superior court and seek resolution of the items remaining in dispute. The . . . judge shall conduct an evidentiary hearing or hearings as such judge deems necessary and render a decision with regard to the disputed items.” OCGA § 36-70-25.1 (d) (2). 4 (“Count IV”) alleging that the City’s water service charges for
residents in unincorporated areas of the County or in another
municipality (the “Outside Customers”) amounted to an illegal tax
on such residents based on the differential in the rates the City
charged its own residents and those it charged the Outside
Customers. Under the previous SDS Agreement between the County
and the City, the City provided exclusive water service to an area
that included the City but also the Outside Customers. The County
alleged that, between 2012 and 2017, the City overcharged the
Outside Customers to generate a total of over $13 million in profit
above the actual cost of providing the service through what it
characterized as arbitrary, excessive, and abusive water rates and
that the City transferred these profits to its general fund. The
County also alleged that throughout the SDS mediation process, the
County demanded that the City discontinue monetary transfers out
of its water fund into the general fund. Count IV “requests that the
Court enter an order finding that the establishment of Outside
Customer water rates and fees at a level designed to generate a
5 profit from Outside Customers constitutes an illegal tax on Outside
Customers and that the City [] does not have the legal authority to
transfer profits collected from the sale of water to Outside
Customers out of its Water Fund and into its General Fund except
to recover the cost of bona fide support provided to the Water Fund
by other governmental funds.”
After the parties participated in court-ordered mediation,
which again failed to resolve the outstanding service delivery issues,
they began to engage in discovery. Prior to the completion of that
process, the County and the City filed cross-motions for partial
summary judgment on the legal issue of what standard should be
used under OCGA § 36-70-24 (3) (A) 6 to determine whether
residents, individuals, and property owners of the incorporated
areas of the County could be charged for the costs of road
maintenance for county roads located in unincorporated areas of the
6 OCGA § 36-70-24 (3) (A) provides in relevant part: “The strategy shall
ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service.” 6 County. The City argued that under OCGA § 36-70-24 (3) (A), the
geographic location of the roads, which necessarily is where the
money would be spent to perform maintenance on the roads
determined which County residents, individuals, and property
owners could be charged for the maintenance,7 while the County
argued that road maintenance funding depended, instead, on who
had access to and used the roads. Thus, the County contended that
municipal residents could also be charged for maintenance of county
roads. The City later filed a second motion for partial summary
judgment, contending that the County’s source of revenue to fund
services for the unincorporated areas was limited to the mechanisms
spelled out in OCGA § 36-70-24 (3) (B): “property taxes, insurance
premium taxes, assessments, or user fees.”8 In addition, the City
7 The City contemporaneously moved to dismiss Count II of the petition,
asserting that the County failed to fulfill the statutory requirements for bringing such a claim, which the City contended should have been brought in a separate proceeding. The superior court denied that motion, but the City does not appeal that ruling. 8 Under OCGA § 36-70-24 (3) (B),
[s]uch funding shall be derived from special service districts created by the county in which property taxes, insurance premium taxes, assessments, or user fees are levied or imposed or through
7 filed a motion to dismiss Count IV, arguing that the issues of
whether the City’s water rate charges to Outside Customers
amounted to an illegal tax and whether the City could transfer any
profits gleaned from the excess charges to its general fund were
beyond the scope of the statutory proceeding prescribed in OCGA §
36-70-25.1 (d).
Following a hearing, the superior court granted the County’s
cross-motion for partial summary judgment on the road
maintenance funding issue and denied the City’s motion, concluding
as a matter of law that road maintenance funding “is focused solely
on those ‘that receive the service.’” The court also denied the City’s
second motion for partial summary judgment that sought to limit
the sources of revenue for funding services primarily for the benefit
of the unincorporated areas to property taxes, insurance premium
taxes, assessments, or user fees under OCGA § 36-70-24 (3) (B). In
addition, the court denied the City’s motion to dismiss Count IV of
such other mechanism agreed upon by the affected parties which complies with the intent of subparagraph (A) of this paragraph[.] 8 the petition.
The City appealed the superior court’s orders to the Court of
Appeals, which affirmed the superior court’s rulings in a split
decision. See City of Winder v. Barrow County, 365 Ga. App. 832 (880
SE2d 323) (2022).
We granted the City’s petition for certiorari to consider the
Court of Appeals’s rulings on three questions:
(1) Is the maintenance of county roads in an unincorporated
area of the County, which connect to roads within the City,
“primarily for the benefit of the unincorporated area” as that phrase
is used in OCGA § 36-70-24 (3) (A)?
(2) Does OCGA § 36-70-24 (3) (B) require that funding for
services provided primarily for the benefit of unincorporated areas
come from “property taxes, insurance premium taxes, assessments,
or user fees” levied or imposed with a special service district, or does
it authorize the County to use other sources of revenue?
(3) Is a superior court that is adjudicating a petition under
OCGA § 36-70-25.1 (d) (2) authorized to determine whether the
9 City’s usage rates charged to water customers in unincorporated
areas of the County are an illegal tax?
1. Addressing each of these issues in turn, we begin with the
parties’ dispute over who should bear the cost of county road
maintenance in the unincorporated area of the County. Our review
of the Court of Appeals’s rulings on the parties’ cross-motions for
partial summary judgment is de novo because this appeal involves
only legal issues, not questions of fact.9 See Raffensperger v.
Jackson, 316 Ga. 383, 387 (2) (888 SE2d 483) (2023).
The parties agree that the resolution of this issue is governed
by OCGA § 36-70-24 (3) (A), which provides:
The [service delivery] strategy shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service.
However, the parties disagree on the standard for determining
9 The parties did not submit evidence in the trial court in support of their
summary judgment motions on the issues of where the county roads are located or who was actually using the roads and focused their arguments on the legal issue of the standard to be used under OCGA § 36-70-24 (3) (A). 10 whether maintenance of county roads is “primarily for the benefit of
the unincorporated area.” The County argues that if the county
roads are available to anyone in the county to use, then the road
maintenance is not primarily for the benefit of the unincorporated
area; in contrast, the City argues that as a matter of law, if the
county roads are located primarily in the unincorporated area, then
maintenance of those roads is primarily for the benefit of the
unincorporated area.
On cross-motions for partial summary judgment, the superior
court agreed with the County and determined that the inquiry for
determining who should bear the costs of road maintenance in this
case, “[should be] focused solely on those ‘that receive the service,’”
citing the text at the end of the first sentence of OCGA § 36-70-24
(3) (A), reasoning that the statute makes “no mention of where the
services are located.” In affirming the superior court’s ruling, the
Court of Appeals viewed the text of OCGA § 36-70-24 (3) (A)
differently, determining that the concepts of road usage and
“benefit,” as used in the statute, are “inextricably intertwined,” and
11 “the focus of the Act is not on the geographical location of the public
service, but on who uses (and thus benefits) from the service.”10
Winder, 365 Ga. App. at 835-36 (1). The Court of Appeals further
determined as a matter of law that county roads, “regardless of their
specific geographic location, benefit all residents of the county — as
does their upkeep.” Id. at 836 (citing generally DeKalb County v. City
of Decatur, 247 Ga. 695, 697 (2) (279 SE2d 427) (1981) (“County
taxpayers residing in municipalities enjoy the use of DeKalb County
parks, roads and other facilities, and the protection of the DeKalb
County police, while they are going about their business or enjoying
their leisure time outside the boundaries of the municipalities in
which they reside.”)).
We begin our analysis by setting out first principles. “When we
consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant.” Deal
v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation
10 The court noted that it was affirming the superior court under the
“right for any reason” doctrine. Winder, 365 Ga. App. at 836 n. 6. 12 and punctuation omitted). And “[a]s in all cases of statutory
construction, we remain mindful that we must give the language its
plain and ordinary meaning, view it in the context in which it
appears, and read it in its most natural and reasonable way.” State
v. Cook, 317 Ga. 659, 660 (1) (893 SE2d 670) (2023) (citation and
punctuation omitted). We determine the ordinary public meaning of
legal text by considering the meaning the text had at the time it was
enacted. See Seals v. State, 311 Ga. 739, 740 (1) (860 SE2d 419)
(2021), disapproved of on other grounds by Gonzales v. State, 315
Ga. 661 (884 SE2d 339) (2023). Dictionaries are often helpful “[i]n
ascertaining the ordinary meaning of a word that is not defined in a
statute,” but they “cannot be the definitive source of ordinary
meaning in questions of textual interpretation because they are
acontextual, and context is a critical determinant of meaning.”
McBrayer v. Scarbrough, 317 Ga. 387, 394 (2) (d) (893 SE2d 660)
(2023).
Turning to the text, OCGA § 36-70-24 (3) (A) explains that the
“cost of any service”—in this case, road maintenance—“which a
13 county provides primarily for the benefit of the unincorporated area
of the county” shall be borne by persons in the unincorporated area
“who receive the service.” Thus, the question is whether
maintenance of the County roads is a service that the County
“provides primarily for the benefit of the unincorporated area.” The
key terms in that phrase are “primarily” and “benefit,” so we begin
by construing those terms according to their meaning at the time of
their enactment.
At the time the Act went into effect in 1997, the term
“primarily” was defined for ordinary usage in this context as “for the
most part[,] chiefly.” Merriam Webster’s Collegiate Dictionary 925
(10th ed. 1995). Black’s Law Dictionary defined “primary,” the
adjectival form of the adverb “primarily,” as “[f]irst; principal; chief;
leading.” Black’s Law Dictionary (Abridged) 826 (6th ed. 1991). See
Zaldivar v. Prickett, 297 Ga. 589, 596 (1) (774 SE2d 688) (2015)
(looking to Black’s Law Dictionary for “the usual and customary
meaning of [a] term as used in a legal context”). Moreover, in
construing an ordinance that was enacted nine years after the Act,
14 this Court determined that the word “primarily" is not ambiguous
and means “for the most part,” (citing Merriam-Webster’s dictionary
and also referencing the definition of the word “primarily” as
“mainly; principally” in Webster’s New World College Dictionary
(2007). Rockdale County v. U. S. Enterprises, Inc., 312 Ga. 752, 767
(3) (b) (865 SE2d 135) (2021), (citing United States v. Gibson, 998
F3d 415, 419-420 (III) (A) (9th Cir. 2021) (“The phrase ‘primarily
used by children’ is not indeterminate.”); In re Kelly, 841 F2d 908,
916 (III) (A) (3) (9th Cir. 1988) (“[T]he modifier ‘primarily’ is not a
word that is ambiguous or difficult to understand.”); Pizza di Joey,
LLC v. Mayor of Baltimore, 235 A3d 873, 907 (III) (C) (2) (a) (Md.
2020) (holding that “primarily engaged in” has a “generally accepted
meaning”)).11 “Benefit” was defined in 1997 as “something that
promotes well-being” or “useful aid.” Merriam-Webster at 106, and
“[a]dvantage; profit; fruit; privilege; gain; interest . . . [;] [b]enefits
11 We note that the county ordinance at issue in Rockdale expressly provided that all words not otherwise defined in the ordinance “are intended to have the commonly accepted definitions contained in a recent edition of the Merriam-Webster Dictionary.” Rockdale County, 312 Ga. at 755 (1). No such direction appears in the Act. 15 are something to advantage of, or profit to, [the] recipient.” Black’s
Law Dictionary at 108.
Applying these definitions and considering the context and
syntax of the sentence in which these words appear in the statute,
we view the phrase “any service which a county provides primarily
for the benefit of the unincorporated area of the county” to mean any
service a county provides for the chief advantage, privilege, or
interest of, or chiefly and principally for the unincorporated area.
And it is only if it is determined that the unincorporated area is the
primary beneficiary of the service that the “unincorporated area
residents, individuals, and property owners who receive the service”
bear the costs of that service.
We see nothing in the text of OCGA § 36-70-24 (3) (A) that
supports the County’s argument that the correct standard for
determining the primary beneficiary of a service turns solely on who
uses the service. As we understand it, the County argues that the
phrase “who receive the service” at the end of the first sentence of
OCGA § 36-70-24 (3) (A) means that those who have access to and
16 may use the service—in this case, maintenance of county roads—
are, as a matter of law, those who primarily benefit from it under
the meaning of the statute. But this construction ignores the syntax
and structure of OCGA § 36-70-24 (3) (A) and improperly links two
grammatically unrelated phrases in the text—the phrase “primarily
for the benefit of” and the phrase “who receive the service” at the
end of the sentence—while ignoring the phrase “the unincorporated
area of the county” that comes between them. Courts often rely on
the rules of grammar to provide a structure for discerning the
ordinary meaning of legal text, and we see no reason to depart from
those rules here. See State v. SASS Group, LLC, 315 Ga. 893, 900-
01 (2) (b) (885 SE2d 761) (2023) (“We may also refer to the rules of
English grammar, inasmuch as those rules are the guideposts by
which ordinary speakers of the English language commonly
structure their words[.]”) (citation and punctuation omitted).
Nevertheless, the County argues that any construction of
OCGA § 36-70-24 (3) (A) not based strictly on who uses the county
roads would violate the Uniformity Clause of the Georgia
17 Constitution, Ga. Const. Art. VII, Sec. 1, Para. III (a) (“[A]ll taxation
shall be uniform upon the same class of subjects within the
territorial limits of the authority levying the tax.”). However, to the
extent that the County is challenging the constitutionality of OCGA
§ 36-70-24 (3) (A), we need not address that argument in this appeal
because, even though the County raised the issue before the superior
court, the court did not issue a ruling on it. See Franzen v.
Downtown Dev. Auth. of Atlanta, 309 Ga. 411, 425 (3) (d) n.27 (845
SE2d 539) (2020) (“This Court does not reach the constitutionality
of a statute unless it clearly appears in the record that the
constitutional issue was directly and properly raised in the trial
court and distinctly ruled on by the trial judge.”) (emphasis omitted).
Moreover, to the extent that the County is asserting that under the
canon of constitutional doubt we should construe OCGA § 36-70-24
(3) (A) to avoid a potential conflict with the Uniformity Clause, that
canon does not apply to a statute that we have determined to be
unambiguous. See Domingue v. Ford Motor Co., 314 Ga. 59, 68 (2)
(c) (875 SE2d 720) (2022) (courts cannot rely on the canon of
18 constitutional doubt where the legal text “is clear and is not
susceptible of more than one meaning”); Crowder v. State, 309 Ga.
66, 73 (2) (d) n.8 (844 SE2d 806) (2020) (explaining that the canon
of constitutional doubt cannot be relied upon to avoid a “potential
constitutional issue” when “we can identify only one plausible
interpretation of [a] statute” (citation and punctuation omitted)).
The County also argues against our plain reading of the text
of OCGA § 36-70-24 (3) (A), which requires an analysis of whether
the service primarily benefits the unincorporated area of the
county–not simply a consideration of who uses the service–because
it contradicts the interpretation of the Act set out in the publication
Charting a Course for Cooperation and Collaboration – An
Introduction to the Service Delivery Strategy Act for Local
Governments. This document was published in 1997, after the date
of the Act’s enactment, by the Georgia Department of Community
Affairs, the department charged with implementing the Act, and
several organizations involved in drafting the Act—the Association
County Commissioners of Georgia, the Georgia Municipal
19 Association, and the Carl Vinson Institute of Government at the
University of Georgia. The publication describes itself as a
“guidebook” for city and county officials for implementation of the
Act and does not purport to be binding legal authority. With respect
to county road maintenance, this guidebook stated that, under the
Act, county road maintenance is not provided primarily for the
benefit of the unincorporated area within the meaning of OCGA §
36-70-24 (3) (A) because county roads are “available” to all county
residents, thus purporting to dictate that the only factor to be
considered on the question of whether county road maintenance
primarily benefits the unincorporated area is who uses the roads,
despite the express language in the statute.
However, even in the unlikely event that this guidebook could
constitute an agency’s interpretation of a statute on par with duly
adopted regulations, 12 we defer “to an agency’s interpretation [of
12 Compare Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158,
159-60 (1) (664 SE2d 223) (2008) (Court of Appeals erred in giving interpretation in agency manual deference due a statute, rule or regulation where manual “had not undergone the scrutiny afforded a statute during the
20 legal text] only when we are unable to determine the meaning of the
legal text at issue.” City of Guyton v. Barrow, 305 Ga. 799, 802 (2)
(828 SE2d 366) (2019). In other words, we only defer to an agency’s
interpretation, if at all, when the text is ambiguous. Because we
discern no ambiguity in the text of OCGA § 36-70-24 (3) (A), we need
not consider the interpretation set forth in the guidebook. See id. at
803 (2) (“A statute or regulation is not ambiguous merely because
interpreting it is hard.”) .
Accordingly, the Court of Appeals erred in affirming the
superior court’s grant of partial summary judgment to the County
and denial of partial summary judgment to the City on this issue, so
we reverse and remand for further proceedings consistent with this
opinion. To that end, we note that despite the arguments of the
parties, the determination of whether county roads and their
maintenance are provided primarily for the benefit of the
unincorporated area of the County does not depend just on one factor
legislative process or the adoption process through which all rules and regulations must pass”).
21 such as geography or usage, and we decline to determine as a matter
of law whether county roads located mostly in the unincorporated
area of the County are primarily for the benefit of the
unincorporated area. Instead, whether road maintenance is
primarily for the benefit of the unincorporated area of the County is
a determination the superior court is authorized to make on remand
after an evidentiary hearing and after considering the totality of the
circumstances, including geographic location and usage of the
roads.13 See OCGA § 36-70-25.1 (d) (2) (“The visiting or senior judge
shall conduct an evidentiary hearing or hearings as such judge
deems necessary and render a decision with regard to the disputed
items.”). 14
2. We next address whether OCGA § 36-70-24 (3) (B) requires
13 We emphasize that geographic location and usage of roads are only
two factors that the superior court may consider depending on the evidence presented by the parties, which could also include traffic studies and other expert analysis, and we decline to delineate or limit other factors that the superior court may consider to make this determination. 14 The Act provides that proceedings seeking resolution of SDS disputes
“shall be assigned to a judge . . . who is not a judge in the circuit in which the county is located. The judge selected may also be a senior judge . . . who resides in another circuit.” OCGA § 36-70-25.1 (d) (1) A). 22 that funding for services provided primarily for the benefit of the
unincorporated area come from “property taxes, insurance premium
taxes, assessments, or user fees” levied or imposed within a special
service district, or, in contrast, it authorizes the County to use other
sources of revenue from within that special service district.
OCGA § 36-70-24 (3) (B) states that the funding for services
provided primarily for the benefit of an unincorporated area
shall be derived from special service districts created by the county in which property taxes, insurance premium taxes, assessments, or user fees are levied or imposed or through such other mechanism agreed upon by the affected parties which complies with the intent of subparagraph (A) of this paragraph[.]
The County argues that “property taxes” and “assessments”
refer to general categories of funding and therefore the County is
allowed to use any funding source within the special service district
to pay for services intended primarily for the benefit of the
unincorporated area. 15 The City argues, on the other hand, that the
15 Specifically, the County argues that “property taxes” and “assessments” include cable franchise taxes, alcohol excise taxes, financial institution taxes, hotel/motel taxes, occupation taxes, and railroad equipment taxes. 23 statutory list is intended to be exhaustive, that the term
“assessments” means “special assessments” because “assessments”
must be read consistently with the other revenue sources listed,
which are specific and not general terms, and that “property taxes”
refer only to ad valorem property taxes. 16
First, neither the term “property taxes” nor the term
“assessments” is defined in the Act, so we must construe these terms
using the rules of statutory construction, some of which we have
already discussed in Division 1. The County somewhat simplistically
argues that because “property” can refer to intangible, personal, or
real property, “property taxes” as used in the statute means any
kind of tax on any kind of property. However, the County cites no
authority for that proposition.
In determining the original public meaning of the term
“property taxes,” we first note that at the time of the statute’s
enactment, Merriam-Webster defined property tax as “a tax levied
16 The City and County do not appear to dispute the meaning of the terms
“insurance premium taxes” and “user fees,” so our analysis will focus on the meaning of “property taxes” and “assessments.” 24 on real or personal property,” Merriam-Webster at 935, and Black’s
defined “property tax” in the legal context as “[a]n ad valorem tax,
usually levied by a city or county government, on the value of real
or personal property that the taxpayer owns on a specified date.”
Black’s Law Dictionary at 847. As we have made clear, dictionaries
are only a starting point for determining the original meaning of
text, particularly where, as here, the definitions are in tension. See
McBrayer, 317 Ga. at 394 (2) (d).
In determining the meaning of a term, “we may [also] look to
other provisions of the same statute, the structure and history of the
whole statute, and the other law—constitutional, statutory, and
common law alike—that forms the legal background of the statutory
provision in question.” Langley v. State, 313 Ga. 141, 143 (2) (868
SE2d 759) (2022) (citation and punctuation omitted). In addition to
“property taxes,” OCGA § 36-70-24 (3) (B) lists “insurance premium
taxes” as a potential source for revenue, which cuts against the
County’s argument that the term property taxes refers to taxes of
any kind because such an interpretation would improperly make the
25 term “insurance premium taxes” superfluous. See Camden County
v. Sweatt, 315 Ga. 498, 509 (2) (b) (883 SE2d 827) (2023) (noting
fundamental rule of statutory construction that courts should “avoid
a construction that makes some language mere surplusage” (citation
and punctuation omitted)).
Also, OCGA § 36-70-24 (3) (B) refers to “special service
districts” and makes clear that the listed mechanisms for funding
are to be levied or imposed within a special service district. Thus, in
the legal background of OCGA § 36-70-24 (3) (B) is the Special
Districts Paragraph of the Georgia Constitution, which enables the
creation of special service districts “for the provision of local
government services within such districts,” and provides that “fees,
assessments, and taxes may be levied and collected within such
districts to pay, wholly or partially, the cost of providing such
services therein and to construct and maintain facilities therefor.”
Ga. Const. of 1983, Art. IX, Sec. 2, Par. VI. That the Special Districts
Paragraph lists the categories of funding sources for county services
as “fees, assessments, and taxes” further supports that when the
26 General Assembly used the term “property taxes” instead of “taxes”
in OCGA § 36-70-24 (3) (B), it intended to specify a subcategory of
taxes—ad valorem taxes levied on real or personal property—to the
exclusion of other taxes, including the non-ad valorem taxes on
property that the County claims it can use as funding sources. See
Pandora Franchising, LLC v. Kingdom Retail Group, LLLP, 299 Ga.
723, 728 (1) (b) (791 SE2d 786) (2016) (“Where the legislature uses
certain language in one part of the statute and different language in
another, the Court assumes different meanings were intended.”
(citation and punctuation omitted)).
The County also argues that the term “assessments” in OCGA
§ 36-70-24 (3) (B) refers to any kind of revenue measure. On the
other hand, the City asserts that “assessments” refer only to “special
assessments.” The statute provides no qualifier for the term
“assessments,” and, at the time the statute was enacted, Merriam-
Webster defined assessments as “the action or an instance of
assessing” or “the amount assessed.” Merriam-Webster at 69. That
dictionary defined “assess” in this context as “to determine the rate
27 or amount of (as a tax);” “to impose (as a tax) according to an
established rate;” “to subject to a tax, charge, or levy;” and “to make
an official valuation of (property) for the purpose of taxation.” Id.
Black’s defined “assessments” “[i]n a general sense” as “the process
of ascertaining and adjusting the shares respectively to be
contributed by several persons towards a common beneficial object
according to the benefit received,” which “is often used in connection
with assessing property taxes or levying of property taxes.” Black’s
Law Dictionary at 77. Thus, these definitions support the County’s
broad reading of the term “assessments.”
However, if the General Assembly intended the term
“assessments” to refer broadly to any kind of tax, the legislators’
inclusion of the other specific items in the list in OCGA § 36-70-24
(3) (B) would be surplusage, and, again, courts generally strive to
avoid a construction that “makes some language mere surplusage.”
Camden County, 315 Ga. at 509 (2) (b) (citation and punctuation
omitted)). Moreover, the text adopted in the Special Districts
Paragraph of the Georgia Constitution supports that “assessments”
28 are different in kind from “taxes” and “fees,” as, otherwise, there
would have been no need to list “fees, assessments, and taxes”
separately and on equal terms in the constitutional text. Likewise,
this Court has recognized that, as a general matter, assessments are
different in kind from taxes. See Hayden v. City of Atlanta, 70 Ga.
817, 822-23 (1884) (“Taxes are different from assessments for local
improvements, taxes being burdens upon all persons and property
alike, and compensated for by equal protection to all, while
assessments are not burdens but equivalents, and are laid for local
purposes upon local objects, and are compensated for to some extent
in local benefits and improvements, enhancing the value of the
property assessed. Taxes are imposed on the person, assessments
are imposed on the property.”). Accordingly, we construe the term
“assessments” in OCGA § 36-70-24 (3) (B) as the act of charging a
special payment but not to include fees and taxes. This construction
would include “special assessments,” but it is not limited to special
assessments, as it could also include other assessments not
classified as taxes or fees.
29 Therefore, we conclude that absent an agreement by the
parties, OCGA § 36-70-24 (3) (B) limits the sources within a special
district that can be used to fund services provided for the primary
benefit of the unincorporated area of the county, that “property
taxes” means ad valorem property taxes, and that “assessments”
refer to any assessment that is not otherwise classified as a tax or
fee, and we reverse the Court of Appeals on this ground.
3. Finally, we consider whether the superior court, which is
conducting this proceeding under OCGA § 36-70-25.1 (d), has the
authority in such a proceeding to determine whether the City’s
usage rates charged to the Outside Customers constitute an illegal
tax and whether the City is permitted to transfer profits from the
excess fees collected from water service to Outside Customers into
its general fund. We conclude that the superior court is not so
authorized, and that it should have granted the City’s motion to
dismiss Count IV on this ground.
Our review of a trial court’s decision on a motion to dismiss is
de novo. See Southern States Chem., Inc. v. Tampa Tank & Welding,
30 Inc., 316 Ga. 701, 706 (1) (888 SE2d 553) (2023). The Act provides a
detailed framework for local governments to use in negotiating and
crafting their SDS Agreements and the processes and procedures
that may be used in resolving any disputes. OCGA § 36-70-23 lists
the four items that need to be included in every service delivery
strategy,17 while OCGA § 36-70-24 describes the criteria that must
17 Under, OCGA § 36-70-23,
Each local government service delivery strategy shall include the following components: (1) An identification of all local government services presently provided or primarily funded by each general purpose local government and each authority within the county, or providing services within the county, and a description of the geographic area in which the identified services are provided by each jurisdiction; (2) An assignment of which local government or authority, pursuant to the requirements of this article, will provide each service, the geographic areas of the county in which such services are to be provided, and a description of any services to be provided by any local government to any geographic area outside its geographical boundaries. In the event two or more local governments within the county are assigned responsibility for providing identical services within the same geographic area, the strategy shall include an explanation of such arrangement; (3) A description of the source of the funding for each service identified pursuant to paragraph (2) of this Code section; and (4) An identification of the mechanisms to be utilized to facilitate the implementation of the services and funding responsibilities identified pursuant to paragraphs (2) and (3) of this Code section.
31 be met in the development of a service delivery strategy.
Specifically, OCGA § 36-70-24 (2) sets out requirements and
procedures for strategies involving water or sewer services.
Subsection (2) (A) of that statute provides “that water or sewer fees
charged to customers located outside the geographic boundaries of a
service provider shall not be arbitrarily higher than the fees charged
to customers receiving such service which are located within the
geographic boundaries of the service provider.” Subsection (2) (B) of
the statute sets out a dispute resolution procedure for local
governments to follow to challenge any alleged arbitrary rate
differentials. That provision allows the contesting governing
authority to hold a public hearing for the purpose of reviewing the
rate differential. See OCGA § 36-70-24 (2) (B). And should the
governing authority wish to pursue a challenge, it must have a
qualified engineer prepare a rate study and engage in alternative
dispute resolution before taking its challenge “to a court of
competent jurisdiction.” See id. As discussed above, OCGA § 36-70-
25.1 (d) sets out the procedure for an aggrieved party to follow to
32 petition the superior court for resolution of items “remaining in
dispute.”
Here, after presumably following the procedure laid out in
OCGA § 36-70-24 (2) (B), the County filed its petition in this case
pursuant to OCGA § 36-70-25.1 (d) (2) to resolve the parties’
remaining disputes. Count II of the amended petition requests
judicial resolution of the arbitrariness of the water rate differential
charged by the City to the Outside Customers, and Count III seeks
a determination of whether the County had the authority to provide
water service to all customers located in the unincorporated area of
the County. These issues are clearly matters that must be addressed
in negotiating a new SDS Agreement for the provision of water and
sewage services, and thus disputes about such matters are
considered issues “remaining in dispute” under the Act. See OCGA
§§ 36-70-23; 36-70-24; 36-70-25.1 (d) 2).
However, Count IV seeks a determination as to whether the
City’s water charges constitute an illegal tax on the Outside
Customers and whether the City could transfer profits collected
33 from those customers to its general fund. These are not items that
must be negotiated as part of an SDS Agreement, see OCGA §§ 36-
70-23 and 36-70-24 (2), and thus cannot be considered items
“remaining in dispute” under the statutory process outlined in
OCGA § 36-70-25.1 (d). Because Count IV seeks a judicial
determination that is beyond the scope of the Act, its requested relief
falls outside the statutory dispute process contemplated by § 36-70-
25.1 (d) (2). See City of Union Point v. Greene, 303 Ga. 449, 459 (2)
(812 SE2d 278) (2018) (superior court “is not authorized to grant
relief pursuant to OCGA § 36-70-25.1 beyond the scope of the
remedies made available in that Code section”), disapproved of on
other grounds by City of College Park v. Clayton County, 306 Ga. 301
(830 SE2d 179) (2019).
Accordingly, the superior court should have dismissed Count
IV, and we reverse the portion of the Court of Appeals’s judgment
affirming the trial court’s order denying the City’s motion to
34 dismiss. 18
Judgment reversed and case remanded. All the Justices concur, except Boggs, C.J., not participating.
18 However, we note nothing in this opinion prevents the County from
seeking declaratory, or other, relief on these issues in a separate proceeding. 35 BETHEL, Justice, concurring.
I agree with the analysis and conclusion of the opinion of the
Court and join it in full.
I write separately to provide additional discussion of the
considerations included in making the factual determination of
whether a particular service is provided “primarily for the benefit”
of an unincorporated area of a county as discussed in Division 1. See
Maj. Op. at 22-23. In assessing the totality of the circumstances
surrounding the service’s provision, a superior court should
contemplate the possibility that the service, though located outside
the municipal limits and most frequently used by residents of the
unincorporated area, nevertheless has no evident primary
beneficiary and, instead, benefits the public broadly. Regardless of
any geographical assessment of the location of the capital
infrastructure of a particular service and without regard to its most
frequent users, many services by their very nature transcend the
assignment of a primary beneficiary.
Thinking of this question as lying on a spectrum may be
36 helpful. On one end of the spectrum, services exist that are easily
identified as being provided for the primary (and perhaps even
exclusive) benefit of unincorporated area(s). These services might
include curbside rubbish collection exclusively from residences
outside incorporated limits or a fire service whose coverage area is
exclusively outside the incorporated limits. On the other end of the
spectrum, however, are services that are rendered to the public
without respect to municipal boundaries. Here, we might find, for
example, a county-wide police department or the core functions of a
county courthouse. Where a service is provided and who it most
frequently serves are clearly relevant factors. But while they may
seem determinative at the extremes of the spectrum, they are not
determinative in a totality of the circumstances analysis.
Consider, for example, a few hypothetical services provided in
imaginary Georgia counties. The first county provides potable water
service to all residents. The capital infrastructure, excluding
distribution pipes within the municipal boundaries, lies completely
in the unincorporated area of the county while less than ten percent
37 of county residents live inside the municipal boundary. Thus, while
consideration of where the capital assets lie and the numerical
utilization of the service might suggest that this service was
primarily for the benefit of the unincorporated area, the very nature
of the service makes clear that the service is delivered to and equally
benefits all county residents. The second county constructs a large
regional recreational facility in an unincorporated area. The park is
far more accessible to county residents of the unincorporated area,
who are the primary local users of its amenities. But the park is
frequently used to host tournaments and festivals that draw visitors
to the community from other counties. These visitors frequent retail
shops, restaurants, and hotels which are almost exclusively located
inside municipal boundaries. Here again, the question of primary
benefit would be incomplete if we considered only the location of the
service and frequency of use as between residents of the
incorporated and unincorporated portions of the county.
In sum, I believe the Court has correctly identified the challenge as
requiring an analysis of the totality of the circumstances. For many
38 services, this may be a relatively easy task (but it seems unlikely
that the truly easy ones will evade resolution by the municipal and
county governments prior to judicial consideration). It may well be
that most of these decisions will turn on the location of the service
provision or the frequency of utilization, as seems to be the primary
thrust of the municipality’s argument in this case. Nevertheless, I
view the nature of the service provided as a critical, though not
dispositive, consideration in the primary beneficiary inquiry – a
consideration that may be particularly apt in the context of the case
at hand. A municipality that is logistically cut off from the
surrounding environment at the city limits would not long survive.
Any consideration of the beneficiaries of a transportation system in
and through the unincorporated portions of a county would be
incomplete without an assessment of the value derived by the
municipality from being connected to the larger world.