Smith Chapel Baptist Church v. City of Durham

502 S.E.2d 364, 348 N.C. 632, 1998 N.C. LEXIS 362
Supreme Court of North Carolina·Decided July 30, 1998·No. 250PA97·Published·Cited by 5 cases

Opinions

WEBB, Justice.

The defendant contends that two sections of the General Statutes give the City of Durham the authority to assess fees to operate its stormwater program, although a large part of the program expenditures do not involve the physical assets of the program.

N.C.G.S. § 160A-311 provides in part:
As used in this Article, the term “public enterprise” includes:
(10) Structural and natural stormwater and drainage systems of all types.

N.C.G.S. § 160A-311 (1994).

N.C.G.S. § 160A-314(al) provides in part:
The fees established under this subsection must be made applicable throughout the area of the city. Schedules of rates, fees, charges, and penalties for providing structural and natural stormwater and drainage system service may vary according to whether the property served is residential, commercial, or industrial property, the property’s use, the size of the property, the area of impervious surfaces on the property, the quantity and quality of the runoff from the property, the characteristics of the watershed into which stormwater from the property drains, and other factors that affect the stormwater drainage system. Rates, fees, and charges imposed under this subsection may not exceed the city’s cost of providing a stormwater and drainage system.

N.C.G.S. § 160A-314(al), para. 2 (1994). The defendant argues that the adoption of these two sections was in response to the requirements of the WQA, which shows that the fees for which N.C.G.S. § 160A-314(al) provides were intended to finance its entire stormwater program. The plaintiffs contend that the City is limited to collect[636]*636ing fees which will finance only the structural and natural stormwater and drainage systems component part of the stormwater program. We agree with the plaintiffs that the statutes alone do not authorize the ordinance.

When the language of a statute is clear, there is no need for judicial interpretation. We give the statute its plain meaning. State v. Dellinger, 343 N.C. 93, 95, 468 S.E.2d 218, 220 (1996). In this case, the words “structural and natural stormwater and drainage system” have a plain meaning. In the ordinance establishing the stormwater program, a stormwater system is defined as “the system of natural and constructed devices for collecting and transporting storm water.” Durham, N.C., Code ch. 23, art. VIII, § 23-201 (1994). We can only hold N.C.G.S. §§ 160A-311 and -314 do not authorize the City to finance its entire stormwater program with fees assessed against landowners.

We must next determine whether the City has the authority from any other source to impose fees to finance the stormwater program. We believe that it has such authority. Article XIV, Section 5 of the Constitution of North Carolina provides in part:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to . . . control and limit the pollution of our air and water . . . and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty.

N.C. Const, art. XIV, § 5, para. 1.

We believe this section of the Constitution gives our cities the authority to regulate our waters. If the City has this power, we believe we should follow the rule of Homebuilders Ass’n of Charlotte v. City of Charlotte, 336 N.C. 37, 45, 442 S.E.2d 45, 50-51 (1994), that when a city has the power to regulate activities, it has a supplementary power reasonably necessary to carry the program into effect. See N.C.G.S. § 160A-4 (1987).

In this case, it was reasonably necessary for the City of Durham to assess fees against landowners to finance the stormwater program to comply with the WQA. The City could base the amount of fees on the amount landowners contributed to the stormwater problem. In [637]*637this case, the contribution to the problem is measured by the impervious area of each lot.

Although we have held that the City has the authority outside the parameters of N.C.G.S. §§ 160A-311 and -314 to impose fees to support the program, we shall be guided by those two sections in questions of the administration of the program.

The plaintiffs contend that the method by which fees are calculated for use of the stormwater system is unlawful. The fees are based on the impervious areas of each lot. An impervious area is that part of a lot in which surface water cannot penetrate the soil, and each lot is assessed based on the size of the impervious area.

The plaintiffs argue that a fee for utility service must be commensurate with the services rendered, and the evidence showed there was virtually no benefit to them. In this case, the fees are not based on service to the landowners. N.C.G.S. § 160A-314(al) provides several methods for setting fees. One method is based on “the area of impervious surfaces on the property.” The statute does not require that there be a showing of benefit to the landowners, and the plaintiffs have not questioned the constitutionality of the statute.

The plaintiffs next contend that the impervious-area method of calculating fees does not reasonably relate to the stormwater runoff of individual properties. They argue that several other methods better measure the quantity and quality of the runoff and that it was unreasonable for the City to use this method. The best answer to this argument is that the City is authorized by statute to use the impervious-area method in setting runoff fees. There is substantial evidence in the record that consultants hired by the City considered several different methods before recommending the impervious-area method. There was plenary evidence that the impervious-area method for calculating fees is the best method. This supports the selection of the impervious-area method for setting fees.

The plaintiffs next argue that the rates set by the City are discriminatory. They base this argument on the way the cost of street cleaning is handled under the plan. The City was required, as part of its plan to receive an NPDES permit, to clean its streets. The costs to the Utility to clean the streets was $1,820,087, but the fee charged to the City was only $1,280,000. The plaintiffs say first that it is discriminatory for the Utility to clean the City’s streets but refuse to clean the paved parking lots and private roads of its customers. The plaintiffs [638]*638say next that it is discriminatory to charge the City an amount which does not cover the cost of the City’s pollution.

The City has produced a plan as it was required to do to receive its NPDES permit. The plan does not provide that the City clean private property. There is a distinction between city owned property and privately owned property that supports this different treatment.

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Smith Chapel Baptist Church v. City of Durham, 502 S.E.2d 364, 348 N.C. 632, 1998 N.C. LEXIS 362 (N.C. 1998).

502 S.E.2d 364 (Smith Chapel Baptist Church v. City of Durham) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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