*1 IN THE SUPREME COURT 632 v. OF DURHAM CHURCH CITY CHAPEL BAPTIST SMITH affects has occurred that in circumstances change a substantial necessary promote Obviously, this burden is welfare. the child’s frequent petitions for mod- discourage stability custody in orders pro- custody I this test will still serve decrees. believe ification of by repeated litigation parent from harassment tect the custodial custody ongoing battles. protect being in the midst the child from may years fifty ago: “It be well Ervin said almost As Justice cognizance and takes observe, closing, that the law realistic society. While a decree conditions of fortune changing the ever pres- custody a judicial of child determines award of the making contest, permanent is not parties to the rights ent subsequent as by the court in the future nature, be modified Mitchell, may require.” v. Hardee and the welfare of child events 51 S.E.2d 885-86 230 N.C. CHURCH; CHURCH, INC.; LAY- BAPTIST BAPTIST FELLOWSHIP
SMITH CHAPEL CHURCH; CHURCH OF and CALVARY BAPTIST MAN’S CHAPEL BAPTIST Municipal DURHAM, DURHAM, OF NORTH CAROLINA CITY v. North Carolina Corporation
No. 250PA97 July 1998) (Filed 30 pro- Corporations (NCI4th)— Municipal stormwater § 1. authority statutory gram fees — no —landowner city to and -314 do authorize 160A-311 §§ against assessed program finance its entire stormwater landowners. pro- Corporations (NCI4th)— Municipal
2. gram fees — constitutional —landowner Constitution XIV, Section 5 of the North Carolina Article waters, supple- have regulate and cities authorizes cities mentary reasonably reasonably necessary to do so. It was power necessary city against to finance for a to assess fees landowners comply Water with the federal of fees on the Act, the amount Quality and the could base problem mea- to the stormwater amount landowners contributed Const, developed lot. N.C. by the area of each sured XIV, 5, para. 1. art. v.
SMITH CHAPEL BAPTIST CHURCH CITY OF DURHAM *2 (1998)] [348 Municipal Corporations (NCI4th)— pro- 3. § 258 stormwater
gram fees — consideration of statutes —landowner city
Although given parame- was outside the impose ters of N.C.G.S. support § 160A-311and -314 fees to appellate program, guided by stormwater court will be those questions two statutes of the program. administration Municipal Corporations pro- 4. (NCI4th)— § 258 stormwater gram impervious area method — statu- —landowner fees —
tory authority city
A 160A-314(al) was authorized to use the impervious area in setting program method stormwater were not grounds showing fees unlawful on was no there landowners, of benefit to calculating that this method of reasonably does not relate to the stormwater runoff of individual properties. Municipal Corporations
5. (NCI4th)— pro- § 258 stormwater
gram discriminatory fees not —landowner by city
Fees set finance its stormwater in order permit an discriminatory to receive NPDES were not because city city’s cleans the paved parking streets but does not clean lots private roads of landowners since there is a distinction city property privately property between owned owned supports this different treatment. Nor are rates discrimina- tory required pay because the is not an amount that cov- cleaning ers cost of its own streets since fees are set under the based pollu- method on the amount of tion caused lot each rather than on how clean much costs to each #(cid:127) lot. Corporations Municipal (NCI4th)— pro- 6. § 258 gram exemptions—not equal protection —landowner fees — violation A plan arbitrary deprive and does not developed property protection owners of equal plan because the exempts land, undeveloped property commercial 1200 less than square impervious area, golf courses, roads, feet of state and railroad tracks, charge corridors and or because the maximum for residential property per month, $3.25 exemptions justi- since each was fied, showing was there no that the fees collected residen- substantially $3.25 tial were less because limit. IN THE SUPREME v. CITY OF DURHAM BAPTIST CHURCH
SMITH CHAPEL N.C.632 Frye in the result. concurs Justice dissenting. Justice Lake joins dissenting opinion. in this
Justice Orr 7A-31,prior discretionary pursuant to a to N.C.G.S. On review Appeals, judgment of a entered the Court of determination entered judgment and an amended J., on 11 October 1996 Manning, Superior County. Heard in the January Court, Durham 1997. Supreme 19 November Court *3 by the program contest a established
In this Quality adopted comply (WQA) Act City of with the Water Durham to WQA required The that cities Congress. the United States population Discharge Pollutant 100,000 more in obtain a National or System permit discharge into (NPDES) to Elimination portion that of rain that does state. Stormwater is the waters evaporate penetrate ground but remains the surface developed a surfaces. In order to receive travels over natural city develop comprehensive permit, a NPDES must quality program. City requirements, the of Durham comply
To with the federal creating department called the adopted an ordinance operate program. Services Division Stormwater developed charging be financed fees for all The was to City. impervious areas of the Fees were based on the land Utility (Utility) was created land. The Durham Stormwater assessed expenses pay of the Stormwater to receive the fees Division. Services declaratory plaintiffs brought judgment for a this action authority impose City
alleging of Durham did not have the that jury, operate program. After a trial without a fees its stormwater statutory superior City held did not have the court of a stormwater and authority to use to fund more than the cost authority by imposing system had drainage and that it exceeded its parts program. of its stormwater fees to fund other discretionary appealed, review and we allowed defendant Appeals. prior to determination the Court SMITH CHAPEL BAPTIST CHURCH v. CITY OF DURHAM Siam, Danchi, P.A., by Stam, Jr., & Henry Fordham Paul Jr., Fordham, plaintiff-appellees. C. City Attorney, by Sindelar, Karen A. Assistant Office of defendant-appellant. Attorney, for League Municipalities, North Carolina Andrew L.
Romanet, Jr., Counsel, General amicus curiae. WEBB,Justice.
[1] The defendant contends two sections of the General Statutes give operate of Durham assess fees to part stormwater program, although large program expendi physical tures do not involve assets of the provides part: N.C.G.S. 160A-311 used in Article, “public enterprise”
As term includes: systems (10) Structural and natural stormwater types. all 160A-311 *4 provides part:
N.C.G.S. in 160A-314(al) § The fees under be established this subsection must made applicable throughout city. rates, the area of the Schedules fees, penalties charges, providing and for structural and natural system may vary drainage according stormwater and service to residential, commercial, whether the is served indus- property, property’s trial the use, property, the size of property, quantity quality surfaces and property, of the runoff from the the characteristics of the water- property drains, shed into which stormwater from the and other system. Rates, factors that affect drainage the stormwater imposed charges under this subsection not exceed the system. cost providing drainage a stormwater and para. 2 160A-314(al), § N.C.G.S. (1994). argues defendant that the adoption of in response require- these two sections to was WQA, ments of the which shows that the for which N.C.G.S. 160A-314(al)provides to its § were intended finance entire stormwa- program. plaintiffs City ter to contend that the limited collect- THE IN SUPREME v. CITY DURHAM CHURCH OF
SMITH CHAPEL BAPTIST only natural stormwa- will finance the structural and ing fees which systems component part program. of the stormwater drainage ter and do authorize that the statutes alone agree We with the the ordinance. judi clear, for a there is no need language
When the statute plain State v. interpretation. give meaning. the statute its cial We 95, 218, (1996). In Dellinger, 93, N.C. 468 S.E.2d system” have natural stormwater and words “structural and pro establishing In plain meaning. the ordinance system of natural and system is defined as “the gram, stormwater transporting storm water.” collecting for constructed devices only Durham, 23, VIII, art. We can hold N.C., Code ch. 23-201 City to -314 not authorize the finance its 160A-311and do §§ against landowners. program with fees assessed entire [2] We must next determine whether City has the authority impose any to fees to finance other source authority. XIV, it Article Section 5 of the believe that has such We part: provides North Constitution of Carolina protect policy of It shall be the this State to conserve citizenry, and waters of all its to this end lands and benefit proper of North Carolina and its it shall be a function of State pollution . . limit of our political . control and subdivisions way every preserve . appropriate . . other air and water forests, part heritage this State its wet- as a of the common beaches, sites, openlands, places lands, estuaries, historical beauty. Const, XIV, para. 5, 1. N.C. art. our gives cities the
We believe this section Constitution power, If the has we believe regulate our waters. the rule of Homebuilders Ass’n Charlotte v. we should follow (1994), 50-51 that when a Charlotte, 336 N.C. 442 S.E.2d supplementary activities, power regulate has has necessary carry power reasonably into effect. See *5 N.C.G.S. 160A-4 necessary City reasonably for of Durham case,
In this it was the to against to landowners assess fees finance WQA. City on comply The base the amount of fees to with the could problem. In to the stormwater amount landowners contributed the SMITH CHAPEL BAPTIST CHURCH v. CITY OF DURHAM case, problem by imper- this the to contribution the is measured the vious area of each lot.
[3] Although we have held that the City has the outside the parameters of impose sup §§ 160A-311 -314 to fees to port program, by guided ques the we be shall those two sections in tions of the administration the
[4] The plaintiffs contend that the method which fees are calcu lated system for use of the stormwater is unlawful. The fees are based on impervious impervious part the An areas each lot. area is that penetrate of a soil, lot in which water surface cannot the lot each impervious is assessed based on the size of the area. plaintiffs argue
The that a for fee service must be com- rendered, mensurate the services and the evidence showed virtually there In was no benefit to them. the not fees are based on service to 160A-314(al)provides the landowners. N.C.G.S.§ setting several methods for fees. One method is based on “the area of property.” require surfaces on the The statute does not landowners, that be a showing there benefit the plain- to and the questioned constitutionality tiffs have the of the statute. plaintiffs impervious-area
The next contend that the method reasonably fees calculating does not relate to the stormwater runoff properties. They that argue individual several other methods bet- quantity quality ter the measure the runoff and that it was City for to unreasonable the use this method. The best answer to this City argument impervi- is that use authorized statute to the setting ous-area method in runoff There is fees. substantial evidence City record consultants hired considered several impervious-area recommending different methods before impervious-area plenary method. There was evidence supports method calculating for is the best method. This impervious-area selection of the method for fees. setting [5] The plaintiffs next argue that the rates set City are dis They criminatory. way argument base the cost of street cleaning plan. required, part handled under was as plan permit, receive an NPDES clean its streets. The costs to Utility $1,820,087, charged clean the streets was but the fee only say $1,280,000. plaintiffs that it was first is discrim inatory Utility City’s clean streets but refuse to clean the paved parking private lots and roads of its customers. The *6 IN THE SUPREME v. CITY OF DURHAM BAPTIST CHURCH
SMITH CHAPEL (1998)] N.C. [348 discriminatory City an amount which say charge to next that it is City’spollution. not cover the cost of the does required City produced plan as was to do to receive The has a it City pri- permit. plan provide that the clean The does not NPDES property and owned property. There is distinction between vate privately supports property this different treatment. owned that discriminatory require not to argument that is to The pollution is removing costs its own pay an amount that covers the impervious-area cal- understanding of the method of an answered pollution fees. fees are set based on amount culating These lot, each lot. We not on how much it costs to clean caused each part pollution in streets is caused in have no doubt surrounding land. from the Quality Manage- plaintiffs that Stormwater next contend pub- many which benefit the Program contains features serve to
ment persons are particular are of benefit to the who assessed lic but no arbitrary They say capricious. pay it. this makes the arbitrary promulgate plan capricious not disagree. We It is require who problem of a stormwater those for the amelioration problem pay particu- no show a for it. There is need to caused public this to landowner. It is which benefits from lar benefit plaintiffs argue next that the Due Process Clause of has Amendment to the Constitution the United States Fourteenth are charges violated because the Durham’s been provided. reasonably We have held that related services impervious are and reasonable. On on the area valid based amount basis, reject we argument. [6] Finally, argue City’s plan vio Equal Protection of the Fourteenth Amendment lates the Clauses I, and Article Section 19 of the Constitution of United States They say certain North Carolina. so because of Constitution of City plan. 45,304 acres in the exemptions from the There are 23,720 undeveloped unde Durham, of acres are in land. These which exempt property with plan. veloped are Commercial acres exempt, as are 1,200square feet of is also less than roads, corridors and tracks. golf courses, state and railroad $3.25 Furthermore, charge the maximum for residential per month.
SMITH CHAPEL BAPTIST CHURCH v. CITY OF DURHAM *7 exemptions arbitrary contend that these are and deprive equal protection them of the of the law. of We believe each exemptions justified. First, undeveloped be can land golf and produce do not impervious courses as much runoff as do areas. Second, property 1,200 square commercial feet of produces a de amount Third, minimus of stormwater runoff. it by would be difficult for to assess the State for land owned Next, State state very as roads. and railroad corridors tracks have lit- impervious area, tle and exempt thus it is not unreasonable to them program. Finally, from the property distinguishable residential property. showing from nonresidential There was not in this case substantially that the fees collected residential were $3.25 less because of the limit.
For the stated in opinion, reasons we reverse the decision Superior Court, County, entry Durham and remand for the aof ' for judgment the defendant.
REVERSEDANDREMANDED.
Justice concurs in result. Frye Lake dissenting.
Justice respectfully I must dissent because the governing statutes operation public enterprises municipal clearly corporations for enabling invalidate thé at ordinance issue in this as well as the by “utility” actions taken established thereunder. undisputed that,
It expediency, for reasons of Durham chose to establish a as the mechanism which comply Quality would with the unfunded mandates the 1987Water Act related to Municipalities stormwater runoff. are authorized public operate enterprises only establish pro- like utilities as Having method, vided statute. therefore, chosen this must statutory requirements abide of N.C.G.S. 160A-311 and § 160A-314, public § N.C.G.S. which govern enterprises. such These part: statutes read in relevant enterprise 160A-311. Public defined. Article, “public
As used in term enterprise” includes: IN THE SUPREME v. OF CITY DURHAM CHAPEL BAPTIST CHURCH SMITH drainage systems (10) and natural Structural types. all (1994) (emphasis added). 160A-311 Authority rates. to fix enforce § 160A-314. city may to time sched- and revise from time
(a) A establish penalties rents, rates, charges, the use of ules of any enterprise. public Schedules the services furnished may vary according to rates, fees, penalties rents, charges, adopted for service, schedules be and different classes city. corporate provided outside the limits services *8 (al).... must be made fees under this subsection established rates, city.
applicable
the
Schedules of
throughout the
of
fees,
penalties for
and natural
charges,
providing
and
structural
may
system
vary according to
service
drainage
stormwater and
commercial,
residential,
is
or indus-
whether the
served
property’s use,
property,
the
the area
property,
trial
the size of
the
quantity
quality
and
property,
on the
the
of
surfaces
the water-
property,
the
the characteristics of
of the runoff from
property drains,
the
and other
shed into which stormwater from
system.
Rates,
drainage
the
factors that affect
the
charges imposed
this subsection
not exceed
under
system.
drainage
providing
of
a stormwater and
cost
1997) (emphasis added).
160A-314(a),(al) (Supp.
N.C.G.S.§
City’s
complies
public enterprise
deciding
In
whether the
plain
the
statutes,
language
we
must
to the
of
above
first
look
95,
93,
468
Dellinger,
State v.
343 N.C.
S.E.2d
statutes themselves.
“Ordinary
ascertaining
apply
of
218,
grammar
220
rules
when
(1996).
Employers
Co.,
Ins.
332
of a
Dunn v.
meaning
statute.”
Pacific
129, 134,
645,
language
648
When
N.C.
S.E.2d
418
clear,
judicial interpretation,
is
is
need
statute
there
no
for
plain
Dellinger, 343 N.C. at
give
meaning.
the statute its
court should
at
95,
In of the above statutes is clear. the case sub enterprises” “public as “structural and 160A-311defines N.C.G.S. § “systems” is drainage systems.” The word natural stormwater and natural” and adjectival phrases “structural and limited public Thus, plain meaning that the drainage.” is “stormwater SMITH CHAPEL BAPTIST CHURCH v. CITY DURHAM OF N.C. enterprises applicable authorized the statute expressly here are systems physical infrastructure, limited to those which oversee natural, or servicing structural for stormwater. N.C.G.S. 160A-314 understanding statutory reinforces construct. That statute provides City may that the establish fees “for the or use the serv- may vary ices and that fees “structural natural furnished” drainage system stormwater and according type service” to the “property size served.” (emphasis N.C.G.S. 160A-314(a), (al) added). plain only This language contemplates the collection of fees for the of’ “furnishing “use of’ utility. stormwater services compu- statute further modifies the setting tying their particular “property Thus, plain tation to the served.” meaning that, operate these statutes in public order to as an authorized enterprise purposes control, ques- for the of stormwater tion is sys- limited to the physical establishment and maintenance of directly tems related to stormwater removal and property. plain
Even though language of the statute is sufficient to determine its meaning legislature also clear the public enterprises type operate intended for of this actual drainage systems, pollution protection not broad programs. ascertaining In legislature, intent the title anof act should be considered as a guide. Cobey Simpson, State ex v. rel. 333 N.C. S.E.2d statutory 764 (1992). provisions The act that added the regarding *9 stormwater was titled:
An ACT TO AUTHORIZE LOCAL GOVERNMENTS TO CONSTRUCT AND OPERATE STORM DRAINAGE SYSTEMS AS PUBLIC AND ENTERPRISES TO PROVIDE LOCAL GOVERNMENTS WITH FUNDING AND TAXING AUTHORITY TO FINANCE THE CONSTRUCTION AND OPERATION OF STORM DRAINAGE SYSTEMS. July 15, 1989, 643,
Act of ch. 1989 N.C. Sess. Laws 1763. The title’s operation” on “systems” focus “construction and drainage storm legislature public enterprises indicates the did not intend for such be general programmatic bodies, used as organizations but rather as merely charged supervision systems. physical drainage the When determining legislature, signifi- the intent of it the is also Assembly adopts provisions cant if the General which from differ by study suggested Littlejohn, those commission. v. Black 312 N.C. 469, study pro- (1985). 325 S.E.2d 475-76 commission posal language charges did not contain that tied stormwater serv- provided Proposed Study properties. Legislation: ices Commission IN THE SUPREME v. OF DURHAM CHURCH CITY CHAPEL BAPTIST
SMITH Conversely, adopted Assembly the 44-45. Report N.C. General to 1991 to the character charges for services linked the stormwater statute legislature’s of the intent This indicative served. systems physical for the their activities stormwater utilities limit property. removal of stormwater utility, as City’s establishing the ordinance Examination the utility, to have reveals the operation as the actual well upon by plain language of the conferred exceeded utility develop “to and a stormwater The ordinance creates statutes. “program” is program.” The operate management system, just a but by to include not stormwater defined the ordinance materials, ordinances, policies, technical development of also “the to the monitoring, outreach, and other activities related inspections, quality.” Durham, N.C., quantity Code ch. control provides Similarly, the ordinance VIII, art. 23-201 § id., subject developed charge,” . . . shall to a stormwater “all land be Thus, on its just system. the ordinance property served not plain meaning of the express limitations face exceeds statutory utility Moreover, operation exceeds statute. fund, utility placed in one authority. are Allfunds collected City’s quality pays entire stormwater this fund for the substantially provid- utility’s exceed the activities concedes general togo half of the funds infrastructure. Over ing quality, general as edu- involving water such programmatic elements areas, programs and residential programs cation for commercial materials, inspection disposal discharge and of hazardous related to sites, and construction-site runoff consul- training for industrial utility application through and its It is clear the ordinance tation. plain express imposed language limitations exceed 160A-311and-314. §§ N.C.G.S. “[r]ates,
Moreover, expressly mandates that N.C.G.S. 160A-314 exceed the charges imposed under this subsection system.” drainage providing stormwater cost of evidence (emphasis added). The uncontroverted 160A-314(al) money City spent only collected fraction of the establishes the the stormwater and constructing the cost of *10 majority spent general were The vast of the fees infrastructure. pollution This exceeds the reduction efforts. programmatic assuming of the statutes. Even plain meaning conferred correct, expansive interpretation majority’s arguendo that the authority. have exceeded its shows the evidence still IN THE SUPREME COURT SMITH CHAPEL BAPTIST CHURCH v. CITY OF DURHAM money admits substantial sums of purposes collected for the of operating “utility” the stormwater city uses, were transferred to other including funds, the sewer and landfill general and even the fund. The $1.8 evidence establishes the transferred over gen- million to the eral Leaving fund alone. question aside the of whether this amounts illegal an or unconstitutional taxation these churches via the utility strawman, appeal, clearly which is not raised on any exceeds interpretation reasonable 160A-314, requires of N.C.G.S.§ which fees not exceed costs.
Additionally, the unreasoned, defendant’s blanket exclusion of all undeveloped (which approximately land 50%of the area producing purports the ordinance to address), defendant’s like exemption types of certain commercially developed properties, very and its diversion portions substantial generated of the funds from the assessed programs “user fees” to unrelated either to cost service in providing any infrastructure or benefit generated received or plaintiff burden churches, if not viola- equal protection, tive of clearly arbitrary seem to be “so and unrea- sonable as deprivation to a liberty amount plaintiff[s’] property, in violation of the Due Process Clause Fourteenth Amendment to the Constitution of the United States or the similar Law of I, 19, the Land Clause Art. of the Constitution of North Carolina.” Taylor, 703, Guthrie v. 713, 279 N.C. 193, 185 S.E.2d (1971). Sperry See also United Corporation, States v. 493 U.S.
107L. Ed. 2d In light of the fact that issue, the ordinance at appli- as well as its cation, express exceeds the limitations plain established meaning of is, 160A-311 believe, §§ and -314 and I violative equal protection I process, uphold and due vote to the determina- tion of the trial court. joins
Justice Orr dissenting opinion. in this