North Carolina Lawyers Weekly
For the owners of undeveloped lots on Oak Island, there are complex, costly additional requirements – many of them conditional – they must fulfill in order to benefit from Oak Island’s sewer services; therefore, such services are not “available” – i.e., “present or ready for immediate use” – by those owners. Consequently, Oak Island may not charge the owners of undeveloped lots sewer service availability fees.
We reverse summary judgment for the defendant-town.
2004 N.C. Sess. Laws 117, ch. 96 authorizes Oak Island to impose sewer service availability fees upon the “owners of each dwelling unit or parcel of property that could or does benefit from the availability of sewage treatment” within its sewer treatment district.
The town imposed such fees on both developed and undeveloped properties. However, we agree with plaintiffs that their undeveloped properties are not ones that “could or do[] benefit from the availability” of the town’s sewage treatment services.
Although the session laws do not define the term “availability” for purposes of imposing the sewer service availability fees, it is clear that the enabling session laws do not, as a matter of law, apply to plaintiffs’ undeveloped property.
“Available” means “present or ready for immediate use.” In order to “benefit from the availability” of Oak Island’s sewer system, the owner of an undeveloped parcel of property would first be required to (1) obtain the requisite building permits; (2) construct a dwelling or building with a sewer system connection on the property; (3) have the improvements pass municipal inspection; (4) obtain a plumbing permit; (5) submit an application for service; and (6) meet any additional requirements governing the improvement of property set forth in the town’s Code of Ordinances. Should the system have the capacity to add and serve the parcel, an owner of undeveloped property who wished to connect to the system would also have to pay the requisite fees to Oak Island in order to obtain the various permits. The complex, costly additional requirements—many of them conditional— that the owner of an undeveloped lot must fulfill in order to benefit from Oak Island’s sewer services foreclose any conclusion that such services are “present or ready for immediate use” by those owners.
Our holding finds further support in the circumstances under which property may be subject to an “availability charge” under G.S. § 160A-317, which governs a municipality’s authority to require property owners to connect to its sewer facilities and to charge for such connections. Specifically, the statute authorizes municipalities to “require an owner of developed property on which there are situated one or more residential dwelling units or commercial establishments … to connect the owner’s premises with the [city’s] … sewer line.” Alternatively, municipalities may subject such owners to “a periodic availability charge” in lieu of connection.
The session laws’ language “could … benefit from the availability of sewage treatment” follows the same logic of § 160A-317. The fact that it would be outside the scope of Oak Island’s authority under § 160A-317 to charge plaintiffs an “availability charge” for its sewer services suggests that those services are similarly not “available” to plaintiffs for purposes of the session laws.
Beyond the initial assessment imposed, Oak Island’s additional and ongoing charges to plaintiffs, as owners of undeveloped properties, for sewer service availability was not a valid exercise of statutory authority pursuant to Session Law 2004-96.
Plaintiffs failed to obtain rulings on their motions to amend their pleadings, so those issues are not properly before us.
Reversed and remanded.
Dissent
(Collins, J.) Plaintiffs’ parcels, while not presently served by the town’s sewage collection and treatment plant, “can be served” by the town’s sewage collection and treatment plant when they are connected to the sewer lines in the future.
Moreover, the session law contemplates the levying of fees upon owners of undeveloped parcels of property that indirectly benefit from the sewer system but are not currently connected to the system, and that could directly benefit from the system upon connection. Furthermore, parcels which can never be developed — and thus can never be served by the sewage collection and treatment plant — can be exempted from paying fees.
As the plain language of the session law authorizes Oak Island to impose fees upon all owners of developed and undeveloped parcels of property within the town’s fee-supported sewer district as a result of sewer service being available within the district, Oak Island was authorized to impose fees upon plaintiffs.
Had the legislature intended for the session law to impose annual fees for the availability of sewer service within the district only upon owners of developed property, the legislature could have mirrored the language in § 160A-317(a) when drafting the session law, making it applicable only to “an owner of developed property on which there are situated one or more residential dwelling units or commercial establishments”.
In addition, the fee is not a taking because it is a reasonable user fee imposed for the reimbursement of the cost of government services and is a fair approximation of the cost of benefits supplied.
Finally, the fees are not a tax because they are specifically allocated to pay down the debt on Oak Island’s sewer system, which provides a purely local improvement to the residents of Oak Island and helps a limited class of citizens by providing them with benefits different from those of the general public.
Boles v. Town of Oak Island (Lawyers Weekly No. 011-170-19, 39 pp.) (Valerie Zachary, J.) (Allegra Collins, J., concurring in part and dissenting in part) Appealed from Brunswick County Superior Court (James Ammons, J.) Norman Smith for plaintiffs; Charles Meeker, Stephen Carey and Brian Edes for defendant. N.C. App.
