Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant argued that the Bedford Regional Water Authority should be required to charge a reasonable fee for water and sewer connections, the trial court correctly dismissed the claim for lack of evidence.
Overview
Chastain built a house in Bedford County and sought to connect to BRWA’s water and sewer service. “BRWA did not need to install additional lines to facilitate Chastain’s requested connections. Instead, provided he paid certain fees required by BRWA, Chastain would be responsible for making the physical connections to the water and sewer systems while BRWA would add a meter box and related items.
“BRWA charged a $5,000 capital recovery fee to connect Chastain’s house to its water system, a $5,900 capital recovery fee to connect his house to its sewer system, and a $1,500 tap fee to add the meter box and related items.
“BRWA also charged Chastain application and deposit fees and a water meter fee. Chastain declined to pay these fees and attempted to make the connections anyway. As a result, BRWA charged him an additional $1,000 tampering fee. In total, BRWA required that Chastain pay $13,950 before it would permit him to connect to its systems.”
Chastain sought relief in the circuit court. Chastain’s amended petition alleged “that BRWA’s water and sewer connection fees were unreasonable on their face and when compared to neighboring jurisdictions.
“At the close of all the evidence, Chastain stated that he was not disputing ‘what [BRWA’s] costs are and what benefits [BRWA] provides everybody.’
“Instead, he reiterated that ‘the $14,000 [BRWA] charged [him] is unreasonable’ and that BRWA’s fee should be adjusted ‘to be in line with neighboring municipalities.’ After considering the evidence and arguments of the parties, the circuit court stated, ‘I think the reasonable argument can be made’ that BRWA’s connection fee policy ‘becomes an invalid revenue generating device because it is unreasonable and being unequally applied.’
“However, the court proceeded to rule that, ‘[In] the final analysis, do I have a basis for determining the amount, and I’m saying that $14,000, I’ve said it before, I’ll say it again, it’s too much money for a hook up. But what is the amount that is reasonable? Based upon the evidence I have heard, there is no basis for me making such a determination.’
“The court then dismissed Chastain’s petition, stating, ‘I don’t think I have any alternative. … I’ve stated my personal belief, but my personal beliefs from this bench is [sic] supposed to be irrelevant.’ The court then clarified that it was dismissing Chastain’s petition for ‘lack of evidence.’ This appeal followed.
Analysis
“‘[A]s with any other legislative function, the action of [an authority] in setting … connection fees is afforded a presumption of validity.’ … ‘This presumption of legislative validity is a presumption of reasonableness.’ …
“As the Supreme Court has explained: ‘Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of reasonableness. If evidence of reasonableness is sufficient to make the question fairly debatable, the [legislative action] “must be sustained.” If not, the evidence of unreasonableness defeats the presumption of reasonableness and the [legislative action] cannot be sustained.’ …
“Assuming without deciding that Chastain introduced probative evidence of the unreasonableness of BRWA’s connection fee policy, the issue before this Court is whether BRWA presented sufficient evidence to make the reasonableness of its connection fee policy fairly debatable. …
“Chastain argues that BRWA failed to present evidence to make the reasonableness of its fees fairly debatable and that it ‘offered no defense.’ In support of his argument, Chastain contends that the circuit court found BRWA’s fees to be ‘unreasonable.’
“However, the circuit court made no such finding. …[T]he court merely stated its ‘opinion’ that the fees charged to Chastain required ‘too much money’ and clarified that if BRWA ‘complie[s] with the law, it doesn’t make any difference what my opinion is’ based upon the court’s ‘personal sense of right and wrong.’
“Further, although the court later stated that a ‘reasonable argument can be made’ that BRWA’s connection fee policy was ‘unreasonable,’ it made clear that it was not ruling to that effect. Instead, the court dismissed Chastain’s petition because the lack of evidence before it left it without ‘any alternative’ to doing so[.]’ …
“Contrary to Chastain’s contention respecting BRWA’s evidence and ‘defense,’ BRWA introduced evidence demonstrating that it charged connection fees for all new connections based on meter size, as well as to fund the growth and replacement of its infrastructure to sustain its entire system.
“BRWA’s executive director provided examples of systemic infrastructure improvements, their cost, and BRWA’s responsibility to pay for them.
“Further, Chastain specifically did not contest BRWA’s costs to provide benefits to everyone connected to BRWA’s systems, and, therefore, we must view these uncontested costs as accurate.
“Accordingly, we reject Chastain’s arguments and conclude that the record contains evidence sufficiently probative to establish that the reasonableness of BRWA’s connection fee policy is fairly debatable.”
Affirmed.
Chastain v. Bedford Regional Water Authority, Record No. 0233-22-3, Dec. 6, 2022. CAV unpublished opinion (Malveaux; Causey dissenting). From the Circuit Court of Bedford County (Updike Jr.). Clay Chastain, pro se. W. Watts Burks IV for appellee. VLW 022-7-559, 15 pp.
