Home / Fulltext Opinions / Supreme Court of Virginia / TWIETMEYER, ET AL. v. CITY OF HAMPTON



February 27, 1998
Record No. 971042





Walter J. Ford, Judge
PRESENT: All the Justices

This appeal involves the validity of an interim ordinance
adopted by the City of Hampton to impose a stormwater management
fee on real property owners. Gregory M. and Rita F. Twietmeyer
(the Twietmeyers) refused to pay the fee. They contend that the
ordinance does not base the fee on a property’s contribution to
stormwater runoff, and thus, does not comply with the enabling
statute, Code ? 15.1-292.4.[1] Because the Twietmeyers failed
to overcome the ordinance’s presumption of validity, we will
affirm the circuit court’s judgments against the Twietmeyers.


Code ? 15.1-292.4[2] authorized local governments to
adopt stormwater control programs and to impose charges on
property owners to finance the cost of the programs. Pursuant to
Code ? 15.1-292.4, the City adopted an interim stormwater
management fee ordinance, Hampton City Code ? 33.1-16,[3] (the Ordinance), which became
effective on July 1, 1993.

At that time, the Twietmeyers jointly owned seven parcels of
residential property in the City. During the fiscal year July 1,
1993, through June 30, 1994, the Twietmeyers did not pay the
stormwater management fees assessed by the City on any of their
parcels of land. Thus, on March 18, 1996, the City filed seven
motions for judgment against the Twietmeyers in the General
District Court for the City of Hampton to collect the stormwater
management fees attributed to or levied upon their parcels. In
response, the Twietmeyers asserted that the Ordinance does not
comply with Code ? 15.1-292.4. The general district court
consolidated the actions and entered judgment against the
Twietmeyers for $210. The Twietmeyers then appealed to the
Circuit Court of the City of Hampton.

Neither the Twietmeyers nor the City presented any testimony
before the circuit court. The Twietmeyers did, however, introduce
into evidence a Feasibility Study of Stormwater Management
Financing Alternatives dated April 13, 1993, and prepared for the
City by the consulting firm of Black & Veatch (Black &
Veatch Study). The Black & Veatch Study recommended that the
interim fee be based upon "equivalent residential
units," that a residential parcel be equal to one such unit,
and that a commercial parcel be equal to five units. The Study
also stated that stormwater user fee structures are generally
based on such parameters as impervious area, percentage of
impervious area, gross area and intensity of development, or
gross area and type of development.

The Twietmeyers again argued that the Ordinance fails to
assess the fee on the basis of a property’s contribution to
stormwater runoff as required by Code ? 15.1-292.4. In support
of their argument, they relied primarily on an Attorney General
Opinion, which concluded that the Ordinance lacks any rational
connection between the amounts charged and runoff contributions. Conservation:
Flood Protection and Dam Safety – Stormwater Management
, 1995
Op. Va. Att’y Gen. 91.

After argument by the parties, the circuit court entered seven
judgments against the Twietmeyers in the amount of $30 each, for
a total of $210. Each judgment involves a "matter not merely
pecuniary." Code ? 8.01-672. Thus, this Court is not
prevented from exercising jurisdiction because of the amount of
each judgment. The Twietmeyers appeal.


Our review of the Twietmeyers’ challenge to the City’s
Ordinance is guided by established principles regarding an
ordinance’s presumption of validity:

Municipal corporations are prima facie the sole judges of
the necessity and reasonableness of their ordinances, and
"the presumption of their validity governs unless it is
overcome by unreasonableness apparent on the face of the
ordinance or by extrinsic evidence which clearly establishes
the unreasonableness. This presumption is based upon the
broad general principle that every intendment will be made in
favor of the lawfulness of the exercise of municipal

Town of Narrows v. Clear-View Cable TV, Inc., 227 Va.
272, 280, 315 S.E.2d 835, 839-40, cert. denied, 469 U.S.
925 (1984) (quoting National Linen Service v. Norfolk, 196
Va. 277, 279, 83 S.E.2d 401, 403 (1954)). Thus, for the
Twietmeyers to prevail, the Ordinance must be unreasonable on its
face, or they must present evidence clearly proving its
unreasonableness. We also "accord the trial court’s finding
a presumption of correctness." Tidewater Ass’n of
Homebuilders, Inc. v. City of Virginia Beach
, 241 Va. 114,
122, 400 S.E.2d 523, 528 (1991).

Applying this standard of review, we first address the
Twietmeyers’ argument that the Ordinance is facially
unreasonable. They assert that, since the Ordinance contains only
two categories of fees, residential and non-residential, and does
not differentiate between properties within each category on the
basis of other factors such as impervious area or type of
development, the Ordinance does not satisfy the mandate of Code
? 15.1-292.4(B). In sum, they contend that no correlation exists
between the fees and a property’s contribution to stormwater
runoff. We do not agree.

Although the Ordinance uses the term "flat rate," it
does not charge all properties in the City the same fee. Rather,
the Ordinance, on its face, imposes a higher fee on
non-residential property at a ratio of five times the fee imposed
on residential property.[4]
Thus, considering the Ordinance solely on its face, we find that
its fee structure is neither unreasonable nor based on some
factor other than the amount of contribution to stormwater
runoff. Indeed, the Attorney General, in the opinion relied on by
the Twietmeyers, stated that "a locality adopting such
service charges may need to impose an initial schedule of charges
that categorizes properties in some manner that only
approximates, on an average basis, their respective runoff
contributions." Conservation: Flood Protection and Dam
Safety – Stormwater Management
, 1995 Op. Va. Att’y Gen. 91,
92. Because the Ordinance differentiates between residential and
non-residential property, we conclude that the fee charged bears
a rational correlation to the amount of stormwater runoff.

The Twietmeyers, nevertheless, argue that our decision in Violett
v. City Council of Alexandria
, 92 Va. 561, 23 S.E. 909
(1896), prescribes a different result. We do not agree. In that
case, Alexandria’s charter provided that whenever a street was
laid out, paved, or repaved, Alexandria could charge two-thirds
of the expenses to "the owners of the real estate benefitted
thereby." Id. at 562, 23 S.E. at 909. Alexandria,
however, assessed property owners on the basis of the property’s
frontage on the improved street. We framed the question on appeal

[W]hen the Legislature has delegated the authority to
cities or towns to assess the expense on the lots or property
benefited, whether such a delegation of power limits the
municipal authorities as to the mode of making the
assessment, or whether, having such authority, they may
select the mode of apportioning the expense, and impose it by
the front foot, square foot, or value . . . .

Id. at 577-78, 23 S.E. at 914.

We concluded that Alexandria’s assessment was invalid because
the mode of assessment, the property’s frontage on the improved
street, differed from the mode authorized, the property benefited
by the improvement. Id. at 580, 23 S.E. at 915. Unlike the
assessment in Violett, the City’s Ordinance does not
employ an unauthorized mode of assessment. On its face, the
Ordinance differentiates between residential and non-residential
property, and we cannot say that the differentiation bears no
relation to a property’s contribution to stormwater runoff.

We also find the Twietmeyers’ reliance on authorities
discussing a municipal corporation’s taxing power to be
misplaced. The General Assembly granted the City the authority to
enact the Ordinance under its police powers. The fee is tied
directly to the administration of stormwater management and is
not meant to raise general revenue. Thus, the stormwater
management fee is a regulation, not a tax. City of Virginia
Beach v. Virginia Restaurant Assoc.
, 231 Va. 130, 134, 341
S.E.2d 198, 200 (1986); see also Weber City Sanitation
Commission v. Craft
, 196 Va. 1140, 1151, 87 S.E.2d 153, 160
(1955) (holding that a charge for use and service of water system
is not a tax).

Finally, we deny the Twietmeyers’ request that the Court adopt
the Attorney General’s Opinion that the Ordinance lacks any
rational connection between the amounts charged and runoff
contributions. "While [the opinion is] entitled to due
consideration, [it is] not binding on this Court." Virginia
Restaurant Assoc.
, 231 Va. at 135, 341 S.E.2d at 201.

Since the Ordinance is not facially unreasonable and the
Twietmeyers did not present any evidence of unreasonableness, the
presumption of validity governs. Town of Narrows, 227 Va.
at 280, 315 S.E.2d at 839-40. Therefore, we will affirm the
judgments of the circuit court.




KOONTZ join, dissenting.

I respectfully dissent from the majority’s decision to uphold
the validity of the ordinance at issue in this case. In my
opinion, the threshold question to be decided is not whether the
ordinance is reasonable or unreasonable, as the majority posits,
but whether, in adopting the ordinance, the City of Hampton acted
within the bounds of the authority granted by the General
Assembly in Code ? 15.1-292.4. Only if the threshold question is
answered in the affirmative would the question of reasonableness
ever be reached.

In my view, the answer to the threshold question should be in
the negative, and I think the fact that the City exceeded its
authority appears from the face of the ordinance itself. Code ?
15.1-292.4 provides that service charges for stormwater control
programs assessed to property owners and occupants "shall be
based upon their contributions to stormwater runoff." This
language clearly envisions some sort of individualized treatment
of the different parcels of land in the city. Yet, the Hampton
ordinance authorizes flat rate stormwater management fees
for all properties in the city. The flat-rate language
ignores the concept of individualized treatment and disregards
the statutory requirement that the charges should be based upon
contributions to stormwater runoff.

Nor, in my opinion, is the situation saved for the City by the
fact that different rates are prescribed for residential
properties and non-residential properties. The flat-rate evil of
the assessment permeates the entirety of each of the two classes
of property, still ignoring the concept of individualized
treatment and disregarding the statutory requirement that the
charges should be based upon contributions to stormwater runoff.

Accordingly, I would reverse the judgment of the trial court.






[1] This section was originally
codified in Code ? 15.1-292.4, but is now codified in Code ?
15.2-2114. For purposes of this opinion, references are to the
section in effect at the commencement of this action.

[2] Code ? 15.1-292.4 stated in
pertinent part:

Regulation of stormwater. – A. The governing body of
every county, city or town, by ordinance, may adopt a stormwater
control program consistent with Article 1.1 (? 10.1-603 et seq.)
of Chapter 6 of Title 10.1, or any other state or federal
regulation, by establishing a utility or enacting a system of
service charges. Any locality which administers a stormwater
control program may recover costs associated with planning,
design, land acquisition, construction, operation and maintenance
activities. Income derived from these charges shall be dedicated
special revenue . . . .

B. The charges may be assessed to property owners or
occupants, including condominium unit owners or tenants . . . and
shall be based upon their contributions to stormwater runoff . .
. .

[3] Section 33.1-16 of the Hampton
City Code provides as follows:

Stormwater management fees.

(a) Interim flat-rate stormwater management fees are hereby
authorized for all properties in the city of Hampton, regardless
of tax exemption, with the exception of property owned by the
city of Hampton or a unit of the city which shall receive a full
waiver of charges. The following monthly rates shall apply to
each month since the effective date of this ordinance or the last
assessment billing, whichever constitutes the fewer months:

Monthly Rate

Residential Properties $ 2.50

Non-residential Properties $12.50

Residential and Non-Residential (which shall consist of all
other properties grouped together) properties shall be as defined
by the city assessor.

The City argued that it actually had three classifications of
property because it adopted a resolution in February 1994 that
remitted fees charged for undeveloped properties, whether zoned
residential or commercial. However, we base our decision on the
two categories contained in the Ordinance.