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concluding that an increased rate on all customers to fund a new treatment plant "did not reflect any services yet to be furnished, but merely the same service which had previously been furnished"
Summary of this case from Quality Built Homes Inc. v. Town of CarthageOpinion
No. 98A81
Filed 3 March 1982
Municipal Corporations 4.4 — increase in water and sewer rates — payment for plant not yet in operation
The Town of Spring Hope acted within its statutory authority when it increased water and sewer charges to pay for a new waste water treatment plant prior to the time the new plant began operation. G.S. 160A-314 (a).
APPEAL by defendant Ben T. Bissette from the decision of the Court of Appeals reported at 53 N.C. App. 210, 280 S.E.2d 490 (1981), reversing and remanding the judgment of Ezzell, Judge, entered at the 20 March 1980 Civil Session of District Court, NASH County, in favor of defendant Bissette. The case was argued in the Supreme Court as No. 98, Fall Term 1981.
Valentine, Adams Lamar, by Stephen M. Valentine, for plaintiff-appellee.
Ben T. Bissette, defendant-appellant, pro se.
Justice MEYER concurring.
Justices COPELAND, CARLTON and MITCHELL, join in the concurring opinion.
Justice EXUM dissenting.
The facts of the case are not in dispute. The Town of Spring Hope has for some time maintained a water and sewer system for its residents. In 1971 the Town was informed by the State Department of Water and Air Resources that its waste water treatment facility was inadequate to protect the receiving waters of Hendricks and Sapony Creeks, into which the treated water was discharged, and that the Town must take remedial action. The Town was notified that its permit to discharge waste into Hendricks Creek had expired and was granted a temporary permit to discharge waste into Hendricks Creek after it had submitted a time schedule for upgrading the facilities to meet current Water and Air Resources standards.
In order to meet State standards it was necessary for the Town to construct a new waste water treatment facility. Government grants paid for a large portion of the project, and most of the remainder of the cost was defrayed by the issuance by the Town of sanitary sewer bond anticipation notes. In June of 1979 the Town increased its water and sewer rates "to finance the new water treatment plant, both its construction, operation and maintenance."
Appellant operated a launderette in the Town of Spring Hope during the first month in which the new rates took effect. During that month the new waste water treatment facility, although substantially completed, had not yet begun operation. Appellant paid that portion of his bill denominated as the charge for water service. He refused to pay the portion of the bill denominated as the charge for sewer service, contending that only users of the new facility should be required to pay. Since he did not use the new facility during the billing period (and, indeed, never used the facility because he went out of business before the facility began operation), appellant felt he should not have to pay the increased billing rates.
The Town brought this action to recover $306.00 from appellant representing the sewer charges which he had refused to pay. The District Court found facts substantially in accord with the facts above recited and concluded:
3. The Town has complied with all laws in connection with the increase of rates, but since the increase in rates was made necessary to finance new waste water treatment facilities and since the defendant was not a user of the new waste water facility during the time covered by the bill, he is not required to pay the sewer portion of the bill.
Plaintiff Town appealed and the Court of Appeals, speaking through Judge Wells with Judge Vaughn concurring and Judge Clark dissenting, reversed holding "that the trial court entered its judgment under a misapprehension of applicable law." Town of Spring Hope v. Bissette, 53 N.C. App. 210, 213, 280 S.E.2d 490, 493 (1981). Defendant Bissette appealed as of right pursuant to G.S. 7A-30 (2).
The Town of Spring Hope was authorized to establish and revise rates for water and sewer services under the following statutory language:
A city may establish and revise from time to time schedules of rents, rates, fees, charges, and penalties for the use of or the services furnished by any public enterprise. Schedules of rents, rates, fees, charges, and penalties may vary according to classes of service, and different schedules may be adopted for services provided outside the corporate limits of the city.
G.S. 16OA-314 (a). This rate-making function is a proprietary rather than a governmental one, limited only by statute or contractual agreement. Aviation, Inc. v. Airport Authority, 288 N.C. 98, 215 S.E.2d 552 (1975). See also Sides v. Hospital, 287 N.C. 14, 213 S.E.2d 297 (1975); Woodie v. North Wilkesboro, 159 N.C. 353, 74 S.E. 924 (1912). Appellant does not allege any contractual limitations on the Town's authority to raise sewer rates, but argues that the rate increase in instant case exceeds the authority granted the Town under the above-quoted statute.
In its opinion below, the Court of Appeals noted:
The great weight of authority is to the effect that in the setting of such rates and charges, a municipal body may include not only operating expenses and depreciation, but also capital cost associated with actual or anticipated growth or improvement of the facilities required for the furnishing of such services. See generally Annot., 61 A.L.R.3d 1236 (1975); 12 McQuillin, Municipal Corporations, 35.37c., at 488 (3d Ed. 1970); C. Rhyne, Municipal Law 23-7, 500-501 (1957); 3 Yokley, Municipal Corporations 503, at 214-19 (1958).
Spring Hope v. Bissette, 53 N.C. App. at 213, 280 S.E.2d at 492-93. It is in light of this general authority that we proceed to consider whether our statute authorized the Town to charge an increased sewer rate based upon the expense of replacing an outmoded component of that system prior to the time the new component began operation.
Appellant argues that G.S. 160A-314(a) does not authorize the Town of Spring Hope to increase its charge for sewer services to reflect the cost of the new waste water treatment plant until such time as the new plant begins operation. Appellant relies on the language of the statute which speaks only of "services furnished" and does not specify that a municipality can charge for services "to be furnished." Cf. G.S. 162A-9. The dissent in the Court of Appeals adopts this position.
While we agree that under this statute a municipality may not charge for services "to be furnished," we fail to see how that proposition governs this case. Appellant was charged for sewer service, a service he received during the period for which he was billed and now refuses to pay. Construction of the new water treatment plant was not intended to, nor did it result in, providing a new or a higher level of service to the sewer system's customers. When the new plant went into operation, the customers received nothing they had not theretofore received; thus, the increase in the rate did not reflect any services yet to be furnished, but merely the same service which had previously been furnished, i.e., the efficient removal of waste water. The increase in the rate, far from being a charge for a new service not yet provided by the Town, represented the cost of a necessary improvement to the already existing sewer system without which the Town could not continue to provide sewer service.
The Town of Spring Hope acted well within its statutory authority when it increased water and sewer charges to pay for the new waste treatment facility. The Town was not required by the language of G.S. 160A-314 (a) to wait until the plant began operations to institute such increases.
Neither were the increases unreasonable. Raising the rates was necessary to service the debt created by the bonds the Town issued to finance construction of the plant. Without the new facility the Town would not have been allowed to continue to discharge its waste into Hendricks Creek and, without this outlet for waste water, the Town would have been unable to continue to provide sewer service. Obviously the temporary permit was granted upon the Town's assurances that the treatment facilities were being upgraded. Without this temporary permit, the Town would not have been able to provide to appellant the full benefit of sewer service, which he admits he received.
The Town's action in raising the rates was of necessity, and we agree with the Court of Appeals that appellant has made "no showing of arbitrary action in the case now before us . . . ." Town of Spring Hope v. Bissette, 53 N.C. App. at 213, 280 S.E.2d at 493.
The decision of the Court of Appeals is
Affirmed.