Densmore v. Jefferson County

• Decision Date: 21 September 2001
• Citation: 813 So.2d 844
• Parties: Ray DENSMORE et al. v. JEFFERSON COUNTY et al.
• Court: Alabama Supreme Court

813 So.2d 844

Ray DENSMORE et al. v. JEFFERSON COUNTY et al.

1000264.

Supreme Court of Alabama.

September 21, 2001.

Barry A. Ragsdale of Ivey & Ragsdale, Birmingham, for appellants.

Jeffrey M. Sewell, county atty., Birmingham, for Jefferson County and Charles H. Crim.

Helen Currie Foster of Graves, Dougherty, Hearon & Moody, Austin, Texas; and Emily Sides Bonds and Alan M. Warfield of Walston, Wells, Anderson & Bains, L.L.P., Birmingham, for Storm Water Management Authority, Inc.

MADDOX, Retired Justice.

This appeal is from a summary judgment entered in favor of the defendants. It involves the constitutionality of an act of the Legislature relating to the discharge of storm waters in Jefferson County and municipalities located therein or partially therein.

The specific legal issues presented are (1) whether Act No. 95-775, Ala. Acts 1995, codified at § 11-89C-1 et seq., Ala. Code 1975 ("the Storm Water Act"), is a local act that was not properly advertised, (2) whether the codification of the Act into the Code by the Legislature had the effect of making it a general act, and (3) whether the storm-water fees authorized by Jefferson County Ordinance No. 97-1532, adopted pursuant to the provisions of the Act, amount to an unconstitutional levy.

After carefully reviewing the law relating to the effect codification of a statute has on the classification of a law as being "general" or "local," we conclude that the trial court properly entered the summary judgment in favor of the defendants as to this issue. Furthermore, after reviewing the methodology used to implement the Act, as shown by the record before us, we conclude that the summary judgment was proper as to this issue also. Consequently, we affirm.

I.

The Storm Water Act was adopted by the Legislature in 1995. In the preamble to the Act, the Legislature stated, in pertinent part:

"(a) The Legislature finds and declares that it is in the public interest and the health, safety, and welfare of the citizens of this state and within the police power of the state, county, and municipal governments to promote effective and efficient compliance with federal and state laws, rules, regulations, and municipal permits relating to storm water discharges into municipal separate storm sewers, and to promote and authorize the discovery, control, and elimination, wherever practicable, of that discharge at the local government level.

"(b) It is the intention of the Legislature by passage of this chapter to assist the state in its implementation of the storm water laws, and to supplement the authority of the governing bodies of all counties and municipalities in the state to enable them to implement the storm water laws.

"(c) It is further the intention of the Legislature to authorize and promote the intercooperation of the governing bodies in implementing the storm water laws and the purposes of this chapter.

"(d) It is further the intention of the Legislature to authorize governing bodies to determine the methods and procedures they shall use to carry out the storm water laws and this chapter, to make their respective participation in a public corporation intercooperation program optional, and to adopt policies and procedures pertaining to their responsibilities in the program and the procedure for entry into and exit from the program. It is the intention of the Legislature to grant the governing bodies, whether in the program or acting individually, the enforcement authority needed in order to satisfy the requirements of storm water laws, further, to act by resolution or ordinance enforceable in their respective municipal courts or the district courts and by civil procedures in district and circuit courts, including fines, penalties, damages, and injunction as authorized and appropriate. It is the intention of the Legislature to grant governing bodies the authority to determine their financial needs to fund the administration, operations, and projects of the program, their individual needs, and the methods to generate and collect the necessary revenue and to authorize the use of the assessment, billing, and collection capabilities and authority of the respective county tax assessors and tax collectors for that purpose."

§ 11-89C-1, Ala.Code 1975.

Section 11-89C-2 defined, in pertinent part, the term "governing body":

"(1) Governing body. The governing bodies of all Class 1 municipalities within the state and the county governing bodies in which the Class 1 municipalities are located and the governing bodies of all municipalities located within those counties, and where any such municipality is also located partially within an adjoining county, then the governing body of such adjoining county, and which governing bodies are specifically designated in 40 C.F.R. Part 122, Appendices F, G, H, or I or by ADEM pursuant to the authority delegated to it under the Clean Water Act, 33 U.S.C. Section 1251 et seq., as of August 8, 1995."

It seems apparent from a reading of this section of the Storm Water Act that the Act would apply in Jefferson County at the time of its enactment. The parties stipulated that the legislation was not advertised as the Constitution of 1901 would require for local legislation.

In March 1997, acting pursuant to the provisions of the Storm Water Act, Jefferson County, along with 23 municipalities located within Jefferson County or partially therein, formed the Storm Water Management Authority, Inc., and, as authorized by the Storm Water Act, the Jefferson County Commission approved Ordinance No. 97-783, in July 1997, entitled: "An Ordinance to levy storm water management program fees on parcels of property located within the unincorporated limits of Jefferson County." The Ordinance provided, in part:

"1. Under the authority of Act 95-775, the County Commission hereby levies upon each parcel of real property or portion thereof located within the unincorporated limits of Jefferson County a fee to be determined as follows for the purpose of funding the storm water management program, including the Storm Water Management Authority, Inc. and to comply with the requirements of NPDES Permit ALS000001 held by the County jointly with other municipalities in Jefferson County.

"2. Alternatively, pursuant to the police power of the Jefferson County Commission, the County Commission hereby levies upon each parcel of real property or portion thereof located within the unincorporated limits of Jefferson County a fee to be determined as follows for the purpose of funding the storm water management program, including the Storm Water Management Authority, Inc. and to comply with the requirements of NPDES Permit ALS000001 held by the county jointly with other municipalities in Jefferson County:

"A. The fee is levied on properties designated by the Jefferson County Tax Assessor pursuant to Amendment 325 to the Constitution of Alabama, 1901, and § 40-8-1, Code of Alabama, 1975, as Class I and class II land use classification in the amount of $15 per parcel or portion thereof located in the unincorporated limits of Jefferson County.

"B. The fee is levied on the properties designated by the Jefferson County Tax Assessor pursuant to Amendment 325 to the Constitution of Alabama, 1901, and § 40-8-1, Code of Alabama, 1975, as Class III land use classification in the amount of $5 per parcel or portion thereof located in the unincorporated limits of Jefferson County."

The original plaintiffs, Phillip Ford and Shannon Ford, filed this class action on March 2, 1998, challenging the constitutionality of the Storm Water Act and the storm-water fee imposed by the county ordinance.¹ They named as defendants the Jefferson County Commission, the Storm Water Management Authority, and the tax assessor of Jefferson County.

The plaintiffs amended the complaint to add Ray Densmore and Brenda Densmore, the appellants here, as plaintiffs and the 23 municipalities in Jefferson County as defendants; the plaintiffs subsequently moved to dismiss the original plaintiffs, and they were dismissed.

The defendants timely answered the complaint and filed a counterclaim for a declaratory judgment; they subsequently filed a motion to dismiss or, in the alternative, a motion for summary judgment. The motion was accompanied by supporting affidavits and other documents. After receiving briefs from the parties and hearing oral argument from both sides, the trial court granted the defendants' motion for summary judgment, holding that the Storm Water Act had been properly enacted as a general law and that any constitutional infirmities in the Storm Water Act had been cured when the Act was codified into the Code of Alabama and carried into the Cumulative Supplement to the Code. The plaintiffs appealed. The two arguments that both sides address are whether the Storm Water Act was a local act that was not properly adopted by the Legislature and whether the fees imposed on property owners were valid and enforceable.

II.

We first state the scope of our review, which was recently stated in Watkins v. Board of Managers of the City of Birmingham Retirement & Relief System and Firemen's & Policemen's Supplemental Pension System, 802 So.2d 190 (Ala. 2001): when reviewing a ruling on a motion for a summary judgment, this Court applies the same standard the trial court used in determining whether the evidence before the court made out a genuine issue of material fact. When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547...