Monticello, Ltd. v. City of Atlanta

• Decision Date: 20 March 1998
• Docket Number: No. A97A1714.,A97A1714.
• Parties: MONTICELLO, LTD. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

499 S.E.2d 157

231 Ga. App. 382

MONTICELLO, LTD. v. CITY OF ATLANTA.

No. A97A1714.

Court of Appeals of Georgia.

March 20, 1998.

Certiorari Denied June 26, 1998.

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, Lawrenceville, for appellant.

Clifford E. Hardwick IV, Lemuel H. Ward, Bernard R. Thomas, Sr., Atlanta, for appellee.

SMITH, Judge.

This appeal presents the issue of whether the City of Atlanta has the authority under its charter to impose solid waste disposal fees upon unoccupied and uninhabitable apartment units owned by appellant Monticello, Ltd. On cross-motions for summary judgment, the trial court granted the city's motion and denied that of the property owner, requiring the owner to pay the fees. The trial court based its grant of summary judgment on the language of the city charter, finding that it authorized the city to assess fees for waste disposal services under these circumstances. The trial court also found that the property owner failed to exhaust its administrative remedies. We disagree and reverse.

Monticello owns an apartment complex located at 3670 Martin Luther King, Jr. Drive ("the property"). The property has 224 units, but 134 of those units are uninhabitable and have not been occupied since 1990. Since 1990, the City of Atlanta has assessed a fee against the property for each of the 224 units for the removal and disposal of solid waste or trash from the units. Because 134 of the 224 units have been unoccupied since 1990, no solid waste or trash was attributable to these units.

Monticello alleges that it was unable to pay these fees and that, in consequence, the city placed fi. fas. or tax liens on the property, making Monticello unable to secure the financing necessary to renovate the unoccupied units and causing Monticello to suffer lost income and profits.

Monticello filed an action in the trial court seeking a declaration that the city was and continues to be without authority to charge waste disposal fees on a per unit basis against the unoccupied units and that the previous assessments were unlawful and void. It sought to have the liens, fi. fas., or tax executions removed from the property's title and also sought damages, alleging an unconstitutional taking and slander of title.

1. Monticello argues that the city has no authority to assess the fees at issue on a per unit basis against unoccupied and uninhabitable units because no actual service is rendered in exchange for the fees assessed. The city contends it is authorized to assess the fees against a property owner for unoccupied and uninhabitable apartment units under the applicable city charter provisions, that Monticello is not exempt from paying the fees under these statutes, and that Monticello has received and continues to receive a benefit from the mere availability of these collection services.

The 1996 Atlanta City Charter § 6-101(f)¹ authorizes the assessment of taxes against all lots and lot owners for sanitary purposes regardless of whether the lots are vacant or in use; the amount of such taxes is determined by the total property frontage abutting the public street. Atlanta City Charter § 6-101(g)² provides for the assessment of fees for the collection, removal, or disposal of solid waste; such fees are to be charged against the owners, or if not owner-occupied, against the occupants of the premises from which the fee is collected and the waste is removed.

The interpretation of statutes, ordinances, and charters presents a question of law for the court. Curlee v. Mock Enterprises, 173 Ga.App. 594, 600, 327 S.E.2d 736 (1985). In considering the relevant sections of the city's charter, we must apply the rules of statutory construction. It is axiomatic that in interpreting a plain and unambiguous enactment we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1(b). We must seek "to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]" Moritz v. Orkin Exterminating Co., 215 Ga.App. 255, 256, 450 S.E.2d 233 (1994). "`[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes "in pari materia," are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.' [Cit.]" Bennett v. Wood, 188 Ga.App. 630, 632(1), 373 S.E.2d 645 (1988). Indeed, "[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning." (Citation and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748(3), 452 S.E.2d 476 (1994).

Any proposed construction, however, "must not result in unreasonable consequences and must square with common sense and sound reasoning. [Cit.]" Ga. Mental Health Institute v. Brady, 263 Ga. 591, 593(2)(b), 436 S.E.2d 219 (1993). Finally, a specific statute prevails over a more general statute when they are in conflict. Id. at 592(2), 436 S.E.2d 219. See also JCS Enterprises v. Vanliner Ins., 227 Ga.App. 371, 373(3), 489 S.E.2d 95 (1997).

Under OCGA § 36-35-3(a), municipal corporations have the power to adopt only "clearly reasonable ordinances, resolutions, or regulations ... for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto." Municipal ordinances inconsistent with a city's charter are invalid. Ga. Branch Assoc. Gen. Contractors, etc. v. City of Atlanta, 253 Ga. 397, 398-399(2), 321 S.E.2d 325 (1984); City of Buchanan v. Pope, 222 Ga.App. 716, 718-719(1)(b), 476 S.E.2d 53 (1996). A grant of power to a municipal corporation must be strictly construed, and any reasonable doubt concerning the existence of a power is resolved by the courts against the municipal corporation. Kirkland v. Johnson, 209 Ga. 824, 825-826(3), 76 S.E.2d 396 (1953). "[A]ll municipal charters are strictly construed, and... powers which are not expressly, or by necessary implication, conferred upon the corporation can not be exercised by it. [Cits.]" City of Macon v. Walker, 204 Ga. 810, 812(2), 51 S.E.2d 633 (1949); Ga. Ry., etc., Co. v. R. Comm. of Ga., 149 Ga. 1, 12, 98 S.E. 696 (1919). Moreover, any discretion left to the municipal corporation must be exercised in good faith. Kirkland, supra at 825(3), 76 S.E.2d 396.

Section 6-101 (f) of the Atlanta City Charter authorizes the city "to assess, levy, and impose taxes on lots and lot owners for sanitary purposes in such amount, rates, or methods of assessment and taxation," while § 6-101(g) specifically authorizes the city "to charge fees for the collection, removal or disposal, or both, of all solid waste," "in addition" to the taxes imposed under § 6-101(f). Construing these charter provisions together, it is clear that § 6-101(f) governs the assessment of taxes, while § 6-101(g) governs the charging of fees. Both sections address sanitation issues, but § 6-101(g) is directly applicable here because it addresses more specifically the ability of the city to charge fees for the collection, removal and disposal of solid waste, whereas § 6-101(f) addresses the ability of the city to tax for sanitary purposes generally. Brady, supra (specific statute governs over more general statute when in conflict).

Additionally, beyond the plain language of the charter, it is clear that in Georgia an assessment for garbage collection services is a fee and not a tax. Levetan v. Lanier Worldwide, 265 Ga. 323, 324(2), 454 S.E.2d 504 (1995) (sanitation assessments for garbage collection and disposal are not taxes but are services for which a fee is charged); Crestlawn Mem. Park v. City of Atlanta, 235 Ga. 194, 195(2), 219 S.E.2d 122 (1975) (assessment for removal of trash and refuse from streets abutting cemetery is not a tax);³ Mayor of Milledgeville v. Green, 221 Ga. 498, 501, 145 S.E.2d 507 (1965) (charges for removing and disposing of garbage are fee for special services). "A tax is an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered. [Cits.]" Gunby v. Yates, 214 Ga. 17, 19, 102 S.E.2d 548 (1958).

A charge for the collection of solid waste cannot be both a tax and a fee, and the plain language of § 6-101(g) designates this as a fee for a service. The language in § 6-101(f) allowing the city's governing body "to prescribe what should constitute a lot for sanitary purposes and assessment" and allowing assessments to be made on vacant lots for tax purposes therefore does not apply to the assessment of fees for the collection of solid waste. The city asserts correctly that § 6-101(d) gives it unlimited discretion to designate the taxes and fees it may assess. But an assessment of a fee for refuse collection against a vacant and uninhabitable apartment cannot be reconciled with the language of § 6-101(g), which states that the fees are "to be charged against the owners or, when not owner-occupied, against the occupants, tenants, or lessees of the premises from which the fee is collected, and from which such waste is removed." (Emphasis supplied.)

Applying the general principles of statutory construction, we find that § 6-101(g) contemplates assessment of a fee only against occupied premises for the removal of waste generated by the occupants, whether owners or tenants. The payment of the fee and the removal of waste are expressed in conjunctive rather than disjunctive language, thus requiring that waste be actually removed from the...