Williamsburg Water v. Williamsburg County, No. 26107.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Pleicones
• Citation: 627 S.E.2d 690
• Parties: WILLIAMSBURG RURAL WATER AND SEWER COMPANY, INC., Petitioner, v. WILLIAMSBURG COUNTY WATER AND SEWER AUTHORITY, a Body Politic, County of Williamsburg, a Body Politic, and Town of Kingstree, a Body Politic, Respondents.
• Docket Number: No. 26107.
• Decision Date: 06 February 2006

627 S.E.2d 690 WILLIAMSBURG RURAL WATER AND SEWER COMPANY, INC., Petitioner,
v.
WILLIAMSBURG COUNTY WATER AND SEWER AUTHORITY, a Body Politic, County of Williamsburg, a Body Politic, and Town of Kingstree, a Body Politic, Respondents. No. 26107. Supreme Court of South Carolina. Heard November 16, 2005. Decided February 6, 2006. Rehearing Denied March 22, 2006.

Page 691

Larry G. Reddeck, of Nettles, Turbeville & Reddeck, of Lake City, for Petitioner.

W.E. Jenkinson, III, and Ernest J. Jarrett, both of Jenkinson, Jarrett and Kellahan, of Kingstree, for Respondents.

Justice PLEICONES:

We granted certiorari to consider a Court of Appeals decision upholding the grant of summary judgment to respondents (County).¹ Williamsburg Rural Water & Sewer Co., Inc. v. Williamsburg County Water & Sewer Auth., 357 S.C. 251, 593 S.E.2d 154 (Ct.App.2003).² We reverse the Court of Appeals insofar as it affirmed summary judgment on Company's statutory interpretation claim.³

FACTS

The material facts are not in dispute, and a complete recounting may be found in the Court of Appeals' opinion. We have recited a briefer version below.

In January 1995, one of Company's organizers⁴ sent a letter to County's Supervisor notifying County of Company's intent to provide water and sewer services in a portion of County's unincorporated area. In March and April 1995, the organizer appeared before County Council to reiterate Company's plan.

Page 692

The circuit court held the January letter, as well as the March council appearance, satisfied the notice requirements of S.C.Code Ann. § 33-35-90, and that County's failure to respond within the statutory period was the equivalent of consent. Section 33-35-90, repealed in October 2000 and replaced by § 33-36-270,⁵ provided in relevant part:

[P]rior to providing any of the services authorized in this section, nonprofit corporations or groups intending to organize such corporations shall first notify the governing body, of the county or municipality in which the services are to be provided, of their intentions and the nature of such services. The governing body shall, from the date of such notification, have a period of ninety days in which to approve the request to provide such services or inform the persons requesting permission to provide such services that the governing body intends to provide for such matters as a public function of the government. Any such notification of intent by the governing body shall include a detailed description of the area to be served, the services to be provided and the time schedule under which such services will be available from the county or municipality.

(Emphasis supplied).

County has not challenged the finding that it received the statutory notice on January 16, 1995, or that it was deemed to have consented to Company's proposal.

While County did not affirmatively respond to Company's notice, it took up a franchising ordinance (Franchising Ordinance) which would permit it to grant water and sewer franchises in County, including the area Company wished to service. The Franchising Ordinance received its first reading on March 6, 1995, its second in June, and its third in August, and was adopted on August 7, 1995. In October 1995, Company was notified that its application for funding from the federal government could not be processed until it received a franchise pursuant to the Franchising Ordinance. More than one year later, in November 1996, a referendum allowing County itself to provide water and sewer services in Company's area passed.

In May 1998, County and/or its Water and Sewer Authority applied for federal funding to construct its system. In November 1998, it solicited bids to construct facilities in an area within Company's area, and awarded a construction contract that month. This suit followed.

Among Company's claims was that it had acquired an exclusive right to provide water and sewer services in the area identified in its 1995 notice by operation of § 33-35-90. The circuit court granted County summary judgment on this claim, and the Court of Appeals affirmed. We reverse.

ISSUE

Whether County was entitled to summary judgment on the statutory interpretation issue?

ANALYSIS

The Court of Appeals' majority held that summary judgment was properly granted to County because while Company acquired the right to provide service in the area specified in its January 1995 letter by virtue of § 33-35-90, nothing in that statute provided that the right was exclusive. The Court of Appeals was persuaded of this conclusion, at least in part, because Company has no existing facilities. The Court of Appeals' majority seemed to rest its decision on the fact that other providers were up and operating in the contested area:

The difficulty of this case lies in giving effect to the rights acquired by [Company] as a result of the County's failure to comply with section 33-35-90. If this statute is to have any meaning, there must be some enforceable quality belonging to those rights; otherwise, a party obtaining approval under this statute receives, in effect, nothing at all. Complicating the matter is the fact that during the pendency of this appeal, the County awarded numerous franchises affecting the disputed area,

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and those facilities are presently under development for the benefit of the people of Williamsburg County. Thus, in this case, valid but competing interests are diametrically opposed. An unfortunate result of our ruling today is that [Company] likely possesses a right which has little commercial value in light of the County's intrusion into the designated service...