North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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September 27, 1993

Mr. Bill Steimer University Attorney UNC-Charlotte UNCC Station Charlotte, NC 28223

Re: Advisory Opinion; State Agency Liability for Stormwater Service Fees; Chapter 160A, Article 16.

Dear Mr. Steimer:

The University of North Carolina at Charlotte (hereinafter "the University") has inquired whether it is legally obligated to pay bills which the City of Charlotte has presented for stormwater drainage. Based on our discussions and research, it is the opinion of this office that the University is not legally obligated to pay these bills.

In August of 1993, the City of Charlotte presented a bill for $3,465.87 to the University to cover stormwater runoff service fees. The City asserted that it had the right to charge the University that sum under a City ordinance adopted pursuant to authority granted the city under Article 16, Chapter 160A of the General Statutes as appended by 1991 (Reg. Sess., 1992) N.C. Sess. Laws c. 944, s. 14. The University's obligation to pay the bills depends upon an analysis of the City's authority under Article 16, Chapter 160A.

N.C. Gen. Stat. § 160A-312 authorizes a city to maintain, own and operate any of the "public enterprises" specified in N.C. Gen. Stat. § 160A-311. N.C. Gen. Stat. § 160A-311(10) provides that "(s)tructural and natural stormwater and drainage systems of all types" are included within the definition of "public enterprises." N.C. Gen. Stat. § 160A-314 authorizes cities which operate public enterprises to establish schedules for rates, rents, fees, charges and penalties for the public enterprises which it operates and to collect those fees by any remedy provided by law for collecting and enforcing private debts.

Although Article 16, Chapter 160A clearly grants the city the legal authority to operate a stormwater and drainage system and assess and collect fees from private entities, it does not provide a sufficient basis for such assessment and collections from State agencies. The doctrine of sovereign immunity and the rules of statutory construction related thereto generally provide that statutes do not apply to the State unless the legislature expressly declares its intent that the law apply to the State. See, State v. Taylor, 322 N.C. 433 (1988) and Yancey v. Highway and Public Works Commission, 222 N.C. 106 (1942); see also Rowan County Board of Education v.

U.S. Gypsum Company, 332 N.C. 1 (1992). Article 16, Chapter 160A does not specifically authorize cities to assess or collect fees from the State for any public enterprises. Consequently, the statute alone provides no legal basis for the University's obligation.

The absence of express statutory authority to assess the University stormwater drainage fees does not preclude the city and the University from reaching some mutually agreeable solution for handling the University's stormwater runoff. A review of the several statutes included in Article

16, Chapter 160 reveals that the General Assembly clearly intended a city's construction, maintenance and operation of structural and natural stormwater drainage systems to be a service which it may provide to its citizens. For example, N.C. Gen. Stat. § 160A-312 provides that a city shall have authority to operate "all of the public enterprises defined in this article to furnish services to the city and its citizens." N.C. Gen. Stat. § 160A-314(a) provides that the city may establish fees "for the use of or the services furnished by any public enterprise." N.C. Gen. Stat. § 160A-314(a1) also provides that the rates "for providing structural and natural stormwater and drainage system service may vary according to [the characteristics of the property]." Thus, it is evident that the General Assembly intended the city's construction, operation and maintenance of structural and natural stormwater drainage systems to be a service it might provide to its citizens.

Given that the legislature intended the establishment, operation and maintenance of a stormwater and drainage system to be a service, it is our opinion that the city's operation of a stormwater and drainage system constitutes an offer such services to the University. The University could decide to accept the city's offer of drainage services and enter into a contract to pay for those services. Under those circumstances,the University would be free to negotiate the price for drainage services with the city because the University's sovereign immunity would prohibit the city from enforcing the ordinance establishing the fee schedule for drainage services against the University. On the other hand, the University may choose to reject the city's offer of stormwater drainage services. In that case, the city would be under no obligation to provide stormwater drainage services to the University. See, Big Bear v. City of High Point, 294 N.C. 262, 268 (1977) (if a citizen did not wish to pay for city services, the city has the option to discontinue the services).

In summary, the University is under no present obligation to pay the bill the city has submitted for stormwater drainage services. However, if the University should decide that the city drainage services provide an economical means for disposing of the University's stormwater runoff, then the University may elect to contract with the city for those services.

Andrew A. Vanore, Jr. Chief Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

R. Andy Giles Assistant Attorney General