Clay Chastain v. Bedford Regional Water Authority ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Malveaux and Causey
Argued at Salem, Virginia
CLAY CHASTAIN
MEMORANDUM OPINION* BY
v. Record No. 0233-22-3 JUDGE MARY BENNETT MALVEAUX
DECEMBER 6, 2022
BEDFORD REGIONAL WATER AUTHORITY
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
Clay Chastain, pro se.
W. Watts Burks, IV (Glenn Feldmann Darby & Goodlatte, on brief),
for appellee.
Clay Chastain (“Chastain”) appeals from an order of the circuit court dismissing his petition
challenging the water and sewer connection fees required by the Bedford Regional Water Authority
(“BRWA”). For the following reasons, we affirm the judgment of the circuit court.
I. BACKGROUND
Chastain built a house in Bedford County on a lot which lacked water and sewer service.
He intended to connect the house to water and sewer lines owned by BRWA. BRWA did not need
to install additional lines to facilitate Chastain’s requested connections. Instead, provided he paid
certain fees required by BRWA, Chastain would be responsible for making the physical connections
to the water and sewer systems while BRWA would add a meter box and related items.
BRWA charged a $5,000 capital recovery fee to connect Chastain’s house to its water
system, a $5,900 capital recovery fee to connect his house to its sewer system, and a $1,500 tap fee
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to add the meter box and related items. BRWA also charged Chastain application and deposit fees
and a water meter fee. Chastain declined to pay these fees and attempted to make the connections
anyway. As a result, BRWA charged him an additional $1,000 tampering fee. In total, BRWA
required that Chastain pay $13,950 before it would permit him to connect to its systems.
On September 30, 2021, Chastain, pro se, filed a petition in the circuit court seeking an
order that would require BRWA to “charge [him] a reasonable and just Capital Recovery fee” and
“permanently change its Capital Recovery fee policy.”1 BRWA filed a demurrer on the basis that
Chastain’s allegations were “not factual statements,” but rather him “complaining that the
connection fees . . . are not ‘fair and reasonable’ nor . . . ‘just and equitable.’” The circuit court
sustained BRWA’s demurrer and dismissed Chastain’s petition with leave to amend.
Chastain filed an amended petition on December 10, 2021, alleging that BRWA’s water
and sewer connection fees were unreasonable on their face and when compared to neighboring
jurisdictions. He further alleged that the fees were unequally applied because they were imposed
only upon customers building or buying new homes and not those buying existing homes.
Unlike his initial petition, Chastain’s amended petition did not request that the circuit court
determine how much he should be charged or order BRWA to change its fee policy. BRWA
filed another demurrer, which the circuit court overruled.
During a bench trial, Chastain testified that the nearby towns of Rocky Mount and
Altavista charged their customers $2,100 and $4,100 respectively to connect to their water and
sewer systems. He also testified that Amherst County distributed the cost of necessary capital
improvements amongst all its customers and alleged that “[BRWA] has chosen to impose an
1
Chastain also filed a motion for immediate injunctive relief requesting that the circuit
court order BRWA to connect his home to its water and sewer systems. On October 20, 2021,
the circuit court granted the injunction contingent on Chastain posting a $10,000 cash bond by
November 30, 2021. Chastain did not post the bond and subsequently requested that the circuit
court “cancel” its injunctive relief order.
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excessive fee on a small number of its customers.” Chastain proposed that he should pay $3,350,
which he believed to be a “fair and reasonable amount.”
BRWA moved to strike at the conclusion of Chastain’s evidence, and the circuit court
denied the motion. Following the motion to strike, the court stated, in reference to “charg[ing]
[Chastain] $14,000,” that “I’m going to apply the law to the evidence as best I can, but [in] my
opinion, that’s too much money.” (Emphasis added). The court then clarified that “if the
locality has complied with the law, it doesn’t make any difference what my opinion is. You see
I’m not allowed to come in here and just rule what I think the right thing is to do and apply my
personal sense of right and wrong.”
BRWA then presented testimony explaining that it charged a capital recovery fee for new
connections, regardless of location, to pay for the growth and replacement of its systems.
BRWA also submitted its “Rate Information” policy, which reflects that BRWA calculates
capital recovery fees based on the size of the new connection’s meter. This calculation method
corresponds to “how much flow the connection will need.” BRWA further explained that it
notified the public of its proposed fee structure and held a public hearing before finalizing it.
BRWA’s finance director testified that its policy charging connection fees only for new
connections was developed to fund new and future expansion of the water system. BRWA’s
executive director testified that capacity “isn’t just on a given street . . . it’s capacity in the entire
system.” The executive director also explained that BRWA had self-funded a $34,000,000
reservoir project paid for by capital recovery fees and was paying the balance of a $7,000,000
renovation of a second reservoir.
At the close of all the evidence, Chastain stated that he was not disputing “what
[BRWA’s] costs are and what benefits [BRWA] provides everybody.” Instead, he reiterated that
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“the $14,000 [BRWA] charged [him] is unreasonable”2 and that BRWA’s fee should be adjusted
“to be in line with neighboring municipalities.” After considering the evidence and arguments of
the parties, the circuit court stated, “I think the reasonable argument can be made” that BRWA’s
connection fee policy “becomes an invalid revenue generating device because it is unreasonable
and being unequally applied.” However, the court proceeded to rule that
[In] the final analysis, do I have a basis for determining the
amount, and I’m saying that $14,000, I’ve said it before, I’ll say it
again, it’s too much money for a hook up. But what is the amount
that is reasonable? Based upon the evidence I have heard, there is
no basis for me making such a determination.
The court then dismissed Chastain’s petition, stating, “I don’t think I have any alternative. . . .
I’ve stated my personal belief, but my personal beliefs from this bench is [sic] supposed to be
irrelevant.” The court then clarified that it was dismissing Chastain’s petition for “lack of
evidence.” This appeal followed.
II. ANALYSIS
Chastain argues that the circuit court erred in failing to order BRWA to amend its
connection fee policy because he presented “unchallenged evidence that [BRWA’s] policy was
wrong and unreasonable.” Based on the record before us, we cannot find that the circuit court erred
and, therefore, do not disturb its judgment.3
2
We note that during oral argument before this Court, Chastain stated that he “probably
would have paid the money” except that he “ran into those construction [cost] surges, you know,
from COVID, and it wiped out like ten or twelve thousand dollars of my [construction] budget.
So I . . . really had to strike some kind of a deal . . . there.”
3
As we hold that the circuit court did not err in not striking down BRWA’s fee structure,
we do not address Chastain’s related assignment of error arguing that the circuit court erred by
failing to compute an appropriate fee for his connection. See Chaney v. Karabaic-Chaney, 71
Va. App. 431, 438 (2020) (“Following the traditional doctrine of judicial restraint, [appellate
courts] ‘decide cases “on the best and narrowest grounds available.”’” (alteration in original)
(quoting Levick v. MacDougall, 294 Va. 283, 302 (2017))). Similarly, we do not address
Chastain’s request for $50,000 in damages, which he advances for the first time on appeal. See
Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 315 (2013) (“The Court of
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Code § 15.2-5102(A) authorizes “the governing bodies of two or more localities [to] . . .
create a water authority” that “shall be a public body politic and corporate and a political
subdivision of the Commonwealth.” In turn, Code § 15.2-5136(D) provides, in pertinent part, that
“[w]ater and sewer rates, fees and charges established by any [such] authority shall be fair and
reasonable.” The Supreme Court of Virginia has held that “setting rates and fees for sewer or water
services is a nondelegable legislative function.” Town of Leesburg v. Giordano, 280 Va. 597, 605
(2010) (quoting City of South Boston v. Halifax Cnty., 247 Va. 277, 283 (1994)). “[A]s with any
other legislative function, the action of [an authority] in setting . . . connection fees is afforded a
presumption of validity.” Eagle Harbor, L.L.C. v. Isle of Wight Cnty., 271 Va. 603, 615 (2006).
“This presumption of legislative validity is a presumption of reasonableness.” Giordano, 280 Va. at
606. As the Supreme Court has explained:
Where presumptive reasonableness is challenged by probative
evidence of unreasonableness, the challenge must be met by some
evidence of reasonableness. If evidence of reasonableness is
sufficient to make the question fairly debatable, the [legislative
action] “must be sustained.” If not, the evidence of unreasonableness
defeats the presumption of reasonableness and the [legislative action]
cannot be sustained.
Id. (alterations in original) (quoting Bd. of Supervisors of Fairfax Cnty. v. Robertson, 266 Va. 525,
533 (2003)).
Assuming without deciding that Chastain introduced probative evidence of the
unreasonableness of BRWA’s connection fee policy, the issue before this Court is whether BRWA
presented sufficient evidence to make the reasonableness of its connection fee policy fairly
debatable. Id. “An issue is fairly debatable ‘when the evidence offered in support of opposing
views would lead objective and reasonable persons to reach different conclusions.’” Id. (quoting
Appeals will not consider an argument on appeal which was not presented to the trial court.”
(quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998))).
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Bd. of Supervisors v. Williams, 216 Va. 49, 58 (1975)). To determine whether an issue is fairly
debatable, this Court “need only examine whether any evidence in the record is sufficiently
probative” to make it so. Id. at 608. In doing so, we are mindful that “[u]nder the fairly debatable
standard, ‘[t]he governing body is not required to go forward with evidence sufficient to persuade
the fact-finder of reasonableness by a preponderance of the evidence.’” Id. at 606 (second alteration
in original) (quoting Ames v. Town of Painter, 239 Va. 343, 348 (1990)).
Chastain argues that BRWA failed to present evidence to make the reasonableness of its
fees fairly debatable and that it “offered no defense.” In support of his argument, Chastain contends
that the circuit court found BRWA’s fees to be “unreasonable.” However, the circuit court made no
such finding. As noted above, the court merely stated its “opinion” that the fees charged to Chastain
required “too much money” and clarified that if BRWA “complie[s] with the law, it doesn’t make
any difference what my opinion is” based upon the court’s “personal sense of right and wrong.”
Further, although the court later stated that a “reasonable argument can be made” that BRWA’s
connection fee policy was “unreasonable,” it made clear that it was not ruling to that effect. Instead,
the court dismissed Chastain’s petition because the lack of evidence before it left it without “any
alternative” to doing so, and it reiterated that having “stated my personal belief[s],” those “personal
beliefs from this bench is [sic] supposed to be irrelevant.”4
4
In fact, the record makes clear that the circuit court dismissed Chastain’s petition on
grounds of lack of evidence without ever stating a clear ruling on the validity of BRWA’s
connection fee policy. “It is the appellant’s burden ‘to obtain a clear ruling from the [circuit] court’
on an issue he wishes to raise on appeal. This burden stems from the requirement that a litigant
state an objection ‘with reasonable certainty at the time of the ruling.’” McDaniel v.
Commonwealth, 73 Va. App. 299, 313 (2021) (first quoting Young v. Commonwealth, 70 Va. App.
646, 657 (2019); then quoting Rule 5A:18). Without such a ruling from the circuit court, “‘there is
no ruling for [this Court] to review’ on appeal.” Williams v. Commonwealth, 57 Va. App. 341, 347
(2010) (alteration in original) (quoting Fisher v. Commonwealth, 16 Va. App. 447, 454 (1993)).
Although we acknowledge that Chastain acted pro se throughout the proceedings in the circuit
court and before this Court, a party “who represents himself is no less bound by the rules of
procedure and substantive law than a [party] represented by counsel.” Hammer v.
Commonwealth, 74 Va. App. 225, 236 (2022) (quoting Townes v. Commonwealth, 234 Va. 307,
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Contrary to Chastain’s contention respecting BRWA’s evidence and “defense,” BRWA
introduced evidence demonstrating that it charged connection fees for all new connections based
on meter size, as well as to fund the growth and replacement of its infrastructure to sustain its
entire system. BRWA’s executive director provided examples of systemic infrastructure
improvements, their cost, and BRWA’s responsibility to pay for them. Further, Chastain
specifically did not contest BRWA’s costs to provide benefits to everyone connected to BRWA’s
systems, and, therefore, we must view these uncontested costs as accurate. Accordingly, we
reject Chastain’s arguments and conclude that the record contains evidence sufficiently probative
to establish that the reasonableness of BRWA’s connection fee policy is fairly debatable.
Accordingly, we affirm the circuit court’s judgment.5
319 (1987)). See also Justus v. Commonwealth, 222 Va. 667, 680 (1981) (“the ‘right of
self-representation is not . . . a license not to comply with the relevant rules of procedural and
substantive law’” (quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975))).
5
The dissent would have us remand this matter to the circuit court for it to consider
whether BRWA’s policy violates the Equal Protection Clause of the Fourteenth Amendment,
based upon a “liberal[] constru[al]” of the contents of Chastain’s circuit court pleadings and brief
to this Court. However, “it is not the role of the courts, trial or appellate, to research or construct
a litigant’s case or arguments for him or her, and where a party fails to develop an argument in
support of his or her contention or merely constructs a skeletal argument, the issue is waived.”
Coward v. Wellmont Health Sys., d/b/a Lonesome Pine Hosp., 295 Va. 351, 367 (2018) (quoting
Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (applying Rule 5A:20(e))); see also
Morris v. Commonwealth, 75 Va. App. 257, 278 (2022) (Russell, J., dissenting) (“Courts are
charged with answering only those questions necessary to resolve the cases brought to us by the
litigants as opposed to questions we wish the litigants had raised.”). This case does not require
the court to resolve any constitutional claims because Chastain did not argue to the trial court
that BRWA’s policy violated the Equal Protection Clause of the Fourteenth Amendment.
Throughout his complaint, he contends that BRWA’s fees were unreasonable, but to say that a
fee policy is unreasonable is not the functional equivalent of saying that the fee policy is
unconstitutional. Furthermore, we note that the circuit court never ruled on any equal protection
issue or argument, and thus “there is no [equal protection] ruling for us to review.” Fisher, 16
Va. App. at 454. In addition, because Chastain did not raise the constitutional issue in his briefs
on appeal, the dissent would “have [us] ignore the requirement . . . of assigning error to a
judgment of the trial court to reach its desired conclusion,” so as to “decide the matter on an
argument that it alone crafted and champions.” Morris, 75 Va. App. at 281; see also Rule
5A:20(c)(2) and (e).
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III. CONCLUSION
As we cannot say that the circuit court erred under these particular circumstances, we
affirm the circuit court’s dismissal of Chastain’s petition.6
Affirmed.
6
We also note that in Chastain’s amended petition, filed after the circuit court granted
BRWA’s demurrer with leave to amend, he did not request that the court order BRWA to change
its policy or that it calculate a reasonable connection fee. Despite arguing that the fee charged to
him by BRWA was facially unreasonable and unreasonable as applied, the only relief Chastain
specifically requested of the circuit court was that it “deny [BRWA’s] Motion for Demurrer.”
“Courts can only grant relief [that is] requested,” Irwin v. Irwin, 47 Va. App. 287, 298 n.10
(2005), and “[r]elief of any type will only be granted when a party specifically requests the relief
in a pleading filed in the proper court,” Wilson v. Wilson, 25 Va. App. 752, 761 (1997) (quoting
Hur v. DCSE ex rel. Klopp, 13 Va. App. 54, 62 (1991)). See also Rule 3:2(c)(i) (providing that
in the commencement of a civil action, “[i]t is sufficient for the complaint to ask for the specific
relief sought”). It is well-established in Virginia that “[a] litigant’s pleadings are as essential as
his proof. . . . Thus, a court is not permitted to enter a decree or judgment order based on facts
not alleged or on a right not pleaded and claimed.” Wetlands Am. Trust, Inc. v. White Cloud
Nine Ventures, L.P., 291 Va. 153, 174 (2016) (first alteration in original) (quoting Dabney v.
Augusta Mut. Ins. Co., 282 Va. 78, 86 (2011)). At trial, the circuit court expressed its concern
about the insufficiency of Chastain’s amended pleading, noting that it had previously been
reversed when “the Supreme Court of Virginia correctly stated and ruled that the relief that I
granted was outside the pleadings. . . . To grant relief, that relief must have been properly
pled. . . . [Y]ou can’t get it if you don’t ask for it.” Later, when ruling from the bench, the court
reiterated its concern, stating, “my main concern . . . [is] I am not allowed to grant relief if it’s
not properly requested. I recognize that.” Thus, even assuming for the sake of argument that we
did not resolve this appeal on the grounds discussed above, the insufficiency of Chastain’s
amended pleading would require us to affirm the circuit court.
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Causey, J., dissenting.
Chastain’s pro se brief, liberally construed, contests the circuit court’s dismissal of his
complaint and alleges that the Bedford Regional Water Authority (“BRWA”) policy violates the
Equal Protection Clause of the Fourteenth Amendment. Chastain’s pro se complaint, filed in the
circuit court, also raises an equal protection claim and requests that the policy be struck down as
unconstitutional. Challenging the constitutionality of the policy, which, if the policy is struck
down, would relieve Chastain of the obligation to pay the fees, is a valid prayer for relief.
Because the circuit court did not consider the equal protection issue, I would remand the case for
the circuit court to do so. Thus, I respectfully dissent from the majority’s affirmance of the
dismissal of Chastain’s complaint.
Under the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution, “No state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.’” Estes
Funeral Home v. Adkins, 266 Va. 297, 306 (2003) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10
(1992)).
“A document filed pro se is ‘to be liberally construed . . . .’” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “[A] pro se complaint,
‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings
drafted by lawyers.’” Estelle, 429 U.S. at 106 (quoting Haines v. Kerner, 404 U.S. 519, 520
(1952)). “In practice, this liberal construction allows courts to recognize claims despite various
formal deficiencies, such as incorrect labels or lack of cited legal authority.” Wall v. Rasnick, 42
F.4th 214, 218 (4th Cir. 2022). Pro se pleadings should be “interpreted ‘to raise the strongest
arguments that they suggest.’” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
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2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). The “policy of liberally
construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right of
self-representation is an obligation on the part of the court to make reasonable allowances to
protect pro se litigants from inadvertent forfeiture of important rights7 because of their lack of
legal training.’” Id. at 475 (alteration in original) (emphases added) (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983)).8
Even if pro se pleadings do not mention the Fourteenth Amendment or Equal Protection
Clause, courts have interpreted such pleadings as raising equal protection claims. If the
pleadings allege facts that the government treated the plaintiff differently than other “similarly
situated” persons, the pro se plaintiff has raised an equal protection claim. Fogle v. Pierson, 435
F.3d 1252, 1260 (10th Cir. 2006); see id. at 1262 (“Fogle’s supplemental brief simply recites
many of the conditions of his administrative segregation confinement without necessarily
explaining how his constitutional rights were violated. However, liberally construing Fogle’s
7
Such important rights include the right to be treated equally under the law, as discussed
below. Additionally, access to water and sanitation are basic human necessities and should be
made affordable for everyone. See Human Rights to Water and Sanitation, UN Water,
https://www.unwater.org/water-facts/human-rights-water-and-sanitation (last visited Dec. 5,
2022) (“Access to water and sanitation are recognized by the United Nations as human rights—
fundamental to everyone’s health, dignity and prosperity.”). Mr. Chastain and his daughter have
been without running water and sanitation services for over a year.
8
All of the cases that the majority cites in footnote 5, in which it contends that we cannot
“construct a litigant’s . . . arguments for him,” are cases where all parties were represented by
attorneys, and none of the parties proceeded pro se. Further, as discussed below, Chastain did
more than merely “contend[] that BRWA’s fees were unreasonable.” Before this Court is a pro
se litigant, who has specifically pled that a municipal corporation’s capital recovery fee policy
has been “unequally applied” to his detriment and that such policy is “facially unreasonable
[just] as a law or provision can be facially unconstitutional.” (Emphasis added). This amounts
to an equal protection claim, which should have been considered at the trial level. In fact,
Chastain made this argument so clearly to the circuit court that the trial judge even said, “I think
the reasonable argument can be made that” BRWA’s capital recovery fee policy was “being
unequally applied.” Accordingly, this case should be remanded so that the circuit court can
consider and rule on the issue, requiring the parties’ additional briefing, if needed.
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pro se brief, we believe he is raising . . . equal protection claims related to his time in
administrative segregation . . . .”); Thomas v. Brierley, 481 F.2d 660, 661 (3d Cir. 1973)
(concluding that the trial court erred in dismissing a pro se plaintiff’s complaint as frivolous
because plaintiff’s allegation that “the action by the officials [of denying the plaintiff, who was a
prisoner, the privilege to visit with a friend] was merely the unwarranted result of the way . . . the
officials subject the Black inmate and his family to harassment and degradation,” when liberally
construed, potentially raised an equal protection claim). When pro se plaintiffs appeal a
dismissal of complaint, and the complaint raised issues at the trial level that the trial court did not
consider, appellate courts have remanded for consideration of the unaddressed claims. See
Thomas, 481 F.2d at 661 (remanding for consideration of claims properly raised); Fogle, 435
F.3d at 1262-63, 1265 (same).
In Estes, the Supreme Court of Virginia struck down a municipal ordinance that imposed
different waste disposal fees based on an entity’s classification for violating the Equal Protection
Clause. 266 Va. at 299, 306-07. The plaintiffs in Estes argued that “the solid waste disposal fee
levied as to each one of them was ‘arbitrary’ and ‘made in a discriminatory manner.’” Id. at 300.
Thus, the plaintiffs “asked the [circuit] court to declare that the [o]rdinance is ‘void and of no
effect’ and that, therefore, the [plaintiffs] ‘are under no obligation to make payment based upon
an unconstitutional and void [o]rdinance.’” Id. at 301. In response, the municipal board
explained that it classified entities “by separating types of businesses, and the rates for each
classification were based on [waste] container size” and how often the containers would need to
be picked up (number of “pick-ups”) each week. Id. at 303. The rationale was that more
pick-ups and larger containers should result in higher fees. Id. at 306.
The Court held that for an ordinance to be upheld under the Equal Protection Clause,
“[t]he basis of a classification ‘must have a direct relation to the purpose of the law, and must
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present a distinction which renders one class, in truth, distinct or different from another class.’”
Id. at 304 (quoting City of Newport News v. Elizabeth City Cnty., 189 Va. 825, 841 (1949)). In
other words, “equal protection requires only that ‘the classification rest on real and not feigned
differences, that the distinction have some relevance to the purpose for which the classification is
made, and that the different treatments not be so disparate, relative to the difference in
classification, as to be wholly arbitrary.’” Id. (quoting City of Portsmouth v. Citizens Tr. Co.,
216 Va. 695, 698 (1976)). Concluding that the classifications in the ordinance were “not
inherently suspect” and did not “infringe upon the exercise of a fundamental right,” the Court
applied the rational basis test to the ordinance. Id. Under the rational basis test, an ordinance’s
“classifications are ‘permissible if the governmental objective is “legitimate” and the
classification[s] bear[] a “reasonable” or “substantial” relation thereto.’” Id. (alterations in
original).
The Court agreed with the municipal board that the “governmental objective of
establishing a fair and equitable fee schedule that is based on the size of containers and the
number of ‘pick-ups’ per week, and that reflects the current costs of solid waste disposal in Wise
County,” was “legitimate.” Id. at 304-05. Yet the facts showed that the municipal board’s
criteria for classifying entities and assigning fees—the number of pick-ups and the size of the
waste container—had no effect on what classification and resulting fee an entity received. Id. at
303, 306. For example, a business classified as “convenience store” with “a 0–1000 gallon
container and only one ‘pick-up’ per week has to pay $600.” Id. at 306. In contrast, a business
classified as a “‘fast food’ restaurant with the same size container but with one to four ‘pick-ups’
per week is . . . charged a fee of $400.” Id. Thus, the Court concluded that “the classifications
set forth in the [o]rdinance and [fee schedule were] not based on distinctions that render ‘one
class, in truth, distinct or different from another class.’” Id. Therefore, the classifications in the
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ordinance were unreasonable, and the “unreasonableness not only [wa]s apparent on the face of
the [o]rdinance but also was clearly shown by extrinsic evidence.” Id. Accordingly, the
ordinance failed the rational basis test and violated the Equal Protection Clause. Id. at 304.
Thus, the Court held that the ordinance was unconstitutional, and the plaintiffs were relieved of
paying any fees under the ordinance. Id. at 301, 307.
Here, Chastain’s brief9 to this Court, liberally construed, contests the dismissal of his
complaint and raises an equal protection challenge to BRWA’s policy. He alleges that the policy
is “unreasonable” because “[BRWA] does not charge any of its 15,000 customers to maintain the
water system they all use, wear out and benefit from every day”; instead, it “imposes all that cost
on ‘the new people hooking up to’” the system. (Emphasis added). He also restates the
arguments he made to the circuit court that the policy was “being unequally applied” and the fee
was “not equitable.” Thus, like the plaintiffs in Estes, he alleges that the policy imposes
arbitrary fees in a discriminatory manner. Such statements are enough to raise an equal
protection claim.
Chastain’s “Amended Complaint” filed in the circuit court also raised an equal protection
challenge to the policy. And, like the plaintiffs in Estes, Chastain requested a proper prayer for
relief from the circuit court—that the policy be found unconstitutional and thus, invalidated.
The complaint stated that “[o]ne presumes a utility fee can be just as facially unreasonable as a
law or provision can be facially unconstitutional.” (Emphases added). This statement makes a
facial constitutional challenge to BRWA’s policy. Generally, implicit in a constitutional
challenge to a policy is a request that the policy be invalidated, so challenging the
constitutionality of a law or policy is a proper request for relief. See Tanner v. City of Virginia
9
I rely on Chastain’s original brief submitted to this Court, not the amended brief, to
address any concerns BRWA has related to the alleged untimely filing of the amended brief.
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Beach, 277 Va. 432, 436, 438, 442 (2009) (granting relief to the plaintiffs by striking down the
municipal ordinance when the plaintiffs challenged the constitutionality of the ordinance);
Jaynes v. Commonwealth, 276 Va. 443, 450, 464 (2008) (invalidating statute and vacating the
defendant’s conviction under the statute when defendant challenged the constitutionality of the
statute). In support of this constitutional challenge, Chastain alleged that BRWA’s “excessive
[capital recovery] fee policy (for new service), is . . . unequally applied in that it is only imposed
upon those residents building or buying a new home. It is not imposed upon any customer
buying an existing home . . . .” (Emphases added). Thus, like the plaintiffs in Estes, Chastain
alleges that fees were arbitrary and levied in a discriminatory manner, in violation of the
Fourteenth Amendment. This issue was properly raised in the circuit court. The circuit court
even recognized that Chastain was arguing that the policy was unequally applied, stating, “I
think the reasonable argument can be made” that BRWA’s capital recovery fee policy “becomes
an invalid revenue generating device because it is unreasonable and being unequally applied.”
(Emphasis added). Further, although a constitutional challenge implies a request for invalidation
of the challenged policy, Chastain specifically requests that a new policy that collects capital
recovery fees from all customers be enacted in place of the old policy, and thus necessarily
argues that the old policy be invalidated. Chastain, after arguing that BRWA’s current policy is
unconstitutional, argues that since all BRWA customers benefit from maintenance of BRWA’s
systems,10 “‘capital recovery fees’ should be collected . . . from all of [BRWA]’s 15,000
customers at a reasonable and affordable rate.”
Chastain’s pleadings, liberally construed, raise an equal protection claim and make a
proper prayer for relief. Because the circuit court did not consider this issue, I would remand
10
BRWA’s policy states that “Capital recovery charges . . . will be used for funding
expansion and replacement of system infrastructure or adding to [BRWA] reserves.” (Emphasis
added).
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this case for the circuit court to consider, under the criteria set out in Estes, whether BRWA’s
policy violates the Equal Protection Clause. The circuit court “should . . . require the filing
of . . . a responsive pleading to the [Amended] Complaint” on the equal protection issue before
making its ruling. Thomas, 481 F.2d at 661. If the circuit court finds an equal protection
violation, it may grant Chastain relief by striking down the policy as unconstitutional and release
Chastain from the obligation to pay the capital recovery fees, as the Court did in Estes.
For the reasons stated above, I respectfully dissent.
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