Present: All the Justices 

ESTES FUNERAL HOME, ET AL. 

v. Record No. 022514 OPINION BY JUSTICE CYNTHIA D. KINSER 

 September 12, 2003 

BOB ADKINS, ET AL. 

FROM THE CIRCUIT COURT OF WISE COUNTY 

Ford C. Quillen, Judge 

 This appeal involves an equal protection challenge to 

an ordinance levying fees for solid waste disposal in Wise 

County. We conclude that the classifications in the 

ordinance do not bear a reasonable relation to a 

legitimate governmental objective and that the record is 

devoid of evidence of reasonableness sufficient to make 

the issue fairly debatable. Thus, we will reverse the 

judgment of the circuit court upholding the 

constitutionality of the ordinance. 

MATERIAL FACTS AND PROCEEDINGS 

 The Wise County Board of Supervisors (the Board) 

enacted an ordinance levying fees for solid waste 

disposal, Ordinance No. 3-1993, in 1993.1 In January 2001, 

 1

 The Board adopted Ordinance No. 3-1993 pursuant to 

the authority granted in former Code § 15.1-362.1. The 

current version of that statute, Code § 15.2-2159(A), 

authorizes certain counties to “levy a fee for the 

disposal of solid waste not to exceed the actual cost 

incurred by the county in procuring, developing, 

maintaining, and improving the landfill and for such 

reserves as may be necessary for capping and closing such 
the Board amended Ordinance No. 3-1993 and adopted a new 

fee schedule in order “to appropriately address concerns 

with increasing amounts of solid waste and more accurately 

reflect the current costs of solid waste disposal in Wise 

County.”2 The new fee schedule set forth in the Ordinance 

establishes the following classifications and rates: 

SOLID WASTE FEE

Households $30.00 per year 

BUSINESSES

Hospitals $1,200.00-[$]2,000.00 per year 

Industries $1,800.00-[$]2,500.00 per year 

Professional $100.00-[$]500.00 per year 

Institutional $2,500.00 per year 

FOOD ESTABLISHMENTS

Fast Food $400.00-$800.00 per year 

Convenience Stores $600.00-$1,200.00 per year 

Supermarkets $800.00-$1,200 per year 

Other [R]estaurants $400.00-$800.00 per year 

OTHER BUSINESSES

Large Retail $400.00-$1,200 per year 

 

landfill in the future.” There is no claim in this case 

that the fees levied exceed the actual solid waste 

disposal costs incurred by Wise County. 

2

 Ordinance No. 3-1993, as amended in 2001, will be 

referred to in this opinion as “the Ordinance.” 

2
Small Retail $100.00 per year 

Small Service $100.00 per year 

Other $50.00 per year 

 After the Board amended Ordinance No. 3-1993 and 

adopted the new fee schedule, several Wise County 

businesses filed an amended motion for declaratory 

judgment against the County of Wise and the members of the 

Board, alleging that the fee schedule in the Ordinance is 

“ambiguous, uncertain and does not set any true criteria 

for the assessment of the landfill use fees.”3 The 

complainants further alleged that the solid waste disposal 

fee levied as to each one of them was “arbitrary” and 

“made in a discriminatory manner,” and that the Ordinance 

is “unconstitutional” and “void on its face.” The 

complainants asked the court to declare that the Ordinance 

is “void and of no effect” and that, therefore, they “are 

under no obligation to make payment based upon an 

unconstitutional and void [O]rdinance.” 

 In response, the defendants moved to dismiss. They 

claimed that the complainants had failed to produce 

 3

 The complainants are Estes Funeral Home, G & G Car 

Wash #1, G & G Car Wash #2, Gary’s Accounting & Tax 

Service, Gilliam Funeral Home, Holding Funeral Home, 

Indian Creek Monument Sales, Jerry Baker Funeral Home, 

Johnson Enterprise and Electric, Robo’s Drive In, and Roy 

Green Funeral Home. 

3
evidence establishing the Ordinance’s unreasonableness. 

Continuing, the defendants asserted that the levies were 

made using “a uniform methodology based on documentation 

of container size, number of collections, and types of 

waste generated and comparisons of similar businesses.” 

 At a hearing on the defendants’ motion, the circuit 

court considered the depositions of Shannon C. Scott, who 

served as the acting county administrator for Wise County 

when the Board amended Ordinance No. 3-1993, and Delores 

W. Smith, a deputy commissioner of revenue for Wise 

County.4 Scott first explained the rationale for the 

Board’s decision to adopt a new fee schedule: 

 The Board of Supervisors was very concerned 

about being fair, applying fairness and equity 

among all the community of users and the Board 

of Supervisors determined that the only fair way 

was to attempt to measure how much solid waste 

was being generated and that you should pay 

based on how much waste that you were 

generating. 

 Continuing, Scott testified that the commissioner of 

revenue provided a list of businesses in Wise County and 

using that list, the businesses were categorized. 

According to both Scott and Smith, the factors then used 

to classify the businesses and to establish the solid 

waste disposal fees for the different classifications were 

4
the size of containers available to businesses and the 

number of times per week the contents of the containers 

were “pick[ed] up.” The fee schedule set forth in the 

Ordinance contains a range of fees for each business 

classification, except the classifications of 

“Institutional,” “Small Retail,” “Small Service,” and 

“Other,” all of which have flat fees. A “LANDFILL USE 

FEE-RATE SCHEDULE” prepared by Smith and attached as an 

exhibit to her deposition establishes specific fees for 

those business classifications in the Ordinance having 

only a range of fees, except for the classifications of 

“Industries” and “Professional.”5

 Scott acknowledged that a business “throwing out 

cardboard” could be charged the same rate as a restaurant 

“throwing out true refuse and heavy garbage.” This is so 

because the only known factors were the container sizes 

and the number of “pick-ups” per week. In fact, Smith 

disavowed that the “contents” of a container played any 

role in determining the rate classifications in the new 

fee schedule. 

 4

 Both Scott and Smith served on a committee that 

drafted the new schedule of fees for solid waste disposal. 

5

 The “LANDFILL USE FEE-RATE SCHEDULE” is set out in 

an addendum to this opinion. 

5
The $30 flat fee adopted for households, which 

applies to occupied dwellings regardless of size of 

container or number of “pick-ups” per week, is the same 

rate set for that classification when Ordinance No. 3-1993 

was first adopted in 1993. Smith stated that “[i]f you 

lived under a roof and had electricity, you had to pay 

thirty [dollars] whether you generated any garbage at 

all.” According to Scott, 

 [t]hat figure came up . . . when the 

original ordinance was adopted to retire the 

debt on a 1.1 million dollar loan and when the 

Board of Supervisors approved the 3.1 million 

dollar loan from the Virginia Resources 

Authority, it was not the desire and will of the 

Board to change the residential rate. 

 They preferred to leave it at thirty 

dollars and the Minutes would reflect that. 

 The circuit court concluded that the Ordinance 

is “valid and constitutional.” The court found that 

the defendants, “through depositions and exhibits, 

set forth a methodology for the current fee schedule 

using frequency of container pick-ups and container 

size” and that such methodology is “reasonable and 

thus valid.” Accordingly, the court granted the 

motion to dismiss. The complainants appeal from the 

circuit court’s judgment. 

ANALYSIS 

6
 The crux of the complainants’ argument before the 

circuit court and on appeal is that the classifications in 

the new fee schedule set forth in the Ordinance are not 

based on “real differences.” They contend that the 

distinction between households and businesses as well as 

the classifications among businesses do not, in truth, 

render one class different from another. Thus, the 

complainants assert that the Ordinance violates the Equal 

Protection Clause. 

 The defendants, in contrast, assert that the evidence 

presented to the circuit court established the 

reasonableness of the classifications in the Ordinance. 

The broad categories were determined by separating types 

of businesses, and the rates for each classification were 

based on container size and number of “pick-ups” per week. 

According to the defendants, this methodology and the 

resulting classifications “are directly related to the 

purpose of the [O]rdinance which is to collect and to 

recover costs of waste disposal in a manner that 

distributes the costs among the more intense producers of 

waste.” 

 Our review of the challenged Ordinance is guided by 

well-established principles. Ordinances such as the one 

at issue in this case are presumed to be valid. That 

7
“presumption governs unless it is overcome by 

unreasonableness apparent on the face of the ordinance or 

by extrinsic evidence which clearly establishes the 

unreasonableness.” Kisley v. City of Falls Church, 212 

Va. 693, 697, 187 S.E.2d 168, 171 (1972) (citing National 

Linen Serv. Corp. v. Norfolk, 196 Va. 277, 279, 83 S.E.2d 

401, 403 (1954)); accord Board of Directors of the 

Tuckahoe Ass’n, Inc. v. City of Richmond, 257 Va. 110, 

116-17, 510 S.E.2d 238, 241 (1999); Twietmeyer v. City of 

Hampton, 255 Va. 387, 390, 497 S.E.2d 858, 860 (1998); 

Town of Narrows v. Clear-View Cable TV, Inc., 227 Va. 272, 

280, 315 S.E.2d 835, 839-40 (1984). 

 The litigant attacking legislative action 

as unreasonable has the burden to establish 

unreasonableness. . . . [L]egislative action is 

reasonable if the matter in issue is fairly 

debatable. If the presumptive reasonableness of 

legislative action is challenged by probative 

evidence of unreasonableness, the challenge must 

be met by evidence of reasonableness. If such 

evidence of reasonableness is sufficient to make 

the issue fairly debatable, the legislative 

action must be sustained; if not, the evidence 

of unreasonableness defeats the presumption and 

the legislative act cannot be sustained. 

Town of Narrows, 227 Va. at 280-81, 315 S.E.2d at 840 

(citations omitted); accord Mountain View Limited P’ship 

v. City of Clifton Forge, 256 Va. 304, 314, 504 S.E.2d 

371, 377 (1998); Tidewater Ass’n of Homebuilders, Inc. v. 

City of Virginia Beach, 241 Va. 114, 122, 400 S.E.2d 523, 

8
528 (1991). We also accord a “presumption of correctness” 

to the circuit court’s finding. Tidewater Ass’n, 241 Va. 

at 122, 400 S.E.2d at 528.

 The classifications in the Ordinance and fee schedule 

are not inherently suspect, see Duke v. County of Pulaski, 

219 Va. 428, 432, 247 S.E.2d 824, 826 (1978), and do not 

infringe upon the exercise of a fundamental right. Nor do 

the complainants contend otherwise. Thus, those 

classifications are “permissible if the governmental 

objective is ‘legitimate’ and the classification[s] bear[] 

a ‘reasonable’ or ‘substantial’ relation thereto.” Id. 

(quoting Arlington County v. Richards, 217 Va. 645, 648, 

231 S.E.2d 231, 233, vacated by 434 U.S. 976 (1977)); see 

also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The 

classifications in the Ordinance “carry with them the same 

presumptions and burdens” as the Ordinance itself and “are 

not in and of themselves discriminatory.” Kisley, 212 Va. 

at 697, 187 S.E.2d at 171-72; accord Sheek v. City of 

Newport News, 214 Va. 288, 290, 199 S.E.2d 519, 521 

(1973). 

 The reasonableness of a classification rests on 

“whether it embraces all of the classes to which it 

relates.” City of Newport News v. Elizabeth City County, 

189 Va. 825, 841, 55 S.E.2d 56, 65 (1949). The basis of a 

9
classification “must have a direct relation to the purpose 

of the law, and must present a distinction which renders 

one class, in truth, distinct or different from another 

class.” Id. Stated differently, 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.’ ” City of Portsmouth v. 

Citizens Trust Co., 216 Va. 695, 698, 222 S.E.2d 532, 534 

(1976) (quoting Walters v. City of St. Louis, 347 U.S. 

231, 237 (1954)); accord Tuckahoe Ass’n, 257 Va. at 116, 

510 S.E.2d at 241. 

 There is no question that the Board’s desire to levy 

a fair and equitable fee on all users of the solid waste 

disposal facilities in Wise County, to address the

increasing amounts of solid waste, and to adopt a fee 

schedule that accurately reflects the current costs of 

solid waste disposal is a legitimate governmental 

objective. However, the complainants argue that the 

classifications in the Ordinance and fee schedule bear a

no reasonable relation to the legitimate governmental 

objective and that, therefore, the Ordinance violates the 

10
Equal Protection Clause. See Duke, 219 Va. at 434, 247 

S.E.2d at 827. Based on the record in this case, we agree 

with the complainants. 

 The first distinction in the Ordinance is between 

households and businesses. We recognize, as Scott and 

Smith testified, that it is not possible to determine the 

exact amount of solid waste produced by each household and 

business. However, the only basis articulated for the $30 

yearly flat fee set for the classification of “Households” 

was that the Board simply wanted to leave the rate for 

that classification at the same level that was established 

when Ordinance No. 3-1993 was adopted. The Board’s 

rationale bears no relation to the governmental objective 

of establishing a fair and equitable fee schedule that is 

based on the size of containers and the number of “pickups” per week, and that reflects the current costs of 

solid waste disposal in Wise County. Nor does it explain 

why the Board set a flat rate for the classification of 

“Households” as well as for certain business 

classifications, i.e., “Institutional,” “Small Retail,” 

“Small Service,” and “Other,” but established a range of 

fees for the other business classifications. The 

government “may not rely on a classification whose 

relationship to an asserted goal is so attenuated as to 

11
render the distinction arbitrary or irrational.” City of 

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 

446 (1985). 

 Our conclusion does not mean that flat fees are per 

se impermissible. For example, in Mountain View the 

municipal ordinance at issue established refuse collection 

charges by classifying residential and commercial users 

and setting different flat rates for the various 

classifications. 256 Va. at 306, 504 S.E.2d at 372. The 

rate for single family residences receiving weekly service 

was $13.50 per month. However, the rate for apartment 

house owners collecting refuse in “dumpsters” and 

receiving weekly or biweekly service was $12.55 per month 

for each residential unit. Id. Businesses requiring one 

collection per week were charged $13.50 per month. Id. at 

307, 504 S.E.2d at 372. 

 Although the former city manager conceded in Mountain 

View that the cost of refuse collection from businesses 

did not differ from the cost of collecting refuse from 

apartment buildings, we concluded that the evidence of 

reasonableness was sufficient to make the issue fairly 

debatable. Id. at 313-14, 504 S.E.2d at 377. The 

municipality presented evidence not only showing that it 

was impractical to weigh refuse at the point of collection 

12
but also establishing that the per residential unit rate 

charged to an apartment complex reflected the greater 

volume of waste generated by such a facility. Id. at 314-

15, 504 S.E.2d at 377. In contrast, evidence that would 

make the reasonableness of the Ordinance’s distinction 

between households and businesses a fairly debatable issue 

is absent from the record in this case. 

 The absence of evidence demonstrating the 

reasonableness of the various business classifications and 

the relationship of those classifications to the Board’s 

stated governmental objective is even more glaring. 

Despite repeated assertions by Smith and Scott that the 

business classifications turned on the size of containers 

and number of “pick-ups” per week, that distinction is not 

borne out in either the Ordinance itself or the “LANDFILL 

USE FEE-RATE SCHEDULE.” For example, according to the 

“LANDFILL USE FEE-RATE SCHEDULE,” a large retail business 

with a small container of 0-1000 gallons that is picked up 

one to three times per week is charged a fee of $400, a 

“fast food” restaurant with the same size container but 

with one to four “pick-ups” per week is also charged a fee 

of $400, but a convenience store with a 0-1000 gallon 

container and only one “pick-up” per week has to pay $600. 

While the nature of the solid waste generated by a 

13
convenience store may place greater demand on the solid 

waste disposal facilities in Wise County than the solid 

waste produced by a large retail business or “fast food” 

restaurant, the record is devoid of any evidence 

establishing such a distinction among these 

classifications or any others. Instead, Smith 

affirmatively stated that the “contents” of a container 

had no bearing on the classifications in the Ordinance or 

on the fees charged. 

 Nor is there any evidence explaining the basis for 

classifying certain businesses like households and setting 

a flat fee for those businesses when the classifications 

were supposedly based on size of containers and number of 

“pick-ups.” In other words, the classifications set forth 

in the Ordinance and the “LANDFILL USE FEE-RATE SCHEDULE” 

are not based on distinctions that render “one class, in 

truth, distinct or different from another class.” City of 

Newport News, 189 Va. at 841, 55 S.E.2d at 65. The Equal 

Protection Clause “keeps governmental decisionmakers from 

treating differently persons who are in all relevant 

respects alike.” Nordlinger, 505 U.S. at 10. 

CONCLUSION 

 In sum, we conclude that the complainants carried 

their burden of establishing the unreasonableness of the 

14
classifications in the Ordinance. That unreasonableness 

not only is apparent on the face of the Ordinance but also 

was clearly shown by extrinsic evidence. When, as here, 

“the presumptive reasonableness of legislative action is 

challenged by probative evidence of unreasonableness, the 

challenge must be met by evidence of reasonableness . . . 

sufficient to make the issue fairly debatable.” Town of 

Narrows, 227 Va. at 281, 315 S.E.2d at 840. The 

defendants failed to present evidence of reasonableness 

sufficient to make the issue fairly debatable. Thus, the 

Ordinance cannot be sustained. See id.

 For these reasons, we will reverse the judgment of 

the circuit court and enter judgment here in favor of the 

complainants. 

Reversed and final judgment. 

15
ADDENDUM 

COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE 

I. CONVENIENCE STORES 

 SIZE #PICK-UPS 

 CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

CANS 1-4 CANS 1 PU 

SMALL $600.00 

SMALL CONTAINER 2 CUBIC YDS 1 PU 

SMALL $600.00 

 (0-1000 GALLONS) 3-4 PU 

MEDIUM $800.00 

 4+ PU 

LARGE $1,200.00 

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS- 

 (1000-3000 GALLONS) 1-2 PU 

MEDIUM $800.00 

 3-5 PU 

LARGE $1,200.00 

 6 CUBIC YDS- 

 1 PU 

MEDIUM $800.00 

 2-5 PU 

LARGE $1,200.00 

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS- 

 (3001+ GALLONS) 1 PU 

MEDIUM $800.00 

 2-5 PU 

LARGE $1,200.00 

 10+ CUBIC YDS- 

 1+ PU 

LARGE $1,200.00 

16
COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE

II. LARGE RETAIL 

 SIZE #PICK-UPS 

CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

CANS 1-4 CANS 1 PU 

SMALL $400.00 

 

SMALL CONTAINER 2 CUBIC YDS 1-3 PU 

SMALL $400.00 

 (0-1000 GALLONS) 4-7 PU 

MEDIUM $600.00 

 8+ PU 

LARGE $1,200.00 

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS- 

 (1000-3000 GALLONS) 1 PU 

SMALL $400.00 

 2-3 PU 

MEDIUM $600.00 

 4+ PU 

LARGE $1,200.00 

 6 CUBIC YDS- 

 1-3 PU 

MEDIUM $600.00 

 4+ PU 

LARGE $1,200.00 

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU 

MEDIUM $600.00 

 (3001+ GALLONS) 3-5 PU 

LARGE $1,200.00 

17
COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE 

III. OTHER RESTAURANTS 

 SIZE #PICK-UPS 

CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

CANS 1-4 CANS 1 PU 

SMALL $400.00 

SMALL CONTAINER 2 CUBIC YDS 1-4 PU 

SMALL $400.00 

 (0-1000 GALLONS) 5-7 PU 

MEDIUM $600.00 

 8+ PU 

LARGE $800.00 

MEDIUM CONTAINER 4-6 CUBIC YD 4 CUBIC YDS- 

 (1000-3000 GALLONS) 1-2 PU 

SMALL $400.00 

 3-4 PU 

MEDIUM $600.00 

 5+ PU LARGE $800.00 

 6 CUBIC YDS- 

 1-3 PU 

MEDIUM $600.00 

 4+ PU 

LARGE $800.00 

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU 

MEDIUM $600.00 

 (3001+ GALLONS) 3-5 PU 

LARGE $800.00 

18
COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE 

IV. FAST FOOD RESTAURANTS 

 SIZE #PICK-UPS 

CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

CANS 1-4 CANS 1 PU 

SMALL $400.00 

SMALL CONTAINER 2 CUBIC YDS 1-4 PU 

SMALL $400.00 

 (0-1000 GALLONS) 5-7 PU 

MEDIUM $600.00 

 8+ PU 

LARGE $800.00 

MEDIUM CONTAINER 4-6 CUBIC YDS 4 CUBIC YDS- 

 (1000-3000 GALLONS) 1-2 PU 

SMALL $400.00 

 3-4 PU 

MEDIUM $600.00 

 5+ PU 

LARGE $800.00 

 6 CUBIC YDS- 

 1-3 PU 

SMALL $600.00 

 4+ PU 

MEDIUM $800.00 

LARGE CONTAINER 8-12 CUBIC YDS 1-2 PU 

MEDIUM $600.00 

 (3001+ GALLONS) 3-5 PU 

LARGE $800.00 

19
COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE 

V. SUPERMARKETS 

 SIZE #PICK-UPS 

CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

SMALL CONTAINER 2-6 CUBIC YDS 1-6 PU 

SMALL $800.00 

 (0-3000 GALLONS) 7+ PU 

LARGE $1,200.00 

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS- 

 (3001+ GALLONS) 1-4 PU 

SMALL $800.00 

 5+ PU 

LARGE $1,200.00 

 10 CUBIC YDS- 

 1-3 PU 

SMALL $800.00 

 4+ PU 

LARGE $1,200.00 

 12+ CUBIC YDS- 

 1-2 PU 

SMALL $800.00 

 3+ PU 

LARGE $1,200.00 

20
COUNTY OF WISE, VA 

LANDFILL USE FEE-RATE SCHEDULE 

VI. HOSPITAL, MEDICAL, ETC. 

 SIZE #PICK-UPS 

CLASSIFICATION FEE AMOUNT 

 -----------------------------------------------

--------------------------- 

 

SMALL CONTAINER 2-6 CUBIC YDS 1-6 PU 

SMALL $1,200.00 

 (0-3000 GALLONS) 7+ PU 

LARGE $2,000.00 

LARGE CONTAINER 8-18 CUBIC YDS 8 CUBIC YDS- 

 (3001+ GALLONS) 1-4 PU 

SMALL $1,200.00 

 5+ PU 

LARGE $2,000.00 

 10 CUBIC YDS- 

 1-3 PU 

SMALL $1,200.00 

 4+ PU 

LARGE $2,000.00 

 12+ CUBIC YDS- 

 1-2 PU 

SMALL $1,200.00 

 3+ PU 

LARGE $2,000.00 

21