PRESENT: All the Justices 

GREGORY M. TWIETMEYER, ET AL. 

 OPINION BY 

v. Record No. 971042 JUSTICE CYNTHIA D. KINSER 

 February 27, 1998 

CITY OF HAMPTON 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 This appeal involves the validity of an interim 

ordinance adopted by the City of Hampton to impose a 

stormwater management fee on real property owners. Gregory 

M. and Rita F. Twietmeyer (the Twietmeyers) refused to pay 

the fee. They contend that the ordinance does not base the 

fee on a property’s contribution to stormwater runoff, and 

thus, does not comply with the enabling statute, Code § 

15.1-292.4.1 Because the Twietmeyers failed to overcome the 

ordinance’s presumption of validity, we will affirm the 

circuit court’s judgments against the Twietmeyers. 

I. 

 Code § 15.1-292.42 authorized local governments to 

adopt stormwater control programs and to impose charges on 

 1

 This section was originally codified in Code § 15.1-

292.4, but is now codified in Code § 15.2-2114. For 

purposes of this opinion, references are to the section in 

effect at the commencement of this action. 

 

2

 Code § 15.1-292.4 stated in pertinent part: 
property owners to finance the cost of the programs. 

Pursuant to Code § 15.1-292.4, the City adopted an interim 

stormwater management fee ordinance, Hampton City Code § 

33.1-16,3 (the Ordinance), which became effective on July 1, 

1993. 

_______________

Regulation of stormwater. – A. The governing 

body of every county, city or town, by ordinance, 

may adopt a stormwater control program consistent 

with Article 1.1 (§ 10.1-603 et seq.) of Chapter 

6 of Title 10.1, or any other state or federal 

regulation, by establishing a utility or enacting 

a system of service charges. Any locality which 

administers a stormwater control program may 

recover costs associated with planning, design, 

land acquisition, construction, operation and 

maintenance activities. Income derived from 

these charges shall be dedicated special revenue 

. . . . 

B. The charges may be assessed to property 

owners or occupants, including condominium unit 

owners or tenants . . . and shall be based upon 

their contributions to stormwater runoff . . . . 

 3

 Section 33.1-16 of the Hampton City Code provides as 

follows: 

 Stormwater management fees. 

(a) Interim flat-rate stormwater management fees 

are hereby authorized for all properties in the 

city of Hampton, regardless of tax exemption, 

with the exception of property owned by the city 

of Hampton or a unit of the city which shall 

receive a full waiver of charges. The following 

monthly rates shall apply to each month since the 

effective date of this ordinance or the last 

assessment billing, whichever constitutes the 

fewer months: 

2
At that time, the Twietmeyers jointly owned seven 

parcels of residential property in the City. During the 

fiscal year July 1, 1993, through June 30, 1994, the 

Twietmeyers did not pay the stormwater management fees 

assessed by the City on any of their parcels of land. 

Thus, on March 18, 1996, the City filed seven motions for 

judgment against the Twietmeyers in the General District 

Court for the City of Hampton to collect the stormwater 

management fees attributed to or levied upon their parcels. 

In response, the Twietmeyers asserted that the Ordinance 

does not comply with Code § 15.1-292.4. The general 

district court consolidated the actions and entered 

judgment against the Twietmeyers for $210. The Twietmeyers 

then appealed to the Circuit Court of the City of Hampton. 

Neither the Twietmeyers nor the City presented any 

testimony before the circuit court. The Twietmeyers did, 

however, introduce into evidence a Feasibility Study of 

Stormwater Management Financing Alternatives dated April 

_______________ 

Monthly Rate

 Residential Properties $ 2.50 

 Non-residential Properties $12.50 

Residential and Non-Residential (which shall 

consist of all other properties grouped together) 

properties shall be as defined by the city 

assessor. 

3
13, 1993, and prepared for the City by the consulting firm 

of Black & Veatch (Black & Veatch Study). The Black & 

Veatch Study recommended that the interim fee be based upon 

“equivalent residential units,” that a residential parcel 

be equal to one such unit, and that a commercial parcel be 

equal to five units. The Study also stated that stormwater 

user fee structures are generally based on such parameters 

as impervious area, percentage of impervious area, gross 

area and intensity of development, or gross area and type 

of development. 

The Twietmeyers again argued that the Ordinance fails 

to assess the fee on the basis of a property’s contribution 

to stormwater runoff as required by Code § 15.1-292.4. In 

support of their argument, they relied primarily on an 

Attorney General Opinion, which concluded that the 

Ordinance lacks any rational connection between the amounts 

charged and runoff contributions. Conservation: Flood 

Protection and Dam Safety – Stormwater Management, 1995 Op. 

Va. Att’y Gen. 91. 

After argument by the parties, the circuit court 

entered seven judgments against the Twietmeyers in the 

amount of $30 each, for a total of $210. Each judgment 

involves a “matter not merely pecuniary.” Code § 8.01-672. 

Thus, this Court is not prevented from exercising 

4
jurisdiction because of the amount of each judgment. The 

Twietmeyers appeal. 

II. 

Our review of the Twietmeyers’ challenge to the City’s 

Ordinance is guided by established principles regarding an 

ordinance’s presumption of validity: 

Municipal corporations are prima facie the sole judges 

of the necessity and reasonableness of their 

ordinances, and "the presumption of their validity 

governs unless it is overcome by unreasonableness 

apparent on the face of the ordinance or by extrinsic 

evidence which clearly establishes the 

unreasonableness. This presumption is based upon the 

broad general principle that every intendment will be 

made in favor of the lawfulness of the exercise of 

municipal power.” 

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

280, 315 S.E.2d 835, 839-40, cert. denied, 469 U.S. 925 

(1984) (quoting National Linen Service v. Norfolk, 196 Va. 

277, 279, 83 S.E.2d 401, 403 (1954)). Thus, for the 

Twietmeyers to prevail, the Ordinance must be unreasonable 

on its face, or they must present evidence clearly proving 

its unreasonableness. We also “accord the trial court’s 

finding a presumption of correctness.” Tidewater Ass’n of 

Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 

122, 400 S.E.2d 523, 528 (1991). 

 Applying this standard of review, we first address the 

Twietmeyers’ argument that the Ordinance is facially 

5
unreasonable. They assert that, since the Ordinance 

contains only two categories of fees, residential and nonresidential, and does not differentiate between properties 

within each category on the basis of other factors such as 

impervious area or type of development, the Ordinance does 

not satisfy the mandate of Code § 15.1-292.4(B). In sum, 

they contend that no correlation exists between the fees 

and a property’s contribution to stormwater runoff. We do 

not agree. 

Although the Ordinance uses the term “flat rate,” it 

does not charge all properties in the City the same fee. 

Rather, the Ordinance, on its face, imposes a higher fee on 

non-residential property at a ratio of five times the fee 

imposed on residential property.4 Thus, considering the 

Ordinance solely on its face, we find that its fee 

structure is neither unreasonable nor based on some factor 

other than the amount of contribution to stormwater runoff. 

Indeed, the Attorney General, in the opinion relied on by 

the Twietmeyers, stated that “a locality adopting such 

service charges may need to impose an initial schedule of 

 4

 The City argued that it actually had three 

classifications of property because it adopted a resolution 

in February 1994 that remitted fees charged for undeveloped 

properties, whether zoned residential or commercial. 

However, we base our decision on the two categories 

contained in the Ordinance. 

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charges that categorizes properties in some manner that 

only approximates, on an average basis, their respective 

runoff contributions.” Conservation: Flood Protection and 

Dam Safety – Stormwater Management, 1995 Op. Va. Att'y Gen. 

91, 92. Because the Ordinance differentiates between 

residential and non-residential property, we conclude that 

the fee charged bears a rational correlation to the amount 

of stormwater runoff. 

The Twietmeyers, nevertheless, argue that our decision 

in Violett v. City Council of Alexandria, 92 Va. 561, 23 

S.E. 909 (1896), prescribes a different result. We do not 

agree. In that case, Alexandria’s charter provided that 

whenever a street was laid out, paved, or repaved, 

Alexandria could charge two-thirds of the expenses to “the 

owners of the real estate benefitted thereby.” Id. at 562, 

23 S.E. at 909. Alexandria, however, assessed property 

owners on the basis of the property’s frontage on the 

improved street. We framed the question on appeal as: 

[W]hen the Legislature has delegated the 

authority to cities or towns to assess the 

expense on the lots or property benefited, 

whether such a delegation of power limits the 

municipal authorities as to the mode of making 

the assessment, or whether, having such 

authority, they may select the mode of 

apportioning the expense, and impose it by the 

front foot, square foot, or value . . . . 

Id. at 577-78, 23 S.E. at 914. 

7
We concluded that Alexandria’s assessment was invalid 

because the mode of assessment, the property’s frontage on 

the improved street, differed from the mode authorized, the 

property benefited by the improvement. Id. at 580, 23 S.E. 

at 915. Unlike the assessment in Violett, the City’s 

Ordinance does not employ an unauthorized mode of 

assessment. On its face, the Ordinance differentiates 

between residential and non-residential property, and we 

cannot say that the differentiation bears no relation to a 

property’s contribution to stormwater runoff. 

We also find the Twietmeyers’ reliance on authorities 

discussing a municipal corporation’s taxing power to be 

misplaced. The General Assembly granted the City the 

authority to enact the Ordinance under its police powers. 

The fee is tied directly to the administration of 

stormwater management and is not meant to raise general 

revenue. Thus, the stormwater management fee is a 

regulation, not a tax. City of Virginia Beach v. Virginia 

Restaurant Assoc., 231 Va. 130, 134, 341 S.E.2d 198, 200 

(1986); see also Weber City Sanitation Commission v. Craft, 

196 Va. 1140, 1151, 87 S.E.2d 153, 160 (1955) (holding that 

a charge for use and service of water system is not a tax). 

8
Finally, we deny the Twietmeyers’ request that the 

Court adopt the Attorney General’s Opinion that the 

Ordinance lacks any rational connection between the amounts 

charged and runoff contributions. “While [the opinion is] 

entitled to due consideration, [it is] not binding on this 

Court.” Virginia Restaurant Assoc., 231 Va. at 135, 341 

S.E.2d at 201. 

Since the Ordinance is not facially unreasonable and 

the Twietmeyers did not present any evidence of 

unreasonableness, the presumption of validity governs. 

Town of Narrows, 227 Va. at 280, 315 S.E.2d at 839-40. 

Therefore, we will affirm the judgments of the circuit 

court. 

Affirmed.

CHIEF JUSTICE CARRICO, with whom JUSTICE HASSELL and 

JUSTICE KOONTZ join, dissenting. 

 I respectfully dissent from the majority’s decision to 

uphold the validity of the ordinance at issue in this case. 

In my opinion, the threshold question to be decided is not 

whether the ordinance is reasonable or unreasonable, as the 

majority posits, but whether, in adopting the ordinance, 

the City of Hampton acted within the bounds of the 

authority granted by the General Assembly in Code § 15.1-

292.4. Only if the threshold question is answered in the 

9
affirmative would the question of reasonableness ever be 

reached. 

 In my view, the answer to the threshold question 

should be in the negative, and I think the fact that the 

City exceeded its authority appears from the face of the 

ordinance itself. Code § 15.1-292.4 provides that service 

charges for stormwater control programs assessed to 

property owners and occupants “shall be based upon their 

contributions to stormwater runoff.” This language clearly 

envisions some sort of individualized treatment of the 

different parcels of land in the city. Yet, the Hampton 

ordinance authorizes flat rate stormwater management fees 

for all properties in the city. The flat-rate language 

ignores the concept of individualized treatment and 

disregards the statutory requirement that the charges 

should be based upon contributions to stormwater runoff. 

 Nor, in my opinion, is the situation saved for the 

City by the fact that different rates are prescribed for 

residential properties and non-residential properties. The 

flat-rate evil of the assessment permeates the entirety of 

each of the two classes of property, still ignoring the 

concept of individualized treatment and disregarding the 

statutory requirement that the charges should be based upon 

contributions to stormwater runoff. 

10
 Accordingly, I would reverse the judgment of the trial 

court. 

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