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Wednesday, September 20, 2017 - 05:02 AM
INDEPENDENT CONSERVATIVE VOICE OF THE PALMETTO STATE
Greenville County Council Dispute Going to Court PDF Print E-mail
Written by Bob Dill, Publisher   
Tuesday, 08 August 2017 00:00

The legal battle in Greenville County Council is coming to a conclusion – at least in court.

The legal complaint filed by  members of Greenville County Council against Chairman Butch Kirven will be heard in the Greenville County Courthouse Wednesday Morning, August 9 at 9:30 am.

The dispute began when Chairman Kirven ruled that fees on county taxpayers could be increased with only 7 votes of the 12 member Council. Council rules state that increases in taxes and fees require more than a simple majority.

Councilmen Willis Meadows, Joe Dill and Mike Barnes along with state lawmakers and other citizens asked the State Attorney General for an opinion on the Kirven decision. When the Attorney General opinion disagreed with Kirven, he decided to ignore it. That action by the chairman forced  his opposition on Council to go to court to force compliance.

Kirven stripped committee chairmanships from both Meadows and Dill as apparent punishment for objecting to his violation of County Council policy. Barnes is in his first term and chairs no committee.
The case to be presented in the court of common pleas is in part as follows:

On or about December 13, 2004 the Defendant Council pursuant to Ordinance 3867 passed the “Taypayer Protection Provision,” as follows:

A three-fourths vote by the full membership of County Council shall be required to take any action, which would raise taxes or fees or harm the County’s AAA credit rating. Such actions include the following: to approve the issuance of General Obligation Bonds (bonds pledging the full faith and credit of Greenville County); in increase Ad Valorem Property Tax Levies for the County General Operating Millage; to increase the amount of any fee assessment established by County Council; to implement any new fee or tax assessment; to increase County expenses if such increase would, during the budget period in which the expenses would be incurred, lower County reserves to a level less than the greater of 30% of operating expenses of three months of operating expenses; and to approve Supplemental Appropriations.

This ordinance was passed by nine in favor with two opposed. This provision of this Ordinance was adopted by as part of the Rules of Greenville County Council on numerous occasions and on January 24, 2017 this provision was unanimously adopted as Appendix A of the Rules of Greenville County Council.

This ordinance was preceded by a long history and practice by the Defendant Council of requiring three-fourths votes by the full membership to take any action which would raise taxes or fees.

This ordinance was succeeded by a long history and practice by Defendant Council of requiring three-fourths votes by the full membership to take any action, which would raise taxes or fees.

The Greenville County Road Maintenance Fee is set forth in Greenville County Code §l4-lI and was Set at $15.00 in 1993.

The Defendants have never imposed a county wide fee on each parcel of real property located in Greenville County until the purported passage of the Ordinances set forth below.

The last time taxes or fees were increased by the Defendants was 2002.

These fees and increased fees are in fact tax increases to be suffered by the Greenville County Taxpayers.

South Carolina Code Ann. 4-9-30(5)(a) authorizes the Defendant’s to “assess the property and levy ad valorem property taxes and uniform service charges....” The limitations of the law on the Defendants imposition of uniform service fee is equal protection and reasonableness. Brown vs. County of Horry, 308 S.C. 180, 41? S.E.2d 565(S.C. 1992).

A service fee imposed by the Defendant’s must be based upon the theory that the portion of the community which is required to pay it receive some benefit as a result of the improvement made with the proceeds of the charge.

A classification must also be reasonably related to a proper legislative purpose and the members of each class must be treated equally.

There exists a j usticiable controversy between the parties.

FIRST CAUSE OF ACTION
(Invalidity of the Passage of Ordinances)
The Plaintiffs reiterate and incorporate the preceding allegations into this cause of action as if fully restated herein.
It is within this background that on or about February 7, 2017 that the Defendants introduced an Ordinance by title only called the “Public Safety Telecommunications and Road Maintenance Fees Ordinance.”
At second reading Councilor Fant moved to allow passage of this ordinance by a positive majority vote of the Greenville County Council. That motion failed by a vote of six in favor and six opposed. Thereafter, said ordinance was allegedly approved by a positive majority vote.
At third reading of this Ordinance on or about March 7, 2017 approval of the Ordinance should have required the suspension of Greenville County Council Rules which contained the Taxpayer Protection Provision as set forth above. However, a motion to suspend the rules of Greenville County Council failed.
Thereafter, the Defendants allegedly adopted that Ordinance by a vote of seven in favor and four opposed when the Ordinances and Rules of County Council required a vote of nine in favor.
On or about March 14, 2017 the South Carolina Attorney General issued his opinion that Greenville County Council was required to follow the voting requirements of Ordinance 3867.
The Plaintiffs are informed and believe that the “Public Safety Telecommunications and Road Maintenance Fees Ordinance” was never validly enacted by the Defendants and was allegedly passed in Violation of the requirements of the statutes, rules, policies and practices applicable to Defendant Council and commenced this action to challenge the ordinance’s validity.
In order to attempt to rectify the invalidity of the “Public Safety Telecommunications and Road Maintenance Fees Ordinance” while still denying their invalidity in this lawsuit the Defendants considered and passed an ordinance to repeal the Taxpayer Protection Provision and introduced separate ordinances to again enact a “Public Safety Telecornrnunication Fee” and “Increase the County Road Maintenance Fees.”
On April 18, 2017 the Defendants passed the “Ordinance to abolish the taxpayer protection provision” by a vote of seven in favor and four opposed.
Since the effect of the abolishment of the taxpayer protection provision ordinance was to facilitate a tax increase, this vote itself violated the Rules of County Council as the Rules still required a 3/4 vote for passage of a tax increase.
At this same meeting on April 18, 2017 two separate ordinances were introduced that divided the Road Maintenance fee tax and the telecommunication fee tax and specifically each repealed the “Public Safety Telecommunications and Road Maintenance fee Ordinance” (Ordinance No. 4885).
On June 6, 2017 the separate Increase in County Road Maintenance Fee Ordinance passed on a seven to five vote. The rules of County Council still required a vote of nine in favor and those rules were never suspended.
Plaintiffs are informed and believe that these ordinances were invalid ab initio for the same reasons set for above and below.
The Plaintiffs are informed and believe that the courts should declare the Ordinances as never validly enacted.

FOR A SECOND CAUSE OF ACTION
(invalidity of the Ordinance)
The Plaintiffs reiterate and incorporate the preceding allegations into this cause of action as if fully restated herein.
Even, if the “Ordinance to abolish The Taxpayer Protection provision,” “Public Safety Telecommunications Fees” and “Increase in County Road Maintenance Fees” Ordinances were validly enacted, which is denied, the Plaintiffs are informed and believe that the Ordinances (including Ordinance 2474 as amended by Ordinance 2513) violate their equal protection (S.C. Const. art. I, § 3), statutory and other constitutional rights, including but not limited to the following particulars:
a. By applying the telecommunications fees/taxes solely to the owners of real property.
b. By applying the telecommunications fee/tax to parcels of property regardless of the size and improvements on said properly.
c. By having owners of small unimproved parcels pay the same amount as owners of large improved parcels.
d. By having owners of multiple small parcels pay more than owners of large multi-acreage highly improved single parcels
e. By not applying the telecommunications fee/tax to owners of property that are not a parcel of real estate.
f. By applying the telecommunications fee/tax solely to owners of real estate as there is no rational or reasonable connection between such fee and the service to be provided.
g. By applying the road maintenance fee/tax solely to private owners of motor vehicles
h. By applying the road maintenance fee/tax in the same amount to every vehicle regardless of its value and impact on the county road system.
i. In applying fees/taxes that are not reasonably related to the legislative purpose.
j. In applying fees/taxes that are not uniform in application.
k. In applying fees/taxes in an unequal and discriminatory fashion
l. In having members of the class of persons upon which the fees/taxes are imposed not treated equally.
m. In having fee/tax classifications based upon no reasonable basis
n. In doing such other and further things that would invalidate the Ordinances.
The Plaintiffs are informed and believe that this court should declare the Ordinances invalid.

FOR A THIRD CAUSE OF ACTION INJUNCTIVE RELIEF
(Temporary, Preliminary and Permanent Injunctive Relief)
The Plaintiffs reiterate and incorporate the preceding allegations into this cause of action where not inconsistent herewith.
The Plaintiffs would show that the increased vehicle fees will soon be imposed by the Defendants and that property tax notices containing the telecommunications fees will be issued this fall.
The Plaintiffs will be immediately and irreparably impaired by the enforcement of this Ordinance.
The Plaintiffs will be harmed by any future unlawful adoption of Ordinances raising fees and assessments without compliance with the Ordinances, Rules of Greenville County Council and Statutory and Decisional Laws of the State of South Carolina.
The Plaintiffs are informed and believes that they are entitled to temporary, preliminary and permanent restraining orders/injunctive relief/mandamus against the enforcement of this ordinance and future unlawful enactments.

WHEREFORE, having fully plead, the Plaintiffs request the following:
1. Invalidation of the subject Ordinance.
2. Temporary, preliminary and permanent restraining orders/injunctive relief/mandamus against the Defendants.
3. That the Court determine the respective rights, obligations, duties and liabilities of the parties.
4. For attorney’s fees and cost of this action pursuant to S.C. Code Ann. Section l5-77-300 and Rule 54 SCRCP.
5. For such other and further relief as the court deems just and proper.

 


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