                                                    EFiled: Sep 18 2017 04:24PM EDT
                                                    Transaction ID 61130333
                                                    Case No. 12347-VCS
   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


CAMDEN-WYOMING SEWER &                    :
WATER AUTHORITY,                          :
                                          :
                          Plaintiff,      :
                                          :
                                                 C.A. No. 12347-VCS
           v.                             :
                                          :
TOWN OF CAMDEN,                           :
                                          :
                          Defendant.      :




                         MEMORANDUM OPINION


                        Date Submitted: August 9, 2017
                       Date Decided: September 18, 2017




Mary E. Sherlock, Esquire of Weber Gallagher Simpson Stapleton Fires & Newby,
LLP, Dover, Delaware, Attorney for Plaintiff.

Craig T. Eliassen, Esquire and William W. Pepper Sr., Esquire of Schmittinger and
Rodriguez, P.A., Dover, Delaware, Attorneys for Defendant.




SLIGHTS, Vice Chancellor
      This case concerns a municipality’s authority (or not) to exact a $27,000

charge from a sewer and water authority for a building permit. Plaintiff, Camden-

Wyoming Sewer and Water Authority (the “Authority”), undertook to construct a

one million gallon water storage tank in Camden, Delaware (the “Water Storage

Tank” or “Tank”), which was to serve that town’s residents. In connection with this

project, the Authority applied for a building permit from defendant, Town of

Camden, and requested that the Town waive any building permit fees. The Town

declined to do so, and refused to issue the Authority a building permit for the Water

Storage Tank until the Authority paid the Town a $27,000 “building permit fee.”

The Authority did not pay the $27,000 charge, which prompted the Town to issue a

“stop work” order respecting the Tank.          The Authority filed this suit shortly

thereafter, seeking the following relief:

      1. a preliminary injunction enjoining the Town from restricting the
         completion, use, maintenance, and operation of the Tank;

      2. a permanent injunction enjoining the Town from restricting the use,
         maintenance, and operation of the Tank; and

      3. a declaratory judgment to the effect that the Town cannot assess the
         $27,000 “building permit fee” against the Authority.1

      The Court declined to grant the preliminary injunction sought by the

Authority, and the parties have since briefed and argued cross-motions for summary


1
  Verified Compl. for Prelim. Inj., Permanent Injunctive Relief and a Declaratory J. ¶¶ 30–
31 (May 17, 2016) [“Compl.”].

                                            1
judgment. At the Court’s request, the parties have also submitted supplemental

briefing on certain discrete issues, including whether the $27,000 “building permit

fee” imposed by the Town of Camden is, in actuality, a tax from which the Authority

is statutorily exempt.

       For the reasons that follow, I have concluded that the $27,000 charge,

although labeled a “permit fee,” is actually, in this particular case, a tax. Under

16 Del. C. § 1410, the Authority is exempt from taxation. Therefore, the Authority’s

motion for summary judgment will be granted.

                                I.     BACKGROUND

       The facts are drawn from the parties’ stipulated statement of facts, the

evidentiary record developed by the parties through discovery and those matters of

which the Court may take judicial notice.

    A. The Parties

       Plaintiff, the Authority, is a duly organized sewer and water authority,

established by the Towns of Camden and Wyoming pursuant to 16 Del. C. § 1402.2

Since the Authority’s establishment in 1962, it has constructed pump stations and



2
   Parties’ Stipulated Statement of Facts ¶¶ 1, 3 (Aug. 26, 2016) [“Stip.”]. As noted, the
Authority is a creature of statute: [T]he governing body of [one or more]
municipalit[ies] . . . [may create] an authority to acquire, construct, reconstruct, extend,
repair, improve, maintain and operate” a “water system, sewer system [or] any combination
or part or parts thereof . . . .” 16 Del. C. §§ 1402(a)(1), 1401(9).

                                             2
other water infrastructure within the boundaries of both Camden and Wyoming.3

Today, the Authority owns and operates the water system and infrastructure for both

Towns, generating operating revenue by charging fees for water and sewer services.4

         The Authority is organized as a non-stock corporation and operates under the

direction of a six-member board of directors (“Board”).5 The Authority’s Board

consists of three residents of Camden appointed by the Camden Town Council and

three residents of Wyoming appointed by the Wyoming Town Council.6 By virtue

of the Authority’s status as a sewer and water authority, the Authority is exempt

from state, county, and municipal taxes.7

         Defendant, Town of Camden, is an incorporated municipality located in Kent

County, Delaware. The Town’s governing body is the Camden Town Council,




3
    Stip. ¶ 8.
4
    Id. ¶¶ 5–6
5
    Id. ¶¶ 4, 7.
6
    Id. ¶ 7.
7
   Id. ¶ 4; 16 Del. C. § 1410 (“No authority shall be required to pay any taxes or assessments
upon any project acquired, constructed or operated by it under this chapter or upon the
income therefrom . . . .”).

                                              3
which comprises a mayor and four council members.8 The Camden Town Council

is empowered to regulate the issuance of building permits, among other things.9

      B. The Water Storage Tank

         The Water Storage Tank is located at 3680 Upper King Road, Camden,

Delaware (the “Property”).10 The Authority purchased the Property on February 14,

2014.11 The Property was originally in the un-annexed boundaries of Kent County,

but on December 1, 2014, was annexed into the Town of Camden.12

         On April 23, 2015, the Authority submitted a building permit application to

the Town of Camden, attaching detailed plans, drawings, photographs and

specifications for the proposed Water Storage Tank and its foundation.13 At that

time, the Authority requested in writing that the Town waive any building permit

fees, as the Town had done in the past.14 The Town denied this request. Instead, on




8
     Charter of the Town of Camden § 4 [“Camden Charter”].
9
     Camden Charter § 25(a.)(20.).
10
     Stip. ¶ 9.
11
     Id. ¶ 11.
12
     Id. ¶¶ 10, 12.
13
     Id. ¶ 14.
14
     Id. ¶ 15; see Affidavit of Harold L. Scott ¶¶ 5–6 (Aug. 25, 2016).

                                               4
August 3, 2015, the Town resolved to charge the Authority a $27,000 “building

permit fee” in connection with the Tank’s construction.15

         The Town refused to issue a building permit for the Water Storage Tank until

the $27,000 charge was paid.16 The Authority, in turn, refused to pay the $27,000

charge. In its riposte, the Town issued a “stop work” order respecting the Water

Storage Tank on April 18, 2016.17 This litigation followed.

      C. Procedural Posture

         The Authority filed its complaint against the Town of Camden on May 17,

2016. Thereafter, the parties quickly agreed to a scheduling order that included the

filing of a stipulated statement of facts by the end of August 2016.18




15
     Stip. ¶¶ 16–17.
16
     Id. ¶ 18.
17
   Compl. Ex. I (the “stop work” order); Def.’s Supplemental Mem. of Law 4
(Apr. 10, 2017) [“DSML”]. In August 2016, the parties entered into an agreement whereby
the Authority deposited the disputed $27,000 charge into defense counsel’s escrow account
in exchange for the Town of Camden’s lifting the “stop work” order on the Water Storage
Tank (the “Escrow Agreement”). Pl.’s Answering Br. in Opp’n to Def.’s Mot. for
Summ. J. 2 (Sept. 16, 2016) [“PAB”]. The Water Storage Tank is now full of water and
operational. Letter from Mary E. Sherlock, Esq. to Vice Chancellor Slights Concerning
Status of Water Storage Tank (Aug. 9, 2017) (“[The Authority’s] new water tank is filled
and has been activated and up and running for approximately one and a half months.”).
18
     Stipulated Scheduling Order ¶ 3 (July 1, 2016).

                                              5
       The parties were able to stipulate to most of the relevant facts, which allowed

for limited discovery followed by cross-motions for summary judgment. 19 Oral

argument on those motions was held on December 29, 2016.

       At the close of that argument, the Court requested that the parties submit

supplemental briefing on certain discrete issues, including whether the $27,000

“building permit fee” charged by the Town of Camden for the Water Storage Tank

is, in actuality, a tax from which the Authority is statutorily exempt. The parties

submitted simultaneous supplemental briefs addressing this issue, and the Court

heard additional oral argument on August 9, 2017.

                                    II.    ANALYSIS

       The parties’ cross-motions for summary judgment require the Court to

determine whether the Town of Camden may exact the disputed $27,000 charge

from the Authority. Here, the dispositive question is whether that $27,000 charge is

properly characterized as a “fee” or a “tax” in legal contemplation.20 The parties’

cross-motions are governed by a well-settled standard of review.


19
  The parties’ Escrow Agreement obviates any need for injunctive relief in this case. The
only remaining relief that the Authority seeks is a declaratory judgment to the effect that it
need not pay the disputed $27,000 charge to the Town. PAB at 2.
20
   The Town contends that “[t]he Authority should be precluded from . . . arguing that
[the $27,000 charge] is grossly disproportionate.” DSML at 8. Specifically, the Town’s
rationale is that the $27,000 charge was a “compromise fee,” given that (1) “[T]he
Authority suggested the amount of the fee in its counsel’s July 14, 2015, letter[,] [which]
provided data as to the amount of the building permit fee it would have paid to Kent County
[$27,183.50], Sussex County and New Castle County”; and (2) “One of [the Authority’s]
                                              6
   A. Standard of Review on Cross-Motions for Summary Judgment

       Under Court of Chancery Rule 56(h), “[w]here the parties have filed cross

motions for summary judgment and have not presented argument to the Court that

there is an issue of fact material to the disposition of either motion, the Court shall

deem the motions to be the equivalent of a stipulation for decision on the merits



Board members [Mr. Ridgely] specifically endorsed the [$27,000 charge] at the August 3,
2015, meeting of the Camden Town Council.” Id. at 7–8; Def.’s Answer Exs. A and B
(June 6, 2016) [“Ans.”].
    The Town’s argument in this regard falls flat for two reasons. First, the Town’s
argument is, in essence, an estoppel-based argument. The Town has not pled estoppel.
See generally Ans. Of course, estoppel is an affirmative defense, Ct. Ch. R. 8(c); and, as
such, it generally “must be pled or [it will be] waived” and excluded from the case. James
v. Glazer, 570 A.2d 1150, 1153 (Del. 1990). Here, because the Town has failed to
plead estoppel, the Town has forfeited that defense. Second, even if the Town had
properly pled estoppel, the Town has failed to establish the elements of that defense. To
establish estoppel, the party asserting it must show by clear and convincing evidence that
“(i) [it] lacked knowledge or the means of obtaining knowledge of the truth of the facts in
question; (ii) [it] reasonably relied on the conduct of the party against whom estoppel is
claimed; and (iii) [it] suffered a prejudicial change of position as a result of [its] reliance.”
Nevins v. Bryan, 885 A.2d 233, 249 (Del. Ch. 2005), aff’d, 884 A.2d 512 (Del. 2005).
Here, the Town has not adduced clear and convincing evidence that it lacked the means of
obtaining knowledge of the Authority’s true position concerning the $27,000 charge. Nor
has the Town adduced clear and convincing evidence that the Authority manifested assent
to pay $27,000 as a “compromise fee.” The July 14, 2015 letter from the Authority’s
counsel to the Town does not manifest such assent. That letter first “formally request[s]
that the Town . . . reconsider waiving its construction Permit Fee . . . .” Ans. Ex. A, at 1.
It is only “[i]n the alternative” that the letter “request[s] that the Town consider a substantial
reduction of its Permit Fee [to] bring[] it in line with [fees charged by] the three
counties . . .” (which average $28,165 in the case of the Water Storage Tank). Id. at 2. No
reasonable reader could conclude that this latter, alternative request is a manifestation of
assent by the Authority to pay $27,000 as a “compromise fee.” Nor is it of legal import
that one of the Authority’s Board members, Mr. Ridgely, “specifically endorsed” the
$27,000 charge at the Camden Town Council’s August 3, 2015 meeting. The record does
not establish that Mr. Ridgely spoke for the Authority’s Board as a whole (or that he was
authorized to do so).

                                                7
based on the record submitted with the motions.”21 Here, the parties have filed cross-

motions for summary judgment, and neither has argued that there is any issue of

material fact that would prevent the Court from deciding the motions as a matter of

law based on the record that has been submitted. Accordingly, the Court will decide

the parties’ cross-motions as a matter of law based on that record.

      B. “Fee” or “Tax”
         Whether the Town of Camden may exact the $27,000 charge from the

Authority turns on whether that charge is legally characterized as a fee or a tax. The

Authority is a sewer and water authority established pursuant to 16 Del. C. § 1402,22

and such authorities are exempt from state, county and municipal taxes.23 Thus, if

the disputed $27,000 charge is actually a “tax,” then the Town may not exact that

charge from the Authority (and the Authority need not pay it).

         It is often difficult to determine whether the government’s exaction of a sum

of money constitutes a “fee” or a “tax.”24 Our Superior Court’s opinion in City of



21
     Ct. Ch. R. 56(h).
22
     Stip. ¶¶ 1, 3.
23
   16 Del. C. § 1410 (“No authority shall be required to pay any taxes or assessments upon
any project acquired, constructed or operated by it under this chapter or upon the income
therefrom . . . .”). See also Stip. ¶ 4.
24
   See Conard v. State, 16 A.2d 121, 124–25 (Del. Super. Ct. 1940) (“It is frequently
difficult to determine whether the imposition of a charge or fee by the government is an
exercising of the police power or of the taxing power.”).

                                            8
Wilmington v. McDermott,25 however, provides meaningful guidance here: “A tax

is a pecuniary burden, exacted by legislative authority, upon individuals or property

to support the government. A tax is an enforced contribution, not a voluntary

payment . . . [and is imposed] without reference to peculiar benefits to particular

individuals or property.”26

         A fee, by contrast, is a pecuniary exaction the “primary object” of which is to

regulate “relative rights, privileges or duties as between individuals,” or otherwise,

to protect “the safety of the public . . . . ”27 Fees function to offset the incremental

costs (to the government) of “regulating” the fee payer or policing particular safety

risks associated with the fee payer’s conduct.28




25
     2008 WL 4147580 (Del. Super. Ct. Aug. 26, 2008).
26
     Id. at *2.
27
     Conard, 16 A.2d at 125.
28
   See 9 Eugene McQuillin, The Law of Municipal Corporations § 26:16 (3d ed. 1966)
(“[C]harges to cover the cost of regulation of a business or occupation and not to raise
revenue are license fees and not taxes for revenue.”) (footnote omitted); cf. id. at § 26:17
(“In determining whether a charge imposed by a local government is a . . . regulatory fee
or a[] . . . tax, [relevant considerations include] . . . whether the money collected from the
fees is segregated and allocated exclusively to regulating the entity or activity being
assessed[;] and . . . whether a direct relationship exists between the rate charged and either
a service received by the fee payers or a burden to which they contribute.”) (footnote
omitted).

                                              9
        That the government labels a particular pecuniary exaction a “fee” does not

make it so.29     For instance, if the amount of a permitting “fee” is “grossly

disproportionate” to the government’s direct and indirect permitting costs, the “fee”

then “becomes a tax . . . . ”30 More generally, if there is no “direct relationship . . .

between the [fee] charged and either a service received by the fee payer[] or a burden

to which [it] contribute[s],” then a purported “fee” is more properly characterized as

a tax.31 This follows from McDermott’s conception of taxation; namely, that taxes

are compulsory pecuniary exactions from individuals or property, imposed in order

to support the government and “without reference to peculiar benefits to particular

individuals or property.”32

     C. The $27,000 Building Permit Fee Imposed by the Town of Camden is
        Actually an Impermissible Tax.


29
   See id. at § 26:17 (“The name by which the exaction is described is immaterial in
determining whether it is a regulatory fee or a revenue-raising tax. Instead, the incidents
of an exaction are to be considered in determining its true character. The distinction
between a tax and a [fee] is not one of names, but one of substance.”) (footnotes omitted);
State v. Harbor House Seafood, 1997 WL 1704528, at *2 (Del. Com. Pl. Apr. 2, 1997)
(“[A regulatory] fee must be reasonable and related to the cost of such regulation. . . . [I]f
the fee exacted is ‘grossly disproportionate’ to [those] expenses, it becomes a tax . . . .”).
30
     Harbor House Seafood, 1997 WL 1704528, at *2.
31
   9 McQuillin, supra note 28, at § 26:17; cf. Conard, 16 A.2d at 125 (“When the payment
of [a license] fee allows the carrying on of the business without the performance of any
other condition, and the license is subject to no restriction or regulation, and no option
exists to refuse the issuance of the license, then the payment of the license fee is a tax for
revenue.”).
32
     2008 WL 4147580, at *2.

                                             10
           In this particular case, the $27,000 charge imposed by the Town of Camden

is properly characterized as a tax. The charge is a pecuniary exaction from the

Authority that, by all accounts, was calculated “without reference to peculiar

benefits to [the Authority] or [to the Property].”33 It is a “compulsory” charge in that

the Town will not issue a building permit for the Tank unless and until that charge

is paid.34      And the Town’s exaction of that charge will support the Town’s

government generally (as opposed to supporting any licensing or inspection

function); indeed, building permit fees ultimately go to the Town’s general revenue

fund.35 Simply stated, there is no “direct relationship” between the amount of the

charge and the Town’s provision of services or expenditure of funds respecting the

Water Storage Tank project.36 The Town has not directed the Court to any evidence

of such a relationship—save for the Town’s provision of certain police patrols in the

Tank’s vicinity.37



33
     Id.
34
     See Stip. ¶ 18.
35
  See Deposition of Jamie Fenske 29:11-21 (Feb. 21, 2017); Pl.’s Legal Mem. of Law
Ex. D, at 5-13 (Town of Camden Budget, FYs 2016 and 2017) (Apr. 10, 2017).
36
   9 McQuillin, supra note 28, at § 26:17; see Harbor House Seafood, 1997 WL 1704528,
at *2 (“[A regulatory] fee must be reasonable and related to the cost of such regulation. . . .
[I]f the fee exacted is ‘grossly disproportionate’ to [those] expenses, [then] it becomes a
tax . . . .”).
37
     See Affidavit of William E. Bryson ¶¶ 2–4 (Mar. 2, 2017).

                                              11
         The deposition testimony of the Town’s clerk, Jamie Fenske, does not

quantify the amount of time, effort, administrative resources, etc. that she and Harold

Scott, Jr., the Town’s code enforcer and building inspector, dedicated to the Water

Storage Tank project.38 Nor does such quantitative information appear elsewhere in

the record.      Without such information, the Court cannot discern any “direct

relationship” between the disputed $27,000 charge and either a service received by

the Authority or a burden associated with the Authority’s construction of the Water

Storage Tank.39

         With regard to the Town’s provision of police patrols in the Tank’s vicinity,

the record does not show that the Town incurred substantial costs to provide that

specific service.40 More to the point, the record does not show (or even suggest) that

the construction of the Water Storage Tank materially changed the Town’s ordinary


38
     See generally Fenske Dep.
39
   Had the Authority paid the disputed $27,000 charge, the Town of Camden would have
issued a building permit for the Water Storage Tank. See Fenske Dep. 39:3–40:2, 41:15–
22. Yet the record does not show (or even suggest) that the Town has incurred anywhere
near $27,000 in direct and indirect costs in connection with processing the Authority’s
application for a building permit for the Tank or otherwise in connection with the Tank
project. See id. at 31:20–34:5. Nor does the record indicate that the Town would have
incurred such costs had it issued that building permit. See id.
40
  The affidavit of Mr. Bryson, the Town’s Chief of Police, states, “Over the last 17 months,
or so, my officers have performed many patrol checks of the site [of the Water Storage
Tank], both during construction and since construction has been completed.” Bryson Aff.
¶¶ 1, 4. This phrasing suggests that an officer’s beat generally includes “patrol checks” of
various different areas; however, it does not suggest that the construction of the Water
Storage Tank necessitated a quantifiable increase in the Town’s spending on police patrols.

                                            12
policing activities or otherwise necessitated increased spending on police patrols—

at least not to the tune of roughly $27,000 in additional expenditures.

         In addition, Ms. Fenske further testified that, to her knowledge, the Town did

not contract with its usual go-to contract engineer, Kevin Minick, to conduct any

review or inspection of the Water Storage Tank.41           And the Town’s counsel

represented at oral argument that Mr. Minick in fact did not do any contract work on

the Tank, and that the Town heavily deferred to the Authority’s own engineer.42 If

that is the case, then the amount of the disputed charge—$27,000—appears even

more disproportionate relative to the Town’s (limited) undertakings with respect to

the Water Storage Tank project.

                                       * * * * *

         Based on the record, the Court has determined (1) that the $27,000 charge

imposed by the Town is a compulsory pecuniary exaction from the Authority that

goes to support the Town’s government generally, and (2) that there is no “direct

relationship” between the amount of that charge and either a service received by the

Authority or a burden associated with the Authority’s construction of the Water

Storage Tank. Accordingly, the Court holds, as a matter of law, that the $27,000



41
     Fenske Dep. at 14:8–15:4.
42
     Tr. of Aug. 9, 2017 Oral Arg. 17:15–18:7.

                                             13
charge imposed by the Town is, in this particular case, a tax. As a sewer and water

authority, the Authority is statutorily exempt from such a tax.43 It need not pay the

$27,000 charge.

                                III.   CONCLUSION

      For the foregoing reasons, the Authority’s motion for summary judgment is

GRANTED, and the Town of Camden’s motion for summary judgment is DENIED.

The Authority shall submit an implementing order, on notice to the Town of

Camden, within 10 days.




43
   16 Del. C. § 1410 (“No authority shall be required to pay any taxes or assessments upon
any project acquired, constructed or operated by it under this chapter or upon the income
therefrom . . . .”).

                                           14
