City of Winder v. Barrow County

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 5, 2024

S23G0341. CITY OF WINDER v. BARROW COUNTY.

MCMILLIAN, Justice.

This case addresses three issues of first impression involving

the interpretation and application of the Services Delivery Strategy

(“SDS”) Act (the “Act”), OCGA § 36-70-20 et seq.,1 in connection with

disputes between the City of Winder (the “City”) and Barrow County

(the “County”) about the delivery of services to County and City

residents and property owners and how those services are to be

funded.2 As we explain below, we conclude that whether the

1 OCGA § 36-70-20 explains that the Act is intended “to provide a flexible

framework within which local governments in each county can develop a
service delivery system that is both efficient and responsive to citizens in their
county;” “to minimize inefficiencies resulting from duplication of services and
competition between local governments[;] and to provide a mechanism to
resolve disputes over local government service delivery, funding equity, and
land use.”
2 The Court thanks the Georgia Municipal Association, Inc.; the Cities of

Stockbridge and Valdosta; the Association County Commissioners of Georgia
maintenance of county roads primarily benefits the unincorporated

area of a county requires consideration of the totality of the

circumstances involved and cannot be resolved as a matter of law;

that services that primarily benefit the unincorporated area of the

county must be funded through the mechanisms delineated in the

Act; and that the proceeding set out in the Act for resolution of SDS

disputes does not permit the County to challenge whether water

rates charged by the City are an illegal tax and whether the City

may transfer profits from providing water service into its general

fund.

In 1999, Barrow County and the municipalities located within

the County—the cities of Winder, Auburn, and Statham and the

towns of Bethlehem, Braselton, and Carl—entered into a

comprehensive SDS Agreement for the provision of a number of

services to County and municipal residents and property owners

(“ACCG”); and Bulloch, Cherokee, Dawson, Forsyth, Greene, Gwinnett, Henry,
Lowndes, Lumpkin, Newton, Rabun, Screven, and Walker Counties for their
amici curiae briefs, which greatly assisted us in our consideration of these
important questions of Georgia law. This case was orally argued before this
Court on October 17, 2023.
2
including road maintenance and water utility service. That

Agreement was extended several times and was set to expire on

February 28, 2019. In advance of that deadline and in an effort to

avoid sanctions under the Act,3 the parties attempted to come to a

consensus on a new SDS Agreement, but the negotiations between

the parties did not successfully resolve all of their issues. As a result,

in 2018 and 2019, the County, City, and other municipalities within

the County participated in voluntary mediation under the Act. See

OCGA § 36-70-25.1 (c).4 The parties were able to settle all but two of

forty-one service issues in dispute through mediation.

3 Because the parties failed to agree to an updated SDS Agreement by

the February 28, 2019 deadline, sanctions under OCGA § 36-70-27 (a) were
imposed on the County and each municipality. However, after the County filed
a petition seeking resolution of these issues, the superior court ordered that
the sanctions be held in abeyance during the pendency of the litigation. See
OCGA § 36-70-25.1 (d) (2) (“It shall be in the discretion of the judge to hold the
sanctions specified in Code Section 36-70-27 against one or more of the parties
in abeyance pending the disposition of the action.”).
4 OCGA § 36-70-25.1 (c) provides for the use of alternative dispute

resolution, as follows:
If a county and the affected municipalities in the county are unable
to reach an agreement on the strategy prior to the imposition of
the sanctions provided in Code Section 36-70-27, a means for
facilitating an agreement through some form of alternative dispute
resolution shall be employed.
3
To resolve the remaining conflicts, the County filed a three-

count petition pursuant to OCGA § 36-70-25.1 (d)5 seeking court-

ordered mediation and/or a judicial resolution of the disputes. The

petition identified the remaining service issues as relating to (1) the

funding for the County’s road maintenance and (2) the water utility

service, including “(a) the arbitrariness of the water rate

differentials charged by [the City] to customers located inside and

outside of [the] city limits and (b) [the] County’s authority to provide

water service to all customers located in the unincorporated area of

the County.”

The County later amended its petition to add another count

5 OCGA § 36-70-25.1 (d) (1) (A) allows the parties to seek resolution of

their disputes in superior court:
In the event that the county and the affected municipalities in the
county fail to reach an agreement after the imposition of sanctions
provided in Code Section 36-70-27, then the following process is
available to the parties: . . . [t]he county or any affected
municipality located within the county may file a petition in [the]
superior court of the county seeking mandatory mediation.
If the court-ordered mediation does not resolve the disputes, “any aggrieved
party may petition the superior court and seek resolution of the items
remaining in dispute. The . . . judge shall conduct an evidentiary hearing or
hearings as such judge deems necessary and render a decision with regard to
the disputed items.” OCGA § 36-70-25.1 (d) (2).
4
(“Count IV”) alleging that the City’s water service charges for

residents in unincorporated areas of the County or in another

municipality (the “Outside Customers”) amounted to an illegal tax

on such residents based on the differential in the rates the City

charged its own residents and those it charged the Outside

Customers. Under the previous SDS Agreement between the County

and the City, the City provided exclusive water service to an area

that included the City but also the Outside Customers. The County

alleged that, between 2012 and 2017, the City overcharged the

Outside Customers to generate a total of over $13 million in profit

above the actual cost of providing the service through what it

characterized as arbitrary, excessive, and abusive water rates and

that the City transferred these profits to its general fund. The

County also alleged that throughout the SDS mediation process, the

County demanded that the City discontinue monetary transfers out

of its water fund into the general fund. Count IV “requests that the

Court enter an order finding that the establishment of Outside

Customer water rates and fees at a level designed to generate a

5
profit from Outside Customers constitutes an illegal tax on Outside

Customers and that the City [] does not have the legal authority to

transfer profits collected from the sale of water to Outside

Customers out of its Water Fund and into its General Fund except

to recover the cost of bona fide support provided to the Water Fund

by other governmental funds.”

After the parties participated in court-ordered mediation,

which again failed to resolve the outstanding service delivery issues,

they began to engage in discovery. Prior to the completion of that

process, the County and the City filed cross-motions for partial

summary judgment on the legal issue of what standard should be

used under OCGA § 36-70-24 (3) (A) 6 to determine whether

residents, individuals, and property owners of the incorporated

areas of the County could be charged for the costs of road

maintenance for county roads located in unincorporated areas of the

6 OCGA § 36-70-24 (3) (A) provides in relevant part: “The strategy shall

ensure that the cost of any service which a county provides primarily for the
benefit of the unincorporated area of the county shall be borne by the
unincorporated area residents, individuals, and property owners who receive
the service.”
6
County. The City argued that under OCGA § 36-70-24 (3) (A), the

geographic location of the roads, which necessarily is where the

money would be spent to perform maintenance on the roads

determined which County residents, individuals, and property

owners could be charged for the maintenance,7 while the County

argued that road maintenance funding depended, instead, on who

had access to and used the roads. Thus, the County contended that

municipal residents could also be charged for maintenance of county

roads. The City later filed a second motion for partial summary

judgment, contending that the County’s source of revenue to fund

services for the unincorporated areas was limited to the mechanisms

spelled out in OCGA § 36-70-24 (3) (B): “property taxes, insurance

premium taxes, assessments, or user fees.”8 In addition, the City

7 The City contemporaneously moved to dismiss Count II of the petition,

asserting that the County failed to fulfill the statutory requirements for
bringing such a claim, which the City contended should have been brought in
a separate proceeding. The superior court denied that motion, but the City does
not appeal that ruling.
8 Under OCGA § 36-70-24 (3) (B),

[s]uch funding shall be derived from special service districts
created by the county in which property taxes, insurance premium
taxes, assessments, or user fees are levied or imposed or through

7
filed a motion to dismiss Count IV, arguing that the issues of

whether the City’s water rate charges to Outside Customers

amounted to an illegal tax and whether the City could transfer any

profits gleaned from the excess charges to its general fund were

beyond the scope of the statutory proceeding prescribed in OCGA §

36-70-25.1 (d).

Following a hearing, the superior court granted the County’s

cross-motion for partial summary judgment on the road

maintenance funding issue and denied the City’s motion, concluding

as a matter of law that road maintenance funding “is focused solely

on those ‘that receive the service.’” The court also denied the City’s

second motion for partial summary judgment that sought to limit

the sources of revenue for funding services primarily for the benefit

of the unincorporated areas to property taxes, insurance premium

taxes, assessments, or user fees under OCGA § 36-70-24 (3) (B). In

addition, the court denied the City’s motion to dismiss Count IV of

such other mechanism agreed upon by the affected parties which
complies with the intent of subparagraph (A) of this paragraph[.]
8
the petition.

The City appealed the superior court’s orders to the Court of

Appeals, which affirmed the superior court’s rulings in a split

decision. See City of Winder v. Barrow County, 365 Ga. App. 832 (880

SE2d 323) (2022).

We granted the City’s petition for certiorari to consider the

Court of Appeals’s rulings on three questions:

(1) Is the maintenance of county roads in an unincorporated

area of the County, which connect to roads within the City,

“primarily for the benefit of the unincorporated area” as that phrase

is used in OCGA § 36-70-24 (3) (A)?

(2) Does OCGA § 36-70-24 (3) (B) require that funding for

services provided primarily for the benefit of unincorporated areas

come from “property taxes, insurance premium taxes, assessments,

or user fees” levied or imposed with a special service district, or does

it authorize the County to use other sources of revenue?

(3) Is a superior court that is adjudicating a petition under

OCGA § 36-70-25.1 (d) (2) authorized to determine whether the

9
City’s usage rates charged to water customers in unincorporated

areas of the County are an illegal tax?

1. Addressing each of these issues in turn, we begin with the

parties’ dispute over who should bear the cost of county road

maintenance in the unincorporated area of the County. Our review

of the Court of Appeals’s rulings on the parties’ cross-motions for

partial summary judgment is de novo because this appeal involves

only legal issues, not questions of fact.9 See Raffensperger v.

Jackson, 316 Ga. 383, 387 (2) (888 SE2d 483) (2023).

The parties agree that the resolution of this issue is governed

by OCGA § 36-70-24 (3) (A), which provides:

The [service delivery] strategy shall ensure that the cost
of any service which a county provides primarily for the
benefit of the unincorporated area of the county shall be
borne by the unincorporated area residents, individuals,
and property owners who receive the service.

However, the parties disagree on the standard for determining

9 The parties did not submit evidence in the trial court in support of their

summary judgment motions on the issues of where the county roads are located
or who was actually using the roads and focused their arguments on the legal
issue of the standard to be used under OCGA § 36-70-24 (3) (A).
10
whether maintenance of county roads is “primarily for the benefit of

the unincorporated area.” The County argues that if the county

roads are available to anyone in the county to use, then the road

maintenance is not primarily for the benefit of the unincorporated

area; in contrast, the City argues that as a matter of law, if the

county roads are located primarily in the unincorporated area, then

maintenance of those roads is primarily for the benefit of the

unincorporated area.

On cross-motions for partial summary judgment, the superior

court agreed with the County and determined that the inquiry for

determining who should bear the costs of road maintenance in this

case, “[should be] focused solely on those ‘that receive the service,’”

citing the text at the end of the first sentence of OCGA § 36-70-24

(3) (A), reasoning that the statute makes “no mention of where the

services are located.” In affirming the superior court’s ruling, the

Court of Appeals viewed the text of OCGA § 36-70-24 (3) (A)

differently, determining that the concepts of road usage and

“benefit,” as used in the statute, are “inextricably intertwined,” and

11
“the focus of the Act is not on the geographical location of the public

service, but on who uses (and thus benefits) from the service.”10

Winder, 365 Ga. App. at 835-36 (1). The Court of Appeals further

determined as a matter of law that county roads, “regardless of their

specific geographic location, benefit all residents of the county — as

does their upkeep.” Id. at 836 (citing generally DeKalb County v. City

of Decatur, 247 Ga. 695, 697 (2) (279 SE2d 427) (1981) (“County

taxpayers residing in municipalities enjoy the use of DeKalb County

parks, roads and other facilities, and the protection of the DeKalb

County police, while they are going about their business or enjoying

their leisure time outside the boundaries of the municipalities in

which they reside.”)).

We begin our analysis by setting out first principles. “When we

consider the meaning of a statute, we must presume that the

General Assembly meant what it said and said what it meant.” Deal

v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation

10 The court noted that it was affirming the superior court under the

“right for any reason” doctrine. Winder, 365 Ga. App. at 836 n. 6.
12
and punctuation omitted). And “[a]s in all cases of statutory

construction, we remain mindful that we must give the language its

plain and ordinary meaning, view it in the context in which it

appears, and read it in its most natural and reasonable way.” State

v. Cook, 317 Ga. 659, 660 (1) (893 SE2d 670) (2023) (citation and

punctuation omitted). We determine the ordinary public meaning of

legal text by considering the meaning the text had at the time it was

enacted. See Seals v. State, 311 Ga. 739, 740 (1) (860 SE2d 419)

(2021), disapproved of on other grounds by Gonzales v. State, 315

Ga. 661 (884 SE2d 339) (2023). Dictionaries are often helpful “[i]n

ascertaining the ordinary meaning of a word that is not defined in a

statute,” but they “cannot be the definitive source of ordinary

meaning in questions of textual interpretation because they are

acontextual, and context is a critical determinant of meaning.”

McBrayer v. Scarbrough, 317 Ga. 387, 394 (2) (d) (893 SE2d 660)

(2023).

Turning to the text, OCGA § 36-70-24 (3) (A) explains that the

“cost of any service”—in this case, road maintenance—“which a

13
county provides primarily for the benefit of the unincorporated area

of the county” shall be borne by persons in the unincorporated area

“who receive the service.” Thus, the question is whether

maintenance of the County roads is a service that the County

“provides primarily for the benefit of the unincorporated area.” The

key terms in that phrase are “primarily” and “benefit,” so we begin

by construing those terms according to their meaning at the time of

their enactment.

At the time the Act went into effect in 1997, the term

“primarily” was defined for ordinary usage in this context as “for the

most part[,] chiefly.” Merriam Webster’s Collegiate Dictionary 925

(10th ed. 1995). Black’s Law Dictionary defined “primary,” the

adjectival form of the adverb “primarily,” as “[f]irst; principal; chief;

leading.” Black’s Law Dictionary (Abridged) 826 (6th ed. 1991). See

Zaldivar v. Prickett, 297 Ga. 589, 596 (1) (774 SE2d 688) (2015)

(looking to Black’s Law Dictionary for “the usual and customary

meaning of [a] term as used in a legal context”). Moreover, in

construing an ordinance that was enacted nine years after the Act,

14
this Court determined that the word “primarily" is not ambiguous

and means “for the most part,” (citing Merriam-Webster’s dictionary

and also referencing the definition of the word “primarily” as

“mainly; principally” in Webster’s New World College Dictionary

(2007). Rockdale County v. U. S. Enterprises, Inc., 312 Ga. 752, 767

(3) (b) (865 SE2d 135) (2021), (citing United States v. Gibson, 998

F3d 415, 419-420 (III) (A) (9th Cir. 2021) (“The phrase ‘primarily

used by children’ is not indeterminate.”); In re Kelly, 841 F2d 908,

916 (III) (A) (3) (9th Cir. 1988) (“[T]he modifier ‘primarily’ is not a

word that is ambiguous or difficult to understand.”); Pizza di Joey,

LLC v. Mayor of Baltimore, 235 A3d 873, 907 (III) (C) (2) (a) (Md.

2020) (holding that “primarily engaged in” has a “generally accepted

meaning”)).11 “Benefit” was defined in 1997 as “something that

promotes well-being” or “useful aid.” Merriam-Webster at 106, and

“[a]dvantage; profit; fruit; privilege; gain; interest . . . [;] [b]enefits

11 We note that the county ordinance at issue in Rockdale expressly
provided that all words not otherwise defined in the ordinance “are intended
to have the commonly accepted definitions contained in a recent edition of the
Merriam-Webster Dictionary.” Rockdale County, 312 Ga. at 755 (1). No such
direction appears in the Act.
15
are something to advantage of, or profit to, [the] recipient.” Black’s

Law Dictionary at 108.

Applying these definitions and considering the context and

syntax of the sentence in which these words appear in the statute,

we view the phrase “any service which a county provides primarily

for the benefit of the unincorporated area of the county” to mean any

service a county provides for the chief advantage, privilege, or

interest of, or chiefly and principally for the unincorporated area.

And it is only if it is determined that the unincorporated area is the

primary beneficiary of the service that the “unincorporated area

residents, individuals, and property owners who receive the service”

bear the costs of that service.

We see nothing in the text of OCGA § 36-70-24 (3) (A) that

supports the County’s argument that the correct standard for

determining the primary beneficiary of a service turns solely on who

uses the service. As we understand it, the County argues that the

phrase “who receive the service” at the end of the first sentence of

OCGA § 36-70-24 (3) (A) means that those who have access to and

16
may use the service—in this case, maintenance of county roads—

are, as a matter of law, those who primarily benefit from it under

the meaning of the statute. But this construction ignores the syntax

and structure of OCGA § 36-70-24 (3) (A) and improperly links two

grammatically unrelated phrases in the text—the phrase “primarily

for the benefit of” and the phrase “who receive the service” at the

end of the sentence—while ignoring the phrase “the unincorporated

area of the county” that comes between them. Courts often rely on

the rules of grammar to provide a structure for discerning the

ordinary meaning of legal text, and we see no reason to depart from

those rules here. See State v. SASS Group, LLC, 315 Ga. 893, 900-

01 (2) (b) (885 SE2d 761) (2023) (“We may also refer to the rules of

English grammar, inasmuch as those rules are the guideposts by

which ordinary speakers of the English language commonly

structure their words[.]”) (citation and punctuation omitted).

Nevertheless, the County argues that any construction of

OCGA § 36-70-24 (3) (A) not based strictly on who uses the county

roads would violate the Uniformity Clause of the Georgia

17
Constitution, Ga. Const. Art. VII, Sec. 1, Para. III (a) (“[A]ll taxation

shall be uniform upon the same class of subjects within the

territorial limits of the authority levying the tax.”). However, to the

extent that the County is challenging the constitutionality of OCGA

§ 36-70-24 (3) (A), we need not address that argument in this appeal

because, even though the County raised the issue before the superior

court, the court did not issue a ruling on it. See Franzen v.

Downtown Dev. Auth. of Atlanta, 309 Ga. 411, 425 (3) (d) n.27 (845

SE2d 539) (2020) (“This Court does not reach the constitutionality

of a statute unless it clearly appears in the record that the

constitutional issue was directly and properly raised in the trial

court and distinctly ruled on by the trial judge.”) (emphasis omitted).

Moreover, to the extent that the County is asserting that under the

canon of constitutional doubt we should construe OCGA § 36-70-24

(3) (A) to avoid a potential conflict with the Uniformity Clause, that

canon does not apply to a statute that we have determined to be

unambiguous. See Domingue v. Ford Motor Co., 314 Ga. 59, 68 (2)

(c) (875 SE2d 720) (2022) (courts cannot rely on the canon of

18
constitutional doubt where the legal text “is clear and is not

susceptible of more than one meaning”); Crowder v. State, 309 Ga.

66, 73 (2) (d) n.8 (844 SE2d 806) (2020) (explaining that the canon

of constitutional doubt cannot be relied upon to avoid a “potential

constitutional issue” when “we can identify only one plausible

interpretation of [a] statute” (citation and punctuation omitted)).

The County also argues against our plain reading of the text

of OCGA § 36-70-24 (3) (A), which requires an analysis of whether

the service primarily benefits the unincorporated area of the

county–not simply a consideration of who uses the service–because

it contradicts the interpretation of the Act set out in the publication

Charting a Course for Cooperation and Collaboration – An

Introduction to the Service Delivery Strategy Act for Local

Governments. This document was published in 1997, after the date

of the Act’s enactment, by the Georgia Department of Community

Affairs, the department charged with implementing the Act, and

several organizations involved in drafting the Act—the Association

County Commissioners of Georgia, the Georgia Municipal

19
Association, and the Carl Vinson Institute of Government at the

University of Georgia. The publication describes itself as a

“guidebook” for city and county officials for implementation of the

Act and does not purport to be binding legal authority. With respect

to county road maintenance, this guidebook stated that, under the

Act, county road maintenance is not provided primarily for the

benefit of the unincorporated area within the meaning of OCGA §

36-70-24 (3) (A) because county roads are “available” to all county

residents, thus purporting to dictate that the only factor to be

considered on the question of whether county road maintenance

primarily benefits the unincorporated area is who uses the roads,

despite the express language in the statute.

However, even in the unlikely event that this guidebook could

constitute an agency’s interpretation of a statute on par with duly

adopted regulations, 12 we defer “to an agency’s interpretation [of

12 Compare Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158,

159-60 (1) (664 SE2d 223) (2008) (Court of Appeals erred in giving
interpretation in agency manual deference due a statute, rule or regulation
where manual “had not undergone the scrutiny afforded a statute during the

20
legal text] only when we are unable to determine the meaning of the

legal text at issue.” City of Guyton v. Barrow, 305 Ga. 799, 802 (2)

(828 SE2d 366) (2019). In other words, we only defer to an agency’s

interpretation, if at all, when the text is ambiguous. Because we

discern no ambiguity in the text of OCGA § 36-70-24 (3) (A), we need

not consider the interpretation set forth in the guidebook. See id. at

803 (2) (“A statute or regulation is not ambiguous merely because

interpreting it is hard.”) .

Accordingly, the Court of Appeals erred in affirming the

superior court’s grant of partial summary judgment to the County

and denial of partial summary judgment to the City on this issue, so

we reverse and remand for further proceedings consistent with this

opinion. To that end, we note that despite the arguments of the

parties, the determination of whether county roads and their

maintenance are provided primarily for the benefit of the

unincorporated area of the County does not depend just on one factor

legislative process or the adoption process through which all rules and
regulations must pass”).

21
such as geography or usage, and we decline to determine as a matter

of law whether county roads located mostly in the unincorporated

area of the County are primarily for the benefit of the

unincorporated area. Instead, whether road maintenance is

primarily for the benefit of the unincorporated area of the County is

a determination the superior court is authorized to make on remand

after an evidentiary hearing and after considering the totality of the

circumstances, including geographic location and usage of the

roads.13 See OCGA § 36-70-25.1 (d) (2) (“The visiting or senior judge

shall conduct an evidentiary hearing or hearings as such judge

deems necessary and render a decision with regard to the disputed

items.”). 14

2. We next address whether OCGA § 36-70-24 (3) (B) requires

13 We emphasize that geographic location and usage of roads are only

two factors that the superior court may consider depending on the evidence
presented by the parties, which could also include traffic studies and other
expert analysis, and we decline to delineate or limit other factors that the
superior court may consider to make this determination.
14 The Act provides that proceedings seeking resolution of SDS disputes

“shall be assigned to a judge . . . who is not a judge in the circuit in which the
county is located. The judge selected may also be a senior judge . . . who resides
in another circuit.” OCGA § 36-70-25.1 (d) (1) A).
22
that funding for services provided primarily for the benefit of the

unincorporated area come from “property taxes, insurance premium

taxes, assessments, or user fees” levied or imposed within a special

service district, or, in contrast, it authorizes the County to use other

sources of revenue from within that special service district.

OCGA § 36-70-24 (3) (B) states that the funding for services

provided primarily for the benefit of an unincorporated area

shall be derived from special service districts created by
the county in which property taxes, insurance premium
taxes, assessments, or user fees are levied or imposed or
through such other mechanism agreed upon by the
affected parties which complies with the intent of
subparagraph (A) of this paragraph[.]

The County argues that “property taxes” and “assessments”

refer to general categories of funding and therefore the County is

allowed to use any funding source within the special service district

to pay for services intended primarily for the benefit of the

unincorporated area. 15 The City argues, on the other hand, that the

15 Specifically, the County argues that “property taxes” and
“assessments” include cable franchise taxes, alcohol excise taxes, financial
institution taxes, hotel/motel taxes, occupation taxes, and railroad equipment
taxes.
23
statutory list is intended to be exhaustive, that the term

“assessments” means “special assessments” because “assessments”

must be read consistently with the other revenue sources listed,

which are specific and not general terms, and that “property taxes”

refer only to ad valorem property taxes. 16

First, neither the term “property taxes” nor the term

“assessments” is defined in the Act, so we must construe these terms

using the rules of statutory construction, some of which we have

already discussed in Division 1. The County somewhat simplistically

argues that because “property” can refer to intangible, personal, or

real property, “property taxes” as used in the statute means any

kind of tax on any kind of property. However, the County cites no

authority for that proposition.

In determining the original public meaning of the term

“property taxes,” we first note that at the time of the statute’s

enactment, Merriam-Webster defined property tax as “a tax levied

16 The City and County do not appear to dispute the meaning of the terms

“insurance premium taxes” and “user fees,” so our analysis will focus on the
meaning of “property taxes” and “assessments.”
24
on real or personal property,” Merriam-Webster at 935, and Black’s

defined “property tax” in the legal context as “[a]n ad valorem tax,

usually levied by a city or county government, on the value of real

or personal property that the taxpayer owns on a specified date.”

Black’s Law Dictionary at 847. As we have made clear, dictionaries

are only a starting point for determining the original meaning of

text, particularly where, as here, the definitions are in tension. See

McBrayer, 317 Ga. at 394 (2) (d).

In determining the meaning of a term, “we may [also] look to

other provisions of the same statute, the structure and history of the

whole statute, and the other law—constitutional, statutory, and

common law alike—that forms the legal background of the statutory

provision in question.” Langley v. State, 313 Ga. 141, 143 (2) (868

SE2d 759) (2022) (citation and punctuation omitted). In addition to

“property taxes,” OCGA § 36-70-24 (3) (B) lists “insurance premium

taxes” as a potential source for revenue, which cuts against the

County’s argument that the term property taxes refers to taxes of

any kind because such an interpretation would improperly make the

25
term “insurance premium taxes” superfluous. See Camden County

v. Sweatt, 315 Ga. 498, 509 (2) (b) (883 SE2d 827) (2023) (noting

fundamental rule of statutory construction that courts should “avoid

a construction that makes some language mere surplusage” (citation

and punctuation omitted)).

Also, OCGA § 36-70-24 (3) (B) refers to “special service

districts” and makes clear that the listed mechanisms for funding

are to be levied or imposed within a special service district. Thus, in

the legal background of OCGA § 36-70-24 (3) (B) is the Special

Districts Paragraph of the Georgia Constitution, which enables the

creation of special service districts “for the provision of local

government services within such districts,” and provides that “fees,

assessments, and taxes may be levied and collected within such

districts to pay, wholly or partially, the cost of providing such

services therein and to construct and maintain facilities therefor.”

Ga. Const. of 1983, Art. IX, Sec. 2, Par. VI. That the Special Districts

Paragraph lists the categories of funding sources for county services

as “fees, assessments, and taxes” further supports that when the

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General Assembly used the term “property taxes” instead of “taxes”

in OCGA § 36-70-24 (3) (B), it intended to specify a subcategory of

taxes—ad valorem taxes levied on real or personal property—to the

exclusion of other taxes, including the non-ad valorem taxes on

property that the County claims it can use as funding sources. See

Pandora Franchising, LLC v. Kingdom Retail Group, LLLP, 299 Ga.

723, 728 (1) (b) (791 SE2d 786) (2016) (“Where the legislature uses

certain language in one part of the statute and different language in

another, the Court assumes different meanings were intended.”

(citation and punctuation omitted)).

The County also argues that the term “assessments” in OCGA

§ 36-70-24 (3) (B) refers to any kind of revenue measure. On the

other hand, the City asserts that “assessments” refer only to “special

assessments.” The statute provides no qualifier for the term

“assessments,” and, at the time the statute was enacted, Merriam-

Webster defined assessments as “the action or an instance of

assessing” or “the amount assessed.” Merriam-Webster at 69. That

dictionary defined “assess” in this context as “to determine the rate

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or amount of (as a tax);” “to impose (as a tax) according to an

established rate;” “to subject to a tax, charge, or levy;” and “to make

an official valuation of (property) for the purpose of taxation.” Id.

Black’s defined “assessments” “[i]n a general sense” as “the process

of ascertaining and adjusting the shares respectively to be

contributed by several persons towards a common beneficial object

according to the benefit received,” which “is often used in connection

with assessing property taxes or levying of property taxes.” Black’s

Law Dictionary at 77. Thus, these definitions support the County’s

broad reading of the term “assessments.”

However, if the General Assembly intended the term

“assessments” to refer broadly to any kind of tax, the legislators’

inclusion of the other specific items in the list in OCGA § 36-70-24

(3) (B) would be surplusage, and, again, courts generally strive to

avoid a construction that “makes some language mere surplusage.”

Camden County, 315 Ga. at 509 (2) (b) (citation and punctuation

omitted)). Moreover, the text adopted in the Special Districts

Paragraph of the Georgia Constitution supports that “assessments”

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are different in kind from “taxes” and “fees,” as, otherwise, there

would have been no need to list “fees, assessments, and taxes”

separately and on equal terms in the constitutional text. Likewise,

this Court has recognized that, as a general matter, assessments are

different in kind from taxes. See Hayden v. City of Atlanta, 70 Ga.

817, 822-23 (1884) (“Taxes are different from assessments for local

improvements, taxes being burdens upon all persons and property

alike, and compensated for by equal protection to all, while

assessments are not burdens but equivalents, and are laid for local

purposes upon local objects, and are compensated for to some extent

in local benefits and improvements, enhancing the value of the

property assessed. Taxes are imposed on the person, assessments

are imposed on the property.”). Accordingly, we construe the term

“assessments” in OCGA § 36-70-24 (3) (B) as the act of charging a

special payment but not to include fees and taxes. This construction

would include “special assessments,” but it is not limited to special

assessments, as it could also include other assessments not

classified as taxes or fees.

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Therefore, we conclude that absent an agreement by the

parties, OCGA § 36-70-24 (3) (B) limits the sources within a special

district that can be used to fund services provided for the primary

benefit of the unincorporated area of the county, that “property

taxes” means ad valorem property taxes, and that “assessments”

refer to any assessment that is not otherwise classified as a tax or

fee, and we reverse the Court of Appeals on this ground.

3. Finally, we consider whether the superior court, which is

conducting this proceeding under OCGA § 36-70-25.1 (d), has the

authority in such a proceeding to determine whether the City’s

usage rates charged to the Outside Customers constitute an illegal

tax and whether the City is permitted to transfer profits from the

excess fees collected from water service to Outside Customers into

its general fund. We conclude that the superior court is not so

authorized, and that it should have granted the City’s motion to

dismiss Count IV on this ground.

Our review of a trial court’s decision on a motion to dismiss is

de novo. See Southern States Chem., Inc. v. Tampa Tank & Welding,

30
Inc., 316 Ga. 701, 706 (1) (888 SE2d 553) (2023). The Act provides a

detailed framework for local governments to use in negotiating and

crafting their SDS Agreements and the processes and procedures

that may be used in resolving any disputes. OCGA § 36-70-23 lists

the four items that need to be included in every service delivery

strategy,17 while OCGA § 36-70-24 describes the criteria that must

17 Under, OCGA § 36-70-23,

Each local government service delivery strategy shall include the
following components:
(1) An identification of all local government services
presently provided or primarily funded by each general purpose
local government and each authority within the county, or
providing services within the county, and a description of the
geographic area in which the identified services are provided by
each jurisdiction;
(2) An assignment of which local government or authority,
pursuant to the requirements of this article, will provide each
service, the geographic areas of the county in which such services
are to be provided, and a description of any services to be provided
by any local government to any geographic area outside its
geographical boundaries. In the event two or more local
governments within the county are assigned responsibility for
providing identical services within the same geographic area, the
strategy shall include an explanation of such arrangement;
(3) A description of the source of the funding for each service
identified pursuant to paragraph (2) of this Code section; and
(4) An identification of the mechanisms to be utilized to
facilitate the implementation of the services and funding
responsibilities identified pursuant to paragraphs (2) and (3) of
this Code section.

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be met in the development of a service delivery strategy.

Specifically, OCGA § 36-70-24 (2) sets out requirements and

procedures for strategies involving water or sewer services.

Subsection (2) (A) of that statute provides “that water or sewer fees

charged to customers located outside the geographic boundaries of a

service provider shall not be arbitrarily higher than the fees charged

to customers receiving such service which are located within the

geographic boundaries of the service provider.” Subsection (2) (B) of

the statute sets out a dispute resolution procedure for local

governments to follow to challenge any alleged arbitrary rate

differentials. That provision allows the contesting governing

authority to hold a public hearing for the purpose of reviewing the

rate differential. See OCGA § 36-70-24 (2) (B). And should the

governing authority wish to pursue a challenge, it must have a

qualified engineer prepare a rate study and engage in alternative

dispute resolution before taking its challenge “to a court of

competent jurisdiction.” See id. As discussed above, OCGA § 36-70-

25.1 (d) sets out the procedure for an aggrieved party to follow to

32
petition the superior court for resolution of items “remaining in

dispute.”

Here, after presumably following the procedure laid out in

OCGA § 36-70-24 (2) (B), the County filed its petition in this case

pursuant to OCGA § 36-70-25.1 (d) (2) to resolve the parties’

remaining disputes. Count II of the amended petition requests

judicial resolution of the arbitrariness of the water rate differential

charged by the City to the Outside Customers, and Count III seeks

a determination of whether the County had the authority to provide

water service to all customers located in the unincorporated area of

the County. These issues are clearly matters that must be addressed

in negotiating a new SDS Agreement for the provision of water and

sewage services, and thus disputes about such matters are

considered issues “remaining in dispute” under the Act. See OCGA

§§ 36-70-23; 36-70-24; 36-70-25.1 (d) 2).

However, Count IV seeks a determination as to whether the

City’s water charges constitute an illegal tax on the Outside

Customers and whether the City could transfer profits collected

33
from those customers to its general fund. These are not items that

must be negotiated as part of an SDS Agreement, see OCGA §§ 36-

70-23 and 36-70-24 (2), and thus cannot be considered items

“remaining in dispute” under the statutory process outlined in

OCGA § 36-70-25.1 (d). Because Count IV seeks a judicial

determination that is beyond the scope of the Act, its requested relief

falls outside the statutory dispute process contemplated by § 36-70-

25.1 (d) (2). See City of Union Point v. Greene, 303 Ga. 449, 459 (2)

(812 SE2d 278) (2018) (superior court “is not authorized to grant

relief pursuant to OCGA § 36-70-25.1 beyond the scope of the

remedies made available in that Code section”), disapproved of on

other grounds by City of College Park v. Clayton County, 306 Ga. 301

(830 SE2d 179) (2019).

Accordingly, the superior court should have dismissed Count

IV, and we reverse the portion of the Court of Appeals’s judgment

affirming the trial court’s order denying the City’s motion to

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dismiss. 18

Judgment reversed and case remanded. All the Justices concur,
except Boggs, C.J., not participating.

18 However, we note nothing in this opinion prevents the County from

seeking declaratory, or other, relief on these issues in a separate proceeding.
35
BETHEL, Justice, concurring.

I agree with the analysis and conclusion of the opinion of the

Court and join it in full.

I write separately to provide additional discussion of the

considerations included in making the factual determination of

whether a particular service is provided “primarily for the benefit”

of an unincorporated area of a county as discussed in Division 1. See

Maj. Op. at 22-23. In assessing the totality of the circumstances

surrounding the service’s provision, a superior court should

contemplate the possibility that the service, though located outside

the municipal limits and most frequently used by residents of the

unincorporated area, nevertheless has no evident primary

beneficiary and, instead, benefits the public broadly. Regardless of

any geographical assessment of the location of the capital

infrastructure of a particular service and without regard to its most

frequent users, many services by their very nature transcend the

assignment of a primary beneficiary.

Thinking of this question as lying on a spectrum may be

36
helpful. On one end of the spectrum, services exist that are easily

identified as being provided for the primary (and perhaps even

exclusive) benefit of unincorporated area(s). These services might

include curbside rubbish collection exclusively from residences

outside incorporated limits or a fire service whose coverage area is

exclusively outside the incorporated limits. On the other end of the

spectrum, however, are services that are rendered to the public

without respect to municipal boundaries. Here, we might find, for

example, a county-wide police department or the core functions of a

county courthouse. Where a service is provided and who it most

frequently serves are clearly relevant factors. But while they may

seem determinative at the extremes of the spectrum, they are not

determinative in a totality of the circumstances analysis.

Consider, for example, a few hypothetical services provided in

imaginary Georgia counties. The first county provides potable water

service to all residents. The capital infrastructure, excluding

distribution pipes within the municipal boundaries, lies completely

in the unincorporated area of the county while less than ten percent

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of county residents live inside the municipal boundary. Thus, while

consideration of where the capital assets lie and the numerical

utilization of the service might suggest that this service was

primarily for the benefit of the unincorporated area, the very nature

of the service makes clear that the service is delivered to and equally

benefits all county residents. The second county constructs a large

regional recreational facility in an unincorporated area. The park is

far more accessible to county residents of the unincorporated area,

who are the primary local users of its amenities. But the park is

frequently used to host tournaments and festivals that draw visitors

to the community from other counties. These visitors frequent retail

shops, restaurants, and hotels which are almost exclusively located

inside municipal boundaries. Here again, the question of primary

benefit would be incomplete if we considered only the location of the

service and frequency of use as between residents of the

incorporated and unincorporated portions of the county.

In sum, I believe the Court has correctly identified the challenge as

requiring an analysis of the totality of the circumstances. For many

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services, this may be a relatively easy task (but it seems unlikely

that the truly easy ones will evade resolution by the municipal and

county governments prior to judicial consideration). It may well be

that most of these decisions will turn on the location of the service

provision or the frequency of utilization, as seems to be the primary

thrust of the municipality’s argument in this case. Nevertheless, I

view the nature of the service provided as a critical, though not

dispositive, consideration in the primary beneficiary inquiry – a

consideration that may be particularly apt in the context of the case

at hand. A municipality that is logistically cut off from the

surrounding environment at the city limits would not long survive.

Any consideration of the beneficiaries of a transportation system in

and through the unincorporated portions of a county would be

incomplete without an assessment of the value derived by the

municipality from being connected to the larger world.

39