Chatham County v. Smith et al.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Suprem e 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

No. S26A0699

Chatham County

v.

Damon L. Smith et al.

On Appeal from the Superior Court of Chatham County

No. SPCV2300211

Decided: October 14, 2026

ELLINGTON, Justice.

Chatham County imposed a fire protection service fee, consisting of a flat per-parcel charge or a charge based on the square footage of structures, on all parcels of real property in a special district consisting of unincorporated areas of the county. Appellees Damon L. and Sebrell E. Smith, owners of property subject to the fee, sued for refunds, contending that the fee was actually an illegal tax. The trial court granted Appellees summary judgment, holding that the fee was a tax on real property rather than a fee or assessment and that it was an illegal tax because it was not based on the value of the property — an ad valorem tax — as required under Georgia law. Because we agree that the fire protection service fee was actually a tax and that it was required to be ad valorem, we affirm.

“On appeal from the grant of summary judgment, legal questions are reviewed de novo, and this Court also conducts a de novo review of the evidence.” Barnett v. Caldwell, 302 Ga. 845, 845 (2018) (citation omitted). Further, we must “view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the non-movant,” which is the County in this case. State v. Federal Def. Program, Inc., 931 SE2d 123, 129 (Ga. 2026) (quotation marks omitted). So viewed, the evidence shows as follows.

Before July 1, 2024, Chatham County had no county- operated fire department. Beginning in 1988, the County was divided into 12 special districts for fire protection services that were provided by municipal fire departments, volunteer fire departments, or private entities. Southside Communities Fire Protection, Inc. d/b/a Chatham Emergency Services, Inc. (“CES”) provided fire protection services to four districts in unincorporated Chatham County in return for fees paid by property owners in those districts. When about one third of the property owners stopped paying and CES could not continue providing the same services, the County contracted with CES to provide fire protection services in the affected districts. At that time, the County adopted a fire service protection tax and, invoking the Special Districts Paragraph of the Home Rule Article, Ga. Const. of 1983, Art. IX, Sec. II, Par. VI, it created a special district encompassing the unincorporated portions of the County that were not already paying other fire departments.

In 2022, the County repealed the fire service protection tax. Once again invoking the Special Districts Paragraph, it enacted the “Fire Protection Service Fee Ordinance” (“Fire Fee Ordinance”), which implemented a “Fire Protection Service Fee” (“Fire Fee”). It also created a “Fire Service Area,” which was a special service district “within unincorporated Chatham County” where a contractor, specifically CES, would provide fire protection services. The Fire Fee would be annually assessed against all parcels of real property in the Fire Service Area and was structured as a combination of a $100 flat charge for the land and a variable rate for the square footage of all structures, including mobile homes and ancillary structures. The variable rate increased over 11 bracketed increments, ranging from $75 for square footage of 0.0001 to 499.99 square feet to $10,000 for square footage of 50,000 or more. The annual Fire Fee was collected on this basis for the fiscal year running from July 1, 2022, through June 30, 2023.

In 2023, the Fire Fee Ordinance was revised to impose a flat $100 charge for “unimproved/vacant” parcels and a charge of $0.14 per square foot with a minimum fee of $100 for all “burnable structures,” including main and ancillary structures. The 2023 amendment also altered the definition of “Fire Service Area” to exclude those parts of unincorporated Chatham County where fire protection services are “billed by a separate fire service provider by another municipality or a vendor selected by Chatham County or a department of Chatham County, or a volunteer fire department.” The Fire Fee was billed and collected under the 2023 amendment for the fiscal year running from July 1, 2023, through June 30, 2024. In June of 2024, CES was not financially able to continue, and the County took over fire protection services for the unincorporated special services district, changed the fee, and incorporated it into the millage rate for that district.

At all relevant times, the Fire Fee Ordinance authorized the County to assess a “late charge penalty of the greater of $25 or ten percent (10%) of the amount due” as well as “all costs of collection, including attorney’s fees and court costs.” The Ordinance also authorized the County to collect unpaid fees “by any means allowed under law, including but not limited to filing suit to collect on an unpaid account and by using all methods allowed by Georgia law to collect on any judgment obtained thereby, including enforcement of any lien resulting from any such judgment.” The Ordinance further provided that its violation “shall be punishable by a fine of up to $500 or up to 50 hours of community service per day of violation or both.”

Appellees, owners of real property in the Fire Service Area subject to the Fire Fee, filed a verified class action complaint and multiple amended complaints against the County in superior court. Appellees alleged that, because the Fire Fee was actually a tax but was not assessed ad valorem, it was “an illegal tax not authorized by the Georgia Constitution or by Georgia law,” entitling Appellees and the proposed class members to refunds under OCGA § 48-5-380 of Fire Fees collected from July 1, 2022, through June 30, 2024, as well as declaratory judgment, injunctive relief, and attorney’s fees. Appellees pursued class certification in multiple motions. The County filed motions to dismiss, for stay of discovery and protective order, and for judgment on the pleadings. And the parties subsequently filed cross-motions for summary judgment.

After a consolidated hearing, the trial court granted class certification. In a separate order entered on the same day, the trial court granted Appellees’ motion for summary judgment and denied the County’s motions to dismiss, for judgment on the pleadings, and for summary judgment. 1 In th e latter order, the

1 In its final enumeration in this appeal, the County contends that the trial court erred in granting summary judgment before merits discovery was conducted. However, the County has failed to preserve this issue for appeal. It is true, as the County argues, that the trial court’s scheduling order, as required by OCGA § 9-11-23(f)(2), stayed all merits discovery until a written decision regarding certification of the class. Pursuant to OCGA § 9-11-23(f)(1), however, the trial court established a schedule for discovery germane to the

trial court concluded that, using the criteria set forth in Bellsouth Telecomm., LLC v. Cobb County, 305 Ga. 144, 146–47 (2019), “the Fire Fee is a tax on real property” and “not a fee or assessment”; that the Fire Fee is “an invalid and unlawful tax” because taxes on real property, even those “levied in a Special District on real property pursuant to the authority granted under the Special Districts Paragraph,” must be ad valorem; and that Appellees and all class members are entitled to recover refunds “of all such illegally paid taxes” under Georgia’s refund statute, OCGA § 48- 5-380, in the total amount of $26,852,778.90 plus prejudgment interest totaling $3,274,595.33.

As explained below, we conclude that the Fire Fee was an

issue of whether the requested class should be certified. As a result, substantial discovery was conducted, including depositions under OCGA § 9-11-30(b)(6) of County officials and the CES fire chief. After that discovery, Appellees filed their motion for summary judgment, and the County filed both a response and its own motion for summary judgment. In the County’s summary judgment filings, it relied on the depositions and argued only the merits. The County never requested a continuance, nor did it file an affidavit pursuant to OCGA § 9-11-56(f), which requires a showing that the respondent cannot, for reasons stated, present facts essential to justify its opposition. Nor did the County ever argue — not even in its post-hearing response — that a summary judgment ruling would be premature or that merits discovery remained stayed. The County makes such arguments for the first time in this appeal.

On summary judgment, a party has a duty to present its best case and may not withhold meritorious legal arguments until appeal, absent special circumstances. Pfeiffer v. Ga. Dep’t of Transp., 275 Ga. 827, 828–29 (2002). Prematurity because merits discovery was stayed does not fit within the list of special circumstances in Pfeiffer, 275 Ga. at 829 n.10, and the County does not argue otherwise. Furthermore, a respondent’s failure to invoke the remedy of OCGA § 9-11-56(f) forfeits a claim that summary judgment is premature and demonstrates that the trial court did not err by proceeding to rule on the summary judgment motion. Bell v. Freeport Title & Guaranty, 355 Ga. App. 94, 96–97 (2020); Carr v. FedEx Ground Package System, 317 Ga. App. 733, 740 (2012).

illegal tax because it was not ad valorem as required by applicable Georgia constitutional and statutory law.

1. The Fire Fee was a tax.

“The Georgia Constitution protects taxpayers by limiting the methods and means by which Georgia governments can impose taxes.” Homewood Assocs. v. Unified Gov’t of Athens- Clarke County, 323 Ga. 62, 77 (2025) (Peterson, C. J., concurring). “The distinction between a tax and a fee is not one of names but of substance.” McLeod v. Columbia County, 278 Ga. 242, 244 (2004) (quotation marks omitted). While fees are “a charge for a particular service provided, based on the payer’s contribution to the problem,” a tax is “‘an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.’” Bellsouth, 305 Ga. at 146–47 (quoting Gunby v. Yates, 214 Ga. 17, 19 (1958)).

Drawing from McLeod, Bellsouth identified four factors that Georgia courts should consider in determining whether a governmental fee or charge is in substance a tax. The factors to be considered are that a tax is “(1) a means for the government to raise general revenue based on the payer’s ability to pay (i.e., income or ownership of property), without regard to direct benefits that may inure to the payer or to the property taxed,” that the tax is “(2) mandatory,” that it is “(3) not related to the payer’s contribution to the burden on government,” and that the tax does “(4) not result[ ] in a ‘special benefit’ to the payer different from those to whom the charge does not apply.” 305 Ga. at 146–47. While Bellsouth requires consideration of all four factors, it does not require all four factors to be met in order to hold that a governmental charge is in substance a tax. See 305 Ga. at 146 (“Generally, we have considered four criteria in considering whether a charge is a tax.”); id. at 149 (concluding that the charge at issue there was a tax “based on the relevant factors”); McLeod, 278 Ga. at 245 (describing the “mandatory” factor as “not dispositive” but “support[ing] the view” that the charge at issue was a fee) 2; id. at 244 (describing the distinction as one of “substance”). In applying those factors, we must keep in mind their objective: to facilitate the determination of whether a governmental charge was for a “special privilege” or “particular service” or instead “for the purpose of raising revenue to be used for public or governmental purposes.” Bellsouth, 305 Ga. at 146– 47. The County argues that the trial court erred by treating the Fire Fee as an unconstitutional tax under Bellsouth rather than applying the Special Districts Paragraph to conclude that it was a fee. More specifically, the County says that applying Bellsouth here is not appropriate because the Fire Fee was adopted pursuant to the Special Districts Paragraph and was not a countywide regulatory charge like that at issue in Bellsouth. However, nothing in the Special Districts Paragraph indicates that “tax” should be defined differently from its use in the rest of the Georgia Constitution or from the understanding of the term that we expressed in Bellsouth, nor does the Special Districts Paragraph change the distinction between taxes on the one hand and non-tax fees and assessments on the other. Instead, that Paragraph simply provides that “special districts may be created for the provision of local government services within such districts; and fees, assessments, and taxes may be levied and

2 Note, however, that if a charge is wholly voluntary, “it cannot be a tax.” McLeod, 278 Ga. at 245 (holding that an option for property owners to reduce the charge, as well as a prohibition on the imposition of a lien directly

against the property, supported the view that it was a fee).

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. II, Par. VI. Indeed, we have already expressed our understanding that “fees, assessments, and taxes” in the Special Districts Paragraph are “separate” and “equal” “categories of funding sources for county services” that are “different in kind” from each other. See City of Winder v. Barrow County, 318 Ga. 550, 561–62 (2024) (“[O]therwise, there would have been no need to list ‘fees, assessments, and taxes’ separately and on equal terms.”). And “where a word or phrase is used in one part of a constitution in a plain and manifest sense, it is to receive the same interpretation when used in every other part, unless it clearly appears, from the context or otherwise, that a different meaning should be applied to it.” State v. SASS Group, LLC, 315 Ga. 893, 902 (2023) (“[W]e presume that the same meaning attaches to a given word or phrase wherever it occurs in a constitution.”).

The provision for “taxes” in the Special Districts Paragraph was ratified in 1983 in a legal and historical context that included this Court’s understanding of the term in other parts of the Georgia Constitution, which was entirely consistent with Bellsouth’s definition of the term. See Bellsouth, 305 Ga. at 146– 47 (quoting Gunby for a definition of “tax” and drawing four criteria from McLeod for determining whether a charge is a tax); McLeod, 278 Ga. at 243–44 (defining “tax” in the context of Ga. Const. of 1983, Art. VII, Sec. I, Par. III(a) (the Uniformity Clause), and Art. VII, Sec. II, Par. I); Gunby, 214 Ga. at 18–19 (defining “tax” in the context of the provision of the 1945 Constitution that, similar to Ga. Const. of 1983, Art. VII, Sec. III, Par. I(a), limited the purposes for which the powers of taxation over the whole state could be exercised, Ga. Const. of 1945, Art. VII, Sec. II, Par. I). See also Lovell v. Raffensperger, 318 Ga. 48, 51 (2024) (holding that construction of a constitutional provision “requires careful attention to not only the language of the clause in question, but also its broader legal and historical context, which are the primary determinants of a text’s meaning” (quotation marks omitted)). Accordingly, we conclude that Bellsouth sets forth the controlling test, 3 and we now turn to application of its four factors and hold that the Fire Fee was a tax as a matter of law.

First, the Fire Fee was imposed on property owners to fund the general availability of fire protection without regard to their use of the service or its direct benefit to them or their property. The County argues that the Fire Fee was imposed in the special district “for a particular service provided.” McLeod, 278 Ga. at 244 (quotation marks omitted). But McLeod itself explained more fully that fees “are intended to be and should be clearly described as a charge for a particular service provided,” in contrast to taxes, which are “a means for the government to raise general revenue and usually are based on ability to pay (such as property or income), without regard to direct benefits which may inure to the payor or to the property taxed.” Id. (citations and punctuation omitted).

The text of the Fire Fee Ordinance shows that the Fire Fee likewise generated general revenue without regard to any direct benefits that property owners might receive from fire services. The Ordinance stated that “[a]ll Properties within the Fire

3 The County contends that Bellsouth and McLeod established different frameworks for determining whether a fee or charge is in substance a tax and that the trial court should have applied the McLeod framework here, to the exclusion of Bellsouth. However, McLeod established a framework for how to assess whether a given charge or fee was in substance a tax, and Bellsouth followed that framework in determining that the charge in Bellsouth was an improper tax. See Bellsouth, 305 Ga. at 146–47. Those cases establish one framework for this determination, and we rely on it here.

Service Area are subject to” the Fire Fee and that the property owner was “obligated to pay the applicable” Fire Fee and would be “responsible for the fire fee.” The Ordinance “allocate[d] the cost of maintaining a constant state of availability, readiness and preparedness to provide fire protection services among the owners of property [in] the Fire Service Area.” The purpose of the Fire Fee was “to fund the cost of fire protection services, systems, equipment and/or facilities needed to provide effective fire protection,” which “may include the payment of debt obligations, lease payments, operating expenses, contractual obligations, capital outlays, non-operating expenses, provisions for prudent reserves and other costs as deemed appropriate by the governing body of Chatham County.” Accordingly, the Fire Fee was assessed for a general-revenue purpose based on the extent to which a person owns property in the Fire Service Area, “not the extent to which a person can or in fact does summon emergency services.” Bellsouth, 305 Ga. at 147. And although the County argues that the funds collected were placed in a dedicated enterprise fund instead of a general revenue fund, “requiring a governmental charge to be deposited in a special purpose fund does not make it not a tax.” Id.

Second, the mandatory nature of the Fire Fee supports our holding that it was a tax. As previously explained, the Fire Fee Ordinance had strong enforcement provisions that authorized penalties and fees, as well as collection of the Fire Fee “by any means allowed under law, including but not limited to filing suit” and enforcing any lien resulting from any judgment. In considering whether a charge is mandatory for the purpose of determining whether it is a tax, we have also considered “not whether someone may theoretically continue to live a lawful existence without using a particular service at all, but whether someone may obtain that service by way of an alternate route that avoids paying the charge.” Bellsouth, 305 Ga. at 148. 4 In that regard, the County argues 5 that property owners could opt out of the Fire Fee, citing deposition testimony of County officials that property owners “can prove they have fire coverage from another city or company,” that the County had agreements with some of its cities whose fire stations are closer to property owners in an unincorporated area, that property could be removed from the Fire Service Area if the County made that decision, and that certain “neighborhoods” had successfully requested such a change. The Fire Fee Ordinance recognized that there were unincorporated areas of the County serviced by the fire department designated by the County to provide fire protection services in the Fire Service Area, while there were “other areas of the unincorporated County which [we]re serviced by municipal fire departments and volunteer/nonprofit fire departments.” The Fire Service Area was defined in 2022 as the unincorporated areas of the County where fire protection services were provided

4 Bellsouth, 305 Ga. at 148, cited two cases with alternative routes to avoid paying part or all of the charge at issue. See McLeod, 278 Ga. at 245 (holding that this factor supported the view that a utility charge was not a tax because property owners could reduce the amount of the charge by creating and maintaining private stormwater management systems and because the ordinance did not permit imposition of a lien directly against the property of those who fail to pay the charge); Luke v. Ga. Dept. of Natural Resources, 270 Ga. 647, 648 (1999) (holding that a fee for participation in an underground storage tank trust fund was not a tax when the storage tank owner may demonstrate evidence of financial responsibility as required by statute by means other than participation in the fund).

5 We note that, in its appellate reply brief, the County extensively develops its argument that the Fire Fee is not a tax but, with respect to this factor, argues only that “the mandatory nature of the charge does not convert it into a tax,” as this factor is “not a dispositive rule.”

by CES. And that definition was amended in 2023 to instead expressly exclude those unincorporated areas where fire protection services were “billed by a separate fire service provider by another municipality or a vendor selected by Chatham County or a department of Chatham County, or a volunteer fire department.” The Fire Fee Ordinance required “[a]ll properties located in the unincorporated Fire Service Area” to have a current valid fire protection service “with a provider who is recognized by the County in the Service Delivery Strategy filed with the State and an approved fire department with the State of Georgia.”

Although the record shows that it apparently was possible for a group of property owners who were close enough to a municipal fire station with the necessary capacity to request removal from the Fire Service Area, that option was not available to property owners who were not near a municipal fire station. The County does not explain, and nothing in the record shows, what would be required for property owners to establish a new volunteer fire department, but we note that there are significant legal requirements in that regard. See OCGA §§ 25-3-21 (defining “fire department” to include “a fire department solely utilizing volunteer firefighters”), 25-3-22 (requiring a certificate of compliance with “the minimum requirements specified in Code Section 25-3-23 and the rules and regulations of the Georgia Firefighter Standards and Training Council”); 25-3-23 (setting out the minimum requirements, including responsibility for a defined area of operations that has “been approved and designated by the governing authority of the applicable county”). There is no evidence that any property owners availed themselves of an alternative to paying the Fire Fee. Furthermore, if a property owner were to succeed in avoiding the Fire Fee by transfer to a municipal fire department or a volunteer fire department, then the owner would be billed by that department for the local government service of fire protection, and the Fire Fee would remain mandatory for every property still located in the Fire Service Area. Indeed, the Special Districts Paragraph authorizes fees, assessments, and taxes for local governmental services to be levied and collected only “within such districts.” Accordingly, the combination of the enforcement provisions of the Fire Fee Ordinance with the difficulty and ultimate result of avoiding the Fire Fee supports the view that it was not actually a fee. Third, the Fire Fee did not track any payer’s burden on the system and was not based on the payer’s use of the system, but turned on ownership and square footage. The Fire Fee Ordinance expressly excluded from its definition of the Fire Fee “special charges to the owners of particular properties for services or facilities related to fire protection, including, but not limited to, charges for fire inspections for which a corresponding fee may be collected for the service rendered.” County officials conceded that the Fire Fee was “not based on the actual consumption or use of fire services” and that the square footage brackets were based on “common sense” and not “any sort of fire data.” Indeed, a property owner who paid the Fire Fee each year might well not have summoned fire protection services to the associated property. See Bellsouth, 305 Ga. at 149 (stating, when deciding that a charge for 911 services was a tax, that “[a] person who pays the charge year after year might well never make a 911 call on the associated telephone line”).

Fourth, and closely related to the third factor, the Fire Fee conferred no special benefit to property owners because CES was required to respond to all calls within the Fire Service Area regardless of payment. The Fire Fee Ordinance defined the Fire Service Area simply as the special service district “where fire protection services are provided.” Thus, the Ordinance contemplated provision of such services throughout the special service district; provision of fire protection services was based merely on the location of the district rather than payment by properties receiving such services. The deposition testimony of the CES Fire Chief and the County Manager confirmed that the County was obligated to respond to all calls for fire protection service in the Fire Service Area, regardless of whether a property owner had paid the Fire Fee; that no one who summoned fire services without having paid the Fire Fee, including a passing motorist or a tenant, was billed by CES; and that the benefits received by one who paid the Fire Fee were the same for everyone who did not pay the fee. See Bellsouth, 305 Ga. at 149 (additionally stating as part of its analysis of whether the 911 charge was a tax that a “person may use a public phone or borrowed phone to summon emergency services ... on a regular basis” and that “emergency services are available to all within a given emergency services area”).

The County argues that the availability of fire protection services is a property-specific benefit because of enhanced value, decreased risk, and lower insurance premiums. Again, however, the purpose of a tax is “raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.” Bellsouth, 305 Ga. at 146 (quotation marks omitted). Cf. McLeod, 278 Ga. at 245 (holding that the utility charge was a fee where it applied only to “developed property, but not to undeveloped property,” and therefore “the properties charged receive[d] a special benefit” from the services). In this case, the property owners to whom the Fire Fee applied “‘received no benefit not received by the general public, because all members of the public may access the’” governmental service. Bellsouth, 305 Ga. at 149 (quoting Fulton County v. T-Mobile South, LLC, 305 Ga. App. 466, 471 (2010)). Bellsouth recognized that the argument that only those to whom the 911 charge applied could “take advantage of certain ‘enhanced’ services ... framed the benefit at issue wrongly” because the charge applied irrespective of the level or type of service provided. 305 Ga. at 150. Similarly, the fact that the property owners to whom the Fire Fee applied might receive some incidental benefits to their specific parcels of property also frames the issue of “special benefits” wrongly because the Fire Fee was only for the public purpose of governmental fire protection services and did not depend on whether those incidental benefits ever materialized. Moreover, those to whom the Fire Fee did not apply could also receive incidental benefits: for example, tenants could benefit from lower insurance premiums, and tenants and motorists could benefit from decreased risk, that resulted from the provision of fire protection services even though they were not required to pay the Fire Fee. Indeed, the Fire Fee Ordinance expressly recognized that “benefits” from fire protection services, specifically including “reduced risk to life and property due to fire, and reduced insurance premiums,” extend “to all properties in the County and surrounding areas.” Consequently, the potential property-specific incidental benefits on which the County relies did not amount to “special benefits” to payers that differed from the benefits received by those who were not required to pay the charge. Both the County and amici argue for deference to the County’s legislative determination in its Fire Fee Ordinance that the Fire Fee was “not a tax.” However, the cases they cite do not support the proposition that this Court ought to defer to a legislative determination that a charge is a fee when in substance it is a tax. See, e.g., Turner County v. City of Ashburn, 293 Ga. 739, 744 (2013) (“This Court has previously held that the question of the benefit of a tax is one that is exclusively left to legislative discretion and is not a matter for inquiry by the courts unless there is a manifest abuse of power.” (quotation marks omitted)). Again, “[t]he distinction between a tax and a fee is not one of names but of substance.” McLeod, 278 Ga. at 244 (quotation marks omitted). A “legislature’s characterization of the amounts collectible ... as being fees is not controlling on the question of whether they constitute fees or taxes, if the burden imposed is devoid of the essential nature of fees.” Gunby, 214 Ga. at 19 (holding that a charge for marriage licenses deposited in a restricted purpose retirement fund was a tax). See also Sexton v. City of Jonesboro, 267 Ga. 571, 572 (1997) (holding that an ordinance’s statement that it was a “tax” levied “for revenue purposes only and not for regulatory purposes” was “not determinative” of whether it was effectively a regulatory fee).

While County and amicus briefs rely in part on our line of three cases holding that stormwater utility charges are fees, those cases are distinguishable. In McLeod, we held that the ordinance there imposed a utility charge for stormwater management services, applied only to property that actually contributed to the absorption of stormwater runoff, provided a special benefit to the properties charged through the control and treatment of polluted stormwater contributed by those properties, allowed property owners to maintain private systems, and did not permit the imposition of a lien directly against a charged property. 278 Ga. at 243–45. In the second case, we applied the same analysis to the ordinance there, holding that the issue was “controlled by this Court’s decision in the nearly identical case of McLeod.” Homewood Village, LLC v. Unified Gov’t of Athens-Clarke County, 292 Ga. 514, 514–15 (2013). And the third case involved the same stormwater ordinance and decided the same legal question at issue in Homewood Village. Homewood Assocs., 323 Ga. at 69.

Despite the appellants’ contention in Homewood Assocs. that the record was materially different, we held that Homewood Village “determined as a matter of law that the payors ... receive[d] a special benefit.” 6 Indeed, the “special benefit” question in those three cases, involving services to control and treat the repeated occurrences of stormwater runoff on each developed property, is fundamentally different from that question in this case, involving fire protection services to deal with the possibility of a fire on any property.

Because the Fire Fee was imposed on property owners to fund the general availability of fire protection without regard to their use of the services or any direct benefits they might receive, was mandatory in nature, did not track their burden on the system, and did not result in a special benefit to them, we conclude, based on these relevant factors, that the Fire Fee was enacted to raise revenue for public or governmental purposes rather than to provide a particular service to the property owners and was, therefore, a tax. 7

6 We note that Homewood Assocs. adhered to the holding in Homewood Village on stare decisis grounds and acknowledged “the doubts some of us may have about the correctness of [our prior] analysis regarding whether [the] stormwater utility charge is a fee.” Homewood Assocs., 323 Ga. at 71.

7 We note that persuasive authority from our own Court of Appeals lends further support for characterizing the Fire Fee as a tax. See Lincoln County v. Serenity Builders & Dev., LLC, 373 Ga. App. 395, 399–402 (2024) (holding that a county’s water availability charge was a tax and not a fee under the Bellsouth test because the charge covered the costs of maintaining infrastructure, was based on property ownership, was imposed regardless of the lack of direct benefit to the persons and properties against which it was assessed, was mandatory because it could not be reduced and a lien could be imposed directly against the property, was imposed regardless of the burden

2. The Fire Fee was an illegal tax because it was not ad valorem.

Having concluded that the Fire Fee was actually a tax, we now turn to the question of whether the tax was required to be ad valorem under the Georgia Constitution and applicable statutes. The term “ad valorem” means “according to value.” Griggs v. Greene, 230 Ga. 257, 267 (1973) (quotation marks omitted). In general, the tax laws of Georgia require that property taxes be based on the value that would be realized from a normal cash sale. See OCGA § 48-5-1 (“The intent and purpose of the tax laws of this state are to have all property ... returned at the value which would be realized from the cash sale, but not the forced sale, of the property ... as such property ... [is] usually sold except as otherwise provided in this chapter.”). See also City of Winder, 318 Ga. at 560 (looking to the definition of “property tax” in Black’s Law Dictionary (Abridged) (6th ed. 1991) 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”).

The County and amici curiae argue that the Special Districts Paragraph, as adopted in 1983, expanded flexibility in funding services by conferring broad authority on counties to fund services within special districts by means of fees, assessments, or taxes without being limited by any ad valorem requirement. The trial court decided that taxes on real and tangible personal property, even those levied under the Special Districts

or lack thereof that owners placed on the county, and resulted in no special benefit to the payer different from those to whom the charge did not apply); T- Mobile, 305 Ga. App. at 469–73 (holding prior to Bellsouth that a 911 charge was a tax because it was not voluntary, its purpose was to raise revenue and not as compensation for a service, and the payers received no benefit not received by the general public).

Paragraph, must be ad valorem. The trial court located the source of the ad valorem requirement in the Georgia Constitution, specifically the Uniformity Clause, Ga. Const. of 1983, Art. VII, Sec. I, Par. III(a) (“Except as otherwise provided in subparagraphs (b), (c), (d), (e), (f), and (h) of this Paragraph, all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.”). The trial court relied on Hutchins v. Howard, 211 Ga. 830, 830 (1955), to support its understanding of the Georgia Constitution and also cited Ga. Const. of 1983, Art. VII, Sec. II, Par. I (“Except as authorized in or pursuant to this Constitution, all laws exempting property from ad valorem taxation are void.”) and Heron Lake II Apts., L. P. v. Lowndes County Bd. of Assessors, 299 Ga. 598 (2016). After thoroughly reviewing the trial court’s order, the appellate briefs, and all cited authority, some of us have doubts about whether an ad valorem requirement can properly be inferred from the text of Article VII of the Georgia Constitution of 1983 and whether Hutchins or any decision of this Court has so held. See Homewood Assocs., 323 Ga. at 77 n.12 (Peterson, C. J., concurring) (“The 1945 Constitution removed the ‘ad valorem’ language (at least in its express form in this provision) but kept the uniformity language. ... And the 1983 Constitution, which now controls, contains materially identical language.”); id. at 81 n.15 (“Note that the current constitution does not contain a general ad valorem requirement for taxation.”). However, we need not resolve those issues here because, as explained below, we conclude that former OCGA § 36-70-24(3)(B) (1997), the version of that statute applicable in this case, did require the Fire Fee to be ad valorem and that certain “home rule” and taxation provisions in the Georgia Constitution — especially the Special Districts Paragraph itself — required the County to comply with that statutory provision.

“Basic canons of construction tell us to read our laws (statutes and constitutional provisions alike) (1) together, and (2) in harmony whenever possible.” Warbler Inv., LLC v. City of Social Circle, 321 Ga. 125, 133 (2025) (quotation marks omitted). “It is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the drafters intended that any part would be without meaning.” Camden County v. Sweatt, 315 Ga. 498, 509 (2023) (punctuation omitted).

“[T]he governing authority of any county ... may exercise the power of taxation as authorized by this Constitution or by general law.” Ga. Const. of 1983, Art. IX, Sec. IV, Par. I (emphasis added). The power granted to counties in home rule provisions of the Georgia Constitution to adopt and to amend or repeal “clearly reasonable ordinances ... relating to its property, affairs, and local government,” Ga. Const. of 1983, Art. IX, Sec. II, Par. I(a), “shall not be construed to extend to ... [a]ction adopting any form of taxation beyond that authorized by law or by this Constitution.” Ga. Const. of 1983, Art. IX, Sec. II, Par. I(c)(4). The Special Districts Paragraph (after initially providing for the creation of special districts for the provision of local government services and for the levy and collection of fees, assessments, and taxes to pay for such services) provides the following:

Such special districts may be created and fees, assessments, or taxes may be levied and collected therein by any one or more of the following:

(a) By general law which directly creates the districts.

(b) By general law which requires the creation of districts under conditions specified by such general law.

(c) By ... county ordinance ... , except that no such ordinance ... may supersede a law enacted by the General Assembly pursuant to subparagraphs (a) or (b) of this Paragraph.

Ga. Const. of 1983, Art. IX, Sec. II, Par. VI (emphasis added). Assuming, without deciding, that the initial language of the Special Districts Paragraph is broad enough to permit the levy of non-ad-valorem taxes against real property, the latter portion of that paragraph limits the funding allowed within a special district. Applying that latter portion of the Special Districts Paragraph to this case, we first see that no general law expressly authorized the County to impose a non-ad-valorem tax generally on real property in the unincorporated areas of the County. See OCGA § 48-5-6 (“All property shall be returned for taxation at its fair market value except as otherwise provided in this chapter.”). Instead, former OCGA § 36-70-24(3)(B) restricted the County’s options for imposing a charge on real property in the Fire Service Area. This statute was part of the Services Delivery Strategy Act, former OCGA § 36-70-20 et seq. (1997). 8 The intent of that Act was, among other things, “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” and “to minimize inefficiencies resulting from duplication of services and competition between local

8 The Act was amended effective January 1, 2026. See Ga. L. 2024 at 1044, 1052; Ga. L. 2025 at 667, 670.

governments.” OCGA § 36-70-20. And the Act mandated an agreement for the implementation of a “service delivery strategy.” OCGA § 36-70-21 (“Each county and municipality shall execute an agreement for the implementation of a local government service delivery strategy as set forth in this article by July 1, 1999.”). The Fire Fee Ordinance invoked the Act and referenced the County’s “service delivery strategy” in several places. The Ordinance stated that, “[i]n accordance with OCGA § 36-70-20, there are areas of unincorporated Chatham County that are serviced by a fire department defined in the Service Delivery Strategy.” The Ordinance defined the Fire Service Area as “the special service district within unincorporated Chatham County where fire protection services are provided by [CES,] as defined in the Service Delivery Strategy.” And the Ordinance required “the Fire Protection Service” to be “with a provider who is recognized by the County in the Service Delivery Strategy filed with the State.” Moreover, County witnesses referred to the County’s service delivery strategy a number of times. One County witness explained that “the fire service districts were created prior and then voted on and brought in as part of the service delivery strategy.” Another County witness described the County’s service delivery strategy agreement as “over 25, 30 years old,” and still another County witness further explained that the County “is restricted by the service delivery strategy in terms of ... where we provide service and ... how we pay for services.” Accordingly, the Services Delivery Strategy Act as enacted in 1997 governed the Fire Fee Ordinance, and former OCGA § 36- 70-24(3)(B) applied to the Fire Fee Ordinance at all relevant times. Former OCGA § 36-70-24(3)(B) stated that funding of services provided for the primary benefit of the unincorporated area of the county 9 “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.” Although the Fire Fee was actually a tax and was levied against real property, it was not a “property tax” as contemplated by this statute unless it was ad valorem because we have construed “property taxes” in former OCGA § 36-70-24(3)(B) to “mean[ ] ad valorem property taxes” to the “exclusion” of “non- ad valorem taxes on property.” City of Winder, 318 Ga. at 561–62. Indeed, the Fire Fee was not ad valorem, and the County has not argued — in the trial court or on appeal — that it was. Basing the amount of the Fire Fee on square footage or a flat fee per parcel made it the antithesis of an ad valorem tax because it was not proportional to the value of the property: the charge was the same for different parcels or different buildings with the same square footage regardless of how widely their value differed. See Black’s Law Dictionary (10th ed. 2014) (explaining that the term is from the Latin “according to the value” and means “(Of a tax) proportional to the value of the thing taxed”; and that an “ad

9 Former OCGA § 36-70-24(3)(A) (1997) provided that 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.” Thus, former “OCGA 36-70-24(3)(B) limit[ed] 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.” City of Winder, 318 Ga. at 562. And the fire protection services here fit that description. See id. at 565 (Bethel, J., concurring) (“[S]ervices exist that are easily identified as being provided for the primary (and perhaps even exclusive) benefit of unincorporated area(s). These services might include ... a fire service whose coverage area is exclusively outside the incorporated limits.”).

valorem tax” is “[a] tax imposed proportionally on the value of something (esp. real property), rather than on its quantity or some other measure”); 84 C.J.S. Taxation § 6 (Apr. 2026 update) (“An ‘ad valorem tax’ is a tax levied on property or an article of commerce in proportion to its value as determined by assessment or appraisal.”); 71 Am. Jur. 2d State and Local Taxation § 19 (Aug. 2026 update) (explaining that, in contrast to “specific” taxes, which “are of a fixed amount by the head or number, or by some standard of weight or measurement, and require no assessment other than a listing or classification of the subjects to be taxed ... [t]he essential characteristic of an ad valorem tax is that the tax is levied according to the value of property as determined by an assessment or appraisal”). The Fire Fee also did not constitute any “other mechanism” approved in OCGA § 36-70- 24(3)(B) (listing alternatives to “property taxes” as “insurance premium taxes, assessments, or user fees” or “such other mechanism agreed upon by the affected parties”). The Fire Fee Ordinance therefore violated the mandate of that statute by using a funding mechanism that it did not permit.

Because former OCGA § 36-70-24(3)(B) stated that the funding of services in the circumstances of this case (i.e., where the services were provided for the primary benefit of the unincorporated area of the county) “shall be derived from special service districts created by the county” (emphasis added) through “property taxes” or other described mechanisms, the statute was authorized by subparagraph (b) of the Special Districts Paragraph because it was, in the language of that subparagraph, a “general law which require[d] the creation of districts under conditions specified by such general law.” Ga. Const. of 1983, Art. IX, Sec. II, Par. VI(b). Subparagraph (c) of the Special Districts Paragraph also authorizes the creation of special districts and the funding of services therein by county ordinance, but expressly prohibits any such ordinance from “supersed[ing] a law enacted by the General Assembly pursuant to subparagraph[ ] ... (b).” Ga. Const. of 1983, Art. IX, Sec. II, Par. VI(c). Because former OCGA § 36-70-24(3)(B) was such a law, the Fire Fee Ordinance, though generally authorized by the Special Districts Paragraph, could not “supersede” that statute by imposing a tax on real property that was not ad valorem.

Because the Fire Fee Ordinance imposed a tax on real property that was not ad valorem, it violated the general law of former OCGA § 36-70-24(3)(B) and the Special Districts Paragraph, which authorized that statute and prohibited any county ordinance from superseding it. The Fire Fee Ordinance therefore was not an exercise of the County’s “power of taxation as authorized by this Constitution or by general law,” Ga. Const. of 1983, Art. IX, Sec. IV, Par. I, but adopted a “form of taxation beyond that authorized by law or by this Constitution,” Ga. Const. of 1983, Art. IX, Sec. II, Par. I(c)(4). Accordingly, the Fire Fee was an illegal tax because it was imposed by the County on real property but was not ad valorem as required by applicable Georgia constitutional and statutory law. We therefore affirm the trial court’s grant of summary judgment in favor of Appellees.

Judgment affirmed. All the Justices concur, except Peterson, C.J., disqualified.