Idaho’s high court tosses stormwater fee out door
- Surpeme Court rules that charge was in reality an unauthorized tax
Lewiston’s former stormwater fee is actually an unauthorized tax, the Idaho Supreme Court said in a ruling issued Monday.
Even literature composed by the city to explain its use to residents “strongly suggests that even the city recognizes that this fee is a tax to provide community services to the general public,” Justice Warren E. Jones wrote in an opinion that upheld the original ruling by 2nd District Judge John Bradbury. The other four justices concurred in the opinion.
The court awarded unspecified costs to the five plaintiffs. Neither side requested attorney fees.
The stormwater fee, or tax, was contested by the Lewiston School District, Lewis-Clark State College, Nez Perce County, Port of Lewiston and Lewiston Orchards Irrigation District after the city attempted to collect thousands of dollars from them based on square footage of impervious surfaces.
The assessment was based on “equivalent residential units,” developed after measuring 125 residential properties and finding an average of 4,000 square feet of impervious surface, such as roofs and driveways. The city estimated it would raise about $20 million over 20 years for stormwater projects, plus replace about $650,000 in the street budget now spent to meet stormwater needs, including street sweeping.
Individual residential properties were to pay $6.35 a month, but that was being phased in when Bradbury ruled in July 2010 it was an unconstitutional tax. The city suspended collection while it appealed the ruling.
In the period from January 2009 to July 2010, however, the city took in about $1.186 million, Administrative Services Director Daniel Marsh estimated Monday. The city council has talked briefly in the past year about how it might repay that money if necessary, but attorneys for both sides pointed out Monday the ruling doesn’t deal with the possibility of repayment.
Tod D. Geidl, who with Theodore O. Creason of the law firm of Creason, Moore, Dokken and Geidl, represented the public entities who brought the appeal, said their clients either paid nothing toward the city’s assessments or stopped paying early in the litigation.
“That was the primary reason why a refund was not requested,” Geidl said. “But it’s out there now for those who paid the fee faithfully.”
Lewiston City Attorney Don L. Roberts said the city still has the option of asking the court for reconsideration of its decision. “I’m not sure that’s going to happen,” he said.
Roberts said he has to read the decision closely to see if the city can alter its approach to assessing a fee. Other cities in the state have stormwater fees, he said, although he’s not aware of any challenges elsewhere.
Without the fee, the city may have to look at other funding options, such as revenue bonds, local improvement districts, or funding the entire program out of property taxes, he said.
Stormwater fees are legal in Washington, he said. “It’s interesting to me what’s legal in Washington isn’t legal in Idaho … But those are the rules we play by.”
Geidl said his understanding of the main difference between the two states is Washington will in some contexts allow a fee for indirect benefit to the population, where in Idaho it has to be a direct benefit to the taxpayer.
“To me, it seems that’s why the Idaho Supreme Court said this can’t stand.”
Creason said their clients are relieved that under the ruling municipal governments will have to raise funds through a legitimate tax.
Lee may be contacted at [email protected] or (208) 848-2266.