Lewiston may face suits over its storm water fees

By Sandra L. Lee of the Tribune

Wednesday, June 3, 2009

Three public entities are contemplating suing the city of Lewiston over implementation of storm water fees, and the city is thinking about suing them if they don’t pay.

But City Attorney Don L. Roberts said he first will go through the city’s normal collection process involving such things as certified letters and then report back for a council decision if it’s unsuccessful.

Roberts said at Monday’s city council meeting he talked with attorneys from the Lewiston School District, Port of Lewiston and Nez Perce County, all of which have been reluctant to pay the new fee that began Oct. 1. All three confirmed they are considering a lawsuit to attempt to have the fee declared unconstitutional.

It would be unconstitutional if it could be proved to be a tax instead of a fee. A tax would require voter approval.

A fee has to be tied to individual properties, which is why the equivalent residential unit was used to determine assessments, Roberts said. The average size of a residential property and impervious surfaces was used to create an ERU. That basic unit is divided into the area of all other properties, including commercial, nonprofit and governmental, to determine what they are charged.

Those three entities plus the Lewiston Orchards Irrigation District represent about $66,000 in annual assessments, Administrative Services Director Daniel Marsh said. The $3 per ERU is expected to generate about $900,000. A phased plan approved last year by the council increases that amount to $4.50 Oct. 1 of this year and to $6 on Oct. 1, 2010.

Until the charge was introduced, the city’s street fund has been tapped to pay for several hundred thousand dollars a year in storm water needs, including street sweeping to keep runoff cleaner.

Without the charge, City Manager John C. (Jay) Krauss pointed out Monday, a number of transportation and drainage projects won’t be funded.

The council appeared supportive of collection efforts. Even Councilor Jim Kluss, who said he voted against the fee when the economy soured, said it’s time to enforce it or bag it.

To go backwards would send a “terrible message on this and other programs,” Marsh said.

Ninety-two percent of the people are paying it, and that’s positive, Mayor Pro Tem Garry Bush said.

In other business:

l The council voted 5-1 to call in an estimated 500 postponed sidewalk, curb and gutter improvements dating back to at least 1992.

Anyone granted a postponement will be given the option of making the improvements or paying 33 percent of the prevailing cost, as determined by the city, into a fund. That fund will be used to build sidewalks in other areas, such as neighborhoods near schools. Property owners would be given two years to complete payment.

At $30 a foot, 33 percent would be about $990 for a 100-foot lot, according to the city’s Transportation Advisory Commission Chairman Mike Naccarato.

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Lee may be contacted at [email protected] or (208) 848-2266.