Public entities challenge Lewiston storm water fee

Lawsuit claims it’s really a tax and is invalid, arbitrary

By Sandra L. Lee of the Tribune

Wednesday, September 30, 2009
Five public entities have filed suit against the city of Lewiston over its implementation of a storm water utility fee.

Nez Perce County, the Port of Lewiston, Lewis-Clark State College, Lewiston Independent School District No. 1, and the Lewiston Orchards Irrigation District allege the monthly charge is a disguised tax, not a fee as claimed by the city in the lawsuit filed Monday in 2nd District Court at Lewiston.

The city doesn’t have the constitutional or legislative authority to tax the five entities, the lawsuit claims, because it imposes a non-uniform charge on nonresidential properties.

Residential properties pay a flat fee, but commercial fees are based on the size of the property.

“Alternatively, if the storm water utility fee is not a disguised tax, the fee is invalid because it is arbitrary and unreasonable,” because the city doesn’t provide a service in connection with charge, the complaint says.

The lawsuit asks that the city be prevented from collecting future storm water fees and from bringing enforcement action for collection of past-due fees pending the outcome of the litigation. If the ordinance is declared invalid, it also asks that plaintiffs be reimbursed for any payments already made.

Attorney fees and the costs of bringing the lawsuit also are requested.

The storm water fee has been in effect since Oct. 1, 2008, at a rate of $3 per equivalent residential unit, or ERU. That’s half what the city hopes to raise it to. This year’s planned increase to $4.50 was delayed because of the poor state of the economy. At $6 per ERU, the city expects to collect $1.8 million a year to use for various projects to improve drainage in the city and the quality of water that is eventually discharged into the Snake and Clearwater rivers.

The lawsuit, which was filed by Lewiston attorney Theodore O. Creason of the law firm of Creason, Moore and Dokken, says partial year assessments received by the five plaintiffs include Nez Perce County, $87,370; Port of Lewiston, $30,828; Lewiston School District, $15,427; LCSC, $6,943; and LOID, $768.

None of those are for a full year, Creason said Tuesday.

—

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