Bolt v. City of Lansing

Saad, P.J.

In this original action under Const 1963, art 9, § 32, plaintiff, a taxpayer by virtue of his ownership of real estate located in the City of Lansing, challenges the city’s storm water service charges as being a disguised tax. The question presented is whether Lansing may charge landowners for the cost of separating the storm water and sewage systems, and treating the storm water runoff, without submitting the question to the taxpayers for a vote. The answer is “yes” if the charge is a user fee; “no” if it is a tax.

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FACTS

The existing Lansing wastewater disposal system combines sewage with storm water. During periods of heavy precipitation, the capacity of the city’s sewage treatment is such that combined storm water and sewage flows untreated into the Grand and Red Cedar Rivers, two navigable waterways. However, the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, 33 U.S.C. 1251 et seq., requires the separation of storm water from sewage and that the storm water be treated to prevent pollution caused by surface water runoff.¹

In its effort to comply with the Clean Water Act, in 1995, the City of Lansing adopted Ordinance No. 925, which added a new Chapter 1043 to the Ordinances of the City of Lansing, which provides for the creation of a storm water enterprise fund to defray the cost of improvements to the city’s storm water disposal system. Ordinance 925 will effectuate complete separation of the storm water and sewage systems, and provide for treatment of storm water to remove pollutants before the water is discharged into navigable waterways, at an estimated cost of $176,000,000 over the next thirty years. The ordinance was adopted by the Lansing City Council and was not submitted for approval to the electors of the city.

The ordinance establishes a storm water enterprise fund and provides that associated storm water treatment system costs will be financed through an annual storm water service charge. This charge is imposed on each parcel of real property in the city in accordance with a formula, developed with engineering consultation, designed to roughly estimate each parcel’s storm water runoff.

Expected storm water runoff is calculated in terms of equivalent hydraulic area (eha) units based upon the amount of pervious and impervious surface soils² within each parcel. Residential parcels with two acres or less of surface area are not individually measured but are charged according to certain flat rates set forth in the ordinance, based upon a predetermined number of EHA units per 1,000 square feet.

Ordinance 925 provides for a system of administrative appeals by property owners who contend that their properties are unfairly assessed. Under this process, a property owner may reduce or, theoretically, eliminate the storm water fee by showing that an individual property produces no storm water runoff, or that its actual runoff is less than the city’s methodology suggests. Thus, a property owner can receive a fee reduction for creating a retention system, and a property owner whose property is topologically concave, with sufficient depth to exceed any anticipated level of precipitation, could, in theory, avoid the storm water charge, except for an availability charge.

The city began billing property owners under Ordinance 925 in December 1995, with a March 15, 1996, due date for the storm water charge. Plaintiff was billed $59.83 for his 5,400-square-foot parcel. Ordinance 925 provides for the addition of certain late payment fees for storm water charges paid after March 15 and for the creation of a lien against the property affected in the event any charges remain unpaid for more than six months.

On March 4, 1996, plaintiff filed his complaint claiming that Ordinance 925 violates Const 1963, art 9, §§ 25 and 31. After considering plaintiffs complaint and defendant’s answer, this Court, pursuant to MCR 7.206(D)(3), ordered the matter to proceed in the same manner as an appeal of right or on leave granted and invited interested parties to file amicus curiae briefs. Amicus curiae briefs were filed by the Michigan Municipal League and the Lansing Regional Chamber of Commerce in support of the ordinance, and by Edward Rose Associates, Inc., Edward Rose Realty, Inc., and Huron Development, Limited Partnership, and Citizens to Abolish the Rain Tax Ordinance³ in support of plaintiff’s position.

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ANALYSIS

Although both parties raise jurisdictional and administrative issues, we note simply that with regard to the legal issues presented, this Court has concurrent jurisdiction with the circuit court, Waterford School Dist v State Bd of Ed, 98 Mich App 658; 296 NW2d 328 (1980), but that the administrative issues presented are not cognizable under Const 1963, art 9, §§ 25-31, and therefore, they are not within this Court’s original jurisdiction under art 9, § 32. Grosse Ile Committee for Legal Taxation v Grosse Ile Twp, 129 Mich App 477, 486; 342 NW2d 582 (1983).

The sole issue here is whether the charge to landowners for the cost of separating the storm water and sewage systems and treating the storm water runoff is a “tax” or a “user fee.” If it is a tax, it is unquestionably a tax increase as well as a tax that was not in effect on December 23, 1978, the effective date of the Headlee Amendment, Const 1963, art 9, §§ 25-34, and thus would be a tax that requires voter approval pursuant to Const 1963, art 9, § 31. In other words, Ordinance 925 would run afoul of the Headlee Amendment. If, however, the charge is a user fee, as the city contends, then it is simply unaffected by Article 9.

The difficulty we face here is that the Headlee Amendment fails to define or redefine a tax or a fee, and historically, there is no bright-line test that distinguishes the two. In general, a fee is exchanged for a service rendered or a benefit conferred, and there must be some reasonable relationship between the amount of the fee and the value of the service or benefit. Merrelli v St Clair Shores, 355 Mich 575, 584-588; 96 NW2d 144 (1959); Northgate Towers Associates v Royal Oak Charter Twp, 214 Mich App 501, 503-504; 543 NW2d 351 (1995); Foreman v Oakland Co Treasurer, 57 Mich App 231, 237-238; 226 NW2d 67 (1974).

For example, if a landowner opts to sign up for a city snow removal service and is charged accordingly, this would clearly constitute a user fee.⁴ Conversely, a charge against the property of a landowner based solely on the value of the land (such as an ad valorum property tax) represents the other end of the spectrum — a tax.⁵ 6Sewage disposal and treatment, therefore, falls somewhere between these two ends of the spectrum.

Our Supreme Court has answered this question insofar as sewage treatment is concerned. Sewage disposal charges to landowners constitute a user fee, not a tax. Ripperger v Grand Rapids, 338 Mich 682, 686 ff; 62 NW2d 585 (1954). In Ripperger, the Court looked to established law (that charges for furnishing water to city residents were a fee and not a tax), and concluded by analogy that charges for provision of sewage disposal similarly constituted a fee rather than a tax. From this analysis in Ripperger, we conclude that, here, charges for storm water collection, detention, and treatment (which even plaintiff concedes was properly subject to a fee and not a tax when combined with sewage disposal) do not lose their character as a fee by virtue of being separated from sewage collection and disposal. Therefore, for the reasons stated in Ripperger, we hold that the result does not change by separating the systems— the charge here is a user fee, not a tax.⁶

With regard to the argument that municipalities may abuse the “user fee” concept to avoid the Headlee Amendment, the answer lies in reviewing such challenged conduct case by case or in an additional constitutional amendment that addresses more clearly this precise issue. Unless a particular fee, however, violates the constitution, the judiciary has no role to play in resolving such political questions. Const 1963, art 3, § 2.

The complaint being without merit, defendant is entitled to a judgment of no cause of action and to tax its costs. It is so ordered.

Wahls, J., concurred.

1 This pollution may be caused by agricultural chemicals, fertilizers, pesticides, petrochemicals produced by motor vehicle emissions and washed from the roads into the storm water system, and other pollutants.

2 “Pervious” areas are undeveloped surfaces that absorb water, whereas “impervious” areas are developed nonvegetative surfaces that impede water absorption and thus exacerbate rather than reduce storm water runoff.

3 The amicus curiae brief filed by Citizens to Abolish the Rain Tax Ordinance is not in the form prescribed by MCR 7.212(C) and is signed by a person who does not identify himself as an attorney, who is not listed in the State Bar of Michigan Directory as a licensed attorney, and who has supplied no State Bar number. Because this brief is filed on behalf of an organization and not on behalf of the individual signing the brief, preparation of the brief by one who is not a licensed attorney constitutes the unauthorized practice of law and is a contempt of this Court. MCL 600.916; MSA 27A.916; Bay Co Bar Ass’n v Finance System, Inc, 345 Mich 434; 76 NW2d 23 (1956). In lieu of issuing an order to this individual to show cause why he should not be held in contempt of this Court, this Court instead has decided to order that the brief be stricken.

4 See, generally, Kirk v Denver Publishing Co, 818 P2d 262, 271 (Colo, 1991):

A user fee is in the nature of a special fee designed to defray the cost of a governmental service and is imposed on the users of that service. ... A valid user fee need not be designed with mathematical precision to defray the cost of the service for which the fee is imposed, but must bear some reasonable relationship to the overall cost of that service.

5 An ad valorem tax is defined as a tax levied on property or an article of commerce in proportion to its value as determined by assessment or appraisal. Airlines Parking, Inc v Wayne Co, 452 Mich 527, 535, n 12; 550 NW2d 490 (1996).

6 The maimer by which the city has chosen to enforce the fee does not establish that the fee is a tax merely because an unpaid fee results in a lien on property. Other Lansing ordinances provide that the city’s municipally owned and operated electric and drinking water distribution systems, entrusted to the Lansing Board of Water & Light, has the benefit of a lien on property for unpaid utility charges. At common law, liens arise in many situations in which a charge or fee remains unpaid, and Michigan jurisprudence recognizes mechanics liens, artisans liens, and garage keepers liens, among others. See Nickell v Lambrecht, 29 Mich App 191; 185 NW2d 155 (1970).