2.5 OTHER JURISDICTIONS

Although Florida's law is well-developed, Florida is neither first nor alone in dealing with the controlling legal issues. A brief survey of decisions in the region and elsewhere is helpful in discerning some universal issues:

In Tennessee, city taxpayers challenged the validity of a stormwater ordinance. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927 (E.D. Tenn. 1998). The Court upheld the ordinance and found that cities may charge fees for stormwater services as long as they are reasonable and sufficiently connected to stormwater management.

Similarly in North Carolina, cities were authorized to collect fees for stormwater services as long as the revenues from the fees were not greater than the cost of the program. Smith Chapel Baptist Church v. City of Durham, 517 S.E.2d 874, 881 (N.C. 1999).

Charging user fees for stormwater services has been attacked by taxpayers elsewhere. In Washington, charges for stormwater utilities were held to be regulatory fees and not taxes or special assessments. Smith v. Spokane County, 948 P.2d 1301 (Wash. 1997). Like other states, the court held that the fees would be upheld if they were reasonable and designed to only cover the costs of the program.

Furthermore, several state courts have found, like Florida, that cities and counties may collect user fees from state agencies for stormwater services. In a case from South Carolina, the court held that the charges for stormwater services were user fees, and because these fees were not taxes or assessments, they could be imposed on state property. State v. City of Charleston, 513 S.E.2d 97 (S.C. 1999). Likewise in Colorado, the City of Littleton brought suit to compel a state agency to pay for stormwater utilities. City of Littleton v. State, 855 P.2d 448 (Colo. 1993). The court held that stormwater management is a general service benefiting all property owners. Thus the city charged user fees to meet the costs of service. Because the City charged the state a user fee for a service from which the state agency benefited, the state would have to pay.

Nevertheless, there have been some states which have found that charges for stormwater utility services were impermissible taxes. In Michigan, the court held the City of Lansing was charging landowners a tax for stormwater services because the charge was being used to pay for the capital investment of the utilities and the services. Bolt v. City of Lansing, 587 N.W.2d 264, 270 (Mich. 1998).

Using the reasoning from Bolt, a Georgia court also held that the charges for stormwater services were taxes, not fees, because the City was determining payment for services based on the sized and the use of the land. Fulton County Taxpayers Association v. City of Atlanta, No. 1999CV05897, 1999 WL 1102795, at *3 (Ga. Super. 1999). The court found that the factors the City should consider in determining payment are how the service affects the property and whether the property had its own system for stormwater runoff. Thus, while Michigan and Georgia permit stormwater utilities, cities and counties there need to ensure that fees are solely for stormwater services which provide a special benefit to the landowner.

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