Is the impervious-surface methodology flawed?

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(Editor’s note: This is the third in a series of articles exploring the city’s approach to stormwater infrastructure and dealing with runoff. Previous articles dealt with flaws in the city’s foundational “stormwater” definition.)

In the two previous Stormwater Programs, the city’s Stormwater Enterprise (which is now defunct) and the Regional Drainage Authority (that was voted down), residents were told that almost all stormwater runoff was a result of improvements made by property owners on their land: specifically roofs, driveways and parking lots.

Both programs excluded streets, which can generate as much as half of the stormwater runoff that must be managed. The mantra was: “You pave, you pay.” The methodology was very simple to explain, and many residents bought in to it. The problem is: This methodology is flawed.

Here’s why: Suppose a city did not want to go to the expense of providing water meters to their customers and wanted a funding methodology that would be simple to explain and for its residents to understand. The city then decided to prorate the total cost of water and sewer only by the size of the water line they provided, rather than the amount of water consumed.

It would not matter whether the customer used one drop of water or consumed all the water the city could provide. At the end of the month, the customer would be charged for water and sewer based on the size of their water line relative to all other water lines this city provides. So if a customer has landscaping that uses large amounts of water, like a golf course, the customer would still have to pay the sewer charges, which might be less than the water bill. The mantra for this city would probably be: “You size it, you pay for it.” This methodology is also flawed.

Unfair funding mechanism

Why did the city try to impose an “involuntary fee” to fund its Stormwater Program?

The voters in our city have a record of voting down tax increases. Our elected officials always feel that the tax increases they propose are valid and necessary — they have debated them for tens, if not hundreds, of hours. The voters haven’t had these same discussions nor have they been adequately educated on the rationale behind most of the tax increases.

Also, when the residents feel they have been taxed too much. They scream “enough is enough,” no matter how important the tax might be. The city has found a way to eliminate the need for voter approval to obtain funding for city services, and that is by imposing an involuntary fee.

In the State Supreme Court case Zelinger vs. City and County of Denver in 1986, the court agreed with the defendants (City and County of Denver) that its “ordinance, which deals with storm drainage facilities and the fees and service charges therefore … was rationally related to a legitimate state purpose of financing the maintenance and construction of new storm sewers.”

This is one precedent the city used to impose the involuntary fee for the first Stormwater Enterprise.

Next, in Bloom v. City of Fort Collins (1989), the State Supreme Court held for the plaintiff, Fort Collins, and determined the city had the power to impose a special (involuntary) fee to fund its transportation utility: “Where the fee is reasonably designed to defray the cost of the service by the municipality, such fee is a valid form of governmental charge within the legislative authority of the municipality.”

Both these decisions have set precedents allowing municipalities to charge involuntary fees for not only the two services that these cases were about, but for all other governmental services extended to all residents. I understand that it is difficult to obtain voter approval of tax increases, but I feel imposing involuntary fees to fund any governmental service violates the spirit and intent of  the Taxpayer’s Bill of Rights.

In the first Stormwater Enterprise, city leaders felt they could avoid a vote of the citizens if they imposed an involuntary fee only on property owners who had improved their properties with what they considered to be impervious surfaces. To make this work, they needed to include all land with impervious surfaces — land owned by the government, nonprofits and schools. At the same time, they decided to exclude streets and vacant land. This obviously wasn’t fair.

I am afraid that the city’s elected officials currently feel that they have run out of options for funding the Stormwater Program, and their only recourse is to revert to imposing an involuntary fee. But the voters still would have the last say in this matter — they can change elected officials.

Vince Rusinak is owner of Rusinak Real Estate Group. He can be reached at vince@rusinak.com.