Bolt v. City of Lansing

587 N.W.2d 264, 459 Mich. 152

• Court: Michigan Supreme Court
• Decided: December 28, 1998
• Docket: 108511, Calendar No. 4
• Status: Published

Opinions

Weaver, J.

We granted leave to appeal in this case to determine whether the storm water service charge imposed by Lansing Ordinance No. 925 is a valid user fee or a tax that violates the Headlee Amendment, Const 1963, art 9, § 31.¹ We hold that the storm water service charge is a tax, for which approval is required by a vote of the people. Because Lansing did not submit Ordinance 925 to a vote of the people as required by the Headlee Amendment, the storm water service charge is unconstitutional and, therefore, null and void.

i

Part of the Lansing wastewater disposal system combines sanitary and storm sewers. During periods of heavy precipitation, the combined system often overflows, discharging combined storm water and untreated or partially treated sewage into the Grand and Red Cedar Rivers. In an effort to comply with the Clean Water Act (CWA) and the National Pollutant Discharge Elimination Standards (npdes) permit-program requirement to control combined sewer overflows,² the city of Lansing elected to separate the remaining combined sanitary and storm sewers.³

The estimated cost of implementing the combined sewer overflow (cso) control program is $176 million over the next thirty years. In 1995, as a means of funding the separation, the Lansing City Council adopted Ordinance 925, which provides for the creation of a storm water enterprise fund “to help defray the cost of the administration, operation, maintenance, and construction of the stormwater system . . . .”⁴ The ordinance provides that costs for the storm water share of the CSO program (fifty percent of total CSO costs, including administration, construction, and engineering costs) will be financed through an annual storm water service charge. This charge is imposed on each parcel of real property located in the city using a formula that attempts to roughly estimate each parcel’s storm water runoff.

Estimated storm water runoff is calculated in terms of equivalent hydraulic area (eha). As defined by the ordinance, eha is “based upon the amount of pervious and impervious areas within the parcel multiplied by the runoff factors applicable to each.” Impervious land area, which impedes water absorption, thus increasing storm water runoff, is defined as

[t]he surface area within a parcel that is covered by any material which retards or prevents the entry of water into the soil. Impervious land area includes, but is not limited to, surface areas covered by buildings, porches, patios, parking lots, driveways, walkways and other structures. Generally, all non-vegetative land areas shall be considered impervious.

Pervious land area is defined as “[a]ll surface area within a parcel which is not impervious ...”

Residential parcels measuring two acres or less are not assessed charges on the basis of individual measurements, but, rather, are charged pursuant to flat rates set forth in the ordinance.⁵ These rates are based on a predetermined number of eha units per one thousand square feet.⁶ For residential parcels over two acres, commercial parcels, and industrial parcels, the eha for an individual parcel is calculated by multiplying the parcel’s impervious area by a runoff factor of 0.95 and pervious area by a runoff factor of 0.15 and adding the two areas.⁷

Charges not paid by the deadline are considered delinquent and subject to delayed payment charges, rebilling charges, property liens (if the charge remains unpaid for six months or more), and attorney fees if a civil suit is filed to collect delinquent charges. The ordinance further provides for a system of administrative appeals by property owners contending that their properties have been unfairly assessed. In April 1996, the director of public service promulgated amended administrative rules that provide a twenty-five percent credit for properties with no storm water system service and a fifty percent credit for properties with neither storm nor sanitary sewer service.⁸

The city began billing property owners for the storm water service charge in December 1995, with payment being due on March 15, 1996. Plaintiff was billed $59.83 for his 5,400 square-foot parcel. On March 4, 1996, plaintiff filed his complaint, alleging that Ordinance 925 violates Const 1963, art 9, §§ 25 and 31 (the Headlee Amendment).⁹ The Court of Appeals, in a two-to-one decision, concluded that the storm water service charge did not ■ violate the Headlee Amendment because it constituted a valid user fee.¹⁰

n

Whether the storm water service charge imposed by Ordinance 925 is a “tax” or a “user fee” is a question of law that this Court reviews de novo. Saginaw Co v John Sexton Corp of Michigan, 232 Mich App 202, 209; 591 NW2d 52 (1998). If, as plaintiff contends, the charge is a tax, it unquestionably violates the Headlee Amendment, Const 1963, art 9, § 31, which provides in relevant part:

Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Government voting thereon.

However, if the charge is a user fee, as the city maintains, the charge is not affected by the Headlee Amendment.

The Court of Appeals majority ruled that the storm water service charge was a valid user fee. In so holding, the Court analogized to the case of Ripperger v Grand Rapids, 338 Mich 682, 686-687; 62 NW2d 585 (1954), in which this Court concluded that sewage disposal charges to landowners were not a tax.¹¹ The Court of Appeals stated:

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. [221 Mich App 79, 87; 561 NW2d 423 (1997).]

There is no bright-line test for distinguishing between a valid user fee and a tax that violates the Headlee Amendment. As noted by the Court of Appeals, the difficulty in resolving the issue is that the Headlee Amendment fails to define either the term “tax” or “fee,” an omission that the Headlee Blue Ribbon Commission urged the Legislature to rectify. Headlee Blue Ribbon Commission, A Report to Governor John Engler, Executive Summary, and § 5, pp 26-31 (September 1994). A primary rule in interpreting a, constitutional provision such as the Headlee Amendment is the rule of “common understanding”:

“A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ ” [Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), quoting Cooley’s Const Lim 81 (emphasis in original).]

In addition, to clarify meaning, the courts may consider the circumstances leading to the adoption of the constitutional provision and the purpose sought to be accomplished. Id.

The Headlee Amendment “grew out of the spirit of ‘tax revolt’ and was designed to place specific limitations on state and local revenues. The ultimate purpose was to place public spending under direct control.” Waterford School Dist v State Bd of Ed, 98 Mich ; 296 NW2d 328 (1980). More recently, this Court has stated,

The Headlee Amendment was “part of a nationwide ‘taxpayers revolt’ ... to limit legislative expansion of requirements placed on local government, to put a freeze on what they perceived was excessive government spending, and to lower their taxes both at the local and the state level.” [Airlines Parking, Inc v Wayne Co, 452 Mich 527, 532; 550 NW2d 490 (1996).]

Determining whether the storm water service charge is properly characterized as a fee or a tax involves consideration of several factors. Generally, a “fee” is “exchanged for a service rendered or a benefit conferred, and some reasonable relationship exists between the amount of the fee and the value of the service or benefit.” Saginaw Co, supra at 210; Vernor v Secretary of State, 179 Mich 157, 164, 167-169; 146 NW 338 (1914). A “tax,” on the other hand, is designed to raise revenue. Bray v Dep’t of State, 418 Mich 149, 162; 341 NW2d 92 (1983).

“Exactions which are imposed primarily for public rather than private purposes are taxes. Revenue from taxes, therefore, must inure to the benefit of all, as opposed to exac-tions from a few for benefits that will inure to the persons or group assessed.” [Citations omitted.]

In resolving this issue, this Court has articulated three primary criteria to be considered when distinguishing between a fee and a tax. The first criterion is that a user fee must serve a regulatory purpose rather than a revenue-raising purpose. Merrelli v St Clair Shores, 355 Mich 575, 583-584; 96 NW2d 144 (1959), quoting Vernor, supra at 167-170. A second, and related, criterion is that user fees must be proportionate to the necessary costs of the service. Id.-, Bray, supra at 160. As was summarized in Vernor,

To be sustained [as a regulatory fee], the act we are here considering must be held to be one for regulation only, and not as a means primarily of producing revenue. Such a measure will be upheld by the courts when plainly intended as a police regulation, and the revenue derived therefrom is not disproportionate to the cost of issuing the license, and the regulation of the business to which it applies. [Id. at 167.]

In Ripperger, this Court articulated a third criterion: voluntariness. Quoting from Jones v Detroit Water Comm’rs, 34 Mich 273, 275 (1876), the Rip-perger Court stated:

“The water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity, just as similar rates are payable to gas companies, or to private water works, for their supply of gas or water. No one can be compelled to take water unless he chooses, and the lien, although enforced in the same way as a lien for taxes, is really a lien for an indebtedness, like that enforced on mechanics’ contracts, or against ships and vessels. The price of water is left to be fixed by the board in their discretion, and the citizens may take it or not as the price does or does not suit them.”

We believe the same reasoning that was applied to water charges in the above-mentioned case should be applied to sewage charges in the present case. [Id. at 686.]

Thus, one of the distinguishing factors in Ripperger was that the property owners were able to refuse or limit their use of the commodity or service.¹²

In instituting the storm water service charge, the city of Lansing has sought to fund fifty percent of the $176 million dollar cost of implementing the CSO control program over the next thirty years. A major portion of this cost (approximately sixty-three percent) constitutes capital expenditures.¹³ This constitutes an investment in infrastructure as opposed to a fee designed simply to defray the costs of a regulatory activity.¹⁴ Consequently, the ordinance fails both the first and second criteria. We find the analysis of the dissenting Court of Appeals judge on this point persuasive:

[N]o effort has been made to allocate even that portion of the capital costs that will have a useful life in excess of thirty years to the general fund. This is an investment in infrastructure that will substantially outlast the current “mortgage” that the storm water charge requires property owners to amortize. At the end of thirty years, property owners will have fully paid for a tangible asset that will serve the city for many years thereafter. Accordingly, the “fee” is not structured to simply defray the costs of a “regulatory” activity, but rather to fund a public improvement designed to provide a long-term benefit to the city and all its citizens. The revenue to be derived from the charge is clearly in excess of the direct and indirect costs of actually using the storm water system over the next thirty years and, being thus disproportionate to the costs of the services provided and the benefits rendered, constitutes a tax. See Merrelli v St Clair Shores, 355 Mich 575, 585-588; 96 NW2d 144 (1959).

I do not believe that the capital investment component of a true fee may be designed to amortize such an expense, and to enable the city to fully recoup its investment, in a period significantly shorter than the actual useful service life of the particular public improvement. This fundamental principle of basic accountancy guides public utility regulators, Ass’n of Businesses Advocating Tariff Equity v Public Service Comm, 208 Mich App 248, 261; 527 NW2d 533 (1994) (“[c]onceptually, ratepayers are charged for the amortization expense when it occurs and, therefore, rates coincide with the expense and are not retroactive”), as well as tax assessors, Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 133-135; 265 NW2d 182 (1978). It ought to apply equally here.

This is not to say that a city can never implement a storm water or sewer charge without running afoul of art 9, § 31. A proper fee must reflect the bestowal of a corresponding benefit on the person paying the charge, which benefit is not generally shared by other members of society. Nat’l Cable Television Ass’n v United States & Federal Communications Comm, 415 US 336, 340-342; 94 S Ct 1146; 39 L Ed 2d 370 (1974). Where the charge for either storm or sanitary sewers reflects the actual costs of use, metered with relative precision in accordance with available technology, including some capital investment component, sewerage may properly be viewed as a utility service for which usage-based charges are permissible, and not as a disguised tax. See Ripperger v Grand Rapids, 338 Mich 682, 686-687; 62 NW2d 585 (1954). [221 Mich App 91-92.]

Two related failings of the ordinance support our conclusion that the storm water service charge fails to satisfy the first and second criteria. First, the charges imposed do not correspond to the benefits conferred. Approximately seventy-five percent of the property owners in the city are already served by a separated storm and sanitary sewer system. In fact, many of them have paid for such separation through special assessments. Under the ordinance, these property owners are charged the same amount for storm water service as the twenty-five percent of the property owners who will enjoy the full benefits of the new construction.¹⁵ Moreover, the charge applies to all property owners, rather than only to those who actually benefit. A true “fee,” however, is not designed to confer benefits on the general public, but rather to benefit the particular person on whom it is imposed. Bray, supra at 162; Nat'l Cable Television Ass’n, supra at 340-342.

The distinction between a fee and a tax is one that is not always observed with nicety in judicial decisions, but according to some authorities, any payment exacted by the state or its municipal subdivisions as a contribution toward the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax. [71 Am Jur 2d, State and Local Taxation, § 15, p 352.]

In this case, the lack of correspondence between the charges and the benefit conferred demonstrates that the city has failed to differentiate any particularized benefits to property owners from the general benefits conferred on the public.

This conclusion is buttressed by the fact that the acknowledged goal of the ordinance is to address environmental concerns regarding water quality. Improved water quality in the Grand and Red Cedar Rivers and the avoidance of federal penalties for discharge violations are goals that benefit everyone in the city, not only property owners. As stated by the Court of Appeals dissent,

The extent of any particularized benefit to property owners is considerably outweighed by the general benefit to the citizenry of Lansing as a whole in the form of enhanced environmental quality. . . . When virtually every person in a community is a “user” of a public improvement, a municipal government’s tactic of augmenting its budget by purporting to charge a “fee” for the “service” rendered should be seen for what it is: a subterfuge to evade constitutional limitations on its power to raise taxes. [221 Mich App 96.]

The second failing that supports the conclusion that the ordinance fails to satisfy the first two criteria is the lack of a significant element of regulation. See Bray, supra at 161-162; Vernor, supra at 167-169. The ordinance only regulates the amount of rainfall shed from a parcel of property as surface runoff; it does not consider the presence of pollutants on each parcel that contaminate such runoff and contribute to the need for treatment before discharge into navigable waters. Additionally, the ordinance fails to distinguish between those responsible for greater and lesser levels of runoff and excludes street rights of way from the properties covered by the ordinance. Moreover, there is no end-of-pipe treatment for the storm water runoff. Rather, the storm water is discharged into the river untreated.

Ordinance 925 also fails to satisfy the third criterion — voluntariness—because the charge lacks any element of volition. One of the distinguishing factors of a tax is that it is compulsory by law, “whereas payments of user fees are only compulsory for those who use the service, have the ability to choose how much of the service to use, and whether to use it at all.” Headlee Blue Ribbon Commission Report, supra, § 5, p 29.¹⁶ The charge in the present case is effectively compulsory. The property owner has no choice whether to use the service and is unable to control the extent to which the service is used. The dissent suggests that property owners can control the amount of the fee they pay by building less on their property. However, we do not find that this is a legitimate method for controlling the amount of the fee because it is tantamount to requiring property owners to relinquish their rights of ownership to their property by declining to build on the property.

Additional factors, while not dispositive, also support the conclusion that the storm water charge in this case is a tax. First, for purposes of the storm water share of the cso control program, the “storm water enterprise fund” replaces the portion of the program that was previously funded by the general fund revenues from property and income taxes.¹⁷ Second, the fact that the storm water service charge may be secured by placing a lien on property is relevant. While ordinarily the fact that a lien may be imposed does not transform an otherwise proper fee into a tax,¹⁸ this fact buttresses the conclusion that the charge is a tax in the present case, where the charges imposed are disproportionate to the costs of operating the system and to the value of the benefit conferred, and the charge lacks an element of volition. Moreover, although allegedly chosen because it was the most cost-effective method of billing, we think it significant that the storm water charge is billed through the city assessor’s office and that the bill may be sent with the December property tax statements.

m. CONCLUSION

We conclude that the storm water service charge imposed by Ordinance 925 is a tax and not a valid user fee. To conclude otherwise would permit municipalities to supplement existing revenues by redefining various government activities as “services” and enacting a myriad of “fees” for those services. To permit such a course of action would effectively abrogate the constitutional limitations on taxation and public spending imposed by the Headlee Amendment, a constitutional provision ratified by the people of this state. In fact, the imposition of mandatory “user fees” by local units of government has been characterized as one of the most frequent abridgments “of the spirit, if not the letter,” of the amendment.

The danger to the taxpayer of this burgeoning phenomenon [the imposition of mandatory user fees] is as clear as are its attractions to local units of government. The “mandatory user fee” has all the compulsory attributes of a tax, in that it must be paid by law without regard to the usage of a service, and becomes a tax lien of the property. However, it escapes the constitutional protections afforded voters for taxes. It can be increased any time, without limit. This is precisely the sort of abuse from which the Headlee Amendment was intended to protect taxpayers. [Headlee Blue Ribbon Commission Report, supra, § 5, pp 26-27.]

Therefore, we reverse the decision of the Court of Appeals and remand this case to that Court for further proceedings consistent with this opinion.

Brickley, Kelly, and Taylor, JJ., concurred with Weaver, J.

1 456 Mich 949 (1998).

2 The cwa allows cities to obtain permits to discharge specified levels of pollutants into navigable waterways.

3 Approximately seventy-five percent of the property owners are already served by a separated storm and sanitary sewer system.

4 The fund replaced that portion of the system that was previously funded by general fund revenues secured through property and income taxes.

5 Residential property is defined under the ordinance as “[t]hose platted or unplatted parcels, either public or private, with or without buildings, and located within the city of Lansing, and those parcels which are used for, or probably will be used for residential purposes.”

6 Under the ordinance, the annual flat rates applied to residential parcels measuring less than two acres are as follows:

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3,500 $ 35.95 $ 7.34

3,500-7,000 $ 59.83 $18.43

7,000-10,500 $ 84.60 $31.06

10,500-2 acres $120.17 $88.20

7 Industrial property is defined as “[tjhose platted or unplatted parcels used for manufacturing and processing purposes with or without buildings; those parcels used for utilities sites for generating plants, pumping stations, switches, substations, compressing stations, warehouses and right of way, flowage land and storage areas; and those parcels used for removal or processing of gravel, stone, or mineral ores, whether valued by the local assessor or by the state geologist.” Commercial property is defined as “[tjhose platted or unplatted parcels used for commercial purposes, whether wholesale, retail, or service, with or without buildings; those parcels used by fraternal societies; those used for religious or governmental purposes; schools; colleges; and those parcels used as golf courses, boat clubs, ski areas, or apartment buildings with more than 4 units.”

8 At some point, it appears that the rules issued by the public service director were amended to include a one hundred percent credit. The most recent version of the rules regarding detention credits, which reflects a revision date of March 3, 1998, provides for a twenty-five percent credit to appealed properties “which do not front a curb and guttered street and whose stormwater run-off did not reach a; [sic] storm sewer, drainage ditch, or stream, directly or by sheet flow through adjacent properties.” The rules provide a fifty percent credit to appealed properties “satisfying the criteria for a 25% credit, and who’s’s [sic] residence was not connected to the City’s sanitary sewer system.” The rules award one hundred percent credit to appealed properties satisfying the criteria for twenty-five percent credit and located “within a drainage district which could not be served by an existing public storm sewer outlet.” It also appears that credits were established through the Lansing City Council Appeal Review, which awards a twenty-five percent credit “to any property fronting a non-curb and guttered street which did not have any storm sewer on their block” and one hundred percent credit to “any property which fronts a gravel street and does not have a catch basin directly in front of their property or does not have a storm sewer in their block” and to “a property with no street frontage with no adjacent property fronting a street with storm sewer in that block.”

9 Plaintiff filed his action in the Court of Appeals pursuant to Const 1963, art 9, § 32, which provides in pertinent part that “[a]ny taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article . . . .”

10 221 Mich App 79; 561 NW2d 423 (1997).

11 In Ripperger, a pre-Headlee case, the sewer service charge was based on the metered water usage for the winter quarter. In determining that the sewer charge was not a tax, the Ripperger Court concluded with very little analysis that the same reasoning that treated water rates paid by consumers as the price paid for a commodity applied equally to the sewage charges imposed by the city of Grand Rapids. Ripperger, supra at 685-686.

12 The Ripperger Court also noted that the amount paid reflected the price of the service received, thus reiterating the second criterion that the fee must be proportionate to the cost of the service. Accordingly, rather than standing for the proposition that sewage charges are always user fees, as the Court of Appeals majority contended, 221 Mich App 86-87, Ripperger actually articulated relevant criteria for determining whether a charge is a fee or a tax.

13 The total estimated cost through the year 2038 is $205,523,226. Of that total, $8,600,000 is for capital improvement project/separated sewer costs, $85,991,953 is for stonn cso costs through 2018 (i.e., fifty percent of the total cso control program costs), and $34,679,234 is for storm npdes permitting costs. Adding these three components together, $129,271,187, or 62.89 percent of the costs incurred, are for what can be termed capital improvements. Approximately ten percent of the total cost, or $20,567,039, is allocated to administration and billing costs. Operation and maintenance costs are forecasted at $55,685,000. Table 1, Stormwater Utility Ad Hoc Committee Report (August, 1995).

14 The dissent makes much of the fact that the ordinance does not raise revenue for the general revenue fund. However, this does not preclude us from determining that the purpose of the storm water charge is to generate revenue. “[WJhere revenue generated by a regulatory ‘fee’ exceeds the cost of regulation, the ‘fee’ is actually a tax in disguise.” Gomey v Madison Heights, 211 Mich App 265, 268; 535 NW2d 263 (1995). Additionally, the dissent would conclude that the user fee is proportionate to the costs of the service because the eha method used to compute the charge is “a logical system” that estimates “the proportionate amount of runoff’ that each parcel contributes. However, this argument fails to address the fact that a major portion of the costs constitutes capital expenditures and, consequently, an investment in infrastructure that will serve the city for many years after property owners have paid for it.

15 The appeal process and available credits do not make the charge proportionate to the necessary costs of the service because there is no credit for the seventy-five percent of the property owners who are already served by a separated sewer system. As explained during oral arguments, if the appeals process were to credit the seventy-five percent already served by a separated system, it would eviscerate the purpose of the ordinance. Thus, this appeal process, however structured, simply cannot save the ordinance from violating the Headlee Amendment.

16 The dissent disputes that voluntariness is a factor to consider in determining whether the charge is a fee or a tax. The dissent cites Cincinnati v United States, 153 F3d 1375, 1378 (Fed, 1998), to support its argument that a municipal assessment is not an impermissible tax simply because it is involuntarily imposed. First, we would note that the criteria we have articulated are not to be considered in isolation. The lack of volition in this case is one of several factors supporting our conclusion that the storm water charge is a tax. Second, we would note that the court in Cincinnati declined to answer the question when an involuntarily imposed assessment might be a permissible fee. Id.

Further, we note that the Headlee Blue Ribbon Commission’s definition of user fee, which the dissent quotes in footnote 14 to support its argument that the storm water charge in this case should be classified as a user fee, explicitly mentions voluntariness:

A “fee for service” or “user fee” is a payment made for the voluntary receipt of a measured service, in which the revenue from the fees are used only for the service provided. [Headlee Blue Ribbon Commission Report, supra, § 5, p 30 (emphasis added).]

17 In response to this conclusion, the dissent notes that the Revenue Bond Act permits the city to implement a sewer system. However, whether the city was authorized under the Revenue Bond Act to implement a sewer system is not at issue in the present case. What is at issue is how that system is to be funded. It stands to reason that even though the city may be authorized to implement the system, its method of funding the system may not violate the Headlee Amendment.

18 See Jones, supra at 275.