DEVELOPER APPEALS JUDGE BILLINGSLEYS RULING UPHOLDING SANITATION DISTRICT PROGRAM TO DRAIN STORM RUN OFF WATERS

See Judge Billingsleys decision at:  SANITATION DISTRICT RIGHT TO IMPOSE DRAINAGE TAX

The decision upheld the right of the sanitation district to assume the duties of management of drainge projects in the three counties. Over 30 cities have agreed to allow a comprehensive program to be run by the sanitation district.

See Ky. Post article by By Paul A. Long – Ky. Post

Reading court documents in the case of The Wessels Company, et.al v. Sanitation District No. 1, et.al reminds one of the old Miller Lite beer advertisements.
Taste great! Less filling!
 But instead of debating the merits of the alcoholic beverage, lawyers on both sides are arguing the specifics of how a state law is written. Each side insists it is abiding by the clear and unambiguous meaning of the law, and claims the other side offers only strained and unreasonable interpretations of the same law.
 Clear and unambiguous! Strained and unreasonable!
What’s at stake, though, is not beer, but the flow of storm water throughout Northern Kentucky.
 Sanitation District No. 1 says it has the right to collect a $4.02 monthly fee from homeowners in its service area to implement and manage how storm water – the runoff from rain, melting snow and ice that sometimes flows into sewage systems causing backups and flooding – is controlled.
 But opponents, led by a local development company, derisively dub it the “rain tax” and say it’s a power grab by sanitation officials who are acting outside their legal authority. What they are seeking is nothing less than a court-ordered repeal of the fee and the return of the millions of dollars already collected.
 If that happens, said Jeff Eger, general manager of the Sanitation District, cities and counties will have to control storm water with no money and often little expertise.
On Tuesday, the dispute will hit the state Court of Appeals, where three judges will hear oral arguments in Louisville over whether Boone Senior Judge Stan Billingsley was correct when he ruled in favor of the Sanitation District.
 “The case is simply determined by the ‘plain meaning rule,’” Sanitation District attorney Gerald Dusing wrote in his arguments.
 “The plain meaning of (the law at issue) unambiguously provides that SD1 has the authority to ‘implement’ a plan for management of storm water. … SD1 cannot fulfill its statutory mandate to develop and implement a program to manage storm water without collecting a reasonable fee to fund this service.”
 That’s simply not true, said Todd McMurtry, who represents the Wessels Co.
“SD1 contends that a combined reading (of the laws) provides it express authority to levy storm-water surcharges,” he said.
 “It is ironic that SD1 requires parts of three statutes to find an ‘express’ meaning. … A more reasonable interpretation is that the General Assembly did not intend to authorize a multi-million dollar surcharge by a combined reading of three statutes. If this were the General Assembly’s intent, it would have enacted plain and specific language authorizing a storm-water surcharge.”
 The district began collecting the storm-water fee in 2003. While homeowners are charged a flat rate, non-residential customers are charged based on the size of surfaces, such as rooftops and driveways, on their property that do not absorb rain.
 Many of the communities in Northern Kentucky asked the district to take over operation of their storm-water systems, reasoning that it would be a more efficient and economical way to address the situation than doing it individually. They did so through what are called interlocal agreements, which allow one government entity to administer a service normally provided by another.
 Wessels argues the agreements are illegal because they are not allowed by state law.
 Eger said the fees bring in about $8 million a year to the district’s $25 million budget. It’s used for a variety of storm-water related issues, he said.
For instance, the money was used in Fort Wright to repair storm-water lines that had cracked and were also taking in sewage, Eger said.
 In 2000, the state cited the city because a city-owned storm water pipe was discharging fecal coliform – raw sewage – into a tributary of the Banklick Creek. Fort Wright was given 25 days to fix the problem or face $25,000 a day in fines. The district eliminated the discharge and contributed about half of the $3 million to upgrade the city’s system.
 The district is now investigating a similar problem in Elsmere, Eger said, and has spent money on storm-water pipe repairs in Newport, Covington and elsewhere.
 USAGE OF FEES
Jeff Eger, general manager of the Sanitation District, said money from the fees is used for a variety of storm-water related issues, including enforcement of various state and federal regulations, oversight of construction sites, testing of storm-water pipes, and repair and installation of those pipes.

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