Cleveland Plain Dealer: Appellate court bars sewer district from collecting storm-water fee
CLEVELAND, Ohio — An appellate court has barred the Northeast Ohio Regional Sewer District from collecting a controversial fee for storm-water control, putting the future of a $35 million-a-year program in doubt.
The 2-1 decision, issued Thursday by the Ohio 8th District Court of Appeals (read the decision) abruptly halts the design of 16 initial projects involving erosion control and other strategies. It also leaves communities wondering what will happen with $12 million already collected from property owners.
The sewer district will file an appeal with the Ohio Supreme Court, Executive Director Julius Ciaccia said Friday. Meanwhile, he said, Cleveland and its suburbs will get no help with long-term construction, nor with emergency assistance such as removing debris from flooded waterways
“All those communities are going to be on their own until this gets straightened out,” he said.
The fee runs from about $9 to more than $27 a quarter, depending on the amount of hard, or impervious surface. Credits are given for steps taken to control runoff on the premises.
Trying to head off opposition, the sewer district went to Cuyahoga Common Pleas Court in January 2010 on the same day the district board approved the fee. Officials sought to validate their authority to collect what vocal critics called an unvoted tax.
Judge Thomas Pokorny ruled that managing storm-water control fell within the authority of the district, which was created by a federal court order in 1972 to clean up pollution. He also declared that the fee was not a tax but said the district had to set aside 25 percent for projects chosen by the cities, more than triple what was planned.
Eleven of the district’s 56 communities — spanning portions of Cuyahoga, Summit, Lorain and Lake counties — appealed. The appellate court’s majority sided with them, saying that runoff does not fall within the definition of waste water and barring collection of the fee.
Ciaccia said the district will consider asking legislators to spell out a definition of waste water that includes runoff.
The dispute was never about a need to control water gushing across the hard surfaces that cover nearly 60 percent of the district’s 355 square miles, said Gregory O’Brien, law director in Independence, one of the communities that challenged Pokorny’s ruling.
“An unelected body like the Northeast Ohio Regional Sewer District needs to follow the rules,” he said. “We’re happy the court saw it that way.”
David Matty, law director for another opponent, Brecksville, said he and colleagues would meet soon to discuss options for reclaiming the money collected so far. But district spokeswoman Jean Chapman said the funds will be placed in escrow.
Not everyone was pleased with the appellate court’s decision. Pepper Pike Mayor Richard Bain said he welcomed help with unclogging creeks after a July tornado tore through the city and toppled trees by the dozen. He estimated the value of the cleanup at $185,000.
“We benefit,” Bain said. “Our residents will be hurt if we can’t figure out a way to make this work.”
The fee seemed to have secured its place on the books. Among district members, 19 communities had approved service agreements that include providing access to streams, sharing storm-water plans submitted by developers and waiving fees on district projects.
Another 35 were studying the agreements and two, Brecksville and Strongsville, had flatly said no.