Further Thoughts on Montgomery County Stormwater Fee Case

As previously reported on Conduit Street, a recent Montgomery County Circuit Court decision,  Paul N. Chod v. Board of Appeals for Montgomery County, 398704V, has called into question Montgomery County’s stormwater fee and may be used to challenge how the fee is assessed in other counties and municipalities.  A July 26, 2015, Baltimore Sun article offered a variety of perspectives on the potential scope of the case:

“I think it really can shake the tree,” said James L. Thompson, one of the lawyers for Paul N. Chod, whose development firm sued Montgomery County.

Thompson suggested other localities ought to take a hard look at how they assess the fees, and what credits they give for treating stormwater on-site. …

Others are not so sure. Jon Mueller, a lawyer with the Chesapeake Bay Foundation, said he considered the ruling “pretty narrow in scope” because it didn’t address the validity of the state law, only how the county had calculated its fees.

Leslie Knapp Jr., legal and policy director for the Maryland Association of Counties, said it’s unclear whether the ruling has broader implications, since it hinged on that provision in the new law that applies only to Montgomery County.

But if other courts apply the same logic, he said, it could force those large localities to revise their fee structure and assess charges calculated on a property-by-property basis. And, he added, the ruling also could forbid localities from using the fees to raise money for dealing with stormwater on public property, such as roads, schools or parks.

Other counties with stormwater fees are concerned that they could be subject to similar challenges:

“My concern is that we may be in a similar situation,” said Vincent J. Gardina, director of environmental protection and sustainability in Baltimore County.

Gardina and officials in Baltimore city and Anne Arundel and Howard counties all said they or their lawyers are reviewing the Montgomery decision to see if it raises questions about the legality of their fees.

“I don’t know that any of them are different from Montgomery’s,” said Jim Caldwell, acting director of Howard County’s office of sustainability, which manages its stormwater projects. …

Caldwell, Gardina and Jeff Raymond, spokesman for Baltimore’s Department of Public Works, all said their localities’ fees were designed to raise funds for dealing with more than just the runoff coming from private property.

“If you’re a property owner in Howard County, Anne Arundel, or Montgomery County, you utilize roads,” said Howard’s Caldwell.

The decision has also caught the attention of legislators:

Del. Kumar P. Barve, a Montgomery County Democrat who is chairman of the House Environment and Transportation Committee, said his panel’s lawyers are reviewing the decision.

“It was the intent of the legislature to create an affirmative incentive for businesses to build buildings that didn’t cause runoff,” he said. So “if you have a property that genuinely doesn’t generate stormwater runoff then you probably shouldn’t be paying a fee.”

The article also noted that Montgomery County is considering whether to appeal the decision and has no immediate plans to change its fee structure.

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