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Study to determine correct stormwater assessments

By: Kristyne E. Demske | St. Clair Shores Sentinel | Published February 7, 2020

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ST. CLAIR SHORES — As St. Clair Shores has been prohibited from charging a stormwater utility fee through a class action lawsuit filed by resident Brad Patrick and the Kickham Hanley law firm, city officials are now working to determine how they can correctly pay for the stormwater system.

The City Council approved work by Hubbell, Roth & Clark, the city’s engineering firm, to conduct a two-part stormwater apportionment study.

The first portion of the study will develop the residential equivalent units, or REU, that will be used to determine how the charge will be assessed to property owners in the city by determining runoff factors for typical zoning classifications, defining the boundaries of a drainage district and preparing a preliminary report.

The second part of the study will finalize the methodology, develop specific site data, develop procedures for property owners to appeal their REU assignments and how they could receive credits toward their fees, and the preparation of the final report.

The proposed cost is not to exceed $206,000 and will take about nine months to complete.

The lawsuit filed by Patrick in 2017 alleged that a “stormwater utility fee” charged by the city was not a user fee but, instead, was a tax that raised revenue in violation of the Headlee Amendment to Michigan’s Constitution.

Represented by Kickham Hanley, the suit attained class action status and St. Clair Shores residents were notified that they were part of that class in December 2018.

The stormwater charges were fixed fees charged each quarter: $8.52 per single-family home and $4.26 per single-family home located on a waterfront or canal, for example. But the lawsuit alleged that the charges were being used to provide benefits for the city and all citizens, not just the users paying the fee. That is why the lawsuit alleged that the money collected was a tax not approved by voters, in violation of the Headlee Amendment.

Macomb County Circuit Court Judge Jennifer Faunce ruled that the stormwater fee was inappropriate and prohibited the city from further collection of the fee in June.

Councilman John Caron explained at the Feb. 3 City Council meeting that while the city is still appealing the decision, it is working to get a new fee structure in place that will differ depending on the type of property instead of a “one-size-fits-all charge.”

“If someone has a larger property, larger frontage, they’re more likely to pay a bit more,” he said. “Smaller property, smaller frontage, they’re going to be paying a little bit less.”

City Manager Matthew Coppler said that residents may have an opportunity to receive credits for improvements like rain gardens or rain barrels. Determining those credits and also the number of impermeable surfaces that would increase the cost of the charge for a specific property is why the study is being conducted.

“It’s all going to depend on the specifics of that lot,” he said.

Allowing the opportunity for the charge to change anytime the property changes could be “unmanageable,” Councilman Chris Vitale said.

“That’s going to change constantly. There’s going to be people who take parking out, put parking in,” he said.

“People have to have the ability, if conditions on their property change, they have to have the opportunity to either appeal or get credit for it,” Coppler said. “We have to provide the ability to change ... maybe not year to year. Maybe it’s every three years or five years.”

City officials stressed that they were forced to change the system, but Mayor Kip Walby said that the assessment is needed.

“We need the stormwater (charge) more than ever these days, as we have the lake (flooding) and have 40 pumps out there,” he said.

“We’re not charging that charge anymore,” agreed Caron. “For the foreseeable future, until we get this in place. With all the other expenses — temporary pumps, trying to get a new pump station in place — we do not have funds coming in for that right now. (We have to) figure out how we’re going to keep funding this service for the city.”