Judge Says MSD Violated Hancock Amendment; Trash Program is Similar

A Missouri Circuit Court judge in Lincoln County has ruled against MSD in a class action case, which was originally filed two years ago by a doctor from Chesterfield, who challenged the legality of the utility in charging its customers for stormwater control service. Judge Dan Dildine ruled that the charge was a tax instead of a fee, and that MSD violated the Hancock Amendment of the Missouri constitution, which requires voter approval for any new tax. The judge further stated in his 37 page opinion that MSD offered no new services, just a new way to charge for the service. The service at issue is charging customers for each 100 feet of area impervious to water, which brought in $41.48 million in revenue and accounted for 22% of the district’s opperating budget for the fiscal year just ended on June 30.

At the trial, expert witnesses for the plaintiffs in the fields of hydrology and hydraulics testified that there is no direct correlation between impervious area and runoff, and further testified that an impervious area is among many factors that influence runoff, including slope, storage capacity and the very makeup of the soil found on most properties in St. Louis, which allows for little water penetration. MSD offered no objection to the experts’ testimony.

In his written opinion, Jude Dildane wrote: "The testimony of MSD's witnesses demonstrates that its Stormwater User Charge bears no relation to the level of services it actually provides to an individual property owner, but rather is simply a way of apportioning its total stormwater costs amongst its fee payers."

There will be a second phase of the trial to assess damages against MSD, but no date has been set. In the interim, MSD can still charge the 14 cents for each 100 feet of area impervious to water.

According to district spokesman, Lance LeComb, MSD may appeal the decision. Another option is that MSD could ask voters to approve the stormwater charge or reinstate a property tax that was eliminated when the charge took effect on March 1, 2008.

There will be future updates on this issue as new developments arise, since this is an issue that has a direct impact on all St. Louis County residents.

More information at: http://www.stltoday.com/news/local/crime-and-courts/article_e5207a08-90f1-11df-bd08-00127992bc8b.html