Posted by: Patricia Salkin | July 29, 2019

IL Appellate Court Upholds Village Stormwater Fee Ordinance

This post originally appeared on the Municipal Minute Blog of the Ancel Glink Firm and reposted with permission.

In 2014, the Village of Winnetka adopted a storm water ordinance that imposed a fee on the owners of property in the Village in order to provide a dedicated funding source for various improvements to the Village’s storm water system. That fee was calculated based on the “equivalent runoff value” (ERU) of 3400 square feet of impervious surface area on lots within the village. No fee was assessed on properties with less than 170 square feet of impervious surface area, and roads, sidewalks, and alleys were also not subject to the fee. Properties that do not discharge storm water into the Village’s system could obtain a 100% credit of the fee, and properties that detained at least half of their own runoff could obtain a 50% credit of the fee. The fee was assessed on the Village’s utility bills.
Green, a Village resident subject to the fee, filed a lawsuit against the Village to challenge the fee, claiming that it was an unlawful tax because the fee bears no relation to a property owner’s actual use of the Village’s storm water system. The parties filed motions for summary judgment, and the circuit court ruled in the Village’s favor. Green appealed.
The issue before the appellate court was Green’s argument that the Village’s storm water fee was actually a tax rather than a fee for services rendered. Green made a number of arguments, including that many property owners were being charged the fee without receiving any benefit, and that the fee was not tied to the actual use of the Village’s storm water system. The Village defended the fee, arguing that a previous appellate court ruling had upheld a similar storm water fee adopted by Rock Island that was also based on impervious surface area.
The appellate court agreed with the Village that Winnetka’s fee was similar to Rock Island’s fee that was previously upheld by the Third District Appellate Court. Both ordinances assess the fee based on impervious surface and both defined impervious surface in the same manner. Both ordinances also allow for a 100% credit for properties that do not use the municipal system, and the revenues obtained in both municipalities are dedicated to a fund used solely to finance the municipal storm water system. Finally, both ordinances exempt public roads and rights of way. Moreover, the court determined that there was a rational basis to support the storm water fee ordinance. In sum, the court upheld the Village’s ordinance.

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