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Bolt v. City of Lansing

Supreme Court of Michigan

October 6, 1998, Argued ; December 28, 1998, Decided ; December 28, 1998, Filed

No. 108511

Opinion

 [*154]  BEFORE THE ENTIRE BENCH

WEAVER, J.

We granted leave to appeal in this case to determine whether the storm water service charge imposed by Lansing Ordinance No. 925 is a valid user fee or a tax that violates the Headlee Amendment, Const 1963, art 9, § 31. 1 We hold that the storm water service charge is a tax, for which approval is required by a vote of the people. Because Lansing did not submit Ordinance 925 to a vote of the people as required by the Headlee Amendment, the storm water service charge is unconstitutional and, therefore, null and void.

Part of the Lansing wastewater disposal system combines sanitary and storm sewers. During periods of heavy precipitation, the combined system often  [*155]  overflows, discharging combined storm water and untreated or partially treated sewage into the Grand and Red Cedar [**3]  Rivers. In an effort to comply with the Clean Water Act (CWA) and the National Pollutant Discharge Elimination Standards (NPDES) permit-program requirement to control combined sewer overflows, 2 the city of Lansing elected to separate the remaining combined sanitary and storm sewers. 3

The estimated cost of implementing the combined sewer overflow (CSO) control program is $ 176 million over the next thirty years. In 1995, as a means of funding the separation, the Lansing City Council adopted Ordinance 925, which provides for the creation of a storm water enterprise fund "to help defray the cost of the administration, operation, maintenance, and construction of the stormwater system . . . ." 4 The ordinance provides that costs for the storm water share of the CSO program [**4]  (fifty percent of total CSO costs, including administration, construction, and engineering costs) will be financed through an annual storm water service charge. This charge is imposed on each parcel of real property located in the city using a formula that attempts to roughly estimate each parcel's storm water runoff.

Estimated storm water runoff is calculated in terms of equivalent hydraulic area (EHA). As defined by the ordinance, EHA is "based upon the amount of pervious and impervious areas within the parcel multiplied by  [*156]  the runoff factors applicable to each." Impervious land area, which impedes water absorption, thus increasing storm water runoff, is defined as the surface area within a parcel that is covered by any material which retards or prevents the entry of water into the soil. Impervious land area includes, but is not limited to, surface areas covered by buildings,  [**5]  porches, patios, parking lots, driveways, walkways and other structures. Generally, all non-vegetative land areas shall be considered impervious.

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459 Mich. 152 *; 1998 Mich. LEXIS 3239 **; 587 N.W.2d 264

ALEXANDER BOLT, Plaintiff-Appellant, v CITY OF LANSING, Defendant-Appellee.

Subsequent History:  [**1]  Updated Copy December 14, 1999.

Prior History: Court of Appeals, SAAD, P.J., and WAHLS, J. and MARKMAN, J. (Docket No. 912944). 221 Mich App 79; 561 N.W.2d 423 (1997).

Disposition: Decision of the Court of Appeals reversed and case remanded to that Court for further proceedings consistent with this opinion.

CORE TERMS

storm, ordinance, parcel, user, sewage, disposal, sewer, runoff, landowners, municipal, impervious, pollutants, residential, exaction, proportionate, calculates, stormwater, pervious, sanitary, Charter, annual, acres, disproportionate, compulsory, criterion, ratified, surface, clean, drops

Tax Law, State & Local Taxes, Use Taxes, General Overview, Administration & Procedure, Business & Corporate Compliance, Real Property Law, Zoning, Impact Fees, Public Utility Taxes