Posted on February 5, 2014 by Michael Hardy
In the mid 1970’s, the City of Cleveland and some fifty plus surrounding communities created a sewer district now known as the Northeast Ohio Regional Sewer District (“NEORSD”) to handle sanitary and industrial discharges into Lake Erie, and several rivers, including the Cuyahoga. Over time, however, the Cleveland area experienced considerable urban sprawl, creating vast expanses of impervious surfaces in the form of parking lots and large clusters of office, shopping, Big Box, commercial and industrial facilities. With the conversion of green space to impervious roofs and parking facilities, some of the communities began to experience more flooding and erosion problems. Indeed, the Cleveland Metroparks, known as the “Emerald Necklace” because of the park lands situated in the flood plains of the Cuyahoga, Chagrin, and Rocky Rivers, was particularly hard hit from the storm water runoff originating in the nearby suburbs.
To address storm water and erosion problems that were “regional” in scale, the NEORSD developed a program in 2010 that included the payment of fees by all property owners based on the amount of impervious surface areas, like driveways, parking areas, and roof tops. The NEORSD expected to use these funds on projects that would alleviate flooding and stream erosion. But there was no unanimity among the member communities of the NEORSD about the need for, or the type of program that the district wished to implement. Approximately ten of those communities objected, in large part because their geographical elevations were such that they likely would never benefit from the preventive measures. Moreover, many of those communities already had their own expensive, capital intensive storm water systems. Furthermore, a significant number of commercial property owners objected because of the hefty fees that they would pay based on the parking lots and roof structures they maintained.
To validate the regional program, the NEORSD filed a declaratory judgment action in the Court of Common Pleas in Cuyahoga County, where it prevailed. But the dissenting communities and commercial property owners appealed, and secured a two to one appellate reversal in 2013. The appeals court concluded that the sewer district did not have the authority to address storm water unless it was also contaminated with sewage. The court of appeals did not reach the merits of the claim that the storm water fees were illegal taxes. (The NEORSD had billed approximately $35,000,000 in fees by the time of the appeals court decision.)
The NEORSD has appealed the decision to the Ohio Supreme Court, with significant amicus support. The dissenting communities and the commercial property owners have urged the Ohio Supreme Court to decline to hear the case, and claim that the legislative process in the General Assembly is the proper place to balance the political considerations that might be involved in a fee supported regional storm water management plan. They claim that the current plan is nothing more than power grab and illegal tax by an unelected and unaccountable body. The NEORSD, on the other hand, argues that the storm water problems know no political boundaries, and thus its regional, holistic approach is far superior to the piecemeal, community by community approach that previously existed.
As of this note, the Ohio Supreme Court has not decided whether it will take the case. The underlying court of appeals decision can be accessed here.