The Northeast Ohio Regional Sewer District overstepped its authority by creating a new stormwater management program and imposing a fee on property owners to pay for it, an appeals court has ruled.
The decision, issued last week by the 8th District Court of Appeals in Cleveland, is a victory for many communities in Cuyahoga and Summit counties that have been fighting the program since it was announced five years ago.
Judge Sean Gallagher, who wrote the majority 2-1 decision, had harsh words for the district, accusing the agency of imposing “its will on constituents with limited oversight and control.”
“By implementing the stormwater fee, the sewer district has effectively taken upon itself to claim a share of community dollars, while other public entities such as school districts must continue their struggle to obtain public funding,” he wrote.
The court concluded that the district couldn’t create a stormwater program without being given that ability by the state legislature.
District Executive Director Julius Ciaccia Jr. said Wednesday that the district will appeal to the Ohio Supreme Court.
“We’ve always been very confident in our position and in our legal analysis of our authority,” he said.
Ciaccia also bristled at Gallagher’s characterization that the district was doing a power grab.
“We didn’t think that was very appropriate,” he said.
The other two judges felt the same way.
“In my view, the district simply was making a well-meaning effort to deal with Northern Ohio’s need for clean water,” Judge Kenneth Rocco wrote in a separate opinion that supported the majority decision. “That need should be a high priority in this state, especially in light of the fact that Lake Erie and its watercourses arguably are Ohio’s greatest natural resource.”
Judge Larry A. Jones Sr. dissented.
The sewer district started charging the fee in January and has collected about $12 million. The fee was expected to raise more than $35 million a year.
That money is being moved into an escrow account while the court battle continues, district spokeswoman Jennifer Elting said.
She added that anyone who receives a sewer bill with the stormwater fee included doesn’t have to pay the fee portion.
The stormwater program and related projects also are on hold.
“We’re disappointed that we’ve been running this program now for several months and it’s surpassed my expectations as far as how much help we were giving communities and how little complaints we got from customers [about the fee],” Ciaccia said.
He noted that the district was ready to go forward with a project to aid Indian Creek in Macedonia, where sanitary sewers are about to collapse.
“Either the city or county is on the hook for that job,” Ciaccia said. “It’s in dire condition.”
The district has faced legal challenges since it announced the effort, which was designed to help solve flooding, erosion and water-quality problems in the region.
Summit County and many of its northern communities filed suit in December 2009. Cuyahoga County communities and others also sued.
A Cuyahoga County judge ruled in April 2011 that the district had the authority to launch the program and impose the fee. But the judge also removed several communities from the program.
Later, Beachwood, Bedford Heights, Brecksville, Cleveland Heights, Glenwillow, Independence, Lyndhurst, North Royalton, Oakwood, Olmsted Falls and Strongsville appealed that decision, leading to last week’s appeals court ruling.
Elting estimated there are 300,000 to 330,000 property owners affected in Cuyahoga and Summit counties. Even those who aren’t district customers were required to pay the fee if their property fell within district boundaries.
The fee was based on the amount of impervious surface, and was about $60 a year for the average homeowner. Commercial and industrial property owners paid much more.
Rick Armon can be reached at 330-996-3569 or firstname.lastname@example.org.