January 15, 2013

A Stormwater “Fee” on Landlords is Actually a Tax: Banks v. City of Ocean Shores

Download Attached DocumentIn January 2013, we filed a brief in a lawsuit involving the city of Ocean Shores, Washington, and their assessment of a “stormwater charge” on all real estate lots in the city. The “fee” is based on property square footage, even though stormwater management is a general public service adn the charge is not based on the use of drainage facilities or other measures of benefit and burden. The jury was instructed as to the definition of taxes and fees properly except to deny that a fee involves a particularized benefit, and consequently concluded that the charge is a valid fee. Banks has appealed.

Our brief recites the proper definition of fee and warns against permitting cities to impose taxes disguised as fees. The city urged the court not to consider the Tax Foundation’s argument but their objection was overruled.

The case is Banks, et al. v. City of Ocean Shores, No. 88108-1, Supreme Court of Washington.

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