W.D.M. stormwater district still running downhill in the courts
KENT DARR Apr 19, 2018 | 9:08 pm
3 min read time
714 wordsAll Latest News, Energy, Government Policy and LawThe city of West Des Moines has lost what could be the final round of a legal fight to establish a stormwater fee district in a development area near the city’s western border.
If the City Council decides not to appeal the latest court ruling in a dispute that has held up development in the Sugar Creek watershed near Grand Prairie Parkway, the city will have to “go back to the drawing board” for a new way to manage runoff and build culverts, bridges and roads in the area.
Developers who own low ground need the infrastructure, and those who own the high ground do not.
Steven Gillotti’s Interchange Partners owned about 80 acres of high ground — most of which has since been sold to Hubbell Realty Co. — when he challenged a city ordinance that levied what was called a stormwater connection fee of $4,962 an acre when developers submitted plans for a subdivision or obtained construction permits. Funds generated by the fees were to be used to replace aging culverts, install new culverts and build bridges. The district was limited to 1,500 acres of development land.
West Des Moines officials argued in court that culverts and bridges that channeled stormwater to Sugar Creek and then to the Raccoon River amounted to a utility and that fees associated with the structures could be spread among owners of development land in the area. Gillotti’s attorney, George LaMarca, countered that the city was simply looking for a way to build roads and was distributing a disproportionate share of those costs on certain landowners. In addition, his argument went, the city was playing loose with the definition of a utility.
In December 2016, a Dallas County District Court judge agreed with LaMarca.
Judge Paul Huscher said the West Des Moines ordinance violated state law and in a pointed decision noted that the landscape’s hills and valleys created the only utility that existed in the watershed area.
“Rainwater falling on the petitioner’s property runs downhill through the naturally occurring waterways. … Those waterways and drainage slopes were not constructed by the city, are not owned by the city, and will not be maintained or improved by the city of West Des Moines. The placement of culverts under roadways, as those streets are built, will do nothing to improve stormwater drainage from the upstream properties. The culverts, at best, will permit the continued drainage the private property owners currently enjoy and to which they are legally entitled,” Huscher said.
He pointed out that there was not an actual connection of a stormwater drainage system. The area in question had been reduced to 1,500 acres from 2,575 acres after the city discounted property that had already been developed or that it determined could not be developed.
In a decision filed Wednesday, a three-judge panel of the Iowa Court of Appeals agreed, unanimously, with Huscher.
“This was a long and hard-fought battle, but my client understood that important property rights were at stake,” LaMarca said in an email to the Business Record. “The case has established several significant points.”
Among them were that the city’s planned culverts do not create a new structure to control the carry-off of surface water, and they do not qualify as a city sewer utility; the city cannot charge connection fees to properties that never will be connected in any way to the under-road culverts; and the property is not connected to a sewer merely because water drains from the property and eventually passes through a culvert under a city street.
Additionally, the appellate court determined that even if the culverts qualified as a city sewer facility, there was not “equitable apportionment of taxes” based on benefits to property owners, given that the connection fee was charged to owners of undeveloped property.
The City Council will have to decide whether to appeal, City Manager Tom Hadden said. Another option is to attempt to change state law to allow districts such as the one proposed in the city ordinances, he said. The next regularly scheduled City Council meeting is April 30.
Hadden said some developers voluntarily paid the connection fee. After the lawsuit was filed, the city decided to hold funds from the connection fees in an escrow account pending the outcome of the case.