CYA with TIA: Fee is rain tax

For the folks waiting on the other shoe to drop, that sound last week was practically a combat boot.

But it looks like the fight has just started.

Federal Judge Dudley Bowen handed down a technical ruling in the lawsuit against Columbia Countys stormwater utility fee. Bowens decision means the fees derisive nickname is appropriate: The rain tax, he says, really is a tax.

Whats it all mean? John Long, the attorney who filed the lawsuit two years ago on behalf of four Columbia County residents, captures the essence of Bowens ruling: We are basically back in the position we were when we filed the lawsuit, Long says.

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Its been a long trip back to square one. When Donald and Charles McLeod, R.E. Watkins Jr. and George Fuller Jr. filed the suit back in 2001, the county responded by seeking to have the case moved to federal court instead of state or superior court.

Bowen agreed to take the case. That was seen as a victory for the county; obviously, its attorneys wouldnt have sought to transfer the case to federal court if they didnt believe theyd have better chances of winning there.

The two sides since then have fought not over the substance of the court challenge, but over which court would actually hear the case. Bowen refused a couple of times to send it back to superior court, and the 11th Circuit Court of Appeals declined to get involved.

That left it all up to Bowen. Before examining the merits of the claim itself, he first had to decide if he really did have jurisdiction. To reach that decision, he reviewed case law and a federal statute called the Tax Injunction Act. If the stormwater utility is a fee according to the TIAs tests, the federal court can get involved. But if it is a tax, Bowen wrote, the TIA prevents federal court from having jurisdiction over a local decision.

Bowen concluded that its a tax. So hes put the ball back in superior court. Back to square one.

So what happens now? In essence, its as if two years have gone by with the suit riding a courthouse treadmill. The case started in superior court, detoured to federal court and came back to the beginning. And most of us - 75 percent of the countys residents - have continue to be charged the fee.

During that time, in fact, residents in the stormwater utility service area have paid roughly $1 million a year in rain taxes. In addition, $800,000 per year comes from property taxes for a threshold level of storm-water service - for fixing ditches and that sort of thing.

County Engineer Jim Leiper says the stormwater utility has brought in $2.8 million in the past two and a half years. And weve spent about $1.1 million on projects so far, he says, with another $2 million or so in projects pending.

County commissioners are deciding whether to appeal Bowens decision or to continue the fight in superior court. One option thats not on the table: Dont expect Columbia County officials to throw in the towel, because to do so at this point would mean hitting up all taxpayers to refund the money thats already been spent.

Money, says Bowen, that came from a tax. Not a fee.

Correction

In commenting last week on the nutty way Stone Mountain Parks private management company is treating heritage groups that want to hold a Confederate Memorial Day service at the park, I should have noted that Woody Highsmith of Evans is the past commander of Augustas Brig. Gen. E. Porter Alexander Camp of the Sons of Confederate Veterans. Hes also the adjutant general of Georgias Military Order of the Stars and Bars.

(Barry L. Paschal is publisher of The Columbia County News-Times.)