Georgia's highest ruling body could end the debate about Columbia County's stormwater utility fee.
Calling it an illegal tax, Augusta attorney John Long filed an appeal last week against the stormwater utility fee.
Long has mailed the motion to Columbia County Clerk of Superior Court Cindy Mason, saying the fee is unconstitutional. He said he hopes to argue the case before the Georgia Supreme Court in the next eight to 12 months.
"We've known all along this was a constitutional issue and should go before the (state) supreme court," Long said. "Let's face the facts. (The stormwater utility fee) is a disguised method of raising revenue for the government."
Long lost in court Aug. 1 when Superior Court Judge J. Carlisle Overstreet ruled in favor of the county and refused a motion to have itsstormwater utility ordinance declared invalid.
The appeal is the latest step in a nearly 2-year-old lawsuit against the county filed by four homeowners -- Donald L. McLeod, Charles E. McLeod, R.E. Watkins Jr. and George Fuller Jr. The homeowners live in the area subject to the monthly fee.
Columbia County instituted the stormwater utility in 1999. It is based on the amount of impervious surface, or anything water does not seep into, on a piece of property. The fee was established to fund projects that help control flooding along Reed, Euchee, Jones and Crane creeks as well as Betty's Branch watersheds.
About 20,000 land owners in Evans, Martinez and outside Grovetown are a part of the billing area.
"The arguments we'll make (before the state supreme court) are essentially the same arguments we made to the superior court," Columbia County Attorney Doug Batchelor said. "(The plaintiffs) claim that collecting the fee the way the county did was an unconstitutional taking -- that we're taking money without the proper authority of law. There is a constitutional provision that says counties have the right and authority to provide water, sanitary, sewer and stormwater collection. We maintain this is nothing more than a utility service like water and sewer."
Earlier this year, U.S. District Court Judge Dudley Bowen ruled that the fee is a tax and sent the suit back to superior court. But Overstreet said Bowen's ruling applied only to jurisdiction and not the fee's structure.
The suit stated that county officials should have charged the fee to the entire county or attained the permission of residents in the utility area before instituting the fee.
"Judge Bowen ruled this was a tax," Long said. "Georgia state law says you have to uniformly apply tax. You can't apply it to only a portion of the county. The question is, is it a tax or is it a fee? We've had one judge say it was a tax and we've had Judge Overstreet disagree with that. It's time to leave it up to the supreme court to decide."
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