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Home My WebLink About04/19/2011 06 Church on the Move Appeal - Stormwater User's Fees CANCELED • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. For Meeting of: April 19, 2011 • ITEM TITLE: Appeal of Church on the Move — Stormwater User's Fees (quasi-judicial hearing) SUBMITTED BY Mark A. Kunkler, Senior Assistant City Attorney CONTACT PERSON / TELEPHONE: Randy Meloy, Surface Water Engineer, 576-6606 SUMMARY EXPLANATION: Church on the Move, 3414 Tieton Drive, Yakirna, Waehington, has appealed the imposition of the 2011 Stormwater User's Fees on its 104, developed nonresidential parcels. On February 15, 2011, the Church requested an exemption from the fees from the City's Surface Water Engineer. The request was denied by letter dated February 22, 2011. The Church then filed an appeal to the City Council by letter deted March 1, 2011. The appeal process follows the procedures of cnapter"7:80 YMC, the Stormwater Utility Code. „:. Resolution Ordinance Othetiu(SpegifSi) Appeal Hearing 40 Contract Mail to (name and address): Phone: Funding Source APPROVAL FOR SUBMITTAL.._ City Manager STAFF RECOMMENDATION Staff recommends that Council review the record, consider the testimony and render a'decision.'included within the Agenda materials are the letters, documents and memoranda comp the record and briefing in this case. BOARD / COMMISSION RECOMMENDATION: This is an appeal from the decision of the City of Yakima Surface Water Engineer denying Church on the Move an exemption from Stormwater User's roes. COUNCIL ACTIC)* • -=== Cf1 UR. CFI (DM Tf E NI (c" • .!r 2.■ • • RECEIVED APR 1 4 2011 April 12, 2011 CITY LEGAL DEPT. Mark Kunkler Senior Assistant City Attorney City of Yakima Legal Dept. 200 South Third Street Yakima, WA 98901 Dear Mark: Thank you for taking my call earlier today, it was a pleasure speaking with you. We appreciate the time you have spent in assisting us with your detailed analysis and explanation of the City's position Enclosed is a copy of our response and our formal Appeal Withdrawal. Per our conversation, we understand this removes this matter from • the City Council agenda for April 19 as it is considered resolved. If you have further questions, please feel free to contact me. Sincerely: 610 11 Mike Gaub v. admin./COTM • 4 ! 'W-cL=Pna, gi 'A ( 18972 ,1.C;si` 1 RECEIVED April 12, 2011 APR 1 4 2011 To: Honorable Mayor and Yakima City Council CITY LEGAL DEPT. Richard A. Zais, Jr„ City Manager Mark Kunkler, Senior Assistant City Attorney From: Mike Gaub, Administrator Church on the Move, Yakima, Wa Subject: Appeal of Stormwater User Fees Church on the Move, 3414 Tieton Drive, Yakima, Washington, has filed an appeal of the Stormwater User Fe Assessment for the church property. The appeal was dated March 1, 2011, and was received by the City Clerk on March 15. Subsequently; the Yakima City Council has set a public hearing for this matter on April 19 in the Council Chambers at City Hall. Differences in interpretation of Yakima Municipal Code 7.80 still exist, as noted in the following: Item One: Church on the Move agrees that the City of Yakima has adequately explained the difference between a "fee" and a tax. However, the example provided in the City's Response to Appeal e.g. Open Door Baptist Church v. King County 140 Wash.2d 143 995 P.2d 33 (2000) cites regulatory controls as being valid with regards to a conditional use permit. Such a permit is an election on the part of the Open Door Baptist church, as they could choose a particular course of action, i.e.: whether to modify existing use, etc, before this control was exerted or challenged. The difference between this appeal and ours is as follows: • During the initial Building Permit Stages of the parcels now owned by Church on the Move, all fees assessed at that time by the city were paid, resulting in the subsequent building process. At that time, .although the same water -runoff conditions existed in Yakima County, no Stormwater fees, assessments or taxes existed until they were created in 2008. • The City of Yakima's street storm drains were installed as part of the city infrastructure years ago, demonstrating history that the City of Yakima planning department anticipated dealing with runoff and storm water prior to assessing fees to add to city revenues. • Church on the Move cannot mandate when or where it must rain in Yakima County, thus has no control where that water runs to or from. Therefore stormwater runoff is not an elective matter. • • • • • • Item Two: In your explanation, the City of Yakima states that `Becauseno`tleyelozda aisexem p t from the Stormwater User's Fee, no basis exists in the Code to "exempt" certain owners on the basis of "profit" or "nonprofit" status ". YMC 7.80.080 states that "the City shall charge and collect from the owner of each and every developed property in the city a stormwater user's fees " This language is clear and decisive, and leaves no room for ambiguity nor exceptions. However, in other language, exceptions are cited: • The City's own provision by section 7.80.120, Adjustments to Stormwater's Users Fees provides a mechanism for exemptions to 1. Private providers of stormwater mitigation facilities 2. Parcels with valid NPDES Industrial Stormwater Permits. • 3. City streets, right of ways, 4. State of Washington highway rights -of way 5. Municipal, county, state and federal parks, fishing areas, wildlife reserves, . public trails, and bike paths • 6. Vacantiiindeveloped parcels • This extensive list of "exceptions" actually negate the strong language of "each and every" in YMC 7.80.080, and allows the challenge of additional exceptions. We mentioned that we are tax- exempt to establish the connection between TaxPayer and Non - taxpayer, not to bolster any claim that tax exemptions based upon federal law has a bearing on local fees. Therefore, your statement that "Because no developed parcel is exempt from the Stormwater's User's Fees, no basis exists in the Code to "exempt" certain owner on the basis of "profit" or "non- profit" is a mis- summary of our position. On Page four, paragraph 3 of the Discussion from the City Attorney, it states that the Stormwater's User's Fee is assessed annually against each developed parcel of property in the City of Yakima. This excludes the above "exceptions ", including the large paved (impervious) areas of city park parking lots, which often discharge their gathered rainfall into the public streets and stormwater drains. • On page five, the first paragraph states that the Stormwater Utility Code does not include any provision that differentiates among the various types of "owners", and in paragraph 2, "every owner is responsible for the utility fees ". The previously- mentioned lengthy list of exceptions once again negate the term "every ". • • • ^( 14 8. >r wA, IX £M �'F ��= _ 96902 }> - b . * T , _�q ) t c; { {, „-- . t?. # 3.�.., -yb' ..si R i.;. • Item Three: The City's response is that the Code addresses "owners" of developed parcels. We agree. However, instead of continuing to use the term "owners ", it then changes the language to "property tax payer" in an attempt to separate properties owned by the City of Yakima and properties owned by others. This separation of terminology puts non property tax pavers in the same classification as the City of Yakima, which does not pay property tax on City owned properties, nor is subject to Stormwater runoff fees, as defined in the Code. The analogy used by the City comparing Water utility bill payment to stormwater runoff fee payments does not apply here, as Church on the Move can elect whether or not to use domestically- controlled water, thus incurring the utility bill. Conclusion: Although we feel our position is justified, our congregation are members of this community as well, and our challenge was initiated to elicit a more complete explanation of this fee from the city than we received from the City Engineer in our February inquiry. This has been satisfied, and our hope is that these clarifications are added as future amendments to the Yakima Municipal Code. We hereby formally withdraw our request to appeal the 2011 Stormwater User Fee 0 Assessment, and look forward to continuing to be a vital and healthy community asset. Respectfully: Mike Gaub v.adminICOTM • • • • • '.. _ .. C I 1...i 3" r4t'' ti.:. ... ,. ... , _ _. .. - f. 4 -i, i. _ •. C' _ , . .