Pennsylvania Commonwealth Court Finds Local Stormwater Charge Constitutes a Tax Not a Fee for Service
On January 4, 2023, the Pennsylvania Commonwealth Court in Borough of West Chester v. Pa. State System of Higher Education and West Chester University of Pa. of the State System of Higher Education, No. 260 M.D. 2018 (Pa. Cmwlth. Jan. 4, 2023), ruled that a stormwater charge enacted by the Borough of West Chester was not a fee for service, but rather a local tax, and therefore could not be charged to West Chester University, a tax-exempt state university. The decision also rejected the use of impervious surface area coverage as a measure of the respective burden (and corollary benefit) that municipal stormwater systems provide to the given properties that are charged stormwater fees. This is the first decision in Pennsylvania to squarely evaluate stormwater charges that many municipalities and municipal authorities throughout the Commonwealth of Pennsylvania are currently charging to residential and commercial property owners, which were enacted largely as an effort to help fund improvements to the municipal separate storm sewer systems and to meet related regulatory obligations. The impact of this decision will have major implications throughout Pennsylvania, where over 50 municipalities or municipal authorities are currently charging stormwater fees, and many others have announced they are planning to do so in the future. For more information, please see our comprehensive review of this very important case, which is available here.