Storm Water Utility Fee Held Constitutional

The Georgia Supreme Court recently upheld the constitutionality of an assessment under a Storm Water Utility Ordinance imposed by a local government in Georgia. See Homewood Village,LLC v. Unified Government of Athens-Clarke County, Case No. S12A1836 and CaseNo. S12A1837 (Ga., March 4, 2013).  The ordinance imposed an assessment on property owners based on their relative contribution to the need for storm water system improvements. 

The plaintiff in the case alleged the ordinance imposed an unconstitutional tax.  However, the Georgia Supreme Court held that the assessment was instead a valid fee.  The Court distinguished the assessment from a tax on the grounds that the local government calculated the amount of the assessment based on the costs of storm water improvements required to service storm water runoff from the plaintiff's land.   The Court held a tax is imposed as to amount regardless of the calculated use of the money, while a fee on the other hand is related to an individually assessed charge for benefits the government or its authority provides to the fee payor.