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.
