Congregation v. Mayor

237 Md.App. 102

183 A.3d 845

Shaarei Tfiloh CONGREGATION

v.MAYOR AND CITY COUNCIL OF BALTIMORE

Court of Special Appeals of Maryland.

April 27, 2018

Argued by: Joshua M. Ambush of Baltimore, MD, for Appellant.

Argued by: Adam S. Levine (Baltimore City Law Department on the brief) all of Baltimore, MD, for Appellee.

Panel: Leahy, Reed, Shaw Geter, JJ.^*

Leahy, J."If the rain spoils our picnic, but saves a farmer's crop, who are we to say it shouldn't rain?"¹

This appeal swells out of the controversial law imposing stormwater remediation fees, commonly referred to as the "Rain Tax."² The law passed like a tidal wave through the General Assembly in 2012 to fulfill requirements imposed by the United States Environmental Protection Agency ("EPA") in order to reduce pollutants entering the Chesapeake Bay. Under the new state law, Maryland Code (1982, 2013 Repl. Vol.), Environment Law Article ("Envir."), § 4–202.1,³ local jurisdictions subject to Phase I municipal separate storm sewer system permits ("MS4") were required to create watershed protection and restoration programs and establish stormwater remediation fees by July 1, 2013.

The surge hit Baltimore City ("the City") in early 2013, when the City Council passed Ordinance 13–143, enacted into the Baltimore City Code as Article 27. Pursuant to Baltimore City Code, Art. 27, §§ 3–1(a) and 3–7(b)(1), the Baltimore City Department of Public Works ("DPW") was authorized to assess and collect a stormwater remediation fee ("Stormwater Fee") on all non-exempt properties within the City. For the third and fourth quarters of 2013, DPW charged $240 total per quarter for the three properties that are the subject of the underlying appeal, owned by Appellant Shaarei Tfiloh Congregation ("the Congregation").

At the first level of administrative review, DPW denied the Congregation's demand to void the Stormwater Fee as an unconstitutional property tax in violation of the Congregation's rights under state and federal laws protecting the free exercise of religion. Still, DPW granted the Congregation a slight reduction in fees to $150 per quarter. The Congregation appealed DPW's decision to the Baltimore City Board of Municipal and Zoning Appeals ("the Board"), where the Congregation's constitutional challenge was also rejected. Thereafter, the Congregation sought judicial review of the Board's decision in the Circuit Court for Baltimore City, and the court affirmed the Board's judgment. Notably, however, the circuit court ruled that the Stormwater Fee was an excise tax rather than a fee but concluded that such a tax was authorized by the State's enabling law. The Congregation appealed to this Court and presents four questions for our review, which we have reworded and reordered slightly:⁴

1. Did the Board err in holding that the Stormwater Fees imposed under Article 27 of the Baltimore City Code were valid?

2. Did the Board err in holding that Article 27 is not a land use ordinance?

3. Did the Board err by ignoring the broad protections afforded religious institutions under Article 36 of the Maryland Declaration of Rights?

4. Did the Board err in failing to follow its own rules of procedure?

We hold that the City acted within its authority under the state enabling law when it enacted Article 27 of the Baltimore City Code. We agree with the Congregation that despite its name, the Stormwater Fee is a tax because its primary purpose is to raise revenue and because property owners' only obligation under the statute is to pay the charge. However, we hold that the Stormwater Fee is an excise tax, rather than a property tax, because it is based on the particular use of the property, not the value of the property or property ownership. We also hold that Article 27 does not violate the Free Exercise Clause of the Maryland Declaration of Rights and does not implicate the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). Finally, we discern no failure by the Board to follow its established procedures.

BACKGROUND

Stormwater management undertakes to reduce stormwater runoff's adverse effects on rivers and streams and to protect the public's safety. See Envir. § 4–201. Stormwater runoff continues, however, to be a major source of the pollution that flows into the Chesapeake Bay—the largest estuary in the United States. See EPA, Addressing Nutrient Pollution in the Chesapeake Bay, https://www.epa.gov/nutrient-policy-data/addressing-nutrient-pollution-chesapeake-bay (last visited Apr. 14, 2018). The federal mandate to protect the Chesapeake Bay and the cascading laws enacted by the State and the City set the course for the case before this Court.

A. Statutory Framework

1. Federal Law

Amid growing concerns of increased water pollution, Congress passed the Federal Water Pollution Control Act of 1972, known as the Clean Water Act ("CWA"), which is codified with amendments at 33 U.S.C. § 1251 et seq. (2012). The CWA's purpose "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). Administered by the EPA, the CWA, among other things, prohibits the discharge of pollutants without a permit into the navigable waters of the United States.⁵ Id. § 1342(a)(1).

The EPA issues permits for such discharges via its National Pollutant Discharge Elimination System ("NPDES"). Id. § 1342(a). Pursuant to statute, the EPA may, however, delegate its permit-issuing authority to a state government if the EPA accepts that state's proposed permit program. Id. § 1342(b). The EPA Administrator approved Maryland's NPDES permit program on September 5, 1974. See 57 Fed. Reg. 43,734. Consistent with this grant of authority, the Maryland Department of Environment ("MDE") may issue the various NPDES permits in Maryland. Code of Maryland Regulations ("COMAR") 26.08.04.07.

Although the CWA focused initially on water pollution from industrial sources, Congress amended it in 1987, requiring the regulation of MS4 (municipal separate storm sewer system) stormwater discharge. See Pub. L. No. 100–4, 101 Stat. 7 (1987); see also Md. Dep't of Env't v. Anacostia Riverkeeper , 447 Md. 88, 96–97 n.3, 134 A.3d 892 (2016). The EPA issued its NPDES MS4 stormwater regulations for "Phase I" jurisdictions in 1990 and for "Phase II" jurisdictions in 1999. 55 Fed. Reg. 47,990 ; 64 Fed. Reg. 68,722. As delineated by the EPA, Phase I regulations apply to "large" jurisdictions, classified as those with populations over 250,000 people, and "medium" jurisdictions, those having between 100,000 and 250,000 inhabitants. 55 Fed. Reg. 47,990. Phase II regulations apply to those jurisdictions with populations up to 100,000 residents. 64 Fed. Reg. 68,722. In December 2010, the EPA issued the Chesapeake Bay Total Maximum Daily Load ("TMDL"), a cap on the amount of pollutants related to nutrients—like nitrogen and phosphorus—and sediment that can be discharged into the Chesapeake Bay and its tributaries.⁶ 76 Fed. Reg. 549.

2. Maryland Law

The purpose of Maryland's stormwater management subtitle is codified in Envir. § 4–201. That section announces the General Assembly's findings:

The General Assembly finds that the management of stormwater runoff is necessary to reduce stream channel erosion, pollution, siltation, and sedimentation, and local flooding, all of which have adverse impacts on the water and land resources of Maryland. The General Assembly intends, by enactment of this subtitle, to reduce as nearly as possible the adverse effects of stormwater runoff and to safeguard life, limb, property, and public welfare.

Envir. § 4–201.

On March 30, 2012, Maryland submitted its Phase I Watershed Implementation Plan ("WIP") to the EPA, which provided details on how it would reduce nitrogen and phosphorus from all major sources, including stormwater runoff. Dep't of Legislative Servs., Fiscal Note, H.B. 987, at 5 (2012). The development of a system of charges by local governments was necessary to fund the estimated cost of implementing the stormwater management controls needed to achieve the TMDL. Id. at 7–8. Accordingly, the General Assembly passed H.B. 987, amending Envir. § 4–201.1 and adding Envir. § 4–202.1, and the Governor signed the legislation into law in 2012. 2012 Md. Laws, ch.151 (H.B. 987). The new law required those jurisdictions subject to an NPDES MS4 Phase I permit—the ten largest jurisdictions in Maryland, including the City⁷ —to pass legislation establishing a watershed protection and restoration program by July 1, 2013. Id. § 4–202.1(a)(1), (b). The 2012 law also required these jurisdictions to impose a Stormwater Fee and create a local watershed protection and restoration fund.⁸ Id. § 4–202.1(c). The legislature specified how to assess a Stormwater Fee:

(3)(i) A county or municipality shall set a stormwater remediation fee for property in an amount that is based on the share of stormwater management services related to the property and provided by the county or municipality.

(ii) A county or municipality may set a stormwater remediation fee under this paragraph based on:

1. A flat rate;

2. An amount that is graduated, based on the amount of impervious surface on each property; or

3. Another method of calculation selected by the county or municipality.

Envir. § 4–202.1(e)(3).

As we explain next, the City adopted a combination of these statutorily prescribed methods when it assessed Stormwater Fees on the non-exempt properties within its jurisdiction.

3. The City's Law and Regulations

The City's stormwater management infrastructure was largely installed before 1950, and with the increased visibility of environmental concerns, much of the City's focus on stormwater management has shifted to promoting projects to enhance water quality. See Balt. City Dep't of Pub. Works, Stormwater Management, https://publicworks.baltimorecity.gov/stormwater (last visited April 14, 2018). Yet five watersheds within City limits are still considered impaired. Balt. City Dep't of Pub. Works, Balt. City MS4...