West Chester borough, university spar over stormwater charge

Is it a tax or a fee?

That is the central question in a legal case over a stormwater levy enacted in 2016 by West Chester borough, one of dozens of municipalities around Pennsylvania that have added the fees over the last few years to cope with stormwater runoff and comply with environmental regulations.

The fees have generated controversy in numerous communities, including York County, where they became an issue in this year’s county commissioners’ race.

The West Chester case, filed in Commonwealth Court, pits the borough against one of its largest economic engines: West Chester University and its parent, the Pennsylvania State System of Higher Education.

West Chester borough maintains the fee covers a service, while the university contends it is a tax, and therefore not applicable to the school, which is immune from local taxation, according to court documents.

Other nonprofits have made similar arguments, including the Lehigh-Northampton Airport Authority, which operates Lehigh Valley International Airport.

After the fee was enacted, the borough sent bills to the university for $111,616.66 to cover 2017. The amount was based on the extent of areas on the college campus where water would run off in a storm, known as impervious areas, such as parking lots and buildings. The borough estimates that the college’s impervious areas make up 32 acres, or about 8 percent of the borough’s total.

Borough officials have said the areas in question benefit from the borough’s stormwater system and thus the charge is a fee for its service.

The university declined to pay, saying that the charges are a tax. A bill for 2018 – totaling $119,323.14 – also was rejected, according to court documents.

The borough filed a complaint in Commonwealth Court in April 2018 and the two sides presented arguments in March. The state system had wanted the case dismissed. But in a 12-page ruling delivered July 15, justices said they wanted the case to proceed so they could get more information before deciding.

“Further factual development and the resolution of pending questions may enable the borough to establish that the stormwater charge constitutes a fee for service that is reasonably proportional to the value of the benefit conferred to respondents in a quasi-private capacity,” according to the ruling, written by Judge Christine Fizzano Cannon.

The borough welcomed the decision, said an attorney for the borough, Michael Gill. He is with the law firm Buckley Brion McGuire & Morris LLP in West Chester.

“It’s a hurdle that needed to be cleared for the borough, one that the borough is happy to see cleared,” Gill said.

West Chester University and the state system were represented by lawyers in the Philadelphia office of Pennsylvania Attorney General Josh Shapiro, according to court documents.

“The stormwater management fee is an issue that must be addressed for all state entities and as such, the Office of the Attorney General will be continuing the legal process on this matter,” the university said in an emailed statement. “Commonwealth Court has entered a decision which allows the process to proceed.”

Spokespeople for the attorney general’s office and the state system declined to comment.

The area of West Chester University in the borough is known as North Campus, according to court documents. The state system is listed as the owner.

West Chester University has about 17,500 graduate and undergraduate students, making it the largest of the 14 schools in the state system.