19366_Authority_August

municipalauthorities.org │ 33 2 Following the Supreme Court decision, many municipal authorities may wonder whether the decision applies to them and, if so, the extent to which it may apply. Here, it is important to review the provisions of the Municipality Authorities Act (“MAA”) that address stormwater. Of course, the MAA was not an issue in the Borough of West Chester case. MAA Section 5607(a)(18) provides the legislative authority for municipal authorities to undertake stormwater planning, management, and implementation if defined in their articles of incorporation. MAA Section 5607(d)(34) provides for a municipal authority to assess “reasonable and uniform rates” with respect to stormwater. That being said, the following is a non-exhaustive list of issues germane to the Supreme Court decision that municipal authorities may want to further discuss and evaluate: 1. The challenge to the Borough’s stormwater fee was not initiated by private landowners but by Commonwealth agencies. 2. While municipal authorities rely upon the MAA which has specific provisions regarding stormwater management, the Borough noted its status as a home rule municipality. 3. The Supreme Court decision was based on an analysis of the taxing power of municipalities. Municipal authorities in Pennsylvania have no taxing power but exercise the powers which the General Assembly allowed pursuant to the MAA. 4. The Supreme Court did not discuss, nor did it have any reason to discuss, the MAA or the assessment of stormwater fees (reasonable and uniform rates) by municipal authorities. 5. The Supreme Court decision included a representative discussion on the nexus between a stormwater fee and impervious surface area of a property. MAA Section 5607(d)(34), however, states that reasonable and uniform rates may be based in whole or in part on property characteristics. There is no mention of impervious surface area in the MAA, let alone limiting the calculus solely to the impervious surface area. 6. Another issue which the Supreme Court did not address is whether stormwater fees already assessed may be subject to refund claims. This is a matter for future discussion and will be a closely watched issue if refund claims are made based on the Supreme Court’s decision. Given the Supreme Court decision, municipal authorities may question whether their stormwater programs, specifically the assessment of reasonable and uniform rates, may be challenged. That analysis may involve an evaluation of many factors, including some or all of the aforementioned factors. This Memorandum is provided for informational purposes only and should not be construed as legal advice on any subject matter. If any PMAA Staff, Member of the Board of Directors, or Member of the Executive Committee would like to discuss this matter further, please let me know. Anyone else reading this Memorandum should consult with their own legal counsel.