Kansas Supreme Court decides Mission’s ‘driveway tax’ is impermissible

Mission’s transportation user fee, better known as the “driveway tax,” isn’t legal, the Kansas Supreme Court ruled Friday.

The Supreme Court’s decision found that the transportation user fee, originally passed by the Mission City Council in 2010, was actually an excise tax, and an impermissible one at that. Generally, a fee is charged on someone for a service they can decline to accept if they wish. A tax is an involuntary cost on a property owner in order to raise revenue.

Friday’s decision upends a Johnson County District Court judge’s ruling that favored Mission’s position on the driveway tax, which the city sought to assess on property owners to raise money to keep up the suburb’s streets.

Mission came up with the idea in 2010 and calculated the tax based on estimates of how much a property might use and affect the city’s public streets and sidewalks.

The Supreme Court ruling said the fee behaved like an excise tax, which is generally prohibited under Kansas law.

The driveway tax was controversial from the start. Kansas Attorney General Derek Schmidt in 2012 wrote a legal opinion that found the driveway tax was illegal. That same year, Mission faced a lawsuit filed in Johnson County District Court by the Heartland Apartment Association, asking that the tax be found impermissible.

In 2013, a Johnson County judge ruled in Mission’s favor, but the Kansas Court of Appeals reversed that decision in 2015.

Friday’s Supreme Court ruling sent the case back to Johnson County District Court with instructions to enter a judgment in favor of the apartment association.

Emily Randel, a spokeswoman for Mission, said the city was awaiting word from the Johnson County court.

This story was originally published April 7, 2017 at 4:17 PM with the headline "Kansas Supreme Court decides Mission’s ‘driveway tax’ is impermissible."