Opponents of ‘driveway tax’ appeal court ruling

03/25/2014 4:13 PM

03/25/2014 4:13 PM

Property owners in Mission who lost a bid to end the three-year-old “driveway tax” are taking their case to the Kansas Court of Appeals in hopes of a reversal.

The Heartland Apartment Association Inc., plus 10 other plaintiffs that include developers and property owners, filed the appeal last week to an earlier district court ruling that said the Transportation Utility Fee was not an illegal excise tax. Bill and Mary Nichols were among the plaintiffs; Bill Nichols is running for city council in the April 1 election.

The fee, in place since late 2010, generates around $800,000 per year and has been credited by Mayor Laura McConwell with making it possible to improve Martway Street and Nall Avenue. The city also has a quarter-cent sales tax dedicated to infrastructure.

The Transportation Utility Fee, dubbed the “driveway tax” by its critics, was a novel idea for this area. Property owners are charged by how much traffic — and therefore wear and tear on the streets — their lots are expected to generate. Homeowners are charged a flat $72 per year, while big retailers pay thousands of dollars more.

Supporters of the tax, including McConwell, said it was necessary because so many properties in Mission are excluded from the tax rolls that an undue burden is placed on residents. Churches, schools and some nonprofits were later excluded from paying the new fee.

However, it has been controversial among some who say it hurts the businesses the city wants to nurture and it is a type of tax the city has no authority to levy. That was also the position taken by Kansas Attorney General Derek Schmidt in a non-binding opinion.

However, District Judge James Vano ruled last fall that the city could continue to collect the fees.

Lawyers for the plaintiffs and McConwell were not available to comment on the appeal.

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