Kansas Supreme Court hears Mission ‘driveway tax’ case

The fate of the “driveway tax” passed by the city of Mission is now in the hands of the state’s highest court.

The Kansas Supreme Court listened to oral arguments in the case Wednesday to determine whether the city’s 2010 move to charge a “transportation utility fee” is legal.

Critics have referred to it as a “driveway tax” in the past because the most money is paid by properties that put a larger strain on city streets, according to earlier reports.

The sticking point in court Wednesday was over whether the move was an excise tax. By Kansas law, cities aren’t allowed to levy an excise tax, though there are a few exceptions.

Thomas V. Murray, who represented the city of Mission in the case, was reluctant to say that the fee was in fact a tax. Instead, he emphasized how the money made through the charge helps Mission pay for upkeep on streets, sidewalks and bicycle lanes.

But even if it is viewed as a tax, Murray said, it is not an illegal excise tax. He said the fee, which he referred to as the “TUF,” is assessed against all developed property in the city.

“This charge … is clearly involuntary,” Murray said. “And that ought to end the discussion right there. If it’s involuntary, it cannot be an excise.”

In 2013, a district court judge ruled in the city’s favor. But in July 2015, a Kansas appeals court disagreed, saying that the tax was illegal. In both decisions, the courts said the city’s move was indeed a tax.

Attorney Mary Jo Shaney, who argued for the plaintiffs, maintained that the city’s charge is a tax and is illegal.

“It’s as if the “TUF” funds themselves are really nothing more than a subset of the city of Mission’s general fund,” she said. “This is just another fund to pay for a traditional government service.”

At the end of the argument, Murray asked that the appeals court’s decision be reversed and that the district court judge’s ruling, which came in the city’s favor, be reinstated.

Afterwards, Murray said he wouldn’t talk about his thoughts following the oral arguments. And in a brief interview, Shaney said she was hopeful the court of appeals decision will be upheld.

“I don’t know where the judges are going to come out,” she said. “But I feel as if we have been given a great opportunity to express all of our views as to why the TUF is illegal. We think it is an illegal, unlawful, excise tax.”

It was unclear when the court could issue a ruling in the case.

This story was originally published October 26, 2016 at 12:49 PM with the headline "Kansas Supreme Court hears Mission ‘driveway tax’ case."