Mission residents want ‘driveway tax’ repaid

A class action petition has been filed, seeking to compel the city of Mission to repay all the people who paid the transportation utility fee, better known as the “driveway tax,” that the Kansas Supreme Court ruled was illegal.

The petition was filed Sept. 29 in Johnson County District Court on behalf of Mission resident Rex Danley, but also seeking class-action status for everyone who paid the transportation-utility fee between 2010 and 2015.

The Kansas Court of Appeals ruled in July 2015 that the fee imposed on developed property in the city was actually an illegal excise tax, and the Kansas Supreme Court affirmed that ruling in April.

The city of Mission collected nearly $4 million during the years it imposed the tax, and the petition seeks an order requiring the city to refund that money, plus interest and attorneys’ fees. It says a class action petition is justified because “the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications.”

“They (taxpayers) want their money back,” said White Goss lawyer Jim Bowers, one of the attorneys who brought the original challenge to the tax in 2012. “It was an illegal tax. They shouldn’t have been required to pay it. It’s time they get it back.”

Mary Jo Shaney, another White Goss lawyer who also brought the original lawsuit, said the latest class action petition “in the most basic terms is an action on behalf of all those who paid that fee that’s now been determined to have been paid illegally.”

The plaintiffs are represented by the White Goss and Edgar law firms of Kansas City.

City Administrator Laura Smith said Mission city officials had not yet seen the petition and had no comment.

Generally, fees are charged for a service provided that people can decline or accept. A tax is an involuntary cost on a property owner to raise city money. The Supreme Court ruled in April that the fee was actually a prohibited excise tax and void under Kansas law.

The fee was originally passed by the Mission City Council in 2010, with about $800,000 assessed per year on property owners to raise money to keep up the suburb’s streets. The “driveway tax” was intended to collect the most money from properties that put the most burden on city streets. Property owners paid assessments ranging from $72 for single-family homes to more than $16,000 for certain commercial properties.

But it was controversial from the start, and Kansas Attorney General Derek Schmidt wrote a nonbinding legal opinion in 2012 finding it illegal.

Bowers and Shaney filed a lawsuit in 2012 on behalf of 11 plaintiffs, led by the Heartland Apartment Association, challenging the costs imposed. A Johnson County District Court judge upheld the fee in 2013 but that ruling was overturned on appeal.

The class action petition notes that the 11 original plaintiffs are currently back in court in Johnson County, seeking a ruling that the city should refund their payments. That case is pending, Shaney said.

This story was originally published October 2, 2017 at 5:00 PM with the headline "Mission residents want ‘driveway tax’ repaid."