Relating to Real Estate

In Shaarei Tfiloh Congregation v. Mayor and City Council of Baltimore, ___ Md. ___, No. 2645, Sept. Term 2015 and No. 2572, Sept. Term 2016, 2018 WL 1989534 (Md. Ct. Spec. App. Apr. 27, 2018) the Court of Special Appeals denied the Shaarei Tfiloh Congregation’s challenge to the stormwater management fee (the “Stormwater Fee”), popularly (or unpopularly) called the “rain tax” based on a claimed violation of the constitutional right of free exercise of religion.

In 2012, the Maryland General Assembly passed Environment Law Article (“Envir.”), §4‑202.1 to fulfill requirements imposed by the United States Environmental Protection Agency (“EPA”) in order to reduce pollutants entering the Chesapeake Bay. Under §4-202.1, certain jurisdictions were required to create watershed protection and restoration programs and establish stormwater remediation fees by July 1, 2013. In 2013, the Baltimore City Council passed Ordinance 13-143, enacted into the Baltimore City Code as Article 27, which permitted the Baltimore City Department of Public Works (“DPW”) to assess and collect the Stormwater Fee on all non-exempt properties within the City. The City charged single-family residences one of three amounts based on the size of their impervious areas. The charges to other properties were based on the amount of their impervious surfaces. Qualifying properties owned by religious institutions received a discounted rate. The fees are a lien on property and a personal charge to the owners. The amount of the Stormwater Fee appears on quarterly water bills. The DPW charged Shaarei Tfiloh (the “Congregation”) $240 for each of the third and fourth quarters of 2013, for the three properties under appeal.

The Congregation contended that the Stormwater Fee was a real property tax and compelling the Congregation to pay it would violate the Congregation’s state and federal constitutional rights relating to the free exercise of religion. The Congregation’s claims were unsuccessful both before the DPW and on appeal before the Board of Municipal and Zoning Appeals (“BMZA”). After the Congregation sought judicial review, the Circuit Court for Baltimore City affirmed the ruling of BMZA and held that the Stormwater Fee was not a fee but an excise tax. On appeal, the Court of Special Appeals affirmed.

The Court of Special Appeals said that the City acted within its authority under Envir. §4‑202.1 when it enacted Article 27 of the Baltimore City Code. Further, the Court decided that notwithstanding its name, the Stormwater Fee is a tax because its primary purpose is to raise revenue and the only obligation of property owners under the statute is to pay the charge. However, the Court found that the Stormwater Fee is based on the particular use of the property and the amount of its impervious surface, and not on the value of the property or its ownership, so the Stormwater Fee is an excise tax and not a property tax.

The court held that the law that imposed the Stormwater Fee was a neutral law of general applicability, and therefore it did not violate either the First Amendment to the United States Constitution nor the Free Exercise Clause of the Maryland Declaration of Rights. Additionally, the court held that Article 27 does not implicate the Religious Land Use and Institutionalized Persons Act of 2000 because Article 27 does not impose restrictions or regulate the use of property, and, therefore, is not a land use law.

For questions, please contact Ed Levin at (410) 576-1900.