The Washington PostDemocracy Dies in Darkness

Opinion Montgomery County’s rain-tax collectors would rather litigate than clean up the Chesapeake Bay

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Devin L. Battley is president of the Lindbergh Park Owners Association in Gaithersburg, which represents 32 business property owners in the Lindbergh Park development.

Tax-happy Montgomery County, through directives from the state and the federal government, is attempting to prevent the pollution of the Chesapeake Bay. One way of doing this, made optional for the counties per Gov. Larry Hogan (R), is through Montgomery County’s Water Quality Protection Charge (WQPC), collected on owners’ property tax bills.

Critics refer to the WQPC as the “rain tax.” The county taxes residential, institutional (churches and nonprofits) and commercial property owners based on the amount of impervious surface these owners have on their properties. These surfaces are used as a proxy for the properties’ potential to contribute to storm-water runoff that may end up in the bay. Montgomery County has offered an incentive to property owners to assist the county in its cleanup efforts with the promise of WQPC credits if they take certain measures to treat their own storm water.

The 32 property owners in Gaithersburg’s Lindbergh Park commercial development did just that.

The Lindbergh Park development was designed so that all of its storm water would drain into one of three storm-water ponds in the development. The Lindbergh Park property owners paid for the construction of the ponds and the infrastructure that channels the water to the ponds. They collectively pay for the ponds’ maintenance.

Property owners must apply online for WQPC credits to the county’s Department of Environmental Protection (DEP). Credits are given to commercial, institutional and residential property owners for measures that reduce, collect and treat storm-water runoff, such as rain gardens, ponds, swales and rain barrels.

Though the Lindbergh Park owners collect and treat their own storm water, the county denied credits to 28 of the 32 Lindbergh Park property owners. The owners appealed the denials, beginning in 2016, when the Montgomery County Board of Appeals approved the DEP’s denial of WQPC credits.

In 2017, a Montgomery County circuit court judge ruled that the county had erred in denying credits to the Lindbergh Park property owners. This ruling should have ended the case. But the county appealed the court’s ruling to the Court of Special Appeals, and then changed the appeals law — in the middle of the litigation — so that the Lindbergh Park owners were forced to undertake additional administrative hurdles.

All the county got out of this extraneous and unnecessary appeal was the confirmation of the standard rules of appeal — that if a landowner wants to appeal through representation they need to give the representative written approval of representation. Another example of a waste of time and money that burdened the courts and all involved parties with extra costs.

Under the new county law, the property owners — good environmental citizens who admittedly treat their own storm water — had to appeal the DEP’s decision to the Finance Department and then to the Maryland Tax Court to get relief.

The Lindbergh Park owners’ legal odyssey with the county also included arguments the county made regarding the standing to sue and other hurdles the county hoped would defeat the owners’ claims, or at least get us to go away. Litigation is expensive, and the county likely gets rid of complainers by simply causing them to spend more money in legal fees.

The county admitted that all of the Lindbergh Park storm water drained into the development’s storm-water ponds yet denied the credits to most of the owners and granted only partial credits to the five owners on whose properties the ponds were located. The county argued that, because the development’s ponds for handling runoff were not physically located on each of the 28 individual properties, the 28 owners were not entitled to WQPC credits. The judge chastised the county and asked questions designed to point out the ridiculous position the county was taking, such as “How does the water get to the ponds, then?” and “So you are arguing that each property owner should construct its own pond in order to get credit?”

The law does state system and not facility. The Maryland Tax Court’s chief judge ruled for a second time in this litigation that the county failed to follow its own law. In May, the court granted the Lindbergh Park property owners summary judgment on their claims for WQPC credits mandated under county law for property owners who treat their storm water.

The Lindbergh Park case is the first WQPC challenge to reach the Tax Court since the county changed the appeals law in 2018 to require cases to be reviewed by the Maryland Tax Court. Only one other taxpayer has challenged the county’s WQPC since the change in the appeals law. The county is fighting this case tooth and nail, and has indicated that it will appeal the Tax Court’s ruling. Again.

This is absurd and a colossal waste of taxpayer funds.

Wouldn’t the thousands of taxpayer dollars that the county is spending — plus the court time and costs — to fight the Lindbergh Park property owners be better spent going after owners who do not treat their storm-water runoff? Or, even better, on actual cleanup efforts?

The county must take an objective look at this misguided waste of taxpayer money.