Agenda - Planning Commission - 10/04/2012

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July 10, 2012 I Volume 6 I No. 13 Zoning Bulletin ment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or used for the regula- tion or benefit of the parties upon whom the assessment is imposed." Generally, found the court, a fee is: (1) usually imposed by an agency upon those subject to its regulation, in furtherance of regulatory measures; (2) not placed in a general fund, but is to be used only for "narrow and specific purposes"; (3) a charge imposed by the government in return for a service it provides. In comparison, generally, a tax is: (1) imposed by a legislature upon many, or all, citizens; (2) placed in a general fund; and (3) spent for the benefit of the entire community. The court noted that since most assessments fall "somewhere near the middle of the spectrum between a fee and a tax," the use of funds may be the predominant factor in making the ultimate determination as to whether the as- sessment is a fee or tax. Here, the court concluded that the Township's impact fees were taxes in light of the facts that the assessments: (1) were imposed by a legislative body, not a regulatory body, to a "fairly large swath of people —anyone who wants to engage in any type of development in the [T]ownship"; and (2) although not deposited into a general fund, but into segregated accounts; (3) were used for general purposes of police protection, fire protection, road improvement, and parks —that benefited the entire community. The Township had argued that the impact fees were not for general public benefit, but, as the resolution provided, were intended: "to benefit the property by providing the Township with adequate funds to provide the same level of service to that property that the Township currently affords previously developed properties." The court rejected that interpretation, finding the goal of the impact fees "to allow all properties in the township to maintain their same level of service despite recent, rapid growth." "[Maintaining the general welfare of the community [was] the aim of the resolution," found the court. The assessments, found the court, resulted in no direct service to the land- owner, 'other than the issuance of a zoning certificate, for which there was al- ready a separate $200 fee. Since the amount of the fee imposed exceeded the cost and expense of the service, the court concluded the "impact fee" consti- tuted a tax. See also: State, ex rel. Petroleum Underground Storage Tank Release Comp. Bd., v. Withrow, 62 Ohio St. 3d 111, 579 N.E.2d 705, 11 A.L.R.5th 1010 (1991). See also: American Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Management Dist., 166 F.3d 835, 29 Envtl. L. Rep. 20500, 1999 FED App. 0035P (6th Cir. 1999). 6 ©2012 Thomson Reuters