A Baltimore synagogue is appealing the city appeals board’s decision that it must pay a stormwater management fee. And while Shaarei Tfiloh Congregation echoes arguments by critics that the fee is in fact a property tax by another name, it is also making a constitutional argument — that the fee violates the synagogue’s religious rights.
“It’s not a question of dollars and cents as the fact they have to pay at all,” said Joshua M. Ambush of the Law Offices of Joshua M. Ambush LLC in Pikesville, a lawyer for the synagogue. “This is a constitutional issue that faces not just this synagogue but all synagogues, churches and mosques.”
Shaarei Tfiloh argues the fee also violates the federal Religious Land Use and Institutionalized Persons Act, which prohibits a government from placing a “substantial burden” on religious institutions through land-use regulations.
The Baltimore City Board of Municipal & Zoning Appeals rejected the arguments in March, leading Shaarei Tfiloh to file its petition for judicial review last week in Baltimore City Circuit Court.
“The stormwater remediation fee is based on the amount of impervious surface area a property has regardless of the use of the property,” the board stated in its ruling.
Passed by the General Assembly in 2012, the stormwater management fee is collected from property owners in 10 jurisdictions based on the amount of impervious surface in an effort to reduce runoff deposited in the Chesapeake Bay. This year, lawmakers amended the legislation so local jurisdictions can decide whether to charge a fee to pay for projects to reduce the pollution and sediment washed into the Bay while also giving the state additional oversight.
Religious organizations, which don’t pay property tax, were opponents of the so-called “rain tax” when it initially passed but many jurisdictions have worked out agreements to reduce the amount the groups pay in fees.
In Baltimore, City Solicitor George A. Nilson said some religious organizations “grumbled” when the fee was enacted but the Department of Public Works has worked with many on reducing stormwater runoff.
Shaarei Tfiloh’s challenge to the fee was the first, according to Nilson, who added the Law Department has been examining the issue for a year.
“I’m very confident we will prevail on appeal,” he said.
Shaarei Tfiloh originally filed an appeal with DPW in February 2014 for fees on its Liberty Heights synagogue and two nearby properties it owns, according to the appeals board ruling. DPW rejected the request, saying “the stormwater management fee is no different than the fee for water and sewer usage,” but it did apply a “religious rate” for eligible properties, according to the appeals board ruling.
Prior to the receiving the religious rate, Shaarei Tfiloh was assessed a total of $600 per quarter for all three properties, according to the appeals board ruling.
Dino C. La Fiandra, a Baltimore County land-use lawyer not involved in the case, said that in his experience, litigation over stormwater management fees is uncommon.
“The cost of challenging the rain tax is so great, and the amount you save is so marginal, it’s better just to pay it,” he said.
La Fiandra, a member of Pessin Katz Law P.A. in Towson, added he had not seen a challenge to the stormwater management fee on religious grounds. He agreed with the appeals board’s decision that the fee is religion-neutral.
“I think it passes the test of RLUIPA and, I think, the First Amendment,” he said.
The appeals board did not address whether the stormwater management fee is a tax, saying such a determination is “beyond its authority.”
The case is In the Matter of the Petition of Shaarei Tfiloh Congregation, 24C15002026.