Baltimore synagogue must pay ‘rain tax,’ appeals court rules

Requiring a Baltimore synagogue to pay a stormwater management fee imposed on city property owners does not violate the facility’s right to free exercise of religion, Maryland’s second-highest court has ruled in upholding a circuit court decision.

Shaarei Tfiloh Congregation had urged the Court of Special Appeals to overturn a 2015 ruling by the Baltimore City Board of Municipal and Zoning Appeals – and affirmed by the Baltimore City Circuit Court — that it must pay the stormwater fee, arguing the fee is a land-use regulation in violation of the federal Religious Land Use and Institutionalized Persons Act.

But the appellate court, in its reported 3-0 decision Friday, said the fee – popularly called the “rain tax” – cannot be characterized as a land-use regulation, as it does not restrict or limit property owners’ development of land. Instead, the fee is charged based on the impact their properties may have on stormwater runoff, which is calculated based on the amount of impervious surface each property has, the court added.

The fee, in Article 27 of the city code, “simply treats a property owner’s development of the land – as a single-family or non-single-family property and impervious area – as a proxy for how much stromwater run-off the property contributes to the stormwater system and, appropriately, how much the owner should contribute toward the stormwater management fund and related programs authorized under the statute for public benefit,” Judge Andrea M. Leahy wrote for the court.

The appellate court did agree with the synagogue’s argument the stormwater management fee is effectively a tax because its designed to raise revenue for implementing local stormwater management plans for the general public’s benefit. But the court said the fee is an excise tax — not a property tax from which the religious institution would be exempt — because it is not charged solely based on property ownership but on the owner’s decision to increase or decrease the amount of impervious surface.

The method used to determine the fee amount is based on the amount of that impervious surface, not the property’s value, as would be the case with a property tax, the court said in upholding a January 2016 decision by Baltimore Circuit Court Judge Lynn Stewart Mays.

Joshua M. Ambush, the synagogue’s attorney, declined to comment Monday on the decision but said he and his client are weighing their legal options, including a possible appeal to the Court of Appeals. Ambush is with The Law Offices of Joshua M. Ambush in Pikesville.

Baltimore City Solicitor Andre M. Davis did not return telephone messages Monday afternoon seeking comment on the Court of Special Appeals’ decision.

The Baltimore City Council approved the stormwater fee in 2013 following the General Assembly’s statutory demand for adoption of the fee by local jurisdictions. The law’s goal was to reduce pollution runoff to the Chesapeake Bay.

Shaarei Tfiloh filed an appeal in 2014 with the city’s Department of Public Works, contesting the constitutionality of imposing the fee on its Liberty Heights synagogue and two nearby properties it owns in the city. DPW denied the appeal, and the synagogue appealed that decision to the city appeals board.

The board ruled against the synagogue in 2015, finding the fee was neither a tax nor a violation of the synagogue’s right to free exercise of religion. Mays also ruled against the synagogue, but found the fee to be an excise tax owed by the synagogue.

The synagogue sought review by the Court of Special Appeals.

Judges Michael W. Reed and Melanie Shaw Geter joined Leahy’s opinion in Shaarei Tfiloh Congregation v. Mayor and City Council of Baltimore, No. 2645 September Term 2015 and No. 2572 September Term 2016.