Mesa County District Court Judge David Bottger denies injunction, stormwater fee collection to continue

Bicycling the Colorado National Monument, Grand Valley in the distance via
Bicycling the Colorado National Monument, Grand Valley in the distance via

From The Grand Junction Daily Sentinel (Gary Harmon):

A second round of invoices will go out in early August from the Grand Valley Drainage District to residents and businesses that have yet to pay their bills for the handling of stormwater — a charge that got a boost Tuesday from a court ruling.

Mesa County District Court Judge David Bottger rejected a request by Mesa County and the Grand Junction Area Chamber of Commerce for a preliminary injunction that would have halted the district from collecting the charge, which for most residents is $36 a year.

“Collection of the fee will allow (the drainage district) to better fulfill its statutory obligations to the businesses and residences it serves in the Grand Valley,” Bottger wrote in a 14-page opinion in a case in which the question of whether the charge is a tax or fee is central. “Thus, an injunction will more likely disserve than serve the public interest. For the same reasons, the equities weigh in favor of denying the injunction.”

The drainage district board had approved printing and mailing bills to delinquent property owners earlier Tuesday morning, said district General Manager Tim Ryan.

The district has an obligation to those who already have paid the fee to collect from those who haven’t, Ryan said.

The need for the projects that the district is planning hasn’t lessened either, Ryan said.

County and chamber officials said they were disappointed, but not deterred.

No one disputes that the Grand Valley needs to deal with stormwater, said Mesa County Commissioner Scott McInnis.

“We’ve taken that (the charge) was ill-timed and that the governance has to change,” McInnis said.

There has been some improvement on the district with a contested seat having been decided by an election earlier this spring and greater interest in discussing issues around the valley, McInnis said.

There have been “more positive conversations” recently with the drainage district, McInnis said.

The chamber is “fully committed to moving forward,” said Diane Schwenke, president and CEO. “We still fully believe it is a tax and not a fee.”

The charge, meanwhile, is “unfair and we firmly believe it definitely hurts the business community,” Schwenke said.

Bottger found that the county and chamber failed to demonstrate a reasonable probability of success with their contention that the charge was a tax. [ed. emphasis mine]

He pointed to two Colorado Supreme Court cases that stood for the proposition that a charge for storm-drainage services “is in the nature of a fee.”

Bottger’s rejection of the preliminary injunction is a setback for the county and chamber, but doesn’t decide the actual case.

That job will fall to another judge after Bottger’s Aug. 11 retirement.

The drainage district is hoping to collect $2.77 million this year for projects within its 90-square-mile area, which includes the most densely populated areas north of the Colorado River.

It has already collected $1.2 million.

The district is charging the $3-a-month stormwater fee to most residences and for each 2,500 square feet of impervious surfaces to businesses and other property owners.

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