After five years, a lawsuit challenging the legality of Luzerne County’s levee fee is coming to a head.
The Municipality of Kingston and several borough residents filed the litigation when the county Flood Protection Authority instituted the fee in 2009 to cover Wyoming Valley Levee flood-control expenses previously funded by the county’s general fund operating budget.
The fee, which generates about $1.1 million annually, must be paid by 14,200 levee-protected properties in the 1972 Tropical Storm Agnes floodplain. Payment amounts range from $46.85 to $93.70 for residential properties and $93.70 to $676.44 for commercial, industrial and tax-exempt properties.
County Court of Common Pleas Judge Richard Hughes recently scheduled a non-jury trial for the case starting Sept. 9.
The county also recently filed a summary judgment motion asking the judge to dismiss the case and avoid a trial.
Suit filers have argued the fee violates the Municipal Authorities Act by ignoring higher-elevation properties that generate storm water runoff.
The lawsuit also argues more property owners should be paying the fee because the levee held back the Susquehanna River when it rose to a record 42.66 feet during Tropical Storm Lee in September 2011.
In its defense, the county says the fee is permissible and properly applied because it is levied only on properties that receive direct flood control benefit.
Expansion of the fee zone is not warranted because the levee was designed to protect against a flood comparable to Tropical Storm Agnes, or a Susquehanna River level of 41 feet, the county asserts.
The county’s court filing cites testimony from former flood authority executive director Jim Brozena that the additional levee protection to 44 feet resulted from a “freeboard” that was incorporated for safety purposes in case estimates used to compute “water surface profiles” were off.
“Therefore the levee system’s freeboard does not provide protection outside the areas defined as the Agnes floodplain,” the county filing says.
The county’s strapped operating budget would have to reabsorb the cost if the fee is rescinded because the authority has no other financial resources to fund levee maintenance, county officials have said.
Levee fee bills for 2014 will be mailed the end of September.
Another unrelated legal action involving the composition of the authority’s governing board is in discovery.
The prior county administration had moved toward a structure of five citizen board members, arguing the county’s home rule charter did not continue the authority composition of three elected commissioners, the county planning/zoning director and assistant county engineer.
At the urging of a county council majority, county District Attorney Stefanie Salavantis filed a court action in December 2012 asking a judge to determine if three citizen appointees can continue serving because paperwork converting to the new structure was never properly filed with the state.
Council may vote this month on the authority’s proposal to allow the state paperwork to be filed so the litigation can be dropped — a solution that had been rejected by council in the past.
The county budgeted about $12,000 for the board composition legal challenge, though it’s unclear how much has been spent to date. The authority spent about $40,000 on legal expenses last year, primarily for work on the levee fee and board composition litigation, said authority Executive Director Chris Belleman.