Levee fee opponents seek injunction

By Jennifer Learn-Andes jandes@timesleader.comLuzerne County Reporter

Kingston and several residents filed for an injunction Wednesday to try to stop Luzerne County from implementing the new Wyoming Valley Levee fee.

County officials had voted last week to proceed with collection of the new fee, despite the lawsuit challenging it.

The county Flood Protection Authority adopted the fee in April on 15,300 properties in low-lying areas that were inundated by the Agnes Flood in 1972.

The injunction request asks the court to require the authority to “act in a responsible manner” by not incurring the expense of mailing bills on an “illegal fee.”

An injunction is necessary, the request argues, to avoid “inconvenience and financial hardship” to the plaintiffs and damage to the property values of those impacted by the fee.

Failure to grant the injunction will cause impacted homeowners to receive “upsetting bills” that may be deemed incorrect or unallowable after the underlying litigation filed by Kingston and several property owners is resolved, said the request, which was filed by Kingston Solicitor Harry P. Mattern.

“Our court can take judicial notice that our country is in a recession,” Mattern wrote, noting that the bills will amount to a day’s pay for some property owners.

The fee for residential property owners is $46.85 per year for properties assessed under $100,000 and $93.70 for those over $100,000. The fee for commercial, industrial and tax-exempt properties ranges from $225.48 to $676.44, depending on assessments.

The fee amount was based on the $1.9 million that must be generated, so the fee could be reduced and levied on more properties if a judge decides the fee was too narrowly applied, authority members have said.

If so, partial reimbursement would then be given to property owners, the authority said.

Full reimbursement would be necessary if a judge determines the fee isn’t allowable, though authority officials said they didn’t expect that to happen.

County Solicitor Vito DeLuca has said the fee is permissible as long as it is levied on “direct beneficiaries.” He has said the fee would be more vulnerable to a court challenge if the county attempted to impose it on property owners who are outside the Agnes floodplain.

The lawsuit argues the opposite, saying the fee violates the Municipal Authorities Act by singling out properties in the Agnes floodplain and ignoring higher-elevation properties that generate storm water runoff.

A court hearing on the injunction request is expected next week, said authority Executive Director Jim Brozena. Rosenn, Jenkins & Greenwald was hired by the county’s insurance carrier to represent the county.

Authority members expected bills to be sent within weeks, once an outside collection agency is selected from two publicly sought proposals.

The authority imposed the fee to cover the costs of maintaining the levee and 13 pumping stations, saying the county’s general fund can’t continue absorbing the expense. Delays in implementing the fee have forced the authority to borrow about $300,000 from the county’s general fund.

In addition to Kingston, the fee impacts property owners in Exeter, West Wyoming, Wyoming, Wilkes-Barre, Hanover Township, Plymouth, Edwardsville, Swoyersville, Forty Fort, Pringle and Luzerne.