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City, county at odds over delinquent stormwater fees

May 10, 2011

Officials from the city of Colorado Springs and El Paso County are butting heads over how to collect delinquent fees from the now defunct Stormwater Enterprise program, and the matter could end up in court.

The El Paso County Clerk and Recorder’s Office is refusing to record prejudgment property liens on residents who have not paid their bills issued under the Stormwater Enterprise, according to Alissa Vander Veen, special projects manager for the county Clerk and Recorder’s Office. Doing so could help the city collect delinquent fees.

The City Council abolished the much-maligned enterprise after voters approved Issue 300 in November 2009.

The city’s collection agency in February attempted to file 25 prejudgment liens – which would be placed against a homeowner’s property without their knowledge and without normal court proceedings.

Such action would violate state law, El Paso Clerk and Recorder Wayne Williams said in a letter he sent to City Council on Tuesday.

“If someone fails to pay a business, you have to go to court and get a declaratory judgment. An enterprise is a government-owned business and shouldn’t have any advantage over any other type of business,” Vander Veen said.

But in a letter to Williams, City Council President Scott Hente said the council “has legal authority to seek the recording of Notices of Lien as public notice of priority liens imposed by operation of our home rule ordinances.”

City officials have been wrangling with how to handle errant stormwater bills.

When the enterprise was abolished, nearly 10,000 property owners owed about $1.8 million in delinquent payments. The city considered asking the Treasurer’s Office to place overdue fees on 2010 property tax bills, but County Attorney Bill Louis questioned the legality of that tactic at the time.

Today, approximately 7,500 accounts are still unpaid, totaling $765,000, said city spokeswoman Mary Scott. The city has collected on about 2,500 accounts totaling $382,000, she said, and another 370 accounts totaling $40,000 were voluntarily paid.

About 351 accounts with amounts due under $25 were written off, Scott said.

In January, the city approached the Clerk and Recorder’s Office about instigating the property lien method, Vander Veen said.

After numerous and lengthy discussions between city and county officials and lawyers, Vander Veen said, the Clerk’s Office has “finally reached the point where we’re at an impasse as to how this should be handled” and is ready to have the matter settled in court.

The Clerk and Recorder will continue to refuse to accept the notices of liens and wants a “joint declaratory judgment for the validity of the stormwater fees and whether City Council can provide priority lien status for stormwater fees,” she said.

Williams said he hoped the new City Council would find a different solution.

City Councilwoman Angela Dougan said she opposes the city going to court with the county over the matter and favors another public vote, instead of city staff moving ahead with “what they believe to be direction given from a past council.”

“To place liens on the property of our citizens who believed they voted down this fee with Issue 300 and those who believed this to be an illegal tax placed on the taxpayers without a vote is not good public policy,” she wrote in an e-mail.

Hente said he didn’t know why the issue was being so politicized. He said he had been in communication with Williams to try to come up with a solution to the county’s concerns.
“Suddenly, it’s turned into a big media event, which I’m disappointed about,” he said. “I thought we were going to work collaboratively and try to figure out how to solve this thing.”

Hente said he’s going to work with his colleagues and City Attorney Patricia Kelly to determine the city’s next move. He said he wants to avoid going to court.

Mayor Lionel Rivera, who will leave office in June, offered a different opinion.

“I think we should take (Williams) to court and force him to do his job,” he said.

County Commissioner Darryl Glenn, a family law attorney who served on City Council when that body approved a stormwater fee for residents in 2005, said at Tuesday’s commission meeting that he agrees that due process is necessary before imposing property liens.

“I was very vocal against how the city created this fee for property owners, based on impervious surface, by ordinance and failed to allow people to vote on the issue. I maintained people would view it as a tax. When people passed Issue 300 in 2009, it was an outcry against stormwater enterprise and the collection of fees. This is why you don’t enact a fee and try to treat it like a tax,” he said.

“Now, the city might take the Clerk and Recorder to court, which would be like taking the county commissioners to court. We need to fight this, all the way to the Supreme Court, if necessary.”

Hente said the issue boils down to fairness considering that a majority of property owners paid their fees.

“Over 90 percent of the residents in this town paid that fee,” he said. “Is it fair to them to say, ‘Well, you’ve paid it, but we’re going to let the other ones escape.’ I don’t think that’s fair.”

Commissioner Sallie Clark said she prefers a regional approach to paying for stormwater improvements that would cover the county and the eight municipalities within it. Glenn tried to head an effort to create a regional stormwater authority with voter approval in 2009, after the fee was abolished, but it never gained enough momentum.

The discord comes as city and county officials have pledged a new era of cooperation.

Last week, city and county officials, among others, went on an economic development trip to Oklahoma City to study government and community collaboration. And last month, officials held a joint city-county meeting about sharing services.

Gazette reporter Daniel J. Chacon contributed to this report.

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