Business owner takes up fight against “Rain Tax”
Wednesday, 31 July 2013 11:36

Gates complains of disparities, consquences

by Ben Boehl

    Ron Gates of R. Gates Construction Company Inc. on North Point Boulevard, has been seen on TV as one of the business owners leading the charge against the new state-mandated stormwater management fee officially called the Stormwater Management-Watershed Protection and Restoration Program — better known as the “Rain Tax.”
    Officials said the program is needed to bring Maryland into compliance with the federal Clean Water Act, as implemented by the U.S. Environmental Protection Agency.
    The state bill requires local governments to establish and fund watershed protection and restoration programs.
    The framework for Baltimore County’s version of the program is now in place, and Gates says it is unfair to commercial businesses.
    “People see me on TV and think ‘Ron is another business owner bitching about taxes,’” Gates said.    
    “I don’t care about the tax so much as I care how it is not being equally distributed.”
    Gates pointed out that in the residential category, owners of a single-family or detached home pay under $40 a year. Residents of townhomes, duplexes and condominium pay less than that.
    According to the Baltimore County government website, industrial and commercial properties are being charged $69 per 2,000 square feet of impervious surface.
    Gates pointed out that equals to $1,500 per acre, so businesses that have 10 to 30 acres of impervious surface would pay between $15,000 to $45,000 per year, which is in the range that his business is paying.

Gates said that all the burden is placed on commercial because he believes the county did not want to upset the general public by charging higher residential fees. That, he said, is unfair.
    “They are not applying the law as it was meant to be applied. By their definition, you have the one acre of commercial [land]that equals 71 residential [acres]; there is no way this can be justified,” Gates explained.    
    “This essentially says that 71 homes use the same amount of storm water management services as a one-acre commercial property. No way! Storm water management services is the key here.”
    Gates explained that a business with a large parking lot, such as a shopping center, will be charged for having large impervious surfaces.
    He said the average resident may not be concerned, since they are paying under $40 a year, but the increase to the commercial side is ultimately going to hurt them.
    “Since it falls back on commercial, how do you think most businesses are going to react?” Gates asked. “They are going to raise the cost of their product, and that will hurt the consumer.”
    In addition to the disparity between commercial and residential, Gates is not happy that institutional properties, which are considered non-profit organizations, only pay $20 per 2,000 square feet.
    He described how a particular church on North Point Boulevard has more impervious surfaces than his business, but will pay less than he will.
    “That building is 130 feet away and it is three times as big as my building, but has to pay 350 percent less in taxes because it is a church,” Gates added.
    Gates said he is in the early stages of investigating what to do but believes legal action can be taken against the county.             He pointed to the original bill that was passed by the General Assembly that stated “A county and or municipality shall set a residential stormwater remediation fee for property in an amount that is based on the share of stormwater management services related to the property and provided by the county or municipality.”
    Gates highlighted the term “Share of Stormwater Mangament Services Related to the Property,” which refers to all properties, whether residential, non-profit, government or commercial.
    He said he interprets that to mean that residential and non-profit owners must pay the same as commercial owners and believes that government buildings such as schools and government offices should not be exempted from the law.
    Gates acknowledges that some people would argue that it is pointless to tax the state and county buildings because the government would have to turn around and create a new tax for the public to fund  stormwater taxes on those buildings.    
    However; Gates explained, he would rather see the government be taxed and pass the tax on to the general public equally.
    “They would have to raise our taxes, which would be equally distributed, but at least all the burden would not go on the commercial properties.”
    Gates said he has met with Vince Gardina, director of the Department of Environmental Protection and Sustainability, and has brought up these concerns.    
    Gardina responded in a e-mail to The Eagle that commercial properties have higher rates because they generally have more impervious surface area than residential sites.
    “The county has assessed the fees based on the understanding that commercial properties have large impervious surface areas and are eligible for initial and subsequent credits for stormwater treatment put in place in prior or future years,” Gardina said. “Residences cannot get credits”
    Gates said he thinks the county knows it made a mistake by charging commercial properties too much and there is no way to fix it.
    “The rates have already been established. They can’t go back and say, ‘now we are going to fix this,’ and start charging residential [owners] $59 and lower the commercial rates,” he stated.
    Another problem Gates has with the county is regarding the definition of an impervious surface.
    Gardina responded that an impervious surface is defined in the executive order.
    “Impervious surface means a surface that does not allow storm water to infiltrate into the ground and shown on the impervious surface map available in the county’s geographic information systems,” Gardina noted in  his statement to The Eagle.
    As a contractor, Gates said he was mandated for years by the county to build driveways out of porous surfaces instead of using an impervious material like asphalt. He added that it was mandated in order to meet impervious surface limitations on properties.
    However, according to Gates, Baltimore County now considers stone to be an impervious surface — and thus subject to the “Rain Tax.”
     In that case, Gates wants to know why contractors were forced to use stone for years if that surface is as problematic as asphalt.
    Gardina explained that  gravel and stone are usually considered impervious with a few exceptions.    
    “Gravel surfaces will be considered impervious when used as storage area for equipment and materials; driveway or road parking lot for vehicles, boats [and] trailers. Any use that would compact the gravel over time,” Gardina explained.
    “[The] exception is if the gravel is at least eight inches thick and designed with a cross section from bottom to top with a layer of geotextile fabric separating the gravel from the ground, covered by at least six inches of #2 stone, covered by at least two inches of #6 or #7 stone.”
    Gardina said that type of gravel is a partial infiltration “best management practice” and should be credited on that basis.
    However, since lateral or horizontal flow is not restricted when graveled areas are not in a depression nor contained, only a portion of the credit for infiltration should be granted.
    “Lateral flow is still overland flow or interflow,” Gardina added. “Dissolved nutrients like nitrogen are not removed in this case. We will give a 30 percent credit if the surface meets the exception criteria.”
    Gardina explained in the e-mail that impervious surface on a commercial property is determined by using Geographic Information systems (GIS) using two layers: the building and road layer.    
    “The footprint of buildings and the driveways and parking lots of these areas is used for the measurement,” Gardina explained.