Attorney General Opinion Concludes That Mission’s “Driveway Tax” Is Illegal

A couple years ago, the City of Mission enacted a transportation utility fee which some have dubbed a “driveway tax”:

The city’s goal was to shift the burden for financing road improvements from single-family homes that may not generate a lot of traffic to big commercial properties that draw lots of traffic that wears out roads. Homeowners pay $72 a year in fees while commercial properties pay thousands of dollars more.

In technical terms, it’s called a “transportation utility fee,” but [Attorney General Derek] Schmidt called it a tax because property owners are required to contribute toward a general government service.
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Although the opinion is non-binding, opponents hope it will fuel efforts to get it repealed, possibly through another court challenge. They also said it sounds a warning to other cities considering similar fees.

Read the full story here.

A PDF of Attorney General Opinion No. 2012-03 can be downloaded here. Here is the “synopsis” provided in the opinion:

Under the Executive Aircraft test, the “transportation utility fee” (TUF) is a
tax because it is a forced contribution on the owners of developed real
property in the City of Mission levied for the purpose of raising revenue for
the maintenance of governmental services offered to the general public,
i.e., maintenance of streets. The TUF is not an ad valorem tax because it
is imposed by calculating the estimated number of vehicle trips originating
from a property using a trip generation model rather than the value of real
property. As such, TUF is an excise tax that the City of Mission is
specifically, clearly, and uniformly prohibited from levying or imposing
under K.S.A. 2011 Supp. 12-194. Cited herein: Kan. Const., Art. 12,
Section 5; K.S.A. 2011 Supp. 12-187 et seq.; K.S.A. 2011 Supp. 12-194.