Judge rules Mission’s transportation fee (‘driveway tax’) is legal

Looking west on Martway from Woodson — Martway is still closed to traffic.
Mission’s transportation utility fee revenues are dedicated to street repair and maintenance.

The City of Mission’s Transportation Utility Fee (TUF) that generated considerable controversy when it was enacted in 2010, has been ruled legal by a Johnson County judge. Several businesses and residents of Mission had sued the city, contending that the assessment consisted of an excise tax that would be illegal under Kansas law.

Judge James Vano granted the city’s request for a summary judgment. In his finding the judge ruled that the TUF, commonly called the “driveway tax” by its critics, is, in fact, a tax rather than a fee. The city had argued that it was a special fee. However, Vano also said the TUF does not constitute an excise tax, and therefore it is not illegal.

Vano’s ruling contradicts a non-binding opinion issued last year by Kansas Attorney General Derek Schmidt that the TUF was an excise tax barred by Kansas law. An excise tax, according to the ruling, is based on the actual performance of any act, engaging in an occupation,or the enjoyment of a particular privilege.” Mission determines the charges based on the number of trips a property is expected to generate.

The TUF is collected on tax bills and ranges from $72 per year for a homeowner to several thousand dollars per year for some retail businesses. The city’s 2014 budget anticipates collecting $790,000 from the TUF, according to Finance Director Laura Smith. It would require an additional six to seven mills on the property tax assessment to replace those funds. TUF money is used for street repair and maintenance and associated costs, such as curbs and gutters, trails, and bike lanes.

The tax was earlier challenged by churches and that was resolved by granting an exemption. The court ruled also ruled that due process and equal protections claims of the plaintiffs were not valid.

See the court’s ruling below: