Mission will appeal adverse ruling on ‘driveway tax’ to Kansas Supreme Court

The "driveway tax" factored heavily into Mission politics after its passage in 2011.
The “driveway tax” factored into Mission politics after its passage in 2011.

The dispute over the legality of Mission’s Transportation Utility Fee (TUF) could end up in the Kansas Supreme Court.

Mission City Administrator Laura Smith told a community budget forum this week that the city will appeal the most recent ruling in the case to the Kansas Supreme Court. Earlier this month, the Kansas Court of Appeals ruled that the fee, often referred to as the “driveway tax,” is illegal because it is an excise tax prohibited to cities by Kansas law.

That decision overturned a ruling in Johnson County District Court in November 2013 that the TUF was a tax, but was not an excise tax. The TUF collects nearly $800,000 per year for the city that is used for street maintenance.

The council met in executive session not long after the ruling to discuss the litigation. Smith said the direction given was to appeal the decision which will not require a formal vote.

Mayor Steve Schowengerdt ran on a platform that called for repeal of the driveway tax, as did other current council members. Schowengerdt, however, said at the time of the most recent ruling that he had preferred to make a gradual transfer from TUF assessments to sales or property tax.

The city is now planning its 2016 budget without the TUF assessment and is considering an increase in the property tax of seven mills to fill the gap in street maintenance funds. The TUF assesses the fee based on how much traffic a property is expected to generate. That places more of a burden on businesses while each single-family home has been assessed at $72 per year. The switch to property tax will give most businesses a cost reduction and result in a slightly higher charge for homeowners.

The plaintiffs in the suit included a number of businesses and individuals including Mission Bank Building, Oddo Development, Tower Properties, Hershel Casey, Roger and Delores Clark, Currie Myers, William and Mary Nichols, Block Real Estate Services and Heartland Apartment Association.