NORTHAMPTON — Some two weeks after a group of residents filed a petition to repeal the city’s stormwater fee, the city’s attorney rejected it on Monday.
City Solicitor Alan Seewald said the legal opinion is not a judgment on the merits of the measure, but instead about the legality of the process.
“The (city) charter limits the time in which a law passed by City Council can be overturned by the voters,” Seewald said Tuesday.
He said that time limit is 21 days after a law is passed, and that repeal would have to happen by referendum — not a citizen’s initiative, which he said is a process reserved for matters on which the city’s legislature has not acted. Citizens initiatives can come at any time.
“Where the City Council hasn’t acted, obviously there’s no time limit, because they haven’t acted,” Seewald said.
John Riley, a city business owner who has spearheaded the repeal effort, likened Seewald’s opinion to pulling “a rabbit out of the hat” to protect incoming stormwater funds he said the city is using toward maintenance that should already be covered by taxes.
“What I see in his decision is an arbitrary and, I would say, made-up decision just to block us from voting,” Riley said. “The city doesn’t want us to vote. They know we would win.”
Riley said the stormwater fee is a tax in disguise, and since it came after an override, voters should get a say.
“What they should have done is put this out to a vote the first time around,” he said. “It’s a really bad precedent — they could do this again. We aren’t supposed to fund the city with fees. We’re supposed to fund it with taxes that we vote on.”
Riley said petitioners request that the City Council disregard Seewald’s opinion, but Council President William Dwight said that isn’t likely.
“It would be ill-advised to reject the solicitor’s opinion. It would also be ill-advised to bypass the conditions of the charter,” Dwight said. “That said, there’s still an opportunity for them to lobby for a nonbinding ballot question.”
Such a ballot question could still serve to inform the city’s position on the matter, Dwight said, noting that federal and state requirements regarding stormwater and taxes put the city a tricky spot.
“We recognize it is an imperfect device,” he said. “I think this is a worthy point of discussion and debate for the community.”
Riley, who said petitioners would consider suing the city in order to put the measure before voters, maintains the process should allow for more than 21 days in order to repeal. He said the community was still feeling out what the impacts of the new legislation were going to be 21 days after the fee was approved three years ago.
Seewald said the window is typically short in representative government.
“It’s supposed to be hard (to repeal law). We elect our representatives to represent us. Only in the most egregious circumstances do we expect their decisions to be overridden,” Seewald said. “If you’re not happy with what the City Council is doing on this law, then maybe you want to elect new city councilors.”
Attorney Jesse Adams, who was a city councilor at the time the new charter was adopted, said repeal processes should be reconsidered when the charter is reviewed again in 2020.
“I think it’s good to have another mechanism to remove legislation the majority of the citizens think is ‘bad’ even if the City Council doesn’t want to act on it,” he said. “Because the way the charter is now, it would have be recognized immediately as ‘bad.’”
Dwight said such a change is possible, but would constitute a substantial shift in city government.
“We can certainly modify and change that, but I would need a compelling argument,” he said.
Amanda Drane can be contacted at adrane@gazettenet.com.