[Cite as Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186, 2012-Ohio-2370.]




    DREES COMPANY ET AL., APPELLANTS, v. HAMILTON TOWNSHIP ET AL.,
                                       APPELLEES.
  [Cite as Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186, 2012-Ohio-2370.]
R.C. 504.04(A)(1)—Impact fees imposed by township upon applicants for zoning
         certificates for new construction or redevelopment operated as taxes, so
         township was not authorized to impose them.
         (No. 2010-1548—Submitted June 8, 2011—Decided May 31, 2012.)
               APPEAL from the Court of Appeals for Warren County,
                          No. 2009-11-150, 2010-Ohio-3473.
                                 __________________
         PFEIFER, J.
         {¶ 1} In this case we consider whether Hamilton Township, a limited-
home-rule township, was authorized under Ohio law to impose its system of
impact fees upon applicants for zoning certificates for new construction or
redevelopment within its unincorporated areas. We hold that the impact fees
operated as taxes; thus, Hamilton Township was not authorized to impose them
pursuant to R.C. 504.04(A)(1).
                        Factual and Procedural Background
         {¶ 2} Appellee Hamilton Township is a township that has adopted a
limited-home-rule government, as defined by R.C. Chapter 504, and is located in
Warren County. It has seen significant growth in recent years; the population
grew from 5,900 in 1990, to 9,630 in 2000, to 23,556 in 2010.
http://www.census.gov/prod/cen1990/cp1/cp-1-37.pdf (page 583, accessed May 3,
2012);      http://factfinder2.census.gov/faces/tableservices/jsf/pages/product
view.xhtml?pid =DEC_10_DP_DPDP1&prodType=table (accessed May 3, 2012)
and http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml
                            SUPREME COURT OF OHIO




?pid= DEC_00_SF1_DP1&prodType=table (accessed May 3, 2012). Appellee
Hamilton Township Board of Trustees is the legislative and administrative body
responsible for governing Hamilton Township under R.C. Title 5.
       {¶ 3} On May 2, 2007, the board of trustees passed Amended Resolution
No. 2007-0418, descriptively titled “Amended Resolution Implementing Impact
Fees Within the Unincorporated Areas of Hamilton Township, Ohio for Roads,
Fire and Police, and Parks.” The resolution adopted a schedule of fees to be
charged to applicants for zoning certificates for new construction or
redevelopment. The resolution included four categories of fees: a road-impact
fee, a fire-protection-impact fee, a police-protection-impact fee, and a park-impact
fee. The parties in this case made the following stipulation regarding the purpose
of the resolution:


               The purpose of the impact fee is to benefit the property by
       providing the Township with adequate funds to provide the same
       level of service to that property that the Township currently affords
       previously developed properties.
               The Resolution assesses an impact fee to previously
       undeveloped property, and property undergoing redevelopment, to
       offset increased services and improvements needed because of the
       development.


       {¶ 4} The amount of the fees varies based upon the land use. Owners of
property to be used for single-family detached dwellings, multifamily units, and
hotel/motel rooms are assessed fees on a per-unit basis. Owners of property to be
used for retail/commercial, office/institutional, industrial, warehouse, church,
school, nursing-home, and hospital purposes are assessed fees on a per-1,000-




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                               January Term, 2012




square-feet basis. Only owners of property to be used for single-family detached
and multifamily units are assessed the park component of the impact fees.
       {¶ 5} For example, the fees for the owner of property to be used as a
single-family detached dwelling, broken down by category, are $3,964 for roads,
$335 for fire, $206 for police, and $1,648 for parks, for a total assessment of
$6,153. The fees, per 1,000 square feet, for the owner of property to be used for
retail/commercial purposes are $7,265 for roads, $432 for fire, and $265 for
police, for a total assessment of $7,962. The township phased in the impact fees
over time, charging only one-third of the total fee the first year after passage and
two-thirds the second year. As of August 31, 2009, the township has charged the
full impact fees.
       {¶ 6} All impact fees collected by the township are deposited into impact-
fee accounts, not into a general fund. The resolution created accounts for each of
the four types of impact fees. Money in each discrete account may be used only
for the purpose of the account.       The accounts do not contain geographic
subaccounts. The money in each account is to be spent on a “first-in/first-out”
basis, meaning that the money that has been in each account the longest will be
spent first. Funds must be spent on projects initiated within three years of the
fees’ collection; any money not spent within seven years of its collection is
refunded to the current owner of the property.
       {¶ 7} The resolution permits the township to give credits to offset against
the impact fees for certain improvements. A land owner or developer can receive
partial or full credit for contributions toward the cost of major roadway-system
improvements, provided the roadway is on the township’s thoroughfare plan.
However, no credit will be given for dedication of right-of-ways or for
improvements to the major roadway system that primarily serve traffic generated
by the improved property, such as acceleration/deceleration lanes into and out of
the property.




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                            SUPREME COURT OF OHIO




        {¶ 8} The township allocates a maximum of 75 percent of the impact fees
collected each year to reimburse developers for eligible improvement credits. If
the amount allocated for reimbursements is not sufficient to make all payments
due to developers for that year, each developer will receive a pro rata share of the
amount owed, and the unpaid amount will be carried forward to the following
year.   If less than 75 percent of the impact fees collected is required for
reimbursements in any given year, the remainder may be used for public-project
expenditures.
        {¶ 9} The township will not issue a zoning certificate until the applicant
has paid the applicable impact fee. Within the first year of the passage of the
resolution, appellants the Drees Company, Fischer Single Family Homes II,
L.L.C., John Henry Homes, Inc., and Charleston Signature Homes, L.L.C., all
sought zoning certificates to construct single-family homes; all paid a $200
zoning-application fee and, under protest, paid impact fees of $2,030.16 per
application.
        {¶ 10} Appellants named above and appellant Home Builders Association
of Greater Cincinnati then brought this action against appellees, the township and
its trustees, seeking a declaratory judgment, injunctive relief, and damages,
alleging that the impact fees are contrary to Ohio law and are unconstitutional.
The parties submitted stipulated facts and exhibits, and each side filed a motion
for summary judgment. The trial court granted the township’s motion, holding as
follows:


        Hamilton Township, pursuant to its statutory limited police
        powers, may make and fund improvements to benefit new
        development by use of its system of impact fees, because the
        resolution is not in conflict with any other Ohio statute, and




                                         4
                               January Term, 2012




       because it is sufficiently narrowly tailored to provide services to
       the class of fee payers in exchange for the fees.


       {¶ 11} The Twelfth District Court of Appeals affirmed. The court held
that, contrary to appellants’ arguments, the impact fees were not a prohibited form
of taxation, did not conflict with general laws of the state, and did not alter the
structure of township government.
       {¶ 12} The cause is before this court upon the acceptance of a
discretionary appeal. 127 Ohio St.3d 1460, 2010-Ohio-6008, 938 N.E.2d 362.
                                Law and Analysis
       {¶ 13} In Ohio, “townships are creatures of the law and have only such
authority as is conferred on them by law.” State ex rel. Schramm v. Ayres, 158
Ohio St. 30, 33, 106 N.E.2d 630 (1952). Hamilton Township is a limited-home-
rule township created under R.C. Chapter 504. R.C. 504.04(A)(1) states that
limited-home-rule townships may, by resolution,


       [e]xercise all powers of local self-government within the
       unincorporated area of the township, other than powers that are in
       conflict with general laws, except that the township shall comply
       with the requirements and prohibitions of this chapter, and shall
       enact no taxes other than those authorized by general law * * *.


(Emphasis added.)
       {¶ 14} This opinion focuses on whether the impact fees imposed by the
township are taxes “other than those authorized by general law.” Ohio law
already empowers townships to employ specified methods of taxation to raise
money to pay for police and fire service (R.C. 505.51 and 505.39), parks (R.C.
511.27 and 511.33), and roads (R.C. 5571.15, 5573.07, 5573.10, 5573.11, and




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                              SUPREME COURT OF OHIO




5573.211). There is no dispute in this case that the impact fees at issue do not
meet the requirements of those methods of taxation, so if the impact fees are
actually taxes, they violate R.C. 504.04.
                           Distinguishing a Fee from a Tax
          {¶ 15} The fact that the township’s resolution calls the assessments “fees”
is certainly not sufficient to establish that the assessments are not taxes. In order
to determine whether certain assessments are taxes, we must analyze “the
substance of the assessments and not merely their form.” State ex rel. Petroleum
Underground Storage Tank Release Comp. Bd. v. Withrow, 62 Ohio St.3d 111,
116, 579 N.E.2d 705 (1991), fn. 5. Although this court has stated that “[i]t is not
possible to come up with a single test that will correctly distinguish a tax from a
fee in all situations where the words ‘tax’ and ‘fee’ arise,” id. at 117, we can look
to our own case law and that of other jurisdictions for guidance in making our
determination in this case.
                                   Withrow Factors
          {¶ 16} In Withrow, this court considered whether assessments imposed
upon owners and operators of underground storage tanks (“USTs”) by the
Petroleum Underground Storage Tank Release Compensation Board were taxes.
The assessments helped fund the Petroleum Underground Storage Tank Financial
Assurance Fund. That fund was created “to reimburse owners and operators of
USTs for the costs of corrective actions in the event of a release of petroleum into
the environment and to compensate third parties for bodily injury and/or property
damage resulting from such occurrences.” Withrow at 111. The proceeds from
the assessment were kept separate from the general fund of the state treasury. Id.
at 116.
          {¶ 17} This court cited a number of factors in concluding that the
assessment in Withrow was not a tax, but a fee.           First, this court found it
significant that the fees were imposed in furtherance of regulatory measures




                                            6
                                January Term, 2012




designed to address the environmental problems caused by leaking USTs; by
statute, the owners and operators of USTs were strictly liable to take corrective
actions and to pay damages for leaking USTs. Id. The fund into which the fees
were paid ensured that UST owners could meet those statutory obligations.
       {¶ 18} Second, the assessments were never placed in the general fund and
were to be used only “for narrow and specific purposes, all directly related to
UST problems.” Withrow, 62 Ohio St.3d at 116-117, 579 N.E.2d 705.
       {¶ 19} Third, the court noted that “[a] fee is a charge imposed by a
government in return for a service it provides.” Id. at 113. And it held that in
exchange for the fee, the UST owners and operators received protection that
resembled insurance. Id. at 117.
       {¶ 20} Fourth, this court was also persuaded by the fact that when the
unobligated balance in the fund exceeded a certain amount, there would be no
assessment for that year. Further, if the fund dipped below a certain amount, the
assessing authority was permitted to charge a supplemental assessment. The court
concluded, “Thus, the assessment appears to function more as a fee than as a tax,
because a specific charge in return for a service is involved.” Id.
                      Applying Withrow Factors to this Case
       {¶ 21} The assessment in this case differs in several important respects
from the assessment this court deemed a fee in Withrow. First, the township’s
assessment lacks the regulatory aspect of the fee charged in Withrow. Unlike the
fee in Withrow, the assessment at issue is not imposed in furtherance of statutes
designed to protect the public from harms associated with a specific industry.
Rather, it is a revenue generator with the stated purpose of guaranteeing a
consistent level of services to all members of the community.         It does not
encourage the assessed parties’ compliance with certain statutory obligations or
protect the public from specific threats.




                                            7
                            SUPREME COURT OF OHIO




       {¶ 22} Second, unlike the fee collected in Withrow, the revenue generated
by the assessment in this case is spent on typical township expenses inuring to the
benefit of the entire community.       It is true that the Hamilton Township
assessments are not placed into the general fund; rather, the revenue goes into
separate funds for roads, fire, police, and parks. However, as the court pointed
out in Withrow, “if these assessments [are] actually taxes, the simple act by the
legislature of placing them in a segregated fund [does] not transform them into
fees. We must examine the substance of the assessments and not merely their
form.” Withrow, 62 Ohio St.3d at 116, 579 N.E.2d 705, fn. 5. Here, although the
funds are segregated, the use of the money from the funds is general in nature.
The money is not earmarked so that it is spent to improve the area around the
particular property upon which the assessments are imposed; in other words, there
are no geographic subaccounts among the accounts. For instance, there is no
requirement that money placed into the police fund goes to create a police
substation near a new neighborhood. Instead, the funds can be spent on any
police expenditure throughout the community. Within the specific fund, money is
spent in a general way, all toward the normal expenditures of government.
       {¶ 23} Third, this court found that the assessment in Withrow was a fee for
a service that the government provided; that is, the fund into which the fees were
deposited operated, essentially, as insurance coverage for catastrophic damage
caused by leaking tanks. Here, assessed parties get no particular service above
that provided to any other taxpayer for the fee that they pay. As taxpayers and
residents of Hamilton Township, they are entitled to police and fire protection and
to use township parks and roadways. They already pay taxes for those services;
in fact, when they improve their property, they pay higher taxes than they did
when the property was undeveloped. But targets of the assessment receive no
greater benefit than any other taxpayer despite the payment of the additional
assessment.




                                        8
                                January Term, 2012




       {¶ 24} Finally, the fee that was charged in Withrow was tied to events, not
the spending whims of government. In Withrow, UST owners were liable for a
supplemental fee if the situation warranted it, that is, if the fund dwindled as tank
leaks increased. Further, if the fund were at sufficient levels, the board could
suspend the fees. In regard to the township assessment in this case, there is a
refund of the fees only if the township decides not to spend the money. Whether
the money is spent is up to the local government. Since the money is not tied to
any particular type of expenditure within any of the four funds, the only way the
money would not be spent is by governmental frugality. And unlike the system in
place in Withrow, there is no mechanism to require a further assessment should
the situation demand it. Thus, unlike the fee in Withrow, this assessment is not
responsive to need. Thus, it bears less resemblance to a fee for a service than the
assessment in Withrow did.
       {¶ 25} Overall, an application of the Withrow factors in this case points to
the assessments as constituting taxes.
                               Am. Landfill Analysis
       {¶ 26} In Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste
Mgt. Dist., 166 F.3d 835 (6th Cir.1999), the Sixth Circuit Court of Appeals
employed an analysis similar to that used in Withrow in considering whether
assessments imposed by solid-waste-management districts on persons disposing
of material at solid-waste-disposal facilities located within their districts
constituted fees or taxes for purposes of the Tax Injunction Act, 28 U.S.C. 1341.
The funds, collected by owners or operators of disposal facilities, were to be used
for various purposes, including “preparing and implementing the district’s solid
waste management plan,” “develop[ing] and implement[ing] * * * solid waste
recycling or reduction programs,” “providing financial assistance to local boards
of health for water analysis and other enforcement activities,” “providing
financial assistance to counties for maintenance of roads, public facilities, and




                                         9
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emergency services which result from the location of a solid waste facility in the
counties,” and “assist[ing] * * * local law enforcement and boards of health [in]
enforc[ing] littering and open dumping laws.” Am. Landfill at 836.
       {¶ 27} The court in Am. Landfill applied a three-factor analysis that had
been employed by the courts in Bidart Bros. v. California Apple Comm., 73 F.3d
925, 931 (9th Cir.1996) and San Juan Cellular Tel. Co. v. Pub. Serv. Comm. of
Puerto Rico, 967 F.2d 683, 685 (1st Cir.1992) to determine whether the
assessment was a fee or tax. As set forth in Bidart, a court should consider “(1)
the entity that imposes the assessment; (2) the parties upon whom the assessment
is imposed; and (3) whether the assessment is expended for general public
purposes, or used for the regulation or benefit of the parties upon whom the
assessment is imposed.” Bidart at 931.
       {¶ 28} The court in San Juan described the classic versions of a tax and a
fee:


       The classic “tax” is imposed by a legislature upon many, or all,
       citizens. It raises money, contributed to a general fund, and spent
       for the benefit of the entire community.       * * * The classic
       “regulatory fee” is imposed by an agency upon those subject to its
       regulation. * * * It may serve regulatory purposes directly by, for
       example, deliberately discouraging particular conduct by making it
       more expensive. * * * Or, it may serve such purposes indirectly
       by, for example, raising money placed in a special fund to help
       defray the agency's regulation-related expenses.


San Juan at 685.
       {¶ 29} In regard to the first two factors—the entity that imposes the
assessment and the entity that must pay the assessment—“[a]n assessment




                                         10
                               January Term, 2012




imposed directly by the legislature is more likely to be a tax than an assessment
imposed by an administrative agency” and “[a]n assessment imposed upon a
broad class of parties is more likely to be a tax than an assessment imposed upon
a narrow class.” Bidart, 73 F.3d at 931, citing San Juan, 967 F.2d at 685.
       {¶ 30} Most assessments fall somewhere near the middle of the spectrum
between a fee and a tax; in such cases, the use of the funds becomes the
predominant factor in making the ultimate determination:


       Both San Juan and Bidart indicate that for cases where the
       assessment falls near the middle of the spectrum between a
       regulatory fee and a classic tax, the predominant factor is the
       revenue’s ultimate use. See San Juan, 967 F.2d at 685; Bidart, 73
       F.3d at 932. When the ultimate use is to provide a general public
       benefit, the assessment is likely a tax, while an assessment that
       provides a more narrow benefit to the regulated companies is likely
       a fee. See id.


Am. Landfill, 166 F.3d at 837-838.
       {¶ 31} In applying the San Juan and Bidart approach, the court in Am.
Landfill determined that the assessment was a tax. The court found that the entity
imposing the assessment—the local solid-waste-management district—and the
parties upon whom the assessment was imposed—users of solid-waste-
management facilities—were factors that weighed in favor of the assessment’s
being a fee. But that was balanced by the fact that the General Assembly had
been involved in authorizing the districts to impose the assessment, keeping the
case “near the middle of the spectrum between a pure regulatory fee and a classic
tax.” Am. Landfill at 839. The court concluded that the third factor pushed the
assessment into the realm of a tax: “The revenue’s ultimate use as a benefit shared




                                        11
                             SUPREME COURT OF OHIO




by the public and not just the waste disposal facilities indicates that the
assessment here is a tax.” Id. at 839-840. The court made that finding despite the
fact that the revenues were placed in a fund separate from the general fund. The
court pointed to the public purposes to which the revenue collected was to be put,
including the development of recycling programs, road and public-facility
maintenance, and emergency services: “These purposes ‘relate directly to the
general welfare of the citizens of [Ohio],’ and dedication to a particular aspect of
state welfare makes them ‘no less general revenue raising levies.’ ” Id. at 839,
quoting Wright v. McClain, 835 F.2d 143, 145 (6th Cir.1987).
                       Application of Am. Landfill Analysis
       {¶ 32} Applying the three-factor test that the court employed in Am.
Landfill in this case yields the conclusion that the assessment at issue is a tax. As
for the first factor, the entity imposing the assessment in this case is a legislative
body, not a regulatory body, which favors characterizing the assessment as a tax.
In regard to the second factor, the entities paying the assessment are not part of a
single industry or group. The assessment applies to a fairly large swath of
people—anyone who wants to engage in any type of development in the
township. However, it also is not imposed on every township resident. That
pushes the needle further from a classic tax, but not into the realm of a classic fee.
The third factor, the ultimate use of the revenue, places the assessment solidly in
the realm of taxation. The fact that the funds from the assessments are segregated
into separate accounts is irrelevant; the fact that the revenue is earmarked for
police protection, fire protection, road improvement, and parks that benefit the
entire community is the key factor.       The assessments raise revenue for the
public’s benefit. All members of the community will benefit from improved
roadways and parks, as well as from consistent levels of police and fire
protection.




                                         12
                                 January Term, 2012




                            Other State Supreme Courts
        {¶ 33} Although Withrow and Am. Landfill are instructive as to the fee-
versus-tax issue, neither involved the type of assessment at issue in this case.
However, other state supreme courts facing very similar matters have found that
impact fees constituted taxes. A key factor in those cases was the extent of the
public benefit that resulted from the assessment. In Home Builders Assn. of
Greater Des Moines v. W. Des Moines, 644 N.W.2d 339 (Iowa 2002), the court
considered an impact fee paid by land developers and builders that was used by
the city to create or improve parks. The court pointed to the lack of a special
benefit inuring to the targets of the fee in determining that the fee was a tax:


        [T]he fee is based on the cost of building the neighborhood parks,
        an expense representing the general benefit to the community at
        large. Therefore, the parks fee is not based on special benefits
        conferred on the property owners so as to fall outside the definition
        of a tax. See E. Diversified Props., Inc. [v. Montgomery Cty., 319
        Md. 45] 570 A.2d [850] at 855 [Md.App.1990] (holding that
        impact fee was not a regulatory fee where it was not based on the
        “service provided to the property owner”); Haugen v. Gleason, 226
        Or. 99, 359 P.2d 108, 111 (1961) (holding fee charged as condition
        of plat approval was an illegal tax because the fees were not
        required to be used for “the direct benefit of the regulated
        subdivision”). To conclude otherwise would in essence permit the
        City to assess property for a public improvement without regard to
        the limitations on its taxing authority* * *.


Id. at 349.




                                          13
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        {¶ 34} In Mayor of Ocean Springs v. Homebuilders Assn. of Mississippi,
Inc., 932 So.2d 44 (Miss.2006), the court addressed a city’s ordinances that
authorized it to collect impact fees from developers for funding various public
improvements and services. In holding that the impact fees were a revenue-
raising mechanism that constituted taxes, the court concluded:


        “Courts cannot fault the logic or the foresight that induces the
        municipality to consider the long term impact of permitted
        development on municipal resources and public facilities.
        However, in the absence of legislative intent, municipalities cannot
        depart from traditionally authorized methods of financing public
        facilities so as to allocate the costs of substantial public projects
        among new developments on the basis of their anticipated impact.”
        8 McQuillin, Municipal Corp.3rd Ed., Rev.2000, § 25.118.50 at
        384.


Id. at 60.
                       Public Benefit Versus Private Benefit
        {¶ 35} In the present case, the potential public benefit appears to be the
main reason for the assessment. But in addressing the tax-versus-fee question, the
court of appeals put great stock in one of the stipulations that the parties agreed to
in this case, using it as proof that the assessments were made for the benefit of the
targeted property:


        [Appellants’] claim flies in the face of the parties stipulated facts,
        which state, in pertinent part:
               “The purpose of the impact fee is to benefit the property by
        providing the Township with adequate funds to provide the same




                                          14
                               January Term, 2012




       level of service to that property that the Township currently
       affords previously developed properties.” (Emphasis added.)
              To quote [appellants], “[i]n order to be classified as a fee, a
       charge must specially benefit the property that pays the fee.” Based
       on the [parties’] stipulated facts, that is exactly what occurs here;
       namely, a payment to the Township to obtain a zoning certificate
       in order to build on property within its unincorporated areas so that
       “that property” can receive the same level of service provided to
       previously developed properties. By stipulating to these facts,
       [appellants] are now bound by their agreement.


(Emphasis sic.) Drees Co. v. Hamilton Twp., 12th Dist. No. 2009-11-150, 2010-
Ohio-3473, ¶ 17-19.
       {¶ 36} It is unlikely that appellants would stipulate to a fact that dooms
their claim. More importantly, the stipulation implicitly recognizes that the goal
is for the township to have the necessary funds to allow all properties in the
township to maintain their same level of service despite recent, rapid growth. The
parties also stipulated that the impact fees were imposed “to offset increased
services and improvements needed because of the development.” The impact fees
are intended to prevent any diminishment of services to anyone in the township.
       {¶ 37} Lest there be any doubt as to whether the impact-fee resolution was
designed to affect the whole community, the factual findings in the resolution
itself contain statements indicating that maintaining the general welfare of the
community is the aim of the resolution. The resolution states that the impact-fee
system “assures the continuation of capital services to benefit one of the fastest
growing townships in the State of Ohio and the United States of America, utilizing
a system which is widely accepted as a valid exercise of the police power to
protect health, safety and the wellbeing of the community.” (Emphasis added.)




                                        15
                               SUPREME COURT OF OHIO




The board states in the resolution that “the protection of the health, safety, and
general welfare of the citizens and property owners of the Township” requires that
the major roadway facilities, fire-protection and police-protection facilities, and
the park facilities of the township “be improved to maintain them at their current
levels of service in order to meet the demands of new development.” (Emphasis
added.)
          {¶ 38} In Home Builders Assn. of Mississippi, Inc. v. Madison, 143 F.3d
1006, 1012 (5th Cir.1998), the court dealt with a similar impact-fee plan and an
ordinance with language similar to the resolution in this case. The ordinance
stated:


          “This Ordinance shall be used for the purposes of implementing
          and funding the [public-improvement plan] and to otherwise
          further the protection and promotion of the public health, safety
          and welfare of the City of Madison and its citizens and to regulate
          the adverse effects of rapid residential development by insuring
          adequate public facilities and services to present and future
          residents of the City.”


Id. at 1012.
          {¶ 39} Home Builders stated, “[I]t is difficult to imagine that an ordinance
designed to protect and promote the public health, safety and welfare of an entire
community could be characterized as anything but a tax.” Id.
          {¶ 40} We reach the same conclusion. Here, the assessment results in no
direct service to the landowner, other than the issuance of a zoning certificate, for
which there is already a separate $200 fee. When the amount of the fee exceeds
the cost and expense of the service, the fee constitutes a tax.          Granzow v.
Montgomery Cty. Bur. of Support, 54 Ohio St.3d 35, 38, 560 N.E.2d 1307 (1990).




                                           16
                                January Term, 2012




The impact fees are a revenue-generating measure designed to support
infrastructure improvements benefiting the entire township. “Taxation refers to
those general burdens imposed for the purpose of supporting the government, and
more especially the method of providing the revenues which are expended for the
equal benefit of all the people.” Cincinnati v. Roettinger, 105 Ohio St. 145, 153-
154, 137 N.E. 6 (1922).
                                    Conclusion
       {¶ 41} Having analyzed the substance of the assessments, and not merely
their form, we conclude that the impact fees charged by Hamilton Township in
this case constitute taxes. Since those taxes were not authorized by general law,
Hamilton Township was not authorized to impose them pursuant to R.C.
504.04(A)(1). Accordingly, we reverse the judgment of the court of appeals and
remand the matter to the trial court.
                                                               Judgment reversed
                                                             and cause remanded.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and CELEBREZZE, JJ., concur.
       FRANK D. CELEBREZZE JR., J., of the Eighth Appellate District, sitting for
MCGEE BROWN, J.
                               __________________
       Keating, Muething & Klekamp, P.L.L., Joseph L. Trauth Jr., Thomas M.
Tepe Jr., and Charles M. Miller; and Aronoff Rosen & Hunt, Richard A. Paolo,
Kevin L. Swick, and Edward P. Akin, for appellants.
       Rendigs, Fry, Kiely & Dennis, L.L.P., Wilson G. Weisenfelder Jr., James
J. Englert, and Lynne M. Longtin; and Keating Ritchie & McGary, L.P.A., and
Warren J. Ritchie, for appellees.
       Keating Ritchie & McGary, L.P.A., and Thomas T. Keating, urging
affirmance for amicus curiae Ohio Township Association.




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                          SUPREME COURT OF OHIO




       Maurice A. Thompson, urging reversal for amici curiae 1851 Center for
Constitutional Law and the Tax Foundation.
       Christopher M. Whitcomb, urging reversal for amicus curiae National
Association of Home Builders.
       Robert N. Eshenbaugh Jr., urging reversal for amicus curiae Ohio Home
Builders Association.
                          ______________________




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