The so-called “driveway tax” levied by Mission to pay for road work is illegal, according to a new attorney general’s opinion.

In a non-binding opinion, Kansas Attorney General Derek Schmidt said Mission was “specifically, clearly and uniformly” barred from imposing what he labeled an “excise tax.”

At issue is Mission’s decision two years ago to charge property owners a fee based on how much traffic they generate to help pay for road work.

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 Schmidt called it a tax because property owners are required to contribute toward a general government service.

The attorney general’s opinion went a step further, defining the fee as an “excise tax” that the city could not impose under state law.

Mission officials were reviewing the opinion Monday and weren’t ready to comment. But the lawyer for the League of Kansas Municipalities said she asked the attorney general to clarify the opinion.

Sandy Jacquot, general counsel for the league, said Mission’s transportation fee isn’t much different from the fee cities throughout the state already collect to pay for stormwater projects. The stormwater fee is generally based on how much runoff each property is expected to produce.

Jacquot said she wants the attorney general’s office to clarify the difference between the fee charged for transportation and the fee charged for stormwater runoff.

“We’re still trying to gather information,” Jacquot said. “I don’t understand the differences in how the two are distinguished. More analysis is going to need to be done.”

Mission has been fighting over the so-called driveway tax, dubbed that by talk-radio critics, since it was imposed in August 2010.

The city recently settled a lawsuit brought by two churches that accused Mission of violating state law by imposing a tax they alleged was made to look like a fee. The plaintiff’s lawyer equated the fee to levying a tax on churchgoers.

The city eventually agreed to exempt churches, schools and some nonprofit groups from the fee, which generates about $830,000 a year for roads.

Although the opinion is non-binding, opponents hope it will fuel efforts to get it repealed, possibly through another court challenge.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.

“It will give fodder for those folks who are interested in pursuing a lawsuit assuming the city continues to maintain the tax,” said Dan Murray, state director of the National Federation of Independent Business. “We hope it will tamp out the potential of a brush fire, particularly in Johnson County, with this form of tax.”

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