The following article was originally published in The Daily Record by their Legal Affairs writer, Heather Cobun, on April 21st, 2017:

The denial of tax credits to most members of a homeowners’ association in Montgomery County that manages its own stormwater runoff was remanded to an administrative appeal board Thursday where attorneys say they will argue the county construes too narrowly which property owners qualify for credit.

Though all 23 members of Gaithersburg’s Lindbergh Park Owners Association pay for upkeep and maintenance of stormwater management ponds and have drains and grading on their properties to ensure runoff flows into them, only five members received a tax credit because the ponds are physically located on their properties, according to attorney Maria Olsen.

“It was an absurd position, and I don’t even know how they got that through the Board of Appeals,” Olsen, of The Pels Law Firm in Bethesda, said of the county’s argument.

The owners appealed the denial of credits by the Montgomery County Department of Environmental Protection, and the Board of Appeals sided with the county, according to Olsen. But a circuit court judge remanded the case back to the Board of Appeals for a full hearing.

Maryland law requires the county to include credits for stormwater management facilities funded and maintained by a property owner, Olsen said. The judge found the board erred in concluding that the statutory meaning of “stormwater management system” only encompassed the drainage ponds.

The credits were intended to reduce the charges to property owners who were reducing stormwater runoff on their own, which the Lindbergh Park owners do, the petitioners allege in court filings, and the county bears no cost in treating stormwater from their properties.

Olsen said the poor drafting and narrow construction of the so-called “rain tax” law in Montgomery County is having unintended consequences such as the Lindbergh Park case, where property owners who are being proactive in their stormwater management are not being rewarded with credits for good environmental practices. She also said her clients intend to contest the constitutionality of the tax.

“It is unconstitutional as applied (and) violates the Equal Protection Clause of the Constitution because it treats people who do treat their own stormwater the same as people who don’t and charges people who have paid for stormwater management the same as people who haven’t done anything, in many cases,” she said.

There is no timeline for a hearing before the Board of Appeals.

A spokesman for Montgomery County did not respond to a request for comment.

The case is Devin Battley et al. for judicial review of the decision of the Board of Appeals for Montgomery County, 426602V.