[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 limitedhome-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 
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?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-
January Term, 2012 

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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 impactfee 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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{¶ 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 
January Term, 2012 

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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-homerule 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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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 
January Term, 2012 

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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. 
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{¶ 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. 
January Term, 2012 

9 

{¶ 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 
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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 
January Term, 2012 

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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-wastemanagement 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 
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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. 
January Term, 2012 

13 

Other State Supreme Courts 

{¶ 33} Although Withrow and Am. Landfill are instructive as to the feeversus-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. 
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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 revenueraising 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 
January Term, 2012 

15 

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.) 
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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). 
January Term, 2012 

17 

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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 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. 

______________________