[Cite as Steeplechase Village, Ltd. v. Columbus, 2020-Ohio-7012.]

 IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Steeplechase Village, Ltd., : 

 

 Plaintiff-Appellant, : 

 No. 19AP-736 

v. : (C.P.C. No. 16CV-2436)

City of Columbus, Ohio, : (REGULAR CALENDAR) 

 

 Defendant-Appellee. : 

 

 

D E C I S I O N 

Rendered on December 31, 2020 

 

On brief: Plank Law Firm, LPA, and David Watkins, for 

appellant. 

On brief: Zach Klein, City Attorney, Janet R. Hill, and Sarah 

M. Harrell, for appellee. 

 

APPEAL from the Franklin County Court of Common Pleas 

BEATTY BLUNT, J. 

{¶ 1} Plaintiff-appellant, Steeplechase Village, Ltd. ("Steeplechase"), appeals from 

the judgment of the Franklin County Court of Common Pleas granting the motion of 

defendant-appellee, the City of Columbus (the "City"), for summary judgment and denying 

the motion of Steeplechase for summary judgment. For the following reasons, we affirm 

the judgment of the trial court. 

I. Facts and Procedural History 

{¶ 2} This case arises from a dispute concerning stormwater charges assessed by 

the City upon, and paid by, Steeplechase between June 15, 2008 and August 3, 2018. (See 
No. 19AP-736 2 

generally, March 10, 2016 Compl.; May 24, 2017 Am. Compl.) Steeplechase is an Ohio 

limited liability company which owns 102.4 acres of real property with improvements (the 

"Property"). (Am. Compl. at ¶ 1-2.) The Property is a residential community with 404 

rental units which include apartments, single family homes, and duplexes. (Landrum Dep. 

at 8:21-9:1.) It is undisputed that the Property is located within the City of Columbus. 

{¶ 3} Approximately 6 acres at the northwest corner of the Property drains north 

and west towards Canal Road. (Oct. 3, 2018 Stipulation.) Approximately 4.8 acres of the 

Property along the east side of Shook Road drains east into channels and drainage systems 

of the Property developed to the east of the Property at Donn Eisele Street. Id. The 

remaining approximately 91.6 acres of the Property drains through open channels located 

on the Property to the south into the open channel adjacent to Canal Road. Id. 

{¶ 4} Gregory Horch, the City's GIS1 analyst, prepared the Steeplechase 

Stormwater Drainage Maps (the "Drainage Maps") and at his deposition he provided 

testimony regarding the Property's stormwater drainage. (Horch Aff. at ¶ 4-5, 8, 10-11; 

Horch Dep. at 7, et seq.; Drainage Maps.) Horch testified that the Property contains 

stormwater closed channels, or underground pipes or field tiles, which are private and not 

maintained by the City. (Horch Dep. at 8-9.) Stormwater drains from the Property to the 

south into stormwater open channels, which are ditches or streams. Id. at 9. The stream 

immediately south of the Property is within Franklin County but is not within the 

boundaries of the City. Id. However, that stream flows into the Canal Road Channel, which 

is within the boundaries of the City. Id. at 9-10. 

 

1 "GIS" is an acronym for Geographic Information System. (Horch Aff. at ¶ 3.) "GIS is a computer system 

which captures, stores, checks and displays data related to positions on the earth's surface* * *GIS systems 

can include, among many other things, information about the landscape, such as the location of streams and 

other waterways, storm drains, and roads." Id. 
No. 19AP-736 3 

{¶ 5} Between June 15, 2008 and August 3, 2018, the City assessed $365,014.78 in 

stormwater charges upon the Property. (Pl.'s Mot. For Summ. Jgmt. Exs. C and D.) 

Steeplechase paid the charges. Id. 

{¶ 6} On March 10, 2016, Steeplechase filed a complaint in the Franklin County 

Court of Common Pleas. (See generally, March 10, 2016 Compl.) An amended complaint 

was filed on May 24, 2017, naming the City as the sole defendant. (See generally May 24, 

2017 Am. Compl.) The amended complaint sets forth five demands for relief: 

(1) declaratory judgment of the rights of Steeplechase under City Code Chapter 1149; (2) 

declaratory judgment finding that City Code Chapter 1149 is an illegal and unconstitutional 

tax; (3) a refund of charges; (4) declaratory judgment finding that an open channel in the 

City through which some of Steeplechase's stormwater drains is actually not located in the 

City; and (5) preliminary and permanent injunction enjoining the City from imposing 

stormwater charges on Steeplechase's property or, in the alternative, a declaration that the 

amount of stormwater charges assessed upon Steeplechase's property is excessive. Id. 

{¶ 7} On October 15, 2018, each of the parties filed a motion for summary 

judgment pursuant to Civ.R. 56. On October 3, 2019, the trial court issued a decision which 

granted the motion of the City and denied the motion of Steeplechase. (Oct. 3, 2019 

Decision.) The decision was made final in a judgment entry issued on the same day. (Oct. 3, 

2019 Jgmt. Entry.) 

{¶ 8} This timely appeal followed. 

II. Assignments of Error 

{¶ 9} Appellant assigns five errors for our review: 

[1.] The Trial Court erred by failing to enforce the plain 

language of Columbus Code of Ordinances Sec. 1149.03. 
No. 19AP-736 4 

[2.] The Trial Court erred by finding that there was no 

genuine issue as to any material fact and Appellee was entitled 

to judgment as a matter of law. 

[3.] The trial Court erred by finding that the stormwater 

charges imposed by the City on the Property were fees and not 

taxes. 

[4.] The Trial Court erred by finding that Appellant was not 

entitled to a refund of stormwater service charges. 

[5.] The Trial Court erred by finding that Appellant was not 

entitled to an injunction. 

III. Standard of Review 

{¶ 10} An appellate court reviews summary judgment under a de novo standard. 

You v. Northeast Ohio Med. Univ., 10th Dist. No. 17AP-426, 2018-Ohio-4838, ¶ 16, quoting 

Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567, 

¶ 19, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995). Summary 

judgment is proper only when the parties moving for summary judgment demonstrate: (1) 

no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as 

a matter of law, and (3) reasonable minds viewing the evidence most strongly in favor of 

the nonmoving party could reach but one conclusion, and that conclusion is adverse to the 

nonmoving party. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 

181 (1997).

{¶ 11} The party moving for summary judgment bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a genuine issue of material fact by pointing to specific 

evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). 

If the moving party fails to satisfy its initial burden, the court must deny the motion for 

summary judgment; however, if the moving party satisfies its initial burden, summary 
No. 19AP-736 5 

judgment is appropriate unless the nonmoving party responds, by affidavit or as otherwise 

provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial. 

Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).

{¶ 12} A fact is "material" if it "might affect the outcome of the suit under the 

applicable substantive law." Mitchell v. Mid-Ohio Emergency Servs., L.L.C., 10th Dist. No. 

03AP-981, 2004-Ohio-5264, ¶ 12. A "genuine" issue of material fact exists to prevent 

summary judgment only if "a reasonable jury could find that the evidence satisfies the 

evidentiary standards required at trial." Myocare Nursing Home, Inc. v. Fifth Third Bank, 

98 Ohio St.3d 545, 2003-Ohio-2287, ¶ 33. Additionally, a nonmovant's own self-serving 

assertions, whether made in an affidavit, deposition or interrogatory responses, cannot 

defeat a well-supported summary judgment when not corroborated by any outside 

evidence. White v. Sears, Roebuck & Co., 10th Dist. No 10AP-294, 2011-Ohio-204, ¶ 7. 

{¶ 13} Finally, "[t]rial courts should award summary judgment with caution, being 

careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco 

Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. 

Reynoldsburg, 65 Ohio St.3d 356 (1992). "Even the inferences to be drawn from the 

underlying facts contained in the evidentiary materials, such as affidavits and depositions, 

must be construed in a light most favorable to the party opposing the motion." Hannah v. 

Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67 Ohio 

St.3d 337, 341 (1993). 

IV. Law and Analysis 

A. First Assignment of Error 
No. 19AP-736 6 

{¶ 14} In its first assignment of error, Steeplechase contends the trial court erred by 

failing to enforce the plain language of Columbus City Code of Ordinances Section 1149.03. 

We disagree. 

{¶ 15} We begin with a brief overview of the City's stormwater utility and discussion 

of the sections of the Columbus City Code (hereinafter the "City Code") applicable to this 

case. It is undisputed that Ohio municipalities have the authority to own and operate 

utilities, including a stormwater utility, pursuant to the Ohio Constitution, Article XVIII, 

Section 4. Wooster v. Graines, 52 Ohio St.3d 180, 181 (1990). Thus, the City, as a 

municipality, has the authority to establish and maintain a utility and charge the public for 

the services provided so long as the rates are just and equitable and the funds collected are 

for the exclusive use of the utility. See id., citing R.C. 729.49 and 729.52. 

{¶ 16} The Columbus City Charter (hereinafter "City Charter") requires the City to 

charge consumers for utility service at a rate fixed by ordinance of City Council and made 

in an equitable manner to cover the cost of service in full. City Charter 118. In determining 

utility rates, consumers "shall be charged with and shall pay the current cost of 

maintenance, operation and supply, interest and principal on outstanding utility debt 

obligations, and losses sustained by depreciation." City Charter 119. Consistent with the 

City Charter, the City's stormwater management program charges scheme is established by 

Chapter 1149 of the City Code. City Code 1149, et seq. 

{¶ 17} Section 1149.01 of the City Code provides that "[s]tormwater management 

is intended to provide for the safe and efficient capture and conveyance of stormwater 

runoff, mitigate the damaging effects of stormwater runoff, correction of stormwater 

problems; to fund activities of stormwater management, and include design, planning, 

regulation, education, coordination, construction, operations, maintenance, inspection 
No. 19AP-736 7 

and enforcement activities, all for the protection of the public health, welfare, and 

safety." City Code 1149.01. Section 1149.01 further provides that monies collected from 

stormwater service charges "are to be utilized solely for the management of stormwater." 

Id. This mandate is expounded upon in section 1149.10, which establishes a stormwater 

operating fund and requires that one hundred percent of stormwater maintenance 

revenues and any miscellaneous revenues "shall be allocated to the stormwater 

operating fund." City Code 1149.10(b)(1) and (2). The stormwater operating fund may 

only be utilized: 

for the operation, maintenance and improvement costs of the 

stormwater system, the retirement of stormwater capital 

improvement program debt, the timely replacement of 

stormwater system equipment, and all other stormwater 

management program activities. 

City Code 1149.10(c)(1). 

{¶ 18} Pursuant to section 1149.05 of the City Code, "[a] stormwater service 

charge shall be imposed on each and every lot and parcel of land within the city, and the 

owner thereof." City Code 1149.05. The stormwater service charge "is deemed 

reasonable and is necessary to pay for the repair, replacement, planning, improvement, 

operation, regulation, and maintenance of the existing and future city stormwater 

system." Id. Stormwater rates are "designed to recover the cost of rendering 

stormwater service for the time period under consideration." City Code 1149.06. Rates 

are established "so as to maintain adequate fund reserves to provide for reasonably 

expected variations in the cost of providing services, as well as variations in the demand 

for services." Id. 
No. 19AP-736 8 

{¶ 19} Like many municipalities, the basis for the City's rate structure for 

stormwater charges is premised on the impervious area of each property. City Code 

1149.08; see also Def.'s Resp. to Pl.'s Mot. for Summ. Jgmt at 2. In adopting Chapter 1149 

of the City Code, Columbus City Council specifically determined that "the stormwater 

service charge should be just and equitable and reflect the relative contribution of 

stormwater runoff from a property * * * as a result of the collection of surface water, and 

should consider the impervious area of the various properties within the City, because the 

extent of storm and surface water runoff from a particular lot or parcel is largely a function 

of its impervious area." (Brief of Appellee at 7, citing Col. City Ordinance No. 1381-94.2) 

{¶ 20} "Impervious area" is specifically defined in the City Code as "areas that have 

been paved and/or covered with buildings and materials which include, but are not limited 

to, concrete, asphalt, rooftop, and blacktop." City Code 1149.02.006. All properties with 

impervious area within the City are assigned an "equivalent residential unit (ERU)," or a 

multiple thereof, based on the amount of impervious area of each property. City Code 

1149.08(a). Pertinent to the instant case is section 1149.08(a)(2), pertaining to nonresidential properties, which provides: 

Non-residential properties. Non-residential properties will 

be assigned an ERU multiple based upon the properties' 

individually measured impervious area (in square feet) 

divided by two thousand (2,000) square feet (one (1) ERU). 

This division will be calculated to the first decimal place and 

rounded according to mathematical convention. 

City Code 1149.08(a)(2). The City Code defines "Equivalent residential unit (ERU)" as "a 

value, equal to two thousand (2,000) square feet of impervious area of residential 

properties within the City of Columbus." City Code 1149.02.004. 

 

2 Although in its brief the City cites to Col. City Ordinance No. 1981-94, upon reference to the codification of 

the ordinance as set forth in Chapter 1149, it appears that the correct ordinance is actually No. 1381-94. 
No. 19AP-736 9 

{¶ 21} As stated previously, the Property owned by Steeplechase is a 102.4-acre 

parcel with 404 rental units, including apartments, single family homes, and duplexes. 

(Am. Compl. at ¶ 1-2; Landrum Dep. at 8:21-9:1.) Consequently, the impervious area of the 

Property results in a higher ERU multiple being assigned to it relative to a smaller, less 

densely developed property. Steeplechase did not challenge the ERU multiple assigned to 

the Property in its motion for summary judgment and does not raise this as an issue on 

appeal.3 (See Pl.'s Mot. for Summ. Jgmt. at 9.) 

{¶ 22} We now return to Steeplechase's first assignment of error wherein 

Steeplechase asserts the trial court erred by failing to enforce the plain language of section 

1149.03 of the City Code. The construction and interpretation of statutes is a recognized 

function of declaratory action. Town Ctrs. Ltd. Partnership v. Ohio State Atty. Gen., 10th 

Dist. No. 99AP-689 (Apr. 4, 2000). R.C. 2721.03 specifically provides that any person 

"whose rights, status, or other legal relations are affected by a constitutional provision, 

statute, [or] rule" may have determined "any question of construction or validity arising 

under the instrument, constitutional provision, statute, [or] rule * * * and obtain a 

declaration of rights, status, or other legal relations under it."

{¶ 23} The court's primary goal of statutory construction is to give effect to 

legislative intent. Silver Lining Group. EIC Morrow Cty. v. Ohio Dept. of Edn. Autism 

Scholarship Program, 10th Dist. No. 16AP-398, 2017-Ohio-7834, ¶ 34, citing State v. 

Banks, 10th Dist. No. 11AP-69, 2011-Ohio-4252, ¶ 13, citing State v. Hairston, 101 Ohio 

St.3d 308, 2004-Ohio-969, ¶ 11. To determine legislative intent, the court looks to and 

 

3 The City Code provides for a right to challenge the ERU multiple assigned to a given property "by filing an 

appeal with the administrator of the division of sewerage and drainage for adjustment thereof, stating in 

writing the grounds for the appeal." City Code 1149.09. 
No. 19AP-736 10 

gives effect to the statutory language without deleting or inserting words. Bailey v. 

Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 39-40, 2001-Ohio-236. The statutory 

language must be considered in context, and the court must construe words and phrases 

"according to the rules of grammar and common usage." (Citation omitted.) Silver Lining 

Group. at ¶ 34, citing Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 

¶ 16. 

{¶ 24} Where the words in a statute are " ' "free from ambiguity and doubt, and 

express plainly, clearly and distinctly, the sense of the law-making body, there is no 

occasion to resort to other means of interpretation." ' " Silver Lining Group. at ¶ 34, quoting 

Hairston at ¶ 12, quoting Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the 

syllabus. " 'It is only where the words of a statute are ambiguous, uncertain in meaning, or 

conflicting that a court has the right to interpret a statute.' " Silver Lining Group. at ¶ 35, 

quoting In re Adoption of Baby Boy Brooks, 136 Ohio App.3d 824, 829 (10th Dist.2000). 

An ambiguity exists only "if the language of a statute is susceptible of more than one 

reasonable interpretation." Id., citing Columbus v. Mitchell, 10th Dist. No. 16AP-322, 

2016-Ohio-7873, ¶ 6. 

{¶ 25} Section 1149.03 of the City Code, titled "Necessity for charges," provides as 

follows: 

It is hereby determined necessary for the protection of public 

health, safety, and welfare and to conform with federal, state, 

and local laws and regulations that a system of charges for 

stormwater service be established which allocates the cost of 

providing stormwater service to each user in such a manner 

that the allocated costs are proportionate to the cost of 

providing stormwater service to that user, insofar as those 

costs can reasonably be determined. 
No. 19AP-736 11 

(Emphasis added.) City Code. 1149.03. We find nothing ambiguous or uncertain in the 

language of this section of the City Code and we are therefore constrained to its construction 

according to the plain language used. Silver Lining Group. at ¶ 34-35. 

{¶ 26} Steeplechase argues that this section of the City Code "does not authorize the 

City to simply divide the operational costs of the entire stormwater system equally between 

all property owners in the City." (Appellant's Brief at 27.) But this is an incorrect 

characterization of the methodology utilized in Chapter 1149 of the City Code to assess 

stormwater charges. Instead, as discussed above, the City has adopted a system based on 

the amount of impervious area, defined in the City Code, for each parcel of property located 

within the bounds of the City of Columbus. All parcels with impervious area are assigned 

an equivalent residential unit ("ERU") multiple, and the stormwater charges for any given 

property are assessed based on the total number of ERUs assigned to that property. 

{¶ 27} As argued by the City, Steeplechase has not provided any evidence that shows 

the ERU methodology fails to result in reasonably determining "the cost of providing 

stormwater service to each user in such a manner that the allocated costs are proportionate 

to the cost of providing stormwater service to that user" as prescribed by 1149.03 or that it 

is otherwise flawed. Indeed, Steeplechase concedes that "it would be impractical for the 

City to analyze all properties within the City to arrive at a charge for each individual 

property." (Appellant's Brief at 11.) Furthermore, the assertion by Steeplechase that it's 

Property is "unique" is an assertion that could be made by virtually every owner of real 

property, for it is hornbook law that almost all real property is unique. Holstein v. Crescent 

Communities, Inc., 10th Dist. No. 02AP-1241, 2003-Ohio-4760, ¶ 16, citing Gleason v. 

Gleason, 64 Ohio App.3d 667, 672 (10th Dist.1991). 
No. 19AP-736 12 

{¶ 28} Steeplechase also misquotes and mischaracterizes the trial court's decision 

on this issue. First, contrary to Steeplechase's representation, the trial court's decision did 

not set forth as an undisputed fact that "[t]he City's cost of providing stormwater service to 

89% of the Property over the relevant time period was $0." (Appellant's Brief at 27.) Rather, 

the trial court actually stated, "[p]laintiff argues that the charges are excessive because the 

City's actual cost for providing stormwater service to the Property over the relevant time 

period is $0." (Emphasis added.) (Decision at 8.) Second, Steeplechase's assertion 

notwithstanding, the trial court did not "[hold] that it was proper for the City to 

disproportionately charge the Property so that the stormwater system 'overall' could 

function." (Appellant's Brief at 28.) Instead, the trial court was simply pointing out that 

despite the undisputed fact that there had been no need to perform maintenance of the 

channels into which the Property's stormwater directly flows to date, such fact was likely 

"due to the successful maintenance of the overall stormwater system," a necessity in order 

"for each individual part to function." (Decision at 11.)4 

{¶ 29} Put another way, merely because the City has not had to perform any 

maintenance to the channels into which Steeplechase's stormwater directly flows does not 

mean that the cost to provide stormwater service to the Property equals $0. As discussed 

previously, City Code 1149.05 provides that the stormwater service charge assessed to 

each property "is deemed reasonable and is necessary to pay for the repair, replacement, 

planning, improvement, operation, regulation, and maintenance of the existing and 

 

4 We further observe that this particular section of the trial court's decision was addressing Steeplechase's 

argument that Chapter 1149 of the City Code imposes an illegal and unconstitutional tax, not its argument that 

the charges assessed to the Property violate section 1149.03 as failing to be "proportionate to the cost or 

providing stormwater service" to the Property. We revisit the issue of "illegal tax versus permissible fee" in 

addressing Steeplechase's third assignment of error later in our decision. 
No. 19AP-736 13 

future city stormwater system." (Emphasis added.) Similarly, City Code 1149.06 

specifically provides that rates are established "so as to maintain adequate fund reserves

to provide for reasonably expected variations in the cost of providing services, as well as 

variations in the demand for services." (Emphasis added.) As the trial court aptly 

observed, "it is important for the City to have reserve funds * * * in the event that an 

emergency arises anywhere within the stormwater system, including the channels that 

service the Property." (Decision at 11.) 

{¶ 30} The admissible evidence in the form of the deposition testimony and affidavit 

of Gregory Horch demonstrates that Steeplechase's stormwater drainage flows from the 

Property through a series of closed channels and open channels to an open channel which 

is within the boundaries of the City (the Canal Road Channel). (Horch Aff. at ¶ 6-8, 10-11 

and attached Exs; Horch Dep. at 7-10.) Steeplechase has provided no evidence in rebuttal 

on this point. Therefore, the evidence shows that Steeplechase's Property is part of the 

City's stormwater system5 and is thus properly subject to 1149.03. Steeplechase's 

contention that the trial court improperly determined that section 1149.03 of the City Code 

permitted the City to disproportionately charge the Property in furtherance of the overall 

successful functioning of the stormwater system is unfounded and the trial court did not 

 

5 The City's stormwater system includes: 

all man-made facilities, structures, and natural watercourses owned by 

the city, or over which the city has jurisdiction by law to operate or 

maintain, used for collecting and conducting stormwater to, through and 

from drainage areas to the points of final outlet including, but not limited 

to, any and all of the following: conduits and appurtenant features, 

canals, creeks, catch basins, ditches, streams, gulches, gullies, flumes, 

culverts, siphons, streets, curbs, gutters, dams, floodwalls, levees, 

retention or detention facilities, rivers, public stormwater open channels 

and pumping stations. 

City Code. 1149.02.012 
No. 19AP-736 14 

fail to enforce the plain language of this section of the City Code. Accordingly, we overrule 

Steeplechase's first assignment of error. 

B. Second Assignment of Error 

{¶ 31} In its second assignment of error, Steeplechase asserts that the trial court 

erred by finding that there was no genuine issue as to any material fact and Appellee was 

entitled to judgment as a matter of law. We do not agree. 

{¶ 32} Steeplechase's second assignment of error is simply a variation of the 

argument presented in its first assignment of error that, in contravention of Section 1149.03 

of the City Code, the charges assessed are not proportionate to the actual cost of providing 

stormwater service to the Property. The argument fares no better under the second 

assignment of error than it did under the first assignment of error. 

{¶ 33} As discussed above, section 1149.05 of the City Code requires that a 

stormwater service charge be imposed on every parcel of property within the city, and 

the charge "is deemed reasonable and is necessary to pay for the repair, replacement, 

planning, improvement, operation, regulation, and maintenance of the existing and 

future city stormwater system." (Emphasis added.) City Code 1149.05. Stormwater 

rates are "designed to recover the cost of rendering stormwater service for the time 

period under consideration" and are established "so as to maintain adequate fund 

reserves to provide for reasonably expected variations in the cost of providing services, 

as well as variations in the demand for services." (Emphasis supplied.) City Code 

1149.06. 

{¶ 34} The admissible evidence in the form of the affidavit of Johnathan S. Lee and 

its attached exhibits show the City expended over $180 million on stormwater 

infrastructure improvements between 2005 and 2015. (Lee Aff. at ¶ 6 and Ex. D-2.) All of 
No. 19AP-736 15 

the funds expended came from the Storm Build America Bonds Fund, the Storm Recovery 

Zone Fund, the Storm Sewer Bond Fund, the Flood and Storm Sewer Fund, and the 

Stormwater Operating Fund established pursuant to section 1149.10 of the City Code. (Lee 

Aff. at ¶ 7.) Furthermore, none of the foregoing funds were expended for any purpose other 

than stormwater infrastructure improvements during the relevant time period, as would be 

prohibited by section 1149.10. Id. In addition to using the funds to cover operating costs, 

and as provided for in section 1149.06 of the City Code, the City also maintains a stormwater 

reserve fund. (See Lee Aff. at ¶ 5 and Ex. D-1.) 

{¶ 35} As thoroughly discussed under the first assignment of error, the City's rate 

structure for stormwater charges is based on the impervious area of each property, and each 

property with impervious area within the City is assigned an "equivalent residential unit 

(ERU)," or a multiple thereof, based on the amount of impervious area of that property. 

City Code 1149.08(a). As previously noted under the first assignment of error, Steeplechase 

has not submitted any evidence that would present a genuine issue of material fact as to 

whether the ERU methodology adopted by the City to assess stormwater charges fails to 

result in reasonably determining "the cost of providing stormwater service to each user in 

such a manner that the allocated costs are proportionate to the cost of providing stormwater 

service to that user" as prescribed by 1149.03. 

{¶ 36} Furthermore, although Steeplechase argues in its brief that section 1149.03 

"requires the City to address Steeplechase's concerns and to adjust the method of 

calculating Steeplechase's stormwater charges * * *," a plain reading of section 1149.03 

readily shows it does no such thing. (See Brief of Appellant at 37.) And while Steeplechase 

asserts that the City should "make a 'reasonable determination' of the costs of providing 
No. 19AP-736 16 

stormwater service to the Property," the City has already done exactly that via the adoption 

of the methodology based on impervious area and assigned ERUs. 

{¶ 37} In short, the trial court did not err in finding that there was no genuine issue 

as to any material fact and the City was entitled to judgment as a matter of law. Accordingly, 

Steeplechase's second assignment of error is without merit and it is overruled. 

C. Third Assignment of Error 

{¶ 38} In its third assignment of error, Steeplechase asserts that the trial court erred 

by finding that the stormwater charges imposed by the City on the Property were fees and 

not taxes. We find no merit in this assignment of error. 

{¶ 39} The Supreme Court of Ohio has acknowledged that there is no bright-line rule 

that distinguishes a tax from a fee. State ex rel. Petroleum Underground Storage Tank 

Release Comp. Bd. v. Withrow, 62 Ohio St.3d 111, 117 (1991) ("[i]t is not possible to come 

up with a single test that will correctly distinguish a tax from a fee in all situations * * *.") 

Therefore, "[d]etermining whether an assessment is a fee or a tax must be done on a caseby-case basis dependent upon the facts and circumstances surrounding each assessment." 

Id. at 115. 

{¶ 40} Although no single test exists for making the determination whether a given 

assessment is a permissible fee versus an illegal tax, the Supreme Court has provided 

guidance on this issue. In Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186, 2012-Ohio2370, the court expanded upon its earlier decision in Withrow and set forth four factors 

that tend to indicate that an assessment is a fee: (1) the assessment is "imposed in 

furtherance of regulatory measures to address a specified issue"; (2) the assessment is not 

placed in the general fund, but is used only to fund the specified purpose; (3) the assessment 

is " 'imposed by a government in return for a service it provides' "; and (4) the assessment 
No. 19AP-736 17 

involves "a specific charge in return for a service * * *." Drees at ¶ 16-20, citing and quoting 

Withrow at 111, 113, 116-17. 

{¶ 41} The Drees court also applied the three-factor analysis employed by the Sixth 

Circuit Court of Appeals in Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid 

Waste Mgt. Dist., 166 F.3d 835 (6th Cir.1999), which was gleaned from federal courts in 

the First and Ninth Circuits 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). This analysis is similar to that used in Withrow. Drees at ¶ 26. 

Under this analysis, in determining whether an assessment is a tax or a fee, "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.' " Id. at ¶ 27, quoting Bidart at 931. 

{¶ 42} In Drees, the court explained the classic distinction between a tax and a fee 

as follows: 

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. 

Drees at ¶ 28, quoting San Juan at 685. The Drees court further explained that with regard 

to the first two factors of the Am. Landfill analysis, " '[a]n assessment imposed directly by 

the legislature is more likely to be a tax than an assessment imposed by an administrative 
No. 19AP-736 18 

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.' " Drees at ¶ 29, quoting Bidart, 73 

F.3d at 931, citing San Juan, 967 F.2d at 685. 

{¶ 43} In Drees, the court acknowledged that "[m]ost assessments fall somewhere 

near the middle of the spectrum between a fee and a tax" and in these cases, it is the use of 

the funds which is the predominant factor in making the ultimate determination. Drees at 

¶ 30. " '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 [parties] is 

likely a fee.' " Id., quoting Am. Landfill, 166 F.3d at 837-38, citing San Juan, 967 F.2d at 

685; Bidart, 73 F.3d at 932. 

{¶ 44} In the case before us, we find as did the trial court that under either the 

Withrow or Am. Landfill analysis, the stormwater charges imposed by the City on the 

Property are fees–not taxes.6 We begin with applying the four Withrow factors. Under the 

first factor, we find the assessment is imposed to address the specific issue of the necessity 

for the maintenance, repair, and operation of the stormwater system. Thus, consideration 

of this factor indicates the stormwater charges are fees. 

{¶ 45} Under the second factor, as discussed previously, the stormwater fees 

collected by the City are kept in a special stormwater operating fund pursuant to City Code 

1149.10(b)(1) and (2) and are not placed in a general fund. Further, the stormwater fees 

collected are not used for any purpose other than the maintenance, repair, and operation 

 

6 We observe, as the City points out in its brief, that all of the cases relied upon by Steeplechase in support of 

its argument that the stormwater charges imposed by the City are impermissible taxes rather than permissible 

fees were decided prior to Withrow and Drees. Therefore, we find those cases wholly inapplicable to the 

instant matter. 
No. 19AP-736 19 

of the stormwater system as provided in City Code 1149.10(c)(1). Therefore, an application 

of the second factor indicates the stormwater charges are fees. 

{¶ 46} As for the third factor, we find that the stormwater charges are imposed by a 

government–i.e., the City–in return for a service that government provides: namely, the 

operation and maintenance of, and the costs of improvement to, the City's stormwater 

system. We are wholly unpersuaded by Steeplechase's argument that the City has not 

provided a service in exchange for its payment of the stormwater charges merely because 

the City has not needed to perform any work related to the channels into which 

Steeplechase's stormwater directly drains. As the trial court aptly reasoned: 

[w]hile no work may have been necessary on the channels 

where Plaintiff's stormwater directly drains, the stormwater 

system overall must function well for each individual part to 

function. Neglecting areas of the stormwater system could 

cause unsafe and potentially hazardous events, such as 

flooding, in other areas. Plaintiff has not noticed any issues 

with obstruction in the flow of the channels it utilizes, which is 

due to the successful maintenance of the overall stormwater 

system. 

(Decision at 11.) Furthermore, as observed by the trial court, the City Code specifically 

contemplates that a benefit is conferred upon all users directly or indirectly connected to 

the stormwater system. Section 1149.08 of the City Code provides "there is hereby 

charged to each user situated within the corporate limits of the City of Columbus, that 

is tributary directly or indirectly to the stormwater system of the city, stormwater 

charges as hereinbefore provided[.]" (Emphasis added.) City Code 1149.08. Therefore, 

the lack of a need for maintenance or repair to the channels into which Steeplechase's 

stormwater runoff flows does not indicate that no service has been provided to Steeplechase 
No. 19AP-736 20 

by the City. Accordingly, applying the third Withrow factor leads us to find the stormwater 

charges are fees, not taxes. 

{¶ 47} Finally, under the fourth factor, we find the stormwater charges much more 

closely resemble a fee rather than a tax because the stormwater charges are specifically 

imposed in exchange for the service of the operation and maintenance of, and the costs of 

improvement to, the stormwater system. Thus, the assessment involves "a specific charge 

in return for a service * * *" as set forth in Drees. (Citation omitted.) Drees at ¶ 16-20. 

Therefore, based on the foregoing, applying the four Withrow factors yields the conclusion 

that the stormwater charges are fees, not taxes. 

{¶ 48} Similarly, in applying the Am. Landfill factors we are compelled to conclude 

that the stormwater charges more closely resemble fees rather than taxes. Under the first 

factor, the stormwater charges are imposed directly by the City, as opposed to an 

administrative agency, supporting the possibility that the charges are taxes. Nevertheless, 

under the second factor, the stormwater charges are imposed upon a narrow class of 

parties: pursuant to sections 1149.05 and 1149.08 of the City Code, only owners of real 

property within the City who are "tributary directly or indirectly" to the City's stormwater 

system are assessed stormwater service charges. As for the third and final factor, the 

stormwater charges are not expended for general public purposes, but are utilized only for 

the maintenance, repair, and operation of the stormwater system as provided in City Code 

1149.10(c)(1). Therefore, an application of the Am. Landfill factors results in our finding 

that the stormwater charges are fees, not taxes. 

{¶ 49} In sum, under either of the analyses laid out by the Supreme Court in Drees 

as aids in determining whether a given assessment is a permissible fee as opposed to an 
No. 19AP-736 21 

illegal tax, we find that the stormwater charges assessed by the City against the Property 

are fees. Accordingly, we overrule Steeplechase's third assignment of error. 

D. Fourth Assignment of Error 

{¶ 50} In its fourth assignment of error, Steeplechase asserts the trial court erred by 

finding that it was not entitled to a refund of stormwater service charges. We disagree. 

{¶ 51} As we have determined and discussed above, Steeplechase is properly subject 

to Chapter 1149 of the City Code and the stormwater charges imposed upon the Property 

by the City were appropriately assessed pursuant to the City Code. Therefore, Steeplechase 

is not entitled to a refund of stormwater charges under City Code 1149.13(B). Accordingly, 

we overrule Steeplechase's fourth assignment of error. 

E. Fifth Assignment of Error 

{¶ 52} In its fifth assignment of error, Steeplechase asserts the trial court erred by 

finding that it was not entitled to an injunction. We find this assertion meritless. 

{¶ 53} In general, "[t]he purpose of a preliminary injunction is to preserve a status 

between the parties pending a trial on the merits." Proctor & Gamble Co. v. Stoneham, 140 

Ohio App.3d 260, 267 (1st Dist.2000). A party requesting a preliminary injunction must 

ordinarily show that: "(1) there is a substantial likelihood that the plaintiff will prevail on 

the merits, (2) the plaintiff will suffer irreparable injury if the injunction is not granted, (3) 

no third parties will be unjustifiably harmed if the injunction is granted, and (4) the public 

interest will be served by the injunction." Vineyard Christian Fellowship of Columbus v. 

Anderson, 10th Dist. No. 15AP-151, 2015-Ohio-5083, ¶ 11, quoting Stoneham at 267. The 

test for the granting or denying a permanent injunction is essentially the same as that for a 

preliminary injunction, "except instead of proving a substantial likelihood of prevailing on 

the merits, the plaintiff must prove that he has prevailed on the merits." Id., citing Great 
No. 19AP-736 22 

Plains Exploration, LLC v. Willoughby, 11th Dist. No. 2006-L-022, 2006-Ohio-7009, ¶ 12. 

A party seeking either a preliminary or permanent injunction has the burden of establishing 

its right to one by demonstrating clear and convincing evidence of each of the foregoing 

factors. Intralot, Inc. v. Blair, 10th Dist. No. 17AP-444, 2018-Ohio-3873, ¶ 31, citing 

Youngstown City School Dist. Bd. of Edn. v. State, 10th Dist. No. 15AP-941, 2017-Ohio555, ¶ 50 (further citations omitted.) 

{¶ 54} In this case, based on the preceding discussion and findings, Steeplechase 

failed to establish either a substantial likelihood of prevailing on the merits of its case or 

that it has prevailed on the merits. Therefore, the trial court correctly found an injunction 

was not appropriate and did not err in denying one. Accordingly, we overrule Steeplechase's 

fifth assignment of error. 

V. Disposition 

{¶ 55} For the foregoing reasons, each of Steeplechase's five assignments of error 

are overruled. Accordingly, the judgment of the Franklin County Court of Common Pleas 

is affirmed. 

Judgment affirmed. 

LUPER SCHUSTER, and BRUNNER, JJ., concur. 

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