Cincinnati’s potential plan for $300 parking permits in OTR may violate Ohio law

The Cincinnati Business Courier reports that city officials' potential plan to raise fees for residential parking permits in Over-the-Rhine in order to provide funding for the streetcar may be unlawful under a 2012 Ohio Supreme Court case. According to the Cincinnati Enquirer, streetcar operations are expected to cost the city about $3.8 million a year, and city officials are seeking ways to secure funding for this, including a revamped parking plan. Some aspects of this could include a $300 annual residential parking permit for OTR residents and parking meters that would be enforced until 9pm and cost a dollar an hour, instead of the current rate of 50 cents. The $300 cost for a parking permit would likely be the highest in the country, including cities such as San Francisco, where an annual pass is $100 and Columbus, where it is $25, the Enquirer reports.

The case that may prove troublesome for aspects of this parking plan is Drees v. Hamilton Township, which originated in Warren County. In this case, Hamilton Township created impact fees to be charged to applicants for zoning certificates for new construction and redevelopment. The Township's stated purpose for the fees was, essentially, to provide funds for the Township so that it would be able to provide services (such as police, fire and parking) to the new properties to the same extent that it provided services to existing properties, acting as an offset to the additional services that would be required because of the new development.

As reported by the Business Courier, the Ohio Supreme Court found that these impact fees were an unconstitutional tax and as such were not permissible. In reaching this decision the Court focused largely on the use of the revenue raised, citing a Sixth Circuit case that held, "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." The Court found that the impact fees were revenue-generating measures that benefited the entire township and thus a tax, and held that, "When the amount of the fee exceeds exceeds the cost and expense of the service, the fee constitutes a tax."

According to former Cincinnati City Solicitor John Curp, in an interview with the Business Courier, the city's potential plan to raise the cost of residential parking permits could run afoul of the Court's decision in this case. The Courier reports that "courts are likely to look at the streetcar as a part of the city's public transportation system, one that has been funded, in part, by taxes levied on everyone," and that Curp has stated, "You can't tax a narrow group of people for a general public program," because of the equal protection issues it raises.

Although the city is likely to argue that the streetcar will primarily benefit downtown and OTR residents and business owners, the increased cost for parking permits could still be problematic, as Curp explained, "You're trying to say that one segment of a regional transportation project can be segregated from the rest of the network. That's going to be a difficult argument to make. We don't divide the bus routes up and assess their cost to the neighborhoods through which they run." Curp did suggest that the other aspect of the potential parking plan, raising meter rates and enforcement times, would likely be permissible, as it does not target one group of people, but would apply to the general public.