Proposed Rain TAX Code Analysis

Urgent Notice: The Rain Tax and Proposed Cobb County Code Changes Threaten Residents' Rights and Finances

In September 2021, Cobb County experienced a devastating flash flooding event that laid bare the vulnerabilities of our stormwater infrastructure. Shockingly, many residents discovered a troubling reality: Cobb County's lack of record-keeping regarding shared community assets, including drainage systems for commercial areas, schools, and public parks, led to a bureaucratic nightmare. These essential components, running through residents' properties, were erroneously considered private, leaving homeowners burdened with unexpected repair costs.

Adding insult to injury, individuals who purchased homes under the assumption of regulatory oversight found themselves deceived. Despite engineering drawings explicitly highlighting stormwater requirements, Cobb County overlooked these crucial elements during building inspections and signed off on the non-compliance. Instead of offering assistance to affected residents, the county seized upon the crisis to fast-track the proposal of a new Rain Tax, purportedly to address stormwater concerns.

However, the proposed code changes reveal a distressing agenda. Not only does Cobb County intend to implement the Rain Tax, but it also seeks to reclassify shared community assets as private property. This maneuver effectively transfers the financial burden of maintenance and repairs onto residents, all while imposing additional taxation.

Even more alarming is the potential for draconian measures outlined in the proposed code. Residents face the specter of forced repairs, home liens, and property seizures if they cannot meet the county's demands. Moreover, these revisions absolve Cobb County of accountability for its past and future negligence, shifting the blame onto unsuspecting homeowners.

Compounding these injustices, the proposed code changes present a concerning loophole. While purportedly earmarked for stormwater management, the Rain Tax funds could be diverted as written for unrelated purposes through bond payments, including financing projects unrelated to infrastructure such as the MSPLOST.

This proposed legislation threatens the financial stability and property rights of Cobb County residents. We urge you to join us in opposing these detrimental code changes and demanding accountability from our local government.

Let's Examine the proposed code changes in detail.

1. Who's Responsible for Stormwater Infrastructure Maintenance?

The proposed code changes shift responsibility for maintaining stormwater infrastructure onto residents. According to Sec. 50-106.1 (i) and Sec. 122-304 (h), privately owned stormwater management systems and facilities, including drainage facilities, must be privately maintained. But what about shared community assets running through your property? The code makes those assets your responsibility unless you are lucky that the plats for your subdivision were updated with as-built design information that shows the county took those over. Many plats were not updated.  Who bears the responsibility, and how will this affect your finances?

Citation: Sec. 50-106.1 (i) and Sec. 122-304 (h)

Sec. 50-106.1. (i)  Stormwater management standards.

Stormwater management system inspection and maintenance. The components of the stormwater management system that will not be dedicated to and accepted by the county be privately owned and maintained, including all drainage facilities, best management practices, credited conservation spaces, and conveyance systems, shall have an inspection and maintenance agreement to ensure that they continue to function as designed. All new development and redevelopment sites are to prepare a comprehensive inspection and maintenance agreement for the on-site stormwater management system. This plan shall be written in accordance with the requirements in section 50-141.1.  

Sec. 122-304. - Scope of responsibility. (h)

“Stormwater management systems and facilities located on private property …

even if such systems and facilities are located in a drainage easement.  All maintenance

shall be at the sole cost and expense of the owners thereof.  “

2. What Constitutes Private Stormwater Management Systems and Facilities?

The code expands the definition of private stormwater management systems and facilities to include various natural (streams)  and manmade components, significantly increasing residents' maintenance responsibilities. Are you prepared to foot the bill for these structures?

Citation: Sec. 122-301 - Definitions

“Private stormwater management systems and facilities means those natural and manmade channels, swales, ditches, rivers, streams, creeks, branches, reservoirs, ponds, drainageways, inlets, catch basins, pipes, headwalls, storm drains, lakes and other physical works, properties and improvements which transfer, control, convey or otherwise influence the movement of stormwater runoff or water quality that are not public.”

3. Avoiding Liability: County's Strategy?

The proposed code absolves the county of any warranty or liability for actions related to stormwater management systems, potentially shielding the county from legal consequences for past oversights and building inspection failures. How does this provision affect homeowners seeking recourse for damages caused by negligence of the county?

Citation: Sec. 122-304. - Scope of responsibility (j)

 “If any permit, plan approval, inspection or similar act is required by the county as a

condition precedent to any activity … the issuance of such permit, plan approval or inspection shall not be deemed to constitute a warranty, express or implied, nor shall it afford the basis for any action, including any action based on failure to permit or negligent issuance of a permit, seeking the imposition of money damages or equitable remedies against the county, its commissioners, officers, employees or agents.”

4. New Development and Infrastructure Ownership:

Structural stormwater controls for new developments after May 1, 2024, will be owned and maintained by property owners' associations or homeowners' associations. How will this shift impact the county's ability to manage stormwater effectively? Why do they need more funds if they are doing less? Shouldn’t they need less funding?

Citation: Sec. 110-91. Structural stormwater controls

Sec. 110-91. Structural stormwater controls 

“Any development, whether residential, commercial, institutional, industrial, or office,

with a stormwater management plan approved after May 1, 2024, that includes structural

stormwater controls, such as retention ponds, detention ponds, etc., must organize and

establish a property owners' association or homeowners' association, as appropriate. … must provide that all structural stormwater controls, detention pond lots, and associated

improvements are owned by the association or are held in common by the property owners within the development.  … the right of the association to collect sums from the members for such maintenance of the structural stormwater controls and related improvements. The structural stormwater controls must be properly maintained with no liability or maintenance responsibilities accruing to the county.”

5. Enforcement and Penalties:

Failure of residents to maintain stormwater facilities could result in fines and enforcement actions, potentially leading to property liens and legal disputes. How will residents cope with the financial strain and legal implications of non-compliance and will they be forced out of their homes through Liens on their property?

Citation: Sec. 122-305. Nuisance (a)

Sec. 122-305.  Nuisance. (a)

“It shall be unlawful for the owner or the occupant of any private property … to fail to maintain such facility … or in accordance with the inspection Sould the owner fail to so maintain such facility, such failure shall constitute a public nuisance per se. …shall issue a summons to the owner of such property …to appear before the judge of the

superior court …each subsequent ten-day period … conditions adjudicated to be a nuisance by the judge … the director shall cause the nuisance to be abated … If the property is in a residential subdivision, the director may charge the cost and expense to all properties associated with the stormwater management facility. … If the charges and costs  …or a period of 30 days after notice … the director shall cause an execution to be issued against the owner of the property for those charges. The execution shall be a lien on the property and, when recorded in the general execution docket of the county, shall be a lien on all of the property of the defendant in execution from the date of such recording.   “

6. Taxation Scheme:

 The proposed Rain Tax targets everyone using impervious surfaces to extract as much money monthly as possible out of your pocket, burdening residents with additional monthly financial obligations. How will this tax impact households, renters, and property owners alike? Note that if you line your stream with rocks to control erosion the rocks are taxed.

Citation: Sec. 122-301. - Definitions

 “The tax will be on "paved, hardened, graveled, compacted, or structural surfaces, including, but not limited to, buildings, dams, decks, driveways, parking areas, patios, streets, swimming pools, tennis courts, walkways or other structures"

7. Accuracy:

The tax is really a color tax. Anything that doesn’t look green will be taxed. Aerial photography will be used to assess impervious surfaces for tax calculation, potentially leading to inaccuracies.

Citation: Sec. 122-312 (a)

"The area of impervious surface shall be calculated using the most recent urban features layer, developed from aerial photography, available in the county Geographical Information System or from county-approved development plans. "

8. Appeals.

How accessible and fair is the appeals process for disputing tax assessments based on these aerial photos? The burden is on you to hire professionals and file an appeal within 30 days to prove your appeal and there is no further appeal if the stormwater manager does not agree.

Citation: Sec. 122-316. - Appeals.

“An appeal must be filed in writing with the director or designee within 30 days of the

decision that is appealed.” 

“…the appeal shall include a survey prepared and sealed by a land surveyor or

professional engineer currently registered in the state …”

9.  Future Rain Tax Increases

According to the proposed code, the  tax can be increased at the whim of the Board of commissioners.

Citation: Sec. 122-311 (c)

" Changes in rates  and fees. The rates  and fees  charged by the county water system  for 

stormwater management services shall be revised from time to time by affirmative action 

of the county board of commissioners as necessary to support the financial needs of the 

county stormwater system. " 

10. Billing

Billing occurs monthly and is integrated into your water bill. This means that renters are also responsible for paying the rain tax or it will be passed through to them by the property owner. It's important to note that if the renter fails to pay, the responsibility falls back on the property owner. The tax is taken out first so please be aware that failure to pay the rain tax can lead to water service being shut off. or potentially a lein placed on the property.

Citation: Sec. 122-314:

(a)  “Water and/or Sewer Account Holders. Charges and fees shall be billed monthly. Charges and fees  shall be included on the parcel’s monthly water and/or sewer bill.   The water and/or sewer account holder is responsible for the stormwater charges even if the account holder is not the property owner. “ 

(c) “…Regardless of the party to whom the bill is initially directed, the owner of each parcel of developed land shall be ultimately obligated to pay such fee. …”

(d)  Payments. Any partial monthly payments made to the county water system shall be applied to stormwater fees before being applied to water and sewer fees.  Customer  shall be required to make payments necessary to keep the water and/or sewer fees current.

(e)  Delinquent  accounts.  Amounts due not  paid within 30 days from the due date are

delinquent.  “

11. Billing for Municipal Water Customers in Cobb County

For customers receiving water service from entities like Marietta Power and Water or other municipal providers but residing outside city limits, the billing process differs. So if you also pay into a municipal fund you could potentially be taxed twice.

Citation: Sec. 122-314 (b): “The owner(s) of parcels not billed by the Cobb water system for water and/or sewer will receive a stormwater-only bill, which may be issued monthly, bi-monthly, or quarterly.”

12. Late Fees

If you fail to pay within 30 days it is unclear if they turn your water service off OR put a lien on the property or both.

Citation: Sec. 122-312 (b)

"Late fees. Payment is due on the date listed on the bill. A late charge may be assessed for any balance unpaid after the due date in accordance with the rate or fee schedule on file”

13. HOA

 HOA are still responsible for maintaining the private stormwater in their neighborhood but Cobb County receives the tax payments to be used for other purposes.

Citation: Sec. 122-314 (b)

“For a parcel owned by a homeowners association that is not billed by the  Cobb water system for water and/or sewer, the impervious area for the  parcel may be allocated among all parcels included in the development rather than the homeowners association being billed.”

Citation: Sec. 110-91

“…Membership in the appropriate association must be mandatory for each original and

successive purchaser of a lot, building or unit within the development…. recorded declaration of covenants must provide that all structural stormwater controls, detention pond lots, and associated improvements are owned by the association or are held in common by the property owners within the development.”

14. Ensuring Proper Use of Rain Tax Funds

Currently, there are concerns regarding the allocation of Stormwater funds in Cobb County's general budget, potentially diverting these funds away from their intended purpose of stormwater management. While the proposed code specifies that the Rain Tax should be exclusively allocated to stormwater-related expenses, there's a significant loophole that could allow these funds to be diverted for non-stormwater purposes, including bond payments such as MSPLOST or other unrelated bonds.

Sec. 122-306 (c): “The county reserves the right to allocate any income and revenue generated from stormwater management systems and facilities, including stormwater service charges, towards the repayment of revenue bonds or other obligations. This provision allows for the possibility of rain tax funds being used for purposes beyond stormwater management, potentially including non-stormwater-related bonds.”

"Subject to the terms of any governing county water  or stormwater  system bond 

resolution, the county may pledge all or any portion of all income and revenue of any 

nature derived from the operation of the stormwater management systems and facilities 

owned  and/or maintained  by the county  water  department, including periodic 

stormwater service charges and other charges for stormwater service, to the payment of 

principal of premium, if any, and interest on any revenue bonds or other obligations 

lawfully issued  for county water  or stormwater  system  as  may be provided in any 

resolution authorizing such bonds or obligations or in any trust instrument relating to 

such bonds or obligations. "

Conclusion:

The proposed Cobb County code changes demand critical examination and citizen engagement. Understanding the implications of these revisions is paramount to safeguarding residents' rights and financial well-being. Join us in scrutinizing these changes and advocating for accountability and transparency in our local governance. The above analysis examines the code in an orderly fashion. You can read the proposed changes yourself at :