West Chester Borough Council could vote Wednesday, Sept. 16, to repeal the Stream Protection Fee, a stormwater charge worth about $1.2 million a year. The Pennsylvania Supreme Court struck down the fee as an unconstitutional tax on April 30.

The public hearing on repealing Chapter 94A of the borough code is set for 6:30 p.m. at Borough Hall, 401 E. Gay St. Council could enact the repeal the same evening, MyChesCo first reported.

The fee's elimination leaves a gap in the borough's finances heading into 2027. Borough officials have identified three possible ways to fill it: raising property taxes, increasing parking rates or cutting stormwater spending. Those decisions are expected during 2027 budget deliberations, not as part of Wednesday's repeal vote.

No public statements from borough council members on the repeal appeared in meeting records as of Sept. 15.

How the fee was struck down

The borough enacted the Stream Protection Fee in June 2016 under Ordinance No. 5-2016. It applied to every developed property in West Chester, including government-owned and nonprofit parcels, and was calculated based on impervious surface area. A homeowner with 1,000 to 1,500 square feet of impervious area paid $100.56 a year, according to the borough's program page. Larger commercial properties paid more.

West Chester University refused to pay. The university, a Commonwealth entity, argued the charge was a tax and that it was immune from local taxation. The borough sued.

On April 30, the Pennsylvania Supreme Court sided with the university in Borough of West Chester v. Pennsylvania State System of Higher Education, No. 9 MAP 2023. Justice Kevin Brobson, writing for a four-justice majority, held that the borough ran its stormwater program as a public duty. The program was driven by federal Clean Water Act and state permit requirements, not structured as a voluntary service to individual property owners, according to a legal analysis by McNees Wallace & Nurick.

That made the charge a tax, not a fee.

Justice Sallie Mundy wrote a concurrence leaving open the possibility that a differently structured stormwater charge in another municipality could survive legal challenge.

What it means for property owners

The borough stopped collecting the fee from all property owners on April 30. Budget documents had projected $1.2 million in fee revenue for 2026, up from $1.1 million budgeted for 2025.

The ruling did not address whether the borough must refund fees already collected, according to an analysis by Eckert Seamans. That question remains unresolved.

West Chester still holds a municipal stormwater permit and must comply with federal and state clean-water regulations. The infrastructure and compliance costs have not gone away.

The meeting packet for Wednesday's hearing is available on the borough's website.