The Affton Fire Protection District is asking that a lawsuit filed against it by the city of Crestwood be dismissed because, among other claims, fire district attorneys say city officials waited too long to file a suit.

Crestwood is suing the Affton Fire Protection District, or AFPD, Gov. Eric Greitens and Attorney General Josh Hawley in a bid to overturn two state laws that require cities that annex unincorporated areas in existing fire districts to take over the taxes paid by those residents. Crestwood pays nearly $500,000 a year to Affton under the laws.

In a response filed July 7, attorneys for the fire district deny most claims made by Crestwood in the lawsuit, as a state attorney representing the governor and attorney general did in a June 30 filing.

Crestwood’s lawsuit challenges two state laws that city officials were “instrumental” in helping to change over 20 years ago.

The suit seeks to overturn as unconstitutional the laws requiring the city to indefinitely make annual payments to the Affton Fire Protection District for providing fire service to an area the city annexed in 1997.

A nearly identical annexation proposal had been rejected by 16 votes in 1994, and then-Crestwood Mayor Jim Brasfield said at the time that he believed the question of whether the area would continue to be served by the Affton Fire Protection District was the reason for the defeat.

In May 1995, legislation approved by the General Assembly re-established the St. Louis County Boundary Commission and resolved the issue of fire protection in annexed areas. House Bill 446 stated, in part, “The annexing city shall pay annually to the fire protection district an amount equal to that which the fire protection district would have levied on all taxable property within the annexed area.”

Then-City Administrator Kent Leichliter told the Call in July 1997, “We were instrumental in getting that done,” meaning changing the state law to protect fire protection districts such as Affton.

Crestwood filed suit against the AFPD and state officials in May alleging that the law that created the Boundary Commission is unconstitutional because it is a special law that only applies to St. Louis County.

The Missouri Supreme Court declared those laws unconstitutional in the Greitens vs. Normandy case that overturned a post-Ferguson state law, Senate Bill 5, that barred St. Louis County municipalities from taking in as much of their revenue from court fees as the rest of the state.

Besides denying most of the claims Crestwood attorneys make in their lawsuit, both state officials and Affton attorneys said that the suit should be dismissed because Crestwood has waited decades to file suit against the fire district, a legal concept known as “laches.”

Crestwood officials used the Boundary Commission law to their advantage when they wanted to annex an unincorporated area into the city, but now are crying foul, AFPD attorney Frank Vatterott said.

“It’s the same law that’s in effect, so now they’re saying even though we took advantage of it in order to annex this area, now we’re saying that the same law we used to our benefit isn’t constitutional,” Vatterott said. “So it’s interesting. Crestwood passed this annexation knowing that in the future there would be increases in the tax rate as approved by voters, and now they don’t like it.”

In reviewing old files, Vatterott found that the AFPD opposed the annexation in 1997. So the decision to use the law was all Crestwood’s, he noted.

In a reply to Crestwood’s lawsuit filed June 30, Assistant Attorney General Emily Dodge denied Crestwood’s claim that the law governing the Boundary Commission is an unconstitutional special law and asked for the suit to be dismissed.

“The statutes speak for themselves, and defendants deny all allegations not in conformance with the statute,” Dodge wrote.

The state admitted that Greitens has “supreme executive power” as governor of the state and that Hawley is attorney general, but they did not agree with Crestwood on much else.

As for Crestwood’s central argument that special laws for St. Louis County are unconstitutional and should be overturned, Vatterott said the SB5 ruling does not retroactively apply to other laws.

“The special law cases are always prospective, which means from now on you can’t do it, but they’re not going to go backwards,” he said. “And even though the Boundary Commission is only in St. Louis County, it isn’t necessarily a special law because it only applies to one county.

“There’s a rational basis to the Boundary Commission and there isn’t any reason why another county couldn’t start one, but St. Louis County’s unique. We think we can defeat this special law provision because the boundary provision is clearly needed in St. Louis County and has been around for a long time.”

At Vatterott’s recommendation, the AFPD Board of Directors hired special counsel James Layton of law firm Tueth Keeny Cooper Mohan & Jackstadt to represent Affton taxpayers in the case. Former Missouri Solicitor General Layton recently argued for the state in the U.S. Supreme court case Trinity Lutheran v. Comer.

His home base is in Cole County, where Crestwood filed the lawsuit.

“Right now we feel confident that we can defend it well, and we have the best lawyer in the whole state to do that we think,” Vatterott said. “He’s got the experience, and he’s tried many cases all the way to the Supreme Court on these kinds of matters. We felt that the citizens of the Affton fire district deserve that.”

Crestwood is represented by colleagues of City Attorney Lisa Stump from her firm Lashly & Baer, James Hetlage and Brian Malone. Hetlage sometimes substitutes for Stump at city meetings.

Despite the pending legal battle, the two fire districts are still responding to calls alongside each other and still working together, Vatterott said.

“I can tell you without hesitation that the Affton fire board is empathetic to the financial struggles of Crestwood, we really are, we’re part of the neighborhood too, and we tried to find a solution,” he said. “We don’t have anything against Crestwood, there’s no animosity. They’re fine people. Their firefighters get along with the Affton firefighters as well, because they go to the same scenes many times. It’s just a matter for the courts and doesn’t affect our relationship with the Fire Department at Crestwood.”

In April, the fire district obtained voter approval of a 25-cent tax-rate increase, which will increase the annual cost Crestwood will pay to the district by over $90,000. The measure, Proposition A for Affton, increased the fire district’s tax rate to $1.49 per $100 of assessed valuation.

Since 1997, the city has paid Affton over $5 million.