By Gloria Lloyd
News Editor
glorialloyd@callnewspapers.com

A judge could soon rule on the lawsuit between the city of Crestwood and the Affton Fire Protection District, after the case got its day in court this fall.

Crestwood filed a lawsuit in May 2017 in Cole County Circuit Court challenging the constitutionality of two state laws requiring the city to make annual payments to Affton. To overturn those laws, the city is also suing Attorney General Josh Hawley.

The laws require the city to make indefinite annual payments to the AFPD for providing fire service to an area that Crestwood annexed in 1997. The calculation of those payments is based on the fire district’s property-tax rate, which keeps creeping up as voters approve tax hikes, the lawsuit alleges.

Since 1997, the city has paid Affton Fire over $5 million, climbing to $500,000 a year.

Both sides got their first day in court in the case on Sept. 11, when attorney James Hetlage of Lashly & Baer argued on behalf of Crestwood to Judge Jon Beetem in Cole County Circuit Court in Jefferson City that two state laws should be struck down as unconstitutional.

Arguing against Crestwood’s motions for Affton was James Layton, a former Missouri solicitor-general who argued in front of the U.S. Supreme Court last year on behalf of the state of Missouri after Hawley recused himself from the Trinity playground case.

In every other county in the state, cities do not have to pay fire districts if they have a city fire department and annex an unincorporated area, Hetlage noted. But state law makes one exception — for St. Louis County fire districts. That makes the law a discriminatory special law just like others judges have recently ruled unconstitutional, he contended.

Another law mandates that Crestwood has to pay for the fire service of its annexed Affton residents indefinitely, even as Affton voters vote for higher taxes and non-annexed Crestwood residents — who live in what Hetlage called “old Crestwood” — don’t get a say in those tax hikes.

Former Mayor Gregg Roby and Crestwood resident Stefani Hoeing are also serving as plaintiffs alongside the city in the lawsuit. They are not allowed to vote on tax rates for the Affton Fire Protection District, Hetlage pointed out, but they have to pay them anyway.

“These two laws work together and create a scheme to create separate rules for cities located in St. Louis County,” Hetlage argued in court. “There is no rational basis for these laws, and if deemed special laws, there is no substantial justification for treating cities in St. Louis County differently than cities across the state.”

But the attorney for the Affton Fire Protection District, Layton, said that a judge who struck down a special law last year intentionally only applied that ruling going forward for future legislation, not to past legislation because of the chaos it might cause.

“I’m baffled by the concept that there’s no rational basis in treating St. Louis County differently,” he said.

The standard to gauge whether something is a special law is to look at whether the characteristics listed are “immutable,” under which no other county could ever qualify, Layton said. That would apply to phrasing that has been thrown out that says a law only applies to a “county next to a city not within a county,” but not to other descriptions used to single out St. Louis County in fire district law such as population, a Charter, first-class status or number of municipalities, he argued.

“The Supreme Court has said when challenging a statute, if there is a way to construe a statute so that it is constitutional, you have to,” Layton said. “If there is a way to construe it so that it will not be a special law, your obligation is to do so.”

City, fire district stand by their cases

The officials at the helm in Crestwood and the Affton fire district, City Administrator Kris Simpson and Fire Chief Nick Fahs, both attended the court arguments in Jefferson City, and both believe that their cases are solid and that they will prevail in court.

“I feel very good about our case,” Simpson said. “I think anyone you talk to in the community, when you explain the situation that’s facing us, recognizes that it seems fundamentally unfair that it should work this way.”

Residents seem to understand when the city’s legal arguments are explained to them that the city can’t keep paying Affton, Simpson said.

But Fahs sees it all as a waste of taxpayers’ money that was initiated by Crestwood, since it was Crestwood’s idea to annex Affton.

“When I sit there and I watch those lawyers sit there and speak about this, this is taxpayers’ money that’s paying to argue about something which we shouldn’t even be here,” Fahs said. “We’re going to defend our residents, but we did nothing wrong.”

They expect a decision early next year, since the judge may wait until the Missouri Supreme Court delivers a ruling in another case on special laws, Chesterfield’s lawsuit on whether the county’s pooled sales tax is unconstitutional.

Affton Fire Attorney Frank Vatterott feels that the Chesterfield case favors Affton’s side, and that was decided by the same judge.

Both sides expect the other side to appeal the case from the Cole County level, and since the issue is a constitutional one it would go directly to the state Supreme Court rather than the appellate courts. The lawsuit may not be fully decided until the end of 2019, Simpson said.

If Crestwood wins, annexed residents would be switched to services under the Crestwood Fire Department, said new Mayor-elect Grant Mabie, who lives in the annexed area.

The AFPD has budgeted $150,000 for legal services this year for the lawsuit.

So far, the lawsuit has cost Crestwood $80,192.07. The city makes back that money the first year if it wins in court, Simpson said.

“I think the facts are pretty clear that nothing has changed since Crestwood agreed to this in the late 1990s, and I think it’s just a big waste of money to be honest with you,” Fahs said. “Now they’re basically saying the law that they helped create is unconstitutional. So from our fire district standpoint, we’ve done nothing wrong. They were always our residents, and Crestwood asked them if they wanted to join. You asked for this to happen — you said this was a way for everybody to be happy. ‘You can join Crestwood and keep the fire protection that you want.’”

The annexed residents had previously voted against being annexed, which the city attributed to their wish to keep the AFPD for fire services.