The decision as printed
Massachusetts Appeals Court · from CourtListener · released Aug 2, 1989 · 4 pages · 210 KB
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645 Ct. 645 Mass. 27 App. Winthrop Authority. Winthrop v. Housing Housing Winthrop Winthrop & vs. Town of another1 Authority. 88-P-222. No. — Suffolk. 1989. 1989. 2, June 5, August & Greaney, JJ. C.J., Kass, Warner, Present: Sewers, Taxation, Sewer assessment. Municipal Fees. Corporations, Sewer. system, common assessed charges the use of a town’s sewer Annual for sewers particular who elected to connect their against owners property consumption, did yearly based of metered water percentage and on a a housing or from which either a tax a assessment special not constitute 121B, § L. provisions under of G. c. 16. authority exempt was [646-648] Civil action commenced in the Court Department Superior 23, on December 1986. Prince, J., The case on a motion was heard Robert S. by for summary judgment. the Steven T. for defendant. Alpert Hobin, Jr., of & another. Thomas J. for the town Winthrop 16, Warner, 83, § to G. L. c. as amended J. Acting pursuant 1961, 311,2 of St. the of selectmen of the town c. board by (town), the board of sewer commissioners as Winthrop acting for of the (board), established annual the use town’s charges assessed common Those were system. charges against sewer who a sewer.3 The Win- owners connected particular property 1 acting of as the board Winthrop, The board of selectmen the town of sewer of commissioners. 2 commissioners, selectmen or any city “The aldermen of or the sewer town, just time establish and may road commissioners of a from to time sewers, be charges for of common which shall equitable annual the use The every money therein. by particular who enters his sewer paid person to of the maintenance and may so received be the cost of applied payment any purposes.” of or of contracted for sewer repairs such sewers debt 3 in charge system use order to adopted The town the sewer apparently Environmental grant with the terms of a from the United States comply 646 27 Mass. Ct. 645 App. Housing v. Winthrop Winthrop Authority. five throp Housing Authority (authority) multi-unit operates in the town and housing connects each to the common projects sewers. The has refused to the town’s authority pay charges, that constitute a tax or from claiming they assessment special which the is under the of L. authority G. exempt provisions 4 121B, § c. 16.- On cross motions for summary judgment in the board’s action for a brought a declaratory judgment, in entered the Court that the judgment town’s Superior declaring did not constitute a tax or assessment and that charges special 83, the was bound to them under § G. L. c. 16. authority pay 1. An of whether the involved constitute analysis a charges fee, contends, tax, user or as the board or a permitted charge as the the of authority argues, requires application principles Boston, set out in (1984). Emerson v. Mass. 415 College 391 “Fees a tend to fall by into one imposed governmental entity fees, of two user based on the of principal categories: rights used, the as of the instrumentalities entity proprietor Opinion Justices, 591, the 250 (1924), Mass. 597 or fees regulatory of fees), and founded on the (including licensing inspection police activities, to businesses or id. at 602. power regulate particular 415, Nichols, (1830); See Boston v. Pick. P. Schaffer, 9 419 (3d 1938). Taxation in Massachusetts 6-9 ed. Such fees share common traits that them from taxes: are distinguish they in for a service charged exchange particular governmental which benefits the the fee in a manner ‘not shared party paying other members of National Television Cable Assn. by society,’ States, 336, v. United 415 341 (1974); U.S. are they paid by choice, in that the the fee has the of not party paying option the service and the utilizing governmental thereby avoiding FERC, 630, (D.C. v. 571 F.2d 644 n.48 Vanceburg charge, Agency Protection under the Clean Water Act of See 33 U.S.C. 1977. (1982) §§ charges 1251 et “The intent of the Act with to user seq. respect to operation publicly is distribute the cost of and maintenance of owned treatment works to the source and to of pollutant promote self-sufficiency treatment with to and costs." 40 C.F.R. respect operation works maintenance 35, E, B(c). Pt. Subpt. App. 4 tangible housing authority “The real estate and of... a personal property special . . . shall be from taxation and from betterments and assess- exempt ments . . . .” 27 Mass. Ct. 645 App. 647 Housing v. Winthrop Winthrop Authority. denied, 1977), Cir. cert. 439 U.S. (1978), 818 and the charges are collected not to raise revenues but to the compensate gov- ernmental the services for its entity providing (foot- expenses” omitted). Boston, note Emerson v. Mass. 424-- College 391 at 425. See Southview v. Co-op. Housing Rent Control Corp. 395, 402 Bd. (1985); 396 Mass. Cambridge, Commonwealth of Caldwell, 91, v. 25 Mass. (1987). Ct. 95 We think App. town sewer use in this case charges the substantially satisfy three-part test of the Emerson case. College First, the benefits of the common sewers are conferred only on those who connect their sewers to them. The particular use of the common sewers is “a benefit distinct from that originally conferred it.” by building Carson v. Brockton Sewerage Commrs., 242, 175 Mass. 244 (1900), aff’d 182 U.S. 398 (1901). The benefits are thus see “sufficiently particularized,” 425, Emerson Mass. College, 391 at so as to the user qualify as a fee. charge Second, one a although connecting sewer to the particular common sewers must the user the pay charges, charges nevertheless are only on those imposed to use choosing the service. See Southview Co-op. v. Rent Housing Corp. Control Bd. Cambridge, 396 Mass. at 402. The burden of proof of was on the to show that the authority were not fees charges but taxes. See id. at 403. “In the absence of an appropriate health and measure a safety sewer requiring connection . . . we seem to have assumed that the use of the common sewer is a matter for decision the owner.” v. by Board Fluharty of Hardwick, Selectmen 14, 382 Mass. (1980). 17 is There of in the record nothing before us to indicate that the authority did not have the choice whether to utilize the town’s common sewers. Third, the user are based charges a of upon percentage yearly metered water are to consumption. They imposed compensate the town for its costs of and maintenance of the operation common sewer and system assessment from the any Massachu- setts Water Resources or the District Authority Metropolitan Commission for the collection and treatment of waste water from the The town. defendant makes no there that argument 645 27 Ct. Mass. App. 648 Housing v. Authority. Winthrop Winthrop between and lack of a reasonable the charges is a relationship and the South- See maintaining system. the costs of operating Cambridge, v. Rent Control Bd. Co-op. Housing Corp. view of Caldwell, 402-403; at at Commonwealth v. 96-97. supra supra that sewer use are fees and not charges The view we take the of which jurisdictions is shared by great majority taxes in Anti- the See the cases collected have considered question. eau, (1988); McQuillin, § Law 19D.04 Municipal Corporation 1988); (3d § 31.30a ed. 1983 & Municipal Supp. Corporations (1957). § Law 20.5 Rhyne, Municipal that the conferred on The argues power authority sewer as a to commit use charges municipalities delinquent tax, 83, 16B-16D, §§ c. of the estate see G. L. shows real part to treat the as taxes for all a intent legislative charges purposes. however, statutes, between a and “charge” Those distinguish Indeed, § 16C for commitment of delinquent a “tax”. provides tax.” “as a The Legislature’s on charges tax-exempt property between and taxes is intent to the distinction charges preserve 83, 16G, § clear in L. c. which deals made G. abundantly from certain the deferral of due charges elderly persons with tax The scheme statutory entitled to real estate exemptions. collection, authorizes, an as one means of expeditious simply method in already place. in user charges 2. The the alternative that the authority argues assessments, G. from which it is under L. are exempt special 121B, for § be local c. 16. assessments may “Special imposed of the value real pro- which enhance property, improvements of the ben- the are not in substantial excess vided assessments Boston, at v. Mass. 418 efits received.” Emerson 391 College Here, annual for sewer use are not charges imposed n.5. the of value but for the use an which enhances any improvement 14, 80, 1; 83, §§ 15 § c. c. G. L. existing system. Compare 399, Mass. See v. 356 Realty Bedford, & 17. Exeter Corp. (1969). 403 Judgment affirmed.