Friday, October 24, 2008

Stormwater fee = Illegal tax

I recently read the case of Silva v. City of Fall River (you can probably skip the actual case and just read the Boston Globe article or just read my following summary):

Silva, a Fall River funeral director, sued Fall River alleging that their $20 burial permit fee charged by city was not actually a fee (as defined by MA law) but rather an illegal tax. The court agreed and issued a judgment against Fall River. The Boston Globe article stated, "(Fall River)city officials predicted the ruling will make it harder to enforce their regulations and collect other fees." This brings me to my main topic - The Stormwater "FEE"/illegal tax

As a Massachusetts municipality, Fall River does not have the sole authority to impose new taxes on its residents, hence their love of fees. The Silva case, and many prior and subsequent, indicate that a fee is only legal if it meets all three of the following factors:

1. The fee must be charged in exchange for a governmental service that benefits the party paying the fee in a manner not shared by other members of society; and

The Court agreed with Silva's argument in the burial fee case, that even if Fall River provided a particularized service for the fee, he received no special benefit from the receipt of a burial permit because proper and timely disposition of human remains is a public health function that benefits the community at large. This rationale is analogous to the public health function of water drainage that benefits the community at large. Water drainage is clearly a benefit shared by other members of society and any fee on that service would not meet this prong of the fee legality test.

2. a fee is paid by choice, in that the fee payer has the option of not utilizing the governmental service and thereby avoiding the charge; and

According to the case law of Emerson College v. Boston, whether a person may choose to avoid a fee is determined by whether the person challenging the fee may avoid engaging in the activity for which the charges are assessed. Since I have yet to harness the power of precipitation, I clearly do not have an option of whether to engage in the 'activity of stormwater runoff.' = Yet another factor of that is not met with the stormwater runoff fees further rendering them illegal.

3. the charge must be collected not to raise revenues but to compensate the governmental entity providing the service

This factor would likely be satisfied because of the CSO project the fees are purported to fund. However, if it is determined that the fees are not going to serve that purpose or one directly related to the runoff service, this factor will not be satisfied.

Wednesday, October 15, 2008

Watuppa Heights Meeting Tonight

An important reminder, courtesy of Tom Paine:

Mayor Correia's new plan for Watuppa Heights will be reviewed by a council subcommittee tonight at 5:15 in the City Council Chambers at City Hall.

Remember what Correia wants to do:

1. Build at least 60 units at the current Watuppa Heights site....he said in 2002 he was going to build 26 single family homes there. He was the one that made a change to the original bill in early 2002 for 26 single family homes. What happened to his plan????

2. Build an additional 20 units off site on current city owned vacant land. Where is this land?? No answers yet!!

3. We!! Yes we!! have to come up with at least $4million. Where is Mayor Correia going to come up with $4million. I do not want to hear maybe from HUD, or maybe Community Development, we want to know where!!

4. In 2002 he said the 26 single family home plan was a done deal. What happened to the done deal. We were hoodwinked!

People- try to make this meeting.

Saturday, October 11, 2008

Getting to know: The Fall River Office of Economic Development and the Redevelopment Authority

Recent reader comments on Fall River Community expressed some curiosity about the Fall River Office of Economic Development and the Redevelopment Authority. I am still trying to figure out the operation myself but the following clip from Redevelopment Chair, John Almeida, indicates that their group turns little piles of crap into things.....(although I seem to recall the RDA taking a flourishing business, the Dockside Lounge, and turning it into crap).

Some background on the clip - the Fall River Office of Economic Development (Ken Fiola) and the Redevelopment Authority (John Almeida) were before the city council to request/discuss their takeover of the downtown parking garage. A venture which they clearly, based on the full meeting, had not researched whatsoever.

Please enjoy getting to know your Fall River Redevelopment Authority/Fall River Office of Economic Development!

They really shouldn't let Mr. Almeida do any speaking for the organization. He couldn't look any more disinterested.

Sunday, October 5, 2008

Safest Block in Fall River

I just drove by the Regatta because I like living dangerously. After counting 11 police cars (and probably more hiding in the nooks and crannies) in the immediate vicinity of the Regatta, it is obvious that the city is sending a message to criminals and to the Regatta owners/managers.