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.

52 comments:

Fear and Loathing in Fall River said...

I think I might start up a privatized storm water runoff company, and provide an alternative runoff cheaper.

The city will be all for it because it will help satisfy their calling this a fee.

Now, if I can just figure out how to install my own private sewer system. Perhaps I can just buy time on the cities like they do with other deregulated industries. I think I am onto something...

Puck said...

Great post, Shamrock! You've obviously spent a signifcant amount of time researching this issue and I'm sure you did it for free. What are the odds that Atty. "I'm not overpaid, just underqualified" Frank gave even a moment of consideration to the legal implications of this fee?

I hope the Chamber of Commerce takes note and files suit against the city, and, if they win, is able to save some of the jobs that are being forced to leave because of King Bob's ignorance and arrogance.

Anonymous said...

The school committee needs to request that this fee of $365,000 appearing in this year budget be waivered and return the money to the school appropriation line item. The charging of this fee to school department buildings is ridiculous.

Anonymous said...

It's for the children, everyone needs to step up and take a pay cut- how about the city removing this added fee??

Anonymous said...

We need to find out how much money the City of Fall River pays for our schools outside of the Chapter 70 money the State gives us. The Gov already stated next year is going to be worse because state aid will be cut. What do we do then? We cannot even handle a budget with 114 milion from the State. How will we ever do with less. Thank God next year is election year. Let's get some people more interested in education than politics on the board

Anonymous said...

Good point, Shamrock do you know about the laws in regards to the public having access to all the information the school and admin are arguing over? Also on wsar the mayor presented a report on the numbers from alan silva and gave wsar a copy ?? Shouldn't the taxpayers have access to that as well if it is public information .
The mayor also indicated he was on the radio to keep us updated.

Anonymous said...

listen to all the interviews here:
http://wsar.com/

Anonymous said...

Just make a public records request...

http://www.sec.state.ma.us/pre/prereq/reqidx.htm

Anonymous said...

So how do we file legal proceedings against this "fee". What can we do, what do we need to do and who needs to do it?

shamrock said...

You could go to small claims court and do it yourself for the return of the fee if you were charged but that doesn't accomplish the real goal of having the "fee" declared invalid and permanently removed.

The unfortunate aspect is that an aggrieved party (someone who was assessed the "fee") would need an attorney and that is cost prohibitive. It would be great if a business that was being charged one of the giant runoff "fees" could afford an attorney and bring suit against the city.

(If any attorneys are reading and would care to volunteer for a little pro bono...feel free - I'll even do your research)

It blows my mind that the school department is being charged this "fee" and that the "fee" is a big part of their deficit.

Anonymous said...

Much like the "let's recall Bob Correia" junk that was big on all the blogs...this suit will go nowhere

shamrock said...

For the record, I never started or endorsed a campaign to recall Bob (although that probably would have "gone somewhere"). Even if the hypothetical suit you speak of goes nowhere, information is power and I am happy to empower people with by informing them of the laws surrounding the fee.

But if you prefer ignorance, I hear that it is blissful as well.

Anonymous said...

For the record, I never started or endorsed a campaign to recall Bob (although that probably would have "gone somewhere"). Even if the hypothetical suit you speak of goes nowhere, information is power and I am happy to empower people with by informing them of the laws surrounding the fee.

But if you prefer ignorance, I hear that it is blissful as well.

Actually, I didn't say you started a recall, just that it was around on the blogs. Of course, what's the point to blogging if everything isn't about you?
Let's see if there is a legal action over the fee.
As for ignorance being bliss, I guess you think there's really two choices. One is to be completely on your side. The other is to be ignorant.

shamrock said...

To be accurate, what you really said was, "the 'let's recall Bob Correia' junk that was big ON ALL the blogs." As someone with a blog, I was merely asserting the fact that I did not blog about that.

You seem really opposed to the dissemination of information, which is all I am really trying to do. I think if more people put in their 2 cents about the activities in the city, it would be a better place with less graft and fewer corrupt politicians.

Furthermore, if everything was about me, wouldn't I always blog about myself?

That being said, thank you for your input.

Anonymous said...

Shamrock,

Have you noticed anytime you provide information that the administration would not want the
everyday person to be aware of,
you get comments like above!

Must be a coincidence

Anonymous said...

Have you noticed anytime you provide information that the administration would not want the
everyday person to be aware of,
you get comments like above!

Must be a coincidence


It's true! There's a huge, secret well-funded conspiracy to shut down this blog. That's just how tremendously important this blog is.

Anonymous said...

Oh I don't think you can shut them down but obviously there are those that don't have anything of value to add to any discussions!

You should really get back to work,
your lunch hour should be over by now.

Anonymous said...

Oh I get it...you mentioned "lunch hour" to indicate I'm an hourly employee...as though it would be a shameful thing if I were.

Anonymous said...

you really read into things and make conclusory leaps

Anonymous said...

you really read into things and make conclusory leaps

Deductive reasoning and a certain amount of life experience may be a bit more to the point.

Anonymous said...

I meant you were on the 6th floor and should get back to work.

Anonymous said...

I meant you were on the 6th floor and should get back to work.

I do not have a position in government.

Anonymous said...

related

puck said...

To the anonymous who began at 21:23:

You take a very peculiar stance in being opposed to an effort to increase citizen awareness and education.

If knowledge is power, then increasing the public's knowledge equals increasing the public's power. Suppressing knowledge is the tactic of a dictatorship.

Thanks, Shamrock, for being a beacon of light in a very dark city.

Anonymous said...

You take a very peculiar stance in being opposed to an effort to increase citizen awareness and education.

If knowledge is power, then increasing the public's knowledge equals increasing the public's power. Suppressing knowledge is the tactic of a dictatorship.

Thanks, Shamrock, for being a beacon of light in a very dark city.


Knowledge by itself is not power. Acting on knowledge is power. Blogs are mostly rumor dissemination stations, with the odd dose of easy-to-obtain public record and stories lifted whole from the local newspaper, spiced with a healthy sprinkling of ego and conspiracy theory.

puck said...

Not one part of this particular blog posting could be construed as "rumor dissemination...etc." Don’t confuse blog commenters with the bloggers themselves.

It seems to me this post was based on careful research with only the spark for the research coming from a newspaper story about a similar legal issue.

I for one am pleased that there are people who care enough about this city to take the time to share their points of view and ideas, because theirs are often different and usually more incisive and thought-provoking than any we can get from other sources.

Anonymous said...

http://www.ntu.org/main

https://secure.lexi.net/ntu.org/main/title.php?id=19

EB

Fear and Loathing in Fall River said...

How is it, that 'deductive reasoning' brings you to conclude that an employee with a 'lunch hour' would be an hourly employee? Salaried employees are probably more likely to have and take lunch hours. Hourly employees, since they are only paid for work, generally work more eat less.

Where is your reasoning coming from?

Anonymous said...

It apparently comes from out of his butt as in he pulls it out of his ass or talks out of his butt...

Anonymous said...

It apparently comes from out of his butt as in he pulls it out of his ass or talks out of his butt...


Rapier wit from the underclass

Anonymous said...

I agree, the "deductive reasoning" guy did talk out of his butt and is probably low class.

This is getting off point said...

So is anyone aware of any company or large organization that is mounting a legal challenge to this fee?

Anonymous said...

I know some non profits that sent in the appeal form.

shamrock said...

I know that some of the "unconnected" residents of fall river had an attorney to help them get an exemption on the fee and they had gone to a few city council meetings together. I am a little surprised that attorney isn't challenging it for them. I hope someone does soon.

I would think it would be worthwhile for one of the larger business like the harbor mall or the durfee mills complex, for examples, to challenge it.

Anonymous said...

How about the school dept since as the HN says Fisher and the Mayor are at odds ?

Anonymous said...

The Chamber of Commerce, do they have a new leader yet??

Anonymous said...

Shamrock,

http://www.heraldnews.com/news/local_news/x1772941990/Stormwater-fee-under-fire

this article looks familiar! Do we have a possible candidate for mayor
in attorney William A. Flanagan ?
What can you tell us ?????

shamrock said...

I know as much as you do about Attorney Flanagan running. Personally, I think it is great that he publicly challenged the fee/tax. However, I don't think Bob will do anything about it without a court challenge though....and then when Bob loses he will still tell the court they are wrong.

Anonymous said...

I agree with you shamrock, I agree that it is great that Flanagan challenged this publicly with a legal opinion of his own that the stormwater fee (really a tax) is illegal. It is going to take a legal challenge though or at least the threat of one to get any action and unfortunately I haven't heard of anyone being gutsy enough to threaten King Bob in that fashion.

shamrock said...

Yes, I am amazed at how many people blindly follow Bob.

Anonymous said...

It is more like follow in fear, bob has other goons to scare the followers into submission!

I contacted the other cities mentioned that also have this fee.

We will see what response comes in.


EB

Anonymous said...

In Newton, the stormwater fee is charged an annual fee - $25 per year for residential properties and $150 per year for commercial properties.

http://www.crwa.org/alert/NewtonSWUtility/newtonstormwater_mainpage.html

I think Chicopee has a similar structure.

By offering a flat fee for commercial properties, Fall River could alleviate the concerns of the local businesses. Also, since there are fees for residential and commercial properties - the churches and schools would be exempt from paying the fee since their property is neither residential nor commercial.

Anonymous said...

http://www.fallriverma.org/pressarticles.asp?ID=260

Statement from Mayor Robert Correia In Response to Attorney William Flanagan's Letter on the Storm Water Fee 11-10-08

In response to Attorney William A. Flanagan's letter questioning the legality of the city's storm water fee, Mr. Flanagan fails to reference that the storm water fee, Ordinance 74-140, is enacted subject to a State Statute, Massachusetts General Law Chapter 83, Section 16.

Chapter 83, Section 16 of The General Laws of Massachusetts clearly states, 'In establishing quarterly or annual charges for the use of main drains and related storm water facilities, the city, town, or district may either charge a uniform fee for residential properties and a separate uniform fee for commercial properties or establish an annual charge based upon a uniform unit method; but, the charge shall be assessed in a fair and equitable manner. The annual charge shall be calculated to supplement other available funds as may be necessary to plan, construct, operate and maintain stormwater facilities and to conduct storm water program.'

Therefore, I re-affirm that this fee, also adopted in three Massachusetts communities (Chicopee, Reading and Newton) and over 400 communities nationwide is legal and fair.

Furthermore, I especially take issue with Mr. Flanagan's contention to call upon me to do 'what is just.' The purpose of adopting this storm water was to do just that - create fairness in a system that was very unfair to city residents.

The storm water fee revenue is designed to pay for all storm water management related costs, including but not limited the CSO costs. Separate storm systems that do not contribute to the combined sewer system are included as allowed by law.

Examples of such separate storm water systems costs include cleaning and installing catch basins, preparing annual storm water reports to the EPA and cleaning culverts. These actions and costs are not related to the CSO Project or the Wastewater Treatment Facility.

The revenue raised by the fee are to pay for costs incurred due to storm water management.

Property owners that are subject to the fee are receiving a direct benefit. Without the storm water management system in place the property would not be able to exist as it does. Without this system continual flooding and property damage could occur as well as storm water contamination of local bodies of water.

Storm water contributions to the Wastewater Treatment Facility are not the determining factor. Those property owners within the combined sewer areas do contribute to the facility. Those property owners that contribute to separate storm water systems which discharge to local bodies of water are directly benefited by flood control, property protection and water quality management.

Lastly, the Sewer Division budget does include separate items for storm water management. There is no return of said funds to the general fund.

shamrock said...

The link doesn't work anymore and that press release is no longer on the city site....I wonder whats up

Anonymous said...

Well I am glad I cut and pasted it, also on the Herald Site. Supposedly that is the response to Flanagan so he must have a copy as well. I wonder if they realized they responded incorrectly.

EB

Anonymous said...

http://www.fallriverma.org/

It's there on the welcome page.

Anonymous said...

However this thread was deleted from the Herald News :

Anonymous said...
For every teacher that loses a job, the mayor has hired in the past and present maybe 5 times that number into a political patronage job. Fischer doesn't compare in the least to that!!

Here is another example today:
http://www.heraldnews.com/homepage/x541346494/Entrepreneurs-FR-ripe-for-economic-development

A lot of entities are struggling to stay above water, Paul Simister, longtime director of the Marine Museum on Water Street said of his and other city museums.
He said the Battleship Massachusetts, the states official museum for veterans at Battleship Cove, is basically a floating hotel on weekends. Without scouting programs that use the facility on weekends, the Battleship would have little tourist revenue, Simister said.
I dont have two cents to put into an advertising budget, Simister continued. He said for more than two decades hes been involved with cultural events for the citys waterfront. He's been to hundreds of meetings and heard dozens of hopeful plans.
Sometimes theres been genuine progress like the venues of Heritage State Park, the state pier and, most recently, the potential offered by the designated arts overlay district. But Simister and other entrepreneurs called upon Mayor Robert Correia and City Council to play a more active role in tourism.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Erin B
You might not have 2 cents but you sure had $500 to contribute to the mayoral election!!!
Campaign Robert Correia :

http://www.efs.cpf.state.ma.us/DisplayReport.aspx?reportId=76571&schedule=DisplayScheduleC

/31/2007 Simister, Paul
36 Winthrop St. Fall River, MA 02721 Graphic Designer
Adgraph t shirts printed $500.00
15 itemized inkinds: $500.00
Un-itemized inkinds: $0.00
Total: $500.00



Tom Paine2 hours ago
Report Abuse
Of course he donated, he had a family member work for Mr. Correia at the state house.


observer21 hour ago
Report Abuse
Electing the Mayor, all of the City Council and all of School Committee every two years wastes a lot of money. Private donations to all the campaigns may be better spent on actually getting things done. Someone should calculate all the donations for all the candidates and compare that sum to the money spent on promoting the city, and all the other needs we have, including getting more money to fund the schools.
Maybe we should do like other communities and stagger elections so only a 3-4 of the Council and School Comm. are elected--move to 3-4 years terms. Elected officials might actually be motivated to think more about what is good for the city than what is good for their re-election the next year. They could spend more time on solving problems than fund-raising for themselves and attending every other candidates' fundraisers. We may want to move to a City Manager system, where a professional Manager is hired to run the city, with policy set by the Council, and where the Mayor is more of a figurehead. .
The election system we have hasn't worked very well for us as community. It is crazy to keep doing the same thing over and over and expecting better results.

November 13, 2008 8:42 AM
Anonymous said...
This website will give you the information on any political contributions made:


http://www.mass.gov/ocpf/

November 13, 2008 8:45 AM
Anonymous said...
THIS JUST KEEPS GETTING BETTER, UNBELIEVABLE!!!


lizzie3 minutes ago
Report Abuse
Here is another fun one Erin:

The address for Paul SImister is the same as this one (im guessing they are related)-

Andrea L. Merolla-Simister of 36 Winthrop St. (Correia zoning board appointee)
http://www.heraldnews.com/archive/x1295935104

Location 36 WINTHROP ST Property Account Number Parcel ID F-24-0039 Old Parcel ID -- Current Property Mailing Address Owner CORREIA ROBERT City FALL RIVER State MA Address 1290 PLYMOUTH AVE Zip 02721 Zoning
ErinB

shamrock said...

Odd that they would delete that thread considering that the Herald is now anti Bob and didnt have kind things to say about Paul Simister in the editorial.

Anonymous said...

There are public people getting a little hot under the collar that their names and activities are being published .

Just follow the comments on the HN and some that are posted on FR Blog when you provide information they don't want publicized.
EB

shamrock said...

I tried to post that again on the Herald site and they took it down again...I dont get it.

Anonymous said...

Someone just posted on a view from battleship cove that simister was just appointed to the fire board by the mayor!!! Maybe they didn;t want that info in the paper afterall and called the herald to complain??? Or someone at the herald is friendly with him???

WOW

Erin B

Anonymous said...

Obviously someone on the 6th flood does not want the dots connected.
You can delete if from the Herald and keep it off wsar but a blog is
untouchable and they just prompted me to start another one where this public information can be published without being deleted.

The information posted on the HN was from public websites of the state. A specific personal attack was not posted, the information was there for the read to make their own decision as to what was going on.

EB