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.