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Home My WebLink About2005-04-19 Board of Selectmen HandoutTOWN MANAGER'S REPORT Tuesday, April 19, 2005 o The Boston Globe article of last Sunday indicated that Reading was among 14 communities that were audited and that would not receive full reimbursement for school projects. Please see the attached memo from the Finance Director and Town Accountant explaining the audit - which was from April 2004 - and the impact. Unlike some of the other communities sited, Reading did not/will not receive full reimbursement because of technical issues, not issues of inappropriate spending. We have submitted a reimbursement request to FEMA for over $215,000 in Town costs for snow/ice control for the January 2005 blizzard. The reimbursement will be for 75% of eligible costs, so we would estimate that our reimbursement would be slightly over $160,000. ♦ The election on April 5 at Addison Wesley went well logistically. The turnout was about 16%.. o All proposed Charter Amendments on the April 5 election ballot were approved and are now in effect. Town Meeting begins on April 25, continuing on Mondays and Thursdays until completed - the additional dates would be April 28, May 2, and May 5 if needed. e Although it appeared that the MBTA was going to agree to take the Mishwam Station property off the market until the Route 128/193 process has proceeded to a point where we would know whether it was needed, the T has reversed that position and is continuing with the proposed sale - see April 7 2005 letter from John Cagliano attached. ♦ The next planned Board of Selectmen meeting is on May 9 at the Police Station community Room as a zoning workshop with CPDC related to downtown zoning (residential uses) and Addison Wesley zoning. ♦ On May 10 the Board of Selectmen will have its next regular meeting. o This Thursday at 1 PM Reading will receive it's 20th annual recognition as a "Tree City USA". ♦ Due to the retirement of Tom Younger as Town Administrator in North Reading, I have been asked by the town to assist in the screening process for a new Town Administrator. I have agreed, and this work will not interfere with my duties in Reading, It is part of my obligation and responsibility as a professional manager to assist in this process when possible. We are in the process of re-paving Woburn Street. I have received a number of calls and letters complaining about vehicles being ticketed and/or towed. I am looking into this matter and will respond to all this week. Our Recreation Administrator has been able to obtain 3 sponsors for "dog mitt dispensers" program (Including custom signage and bags). The 3 sponsors are: VCA Wakefield Animal Hospital Middlesex Animal Hospital Reading Animal Clinic We already have received the dispensers and bags. The signs will be done shortly and they will go up in the parks. The three locations will be Sturges, Memorial and Birch Meadow near Morton/Lighted Field. Chief Robert Silva is retiring Friday after over 30 years of service to the community. If you'd like to stop by the Police Station Friday between 12:30 and 3:30 and wish Chief Silva happy retirement, that would be most welcome. 0 April 19, 2005 Memo To: Board of Selectmen and School Committee From: Beth Klepeis and Richard Foley Re: School Building Assistance Reduction In the April 18, 2005 Boston Globe, Reading was cited as one of fourteen communities to have had their School Building Assistance (SBA) grants from the State cut as a result of recent audits. After checking with John Lawlor and Christine Lynch of the Department of Education, we find that the article was based on results of the April 2004 audits of Reading's Birch Meadow and Joshua Eaton schools projects. The auditing process is a normal process and results in changes in grants for nearly all of the State's school building projects. The fourteen were a group of audits which were sent to the State Treasurer's Office from the Department of Education, but otherwise were no different from any other group of projects which have been audited for School Building Assistance over the years. Joshua Eaton Project # 3462 had $ 113,511.29 in expenditures disallowed for 66 % reimbursement from the total project cost of $ 4,460,691. Among these items were the relocating of and purchasing of modular classrooms, heating repairs, and hi speed internet access costs. This was more than offset, however, by additional costs allowed in the amount of $214,143. Another reduction was $399,392 in the final approved interest payments. This reduction resulted from the original estimate of borrowing costs being higher than the final borrowing costs. Birch Meadow School Project # 3463 had no disallowed project expenditures during the audit process. The final approved interest payments, however, were lowered by $305,664. Of this amount, $254,452 was due to the estimated borrowing cost being higher than the final borrowing costs. The remaining $ 51,212 was a disallowed interest payment on a bond anticipation note (temporary borrowing commonly referred to as a BAN). According to State Law prior to 1997, a Town could do temporary borrowing for two years. With a third year of temporary borrowing, a principal payment of 1/18th the total borrowed was required. Reading's SBA grant was delayed through lack of State funding, forcing the Town to borrow for a third year of temporary borrowing, while making a principal payment of $ 116,000. Reading sold the permanent debt in July, 1996 and received its first SBA reimbursement later in that Fiscal Year. (FY 1997) The State disallowed the interest on the BAN, even though they didn't make the first SBA payment until after the sale of the permanent financing. Both State and Town benefited from the down payment on principal. Reading is appealing the disallowance of the $ 51,212. The result of these audited changes is a reduction of $26,891 each year for the nine remaining years of the Birch Meadow and Joshua Eaton SBA grants. The overall reduction in reimbursement was 4 The Fiscal Year 2006 budget includes a reduction in anticipated receipts to reflect the SBA audit results. Hechenbleikner, Peter _ C Lv From: Burns, Greg Sent: Friday, April 15, 2005 2:20 PM To: Hechenbleikner, Peter; Foley, Richard; Klepeis, Beth; McIntire, Ted; Delai, Mary Subject: Snowstorm Reimbursement Good Afternoon The reimbursement for the snow storm of January 22, 2005 has been hand delivered to MEMA today. The DPW had considerable documentation to prepare and Mike O'Halloran did a great job. Below is a breakdown of the total request and the expected 75% reimbursement of expenses incurred: . Department DPW School Department Total Greg Total Request 75% Reimburs 215,130.35 161,347.71 2,119.90 1,589.93 217,250.25 162.937.61. 06 1 Office of the Commissioner April 7, 2005 Michael 11. Mulhern, G eneral Manager Massachusetts Bay Tra. asportation Authority 10 Park Plaza, Room 3' )10 Boston, MA 02116 Dear Mr. Mulhern. 1 am writing to update : iou on developments regarding the I-93/1-95 Interchange Transportation Study and the issues surrounding :he MBTA's planned sale of the Mishawum commuter rail station property in Woburn. In my previa as (March 28th) correspondence to you,1 had requested that the MEITA suspend the bid process current' y underway until the benefits and impacts of retaining the Mishawum property could be more fully evi duated.. As you know, MassHighway has been working closely witla the I-93/1-95 interchange Task Forci i (1TF), a group composed of federal and state agencies (including #lae MBTA), legislators, local electe:3 officials, community members, and other interested organizations; My request was initiated out of re,,, ' )ect for the study and ITF process, in order to make sure that potential viable alternatives for the ints: rebange area were not being precluded. At a March 30th ITF r: Leeting, Dennis DiZoglio of your staff explained the disposition status of the Mishawum property.:I ✓Ir. DiZoglio clarified that the MBTA would retain a right-of-way through an casement to the property far.the station area and rail tracks. He confirmed that the current RFP requires that any developer pro, side at least limited parking for the station. Task Force members were very encouraged to learn th; it the station would remain open regardless of what might be developed on the site. Furthermore, the conti: xuation of the current bid process and subsequent negotiations with bidders would not preclude further co nsideration of the property for transit-oriented development. Consensus was reache, 1 at the meeting that the MBTA should proceed with its planned disposition of the hlisbavvm property, f': iven that: • There would t: e opportunities to work with Woburn and any potential Mishawum developer to incorporate tra nsportation services and/or land use(s) that could be part of a multi-modal series of improvements in the study area; and ® The Romney : administration's "Communities First" policy means that the views of cities and towns with re.,; pest to specific alternatives for the interchange would figure prominently in the recommendat I ans ultimately put forward by the study, and the City of Woburn is strongly opposed to thii use of the Mishawum site for an alternate interchange. Thank you again for y>ur agency's continued cooperation with MassHighway on this. important study. 1 ana encouraged that t: ae MBTA will continue to work with the Task Force for solutions that enhance public transit through(. ut the 1-93/1-95 Interchange area. If you have any questions or comments, please do not hesitate to cons; ►ct me or Bob Frey, Study Project Manager, at (617) 973-7449, 4~a JCMassachusetts Highway Department • Ten Park Plaza, Boston, MA 02116-3973 - (617) 973-7800 0 04/13/05 WED 11:42 FAX 617 722 2390 b a d Vr y~ J' BRADLEY H. JONES, JR. STATE REPRESENTATIVE MINORITY LEADER April 13, 2005 Mr. Peter Hechenblei: mer, Town Manager Town of Reading Town Hall, 16 Lowe]. Street Reading, MA 01867 Dear MT. Hechenblei:l:ner: 20'h MIDDLESEX DISTRICT READING - NORTH READING LYNNFIELD - MIDDLETON ROOM 124 TEL. (6'!7) 722-2100 Rep. Bra dleyJo nea@hou.state.rna. us This is just a quick Icote intended to inform you as quickly as possible about the local aid distribution proposed by the House Nays and Means Committee for FY' 06. The FY'06 House .3udget funds state-wide Chapter 70 payments at $3,260,512,757. This is an increase of only $278,516 above the numbers recommended by the Governor for FY'06, but it represents a full $77,230,156 more; than last year's final figures. Additional assistance is level-funded from FY'05. In terms of the lottery (I istribution, the House proposes to uncap 45% of lottery proceeds this year, which results in an additional !;100 million of payments as compared to FY'05. Under the House's plan, 60% of the lottery proceeds will be uncapped in FY'07, 80% will be uncapped in FY'08 and the fill 100% will be uncapped in FY'09. This is a positive outlook for local aid in the future, The Governor also recommended increasing aid through the lottery by $100 million this year; however, his plan differed in approach. The Govermor proposed to level-fund lottery distributions as "lottery maintenance" in FY'06, to phase-in lottery uncapping by releasing only 20% ($47 .million) extra from the cap in each year from FY'06 to FY' 10, and to distribute $53 million by way of supplemental, one-time local aid in FY'06. Specifically, the Hcuse's proposed local aid for Reading in FY'06, compared to the final FY'05 numbers and those prop ased by the Governor`this year, is as follows: (7061-01:08) (0611-5500) LOTTERY CHAPTE: 70 ADD. ASSIST. DISTRIBUTION Final FY'05 $6,082,107 $1,534,901 $1,841,015 Gov FY'06 $6,278,135 $1,534,901 $1,841,015 House FY'06 $6,278, t35 $1,534,901. $2,083,179 Change, FY'05 3.23' /o 0.0% 13.15°/a to House FY'06 LOTTERY 20% SUPPLEMENTAL TOTAL UNCAPPING (Gov) LOCAL AID (Gov) N/A N/A $9,458,023 $113,817 $128,347 $9,896,515 N/A N/A $9,896,515 4.64% The House has tentai ively planned its budget debate to begin on April 25. I will endeavor to keep you informed of any signif -ant developments regarding local aid and municipal government as promptly as possible. Until then, pll: ase do not hesitate to contact me should you have any questions. HOUSE GOP LEADER'S OFF. Q002 ~rzte oe, ~oeto~a O.L'91~.~-'05/ R. Jones, Jr. Leader lar-M April 13,2005 Town of Reading Board of Selectmen 16 Lowell St. Reading, Ma. 01867 Dear Board 2M5 APR 13 PH 1= 21 Under article 2 a report will be given on storm water management, it will propose that a FEE of $ 60 be assessed to each of the 8800 dwelling unit. Two court cases Emerson College v. City of Boston and Paul F. Silva v. City of Fall River ( Richard Foley has these on file ) have decided that because they benefit every person and in the case of Fall River was mandated they are in fact a TAX . We continue to hear that there is a lack of time for engineering as a reason for delay in many projects. The question is then why is time being spent on this project before a legal opinion was obtained on the proposed FEE ? C- 0 William C. Brown 28 Martin Rd. Reading, Ma. 01867 781 944 2807 462 N.E.2d 1098; 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) *1098 462 N.E.2d 1098 391 Mass. 415 Supreme Judicial Court of Massachusetts, Suffolk. EMERSON COLLEGE V. CITY OF BOSTON et al. (FN1) Argued Nov. 8, 1983. Decided March 14, 1984. College brought action against city challenging imposition of charge for augmented fire service availability. The Superior Court, Suffolk County, Nixon, J., enjoined enforcement of statute and ordinance which authorized charges. Joint application for direct appellate review was granted, and the Supreme Judicial Court, Abrams, J., held that being neither fee nor valid excise tax, augmented fire services availability charge did not conform to any constitutionally permissible form of monetary exaction. Affirmed. West Headnotes [1] Municipal Corporations (.=957(3) 268 268XI1I Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k957 Constitutional Requirements and Restrictions . _ 268k957(3) Limitations as to Rate or Amount, or Property or Persons Taxable. Because it was imposed on minority of property owners, city's augmented fire services availability charge failed to comport with requirement that real estate taxation be proportional, and additionally violated requirements for real estate taxation by not being imposed on ad valorem basis. M.G.L.A. Const. Pt. 2, C. 1, § 1, Art. 4; St. 1982, c. 190, § 30. Page 1 268k464 Apportionment of Benefits and Expenses of Improvement 268k466 Benefit to Property in General. Special assessments may be imposed for local improvements which enhance value of real property, provided that assessments are not in substantial excess of benefits received. [3] Municipal Corporations (S;-405 268 268IX Public Improvements 2681X(E) Assessments for Benefits,' and Special Taxes 268k405 Nature of Assessment or Tax. City's augmented fire services availability charge was not special assessment or amount due for betterment, as maintenance of additional fire companies. necessary to extinguish fires at various buildings distributed throughout city was not local improvement and no increase in value of property containing structures needing augmented services was apparent. St.1982, c. 190, § 30; M.G.L.A. c. 80, § 1. [4] Municipal Corporations X406(1) 268 268IX Public Improvements 2681X(E) Assessments for Benefits, and Special Taxes 268k406 Power to Levy in General 268k406(1) In General. City's augmented fire services availability charge was chimera, bearing features of both fee and tax, but not valid in either form. St. 1982, c. 190, § 30. [5] Municipal Corporations 0472 268---- 2681X Public Improvements 2681X(E) Assessments for Benefits, and Special Taxes 268k464 Apportionment of Benefits and Expenses of Improvement 268k472 Unequal Assessments. [2] Municipal Corporations 0466 [See headnote text below] 268 [5] Municipal Corporations 0961 2681X Public Improvements 2681X(E) Assessments for Benefits, and 268 Special Taxes 268XIII Fiscal Matters © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 0~1 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k960 Power to Tax for Special Purposes 268k961 In General. Statutory scheme authorizing city's imposition of augmented fire service availability charge for fire protection against owners of certain buildings was based on legislative determination that disproportionate percentage -of city's fire fighting budget was consumed by expenses related to maintenance of equipment and personnel capable of protecting buildings with physical characteristics requiring, in event of fire, presence of more than 14 fire companies. St. 1982, c. 190, § 30. [6] Constitutional Law (&;P63(2) 92 92111 Distribution of Governmental Powers and Functions 92III(A) Legislative Powers and Delegation Thereof 92k59 Delegation of Powers 92k63 To Local Authorities 92k63(2) To Municipalities and Municipal Officers in General. [See headnote text below] [6] Municipal Corporations 0957(1) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k957 Constitutional Requirements and Restrictions 268k957(1) Power to Tax for General or Special Purposes in General. Unreviewable discretion conferred on fire commissioner by statute which authorizes imposition of charges for augmented fire service availability against . owners of certain buildings was constitutionally impermissible. St.1982, c. 190, § 30; U.S.C.A. Const.Amend. 5. [7] Administrative Law and Procedure 0659 15A 15AV Judicial Review of Administrative Decisions 15AV(A) In General 15Ak657 Nature and Form of Remedy 15Ak659 Certiorari. Page 2 Action in nature of certiorari brought to correct errors in proceedings not otherwise reviewable by motion or by appeal offers no protection against discretionary administrative actions. M.G.L.A. c. 249, § 4. [8] Municipal Corporations~63.15(5) 268 268II Governmental Powers and Functions in General 268k63 Judicial Supervision 268k63.15 Particular Powers and Functions 268k63.15(5) Fiscal Management, Revenue and Taxation. (Formerly 268k63.1(8)) In reviewing statute which authorized imposition of charge for augmented fire service availability, Supreme Judicial Court was bound to treat with deference legislative classification of charge as "fee," but ultimately, nature of monetary exaction was required to be determined by its operation rather than its specially descriptive phrase. St. 1982, c. 190, § 30. [9] Licenses cg=~ 1 238 238I For Occupations and Privileges 238kl Nature of License for or 'Tax on Occupation or Privilege. Fee imposed by governmental entity tends to be either "user fee," based on rights of entity as proprietor of instrumentality used, or "regulatory fee," including licensing and inspection fees, founded on police power to regulate particular businesses or activities. [10] Taxation 1 371 371I Nature and Extent -of Power in General 371k1 Nature of Taxes. "Fee" is distinguished from "tax" in being charged in' exchange for particular governmental service which benefits party paying fee in manner not shared by other members of society, in being paid by choice, in that party paying fee has option of not using governmental service and thereby avoiding charge, and in being collected not to raise revenues but to © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) compensate governmental entity providing services for its expenses. [11] Taxation & 1 371---- 371I Nature and Extent of Power in General 371kl Nature of Taxes. . "Proprietary fees" do not implicate taxation power if based on fair recompense for public moneys expended for initial construction and for adequate maintenance of facilities used, and "regulatory fees" are not taxes if commensurate with governmental expenditures occasioned by regulated party. [12] Municipal Corporations °r 957(3) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k957 Constitutional Requirements and Restrictions 268k957(3) Limitations as to Rate or Amount, or Property or Persons Taxable. [See headnote text below] [12] Municipal Corporations (!9=961 268 268XHI Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k960 Power to Tax for Special Purposes 268k961 In *1098 General. In its correlation to costs of funding personnel and equipment constituting portion of city's fire companies calculated to be necessary to provide fire protection required by certain properties, statutory augmented fire service availability charge bore some similarity to "user fee, " but failed to comply with essential characteristic of "fee," in that benefits of augmented fire protection were not limited to owners of buildings on which fees were imposed. St. 1982, c. 190, § 30. [13] Municipal Corporations (8=z1957(3) 268 Page 3 268k957 Constitutional Requirements . and Restrictions 268k957(3) Limitations as.to Rate or Amount, or Property or Persons Taxable. Fees are legitimate to extent that services for which they are imposed are sufficiently particularized as to justify distribution of costs among limited group rather than general public. [14] Taxation c&:=1 371 371I Nature, and Extent of Power in General 37111 Nature of Taxes. That revenue obtained from particular charge is not used exclusively to meet expenses incurred in providing service, but is destined instead for broader range of services or. for general fund, while not decisive, is of weight in indicating that charge is "tax." [15]. Taxation 1 371 371I Nature and Extent of Power in General 371kl Nature of Taxes. Statutory earmarking of proceeds of charges for augmented fire service availability for nonrelated services was more consistent with revenue-raising purpose than with intent to recover augmented services-related expenditures, and thus, charge resembled "tax" rather than "fee," even assuming that owners of structures needing augmented services derived pecuniary benefit from their availability, as statute did not distinguish that particularized benefit from benefit provided to general public. St. 1982, c. 190, § 30. [16] Taxation X1201.1 371 371XVI Sales, Use, Service, and Gross Receipts Taxes 371XVI(A) Nature and Power to Tax 371XVI(A)l In General 37lkl201 Nature of Taxes 37lkl201.1 In General. (Formerly 37lk1201) 268XIII Fiscal Matters 268XIE(D) Taxes and Other Revenue, and Obligation to pay excise tax is based on voluntary Application Thereof act of person taxed on enjoying privilege which is © 2004 West, a Thomson business. No claim to original U.S. Govt. works. e 6 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) subject of excise, and excise may be imposed only where element of absolute and unavoidable demand is lacking. St.1982, c. 190,§ 30; M.G.L.A. Const. Pt. 2, C. 1, § 1, Art. 4. [17] Taxation 0 1203 371 371XVI Sales, Use, Service, and Gross Receipts Taxes 371XVI(A) Nature and Power to Tax 371XVI(A)l In General 371k1201 Nature of Taxes 371k1203 Selective Taxes in General. Statute which authorized imposition of augmented fire service availability charge on owners of certain buildings did not impose valid excise tax, where owners of affected structures were not at liberty to reject augmented services other than by relinquishing ownership of building subject to assessments. St.1982, c. 190, § 30; M.G.L.A. Const. Pt. 2, C. 1, § 1, Art. 4. *1100. Howard P. Speicher, Asst. Corp. Counsel, Boston, for defendants. Stuart DeBard, Boston, for plaintiff. Lane McGovern and David J. Kerman, Boston, for Association of Independent Colleges and Universities in Massachusetts, amicus curiae, submitted a brief. Wayne S. Henderson and Jean M. DeLuca, Boston, for New England Legal Foundation, amicus curiae, submitted a brief. Before HENNESSEY, C.J., and ABRAMS, LYNCH and O'CONNOR, JJ. [391 Mass. 4161 ABRAMS, Justice. In 1982, the Legislature conferred authority on the city of Boston to impose a charge for fire protection against the owners of certain buildings that "by reason of their size, type of construction, use and other relevant factors require the city to employ additional firefighters, deploy additional equipment and purchase equipment different in kind from that required to provide fire protection for the majority of structures." St. 1982, c. 190, § 30. (FN2) Under the statute, the city "is authorized to impose a fee. for augmented fire services availability pursuant to [St.1982, c. 190, § 301 or pursuant to an ordinance enacted by the city of Boston not inconsistent with [St.1982, c. 190,§ 30]." Page 4 On February 16, 1983, after the plaintiffs suit was initiated, the Boston city council, acting pursuant to the statute, promulgated an ordinance establishing augmented fire services availability (AFSA). The plaintiffs motion for a preliminary injunction against imposition of the AFSA charge was denied on' February 24, 1983. On the same date, the mayor of Boston approved the AFSA ordinance. City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983. (FN3) [391 Mass. 4171 The plaintiff, a tax exempt educational institution, owns fourteen buildings in the city, containing classrooms, administrative offices and dormitories. These buildings were inspected by the fire department in *1101 December, 1982, to determine whether they were subject to the charge. On January 27, 1983, the plaintiff brought an action pursuant to G.L. c. 231A, § 1, requesting a declaratory judgment and injunctive relief. The plaintiffs complaint alleged that the AFSA charge is in effect a tax on real property from which Emerson is exempt under G.L. c. 59, § 5. The plaintiff also alleged that the AFSA charge violates the constitutional requirement that property taxes be "proportional and reasonable," Part II, C. 1, § 1, art. 4, of the Massachusetts Constitution, and that computation of the charge by the fire commissioner constitutes an unconstitutional delegation of taxing authority to an administrative official. On March 1, 1983, the city mailed bills totaling $12,029 for AFSA charges assessed against three of the plaintiff s buildings. (FN4) After the denial of a second motion for a preliminary injunction, the case was heard on March 28 and 29, 1983. On April 1, 1983, the judge issued a memorandum and order declaring the statute and the ordinance invalid as applied to the plaintiff and facially unconstitutional, and enjoined their enforcement. The judge found that the statute permits the city to exact a charge [391 Mass. 4181 "based on a complex, sophisticated but not scientifically proven or generally accepted formula, which attempts to assess costs of providing life safety services in terms of gallons per minute." The judge found that "[t]he buildings against which the charge (tax) [was] levied [were] not uniformly selected nor assessed." He determined that the AFSA charge was not a fee because "[a] fee is based on services performed or delivered and not on anticipatory expenses for services which may never be needed Quoting Williams College v. Williamstown, 219 Mass. 46, 48, © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) 106 N.E. 687 (1914), he concluded, "Protection from fires always has been treated as a general function of government." [1][2][3][4] The judge declared "that the money sought to be collected by the city under sec. 30 of Chapter 190 of the Acts of 1982 and/or Title 14, sec. 459 of the Ordinances of the City of Boston, approved by the Mayor on February 24, 1983 is a tax and not a fee." He noted that the plaintiff is a tax exempt institution. He then declared that the money "sought to be raised [was] a real estate tax and not an excise tax," and, further, that the tax was not "proportional and reasonable." See Part 11, C. 1, § 1, art. 4, of the Massachusetts Constitution. (FN5) The judge reported his [391 Mass. 4191 decision to the Appeals Court. We granted the parties' joint application for direct appellate review. (FN6) We conclude that the AFSA *1102 charge is a chimera, bearing features of both a fee and a tax, but not valid in either form Therefore, we affirm the judgment invalidating the statute and the ordinance. . We summarize the relevant provisions.of the AFSA statute and ordinance, as well as pertinent testimony presented at the Superior Court hearing. The proclaimed purpose of the statute "is to assure the city's continued ability to provide the availability of fire fighting services in excess of the degree of such services provided to the general public by imposing the cost of making available such extra services on those to whom such extra services are made available." St.1982, c. 190, § 30(2). The statute thus distinguishes two classes of building owners. In one class are owners of buildings who are deemed members of the "general public," to whom fire protection services are made available without any charge beyond the annual property tax. In a distinct class are building owners who, by implication, are not considered members of the "general" public, and who, in addition to the property tax, if any, assessed against them, (FN7) must pay an AFSA charge for the availability of fire protection. A building-owner is subject to the AFSA charge if the "total fire fighting capacity necessary to extinguish a fully involved fire" in the building exceeds 3,500 "gallons per minute." St.1982, c. 190, § 30(3)(1), (ii). [5] The statutory scheme is based on a legislative determination that a disproportionate percentage of the city of Boston's firefighting budget is consumed by expenses related to the maintenance of equipment and personnel capable of protecting buildings with [ 391 Mass. 4201 physical characteristics requiring, in the event of a fire, the presence of more than fourteen Page 5 fire companies. The fire commissioner said that 3,500 gallons per minute is the functional equivalent of fourteen fire companies, (FN8) the personnel and equipment necessary to combat a three-alarm fire. There are currently fifty-six and one-half fire companies (FN9) in Boston. Of that number, forty- eight companies would suffice to combat simultaneously one 3,500 gallon per minute fire and one smaller, 2,000 gallon per minute fire, while maintaining four companies available for discretionary use as well as one fire engine and one truck on standby in each of the city's eleven fire districts. The remaining eight and one-half companies are maintained to guard against the potential occurrence of a fire exceeding the 3,500 gallon per minute category. The parties stipulated that the Boston fire department's costs for fiscal year 1983 would. be $76,877,152. According to the director of the city's office of fiscal affairs (OFA), $10,114,502 of that sum is allocable to the personnel, equipment, and overhead costs of providing AFSA. (FN10) Over 13% of the *1103 Boston fire department's costs for fiscal year 1983 can thus be traced to AFSA. (FN11) After applying a statutory formula, which we discuss [391 Mass. 421 infra, to data collected through inspections of approximately .5,000 buildings, (FN12) the fire commissioner determined that, in 1983, some 2,000 buildings, or 2% of the buildings in Boston, necessitate AFSA. The statute requires that, prior to March 1 of each year, the fire commissioner determine not only which buildings in Boston are subject to the AFSA charge, but also the amount of the charge to be assessed each such building. A formula set forth in the statute establishes three principal factors to be considered by the fire commissioner in establishing whether, in the event of fire, a building would require more than 3,500 gallons per minute of firefighting capacity. One factor, the "needed fire flow" (NFF), measures the personnel and equipment necessary to extinguish a fire in the building. The NFF is determined by reference to various subfactors: the building's construction type, including the fire resistance of its constituent materials; the effective area of the building in square footage; the use of the building, including the combustibility of its contents; and "exposure" and "connecting passageways" subfactors, which measure the risk that a fire would. spread to adjacent buildings. St.1982, c. 190, § 30(3)(iii The second factor, the "life risk factor" (LRF), measures the personnel and equipment necessary to 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) ensure the safety of the occupants of the burning building. The LRF takes into account the building's density of occupancy, hours of occupancy, number of stories, and whether the building contains smoke removal equipment. St. 1982, c. 190, § 30(3)(v The third factor is a "suppression credit" (S), which operates to reduce the gallons per minute computation by an amount that reflects a building's existing fire suppression and detection equipment. [ 391 Mass. 4221 St.1982, c. 190, § 30(3)(iv The department's consultant indicated that a suppression credit is granted for smoke and heat detectors connected to an alarm at the fire department. A larger suppression credit may be obtained if a building has standpipes with outlets to which fire hoses can be connected. A building's sprinkler systems also reduce the total gallons per minute computation. (FN13) The three factors, as incorporated in the statutory formula, yield a "total fire flow" (TFF) computation expressed in gallons per minute. St.1982, c. 190, § 30(3)(ii If a building's TFF exceeds 3,500, it is subject to the AFSA charge. Every gallon per minute in excess of 3,500 is considered an AFSA "unit." The OFA director testified that the total number of AFSA units for fiscal year 1983, as determined by the fire commissioner's application of the formula to data collected through building inspections, is 4,624,828. The $10,114,502 in costs attributable to AFSA protection was *1104 divided by 4,624,828 to yield a cost per AFSA unit of $2.187. After inspecting the plaintiffs buildings, the fire commissioner determined that three of the buildings had AFSA requirements measured, respectively, at 1,250, 2,500, and 1,750 AFSA units. Accordingly, the plaintiff received bills of $2,734, $5,468, and $3,827 for the three buildings. [6][7] Because the AFSA charges are based on the availability of fire protection, the plaintiff, and other owners of AFSA structures, must pay the charges irrespective whether the fire department's services are actually utilized to battle fires in the specific buildings for which the charges are imposed. Charges are payable in two installments. On payment of the first installment, the owner paying an AFSA charge may appeal the correctness of the assessment to the commissioner. No further review, either administrative or judicial, is authorized by the statute. (FN14) The statute directs that "[r]evenues received [391 Mass. 4231 [from AFSA charges] shall be used to restore and maintain adequate public safety forces Page 6 in the city of Boston which shall be defined as police and fire services." St.1982, c. 190, § 30(4). (FNl5) 1. Our initial inquiry pertains to the nature of the monetary exaction imposed by the AFSA statute. The city argues that the judge erred in rejecting the statutory characterization of the charge [391 Mass. 4241 as a fee, and in holding that the charge is a property tax. Consequently, the city alleges, the judge's conclusion that the plaintiff is insulated from paying the charge by the G.L. c. 59, § 5, property tax exemption was erroneous, as was the judge's determination that the statute is facially inconsistent with constitutional limitations on the taxing power. [8] In reviewing the statute, we are bound, as was. the judge, to treat with deference the classification of the charge *1105 as a fee. "In any doubtful case, the intention of the Legislature, as it may be expressed in part through its characterization [of the charge] deserves judicial respect, and especially so where the constitutionality of the exaction depends on its proper characterization" (footnote omitted). Associated Indus. of Mass., Inc. v. Commissioner of Revenue, 378 Mass. 657, 667-668, 393 N.E.2d 812 (1979). See Opinion of the Justices, 250 Mass: 591, 597, 148 N.E. 889 (1924). Ultimately, however, the nature of a monetary exaction "must be determined by its operation rather than its specially descriptive phrase." . Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429, 176 N.E. 203 (1931). Accord Eaton, Crane & Pike Co. v. Commonwealth, 237 Mass. 523, 528, 130 N.E. 99 (1921). See Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 292, 41 S.Ct. 272, 274, 65 L.Ed. 638 (1921); Gunby v. Yates, 214 Ga. 17, 19, 102 S.E.2d 548 (1958). [9][10][11] With these considerations in mind, we turn to the question whether the AFSA charge is a fee. Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the instrumentalities used, Opinion of the Justices, 250 Mass. 591, 597, 148 N.E. 889 (1924), or regulatory fees (including licensing and inspection fees), founded on the police power to regulate particular businesses or activities, id at 602, 148 N.E. 889. See Boston v. Schaffer, 9 Pick. 415, 419 (1830); P. Nichols, Taxation in Massachusetts 6-9 (3d ed. 1938). Such fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner "not shared by other members of society," National Cable Television Assn © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) v. United States, 415. U.S. 336, 341, 94 S.Ct. 1146, 1149, 39 L.Ed.2d 370 (1974); they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and 1391 Mass. 4251 thereby avoiding the charge, Vanceburg v. Federal Energy Regulatory Comm n, 571 F.2d 630, 644 n. 48 (D.C.Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 108 (1978), and the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses. (FN16) [12] The city emphasizes that the factors used to determine the amount of each AFSA assessment are related to the city's costs in providing AFSA protection and urges that, on this basis alone, the charge be characterized a fee. We agree that, in its correlation to the costs of funding the personnel and equipment constituting eight and one-half of Boston's fire companies, the AFSA charges bears some similarity to a user fee. [13] The AFSA charge fails, however, to comply with another essential characteristic of a fee. Fees are legitimate to the *1106 extent that the services for which they are imposed, are sufficiently particularized as to justify distribution of the costs among a limited group (the "users," or beneficiaries, of the services), rather than the . general public. The benefits of "augmented" fire protection are not limited to the owners of AFSA buildings. The capacity to extinguish a fire in any particular building safeguards not only the private property interests of the owner, but also the safety of the building's occupants [391 Mass. 4261 as well as that of surrounding buildings and their occupants. In more sparsely populated areas, it may be possible to isolate private property interests in fire suppression from the property and safety interests of the public at large. In a large, densely populated city like Boston, "the prevention of damage to buildings by fire is an object which affects the interest of all the inhabitants and relieves them from a common burden and danger." Fisher v. Boston, 104 Mass. 87, 93 (1870). See Williams College v. Williamstown, 219 Mass. 46, 48, 106 N.E. 687 (1914). That a particular building requires "augmented" rather than regular fire protection does not change the nature of the benefit conferred by the suppression of a fire in that building from one that is public to one that is limited to the owner of the building. The statutory formula controlling the assessment and computation of AFSA charges illustrates this by factoring in not only the firefighting capacity necessary to preserve a Page 7 particular structure in the event of fire, but also the personnel and equipment necessary to safeguard the building's occupants and to prevent the spread of fire to adjacent buildings. Further confirmation of the public nature of the benefit conferred by AFSA services may be derived from the fact that "use" of AFSA protection is compelled. Fees generally are charged for services voluntarily requested. See National Cable Television Assn v. United States, 415 U.S. 336, 340, 94 S.Ct. 1146, 1148, 39 L.Ed.2d 370 (1974). If the benefits for which AFSA charges are imposed were limited to the owners of AFSA structures, rather than being essential to the public welfare, there would be no reason to depart from the optional character of a traditional fee. (FN17) [391 Mass. 4271 [14][15] Although we need go no further to sustain the judge's conclusion that the AFSA charge is not a fee, we note additionally that, by statutory command, the amounts collected through AFSA assessments are targeted not for the maintenance of the eight and one-half fire companies attributed to AFSA protection but to general "police and fire services." St.1982, c. 190, § 30(4). That revenue obtained from a particular charge is not used exclusively to meet expenses incurred in providing the service but is destined instead for a broader range of services or for a general fund, "while not decisive, is of weight in indicating that the charge is a tax." P. Nichols, supra at 7. Opinion of the Justices, 250 Mass. at 597, 148 N.E. 889. The statutory earmarking of proceeds for non-AFSA services is more consistent with a revenue raising purpose than with an intent to recover AFSA-related expenditures. The AFSA charge thus resembles not a fee, but a tax, which has been defined as "an enforced contribution to provide for the support of government." United States v. Tax Comm'n of Miss., 421. U.S. 599, 606, 95 S.Ct. 1872, 1877, 44 L.Ed.2d 404 (1975), quoting. United States v. LaFranca, 282 *1107. U.S. 568, 572, 51 S.Ct. 278, 280, 75 L.Ed. 551 (1931) To view preceding link please click here . (FN18) [16][1712. The city contends that even if St.1982, c. 190, § 30, imposes a tax rather than a fee, the judge erred in holding that the charge is a disproportionate real property tax instead of a valid excise tax. The Legislature is constitutionally authorized to levy excises "upon any produce, goods, wares, merchandise and commodities." Part II, C. 1, § 1, art. 4, of the Massachusetts Constitution. The term "commodities" encompasses "convenience, privilege, profit, and gains." Minot v. Winthrop, 162 Mass. 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) 113, 120, 38 N.E. 512 (1894). The city suggests that the AFSA charge qualifies as an excise on the "privilege" of receiving an extra (391 Mass. 4281 level of fire protection. It is well-established, however, that the obligation to pay an excise tax "is based upon the voluntary act of the person taxed in enjoying the privilege which is the subject of the excise" and that an excise may be imposed only where "the element of absolute and unavoidable demand is lacking." P. Nichols, supra at 16. Owners of AFSA structures are not at liberty to reject AFSA services. To the extent that payment of AFSA charges may be avoided by relinquishing ownership of buildings subject to AFSA assessments, the charges tax the privilege of owning certain improved property. "The mere right to hold and own property cannot be made the subject of an excise." Opinion of the Justices, 220 Mass. 613, 626, 108 N.E. 570 (1915). The judge correctly concluded that the statute does not impose a valid excise tax. (FN19 The AFSA charge does not conform to any constitutionally permissible form of monetary exaction. The judgment of the Superior Court, declaring St.1982, c. 190, § 30, and City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983, invalid, is affirmed. So ordered. (FN1.) The fire commissioner of the city of Boston and the collector of taxes of the city of Boston. (FN2.) Statute 1982, c. 190, § 30, reads in part as follows: "The cost of providing the availability of fire protection to certain structures in the city of Boston is greater than the cost of providing the availability of fire protection to the majority of structures, by reason of their size, type of construction, use and other relevant factors. The provision of . fire protection to such structures requires the city to employ additional firefighters, deploy additional equipment and purchase equipment different in kind from that required to provide fire protection for the majority of structures. The availability of such additional fire services is being provided to a small proportion of the buildings in the city. Therefore, the city of Boston is authorized to impose a fee for augmented fire services availability pursuant to the following or pursuant to an ordinance enacted by the city of Boston not inconsistent with the following. "(2) The purpose of this act is to assure the city's Page 8 continued ability to provide the availability of fire fighting services in excess of the degree of such services provided to the general public by imposing the cost of making available such extra services on those to whom such extra services are made available." (FN3.) The ordinance that became effective on February 24, 1983, was the third version of the AFSA charge promulgated by the city. The first ordinance was approved by the mayor on February 25, 1982. City of Boston Code, Ordinances, Title 14, § 459, inserted by City of Boston Ordinances of 1982, c. 7. The validity of that ordinance was challenged by the Greater Boston Real Estate Board. On April 12, 1982, a judge in the Superior Court, citing a section of the ordinance stating that revenues from the ASIA charge "shall be used to restore and maintain adequate public safety forces in the City of Boston which shall be defined as Police and Fire Services," held that the charge was a tax, rather than a fee, and was invalid because the power to impose such a tax had not been delegated to the city. See art. 89, § 7, of the Amendments of the Massachusetts Constitution. On April. 14, 1982, the Boston city council passed an ordinance amending the AFSA ordinance by striking the section pertaining to use of AFSA charge revenues. On May 24, 1982, the amended ordinance was declared invalid by the same judge. The judge reiterated his conclusion that the AFSA charge was an unauthorized tax, this time basing his determination on the observation that a charge is not a fee if it is assessed for the availability of services rather than for services rendered. The case was reported to the Appeals Court but was mooted by the enactment of St. 1982, c. 190, § 30, which provided statutory authority for the imposition' of the charge, and by the subsequent striking -of the invalidated amended ordinance and its replacement by the February 24, 1983, ordinance that is the subject of the current litigation. *1107_ (FN4.) The bills remain unpaid pending resolution of this case. (FN5.) The city does not challenge the judge's determination that the AFSA charge, if classified as a real property tax rather than as a fee or excise, violates the requirements for real estate taxation set forth in Part II, C. 1, § 1, art. 4, of the Massachusetts Constitution. Because it is imposed on a minority of property owners, the charge fails © 2004 West, a Thomson business. No claim to original U.S. Govt. works. D 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) to comport with the requirement that real estate taxation be proportional. See Opinion of the Justices, 378 Mass. 802, 803 & n. 1, 393 N.E.2d 306 (1979). Additionally, the charge is not imposed on an ad valorem basis. Cf. Fairmont v. Pitrolo Pontiac-Cadillac Co., 308 S.E.2d 527 (W.Va.1983) (fire protection "fee" imposed on all buildings within city,at rate of fifty-five cents per $100 of building's value constitutes ad valorem property tax, but invalid because in excess of constitutional limitations). The city correctly refrains from arguing that the AFSA charge is a special assessment or amount due for a betterment. Cf. G.L. c. 80, § 1. Special assessments may be imposed for local improvements which enhance the value of real property, provided the assessments are not in substantial excess of the benefits received. See Illinois Cent. R.R. v. Decatur, 147 U.S. 190, 199, 13 S.Ct. 293, 294, 37 L.Ed. 132 (1893); White v. Gove, 183 Mass.. 333, 335, 67 N.E. 359 (1903). The maintenance . of eight and one-half fire companies necessary to extinguish fires at various buildings distributed throughout Boston is not a local improvement. Nor is any increase in the value of property' containing AFSA structures apparent--instead, fire protection once included within the general property tax has been reclassified as a special service. and an incremental cost imposed. Cf. Williams College v. Williamstown, 219 Mass. 46, 47, 106 N.E. 687 (1914). (FN6.) Helpful amicus curiae briefs have been filed by the Association of Independent Colleges and Universities in Massachusetts and by the New England Legal Foundation. (FN7.) Some buildings against which the AFSA charge is assessed, including the three buildings owned by the plaintiff, are exempt from ad valorem property taxes. See G.L. c. 59 § 5. However, although the fire department investigates all tax exempt buildings to determine whether they are subject to the AFSA charge, there is no statutory correlation between tax-exempt status and payment of the AFSA charge. Imposition of the charge is contingent on factors relating .to the physical characteristics, of a given building, rather than on tax status. Thus, some nonexempt buildings may be required to pay an AFSA charge, whereas some exempt buildings would obtain fire protection without payment. Page 9 (FN8.) The management and systems consultant hired by the city. to assist in the implementation of the AFSA charge testified that, historically, one fire company was capable of delivering 250 gallons of water per minute. In current usage, 250 gallons per minute is considered the equivalent of one fire company, irrespective whether the company delivers watery ladders, or other equipment and personnel necessary to firefighting. (FN9.) The fire commissioner counted as one-half company the personnel necessary to operate an aerial tower. (FN10.) The $76,877,152 figure for total fire department costs includes: firefighters' salaries ($39,783,777), administrative ' backup ($7,430,815), pensions ($19,867,800), health insurance ($1,024,400), overtime ($1,602,720), workmen's compensation ($200,000) and indemnification ($500,000); $1,185,836 in maintenance and capital costs for firefighting equipment; and $5,281,804 in overhead costs for fire stations. On the basis of these figures, average yearly costs to the city for each firefighter, each piece of equipment, and each fire station were computed. A multiplication of the average cost figures by. the number of firefighters, pieces of equipment, and fire stations absorbed by the eight and one-half fire companies: necessary to provide AFSA yields the $10,114,502 figure for total AFSA expenditures. (FN11.) The evidence suggests that the cost of AFSA is attributable principally to quantitative rather than qualitative differences between the city's current firefighting personnel and equipment needs and the corresponding needs, were there no buildings requiring more than fourteen fire companies in the event of fire. At the hearing, the only pieces of equipment referred to as being specifically targeted for fires in AFSA structures were two aerial towers costing a total of $34,676 per year. *1107_ (FN12.) On the basis of data previously collected by the city's office of property equalization (OPE), the fire commissioner determined which buildings in the city possessed characteristics warranting an inspection for AFSA charge assessment purposes. (FN13.) The existence of sprinkler systems reduces the NFF factor rather than increasing the S factor. A decrease in the NFF factor, like an increase in the S factor, lowers the TFF computation on which 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) assessment of the charge, as well as the amount 6f the charge, is contingent. (FN14.) The judge found that St.1982, c. 190, § 30, impermissibly delegated the taxing authority to an administrative officer. He further concluded that the failure to provide for judicial review is fatal to the validity of the statute. We uphold the judge's decision on other grounds. We believe, however, that the judge was correct in concluding that the unreviewable discretion conferred on the fire commissioner by the statute is constitutionally impermissible. Although the statutory formula establishes several factors to be considered by the commissioner in detemiining the number of AFSA units attributable to a given building, see supra at 1103, these factors are determined not only by means of objective computations but through subjective, qualitative evaluations by the fire commissioner. We have noted that a delegation of the taxing power to an administrative official may be allowed if "the [tax] rate is mathematically deduced [by the official] from facts. and events occurring within the year and created without reference to the matter of that rate." Commissioner of Revenue v. Massachusetts Mut. Life Ins. Co., 384 Mass. 607, 610, 428 N.E.2d 297 (1981), quoting Michigan Cent. R.R. v. Powers, 201 U.S. 245, 297, 26 S.Ct. 459, 464, 50 L.Ed. 744 (1906). The statute we review, by contrast, confers on the fire commissioner the "power to affect the amount of tax payable." Id. We need not decide whether such a delegation of the taxing power would be permissible given adequate administrative or judicial review of the actions taken by the fire commissioner, see Opinion of the Justices, 341 Mass. 738, 759, 167 N.E.2d 745 (1960); 1 K.C. Davis, Administrative Law § 3:15, at 208, 210 (2d ed. 1978), for the statute establishes no such appellate procedure. The only appeal available to owners assessed an AFSA charge is to the fire commissioner. Although under G.L. c. 249, § 4, as appearing in St. 1973, c. 1114, § 289, an action in the nature of certiorari may be brought "to correct errors in proceedings not otherwise reviewable by motion or by appeal," that review offers no protection against discretionary administrative actions. See, e.g., School Comm. of Hatfield v. Board of Educ., 372 Mass. 513, 517, 363 N.E.2d 237 (1977). (FN 15.) The provisions of the ordinance promulgated under the statute are in most respects Page 10 similar to the statutory provisions. There are, however, material variations. Unlike the statute, the ordinance provides that a building owner is exempt from paying for AFSA units attributable to portions of the building rented as residential units. City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983. The ordinance also differs from the statute in that it is silent as to the application of revenues from AFSA charges. Further, there are discrepancies between the assessment, payment, and appeal dates established by the ordinance and those set forth in the statute. On the view we take of the case, we need not address the plaintiffs argument that the ordinance is invalid because it is inconsistent with the enabling statute or because it violates constitutional equal protection standards. (FN16.) Proprietary fees do not implicate the taxation power if "based on fair recompense for the public moneys expended for initial 'construction and for adequate maintenance" of the facilities used. Opinion of the Justices, 250 Mass. 591, 597, 148 N.E. 889 (1924). Similarly, regulatory fees are not taxes if commensurate with governmental expenditures occasioned by the regulated party. The general rule as to regulatory fees is "that the costs to the municipality which may be considered are [not] simply those which arise directly in the enforcement of the regulatory provisions themselves. The license fee may properly be fixed with a view to reimbursing the city, town, or county for , all expenses imposed upon it by the business sought to be regulated. 'In fixing upon the fee, it is proper and reasonable to take into account not the expense merely of direct regulation, but all the incidental consequences that may be likely, to subject the public to cost in consequence of the business licensed.' " United Business Comm'n v. San Diego, 91 Cal.App.3d 156, 166, 154 Cal.Rptr. 263 (1979), quoting County of Plumas v. Wheeler, 149 Cal. 758, 764, 87 P. 909 (1906). See Boston v. Schaffer, 26 Mass. 415, 9 Pick. 415, 419 (1830). See also Fletcher Oil Co. v. Bay City, 247 Mich. 572, 577, 226 N.W. 248 (1929); Opinion of the Justices, 112 N.H. 166, 170, 290 A.2d 869 (1972); Phillips v. Folcroft, 44 Pa.Cmwlth.Ct. 83, 86, 403 A.2d 194 (1979); Fort Worth v. Gulf Ref. Co., 125 Tex. 512, 529, 83 S.W.2d 610 (1935); State v. Jackman, 60 Wis.2d 700, 707, 211 N.W.2d 480• (1973). Cf. Richmond Heights v. Lo Conti, 19 Ohio App.2d 100, 110, 250 N.E.2d 84 (1969). See generally 3 C.J. Antreau, Municipal Corporations Law, § 24.14, at 24-551 (1981). 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. (,Y 462 N.E.2d 1098, 391 Mass. 415, Emerson College v. City of Boston, (Mass. 1984) *1107_ (FN17.) The city suggests that payment of AFSA charges has the voluntary aspect of a fee, see Vanceburg v. Federal Energy Regulatory Comm'n, 571 F.2d 630, 644 (D.C.Cir.1977); P. Nichols, supra at 6, rather than the coerced aspect of a tax, because the owner of an AFSA building may opt to reduce, and in some cases eliminate, future AFSA charges by installing fire suppression equipment such as sprinklers, smoke detectors, and smoke removal systems. The imposition of an AFSA charge is also contingent, however, on factors (such as building size, materials, and exposure) that are beyond the owner's control. According to the fire commissioner, a substantial reduction in the city's firefighting equipment and personnel requirements could be achieved through the installation of sprinkler systems in buildings lacking such systems. We note that there is no claim the buildings do not meet applicable State building code standards. (FN18.) The city argues that fire protection differs from other services in that mere availability constitutes a benefit to the owners of buildings which might otherwise be unprotected if struck by fire. Accepting, for purposes of discussion, the Page 11 proposition that owners of AFSA structures derive some pecuniary benefit from the availability of fire protection, see Fairmont v. Pitrolo Pontiac- Cadillac Co., 308 S.E.2d 527, 535 (W.Va.1983) (Neely, J., dissenting), but see State Univ. of N. Y. v. Patterson, 42 A.D.2d 328, 329, 346 N.Y.S.2d 888 (N.Y.1973), we note that the statute makes no attempt to distinguish that particularized benefit from the benefit provided to the general public. In. any event, other aspects of the AFSA statute, discussed in the text, preclude classification of the AFSA charge as a fee. (FN19.) The amici argue that, even if the AFSA charge is appropriately denominated a fee or excise tax, it is unconstitutional under Part H' C. 1, § 1, art. 4, of the Massachusetts Constitution, which requires that expenditures for the "public charges of government, or any part thereof' be defrayed through property taxes. See Dorgan v. Boston, 12 Allen 223, 235 (1866); Oliver v. Washington Mills, 11 Allen 268, 275 (1865).. Neither the plaintiff nor the defendants have briefed this issue. Because we conclude that the AFSA charge constitutes neither a fee nor an excise tax, we need not decide whether the Commonwealth or the city is constitutionally precluded from using fees or excises to pay for fire protection. © 2004 West,.a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 1 *297 798 N.E.2d 297 59 Mass.App.Ct. 798 Appeals Court of Massachusetts, Bristol. Paul F. SILVA V. CITY OF FALL RIVER & another. (FN1) No. 02-P-166. Argued April 30, 2003. Decided Nov. 4, 2003. Licensed funeral director brought, action against city and its board of health, seeking declaratory judgment, injunctive relief, and damages, and alleging that $20 burial permit fee charged by city was an illegal tax. The Superior Court Department, Vied Volterra, J., granted summary judgment in favor of city and board. Funeral director appealed. The Appeals Court, Cypher, J., held that burial permit charge was a tax, rather than a fee. Vacated and remanded. Brown, J., filed an opinion concurring in result. West Ileadnotes [l] Municipal Corporations X956(1) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. Under the Massachusetts Constitution, municipalities do not have an independent power of taxation; however, they may impose fees. [2] Licenses ~ 1 238 238I For Occupations and Privileges 238kl Nature of License for or Tax on Occupation or Privilege. [See headnote text below] [2] Municipal Corporations 0956(1) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the © 2004 West, a Thomson business. No claim to original U.S. Govt. works. AOV q/y 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 2 rights of the entity as proprietor of the instrumentalities used, or regulatory fees, including licensing and inspection fees, founded on the police power to regulate particular businesses or activities. [3] Municipal Corporations 0956(1) 268 268XIU Fiscal Matters 268XIH(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In. General. Proprietary, fees do not implicate the taxation power if based on fair recompense for the public moneys expended for initial construction and for adequate maintenance of the facilities used. [4] Municipal Corporations X956(1) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. Regulatory fees are not taxes if commensurate with governmental expenditures occasioned by the regulated party. [5] Licenses X5.5 238 238I For Occupations and Privileges 238k2 Power to License or Tax 238k5.5 Municipal Corporations. A municipality may assess a fee for costs that arise directly in enforcement of the regulatory provisions as well as for all expenses imposed upon it by the business sought to be regulated, including the incidental consequences'that may be likely to subject the public to cost in consequence of the business, licensed. [6] Dead Bodies (9=~ 1 116 116kl Right of Possession and Disposition in General. The disposal of human remains involves the public health and implicates the police power. [7] Licenses cg~= 1 238 238I For Occupations and Privileges 23.8kl Nature of License for or Tax on Occupation or Privilege. [See headnote text below] [7] Municipal Corporations (8= 621 268 268X Police Power and Regulations © 2004 West, a Thomson business. No claim to original U.S. Govt. works. Of/ 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) 268X(A) Delegation, Extent, and Exercise of Power 268k621 Permits. Generally, a "license fee" or "permit fee" is a charge for a privilege granted by-the license or permit. [8] Licenses (&~P 1 238 238I For Occupations and Privileges 238k1 Nature of License for or Tax on Occupation or Privilege. [See headnote text below] [8] Municipal Corporations «956(1) 268 268XIII Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. Page 3 . A fee exacted pursuant to a regulatory scheme falling within the police powers of a municipality appears, on the surface, to be a valid regulatory fee; whether an exactment falls within the category of a fee or a tax, however, must be determined by its operation rather than its specially descriptive phrase. [9] Licenses C;;;21 238 238I For Occupations and Privileges 238kl Nature of License for or Tax on Occupation or Privilege. [See headnote text below] [9] Municipal Corporati ons 0956(1) 268 268MM Fiscal Matters 268XIII(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. [See headnote text below] [9] . Taxation (&;P 1 371 371I Nature and Extent of Power in General 37111 Nature of Taxes. To determine whether a government exaction is a fee or a tax, the Appeals Court consider the following factors: (1) a fee is charged in exchange for a governmental service that benefits the party paying the fee in a manner not shared by other members of society; (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 (3) the charge is collected not to raise revenues but to compensate the governmental entity providing the service. 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 4 [10] Dead Bodies «3 116 116k2 Burial 116k3 In General. The burden of proving that city's burial permit charge was a tax, rather than a fee, fell on, licensed funeral director who brought action against city and its board of health,challenging charge as an illegal tax. [11] - Dead Bodies ~3 116 116k2 Burial 1160 In General: Burial permit charge imposed by city was a tax, rather than a fee; person seeking to dispose of human remains, as ultimate payer of permit charge, derived no benefit that was not shared by general public, both.proper interment and burial permit were mandatory, and it did not appear that funds collected were used to defray cost of enforcing relevant regulations. [12] Municipal Corp, orations'(&- 956(1) 268 268XIII Fiscal Matters 268XM(D) Taxes and Other Revenue, and Application Thereof 268k956 Power and Duty to Tax in General 268k956(1) In General. Fees imposed by A governmental entity are legitimate to the extent that the services for which they are imposed are sufficiently particularized as to justify distribution of the costs among a limited group, the users or beneficiaries of the services, rather than the general public. *298 Martin A. Silva, Fall River, for the plaintiff. Thomas F. McGuire, Jr., Fall River, for the defendants, submitted a brief. Present: BROWN, LENK, & CYPHER, JJ. CYPHER, J. Paul F. Silva, a licensed funeral director, filed a complaint under G.L. c. 231A against the city of Fall River and its board *299 of health (collectively, Fall River) alleging that the twenty-dollar burial permit fee charged by Fall River is an illegal tax and seeking declaratory judgment, injunctive relief, and damages. The parties filed cross motions for summary judgment and a Superior Court judge entered judgment in favor of Fall River, concluding that the burial permit charge was a valid regulatory fee and not an unlawful tax. Silva appeals. We think that the summary judgment record establishes that the burial permit charge exhibits more characteristics of a tax than of a fee. [59 Mass.App.Ct. 7991 Standard of review. " 'The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to, the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 [571 N.E.2d 357] (1991). For a grant of summary judgment to be upheld, the moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case." Miller v. Mooney, 431 Mass. 57, 60, 725 N.E.2d 545 (2000) © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 5 Background. The parties are in agreement as to the following. Disposition of human remains is a regulated activity. Every dead body of a human being dying within the Commonwealth must be buried, entombed, or cremated within a reasonable period of time after death. G.L. c. 114, § 43M. Such interment requires, among other things, the issuance of a burial permit. G.L. c. 114,§ 45. Failure to comply with the relevant laws can result in criminal prosecution. G.L. c. 114, § 43N. See Commonwealth v. Goodrich, 95 Mass. 546, 13 Allen 546, 548-549, 1866 WL 5039(1866); Commonwealth v. Gallison, 384 Mass. 184, 185, 425 N.E.2d 276 (1981). Before a dead body may be interred, a burial permit must be obtained from the local board of health or the town clerk of the town where the person died. G.L. c. 114, § 45. (FN2) To obtain the permit, the applicant must present a valid death certificate, (FN3) ibid., and, in Fall River, pay a twenty-dollar fee. (FN4) Once issued, the burial permit must be presented to the person in charge of the cemetery or crematory where the permit holder [59 Mass.App.Ct. 8001 seeks to dispose of the body. G.L. c. 114, § 47. That person is required to endorse the fact of burial, removal, or cremation on a coupon that accompanies the burial permit. Ibid. The completed coupon is returned to the local board of health issuing the burial permit. Ibid. The statutory scheme serves to ensure the proper disposition of human remains. On July 1, 1995, Fall River began charging a fee of ten dollars for the burial permit. In 2000, Fall River increased the fee to twenty dollars. The fees are deposited *300 into a general account of the city of Fall River. [1][2][3][4][5] Discussion. Under the Massachusetts Constitution, municipalities do not have an independent power of taxation; however, they may impose fees. (FN5) Greater Franklin Developers Assn. v. Franklin, 49 Mass.App.Ct. 500, 502, 730 N.E.2d 900 (2000). "Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on'the rights of the entity as proprietor of the instrumentalities used, Opinion of the Justices, 250 Mass. 591, 597 [148 N.E. 889] (1924) [ (1925) or regulatory fees (including licensing and inspection.fees), founded on the police power to regulate particular businesses or activities, id. at 602 [148 N.E. 889] " Emerson College v. Boston, 391 Mass. 415, 424, 462 N.E.2d 1098 (1984). (FN6) [6][7][8] The disposal of human remains involves the public health [59 Mass.App.Ct. 8011 and implicates the police power. Wyeth v. Board of Health of Cambridge, 200' Mass. 474, 479,86 N.E. 925 (1909). Generally, a license or permit fee is a charge for a privilege granted by the license or permit. 9 McQuillin, Municipal Corporations § 26.32; at 92 (3d ed.1995). A fee exacted pursuant to a regulatory scheme falling within the police powers of a municipality appears, on the surface, to be a valid regulatory fee. See id. § 26.16, at. 45. Whether an exactment falls within the category of a fee or a tax, however, "must be determined by its operation rather than its specially descriptive phrase." Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429, 176 N.E. 203 (1931). [9] To determine whether a government exaction is a fee or a tax, we consider the. following factors:. (1) a fee is charged in exchange for a governmental service that benefits the party paying the fee in a manner not shared by other members of society; (2) a fee is paid by choice, in that the fee payer has the option of not utilizing *301 the governmental service and thereby avoiding the charge; and (3) the charge is collected not to raise revenues but to ..compensate the governmental entity providing the service. Emerson College v. Boston, 391 Mass. at 424-425, 462 N.E.2d 1098. See National Cable Television Assn. v. United States, 415 U.S. 336, 340-341, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). [10][11] The burden of proving that the burial permit charge is a tax rather than a fee falls on Silva. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 201, 656 N.E.2d 563 (1995). The parties appear to agree that on this summary judgment record, there are no material facts in dispute and the matter may be decided as one of law. We apply the factors set forth in Emerson College v. Boston, supra. [12] 1. Par.4Gfar ed service benefittzng tha party pavrrig the fee The first consideration is whether the charge is for a "particular governmental service which benefits the party paying the fee in a manner 'not shared by other members of society.' " Emerson 159 Mass.App.Ct. 8021 College v. Boston, 391 Mass. at 424, 462 N.E.2d 1098, To view preceding link please click here quoting from National Cable Television Assn. v. United States, supra. In other words, "[flees are legitimate to the extent that the services for which they are imposed are 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 6 sufficiently particularized as to justify distribution of the costs among a limited group (the 'users,' or beneficiaries, of the services), rather than the general public." Id. at 425, 462 N.E.2d 1098. Silva claims that Fall River provides no particularized service for the burial permit fee and that, in the alternative, any service it does provide does not benefit the fee payer in a manner not shared by other members of society. (FN7) Silva points out that, unlike other mandatory city permits, such as building and food permits, where inspections are routinely made, a burial permit requires no particular governmental service before it is issued. Fall River responds that Silva derives an economic benefit from the regulation of the disposition of human remains. We think it is perhaps more accurate to state that Silva derives an economic benefit from the regulation of the funeral industry, for which he pays separate licensing fees. In any event, Fall River has cited no authority, nor are we aware of any, for characterizing economic benefits incidental to regulation as a "particular governmental service." Silva argues that, even if Fall River provides a particularized service for the fee, he receives 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. In response, Fall River analogizes the burial permit fee to the fee charged for the disposal of low-level radioactive waste. In Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 202-203, 656 N.E.2d 563, a generator of radioactive waste challenged an assessment by the State board regulating disposal of such waste. The Supreme Judicial Court concluded that there was a "sufficiently particularized" benefit to the plaintiff to make the charge a fee rather than a tax, stating that "[w]bile the safe disposal of low-level radioactive[59 Mass.App.Ct. 8031 waste is a public benefit it is the plaintiff (and not the general public) which requires access to disposal facilities for low-level radioactive waste meeting Federal. and State standards." *302 Id. at 204-205, 656 N.E.2d 563. We think that the comparison to low-level radioactive waste falls short, if for no other reason than that the funeral director or other'burial permit seeker is not the generator of the. human remains requiring disposal. Where charges have been determined to be valid fees rather than taxes, the fee has been for a particular service provided to a discrete group. See Southview Co-op. Hous. Corp. v. Rent Control Bd of Cambridge, 396 Mass. 395, 402-404, 486 N.E.2d 700 (1985) (fee paid by landlord to petition for rent adjustment was for particular service benefitting landlord); Bertone. v. Department of Pub. Util., 411 Mass. 536, 548-549, 583 N.E.2d 829 (1992) (electrical hookup charge was only to new or expanded customers, therefore there was sufficient particularization because new or expanded customers received benefit of new or expanded electricity); Commonwealth v. Caldwell, 25 Mass.App.Ct. 91, 95-96, 515 N.E.2d 589 (1987) (fee particularized to people choosing to moor boats); Winthrop v. Winthrop Hous. Authy., 27 Mass.App.Ct. 645, 647, 541 N.E.2d 582 (1989) (particularized benefit to those users who hooked up to sewer system); Aiello v. Commissioners of the County of Dukes County; 35 Mass.App.Ct. 151, 153-154, 617 N.E.2d 663 (1993) (charge for town communications center follow-up on electronic alarm signals was particularized to users). Contrast Emerson College v. Boston, 391. Mass. at 418 n. 5, 427, 462 N.E.2d 1098 (fire protection once included in general property tax was improperly reclassified as special service); Greater. Franklin Developers Assn. v. Franklin, 49 Mass.App.Ct. at 504, 730 N.E.2d 900 (provision of school facilities is not particularized service but is government's obligation to provide such facilities out of general revenue funds). That the general public benefits from a regulated system of disposal of human remains cannot be seriously contested. Wyeth v. Board of Health of Cambridge, 200 Mass. at 479,.86 N.E. 925. Compare Emerson College v. Boston, 391 Mass. at 425-426, 462 N.E.2d 1098 (fire protection services benefitted not just propertyinterests of owner but occupants of building and surrounding buildings and their occupants); Berry v. Danvers, 34 Mass.App.Ct. 507, 510, 613 N.E.2d 108 (1993) (charge for connecting to sewer system was not just used for [59 Mass.App.Ct. 8041 new connections and benefitted all users); Greater Franklin Developers Assn. v. Franklin, 49 Mass.App.Ct. at 503, 730 N.E.2d 900 (benefit of expanded school facilities was not particularized to fee payers). We think that the issuance of the burial permit does not benefit Silva or any other permit seeker in a manner not shared by the general public. The enforcement of regulations regarding the disposal of human remains is an essential governmental function. 2 hozce of payizten; The second factor is whether the charge is paid by choice "in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge." (FN8) Emerson 0 2004 West, a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 'Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page' 7 College v. Boston, 391 Mass. at 424425, 462 N.E.2d 1098. According to Emerson College, whether a person may *303 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. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 205, 656 N.E.2d 563. . Silva argues that he has no choice but to procure a burial permit. -The motion judge concluded that Silva may avoid the fee by choosing another profession. See Bertone v. Department of Pub. Util., 411 Mass. at 549, 583 N.E.2d 829, quoting from Southview Co-op. Hous. Corp. v. Rent Control Bd of Cambridge, 396 Mass. at 402, 486 N.E.2d 700 (fees are not taxes 'even though they must be paid in order that a right may be enjoyed'). That Silva himself, in his capacity as a funeral director, may avoid the fee by choosing another profession does not, however, end the inquiry in the circumstances of this case. The fee payer, ultimately, is the person requiring Silva's services. (FN9) Anyone seeking to dispose of the remains of a person who died in Fall River will be unable to avoid the fee. See Berry v.. Danvers, 34 [59 Mass.App.Ct. 8051 Mass.App.Ct. at 512-513, 613 N.E.2d 108 (charge was tax where State Environmental Code required use of local sewer system and did not permit construction of private sewer system). Moreover, the fact that proper interment and the burial permit are compelled is further confirmation of the public nature of the benefit. "Fees generally are charged for services voluntarily requested." Emerson College v. Boston, 391 Mass. at 426, 462 N.E.2d 1098. See National Cable Television Assn. v. United States, 415 U.S. at 341, 94 S.Ct. 1146 (fee is incident to voluntary act). 3 , purpose of the fee. The final factor under the Emerson College test is whether the charge is made for the purpose of raising general revenue or for the purpose of covering the cost of the governmental service. Fall River may charge a fee for reasonable expenses incident to enforcement of the statutory requirement that it issue burial permits, as municipalities have authority to impose fees "to cover reasonable expenses incident to the enforcement of the rules." Commonwealth v. Plaisted, 148 Mass. 375, 382, 19 N.E. 224 (1889). See Southview Co- op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. at 400, 486 N.E.2d 700. Other than Fall River's assertion in its brief that the money collected is a best estimate of the cost of record- keeping, there is nothing in the record indicating what the charges are for or what expenses Fall River incurs as a result of the burial permit requirement. (FN10) No affidavit in support of Fall River's motion for summary judgment or in opposition to Silva's motion appears in the record. There is no reference to any expenses caused by the burial requirements or other services provided by Fall River in the parties' statement of undisputed facts. There is also nothing in the record to indicate that Fall River checks the issued burial permits to be *304 certain that the coupon verifying burial has been returned. [59 Mass.App.Ct. 8061 Silva points to the fact that the fees are deposited in Fall River's general account as evidence that the fees were "destined instead for a broader range ofservices or the general fund." Berry v. Danvers, 34 Mass.App.Ct. at 513, 613 N.E.2d 108. Fall River claims in its brief that the fee represents a reasonable estimate of the cost of the service provided, which is the service of supervision and record keeping in connection with the disposition of each dead body and that the fee is not large enough to subsidize general governmental operations. (FN1 l) In some circumstances, a rough estimate may be sufficient. See Aiello v. Commissioners of the County of Dukes County, 35 Mass.App.Ct. at 154, 617 N.E.2d 663 (fee was crude estimate but there was no showing that charges significantly and consistently exceeded cost of services). Furthermore, it has been suggested, at least with regard to license' fees, that the amount of the fee would not be "scrutinized too curiously even if some incidental revenue were obtained." Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. at 403, 486 N.E.2d 700, quoting from Opinion of the Justices, 250 Mass. at 602, 148 N.E. 889. Here, however, with uncontradicted evidence that the funds are deposited to Fall River's general account and nothing in the record to indicate the basis on which the charge was calculated or how the funds are used to defray expenses, we cannot conclude that the money collected is not used to subsidize general governmental operations. See Berry v. Danvers, 34 Mass.App.Ct. at 513, 613 N.E.2d 108 (where revenue was deposited into general fund and was available for use for many other sewer projects it was properly characterized as tax). Contrast Bertone v. Department of Pub. Util., 411 Mass. at 550, 583 N.E.2d 829 (revenue generated by fee was not added to general © 2004 West, a Thomson business. No claim to original U.S. Govt. works. 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 8 fund for service to all but was targeted to newly required construction); Nuclear Metals, Inc. V. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. at 207, 656 N.E.2d 563 (charge was fee where it funded particularized services [59 Mass.App.Ct. 8071 provided by board, no part of charge was treated as general revenue. and, in fact, went into separate fund). Conclusion. It is tempting to characterize the burial permit fee as a valid regulatory fee because, after all, there are other events in life that are also unavoidable and in which regulatory power of government is necessarily involved. Birth, sewer use, and water use easily come to mind. When examined closely, however; the comparisons fail. While a municipality may charge a fee for furnishing a copy of a birth certificate, there is no charge for recording a birth. See G.L. c. 262, § 34. It appears that the burial permit fee is a charge for merely recording the permit. Sewer use charges have been found to be an invalid tax in circumstances where the. use was compelled. See Berry v. Danvers, 34 Mass.App.Ct. at 512-513, 613 N.E.2d 108. As for water, we concluded that a municipality's surcharge on the use of town water was a valid fee because, in the circumstances of the case, the benefits of the service supported by the fee were sufficiently particularized to the surcharged users and there was nothing in the record *305. to suggest that the fee was used to supplement the general revenue. See Morton v. Hanover, 43 Mass.App.Ct. 197, 200, 202, 6.82 N.E.2d 889 (1997). We think that the burial permit charge is better characterized as a tax than a fee because the payer of the fee derives no benefit that is not shared by the general public, proper interment is mandatory, the burial permit is mandatory, and it does not appear in the record that the funds are used to defray the cost of enforcing the relevant regulations. The judgment declaring that the burial permit charge is a fee is vacated. We remand the case for further proceedings consistent with this opinion. So ordered, BROWN, J. (concurring in result). I see no need to take a position on the analysis of the majority. I write only to point out that Fall River, like so many other litigants, did not fully appreciate the devastating consequences that may ensue from a [59 Mass.App.Ct. 8081 failure to understand the summary judgment procedural protocol. As soon as the summary judgment materials were presented to the Superior Court for resolution, Fall River was doomed, as it had failed to controvert the assertions of the moving party. See Community Natl. Bank v. Dawes, 369 Mass. 550, 553-556, 340 N.E.2d 877 (1976), for boilerplate language setting out the prescribed scenario to be followed in a summary judgment context. Dawes is the seminal case, but its progeny is long and explicit. (FN1.) Board of health of Fall River. (FN2.) The relevant portion.of G.L. c. 114, § 45, provides: "no undertaker or other person shall bury or otherwise dispose of a human body in a town, or remove therefrom a human body which has not been buried, until he has received a permit from the board of health or its agent appointed to issue such permits, or if there is no such board, from the clerk of the town where the person died:..." (FN3.) The death certificate is forwarded to the Registry of Vital Records and Statistics. Until 1955, FallRiver paid funeral directors twenty-five cents for each death certificate they obtained and filed. See G.L. c. 46, § 11, as in effect prior to St:1955, c. 95, § 2. (FN4.) The nearby towns of Somerset, Swansea, and Westport do not charge a burial permit fee. Some States have statutes authorizing charges for burial permits. See Conn. Gen.Stat: § 7-65 (2003); Me.Rev.Stat. Ann. tit. 30-A, § 2652 (West 1996); N.J. Stat. Ann. § 26:6-17 (West 1996). (FNS.) Fall River claims that it has authority to charge a fee pursuant to its general power to adopt regulations under G.L. c. 111, § 31. See G.L. c. 40, § 22F, which, when accepted by a city or town, allows municipal boards and. officers to fix reasonable fees for licenses, permits, certificates, services, or other work performed. It appears that Fall River has not voted to accept G.L. c. 40, § 22F. Fall River also claims that it is authorized to charge a 0 2004 West, a Thomson business. No claim to original U.S. Govt works. Q ?Oool 798 N.E.2d 297, 59 Mass.App.Ct. 798, Silva v. City of Fall River, (Mass.App.Ct. 2003) Page 9 burial permit fee because "an express statutory grant to a municipality or agency of authority to regulate includes authorization to require licenses and licensing fees 'to cover reasonable expenses incident to the enforcement of the rules.' " Southview Co-op. Hous. Corp. v. Rent Control Bd of Cambridge, 396 Mass. 395, 400, 486 N.E.2d 700 (1985), quoting from Commonwealth v. Plaisted, 148 Mass. 375, 382, 19 N.E. 224 (1889). We are not concerned with Fall River's authority to impose a fee, but with whether the exactment is, in reality, a tax. (FN6.) "Proprietary fees do not implicate the taxation power if based on fair recompense for the public'moneys expended for initial construction and for adequate maintenance' of the facilities used. Opinion of the Justices, 250 Mass. 591, 597 [148 N.E. 889] (1924) [ (1925) Similarly, regulatory fees are not taxes if commensurate with governmental expenditures occasioned by the regulated party." Emerson College v. Boston, 391 Mass. at 425.n. 16, 462 N.E.2d 1098. The municipality may assess a fee for costs that arise directly in enforcement of the regulatory provisions as well as for all expenses imposed upon it by the business sought to be regulated, including "the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed." Ibid., quoting from United Bus. Commn. v. San Diego, 91 Cal.App.3d 156, 166, 154 Cal.Rptr. 263 (1979). A regulatory fee is also characterized by the extent of the reliance by the party challenging the fee on an essential regulatory service provided by the governmental entity exacting the fee. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 203, 656 N.E.2d 563 (1995). *305_ (FN7.) For example, Fall River does not inspect the funeral director's premises or the burial or cremation site, and although the local board of health is responsible for regulating cemeteries, Fall River makes no claim that the fee is related to the regulation of cemeteries. (FN8.) We have observed that of the three factors in the Emerson College test, the second factor, whether the plaintiffs use of the service is truly optional, is not necessarily determinative of whether a charge is a fee or a tax. See Morton v. Hanover, 43 Mass.App.Ct. 197, 202, 682 N.E.2d 889 (1997). Rather, it is "arguably only subsidiary to, and an additional manifestation of, the analytically more comprehensive first factor, particularized private rather than general public benefit." Berry v. Danvers, 34 Mass.App.Ct. at 512 n. 6, 613 N.E.2d 108. .FN9.) The cost of the burial permit fee is passed on to the person seeking to dispose of human remains, typically the next of kin. (FN10.) It does not appear that Fall River provides any regulatory service to the funeral industry. Silva introduced evidence by way of affidavit and exhibits that the funeral, industry is regulated by the board of registration in embalming and funeral directing. See G.L. c. 112, 82-87; 239 Code Mass. Regs. 3.00-3.16 (1998). The local board of health issues licenses to the funeral homes, but otherwise'provides no regulatory services to the funeral industry. G.L. c. 114, § 49. Under G.L. c. 114, § 37, the board of health: is authorized to make regulations concerning burial grounds and interments within the town. Under G.L. c. 114, § 34, the, board of health is charged with approving the use of land for cemeteries: (FN 11.) We observe that the Legislature has provided a mechanism. by which municipalities can charge fees for certain filing actions in the absence of other appropriate municipal authorization. See G.L. c. 262,§ 34, which enumerates the fees for certain filing actions. The statute permits a municipality to charge a fee for furnishing a birth or a death certificate but does not authorize a fee for the recording of the birth or death. © 2004 West, a Thomson business. No claim to original U.S. Govt. works. Hechenbleikner, Peter From: Hechenbleikner, Peter Sent: Tuesday, April 19, 2005 10:01 AM To: 'Chuck Robinson' Subject: RE: Overlay Account We got the letter, and discussed at the BOS level and I presented the information to FINCOM. My recommendation is to "ramp up" the amount over several years to hit a target amount of $500,000 eventually. I told the Board of Assessors this in a meeting with them. Ultimately it is up to the Board of Assessors to make their determination, and we could (would) appeal that to the Department of Revenue. Richard Foley developed the history of use of the overlay, which we have provided to the Board of Assessors and would present to the DOR. Pete -----Original Message----- From: Chuck Robinson [mailto:crobinso@srcins.com] Sent: Thursday, April 14, 2005 9:20 AM To: Hechenbleikner, Peter Subject: Overlay Account Peter, Tom Ryan called to tell me that our figure for the captioned is wrong. It should be $500,,000 in lieu of $410,000. He said the board had sent a letter on the $500,000 to Jim Francis earlier in the year. Should this be changed on Bll and B12. Thanks. Chuck Hechenbleikner, Peter To: Subject: Mr. and Ms Floyd normafloyd@juno.com RE: Thanks for your email. What you may not realize, is that the Town of Reading is doing all of the things you suggest, and in addition is proposing additional means of reducing low flow problems in the Ipswich River by buying alternative water from the MWRA. The Town would reduce our summer usage of the Ipswich River basin from current levels in the summer of up to 2.4 million gallons per day, to 1 MGD. This is being done at considerable expense to Reading ratepayers - approximately $3.5 million dollars. I'm afraid that the Ipswich River Watershed Association is not giving out all of the information regarding this matter. Peter Hechenbleikner Town Manager -----Original Message----- From: normafloyd@juno.com [mailto:normafloyd@juno.com] Sent: Wednesday, April 13, 2005 10:24 PM To: Reading - Selectmen Cc: Ellen.RoyHerzfelder@state.ma.us Subject: Board of Selectmen, Reading Chairman Herzfelder, MWRC Executive Director Honkonen, MWRC Commissioner Gillespie, DAR Commissioner Robert Golledge, DEP Commissioner Pritchard, DCR RE: IPSWICH RIVER LOW WATER AMELIORATION 2005 April 8, We ask that you deal responsibly regarding "non-essential" summertime water use on the IPSWICH RIVER. We, our family and friends try to patronize the kayak business there and get stuck on the bottom. This is sad as the area is lovely for recreation. You public officials bear the responsibility to steward resources wisely. The public is selfish and greedy but educable. Please, amend Reading's application.for an interbasin transfer to require: 1. Effective restrictions on non-essential outdoor water use during low-flow periods as is done in many communities across the country. 2. Adequate limits on Reading's well usage during low-flow periods especially once its new water treatment plant is online. 3. Overall responsibly improved water conservation requirements including a water bank. 4. Water rates including conservation incentives. Thank you for your leadership in improving the dire situation with the endangered Ipswich river. Sincerely, Mr. and Mrs. H. Christian Floyd, friends and family I Reading Municipal Light Board of Commissioners 230 Ash Street Reading, MA 01867 April 20, 2005 7:30 p.m. Regular Session Agenda Note: The RMLD Board of Commissioners Policy Subcommittee met Thursday, April 14, 2005 at 8:30 a.m. in the RMLD General Manager's Conference Room. The RMLD Board of Commissioners Policy Subcommittee met Wednesday, April 20, 2005 at 6:30 p.m. in the RMLD Cafeteria. Please bring your Financial Report, February 28, 2005 to the meeting. This meeting of the Reading Municipal Light Department (RMLD) Board of Commissioners April 20, 2005 is being broadcast at the RMLD's office at 230 Ash Street, Reading, MA. Live broadcasts are available only in Reading due to technology constraints. This meeting is being video taped for distribution to the community television stations in North Reading, Wilmington and Lynnfield. 1. Regular Session Agenda 2. Minutes December 1, 2004 3. Report of the Chairman of the Board a. Introduction of new RMLD Board of Commissioner member Richard Hahn b. Reelection of RMLD Board of Commissioner members Kearns and Soli C. Reorganization of the RMLD Board of Commissioners Note: In accordance with RMLD Policy 19, Board of Commissioners, Chairman Pacino has served a three year term on the Account Payable and Commissioner Herlihy has served a three year term on Payroll therefore they cannot be considered for another term. A formal vote will be taken for each of the Subcommittees. 4. Selectmen Liaison, Citizens' Advisory Board and Customer Comments 5. Report of RMLD Board Subcommittees a. Policy Subcommittee (Commissioner Soli) b. Meeting with Town Treasurer and Accounting/Business Manager (Commissioner Soli) 6. Action Items a. RMLD Policy 13, Revision 3, Use of RMLD Conference Rooms b. RMLD Policy 19, Revision 10, Board of Commissioners Note: According to this Policy once this is approved it needs to be advertised in the four towns the RMLD services. c. RMLD Policy 21, Revision, 8, Management Salaries and Overtime Regular Session Agenda April 20, 2005 7. General Manager's Report a. New RMLD Website Design b. Financial Report, February 28 c. RMLD Variance Summary Report through February 28, 2005 d. 2005 Capital and Operating Budget - Basis for Estimates e. Customer Advances in Review in the Aid of Construction 2 Note: Commissioner Soli requested an update at the last RMLD Board of Commissioners meeting. f. Reading Town Payment g. APPA National Conference Anaheim, California, June 20-22, 2005 Note: The General Manger will be attending this conference. 8. Board Discussion a. Rate Comparisons, March 2005 b. E- Mail Explanation for Account Payable and Payroll Removal Sheets Next Meeting Dates Town of Reading, Town Meeting, Monday, April 25, 2005 RMLD Board'Meeting, Wednesday, May 18, 2005 RMLD Board of Commissioners Subcommittee Meetings Rate Subcommittee Operating and Capital Budget Subcommittee RMLD Board Rotation at Citizens' Advisory Board (CAB) Meetings Tuesday, April 26, 2005, Wilmington 9. Executive Session (General Manager's Conference Room) SuEeested Motion: Move that the Board go into Executive Session, to discuss, to, Arbitration, IBEW Local 103 issues, LMS union issues Federal Energy Regulation Commission, and release of Executive Session Meeting Minutes and to return to Regular Session for the sole purpose of adjournment. 10. Motion to Adjourn Regular Session Agenda April 20, 2005 Reference Information: - Appropriate topics for Executive Session: This Agenda has been prepared in advance and does not necessarily include all matters, which may be taken up at this meeting. (1) to discuss the "reputation, character, physical condition or mental health rather than the professional competence" of a particular individual, (2) to consider the discipline or dismissal of, or to hear complaints or charges brought against a public officer, employee, staff member, or individual, (3) to discuss strategy with respect to collective bargaining or litigation, if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body; to conduct strategy sessions in preparation for negotiations with nonunion personnel; and to conduct collective bargaining sessions or contract negotiations with nonunion personnel, (4) to discuss the deployment of security personnel or devices, (5) to investigate charges of criminal misconduct or to discuss the filing of criminal complaints, (6) to consider the purchase, exchange, lease or value of real property if an open discussion may have a detrimental effect on the negotiating position of the governmental body with a person, firm, or corporation, (7) to comply with the provisions of any general or special law or Federal grant-in-aid requirements, (8) to consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a primary or preliminary screening, (9) to meet or confer with a mediator, as defined in section twenty-three C of chapter two hundred and thirty-three, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a) any decision to participate in mediation shall be made in open meeting session and the parties,. issues involved and purpose of the mediation, shall be disclosed; and (b) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required in this section. and to return to regular session [choose applicable topics] (1) for the sole purpose of adjournment; (2) for the purposes of continuing regular session; [individually list each Commissioner and their vote] Revised in accordance with the Open Meeting Law Guidelines, September, 2003 D C' icf MMA Action Alert #5: April 15, 2005 L L Q~- II 1 _ j~ ~I ~v SUPPORT MA LOCAL AID AMENDMENTS O A BUDGET Please Tell Reps. That Local Aid Must Increase: Back MMA Municipal & School Aid Proposals House budget writers released their proposed version of the state budget for fiscal 2006 (H. 4000), and included no increases in aid over the disappointing and inadequate levels in the Governor's January submission (House One). The failure to restore more of the steep cuts in aid that have hit so many cities and towns will only deepen a serious local fiscal crisis, force increased reliance on already onerous property taxes, and trigger another round of deep cuts in local and school services. Please call vour Representatives TODAY and tell them that the local aid in H. 4000 must be increased or communities will face their worst vear vet. The House budget debate will begin on April 25. It is imnerative that levislators commit now to support 4 kev amendments that have been filed by the MMA: LOTTERY: Rep. John Scibak has filed an MMA amendment to phase out the Lottery diversion over 2 years instead of the 4 years in H. 4000 (providing $55 million more in Lottery funds than the HW&M Committee or Governor's budgets); CHAPTER 70: Rep. Steve Kulik has filed an MMA amendment to guarantee a Ch. 70 increase to every school district of at least $50 per student (adding $30 million statewide), to fill the void in H. 4000 and House One (which provide no increase to 2/3rds of the districts in the state); ADDITIONAL ASSISTANCE: Rep. Pat Jehlen has filed an MMA amendment to restore 25% of the deep Additional Assistance cuts that were imposed on 159 cities and towns across the state ($24 million); and CHAPTER 70: Rep. John Lepper has filed an MMA amendment to increase Chapter 70 aid by $78.5 million over H. 4000 and House One to ensure that all cities & towns receive an increase in Chapter 70 above fiscal `05 as follows: The highest of either: a) $50 dollars per student; b) restoring 50% of the lost Ch. 70 aid below fiscal 2003 levels; or c) the H. 4000/House One level. Our message is clear: • Cities and towns are facing their worst year yet. Major budget shortfalls are common and more municipal and school aid is necessary to help local government recover from the deep local aid cuts of the past several years and to stem growing over-reliance on the property tax. • Local aid was cut by more than $500 million from fiscal 2002 to fiscal 2004, including deep cuts in Additional Assistance, Lottery distributions and Chapter 70 school aid. The cuts led to huge layoffs (14,500 positions) and property tax increases ($330 million a year). • The spiking property tag burden is a major statewide issue. The property tax has increased to almost 54% of total municipal revenues statewide according to preliminary state data for fiscal 2005. This reliance on the property tax is higher than any year since fiscal 1982 - a 23 year high. • The Lottery belongs to cities and towns. It was established 3 decades ago as a local revenue to pay for local services and reduce reliance on the property tag, NOT to balance the state budget. The diversion should end, and these local Lottery funds should be returned home. PLEASE CALL YOUR LEGISLATORS TODAY AND HAVE THEM PLEDGE TO SUPPORT AND WORK TO WIN THESE VITAL LOCAL AID AMENDMENTS. Massachusetts Municipal Association, Sixty Temple Place, Boston, Massachusetts 02111; (617) 426-7272 6 SIGN-IN SHEET FOR THE BOARD OF SELECTMEN ME STING DATE: NAME ADDRESS (Please print) r