49 Mass. App. Ct. 500 | Mass. App. Ct. | 2000
Sheltered by geography from the bustle of Boston, yet within a reasonable commute to work, the town of
On December 4, 1995, the date on which the Greater Franklin Developers Association (association) brought this action, bylaw amendment 95-300, adding a new chapter 83 to the town code, had come into effect, under which the town imposed a “school impact fee” to “ensure[] that development bears a proportionate share of the cost of capital facilities necessary to accommodate such development and to promote and protect the public health, safety and welfare.” § 83-2(2). The association and certain of its individually named members sought declaratory and injunctive relief in the Superior Court to set aside the imposition and collection of those fees. On cross-motions for summary judgment, the judge decided in favor of the association. The judge declared that the fees were “an invalid and unauthorized tax.” The town appeals.
The material facts are not disputed. Essentially carrying out the recommendations of the town council’s forecast of overcrowding in the public schools, the legislative findings of the by-law amendment state that “Franklin must expand its school systems if new development is to be accommodated without decreasing current [educational] standards.” § 83-2(1). The findings further state that “[e]ach type of residential dwelling unit [subject to this by-law] will create demand for the acquisition, expansion or construction of school improvements.” § 83-2(3).
The pertinent part of the by-law reads as follows: “No certificate of use and occupancy for any new or expanded residential building . . . shall be issued unless and until the impact fees hereby required have been paid, unless exempted by this By-Law.” § 83-3(A). The by-law sets out a fee schedule, based on the estimated cost increase imposed by each kind of housing unit. Each single-family house, for example, is estimated to bring .68 children into the public school system, while each condominium brings .25 children. Initially, the town determined how much of the cost to expand the school system would remain after it utilized all other funding sources, and
Under Massachusetts law, towns do not have the power to tax. See art. 89, § 7, of the Amendments to the Massachusetts Constitution (“Nothing in this article shall be deemed to grant to any city or town the power to . . . levy, assess and collect taxes . . . .”); Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 92 (1987). Towns may, however, exact fees. See G. L. c. 40, § 22F (“Any municipal board or officer empowered to issue a license, permit, certificate, or to render a service or perform work for a person or class of persons, may, from time to time, fix reasonable fees for all such licenses, permits, or certificates . . . and may fix reasonable charges to be paid for any services rendered or work performed”). This case turns on whether the by-law imposes an impermissible tax or a permissible fee.
Fees “share common traits that distinguish them from taxes: [1] 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’; [2] they are paid by choice, in that the party paying the fee has the option of not. utilizing the governmental service and thereby avoiding the charge; and [3] the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses.” Emerson College v. Boston, 391 Mass. 415, 424-425 (1984) (citations omitted).
We apply the analysis developed in the Emerson College case to distinguish valid municipal user fees from unlawful taxes
More than that, assuming without deciding that individuals under the by-law are able to demonstrate that their new housing will not contribute to the demand for more schools and thereby exempt themselves from the fee requirement, the benefit of new school facilities still is not limited to fee payers. An example may be illustrative: The funds are earmarked for capital improvements, such as a new cafeteria or an entirely new school. No one has proposed, as we expect no one would, that only students living in homes assessed this fee be granted access to the new cafeteria, while those living in older homes must continue to eat in the gymnasium; nor that children living in homes not assessed the fee be prevented from attending the new school, and instead must be bused to an older facility.
As for the second test, that the fee be paid by choice, it is true that developers can decide not to build residences in the town and that homebuyers, if they are the fee payers, can buy elsewhere. See Bertone v. Department of Pub. Util., 411 Mass. 536, 549 (1992); Baker v. Department of Envtl. Protection, 39 Mass. App. Ct. 444, 446 (1995). The motion judge so held,
The town points to St. John’s County v. Northeast Florida Builders Assn., Inc., 583 So. 2d 635 (Fla. 1991), a case in which the Florida Supreme Court upheld a school impact fee. The law of Florida, however, requires only that the town satisfy a “rational nexus” test. See id. at 637. The Emerson College test is far more stringent. The case before us also differs in several key ways from the other case the town relies on, Bertone v. Department of Pub. Util., 411 Mass. 536 (hook-up charges assessed to those seeking electrical service at a location not previously serviced are valid fees). Most importantly, a
In concluding that the school impact fee is really a tax, we are not without sympathy for the town’s position. “There can be no controversy about the obvious fact that the orderly development of a municipality must necessarily include a consideration of the present and future need for school . . . facilities.” Pioneer Trust & Sav. Bank v. Mount Prospect, 22 Ill. 2d 375, 380-381 (1961). As said in Daniels v. Point Pleasant, 23 N.J. at 362, however, “the remedy must come not from the municipalities nor from the courts, but from the Legislature.”
Finally, the town fastens upon the notion that the service bought with this fee is the increased marketability that new homes boast when located near schools with sufficient capacity for incoming pupils. It is enough to say that the by-law itself states that the money is being collected to pay for the cost of new school facilities. See § 83-3(D)(1). The town filed nothing — and the record contains nothing — setting forth facts which unsettle the conclusion that the benefits obtained by exacting the school impact fee are expanded and improved school facilities.
Judgment affirmed.
Although the occupancy permit fee payer has the option of preparing and submitting to the town administrator an independent fee calculation study, the by-law amendment requires that the calculation must follow the town’s methodology and establishes that the town administrator is at liberty to accept or reject the permit seeker’s calculations. See § 83-3(B)(2). According to the record, the school impact fee schedule charges $2,500 for single family detached homes; $528 for condominium/single family attached homes; and $726 for multi-family/rental residences. See id. at § 83-4(2).
As it is not before us, we do not pass on the dubious legality of such segregation. We simply illustrate the point that beyond the obvious benefit accruing to society at large from the availability of sufficient facilities to educate every child, the benefit accming to individual children — and through them to the actual fee payers — is not particularized.
Although the town’s counsel devotes considerable energy on appeal to claiming that the motion judge erred in determining that the voluntariness prong was not met, in fact he concluded that it was.
Amici curiae for the town claim the Superior Court erred in failing to consider three additional cases from other jurisdictions upholding school impact fees or land dedications. The motion judge explicitly discussed these very cases in his decision, correctly distinguishing them as upholding such fees or dedications either under a statute that specifically permits the imposition of fees or dedications for schools, or under a Florida-style rational nexus test. See Loyola Marymount Univ. v. Los Angeles Unified Sch. Dist., 45 Cal. App. 4th 1256 (1996) (statute); Krughoff v. Naperville, 68 Ill. 2d 352, 358-359 (1977) (statute plus rational nexus); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 614-620 (1965) (statute plus rational nexus). Furthermore, as these amici intended to persuade us that the by-law at issue was not a tax and therefore could be grounded on home rule, one of the above was particularly poorly chosen. Jordan, supra at 621, reads: “The provision possesses sufficient attributes of a tax so that it cannot be grounded upon the home-rule amendment, sec. 3, art. XI of the Wisconsin constitution.”