DENVER STREET LLC vs. TOWN OF SAUGUS (and three companion cases [Note 1]).

DUFFLY, J. For a number of years, the town of Saugus (town) coped with its failing sewer infrastructure by releasing water

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and sewage into the Saugus River. In 2005, the town entered into an administrative consent order (ACO) with the Department of Environmental Protection (DEP) that mandated repairs to reduce the amount of groundwater inflow and infiltration (I/I) into the system. The four plaintiffs, Denver Street LLC (Denver Street), Paul DiBiase, as trustee of Oak Point Realty Trust (Oak Point), Kevin Procopio, as trustee of Vinegar Hill Estate Trust (Vinegar Hill), and Central Street Saugus Realty, LLC (Central Street), are developers and landowners who sought permits for residential construction in the town. The town required the plaintiffs to connect to the town sewer system and charged them an I/I reduction contribution, termed a "fee" by the town, which they paid under protest. The plaintiffs thereafter filed separate complaints in Superior Court that set forth substantially similar allegations that the I/I reduction contribution each was required to make in order to connect to the town's sewer system constituted an illegal tax rather than a permissible fee. The plaintiffs sought refunds of these payments. [Note 2] Vinegar Hill also sought declaratory relief. The complaints were consolidated, and the matter proceeded to trial without a jury.

The trial judge determined that the I/I reduction contribution was not an allowable fee but an illegal tax. Judgments issued in favor of each of the plaintiffs ordering the town to refund the amount of the I/I reduction contribution each had paid, plus fees and costs. Prejudgment interest at the rate of twelve per cent was added to each of the awards. [Note 3]

On appeal, the town's challenge to the judge's conclusion

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that the I/I reduction contribution constituted an illegal tax focuses on claims that (i) the new users received a particularized benefit, and (ii) the payments bore a reasonable relationship to the costs of sewer system repairs. The town also claims that it was error to impose a twelve percent rate of interest as provided by G. L. c. 231, § 6H. [Note 4] We affirm. [Note 5]

Facts. We summarize the judge's comprehensive findings and the uncontested facts of record. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 , 630 (2010). The town has had trouble with its sewer system for many years, with official documents in the record indicating recognition of this fact at least as far back as 1986. Central to the issues in this appeal is the town's degraded or inadequate sewer infrastructure, which allowed water to enter the sewer system and occasionally to overload it. [Note 6] Overloading occurs when ground water leaks into the sanitary sewer system through defective pipes, pipe joints, and sewer connections (infiltration), or when rain or other extraneous sources of water enter the system from public sources such as manhole covers and private sources such as sump pumps and roof drains (inflow). I/I increases the volume of liquid in the sewer system, which can result in sewage overflows when excessive amounts of I/I caused by storm events push the system to or beyond its capacity. Prior to 2005, during overflow events, in order to prevent sewage from backing up into homes and businesses linked to the sewer system, the town discharged

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untreated sewage directly into the Saugus River, which flows through Rumney Marsh, an "Area of Critical Environmental Concern," and from there to the ocean.

Repeated discharges of sewage into an environmentally sensitive area brought the scrutiny of the DEP, which in 2004 instituted administrative proceedings against the town for its asserted violations of the Clean Waters Act, G. L. c. 21, § 43(2), and related Massachusetts regulations governing operation and maintenance of wastewater treatment works and indirect dischargers. 314 Code Mass. Regs. § 12.03(8) (2002). 314 Code Mass. Regs. § 12.04(8) (1996). In 2005, to resolve the administrative action, the town entered into the ACO with the DEP, which required the town to implement plans to identify and eliminate sources of I/I as a condition of allowing new wastewater discharges to the sanitary sewer system. [Note 7]

In accordance with the ACO, the town instituted a moratorium on any new construction that would affect the sewer system until such time as a plan was implemented that successfully addressed the I/I problems leading to overflow into the river. As further required by the terms of the ACO, the town created and implemented an "Inflow and Infiltration Reduction Program Sewer Connection and Extension Policy" (SCEP) and a mechanism for calculating when I/I reduction was such that new flow would be permitted. That mechanism, called the "sewer bank," has been in use in a number of other cities and towns in the Commonwealth.

Under the sewer bank procedure, applicants seeking to connect to the sewer system could "purchase" gallons of flow from the sewer bank by making an I/I reduction contribution. The procedure is in essence a means of record-keeping that enables the town and the DEP to keep track of total gallons of I/I flow remediated. As repairs by the town were completed, I/I would be removed from the system. The I/I removed, measured in gallons, would result in a credit to the sewer bank of a specified

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number of gallons of flow. In accordance with the formula set forth in the ACO, the town initially was permitted to add one gallon of flow to the sewer bank for every ten gallons of I/I removed from the sanitary sewer system. These credits could then be, but were not required to be, allocated to new construction. As the town successfully removed I/I-related flow from the system, that is, when the total I/I removal reached 250,000 gallons, this 10:1 ratio would drop to 6:1; when I/I removal reached 500,000 gallons, the ratio would drop to 4:1. [Note 8]

The town was prohibited from issuing permits for new sewer connections unless there were, at the time, sufficient gallons in the sewer bank to meet the new needs. The sewer bank approach was adopted to permit incremental remediation of the problem while allowing new connections to the system. As the town embarked on a multiyear project to make repairs to the system that would result in reduction in I/I, it handled permits for new construction in the following manner: Once a sufficient number of credits had accumulated in the sewer bank under the formula set forth in the ACO, a developer seeking to connect to the sewer system (required by the town for all development of commercial or residential properties) paid an I/I reduction contribution (a monetary amount that was paid in addition to a building permit fee and a plumbing fixture fee). The I/I reduction contribution was initially calculated by multiplying by a factor of ten the number of gallons of new sewer flow proposed to be generated by the project and discharged to the sewer system, [Note 9] and then multiplying that number by three dollars. [Note 10] The factor of ten was reduced by the town to six in January, 2007, and to four in December, 2007.

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The ACO did not require that any particular applicant for a sewer connection permit remove I/I, nor did it require that such an applicant pay an I/I reduction contribution. The judge found there to be "no relationship between the amount of the calculated I/I [reduction] [c]ontribution and the actual cost to the Town . . . for labor and materials necessary to make the physical connection to the sanitary sewer system." She further found that "the Town was obligated to reduce I/I whether new users were added to the system or not. The I/I problem was not caused by, or exacerbated by[,] the new users. In other words, the I/I and the [sanitary sewer overflow] problems existed independently of the requirements of new users."

Discussion. 1. Claim that charges are permissible fees. "A municipality does not have the power to levy, assess, or collect a tax unless the power to do so in a particular instance is granted by the Legislature." Silva v. Attleboro, 454 Mass. 165 , 168 (2009), quoting from Commonwealth v. Caldwell, 25 Mass. App. Ct. 91 , 92 (1987). See art. 2 of the Amendments to the Massachusetts Constitution, as appearing in art. 89, §§ 1, 6, and 7 ("Cities and towns have no independent power of taxation"). "Towns may, however, exact fees." Greater Franklin Developers Assn., Inc. v. Franklin, 49 Mass. App. Ct. 500 , 502 (2000), citing G. L. c. 40, § 22F. The plaintiffs claim that I/I reduction contributions constitute an illegal tax because they were not authorized by the Legislature; the town argues that the charges are a permissible fee under G. L. c. 40, § 22F.

In determining whether the charges constitute a permissible fee, we consider the three-factor test set forth in Emerson College v. Boston, 391 Mass. 415 , 424-425 (1984) (Emerson College). "Fees imposed by a governmental entity . . . 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." Ibid., quoting from National Cable Television Assn. v. United States, 415 U.S. 336, 341 (1974).

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We focus on the first and third factors, the parties having stipulated that the plaintiffs have a choice whether to pay the I/I reduction contribution, because they could choose not to develop property requiring sewer connections. See Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196 , 206 (1995). [Note 11] In our review, we bear in mind that we will "accept the judge's findings of fact unless there is clear error. . . . However, 'we scrutinize without deference the legal standard which the judge applied to the facts.' " Silva v. Attleboro, 454 Mass. at 167-168, quoting from Kendall v. Selvaggio, 413 Mass. 619 , 621 (1992).

(a) Specific benefit. There is ample support in the record for the judge's findings and conclusions that, under the first Emerson College factor, the I/I reduction contribution does not benefit the fee payers in a manner not shared by others and is better characterized as a tax. In Emerson College, the city of Boston passed an ordinance that imposed a fee on owners of certain buildings that "by reason of their size, type of construction, use and other relevant factors" required the city to augment its fire protection services. 391 Mass. at 416. Because of the physical characteristics of its buildings, Emerson College, a tax-exempt entity, was subject to a sizeable payment, and it sought a declaratory judgment that the charges mandated by the ordinance constituted an illegal tax. The court agreed, stating that the college was not the only beneficiary of the augmented protection but that the entire community benefited, because "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." Id. at 426, quoting from Fisher v. Boston, 104 Mass. 87 , 93 (1870). See Greater Franklin Developers Assn., Inc. v. Franklin, 49 Mass. App. Ct. at 502-503 (benefit of new school facilities accruing to individual children, and through them to actual fee payers, is not particularized).

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We applied this factor in Berry v. Danvers, 34 Mass. App. Ct. 507 , 508 (1993) (Berry), concluding that the fee imposed by the town of Danvers on landowners seeking to connect to the common sewer system, or to increase usage by an existing connection, was an illegal tax. Through adoption of a sewer connection permit program (SCPP), Danvers increased sewer connection fees from a flat fee per connection to a fee of four dollars for each gallon of sewage to be discharged daily. Id. at 507-508. Danvers's sewer system experienced problems with I/I that contributed to sewage overflow "to the point where a heavy rainfall would result in lifted manhole covers and overflow of sewage into streets, yards, and nearby streams and rivers." Id. at 509.

We disagree with the town that Berry, supra, may be distinguished by the fact that Danvers faced actual backflow of sewage into residences and streets during overflow situations, in contrast to the situation here, where (the town argues) actual backflow of sewage into homes was averted. [Note 12] This is a distinction without a difference. The town was acutely aware of the potential for backflow when it discharged untreated sewage into the Saugus River in order to prevent sewage from backing up into homes and businesses linked to the sewer system. As we stated in Berry, supra at 511, in addition to benefiting "current users, whose streets and yards were periodically covered with raw sewage after a heavy rain . . . , the repair of the dilapidated existing system under the SCPP was of primary utility to those already connected to it and inconvenienced by its inadequacies."

Here, as in Berry, every inhabitant of the town (as well as those living in the downstream communities bordering the Saugus River and beyond) benefited from I/I repairs to the dilapidated

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sewer system. Not only was sewage overflow onto streets and into residences averted, but with each repair, sewage discharge into the environmentally sensitive river and nearby ocean became less likely, with resulting environmental and health benefits extending to all inhabitants of the town. See Shea v. Boston Edison Co., 431 Mass. 251 , 259 (2000) (not a fee where general public receives "spillover" benefits from energy efficiency programs supported by the charges at issue). [Note 13]

(b) Reasonable relationship to costs of specific service. To constitute a permissible fee under the third Emerson College factor, "the charges [must be] collected not to raise revenues but to compensate the governmental entity providing the services for its expenses." 391 Mass. at 425.

The I/I reduction contribution did not compensate the town for services related to expenses it incurred in connection with the entry of new users to the sewer system. We disagree that Bertone v. Department of Pub. Util., 411 Mass. 536 , 539 (1992) (Bertone), supports the town's view that the I/I reduction contribution is a permissible fee because it bears a reasonable relationship to the costs of reducing I/I.

In Bertone, the court determined that the town of Hull could permissibly assess a hook-up charge from those seeking new or expanded electrical service. In Berry, we distinguished the hook-up charge from the sewer connection permit program fee, noting that the hook-up charge was "an amount that reasonably relates to the incremental cost of the additional facilities needed to provide them with service . . . [and] paid 'for only those

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improvements to the system . . . necessitated by the new customers, and hence . . . will benefit them alone, and the remaining improvements are paid for by rate increases imposed on all customers.' " 34 Mass. App. Ct. at 511, quoting from Bertone, 411 Mass. at 546. The funds generated by the hook-up charge in Bertone were used to make changes to and improvements in the town's electrical infrastructure, without which it would not have been possible for the plaintiffs and thousands of other anticipated new users to connect to Hull's electrical supply system. 411 Mass. at 544-545. The existing system did not require out-of-the-ordinary repairs or modifications, and only those seeking to undertake new development of property or to expand electrical service would benefit from the changes. Id. at 546. The hook-up charges did not constitute a tax because "the revenues received from the hook-up charges are reasonably calculated to meet expenses incurred in providing electric service to new customers. . . . The revenues are not added to a general fund for providing service to all but rather are targeted to the newly required construction." Id. at 549-550. See Silva v. Attleboro, 454 Mass. at 169 (although "municipality has no independent power of taxation, it may assess, levy, and collect fees when authorized by Legislature, provided that those fees are reasonable and proportional").

The I/I reduction contribution is not so limited in its benefits and thus constitutes an illegal tax. The I/I repairs that resulted in credits to the sewer bank were mandated by the DEP to rectify existing environmental problems, regardless of any benefit to new sewer system users and irrespective of whether any new users would take advantage of the credits and pay the I/I reduction contribution. There is ample evidence in the record to support the judge's finding that "[t]he I/I problem was not in any way triggered by or aggravated by new users to the system. But for the I/I problem, the [town's] sewer system would not have required renovation in order to accommodate the new users. The contribution does not go to new infrastructure, but only goes to repair an existing system." [Note 14]

We also reject the town's argument that the I/I reduction

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contribution is a fee because it is specifically designated as such, it is calculated based on best estimates of the cost of I/I repair, and the funds are kept in a separate interest-bearing fund "earmarked for the sole purpose of addressing I/I problems." As further reflected in the judge's findings, and as supported by the record, the town has a sewer enterprise fund which is funded through the payment of the sewer rates by sewer users generally. The I/I reduction contributions are deposited into a separate fund established for those contributions. The town transferred a total of $440,000 from the I/I fund to the sewer enterprise fund, primarily to pay for repairs to the Lynnhurst pumping station and the repair of a sewer line on Route 1, performed in January, 2006. [Note 15] There was no I/I associated with the pumping station, and no gallons were credited to the sewer bank as a result of repairs to it. The repairs to the pumping station "were not done to eliminate I/I." [Note 16]

Because new sewer users received no benefits that were not shared by other members of the town, and the amount of the I/I reduction contribution was not reasonably related to the cost of services from which the new users alone derived a benefit, the I/I reduction contribution was an illegal tax and not a fee. [Note 17]

2. Applicable interest rate. The trial judge applied a twelve

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percent interest rate to the amounts awarded to the plaintiffs. The town argues that an interest rate of twelve percent was error, where the rate is authorized only under G. L. c. 231, § 6B (tort), § 6C (contract) and § 6H, which provides for interest at the rate of twelve percent "[i]n any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law." The town argues that the sums awarded to the plaintiffs were a refund, and thus the actions did not sound in tort or contract, and the award was not for damages. [Note 18]

The town's reliance on 116 Commonwealth Condominium Trust v. Aetna Cas. & Sur. Co., 433 Mass. 373 , 376 (2001), is misplaced. That case involved interpretation of a directors and officers liability endorsement to a general liability insurance policy. The court rejected the claim of the plaintiff trust that the policy's coverage for loss incurred by suits for "damages" included an equity action that sought preliminary and injunctive relief (that would allow access to an adjoining unit and common areas in the condominium) but did not request monetary damages.

Our courts have consistently defined "damages" as "the word which expresses in dollars and cents the injury sustained by a plaintiff. It includes both the original debt or damage and whatever interest ought to be added to make a just verdict." Turcotte v. DeWitt, 333 Mass. 389 , 392 (1955). See 116 Commonwealth

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Condominium Trust v. Aetna Cas. & Sur. Co., 433 Mass. at 376-377 & n.3, and cases cited therein. See also Rood v. Newberg, 48 Mass. App. Ct. 185 , 195 (1999), quoting from Conway v. Electro Switch Corp., 402 Mass. 385 , 390 (1988) ("It is a 'fundamental proposition that interest is awarded to compensate a damaged party for the loss of use or the unlawful detention of money' "). By any of these definitions, the plaintiffs were damaged when they were required to pay monetary sums to the town which the town could not legally charge and for so long as they were deprived of the use of those funds. [Note 19]

The judgments dated March 18, 2009, in favor of Denver Street and Central Street, the corrected judgment dated March 20, 2009, in favor of Oak Point, and the amended declaratory judgment dated May 12, 2009, in favor of Vinegar Hill, are affirmed.

So ordered.