Selectmen Seek Funding for Stormwater Accounting: Should We Give It to Them?

Article 6 on the warrant for Westford’s Special Town Meeting on October 28th seeks to support a decision made by the Board of Selectmen to initiate a fee program to pay for storm-water infrastructure upgrades mandated by the EPA. This article should be opposed.  We all want clean water, but the fee program is a controversial venture, which sets aside a long-standing principle of town government, that tax proposals shall originate in the legislative body (Town Meeting), not the executive body (the selectmen).

At the heart of this issue is the question of whether the fee program is a fee or a tax?    Despite town counsel’s assurance that it is a fee, questions remain that raise reasonable doubt about this claim. The fee program will impose a levy on all property owners in town, even non-profits, based upon the amount of “impervious surface”. This is the total square footage of the roof over your head, and the hardtop on your driveway.  The concern is a Massachusetts Supreme Court ruling called the “Emerson Rule,” which provides a clear legal line of demarcation between fees and taxes.   The former are financial assessments made upon subscribers for voluntary services rendered by a municipality.  If assessments are mandatory then the so-called fee is a tax.

The Board of Selectmen have offered assurances, that the fee program is voluntary, because it offers credits for property owners, who make improvements to curb storm-water runoff.  The credits are limited, however, and cannot be extended to all property owners because the funding program might collapse.  Additionally, the alterations needed to defray the assessment are so cost prohibitive for most home owners, that they render the claim of voluntariness illusionary.  If someone challenges the fee system under the Emerson rule and succeeds, the town could find itself in a financial world of hurt.  The revenue collected could conceivably have to be returned.  There is a better way.

The town can establish a Municipal Water Infrastructure Investment Fund. It would work like the CPA.  Each property tax payer would be assessed a surcharge, set by town meeting and ratified by town wide vote, preserving legislative authority over taxation.  Taxpayers would have notice of any changes in the surcharge.  Increases would have to come before the voters for approval.  In contrast,  the selectmen’s fee system is under their sole control and can be increased at their whim.  The only way you will know about an increase is when you receive a bill.  This is administrative taxation. If we are forced to raise this money, let’s do it in a way that preserves the town meeting’s fundamental right to decide local tax issues.  Vote No on this article. Send this matter back to the Selectmen with a strong message that Town Meeting does not wish to gamble with the law, and will jealously guard its traditional authority to tax.

– Dennis Galvin

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