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CITY OF FALL RIVER, et al.
02-P-166 Appeals Court
PAUL F. SILVA vs. CITY OF FALL RIVER & another.
Bristol. April 30, 2003. - November 4, 2003.
Present: Brown, Lenk, & Cypher, J
Civil action commenced in the Superior Court
Department on October 20, 2000.
The case was heard by Vieri Volterra, J., on motions for
Martin A. Silva for the plaintiff.
Thomas F. McGuire, Jr., for the defendants, submitted a brief.
Judge Ellsbeth 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 of health (collectively, Fall River) alleging
that the twenty-dollar burial permit fee charged by Fall River is
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.
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 (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 (2000).
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, 13 Allen 546, 548-549 (1866);
Commonwealth v. Gallison, 384 Mass. 184, 185 (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.
To obtain the permit, the applicant must present a valid death certificate,
ibid., and, in Fall River, pay a twenty-dollar fee.
Once issued, the burial permit must be presented to the person in charge of
the cemetery or crematory where the permit holder 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 into a general account of the city of Fall River.
Discussion. Under the Massachusetts Constitution, municipalities do not have
an independent power of taxation; however, they may impose fees.
Greater Franklin Developers Assn. v. Franklin, 49 Mass. App. Ct. 500, 502
(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 (1924), or regulatory fees (including licensing and inspection
fees), founded on the police power to regulate particular businesses or
activities, id. at 602." Emerson
College v. Boston, 391 Mass. 415, 424 (1984).
The disposal of human remains involves the public health and implicates the
police power. Wyeth v. Board of Health of Cambridge, 200 Mass. 474, 479
(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 (1931).
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 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. See National Cable
Television Assn. v. United States, 415 U.S. 336, 340-341 (1974).
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 (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.
1. Particularized service benefitting the party paying 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 College v. Boston, 391 Mass. at
424, quoting from National Cable Television Assn. v. United States, supra.
In other words, "[f]ees 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." Id.
at 425. 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. 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, 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]hile the safe
disposal of low-level radioactive 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." Id. at 204-205. 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 (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 (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 (1987) (fee particularized to people choosing to
moor boats); Winthrop v. Winthrop Hous. Authy., 27 Mass. App. Ct. 645, 647
(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 (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 (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 (provision of school facilities is not particularized service but is
government's obligation to provide such facilities out of general revenue
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. Compare Emerson College v. Boston, 391 Mass. at
425-426 (fire protection services benefitted not just property interests of
owner but occupants of building and surrounding buildings and their
occupants); Berry v. Danvers, 34 Mass. App. Ct. 507, 510 (1993) (charge for
connecting to sewer system was not just used for new connections and
benefitted all users); Greater Franklin Developers Assn. v. Franklin, 49
Mass. App. Ct. at 503 (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. Choice of payment. 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."
Emerson College v. Boston, 391 Mass. at 424-425. According to Emerson
College, whether a person may choose to avoid a fee is determined by whether
the person challenging the fee may avoid engaging in the activity for which
the charges are assessed. Nuclear Metals, Inc. v. Low-Level Radioactive
Waste Mgmt. Bd., 421 Mass. at 205.
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,
quoting from Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge,
396 Mass. at 402 (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.
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 Mass. App. Ct. at
512-513 (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. See National Cable Television Assn. v. United States, 415 U.S. at
341 (fee is incident to voluntary act).
3. The 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
(1889). See Southview Co-op. Hous. Corp. v. Rent Control Bd. of Cambridge,
396 Mass. at 400.
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. 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 certain that the coupon verifying burial has been returned.
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 of services or the general fund." Berry v. Danvers, 34 Mass. App.
Ct. at 513. 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
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 (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, quoting from Opinion of the Justices, 250 Mass.
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 (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 (revenue
generated by fee was not added to general 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 (charge was fee where it
funded particularized services 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. 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 to suggest that the fee was used to
supplement the general revenue. See Morton v. Hanover, 43 Mass. App.
Ct. 197, 200, 202 (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.
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 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 (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.
 Board of health of
 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 . . . ."
 The death certificate
is forwarded to the Registry of Vital Records and Statistics. Until 1955,
Fall River 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.
 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).
 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 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 (1985), quoting from Commonwealth v. Plaisted, 148 Mass. 375, 382
(1889). We are not concerned with Fall River's authority to impose a fee,
but with whether the exactment is, in reality, a tax.
 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 (1924).
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. 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
(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 (1995).
 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.
 We have observed that
of the three factors in the Emerson College test, the second factor, whether
the plaintiff's 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 (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.
 The cost of the burial
permit fee is passed on to the person seeking to dispose of human remains,
typically the next of kin.
 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.
 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
END OF DOCUMENT
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