01/20/2021 PLANNING BOARD Minutes

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application fees, chair review consultant fees and there can be specific conditions imposed for permit approvals or grants that fund some off-site improvements that are necessary to facilitate the integration of a project into the community. Attorney Costello shared information on the Emerson College Case from 1984. He explained that this case rendered a clear distinction between a legal and appropriate fee versus an illegal tax. The court defined a tax as an enforced contribution to provide for the support of government. It is a general revenue raising tool. Only the general court or state legislature in Massachusetts has the legal authority to impose or authorize taxes. Attorney Costello further stated that towns do not have the legal authority to impose taxes unless there is a statute, general law or special law that authorizes the imposition of a tax. For a town to charge a fee,there must be a link to the services that a town is rendering. He pointed out that there are two types of fees with the first being a proprietary fee or a user fee such as public water and sewer. The second type of fee is a regulatory fee which includes application, inspection or licensing fees. Attorney Costello stated that cities and town in Massachusetts have a fairly broad authority to adopt and impose fees under The Home Rule Amendment to the Massachusetts Constitution. It allows cities and towns to determine their own regulatory procedural processes and to impose fees for costs and expenses to recoup costs that they may incurred exercising their authorities. He then pointed out that fees have to be reasonable and proportionate while taxes are determined by typically assessed values. They do have to be proportionate. The same applies to fees—they have to be reasonable and proportional for the services provided. The Emerson College Case establishes a three prong test to determine whether a fee is valid. The first prong is that the fee must be in return for a particular governmental service which benefit the party paying the fee in a manner not shared by other members in the community. Secondly,the fee must be paid by choice and that the party paying the fee has the choice not to use the governmental service. Lastly, a fee cannot be assessed and collected to raise revenues but only to compensate the governmental entity providing the service for expenses and costs incurred to provide the service. Attorney Costello pointed out that impact fees are not defined in Massachusetts and are not referenced in the general laws however are becoming more popular across the country. Several jurisdictions have adopted statues that do allow the imposition of impact fees. The zoning reform bill that is currently on the floor at Beacon Hill contains a section that would allow communities to develop impact fees. There is a movement in Massachusetts toward regulating and providing consistent legislative authority for impact fees. Mashpee could adopt a special act to authorize or impost impact fees. Any city or town can file a petition with the general court under the amendments to the constitution to allow it to adopt special legislation that relates solely to itself. Other towns on the Cape have begun to adopt authority to impose such fees. Attorney Costello noted that Massachusetts has been a difficult place for communities to impose impact fees. We are waiting for some type of legislation to allow cities and towns to move forward under a law that would permit types of impact fees to be imposed. He stated that from a general Planning Board operational perspective, there has to be a nexus between a development impact and the off-site improvements in the permit. Special permits allow far greater discretion with regard to mitigation than subdivision control law. 5