Providing, operating, and maintaining GPS devices for sex offender parolees is therefore a service, as it is even less abstract than the activity the Court held was a service in Nuclear Metals, Inc. The service the Parole Board provides is more like "[t]he use of the common sewers" that the Appeals Court held weighed in favor of finding a fee inTown of Winthrop v. Winthrop Hous. Auth., 27 Mass. App. Ct. 645, 647 (1989). The Plaintiffs here are using GPS devises with which the Parole Board provides them.
The Town's sprinkler/hydrant fee is voluntary because commercial and industrial property owners may choose not to utilize the Town's water supply system to meet their firefighting capacity requirements, thereby avoiding payment of the fee. See Winthrop v. Winthrop Housing Authority, 27 Mass. App. Ct. 645, 647 (1989) (concluding that annual charges for the use of a town's common sewer system were voluntary where property owners were not required by any health or safety measure to connect to the town sewer). Compare Berry v. Danvers, 34 Mass. App. Ct. 507, 512-513, rev. den., 415 Mass. 1105 (1993) (concluding that a sewer connection fee was mandatory rather than voluntary where the State Environmental Code, 310 Mass. Regs. § 15.
Sewer charges would be an example of a lawful user fee. SeeTown of Winthrop v. Winthrop Housing Authority, 27 Mass.App.Ct. 645, 541 N.E.2d 582, 583–84 (1989). Whether a charge is a lawful fee or an unlawful tax “must be determined by its operation rather than its specially descriptive phrase.”
See Bertone v. Department of Pub. Utils., 411 Mass. 536 (1992) (hook-up charge for electrical service); Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge, 396 Mass. 395 (1985) (charges assessed by rent control board for rent adjustment services). See also Winthrop v. Winthrop Hous. Auth., 27 Mass. App. Ct. 645 (1989) (annual charge for connection to common sewer system); Commonwealth v. Caldwell, 25 Mass. App. Ct. 91 (1987) (mooring and slip fee for harbormaster services). I discern no compelling reason to expand the concept of particularized services to encompass the planning activities of the board.
Southview Coop. Hous. Corp., supra at 402. See Winthrop v. Winthrop Hous. Auth., 27 Mass. App. Ct. 645, 647 (1989). Further, the revenues received from the hook-up charges are reasonably calculated to meet expenses incurred in providing electric service to new customers.
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 funds).
Other examples are illuminating. Bertone v. Department of Pub. Util., 411 Mass. 536, 548-550 (1992), decided that a "hook-up" charge for new or expanded service from a municipal power company met the particularity, choice, and cost reimbursement criteria. Sewer use charges were held particularized in Winthrop v. Winthrop Hous. Authy., 27 Mass. App. Ct. 645, 647 (1989), because, on the record presented, property owners apparently could avail themselves of alternative (if less convenient) sewage disposal methods. The charge was related to the amount of use, i.e., meant to defray a cost of maintaining system capacity.