Emerson College v. City of Boston

• Decision Date: 14 March 1984
• Parties: EMERSON COLLEGE v. CITY OF BOSTON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1098

462 N.E.2d 1098

391 Mass. 415

EMERSON COLLEGE v. CITY OF BOSTON et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 8, 1983.

Decided March 14, 1984.

Howard P. Speicher, Asst. Corp. Counsel, Boston, for defendants.

Stuart DeBard, Boston, for plaintiff.

Lane McGovern and David J. Kerman, Boston, for Association of Independent Colleges and Universities in Massachusetts, amicus curiae, submitted a brief.

Wayne S. Henderson and Jean M. DeLuca, Boston, for New England Legal Foundation, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

In 1982, the Legislature conferred authority on the city of Boston to impose a charge for fire protection against the owners of certain buildings that "by reason of their size, type of construction, use and other relevant factors ... require the city to employ additional firefighters, deploy additional equipment and purchase equipment different in kind from that required to provide fire protection for the majority of structures." St.1982, c. 190, § 30. ² Under the statute, the city "is authorized to impose a fee for augmented fire services availability pursuant to [St.1982, c. 190, § 30] or pursuant to an ordinance enacted by the city of Boston not inconsistent with [St.1982, c. 190, § 30]."

On February 16, 1983, after the plaintiff's suit was initiated, the Boston city council, acting pursuant to the statute, promulgated an ordinance establishing augmented fire services availability (AFSA). The plaintiff's motion for a preliminary injunction against imposition of the AFSA charge was denied on February 24, 1983. On the same date, the mayor of Boston approved the AFSA ordinance. City of Boston Code, Ordinances, Title 14, § 459, as amended February 24, 1983. ³

The plaintiff, a tax exempt educational institution, owns fourteen buildings in the city, containing classrooms, administrative offices and dormitories. These buildings were inspected by the fire department in December, 1982, to determine whether they were subject to the charge. On January 27, 1983, the plaintiff brought an action pursuant to G.L. c. 231A, § 1, requesting a declaratory judgment and injunctive relief. The plaintiff's complaint alleged that the AFSA charge is in effect a tax on real property from which Emerson is exempt under G.L. c. 59, § 5. The plaintiff also alleged that the AFSA charge violates the constitutional requirement that property taxes be "proportional and reasonable," Part II, C. 1, § 1, art. 4, of the Massachusetts Constitution, and that computation of the charge by the fire commissioner constitutes an unconstitutional delegation of taxing authority to an administrative official. On March 1, 1983, the city mailed bills totaling $12,029 for AFSA charges assessed against three of the plaintiff's buildings. ⁴

After the denial of a second motion for a preliminary injunction, the case was heard on March 28 and 29, 1983. On April 1, 1983, the judge issued a memorandum and order declaring the statute and the ordinance invalid as applied to the plaintiff and facially unconstitutional, and enjoined their enforcement. The judge found that the statute permits the city to exact a charge "based on a complex, sophisticated but not scientifically proven or generally accepted formula, which attempts to assess costs of providing life safety services in terms of gallons per minute." The judge found that "[t]he buildings against which the charge (tax) [was] levied [were] not uniformly selected nor assessed." He determined that the AFSA charge was not a fee because "[a] fee is based on services performed or delivered and not on anticipatory expenses for services which may never be needed ...." Quoting Williams College v. Williamstown, 219 Mass. 46, 48, 106 N.E. 687 (1914), he concluded, "Protection from fires always has been treated as a general function of government."

The judge declared "that the money sought to be collected by the city under sec. 30 of Chapter 190 of the Acts of 1982 and/or Title 14, sec. 459 of the Ordinances of the City of Boston, approved by the Mayor on February 24, 1983 is a tax and not a fee." He noted that the plaintiff is a tax exempt institution. He then declared that the money "sought to be raised [was] a real estate tax and not an excise tax," and, further, that the tax was not "proportional and reasonable." See Part II, C. 1, § 1, art. 4, of the Massachusetts Constitution. ⁵ The judge reported his decision to the Appeals Court. We granted the parties' joint application for direct appellate review. ⁶ We conclude that the AFSA charge is a chimera, bearing features of both a fee and a tax, but not valid in either form. Therefore, we affirm the judgment invalidating the statute and the ordinance.

We summarize the relevant provisions of the AFSA statute and ordinance, as well as pertinent testimony presented at the Superior Court hearing. The proclaimed purpose of the statute "is to assure the city's continued ability to provide the availability of fire fighting services in excess of the degree of such services provided to the general public by imposing the cost of making available such extra services on those to whom such extra services are made available." St.1982, c. 190, § 30(2). The statute thus distinguishes two classes of building owners. In one class are owners of buildings who are deemed members of the "general public," to whom fire protection services are made available without any charge beyond the annual property tax. In a distinct class are building owners who, by implication, are not considered members of the "general" public, and who, in addition to the property tax, if any, assessed against them, ⁷ must pay an AFSA charge for the availability of fire protection. A building-owner is subject to the AFSA charge if the "total fire fighting capacity ... necessary to extinguish a fully involved fire" in the building exceeds 3,500 "gallons per minute." St.1982, c. 190, § 30(3)(i ), (ii ).

The statutory scheme is based on a legislative determination that a disproportionate percentage of the city of Boston's firefighting budget is consumed by expenses related to the maintenance of equipment and personnel capable of protecting buildings with physical characteristics requiring, in the event of a fire, the presence of more than fourteen fire companies. The fire commissioner said that 3,500 gallons per minute is the functional equivalent of fourteen fire companies, ⁸ the personnel and equipment necessary to combat a three-alarm fire.

There are currently fifty-six and one-half fire companies ⁹ in Boston. Of that number, forty-eight companies would suffice to combat simultaneously one 3,500 gallon per minute fire and one smaller, 2,000 gallon per minute fire, while maintaining four companies available for discretionary use as well as one fire engine and one truck on standby in each of the city's eleven fire districts. The remaining eight and one-half companies are maintained to guard against the potential occurrence of a fire exceeding the 3,500 gallon per minute category. The parties stipulated that the Boston fire department's costs for fiscal year 1983 would be $76,877,152. According to the director of the city's office of fiscal affairs (OFA), $10,114,502 of that sum is allocable to the personnel, equipment, and overhead costs of providing AFSA. ¹⁰ Over 13% of the Boston fire department's costs for fiscal year 1983 can thus be traced to AFSA. ¹¹ After applying a statutory formula, which we discuss infra, to data collected through inspections of approximately 5,000 buildings, ¹² the fire commissioner determined that, in 1983, some 2,000 buildings, or 2% of the buildings in Boston, necessitate AFSA.

The statute requires that, prior to March 1 of each year, the fire commissioner determine not only which buildings in Boston are subject to the AFSA charge, but also the amount of the charge to be assessed each such building. A formula set forth in the statute establishes three principal factors to be considered by the fire commissioner in establishing whether, in the event of fire, a building would require more than 3,500 gallons per minute of firefighting capacity.

One factor, the "needed fire flow" (NFF), measures the personnel and equipment necessary to extinguish a fire in the building. The NFF is determined by reference to various subfactors: the building's construction type, including the fire resistance of its constituent materials; the effective area of the building in square footage; the use of the building, including the combustibility of its contents; and "exposure" and "connecting passageways" subfactors, which measure the risk that a fire would spread to adjacent buildings. St.1982, c. 190, § 30(3)(iii ).

The second factor, the "life risk factor" (LRF), measures the personnel and equipment necessary to ensure the safety of the occupants of the burning building. The LRF takes into account the building's density of occupancy, hours of occupancy, number of stories, and whether the building contains smoke removal equipment. St.1982, c. 190, § 30(3)(v ).

The third factor is a "suppression credit" (S), which operates to reduce the gallons per minute computation by an amount that reflects a building's existing fire suppression and detection equipment. St.1982, c. 190, § 30(3)(iv ). The department's consultant indicated that a suppression credit is granted for smoke and heat detectors connected to an alarm at the fire department. A larger suppression credit may be obtained if a building has standpipes with outlets to which fire hoses can be connected. A building's sprinkler systems also reduce the total gallons per minute computation. ¹³

The three factors, as incorporated in the statutory formula, yield a "total fire flow" (TFF) computation expressed in gallons per minute. St.1982, c. 190, § 30(3)(ii ). If a building's TFF exceeds 3,500, it is subject to the AFSA...