SALEM, MA – EM&D LLP attorneys Matthew C. Donahue, Esq and Joseph W. Jussaume, Esq. successfully blocked an injunction filed by a developer in Lynnfield who wanted to avoid paying fees for water infrastructure improvements on a contract they had already executed. The Windsor Estates LLP, developers of formerly town-owned land in Lynnfield Center had petitioned the court claiming that $243,000 in fees for water usage and hook ups was an illegal tax. The developers had agreed to the terms earlier this year.
“With finances tightening, it would appear the developers are challenging the fees imposed by water districts,” said Donahue, “We are not entirely certain as to the reason for the about face.”
Donahue, representing the Lynnfield Water District, argued that the fees imposed fulfilled the requirements of the law as outlined in the Emerson College v. City of Boston case. There are currently several cases pending in the Massachusetts Appeals Court that are challenging whether the fees imposed by municipalities, in this case the Water District, are illegal taxes.
“The law outlines strict criteria that distinguish fees from taxes, in our case the Lynnfield Water District has expended the time, energy and technical support in determining the fee calculation is consistent with the law” Donahue said. For example, the law requires that such funds be segregated from any general fund and be used to handle upgrades necessary for the additional new users. “In this way, the District can protect water resources to avoid future capacity problems” he continued. The Lynnfield Water District currently has no such water restrictions.
The Court denied the attempt to avoid the payments and the case will now continue to discovery and ultimately trial.