NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
16-P-1111 Appeals Court
NINETY SIX, LLC vs. WAREHAM FIRE DISTRICT.
No. 16-P-1111.
Plymouth. September 12, 2017. - February 14, 2018.
Present: Milkey, Hanlon, & Shin, JJ.
Municipal Corporations, Water commissioners, Water installation
fee. Real Property, Water. Water. Jurisdiction, Water
charge. Subdivision Control, Municipal services.
Taxation, Real estate tax: assessment. Zoning.
Administrative Law, Exhaustion of remedies. Practice,
Civil, Review of administrative action, Case stated.
Civil action commenced in the Superior Court Department on
June 22, 2010.
The case was heard by Robert C. Cosgrove, J.
David T. Gay for the plaintiff.
John Allen Markey, Jr., for the defendant.
SHIN, J. This appeal concerns the validity of water
betterment assessments imposed by the Wareham fire district
(district) on several large parcels of undeveloped land owned by
the plaintiff. The district determined the amount of the
2
assessments pursuant to G. L. c. 40, § 42K, which provides for a
method of calculation based on "the total number of existing and
potential water units to be served" by the new water mains, with
"[p]otential water units . . . calculated on the basis of zoning
in effect at the date of assessment." Construing this language
to allow consideration of the full development potential of the
land, the district assessed the plaintiff's property based on
the maximum number of lots that could be created from each
parcel, including the potential subdivision lots that each
parcel could yield under the town of Wareham's subdivision rules
and regulations (subdivision rules).
The plaintiff filed suit in Superior Court seeking, among
other forms of relief, a declaratory judgment that the district
misapplied G. L. c. 40, § 42K, by including potential
subdivision lots in its calculation, rather than limiting the
assessments to "approval not required" (ANR) lots.1 After the
parties submitted the matter for decision on a case stated
basis, the judge found and declared that the "[d]istrict[]
followed an appropriate method of calculating betterment
assessments under G. L. c. 40, § 42K."2 The plaintiff appeals,
1
See our discussion of G. L. c. 41, § 81L, infra.
2
The judge still ruled partially in the plaintiff's favor
with respect to two of the assessments (as to Lots 1000 and
1018) after the district conceded that it had overestimated the
development potential of those parcels. The district does not
3
raising three arguments: (1) that § 42K prohibited the district
from assessing betterments on subdivision lots because the
subdivision rules were adopted pursuant to the subdivision
control law, G. L. c. 41, §§ 81K to 81GG, and not the Zoning
Act, G. L. c. 40A; (2) that the enabling statute, G. L. c. 40,
§ 42G, prohibited the district from assessing betterments on
land that has no frontage on the ways in which the new water
mains will be installed; and (3) that the assessments were
unreasonable and disproportionate. As we conclude that the
district's betterment assessment policy is consistent with the
statutory scheme and purpose, and that the plaintiff failed to
meet its burden of proving that the assessments were
unreasonable or disproportionate, we affirm.
Background. 1. Statutory framework. General Laws c. 40,
§ 42G, inserted by St. 1955, c. 332, authorizes a municipality
"having a water supply or water distributing system" to "provide
by ordinance, by-law or vote for the levy of special assessments
to meet the whole or part of the cost thereafter incurred of
laying pipes in public and private ways for the conveyance or
distribution of water to its inhabitants." The special
assessment may be charged, in "proportionate part," to any
appeal from those rulings. In keeping with its theory as to ANR
lots, the plaintiff argues there should have been a greater
reduction for Lot 1000, but brings no appeal as to the further
reduction it had requested for Lot 1018.
4
"owner of land which receives benefit from the laying of water
pipes in public and private ways upon which his land abuts or
which by more remote means receives benefit through the supply
of water to his land or buildings." Ibid.
The Legislature originally provided for betterment
assessments to be calculated by applying a "fixed uniform rate,"
based on the estimated cost of laying the water pipes, according
to (1) the frontage of the benefited land on the way in which
the water pipe will be laid, (2) the land area within a fixed
depth from the way, (3) the valuation of the land, or (4) any
combination of these measures. G. L. c. 40, § 42H, inserted by
St. 1955, c. 332. Since 1994 a municipality that accepts the
provisions of § 42K may as an alternative use a "uniform unit
method." G. L. c. 40, § 42K, inserted by St. 1994, c. 60, § 66.
This method is based on the number of water units, including
"potential" units, to be served by the water mains, without
regard to the frontage of the land on the way:
"[T]he water commissioners may assess betterments . . . for
the construction and connection of water mains and services
by a uniform unit method which shall be based upon the
common main construction costs divided among the total
number of existing and potential water units to be
served . . . . Each water unit shall be equal to a single
family residence. Potential water units shall be
calculated on the basis of zoning in effect at the date of
assessment."
G. L. c. 40, § 42K.
5
Also relevant to this dispute is the subdivision control
law, G. L. c. 41, §§ 81K to 81GG. In a city or town that has
accepted the provisions of the law, a person may not "make a
subdivision of any land . . . unless he has first submitted to
the planning board of such city or town for its approval a plan
of such proposed subdivision, showing the lots into which such
land is to be divided and the ways already existing or which are
to be provided by him for furnishing access to such lots."
G. L. c. 41, § 81O, inserted by St. 1953, c. 674, § 7.
"Subdivision control . . . has as a major purpose ensuring that
the subdivision provides adequate drainage, sewerage, and water
facilities, without harmful effect to adjoining land and to the
lots in the subdivision." Meyer v. Planning Bd. of Westport, 29
Mass. App. Ct. 167, 170 (1990). "A planning board's rules and
regulations, adopted under the requirements of G. L. c. 41,
§ 81Q, address these general purposes by establishing definite
standards for streets and utilities." Beale v. Planning Bd. of
Rockland, 423 Mass. 690, 696 (1996).
The statute defines "subdivision" as "the division of a
tract of land into two or more lots," but with certain
exemptions. G. L. c. 41, § 81L, as appearing in St. 1956,
c. 282. The exemptions apply "if, at the time [the division of
land] is made, every lot within the tract so divided has
frontage on
6
"(a) a public way or a way which the clerk of the city or
town certifies is maintained and used as a public way, or
"(b) a way shown on a plan theretofore approved and
endorsed in accordance with the subdivision control law, or
"(c) a way in existence when the subdivision control law
became effective in the city or town in which the land
lies, having, in the opinion of the planning board,
sufficient width, suitable grades and adequate construction
to provide for the needs of vehicular traffic in relation
to the proposed use of the land abutting thereon or served
thereby, and for the installation of municipal services to
serve such land and the buildings erected or to be erected
thereon."
G. L. c. 41, § 81L, as amended through St. 1965, c. 61.
If an applicant's plan meets one of these exemptions, the
planning board must endorse the plan as one not requiring
approval under the subdivision control law. See G. L. c. 41,
§ 81P. This is known as an "approval not required" or ANR
endorsement. See Palitz v. Zoning Bd. of Appeals of Tisbury,
470 Mass. 795, 797 (2015).
2. Factual background.3 The district is a municipal fire
and water district vested with authority to lay water pipes and
necessary appurtenances in public or private ways and to recover
the costs thereof by assessing betterments on the owners of
3
We summarize the facts from the parties' joint trial
stipulation and, where appropriate, draw factual inferences from
the joint trial exhibits. See Hickey v. Pathways Assn., Inc.,
472 Mass. 735, 743 (2015) (where judge issues decision on case
stated basis, appellate court may draw own inferences of fact).
We reserve some details for later discussion.
7
benefited lands.4 Until the late 1990's, the district employed a
street-frontage method of calculating water betterment
assessments. In 1999, after concerns were raised that the
frontage method was not equitable in some circumstances, the
voters of the district voted to adopt the provisions of G. L.
c. 40, § 42K.
Subsequently, the district implemented a policy governing
assessments of large tracts of land that could be subject to
multiple betterments. According to the policy, which is
documented in an internal memorandum, the district considers a
water unit to be "a single lot which may be served by a single
water service line, receive fire protection, or otherwise
benefit[] from the water main project." Large lots are
evaluated "for potential future subdivision," and agricultural
and vacant land is evaluated "for potential future maximum build
out potential according [to] the Wareham Zoning Ordinance."
When determining a parcel's development potential, the district
follows a series of steps, which include gathering information
on the parcel, such as topographic maps, wetlands data, and
aerial photographs; notifying the property owner and requesting
4
The board of water commissioners is the governing body of
the district and oversees the actions of the district with
respect to establishing a water supply, including the assessment
of betterments. We refer to the board and the district
collectively as the "district."
8
further information; "[w]ork[ing] with [the] property owner to
establish maximum build out potential"; and "[i]dentify[ing]
possible restrictions to maximum build out using available and
supplied information."
On various dates in 2006 and 2007, the district gave notice
of its intent to construct new water mains in ways abutting or
near six undeveloped parcels of land owned by the plaintiff.
Only three are at issue on appeal: Lots 1000, 1004, and 1009.
As to each, the district sent the plaintiff letters explaining
that it intended to assess betterments based on the buildout
potential of the land and requesting an immediate response if
the plaintiff had information that the land was not developable.
The district also explained that the plaintiff could avoid a
given assessment by restricting the parcel from development or
merging it with an adjacent one. The plaintiff did not respond
to the letters with any documentation, such as wetlands plans or
merger deeds, identifying development restrictions on the land.
In March of 2007, the district recorded an order of
assessment of betterment with the Plymouth County registry of
deeds. The assessments reflected the maximum number of
subdivision lots that could be created from the plaintiff's
property under the subdivision rules. In particular, the three
disputed assessments were as follows:
9
Lot 1000, which comprises approximately forty-four acres,
was assessed as twenty-five units, for a total of $209,816.75.5
On the date of assessment, it could have been divided into four
ANR lots.
Lot 1004, which comprises approximately nineteen acres, was
assessed as eleven units, for a total of $92,319.37. On the
date of assessment, it was not buildable because it had no
street frontage.
Lot 1009, which comprises approximately thirty-eight acres,
was assessed as twenty-one units, for a total of $176,204.07.
On the date of assessment, it could have been divided into no
fewer than nine ANR lots and as many as twelve.
Discussion. 1. Exhaustion of administrative remedies. We
begin by noting that the plaintiff does not appear to have
followed the appropriate procedure for obtaining review of its
claims. Although both the judge and the parties have treated
this case as one for declaratory judgment, the proper avenue for
relief lies in G. L. c. 80, which "sets out a comprehensive and
uniform statutory scheme of administrative appeals and judicial
review regarding assessments for . . . betterments." Gudanowski
v. Northbridge, 17 Mass. App. Ct. 414, 421 (1984). See G. L.
5
The judge ordered the district to recalculate this
assessment after the district conceded that the parcel could
yield a maximum of twenty, rather than twenty-five, subdivision
lots.
10
c. 40, § 42I, inserted by St. 1955, c. 332 ("The provisions of
chapter eighty relative to the apportionment, division,
reassessment, abatement and collection of assessments, and to
interest, shall apply to assessments under this chapter").
Under G. L. c. 80, § 7, "[a] person who is aggrieved by the
refusal of [a local] board to abate an assessment . . . may
within thirty days after notice of the[] decision appeal
therefrom . . . in the superior court." Here, the record
contains conflicting evidence whether the plaintiff ever filed a
petition for abatement (as opposed to one for extension, which
is a different form of relief).6
Even were we to assume, as alleged in the complaint, that
the plaintiff requested abatement but the district failed to act
on its petitions, this action, filed in June of 2010, appears to
be untimely. An abatement petition must be filed within six
months of the notice of assessment, see G. L. c. 80, § 5, and,
"[i]f the [local] board . . . fails to act upon said petition
within four months . . . , the petition shall be deemed to be
denied, and the petitioner shall have the right within sixty
6
Extensions of payment are governed by G. L. c. 40, § 42I,
which provides that "[t]he water commissioners or other officers
in charge of the supply and distribution of water . . . shall,
if the order for assessment is upon land not built upon, extend
the time of payment of the assessment and interest thereon at
the rate of four per cent until it is built upon or for a fixed
time; and the assessment and interest shall be paid within three
months after such land is built upon or at the expiration of
such fixed period."
11
days after the expiration of said four months to appeal." G. L.
c. 80, § 10A. Thus, since the only petitions contained in the
record are dated mid-November of 2007, it appears that this case
should have been brought no later than mid-May of 2008.
Nonetheless, because the district has not argued failure to
exhaust or untimeliness, or shown that these are nonwaivable
jurisdictional defenses, we will reach the merits.
2. Standard of review. "Because the judge issued [his]
decision on a case stated basis, we review it de novo, drawing
our own inferences of fact and reaching our own conclusions of
law." Hickey v. Pathways Assn., Inc., 472 Mass. 735, 743
(2015). Although the parties appear to agree on this point,
neither brief addresses the question of what deference we owe to
the district's interpretation of the statute. We answer the
question, which was raised and discussed at oral argument, by
turning to settled principles in the case law.
"Local regulations are presumed valid, unless they exceed
the authority conferred by the enabling statute or the Home Rule
Amendment (art. 89 of the Amendments to the Massachusetts
Constitution)." Springfield Preservation Trust, Inc. v.
Springfield Library & Museums Assn., Inc., 447 Mass. 408, 418
(2006). In determining whether a local regulation is
inconsistent with a statute, we give "considerable latitude to
municipalities, requiring a sharp conflict between the local and
12
State provisions" before we hold the regulation invalid. Grace
v. Brookline, 379 Mass. 43, 53-54 (1979), quoting from Bloom v.
Worcester, 363 Mass. 136, 154 (1973). "That sharp conflict
appears when either the legislative intent to preclude local
action is clear, or, absent plain expression of such intent, the
purpose of the statute cannot be achieved in the face of the
local by-law." Grace, 379 Mass. at 54. Thus, our inquiry here
is whether the plaintiff has met its "heavy" burden of proving
the existence of such a conflict between the district's policy
and the water betterment assessment statute. Springfield
Preservation Trust, Inc., 447 Mass. at 418. See W.R. Grace &
Co.-Conn. v. Acton, 62 Mass. App. Ct. 462, 465 (2004) (town by-
law adopted under sewer betterment assessment statute was
facially valid because it was "not arbitrary or irrational").
We owe even more deference to the district's application of
its policy to the plaintiff's property. It is plain that the
district has substantial discretion in this respect. See Exeter
Realty Corp. v. Bedford, 356 Mass. 399, 404 (1969) (in assessing
betterments, town permitted to make "approximations" of owner's
proportional part of costs); Henry B. Byors & Sons, Inc. v.
Board of Water Commrs. of Northborough, 358 Mass. 354, 358
(1970) (water commissioners have "considerable discretion in
determining the methods of fixing prices or rates related to the
use of water"); Morton v. Hanover, 43 Mass. App. Ct. 197, 205
13
(1997) (there need only be "reasonable basis for surcharging the
plaintiffs for water service benefits [that] are particularized
to them"). We will therefore uphold the assessments unless the
plaintiff can show that they are "unreasonable" or impermissibly
"discriminatory." Henry B. Byors & Sons, 358 Mass. at 359. See
Seiler v. Board of Sewer Commrs. of Hingham, 353 Mass. 452, 457
(1968); Exeter Realty, 356 Mass. at 404; Morton, 43 Mass. App.
Ct. at 205.
3. G. L. c. 40, § 42K. The parties' dispute centers on
the meaning of the provision in G. L. c. 40, § 42K, that
"[p]otential water units shall be calculated on the basis of
zoning in effect at the date of assessment." Under the
plaintiff's interpretation, this provision requires that the
district consider only the town of Wareham's zoning by-laws when
calculating potential water units. As a result, the plaintiff
argues, the only lots that can be considered potential units are
those resulting from divisions of land that qualify for ANR
endorsements under the subdivision rules. The district counters
that the Legislature used "zoning" in a broader manner, allowing
for consideration of potential development under the subdivision
rules.
We accept the underlying premise of the plaintiff's
argument that the subdivision rules are not zoning enactments.
Generally, "zoning does not include regulations that a
14
municipality duly adopts under independent statutory authority."
See Healy, Massachusetts Zoning Manual § 2.1, at 2-2 (4th ed.
2007). See also Lovequist v. Conservation Commn. of Dennis, 379
Mass. 7, 12 (1979) ("We do not consider all ordinances or by-
laws that regulate land use to be zoning laws . . .").
Moreover, our cases have specifically discussed the differences
between zoning and subdivision control, explaining that
subdivision control "does not dictate in the same direct fashion
[as zoning] how land will be used but, rather, compels the
construction of ways which, among other things, are safe and
convenient for travel and make provision for utilities." Meyer,
29 Mass. App. Ct. at 170. Accord Collings v. Planning Bd. of
Stow, 79 Mass. App. Ct. 447, 454 (2011).
Nevertheless, we do not read the language "on the basis of
zoning in effect at the date of assessment" to require the
district to base its calculations solely on the zoning by-laws,
as the plaintiff argues. Rather, we construe the provision as
accomplishing two purposes: it prohibits a municipality from
assessing a lot as a potential water unit if zoning restrictions
would render the lot not buildable, and it defines the operative
restrictions as the ones in effect at the time of the
assessment. So construed, the provision requires consideration
of zoning laws in effect at the time of assessment but does not
preclude consideration of other laws relevant to the development
15
potential of the land. Thus, if the land can be subdivided, and
residences can be built on the resulting lots, we see no bar --
and certainly, no "clear" bar, Grace, 379 Mass. at 54 -- to
including those residences as "potential water units" under
G. L. c. 40, § 42K.
This result is consistent with the statutory scheme and
purpose. When the Legislature enacted § 42K in 1994, it plainly
intended to provide an alternative to the fixed uniform rate
method of § 42H, which has been in place since 1955. This must
mean that the uniform unit method of § 42K encompasses factors
beyond those already set out in § 42H (frontage of the land on
the way in which the water main is to be laid, the land area
within a fixed depth from the way, and valuation). Cf. W.R.
Grace & Co.-Conn., 62 Mass. App. Ct. at 463, (uniform unit
method under G. L. c. 83, § 15, allows municipalities to
consider "existing and potential sewer units to be served,"
"[r]ather than making assessments based upon frontage and area
as required by the fixed uniform rate").7
In contrast to § 42H, § 42K expressly authorizes the costs
of construction to be assessed on "potential" water units that
will be served by the new water mains. This indicates a
7
The statutory methods of calculating sewer betterment
assessments are substantially similar to the methods set out in
G. L. c. 40, §§ 42H and 42K. See G. L. c. 83, § 15.
16
legislative intent to allow municipalities to consider the
development potential of the benefited land when determining how
to divide the costs among the affected property owners. See
W.R. Grace & Co.-Conn., 62 Mass. App. Ct. at 464, quoting from
Mullen v. Board of Sewer Commrs. of Milton, 280 Mass. 531, 533
(1932) (uniform unit method is exercise of legislative authority
"to make an apportionment of the cost of improvements upon . . .
estates receiving peculiar advantages above those accruing in
general"). Although the division of costs must be proportional,
see ibid., we disagree with the plaintiff's contention that the
inclusion of subdivision lots violates that principle. A
subdivision lot will receive a particularized benefit from the
availability of a nearby public water supply, even if the
developer will have to pay to extend the water lines. See
Seiler, 353 Mass. at 457 ("It having been determined that the
petitioners derive special benefits from . . . [the new sewer
system], they are liable to assessment for a proportional share
of the general cost. There is nothing to compel the respondent
to allocate funds so as to put the general burden exclusively on
abutters other than on the petitioners"). Furthermore, if only
frontage is considered, this can lead to overestimating the
proportional benefits conferred to small lots, while
underestimating the benefits to large or unusually shaped lots
that have little frontage but high development potential. The
17
district's inclusion of subdivision lots is thus consistent with
the statutory purpose of distributing costs based on the
approximate proportional benefit conferred to each property
owner. See ibid. ("In view of the difficulty of attempting to
estimate benefits to the estates individually, it is necessary
only that the principle by which the expenditures are
apportioned provide for reasonable and proportional assessments,
not substantially in excess of the benefits received"). Accord
Exeter Realty, 356 Mass. at 404; Morton, 43 Mass. App. Ct. at
205.
The plaintiff further contends that it is unfair to assess
betterments on hypothetical subdivision lots because planning
boards have broad discretion to approve or disapprove
subdivision plans; as a result, it says, a developer cannot
estimate with any degree of certainty how many subdivision lots
might ultimately be created out of a parcel. A planning board's
discretion is more circumscribed, however. In particular, "[a]
planning board has no discretion to disapprove a subdivision
plan which has been approved by the board of health and is in
conformance with the reasonable rules and regulations of the
planning board." MP Corp. v. Planning Bd. of Leominster, 27
Mass. App. Ct. 812, 819-820 (1989), quoting from Patelle v.
Planning Bd. of Woburn, 6 Mass. App. Ct. 951, 951 (1978). To
reject a proposed subdivision, the planning board must "point to
18
particular board regulations" that render the plan out of
compliance. Id. at 821. The applicant can then appeal any
disapproval to the Superior Court or the Land Court. See G. L.
c. 41, § 81BB, as amended through St. 2002, c. 393, § 6.
We note also that there are procedural protections built
into the district's assessment policy itself. The policy
provides for dialogue between the district and the property
owner prior to the district's final determination of the
assessment. Property owners can submit evidence that their land
cannot be developed, or they can place a deed restriction on the
land. In the event of disagreement, they can petition for
abatement and challenge any adverse decision in Superior Court.
See G. L. c. 80, § 7. Together, these protections guard against
the risk that assessments made under the district's policy will
not be reasonable and proportional.
The plaintiff does not explain how its contrary reading of
§ 42K, which would strictly confine the district to considering
only zoning laws, comports with the statute and legislative
intent. "The Zoning Act and the subdivision control law share a
similar purpose: to regulate the use of land to ensure the
safety, convenience, and welfare of the inhabitants of
municipalities." McElderry v. Planning Bd. of Nantucket, 431
Mass. 722, 726 (2000). Both laws bear on the rights of property
owners to develop their land. Indeed, the town of Wareham's
19
zoning by-laws incorporate the subdivision rules in several
places -- for instance, by allowing a developer to submit a
combined application for site plan review and subdivision
approval, and obtain a combined public hearing, if the
application meets the requirements for both approvals. See Town
of Wareham Zoning By-laws § 1550 (2016). Given the
interrelationship and shared purposes of the two regulatory
regimes, we think it unlikely that the Legislature meant for
land development potential to be determined under § 42K based on
zoning laws alone. Certainly, nothing in § 42K compels that
interpretation.
Furthermore, the plaintiff's reading would create the
anomaly of allowing water betterments to be assessed on land
that is restricted from development by nonzoning regulations,
such as those governing earth removal and floodplain and
wetlands protection. While "often the subject of zoning
regulations, these matters have also been adopted and upheld by
the Supreme Judicial Court as independent, nonzoning land use
controls." Healy, Massachusetts Zoning Manual § 2.1, at 2-2 to
2-3. See Byrne v. Middleborough, 364 Mass. 331, 334 (1973);
Lovequist, 379 Mass. at 12-14. The implication of the
plaintiff's position would be that municipalities would be free
to ignore such restrictions even if they would render the land
20
undevelopable, an outcome that the Legislature is not likely to
have intended.
The plaintiff's interpretation suffers from the additional
flaw that it would create substantial overlap between § 42H and
§ 42K. The only alternative method of calculation proffered by
the plaintiff -- limiting potential water units to ANR lots --
is, in essence, a frontage-based method because whether a lot
qualifies for an ANR endorsement depends on frontage, either on
a public way or a way endorsed by the planning board as meeting
the requirements of the subdivision control law. See G. L.
c. 41, § 81L.8 But the fixed uniform rate method has provided
for frontage-based assessments since the original enactment of
the water betterment assessment statute in 1955. See G. L.
c. 40, § 42H. The plaintiff does not explain what then would
have been the Legislature's intent in enacting § 42K if it too
is based on frontage. See Doherty v. Planning Bd. of Scituate,
467 Mass. 560, 569 (2014) (statute should be construed so that
no part is inoperative or superfluous).
8
We note that, although an ANR endorsement takes a plan
outside the regime of the subdivision control law, it "serves
merely to permit the plan to be recorded . . . and is not an
attestation of compliance with zoning requirements." Palitz,
470 Mass. at 807, quoting from Cornell v. Board of Appeals of
Dracut, 453 Mass. 888, 892 (2009). See Gates v. Planning Bd. of
Dighton, 48 Mass. App. Ct. 394, 397 (2000) (whether lot
"conform[s] with zoning requirements [is] not an appropriate
consideration in granting or withholding an ANR endorsement").
21
For these reasons we conclude that § 42K should be read to
allow water betterment assessments to be based on the
development potential of the land, which must be determined by
considering "zoning in effect at the date of assessment" and may
be determined by considering rules and regulations adopted under
the subdivision control law. The district's policy comports
with this reading and thus does not conflict with § 42K.
4. G. L. c. 40, § 42G. Turning to the plaintiff's next
argument, we have little trouble concluding that G. L. c. 40,
§ 42G, poses no bar to the district's method of calculation.
The plaintiff construes § 42G as authorizing water betterments
to be assessed only as to "land that is actually given access to
a water line, generally by having frontage on the road where the
line is installed." But this interpretation disregards the
plain statutory language, which specifies that betterments may
be assessed against a property owner whose land "receives
benefit from the laying of water pipes in public and private
ways upon which his land abuts or which by more remote means
receives benefit through the supply of water to his land or
buildings" (emphasis supplied). G. L. c. 40, § 42G. If, as the
plaintiff argues, the statute applies only to land abutting the
way, the words "which by more remote means receives benefit"
would have no meaning. We decline to adopt such a construction.
See Doherty, 467 Mass. at 569.
22
5. Fairness of the assessments. Finally, the plaintiff
has failed to demonstrate that the three assessments at issue
were unreasonable or disproportionate. The plaintiff declined
multiple opportunities, prior to the district's recording of the
assessments, to submit evidence that the parcels are not
developable. As a result, we lack any meaningful record on
which to consider its claims that the district's policy is
unfair as applied to the parcels.
If anything, what is in the record undermines the
plaintiff's claims of unfairness. As reflected in a stipulation
between the parties, the plaintiff has subdivided some of the
parcels already and has reserved its rights to make further
subdivisions while this lawsuit is pending. In contrast, other
property owners responded to the district's letters with
documentation that their land was not developable because of
wetlands regulations, conservation restrictions, or other
enforceable limitations on the use of the property.9 In those
cases the district responded by reducing the assessments. Thus,
on the evidence before us, there is nothing to indicate that the
9
We do not preclude the possibility that, in a different
case, a landowner could successfully challenge an assessment of
subdivision lots on these or other grounds. In any appeal from
a denial of abatement, the court would have the power to
overturn an assessment that is "unreasonable or unreasonably
discriminatory." Morton, 43 Mass. App. Ct. at 205. See Henry
B. Byors & Sons, 358 Mass. at 359. No such showing has been
made in this case, however.
23
assessments at issue were unreasonable or substantially in
excess of the benefits conferred on the plaintiff. See Morton,
43 Mass. App. Ct. at 205.
Judgment affirmed.
Ninety Six, LLC v. Wareham Fire District
Combined Opinion