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01/25/78 ROBERT H. GALLO & OTHERS *FN1 v. DIVISION

January 25, 1978

ROBERT H. GALLO & OTHERS *FN1
v.
DIVISION OF WATER POLLUTION CONTROL & OTHERS *FN2



Worcester. Civil action commenced in the Superior Court on March 10, 1976. The case was heard by Lappin, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Division of Water Pollution Control. Metropolitan District Commission. Practice, Civil, Parties, Declaratory proceeding. Declaratory Judgment. Taxation, Sewer assessment. Administrative Matter.

The opinion of the court was delivered by: Quirico

Landowners who were not permitted to connect to a local sewerage system were not "person interested" as used in St. 1932, c. 262, § 12, or St. 1938, c. 460, § 7, and did not therefore have a right of action against the Metropolitan District Commission, which was obligated to maintain or construct the sewerage system [283-286]; nor did they have standing to bring an action against certain municipalities for violating their contracts with the Commission to keep their sewerage systems in good repair [286-287].

A real estate developer could not maintain a suit for declaratory relief challenging a town's sewer assessment policy after the assessment had been committed to the tax collector where the plaintiff had not exhausted the administrative remedies provided by G. L. c. 80. [287-289]

A complaint challenging the constitutionality of an order of the Division of Water Pollution Control which failed to allege that the Division's order established or was part of a practice or procedure, that the practice was the customary method of conducting the Division's business, that the practice violated the laws or Constitution of the Commonwealth or the United States Constitution, and that the violation had been consistently repeated, did not state a claim against the Division within the provisions of G. L. c. 231A. [289-290]

Plaintiffs seeking to challenge an order of the Division of Water Pollution Control that "o extension of or connection to the municipal sewerage system . . . may be made unless authorized by the Division, through the issuance of a sewer extension or connection permit" were precluded from seeking declaratory relief under G. L. c. 231A, where they had not exhausted their administrative remedies under G. L. c. 21, § 43. [290-292]

The plaintiffs, who are engaged in residential development in the towns of Holden and Rutland, seek injunctive and declaratory relief, as well as damages, for certain acts and omissions of the defendants resulting in the plaintiffs' inability to make sewer connections between their house lots and the municipal sewage disposal system.

The plaintiffs allege that, because they have not been granted authority to connect their lots to the sewer system, they are being deprived of their livelihood and their property without just compensation and without due process of law. Each of the defendants moved to dismiss the complaint on the ground that it failed to state a claim on which relief could be granted, with all defendants except Worcester arguing additionally that the plaintiffs had failed to exhaust their administrative remedies. *fn3 A Judge of the Superior Court allowed the motions to dismiss as to all defendants, and the plaintiffs are appealing therefrom. We affirm the judgments.

We summarize the allegations of fact contained in the lengthy complaint. By letter dated January 6, 1976, the defendant Division of Water Pollution Control (Division), through its director, notified the boards of selectmen of Holden and Rutland that "o extension of or connection to the municipal sewerage system in any gallonage amount or for any purpose may be made unless authorized by the Division, through the issuance of a sewer extension or connection permit." The only exceptions in the directive were: (1) if the board of health certified that the connection was necessary to eliminate "an existing or imminent nuisance or public health problem caused by one or more failed septic systems"; or (2) if evidence was submitted showing that twice the amount of infiltration or inflow to the sewerage system had been removed as was sought to be introduced by the new connection. The director gave as the reason for the order the fact that "sewage flows in the MDC trunk sewer conveying sewage from Holden and Rutland to the Worcester sewerage system are approaching and are within ninety-five percent (95%) of the design capacity of that trunk sewer."

As a result of the Division's directive the plaintiffs have not been able to proceed with the residential development of several parcels of land in Holden and Rutland. For some parcels, subdivision plans have been approved or special permits have been issued, subject only to the connection of the properties to sanitary sewers. As to other parcels, building permits have been refused because the developers had not obtained the sewer connection permits from the Division. The land conditions of most of the parcels are such that installation of individual disposal systems would be very difficult or impossible. Indeed, at least one parcel complies with zoning requirements for property with access to public sewerage, but does not comply with the requirements for property without such access. The defendant towns originally submitted to the Division applications for sewer connection permits on behalf of the plaintiffs, but the Division failed to act on the applications and the towns withdrew most of them. *fn4

Additionally, Holden has charged the plaintiff B. A. Sundin & Son, Inc. (Sundin), betterment assessments for two parcels even though Sundin cannot connect the properties to the town's sewerage system. Sundin paid both sewer assessment bills. The assessing policy of Holden does not provide any relief in the event of a moratorium on sewer connections. *fn5 It is alleged that, notwithstanding the policy and the Division's order, the town has allowed certain sewer connections and has appropriated funds for the construction of additional sewer lines for business properties.

The Rutland-Holden trunk sewer line, the subject of the Division's directive, extends from the center of Rutland through Holden to a point on the boundary between Holden and Worcester. It was built by the Commission pursuant to authority granted in St. 1932, c. 262. The legislation also authorized the Rutland and Holden sewerage systems to be connected to the trunk line and further authorized the Commission to enter into contracts with the two towns and the city of Worcester to carry out the project. In 1933, the Commission and the city of Worcester entered into a contract which provided in part that the city would build a connecting sewer from the Rutland-Holden trunk line to the city's sewer system and would dispose of the additional sewage at the sewage treatment plant. In 1938, the Commission and Holden and Rutland entered into contracts whereby the Commission agreed to construct sanitary sewerage systems in the towns, and the towns agreed to operate the systems and keep them in good repair. The Commission also agreed to ...


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