Heard: September 12, 2017.
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.
case was heard by Robert C. Cosgrove, J.
T. Gay for the plaintiff.
Allen Markey, Jr., for the defendant.
Present: Milkey, Hanlon, & Shin, JJ.
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 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).
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. 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." The plaintiff appeals, 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,
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 "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
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.
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, §
810, 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).
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
"(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 ...