Gallo v. Division of Water Pollution Control

• Decision Date: 25 January 1978
• Citation: 372 N.E.2d 1258,374 Mass. 278
• Parties: Robert H. GALLO et al. 1 v. DIVISION OF WATER POLLUTION CONTROL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1258

372 N.E.2d 1258

374 Mass. 278

Robert H. GALLO et al. ¹ v. DIVISION OF WATER POLLUTION CONTROL et al. ²

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 6, 1978.

Decided Jan. 25, 1978.

Phillips S. Davis, Worcester, for plaintiffs.

Robert J. Martin, Town Counsel, Worcester, for town of Holden.

Charles A. Abdella, Asst. City Sol., for city of Worcester.

William A. Schroeder, Asst. Atty. Gen., for Division of Water Pollution Control and another.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

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 sewerage 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. ³ 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 "(n)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. ⁴

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. ⁵ 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 maintain and operate the trunk sewer for the removal of all sewage from the two towns, and the towns promised in turn that, in making connections to the trunk line, they would prevent the entrance of drainage and other materials that would tend to overload the system.

In fact, the plaintiffs claim that the towns have not kept their sewerage systems in good repair and there is infiltration of more than 100,000 gallons a day into each system. The Commission, however, has not attempted to compel the towns to live up to their contractual obligations. Since 1970 the defendants have been aware of the potential sewer capacity problem in the Rutland-Holden trunk line but have done nothing to remedy the situation. State and Federal funds have been available to build an additional line or to seal existing lines in order to provide additional capacity. However, neither the Commission nor the defendant municipalities have applied for these funds. Nor has the Division, through which the funds are available, sought to compel the other defendants to apply for financial assistance or to take other action to remedy the situation.

The plaintiffs contend finally that the Division's issuance of the moratorium order without a time limit and without a positive remedial program resulted in an unconstitutional taking of the plaintiffs' property, and that Holden's sewer assessment policy is illegal and unconstitutional because it requires the imposition of sewer assessments notwithstanding the sewer moratorium. The plaintiffs pray that the two towns be preliminarily enjoined from any further construction of sewer lines or from allowing any further extensions of or connections to their sewerage system; that Holden be enjoined from collecting sewer assessments from the plaintiffs and from encumbering such of the plaintiffs' property as is affected by the moratorium until the moratorium is lifted and their connections are allowed; that the court declare that the Commission and the defendant municipalities are in violation of their contracts, and that further violation of these contracts be enjoined. The plaintiffs also seek damages.

The principal issue before us is whether the plaintiffs have standing to maintain this action. They contend that they derive their standing from one or both of the following sources: (1) the special acts authorizing the Commission to build the Rutland-Holden trunk sewer line and to enter into the contracts with the defendant municipalities, and (2) the declaratory judgments act (G.L. c. 231A). We consider these contentions as to each defendant.

1. The plaintiffs' claims against the Commission are based solely on that agency's alleged failure to comply with the provisions of its contracts with the towns of Holden and Rutland to maintain and operate the trunk sewer for the removal of all sewage from the towns. The plaintiffs argue that their authority to bring the action is derived from certain provisions in the two special acts authorizing the contracts. In the 1932 act the Superior Court is given jurisdiction, "on the petition of the commission or of any city, town, corporation or person interested . . . to enforce the provisions of this act and to prevent any violation thereof, and to enforce the terms of any agreement made (under the act)." St.1932, c. 262, § 12. A nearly identical provision appears in the 1938 act. ⁶

The plaintiffs contend that the phrase "person interested" applies to them although they are not parties to the contracts. For this contention to be correct, we must attribute to the Legislature the intent to authorize actions by nonparty landowners against parties to the contracts, the alleged breach of which prevented the landowners from connecting to the municipal sewerage system. To determine whether this is what the Legislature intended, we look to the language and purpose of the statutes. See Westland Hous. Corp. v. Commissioner of Ins., 352 Mass. 374, 383-384, 225 N.E.2d 782 (1967); Godfrey v. Building Comm'r of Boston, 263 Mass. 589, 590-591, 593, 161 N.E. 819 (1928); Ayer v. Commissioners on Height of Bldgs. in Boston, 242 Mass. 30, 33, 136 N.E. 338 (1922). A reading of each statute as a whole reveals that no such broad construction was intended.

The 1932 act authorized the Commission to construct the Rutland-Holden trunk sewer "for the purpose of maintaining and protecting the purity of the water supplied and to be supplied from the Wachusett reservoir, the Quinapoxet river and the Ware river to the metropolitan water district and the city of Worcester and other cities and towns connected with the water supply...