Ninety Six, LLC v. Wareham Fire Dist.

Citation94 N.E.3d 397,92 Mass.App.Ct. 750
Decision Date12 September 2017
Docket NumberNo. 16–P–1111,16–P–1111
CourtAppeals Court of Massachusetts

David T. Gay, Taunton, for the plaintiff.

John Allen Markey, Jr., New Bedford, for the defendant.

Present: Milkey, Hanlon, & Shin, JJ.


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 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, 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 "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.

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, 558 N.E.2d 994 (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, 671 N.E.2d 1233 (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

"(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, 26 N.E.3d 175 (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 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 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:

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...

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  • Barry v. Planning Bd. of Belchertown, 18-P-723
    • United States
    • Appeals Court of Massachusetts
    • October 29, 2019 not required," frequently referred to as an "ANR" endorsement. G. L. c. 41, § 81P. See Ninety Six, LLC v. Wareham Fire Dist., 92 Mass. App. Ct. 750, 753, 94 N.E.3d 397 (2018). See also Palitz, supra at 796, 26 N.E.3d 175. The statutory term "subdivision" is defined in § 81L in the negat......

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