Ninety Six, LLC v. Wareham Fire District (Lawyers Weekly No. 11-018-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 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 […]