PATCH v. TOWN OF HINGHAM (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Thomas F. Patch, owns property in the town of Hingham (town) that is subject to a betterment assessment associated with a sewer extension project. He brought an action, pro se, in the Superior Court against the defendants, the town and members of its board of sewer commissioners (board), seeking injunctive relief and a declaration that the assessments in connection with that project were void. The plaintiff now appeals from the judgment dismissing his complaint, the order denying his subsequent motion for reconsideration, as well as from rulings on his two motions to strike portions of the summary judgment record.³ We affirm.

Background. We briefly summarize the procedural history, reserving certain details for our later discussion. At the 2012 annual town meeting, the town voted to approve a project to extend the public sewer line in the town's north sewer district to the area of Ship and Cottage Streets (project). At the 2013 annual town meeting, the town voted to amend the bylaws to permit the estimated rate of assessment to be calculated by any method permitted by the General Laws and approved pursuant to a vote by the town. At the same meeting, the town voted that the property owners on Ship and Cottage Streets would bear the full cost of the project, and that the betterment assessments imposed on those properties would be calculated using the “uniform unit method.” See G. L. c. 83, § 15. The plaintiff appeared at both annual town meetings and voiced his opposition to the project and the related assessments.

On September 3, 2013, the board approved the plan for the construction of the sewer line extension. The board also identified the twenty-nine properties subject to the betterment assessments in connection with the project. On September 11, 2013, the board recorded a statement of its action with the registry of deeds pursuant to G. L. c. 83, § 27. The plaintiff's property located at 9 Ship Street (property) was among those identified as subject to an assessment.

On September 1, 2015, following the completion of the project, the board approved the betterment assessment schedule (schedule). The schedule reflected total assessments of $583,949, with an assessment of $18,837 imposed on the property. The plaintiff was present at the board's meeting and expressed his opposition to the assessments. On September 9, 2015, the board recorded notice of its vote and the schedule with the registry of deeds.

On September 15, 2015, the town's board of assessors signed the warrant to commit the assessments to the collector of taxes, and the treasurer/collector of taxes issued a notice to the plaintiff informing him of the assessment on the property. The notice also advised the plaintiff of his right to apply for an abatement with the board within six months of the date of the notice.

That same day, the plaintiff initiated his action for injunctive and declaratory relief in the Superior Court. The defendants moved to dismiss based on lack of standing and failure to state a claim, and a Superior Court judge denied that motion. Following discovery, the defendants moved for summary judgment. A different Superior Court judge allowed that motion, and judgment subsequently entered dismissing the plaintiff's complaint.

In his decision, the judge observed that the plaintiff's complaint and summary judgment filings were “verbose and confusing,” but the judge discerned six areas of concern raised by the plaintiff: the town's use of the “uniform unit method” to calculate the assessments; the classification of one residence as a single-family, rather than a two-family dwelling; the alleged extension of the sewer into private ways; the use of grinder pumps; the failure to obtain approval for the project from the Department of Public Health (DPH); the percentage of the project paid by the town; and the inclusion of certain costs in the assessments, such as legal fees.⁴ After considering each of these issues, the judge concluded that the plaintiff had no reasonable expectation of prevailing at trial. The plaintiff moved for reconsideration, which the same judge summarily denied.

Discussion. 1. Standing. The defendants urge us to affirm the judgment dismissing the complaint on the ground that the plaintiff lacked standing to maintain this action. See Matter of the Receivership of Harvard Pilgrim Health Care, Inc., 434 Mass. 51, 56 (2001) (“The issue of standing may be raised at any time”). The declaratory relief statute, G. L. c. 231A, does not provide an independent statutory basis for standing. See Statewide Towing Ass'n v. Lowell, 68 Mass. App. Ct. 791, 795 (2007). Rather, the plaintiff may establish standing by alleging a “legally cognizable injury,” meaning one “within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.” Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977). The standing requirement in actions for declaratory relief is liberally construed. Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 384-385 (2018).

As the owner of property subject to a sewer betterment assessment, the plaintiff has standing to challenge the validity of the assessment through an action for declaratory relief brought prior to the commitment of the assessment to the tax collector. See Gallo v. Division of Water Pollution Control, 374 Mass. 278, 287-288 (1978), and cases cited.

Here, the plaintiff attested that he filed his complaint in the Superior Court on September 15, 2015, at 2 p.m., before the town signed the warrant and committed the assessments to the tax collector that same day at 3:55 p.m. Therefore, he has sufficiently established standing to pursue his claims for declaratory and injunctive relief to the extent he challenges the assessments as void.

2. Summary judgment record. The plaintiff contends that the judge erred in failing to render a ruling on his first motion to strike, which we treat as an implicit denial of that motion, and in explicitly denying his second motion to strike certain materials from the summary judgment record. We review for abuse of discretion. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013); Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 802 (2019).

In his first motion, the plaintiff sought to strike nearly all the evidence supporting the summary judgment motion, i.e., affidavits from four town employees and most of the related exhibits. The plaintiff contends the affidavits were insufficient because the employees asserted their representations therein were based “on personal knowledge, information or belief,” rather than strictly on their own personal knowledge. See Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”). We discern no error because the town clerk, the building commissioner, the superintendent of the department of public works, and the treasurer/collector each attested to matters that were within the scope of their respective job responsibilities. Therefore, each had a sufficient basis of knowledge to make the representations within the respective affidavits, and to attest to the accuracy of the related exhibits.

We need not reach the judge's decision to deny the plaintiff's second motion to strike an affidavit and exhibits pertaining to the issue whether DPH approval was required for the project. Because that issue presents a pure question of law, the contested documents are not material to our decision.

3. Validity and calculation of betterment assessments. The plaintiff argues that the betterment assessments in connection with the project are invalid because the town failed to obtain statutorily-required approval from the DPH prior to proceeding with the project, the town incorrectly applied the “uniform unit method” by not including all properties benefited by the project in its calculation, and the town improperly included certain costs that caused the assessments to exceed one hundred percent of the total cost of the project. “We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Galenski v. Erving, 471 Mass. 305, 307 (2015). We may affirm on any ground apparent from the summary judgment record. See Jupin v. Kask, 447 Mass. 141, 159 n.17 (2006).

a. DPH approval. The plaintiff first argues that the assessments were unlawful because the defendants did not obtain approval from the DPH for the project. This argument fails because the defendants were only required to obtain approval from a different State agency, the Department of Environmental Protection (DEP), and they did so.

Prior to 1974, the DPH was required to approve sewer system plans before construction commenced. This requirement was memorialized in G. L. c. 111, § 17, as amended by St. 1937, c. 340, the chapter governing certain areas of public health, including water supply, drainage, and sewage;⁵ G. L. c. 83, § 1, as amended by St. 1964, c. 736, § 2, the chapter governing sewers, drains, and sidewalks;⁶ and St. 1946, c. 82, § 16, the act authorizing the town to construct the north sewer district.⁷ However, in 1974, this scheme was altered when the Legislature created the Department of Environmental Quality Engineering (DEQE) and transferred authority to approve sewer system plans from the DPH to the DEQE. We briefly summarize the legislation relevant to that change.

Pursuant to St. 1974, c. 806, the Legislature created an Executive Office of Environmental Affairs (executive office), the DEQE within the executive office, and a bureau of environmental sanitation (bureau) within the DEQE. See St. 1974, c. 806, §§ 1, 7-8. The 1974 act also delegated certain authority to those entities. Relevant here is that the executive office was charged with “develop[ing] programs relating to ․ the operation of sewer and water systems.” St. 1974, c. 806, § 1 (inserting G. L. c. 21A, § 2 [13]). To that end, the bureau was expressly delegated all powers and duties set forth in G. L. c. 111, § 17, the provision governing the DPH's authority over the disposal of sewage, as well as those held by the division of water pollution control, the entity vested with “the authority to administer water pollution abatement or control laws.” St. 1966, c. 685, § 3. See St. 1974, c. 806, § 1 (inserting G. L. c. 21A, § 8).

To effectuate the transfer of authority from the DPH to the DEQE, the Legislature directed the executive office,

“To conduct a comprehensive investigation and study of the powers and duties of the department of public health which relate to environmental health, including but not limited to those which are assigned to the bureau of environmental sanitation. Said investigation and study shall revise as necessary the division of functions between the department of public health and the department of environmental quality engineering of said executive office. Said secretary shall consult with the commissioner of public health and the secretary of the executive office of human services, who shall cooperate with said secretary. The recommendations of said investigation and study shall be designed to assign to the department of environmental quality engineering powers and duties which relate to the protection of the environment and to the department of public health powers and duties which relate directly to the protection of public health, and may include the proposed assignment of any such powers and duties to any other agency.”

St. 1974, c. 806, § 40 (f).

Thereafter, in 1975, G. L. c. 111, § 17, was amended to reflect the transfer of authority to approve towns' proposed sewer systems from the DPH to the DEQE. See St. 1975, c. 706, § 167. In 1990, the statute was further amended to reflect the name change from the DEQE to the DEP. See St. 1990, c. 177, § 167. In its current iteration, G. L. c. 111, § 17, provides, “Towns, districts and persons shall submit to [the DEP] for its advice and approval their proposed system of water supply or of the disposal of drainage or sewage, and no such system shall be established without such approval.”

We recognize the plaintiff's argument that St. 1946, c. 82, § 16, and G. L. c. 83, § 1, still contain language added prior to 1974 that references the requirement that the DPH approve sewer system plans. However, this argument is belied by St. 1974, c. 806, § 36, which expressly provides,

“Wherever the name of any board, commission, committee or authority, the powers and duties of which are transferred to the executive office of environmental affairs by this act, appears in any general or special law, or in any order, rule, regulation or other document related to the exercise of such powers or the performance of such duties, such name shall mean and shall be construed as referring to the appropriate agency within the executive office.”

By its clear language St. 1974, c. 806, transferred authority to approve sewer system plans from the DPH to the DEQE (now the DEP), and we read all statutes accordingly.⁸

b. Application of the “uniform unit method.” The plaintiff contends that the assessments are void because the defendants incorrectly applied the “uniform unit method” by failing to impose betterment assessments on certain properties abutting the sewer extension line that had preexisting access to the public sewer and by classifying one two-family dwelling as a single-family dwelling. These arguments fail.

As an initial matter, the town's use of the “uniform unit method” was proper. Pursuant to St. 1946, c. 82, § 8, the town was permitted to choose, by vote, any method authorized by the General Laws to calculate the rate of the betterment assessments. Here, the town voted to utilize the “uniform unit method,” which G. L. c. 83, § 15, authorizes and explains “shall be based upon sewerage construction costs divided among the total number of existing and potential sewer units to be served, after having proportioned the cost of special and general benefit facilities” (emphasis added). See W.R. Grace & Co.-Conn. v. Acton, 62 Mass. App. Ct. 462, 463 (2004) (municipalities authorized to use “uniform unit method” to assess landowner's proportional part of construction of common sewer).

In compliance with G. L. c. 80, G. L. c. 83, and St. 1946, c. 82, the board identified, pursuant to a vote, the twenty-nine properties that “will receive a benefit or advantage, other than the general advantage to the community, from the laying out and construction” of the sewer line extension. The mere existence of other properties abutting the sewer extension line does not undercut that determination. This is so because an assessment is properly imposed on a landowner, including those with a preexisting sewer connection, only if “the new sewers and discharge systems affect the [landowner] so as to give [that landowner] a special benefit.” Seiler v. Board of Sewer Comm'rs of Hingham, 353 Mass. 452, 456 (1968). See G. L. c. 83, § 14 (assessment may be imposed on person who connects to common sewer or “who by more remote means receives benefit thereby for draining his land or buildings”). Contrast Stepan Chem. Co. v. Wilmington, 8 Mass. App. Ct. 880, 881 (1979) (assessments void where not imposed on abutting landowners who first gained access to sewer system through construction, even though they did not use access). No evidence was offered to contradict the board's determination that the specified abutting landowners were not among those who received a special benefit by virtue of the sewer line extension.⁹ Contrast Seiler, 353 Mass. at 456 (where existing system discharged into bay causing health menace, landowners received special benefit from access to new sewer system that discharged into Metropolitan District Sewer System).

The plaintiff also argues that the defendants failed to comply with G. L. c. 83, § 15, by assessing one property as a single-family dwelling (rather than a two-family dwelling) in a manner inconsistent with the zoning laws then in effect.¹⁰ However, at the landowner's request, the town's building commissioner conducted an inspection of the residence at issue. Applying the definition of “dwelling unit” then appearing in the town's zoning bylaws, the building commissioner determined that the residence classified as a single-family dwelling.¹¹ While the plaintiff argues that the landowner was required to permanently abandon any future use of the residence as a two-family dwelling, we discern no error with the town's reliance on the building commissioner's contemporaneous inspection and reliance on the definition of “dwelling unit” in the town's zoning bylaws to reach its classification decision.

c. Specific costs included in assessments. The plaintiff's remaining objections to specific costs included in the assessments, including costs related to the extension of the sewer line through easements across private property, as well as for grinder pumps, legal fees, and wages for employees of the town's sewer department, are not the proper subject of an action for declaratory relief.

As discussed above, the plaintiff may challenge the assessments as void prior to their commitment to the tax collector through an action for declaratory relief. While the plaintiff couches his remaining arguments in terms of whether the town impermissibly assessed more than one hundred percent of the total cost of the project, the substance of his claim is that the assessments are excessive.¹² The proper avenue to raise such a challenge is through a petition for abatement.¹³ See W.R. Grace & Co.-Conn., 62 Mass. App. Ct. at 466, citing Hester v. Thompson, 217 Mass. 422, 424 (1914) (petition for abatement is remedy where plaintiff “asserts what is in essence a quarrel over the application of [town's] formula to its property”). Cf. Cape Ann Citizens Ass'n v. Gloucester, 47 Mass. App. Ct. 17, 18 (1999) (where sewer system construction did not violate city charter, homeowners retained right to challenge assessments through abatement process on grounds of disproportionality and excessiveness); Zambernardi v. Board of Selectmen of Wilmington, 2 Mass. App. Ct. 873, 874 (1974) (“validity of [betterment] assessment, as distinguished from the amount thereof, is properly challenged in the Superior Court by a proceeding separate and distinct from any petition for abatement filed with the board under G. L. c. 80, § 5, or any appeal from the board's disposition thereof to the Superior Court under G. L. c. 80, § 7”). To hold otherwise would circumvent “the comprehensive and uniform statutory scheme of administrative appeals and judicial review regarding assessments for sewers and other betterments [set forth in G. L. c. 80].” Gudanowski v. Northbridge, 17 Mass. App. Ct. 414, 421 (1984). See G. L. c. 83, § 23; G. L. c. 80, §§ 5-7, 10 (process for seeking abatement of betterment assessment). The plaintiff's complaint for declaratory and injunctive relief was properly dismissed.¹⁴

Conclusion. The judgment dismissing the plaintiff's complaint, the order denying his motion for reconsideration, and the rulings on his motions to strike are affirmed.

So ordered.

Affirmed.

FOOTNOTES

3.   The notice of appeal encompasses orders of a different Superior Court judge denying without prejudice the plaintiff's motion for relief related to alleged deficiencies with the defendants' responses to interrogatories, and allowing in part the plaintiff's emergency motion for reconsideration and/or clarification of that order. However, the plaintiff makes no separate argument about these orders and the docket reflects that the plaintiff did not file a renewed motion after a further Superior Court Rule 9C conference even though he was free to do so if the issues remained unresolved. Therefore, we affirm those orders without further discussion.

4.   The plaintiff takes issue with the judge's distillation of his arguments as well as the judge's assertion that the plaintiff “appeared to acknowledge that these were the primary areas of dispute” at the summary judgment hearing. On appeal, he fails to clearly explain how the judge's characterization of his areas of dispute was incorrect and, therefore, his claim of error does not rise to the level of appellate argument. See Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief do not rise to level of appellate argument).

5.   In relevant part, St. 1937, c. 340, amended G. L. c. 111, § 17, to provide, “Towns and persons shall submit to [the DPH] for its advice and approval their proposed system of water supply or of the disposal of drainage or sewage, and no such system shall be established without such approval.”

6.   In relevant part, St. 1964, c. 736, § 2, amended G. L. c. 83, § 1, to provide, “No act shall be done except in the making of surveys, reports and other preliminary investigations, until the plan for said system or systems of sewerage and sewage treatment and disposal has been approved by the department of public health.”

7.   In its entirety, St. 1946, c. 82, § 16, provides,“No act shall be done under authority of the preceding sections, except in the making of surveys and other preliminary investigations, until the plans of the system of sewerage and sewage disposal have been approved by the department of public health. Upon application to the department for its approval, it shall give a hearing, after due notice to the public. At such hearing, plans showing in detail all the work to be done in constructing the system of sewerage and sewage disposal shall be submitted for approval by the department.”The requirement that the DPH hold a public hearing before approving sewer plans was subsequently eliminated pursuant to St. 1956, c. 139.

8.   To the extent that the plaintiff argues that the DEP was required to hold a public hearing before approving the project plan, that requirement was eliminated. See note 6, supra.

9.   The plaintiff asserts that the town's 2015 bylaws require assessments on all abutting property owners irrespective of whether they receive a special benefit from the project. Contrast G. L. c. 83, § 15 (“The proportional cost of the special benefit and general benefit facilities may be assessed against all properties abutting a sewered street” [emphasis added]). Applying that reading, the bylaw is inconsistent with G. L. c. 83 and, therefore, cannot stand. See Boston Gas Co. v. Somerville, 420 Mass. 702, 703 (1995) (“Municipalities may not adopt by-laws or ordinances that are inconsistent with State laws”). See also G. L. c. 83, § 14 (assessment proper on those “who by more remote means receives benefit thereby for draining his land or buildings“ [emphasis added]).

10.   In relevant part, G. L. c. 83, § 15, provides, “Each sewer unit shall be equal to a single family residence. Potential sewer units shall be calculated on the basis of zoning then in effect. Existing and potential multifamily, commercial, industrial and semipublic uses shall be converted into sewer units on the basis of residential equivalents.”

11.   The inspection was conducted in June 2014. While the defendants provided a copy of the 2012 bylaws along with the building commissioner's inspection report, the 2014 bylaws include the same definition of a “dwelling unit”: “one or more rooms providing complete living facilities for one household, including rooms and facilities for living, sleeping, eating, cooking and sanitation.”

12.   At the 1955 annual town meeting, the town voted to pay sixty-five percent of the total construction costs of the north sewer district with the remaining costs to be assessed on the abutting property owners. The town submitted evidence demonstrating that it continues to meet that sixty-five percent threshold even after one hundred percent of the cost of the sewer extension project here was assessed on the benefited property owners.

13.   In the proceedings before the Superior Court, the parties represented that the plaintiff did seek an abatement based on the same arguments, and that the plaintiff brought a separate Superior Court action seeking judicial review of the decision on his abatement petition. The docket in that separate action reflects that an order of dismissal nisi entered after the action was reported settled. See Patch vs. Town of Hingham, Mass. Super. Ct., No. 1683CV00775. See also Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011) (court may take judicial notice of docket entries in separate case).

14.   To the extent that we do not address the plaintiff's other contentions, they have not been overlooked. We either find nothing in them that requires discussion, or they do not rise to the level of adequate appellate argument as required by Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).