Plaintiff filed a verified Complaint for declaratory judgement and injunctive relief seeking a determination that Plaintiff need not comply with Defendants' requirement that Plaintiff replace a two inch section of water main with an eight inch section of water main. Plaintiff further asks that the Court order Defendants to sign an occupancy permit even though Plaintiff has not complied with Defendants' requirement. An application for preliminary injunction was heard on January 3, 1991 and denied. Both parties have moved for summary judgement and Defendants have moved to dismiss for lack of subject matter jurisdiction. In addition to various memoranda from both parties, Defendants submitted two affidavits from Arthur R. Smith, Jr. (Chairman of the Board of Water and Sewer Commissioners) and an affidavit from Priscilla R. Ward, Town Clerk. Counsel argued the motions on July 23, 1991 and in argument made various stipulations including a stipulation that there are no genuine issues of material fact. By order of the Chief Administrative Justice of' the Trial Court dated September 11, 1991, I was assigned to sit in the Superior Court Department for the sole purpose of hearing and determining (or otherwise supervising) the disposition of issues in this action which fall within the jurisdiction of the Superior Court Department. On the basis of the September 11, 1991 Order of Assignment and the material properly before me under Mass. R. Civ. P. §§12 and 56, I find and rule that there are no genuine issues of material fact and further find and rule as follows:
1. Defendants' motion to dismiss for lack of subject matter jurisdicton is denied, on the basis of the Order of Assignment.
2. Plaintiff Linn N. Anderson is a general partner of Sheridan Development Company, a Massachusetts Limited Partnership with a principal place of business at 314 Main Street, Wilmington, Massachusetts.
3. Defendants Arthur R. Smith, Jr., Noel Baratta and James Ring reside in Wilmington, Massachusetts and constitute the Board of Water and Sewer Commissioners ("Board").
4. The Town of Wilmington ("Town") is a duly organized municipality having a principal place of business in Wilmington,Massachusetts. Defendant Water and Sewer Department (the "Department") is a department of the Town.
5. Plaintiff owns the property known as Lot 1, Fenway Street, Wilmington ("Locus").
6. The Town issued a building permit to Plaintiff on June 8, 1990. The Department approved the Plaintiff's building permit application without notation of any special requirements. Plaintiff has constructed a single family house on Locus and has entered into a purchase and sale agreement for the sale of the house.
7. The Town Board of Appeals granted Plaintiff's application to construct a road not shown or made part of the official map on June 12, 1990.
8. Plaintiff paid $500 to the Board for the installation of a water service connection for Locus, into an eight inch water main in Fenway Street. The eight inch main leads approximately 100 feet to a two inch water main in Rollins Road. Rollins Road leads off Marion Street for about 200 feet where it intersects Fenway Street and then extends about another 275 feet. The water line in Rollins Street is a two inch line, leading to mains in Marion Street. There are houses on both sides of Rollins Road, on either side of its intersection with Fenway Street. Both Rollins Road and Fenway Street are private ways.
9. In September, 1990, Plaintiff was informed by the Department that Plaintiff would be required to replace approximately 230 feet (the portion from Fenway Street to Marion Street) of the two inch water main in Rollins Road with an eight inch main before a water service connection to Locus would be allowed. The Department also required that Plaintiff post a $10,000 bond to assure completion of the project.
10. The following is from the minutes of the Board's meeting of August 11, 1988:
8:00 P.M. MARGARET FISHER - 4 ROLLINS ROAD - EXTENSION ON 2" WATER MAIN - #16-43-44
Margaret Fisher of 4 Rollins Road, Linda Clark of 5 Rollins Road and Ellen Martin of 37 Marion Street met with the Commissioners regarding the development of 3 house lots at the end of Rollins Road (a paper street) (To date Board of Appeals has granted variances for Parcel 63 and 64). The Board explained that it has been its policy to extend the 2" water main with a 6" main, on a paper street, when the Town "Rules and Regulations for Sub-Divisions", does not apply. If, at any time in the future a fourth house is built to be serviced water through Rollins Road, then the builder would be required to replace the 2" section of water main, to provide adequate water pressure and fire protection to the area. The Board further explained that 2" water mains are no longer allowed to be installed in town and the Board has a program for replacing the approximate 5.5 miles of 2" water mains that are still in existance [sic].
11. No reference to the Board's August 11, 1988 action was recorded at the Middlesex North Registry of Deeds, and Plaintiff was not made aware of it until after she had purchased Locus, obtained her building permit and poured a building foundation.
12. The Town's principal reliance is on Chapter 276 of the Acts of 1926 ("Chapter 276"). That provides for the establishment of the Board and authorizes the Town to supply itself and its inhabitants with water. Among other things it authorizes the installation of pipes in public and private ways. Town activities under Chapter 276 are to be paid for by issuance of bonds or notes, the principal and interest on which are to be paid from taxes plus charges for the use of water.
13. G.L. c. 40, Sections 42A through 42I ("Sections 42A - F" and "42G - I", respectively) have been accepted by the Town. G.L. c. 40, Section 39A and G.L. c. 41, Section 69B have not been accepted by the Town (presumably because of the existence of Chapter 276).
14. There is nothing in Chapter 276, nor in the Regulations of the Department, which specifically authorizes a requirement that Plaintiff assume the cost of upgrading the line in Rollins Road. Sections 42A - F deal with the collection of water rates and charges and the imposition of liens therefor.
15. Sections 42G - I do provide a mechanism for imposing the cost of laying pipes, by special assessment. Section 42G provides that an owner of land receiving benefit shall pay a proportionate part of the cost of the pipes and Section 42H provides several methods of allocating the cost of the pipes among the owners of lands benefitting from the improvement. In its Memoranda supporting its Summary Judgement Motion, the Town admits that Sections 42G - I were not followed.
16. The Town takes the position that it need not follow Sections 42G - I and that Chapter 276 and Sections 42A - F provide an alternative basis for the Town's actions. The Town cites Rounds et al v. Board of Water and Sewer Commissioners of Wilmington et al, 347 Mass. 40 (1964) and Henry B. Byors & Sons, Inc. v. Board of Water Commissioners of Northborough et als, 358 Mass. 354 (1970).
17. Rounds also involved a requirement that an intervening pipeline be upgraded from 2" to 6". However, the two inch line was installed by the same developer (in an earlier adjacent subdivision), and the whole matter of the upgrade was considered as part of the Subdivision approval of the later subdivision, and the upgrade requirement made a part of the covenant conditioning the Subdivision endorsement.
18. The Court in Rounds states (at p. 44):
A town water system or private utility is obliged to furnish water to each prospective customer "on the same terms on which it . . . [furnishes]water to others" (see B & B Amusement Enterprises, Inc. v. Boston, 297 Mass. 307 , 308), but it does not follow that all prospective customers are similarly situated so that the same terms must be applied to all of them. Prospective customers whose demands for water necessitate extensions of existing systems may stand on a different basis from those whose requirements may be met from immediately adjacent town or water company mains. A municipality engaged in furnishing water service (subject to whatever statutory regulation there may be) is permitted to exercise a reasonable and fair discretion in determining whether and upon what terms to make extensions of its lines.
19. In this action, in contrast to Rounds, all the customers are similarly situated, that is, individual retail customers off the same lines in Fenway Street and Rollins Road. Further, Plaintiff was not aware of any special requirement and bought Locus after a title search which did not reveal any such requirement and also on the strength of a building permit on which the water department had signed off.
20. The record in Rounds does not indicate whether the Town of Wilmington had accepted Sections 42G - I. Even if a Town having accepted them can resort to alternative methods of recouping the costs of pipes, as the Town seeks to do here, Rounds requres reasonableness and fairness. Those fundamentals are missing in the game of musical chairs which Defendants would have Plaintiff subjected to, without her knowledge.
21. Byors, involving new service to 73 new units of elderly housing, is distinguishable on those facts.
22. The Board is without authority to require Plaintiff to pay for the entire cost of upgrading the two inch line in Rollins Road. If there must be an upgrade, its cost should be allocated according to Sections 42G - I. An occupancy permit for the house on Locus should not be withheld because of Plaintiff's refusal to pay for the upgrade as required by Defendants.