EXETER REALTY CORPORATION vs. TOWN OF BEDFORD & others.

CUTTER, J. The plaintiff (Exeter) by its bill seeks declaratory relief against the town, the town building inspector,

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and the collector of taxes. The case, before us on a statement of agreed facts, was reserved and reported without decision at the request of all parties who appeared and answered.

Exeter, as indirect successor in title to Lido Construction Co. Inc. (Lido), owns lots numbered 17 through 28 in a subdivision known as Whispering Pines, Section V. When Lido in 1963 sought approval of Section V as a subdivision, the town planning board required that all lots in the subdivision be connected with the town sewer system. Lido agreed in writing with the selectmen to pay an entrance fee for this connection of $2.50 a front foot for each lot, before an occupancy permit would be given.

Exeter, at its own expense, installed sewer mains within the subdivision at least to serve all the lots here discussed. Lots nos. 17 through 28 are connected to these sewer mains and (through Section IV of the Whispering Pines subdivision which lies to the west of Section V) are also indirectly connected with the town's sewer system. These lots can be drained by gravity feed into the town's system. Exeter has built a house on each of six lots. The building inspector has refused to issue occupancy permits until the sewer entrance fees, all now unpaid, are in fact paid. The houses comply with the building code unless the payment of sewer assessments or entrance fees is a valid condition precedent to use of the town sewer system. The "amount of the sewer assessments or entrance fees . . . imposed by the [t]own does not exceed the benefit to the individual lots 17 through 28 as a result of their connection to the [t]own's . . . system."

The town has authority to impose sewer assessments and entrance fees under St. 1947, c. 223, as amended by St. 1952, c. 131. By Section 7 (as it appears in Section 3 of the 1952 statute) "the town may avail itself of any or all methods permitted by the General Laws, including annual charges as provided for in . . . [c. 83, Section 16,] which may be applied to the . . . cost of maintenance and repairs . . . or of any debt . . . for sewer purposes, and to defray such portion of the cost of

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the construction of the . . . works as may be determined by the town, and such charges and assessments shall be paid by every person . . . who enters his . . . particular sewer into the . . . system of the town." The town determined to defray part of the cost of its system by assessments as indicated in the margin. [Note 1] The selectmen voted to set the assessment rate at $2.50 a front foot for abutters where sewer lines were installed by developers and $5 a front foot where sewer lines were installed by the town itself.

Article 22, Section 4, of the general town by-laws provides that "[s]ub-dividers or developers when required by . . . [specified town officers] to install sewer lines within the area, shall bear the entire cost of such sewer lines and appurtenances within the area and the connection with the [t]own's sewer system and such sub-dividers or developers shall also be assessed an entrance fee for the permanent use of the [t]own's sewer system. This fee shall be based on per foot frontage that can be serviced." Section 2 of art. 22 provides, "A betterment assessment or an entrance fee, according to the per foot frontage services [sic, apparently a misspelling of `serviced'] shall be assessed to all abutters in the residential . . . areas on the gravity sewer lines installed by the [t]own." Article 22, Section 10, authorizes the board of public works (the selectmen) to establish the rate. This they have done, as already indicated.

Exeter now contends that art. 22, Section 4, is invalid. It argues that Section 4 exceeds the authority of the town. The town

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contends that it properly may require Exeter not only (a) to pay the direct cost of constructing the sewer within the subdivision directly serving Exeter's lots in Section V of the subdivision, but also (b) to pay (by the entrance fee assessments made upon Exeter) Exeter's proportional share of that part of the total cost of the town's sewer system assessed upon landowners who use it (after making due allowance for Exeter's expenditures for the sewer within the subdivision).

1. The 1947 and 1952 special acts under which the town is acting refer to the pertinent provisions of G. L. c. 83, Sections 14-18, set out in part in the margin. [Note 2] Section 14 permits an assessment, to persons using a common town sewer, of "a proportional part" of the cost of building the sewer, and "of the charge, not already assessed" of constructing the sewers through which the first common sewer discharges. In the present case, this would mean that, if the town had built the sewer in front of Exeter's lots within Section V of the subdivision, Exeter could have been required to pay

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not only (a) a proportional part of the cost of that sewer, but also (b) a proportional part, so far as the betterment had not already been assessed, of the cost of the main town sewer system through which the Section V sewer discharges. Authority for the latter assessment is found in c. 83, Sections 14 and 15 (fn. 2). See Leominster v. Conant, 139 Mass. 384, 386-388. See also Nichols, Taxation in Massachusetts (3d ed.) 813-822; Hardy, Municipal Law, Section 587.

Annual charges for the repair and maintenance of common sewers are permitted by Section 16. Section 17 permits a charge "for the permanent privilege" of using a common sewer, which an owner shall pay "instead of paying an assessment under" Section 14. The reference to Section 14 found in Section 17 indicates that any charge made under the authority of Section 17 is in effect a benefit assessment and not an annual charge like that under Section 16. Section 18 permits a town or its officers to "determine that . . . assessments [under Sections 14-17] shall be made by two or more of the methods provided in said sections." The town has selected the method authorized by c. 83, Section 17, and acting through its by-laws, art. 22, Section 2, quoted above, has imposed an entrance fee on all abutters on a front foot basis.

The rate has been established under art. 22, Section 10, on a uniform basis which applies art. 22, Sections 3 [Note 3] and 4 (already quoted). Where the town itself has built the sewer which directly serves a lot, it charges the owner a betterment assessment of $5 a front foot in the form of an entrance fee for the permanent use of the whole town sewer system, including that portion which directly serves the lot. Where the sewers in a subdivision, directly serving a particular lot (but connecting with the town system), are laid at the expense of the owner or his predecessor in title, then the town charges an entrance fee of only $2.50 a front foot. This lower rate in effect reflects (a) the expenditure by the owner

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within the subdivision for a sewer which has become, or will become, a part of the town system, and (b) that the benefit to such an owner from the sewer immediately serving his land has already been paid for by him directly or indirectly.

Nothing in G. L. c. 83, Section 22, [Note 4] prevents this betterment assessment. The lower charge ($2.50 a front foot) imposed on Exeter is a reasonable attempt to avoid any assessment of benefit for the sewer within the subdivision.

The construction of the sewer within Section V of the subdivision was done by Lido under the town's supervision. The agreement with Lido to pay the entrance fees was duly recorded. There was appropriate compliance with G. L. c. 83, Section 27 (as amended through St. 1943, c. 252, Section 5), in the circumstances.

Nothing in this record suggests that the selectmen in fixing these charges (a) have improperly estimated the proportional part of the costs on a front foot basis, or (b) have made an improper differential to reflect the benefit to the town from having a sewer built by the developers within the limits of the subdivision, thus saving the town that expense. It is agreed that the sewers built by or for Exeter within Section V of the subdivision have become or will become the property of the town when accepted. The estimates are doubtless approximations (see Cheney v. Beverly, 188 Mass. 81, 84) but they have not been shown to be unreasonable. We hold that the provisions of art. 22 of the town by-laws, as applied to Exeter, are valid.

The entrance fee charged to Exeter under the authority of c. 83, Section 17, is not a mere connection charge for the cost of connecting a private drain with a main sewer system like that contrasted in O'Malley v. Commissioner of Pub. Works of Boston, 340 Mass. 542, 548-549, with "an assessment . . .

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made under the general taxing power to levy betterments" proportionally, since no assessment has previously been made reflecting the benefit to Exeter's property on account of the town's general sewer system. In the O'Malley case, supra, at pp. 550-551, we recognized that, if no prior betterment assessment of a parcel had been made on account of a sewer construction when the sewer was built, the city might not be precluded from making such an assessment later when that parcel first received benefit from the sewer improvement. See O'Malley v. Public Improvement Commn. of Boston, 342 Mass. 624, 628-629. See also Seiler v. Sewer Commrs. of Hingham, 353 Mass. 452, 455-457.

The town in making the assessment on Exeter need not rely upon its 1963 agreement with Lido that Lido would pay an entrance fee when the subdivision lots were connected with the town sewers. The town had authority to make the assessment under art. 22 of its general by-laws. We thus need not consider the validity of Lido's agreement.

We were informed by Exeter's counsel at the arguments that Exeter had deposited in an escrow fund an amount sufficient to meet the entrance assessment. There thus is no occasion to consider whether the town has a valid lien on Exeter's lots.

The case is remanded to the Superior Court for the framing of a decree declaring the rights of the parties in a manner consistent with this opinion.

So ordered.