Opinion
No. 11–P–1186.
2012-08-9
Lois MacDONALD & others v. CITY OF TAUNTON & others (and two companion cases).
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs and defendants cross-appeal from a February 1, 2011, Superior Court declaratory judgment declaring that sewer betterment assessments imposed by the city of Taunton complied with applicable statutory law, and nullifying an inflow and infiltration (I/I) removal fee system on the ground it failed to constitute a lawful fee.
We briefly summarize the procedural background. The assessments were made in 2009 after Taunton completed improvements to its drainage and sewer system which were undertaken to comply with an administrative consent order issued in 2006 by the Department of Environmental Protection. To recover the cost of the improvements, Taunton first obtained a Federal grant to reduce the overall cost by ten percent, then assessed the plaintiffs for the remaining cost, and allowed payment over twenty years at five percent interest. Taunton also established a system of fees to recover costs of operating a system to reduce and remove water I/I. The plaintiffs filed a complaint for declaratory relief in the Superior Court in July, 2010, and moved for judgment on the pleadings. After a hearing, the judge ordered judgment declaring that (1) Taunton's sewer betterment assessments and interest charges comply with statutory law, and (2) the I/I removal fee system fails to constitute a lawful fee and is nullified.
1. Sewer assessments. The plaintiffs sought relief from sewer assessments under St.1904, c. 384, § 3, which fixed assessments at one-third of the cost of “laying and making the sewers of [Taunton's] system.” They assert this statute has been incorporated in Taunton's municipal charter, and is currently valid. The judge ruled, to the contrary, that statutory changes since the 1904 legislation, now codified in G.L. c. 83, § 23, are controlling and that Taunton properly assessed the plaintiffs for the ninety percent of the cost of construction remaining after application of the Federal grant. The judge's ruling is based on an accurate analysis of the relevant statutory history of sewer assessments, along with careful consideration of the arguments of the plaintiffs. The following quotation summarizes the judge's analysis.
“[By] P.S. 1882, c. 50, §§ 4, 7, now codified in G.L. c. 83, § 14, the Legislature established that the beneficial users of a system of sewers pay a ‘proportional part of the charge of making and repairing the same.’ The requirement for beneficiaries to pay a proportional part of the cost of making and repairing the sewer system was maintained in later enactments.
...
“By enactment of St.1964, c. 736, § 4, the Legislature established uniform authority for all municipalities to determine what, if any, ‘portion of the cost of laying out and constructing ... systems of sewerage’ would be born[e] by the municipality. Such authority was located by the Legislature in a city's [b]oard of [a]ldermen or [c]ity [c]ouncil.
“By a vote taken on November 8, 1977, the citizens of Taunton voted to add [§ ] 19.1 [of the city of Taunton revised ordinances] entitled ‘[d]epartment of [p]ublic [w]orks' to the City's charter.... Under [§ 19.1(b) ], the Department of Public Works became responsible for the affairs once under the [board of aldermen's] control; under § 19.1(f), the creation of the Department of Public Works resulted in the abolition of the [board of sewer commissioners]. Further, in § 19.1(f), the ordinance stated that, ‘the duties, powers and responsibilities of [the board] as contained in ... Chapter 384 of the Acts of 1904 ... shall be held and exercised by the municipal council, acting through its public works committee, subject to the provisions of the General Laws of the Commonwealth of Massachusetts.”
The plaintiffs assert that the appearance of St.1904, c. 384, in Taunton's municipal charter requires Taunton to follow the provision in § 3, that “[o]ne third of the cost of laying and making” a system of sewers shall be paid from assessments of property owners within the system. There are two reasons the 1904 statute is not applicable to a determination of the assessments in issue.
First, the statute is cited in § 19.1(f) of the city of Taunton revised ordinances for the purpose of stating that the “duties, powers and responsibilities” of the sewer commissioners “shall be held and exercised by the municipal council, acting through its public works committee, subject to the provisions of the General Laws of the Commonwealth of Massachusetts,” following the abolition of the board of sewer commissioners. Moreover, nothing appears in § 19.1 relative to the determination of assessments for costs of construction or operation of sewer systems.
Second, the 1904 statute effectively was nullified when St.1964, c. 736, § 4, was codified in G.L. c. 83, § 23, particularly by rewriting that section, which now states:
“[A] city by vote of its board of aldermen or city council shall determine whether it shall pay the whole or a portion of the cost of laying out and constructing ... systems of sewerage ... and if a portion, what portion. If the ... city votes to pay less than the whole cost, in providing for the payment of the remaining portion of the cost ... the town or city may avail itself of any or all of the methods of payment authorized by law ..., and the provisions of chapter eighty ... shall apply to assessments made under this chapter.”
We conclude that, having properly determined that the authority to determine the portion of the cost of sewer construction to be paid by assessments resides in Taunton's municipal council, the judge did not err in declaring that Taunton's sewer assessments and interest charges conformed with applicable statutory law.
2. Inflow and infiltration fees. At the beginning of his decision, the judge stated that the plaintiffs sought a declaratory judgment “to the effect that fees imposed upon the new users of the sewers for elimination of groundwater inflow and infiltration ... fail to comply with the legal requirements of a fee.” In a single sentence at the end of his decision, the judge stated, “As ruled in Denver Street LLC v. Saugus, 78 Mass.App.Ct. 526 (2011), a case mirroring the fee system imposed upon new sewer users in the City of Taunton, the fee system set forth in [Taunton's revised ordinances] c. 19, § 62, fails to constitute a lawful fee and thus must be nullified.” The judge did not articulate any analysis or make any findings in support of this conclusion.
The parties fail to show that this issue was properly before the judge. Our review of the record reveals that, unlike the issue of sewer assessments, it was not alleged and admitted by the pleadings that any of the plaintiffs had paid an I/I removal fee and asserted that those fees were improper. The pleadings are barren of any allegation that Taunton charged any of the plaintiffs an I/I removal fee. “In order for a court to entertain a petition for declaratory relief, an ‘actual controversy’ sufficient to withstand a motion to dismiss must appear on the pleadings. G.L. c. 231A, § 1.” Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977).
The judge and the parties also rely on Denver Street LLC v. Saugus, supra. The Appeals Court ruled in that case that the I/I “reduction contribution was an illegal tax and not a fee,” id. at 536. However, upon further appellate review, the Supreme Judicial Court determined, in a decision issued after briefing and oral argument in the present case, that the charge “has the requisite characteristics of a fee rather than an impermissible tax.” Denver Street LLC v. Saugus, 462 Mass. 651, 652 (2012).
Conclusion. The part of the judgment that declares that Taunton's sewer assessments and interest charges comply with statutory law is affirmed. The part of the judgment that nullifies Taunton's removal fee system is vacated.
So ordered.