NOTRE DAME TRAINING SCHOOL v. TOWN OF TYNGSBOROUGH & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-257

NOTRE DAME TRAINING SCHOOL1

vs.

TOWN OF TYNGSBOROUGH & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Notre Dame Training School (Notre Dame),

owned property (property) in the town of Tyngsborough. After it

was assessed for a betterment by the town in connection with a

sewer improvement project, Notre Dame petitioned unsuccessfully

for an abatement of the assessment. It then brought an action

in the Superior Court against the defendants, the town and the

members of its board of sewer commissioners (board), seeking the

abatement.3 See G. L. c. 80, § 7. A judge of that court entered

1 As is our usual practice, we take the parties' names as they
appear in the operative complaint.
2 Darryl Wickens, Brian J. Martin, and Frederick H. Perrault, as

they are Sewer Commissioners of the Tyngsborough Sewer
Commission.
3 Notre Dame also sought an award of costs and attorney's fees in

connection with that action.
summary judgment in favor of Notre Dame, and the defendants

appeal. We affirm.

Background. The following facts are undisputed. At all

relevant times, Notre Dame has operated a day school on the

property. At the 2015 annual town meeting, the town voted to

approve a "sewer system infrastructure project" financed in

substantial part by betterment assessments made on certain

properties, including the one owned by Notre Dame.

The board's procedure for calculating betterments was set

out in its regulations and reflected the board's decision to use

a "Uniform Unit Method" to determine the betterment assessment

for each property subject to the betterment requirement.

Tyngsborough Sewer Commission, Final Betterment Assessment and

Sewer Privilege Fees Rules and Regulations § 1.4 (2014) (Board

Regulations). See G. L. c. 83, § 15 (town may adopt a system of

sewerage and may provide that betterment assessments "shall be

made upon owners of land within such territory by a fixed

uniform rate or a rate based upon a uniform unit method"). That

method called for the assessments to "be determined by unit and

user class, as determined by the State Land Use Codes in the

Tyngsborough Assessor database, and shall apply to all eligible

lands developed and undeveloped abutting the . . . public sewer

line." Board Regulations § 3.1. In keeping with the

requirements of § 15, the board's regulations required the board

2
to calculate assessments for nonresidential properties based on

the property's proportionate share of the total "existing and

potential sewer units" attributable to the project. Board

Regulations § 2.13. The regulations defined a "sewer unit" as

"equal to [the wastewater flow expected from] one single-family

residence." Board Regulations § 2.10. To convert

nonresidential properties' use into potential sewer units, the

regulations used an "Equivalent Residential Unit" (ERU).4 Board

Regulations §§ 2.3, 2.13.

To calculate each nonresidential property's total sewer

units, the board included in its regulations a formula, which we

set out in the margin, that relied on the property's average

water usage over the prior two years.5 Board Regulations

4 The parties agree that at the times relevant here, one ERU was
the equivalent of 330 gallons per day of sewer usage.
5 In relevant part, the regulations provided:

"Non-residential buildings, which are metered for water
use, shall comprise a number of Sewer Units based upon
water consumption using the following formula:

"Number of Sewer Units = Non-residential water usage in
gallons per day (gpd)/One ERU

"(All decimals shall be rounded up to the nearest whole
number)[.]

"Non-residential water usage in the above formula shall be
based upon an average of the past two years water use. If
less than two years of metered water consumption records
are available, or if the Commission deems that the water
records are not representative of the potential usage, the
calculation shall be based on 'Title 5 of the State

3
§ 4.2.2.2. The regulations permitted the board to rely on other

methods of calculating the property's water usage only "[i]f

less than two years of metered water consumption records are

available, or if the [board] deems that the water records are

not representative of the potential usage." Id. Otherwise,

this formula was the mandatory method of determining the number

of sewer units attributed to each nonresidential property.6

Notre Dame provided the board with records of at least two

years of metered water use for the property. Although the board

stated that "[it] never specifically made any . . .

determination" that the water records Notre Dame produced were

not "representative" of the school's "potential water usage,"7 it

Environmental Code, 310 CMR 15.00, for the Commonwealth of
Massachusetts Minimum Requirements for the Subsurface
Disposal of Sanitary Sewage,' or as detailed in the state-
approved CWMP planning documents on file for the sewer
system, as outlined below." Board Regulations § 4.2.2.2.
6 "Non-residential buildings, which are metered for water use,

shall comprise a number of Sewer Units based upon water
consumption using the following formula." Board Regulations
§ 4.2.2.2. (emphasis added). See McCauley v. Superintendent,
Massachusetts Correctional Inst., Norfolk, 491 Mass. 571, 597
(2023) ("shall" connotes mandatory action).
7 "INTERROGATORY NO. 2: State whether the [board] determined
that metered water consumption records for the [s]chool were not
representative of the [s]chool's potential water usage, or
whether metered water consumption records were not available for
the [s]chool.

"ANSWER NO. 2: [A]lthough metered water consumption
records were available for the [s]chool, the [board] never
specifically made any such determination relative to the
[s]chool, as it determined that calculating the assessments for
all the parcels to be assessed on the CWMP methodology was fair

4
did not use the required formula to calculate the assessments

for Notre Dame (or for any of the other the nonresidential

properties affected by the sewer project). Instead, on the

recommendation of the town's engineering consultants, the board

calculated those betterment assessments using a "Comprehensive

Wastewater Management Plan" (CWMP) formula. The CWMP formula

relied on projections of potential water use based on the size

of the building space on each property, rather than on the

predictive value of a property's past water use.8 The board

represented that it used the CWMP method based on its belief

that because not all affected parcels were metered for water

usage, the CWMP method was the only method that could be applied

equitably to all properties subject to the betterment

assessment. Using the CWMP formula, the board determined that

the Notre Dame property comprised forty-four ERUs and thus

assessed a betterment of $511,174.84 against it. Notre Dame

petitioned for an abatement of this assessment, arguing that the

board should have relied on the property's past two years of

water usage, as mandated by the regulations noted above. Under

the formula required by the board's regulations, the property

comprised only fourteen ERUs, which would have resulted in a

and equitable given that not all parcels were metered for water
consumption."
8 In Notre Dame's case, the board projected 100 gallons of flow

for every 1,000 square feet of building space.

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betterment assessment of $174,264.15. The board denied Notre

Dame's petition for abatement. Notre Dame filed this action in

the Superior Court and prevailed on the parties' cross-motions

for summary judgment. This appeal followed.

Discussion. We review the allowance of a motion for

summary judgment de novo. See Bellalta v. Zoning Bd. of Appeals

of Brookline, 481 Mass. 372, 376 (2019). "Summary judgment is

appropriate where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of

law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012),

citing Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002). Because we conclude that the board failed to follow the

clear language of its regulations when calculating Notre Dame's

betterment assessment, and that it failed to argue that Notre

Dame's records of past water use were "not representative of

[its] potential usage," see Board Regulations § 4.2.2.2, we

affirm.

In interpreting the regulations, we apply accepted rules of

statutory construction. See Cohen v. Board of Water Comm'rs,

Fire Dist. No. 1, S. Hadley, 411 Mass. 744, 748 (1992)

(traditional rules of statutory construction apply to

interpretation of regulations). Having done so, we conclude

that the board's regulations established a clear, unambiguous,

and mandatory method for determining the betterment assessment

6
at issue here.9 See note 5, supra. Because the board failed to

follow the mandatory formula set forth in the regulations, it

erred in its calculation of the betterment. See Warcewicz v.

Department of Envtl. Protection, 410 Mass. 548, 552 (1991)

("[O]nce having exercised its power to promulgate regulations,

the department may not infinitely manipulate or expand their

content"); Finkelstein v. Board of Registration in Optometry,

370 Mass. 476, 478 (1976) ("[C]ourts will not hesitate to

overrule agency interpretations of rules when those

interpretations are arbitrary, unreasonable or inconsistent with

the plain terms of the rule itself"). Because the betterment

calculation was erroneous, the board erred in denying Notre

Dame's petition for abatement of that assessment. See G. L.

c. 80, §§ 1, 5.

The board raises two new issues on appeal. First, it

contends that it did, in fact, "deem" the records of past water

use by any nonresidential property subject to the betterment

assessment to be "not representative" of potential sewer usage,

or at least that it was entitled to an inference that it had

done so. This is at odds with the board's admission that in

9 Because we discern no ambiguity in the relevant regulations, we
need not defer to the board's interpretation of them. See
DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690, 699 (2021)
(collecting cases) ("If the regulation is plain and unambiguous,
it should be interpreted according to its terms").

7
calculating the betterment assessments for nonresidential

properties affected by the sewer project, it "never specifically

made any . . . determination" about the representativeness of

such records. Instead of asserting that the existing sewer

records were not representative, the board effectively put all

its eggs in a different basket, arguing that its use of the CWMP

method here was justified because "it is the only methodology of

the three [methodologies proposed by the engineers] that could

be applied to all of the parcels," and was thus "fair and

equitable."

Consistent with its "all or nothing" position, the only

relief that the board requested of the judge or of this court is

affirmance of its denial of Notre Dame's request for an

abatement. The board did not ask the judge -- should he

disagree with the board's chosen methods -- to remand the matter

for the board to consider whether the existing sewer records

were representative. Nor has it made any argument to us that

the judge erred by not ordering such a remand. Any such

argument is waived, and we do not consider it. See Carey v. New

England Organ Bank, 446 Mass. 270, 285 (2006).

Second, the board claims that interpreting the regulations

to require application of the formula set out at § 4.2.2.2

violates constitutional provisions requiring that betterment

assessments be "proportional." That claim, like the claim we

8
have just discussed, was waived. See Gurry v. Board of Pub.

Accountancy, 394 Mass. 118, 126 (1985) ("Except for

jurisdictional claims based upon constitutional challenges to an

agency's enabling legislation, litigants involved in

adjudicatory proceedings should raise all claims before the

agency, including those which are constitutionally based").

Even if that were not the case, however, we are not persuaded

that the regulations offended constitutional requirements. As

the board correctly acknowledges, in enacting G. L. c. 83, § 15,

the Legislature authorized the board to apportion the cost of

the sewer improvements using the uniform unit method, the method

the board chose to adopt in its regulations. See G. L. c. 83,

§ 15; Board Regulations § 1.4. The constitutionality of § 15 is

well-settled, see W.R. Grace & Co.-Conn. v. Acton, 62 Mass. App.

Ct. 462, 464 (2004) (W.R. Grace), and the board does not

challenge it here. What the board has failed to call into

question is the proportionality (and thus, the propriety) of the

method set forth in the regulations for determining the

assessment using past water usage history.

We view our opinion in W.R. Grace as instructive. See W.R.

Grace, 62 Mass. App. Ct. at 464. As in that case, "the

fundamental criteria set forth in G. L. c. 83, § 15," that is,

"conversion based on residential equivalents and zoning then in

effect," were included in the board's regulations. Id. at 464-

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465. Likewise, we discern nothing "arbitrary or irrational" in

those determinations, to the extent that they are addressed by

the record. Id. at 465. As in W.R. Grace, the relevant

considerations "are grounded in a direct relationship between

those determinations and expected use of the system, i.e., flow

rates in gallons per day." Id. We do not suggest that the

method the board chose to include in the regulations was the

only permissible method, or even that it was the optimal one.

We note only that it was the method the board did choose, and

that it was permissible. Having chosen that method, the board

was constrained here to follow it.10 See Warcewicz, 410 Mass. at

552.

Conclusion. The judgment is affirmed.

So ordered.

By the Court (Vuono, Milkey &
Hand, JJ.11),

Assistant Clerk

Entered: March 8, 2024.

10 We are likewise unpersuaded that the regulations relating to
the assessment of betterments are inconsistent with the
regulations as a whole, or, more specifically, the regulations
concerning sewer use charges. Either way, "[t]he regulations
are clear and unambiguous, and no resort to legislative history
or 'intent' seems warranted." Cohen, 411 Mass. at 749.
11 The panelists are listed in order of seniority.

10