Abbott v. Board of Water & Sewer Commissioners
Abbott v. Board of Water & Sewer Commissioners
Opinion of the Court
In this action in the nature of mandamus pursuant to G. L. c. 249, § 5, the plaintiffs seek to compel the defendant board to issue sewer connection permits for thirteen lots within a subdivision owned by them. Acting on cross motions for summary judgment, a Superior Court judge ruled in favor of the board. We affirm that judgment.
The summary judgment record establishes the following undisputed facts: The plaintiffs are owners of an approved subdivision in Hopkinton known as Elmwood Farms III. Each of the thirteen lots in question is adjacent to a way within the subdivision known as Blueberry Lane which
Prior to these events, the towns of Hopkinton and West-borough, in 1986, entered into agreements pursuant to G. L. c. 40, § 4A, for the disposal of sewage generated in certain designated areas of Hopkinton at the Westborough treatment plant. The sewer line servicing the twenty lots is connected to the intermunicipal system. The plaintiffs argue that the thirteen lots are encompassed within the intermunicipal agreements and that under this court’s decision in K. Hovnanian at
Notwithstanding whether the thirteen lots are encompassed by the intermunicipal agreements, the plaintiffs’ argument skirts the fact that they seek permits to connect to a sewer line that is not a common sewer, but is rather a pipe installed by the private developer without benefit of municipal approval. By its terms, G. L. c. 83, § 3, governs connections to common sewers, and not to private lines that may be connected to public sewers, unless those lines have received municipal approval under the authority of G. L. c. 83, § 1. The right and necessity of such municipal superintendence is clear. See G. L. c. 40, § 21(5), and G. L. c. 83, § 10. See also Leominster v. Conant, 139 Mass. 384, 386 (1885); P & D Serv. Co. v. Zoning Bd. of Appeals of Dedham, 359 Mass. 96, 102 (1971). The town of Hopkinton has placed the responsibility for such superintendence in the defendant board, and the plaintiffs concede that the planning board’s conditioning its approval upon the installation of a private sewer line in the way adjacent to the thirteen lots did not obviate the necessity
Similarly, the circumstance that the right to connect into an intermunicipal sewer system may be governed by agreements of the participating municipalities, see K. Hovnanian at Taunton, Inc. v. Taunton, supra at 644, does not relieve an applying party from the requirement that the connection be made directly to a common sewer of one of those participants. A contrary rule could defeat the ability of municipalities properly to plan and supervise this essential service. There is nothing in K. Hovnanian to suggest that the connection in issue was to other than a common sewer.
Judgment affirmed.
General Laws c. 83, § 3, provides:
“The board or officers of a city or town having charge of the repair and maintenance of sewers may, upon request of the owner of land and payment by him of the actual cost thereof, construct a particular sewer from the street line to a house or building. A town may appropriate money for connecting estates within its limits with common sewers, and no estate shall, in any year in which such an appropriation is made, be connected with a common sewer except in the manner hereinafter provided. If bonds or notes are issued to pay the cost of making such connections, the assessments provided for in section twenty-four shall be applied to the payment of such bonds or notes. If the board of health of a town making such appropriation shall order land abutting upon a public or private way in which a common sewer has been laid to be connected with such sewer, or if the owner of such land shall make to the board or officer having charge of the maintenance and repair of sewers application to connect his land with a common sewer, such board or officer shall make such connection.”
Our review of the record in K. Hovnanian reveals that a finding that the line to which the connection was sought was a common sewer was not contested before us.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.