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16-P-1111                                              Appeals Court

            NINETY SIX, LLC     vs.   WAREHAM FIRE DISTRICT.


                              No. 16-P-1111.

     Plymouth.       September 12, 2017. - February 14, 2018.

               Present:   Milkey, Hanlon, & Shin, JJ.


Municipal Corporations, Water commissioners, Water installation
     fee. Real Property, Water. Water. Jurisdiction, Water
     charge. Subdivision Control, Municipal services.
     Taxation, Real estate tax: assessment. Zoning.
     Administrative Law, Exhaustion of remedies. Practice,
     Civil, Review of administrative action, Case stated.



     Civil action commenced in the Superior Court Department on
June 22, 2010.

    The case was heard by Robert C. Cosgrove, J.


    David T. Gay for the plaintiff.
    John Allen Markey, Jr., for the defendant.


    SHIN, J.     This appeal concerns the validity of water

betterment assessments imposed by the Wareham fire district

(district) on several large parcels of undeveloped land owned by

the plaintiff.   The district determined the amount of the
                                                                     2


assessments pursuant to G. L. c. 40, § 42K, which provides for a

method of calculation based on "the total number of existing and

potential water units to be served" by the new water mains, with

"[p]otential water units . . . calculated on the basis of zoning

in effect at the date of assessment."     Construing this language

to allow consideration of the full development potential of the

land, the district assessed the plaintiff's property based on

the maximum number of lots that could be created from each

parcel, including the potential subdivision lots that each

parcel could yield under the town of Wareham's subdivision rules

and regulations (subdivision rules).

     The plaintiff filed suit in Superior Court seeking, among

other forms of relief, a declaratory judgment that the district

misapplied G. L. c. 40, § 42K, by including potential

subdivision lots in its calculation, rather than limiting the

assessments to "approval not required" (ANR) lots.1    After the

parties submitted the matter for decision on a case stated

basis, the judge found and declared that the "[d]istrict[]

followed an appropriate method of calculating betterment

assessments under G. L. c. 40, § 42K."2    The plaintiff appeals,


     1
         See our discussion of G. L. c. 41, § 81L, infra.
     2
       The judge still ruled partially in the plaintiff's favor
with respect to two of the assessments (as to Lots 1000 and
1018) after the district conceded that it had overestimated the
development potential of those parcels. The district does not
                                                                     3


raising three arguments:   (1) that § 42K prohibited the district

from assessing betterments on subdivision lots because the

subdivision rules were adopted pursuant to the subdivision

control law, G. L. c. 41, §§ 81K to 81GG, and not the Zoning

Act, G. L. c. 40A; (2) that the enabling statute, G. L. c. 40,

§ 42G, prohibited the district from assessing betterments on

land that has no frontage on the ways in which the new water

mains will be installed; and (3) that the assessments were

unreasonable and disproportionate.   As we conclude that the

district's betterment assessment policy is consistent with the

statutory scheme and purpose, and that the plaintiff failed to

meet its burden of proving that the assessments were

unreasonable or disproportionate, we affirm.

    Background.   1.   Statutory framework.    General Laws c. 40,

§ 42G, inserted by St. 1955, c. 332, authorizes a municipality

"having a water supply or water distributing system" to "provide

by ordinance, by-law or vote for the levy of special assessments

to meet the whole or part of the cost thereafter incurred of

laying pipes in public and private ways for the conveyance or

distribution of water to its inhabitants."     The special

assessment may be charged, in "proportionate part," to any


appeal from those rulings. In keeping with its theory as to ANR
lots, the plaintiff argues there should have been a greater
reduction for Lot 1000, but brings no appeal as to the further
reduction it had requested for Lot 1018.
                                                                    4


"owner of land which receives benefit from the laying of water

pipes in public and private ways upon which his land abuts or

which by more remote means receives benefit through the supply

of water to his land or buildings."    Ibid.

    The Legislature originally provided for betterment

assessments to be calculated by applying a "fixed uniform rate,"

based on the estimated cost of laying the water pipes, according

to (1) the frontage of the benefited land on the way in which

the water pipe will be laid, (2) the land area within a fixed

depth from the way, (3) the valuation of the land, or (4) any

combination of these measures.    G. L. c. 40, § 42H, inserted by

St. 1955, c. 332.     Since 1994 a municipality that accepts the

provisions of § 42K may as an alternative use a "uniform unit

method."   G. L. c. 40, § 42K, inserted by St. 1994, c. 60, § 66.

This method is based on the number of water units, including

"potential" units, to be served by the water mains, without

regard to the frontage of the land on the way:

    "[T]he water commissioners may assess betterments . . . for
    the construction and connection of water mains and services
    by a uniform unit method which shall be based upon the
    common main construction costs divided among the total
    number of existing and potential water units to be
    served . . . . Each water unit shall be equal to a single
    family residence. Potential water units shall be
    calculated on the basis of zoning in effect at the date of
    assessment."

G. L. c. 40, § 42K.
                                                                     5


    Also relevant to this dispute is the subdivision control

law, G. L. c. 41, §§ 81K to 81GG.     In a city or town that has

accepted the provisions of the law, a person may not "make a

subdivision of any land . . . unless he has first submitted to

the planning board of such city or town for its approval a plan

of such proposed subdivision, showing the lots into which such

land is to be divided and the ways already existing or which are

to be provided by him for furnishing access to such lots."

G. L. c. 41, § 81O, inserted by St. 1953, c. 674, § 7.

"Subdivision control . . . has as a major purpose ensuring that

the subdivision provides adequate drainage, sewerage, and water

facilities, without harmful effect to adjoining land and to the

lots in the subdivision."   Meyer v. Planning Bd. of Westport, 29

Mass. App. Ct. 167, 170 (1990).     "A planning board's rules and

regulations, adopted under the requirements of G. L. c. 41,

§ 81Q, address these general purposes by establishing definite

standards for streets and utilities."     Beale v. Planning Bd. of

Rockland, 423 Mass. 690, 696 (1996).

    The statute defines "subdivision" as "the division of a

tract of land into two or more lots," but with certain

exemptions.   G. L. c. 41, § 81L, as appearing in St. 1956,

c. 282.   The exemptions apply "if, at the time [the division of

land] is made, every lot within the tract so divided has

frontage on
                                                                   6


    "(a) a public way or a way which the clerk of the city or
    town certifies is maintained and used as a public way, or

    "(b) a way shown on a plan theretofore approved and
    endorsed in accordance with the subdivision control law, or

    "(c) a way in existence when the subdivision control law
    became effective in the city or town in which the land
    lies, having, in the opinion of the planning board,
    sufficient width, suitable grades and adequate construction
    to provide for the needs of vehicular traffic in relation
    to the proposed use of the land abutting thereon or served
    thereby, and for the installation of municipal services to
    serve such land and the buildings erected or to be erected
    thereon."

G. L. c. 41, § 81L, as amended through St. 1965, c. 61.

    If an applicant's plan meets one of these exemptions, the

planning board must endorse the plan as one not requiring

approval under the subdivision control law.   See G. L. c. 41,

§ 81P.   This is known as an "approval not required" or ANR

endorsement.   See Palitz v. Zoning Bd. of Appeals of Tisbury,

470 Mass. 795, 797 (2015).

    2.   Factual background.3   The district is a municipal fire

and water district vested with authority to lay water pipes and

necessary appurtenances in public or private ways and to recover

the costs thereof by assessing betterments on the owners of



    3
       We summarize the facts from the parties' joint trial
stipulation and, where appropriate, draw factual inferences from
the joint trial exhibits. See Hickey v. Pathways Assn., Inc.,
472 Mass. 735, 743 (2015) (where judge issues decision on case
stated basis, appellate court may draw own inferences of fact).
We reserve some details for later discussion.
                                                                   7


benefited lands.4   Until the late 1990's, the district employed a

street-frontage method of calculating water betterment

assessments.    In 1999, after concerns were raised that the

frontage method was not equitable in some circumstances, the

voters of the district voted to adopt the provisions of G. L.

c. 40, § 42K.

     Subsequently, the district implemented a policy governing

assessments of large tracts of land that could be subject to

multiple betterments.    According to the policy, which is

documented in an internal memorandum, the district considers a

water unit to be "a single lot which may be served by a single

water service line, receive fire protection, or otherwise

benefit[] from the water main project."    Large lots are

evaluated "for potential future subdivision," and agricultural

and vacant land is evaluated "for potential future maximum build

out potential according [to] the Wareham Zoning Ordinance."

When determining a parcel's development potential, the district

follows a series of steps, which include gathering information

on the parcel, such as topographic maps, wetlands data, and

aerial photographs; notifying the property owner and requesting


     4
       The board of water commissioners is the governing body of
the district and oversees the actions of the district with
respect to establishing a water supply, including the assessment
of betterments. We refer to the board and the district
collectively as the "district."
                                                                   8


further information; "[w]ork[ing] with [the] property owner to

establish maximum build out potential"; and "[i]dentify[ing]

possible restrictions to maximum build out using available and

supplied information."

    On various dates in 2006 and 2007, the district gave notice

of its intent to construct new water mains in ways abutting or

near six undeveloped parcels of land owned by the plaintiff.

Only three are at issue on appeal:   Lots 1000, 1004, and 1009.

As to each, the district sent the plaintiff letters explaining

that it intended to assess betterments based on the buildout

potential of the land and requesting an immediate response if

the plaintiff had information that the land was not developable.

The district also explained that the plaintiff could avoid a

given assessment by restricting the parcel from development or

merging it with an adjacent one.   The plaintiff did not respond

to the letters with any documentation, such as wetlands plans or

merger deeds, identifying development restrictions on the land.

    In March of 2007, the district recorded an order of

assessment of betterment with the Plymouth County registry of

deeds.   The assessments reflected the maximum number of

subdivision lots that could be created from the plaintiff's

property under the subdivision rules.   In particular, the three

disputed assessments were as follows:
                                                                    9


     Lot 1000, which comprises approximately forty-four acres,

was assessed as twenty-five units, for a total of $209,816.75.5

On the date of assessment, it could have been divided into four

ANR lots.

     Lot 1004, which comprises approximately nineteen acres, was

assessed as eleven units, for a total of $92,319.37.     On the

date of assessment, it was not buildable because it had no

street frontage.

     Lot 1009, which comprises approximately thirty-eight acres,

was assessed as twenty-one units, for a total of $176,204.07.

On the date of assessment, it could have been divided into no

fewer than nine ANR lots and as many as twelve.

     Discussion.     1.   Exhaustion of administrative remedies.   We

begin by noting that the plaintiff does not appear to have

followed the appropriate procedure for obtaining review of its

claims.     Although both the judge and the parties have treated

this case as one for declaratory judgment, the proper avenue for

relief lies in G. L. c. 80, which "sets out a comprehensive and

uniform statutory scheme of administrative appeals and judicial

review regarding assessments for . . . betterments."     Gudanowski

v. Northbridge, 17 Mass. App. Ct. 414, 421 (1984).     See G. L.

     5
       The judge ordered the district to recalculate this
assessment after the district conceded that the parcel could
yield a maximum of twenty, rather than twenty-five, subdivision
lots.
                                                                 10


c. 40, § 42I, inserted by St. 1955, c. 332 ("The provisions of

chapter eighty relative to the apportionment, division,

reassessment, abatement and collection of assessments, and to

interest, shall apply to assessments under this chapter").

Under G. L. c. 80, § 7, "[a] person who is aggrieved by the

refusal of [a local] board to abate an assessment . . . may

within thirty days after notice of the[] decision appeal

therefrom . . . in the superior court."   Here, the record

contains conflicting evidence whether the plaintiff ever filed a

petition for abatement (as opposed to one for extension, which

is a different form of relief).6

     Even were we to assume, as alleged in the complaint, that

the plaintiff requested abatement but the district failed to act

on its petitions, this action, filed in June of 2010, appears to

be untimely.   An abatement petition must be filed within six

months of the notice of assessment, see G. L. c. 80, § 5, and,

"[i]f the [local] board . . . fails to act upon said petition

within four months . . . , the petition shall be deemed to be

denied, and the petitioner shall have the right within sixty

     6
      Extensions of payment are governed by G. L. c. 40, § 42I,
which provides that "[t]he water commissioners or other officers
in charge of the supply and distribution of water . . . shall,
if the order for assessment is upon land not built upon, extend
the time of payment of the assessment and interest thereon at
the rate of four per cent until it is built upon or for a fixed
time; and the assessment and interest shall be paid within three
months after such land is built upon or at the expiration of
such fixed period."
                                                                  11


days after the expiration of said four months to appeal."    G. L.

c. 80, § 10A.   Thus, since the only petitions contained in the

record are dated mid-November of 2007, it appears that this case

should have been brought no later than mid-May of 2008.

Nonetheless, because the district has not argued failure to

exhaust or untimeliness, or shown that these are nonwaivable

jurisdictional defenses, we will reach the merits.

    2.    Standard of review.   "Because the judge issued [his]

decision on a case stated basis, we review it de novo, drawing

our own inferences of fact and reaching our own conclusions of

law."   Hickey v. Pathways Assn., Inc., 472 Mass. 735, 743

(2015).   Although the parties appear to agree on this point,

neither brief addresses the question of what deference we owe to

the district's interpretation of the statute.    We answer the

question, which was raised and discussed at oral argument, by

turning to settled principles in the case law.

    "Local regulations are presumed valid, unless they exceed

the authority conferred by the enabling statute or the Home Rule

Amendment (art. 89 of the Amendments to the Massachusetts

Constitution)."   Springfield Preservation Trust, Inc. v.

Springfield Library & Museums Assn., Inc., 447 Mass. 408, 418

(2006).   In determining whether a local regulation is

inconsistent with a statute, we give "considerable latitude to

municipalities, requiring a sharp conflict between the local and
                                                                     12


State provisions" before we hold the regulation invalid.        Grace

v. Brookline, 379 Mass. 43, 53-54 (1979), quoting from Bloom v.

Worcester, 363 Mass. 136, 154 (1973).      "That sharp conflict

appears when either the legislative intent to preclude local

action is clear, or, absent plain expression of such intent, the

purpose of the statute cannot be achieved in the face of the

local by-law."   Grace, 379 Mass. at 54.     Thus, our inquiry here

is whether the plaintiff has met its "heavy" burden of proving

the existence of such a conflict between the district's policy

and the water betterment assessment statute.      Springfield

Preservation Trust, Inc., 447 Mass. at 418.     See W.R. Grace &

Co.-Conn. v. Acton, 62 Mass. App. Ct. 462, 465 (2004) (town by-

law adopted under sewer betterment assessment statute was

facially valid because it was "not arbitrary or irrational").

    We owe even more deference to the district's application of

its policy to the plaintiff's property.      It is plain that the

district has substantial discretion in this respect.     See Exeter

Realty Corp. v. Bedford, 356 Mass. 399, 404 (1969) (in assessing

betterments, town permitted to make "approximations" of owner's

proportional part of costs); Henry B. Byors & Sons, Inc. v.

Board of Water Commrs. of Northborough, 358 Mass. 354, 358

(1970) (water commissioners have "considerable discretion in

determining the methods of fixing prices or rates related to the

use of water"); Morton v. Hanover, 43 Mass. App. Ct. 197, 205
                                                                  13


(1997) (there need only be "reasonable basis for surcharging the

plaintiffs for water service benefits [that] are particularized

to them").    We will therefore uphold the assessments unless the

plaintiff can show that they are "unreasonable" or impermissibly

"discriminatory."    Henry B. Byors & Sons, 358 Mass. at 359.   See

Seiler v. Board of Sewer Commrs. of Hingham, 353 Mass. 452, 457

(1968); Exeter Realty, 356 Mass. at 404; Morton, 43 Mass. App.

Ct. at 205.

    3.   G. L. c. 40, § 42K.    The parties' dispute centers on

the meaning of the provision in G. L. c. 40, § 42K, that

"[p]otential water units shall be calculated on the basis of

zoning in effect at the date of assessment."   Under the

plaintiff's interpretation, this provision requires that the

district consider only the town of Wareham's zoning by-laws when

calculating potential water units.   As a result, the plaintiff

argues, the only lots that can be considered potential units are

those resulting from divisions of land that qualify for ANR

endorsements under the subdivision rules.    The district counters

that the Legislature used "zoning" in a broader manner, allowing

for consideration of potential development under the subdivision

rules.

    We accept the underlying premise of the plaintiff's

argument that the subdivision rules are not zoning enactments.

Generally, "zoning does not include regulations that a
                                                                   14


municipality duly adopts under independent statutory authority."

See Healy, Massachusetts Zoning Manual § 2.1, at 2-2 (4th ed.

2007).   See also Lovequist v. Conservation Commn. of Dennis, 379

Mass. 7, 12 (1979) ("We do not consider all ordinances or by-

laws that regulate land use to be zoning laws . . .").

Moreover, our cases have specifically discussed the differences

between zoning and subdivision control, explaining that

subdivision control "does not dictate in the same direct fashion

[as zoning] how land will be used but, rather, compels the

construction of ways which, among other things, are safe and

convenient for travel and make provision for utilities."     Meyer,

29 Mass. App. Ct. at 170.     Accord Collings v. Planning Bd. of

Stow, 79 Mass. App. Ct. 447, 454 (2011).

    Nevertheless, we do not read the language "on the basis of

zoning in effect at the date of assessment" to require the

district to base its calculations solely on the zoning by-laws,

as the plaintiff argues.    Rather, we construe the provision as

accomplishing two purposes:    it prohibits a municipality from

assessing a lot as a potential water unit if zoning restrictions

would render the lot not buildable, and it defines the operative

restrictions as the ones in effect at the time of the

assessment.   So construed, the provision requires consideration

of zoning laws in effect at the time of assessment but does not

preclude consideration of other laws relevant to the development
                                                                    15


potential of the land.   Thus, if the land can be subdivided, and

residences can be built on the resulting lots, we see no bar --

and certainly, no "clear" bar, Grace, 379 Mass. at 54 -- to

including those residences as "potential water units" under

G. L. c. 40, § 42K.

     This result is consistent with the statutory scheme and

purpose.   When the Legislature enacted § 42K in 1994, it plainly

intended to provide an alternative to the fixed uniform rate

method of § 42H, which has been in place since 1955.    This must

mean that the uniform unit method of § 42K encompasses factors

beyond those already set out in § 42H (frontage of the land on

the way in which the water main is to be laid, the land area

within a fixed depth from the way, and valuation).     Cf. W.R.

Grace & Co.-Conn., 62 Mass. App. Ct. at 463, (uniform unit

method under G. L. c. 83, § 15, allows municipalities to

consider "existing and potential sewer units to be served,"

"[r]ather than making assessments based upon frontage and area

as required by the fixed uniform rate").7

     In contrast to § 42H, § 42K expressly authorizes the costs

of construction to be assessed on "potential" water units that

will be served by the new water mains.   This indicates a


     7
       The statutory methods of calculating sewer betterment
assessments are substantially similar to the methods set out in
G. L. c. 40, §§ 42H and 42K. See G. L. c. 83, § 15.
                                                                     16


legislative intent to allow municipalities to consider the

development potential of the benefited land when determining how

to divide the costs among the affected property owners.     See

W.R. Grace & Co.-Conn., 62 Mass. App. Ct. at 464, quoting from

Mullen v. Board of Sewer Commrs. of Milton, 280 Mass. 531, 533

(1932) (uniform unit method is exercise of legislative authority

"to make an apportionment of the cost of improvements upon . . .

estates receiving peculiar advantages above those accruing in

general").   Although the division of costs must be proportional,

see ibid., we disagree with the plaintiff's contention that the

inclusion of subdivision lots violates that principle.    A

subdivision lot will receive a particularized benefit from the

availability of a nearby public water supply, even if the

developer will have to pay to extend the water lines.    See

Seiler, 353 Mass. at 457 ("It having been determined that the

petitioners derive special benefits from . . . [the new sewer

system], they are liable to assessment for a proportional share

of the general cost.   There is nothing to compel the respondent

to allocate funds so as to put the general burden exclusively on

abutters other than on the petitioners").   Furthermore, if only

frontage is considered, this can lead to overestimating the

proportional benefits conferred to small lots, while

underestimating the benefits to large or unusually shaped lots

that have little frontage but high development potential.      The
                                                                     17


district's inclusion of subdivision lots is thus consistent with

the statutory purpose of distributing costs based on the

approximate proportional benefit conferred to each property

owner.   See ibid. ("In view of the difficulty of attempting to

estimate benefits to the estates individually, it is necessary

only that the principle by which the expenditures are

apportioned provide for reasonable and proportional assessments,

not substantially in excess of the benefits received").     Accord

Exeter Realty, 356 Mass. at 404; Morton, 43 Mass. App. Ct. at

205.

       The plaintiff further contends that it is unfair to assess

betterments on hypothetical subdivision lots because planning

boards have broad discretion to approve or disapprove

subdivision plans; as a result, it says, a developer cannot

estimate with any degree of certainty how many subdivision lots

might ultimately be created out of a parcel.    A planning board's

discretion is more circumscribed, however.     In particular, "[a]

planning board has no discretion to disapprove a subdivision

plan which has been approved by the board of health and is in

conformance with the reasonable rules and regulations of the

planning board."    MP Corp. v. Planning Bd. of Leominster, 27

Mass. App. Ct. 812, 819-820 (1989), quoting from Patelle v.

Planning Bd. of Woburn, 6 Mass. App. Ct. 951, 951 (1978).    To

reject a proposed subdivision, the planning board must "point to
                                                                    18


particular board regulations" that render the plan out of

compliance.    Id. at 821.    The applicant can then appeal any

disapproval to the Superior Court or the Land Court.      See G. L.

c. 41, § 81BB, as amended through St. 2002, c. 393, § 6.

    We note also that there are procedural protections built

into the district's assessment policy itself.      The policy

provides for dialogue between the district and the property

owner prior to the district's final determination of the

assessment.    Property owners can submit evidence that their land

cannot be developed, or they can place a deed restriction on the

land.     In the event of disagreement, they can petition for

abatement and challenge any adverse decision in Superior Court.

See G. L. c. 80, § 7.     Together, these protections guard against

the risk that assessments made under the district's policy will

not be reasonable and proportional.

    The plaintiff does not explain how its contrary reading of

§ 42K, which would strictly confine the district to considering

only zoning laws, comports with the statute and legislative

intent.    "The Zoning Act and the subdivision control law share a

similar purpose:    to regulate the use of land to ensure the

safety, convenience, and welfare of the inhabitants of

municipalities."     McElderry v. Planning Bd. of Nantucket, 431

Mass. 722, 726 (2000).       Both laws bear on the rights of property

owners to develop their land.      Indeed, the town of Wareham's
                                                                   19


zoning by-laws incorporate the subdivision rules in several

places -- for instance, by allowing a developer to submit a

combined application for site plan review and subdivision

approval, and obtain a combined public hearing, if the

application meets the requirements for both approvals.       See Town

of Wareham Zoning By-laws § 1550 (2016).    Given the

interrelationship and shared purposes of the two regulatory

regimes, we think it unlikely that the Legislature meant for

land development potential to be determined under § 42K based on

zoning laws alone.    Certainly, nothing in § 42K compels that

interpretation.

       Furthermore, the plaintiff's reading would create the

anomaly of allowing water betterments to be assessed on land

that is restricted from development by nonzoning regulations,

such as those governing earth removal and floodplain and

wetlands protection.    While "often the subject of zoning

regulations, these matters have also been adopted and upheld by

the Supreme Judicial Court as independent, nonzoning land use

controls."   Healy, Massachusetts Zoning Manual § 2.1, at 2-2 to

2-3.    See Byrne v. Middleborough, 364 Mass. 331, 334 (1973);

Lovequist, 379 Mass. at 12-14.    The implication of the

plaintiff's position would be that municipalities would be free

to ignore such restrictions even if they would render the land
                                                                    20


undevelopable, an outcome that the Legislature is not likely to

have intended.

         The plaintiff's interpretation suffers from the additional

flaw that it would create substantial overlap between § 42H and

§ 42K.    The only alternative method of calculation proffered by

the plaintiff -- limiting potential water units to ANR lots --

is, in essence, a frontage-based method because whether a lot

qualifies for an ANR endorsement depends on frontage, either on

a public way or a way endorsed by the planning board as meeting

the requirements of the subdivision control law.    See G. L.

c. 41, § 81L.8    But the fixed uniform rate method has provided

for frontage-based assessments since the original enactment of

the water betterment assessment statute in 1955.     See G. L.

c. 40, § 42H.    The plaintiff does not explain what then would

have been the Legislature's intent in enacting § 42K if it too

is based on frontage.     See Doherty v. Planning Bd. of Scituate,

467 Mass. 560, 569 (2014) (statute should be construed so that

no part is inoperative or superfluous).


     8
       We note that, although an ANR endorsement takes a plan
outside the regime of the subdivision control law, it "serves
merely to permit the plan to be recorded . . . and is not an
attestation of compliance with zoning requirements." Palitz,
470 Mass. at 807, quoting from Cornell v. Board of Appeals of
Dracut, 453 Mass. 888, 892 (2009). See Gates v. Planning Bd. of
Dighton, 48 Mass. App. Ct. 394, 397 (2000) (whether lot
"conform[s] with zoning requirements [is] not an appropriate
consideration in granting or withholding an ANR endorsement").
                                                                  21


    For these reasons we conclude that § 42K should be read to

allow water betterment assessments to be based on the

development potential of the land, which must be determined by

considering "zoning in effect at the date of assessment" and may

be determined by considering rules and regulations adopted under

the subdivision control law.   The district's policy comports

with this reading and thus does not conflict with § 42K.

    4.   G. L. c. 40, § 42G.   Turning to the plaintiff's next

argument, we have little trouble concluding that G. L. c. 40,

§ 42G, poses no bar to the district's method of calculation.

The plaintiff construes § 42G as authorizing water betterments

to be assessed only as to "land that is actually given access to

a water line, generally by having frontage on the road where the

line is installed."   But this interpretation disregards the

plain statutory language, which specifies that betterments may

be assessed against a property owner whose land "receives

benefit from the laying of water pipes in public and private

ways upon which his land abuts or which by more remote means

receives benefit through the supply of water to his land or

buildings" (emphasis supplied).   G. L. c. 40, § 42G.   If, as the

plaintiff argues, the statute applies only to land abutting the

way, the words "which by more remote means receives benefit"

would have no meaning.   We decline to adopt such a construction.

See Doherty, 467 Mass. at 569.
                                                                    22


     5.   Fairness of the assessments.   Finally, the plaintiff

has failed to demonstrate that the three assessments at issue

were unreasonable or disproportionate.   The plaintiff declined

multiple opportunities, prior to the district's recording of the

assessments, to submit evidence that the parcels are not

developable.   As a result, we lack any meaningful record on

which to consider its claims that the district's policy is

unfair as applied to the parcels.

     If anything, what is in the record undermines the

plaintiff's claims of unfairness.   As reflected in a stipulation

between the parties, the plaintiff has subdivided some of the

parcels already and has reserved its rights to make further

subdivisions while this lawsuit is pending.    In contrast, other

property owners responded to the district's letters with

documentation that their land was not developable because of

wetlands regulations, conservation restrictions, or other

enforceable limitations on the use of the property.9   In those

cases the district responded by reducing the assessments.      Thus,

on the evidence before us, there is nothing to indicate that the


     9
       We do not preclude the possibility that, in a different
case, a landowner could successfully challenge an assessment of
subdivision lots on these or other grounds. In any appeal from
a denial of abatement, the court would have the power to
overturn an assessment that is "unreasonable or unreasonably
discriminatory." Morton, 43 Mass. App. Ct. at 205. See Henry
B. Byors & Sons, 358 Mass. at 359. No such showing has been
made in this case, however.
                                                                23


assessments at issue were unreasonable or substantially in

excess of the benefits conferred on the plaintiff.   See Morton,

43 Mass. App. Ct. at 205.

                                   Judgment affirmed.
