Bill S.1326

SENATE DOCKET, NO. 2069 FILED ON: 1/20/2023

SENATE . . . . . . . . . . . . . . No. 1326

By Mr. Tarr (by request), a petition (accompanied by bill, Senate, No. 1326) of Gracemarie Tomaselli and Joyce Tomaselli for legislation to provide clarification of betterments with regard to sewer projects. Municipalities and Regional Government.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act to provide clarification to Mass General Laws.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Massachusetts General Laws Chapter 80 Section 1 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following:-

Section 1. Whenever a limited and determinable area will receive a particular benefit or advantage, other than the general advantage to the community, from a single public project improvement made by or in accordance with the formal vote at Town Meeting or City Council or order of a board of officers of the commonwealth or of a county, city, town or district, and such original assessment order for construction of the sewer states that betterments are to be imposed as assessments for the construction of the sewer be assessed for the improvement. The board shall in the order for the construction of the sewer assessment designate as the owner of each parcel the person who was liable to assessment named in the order therefor on the preceding January first under the provisions of chapter fifty-nine. Starting the day after the assessment order vote the tax collector must include in all municipal lien certificates that improvements have been voted, with regards to which there will probably be liens as an obligation chargeable upon the land as defined in MGL c. 60 s. 23, this certificate releases liability for new buyers whether or not this municipal lien certificate is recorded at the registry of deeds. Such assessing board shall within six months after the completion of the sewer project improvement determine the value of such benefit or advantage to the land within such area and determine final costs of construction, less grants, and send a notice of net actual assessment and assess upon each parcel thereof a proportionate share of the cost of such improvement, and shall include in such cost all damages awarded therefor under chapter seventy-nine; but no such assessment shall exceed the amount of such adjudged benefit or advantage.

Massachusetts General Laws Chapter 80 Section 2 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 2. An assessment order for the construction of the sewer under section one which states that betterments are to be assessed for the improvement shall contain a description sufficiently accurate for identification of the area which it is expected will receive benefit or advantage, other than the general advantage to the community, from such improvement, and shall refer to a project plan of such area which includes only the contracts within the project, and shall contain an estimate of assessment for the betterments that will be assessed upon each parcel of land within such area; and such assessment order to construct, the project plan and estimated assessment shall be recorded, within ninety days from the adoption of this assessment order, or from the acceptance by a town of the laying out, relocation or alteration of a way in case such acceptance is required before the establishment thereof, in the registry of deeds of every county or district in which the benefited area is situated. No betterments shall be assessed for such improvement unless the order for the construction of the sewer project, project plan and estimate are recorded at the Registry of Deeds to create a lien. The assessment lien for the construction of a sewer relates back from the time of the formal vote of the assessment order for construction of the sewer as herein provided, nor upon any parcel of land not within such area, nor for a greater amount than such estimate or actual final net construction costs. As to third persons without actual knowledge of the installation of the sewer improvement, such as subsequent mortgagees and purchasers, the assessment is only valid if the board complies with recording the assessment order of construction at the registry of deeds to create a lien.

Massachusetts General Laws Chapter 80 Section 4 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 4. Within a reasonable time after making the net actual assessment the board shall certify to the assessors the list of final actual assessments upon land in each town who shall forthwith commit the net project cost less grants received actual assessment such assessments with their warrant to the collector of taxes thereof, and he shall forthwith send notice of final committed assessment in accordance, except as to the date of notice, with section three of chapter sixty, to the person designated under section one as the owner of each parcel named in the assessment order of construction assessed, and any demand for the payment of such final assessment shall be made upon such person. The notice of final committed actual assessment must be sent by certified mail to the liable owner named in the assessment order for the construction of the sewer, parcel address and ID, amount owed, the date of the assessment order vote to construct the sewer, the vote to construct the sewer with the area within the project plan and contracts included in the project. The date of the bill, payment due date and options, interest rate and abatement rights. The notice of final committed actual assessment shall also be sent by certified mail to the current property owner of record, if different from assessed liable owner, with an explanation of the assessment purpose (project), and provided with a form to request an apportionment from the assessor and also notified of abatement rights. Except as otherwise herein provided, the collector shall have the same powers and be subject to the same duties with respect to such final assessments as in the case of the annual taxes upon real estate, and the law in regard to the collection of the annual taxes, to the sale of land for the non-payment thereof and to redemption therefrom shall apply to final assessments made under this chapter, so far as the same are applicable; but the owner of land shall not be personally liable for the assessment thereon, because a special assessment or betterment must be secured by a lien on the property benefited. To enforce collection, the Assessing Board must establish a valid lien at the Registry of Deeds of the assessment order to construct the sewer Every collector of taxes receiving a list of assessed owners named in the assessment order of construction and warrant from the assessors shall collect the final assessment therein set forth, and at such times as the assessors shall direct, or in the case of assessments relating to state funded projects, as the collector of taxes and the board determine shall pay over to the treasurer of the body politic on behalf of which the assessment was made the amounts collected by him.

Massachusetts General Laws Chapter 80 Section 5 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 5. The liable owner of any real estate upon which betterments have been

assessed whose name appears in the order of construction or the current owner not named in the order of construction and with an assessment order lien recorded at the registry of deeds, may, within six months after notice bill of such final assessment has been sent out by the collector, file with the board a petition for an abatement thereof, and the board shall grant such abatement as may be necessary to make such assessment conform to section one. Such petition may be filed with the clerk or secretary of the board, or delivered by mail or otherwise at their office. The board shall within ten days after their decision upon the petition give written notice thereof to the petitioner. If a final actual assessment is abated by the board the assessment so determined shall stand as the final actual assessment upon the land, and if it has not been paid shall be collected in the same manner as the original assessment. If the original assessment has been paid, the person by whom it was paid shall be reimbursed by the body politic on behalf of which it was assessed to the amount of the abatement allowed, with interest at the rate of six per cent per annum from the time of payment.

Massachusetts General Laws Chapter 80 Section 12 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 12. Betterment Assessments made under this chapter shall constitute a lien upon the land assessed. The lien shall take effect upon the recording at the Registry of Deeds the original order of assessment to construct the sewer stating that betterments or special assessments are to be assessed for the improvement. A special assessment or betterment is secured by a lien on the property benefited. To enforce collection, the assessing board (city/town council, board of selectmen, water/sewer/road commissioners) must establish a valid lien.

Notwithstanding any other provision of this section or chapter eighty-three, if a county, city, town, or district elects to send notice of the net committed assessment to the owner of the land assessed indicating the amount of the assessment for the betterment, and said owner pays the amount due, no lien shall be recorded. The assessors shall indicate on the next tax bill that the amount of the betterment assessment has been paid and no further notation or demand shall be made on land so assessed. Except as otherwise provided, such lien shall terminate at the expiration of two years from October first in the year in which the assessment is first placed on the annual tax bill under section thirteen or, if an assessment has been apportioned, from October first in the year in which the last portion is so placed upon the annual tax bill, whichever is later, if in the meantime in either case the estate has been alienated and the instrument alienating the same has been recorded. If there is no recorded alienation within such period, the lien shall continue until there is a recorded alienation. If the validity of an assessment made under this chapter is called in question in any legal proceeding to which the board which made the assessment or the body politic for the benefit of which it was made is a party, instituted prior to the expiration of the lien therefor, the lien shall continue until one year after the validity of the assessment is finally determined, even though an alienation be recorded in the meantime. If at any time while a lien established by this section is in force, a sale or taking cannot in the opinion of the collector be legally made because of any federal or state law or because of any injunction or other action of, or proceeding in, any federal or state court or because of the action of any administrative body, the lien shall, if the statement provided for in section thirty-seven A of chapter sixty is filed, continue as provided in said section thirty-seven A, subject, however, to any lawful action under any paramount authority conferred by the constitution or laws of the United States or the constitution of the commonwealth. If the time for payment of an assessment is extended under section thirteen A or under any general or special law, the lien shall, if the statement provided for in section thirty-seven A of chapter sixty is filed, continue as provided in said section thirty-seven A. A lien under this section may be dissolved by filing for record in the registry of deeds of the county or district where the land subject to the lien lies a certificate, in a form approved by the commissioner of revenue, from the collector of taxes that the assessment, constituting the lien, together with any interest and costs thereon, has been paid or legally abated. The collector of taxes shall charge four dollars for each certificate so issued, and the money so received shall be paid into the town treasury.

Mass General Law Chapter 83 Section 15 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 15. The city council of a city or a town may adopt a system of sewerage for a part or the whole of its territory, and may provide that assessments under section fourteen shall be made upon owners of land within such territory by a fixed uniform rate or a rate based upon a uniform unit method. A municipality may not vote to adopt sewer betterment charges under this section. A municipality cannot vote to adopt sewer betterment charges or sewer assessment charges, after the particular project which included the contracts within the project are constructed, and a municipality cannot combine projects with other projects. No betterment assessment or special assessment can be assessed for a particular public improvement project unless the vote is a formal vote at Town Meeting or City Council which includes the order to construct the sewer to impose assessments, project plan including contracts, project estimate, per parcel estimate, and this vote is recorded at the Registry of Deeds to create a lien. The Order of Assessment shall state that betterments are to be assessed for the system extension. The Order of Assessment shall specify the area that the sewer is to be located, identify the properties specially benefited by the extension, identify the owners of said properties as appearing in the Assessor’s record A fixed uniform rate shall be based upon the estimated average cost of all the sewers therein, according to the frontage of such land on any way in which a sewer is constructed, or according to the area of such land within a fixed depth from such way, or according to both such frontage and area; but no assessment in respect to any such land, which by reason of its grade or level or any other cause cannot be drained into such sewer, shall be made until such incapacity is removed. If the assessment is according to the area within such fixed depth, the lien therefor shall attach to the parcel assessed in accordance with Chapter 80 section 2 and Chapter 83 section 27. A uniform unit method shall be based upon sewerage construction costs divided among the total number of existing and potential sewer units to be served, after having proportioned the cost of special and general benefit facilities. Each sewer unit shall be equal to a single family residence. Potential sewer units shall be calculated on the basis of zoning then in effect. Existing and potential multifamily, commercial, industrial and semipublic uses shall be converted into sewer units on the basis of residential equivalents. A city by ordinance or a town by by-law may separate the costs of general benefit facilities, including but not limited to pumping stations, trunk and force mains, from that of special benefit facilities, including but not limited to the sewer mains, serving adjacent properties. A portion of costs of the general benefit facilities may be apportioned by the uniform unit method on all areas to receive benefits within the pumping district or combination of districts. The cost of the general benefit facilities, attributable to undeveloped land not abutting a sewered street, may not be assessed until properties are serviced by public sewerage. The proportional cost of the special benefit and general benefit facilities may be assessed against all properties abutting a sewered street.

Mass General Law Chapter 83 Section 16 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following:-

Section 16. The aldermen of any city or the sewer commissioners, selectmen or road commissioners of a town, may from time to time establish just and equitable annual charges for the use of common sewers and main drains and related stormwater facilities, which shall be paid by every person who enters his particular sewer therein. The user fee xvi charge shall be based on each sewer user’s actual water use when water records are available. The money so received may be applied to the payment of the cost of maintenance and repairs of such sewers or of any debt contracted for sewer purposes. In establishing quarterly or annual charges for the use of main drains and related stormwater facilities, the city, town, or district may either charge a uniform fee for residential properties and a separate uniform fee for commercial properties or establish an annual charge based upon a uniform unit method; but, the charge shall be assessed in a fair and equitable manner. The annual charge shall be calculated to supplement other available funds as may be necessary to plan, construct, operate and maintain stormwater facilities and to conduct stormwater programs. The city, town or district may grant credits against the amount of the quarterly or annual charge to those property owners who maintain on-site functioning retention/detention basins or other filtration structures as approved by the stormwater utility, conservation commission, or other governmental entity with appropriate authority.

Mass General Law Chapter 83 Section 27 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 27. Whenever the aldermen of a city or the sewer commissioners, selectmen or road commissioners of a town lay out or determine to construct a sewer or drain in a public way, or in a way opened or dedicated to the public use which has not become a public way, or adopt an order for the establishment or reconstruction of a sidewalk for such a way, and assessments may be made or charges imposed under this chapter for the construction of such improvement or the use thereof, they shall forthwith cause to be recorded in the registry of deeds of the county or district in which such city or town is situated a statement of their action, which shall specify the ways in which such sewer, drain or sidewalk is located. All assessments made or charges imposed under this chapter upon land which abuts upon any such way in which such sewer, drain or sidewalk is located shall constitute a lien upon such land from the time such statement is recorded and all charges authorized by section sixteen shall from the time of assessment construction order constitute a lien upon the land connected with the common sewer. Liens under this section shall continue for the same period and under the same conditions as a lien established under chapter eighty.

Mass General Law Chapter 83 Section 28 as appearing in the 2020 edition is hereby amended by striking it in its entirety and replacing it with the following: -

Section 28 Application of betterment law FOR CONSTRUCTION OF SEWER PROJECTS Section 28. The provisions of chapter eighty relative to imposing assessment of costs of public improvement, order of construction, plan and estimate; recordation of liens, apportionment, division, reassessment, abatement and collection of assessments, and to interest, lien status of assessments, and duration of lien, shall apply to assessments made under this chapter.