RJG Realty Trust, Gerald Goulston v. Brockton Water/Sewer Department (February 28, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


RJG REALTY TRUST,			   v.	BROCKTON WATER/SEWER 
GERALD GOULSTON					DEPARTMENT

Docket No. F310428					Promulgated: 
   	February 28, 2014


	This is an appeal under the formal procedure pursuant to G.L. c. 40, §§ 42A through 42F, as amended, and G.L. c. 59, §§ 64 and 65, as amended, from the refusal of the Brockton Water/Sewer Department ("appellee") to abate water and sewer usage charges ("water charges") imposed on RJG Realty Trust, Gerald Goulston ("appellant") for the period April 30, 2001 through September 25, 2008 ("period at issue").  
	Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Mulhern and Chmielinski joined him in the decision for the appellant.    
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13, and 831 CMR 1.32.  

	Michael P. Stapleton, Esq. for the appellant. 
	Caitlin E. Leach, Esq. for the appellee.


FINDINGS OF FACT AND REPORT
	This appeal arose from the refusal of the appellee to abate water charges imposed on the appellant for the period at issue. The appellant timely filed an application for abatement of water-usage charges with the appellee and, after a series of partial abatements described below, the appellant timely appealed to the Appellate Tax Board ("Board"). The Board therefore ruled that it had jurisdiction to hear and decide this appeal.
On the basis of the testimony and documentary evidence offered at the hearing of this appeal, the Board made the following findings of fact.
At all material times, the appellant owned a single-family home located at 59 College Drive in Brockton ("subject property").  The subject property has one bathroom and was occupied by tenants of the appellant. Between 2001 and 2012, the property was occupied first by the appellant's brother-in-law, then by a family of two adults and two children and finally, by a family of two adults and three children.
Other than a minor dishwasher leak at the subject property which was promptly repaired, the tenants reported no plumbing issues to the appellant, and the appellant was aware of no plumbing issues or water leaks at the subject property at any material time.  
On April 30, 2001, the appellee performed an actual reading of the water meter at the subject property.  The appellee performed no subsequent reading of the water meter until it installed a new water meter at the subject property on July 15, 2008.  During the over 7-year period between actual readings, which corresponds to the period at issue, the appellee sent quarterly estimated bills to the appellant, which he timely paid.
As a result of the actual reading on July 15, 2008, the appellee issued to the appellant a water and sewer bill in the amount of $22,026.17, based on its determination of water consumption between the April 30, 2001 and July 15, 2008 actual readings, compared with the estimated consumption for which the appellant had been previously billed.  The appellee determined that the actual consumption during this over 7-year period was approximately 6,000 cubic feet of water per quarterly billing period.  
After discussions with the appellant, the appellee reduced the disputed water bill on at least 3 separate occasions: from $22,026.17 to $11,069.92; from $11,069.92 to approximately $8,500.00; and from $8,500.00 to $6,841.27.  The final amount was based on an average consumption of 5,280 cubic feet of water per quarterly billing period for the period at issue.
After the water meter was changed in July of 2008, meter readings for all subsequent quarterly billing periods were actual readings.  On the basis of the consumption history report in evidence and the testimony of April Troxell, the appellee's head administrative clerk, the Board found that the average consumption per quarterly billing period from September, 2008 through January, 2012 was 1,986 cubic feet.  
During the period 2008 through 2012, there were more occupants of the subject property -- 2 adults and 3 children --than at any time during the preceding 7-year period at issue.  Despite the fact that there were fewer occupants of the subject property during the period at issue, the estimated usage rate which the appellee finally determined for the period at issue was approximately 250 percent greater than the actual usage rate for the subsequent 3-year period as reflected by readings of the new meter.
On the basis of the above findings and the evidence of record, the Board found that the water charges for the period at issue were excessive.  Although the appellee claimed that its charges should be upheld because the water meter used during the period at issue was tested and found to be accurate, the Board found that the overwhelming evidence of record indicated that the appellee's determination of the water charges was speculative, unreliable and without adequate support. That evidence includes: (1) the appellee failure to perform an actual reading of the appellant's water meter for over 7 years, rendering any attempt to determine the reasonableness of the usage during the period at issue futile; (2) the appellee's successive reductions of the bill at issue, based on nebulous criteria, resulting in a final bill less than one-third of the amount originally charged, indicating that even the appellee did not believe that the indicated readings shown by its meter were accurate; and (3) the appellee's use of an average consumption rate for the period at issue approximately 250 percent greater than the rate for the post-2008 actual readings from the newly installed meter. 
The Board found and ruled that the best evidence of the consumption rate for the period at issue was the average consumption rate for the periods covered by the quarterly bills from September 25, 2008 through January 12, 2012.  These bills were based on actual readings, from a new meter, contemporaneous with the water consumption. Further, they encompassed the periods when the highest number of tenants occupied the subject property since the commencement of the period at issue.
Accordingly, the Board found and ruled that the proper water and sewer charges for the period at issue should be based on an average consumption rate of 1,986 cubic feet and the appropriate water and sewer rate applicable for each of the quarterly billing periods during the period at issue. On the basis of a joint computation which the parties submitted to the Board pursuant to an Order under 831 CMR 1.33, the proper amount of the water charges for the period at issue is $1,290.72.  Accordingly, the Board granted an abatement in the amount of $5,550.55

OPINION
	The appeal of an unpaid water charge is governed by G.L. c. 40, §§ 42A through 42F.  Section 42E provides that "[a]n owner of real estate aggrieved by a charge imposed . . . under [§§ 42A-42F] . . . may apply for an abatement . . . with the board . . . having control of . . . [the water] department . . . and . . . the provisions of chapter fifty-nine relative to abatement of taxes by assessors shall apply." Section 42E further states that, if the request for abatement is refused, "the petitioner may appeal to the appellate tax board upon the same terms and conditions as a person aggrieved by the refusal of the assessors . . . to abate a tax."  
General Laws c. 59, § 65 provides in pertinent part:
A person aggrieved . . . with respect to a tax on property in any municipality may, subject to the same conditions provided for an appeal under section sixty-four, appeal to the appellate tax board by filing a petition with such board within three months after the date of the assessors' decision on an application for abatement as provided in section sixty-three, or within three months after the time when the application is deemed to be denied as provided in section sixty-four. 

Accordingly, within three months after denial or deemed denial of an application for abatement of an unpaid water use charge, the owner may appeal to this Board.  See Epstein v. Executive Secretary of the Board of Selectmen of Sharon, 22 Mass. App. Ct. 135, 137 (1986).  
In the present appeal, there was no dispute that the subject water bill remained unpaid, resulting in a lien on the subject property, a prerequisite to the Board's jurisdiction. Id. at 137.  The Board also found that the application for abatement of the water charge was timely filed with the appellee and that the appellant seasonably appealed to this Board within three months of the denial.  See G.L. c. 59, §§ 64 and 65. Accordingly, the Board ruled that it had jurisdiction over this appeal.
The burden of proof is upon the appellant to make out its right as a matter of law to an abatement of an assessment or water charge.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The appellant must first show that it has complied with the statutory prerequisites to its appeal, see Epstein, 22 Mass. App. Ct. at 137; Brown v. Board of Sewer Commissioners & Board of Water Commissioners of Chicopee, Mass. ATB Findings of Fact and Reports 1995-14, 19-20, aff'd, 38 Mass. App. Ct. 1101, 1116 (1995); Cohen v. Assessors of Boston, 344 Mass. 268, 271 (1962), and then demonstrate that the water-usage charge on the water bill is improper.  See Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 691 (1982); Epstein, 22 Mass. App. Ct. at 136.  The charge is presumed valid until the appellant sustains its burden of proving otherwise.  
In the present appeal, the Board found and ruled that the appellant sustained its burden of proving that the subject water charge was excessive.  In ruling that the subject water charge was excessive and must be abated, the Board relied on the testimony and documentation offered by the appellant and also the Board's own analysis of the water bills and usage documentation for prior and subsequent periods.  "[The Board can] accept such portions of the evidence as appear to have the more convincing weight."  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The board is not required to believe the testimony of any particular witness."  Id.  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).      

On this basis, the Board decided this appeal for the appellant and reduced the water charge on the subject water bill to $1,290.72.  Accordingly, the Board abated $5,550.55 in water charges.
						APPELLATE TAX BOARD


					By:	___________________________________
						Thomas W. Hammond, Jr., Chairman



A true copy,

Attest: _____________________________
		   Clerk of the Board

ATB 2014-92