Louis J. & Ann M. Lacerra v. Harwich Water Department (October 15, 2008)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


LOUIS J. & ANN M. LACERRA 	v.	HARWICH WATER DEPARTMENT


Docket No. F287934			Promulgated: October 15, 2008


	This is an appeal under the formal procedure pursuant to G.L. c. 40, § 42E and G.L. c. 58A, § 7 from the refusal of the appellee to abate water-usage charges imposed on the appellants for the six-month period ended September 13, 2006.  
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in the decision for the appellants.    
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13, as amended, and 831 CMR 1.32.  

	Louis J. Lacerra, pro se, for the appellants. 
	Richard Bowen, Esq. and Jeffrey T. Blake, Esq. for the appellee.



FINDINGS OF FACT AND REPORT
	Based on testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	At all times relevant to this appeal, Louis J. and Ann M. Lacerra ("appellants") were the record owners of the property located at 41 Blueberry Lane in the Town of Harwich ("subject property").  On September 14, 2006, the Harwich Water Department ("water department") sent to the appellants a water bill in the amount of $3,359 for water usage during the six-month period March 13, 2006 through September 13, 2006 ("period at issue") for the subject property.  The appellants paid only $295, which represents the same usage for the previous year, leaving a balance due of $3,064.  
On October 30, 2006, the appellants timely filed an Application for Abatement of water-usage charges with the water department, which it denied on December 5, 2006.  On March 2, 2007, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  Based on these facts, the Board found and ruled that it had jurisdiction over this appeal. 
The appellants presented the testimony of Mr. Louis Lacerra to prove that the September 14, 2006 water bill was excessive and should be abated.  Mr. Lacerra testified that the appellants purchased the subject property in October 2003 as a vacation/rental property to be used primarily for the summer months, approximately ten to twelve weeks per year.  For the spring/summer period of March 9, 2004 through September 24, 2004, the appellants reportedly consumed 278,000 gallons of water.  Mr. Lacerra noted that although this was significantly higher than the previous owner's 2003 spring/summer water usage, it was likely attributable to a leak in the irrigation system and also the installation of two additional zones for the irrigation system.  Mr. Lacerra testified that the irrigation system, which has a rain sensor, is set to run every other day from late-April through September.
The appellants' water-usage charge for the spring/summer period of March 16, 2005 through September 12, 2005 was 98,000 gallons.  While still higher than the previous owner's usage, the appellants determined that it was consistent with the rental nature of the subject property and the additional irrigation.  The appellants "winter" bills, for the six-month periods ending in March 2005 and March 2006, reported water consumption of 30,000 and 40,000 gallons, respectively, despite the fact that the subject property was vacant during these periods with the water main turned off.
On September 14, 2006, the appellants were issued a bill in the amount of $3,359.00 for the consumption of 915,000 gallons of water during the period of March 9, 2006 through September 14, 2006.  As a result of the high water consumption reading, the water department ordered a subsequent reading on September 25, 2006.  The second reading showed a consumption of 11,000 gallons of water during the previous thirteen days.  The appellants were contacted by the water department on September 28, 2006 and were notified of the issue.  The appellants immediately contacted their plumber, Gary Sinclair, who inspected the subject property to check for any water leaks; Mr. Sinclair detected no leaks.  
On October 20, 2006, Mr. Lacerra met with Bruce Cahoon, Superintendant of the water department, to determine if there were any visible leaks which would support a meter reading of 915,000 gallons.  Mr. Lacerra testified that no leaks were found.  While at the property, Mr. Cahoon conducted an actual reading of the meter dial which reported that appellants had consumed 4,660 gallons of water during the period September 25, 2006 through October 20, 2006.  At that time, Mr. Cahoon removed the water meter and sent it to Regan Supply & Testing Service ("Regan Testing") for accuracy testing and installed a new meter.  
On November 21, 2006, the appellants received a letter from the water department which notified them that the water meter which was removed from the subject property on October 20, 2006 had been tested and that the previous readings were accurate.  Subsequently, on December 5, 2006, the water department denied the appellants' request for an abatement of their water-usage charges.  
On July 10, 2007, a reading of the newly installed water meter showed a usage of 83,000 gallons during the nearly eight-month period October 20, 2006 through July 10, 2007.  
In defense of the water-usage charge, the water department offered the testimony of its superintendent, Craig Wiegand, and various documents including work order forms, a consumption history for the subject property, the Regan Testing report, the water department's abatement denial, and also the July 10, 2007 newly installed water meter reading.  Mr. Wiegand testified that, according to the water department personnel, when the appellants were first notified of the high water consumption, the appellants explained that the house was primarily a rental property with no caretaker and that there had been a leak in the irrigation system.  Mr. Wiegand further testified that according to the work order dated October 20, 2006, there was water going down the overflow tube of one toilet, the master bedroom toilet had a leak, and there was a "drip" system for plantings around the house.  
Finally, Mr. Wiegand testified that, in his view, Regan Testing verified the accuracy of the water meter.  Therefore, he concluded that, the renters, the irrigation leak and the toilet leaks caused the high water consumption.   Accordingly, the water department refused the appellants' request for abatement and stood by its September 14, 2006 water bill.
In response to Mr. Wiegand's assertions, Mr. Lacerra testified that the irrigation leak which Mr. Wiegand referenced occurred while appellants were at the subject property and that the cause of the leak, a broken sprinkler head, was repaired immediately.  Mr. Lacerra also contended that, according to his plumber, there were no significant leaks which would warrant an excess water usage of more than 700,000 gallons of water.
On the basis of all of the evidence, the Board found that the water bills and usage documentation in evidence supported an abatement.  The Board further found that the appellee's suggestion that the renters' water-usage habits, leaking toilets, and a "drip" system used for plantings around the house had caused more than 700,000 gallons of excess water usage during the period at issue was not supported by the evidence.  Given the unusually high water-use readings during the winter periods ending in March of 2005 and 2006 when the property was unoccupied and the water main shut off, it is unlikely that tenant usage or the other explanations offered by the appellee were the causes of the high-usage readings for the summer periods. for the  For these reasons, the Board decided this appeal for the appellants and reduced the water-usage charge on the subject water bill to $295.00, which represented a six-month charge more consistent with appellants' past water bills.  
Accordingly, the Board granted an abatement in the amount of $3,064.00 in water-usage charges.

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-usage 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-usage charge was timely filed with the Harwich Water Board and that the appellants seasonably appealed to this Board within three months of the denial.  See G.L. c. 59, §§ 59, 64 and 65.  See G.L. c. 59, §§ 64 and 65.    
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.  Cf. 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, ATB Findings of Fact and Reports 1995-14, 19-20, aff'd, 38 Mass. App. Ct. 1101, 1116 (1995); cf. 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 appellants sustained their burden of proving that the subject water-usage charge was excessive.  In ruling that the subject water-usage charge was excessive and should be abated, the Board relied on the testimony and documentation offered by the appellants and also the Board's own analysis of the water bills and usage documentation for prior periods.  The Board further found that the appellee's suggestion that the renters' water-usage habits, leaking toilets and a "drip" planting system resulted in the consumption of more than 700,000 excess gallons of water, was not supported by the evidence.  "[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 [B]oard 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 [B]oard."  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 appellants and reduced the water-usage charge on the subject water bill to $295.00.  Accordingly, the Board abated $3,064.00 in water-usage charges.

					APPELLATE TAX BOARD


				By:	___________________________________
					Thomas W. Hammond, Chairman









































A true copy,



Attest:	____________________________
		Clerk of the Board

ATB 2008-1325