Sarah T. Lemke v. Medfield Board of Water and Sewer Commissioners (February 16, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

SARAH T. LEMKE			 	v.	MEDFIELD BOARD OF WATER								AND SEWER COMMISSIONERS

Docket No. F305028				Promulgated:
							February 16, 2012

	This is an appeal under the formal procedure pursuant to G.L. c. 40, §§ 42A through 42F, G.L. c. 83, § 16E, and G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate water-usage charges imposed on the appellant for the period October 1, 2008 through April 1, 2009 ("period at issue").
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose 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.  A Corrected Decision in this appeal is promulgated herewith.  
	Sarah Lemke, pro se, for the appellant.
 
	Mark G. Cerel, 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, Sarah T. Lemke ("Ms. Lemke" or "appellant") was the record owner of the property located at 33 Philip Street, Medfield ("subject property").  Ms. Lemke testified that she and her husband moved into the subject property in August, 2008.  On November 18, 2008, the Medfield Water and Sewer Board ("water department") issued a water bill in the amount of $357.33 for water usage at the subject property during the six-month period April 1, 2008 through October 1, 2008, which the appellant paid.  
On May 14, 2009, the water department issued to the appellant a water bill in the amount of $2,555.84 for the consumption of 272,000 gallons of water during the period at issue.  On May 20, 2009, Ms. Lemke went to town hall to dispute the water charge and on June 25, 2009 she scheduled an inspection of the subject property's water meter.  On July 2, 2009, two municipal employees from the water department visited the subject property to inspect the water meter.  According to Ms. Lemke, the water department personnel determined that the water meter was working properly and suggested that there was a leak in the first-floor toilet.  Subsequently, Ms. Lemke contracted a licensed plumber to inspect the subject property and check for any water leaks; no leaks were detected.   
On August 12, 2009, the appellant requested in writing an abatement of the water-usage charges for the period at issue.  Ms. Lemke appeared before the water department on September 17, 2009.  By letter dated October 21, 2009, the water commission informed Ms. Lemke that her request for an abatement was denied on September 17, 2009, noting in its decision that the meter was working properly and citing the "leaking toilet" referenced by the water department personnel during their July 2, 2009 inspection.  On November 20, 2009, the appellant received a water bill in the amount of $123.10 for the consumption of 16,000 gallons of water during the six-month period April 1, 2009 through October 1, 2009.    
On December 21, 2009, the Collector of Taxes for Medfield issued the subject property's fiscal year 2010 tax bill, which included water and sewer liens in the total amount of $2,772.22.  On January 21, 2010, the appellant filed an appeal with the Board.  On the basis of these facts, and the reasons more fully explained in the following Opinion, the Board found and ruled that it had jurisdiction over this appeal. 
Ms. Lemke testified that according to the water consumption history for the subject property, the water usage for the period at issue was significantly higher than any of the previous owner's water bills and was more than three-and-a-half times greater than the highest usage in the previous ten years.  The appellant further noted that despite the fact that there was no "leaky toilet" repaired, the water usage for the subsequent six-month period, April 1, 2009 through October 1, 2009, was only 16,000 gallons.  
In defense of the water-usage charge, the appellee offered the testimony of its superintendent, Ken Feeney, and also David O'Toole, an employee of the water department.  Mr. Feeney testified that, according to the water department personnel the subject property's water meter was removed, brought back to the water department, tested, and determined to be working properly.  Mr. Feeney further testified that the appellant's meter was one of the newer electronic-read meters and that no problems had been reported.  Accordingly, the water department refused the appellant's request for abatement and stood by its May 14, 2009 water bill.
	Based on the evidence presented, the Board found that the water usage documentation offered by the appellant supported an abatement.  The evidence presented, particularly the usage bills for periods before and after the period at issue, supported a finding that the usage reflected on the bill for the period at issue was an error and not the result of a "leaky toilet" as suggested by the appellee.  This finding was supported by the significantly lower water usage for the six-month period following the period at issue, despite the absence of repairs.  After consideration of the water-use charges for the seven-year period preceding the period at issue and the subsequent billing period, the Board determined that the appropriate water-use charge for the period at issue was $602.08.
	Accordingly, the Board granted an abatement in the amount of $1,953.76 in water-usage charges.


OPINION
Water or sewer charges not paid on or before their due date shall be liens upon the real estate to which the water or sewer service was supplied and "shall be added to or committed as a tax." G. L. c. 40, § 42B; G. L. c. 83, § 16B.  
	A taxpayer aggrieved by a water or sewer charge:
may apply for an abatement by filing a petition with the board or officer having control of the water department within the time allowed by law for filing an application for abatement of the tax of which such charge is . . . a part . . . .  If such petition is denied in whole or in part, 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 of a city or town to abate a tax.

G.L. c. 40, §42E (emphasis added); see also G.L. c. 83, §16E.
	G.L. c. 59, §§ 64 and 65 govern appeals to the Board, and therefore, appeals of water and sewer use charges.  Under §§ 64 and 65, a taxpayer aggrieved by the refusal of the assessors to abate a tax may appeal to the Board by filing a petition with the Board "within three months after the date of the assessors' decision on an application for abatement, or within three months after the time when the application is deemed to be denied as provided in section sixty-four." 
	Further, Section 63 provides that:
[a]ssessors shall, within ten days after their decision on an application for an abatement, send written notice thereof to the applicant. If the assessors fail to take action on such application for a period of three months following the filing thereof, they shall, within ten days after such period, send the applicant written notice of such inaction.

	Thus, in the context of an appeal of a water-usage charge, an appellant is required to file an appeal with the Board within three months of the appellee's decision on an abatement request or, if the appellee fails to timely act on an abatement application, within three months of the date of deemed denial.  Further, the appellee is required under § 63 to give notice of its decision on an abatement application, or of its deemed denial, within ten days of the deemed denial date.  A notice of abatement decision issued in a manner that "does not comply with the relevant statute is insufficient to trigger the appeal period."  Boston Communication Group, Inc.  v. Assessors of Woburn, Mass. ATB Findings of Fact and Reports 2011-780, 788 (citing Stagg Chevrolet, Inc. v. Bd. Of Water Comm'rs, 68 Mass. App. Ct. 120, 124-26 (2007); SCA Disposal Servs. of New England, Inc. v. State Tax Commission, 375 Mass. 338, 376 (1978)).
	In the present appeal, because the notice of abatement denial was sent more than ten days after the appellee's decision, and therefore did not comply with the requirements of § 63, the denial date did not trigger the statutory appeal period.  Instead, the appellant had a "reasonable time for appeal based on the most relevant statutory standards."  Stagg Chevrolet, 68 Mass. App. Ct. at 126.  The Courts and this Board have ruled that the "most relevant statutory standards were those found in §§ 65 and 65C," and where notice has been given, but does not comply with § 63, "the 'deemed to be denied' time frame provides a reasonable time period with dates certain easily ascertained by both parties."  Id.; see also Boston Communication Group, Mass. ATB Findings of Fact and Reports at 2011-789.  Because the appellee's notice of abatement denial did not comply with the requirements of § 63, the Board found and ruled that the denial date reflected in the notice did not trigger the statutory appeal period.  Under § 65, the appellant had, at the latest, until February 12, 2010, to file an appeal with the Board.  Therefore, the Board found and ruled that the appellant's petition with this Board, which was filed on January 21, 2010, was timely. 
	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.  See 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 v. Executive Secretary of Bd. of Selectmen, 22 Mass. App. Ct. 135, 137 (1986); 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); 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.  Lacerra v. Harwich Water Department, Mass. ATB Findings of Fact and Reports 2008-1325, 1333. 
In the present appeal, the Board found and ruled that the appellant complied with the statutory prerequisites to her appeal and sustained her burden of proving that the subject water-usage charge was excessive.  In reaching its decision, the Board relied on the testimony and documentation offered by the appellant and also the Board's own analysis of the water-usage documentation for both the periods preceding and following the period at issue.  The Board further found that the appellee's suggestion that a leaking toilet resulted in the consumption of 272,000 gallons of water was not supported by the evidence.  For these reasons, the Board decided this appeal for the appellant and reduced the water-usage charge on the subject water bill to $602.08, based on the water-use charges during the prior seven-year period and the subsequent period. 
"[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 appellant and reduced the water-usage charge on the subject water bill to $602.08.  Accordingly, the Board abated $1,953.76 in water and sewer-usage charges.

					    THE APPELLATE TAX BOARD


				  By: ___________________________________
					 Thomas W. Hammond, Jr., Chairman
A true copy,

Attest: ____________________________
	   Clerk of the Board

  The appellant filed her abatement request with the Medfield Board of Water and Sewer Commissioners, whom she also named as the appellee in the appeal.  However, the water and sewer bills at issue in this appeal, and the denial of the appellant's abatement request, were issued by the Medfield Water and Sewer Department.  In the absence of an argument and facts of record to the contrary, the Board determined that the appellee was a proper party to this appeal.  As used herein, the term "appellee" will refer to both the Water and Sewer Commissioners and the Water and Sewer Department.
 This amount includes the disputed water and sewer charges of $2,555.84 reported on the appellant's water bill dated May 14, 2009, plus interest.
 The appellant filed her Application for Abatement on August 12, 2009.  Because the appellee failed to timely notify her of their action on the application, the time standards found in §§ 64 and 65 are applicable: the "deemed denial date" would be November 12, 2009, and, on these facts, the appeal would have been due on February 12, 2010.  

ATB 2012-114