Joyce and Gracemarie Tomaselli v. Board of Assessors & Department of Public Works of the Town of Salisbury (July 17, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




JOYCE and GRACEMARIE TOMASELLI	  v.	 	BOARD OF ASSESSORS OF 
  	THE TOWN OF SALISBURY
        &
DEPARTMENT OF PUBLIC WORKS OF THE TOWN OF SALISBURY

Docket No. F278864					Promulgated:
								July 17, 2007



	This is an appeal filed under the formal procedure, pursuant to G.L. c. 58A, § 7 from the refusal of the appellees to abate amounts shown on appellants' fiscal year 2005 tax bill for a sewer lien and a sewer betterment.
	Commissioner Scharaffa heard the appeal.  He was joined in the decision for the appellees by former Chairman Foley, former Commissioner Gorton, and Commissioners Egan and Rose.  
	These findings of fact and report are promulgated at the request of the appellants pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	Joyce Tomaselli and Gracemarie Tomaselli, pro se for the appellants.

	Thomas McEnaney, Esq., for the appellees.

FINDINGS OF FACT AND REPORT
	Based on the exhibits and testimony offered at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	At all material times, Joyce and Gracemarie Tomaselli ("appellants") were the assessed owners of two parcels of real estate located at 113-115 North End Boulevard in the Town of Salisbury (collectively, the "subject property").  One parcel is vacant and the other is a mixed-use parcel that included a restaurant on the ground floor and a second-floor apartment.  The appellants purchased the subject property on March 7, 1991 with the intention of operating the restaurant and living in the upstairs apartment. 
	There is conflicting evidence in the record as to when the appellants became aware that a sewer betterment was assessed on the subject property.  The vote to authorize sewer betterments occurred at a January 27, 1992 Special Town Meeting ("Town Meeting").  Town Meeting also voted to rescind votes taken at previous town meetings held in 1990 and 1984.  Appellants testified that they received a bill for the sewer betterment sometime in March of 1992.  However, the appellants filed an application for abatement of the betterment assessments on July 31, 2001, which was denied on October 17, 2001.  At no time did the appellants file a timely appeal of this denial.
On April 22, 2005, the appellants filed another application for abatement of the sewer betterments, which referenced betterments in the same amounts as those raised in their July 31, 2001 application.  Neither application mentioned a "sewer lien" in the amount of $280.60, which appeared on the fiscal year 2005 tax bill for one of the parcels.  The appellants' April 22, 2005 application for abatement was denied on May 9, 2005.  On June 10, 2005, the appellants filed their appeal with the Board, in which they referenced both the betterments and a sewer-use charge. 
The appellants raised numerous allegations in support of their claim that the betterment assessments were not valid, including that: 1) the betterment was actually a "reconstruction rehabilitation sewer project"; 2) the sewer construction was funded by the Environmental Protection Agency and, therefore, the betterment was an illegal tax; 3) the town did not hold a valid meeting to vote in favor of the project; 4) the town never recorded the betterment assessment in the Registry of Deeds.
For the reasons detailed in the following Opinion, the Board found and ruled that it had no jurisdiction over this appeal because: 1) the Board has no jurisdiction over appeals of betterment assessments; 2) any purported appeal of the betterment assessment was filed well beyond the statute of limitations; 3) although the Board has jurisdiction over appeals of sewer-use charges, there is no evidence that the appellants filed a timely appeal of the sewer-use charge with the town.  Moreover, even if the appellants' April 22, 2005 abatement application could be considered a timely appeal of the sewer-use charge, the assessors produced substantial, credible evidence, including the testimony of the Town's Director of Public Works, to support a finding that the appellants' sewer-use charge was correct.  Accordingly, the Board issued a decision for the appellees in this appeal. 


OPINION
	Chapter 80 of the General Laws governs the assessment of betterments.  General Laws c. 80, § 7 provides that a "person who is aggrieved by the refusal of the board to abate [a betterment] assessment in whole or in part may within thirty days after notice of their decision appeal therefrom by filing a petition for the abatement of such assessment in the superior court for the county in which the land assessed is situated."  General Laws c. 80, § 10 provides for an appeal to the county commissioners as an alternative remedy for persons aggrieved by the assessment of a betterment.  There is no mention in Chapter 80 of a right to appeal betterment assessments to the Board.  
	In addition, G.L. c. 58A, § 6, which sets forth the Board's jurisdiction, makes no mention of appeals from betterment assessments under Chapter 80.  The abatement remedy is created by statute and, therefore, the Board has only that jurisdiction conferred on it by statute.  Commissioner of Revenue v. Pat's Super Market, Inc., 387 Mass. 309, 311 (1982).   "An administrative agency has no inherent or common law authority to do anything.  An administrative board may act only to the extent it has express or implied statutory authority to do so."  Commissioner of Revenue v. Marr Scaffolding Co., Inc., 414 Mass. 489, 493 (1993).  Accordingly, the Board ruled that it had no jurisdiction to grant an abatement of appellants' betterment assessments.
	Moreover, G.L. c. 80, § 5 provides that the owner of real estate upon which a betterment has been assessed must apply to the appropriate town board for an abatement "within six months after notice of such assessment has been sent out by the collector."  Based on the appellants' testimony that the betterment assessment bills were sent to them in March of 1992, both of the appellants' applications for abatement of the betterment were filed long after the expiration of the six-month period under G.L. c. 80, § 5.  
	Finally, with respect to the sewer lien in the amount of $280.60 that appeared on the appellants' fiscal year 2005 tax bill, the Board has jurisdiction over timely filed appeals of sewer-use charges.  See G.L. c. 83, § 16G.  However, to preserve their right to appeal the sewer-use charge imposed on them, the appellants had to "apply for an abatement thereof by filing a petition with the municipal board or officer having control of the sewer department within the time allowed by law for filing an application for abatement of the tax of which such charge is . . . a part."  G.L. c. 83, § 16G.  
There is no evidence on this record that the appellants at any time filed an appeal of the sewer-use charge shown as part of their fiscal year 2005 tax.  Neither the April 22, 2005 application for abatement filed after the issuance of the fiscal year 2005 bill nor, for that matter, their July 31, 2001 application for abatement, referenced or otherwise sought to appeal the sewer-use charge.  Therefore, the Board ruled that appellants failed to comply with G.L. c. 83, § 16G and that no abatement of the sewer-use charge was warranted. 
In addition, even if the appellants' April 22, 2005 abatement application could be considered a timely appeal of the sewer-use charge, the assessors produced substantial, credible evidence, including the testimony of the Town's Director of Public Works, to support a finding that the appellants' sewer-use charge was correct.  "The credibility of witnesses, the weight of evidence, and the 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). 
Accordingly, the Board issued a decision for the appellees in this appeal.

				     APPELLATE TAX BOARD



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


A true copy,


Attest:			__________		
    Assistant Clerk of the Board

 In light of the Board's rulings, the appellants' Motion to Correct Transcript is moot.

ATB 2007-666