Alan Sliski v. Board of Assessors of Lincoln.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1043

ALAN SLISKI

vs.

BOARD OF ASSESSORS OF LINCOLN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Alan Sliski (taxpayer) owns two parcels of real estate

located on the same road in the town of Lincoln (town). He

appeals from the decision of the Appellate Tax Board (board)

affirming the town's Board of Assessors' (assessors) denials of

applications for abatement of real property taxes assessed on

these parcels for the fiscal years 2019 (FY2019) and 2020

(FY2020). The taxpayer argues that in affirming the denials of

abatement, the board erroneously upheld the property valuations

calculated by the assessors and made several procedural errors.

We affirm.

Background. The taxpayer owns two parcels of land in the

town on the same road: the larger one is 4.665 acres
(residential property); the smaller one is 0.05 acres (excess

property).

1. Residential property. The residential property was

assessed and taxed as agricultural land except for the 0.125

acres located beneath the taxpayer's home, which was assessed

and taxed as residential property. In FY2019 and FY2020 the

residential property was valued at $698,349 and $730,449,

respectively. In FY2019, the property's tax bill was $10,051.72

and in FY2020 it was $11,512.44.

2. Excess property. The excess property is a triangle-

shaped parcel adjacent to the residential property that was

assessed and taxed as undevelopable residential land. In

FY2019, the parcel was listed as 0.029 acres, and in FY2020, it

was listed as 0.05 acres. As the town's principal assessor,

Harald Scheid, testified to at an evidentiary hearing, infra,

this discrepancy was a result of a remapping project in Lincoln.

The project affected the parcel because it bordered the town of

Wayland. The deed for the excess property lists its size as

0.05 acres. In FY2019 and FY2020 the excess property was valued

at $900 and $1,500, respectively. In FY2019 the tax bill of the

excess property was $12.63 and in FY2020 it was $23.04.

3. Procedural history. In accordance with G. L. c. 59,

§ 57, the taxpayer timely paid the taxes due for both fiscal

years and then timely filed applications for abatement for both

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years on the ground that the taxes assessed were based on

erroneous valuations of the properties. The assessors denied

the applications.

Subsequently, the taxpayer timely filed petitions under the

formal procedure pursuant to G. L. c. 58A, § 7, and G. L. c. 59,

§§ 64 and 65, with the board, appealing the assessors' denials

of the abatement requests. On April 25, 2022, the board heard

all four appeals together at a single evidentiary hearing. On

July 5, 2022, the board affirmed the denials of the taxpayer's

abatement requests. The taxpayer requested that the board issue

findings of fact in support of its denial, as was his right

under G. L. c. 58A, § 13, and 831 Code Mass. Regs. § 1.32

(2007).1 On June 5, 2024, the board issued its decision,

explaining that the taxpayer failed to meet his burden of proof

to demonstrate entitlement to an abatement because he failed to

provide sufficient evidence to support his claims. The taxpayer

timely appealed.

Discussion. 1. Standard of review. "We accord the

board's decision great deference and will not disturb its

decision if [it] is based on both substantial evidence and a

1 After the evidentiary hearing but prior to this appeal,
the board promulgated new regulations concerning rules of
practice and procedure before the board. We reference the
version of the regulations in effect at the time of the hearing.

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correct application of the law" (citation omitted). Veolia

Energy Boston, Inc. v. Assessors of Boston, 483 Mass. 108, 112

(2019). "[S]ubstantial evidence is such evidence as a

reasonable mind might accept as adequate to support a

conclusion" (quotation and citation omitted). New Boston Garden

Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981). "[T]he

decision of the board is 'final as to findings of fact'"

(citation omitted). Veolia Energy Boston, Inc., supra. See

G. L. c. 58A, § 13.2 "In addition, the board's expertise is

given due weight when mixed questions of fact and law are

considered." Veolia Energy Boston, Inc., supra.

2. Challenges to valuation. The taxpayer makes three

substantive arguments that the assessors erred in denying his

requests for abatement: (a) the assessors erroneously

calculated the property value of the excess property; (b) the

assessors used the wrong land area for their valuation of the

residential property; and (c) the assessors used the incorrect

adjustment factor in calculating the land curve for the

residential property.

2 Notwithstanding the legislative mandate that "[t]he
decision of the board shall be final as to findings of fact,"
G. L. c. 58A, § 13, "a decision of the board, like that of any
administrative agency, see G. L. c. 30A, § 14 (7) (e), may be
challenged on the ground that it is not supported by substantial
evidence" (quotation and citation omitted). Schussel v.
Commissioner of Revenue, 472 Mass. 83, 86 (2015).

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These claims all pertain to the valuation of the taxpayer's

properties. "It is well established that the burden of

persuasion is on the taxpayer to show that [his] property was

overvalued." General Elec. Co. v. Assessors of Lynn, 393 Mass.

591, 598 (1984). Furthermore, the board is entitled to "presume

that the valuation made by the assessors was valid unless the

taxpayers sustained the burden of proving the contrary."

Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245

(1974).

Assuming that the taxpayer satisfies the burden of

presenting sufficiently persuasive evidence to call the

assessors' valuation into question, then "a decision of the

board in favor of the assessors must be supported by substantial

evidence." Donlon v. Assessors of Holliston, 389 Mass. 848, 855

(1983), citing Schlaiker, 365 Mass. at 245 n.2. Conversely,

"[w]hen a taxpayer fails to offer persuasive evidence of

overvaluation, a conclusion [by the board] that a presumptively

valid assessment must stand is . . . not such an affirmative

finding as to require substantial evidence to support it"

(quotation and citation omitted). W.A. Wilde Co. v. Assessors

of Holliston, 84 Mass. App. Ct. 102, 105 (2013). A taxpayer's

mere rejection of the assessors' valuation does not satisfy the

taxpayer's burden of proof in the absence of evidence supporting

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the taxpayer's valuation. Hampton Assocs. v. Assessors of

Northampton, 52 Mass. App. Ct. 110, 118-119 (2001).3

The taxpayer's proffered evidence did not support his

claims of overvaluation. The taxpayer presented no affirmative

evidence to prove the overvaluation of his properties in FY2019

and FY2020. More specifically, as the board noted, the taxpayer

"offered no recent sales of similar properties in the vicinity

or other evidence to establish that the subject properties were

assessed for more than their fair cash values." Since the

taxpayer did not provide any persuasive evidence, "substantial

evidence was not required to validate the board's decision."

Hampton Assocs., 52 Mass. App. Ct. at 118. Accordingly, we

affirm the board's decision to uphold the denials of the

abatement requests.

3. Procedural errors. On appeal, the taxpayer raises a

number of claims of procedural error: (a) the board erred by

not entering a default judgment against the assessors; (b) the

board erred by allowing the appeal to be heard by a single

member of the board rather than a quorum; (c) the board

improperly combined the appeals and delayed its decision; and

3 This principle, without more, disposes of the taxpayer's
challenges to the assessors' reliance on the land curve and the
assessors' classification of 0.125 acres of the residential
property as prime site rather than agricultural land.

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(d) the board failed to issue its findings of fact and report

within the statutorily mandated timeframe under G. L. c. 58A,

§ 13.

"While the board is specifically exempted from the

Massachusetts Administrative Procedure Act, G. L. c. 30A,

§§ 1, 11 (8), the board is nonetheless bound by 'general

principles affecting administrative decisions and judicial

review of them.'" Boston Gas Co. v. Assessors of Boston, 458

Mass. 715, 733 (2011), quoting Schlaiker, 365 Mass. at 245 n.2.

But generally, "administrative agencies have broad discretion

over procedural matters before them" (citation omitted).

Brockton Power Co. LLC v. Energy Facilities Siting Bd., 469

Mass. 215, 219 (2014). In accordance with its procedural

discretion, the board "reserves the right to make hearings and

proceedings as informal as possible, to the end that substance

and not form shall govern, and that a final determination of all

matters before it may be promptly reached." 831 Code Mass.

Regs. § 1.37(1). "In the absence of clear error, the

interpretation an administrative body gives to its own rule[s]

is entitled to deference." Purity Supreme, Inc. v. Attorney

Gen., 380 Mass. 762, 782 (1980).

In short, procedural errors do not warrant a remand or

reversal of a board decision in the absence of a showing that

they affected the outcome of the hearing. G. L. c. 231, §§ 119,

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132 (appellate relief warranted only where error "injuriously

affected the substantial rights of the parties"); Nexum Dev.

Corp. v. Planning Bd. of Framingham, 79 Mass. App. Ct. 117, 119-

120 (2011) (refusing to remand case to board due to procedural

error when result would remain unchanged); Manning v.

Contributory Retirement Appeal Bd., 29 Mass. App. Ct. 253, 258-

259 (1990) (remand unnecessary where there was "no real doubt"

what agency would do on remand [citation omitted]). Cf. G. L.

c. 30A, § 14 (7) (relief warranted on judicial review if

"substantial rights of any party may have been prejudiced" by

agency error).

a. Failure to enter a default judgment. For the first

time on appeal, the taxpayer claims that the board should have

entered a default judgment against the assessors because the

town's principal assessor, Scheid, was not permitted to appear

before the board on behalf of the assessors. In support of this

claim, he cites 831 Code Mass. Regs. § 1.01, which states in

relevant part, "Persons may appear and act . . . for a board of

which they are members, in any proceeding before the [Appellate

Tax] Board." Attorneys are also permitted to appear before the

board. Id.

At the evidentiary hearing, the taxpayer asserted that

Scheid was "not a member of the [assessors] and therefore may

not appear to practice before the [board]." Scheid responded

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that he has served as principal assessor for the town for

sixteen years but confirmed that he was not a member of the

assessors, nor an attorney. Despite raising this issue, the

taxpayer did not request a default judgment. Accordingly, the

assessors had no opportunity to make an argument opposing a

default judgment or substitute a member of the assessors for

Scheid. Therefore, assuming the board's decision to permit

Scheid to appear for the assessors violated the regulations then

in effect, the taxpayer waived any argument that a default

judgment should have entered against the assessors. See Bank of

America, N.A. v. Commissioner of Revenue, 474 Mass. 702, 713

(2016), quoting G. L. c. 58A, § 13 ("The court shall not

consider any issue of law which does not appear to have been

raised in the proceedings before the board").4

b. Requirement of a quorum. Next, the taxpayer asserts,

again for the first time on appeal, that the board violated

G. L. c. 58A, § 1A, by failing to have a quorum present for the

hearing, and by doing so, skirted the requirements of the open

meeting law (OML), G. L. c. 30A, §§ 18-25.

4 Likewise, the taxpayer's claim that Scheid's appearance
before the board was unconstitutional, raised for the first time
in his reply brief, is waived for the same reason. See Mass.
R. A. P. 16 (c), as appearing in 481 Mass. 1628 (2019) ("No new
issues shall be raised in the reply brief").

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At the evidentiary hearing, the taxpayer asserted that a

"notice of this public hearing" should have been posted,

presumably to comply with the OML. But the taxpayer did not

object to the fact that his appeal was heard by a single

commissioner of the board. See G. L. c. 58A, § 1A; 831 Code

Mass. Regs. § 1.20.5 Accordingly, that claim is waived. See

Bank of America, N.A., 474 Mass. at 713, citing G. L. c. 58A,

§ 13. As for the OML claim, because the appeal was heard by a

single commissioner, the proceeding was not a "meeting" --

defined as a "deliberation by a public body" -- because there

could be no "deliberation," defined as "communication . . .

between or among a quorum of a public body." G. L. c. 30A,

§ 18. Therefore, the OML did not apply.

c. Improperly combining the appeals. Without citing any

authority, the taxpayer argues that the board improperly

consolidated his FY2019 and FY2020 appeals. He asserts that

this was prejudicial because it prevented him from using the

findings from the FY2019 appeal to his advantage for the FY2020

appeal. Specifically, he contends it deprived him of the

ability to use the burden-shifting mechanism for valuation

5 Indeed, the lack of an objection supports an inference
that the taxpayer consented to have his appeal heard by a single
commissioner. See 831 Code Mass. Regs. § 1.20.

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appeals set out in G. L. c. 58A, § 12A. This burden-shifting

mechanism provides:

"If the owner of a parcel of real estate files an appeal of
the assessed value of said parcel with the board for either
of the next two fiscal years after a fiscal year for which
the board has determined the fair cash value of said parcel
and if the assessed value is greater than the fair cash
value as determined by the board, the burden shall be upon
the appellee to prove that the assessed value was warranted
. . . ."

G. L. c. 58A, § 12A. In short, the statute creates a limited

burden-shifting mechanism in instances where the board issues a

determination of a parcel's valuation.

Assuming for the sake of argument that the board was not

permitted to combine the FY2019 and FY2020 appeals -- and the

taxpayer has provided no authority for this claim -- the burden-

shifting mechanism, identified in G. L. c. 58A, § 12A, did not

apply in any event, because the board did not determine the

value of the subject properties for fiscal years 2017 through

2019. The board's affirmance of the assessors' valuations -- on

the grounds that the taxpayer failed to carry his burden of

introducing evidence showing errors in those valuations -- does

not constitute a determination of value by the board itself.

W.A. Wilde Co., 84 Mass. App. Ct. at 106.

d. The board's failure to issue its findings of fact and

report in a timely fashion. The taxpayer argues that "[t]he

promulgation of the [f]indings of [f]act and [r]eport was

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illegally delayed" because the board issued them approximately

two years after reaching its decision and after the taxpayer's

request for findings, and failed to notify the parties of its

need for an extension. See G. L. c. 58A, § 13. However, the

board's untimely issuance of the findings of fact and report is

not a ground for reversal. The statute provides, "Failure to

comply with the time limits, as outlined above, shall not affect

the validity of the board's decision." G. L. c. 58A, § 13.

Therefore, in accordance with the statute, we will not reverse

the board's decision on this ground.6

4. Appellate attorney's fees and double costs. The

6 Additionally, the taxpayer contends, for the first time in
his reply brief, that the board's failure to provide notice of
the delay violated his constitutional right to due process. We
need not consider arguments raised for the first time in a reply
brief. See Boxford v. Massachusetts Highway Dep't, 458 Mass.
596, 605 n.21 (2010) (argument raised for first time in reply
brief is not properly before appellate court); Allen v. Allen,
86 Mass. App. Ct. 295, 302 n.11 (2014) ("Any issue raised for
the first time in an appellant's reply brief comes too late, and
we do not consider it" [citation omitted]); Mass. R. A. P.
16 (c). Even if the issue were properly preserved, the board's
delay in issuing its finding of facts and report did not
implicate the taxpayer's due process rights. It did not prevent
the taxpayer from appealing the decision.

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assessors' request for appellate attorney's fees and double

costs is denied.

Decision of Appellate Tax
Board affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.7),

Clerk

Entered: October 24, 2025.

7 The panelists are listed in order of seniority.

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