Stagg Chevrolet, Inc. v. Board of Water Commissioners
Stagg Chevrolet, Inc. v. Board of Water Commissioners
Opinion of the Court
Stagg Chevrolet, Inc. (Stagg), sought an abatement of a water bill for its purported usage of over four million gallons of town water during a four-month period, an amount Stagg claimed was over forty-seven times its customary usage. The board of water commissioners denied the abatement.
At issue is the legal effect of a notice that fails to include statutorily required information regarding the appellate process. We conclude that the Legislature mandated that this important information about how to appeal be included in the notice, and therefore the notice of the water commissioners’ decision was ineffective for the purpose of determining when to commence the running of the three-month appeal period. We therefore affirm the ATB decision awarding the abatement.
Background. The plaintiff aggrieved party, Stagg, is a dealership for new and used cars located in the town of Harwich. Stagg first began using town water service in 1985, and its water usage was consistent until 1992, when it received a bill for usage of approximately 4.8 million gallons of water over a six-month period. Stagg’s water meter was replaced, it was granted a substantial abatement, and its water usage returned to normal levels.
In June, 2002, Stagg received the water bill presently at issue in the amount of $9,083.45, showing over four million gallons of water used for a four-month period.
Stagg requested and was given a second hearing by the water commissioners.
On December 19, 2002, more than three months after the August 20, 2002, decision, Stagg filed a statement under the informal procedure
The ATB denied the motion to dismiss and determined that the water commissioners’ notices of August 21 and September 24 were ineffective based on noncompliance with that portion of G. L. c. 59, § 63, requiring that the notice shall state “that appeal from such decision . . . may be taken as provided in” §§ 64 and 65.
On appeal, the water commissioners challenge only the ATB’s determination that Stagg’s petition to the ATB was timely under the statutory procedure for seeking abatements set forth in G. L. c. 59, §§ 63, 64, and 65 (made applicable here by G. L. c. 40, § 42E).
Discussion. General Laws c. 40, §§ 42A-42E, concern the collection of water charges that, as here, remain unpaid. “Section 42E lays out a procedure of abatement and appeals analogous to that available for tax relief, but it relates ... to a charge under §§ 42A through 42F . . . .” Epstein v. Executive Secretary of the Bd. of Selectmen of Sharon, 22 Mass. App. Ct. 135, 137 (1986).
“An owner of real estate aggrieved by a charge imposed thereon under sections forty-two A to forty-two F, inclusive . . . may apply for an abatement thereof by filing a petition with the board or officer having control of the water department ... 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.”
General Laws c. 59, § 63, provides, in full:
“Assessors 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. Said notice shall indicate the date of the decision or the date the application is deemed denied as provided in section sixty-four, and shall further state that appeal from such decision or inaction may be taken as provided in sections sixty-four to sixty-five B inclusive.”
It is undisputed that the August 21 notice did not comply with the statute. The issue then becomes whether the statutory language is mandatory or merely directory in terms. As explained by Chief Justice Lemuel Shaw in a case involving the failure of assessors to keep their lists of valuations and assessments in the form prescribed by statute, directory provisions are those “designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, the compliance or non-compliance with which, does in no respect affect the rights of tax-paying citizens.” Torrey v. Millbury, 21 Pick. 64, 67 (1838). Cheney v. Coughlin, 201 Mass. 204, 212 (1909).
We conclude that the notice of appellate rights required by G. L. c. 59, § 63, is not merely directory. See, e.g., Mann v. As
The failure to comply with the notice requirements in § 63 affects the filing deadlines established in G. L. c. 59, § 65, which provides that a person may
“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 for abatement is deemed to be denied as provided in section sixty-four” (emphasis supplied).
Having concluded that the decisions were not noticed as provided in § 63, the ATB nullified the decisions and applied § 65’s alternative “deemed to be denied as provided in section sixty-four” time frame for the filing of appeals. Section 64 provides, in pertinent part:
“Whenever a board of assessors . . . fails to act upon said application . . . prior to the expiration of three months from the date of fifing of such application it shall then be deemed to be denied . . . .”
In the instant case, however, the water commissioners did not
Pursuant to SCA, we conclude that in the instant matter, the failure to notify the applicant of its appeal rights as required by § 63 may be cured by allowing a reasonable time for appeal based on the most relevant statutory standards. Here, where notice has been given, but lacks critical information for the applicant as to its appellate rights, the “deemed to be denied” time frame provides a reasonable time period with dates certain easily ascertained by both parties. It is drawn directly from the statute. It also provides some redress for the failure to inform the applicant of its appellate rights; otherwise, the requirement that notices conform to the legislative directive would be rendered meaningless. For these reasons, we conclude that the ATB properly deemed the appeal timely pursuant to G. L. c. 59, §§ 63, 64, and 65.
The decision of the Appellate Tax Board is affirmed.
So ordered.
General Laws c. 40, § 42E, provides that “the provisions of chapter fifty-nine relative to the abatement of taxes by assessors shall apply, so far as applicable, to abatements [of water charges] hereunder.”
Pursuant to G. L. c. 40, § 42E, the ATB is the agency responsible for water charge abatement appeals.
Again the meter was replaced and Stagg’s water usage returned to its prior levels.
In part, Stagg noted that it did not have an irrigation system, and that it no longer washed customer cars as a courtesy, but instead only washed new cars.
See G. L. c. 58A, § 7A (“the [ATB] shall establish by rule an alternative procedure [to G. L. c. 58A, § 7], hereinafter referred to as the informal procedure, for the determination of petitions for abatement of any tax”). See Cohen v. Assessors of Boston, 344 Mass. 268, 269-270 (1962).
In its initial informal petition, Stagg asserted that it made its application for abatement on September 26, 2002, and that it was denied on that date. In its formal petition, Stagg alleged that it made its application for abatement on July 15, 2002, and that it was denied on September 24, 2002.
Section 63 also incoiporates a reference to G. L. c. 59, §§ 65A and 65B, but neither is applicable here.
In Valley Realty, the ATB interpreted the 1943 amendment to G. L. c. 59, § 63, see St. 1943, c. 79, which added the requirement that the notice of the assessors’ decision include direction on how appeal from their decision may be taken. The ATB denied a motion to dismiss an appeal as untimely because “[t]he notice of the assessors’ decision on the application [for abatement of real estate taxes] did not state therein that an appeal from such decision may be taken as provided in the statutes.” Determining that “such an omission rendered the notice invalid because it failed to comply with the statutory requirement^]” the ATB employed the same remedy as in the instant matter, treating the application for abatement as “deemed to be denied.”
When a board of assessors (or, as here, the board of water commissioners) fails to act upon an abatement application “prior to the expiration of three months from the date of filing of such application it shall then be deemed to be denied.” G. L. c. 59, § 64, as amended by St. 1945, c. 621, § 5. For an appeal of a “deemed denied” application to be timely it must then be filed “within three months after the time when the application for abatement is deemed to be denied as provided in section sixty-four.” G. L. c. 59, § 65. Here, the ATB found that the application, which had been filed on July 15, 2002, was deemed denied on October 15, 2002, and that the appeal under the formal procedure related back to the appeal under the informal procedure, which had been filed on December 19, 2002. There is no dispute that the appeal was timely filed if it was an appeal of a deemed denied application.
The water commissioners do not challenge the ATB’s findings and conclusions on the merits.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.