TOWN OF SHARON vs. JODI B. MATT, TRUSTEE OF DRAKE REALTY TRUST

Plaintiff filed its unverified Complaint to Foreclose Tax Lien on January 25, 2006, with respect to property located at 13 Drake Circle, Sharon, Massachusetts (“Locus”). Charles L. Gaffney was appointed as the title examiner on February 1, 2006, and filed his report on February 9, 2006. A citation was issued on February 17, 2006, returnable March 20, 2006. [Note 1] Defendant filed its Answer on May 25, 2006. On June 20, 2006, this court issued a finding that Defendant could redeem Locus for the sum of $57,067.05, together with interest, court costs and legal fees, on or before September 26, 2006. Defendant did not so redeem. Plaintiff filed a Motion for Judgment (for decree of foreclosure) on July 17, 2007, the hearing on which motion was continued numerous times and finally heard on August 5, 2008, and taken under advisement. A status conference was held on November 4, 2008, and this court issued an Order dated November 6, 2008, which placed this case on hold pending the outcome of a related zoning case involving Locus (08 MISC 365630). A decision in that case was issued on March 2, 2010, which upheld the ZBA in the denial of a variance for Locus. Plaintiff filed its Motion for Summary Judgment on September 9, 2010, and Defendant filed its Opposition on October 7, 2010. A hearing was held on the motion on October 14, 2010, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419 , 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

1. Defendant purchased Locus by deed dated September 30, 1992, and recorded with the Norfolk County Registry of Deeds (the “Registry”) in Book 9535, Page 128. Locus is vacant land and contains 44,174 square feet (1.0600 acres). Locus is shown on the Town of Sharon Assessors’ Map 004 as Lot 11.

2. Defendant has paid no real estate taxes on Locus since it purchased Locus in 1992. Plaintiff made a tax taking of Locus on March 11, 1994 for unpaid 1993 real estate taxes (the “Tax Taking”), which taking was recorded with the Registry on March 16, 1994 in Book 10430, Page 453.

3. In 1992, Defendant applied for a special permit (relative to wetlands setbacks) and a variance (relative to minimum lot area and minimum lot width) for Locus as part of the proposed construction of a single-family dwelling. By decision dated May 18, 1992, the Sharon Zoning Board of Appeals (the “ZBA”) denied both the special permit and the variance (“Variance 1”).

4. On October 2, 2007, Defendant filed an application for a minimum lot area variance (“Variance 2”). By decision dated December 12, 2007, the ZBA denied Variance 2.

5. By Order of Remand dated February 26, 2008, this court remanded Variance 2 to the ZBA. By decision dated July 23, 2008, the ZBA denied the variance (“Variance 3”).

6. Defendant appealed the denial of Variance 3 to this court. By decision dated March 2, 2010, this court upheld the denial of Decision 3.

7. The records of the Town Assessors show Locus as “potentially buildable.”

8. As of September 7, 2010, the amount required to redeem the Tax Taking was $104,039.46.

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Plaintiff argues that it has complied with all the statutory requirements for a foreclosure and is seeking to proceed on its foreclosure of Locus. Defendant does not challenge any of the statutory requirements for the Tax Taking except one, and argues that Plaintiff has made an incorrect classification of Locus and as a result the Tax Taking was invalid. [Note 2]

G. L. c. 59, § 59, states as follows:

A person upon whom a tax has been assessed . . . if aggrieved by such tax . . . may, on or before the last day for payment . . . apply in writing to the assessors . . . for an abatement thereof, and if they find him taxed at more than his just proportion or upon an improper classification . . . they shall make a reasonable abatement. (emphasis supplied).

In the case at bar, Plaintiff has classified Locus as “potentially buildable,” and has taxed it as such. Defendant argues that this classification is incorrect, because Locus is not buildable without a variance or a special permit, which Plaintiff has repeatedly denied. Defendant argues that Plaintiff can’t have it both ways, and should either make Locus a buildable lot by granting zoning relief, or reduce the classification to nonbuildable and tax it as such.

Plaintiff argues that the abatement process is the exclusive remedy for challenging overvaluation or improper assessment. See Macioci v. Comm’r of Revenue, 398 Mass. 591 , 600 (1986) (“for any injuries suffered because of improper assessments of taxes due to unlawful use classification, the plaintiffs’ remedies were administrative. [See G. L. c. 59, s 59]”); Codman v. Ass’rs of Westwood, 309 Mass. 433 , 435-36 (1941) (“[i]t has been frequently decided by this court that the exclusive remedy for the abatement of an excessive tax due to overvaluation is the filing of an application for abatement with the board of assessors . . . The remedy that the law provided for [the taxpayer’s] benefit was inexpensive, direct and adequate. He could not refuse to accept this remedy and select another proceeding to secure an abatement.”). Plaintiff also points out that the courts have strictly construed the statutory time limit for filing an abatement. See Old Colony Railroad v. Ass’rs of Quincy, 305 Mass. 509 , 511-12 (1940) (“the time within which the application is to be made is not a mere matter of limitation but is an integral part of the right [to seek an abatement], and the failure to apply within the prescribed time destroys the right.”); Canron, Inc. v. Board of Ass’rs of Everett, 366 Mass. 634 , 637 (1975) In the case at bar, Defendant has owned Locus for eighteen years and has never paid any real estate taxes. Defendant has also never applied for an abatement of such taxes. Defendant applied for zoning relief in 1992, which was denied, and did not apply for zoning relief again until 2007, fifteen years later. G. L. c. 59, § 59 places the burden on the person to whom the tax has been assessed to properly challenge the imposition of the tax. Defendant has not done so. In arguing that an abatement is not the proper challenge to improper classification of Locus, Defendant also ignores the language in the statute, as discussed, supra.

As a result of the foregoing, I find that the Tax Taking was valid. I ALLOW Plaintiff’s Motion for Summary Judgment.

Judgment shall enter pending a final review by this court of Plaintiff’s Motion for Judgment of Foreclosure.

Alexander H. Sands, III

Justice

Dated: October 27, 2010