TLC 75823

March 9, 1990

Essex, ss.



The city of Lynn filed a complaint on June 12, 1985 to foreclose the taxpayers' right of redemption affecting the premises at 80-82 Rockaway in said city for failure to pay the unpaid 1981 taxes for which the premises had been taken on July 30, 1984 by instrument of even date recorded on August 6, 1984 with Essex South District Deeds in Book 7486, Page 133 to which Deeds recording references herein refer. There has since been added to the tax title account a lien for the demolition of the building on the premises including as well as 1982, 1983 and 1986 to 1989, inclusive real estate taxes. Real estate taxes for the years 1984 and 1985 have been paid.

The dispute between the parties centers on the propriety of the action of the Lynn City Council in ordering the building on the premises to be demolished with a lien therefore having thereafter been filed with said Deeds. Pursuant to the provisions of G.L. c. 139, §3A the paper trail of this proceeding is somewhat obscure with a recent plethora of activity, and to make the matter easier to understand I will discuss it at this point in my decision. As I have stated, the City's complaint was filed on June 12, 1985, and the City assented to the late filing by the defendant of the answer in which the defendant Alfred R. Razzaboni alleged that he was one of the owners of the equity and claimed the right to redeem. Thereafter on February 9, 1990 the date of the trial the defendant sought to amend his answer by adding a paragraph seven to amend the answer by adding a paragraph claiming that the plaintiff was barred by laches, but I deny the motion to amend since it was unseasonable and in any event inappropriate in a tax title proceeding. On December 15, 1987 the defendant filed a counterclaim, but it was not marked up until the date of the trial. The plaintiffs denied each and every allegation set forth in the counterclaim. The counterclaim in effect alleges that the demolition by the City of Lynn without affording the plaintiffs an opportunity to have demolished the building or to appeal the order in accordance with the provisions of G.L. c. 139, §1 was in violation of the law. Subsequently at the trial the defendant sought to amend the counterclaim by alleging that the vote of the City Council was at a closed meeting which the defendants were not allowed to attend, that the statute of limitations had been tolled and that in seeking to have the Court issue an order annulling the demolition order and awarding judgment against the City for the fair net value of the dwelling at the time of the demolition. The City objected to the allowance of the motion to amend on the ground that the open meeting law had been complied with. The City also moved to dismiss the counterclaim on the ground that this Court was without jurisdiction under G.L. c. 258, §3, that the presentment notice required by G.L. c. 258, §4 was not given to the Mayor and that the defendant had failed to state a claim against the City. The City did not allege that a statute of limitations had not been complied with so far as G.L. c. 258 is concerned. I have allowed each motion to amend, but I deny the motion to dismiss since it appears to me that this matter should be decided on the merits. I also deny the motion for a directed verdict.

A trial was held at the Land Court on February 9, 1990 at which the proceedings were electronically transcribed. The witnesses who testified were Francis A. Calnan, the Deputy Building Commissioner of the City of Lynn and one of the defendants, Alfred R. Razzaboni. Mr. Razzaboni is a school teacher in Lynn and an elected assessor in the Town of Wakefield. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows:

1. The building at 80-82 Rockaway had been damaged by a fire, and a building permit was issued to the defendant dated July 8, 1975 to make certain repairs to the property. In fact, the defendant over the years proceeded to make certain repars which from 1975 to 1980 equalled approximately $5,000.

2. The repairs were insufficient to satisfy complaints, and so in October of 1979 Mr. Calnan wrote to Mr. Razzaboni a letter dated October 22, 1979 (Exhibit No. 1) in which he spelled out the defects in the property after an inspection made by him or his department. The notice specified that the building immediately was to be made safe by restoring it to a safe and sound condition or the addressee was to demolish the structure pursuant to the provisions of G.L. c. 143, §69 to which the letter refers. The owner was given until noon of the day following service to begin the work.

3. The building department, not being satisfied that the notice had been complied with, filed a complaint in the Lynn District Court alleging a failure to comply with the Building Inspector's order and a continuing violation (Exhibit No. 2).

4. Thereafter the Building Inspector notified the City Council by letter dated March 4, 1980 (Exhibit No. 4) that a court complaint was being pursued against the owner and that the left side stairway was deteriorated and unsafe, the rear stairway was damaged and most of the structure thereof removed and the house was located directly adjacent to two public ways.

5. Thereafter the defendant proceeded to make certain repairs to the property as set forth in his letter of April 13, 1980 to Mr. Calnan, and pursuant to his representations, the pending action in the District Court was dismissed by the Commonwealth (Exhibits Nos. 2 and 5).

6. The City Council proceedings, however, continued despite the resolution of the court action. [Note 1] On March 4, 1980 a public hearing was opened on the demolition. No one appeared in favor of the demolition, and Mr. Razzaboni appeared in opposition. Thereafter the hearing was declared closed, the building department report was received and one of the councilors moved to table the prayer of the petition for thirty days.

7. Then at the meeting of the City Council on August 12, 1980 Mr. Tucker, one of the councilors, moved that the matter be removed from the table, and it was voted that the building be demolished, an emergency first having been declared (Exhibit Nos. 7A and 7B). The defendant did not attend the meeting. It is not clear whether any notice was given to him of the action which the City Council planned to take, but no record of any notice was introduced. Thereafter a motion to reconsider was made by Mr. Tucker, the defendant wrote to all the councilmen and furnished them with the figures detailing the amount he had spent on the building. However, at the Council meeting on September 2 Mr. Tucker withdrew the motion for reconsideration (Exhibit No. 12) and on September 15, 1980 each of the defendants was notified (Exhibit Nos. 13A, 13B and 13C). The City Clerk notified that the council had voted nine to two to have the building demolished. While the City Council was taking this action, a building permit was still in effect which was issued on May 22, 1980, and the defendant was proceeding to do the work required by the building department. He did not, however, after he received notice of the action of the City Council in August and September of 1980 proceed in the Superior Court for a judicial determination as to the validity of the action of the City Council pursuant to the provisions of G.L. c. 139, §2. Rather he resorted to correspondence with the members of the council relative to the work which he had done on the property, but both as a school teacher and as a member of the Board of Assessors in another community he should have realized the likelihood of success of this approach was small. He did nothing judicially to attack the council's order between September and February when it was executed. It was only when the City sought to foreclose in the present proceeding that he attacked the validity of the demolition lien.

It is possible, however, to separate the recovery of damages for the loss of the building from the requirement that the taxpayer pay the charges for the demolition of the building. See City of Boston v. Mescarella, Tax Lien Case No. 64709. In the present action the Building Inspector initially informed the defendant, as distinguished from the situation in Worcester v. Eisenbeiser, 7 Mass. App. Ct. 345 (1979) that he had the election to demolish the building himself if the repairs were not made, but the City Council which proceeded on a separate course rather than considering resolution of the prior complaint in the District Court neither so advised Mr. Razzaboni in the notice given by the City Clerk nor called to his attention the possibility of relief in a judicial forum. Therefore I find and rule that the lien for which provision is made in G.L. c. 139, §3A is invalid both because the channels for relief were not stated but more importantly the work requested by the Building Department was being carried on pursuant to an existing building permit, and the Council knew it. I further find and rule that Razzaboni should not be required to reimburse the City for what appears to have been a wrongful act on its part.

The defendants' right to recover against the City, however, it another matter. It is regrettable that the claims of the defendant were not seasonably brought to court where in a forum having jurisdiction this matter might have been tried. It is now nine years since the demolition occurred and the memory of the witnesses is dim. While the City did not plead the statute of limitations which had expired before the counterclaim was filed, the City has moved to dismiss for failure by the defendants to present their claim to the Mayor G.L. c. 2 & 8 §4, and this count is vulnerable thereon as well as on the choice of forum. I need not decide whether service on the City's Tax Attorney is sufficient under section 6 since I disallow the claim against the City on other grounds.

On all the evidence therefore I find and rule that the City's lien for the demolition charge cannot be supported and that it in the interest attributable thereto must be stricken from the tax title account.

I further find and rule that the defendants may redeem upon payment to the City on or before April 30, 1990 of a sum equal to the real estate taxes for fiscal 1981 to 1983 inclusive and 1986 to 1989 inclusive together with all interest allowed by statute thereon from the due date to date of payment and court costs. If the parties cannot agree as to the amount, the Court will schedule a hearing on that issue only.

The City's motion for attorney's fees is denied.

Finally the City filed requests for findings of fact and rulings of law which I have not acted upon as I have made my own.

Judgment accordingly.


[Note 1] Notice (Exhibit No. 6) dated February 12, 1980 was given by the clerk to Mr. and Mrs. Razzaboni to the effect that on March 4, 1980 there would be a hearing upon the petition of the Lynn City Council "to demolish the building at 18 Rockaway Street, Lynn, MA. as it is declared a dangerous building under Chapter 139 Ma. G.L. relating to burnt and dangerous buildings" (Exhibit No. 9). Service was made at the last and usual abode of each of the two defendants.