TOWN OF SALISBURY v. JOYCE TOMASELLI and GRACEMARIE TOMASELLI

The Plaintiff, Town of Salisbury (“Salisbury”), brought this action on March 14, 2006, under G. L. c. 60 § 65, to foreclose the right of redemption of the Defendants, Joyce and Gracemarie Tomaselli (“Tomasellis”) whose real property in the Town had been taken by it for nonpayment of taxes and other municipal charges and assessments. On or about March 24, 2009, Salisbury requested that this Court issue a finding in the amount of $150,950.74 for unpaid taxes, interest on unpaid taxes, and fees on the tax title account. As of April 9, 2010, when Salisbury filed its response to the Tomasellis’ motion for relief, the Tomasellis owed $160,797.07 according to town tax title account statements, $14,478.88 for property at 113 North End Boulevard, Salisbury, Massachusetts and $146,318.19 for 115 North End Boulevard, Salisbury, Massachusetts. The amounts due reflect overdue payments on the Tomasellis’ real estate taxes, sewer betterment assessments, and sewer user fees going back to 1993, plus interest accruals. The Tomasellis mount a variety of claims: that they are entitled to judgment in their favor because they are bona fide purchasers and thus are not liable for the sewer betterment charges; that the sewer betterments are void; and the tax title and tax title accounts are void.

Defendants brought a motion for partial summary judgment that: (1) the subject property is vested in the Tomasellis alone; (2) the Town of Salisbury has no encumbrance and ought be enjoined from asserting a claim for any debts due prior to judgment; (3) mandating that Salisbury properly classify their property, and (4) mandating that Salisbury adjust sewer user fees. Defendants also moved for a partial summary judgment declaring that the sewer user fees were excessive, that they are entitled to reimbursement of the excess charged including interest, and to determine what, if any, amounts remain due and payable at a further hearing.

The Plaintiff Town of Salisbury brought a cross motion for summary judgment. The municipality contends that the Defendants did not exhaust administrative remedies with respect to sewer user fees and sewer betterments, that the Defendants are precluded from raising the validity of betterments because of a prior Superior Court decision, [Note 1] and that the town's tax taking instrument and tax title accounts are valid. In opposition to Salisbury’s cross motion for summary judgment, the Tomasellis argue that, in addition to seeking an abatement, they also may request relief from the betterment assessments, which they call an illegal tax, pursuant to G. L. c. 60, § 98, which they claim may be raised as a defense to foreclosure proceedings under G. L. c. 60, § 65, without having previously paid the challenged tax, or having filed a separate action in Superior Court. Salisbury counters that this line of defense raised by the Defendants is not applicable here, because the Defendants have property within the town of Salisbury which indisputably is taxable, because they have failed to stay current on their real estate taxes, and because at most the betterment is an excess tax, for which abatement is the exclusive remedy.

On February 25, 2009, I held a tax lien hearing and hearing on Salisbury’s motion for legal fees, at which I ordered Salisbury to submit a full accounting report detailing the computation of taxes, fees, costs, and charges asserted by the town. A hearing on Salisbury’s motion for legal fees and for a finding then was heard on June 9, 2009; Salisbury was ordered to serve a reply addressing new issues raised by the Tomasellis. At a second hearing on Salisbury’s motion for relief on April 13, 2010, I instructed counsel to confer and determine whether issues could be resolved by dispositive motion or whether trial was necessary. The Tomasellis filed a motion for summary judgment and the Town filed a cross motion for summary judgment. Both motions were accompanied by statements of undisputed facts, see Land Court Rule 4, and affidavits. I held a hearing on the motions for summary judgment. I now rule on the cross motions and decide the case.

Facts

The following material facts are established by materials properly within the Mass. R. Civ. P. 56 record, and are undisputed. [Note 2]

1. Joyce and Gracemarie Tomaselli, sisters, purchased the property located at 103 and 105 North End Boulevard, Salisbury, Massachusetts, (now 113 and 115 North End Boulevard) (“Property”), listed as Parcel 33-049 and Parcel 33-050 in the Assessor's Records, from Family Bank on March 7, 1991, in a deed recorded at the Essex (South District) Registry of Deeds (“Registry”) at Book 10726, Page 242 and filed for registration with this court’s Essex (South) Land Registration District (“District”) as Document No. 260732 . [Note 3]

2. Parcel 33-049 is a vacant lot; Parcel 33-050 contains a mixed use structure with a residential apartment unit and restaurant space, but has been used solely as a single family residence since January 1, 1995.

3. On March 13, 1991 the Town issued a Municipal Lien Certificate (“MLC #36") to Family Bank's closing attorney reflecting that the 1990 and 1991 taxes on 105 North End Boulevard were paid in full; MLC #36 did not reflect any current or pending sewer assessments, betterments, or user fees outstanding.

4. Also on March 13, 1991, a transfer certificate of title (No. 60856) was issued by the District to Joyce and Gracemarie Tomaselli for two of the parcels (No. 1/ lot 50 and 2/lot 51). There were no encumbrances reflected on the certificate of title, with the exception of a mortgage granted to the Family Mutual Savings Bank (registered that same day).

5. On October 30, 1991, the Tomasellis moved into the second floor of the Property. They opened Mangia-a-Café Restaurant, a 28-seat Italian restaurant with a beer and wine license on September 12, 1992. The restaurant occupied the first floor of the Property.

6. The Tomasellis received a sewer bill dated September 2, 1991 which included two additional line item charges “Capital cost recovery/betterment FY91” subtitled “FY91 Parcel Portion @ $171.92” and “Capital cost recovery/betterment FY91” subtitled “FY91 EQR Portion @ $229.23” calculated at 8.6 Equivalent Residential Usages (“EQRs”), up from four EQRs the previous year. The bill also reflected a “User Fee Credit FY91” of $1,038 and a retroactive reasssessment for July 1, 1990 through June 30, 1991 at a rate of $173.05 for 8.6 EQRs, resulting in a balance of $450.23. The balance eventually appeared as a sewer user lien on the Tomasellis' 1993 Real Estate Tax bill.

7. The Salisbury Town Sewer Commissioners and Selectmen voted for a $7,800,000 betterment on March 16, 1992.

8. The Tomasellis' Fiscal Year 1992 fourth quarter tax bill included special assessments–a sewer betterment for $630.46, and their Fiscal Year 1993 third quarter tax bill included a total of $2,047.73 due for special assessments: $450.23 for sewer-user charges, $630.54 for sewer betterment, and $966.96 for sewer interest.

9. In January 1993, Gracemarie called the Sewer Commissioners' office and after the conversation came to believe that the Tomasellis would be billed for the betterment over a twenty-year period, with interest.

10. On December 3, 1993, Salisbury took title to lot 33-050 by an instrument of tax taking in the name of Rivera, Carlene Tr./c/o Essex Holdings, Inc., for Fiscal Year 1991 taxes for Lot 33-050 in the amount of $1,862.00. The taking instrument was recorded on January 27, 1994, at the Southern Registry District of Essex County at Book 12401, Page 119. Release of the taking instrument was recorded in June 2009.

11. On January 3, 1994, the day after they paid for their 1994 beer and wine license, the Tomasellis spoke with the Salisbury Tax Collector, Sid Pike. It was then the Tomasellis’ understanding that they owed $19,424.52 for taxes, including sewer charges.

12. On December 30, 1994, Gracemarie called Mr. Pike to pick up a 1995 beer and wine license. Afterwards the Tomasellis believed they needed pay $19,016.63 in outstanding taxes by 1pm the same day in order to obtain their license.

13. The Tomasellis did not pay their outstanding taxes in full, and therefore did not receive their 1995 beer and wine license; the Tomasellis closed the restaurant on December 31, 1994, and have not reopened the restaurant since.

14. The Tomasellis requested reconsideration of their withheld license at a Board of Selectmen’s Meeting on January 9, 1995; their request was denied.

15. The Tomasellis received a Notice of Advertising dated October 30, 1995, that reflected the Town was intending to take the Property for outstanding Fiscal Years 1993 and 1994 taxes; the taking was never recorded.

16. Family Bank initiated foreclosure proceedings in 1999 because the Tomasellis were not current on their taxes. [Note 4]

17. On August 5, 1999, the Tomasellis entered into an agreement with Family Bank's attorney that in consideration of Joyce Tomaselli not filing bankruptcy, the bank would drop the current foreclosure action. It was also part of the agreement that the Tomasellis would pay their outstanding 1996-1999 real estate taxes; a payment of $7,240.58 was later made and applied to real estate taxes only. The bankruptcy was dismissed in 1999.

18. The Tomasellis received two Notices of Advertising (one for each lot) on June 22, 2000, reflecting that the town intended to take the property for unpaid taxes after fourteen days.

19. On October 12, 2000, the Tomasellis sent a letter to the Department of Public Works requesting an abatement; they did not supplement their request with an abatement application.

20. Later in the month, on October 30, 2000, Collector Fran Cloutier proposed an agreement to the Tomasellis to grant an abatement in exchange for their payment of a total of $5,229.33 for taxes outstanding for fiscal years 1992-2000; the Tomasellis did not enter into the agreement and did not receive an abatement. [Note 5]

21. The Tomasellis filed a complaint in Superior Court challenging Salisbury's denial of their license renewal based on failure to pay sewer betterments. Tomaselli v. Family Bank, Essex Superior Court, C.A. No. 97-0481 (August 15, 2001), affirmed 57 Mass. App. Ct. 1116 (2003).

22. The Tomasellis’ complaint alleged that the Town:

a. failed properly to record or publicly disclose to all purchasers of property the approved betterment charges;

b. improperly calculated the sewer-user charges and then refused to apply the reduced sewer-user fee for the years prior to 1994 despite a recalculation by the Department of Public Works; and

c. improperly revoked the Alcoholic Beverage license, without notice or hearing, and then subsequently refused to re-issue the license. Id.

23. In 2000, the Superior Court granted a directed verdict in favor of Salisbury and dismissed counts for breach of duty and violation of G. L. c. 93A, “because the Tomasellis failed to exhaust their administrative remedies and a municipality is not subject to the provisions of G. L. c. 93A.” Id.

24. The Superior Court also dismissed the count for wrongful termination of the Alcoholic Beverages licenses “on the grounds that G. L. c. 258, § 10 does not allow recovery for any claim based on the issuance, denial, suspension or revocation or failure or refusal to issue any license.” Id.

25. The Tomasellis appealed and the Appeals Court affirmed the Superior Court decision, stating that there was no indication the Tomasellis had exhausted available state remedies, and that the Tomasellis were attempting to assert a new theory on appeal. Tomaselli v. Salisbury, 57 Mass. App. Ct. 1116 (affirming Superior Court); Tomaselli v. Salisbury, Mass. App. Ct. No. 01-P-1136 (April 7, 2003) (Rule 1: 28 decision).

26. Salisbury sent Notices of Advertising for Lots 33-050 and 33-049 to the Tomasellis on June 2, 2000.

27. On October 30, 2000, the Tomasellis received a letter from the Tax Collector proposing a Final Agreement and indicating authorization by Mr. Pike for an abatement including as to sewer related liens; the Tomasellis did not enter into the agreement.

28. Salisbury published a notice of tax taking against the Property on March 27, 2001, in “The Daily News” in Newburyport, Massachusetts.

29. Fourteen days later, on April 9, 2001, Salisbury commenced tax takings for $4,351.62 (Lot 33-049) and for $45,763.28 (Lot 33-050). The tax takings were recorded on May 7, 2001 in the Registry at Book 17154, Pages 366-69 and registered by the District as Documents numbers 380638 and 380639.

30. The Tomasellis filed their first formal application for abatement of betterment tax on July 31, 2001, stating that the Municipal Lien Certificates they obtained at the time they took title did not show any liens on the Property, that a title search at the Registry of Deeds did not show any liens or encumbrances on the Property, and and asserting that Massachusetts law requires betterments to be recorded. The bottom of the application form read “The filing of this application does not stay the collection of your tax. It should be paid as assessed. Refund will follow if abatement is allowed.”

31. On October 17, 2001, the Board of Sewer Commissioners denied the application for failure to file a timely appeal, stating that applications for abatement must be filed within six months of the date of notice of betterment assessment. The denial did not list the date of betterment commitment or the date of expiration for the time to file. The Tomasellis did not appeal the denial decision.

32. The Tomasellis sent an application for adjustment of sewer-user fees to the Department of Public Works on February 22, 2004, on grounds that the charges were incorrect and excessive taxes, and that the EQR method of assessment was in conflict with the Salisbury Sewer Rules and Regulations and in violation of a town vote mandating calculation based on actual water consumption. The Department denied the request on March 27, 2004.

33. The Tomasellis sent a second application for adjustment of sewer-user fees based on actual water usage to Department of Public Works Director, Donald Levesque, on February 22, 2005. Their second request was denied on February 28, 2005.

34. The Tomasellis filed their second application for abatement of betterment tax for Parcels 30-049 and 30-050 on April 22, 2005, arguing that the $7,800,000.00 betterment was a void tax because it had been paid in full by government funds including, EPA, DEP, and USDA Farmers Home grants, and because it was not recorded. On May 9, 2005, the Tomasellis received notice that their application had been denied for failure to file within 6 months of notice of assessment. The “Betterment Commitment Date” was listed on the notice as July 6, 1991.

35. On May 31, 2005, the Tomasellis filed a petition under formal procedure with the Appellate Tax Board (“ATB”), pursuant to G. L. c. 58A, § 7, appealing Salisbury's refusal to abate the assessed tax and to grant relief of what they characterized as “incorrect and excessive and improperly calculated sewer user charges and also Sewer Special Assessments Betterment” for the fiscal year 2005.

36. The ATB held a hearing on February 1, 2006; on July 17, 2007, the ATB promulgated its Finding of Facts and Report, in which it ruled that it had no jurisdiction over the appeal because:

a. “the Board has no jurisdiction over appeals of betterment assessments;

b. any purported appeal of the betterment was filed well beyond the statute of limitations;

c. 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.” Tomaselli v. Bd. of Assessors of Salisbury, Appellate Tax Board, No. F278864 (July 17, 2007).

37. Additionally, the ATB found that, “[e]ven if the appellants' April 2005 abatement application could be considered a timely appeal of the sewer-use charge, the assessors produced substantial, credible evidence . . . to support a finding that the appellants' sewer-use charge was correct.” Id.

38. The ATB reasoned it did not have jurisdiction over appeals of abatement of betterment assessments because G. L. 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.” Id. (emphasis added).

39. The ATB further reasoned that the Tomasellis had filed their applications for abatement well after the statutory six-month period provided by G.L. c. 80, § 5. Id.

40. The ATB also ruled that appellants failed to comply with G. L. c. 83, § 16G, [Note 6] and therefore no abatement of the sewer-use charge was warranted. Id.

41. The Tomasellis appealed the ATB's decision to the Massachusetts Appeals Court. The Appeals Court affirmed in favor of Salisbury on April 9, 2009. Tomaselli v. Board of Assessors of Salisbury, 74 Mass. App. Ct. 1104 (2009).

42. The Appeals Court upheld the ATB’s ruling that “[t]he appellate route from the refusal to abate a betterment assessment is to the Superior Court pursuant to G. L. c. 80, § 7, or, pursuant to § 10, to the county commissioners.” Tomaselli v. Board of Assessors of Salisbury, Mass. App. Ct. No. 07-P-1656 (April 9, 2009).

43. The Appeals Court went on to say, “[t]o the extent that the Tomasellis are attempting to assert a separate claim, the remedy for assessment of an illegal tax is through an action at law pursuant to G. L. c. 60, § 98, and is subject to the requirements set forth in that section.” Id.

44. Finally, on the matter of sewer-user charges, the Appeals Court stated, “[t]he Tomasellis’ arguments fail on their merits . . . 45. The Tomasellis did not demonstrate that the method used by the town to calculate the charge was unlawful.” Id. The Tomasellis sought further appellate review from the Supreme Judicial Court (“SJC”), but their request was denied. Tomaselli v. Board of Assessors of Salisbury, 455 Mass. 1102 (September 30, 2009). They filed a motion for reconsideration with the SJC; the motion was denied on October 29, 2009.

46. On March 14, 2006, the Tomasellis received a copy of the town's Complaint to Foreclose Tax Lien dated February 22, 2006.

47. On March 19, 2009 the Salisbury Collector/Treasurer, Christine D. Caron, signed an affidavit that tax title account histories and statements are true copies of the Town of Salisbury records, and that the records accurately recite the amounts billed, payments made, and the application of those payments to tax title accounts.

Standard for Summary Judgment

Summary judgment is appropriate "where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644, (2002); See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716, (1991); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553, (1976); Mass. R. Civ. P. 56 (c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the nonmoving party. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970, (1982). The moving party has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 , 39 (2005). For any claim for which the moving party does not have the burden of proof at trial, the party may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communication Corp., 410 Mass. 805 , 809 (1991); Kourouvacilis, 410 Mass. at 716.

Analysis

This action was brought by the Town under G. L. c. 60, § 65, to foreclose the Tomasellis’ right of redemption to the Property. Given the posture of this case, to defeat Salisbury’s action for foreclosure, by dispositive motion or otherwise, the Tomasellis must successfully raise at least one of two defenses; the Tomasellis would need to argue that they are and were not responsible for paying the betterment because it is either an excessive tax or a void tax. They have made these arguments. However, because I find that based on the undisputed material facts, taking all inferences in favor of the Defendants, as matter of law the Tomasellis may not in the current tax foreclosure proceeding raise either defense, it is not necessary to address any of the other claims raised by both the Defendants and the Plaintiff. Summary Judgment is therefore to be granted in favor of the Town of Salisbury.

Remedy under c. 60, § 98

Generally, a party may use G. L. c. 60, § 98 to recover a void or illegal tax, only if the action is commenced within three months after payment of the tax. [Note 7] Ordinarily, this cause of action, required to be brought in the Superior Court, is to be commenced there as a separate proceeding within the time statutorily prescribed.

Our Supreme Judicial Court has, however, recognized a limited exception to this otherwise firm principle. In Norwood v. Norwood Civic Ass’n, the court found that the remedy provided for in G. L. c. 60, § 98, may in certain limited circumstances be asserted as a defense to foreclosure proceedings under G. L. c. 60, § 65. 340 Mass. 518 , 524 (1960). Under the exception outlined in Norwood, a party who has not paid the tax up front, and who has not already commenced a separate action under G. L. c. 60, § 98, may respond to foreclosure proceedings brought by the municipality by raising the defense, “in order to avoid circuity of action.” Id. If the party is able to establish facts demonstrating that the tax on which the foreclosure proceeding rests is wholly void, the tax is treated as eliminated from the tax title account, and the action for foreclosure of the resultant tax taking by definition cannot proceed. Id.

This judicially created exception, however, is painfully narrow, and strictly applied. It only is available in an instance where the illegality or void nature of the assessment is entire, and so renders the underlying tax wholly void. The Norwood exception was applied in that case where it was asserted that the real estate involved was unlawfully taxed because it was by statute fully exempt from taxation. The Norwood exception to the need to bring a separate and timely Superior Court action under section 98 does not exist where some of the tax amounts underlying the foreclosure are due, and others not. In addition, on similar reasoning, the exception is available only “[w]here a taxpayer owns in the town no real estate subject to taxation . . . .” Id. at 523. For if there is some real estate lawfully taxed to some degree in the municipality, the Land Court foreclosure proceeding cannot be used to adjudicate the validity or the amount of less than all the taxes due to the town. If the party assessed owns any taxable real estate in the municipality, or if any part of the tax assessed is legally due, the rule is that the claimed 'illegal tax' is to be treated as merely excessive; the exclusive remedy for an excessive tax is abatement under G. L. c. 59, § 59. Sears, Roebuck and Co. v. Somerville, 363 Mass. 756 , 757-58 (1973); Norwood, 340 Mass. at 523; Harron Communications Corp. v. Bourne, 40 Mass. App. Ct. 83 , 87 (1996). “It is immaterial whether there has been . . . the calculation of the tax upon a wrong or an inapplicable principle, or other invalidity, the statute afford ample means for obtaining relief and securing justice by a complaint for abatement.” Sears, Roebuck and Co., 363 Mass. at 757-758, n.3.

The Land Court lacks jurisdiction to grant abatements. This court’s power is only to hear actions for foreclosure, setting the terms for redemption. If this court were enabled to adjust the amounts of taxes assessed for which tax takings later were made and sought to be foreclosed, the court effectively would become an alternative forum for the abatement of tax and related lienable municipal charges, and the exclusive jurisdiction conferred upon the assessors and the Appellate Tax Board would be undone. While this court cannot permit a foreclosure to go to judgment where the full underlying tax or other lienable amount is wholly void, any other challenge--to the validity of part of the underlying amount, or to the fairness and accuracy of the valuation and method by which it was calculated–lies outside the Land Court’s authority to hear and decide.

Here, the Defendants may not raise G. L. c. 60, § 98 as a defense to foreclosure proceedings because they have neither satisfied the statutory requirements, nor qualified for the Norwood exception. The Defendants have not stayed current on their taxes and other committed amounts, and have not paid them, even under protest. The Norwood exception, allowing parties to raise the defense even when they have not paid taxes in protest, does not apply here because the Defendants have property in Salisbury which is without dispute subject to real estate taxes. Following the reasoning in both Norwood and Sears, Roebuck and Co., the betterment assessment and other charges relating to the sewer system, its installation, and its use, even if wholly void, were only one component the total tax bill, which was rounded out by valid and proper conventional municipal real estate tax amounts. The logic of those cases, which cabin in the availability of the Norwood exception, is that for it to be viable there must exist a scenario in which no tax amounts at all are valid and proper underlying the tax title account on which the taking was made. If this condition cannot be demonstrated, then the taxpayer’s challenge amounts, in law, to one that the total bill was excessive, rather than void or illegal. The dispute in this case must be treated as about the amount of the tax bill, not its lawful existence, and so the Tomasellis’ sole remedy was abatement pursuant to G. L. c. 59, § 59, making the section 98 defense unavailable in this court.

The Tomasellis have argued on summary judgment that although the Norwood exception generally applies only when a party has no taxable real estate in the town, the defense is nonetheless available to them because the betterment is an invalid reassessment for a project which previously had been assessed, before the Tomasellis purchased the property, and because they are bona fide purchasers. The Tomasellis do not provide any support for this proposition, nor is the court aware of any; the decisional law does not identify any exceptions to the requirement that a tax must be “wholly void” for a party to use the remedy in G. L. c. 60, § 98 as a defense to a tax foreclosure complaint. The court concludes that the Tomasellis cannot employ G. L. c. 60, § 98 as a defense to the current foreclosure proceeding.

The court in Sears, Roebuck and Co. stated, “[t]o allow a civil action to recover an excess tax would transfer to the courts a function which the Legislature has delegated to an administrative body. It would create the possibility of a multiplicity of civil actions to recover illegally assessed taxes, and it is entirely improbable that the Legislature intended any such result. It would allow a taxpayer to defeat the timing requirements of G. L. c. 59, § 59, and thereby thwart the intent of the Legislature in establishing them.” 363 Mass. at 758-59. The court said that “requiring a taxpayer to resort to the abatement remedy in no way deprives him of the judicial review of administrative action as provided by the Legislature under G. L. c. 58A, § 13.” Id. at 759. Here, the Tomasellis applied for abatement on two different occasions. The knew that that remedy was available to them. Although the Tomasellis were not successful in their efforts to obtain an abatement, they had the option of appealing to either the Superior Court or the county commissioners. The Tomasellis did not appeal the first denial and then unsuccessfully brought their appeal of the second denial to the ATB, and after that to the Appeals Court. The case before this court exeplifies the judicial concern about the need to adhere to statutory time frames for challenging tax and similar assessments. Allowing the Tomasellis to raise G. L. c. 60, § 98 as a defense to an excessive tax in this proceeding would undermine the Legislature’s intent in establishing timing requirements, as the current action came before the court over four years after the Tomasellis’ first application for abatement was denied.

Remedy under G. L. c. 59, § 59

The Tomasellis thus are limited to challenging the betterment assessment as an excessive tax pursuant to G. L. c. 59, § 59, which provides, “[a] person upon whom a tax has been assessed . . . if aggrieved by such tax, may, except as hereinafter otherwise provided, on or before the last day for payment . . . apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof . . . .” The Tomasellis submitted applications for abatements twice, once on July 31, 2001 and again on April 22, 2005. The municipal officials denied both applications, stating that the Tomasellis had failed to apply within six months of the date of notice of the betterment assessment. The Tomasellis have argued against the applicability of those timing requirements, contending that they did not have notice of the betterment, and so never had an opportunity to file a timely appeal. Whether or not that is the case, and much in the record suggest that it is not, this court does not have the jurisdiction to determine the merits of that argument.

Here, this court, like the ATB, does not have jurisdiction over the matter of municipally imposed betterment assessments, and consequently that issue may not be raised as a defense to proceedings under G. L. c. 60, § 65. The correct route of appeal for the Town's refusal to grant an abatement for the betterment was through either the Superior Court or the county commissioners, as outlined in G. L. c. 80, §§ 7, 10. [Note 8] If the Tomasellis believed that Salisbury’s denial of their application for abatement was incorrect, they had thirty days to file an appeal with either the superior court or the county commissioners. The Defendants did not pursue either of those options, and this court is powerless to consider the validity of the betterment assessments in the current action to foreclose the Tomasellis’ right of redemption.

Sewer-User Charges

The Tomasellis may not attempt to re-litigate the sewer-user charges in this court because the matter has been determined previously and finally by the ATB, and the Board’s decision has been affirmed by the Appeals Court. Tomaselli, Mass. App. Ct. No. 07-P-1656. The question of the user charges was properly within the jurisdiction of the ATB. It determined, however, that the Tomasellis did not file a timely appeal of those charges, and so the Board lacked jurisdiction to hear the appeal, which it dismissed. Id. The ATB also found, and the Appeals Court affirmed, that the town assessors produced “substantial, credible evidence” that the Tomasellis’ sewer-user charges were correct. Id. Finally, the Appeals Court concluded that the Tomasellis’ argument that the sewer-user charges were incorrect, failed on the merits. Id.

Conclusion

This court can only decide matters when empowered to do so by the General Court, and is bound to refuse a request to weigh in where to do so would cause the court to act without jurisdiction. The court concludes that the statutory and decisional law it must follow prevents the court from hearing and deciding the defensive claims advanced by the Tomasellis under G.L. c. 60, § 98. Controlling law keeps this court from addressing the Defendants’ attack on the underlying sewer betterment assessments, and requires the court to treat the assessed amounts as a given in overseeing the foreclosure of the Tomasellis’ rights of redemption from the Town’s tax taking.

That is not to say, however, that all of the arguments advanced by the defendants appear without basis. Although as a jurisdictional matter this court cannot make a decision on the merits of the betterment assessments which partially underlie the tax title, in some respects the Tomasellis have cast at least plausible doubt on the propriety of those assessments for betterments. There may be competing views of the chronology that unfolded here, but it does not seem that the Tomasellis are entirely off-base when they say that the Town failed to follow strictly the statutory steps controlling the recording of the order, plan, and estimate for the betterment within ninety days of adoption of the order, as set out in G. L. c. 80, § 2. [Note 9] It is unclear--and I cannot and specifically do not rule on the issue--whether, under G. L. c. 80, § 12, [Note 10] Salisbury failed to record the betterment in a way which might, with a proper and timely challenge, have had the effect of keeping a lien on the Property from arising. I do note however that, in a case presenting similar circumstances, the Appeals Court has dismissed taxpayers’ challenges (based on claimed failure to make and record the orders as required by G.L. c. 80, §§ 1 and 2) to the collection of assessed betterments. See California Village Corp. v. East Longmeadow, 4 Mass. App. Ct. 128 , 129 (1976), where the court observed that an assessment made for a betterment, “then committed to a collector of taxes, ... becomes in all respects a tax, and the collector has all of the powers and duties with respect to it that he has in the case of annual taxes on real estate.” “Ordinarily the remedy by abatement and by action to recover an unlawful tax afford ample protection to the taxpayer and are the exclusive remedies.” Id.

Ultimately, this court determines that the remedy of challenge by abatement, or by bringing a timely Superior Court action, was available to the Tomasellis, and was both adequate and required in this case. The Tomasellis had an obligation to follow the statutorily mandated abatement and appeals procedures. The Tomasellis were more than able to discern the basis for challenge so as to have pursued those other remedies, and cannot, as a late alternative to them, now be heard in this tax foreclosure case. The court is constrained to proceed with the foreclosure. That will require that the court set a new amount required for redemption in light of this Order, and to set appropriate terms for exercise of the right of redemption. The court will receive written submissions from the parties to enable it do that. It is

ORDERED that the Defendants’ motion for partial summary judgment is DENIED, and the Plaintiff’s motion for summary judgment is ALLOWED. It is further

ORDERED that the Town of Salisbury is to prepare, serve, and file within twenty-one days of the date of this Order, a renewed motion for finding, supplemented by a detailed and yet easily-understood final accounting of the amounts due as of the same date. In this submission, the Town also is to provide its views on the timing and other terms of redemption the court ought to direct. It is further

ORDERED that the Tomasellis shall, within fourteen days of service upon them of the Town’s filing, file and serve any objection or other response to the accounting supplied by the Town, and the Defendant’s view on the timing and other terms of redemption the court ought establish. The court will issue a finding thereafter, without further hearing unless otherwise ordered, see Land Court Rule 6.

So Ordered.

By the Court. (Piper, J).