Home R.A. CARYE & another, trustee, [Note 1] vs. BOARD OF ASSESSORS OF CHELMSFORD.

394 Mass. 1001

February 7, 1985

Taxation, Real estate tax: value.

The case was submitted on briefs.

Joseph F. Dalton & Albert S. Conlon for the defendant.

Nathan T. Wolk for the plaintiffs.

The board of assessors of Chelmsford (assessors) appeals from a decision of the Appellate Tax Board (board) granting real estate tax abatements to the trustees of the Carex Realty Trust (taxpayer) for the fiscal years 1980, 1981, and 1982. The assessors contend that the board erred in using actual rents in determining the market value of the taxpayer's shopping mall. We disagree. As long as actual rents adequately reflect earning capacity, the board's use of actual rents is an acceptable method of valuation. See, e.g., Fox Ridge Assocs. v. Assessors of Marshfield, 392 Mass. 652 , 654 (1984); Community Dev. Co. v. Assessors of Gardner, 377 Mass. 351 (1979). See also Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60 , 64 (1941). Moreover, there is substantial evidence in the record before us to support the board's conclusion that actual rents are an adequate measure of the earning capacity of the real estate at issue here. See New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456 , 467 (1981). The taxpayer presented a study of "comparable rentals of properties in other shopping centers," and this study was clearly "such evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 466, quoting from G. L. c. 30A, Section 1 (6).

The decision of the Appellate Tax Board is affirmed.

So ordered.


[Note 1] The other plaintiff is Julian Cohen. Both plaintiffs are trustees of the Carex Realty Trust.


394 Mass. 1001

March 11, 1985

Anne McNobb Pavilonis, pro se.

Charles E. Walker, Jr., Assistant Attorney General, for the Commonwealth.

The genesis of this appeal is a series of complaints filed over four years ago in the State and Federal courts in which the plaintiff challenged a final decision of the State Advisory Commission (SAC) of the Department of Education which denied her request for home-tutoring placement for her son's special education needs. There followed a battery of abortive actions by the plaintiff acting pro se, including an unsuccessful attempt to intervene

Page 1002

in the Boston school desegregation case (Morgan v. McKeigue, No. 72-911 [D. Mass.]) and an equally unsuccessful attempt to enjoin the Commonwealth's Attorney General from rendering an opinion on the matter.

Finally, the plaintiff filed an "amended complaint by way of mandamus" in which she recites the sundry grievances which she has allegedly suffered since 1973. This complaint was successfully met by a motion to dismiss under Mass. R. Civ. P. 12 (b) (1), (6), (7), 365 Mass. 754 (1974), and rule 8(a), 365 Mass. 749 (1974), the principal thrust of which is the failure of the plaintiff of file a petition for review within thirty days after receipt of the final decision of SAC, a requirement of G. L. c. 30A, Section 14 (1). The plaintiff then countered with a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974). Upon the denial of this motion, she filed a complaint under G. L. c. 211, Section 3, and relief was denied by a single justice of this court. There was no error.

The case is wholly inappropriate for relief under G. L. c. 211, Section 3. The single justice was correct in ruling that the "plaintiff may not use G. L. c. 211, Sec. 3 to avoid following the rules of appellate procedure." She was required to appeal the denial of relief from the dismissal of her complaint. She failed to do so.

So ordered.