Nearis v. City of Gloucester
| Citation | 357 Mass. 203,257 N.E.2d 467 |
| Parties | Merrill B. NEARIS, trustee, v. CITY OF GLOUCESTER et al. |
| Decision Date | 07 April 1970 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Merrill B. Nearis, pro se.
David B. Gardner, City Sol., for defendants.
Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.
This is a bill for declaratory and injunctive relief against the defendants' collection of 1967 real estate taxes on the plaintiff's property. The defendants filed a demurrer, which included as one of its grounds that the plaintiff had an 'exclusive and adequate remedy' under the abatement provisions of G.L. c. 59. The demurrer was sustained and the plaintiff appealed.
The averments in this diffuse and artlessly drawn bill are as follows. The plaintiff states that he owns two parcels of real estate in Gloucester at 63 and 65 Atlantic Road, respectively. The taxes on the property for 1967 were $1,454 and $1,675. These taxes were based on a city-wide revaluation of property done in 1966 and 1967 by a firm of appraisers hired for that purpose. The Appellate Tax Board (board) has determined that these appraisers were not qualified to evaluate or appraise real estate in Gloucester and the taxes based on their assessments are illegal. 1 On June 8, 1968, the plaintiff sent a letter to city officials 2 stating his conclusion that the taxes were 'computed * * * by a person unqualified to determine taxes on real estate in Gloucester,' and requesting that a 'qualified person * * * determine * * * the taxes.' He also requested that the city suspend its action to collect the 1967 taxes, pending this redetermination. Within thirty days after such redetermination he stood ready to 'tender full payment' of the taxes so established. On July 19, 1968, the plaintiff received a notice of the initiation of proceedings by the city for the collection of taxes. The plaintiff has appealed the assessment on one of the parcels (65 Atlantic Road) to the board. As to the other parcel (63 Atlantic Road) the plaintiff 'secured the property * * * after the time of (a)ppeal to the Appellate Tax Board expired.' The bill contained, inter alia, prayers for an injunction (pending a hearing on the merits) against the city from collecting the taxes, for a declaration that the 1967 taxes were void because not legally determined, and for 'no less than $5,000.00 for the prosecution of this * * * (bill).'
Our decisions make clear that, absent extraordinary circumstances, the abatement procedure provided in G.L. c. 59, § 59, is the exclusive remedy for excessive assessment. Choate v. Assessors of Boston, 304 Mass. 298, 301, 23 N.E.2d 882. Codman v. Assessors of Westwood, 309 Mass. 433, 436--437, 35 N.E.2d 262. Bettigole v. Assessors of Springield, 343 Mass. 223, 178 N.E.2d 10. In exceptional cases, however, such as those described in the Bettigole case, extraordinary relief, apart from the...
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...203 N.E.2d 811 (1965). Since that decision we have continued to confine alternative remedies within narrow limits. Nearis v. Gloucester, 357 Mass. 203, 257 N.E.2d 467, cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970) (injunction). Sears, Roebuck & Co. v. Somerville, 363 Mass.......
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...v. Abrams, 322 Mass. 201, 203, 76 N.E.2d 666, 667 (1948). See Stow, supra, 336 Mass. at 342, 145 N.E.2d 720. Cf. Nearis v. Gloucester, 357 Mass. 203, 257 N.E.2d 467 (1970). And where a judge at the trial level has confined himself artificially to the pleading--has acted on the basis of word......
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