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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I purchase a home in massachusetts in October 2005. It is in

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I purchase a home in massachusetts in October 2005. It is in a residential zone, but was a business when I bought it as a non-conforming use. Prior to my purchase I was awarded a business license by the town in July, 2005. They never sent a physical license, nor can they produce a copy. I did not renew it as I did not know it expired, nor was I every notified that it would/had expired. I have paid part residential and part commercial property taxes on the property since I bought it. In April 2007 I opened a website to sell some items that had been bought for the store, but because of the expense of renovating the home I was unable to open the physical store. The website has been continuous since 2007. I tried to open the physical store in 2012 and was denied by the zoning enforcement officer stating that the bylaw said that if a non-conforming use was not used for 2 years or more it was no longer valid. I appealed the decision of the zoning enforcement officer to the ZBA. I lost with a 3-2 vote in my favor as it needed a 4-1 vote to win. I am in the process of appealing to Superior court in mass to overturn the ZBA ruling. My question is, the $16,000 in excess business property taxes that I paid, would I be able to recover any of that? I did not ask for an abaitment for any of that money as I thought I was a business. Now that they are saying I was not, how is it legal that they have both, keep my money for being a business and then not letting me open the store saying I was not a business?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If you are unable to overturn the zoning board vote in Superior Court, and being charged for commercial zone property taxes would be part of your evidence in your favor, and if the court upholds the board's determination, then you would be entitled to a recalculation of your taxes paid based on commercial and have them paid as residential for that time period. The town cannot have it both ways and tax you as commercial (or partial commercial) and deny you commercial use. Thus, they would have to recalculate your taxes if the Superior Court does not vacate the board ruling.

In your suit to vacate the board ruling, as part of your causes of action and prayer for relief, since you can make alternative claims, you need to state that should the court find the board's vote is proper and you cannot use the property for commercial use, then you are seeking a recalculation of the taxes paid at the commercial rate for property they claim is not available for commercial use. The rules of court allow you to make alternative claims in the same suit and for judicial economy and for your litigation economy (instead of having to file a second suit) you would raise this as an alternative in your suit to vacate the board decision.

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Customer: replied 3 years ago.

can an amendment be made to the suit that is currently pending to include the recalculation of the property tax? the suit was filed june 2012 and we are still waiting for a court date.

Thank you for you response.

If the other party has answered the suit already, you need either their written agreement to modify the complaint or you would have to file a motion for leave to amend the suit in the superior court and get their permission to amend and you would have to attach your proposed amended complaint to your motion.
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