# Macioci v. Commissioner of Revenue > Massachusetts Superior Court · November 6, 1981 · 2 Mass. Supp. 895 URL: https://www.frixlaw.com/law-library/cases/6464962 ## Case - **Full name:** Beatrice MACIOCI v. COMMISSIONER OF REVENUE, Defendants FITCHBURG GAS & ELECTRIC LIGHT CO.—81-19364 David C. DONAHUE—81-19424 James RIVER—MASSACHUSETTS INC.—81-19425 GENERAL ELECTRIC COMPANY—81-19426 James PAVLIN, TRUSTEE OF CYN-COR REALTY TRUST—81-19427 Bernard M. FREEMAN and Gerard F. BERUBE—81-19428 LITTON BUSINESS SYSTEMS, INC.—81-19429 Wallace MURRAY CORPORATION Simonds Cutting Tools Division 81-19430 James RIVER—FITCHBURG, INC. 81-19431 ROGERS of FITCHBURG, INC. 81-19432 v. CITY OF FITCHBURG - **Court:** Massachusetts Superior Court - **Decided:** November 6, 1981 - **Citations:** 2 Mass. Supp. 895 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Judges:** Iustice, Young - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6464962 ## Opinion text MEMORANDUM OR DECISION These cases together constitute the second test of taxation of property by a city pursuant to the “Classification Amendment” to the Constitution of the Commonwealth, part II, c.l, §1, art.4 of the Massachusetts Constitution, as amended by art. 112 of the Articles of Amendment, approved November 7, 1978. As the sequelae to the original controversy which, after a full opinion in the Superior Court, ultimately failed on appeal without reaching the merits directly due to a want of subject matter jurisdiction, Litton Business Systems, Inc. v. Commissioner of Revenue, Superior Court No. 44824, remanded for further hearing and thereupon dismissed, Litton Business Systems, Inc. v. Commissioner of Revenue, Mass. Adv. Sh. (1981) 1207, 1209, it is necessary, to sketch the prior proceedings in some detail in order to understand the present posture of the cases. *898 1. Prior Proceedings The original Litton action was commenced in,the Superior Court on October 21, 1980 alleging that the Commissioner of Revenue and the mayor, assessors, and city councillors of Fitchburg failed, to act in a timely matter with respect to certain determinations required of them under the state tax laws, failed to use available free cash to reduce the Fitchburg tax levy for fiscal year 1981, and, individually or in concert, failed to properly assess real property within the city of Fitchburg at 100% of full and fair cash value.so that the resulting classification of property, made pursuant to art. 112 of the amendments to the Massachusetts constitution (the “Classification Amendment”) and its enabling legislation, St. 1979, c. 797, was both statutorily invalid and unconstitutional. The case came before the Court upon a statement of agreed facts which amounted to a case stated, Frati v. Janninni, 226 Mass. 430, 431 (1917). (A)t oral argument in the Superior Court the defendant Commissioner sought to file a supplementary affidavit by the chief of the responsible bureau. Upon objection by the plaintiffs the Commissioner asked to be relieved of her assent to the statement of agreed facts as an improvident stipulation and requested an evidentiary hearing. The judge instead treated the affidavit as a judicial admission binding on the; Commissioner but not on the plaintiffs. Litton Business Systems, Inc. v. Commissioner of Revenue, Mass. Adv. Sh. (1981) at 1211-1212. In its written decision, the Superior Court held that, upon the agreed statement of facts, the Commissioner had acted arbitrarily in failing to follow her own guidelines and declared the tax classification of Fitchburg for fiscal year 1981 invalid. The Court further declared that “the remaining tax bills for real and personal property taxes due during fiscal year 1981 must be reduced to pass on to the taxpayers obligated to pay such bills the benefits of available free cash”. Superior Court Memorandum and Order, January 21, 1981. The Superior Court judge reported the propriety of his actions to the Appeals Court pursuant to Mass. R. Civ. P. 64. Having essentially lost in the Superior Court, the Commissioner and the city defendants repudiated the stipulation made in the statement of agreed facts and moved “to dismiss the action for lack of subject matter jurisdiction, filing supporting affidavits and certificates tending to show that the plaintiffs (contrary to what had earlier been admitted by the defendants) did not include ten ‘taxable inhabitants’ of the city, as required by G.L. c. 40, §53.” Litton, supra, at 1208-1209. Upon analysis, the Supreme Judicial Court, which had transferred the case to itself and ordered and expedited hearing, agreed and remanded the matter to the Superior Court for a hearing on whether certain of the plaintiffs were taxable inhabitants of the city. Further, the full Court, in effect, vacated the statement of agreed facts with the statement, “If we had not ordered the action dismissed, we would have relieved the commissioner of her assent to the statement of agreed facts and remanded the case for. and evidentiary hearing.” Litton, supra, at 1212. Finally, despite the lack of subject matter jurisdiction, the Supreme judicial Court declared that the Superior Court judge had correctly decided that “under St. 1979, c.151, §12A, free cash available on July 1, 1980, was to be used to reduce the tax levy for fiscal year 1981.” Ibid. While the skirmishing over subject matter jurisdiction was taking place in the Supreme Judicial Court, the plaintiffs in the Litton litigation and certain other individuals and corporations, all of them owners of commercial or industrial real property in the city of Fitchburg, commenced ten separate actions in the Worcester Superior Court pursuant to G.L.c. 60, §98, to recover the taxes they *899 had paid pursuant to the classification system implemented by Fitchburg for fiscal year 1981. Then, four days after the remand of the original Litton action to the Superior Court, the Macioci plaintiffs commenced what is now Suffolk Superior Court No. 47464 in the Supreme Judicial Court for the County of Suffolk. The Macioci complaint raised the same substantive issues as the original Litton action and proffered as plaintiffs an host of taxable inhabitants of Fitchburg to satisfy any jurisdictional requirements. Equitable relief was sought from the single justice of the Supreme Judicial Court to stay the issuance of the tax bills for the second half of fiscal year 1981 but, after transfer of the Macioci action to the full bench of the Supreme Judicial Court, it too was remanded to the Superior Court. The net effect of all this litigation appears to be the vacating of the original Superior Court decision for want of subject jurisdiction, the vacating of the statement of agreed facts in Litton as improvidently made, and an expression of agreement (its precise standing unclear) with the Superior Court’s reasoning as to “free cash” in the opinion which had been vacated. Finding themselves back in the Superior Court, the parties agreed to consolidate the Suffolk and Worcester actions and, pursuant to Standing Order No. 14-80, the Chief Justice assigned the consolidated actions to a single justice for further proceedings. Since trial of the action concluded only days before the October tax bills for fiscal year 1982 were due to be sent out, the Court entered a prompt order for partial judgment, see Mass R. Civ. P. 54(b), on the “free cash” issue and disposed of the pending motions for equitable relief. This procedure tracks that followed in Litton itself at 1209. Having entered this order and partial judgment, it is clear that the Court must write an opinion setting forth its reasoning. Mass. R. Civ. P. 52(a). What is less clear — and remains a matter of dispute between the parties — is whether the Court ought assay a declaration of the respective rights of the parties. This Court is well aware that “under G.L.c. 231A, §3, as amended by St. 1974, c. 630, §2, it is a sufficient reason for denying declaratory relief that the declaration ‘if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings.’ ” Mass. Bay Transp. Auth. Advisory Bd. v. Mass. Bay Transp. Auth., Mass. Adv. Sh. (1981) 403, 408 (Braucher, J.). Indeed, even in tax cases declaratory relief is inappropriate if the resolution of the dispute “has no present bearing on the assessment and collection of...taxes.” Selectmen of Hull v. County Commissioners of the County of Plymouth, Mass. App. Ct. Adv. Sh. (1981) 1275, 1276. However, this Court may exercise its discretion to grant declaratory relief in certain exceptional “tax controversies where to do so would constitute ‘a convenient means of promoting justice and will not unduly interfere with the collection of taxes.’ Meenes v. Goldberg, 331 Mass. 688, 691 . Madden v. State Tax Commn., 333 Mass. 734, 735-37 . Stow v. Commissioners of Corps. & Taxn., 336 Mass. 337, 339-340 . Bettigole v. Assessors of Springfield, 343 Mass. 223, 235-236 (1961).” Second Church in Dorchester v. Boston, 343 Mass. 477, 479 (1962) (Spalding, J.). “Favorable to maintenance of a declaratory action...is the circumstance that the issue is important or novel or recurrent; that the decision will have public significance {iffecting the interests of many besides the immediate litigants; or that the case reduces to an issue of law without dispute as to the facts.” S.I. Groves & Sons Co v. State Tax Commn., 372 Mass. 140, 142 (1977) (Braucher J.), quoting from Sydney v. Commn. of Corps. & Taxn., 371 Mass. 289, 293-295 (1976). In the present instance, the process of tax classification followed by the Commissioner and the assessors of the Commonwealth’s cities and towns is still novel, is certainly recurrent, and it is very important. Moreover, a declaration of *900 rights will have public significance affecting the interests of many through the Commonwealth. Unfortunately, the present dispute does not, despite the best efforts of the parties, reduce to an issue of law without dispute as to the facts. Consistent with its obligation under Mass. R. Civ. P. 52(a), this opinion resolves those factual disputes and, in exercise of its discretion, declares the rights of the parties. 2. Real Property Assessment in Fitchburg Tax classification of real property may not be implemented in any city or town Until the Commissoner of Revenue (Commissioner) has certified in writing to the assessors of such city or town that the assessments on the real property that they propose to make are at full and fair cash valuation. G.L.c. 59, §2A(c). See G.L.c. 59, §§38, 42. Full and fair cash valuation is thus a “prerequisite” to tax classification within the Commonwealth of Massachusetts. Associated Industries of Massachusetts, Inc. v. Commissioner of Revenue, Mass. Adv. Sh. (1979) 2027, 2034. Full and fair cash value means fair market value, which is the price an owner willing but not under compulsion to sell ought to receive from one willing but not under compultion to buy. It means the highest price that a normal purchaser not under peculiar compulsion -will pay at the time and cannot exceed the sum which the owner after reasonable effort could obtain for his property. Bennett v. Board of Assessors of Whitman, 354 Mass. 239, 240 (1968) (Wilkins, C.J.), quoting from Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956). ' “Actual sales are, of course, very strong evidence of fair market value, for they represent what a buyer has been willing to pay to a seller for a particular property.” First National Stores Inc. v. Board of Assessors of Somerville, 358 Mass. 554, 560 (1971). It is for this reason that the Commissioner requires every sale in a particular city to be reported to her Bureau of Local Assessment (Bureau) on a particular form known as a 3S form. Of course, the evidence of actual sales is not conclusive of city-wide assessments since all the parcels of land in a city are not sold during each assessment period. Indeed, since the most desirable properties are the ones most frequently sold, calculations of city-wide land values bused only on actual sales over a preceding year would tend to be somewhat too high. Accordingly, city-wide assessment necessarily involves elements of expertise and judgment. It is generally agreed that the most effective method of general land assessment is a parcel-by-parcel evaluation made by experienced local assessors with access to the most advanced computerized, statistical techniques. The trouble with such an assessment is that it takes so long to conduct the parcel-by-parcel valuation that the results afe frequently rendered obsolete by inflation or other market forces even before the revaluation is complete. Therefore, conceding the desirability of a parcel-by- , parcel valuation, statistical assessment techniques are vitally necessary in order to keep city-wide assessments current. Assessment in Fitchburg presents particular problems. The ’city itself is physically complex. Growing up on a bend of the North Nashua River, Fitch-burg’s topography is a mixture of steeply rolling hUls, a narrow river valley, and rural orchard and farm lands. The structures in the city are also highly variegated, ranging from antiquated brick mill buildings, through a partially rehabilitated commercial district with numerous multi-storied wooden tenements having a low current market value, to post-war developments homogeneous in nature, and a smattering of moderately expensive new houses. By number, approximately fifty percent of the parcels of land within the city are devoted to single family residence housing, a type of property classified for assessment purposes as “R 1”. Fitchburg’s last completed city-wide *901 parcel by parcel revaluation took place in 1970. Valuations derived from the 1970 appraisal were implemented during fiscal year 1972. In 1975, the city began an update of property valuation, carried out internally by the Board of Assessors (Assessors). Based on its study of sales during the years 1975, 1976, and 1977, the Assessors derived factors to be applied to the old valuations. These factors--actually a multiplier thought by the Assessors to take account of inflation and other market forces — were applied to the 1975, 1976, and 1977 sales data to determine the assessed valuations for fiscal year 1979. In some instances, the factor or multiplier was applied throughout and entire class of property and in others, e.g., residential property, different factors were applied to different sub-classes, e.g., R 1-single residence housing-within the general class. 3. Tax Classification The Massachusetts constitution has long required that property be assessed for taxation proportionately and reasonably uniformly at full and fair cash value. Massachusetts Constitution, part II, c.l, §1, art. 4. Board of Assessors of Lynn v. Shop-Lease Co., Inc., 364 Mass. 569, 572 (1974). Sudbury v, Commisioner of Corps. & Taxn., 366 Mass. 558 , 563 (1974). Commonwealth v. Town of Andover, Mass. Adv. Sh. (1979) 1619, 1620. Opinion of the Justices, Mass. Adv. Sh. (1979) 1756, 1761. Prior to the 1978 amendment of Article 4, the Classification Amendment, the Constitution of the Commonwealth had been interpreted to require interclass equality. Bettigole v. Assessors of Springfield, 343 Mass. 223, 230 (1961) (Cutter, J.). The classification Amendment made lawful differential taxation of property on, the basis of classification by use. The Classification Amendment accomplishes this result by amending part II, c.l, §1, art. 4 of the Constitution by inserting, after the clause authorizing the General Court “to impose and levy proportional and reasonable assessments, rates, and taxes upon all the inhabitants of, and persons resident, and estates lying, within said Commonwealth” the words “except that...the General Court may classify real property according to its use in no more than four classes and...assess, rate and tax such property differently in the classes so established, but proportionately in the same class.” 1 The Constitution thus now requires nothing more than “proportionality per class per municipality.” Associated Industries of Massachusetts v. Commissioner of Revenue, Mass, Adv. Sh. (1979) 2027, 2036. After the votes had ratified the Classification Amendment, the General Court enacted implementing legislation' in late November 1979. St. 1979, c,797 (the Enabling Act). The process established by the Enabling Act which leads to the levying of local property taxes under a system of use classification begins with the Commissioner. As an essential first step, the Commissioner is required to determine “whether or not the locally assessed values represent the full and fair cash valuation for each class of real property.” G.L.c. 58, §1A. 2 If the Commissioner determines that the community is assessing at full and fair cash valuation, she is required to determine a “minimum residential factor” for the community and then to transmit determinations of the taxable values in each use class and the minumum residential factor to the community. G.L.c. 58, §1A. A community may not implement classification until the Commissioner has *902 certified in writing that it is assessing property at full and fair cash value and that a majority of its assessors are qualified to classify property. G.L.c. 59, §2A(c). If such certification has been made, the assessors must classify all real property as residential (Class 1), open-space (Class 2), commercial (Class 3), or industrial (Class 4). G.L.c. 59, §2A(b). Once the Commissioner has certified that a city is assessing property at full and fair cash value, board of assessors, with the approval of the selectmen in each Town, and the mayor, with the approval of the city council, must determine the percentages of the local tax levy to be borne by each class of real property and by taxable personal property “for the next two fiscal years.” G.L.p. 40, §56. After the percentages have been determined and certified by the Commissioner, they are transmitted to the board of assessors to be used in setting tax rates. Ibid. Under the statutory scheme just described, the Commissioner has substantial authority and responsibilities and the assessors must follow her lawful commands. See, Sudbury v. Commissioner of Corps. & Taxn., 336 Mass. 558, 563-64 (1974); Commonwealth v. Town of Andover, Mass. Adv. Sh. (1979) 1619, 1627-1628. The Commissioner has long been “responsible for administering and enforcing all laws which the department (of Revenue) is or shall be required to administer or enforce.” G.L.c. 14, §3. The Commissioner may “direct” or “require” (of assessors) such action as will tend to produce uniformity throughout the Commonwealth in the valuation, classification and assessments.” G.L.c. 58, §§1A, 4. 3 As an explicit part of her statutory authority, the Commissioner is empowered to issue guidelines to direct local assessors in the performance of their duties. Pursuant to G.L.c. 58, §1, the Commissioner may establish “such reasonable rules, regulations and guidelines as may be necessary to establish minimum standards of assessment performance.” Moreover, G.L.c. 58, §3„ provides in relevant part: In order to assist the assessors in performance of their duties, the Commissioner shall prepare, issue and periodically revise guides for local assessors. Such guides shall include the rules, regulations, and guidelines of the Commissioner relative to the assessment, classification and administration of local taxes. ‘ In Short, the Commissioner has the authority to enforce “all laws relating to the valuation, classification and assessment of property” and to “supervise the administration of such laws by local assessors in accordance with the rules, regulations and guidelines established under the provisions of (G.L.c. 58, §1).” G.L.c. 58, §1A. Thus, both the case law and the relevant statutory scheme indicate that the Commissioner has far-ranging powers over the assessment of local property taxes, even though responsibility for the valuation of the property in the 351 cities and towns of the Commonwealth is ordinarily committed to local assessors. With the statutory scheme in mind, this court can take judicial notice that, during the four years immediately prior to the acts here questioned, the Massachusetts property tax system was subjected to several significant alterations, including a substantial constitutional change and two separate and distinct property classification schemes-the first, St. 1978, c. 580, enacted in anticipation of adoption of Classification Amendment (the shelf legislation) and St. 1979, c. 797, the *903 Enabling Act. 4 Each' one of these myriad changes has imposed additional responsibilities on the Commissioner and presents “problems of great practical complexity.” See, Carr v. Assessors of Springfield, 339 Mass. 89, 93, n.2 (1959). To discharge her many responsibilities in this area, the Commissioner has the Bureau of Local Assessment (Bureau) in which the Commonwealth employs 15 professionals and 5 secretary-clerks. The Bureau has no computer but shares computer time with the Divisions of the Department of Revenue charged with income and sales tax collection and regulation throughout the Commonwealth. It is beyond dispute that the Bureau is inadequately staffed and without the resources to accomplish its many functions in the manner and to the degree of accuracy which its professional employees think desirable. This is not to say that it cannot discharge its minimal constitutional and statutory functions~a point which requires further analysis; rather, the point is simply that everyone agrees that, with more funding, the job could be done significantly better, and the lack of resources is a fact to be considered in judging the Commissioner’s and the, Bureau’s conduct. In considering what was, in fact, done by the Commissioner, the chronology of material events begins even before the enactment of the Classification Amendment. Upon the passage of the shelf legislation, the Commissioner promptly promulgated guidelines to local assessors, describing to them the process by which their community would become certified to implement tax classification. In relevant part, these guidelines provided for a statistical analysis of the arm’s-length residential and land sales in eligible municipalities to ascertain the median ratio between assessed and market value 5 and variation from the median ratios in these classes. The Commissioner required that, for certification purposes, the median ratio for residential properties must be within 10% of full value or 100%, the average variation from such ratio 6 must be no more than 10%, and the variation between residential and land ratios must be less than 20%. The initial guidelines go on to ex *904 plain that the Bureau will conduct appraisals of representative commercial and industrial properties for comparison with their assessed values to ascertain the accuracy and uniformity of valuations in these classes. Finally, the Commissioner ,. explained that her Bureau would review., the revaluation program in tbe: : municipality and its general assessment ,. practices to determine the reliability of i the valuation base and the ability of;the*, assessors to maintain full and uniform »-’ assessment in future years. Some time during the first six-months’ of 1979, the Commissioner undertook 'a?5 study of assessment performance in Fitchburg to determine whether it tvas' assessing property as of January 1, 1979 at full and fair cash value and thus Wbuld ' - be eligible to implement classifichtioii' ’1 under the shelf legislation for fiscal-1980. f Fitchburg received this treatíñetií because it was one of a group of cities1'': and towns which had completed f evalúa- r tions, see p. 9, supra,‘which wéré to go into.éffect as of January 1, 1979NTh’e -' Commissioner’s study was based bn'áN review of Fitchburg’s assessment perfot- ' mance’ dúring 1978: as reflected by &ritfV^ length sales of real property reportbd- 6rt f. i the 3S forms for the calendar yéar‘Í978í'';Médiañs and CODs were calculated far’ '"■* all iproterty classes as to which 3S forihs1- ; for 1978 had-been submitted. 7 Appraisals ^ were «also done for selected properties in > the - R- 4, commercial 'and industrial classes. , "! ...... 1. • ■ ’ ©n the basis of the shelf legislation stu'dyv'tfie Commissioner determined that • Fitchburg was not assessing property at ■ full and fair cash value and thus was not eligiB^*Tó ‘iiS^preip'éni class^fic^ííón^in’i"” fiscaj|éfir l98()’ The Commissioner so in-formed the city by letter, to the Assessors dated August 6, 1979 and by a letter to the mayor dated August 7, 1979. / Upon enactment of the Classification Amendment, the legislature again;addressed the issue of the manner in which tax classification-now a reality-ought fb ‘ be implemented. The result was the Enabling Act, St. 1979, c. 797, passed in This yields»a number expressed11 notation, „ e.gr, ■ ,156, .which, by moving»the decimal point two places to thought, pan.be, pressed as á percentage, e.g., 15,9%. By wáy of example, consider the felfovVIfto 1 series of,' ñipe-, asseésrtiértt/áaiés’ fatlbá: 7(3%*, 70%, 1:QQ%,,t10Q%1ÜÜ%',f 1«5%f? 130%, TilO^.j The,coefficient pf, diSpereiPOipí the group,; as defined by the, Cpmmissioaat„i? 15%, cbrbpíítéd ~as tollowsl n)Tlje median ratio Is 100%.'(2) the süfn' óf thé'áb'sólbte,MWsfb*f the differences* of the-Individual, ratios fronvthe median is 135. (3) There are rfnef ratiesdsiilte (13B79)/100, which.equals .15 *905 late November 1979. To comply with the new statute, the Commissioner issued a new set of guidelines on February 11, 1980. These guidelines, which purport to describe the manner in which “the Commissioner will decide which cities and towns are eligible for certification (l.e., permission to implement táx classification).” provide that those cities and towns “which have complied with the revaluation requirements of the court and the Commissioner, and which are likely to be at fair cash valuation as of January 1, 1980 will automatically be eligible for review, by the Bureau of Local Assessments.” According to the guidelines, The certification review will consist of a statistical analysis of arm’s-length residential and land sales to determine the median ration between assessed and market value and the variation from the median ratio in these classes. A median ratio within 10% of full value and an average variation from such ratio of no more than 15% is acceptable for residential property. The variation between residential and land ratios must be less than 20%. Additionally, the bureau will conduct appraisals of representative commercial and industrial properties for comparison with their assessed values to verify the accuracy and uniformity in these classes. Finally, the bureau will review the revaluation program and general assessment practices to determine the reliability of the valuation base. a. The Validity of the Tax Ctauttkation Guidelines on Their Face The parties agree that both the Classification Amendment to the Massachusetts Constitution and the statutory Enabling Act thereunder, require full and fair valuation within a community as an essential precondition to tax classification. The differences arise when the agreed-upon standard comes to be translated into the actuality of assessment within a particular community. The plaintiffs argue that the guidelines fail on their face to test adequately whether a community is assessing property at full and fair cash value. As an initial matter, it may be noted that the shelf legislation guidelines required a COD for residential land of not more that 10% whereas the Enabling Act guidelines permitted a COD for residential property of not more than 15%, a change which permits certification for tax classifications notwithstanding a significant decrease in proportionality within the residential land class. The matter is of no moment, however, since the plaintiffs’ own expert testified that á COD of not more than 15% for residential land was an acceptable assessing standard. More important, say the plaintiff*, Is the fact that the guidelines establish specific limits . on assessment performance for residential property only, l.e., requiring that the residential median ratio must be within the range 90% to 100%, and the coefficient of dispersion about the residential median-must be no greater than 15%. Moreover, no limit on the coefficient of dispersion is established for land and the limit on assessment level for land is relative only, pegging the land median to the residential median. Finally, the plaintiffs point out that the guidelines establish no limits for testing the prevailing level of assessment and the uniformity of assessment for commercial and industrial property, nor for property as a whole. 8 Despite the poor quality of the draft *906 smanship, however, the flaws perceived by the plaintiffs are far more hypothetical than real. They assign no weight whatsoever . to the requirement that “the Bureau...conduct appraisals of representative commercial and industrial properties for comparison with their assessed . values to verify the accuracy and uniformity in these classes.¡.(and that) the Bureau review the revaluation program and general assessment practices to determine the reliability of the valuation base.” These later requirements of íhe guidelines as written are sufficient" to answer the plaintiffs’ initial objections. The absence of specifically prescribed median ratios and CODs for commercial and industrial property, and the absence of a prescribed COD for land, is hardly fatal in light of the general requirement: imposed on the Bureau to review general , assessment practices. Since the Commissioner is not required to promulgate guidelines at . all, she can hardly be faulted (though she may get poor marks for . draftsmanship) for promulgating guidelines which do not specifically pin down every possible criteria of assessment validity. See, Shapiro, The Choice of Rulemaking of Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921 , 923-924 (1965). Of more merit, is the plaintiff’s argument that the guidelines, on their face, permit an unconstitutional degree of, undervaluation of specific classes of property. Even under the Commissioner’s interpretation of hfer own guidelines, the language appears to permit the median ratio for land to be at 72% of full and fair cash value. 9 Standing alone, then, the guidelines appear to endorse a deliberate policy of assessing Residential land at 90% of full and fair cash value and undeveloped land at 72% of full and fair cash value. Were this to be the actual effect of the guidelines in practice, they would be unconstitutional. Leto v. Board of Assessors of Wilmington, 348 Mass. 144, 150 (1963) (Cutter, J.) (“Obviously no deliberate policy of assessing residential land and structures at 80% of fair cash value and commercial and industrial land and structures at 100% (or more) of fair cash value will comply with constitutional and statutory requirements”). Beardsley v. Board of Assessors of Fox* boro, 369 Mass. 855, 857-959 (1976) (median ratio differences of 3.8%, 7.8%, 9.9% and 8.1% between subclasses of residential land over four successive years held impermijssible). Martin v. Keating (Superior Court, Middlesex County, Eq. 35141 (1973) ) (Adams, J.) (deliberate policy of assessing different classes of property at between 15 and 17 percentage point differences held impermissible). 10 Against this challenge to the guidelines on their face, the Commissioner erects two defenses. Neither is persuasive, at least alóng the lines outlmed by the Commissioner. First, the Commissioner argues that the *907 question whether the terms of the guidelines comport with the terms of the Enabling Act is not open for review by this Court. She claims it is irrelevant to a decision of this case to consider the process she used to determine that Fitchburg was an appropriate community to certify for tax classification. She argues that the question .of whether, through her guidelines, the Bureau employed an appropriate or supportable process to determine whether Fitchburg was assessing property at full and fair cash value is none of this Court’s business. She reaches these conclusions by reading G.L.c. 58, §1A, P.2 to delegate to her substantive or legislative authority to make determinations, on a case by case basis, as to -whether- — inblmdqaf -communitics- are assessing property at or near full value and are, therefore, eligible for certification for tax classification. Indeed, as her counsel aptly argues the point, "If we had taken darts and thrown them at a board, this Court would have no choice but to uphold tax classification in Fitchburg so long. as the numbers (l.e., the actual assessment level) justified it.” This Court disagrees. If, as this Court has ruled above,* it is proper to declare the rights of the parties, it is assuredly proper, to'examine the process by which the Commissioner , determined that Fitchburg was eligible for tax. classification. To fail' tó do s6 wóuld be to “abdicate (judicial)' review” entirely. See, Schweiker v. Gray Panthers, U.S., 69 L. Ed. 2d 460, 470 (1981) . T he people of the Coriimohwealth are éñtitled to something morteiojf (heir ^Q^er^méúíal process than merely fortuitous results. "Even in a field in which the- agency is acknowledged to have latitudinous- discretion, a court woWld ntít be excluded if the agency dp-' peai^á;.tp been , actuated by inapposite or unreasonable considerations.” West Broadway Task Force, Inc. v. Commissioner of the Dept. of Comm. Affairs, 363 Mass. 745, 751 (1973) (Kaplan, J.). As framed by the pleadings in this case, if this Court were to find that the Comíais-’ sioner’s conduct was clearly arbitrar^ or capricious, it could so declaro oven though, in the case of Fitchburg, the result might be in conformity t throughout the Commonwealth — an approach which, fa-the case of Fitchburg, might rest upon the study of a larger number of parcels fa the R 1 class than was possible fa the nine-month study. The plaintiffs are correct in pointing out that the Commissioner could have developed a statistically valid median ASR and CQD. from the nine-month study, and could have relied upon the median so developed; to institute a factoring program. The problem with this approach, while satisfactoiy for Fitchburg, is that not all communities had such current data and, therefore, if factoring were to be used, the method of implementing it would have to vaiy from community to community. The same can be sáid for “time trending.” While time trending is an acceptable statistical device for projecting, market trends from the rate of change df means or medians within a studied time period, it necessarily ' requires some uniform protócól for establishment and approach to the tax rolls of a city or town. As yet, the assessors in the 351 dries and towns of the Commonwealth have developed no uniform method of establishing their tax rolls nor has the Commissioner developed a statewide protocol for time trending. Therefore, while time trending is certainly possible with respect to Fitchburg and, if used, would have permitted a more accurate evaluation of assessment lévels as of January 1, i960, she is not required to adopt such an approach in light of the fact that, for fiscal year-1981, she was supervising the factoring programs of forty-seven separate communities. What she did’. Was to fashion a normative standard based upon data which (1) could be applied equally to each ccmmunity and (2) might reasonably have been relied upon by her as sufficient to produce an acceptable data base for factoring. “The Commissioner has made a judgment conceding perfection in result, in favor of a process which is orderly, expeditious, and (which she believed) reliable.” Newton v. Commissioner of Revenue, Mass. Adv. Sh. (1981) 1659, 1665-1666. This Court’ cannot set aside that judgment. Ibid. The Commissioner determined the factor necessary to raise the R 1 and Land valuations to full and fair cash value by dividing 100% by 89.6% (the mean ASR for R1 as derived from the 1980 EQV Study), producing a factor of 1.12. 14 An attachment to the Commissioner’s letter of March 31, 1981 directed the city to raise its R 1 and Land assessments by a minimum factor of 1.12 by multiplying this factor (or, inferentially, a greater factor) to the assessed valuations of all R 1 and Land parcels. On April 4, 1980, Fitchburg returned a form indicating its intention to apply the Commissioner’s factoring program. In fact, the city chose to use a more complex system of factors than that prescribed by the Commissioner. As is. frequently the case, its assessment roll and tax bills indicated an assessed value for land, and a separately assessed value for buildings on that land. This was true for R 1 parcels in Fitchburg. Believing that .they could most accurately, factor up by the mandated 1.12 factor, the Assessors multiplied the land portion of each parcel by. a factor of 1.10 and the building Or structures portion by a factor of 1.13. There is no evidence that this approach, *916 while not precisely that prescribed by the Commissioner, failed to raise the assessed value of R 1 parcels by the required 1.12 factor. The Assessors also went ahead on their own and factored up R 2, R 3, and R 4 parcels by a factor of 1.06. Using the 1980 EQV Study as the data base from which to factor, the results of the assessors’ actions are set forth below. Property Class Mean ÁSR Factor (1980 EQV Study) Factored Mean ASR R 1 89.6% 1.12 100.0% R 2 96.5% 1.06 102.3% R 3 100.0% 1.06 106.0% R 4 96.5% 1.06 102.3% RC 100.0% 0 100.0% C 100.0% 0 100.0% I 100.0% 0 100.0% L 82.0% 1.10 90.2% In August 1980 the Commissioner learned of the manner in which Fitchburg had employed its factoring program. She agreed with it and, on or about September 9, she certified that the city of Fitchburg might implement tax classification. This Court rules that the factoring program, as implemented by the Assessors and approved by the Commissioner, is improper and must be declared so. As explained above, a factoring program is nothing more than an arithmatic method of fudging the figures up or down to arrive at an acceptable , assessment level. Once an acceptable data base from which to factor is established, all that remains is the arithmatic derivation of the factor which will take the sub-class property to 100%' and then the multiplication of the assessment of each parcel within that subclass by the factor derived for the class as a whole. This is a process which is entirely ministerial in nature. It involves no judgment Of any sort, and can be accomplished by anyone with a competent. elementary school education. This Court does not fault the assessors for breaking down the Commissioner’s 1.12 factor into a “land” and a “buildings” component. This may well have been the accurate way to apply that factor to R 1 parcels. However, it is utterly indefensible for the Assessors to have failed to factor land parcels up to 100% and to have applied a factor to R 2, R 3, and R 4 parcels which carried them over 400%. 15 Quite simply, once an appropriate data base has been arrived at through the exercise of experience and expert judgment,; then a factoring program, if one is to be used, must factor to 100% with respect to each of the sub-classes established in the working data base. This was not doné in the case of Fitchburg and the process actually used must be declared illegal. One further matter remains before a declaration of the rights of the parties may be entered. It has been established, after full trial on the .merits, that the Assessors in Fitchburg were not, as of *917 January 1, 1980, assessing property in that city at full and fair cash value and that the assessment levels actually in existence were markedly. different from ihose the Commissioner, despite the good faith exercise of her extensive powers and utilization of her limited resources, believed to be the case. The findings of the Court represent “reality” as of January 1, 1980. The Commissioner cannot ignore this reality in further dealings with the Fitchburg Assessors, Naturally, the maimer in which she incorporates this court’s factual findings (based as they are on extensive and sophisticated expert testimony supported by detailed computer analysis) is left entirely to her. ’ In the present instance, it took extensive litigation after-the-fact for the parties tp get at an accurate estimation of assessment levels in Fitchburg. Those 'levels hqve npw been established by .the } íitigatióii ! process, no doubt at considerable expense to the plaintiffs for , (egal ‘fees and expert services. Fitchburg ’áñd the Commissioner are,., of course, bóuhd by fhé factual findings of., the ’Court at.léást as,to the1 situation existing *d¿ January T,‘ p80.' [ ,.,' ‘ * ' ''!' ’* The pó&ti 'however,* is 'a. inoré, general dne/ Thefé ‘is littip or, np 'professional tiisagteeitneM !ov ' the Commonwealth, a taxpayer has beett remanded to his abatement remedy rathéf' than permitted to maintain an "action-under G.L. c. 60, sec. 98. For all the reasons set forth above, however, this Court considers? it appropriate to enter a declaration that the “free cash” in question ought have been applied in accordance with the statutory" command. The reasoning is that set forth in Litton Business Systems, Inc. v. The Commissioner of Revenue, Suffolk Superior Court No. 44824 (Memorandum arid Order at pp. 6-8) remanded," and vacated for lack of subject ‘niattef: jurisdiction but upheld on this pointy-MaSs. Adv. Sh. (1981) 1207, 1212,' which-t findings and rulings are incorporated ' herein by reference. Indeed, botto this/ Court’ s opinion and the conclusion of'then Supreme Judicial Court that “under 1979, cl 151-, sec. 12A, free cash available" on? July 1, 1980 was to be used to redUcd ' the-CUsh levy for fiscal year 198leather than-fiscal year Í982,” Mass. Adv.-Sh‘.' (1981)' Ut 1212 (Braucher, J:) were well krtbwfi'tb thebityin time to correct thesObdnddialf'-fikcal year 1981 tax bills to pPéfceñt sUCh an im'proper levy.: The idling * juSUhtadeis bindirig on all parties to- this1 litigatton, including the city. “Thus,-to the' extent‘that" áriy Of < Mesfc plaintiff s have' pfbperlypurSUed 'the - abatémenf reihédy available to* them' pursuant to-G.L. tí. 59, : sec. 59, they ought, upon proof of the payment of their specific taxes, be entitledto an abatement of so much of those taxes as were improperly levied through the' failure of the city to properly apply its : free cash. It has been suggested, however, that the Appellate Tax Board has no jurisdiction ' oyer a claim of this sort. A due regard for that administrative agency and its interpretation of its own organic statute compels this court to permit it, in exercise ‘ of its primary jurisdiction, to rule upon that point. However, should it develop that the Appellate Tax Board rules that it has no subject matter jurisdiction over the free rash issue, and should no appeal be taken of should the Supreme Judicial Court uphold that decision, then this Court rulés that in the unique circumstances of mis' case, where abatement procedures ' are “seriouslyinadéauate,” Boston v. Second Realty Corp., Mass. App. Ct. Adv. Sh. (1980) 369, 371, to the point of being nbnexistent, where the violation of law ' was made known to the munidpahty hot only by this court but by the ‘Supreme' Judicial Court prior to.completion of me. illegal course of conduct, and 'vthere fhe' taxpayers have properly complied ghftí all / the statutory requisites’under both GÍLj'tí. 59, sec. 59 and G.L. d. 60, sec. 9% t,h%i they are entitled to relief 'under the latter, statute in accordant^ mfh thd'1Jptiri ,f' mtíaning of its wófdsj ToV,abn^í;,