DePaulo, James R. v. Board of Assessors of the City of Revere (October 9, 2018)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JAMES R. DePAULO		    v.	     BOARD OF ASSESSORS OF 
THE CITY OF REVERE

Docket No. F333653					Promulgated:
							     October 9, 2018


This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the City of Revere ("appellee" or "assessors") to abate a tax on real estate located in the City of Revere, owned by and assessed to James R. DePaulo ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2017 ("fiscal year at issue").
Commissioner Good ("Presiding Commissioner") heard the appeal under G.L. c. 58A, § 1A and 831 CMR 1.20 and issued a single-member decision for the appellee.  
These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

James R. DePaulo, pro se, for the appellant.
Dana Brangiforte, chairman of the assessors, for the appellee.

FINDINGS OF FACT AND REPORT
	On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2016, the appellant was the assessed owner of a 4,000-square-foot parcel of land improved with a two-family dwelling, which contained 2,050 square feet of living area, located at 849 Revere Beach Parkway in Revere ("subject property").  For assessment purposes, the subject property is identified as "Parcel ID 15-218B-25."  For the fiscal year at issue, the assessors valued the subject property at $311,200, and assessed a tax thereon at the rate of $13.99 per thousand, in the total amount of $4,353.69.  In accordance with G.L. c. 59, § 57C, the appellant timely paid the tax due without incurring interest.  On January 19, 2017, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors, which was deemed denied on April 19, 2017.  In accordance with G. L. c. 59, §§ 64 and 65, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on June 28, 2017.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.  
	At the hearing of this appeal, the appellant argued that the subject property was overvalued for the fiscal year at issue for several reasons.  First, the appellant testified that the assessors' property record card incorrectly listed the exterior of the dwelling as vinyl siding, when in fact it was clapboard. The appellant also testified that the subject property has significant lead paint on both the interior and exterior of the dwelling.  The appellant contended that both these issues have a negative impact on the subject property thereby decreasing its fair market value.  In support of this claim, the appellant offered into evidence repair estimates to have both these items remediated, totaling approximately $45,000, and also a letter from a local real estate broker suggesting that due to the subject property's condition its fair market value would be approximately $50,000 less than comparable properties located in the immediate neighborhood.  
The appellant also argued that the subject property's location on a very busy street and an easement for a manhole cover in the subject property's driveway negatively impact the subject property's fair market value.  Lastly, the appellant maintained that the condition of the property located at 841 Revere Beach Parkway, which was damaged by a tornado several years ago, razed down to its foundation, and remains unimproved, is an "eyesore" that negatively impacts the value of the entire neighborhood. However, the appellant failed to offer any evidence to support these claims. 
For their part, the assessors relied on the testimony of Dana Brangiforte, Chairman of the Board of Assessors, and the submission of several documents, including the standard jurisdictional documentation; the subject property's property record card for the fiscal year at issue; and the property record cards for 4 neighboring purportedly comparable properties located at 837, 845, 851, and 855 Revere Beach Parkway.  Like the subject property, all of the purportedly comparable properties have a 4,000-square-foot lot and are improved with two-family dwellings that range in size from 2,010 square feet to 2,481 square feet.  For the fiscal year at issue, the assessed values for these properties ranged from $365,000 to $439,000.  The assessors testified that although there have been few sales in the immediate neighborhood, the property located at 837 Revere Beach Parkway, which has a finished living area of 2,070 square feet, nearly identical to the subject property, sold for $570,000 on July 31, 2017. 
The assessors testified that although the subject property's property record card for the fiscal year at issue erroneously listed the exterior of the subject property as vinyl siding, this error was minor and, at any rate, had no impact on the subject property's fair market value for the fiscal year.  Further, the assessors maintained that the appellant's claim regarding the dated condition of the subject property was accounted for by the subject property's "fair" condition rating.
With respect to the appellant's claims that the subject property's fair market value was negatively impacted due to its location and also the manhole easement, the assessors testified that the subject property was given a 10% and 5% reduction, respectively, to account for these factors; moreover, the assessors testified, no other property located on Revere Beach Parkway was given a location adjustment.  
On the basis of the evidence presented, the Presiding Commissioner found that the appellant failed to prove that the assessed value of the subject property exceeded its fair cash value for the fiscal year at issue.  With respect to the appellant's concerns about the discrepancy on the subject property's property record card regarding the subject property's exterior and also its dated condition, the Presiding Commissioner found that the subject property's condition factor of "fair" adequately addressed these concerns.  The Presiding Commissioner further found that the assessors did account for the subject property's location and easement, as evidenced from the reductions noted on the property card. Furthermore, the Presiding Commissioner found that the appellant failed to offer any affirmative evidence of the subject property's fair cash value.   
Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

OPINION
	The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market will agree if both of them are fully informed and under no compulsion.   Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The appellant has the burden of proving that the property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'"  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he [Board] is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] . . . prov[es] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).  
In appeals before this Board, a taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). 
In the present appeal, the appellant argued that the subject property was overvalued for the fiscal year at issue.  In support of his case, the appellant pointed to an insignificant error on the assessors' property record card and also claimed that the subject was negatively impacted due to the condition of the property, its location on a busy street, and also the existence of a manhole easement.  The Presiding Commissioner, however, found that the assessors accounted for all of the claimed deficiencies through both the "fair" condition rating assigned to the subject property, and also reductions specifically granted to account for the easement and location. Furthermore, the appellant failed to offer any affirmative evidence of the subject property's fair market value for the fiscal year at issue.  On the basis of the evidence presented, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue. 
Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

  			
     THE APPELLATE TAX BOARD


				  
    	 By:			          ____	______
				    Patricia M. Good, Commissioner 



A true copy,



Attest: _________________________
		Clerk of the Board

 At the hearing of this appeal, the assessors offered into evidence a denial notice, which stated that the assessors denied the appellant's abatement application on March 24, 2017.  However, the notice was not addressed to the appellant nor did the assessors offer any other evidence to prove that the notice was actually sent to the appellant. In his appeal filed with the Appellate Tax Board, the appellant indicated that the assessors did not act on his abatement application.  Based on the evidence presented, the Board found that the appellant did not receive the assessors' denial notice dated March 24, 2017 and, therefore, the appellant's appeal filed on June 28, 2017, within 3 months of the deemed denial date of April 19, 2017, was timely.

ATB 2018-451