Joan S. & Richard S. Toder v. Board of Assessors of the Town of Hinsdale (September 18, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOAN S. & RICHARD S. TODER    v.	BOARD OF ASSESSORS
     					     OF THE TOWN OF HINSDALE

Docket No. F280630		   		Promulgated:
							September 18, 2006


	This is an appeal under the informal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on real estate located in the Town of Hinsdale, owned by and assessed to Joan S. and Richard S. Toder under G.L. c. 59, §§ 11 and 38.
	Commissioner Egan ("Presiding Commissioner") heard the appeal and, pursuant to G.L. c. 58A, § 1A and 831 CMR 1.30, issued a single-member decision for the appellee.
	These findings of fact and report are promulgated at the request of the appellee pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.


	 Joan S. Toder, pro se, for the appellants.

	Michael J. Britton, Assistant Assessor, for the appellee.

 
FINDINGS OF FACT AND REPORT

On the basis of the exhibits and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2004, Joan S. and Richard S. Toder ("appellants") were the assessed owners of a parcel of real estate located in the Town of Hinsdale ("subject property").  For fiscal year 2005 ("fiscal year at issue"), the Board of Assessors of Hinsdale ("assessors") valued the subject property at $370,800 and assessed a tax, at the rate of $14.76 per thousand, in the amount of $5,473.01.  The appellants timely paid the tax without incurring interest.  On January 24, 2005, the appellants timely filed an application for abatement with the assessors seeking a $95,800 reduction in the valuation of the subject property, claiming that the fair cash value of the property was only $275,000.  On March 23, 2005, the assessors denied the appellants' application.  On May 16, 2005, the appellants timely filed their appeal with the Appellate Tax Board ("Board").  On this basis, the Presiding Commissioner found that the Board had jurisdiction to hear and decide this appeal. 
The subject property consists of a 0.48 acre parcel of land in the section of Hinsdale known as Ashmere Heights, improved with a single-family, two-story home, which contains 2,220 square feet of living space.  The home, which was built in 1971, has six rooms, including four bedrooms, as well as three full bathrooms.  There is no attic, basement, or garage, but there is a 216 square-foot wooden porch at the rear of the home.  The home has electrical heating but no air conditioning.  According to the property record card, the subject property's total assessed value of $370,800 includes a land value of $253,300 and a building value of $117,500.         
The appellants maintained that the subject property was overvalued.  They first contended that the home is suitable only for seasonal use, since the water must be shut down during the winter months.  The appellants also contended that the land portion of the town's assessments of properties along the Lake Ashmere inlet "reflected wide discrepancies in value," because properties on Hemlock Lane, including the subject property, have experienced a recent increase in land values while properties across the inlet have experienced a decrease.  To support their assertion, the appellants offered property record cards of the subject property and other properties along Lake Ashmere, together with charts and graphs demonstrating the alleged discrepancies in assessed land values among the Ashmere Heights lakefront properties.  The appellants also submitted two pictures of 121 Hemlock Lane, another property on the same street as the subject property.  The table below summarizes the pertinent facts from the property record cards upon which the appellants relied: 
Property Address	Total assessment	Land assessment	Total land area (acres)	
85 White Birch Lane	$215,300	$ 52,100	0.33	
100 White Birch Lane	$136,800	$ 58,500	0.56	
110 White Birch Lane	$159,400	$ 54,600	0.42	
118 White Birch Lane	$150,200	$ 51,300	0.30	
130 White Birch Lane	$102,400	$ 50,500	0.27	
147 White Birch Lane	$228,500	$ 50,500	0.27	
152 White Birch Lane	$161,300	$ 50,500	0.27	
26 Lakeview Circle	$483,200	$242,200	0.44	
32 Lakeview Circle	$473,300	$325,500	0.74	
40 Lakeview Circle	$139,400	$ 54,400	0.41	

The appellants contended that the charts they submitted demonstrated that the fiscal year 2005 land assessments for properties on Hemlock Lane were generally higher per acre than the land assessments for properties on surrounding White Birch Lane and Lakeview Circle, and the average for all properties surrounding Ashmere Lake.  According to a graph they submitted, the land assessments for properties on White Birch Lane, Lakeview Circle, and the average of all properties surrounding Ashmere Lake had declined since 2004, but the land assessments for properties on Hemlock Lane, including the subject property, had increased. 
In defense of their assessment of the subject property, the assessors asserted that the total assessment of the land and the home represented the overall fair cash value of the subject property.  The assessors also submitted evidence of purportedly comparable sales, including two properties on the same street as the subject property, 121 Hemlock Lane and 129 Hemlock Lane.  The 129 Hemlock Lane property sold on July 13, 2004, close in time to the relevant valuation date for this appeal, for $332,500.  The 121 Hemlock Lane property sold on September 9, 2002 for $479,900.  
Based on the evidence submitted, the Presiding Commissioner found the subject property's total assessed value of $370,800 did not exceed its fair cash value for the fiscal year at issue.  After considering all the evidence, the Presiding Commissioner found that the appellants did not meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  First, the Presiding Commissioner found that the properties on streets other than Hemlock Lane were not comparable to the subject property.  As indicated by the codes on the property record cards, most of the properties selected by the appellants were not located within the same neighborhood as the subject property.  The appellants did not demonstrate comparability between these neighborhoods and the subject property's neighborhood.  
Second, the Presiding Commissioner found that most of the appellants' evidence, which consisted simply of several property record cards and charts and graphs delineating the land assessments of various properties along Lake Ashmere, failed to draw a sufficiently detailed comparison between these properties and the subject property.  Moreover, the appellants focused solely on the land values of the assessments, not on the total assessments including the values of the homes.  Because their evidence was so narrowly focused, the appellants did not indicate any other similarities and/or differences between the subject property and the purportedly comparable properties, including, for example: their distance and accessibility to the lake; the condition and topography of their parcels; and the size, condition, and style of their dwellings.  Therefore, the appellants did not properly impute a value to the subject property from the values of their purportedly comparable properties.  In addition, the appellants failed to present any data upon which the Presiding Commissioner could rely to make appropriate adjustments herself.  Accordingly, the Presiding Commissioner found that the assessed land values of these purportedly comparable properties were not helpful in determining the overall fair cash value of the subject property, and the appellants' reliance on them, without adjustments, to prove that the subject property was over-assessed was unpersuasive.     
Finally, the appellants did not submit any evidence of comparable sales.  The assessors submitted evidence of sales for 121 Hemlock Lane and 129 Hemlock Lane, on the same street and within the same neighborhood as the subject property, which supported the assessors' valuation of the subject property.  129 Hemlock Lane contained 0.27 acres of land improved with a one-story, single-family, 912 square-foot home.  This property sold on July 13, 2004, just six months after the relevant valuation date, for $332,500.  121 Hemlock Lane contained 0.27 acres of land improved with a one-story, single-family, 1,200 square-foot home.  This property sold on September 9, 2002 for $479,900.  After considering all of the evidence, the Presiding Commissioner found that these properties were reasonably comparable to
the subject property and, taken collectively, tended to support the subject property's overall assessment.  Accordingly, the Presiding Commissioner found that the appellants failed to meet their burden of proving that the subject property was overvalued.  
On this basis, the Presiding Commissioner decided this appeal for the assessors and issued a single-member decision for the appellee.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  G.L. c. 59, §§ 2A and 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 appellants have the burden of proving that the subject 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 [B]oard is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] 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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  "A taxpayer may show that its property is overvalued by demonstrating that the assessors relied on inaccurate information contained in their property record cards that improperly increased the value of the subject property."  Kelly v. Board of Assessors of Bedford, ATB Findings of Fact and Reports 1998-941, 946; see also
Olivieri v. Board of Assessors of Egremont, ATB Findings of Fact and Reports 1998-950, 955; Mason v. Board of Assessors of Lakeville, ATB Findings of Fact and Reports 1998-558, 566.  
Regarding the assessors' valuation of the land, a taxpayer does not conclusively establish a right to an abatement merely by showing that his land is overvalued.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Buckley v. Assessors of Duxbury, ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, ATB Findings of Fact and Reports 1990-39, 49.  
Although the appellants introduced evidence challenging the value of the land component of the subject assessment, they introduced insufficient credible evidence showing that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.  The appellants offered no evidence of comparable sales to demonstrate their claim of overvaluation for the subject property.  The property record cards for properties on streets other than Hemlock Lane, together with charts and graphs that focused solely on assessed land values, failed to draw a sufficient comparison between these properties and the subject property.  This evidence failed to indicate the appropriate similarities and/or differences which would support the appellants' claim of over assessment for the entire parcel, not just the land component.  Moreover, the Presiding Commissioner found that properties in neighborhoods other than the neighborhood of the subject property were not reasonably comparable to the subject property, and therefore the evidence relative to those properties did not advance the appellants' position.  The Presiding Commissioner thus found and ruled that the narrowly-focused evidence offered by the appellants failed to sufficiently support the appellants' claim of overvaluation.

Based on the evidence presented, the Presiding Commissioner found and ruled that the appellants did not meet their burden of proving that the subject property's overall assessment was excessive.  On this basis, the Presiding Commissioner issued a decision for the appellee in this appeal.

						APPELLATE TAX BOARD


				By:	_________________________________
					  Nancy T. Egan, Commissioner



A true copy,


Attest:	____________________________
		Assistant Clerk of the Board

 Within thirty days of the service of the appeal, the Town of Hinsdale, in accordance with G.L. c. 58A, § 7A, elected to have the appeal heard under the formal procedure. 

ATB 2006-653