Robert J. & Marlene Corkery v. Board of Assessors of the Town of Wareham (May 27, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ROBERT J.& MARLENE CORKERY	 v.	  BOARD OF ASSESSORS OF  
			  THE TOWN OF WAREHAM

Docket No. F294231			       Promulgated:
							  May 27, 2011
 
							
	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 Town of Wareham ("assessors"), to abate taxes on certain real estate located in Wareham, owned by and assessed to Robert J. and Marlene Corkery ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.
	Commissioner Egan heard this appeal. Chairman Hammond and Commissioners Scharaffa, Rose and Mulhern joined her in the decision for the assessors. These Findings of Fact and Report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32. 


	Robert J. Corkery, pro se, for the appellants.

	Richard Gonsalves, assessor, 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 Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2007, the appellants were the assessed owners of an improved parcel of real estate located at 28 Mark's Cove Road in the Cromesett neighborhood of Wareham ("subject property"). For fiscal year 2008, the assessors initially valued the subject property at $634,000. In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest and in accordance with G.L. c. 59, § 59, timely filed an Application for Abatement with the assessors on January 7, 2008. The assessors granted a partial abatement on April 3, 2008, having reduced the subject property's assessed value to $616,000. On April 11, 2008, the appellants seasonably filed an appeal with the Board. On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal. 
The subject property consists of a salt-waterfront 0.29-acre parcel of real estate improved with a single-family, contemporary-style home in average condition containing 1,434 square feet of finished living area. The parcel is close to rectangular in shape, slopes slightly downward toward the rear, and has panoramic water views as well as a private beach area. The dwelling consists of six rooms and features an open floor plan on the first floor and a spiral staircase leading to the second floor. There are three bedrooms, one full bath and one half bath. The dwelling is not heated. 
The appellants argued that the subject property was overvalued for fiscal year 2008. In support of their argument, the appellants submitted a book largely composed of a collection of numerous approximately two-inch square advertisements for the sale of properties purportedly in the general area of the subject property. Although the advertisements included each property's offering price and often touted certain amenities, crucial information was lacking. More specifically, the appellants failed to present evidence relating to the properties' addresses, the desirability, or lack thereof, of each property's location, the condition of the dwellings situated on the purportedly comparable properties, or the physical attributes of each parcel. Further, and most importantly, no data reflecting actual sale prices was included in the presentation. Lacking this information, the Board could not determine if the properties were comparable to the subject property, much less consider adjustments to account for differences between the properties and the subject property. Consequently, the Board found that the "sales offering" data presented by the appellants were not sufficiently probative to establish the subject property's fair cash value.
The appellants also submitted property record cards relating to approximately a dozen properties to support their assertion that the subject property's assessed value was excessive relative to these properties' assessed values. The Board found that this evidence did not undermine the value placed upon the subject property by the assessors. 
As a threshold matter, the Board found that the appellants failed to establish comparability between their chosen properties and the subject property. In particular, the cited properties' parcel sizes varied dramatically, from 0.07 acre to 4.17 acres. Similarly, dwellings varied in size, style and condition. Moreover, the majority of the cited properties, unlike the subject property, were not waterfront properties. The appellants failed to address, in any respect, the substantial differences between these properties and the subject property. In sum, as was the case with the "sales offering" data, the appellants failed to demonstrate the comparability of their chosen properties or a method to make adjustments to account for differences between these properties and the subject property.     
Finally, the appellants argued that the presence of "toxic bloom" in the waters surrounding the subject property adversely affected the value of the property, ultimately resulting in rescission of the only offer for the property that the appellants received when they placed it on the market during 2006 and 2007. The appellants, however, did not substantiate when or for how long the property had been offered for sale. Nor did they substantiate the terms of the offering or that they had received only one offer, which they stated was for "between $300,000 and $400,000." Similarly, their asserted reason for rescission of the offer was undocumented. Further, the assessors submitted into evidence a letter from the Wareham Harbormaster Department responding to an inquiry relating to water quality and the presence of "Bay foam" in the area. The Harbormaster Department stated that Bay foam, which typically occurs after a heavy rain, poses no threat, and noted no conditions, such as toxic bloom, that might adversely affect water quality.    
For their part, the assessors submitted four sales of salt-waterfront properties, which the Board found were comparable to the subject property. Among these, the Board found that the property at 241 Cromesett Road, which is located within half a mile of the subject property in the Cromesett neighborhood, and which sold on December 3, 2007 for $675,000, was most comparable to the subject property and therefore provided the most probative evidence of the subject property's value. Like the subject property, 241 Cromesett Road is salt-waterfront property, although its water views were somewhat obscured by foliage. The ranch-style dwelling at Cromesett Road is in average condition, has six rooms, three bedrooms, one full bath and one half bath, all attributes shared by the dwelling on the subject property. The Cromesett Road dwelling is smaller, containing 982 square feet of finished living area, but the dwelling offers electric heat. The parcel on Cromesett Road is approximately 0.33 acres, slightly larger than the subject property's parcel. 
On balance, the property at 241 Cromesett Road is similar to the subject property in numerous respects, and the differences, certain of which favored each property, did not affect the Board's finding of comparability or warrant significant adjustment to the Cromesett Road property's sale price to estimate an indicated value for the subject property. Thus, the Board found that the sale price of the Cromesett Road property, taking into account the value of the adjoining parcel, supported the assessed value of the subject property.
Having considered the evidence of record, the Board found that neither the "sales offering" nor the comparable-assessment evidence presented by the appellants provided a reliable basis to establish the fair cash value of the subject property. The Board therefore found and ruled that the appellants failed to meet their burden of demonstrating that the subject property's assessed value exceeded its fair cash value for fiscal year 2008. The Board also found and ruled that the comparable-sales evidence presented by the assessors, particularly with respect to the property located at 241 Cromesett Road, supported the contested assessment. On this basis, the Board issued a decision for the assessors in this appeal. 



OPINION  
	Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January of the year preceding the fiscal year at issue.  G.L. c. 59 §§ 11 and 38.  Fair cash value is defined as the price upon which a willing buyer and a willing seller would agree if both were fully informed and neither was under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The burden of proof is upon the taxpayer to make out a right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  An assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  Id.  The taxpayer may sustain this burden by introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591,        600 (1984). "The introduction of ample and substantial evidence in this regard may provide adequate support for abatement."  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80).  
To support their assertion that the subject property was overvalued for fiscal year 2008, the appellants submitted a variety of information, including a book primarily composed of advertisements for the sale of properties purportedly in the general area of the subject property. The Board found that this presentation did not provide affirmative evidence of the subject property's value or support the assertion that the assessors had erred in their valuation method, because it lacked crucial information. In particular, there was no evidence relating to the properties' addresses, the quality of each property's location, the condition of the dwellings, or the physical attributes of each parcel. Further, no data reflecting actual sale prices was included in the presentation. Without this information, the Board could not determine if the properties were comparable to the subject property or consider adjustments to account for differences between the advertised properties and the subject property. 
G.L. c. 58A, § 12B provides, in pertinent part, that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible." "The admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the board."  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972). 
The Board, in its discretion, allowed into evidence various property record cards, which the appellants had submitted to bolster their argument that the subject property's assessed value was excessive. However, the Board found that the appellants failed to establish comparability between their chosen properties and the subject property. There were dramatic variations among the properties with regard to parcel size, the dwellings varied in size, style and condition, and the majority of the properties were not waterfront properties. The appellants failed to address in any way the substantial differences between these properties and the subject property. Therefore, the Board found that the appellants failed to demonstrate the comparability of their chosen properties or offer a method to make adjustments to account for differences between these properties and the subject property.
Finally, the Board found unsubstantiated the appellants' claims regarding the duration, terms and outcome of their attempt to sell the subject property, as well as the presence or effect of "toxic bloom." The Board therefore found that these claims were not probative of the subject property's fair cash value.      
"[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd Graham v. Assessors of West Tisbury, 73 Mass. App. Ct. 1107 (2008). Properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property, including similar age, locations, sizes and dates of sale.  Lattuca v. Robsham, 442 Mass. 205, 216 (2004). When comparable sales are used, allowances must be made for various factors which would otherwise cause disparities in the comparable property's sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  
In the present appeal, the assessors submitted data relating to sales of four salt-waterfront properties, each of which the Board found comparable to the subject property. Among these, the Board found that the property at 241 Cromesett Road, which is located within half a mile of the subject property in the Cromesett neighborhood, and which sold on December 3, 2007 for $675,000, was most comparable to the subject property and therefore provided the most probative evidence of the subject property's value. The property at 241 Cromesett Road was similar to the subject property in numerous respects, and the differences between the properties did not affect the Board's finding of comparability or warrant significant adjustment to the Cromesett Road property's sale price to estimate an indicated value for the subject property. Thus, the Board found that the sale price of the Cromesett Road property supported the assessed value of the subject property. 
On the basis of the evidence presented, the Board found and ruled that the appellants did not provide sufficient evidence to support their claim that the subject property was overvalued. As discussed, supra, the appellant's evidence relating to properties for sale in the area lacked crucial data, and their comparable-assessment submissions did not undermine the contested assessment. The Board thus found and ruled that the appellants failed to meet their burden of demonstrating that the subject property's assessed value exceeded its fair cash value for fiscal year 2008. Moreover, the Board found and ruled that the comparable-sales data provided by the assessors, and in particular the data relating to the property at 241 Cromesett Road, supported the contested assessment. On the basis of the foregoing, the Board issued a decision for the assessors in this appeal.



  APPELLATE TAX BOARD
               
				   By: ________________________________
					  Thomas W. Hammond, Jr., Chairman


A true copy:

Attest: undefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefined_________________________
	      Clerk of the Board

  The source of these advertisements is not entirely clear, but they appear to have been taken from various local real estate sales flyers.
 This sale included an adjoining unbuildable parcel located at 5 Progress Avenue consisting of 6,500-square-feet, which the assessors valued at $16,400 for fiscal year 2008. Consistent with the evidence presented, the Board found no indication that the adjoining parcel contributed more than its assessed value to the $675,000 sale price of 241 Cromesett Road. 

ATB 2011-444