Richard L. Gorman, Sr. v. Board of Assessors of the Town of Hardwick (August 27, 2013)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



RICHARD L. GORMAN, SR.	  v.        BOARD OF ASSESSORS OF
			  THE TOWN OF HARDWICK
 
Docket No. F314822 	    	      	  Promulgated:
							  August 27, 2013
							 
	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 Hardwick ("assessors" or "appellee") to abate a tax on certain real estate in the Town of Hardwick owned by and assessed to Richard L. Gorman, Sr. ("appellant") under G.L. c. 59, § 11 and 38, for fiscal year 2012 ("fiscal year at issue").
	Chairman Hammond ("Presiding Commissioner") heard the appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20. 
These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32. 

	Richard L. Gorman, Sr., pro se, for the appellant.

	Jennifer S. Kolenda, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2011, the appellant was the assessed owner of a 1.866-acre parcel of land improved with a ranch-style single-family dwelling located at 697 Lower Road in Hardwick ("subject property").  The dwelling contains 2,026 square feet of living area with six rooms, including four bedrooms, as well as two full bathrooms.  Amenities include a 300-square-foot porch and a fireplace. The dwelling is equipped with forced hot-water heating fueled by oil.  The subject property utilizes a private septic system for its wastewater and a private well for its drinking water.  The property record card on file with the assessors lists the subject property's condition with a grade of "A."  
For the fiscal year at issue, the assessors valued the subject property at $219,800, and assessed a tax thereon, at the rate of $13.32 per thousand, in the total amount of $2,927.74.   On December 29, 2011, Hardwick's Collector of Taxes sent out the town's actual real estate tax bills for fiscal year 2012.  The appellant timely paid the tax due without incurring interest.  On January 27, 2012, in accordance with G.L. c. 59, § 59, the appellant timely filed with the assessors an abatement application, which the assessors denied on February 1, 2012.  In accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on February 21, 2012.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
	For the fiscal year prior to the one at issue in this appeal, the Board issued a decision reducing the subject property's assessed value from $223,600 to a fair cash value of $201,200 as of January 1, 2010.  See Gorman v. Assessors of Hardwick, Docket No. F312247, October 7, 2011.  Therefore, pursuant to G.L. c. 58A, § 12A, the burden shifted to the assessors to justify their increase in valuation for the subject property for the fiscal year at issue.  To meet their burden of proof, the assessors submitted into evidence the requisite jurisdictional documents, the property record cards for the subject property and four purportedly comparable properties also located on Lower Road, and a "cost ratio study."  
The assessors' cost ratio study listed twelve properties located in Hardwick that sold between October 26, 2009 and June 17, 2011, and provided certain descriptive information, including the properties' neighborhood code, land size, finished living area, building style, overall grade and condition, fireplace, finished basement and garage.  In this study, the assessors compared the cited properties' sale prices to their assessed values to calculate cost ratios ranging from 0.879 to 1.10590, with a median cost ratio of 0.9798.  Based on these calculations, the assessors argued that the town's property assessments for the fiscal year at issue, including the subject property, were appropriate.
The appellant argued that the subject property was negatively impacted by the noise associated with the continuous traffic passing his home, presumably, en route to and from Hardwick Kilns, which is located approximately five miles from the subject property.  In support of his argument, the appellant offered into evidence numerous photographs of vehicles traveling the road in front of his house including dump trucks, tractor-trailers, and box trucks.  The appellant also submitted an article entitled "Hedonic Property Value Studies of Transportation Noise: Aircraft and Road Traffic," which suggests that all other things being equal, excessive noise levels result in a negative impact on a property's value.  The appellant did not, however, offer evidence to demonstrate how, and to what extent, the traffic on Lower Road negatively impacted the fair cash value of the subject property.   
Based on the evidence presented, the Presiding Commissioner found that the assessors failed to demonstrate that they were justified in assessing the subject property at a value greater than the Board found for the subject property for the prior fiscal year.  The Presiding Commissioner found that although the assessors' cost ratio study suggested that the town's assessed values were, for the most part, lower than the cited properties' sale values, the assessors did not show how this analysis supported an increase in the subject property's assessed value for the fiscal year at issue.  The Presiding Commissioner further found that the assessors' submission of property record cards for properties also located on Lower Road contained no analysis or adjustments for any of the obvious factors by which the purportedly comparable properties differed from the subject property and, therefore, also failed to justify an increase in the subject property's assessed value.  The Presiding Commissioner also found that the appellant failed to prove that the subject property had a fair cash value less than the Board's finding of value for the prior fiscal year.  
Accordingly, the Presiding Commissioner found that the $201,200 value found by the Board for fiscal year 2011 was the appropriate value for the subject property for fiscal year 2012.  On this basis, the Presiding Commissioner decided this appeal for the appellant and reduced the subject property's assessed value from $219,800 to its prior fiscal year's value of $201,200, as previously determined by the Board, and granted an abatement in the amount of $247.75.

OPINION
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 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).  
Generally, the burden of proof is upon the taxpayer to prove that the subject property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974)(citing Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)).  The assessment is presumed valid until the taxpayer sustains his burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 363 Mass. at 245).  
If, however, the assessment at issue exceeds the Board's prior determination of the subject property's fair cash value for either of the two immediately preceding fiscal years, then, pursuant to G.L. c. 58A, § 12A, "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  Finlayson v. Assessors of Billerica, Mass. ATB Findings of Fact and Reports 2007-531, 538.  In the present appeal, the Presiding Commissioner took judicial notice of the Board's fiscal year 2011 decision and finding of value and ruled in this appeal that the burden of going forward to justify the increase in the assessment from the prior fiscal year was on the assessors. See generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); see also Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87 ("Once a prior determination of the Board of the fair cash value of the same property [for one of the prior two fiscal years] has been placed in evidence, [] the statute requires the [assessors] to produce evidence to 'satisfy the Board that the increased valuation was warranted.'").  Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value still remains on the appellant to prove that the subject property's fair cash value is less than the Board's prior year determination.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1; Cressey Dockham, Mass. ATB Findings of Fact and Reports at 1989-86-87.
In the present appeal, the assessors presented a comparison of sale prices and assessed values for twelve properties located in Hardwick.  The Presiding Commissioner found that although the assessors' cost ratio study suggested that the town's assessed values for the cited properties were, for the most part, lower than their sale values, the assessors did not prove how this analysis related to or justified an increase in the subject property's assessed value for the fiscal year at issue.  The Presiding Commissioner further found that the assessors' submission of property record cards for properties also located on Lower Road, which contained no analysis or adjustments for any of the differences between the purportedly comparable properties and the subject property, also failed to justify an increase in the subject property's assessed value.  The Presiding Commissioner also found that the appellant failed to prove that the subject property had a fair cash value less than the Board's finding of value for the prior fiscal year.  
Accordingly, the Presiding Commissioner found and ruled that the assessors failed to meet their burden of justifying an increase in value of the subject property over the value found by the Board for fiscal year 2011.  The Board further found and ruled that the appellant failed to prove that the subject property's fair cash value was lower than the value found by the Board for the previous fiscal year.  On this basis, the Presiding Commissioner found and ruled that the $201,200 value found by the Board for fiscal year 2011 was the appropriate value for the subject property for fiscal year 2012.

Accordingly, the Presiding Commissioner decided this appeal for the appellant and reduced the subject property's assessed value from $219,800 to $201,200, and granted abatement in the amount of $247.75.

					 THE APPELLATE TAX BOARD



				  By: __________________________________
					 Thomas W. Hammond, Jr., Chairman



A true copy,


Attest: ____________________________
	               Clerk of the Board

 G.L. c. 58A, § 12A, provides in pertinent part that: 
If the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted.

ATB 2013-807