Peter Stewart Temple v. Board of Assessors of the Town of Aquinnah (June 2, 2005)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



PETER STEWART TEMPLE		v.	BOARD OF ASSESSORS OF 
							THE TOWN OF AQUINNAH


Docket No. F266539 				Promulgated:
							June 2, 2005


	This is an appeal filed under the formal procedure for fiscal year 2002 pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes assessed on real estate located in the Town of Aquinnah owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38.
	Commissioner Egan heard the appeal and was joined in a decision for the appellee by Chair Foley and Commissioners Scharaffa, and Rose.
	These findings of fact and report are promulgated at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

	Peter Stewart Temple, pro se, for the appellant.

	Michael Goldsmith, Esq. for the appellee.


FINDINGS OF FACT AND REPORT
	On January 1, 2001, Peter Stewart Temple was the assessed owner of a parcel of real estate located at 1-3 Maple Drive in the Town of Aquinnah ("subject property").  The subject property is a 2.46-acre parcel of real estate improved with a single-family dwelling.  For fiscal year 2002, the Aquinnah Board of Assessors ("assessors") valued the subject property at $920,800 and assessed a tax thereon, at the rate of $3.49 per thousand, in the amount of $3,299.53, including special assessments in the amount of $85.94.  The appellant paid the taxes due without incurring interest.  On April 30, 2002, the appellant timely filed his application for abatement.  The assessors failed to act on the appellant's application within three months of its filing.  Accordingly, the application was deemed denied on July 30, 2002.  
Pursuant to G.L. c. 59, § 63, the assessors were required to send written notice of their inaction within ten days of the deemed denial date.  No evidence was presented to establish that the assessors sent any notice within the ten day period.  However, on August 18, 2002, more than ten days after the deemed denial date, the assessors voted to reduce the condition factor used to value the land portion of the subject property and granted a partial abatement, reducing the total assessed value by $42,300, to $878,500.  Because the notice of this partial abatement was sent more than ten days after the deemed denial date, the Appellate Tax Board ("Board") found that the assessors failed to comply with G.L. c. 59, § 63.
Generally, appeals must be filed with the Board within three months of the deemed denial date, October 30, 2002 in this appeal.  Pursuant to G.L. c. 59, § 65C, where the assessors fail to send written notice of their inaction to a taxpayer within ten days of the deemed denial date, this Board may extend the deadline for filing an appeal by two months.  In this appeal, extension of the appeal period by two months results in a filing deadline of December 30, 2002.  The appellant filed his appeal with the Board on November 5, 2002.  On the basis of these facts, the Board found that it had jurisdiction over the appeal.
	The subject property is located on the west side of Martha's Vineyard on the corner of Moshup Trail and Maple Hill Drive.  The lot is basically flat but rises gently to the rear and slopes down to a pond located on the appellant's property.  On both sides of the house there are approximately one-hundred-and-fifty feet of wetlands.  The Atlantic Ocean is just across the street on the opposite side of Moshup Trail, less than one-thousand feet from the subject property.  There are few homes on the water side of Moshup Trail; the area is mostly used to access private beaches for area residents, including Philbin Beach which is a beach only for residents of Aquinnah and is within a short walking distance of the subject property.  
	The dwelling is a forty-seven year old, one-story contemporary-style home.  The house, with a total living area of 1,908 square feet, is divided into two separate sections:  the main house and the "satellite" room.  The main part of the house has two bedrooms and one full-bathroom and one half-bathroom.  The satellite room, with a separate entrance, serves as the "master suite."  It contains one bedroom and a full-bathroom, as well as an outdoor shower.  The lily pond that is located on the appellant's property can be viewed from the master suite area.  Unlike the main part of the house which has only a crawl space, the satellite room has a full basement.  
The two parts of the home are connected by a large wooden deck, measuring thirty-six feet by twenty-two feet.  Located on this deck is a staircase that provides access to the roof deck, situated atop the main part of the house, which offers views of the Atlantic Ocean.  Also positioned on the main part of the house is an enclosed front porch, which offers partial views of the Atlantic Ocean.  The exterior of the home is wood shingle.
	The appellant's chief contention is that the land value component of his assessment was too high as a result of the assessors assigning to the subject property a land condition factor of 4.0.  Prior to the town's 2002 revaluation, the subject property was assigned a condition factor of 2.50.  The assessors relied on property sales in Aquinnah, together with the subject property's view of the ocean and good proximity to the water to assign a new condition factor of 4.0 to the subject property.  The appellant argued, however, that this new higher condition factor failed to take into consideration three factors that negatively impact the value of the subject property.  
First, while conceding that the subject property is in a "beautiful location," the appellant argued that the property's close proximity to Moshup Trail, which is traveled by tour buses, is a negative factor.  The appellant also argued that his property does not have deeded beach rights and that he must walk to the nearby residents only private beach, which is also a negative factor not taken into account by the assessors in valuing the subject property.  Last, the appellant argued that the zoning restrictions that are imposed on the subject property were not properly taken into consideration.  The appellant testified that there are other properties that are not subject to the same restrictive zoning requirements, which have been assigned the same condition factor as the subject property.  
The appellant offered into evidence property record cards for properties which he conceded were "not comparable" to the subject property.  He suggested that these properties are superior to the subject property because they have better views, deeded beach rights, and greater privacy, yet were assigned the same condition factor as the subject property.  Therefore, he argued, the subject property should have been assigned a lesser condition factor to account for these negative differences.  The appellant offered no evidence to show how the differences impacted the subject property's fair market value after the partial abatement.
The appellant also suggested that, historically, properties close to the beach have sold at significant discounts from homes that are farther away with better views.  He did not, however, offer any evidence to support his claim or to show how it impacts the subject property's fair market value.  In conclusion, the appellant argued that "[i]n the absence of any direct comparables for roadside properties, I believe the historic C Factor (2.5) should be maintained" and that the subject property's fair market value for 2002 was $640,600, $237,900 less than the assessed value.      
	In support of their assessment, the assessors offered into evidence the testimony and appraisal report of Mr. Kevin Spellman, a Massachusetts certified real estate appraiser.  On the basis of his education and experience, the Board qualified Mr. Spellman as a real estate valuation expert.  Mr. Spellman relied on the sales comparison approach to value the subject property, using three sales of properties that he deemed comparable to the subject property.
	Sale number one is located approximately four-tenths of a mile from the subject property at 15 Old South Road.  The property is a 2.00-acre parcel of real estate improved with a three-bedroom, one-bath home with a total living area of 1,652 square feet.  The property sold on September 7, 2000, for $850,000.  Sale number two is located one-half mile from the subject property at 63 Moshup Trail.  This lot is a 3.10-acre parcel of real estate improved with a four-bedroom, three full-bath house with a total living area of 1,792 square feet.  This property sold on October 15, 1999, for $935,000.  Last, sale number three is located one mile from the subject property at 22 Moshup Trail.  It is a 0.60-acre parcel of real estate improved with a four-bedroom, two full-bath house with a total living area of 2,048 square feet.  The property sold on March 6, 2000, for $900,000.  This lot, which is considerably smaller than the two-acre minimum for a buildable lot in Aquinnah, is a recognized pre-existing non-conforming lot.
	Acknowledging that differences existed between the subject property and his chosen comparables, Mr. Spellman made adjustments for date of sale, location, view, room count, gross living area, functional utility, fireplace, and decks.  Accordingly, he adjusted the properties' sale prices to $878,900, $911,100 and $895,500, respectively.  Based on these properties' adjusted sale prices, Mr. Spellman estimated the subject property's fair market value on January 1, 2001, to be $890,000.
	Based on the evidence presented, the Board found that the appellant failed to prove that the subject property was over-valued for fiscal year 2002.  The appellant's primary evidence was the property record cards for other properties that, in his opinion, were superior to the subject property, with better location, deeded beach rights, and greater privacy, yet these properties were assigned the same or similar condition factor.  He did not, however, establish how these assessments related to the subject property's overall fair cash value, which is especially problematic given the lack of overall comparability between the subject property and the chosen comparables.  Further, the Board found that the appellant failed to offer other reliable evidence of the subject property's fair market value as of January 1, 2001, and that the evidence introduced by the assessors supported the overall assessment as partially abated.  Accordingly, the Board issued a decision for the appellee.

OPINION
	Massachusetts General Laws c. 59, §§ 64 and 65, provide that a taxpayer who is aggrieved by the assessors' refusal to abate a tax on real estate may appeal to this Board "within three months after the date of the Assessors' decision on an application for abatement . . . or within three months after the time when the application for abatement is deemed to be denied."  Applications for abatement are deemed denied at the expiration of three months from the date the application for abatement was filed if the assessors take no action on the application.  G.L. c.58A, §6 and G.L. c. 59, §§ 64 and 65.
Pursuant to G.L. c. 59, § 63, assessors must send written notice to a taxpayer applying for an abatement within ten days of the date the application is deemed denied.  The notice must advise the applicant of the assessors' inaction on the application.  The notice must also contain the date the application is deemed denied and must advise the applicant of his right to appeal the decision or deemed denial under G.L. c. 59, §§ 64 through 65B.
In the present appeal, the appellant's request for abatement was deemed denied on July 30, 2002, three months from the appellant's April 30, 2002 filing with the assessors.  There is no evidence that the assessors took action on the application within three months of its filing or that the appellant consented to an extension on the three-month period.  See G.L. c. 58A, § 6 and G.L. c. 59, §§ 64 and 65.  The assessors' notice of decision, dated August 18, 2002, violated the express provisions of G.L. c. 59, § 63, requiring that notice be sent within ten days of the deemed denial date.  If the assessors fail to comply with the provisions of G.L. c. 59, § 63, requiring timely notice, G.L. c. 59, § 65C authorizes the Board to allow an additional two months time in which to timely file an appeal.  See Cardaropoli v. Assessors of Springfield, 2001 ATB Adv. Sh. 913, 923 (Docket No. F254899, etc., December 7, 2001).  "The Board's practice [is] to treat the petition filed as a petition for late entry . . . [and] if the conditions for allowing a petition for late entry exist, then the Board allows the petition to be entered nunc pro tunc and exercises jurisdiction over the appeal."  Cardaropoli, 2001 ATB Adv. Sh. at 925.  In the present appeal, although the appellant filed his petition with the Board beyond the three months from the deemed denial date, he did file his petition well within the two-month period allowed under G.L. c. 59, § 65C.  Accordingly, the Board ruled that it had jurisdiction over this appeal.	
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 Board is entitled to presume that the assessment is valid until the taxpayer sustains his burden of proving otherwise.   Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the taxpayer to make out his right as a matter of law to an abatement of the tax.  Id.  The taxpayer must demonstrate that the assessed valuation of his property was improper.  See Foxborough Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).
The taxpayer may prove his claim of over-valuation "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)).   "At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . at which assessors have assessed other property of a comparable nature . . . shall be admissible."  G.L. c. 58A, § 12B.  "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 [B]oard."  Board of Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972), citing Leen v. Assessors of Boston, 345 Mass. 494, 506 (1963).  
In the present appeal, the appellant offered into evidence property record cards of properties that, in his opinion, were superior to the subject property.  He noted that these properties, are located further from the beach and, therefore, have superior ocean views; have greater privacy; and, some have deeded beach rights.  Despite the differences, the properties were assigned the same or similar condition factor as the subject property.  Therefore, the appellant argued, it proved that his property was assigned too high of a condition factor and, consequently, the land portion of his assessment was overvalued. The appellant did not, however, make adjustments to the fair market values indicated by the assessments to account for differences between the subject property and his chosen comparables.  Further, other than his opinion of value, the appellant offered no other reliable evidence of fair market value.
The fair cash value of property may be determined by recent sales of comparable properties in the market.   Actual sales generally "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); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971).  When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices.  See Pembroke Industrial Park Co., Inc. v. Board of Assessors of the Town of Pembroke, 1998 ATB Adv. Sh. 1072, 1085 (Docket No. F224355, October 26, 1998).  "Adjustments for differences are made to the price of each comparable property to make the comparable equal to the subject on the effective date of the value estimate."  Appraisal Institute, The Appraisal of Real Estate 403 (12th ed. 2001).    
The Board found that the assessors' real estate valuation expert sufficiently established comparability between the subject property and the property sales on which he relied in estimating a fair market value for the subject property.  Finally, the Board found that he appropriately adjusted the comparable properties to account for their differences with the subject property.  
On the basis of the evidence, the Board found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued in fiscal year 2003.  Accordingly, the Board issued a decision for the appellee.
THE APPELLATE TAX BOARD

By:_____________________________Chair

   _____________________________Commissioner


   _____________________________Commissioner


   _____________________________Commissioner


   _____________________________Commissioner
					

A true copy,



Attest:_____________________________
       Assistant Clerk of the Board

 On its own motion, the Board reconsidered and vacated the October 20, 2003 single-member Decision for the appellee.  On May 27, 2005, the Board issued a Revised Decision, simultaneously with the promulgations of these Findings, for the appellee.
 The assessors mailed the actual tax bills on March 4, 2002, which were due and payable on May 1, 2002.  See G.L. c. 59, § 57C.  Therefore, pursuant to G.L. c. 59, §§ 57C and 59, the appellant had until May 1, 2002, to timely file an application for abatement.

ATB 2005-264