Abraham & Cheryl Heitin v. Board of Assessors of the Town of Sharon (July 10, 2002)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

ABRAHAM & CHERYL HEITIN       v. 	BOARD OF ASSESSORS OF THE TOWN OF SHARON


Docket No. F259097					Promulgated:
								July 10, 2002									

This is an appeal under the formal procedure, pursuant to G.L. c. 59,  §§ 64 and 65, from the refusal of the appellee to abate taxes on certain real estate in the Town of Sharon owned by and assessed to the appellants under G.L. c. 59, § 38, for fiscal year 2001.  
	Commissioner Gorton heard this appeal and issued a single member decision for the appellee in accordance with G.L. c. 58A, § 1, and 831 C.M.R. 1.20.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13, and 831 C.M.R. 1.32.


	Abraham and Cheryl Heitin, pro se, for the appellants.

	Mark Mazur, assessor, for the appellee.





FINDINGS OF FACT AND REPORT

	On January 1, 2000, Abraham and Cheryl Heitin ("appellants") were the assessed owners of a parcel of real estate, improved with a dwelling, located at 1 Prince Way in the Town of Sharon.  The Board of Assessors of Sharon ("assessors") valued the property at $394,800 and assessed a tax thereon, at the rate of $17.44 per thousand, in the amount of $6,885.31.  The appellants timely paid the tax assessed without incurring interest.  
On December 13, 2000, the appellants timely filed an application for abatement.  In their application, the appellants sought a $23,600 reduction in the subject property's valuation.
	On March 8, 2001, the assessors denied the appellants' application for abatement.  On March 19, 2001, the appellants timely filed their appeal with the Appellate Tax Board ("Board").  On this basis, the presiding member found that the Board had jurisdiction to hear and decide this appeal.
	The subject property consists of a 32,456 square foot (0.75 acre) parcel of land, which is situated at the intersection of Prince Way and Castle Drive on the eastern edge of town.  The parcel is improved with a 3,267 square-foot colonial-style, single-family, two-story house. The house was built in 1991.  The house is vinyl-sided and has an attached two-car garage.  It contains five bedrooms and three bathrooms.  Other amenities include a Jacuzzi, central air-conditioning and one fireplace.  
The appellants offered the testimony of the owner, Abraham Heitin, and submitted several documents to support their opinion of value, including a document entitled "Comparison Assessment Data."  This document listed the address, acreage, 2000 and 2001 assessments, percentage increase in the assessments from 2000 to 2001, the size of the improvements located on the property and the per-square-foot assessed value for twenty-two properties that the appellants considered comparable to the subject property.  The appellants' per-square-foot assessed values appear to be based on the 2001 assessed values divided by the square foot living area of the twenty-two houses.  Based on the property record card for the subject property submitted by the assessors, the living area for the subject property is comprised of the total square footage of the first and second floor living space.  However, the appellants did not submit any property record cards into evidence for their allegedly comparable properties in order to corroborate the data used in their comparison report.  
The appellants argued that the houses on the list are larger and have lower per-square-foot living area assessments than the subject.  Mr. Heitin testified that the average assessment per square foot of living area for the comparable properties is only $136 compared to the subject's living area per-square-foot value of $154.  In particular, the appellants relied on a home located at 6 Prince Way with an assessed value of $145 per-square-foot for its living area.  However, the appellants' comparison of per-square foot values between their comparables and the subject neglected to make adjustments for amenities that add value to the property, such as porches, garages, stoops and basements.  Further, the appellants' analysis did not establish any basic comparability between the purported comparables and the subject and failed to make any qualitative adjustments to account for their differences.  The appellants did not present data regarding sales of comparable properties to support their opinion of value of the subject.
Mark Mazur, assessor for Sharon, testified in defense of the assessment on the subject property.  In support of the assessors' position, Mr. Mazur presented an assessment report supported by comparable sales data for three properties.  He also submitted five property record cards along with a short narrative comparing the subject to selected properties listed as comparable by the appellants themselves.  The assessment report also explains the analysis used by the assessors to reach indicated market value of residential property in Sharon.  
The assessment report indicated that the assessors, in reaching a final determination of assessed value, made adjustments for location, age of building, market quality, grade of building, gross living area, number of bathrooms and presence of other amenities such as fireplaces and central air-conditioning.  The assessors used "effective area" data to value improvements.   The assessors arrived at an "effective area" square footage figure by adding the gross square footage of the first and second floor living areas of the house to a portion of the square footage of other "sections" of the house, such as the basement, porch, stoop and garage.  The assessment report states that "different sections of the house such as porches and basements were adjusted to reflect their contributions of value and produce an effective living area for each house."  In particular, on Exhibit E, the "residential/commercial view" document, the assessors listed the effective area of 1 Prince Way as 3,267 square feet.  This figure included the gross area of the first and second floors, plus a portion of the gross area of the enclosed, finished porch, finished garage, stoop and unfinished basement.  In contrast, the appellants argue that the house contains only 2,560 square feet of living area, comprised only of the gross area of the first and second floors of their house without consideration of the other space such as the finished porch and garage.     
The assessors analyzed and adjusted local sales to determine the appropriate portion of value to be assigned to sections of the house such as porches, basements, garages, and stoops.  Further, the detached improvements such as pools and garages were valued and then added to the property value.  The assessment report states that the subject property's indicated market value on the relevant assessment date was $394,800.  The presiding member found and ruled that the assessors' data and analysis supported the indicated fair market value of the subject property. 
Mr. Mazur highlighted the differences between the subject property and the purportedly comparable properties relied on by the appellants.  He testified that all of those properties, except the ones on Prince Way and Queen's Circle, are located in neighborhoods that are not comparable to the subject's neighborhood.  The property record cards submitted by the assessors confirmed the lower land values for the properties located on Aspen, Bishop, Magnolia and Azelea Roads.  Accordingly, the presiding member found that insufficient comparability existed between those properties and the subject to establish a meaningful estimate of value for the subject property.  In addition, the presiding member found that the lower per-square-foot assessments for those properties are further justified by the inferior condition of the houses compared to the subject's.  
Mr. Mazur further differentiated the subject property from the appellants' neighborhood comparables located at 6 Prince Way and at 1 Queen's Circle by testifying that the 1 Queen's Circle house is 12 years older, fifty-six square-feet smaller, and more ornate than the subject.  Also, the home at 1 Queen's Circle home contains one half-bathroom fewer.
With respect to 6 Prince Way, Mr. Mazur testified that although it is larger than the subject property, it has a modest assessment because it is eight years older and has one-half bathroom fewer than the subject property.  Overall, however, the assessed value of 6 Prince Way is $24,800 higher than the subject property's assessment.
Mr. Mazur also offered a comparable sales analysis to support the assessed value of the subject property.   The report analyzed the recent sales of three comparable properties and incorporated adjustments for time of sale, land size and neighborhood, effective living area, age and condition, number of bathrooms, and type of siding.  These properties and the subject property contain single-family, two-story, colonial style houses of similar grade and quality of construction.  All houses have central air conditioning, a full, unfinished basement, a two-car attached garage, one fireplace and a wood deck to the rear of the house.  After adjustments, the comparable properties submitted by the assessors have indicated values ranging from $441,700 to $457,100.  The presiding member found that these comparable sales support the $394,800 assessed value of the subject.
After considering all of the testimony and exhibits, the presiding member found and ruled that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2001.  The presiding member found that the appellants failed to provide evidence sufficient to prove overvaluation and also failed to rebut the assessor's testimony and report supporting the valuation of the subject property.  In particular, the presiding member found that the appellants did not adequately demonstrate the comparability between their purportedly comparable property assessments.  Furthermore, even if the appellants had established basic comparability, they neglected to make adjustments to indicated values for the differences between the purportedly comparable properties and the subject.  Further, the appellants provided no evidence of comparable sales to support their opinion of value.  To the extent that the appellants may have attempted to show disproportionate assessment, the presiding member found that there was no evidence that established or even raised an inference that the assessors engaged in an intentional scheme of disproportionate assessment.  On this basis, the presiding member determined that the appellants did not prove that their property was overassessed for fiscal year 2001. 
	The presiding member further found that the assessors adequately supported their valuation of the subject property.  The comparable sales analysis submitted by the assessors confirmed their valuation, as did the written assessment report prepared in connection with the analysis.
Accordingly, the presiding member decided this appeal for the assessors and issued a single-member decision for the appellee on February 5, 2002. 
     
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 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 assessment is presumed valid unless the taxpayer sustains the 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 appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that they have complied with the statutory prerequisites to their appeal, Cohen v. Assessors of Boston, 344 Mass. 268, 271 (1962), and that the assessed valuation of the property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  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)). 
	In the present appeal, the presiding member found that the appellants did not "expose flaws or errors in the assessors' method of valuation" nor did they "present persuasive evidence of overvaluation."  The appellants did not introduce any evidence regarding comparable sales, but instead relied on the assessments of purportedly comparable properties.  See G.L. c. 58A, § 12B.  The presiding member found that the appellants did not demonstrate that the properties offered to support their estimate of value were comparable to the subject property.  Some of the "comparable" properties offered by the appellants were in inferior neighborhoods in addition to being of different construction material, styles, size, age and condition.  Further, the appellant did not adjust for differences between the comparable properties and the subject property in order to properly impute a value to the subject property using the assessed values of the comparables.   Angelini v. Assessors of Leominster, 2002 ATB Adv. Sheet 138, 148 (March 22, 2002).  The appellant failed to adjust these purportedly comparable assessed values to account for the differences.
Furthermore, "[i]n order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is an 'intentional policy or scheme of valuing properties or classes of properties at a lower percentage of fair cash value than the taxpayer's property.'"  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997) (quoting Shopper's World, Inc. v. Assessors of Framingham, 348 Mass. at 366, 377 (1965)).  If taxpayers successfully demonstrate improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Id.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer[s]."  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 562 (1971).
In this appeal, the appellants did not raise an inference of a scheme of disproportionate assessment, nor did they present evidence supporting a scheme of disproportionate assessment.  In fact, the evidence that the appellants submitted actually supported the assessments of all the properties, including the subject property.  Accordingly, the presiding member found and ruled that the appellants neither raised an inference of disproportionate assessment, nor presented evidence to demonstrate or suggest that the assessors engaged in an "intentional widespread scheme of discrimination."  Stillson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).
In contrast to the appellants' presentation, the presiding member found that the comparable sales analysis and report submitted by the assessors supported the assessment.  The presiding member found that the assessors made appropriate selections of, and adjustments to, the comparable properties, and that the estimate of value of the subject property made by the assessors was reasonable.  On this basis, the presiding member ruled that the appellants failed to meet their burden of proving that their property was overvalued for fiscal year 2001.  

Accordingly, the presiding member decided this appeal for the appellee.



						APPELLATE  TAX  BOARD



					By:_______________________________
                             Donald E. Gorton, III, Member 





True copy,


Attest:___________________
       Clerk of the Board   		

 The assessors noted that the property record card indicates that the house contains four bedrooms, but in fact, there are five bedrooms. 
 The assessors noted that this amenity is not listed on the property record card.  The appellants do not deny the existence of the Jacuzzi. 
 Appellants' Exhibit 1 lists the house at 6 Prince Way with a living area of 2,897 square-feet, while the assessors exhibit E (residential commercial review for Sharon, Massachusetts) lists the effective area of 3,640 square-feet for the house.  
 Exhibit B, Assessment Report, p. 2.

1


ATB 2002-336