Robert D. & Judith S. Krumme v. Board of Assessors of the Town of Concord (April 17, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ROBERT D. &                 v. 	   BOARD OF ASSESSORS OF     
JUDITH S. KRUMME               	   THE TOWN OF CONCORD
	
Docket No. F316405				   Promulgated:
							   April 17, 2014

        						  
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 Concord ("appellee" or "assessors") to abate taxes on certain real estate in Concord,  owned by  and  assessed to Robert D. and Judith S. Krumme (together, "appellants") under G.L. c. 59, §§ 11 and 38 for  fiscal year 2012 ("fiscal year at issue").
Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Mulhern and Chmielinski joined him in the decision for the appellee.  
	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 D. Krumme, pro se, for the appellants. 

	Lane Partridge, assistant assessor, for the appellee.


FINDINGS OF FACT AND REPORT

On the basis of the testimony and exhibits entered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact. 
On January 1, 2011, the relevant date of assessment for the fiscal year at issue, the appellants were the assessed owners of a 3.35-acre parcel of land, improved with a two-story, Colonial-style dwelling, located at 349 Simon Willard Road in Concord, Massachusetts ("subject property"), which is set towards the rear of the parcel.  For the fiscal year at issue, the assessors valued the subject property at $1,858,700 and assessed a tax thereon, at the rate of $13.58 per $1,000, in the total amount of $25,599.40.  On December 30, 2011, Concord's Collector of Taxes sent out the town's actual real estate tax bills for fiscal year 2012.  In accordance with G.L. c. 59, § 57C, the appellants timely paid the tax due without incurring interest.  On February 1, 2012, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement, which the assessors denied on March 29, 2012.  On June 12, 2012, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed their 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 is located in the Nashawtuc Hill neighborhood, which is one of the premier neighborhoods in Concord. Nashawtuc Hill is surrounded on three sides by rivers, and vehicular access is limited by the existence of only a few entry points into the neighborhood.  As a result of this limited access, the neighborhood is quiet and private, yet it is also located within a short distance of the village area of Concord. Consequently, the neighborhood also offers the convenience of proximity to retail establishments and commuter rail service to Boston.  In addition, the Nashawtuc Hill neighborhood includes picturesque historic estates developed in the nineteenth century, scenic vistas, a sledding hill, and open space.
The subject property is improved with a two-story, wood-frame, Colonial-style home, which is situated at the rear of the parcel and only partially visible from the street.  The subject dwelling has a total of nine rooms, including four bedrooms, as well as two full bathrooms and one half bathroom, with a total living area of 3,493 square feet.  The dwelling has a forced hot-air heating system fueled by oil and central air conditioning.  The exterior of the house is wood clapboard and brick, with an asphalt-shingled gable roof.  The subject property is serviced by town water, but has a private septic system.  Additional amenities include an attached four-car garage, two fireplaces, a screened porch, and a partially finished attic.  
In support of their contention that the subject property was overvalued for the fiscal year at issue, the appellants offered the testimony of Mr. Krumme and also submitted a self-prepared sales-comparison analysis.  For their analysis, the appellants selected sales of five purportedly comparable properties, which occurred between April, 2010 and June, 2011, with sale prices that ranged from $845,000 to $1,200,000.  These purportedly comparable sale properties ranged in size from 0.92 to 2.10 acres, with finished living areas that ranged from 2,416 to 4,866 square feet.  The appellants made adjustments for differences between the subject property and their purportedly comparable properties including adjustments for time of sale, lot size, number of bedrooms and bathrooms, living area, central air conditioning, number of fireplaces, size of garage and other amenities.  Although only comparable sales number four and five were located in Nashawtuc Hill, the appellants failed to make any adjustments for location.  The appellants' sales-comparison analysis yielded adjusted sale prices that ranged from $835,088 to $1,045,220.    
The appellants' sales-comparison analysis is reproduced in the following table.
		Sale #1	Sale #2	Sale #3	Sale #4	Sale #5		
	Subject Property	64 
Stone Root Ln	1337 
Old Marboro Rd	1117
 Lowell 
Rd	315 Musketaquid Rd	105 Musterfield Rd.		Sale Date		02/03/2011	04/23/2010	06/17/2011	12/1/2010	11/19/2010		Sale Price		$885,000	$861,500	$845,000	$905,000	$1,200,000		Proximity to
 Subject Property		3.2 miles	3 miles	3.5 miles	0.65 miles	0.35 miles		Land Size (acres)	2.3 	0.95	1.91	0.92	1.75	2.10		Finished Living
 Area (sq. ft.)	3,493	3,640	3,358	2,416	2,423	4,866		Adjustments ($)								Date of Sale		2,390	-40,662	11,408	-5,340	-7,080		Site		50,000		50,000				Rooms/Beds/Baths	9/4/2.5				5,000	-50,000		Living Area		-7,350	6,750	53,850	53,500	-59,750		Fireplaces	2				5,000	-10,000		Garage	4 Car	7,500	7,500	7,500	3,750	3,750		Pool	None					-30,7010		Improvements					-9,300	-1,000		Adjusted Sale
Price		
$937,540	
$835,088	
$982,758	
$957,610	
$1,045,220		
Based on their sales-comparison analysis, the appellants determined that the subject property's fair market value for the fiscal year at issue was $947,575.
The appellee presented its case-in-chief through the testimony of Lane Partridge, assistant assessor, and the introduction of several exhibits, including the requisite jurisdictional documentation and Mr. Partridge's sales-comparison analysis.  For his sales-comparison analysis, Mr. Partridge relied on three purportedly comparable properties, all located in the Nashawtuc Hill area:  350 Musketaquid Road, about 0.72 miles from the subject property; 244 Musterfield Road, about 0.44 miles from the subject property; and 7 Simon Willard Lane, about 0.67 miles from the subject property.  These properties ranged in size from 0.31 to 1.20 acres and were improved with homes ranging in size from 3,358 to 6,407 square feet.  The comparable properties sold between January 21, 2010 and April 1, 2011, with sale prices that ranged from $1,515,000 to $2,700,000.  After applying adjustments for factors including lot size, living area, number of bathrooms, size of garage, house style, and overall condition, Mr. Partridge's purportedly comparable properties yielded adjusted sale prices ranging from $1,744,680 to $2,430,600.
Mr. Partridge testified that with respect to the appellants' comparable sale number four, 315 Musketaquid Road, and number five, 105 Musterfield Road, which both sold for less than the subject property's fiscal year 2012 assessment, the properties' dwellings were razed subsequent to the purchase and new dwellings were built.  For this reason, Mr. Partridge maintained that these sales were in essence land sales and therefore not comparable to the subject property.   
On the basis of the evidence of record, the Board found that the appellants failed to meet their burden of proving that the subject property's assessed value exceeded its fair cash value for the fiscal year at issue.
First, the Board found that although the appellants' comparable sales number one, number two and number three were not located in the prestigious Nashawtuc Hill area, the appellant failed to make any location adjustments.  Second, the Board found that the appellants failed to demonstrate how and to what extent the subject property's configuration and easements negatively impacted its fair cash value.  Third, the Board found that the appellants failed to address or even consider that the dwelling associated with comparable sales number four and number five were demolished subsequent to their purchase, suggesting that they were land sales and thereby calling their comparability into question.
In contrast, the Board found that the assessors' three comparable sales properties located in the desirable Nashawtuc Hill area, within one mile of the subject property, once adjusted, supported the subject property's assessment for the fiscal year at issue.
On the basis of all of the evidence, the Board found that the appellants failed to meet their burden of proof.  Accordingly, the Board issued a decision for the appellee in this appeal.  

OPINION
The assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, §§ 11 and 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion. Boston Gas. Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).	 
The appellant has the burden of proving that the property has a lower value than that assessed.  "The burden of proof is upon the taxpayer to make out a right to an abatement."  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 Board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers ... prov[e] to the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984)(quoting Schlaiker, 365 Mass. at 245)).
"[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 2007-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  
Properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property. See Lattuca v. Robsham, 442 Mass. 205, 216 (2004).  The appellant bears the burden of "establishing the comparability of . . . properties [used for comparison] to the subject property.  Silvestri v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports 2012-926, 935.  Accord New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).  "[B]asic comparability is established upon considering the general character of the properties." Id.  
"Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."  Id.  However, the Board has ruled that adjustments which are "excessive" in amount "compromise[] the indicated values derived from [the] comparable sales methodology" and "raise[] serious questions regarding the initial comparability of" properties utilized.  W.A. Wilde Co. & Wilde Acres Realty Corp. v. Assessors of Holliston, Mass. ATB Findings of Fact and Reports 2008-86, 112 (citing Trustees of the Charles Cotesworth Pinckney Trust v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-621, 630-31). 
	In the present appeal, the Board found that the appellants did not provide credible evidence that the subject property was overvalued for the fiscal year at issue.  The majority of properties cited in the appellants' sales-comparison analysis were located outside of the prestigious Nashawtuc Hill area.  Despite this factor, the appellants failed to make any adjustments for location.  The Board also found that the appellants failed to quantify the extent to which the subject property's configuration and easements negatively impacted its fair cash value.  The Board further found that the appellants' comparable sales numbers four and five, the only sales which were located in the Nashawtuc Hill area, were in essence land sales, with the existing structures torn down shortly after purchase and new dwellings constructed.  In contrast, the Board found that the sales-comparison analysis provided by the assessors was credible and supported the subject property's assessed value.  
"The board [is] not required to believe the testimony of any particular witness but [may] accept such portions of the evidence as appear to have the more convincing weight."  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).






Based on all of the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  Accordingly, the Board issued a decision for the appellee in this appeal.

					    THE APPELLATE TAX BOARD


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





A true copy,

Attest: ____________________________
	       Clerk of the Board

 This amount includes a Community Preservation Act surcharge of $358.25. 
 For purposes of their analysis, the appellants considered the subject property as having 2.3 acres, because of its odd configuration and the various easements towards the rear of the subject, rather than its actual 3.35 acres.
 The Board notes that, in the appellants' appeal concerning the subject property for fiscal year 2008, the appellants testified that the fair market value of their property was $1,625,000.  See Krumme v. Concord, Mass. ATB Findings of Fact and Reports 2010-298, 303.  In that appeal, the Board determined that the fair cash value of the subject property was $1,700,000.  Id. at 310.

212


ATB 2014-212


ATB 2014-212