James M. Frost v. Board of Assessors of the Town of Burlington (October 2, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JAMES M. FROST               v.   BOARD OF ASSESSORS OF THE 
                                  TOWN OF BURLINGTON

Docket No. F285675                Promulgated:
						    October 2, 2007


	This is an appeal under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on real estate located in the Town of Burlington owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2006.
	Commissioner Egan heard the appeal and was joined in the decision for the appellee by Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern.
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

James M. Frost, pro se, for the appellant.
James F. Sullivan, Esq., for the appellee.


FINDINGS OF FACT AND REPORT
	On the basis of the exhibits and testimony offered into evidence during the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2005, James M. Frost was the assessed owner of an approximately one-half acre parcel of real estate and single-family colonial-style dwelling located at 14 Chadwick Road in the Town of Burlington ("subject property").  The subject dwelling was built around 1981, contains eight-rooms, and has approximately 2,240 square feet of finished living area.  There is a wooden deck in the rear of the property and also an attached two-car garage.  The exterior of the dwelling is clapboard and there is an asphalt-shingle hip roof.  The home has forced hot-water oil heating, but no central air conditioning.  
There are some items of deferred maintenance, including needed repairs to: trim around the front doorway; footings on the porch; and a portion of one exterior wall that is in need of repainting.  There are also no steps from the deck to the ground in the rear of the property.
	The land on the subject property is mostly wooded, abuts wetlands, and is encumbered by three easements, including a utility easement along the front section of the site and a drainage easement along the easterly section.
	For fiscal year 2006, the Assessors of Burlington ("assessors") valued the subject property at $508,600 and assessed a tax, at the rate of $9.00 per thousand in the amount of $4,577.40.  The town mailed the actual tax bills for fiscal year 2006 on December 29, 2005.  The appellant timely paid the tax assessed without incurring interest.  The appellant seasonably filed an application for abatement on January 24, 2006.  The assessors denied the application on March 30, 2006 and sent notice of the denial to the appellant on March 31, 2006.  The appellant timely filed an appeal under the formal procedure with the Board on June 15, 2006.  On the basis of these facts, the Board found and ruled that it had jurisdiction over the appeal.
Because the Board issued a decision in the appellant's fiscal year 2005 appeal in which it determined that the fair cash value of the subject property was $450,000 as of January 1, 2004, the assessors had the burden of going forward with evidence showing that the increase in value to $508,600 for fiscal year 2006 was warranted.  To meet this burden, the appellee offered the testimony and appraisal report of its expert witness and certified appraiser, Charles Haven, who offered his opinion of the subject property's market value based on a comparable sales analysis.  The appellee also offered the testimony of a member of the assessors, Russell Washburn.
In his comparable sales analysis, Mr. Haven analyzed the sales of six properties, all within one mile of the subject property and with overall market appeal similar to the subject property.  By adjusting the sales to account for differences with the subject property, Mr. Haven concluded that the adjusted values of the properties ranged from $475,000 to $535,000 as of January 1, 2005, with most having a value between $510,000 and $520,000.  Based on his analysis, Mr. Haven concluded that the fair market value of the subject property for fiscal year 2006 was $515,000.
In his fiscal year 2005 appeal, the appellant successfully argued that the items of deferred maintenance on his residence caused the building to have a "below average" condition.  The assessors offered no evidence to rebut this argument, or any other affirmative evidence of value in the fiscal year 2005 appeal.  See Frost, Mass. ATB Findings of Fact and Reports at 2006-373.  In the present appeal, however, the appellee presented sufficient evidence to show that the building's condition was in fact average.  In Mr. Haven's opinion, the items of deferred maintenance were minor, and they would likely cost between $5,000 and $8,000 to repair.  He maintained that these costs are insubstantial for properties such as the subject property, and that such repairs are expected when purchasing a dwelling that was constructed in or around 1981.  Therefore, he concluded that these items did not detract from the building's overall marketability and that a condition rating of "average" was appropriate.  Mr. Haven also concluded that the easements on the subject property are common among comparable properties and do not adversely affect its overall marketability.  The Board found Mr. Haven to be credible and his opinions and conclusions to be well substantiated.
	Mr. Washburn testified that the increase in value of the subject property was consistent with the general rate of appreciation in the town.  The appellant did not challenge this evidence.  In fact, the appellant stipulated to Mr. Haven's estimate of the subject property's fair cash value for fiscal year 2006, which exceeded the subject assessment.  He argued, however, that his property was assessed disproportionately compared to comparable properties.  Specifically, he argued that his building value was disproportionately assessed compared to other building values based on the dollar amount applied to the square footage of finished living area.  In support of this assertion, the appellant offered evidence of the assessed values of buildings on properties in the neighborhood that he deemed to be comparable and the "property record cards" of those properties that he obtained from the Internet.
The appellant failed, however, to submit sufficient evidence to substantiate this disproportion claim.  He did not meet his burden of proving that the assessors engaged in an intentional and widespread scheme of disproportionate assessment.  He only offered evidence of the assessed values of a handful of nearby properties that he claimed were comparable.  This evidence fell well short of establishing an intentional, widespread scheme of disproportionate assessment.
Additionally, the appellant's evidence did not contain sufficient detail to establish that the nearby properties were actually comparable.  The online record cards that he submitted contained only basic, unsubstantiated information about the properties such as acreage, square footage of the residences, building conditions, and addresses.  The appellant did not adjust the assessed values for these properties or in any other way establish that they were an adequate indicator of the fair cash value of the subject property.  Therefore, the appellant failed to show that the building values of other properties supported his claim for an abatement.
The appellant also argued that the assessors failed to account for the adjacent wetlands and the three easements on his land when assessing its value.  However, the record does not support this argument.  Even assuming that the properties offered by the appellant were comparable to the subject property, their assessed values tend to show that the subject property has a lower land assessment than that of many of the comparable properties he offered.  The lot sizes of all of the properties listed by the appellant are approximately the same as the subject property, and their land assessments range from $181,400 to $263,000, with a median value of $231,100.  The appellant's land is assessed at $218,200, approximately $13,000 below the median.  Additionally, the appellant failed to rebut or contradict Mr. Haven's opinion that such easements are typical of properties in the area, and therefore do not significantly detract from the subject property's overall marketability.  Accordingly, appellant failed to prove that the existence of adjacent wetlands and easements resulted in an overvaluation of the subject property.

On the basis of these facts, the Board found and ruled that the appellee met its burden of producing evidence which showed that its increased assessment over the Board's finding of fair cash value for fiscal year 2005 was warranted.  The Board further found and ruled that the appellant failed to meet his burden of proving that the property was disproportionately assessed or overvalued.  Further, the appellant did not contest that $515,000 was the fair cash value of the subject property on the relevant assessment date and offered little credible evidence to support his abatement claim.  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 determined as of the first day of January of each year.  G.L. c. 59, § 38.  Fair cash value is the price on which a willing buyer and a willing seller in a free and open market will agree if both are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
Generally, the appellant has the burden of proving that the assessors failed to assess the subject property at its fair cash value.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  However, in appeals such as the present one, where the Board has issued a decision establishing the fair cash value of the subject property for either of the two fiscal years immediately preceding the year at issue, the burden is on the assessors to introduce evidence showing that any increase in value over the value found by the Board in the latest of the preceding two fiscal years is warranted.  G.L. c. 58A, § 12A.  Since the Board valued the subject property at $450,000 in fiscal year 2005, the burden was on the appellee to present evidence showing that its assessment of $508,600 in fiscal year 2006 was warranted.
To establish the fair cash value of the subject property, the appellee may rely on a sales comparison analysis of comparable properties.  Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  In the present case, the appellee presented evidence of the sales of nearby properties with similar market appeal, adjusted to indicate their market value as of the relevant assessment date of January 1, 2005.  The Board found that this evidence supported the opinion of the appellee's expert witness that the fair cash value of the subject property was $515,000.  Accordingly, the Board found and ruled that the appellee met its burden of producing evidence which showed that the increase in assessed value for fiscal year 2006 to $508,600 was warranted.
The appellant failed to offer sufficient evidence to detract from the appellee's evidence, or to offer substantial evidence to support an affirmative claim that his property was overvalued.  In fact, he actually conceded that the fair cash value of the subject property was $515,000, and argued only that the assessment of the subject property's building value was disproportionate compared to the assessed building values of allegedly comparable properties.  For several reasons, the Board found and ruled that this claim was without merit.
First, the appellant conceded that the fair cash value of the subject property was $515,000.  Since the appellant failed to establish or even argue that the assessed value of the subject property exceeded its fair cash value, the appellant failed to meet his burden of proving overvaluation of the subject property.
Second, in order to prevail on a claim of disproportionate assessment, the appellant would have to show that he has been the victim of an intentional scheme of widespread disproportionate assessment by the assessors. Coomey v. Assessors of Sandwich, 367 Mass. 836 (1975) (citing Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1971)).
The appellant's evidence failed to demonstrate an intentional, widespread scheme of disproportionate assessment.  He analyzed only a handful of nearby properties and their assessments, along with some limited, basic information about the properties.  This evidence falls well short of meeting the appellant's burden of proving that the assessors engaged in an intentional scheme of widespread disproportionate assessment.  See, e.g., Bell v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2006-754; Shillman v. Assessors of Weston, Mass. ATB Findings of Fact and Reports 2006-108; Ecker v. Assessors of Town of Chatham, Mass. ATB Findings of Fact and Reports 2003-81.  A finding of an intentional widespread scheme would require far more data and analysis among classes of property or within the residential class than the limited information and analysis supplied by the appellant here.
Furthermore, a taxpayer does not conclusively establish a right to abatement merely by showing that the building on the subject property is overvalued.  "The tax on a parcel of land and the building thereon is one tax...although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  Although the Board may inquire into and revise the land and building values separately, the only relevant inquiry is whether the single tax upon the entire subject property is excessive.  Massachussetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Guernsey v. Assessors of Williamstown, Mass. ATB Findings of Fact and Reports 2006-158, 168-69; Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 48-49.
In the present case, the appellant disputed only the value of the building on the subject property.  However, the single tax of $4,577.40 based upon the overall assessment of $508,600 is not excessive.  At the hearing, the appellant stipulated to Mr. Haven's overall valuation of the subject property at $515,000.  Since the appellant does not dispute the appellee's estimation of the fair cash value of the subject property at $515,000, he has not established that the appellee's assessment of $508,600 is excessive.  Therefore, the Board found and ruled that the subject property was not overvalued and the appellant was not entitled to abatement.
Based on the evidence presented, the Board found that the appellee met its burden of presenting evidence which showed that the increase in the subject property's assessment over its fair cash value found by the Board for the prior fiscal year was warranted.  The Board further found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue or that it was disproportionately assessed.  On this basis, 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

 See Frost v. Assessors of Burlington, Mass. ATB Findings of Fact and Reports, 2006-371.

ATB 2007-1110