George Luongo, Jr. v. Board of Assessors of the Town of North Reading (February 8, 2012)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



GEORGE V. LUONGO, JR.	      v. 	   BOARD OF ASSESSORS OF THE						             TOWN OF NORTH READING


Docket No. F308072				   Promulgated:
		 					   February 8, 2012


	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 North Reading ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to George V. Luongo, Jr. ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2010.
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Rose and Chmielinski joined him in a decision for the appellant.
	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.  
	
	George V. Luongo, Jr., pro se, for the appellant.
	Debbie Carbone, 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, 2009, the appellant was the assessed owner of a 0.92-acre parcel of real estate, improved with a two-story, Colonial-style dwelling that is located at 18 Ridgeway Road, in North Reading ("subject property").  The subject property is located in neighborhood 1, class 3 and is zoned residential.  The subject property is situated in the northwest section of North Reading, proximate to state routes 28 and 62 and also Interstate 93.    
Constructed in 1987, the subject dwelling has a concrete foundation, wood siding, and an asphalt shingle roof. The dwelling has eight rooms, including four bedrooms, as well as two full bathrooms and one one-half bathroom, with a total finished living area of 2,373 square feet. Additional features include one fireplace, a partially finished basement, and an attached two-car garage.  The subject property is serviced by town water, but has a private septic system.  The subject property is in average overall condition.  The appellant testified that no improvements have been made to the dwelling other than routine maintenance.  He further testified that the kitchen appliances, kitchen and bathroom cabinets, countertops and fixtures are all original to the subject dwelling.
	For fiscal year 2010, the assessors valued the subject property at $647,700 and assessed a tax thereon, at the rate of $13.47 per $1,000, in the amount of $8,724.52.  The North Reading Collector of Taxes mailed the fiscal year 2010 tax bills on December 28, 2009.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest.  On January 25, 2010, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors seeking a reduction in the subject property's assessed value.  The appellant's abatement application was deemed denied on April 25, 2010.  On June 25, 2010, the appellant seasonably filed a Petition Under Formal Procedure 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 appellant presented his case through his own testimony and also the introduction of a self-prepared valuation report that cited five sales of purportedly comparable properties located in North Reading that sold during calendar year 2008.  All of the cited properties are located in neighborhood 1, class 3, and are zoned residential. The appellant's opinion of value for the subject property for the fiscal year at issue was $580,309.  	
	Sale number one, with an address of 3 Stonecleave Road, is a 1.0-acre parcel improved with a Colonial-style dwelling with a total of eight rooms, including four bedrooms and also two full bathrooms and one one-half bathroom, with a total living area of 2,516 square feet.  This property also has an above-ground pool, a shed, a sprinkler system, central air-conditioning, and a central vacuuming system.  This property sold for $640,000 on June 23, 2008.  
	The second sale, with an address of 6 Liberty Lane, is a 0.92-acre parcel improved with a Colonial-style dwelling with a total living area of 3,009 square feet.  The dwelling has a vaulted ceiling great room with a brick fireplace; there is also a walk-out basement.  Other amenities include custom made Natural Birch kitchen cabinets, a Trex deck, and a sprinkler system.  This property sold for $725,000 on June 30, 2008.
	Sale number three, with an address of 50 Lindor Road, is a 1.43-acre parcel improved with a Colonial-style dwelling with a Farmer's Porch.  The dwelling has a total of eight rooms with a finished living area of 2,959 square feet.  The kitchen has new appliances and granite countertops.  There is a wood deck in the rear, a custom patio area, and an in-ground pool.  This property sold for $675,000 on July 21, 2008.
	Sale number four, with an address of 12 Olde Farm Circle, is a 2.78-acre parcel improved with a Colonial-style dwelling.  Built in 1992, this home has a total of nine rooms, including four bedrooms and also two full bathrooms and one one-half bathroom, with a finished living area of 2,389 square feet.  The home has been updated with hardwood floors and central air-conditioning.  There is also a finished walk-out basement.  This property sold for $630,000 on September 26, 2008.
	Finally, sale number five, with an address of 12 Jill Circle, is a 0.47-acre parcel improved with a Colonial-style dwelling with a finished living area of 2,372 square feet.  Unlike the subject property which has a two-car attached garage, this property has a two-car under garage.  The property sold for $590,000 on October 30, 2008.
	In support of their assessment, the assessors relied on the testimony of Debbie Carbone, a member of the appellee.  Ms. Carbone testified that the subject property, which is located approximately one-quarter mile from the Hill View Country Club, is situated in a more desirable neighborhood than the appellant's purportedly comparable properties.  She further testified that her review of sales that occurred during 2009, 2010 and 2011 support this contention.  The assessors offered no further evidence to support their valuation of the subject property. 
	Based on the evidence presented, the Board found that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  In reaching its decision, the Board relied on the appellant's comparable sales, with adjustments for, among other issues, the subject property's superior location.  More specifically, the Board found that the appellant's comparable sales number 1, 4 and 5, located at 3 Stonecleave Road, 12 Olde Farm Lane and 12 Jill Circle, given the similar living areas in comparison to the subject property, provided the most probative evidence of the subject property's fair market value.  However, with respect to 3 Stonecleave Road, the Board found that the superior amenities warranted a downward adjustment; 12 Olde Farm Lane, due to its larger lot size and superior amenities also warranted a downward adjustment.  However, the Board found that 12 Jill Circle's smaller lot size and its two-car under garage design justified an upward adjustment.
	Reconciling these three sales, the Board determined that the fair cash value of the subject property for the fiscal year at issue was $620,000.  The Board therefore issued a decision for the appellant and granted an abatement of $373.12.


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 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 appellant has the burden of proving that the property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'"  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] the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  The appellant in this appeal attempted to prove that the subject property was overvalued by introducing the relevant sales information for five purportedly comparable properties located in North Reading and comparing them to the subject property's assessment for the fiscal year at issue.  
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., 358 Mass. 554, 560 (1971).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue.  See McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  "A major premise of the sales comparison approach is that an opinion of the market value of a property can be supported by studying the market's reaction to comparable and competitive properties."  Appraisal Institute, The Appraisal of Real estate 297 (13th ed., 2008).       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. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences in the elements of comparison are made to the price of each comparable property . . . .  The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."   The Appraisal of real estate at 322.    
Based on the evidence presented, the Board found and ruled that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  In making this finding, the Board relied on the appellant's comparable sales, primarily the sales located at 3 Stonecleave Road, 12 Olde Farm Lane and 12 Jill Circle.  The Board further found that 3 Stonecleave Road's superior amenities warranted a downward adjustment; 12 Olde Farm Lane, due to its larger lot size and superior amenities also warranted a downward adjustment.  However, the Board found that the sale price of 12 Jill Circle warranted an upward adjustment to account for its smaller lot size and inferior design.
The Board need not specify the exact manner in which it arrived at its valuation. Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment." Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 50, 72 (1941).  "The credibility of witnesses, the weight of evidence, the 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). 
After evaluating all of the evidence, the Board found that the fair cash value of the subject property for the fiscal year at issue was $620,000.  The Board therefore issued a decision for the appellant in this appeal and granted an abatement in the amount of $373.12. 


  				   THE APPELLATE TAX BOARD

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




A true copy,

Attest:					____
      Clerk of the Board
 

ATB 2012-83