Stein B. Jacobsen v. Board of Assessors of the Town of Concord (May 12, 2004)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


STEIN B. JACOBSEN			v.	BOARD OF ASSESSORS OF 
THE TOWN OF CONCORD

Docket No. F266307				Promulgated:
							May 12, 2004
					

	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on real estate located in the Town of Concord, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2002.
	Commissioner Egan heard the appeal and, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, issued a single-member Revised Decision, simultaneously with the issuance of this Findings of Fact, for the appellant and granted an abatement in the amount of $7,700.
	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.

	Stein B. Jacobson, pro se, for the appellant.
	Kevin Batt, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2001, Stein B. Jacobsen ("the appellant") was the assessed owner of a parcel of real estate located at 531 Monument Street, Concord, Massachusetts, improved with a single-family home ("the subject property"). For fiscal year 2002, the Concord Board of Assessors ("assessors") valued the subject property at $1,020,600, and assessed a tax at the rate of $9.83 per thousand, in the amount of $10,032.50.  The appellant paid the tax due without incurring interest.  On February 1, 2002, the appellant timely filed an application for abatement with the assessors and, on April 30, 2002, the appellant agreed in writing to extend the period of time for the assessors to act upon his abatement application.  
On July 16, 2002, the assessors granted the appellant a partial abatement in the amount of $160,900 of valuation, decreasing the property's assessed value to $859,700.  Not satisfied with the amount of the abatement, on October 7, 2002, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On this basis, the Board found that it had jurisdiction over the subject appeal.  
The subject property is a 2.4-acre parcel of real estate located on the corner of Monument Street and Red Coat Lane and is improved with a split-level contemporary house.  The parcel is square in shape and has substantial classified "wetlands" located to the rear of the parcel.  The house is a "Deck style" home built in 1968 and has seven rooms, including three bedrooms and two-and-one-half baths, and has a total gross living area of 1,771 square feet.  The living room has sliding doors that lead to a rear deck and, as with most Deck homes, the ceilings are cathedral height and are covered with cedar wood.  The lower level of the home has walkout access to the rear yard and is finished with a family room, office area and a half-bath.  The family room also has a fireplace.  The unfinished area of the lower level houses a two-car garage and a utility room that is also used for storage.  
The Town of Concord is located approximately twenty miles west of Boston and is accessible via Route 2, which travels in an east-west direction, and also Route 128/95, which travels in a north/south direction. Public transportation is available through the B&M railroad, which travels into Boston and has two stations located in Concord.  
Incorporated in 1639, the Town of Concord is one of the nation's oldest communities and is rich in history.  The first shots of the revolutionary war were fired at the North Bridge on the Concord River, approximately one-half mile from the subject property, and the town has produced some of the nation's leading literary figures, including Ralph Waldo Emerson and Henry David Thoreau.  
The subject property is located at 531 Monument Street in the north-central section of Concord.  The property is just one mile north of Concord center and one-half mile from the Minuteman National Park.  Located across from the subject property is the Fenn School, an elite boys' day school for grades four through nine.  The school is located on a 6.5-acre parcel of land, which also has located on it four private homes for school staff.  This part of town, given its large amounts of open space and restricted land, together with its proximity to town center and other landmarks in the Town of Concord, is very desirable and is recognized as a premium area.
In support of the appellant's contention that the subject property was over assessed for fiscal year 2002, the appellant offered his testimony, a self-prepared sales/assessment analysis and the testimony of his wife, Joanna Vizgirda, who assisted in the preparation of the analysis.  Ms. Vizgirda testified that the analysis contained in the report was based on a review of all sales in the Town of Concord for calendar year 2000.  Concluding that there is a strong correlation between living area and selling price, the analysis group was narrowed to thirty-eight sales of properties that had gross living areas within plus or minus twelve-percent of the subject property.  Ms. Vizgirda claimed that the various tables and graphs contained in the report depicted the sales information reviewed and showed the correlation between selling price and size.  
Ultimately, the appellant and his wife chose six properties that they considered to be comparable to the subject property based on neighborhood and building style.  Using the sale price for these properties and applying a linear equation, the appellant's report calculated what was termed a "fit" purchase price for each of the six so-called comparables.  The appellant then applied percentage adjustments for factors such as neighborhood, location, building and land characteristics, and "other," to his calculated "fit" prices to calculate an "Adjusted Price" for each of the comparables.  On the basis of these adjusted prices, the appellant and his wife argued that the subject property was over assessed.
The appellant did not, in either his report or in the testimony of Ms. Vizgirda, offer an explanation as to how the "fit" value linear equation was derived nor did they explain its relevance in determining the fair cash value of the subject.  Also, despite the fact that the sales of the so-called comparables occurred between four and ten months prior to the date of assessment for fiscal year 2002, the appellant made no adjustment for time.  Further, the appellant provided no explanation as to how he derived any of the percentage adjustments used in his calculations.
	The appellant's report also addressed other properties within the subject property's neighborhood and their fiscal year 2002 assessments.  Again, using properties with relatively similar gross living area, those within plus or minus ten-percent, the appellant calculated a mean assessment value of $606,446, less then the subject property's fiscal year 2002 assessment.  Noting that the mean gross living areas for these properties are larger than the subject property's, the appellant suggested that this supported his contention that the subject property was over assessed for fiscal year 2002.  The appellant did not, however, establish comparability between any of these properties and the subject property nor did he provide any documentation corroborating the numbers reported.  
  	In support of its assessed value for the subject property, the assessors offered into evidence the appraisal report and testimony of Jacqueline Crimins, the town assessor.  To calculate the subject property's fair market value, Ms. Crimins utilized the sales comparison approach.  In particular, she relied on four sales of properties that she deemed comparable to the subject property and that occurred between six month prior to and six months subsequent to the date of assessment.  
Noting that differences did exist between her chosen comparable sale properties and the subject property, Ms. Crimins made adjustments for such factors as: time; useable land; location; traffic; view; effective area; number of bedrooms; garage; and overall condition.  Using a match-paired sales analysis, Ms. Crimins calculated a per month time adjustment of 0.5 percent, which she applied to all four comparables.  To account for what she determined to be the premiere location of Monument Street, she made a twenty-percent adjustment for location for the first three comparables.  No adjustment for location was necessary for sale number four, also located on Monument Street.  
Recognizing that the subject property experiences traffic problems during the Fenn School morning drop-off and afternoon pick-up hours, Ms. Crimins made a five-percent adjustment to sales number two, three and four, for their lack of traffic determent.  No such adjustment was made to sale number one because it is located on a steep hill and has a shared driveway.  In addition, Ms. Crimins testified that the appellant's traffic situation was taken into consideration at the abatement level when the subject property was granted a twenty-percent reduction in value. 
The following table is a presentation of the sales upon which Ms. Crimins relied and all adjustments that she made for differences in comparison to the subject property.
	Sale #1
970 Sudbury Road	Sale #2
119 Bartlett Hill	Sale #3
71 Old Farm	Sale #4
906 Monument Street	
Sale Date	8/22/01	7/31/00	5/15/01	6/30/00	
Sale Price	$718,000	$736,500	$845,000	$1,250,000	
Effective Area	
2,537 sf	
3,161 sf	
2,101 sf	
3,263 sf	
  Adjustments					
Time	-28,720	18,412	-16,900	37,500	
Useable Land			-199,800	-135,600	
Location	143,600	147,300	169,000		
Traffic/Slope		-36,825	-42,250	-62,500	
View				-125,000	
Effective Area	
-2,765	
-24,605	
12,495	
-28,175	
Bedrooms				-10,000	
Condition			84,500	-62,500	
Garage	-10,000				
Net Adjustments	
102,115	
104,282	
7,045	
-386,275	
Indicated Value	
$820,115	
$840,782	
$852,045	
$863,725	

Finally, Ms. Crimins determined that because of its small net adjustments, sale number three was the most comparable to the subject property.  In conclusion, she determined that the subject property had a fair cash value of $852,000 for fiscal year 2002.
On the basis of all the evidence presented, the presiding member found that the appellant's self-prepared valuation analysis was flawed.  First, the presiding member found that the appellant failed to explain what a "fit" purchase price represented, how he derived the linear equation used to calculate the comparables' "fit" purchase price, and how this price related to the subject property's fair market value.  Further, the presiding member found that the appellant failed to adequately explain how he derived the percentage-adjustment amounts that were also used to calculate adjusted values for the comparable properties.  Finally, the presiding member found that the appellant failed to adequately demonstrate comparability between the subject property and the sale and assessment properties upon which he relied.  
The presiding member found that the assessors' appraisal report was the best evidence of value.  The presiding member found that the fair market value for the subject property was $852,000, Ms. Crimins' opinion of value for the subject property.  Because this value was less than the $859,700 assessed value, as abated, the presiding member issued a decision for the appellant and granted an abatement in the amount of $7,700.
Accordingly, the presiding member issued a revised decision for the appellant simultaneously with this Findings of Fact and Report.



OPINION
The assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  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 (1954).
	Ordinarily the assessment is presumed valid unless the taxpayers sustain the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out his right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of his property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).
	In the present appeal, the appellant tried to show, using both comparable sales and comparable assessments that the subject property was overvalued for fiscal year 2002.  The presiding member found, however, that the appellant's analyses were flawed and without merit.  In the sales comparison approach the appellant calculated what he termed a "fit" sale price, which was applied to certain so-called comparable sales.  This 'fit' sale price was then adjusted for differences to calculate an adjusted sale price.
First, the appellant did not substantiate that the properties relied upon were sufficiently comparable to the subject property.  Secondly, the appellant provided no explanation as to how the linear equation used to compute the "fit" was developed and how it corresponded to the subject property's fair market value.  Finally, the appellant did not sufficiently explain how the percentage adjustment used to take into account differences between the comparables and the subject property were determined.
	The appellant also attempted to show overvaluation by analyzing comparable assessments.  Again, the presiding member found that the appellant failed to establish comparability between the subject property and those properties whose assessments were cited.  	
In evaluating the evidence before it, the presiding member selected among the various elements of value and formed her own independent judgment of fair cash value.  General Electric v. Assessors of Lynn, 393 Mass. 591, 605 (1984); North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The presiding member need not specify the exact manner in which she arrived at her 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."  Boston Consolidated Gas Co., 309 Mass. at 72.
On the basis of the evidence presented in this appeal, the presiding member found and ruled that the comparable sales evidence provided by the assessors was the most credible and probative evidence of fair cash value for the subject property.  Accordingly, the presiding member issued a revised single-member decision for the appellant and granted an abatement in the amount of $7,700. 

						APPELLATE TAX BOARD

					By:_________________________
					    Nancy T. Egan, Member




A true copy,


Attest:______________________
	    Clerk of the Board
						

						 

ATB 2004-194