Robert James Corkery, Trustee of the R&M Realty Trust v. Board of Assessors of the Town of Canton (May 18, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ROBERT JAMES CORKERY, TRUSTEE	  v.	  BOARD OF ASSSESSORS OF 
OF THE R&M REALTY TRUST		       THE TOWN OF CANTON

Docket Nos. F288608, F288609		  Promulgated:
            F294040, F294041		  May 18, 2010
		
           

	 These are appeals 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 Canton owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal years 2007 and 2008. 
	Commissioner Rose ("Presiding Commissioner") heard the appeals and issued single-member decisions, under       G.L. c. 58A, § 1A and 831 CMR 1.20, for the appellee in docket numbers 288609 and 294041, and revised single-member decisions, under G.L. c. 58A, § 1A and 831 CMR 1.20, for the appellant in docket numbers 288608 and 294040, which are promulgated simultaneously herewith.  The revised decisions correct minor computational errors contained in the original decisions.  
	These findings of fact and report are made pursuant to requests by the appellant under G.L. c. 58A, § 13 and    831 CMR 1.32.  

	Nicholas R. Corkery, Esq. for the appellant. 
	John Wieliczki, Assessor, for the appellee.
  
FINDINGS OF FACT AND REPORT
	On January 1, 2006 and January 1, 2007, Robert James Corkery, Trustee of The R&M Realty Trust ("appellant") was the assessed owner of two contiguous parcels of real estate located at 20 Industrial Drive ("Industrial Drive property") and 868 Turnpike Street ("Turnpike Street property") in the Town of Canton (collectively "subject properties").  When viewed together, the subject properties form the approximate shape of a mirror-imaged or reversed "L."  For fiscal year 2007, the Board of Assessors of Canton ("assessors") valued the Industrial Drive property at $475,000 and assessed a tax thereon, at a rate of $17.94 per $1,000, in the amount of $8,521.50.  The assessors valued the Turnpike Street property at $385,900 and assessed a tax thereon, at a rate of $17.94 per $1,000, in the amount $6,923.05.  After December 31, 2006, Canton's Collector of Taxes sent out the town's actual real estate tax bills.  In accordance with G.L. c. 59, § 57C, the appellant timely paid the taxes assessed on the subject properties without incurring interest.
	On or about April 17, 2007, in accordance with     G.L. c. 59, § 59, the appellant filed Applications for Abatement with the assessors, which they denied on May 7, 2007.  On or about May 15, 2007, in accordance with     G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, the appellant seasonably appealed the assessors' denials of the abatement applications by filing Petitions Under Formal Procedure with the Appellate Tax Board ("Board").  On this basis, the Presiding Commissioner found and ruled that the Board had jurisdiction over these two fiscal year 2007 appeals.
For fiscal year 2008, the assessors valued the Industrial Drive property at $475,000 and assessed a tax thereon, at a rate of $18.40 per $1,000, in the amount of $8,740.00.  The assessors valued the Turnpike Street property at $385,900 and assessed a tax thereon, at a rate of $18.40 per $1,000, in the amount $7,100.56.  On or about December 31, 2007, Canton's Collector of Taxes sent out the town's actual real estate tax bills.  In accordance with G.L. c. 59, § 57C, the appellant timely paid the taxes assessed on the subject properties without incurring interest.
	On or about January 7, 2008, in accordance with     G.L. c. 59, § 59, the appellant filed Applications for Abatement with the assessors, which they denied on February 12, 2008.  On or about March 4, 2008, in accordance with     G.L. c. 58A, § 7 and c. 59, §§ 64 and 65, the appellant seasonably appealed the assessors' denials of the abatement applications by filing Petitions Under Formal Procedure with the Board.  On this basis, the Presiding Commissioner found and ruled that the Board had jurisdiction over these two fiscal year 2008 appeals.
	The Industrial Drive property is composed of a 2.100-acre site improved with a 3,045-square-foot, two-bay garage, and a 240-square-foot shed.  This property also contains 600 linear feet of six-foot-high chain-link fencing.  The garage has a poured concrete foundation, and its siding and roof are made of metal-sheeting.  Its interior is unfinished and without any plumbing or heating.  All utilities are available to the site.  For fiscal years 2007 and 2008, the assessors valued the Industrial Drive property's land at $301,200 and its improvements at $173,800, for a total assessment of $475,000.  The assessors' total improvement assessment included the value of an antenna tower purportedly located on this property.  The assessors separately valued each of the improvements as follows: garage - $44,300; fence - $2,500; shed - $32,600; and antenna tower - $94,400.
	The Turnpike Street property is composed of a 2.020-acre site improved with a 1,288-square-foot, single-story general office building, some paving, a sign, a 185-foot-high antenna tower, and several small utility buildings.  The general office building has a full concrete basement, metal and brick exterior siding, and metal and composite roofing surfaces.  The interior walls are sheetrock, and the floors are concrete, carpet or tile.  This building has plumbing, heating, and bathrooms.  The antenna tower is secured to a poured concrete pad, on which two small buildings that house mechanical equipment, as well as a transformer, a generator, and some other related fixtures are affixed.  For fiscal years 2007 and 2008, the assessors valued the Turnpike Street property's land at $231,200 and its improvements at $154,700, for a total assessment of $385,900.  The assessors separately valued each of the improvements as follows: general office building - $62,000; paving - $4,500; utility buildings - $16,900; sign - $1,200; and antenna tower - $70,100.    
	In challenging the assessments, the appellant argued that the assessors had not adequately considered drainage problems on the subject properties and had erroneously assessed an antenna tower to the Industrial Drive property.  In support of his contentions, the appellant submitted a survey of the subject properties, a site grading plan for a neighboring Turnpike Street property, and several photographs depicting water accumulation on the subject properties.  The appellant did not offer any estimates for remedying the subject properties' drainage problems or attempt to quantify the effect of the drainage problems on the value of the subject properties.  Further, the appellant did not introduce any substantive evidence attempting to demonstrate comparability between the neighboring Turnpike Street property and the subject properties.  
	The assessors contended that they had considered drainage problems associated with the subject properties in setting their assessments for the fiscal years at issue, but agreed with the appellant that they had erroneously included the value of an antenna tower in the Industrial Drive property's assessment.
After considering all of the evidence, the Presiding Commissioner found that the appellant failed to sufficiently show any diminution in the subject properties' values associated with the drainage problems.  The Presiding Commissioner found that the absence of any bills or estimates for redressing this issue and the appellant's inability to quantify any effect from the drainage problems on the subject properties' values proved fatal to the appellant's contention regarding the drainage problems.  The Presiding Commissioner also found that the site drainage plan for a neighboring Turnpike Street property, without having established some degree of comparability to the subject properties, had little probative value.  The Presiding Commissioner did find, however, that the appellant had adequately demonstrated through both his testimony and his documentary evidence that the assessors had erroneously assessed an antenna tower on the Industrial Drive property.  After hearing the appellant's presentation in this regard, the assessors agreed with him.  Accordingly, the Presiding Commissioner found that the Industrial Drive property was over-assessed by the $94,400 value that the assessors had ascribed to the phantom antenna tower.  
On this basis, the Presiding Commissioner found that the appellant failed to meet its burden of proving that the Turnpike Street property was overvalued for fiscal years 2007 and 2008 but did adequately show that the Industrial Drive property was overvalued by $94,400 for fiscal years 2007 and 2008.  This latter finding resulted in a $94,400 reduction in the Industrial Drive property's $475,000 assessment for fiscal years 2007 and 2008, thereby lowering its value to $380,600 for both fiscal years.  As a result, the Presiding Commissioner granted tax abatements, at rates of $17.94 and $18.40 per $1,000, for fiscal years 2007 and 2008, respectively, in the amounts of $1,693.54 for fiscal year 2007 and $1,736.96 for fiscal year 2008.  Accordingly, the Presiding Commissioner decided docket numbers F288609 and F294041, which pertain to the Turnpike Street property, for the appellee and docket numbers F288608 and F294040, which pertain to the Industrial Drive property, for the appellant. 

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 [Presiding Commissioner] is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] . . . prov[es] 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)).  
In the Industrial Drive property appeals, the Presiding Commissioner found that the appellant met his burden of demonstrating that the Industrial Drive property was overvalued for fiscal years 2007 and 2008 by showing that the assessors had erroneously included the $94,400 value of an antenna tower in their assessment.  
In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts 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; 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, 48-9; Everhart v. Assessors of Dalton, Mass. ATB Findings of Fact and Reports 1985-49, 54.  In the Industrial Drive property appeals, the Presiding Commissioner ruled that the excessive value attributed to the improvement component of the Industrial Drive property assessment, namely the phantom antenna tower, resulted in the assessors commensurately overvaluing the subject property as a whole.
The Presiding Commissioner further found that the appellant failed to sufficiently show any diminution in the subject properties' values associated with the drainage issues.  The Presiding Commissioner found that the absence of any bills or estimates for redressing this problem and the appellant's inability to quantify the drainage issues effect on the subject properties' values were fatal to this contention.  See, e.g., Abuzahra v. Assessors of Rowley, Mass. ATB Findings of Fact and Reports 2008-1514, 1522 (ruling that "the appellants failed to meet their burden of showing that the subject property was overvalued . . . because they failed to quantify the effects of wetlands or topographical issues on the value of their lots." (citation omitted)).  The Presiding Commissioner also found that the site drainage plan for a neighboring Turnpike Street property, for which the appellant failed to show comparability, had little probative value.  Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the Turnpike Street property was overvalued or that the Industrial Drive property was further overvalued.   
"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).  "The market value of the property c[an] not be proved with mathematical certainty and must ultimately rest in the realm of opinion, estimate, and judgment . . . .  The board [may] select the various elements of value as shown by the record and from them form . . . its own independent judgment."  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941) (citations omitted).  See also North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Jordan Marsh Co. v. Assessors of Malden, 359 Mass. 106, 110 (1971).  Based on the evidence presented in this appeal, the Presiding Commissioner selected the most credible and probative evidence and exercised his independent judgment in finding and ruling that the Industrial Drive property was overvalued by the assessors for the two fiscal years at issue, but the Turnpike Street property was not.  
On this basis, the Presiding Commissioner found and ruled that the fair cash value of the Industrial Drive property for fiscal years 2007 and 2008 was $380,600, and he, therefore, decided those appeals for the appellant and granted abatements in the amount of $1,693.54 and $1,736.96 for fiscal years 2007 and 2008, respectively.  
On this basis, the Presiding Commissioner also decided the Turnpike Street property appeals for the appellee.  

  					APPELLATE TAX BOARD

				  
    By:			          	____
				  James D. Rose, Commissioner 


A true copy,



Attest:					_______
        Clerk of the Board

 In some pleadings and documents, these appeals are captioned as the R&M Realty Trust without any reference to the trustee.  
 General Laws c. 59, § 57C provides, in pertinent part, that: "In the event the actual tax bills are not mailed by December thirty-first, then upon the establishment of the tax rate there shall be a single actual bill due and payable on May first, or thirty days after the date of mailing, whichever is later."  
 General Laws c. 59, § 59, provides, in pertinent part, that: 
A person upon whom a tax has been assessed . . . , if aggrieved by such tax, may, . . . on or before the last day for payment, without incurring interest in accordance with the provisions of . . . section fifty-seven C, of the first installment of the actual tax bill issued upon the establishment of the tax rate for the fiscal year to which the tax relates, apply in writing to the assessors . . . for an abatement thereof.

ATB 2010-488