Maura A. & Gregory J. Lareau v. Board of Assessors of the Town of Norwell (October 8, 2010)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


MAURA A. LAREAU and			v.	  BOARD OF ASSESSORS OF 
GREGORY J. LAREAU				  THE TOWN OF NORWELL

Docket No. F303162				  Promulgated:
							  October 8, 
2010


	This is an appeal under the formal procedure, pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the Town of Norwell ("appellee" or "assessors") to abate taxes on certain real estate in Norwell, owned by and assessed to Maura A. Lareau and Gregory J. Lareau ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.  
	Commissioner Rose heard this appeal.  He was joined in the decision for the appellee by Chairman Hammond and Commissioners Scharaffa and Egan.  
	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.  

	Maura A. Lareau, pro se, for the appellants.

	Barbara Gingras, assistant assessor, for the appellee.


FINDINGS OF FACT AND REPORT
	On January 1, 2008, the appellants were the assessed owners of a parcel of real estate located at 35 Stony Brook Lane in Norwell ("subject property").  The parcel contains approximately 6.57 acres of land and is improved with a single-family home.  For fiscal year 2009, the assessors valued the property at $1,209,400 and assessed a tax thereon, at the rate of $11.75 per thousand, in the amount of $14,210.45, plus a Community Preservation Act charge in the amount of $391.06.  The assessors valued the land and building components of the property at $738,200 and $471,200, respectively.
	At the hearing of this appeal, the appellants argued that their property was overvalued primarily because the assessors had placed too high a value on the land portion of their assessment and had assessed the subject property at a significantly higher value than similarly situated "water-view" properties and at an equivalent value to "waterfront" properties with docks.  The appellants attempted to prove their contentions through the testimony of appellant Maura Lareau and the introduction of an exhibit entitled the "Commissioner's Packet," which contained: a thirteen-page narrative; information downloaded from a realtor's website regarding a neighboring property; a copy of a letter sent to the assessors by the appellants in furtherance of settling this matter; a copy of the appellants' abatement application with attachments; "parcel summary" print-outs downloaded from the website of the assessors' mass appraisal firm, Vision Appraisal, regarding seven nearby properties; several visual images downloaded from "Google Maps" depicting the subject property's neighborhood; and a copy of an assessors' map.  The assessors presented their case-in-chief through the testimony of their Assistant Assessor, Barbara Gingras, and her comparable-sales analysis, which included copies of property record cards with photographs, deeds, and several maps.  The assessors also provided the Board with the relevant jurisdictional documents and information.  On the basis of this evidence, the Appellate Tax Board ("Board") made the following findings of fact.  
    	On December 31, 2008, Norwell's Collector of Taxes sent out the town's actual real estate tax notices for fiscal year 2009.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax without incurring interest.  On January 26, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed their abatement application with the assessors.    On Monday, April 27, 2009, the assessors granted the appellants a partial abatement by reducing the subject property's assessed value, by $57,900, to $1,151,500 and concomitantly abating the tax in the amount of $680.33.  Not satisfied with this reduction, the appellants, on June 30, 2009, in accordance with        G.L. c. 59, §§ 64 and 65, seasonably filed their petition 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 dwelling is a conventional-style, two-story, 2,906-square-foot, single-family residence with a water view.  It contains six rooms, including an above-average kitchen, an open-concept main living area with a cathedral ceiling and fireplace, and three bedrooms plus two other fireplaces.  The residence also has one one-half and two full modern bathrooms, including one with a whirlpool tub.  The residence's interior walls are primarily painted or papered drywall or sheetrock, and the floors are hardwood. The residence has an oil-fired forced hot water heating system.  It also has central air conditioning.  
	The exterior of the residence has wood clapboard and shingle siding, and the roof has asphalt shingles.  A 912-square-foot garage is attached to the house, as is 568-square feet of decking.  The residence also contains a 768-square-foot unfinished attic and a 1,152-square-foot crawl space.  In addition, a storage shed is located on the subject property.  The residence is in excellent overall condition.  
The 6.57-acre parcel is composed of a 43,560-square-foot or one-acre main site plus 5.57 acres of excess land, a portion of which is wetland.  The parcel contains considerable frontage along that segment of Stony Brook which flows into the North River, and it has a water view.  The subject property does not have a dock or pier.  After abatement, the assessors valued the subject property's main site at $696,100, its excess acreage at $44,200, and its improvements at $411,200, for a total assessed value of $1,151,500, which is also below the fiscal year 2008 assessment of $1,188,700.  The appellants purchased the subject property in 1999 for $790,000 and in 2001 completed an approximately $300,000 renovation and addition.         
To prove that their land was overvalued, thereby rendering the subject property's overall assessment excessive, the appellants primarily relied on their comparison of seven nearby properties' land and overall assessments to the subject property's land and overall assessments.  These seven properties are composed of both, what the appellants term as, "water-view" and "waterfront" properties.  The properties that the appellants labeled water view are 20, 32, and 36 Stony Brook Lane, and the properties labeled waterfront are 64, 78, 88, and 96 Stony Brook Lane. The appellants' land- and overall-assessment presentation consisted of "parcel summary" print-outs downloaded from Vision Appraisal's website, several visual images downloaded from Google, a copy of a portion of the assessors' map which contains the subject property and the seven nearby properties, and a narrative with some analysis.  The appellants did not submit into evidence property record cards or photographs for these properties or any tables or charts comparing the important characteristics of the purportedly comparable properties to those of the subject property with reasonable adjustments for differences.  
With respect to the appellants' presentation, the Board found that while the parcel summary print-outs and the Google images and assessors' maps contained some basic and summary information about the nearby properties, they did not convey near the detail of information ordinarily contained in property record cards and photographs, which would have likely allowed the Board to better analyze the assertions of overvaluation raised by the appellants.  The parcel summary print-outs and the Google images and assessors' map did not allow the Board to comprehensively and properly compare the nearby properties' characteristics and their related assessments to the subject property's because the print-outs, images, and maps do not contain the quantum and detail of information necessary to make such comparisons, to consider the application of appropriate adjustments, or to adequately substantiate the appellants' assertions.  Had the appellants submitted tables, charts, or summaries comparing the subject property's and the nearby properties' important characteristics with each other along with reasonable recommendations for appropriate adjustments to their related assessments, the Board would have been better able to fully grasp and analyze relevant data regarding these properties.  For these reasons, the Board found that the appellants' presentation was too vague and general. Accordingly, the Board found that the appellants' presentation did not demonstrate or establish a basis to conclude that the subject property's land or overall assessment was excessive.          
The Board also found that the assessors' three comparable-sale properties, located in Norwell at 78 Stony Brook Lane, 48 Satuit Meadow Lane, and 16 Laurelwood Drive, were not sufficiently similar to the subject property to meaningfully assist in determining the fair cash value of the subject property for the fiscal year at issue.  The quantitative adjustments suggested by the assessors to account for these properties' differences with the subject property averaged approximately 50% of each of their sale prices.  The Board found that the necessity for such large gross adjustments strongly suggested that these purportedly comparable properties were simply not comparable to the subject property.  Accordingly, the Board found that the assessors' comparable-sales analysis was of little value for determining the fair cash value of the subject property for the fiscal year at issue.  
	Based on these findings, and after considering all of the evidence, the Board ultimately found that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  The Board, therefore, decided this appeal for the appellee.  

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 appellants have 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)).  In the present appeal, the appellants focused primarily on perceived errors in the assessors' separate valuation of the land component associated with the subject property.
A taxpayer, however, does not conclusively establish a right to abatement merely by showing that his land 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).  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 Duquette v. Hinsdale, Mass. ATB Findings of Fact and Reports 2008-1494, 1502-03 (citing 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).  
  The appellants in this appeal attempted to prove that the subject property was overvalued by comparing land and overall assessments of nearby properties to the subject property's land and overall assessment.
General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  The introduction of such evidence may provide adequate support for either the granting or denial of an abatement.  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36;    Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  Purportedly comparable properties used in a comparable-assessment analysis must be adjusted, just like those used in a comparable-sales analysis, for differences with the subject property.  See Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 402 ("The assessments in a comparable assessment analysis, like the sale prices in a comparable sales analysis, must also be adjusted to account for differences with the subject."), aff'd, 73 Mass. App. Ct. 1107 (2008);    Lupacchino v. Assessors of Southborough, Mass. ATB Findings of Fact and Reports 2008-1253, 1269 ("[W]ithout appropriate adjustments, . . . the assessed values of [comparable] properties [do] not provide reliable indicator[s] of the subject's fair cash value."). 
In the present appeal, the Board found that while the parcel summary print-outs, Google images, and assessors' maps contained some basic and summary information about the nearby properties, they did not convey near the detail of information ordinarily contained in property record cards and photographs, which would have likely allowed the Board to better analyze the assertions of overvaluation raised by the appellants.  The parcel summary print-outs, the Google images, and assessors' map did not allow the Board to comprehensively and properly compare the nearby properties' characteristics and related assessments to the subject property's because the print-outs, images, and maps did not contain the quantum and detail of information necessary to make such comparisons, to consider the application of appropriate adjustments, or to adequately substantiate the appellants' assertions.  Had the appellants submitted tables, charts, or summaries comparing the subject property's and the nearby properties' important characteristics with each other along with reasonable recommendations for appropriate adjustments to their related assessments, the Board would have been better able to fully grasp and analyze relevant data regarding these properties.   For these reasons, the Board found that the appellants' presentation was too vague and general.  Accordingly, the Board found and ruled that the appellants' presentation did not demonstrate or establish a basis to conclude that the subject property's land or overall assessment was overvalued.          
Furthermore, the Board ruled that "[i]n order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is an 'intentional policy or scheme of valuing properties or classes of properties at a lower percentage of fair cash value than the taxpayer's property.'"  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997) (quoting Shopper's World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)).  If a taxpayer successfully demonstrates improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Shopper's World, 348 Mass. at 377.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer."  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 562 (1971).
In the present appeal, the Board found that the appellants did not present evidence supporting an intentional scheme of disproportionate assessment.  Moreover, the Board found that the appellants did not produce evidence that could even raise an inference of a scheme of disproportionate assessment.  Even though the appellants alleged disproportionate assessment, they really introduced only evidence of overvaluation.  Accordingly, the Board found and ruled that the appellants failed to prove that the assessors engaged in an "intentional widespread scheme of discrimination." Stillson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).
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. at 560.  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.  If the amount of gross adjustments applied to each purportedly comparable property is substantial, the logical conclusion is that these properties are simply not comparable to the subject property.  See The May Dept. Store Co. v. Assessors of Newton, Mass. ATB Findings of Fact and Reports 2009-153, 191 ("[T]he Board questioned the comparability of some of [the real estate valuation expert's] purportedly comparable properties to the subject property because of the amount of the gross adjustments that [he] made to them.");         The Trustee of the Charles Cotesworth Pinckney Trust v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-621, 630-31 (noting that significant adjustments "raise serious questions regarding initial comparability"); see also The Appraisal of real estate at 312-13. 
In this appeal, the Board found that the assessors' three comparable-sale properties were not sufficiently similar to the subject property to meaningfully assist in determining the fair cash value of the subject property for the fiscal year at issue.  The quantitative adjustments suggested by the assessors to account for these properties' differences with the subject property averaged approximately 50% of each of their sale prices.  The Board found that the necessity for such large gross adjustments strongly suggested that these purportedly comparable properties were simply not comparable to the subject property.  Accordingly, the Board found and ruled that the assessors' comparable-sales analysis was of little value for determining the fair cash value of the subject property for the fiscal year at issue.  
"The [B]oard [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 [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  
After evaluating all of the evidence, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property's land or overall assessment was excessive.    

On this basis, the Board decided this appeal for the appellee.

  					APPELLATE TAX BOARD

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



A true copy,


Attest:					
    Clerk of the Board

 While the appellants also couched their case in terms of "disproportion," they essentially argued only overvaluation.  Their proof did not come close to establishing a widespread intentional scheme of disproportionate assessment perpetrated by the assessors.  See Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997) and the discussion of disproportionate assessment in the following Opinion section of these findings.  
 In accordance with G.L. c. 59, §§ 64 and 65, the assessors had three months to act on the appellants' abatement application before it was deemed denied.  However, where the last day for action falls on a Saturday, Sunday, or legal holiday, the time within which to act is extended until the next business day, which in this appeal was Monday, April 27, 2009, the day when the assessors acted here.  See G.L. c. 4, § 9; See also CFM Buckley/North, LLC v. Assessors of Greenfield, Mass. ATB Findings of Fact and Reports 2007-220, 223, n. 2; Barrett v. Assessors of Needham, Mass. ATB Findings of Fact and Reports 2004-614, 615, n. 2. 

ATB 2010-879