Alvydas & Danute Kazakaitis v. Board of Assessors of the Town of Sharon (April 13, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ALVYDAS & DANUTE KAZAKAITIS	v.     BOARD OF ASSESSORS OF 
  THE TOWN OF SHARON		

Docket No. F293432				  Promulgated:
		  					  April 13, 2009


	This is an appeal originally filed under the informal procedure pursuant to G.L. c. 58A, § 7A 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 Sharon, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.  
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in the decision for the appellee.
	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.

	Alvydas Kazakaitis, pro se, for the appellants.
	
	Mark Mazur, assessor, for the appellee.


FINDINGS OF FACT AND REPORT

	On January 1, 2006, Alvydas & Danute Kazakaitis ("appellants") were the assessed owners of a parcel of real estate improved with a single-family dwelling and shed located at 12 Gavins Pond Road in the Town of Sharon ("subject property").  For fiscal year 2007, the Board of Assessors of Sharon ("assessors") valued the property at $756,600 and assessed a tax thereon, at the rate of $14.16 per thousand, in the amount of $10,713.46.  Of the subject property's total assessed value, $309,300 was allocated to the land and $447,300 to the residence and shed.  On November 17, 2006, the Sharon Collector of Taxes mailed the town's first-half fiscal year 2007 tax bills.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax assessed on the subject property without incurring interest.  On December 18, 2006, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors.  The assessors denied the appellants' abatement application on March 15, 2007.  Subsequently, on June 14, 2007, the appellants seasonably filed an appeal with the Board.  On the basis of these facts, the Appellate Tax Board ("Board") found and ruled that it had jurisdiction to hear this appeal.
The subject property is a 68,505 square-foot parcel of real estate, located in the Sharon Woods development ("Sharon Woods"), improved with a Colonial-style, wood-framed home built in 1990.  The home features nine rooms, including four bedrooms, as well as two full bathrooms and one half-bathroom, with a total living area of 3,208 square feet.  The home is heated by forced hot air, and there is central air-conditioning.  Additional features include an attached two-car garage, a wood deck, two fireplaces, a whirlpool, and a shed.  The exterior of the dwelling is brick veneer with an asphalt roof.  The subject property is serviced by a private septic system and town water.  The assessors considered the overall grade of construction and condition of the home as "excellent," according to the property record card.    
The appellants offered the testimony of the owner, Alvydas Kazakaitis, and also submitted a memorandum which included a listing of the 2006 and 2007 assessments and the percentage increases, for properties located in Sharon Woods; property record cards for the subject property and also the properties located at 14, 26 and 35 Forges Road; and a listing of all properties in Sharon Woods that sold during the period June 2006 through July 2007, and their respective sale-to-assessment ratios.
The appellants argued that the subject property's fiscal year 2007 assessment was excessive because the subject property's land and building assessments were each overvalued.  First, the appellants attempted to prove that the subject property's land assessment was overvalued because its value increased at a rate disproportionately higher than the land values of abutting properties. The appellants maintained that the subject property's land assessment increased by 36 percent from fiscal year 2006 to 2007, whereas abutting lots at 3, 7 and 11 Colonel Gridley Road increased by only 4.8 percent during the same period.  In support of this assertion, the appellants submitted a list showing the increase in the assessed values of the purportedly comparable properties between fiscal years 2006 and 2007. 
The Board, however, found that this evidence was unpersuasive because the appellants did not provide sufficient detail concerning the properties to enable the Board to determine whether they were actually comparable to the subject property. The appellants only listed the property addresses, the land and building values, and the rate of increase of the land and building assessments between fiscal years 2006 and 2007.  Since this evidence is insufficient to allow a determination of comparability, it did not assist the Board in determining the fair cash value of the subject property for the fiscal year at issue.
Further, the appellants contended that the subject property's land was overvalued because it was valued at $309,300 compared to "other" properties in the Sharon Woods development, which were assessed at between $260,000 and $275,000.  However, the appellants did not offer any evidence to support their claim, including property record cards of "other" Sharon Woods properties.  Moreover, the appellants failed to account for the fact that the subject property has 68,505 square feet of land, whereas the majority of lots in the Sharon Woods development have approximately 25,000 square feet.
The appellants also argued that the subject property's dwelling was overvalued for fiscal year 2007.  In support of their claim, the appellants offered into evidence the property record cards for 14, 22 and 35 Forges Road, also located in the Sharon Woods development.  The building assessment for each of these properties was $427,700, $425,200 and $428,500, respectively.  The appellants maintained that these properties are "exactly the same" as the subject property yet their 2007 building assessments were less than the subject property's 2007 building assessment.  Based on their chosen comparables, the appellants argued that the subject dwelling should be assessed at $425,200, the same as 22 Forges Road.  
However, the appellants failed to establish basic comparability between the properties offered for comparison purposes and the subject property.  Aside from the conclusory statement that the properties were "exactly the same as the subject property," the appellants offered no descriptive detail of the comparison properties beyond the information contained in the property record cards, nor did they attempt to adjust for differences between the comparison properties and the subject property.  Since the appellants offered insufficient evidence to establish the basic comparability of these properties to the subject, and also failed to make any adjustments to the data for differences between these properties and the subject property, the Board found that the appellants' comparable assessment data did not constitute persuasive evidence of value in this appeal.
Finally, Mr. Kazakaitis offered his opinion of the fair market value of the subject property for fiscal year 2007.  Relying on the average land assessment increase of 4.8 percent for the properties located at 3, 7 and 11 Gridley Road, and also the building assessment for 22 Forge Road, Mr. Kazakaitis concluded that the subject property's fair market value for fiscal year 2007 was $663,464, allocated $238,264 to land and $425,200 to the building. 
In support of the assessment, the assessors offered into evidence the requisite jurisdictional documentation, a written assessment report, a map of the Sharon Woods development, two property record cards for properties located on the abutting Colonel Gridley Road, and the property record cards for two properties located in Sharon Woods that sold in April and May, 2005.
In his written assessment report, Mr. Mazur described the methods used to value land and improvements in Sharon.  He testified that land values are established by a two-prong method:  first, vacant land sales were analyzed and second, a land residual analysis was conducted, deducting improvement values from improved land sales to determine extracted land values.  Each street was rated for desirability using a neighborhood factor which was then applied to the base square foot schedule to account for differences in location.  In addition, condition factors were applied, where necessary, to account for negative or
positive influences on value such as topography or proximity to a lake.  
Mr. Mazur testified that due to the subject property's street location at the very beginning of the subdivision, the subject property had originally been placed in the wrong land district but that this was corrected during the 2007 revaluation.  He further testified that the subject property was valued just like all other sites within the subdivision.  The first 25,560 square-feet, which is the required lot size in the relevant zoning district, was valued at $272,400 and the site's additional 42,945 square feet was considered excess land valued at $36,900, which resulted in a total land assessment of $309,300 for the subject property.
Mr. Mazur further testified that improvement assessments were based on a review of calendar year 2005 sales, which were used to develop a per-square-foot building cost for homes.  This per-square-foot cost was then adjusted to the particular feature of each house, including size, number of bathrooms, central air conditioning, and overall market quality of each house.  Next, the adjusted per-square-foot building cost was multiplied by the house's effective living area to produce a replacement cost new.  The replacement cost new was then adjusted for depreciation.  Finally, additions were made for detached improvements and also certain features, such as fireplaces and whirlpools, which added to the property's overall value.  Applying this methodology to the subject property, Mr. Mazur testified, the subject dwelling was assessed at $447,300.
Finally, Mr. Mazur offered into evidence the property record cards, and deeds, for two sales in the development, which occurred in April and May, 2005.  Comparable sale number one, located at 26 Firebrick Road, is a 24,433 square-foot lot improved with a Colonial-style dwelling built in 1994.  Like the subject, comparable one's home has a brick veneer and asphalt roof.  The home has a total of ten rooms, including four bedrooms and also two full bathrooms and one half-bathroom, with an effective living area of 3,848 square feet.  There is one fireplace.  This property sold on April 8, 2005 for $780,000.  
Sale number two, located at 46 Firebrick Road, is a 21,765 square-foot lot improved with a Colonial-style dwelling built in 1995 with an effective living area of 3,760 square feet.  Like the subject, comparable two's home has a brick veneer and asphalt roof.  The home has a total of eleven rooms, including four bedrooms and also three full bathrooms and one half-bathroom.  There is one fireplace.  The property sold on May 26, 2005 for $754,000.
Mr. Mazur adjusted both sales upward to account for the difference in time between the date of sale and the relevant date of assessment.  Next, Mr. Mazur testified that because the cited comparables were built within a five-year period of the subject property and were considered to be in similar condition, no adjustment was made for the category termed "age/condition."  He adjusted downward to account for the comparable properties' greater effective living area, calculated at a rate of $120 per square foot.  Both properties were adjusted upward by $1,700 to account for one fewer fireplace.  Finally, both properties were adjusted upward to account for their smaller lot sizes.  After adjustments, Mr. Mazur arrived at adjusted sale prices of $833,900 and $817,800, respectively.  Based on these values, the assessors determined that the subject property, which was assessed for $756,600, was not overvalued for fiscal year 2007.
Based on the evidence presented, the Board found that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2007.  The appellants' evidence lacked sufficient detail to establish that their purported comparable properties were actually comparable.  Further, the appellants failed to make any adjustments to the purported comparable properties for differences that did exist.  
In contrast, the assessors provided a comparable-sales analysis of properties in the Sharon Woods development which sold during the calendar year preceding the relevant assessment date.  In their analysis, the assessors considered and made appropriate adjustments for time, the difference in lot size and effective living area, the number of fireplaces and also the age/condition of the comparable properties.  The Board found that the comparable-sales analysis provided by the assessors supported the subject property's fiscal year 2007 assessment.	
Accordingly, the Board found and ruled that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2007 and therefore issued a decision for the appellee in this appeal.
OPINION
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, §§ 38, 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975)(citations omitted).  Fair cash value means fair market value, which 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 (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 [B]oard 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).
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. v. Assessors of Lynn, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . at which assessors have assessed other property of a comparable nature . . . shall be admissible." G.L. c. 58A, § 12B.  "The admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the board."  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  The properties used in a comparable-assessment analysis must be comparable to the subject property in order to be probative of the fair cash value. See Id.  
Based on the evidence presented, the Board found that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2007.  To support their overvaluation claim, the appellants relied on a comparison of land assessments of nearby properties and a comparison of building assessments of other Sharon Woods properties to show that the individual components of the subject property's assessment were overvalued.  However, the appellants failed to offer into evidence substantiating information about the proposed comparable land assessments, such as the property record cards. See Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 779-80.  Further, beyond their statement that the comparable properties were "exactly the same," the appellants failed to offer into evidence a narrative or descriptive information about the purported comparable properties needed to supply an evidentiary basis for a finding of basic comparability to the subject property. See Martin Wood & Wood Development LP v. Assessors of Fall River, Mass. ATB Findings of Fact and Reports 2008-213, 228. In addition, the appellants' failure to make any adjustments to the data for differences between the purported comparable properties and the subject property rendered their valuation conclusion unreliable.  See  Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 71 ("[R]eliance on unadjusted assessments of assertedly comparable properties . . . was insufficient to justify a value lower than that" assessed). 
A taxpayer "does not conclusively establish a right to abatement merely by showing that his land or building 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.'"  Hinds, Mass. ATB Findings of Fact and Reports at 2006-778 (quoting 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 Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Report 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Report 1990-39, 49; Everhart v. Assessors of Dalton, Mass. ATB Findings of Fact and Report (February 26, 1985, p. 6). 
In the present appeal, the appellants failed to analyze overall assessment data in support of their claim for abatement. Instead, the appellants relied on separate comparative land and building assessment data to prove that the subject property was overvalued for the fiscal year at issue.  Accordingly, the Board found and ruled that the appellants' comparable-assessment analyses were incomplete because they measured only part of, and not the entire, assessment.
In contrast to the appellants' incomplete comparable-assessment analysis, the assessors offered an analysis of sales of comparable properties in Sharon Woods, which included appropriate adjustments for differences with the subject property for features like timing of sale, size of lot, living area, and number of fireplaces. Because it included appropriate adjustments, the Board found and ruled that the assessors' evidence of comparable-sales transactions provided ample support for the value of the subject property.
"[S]ales of property usually 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. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  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.  McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  "Moreover, reliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value." Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403, aff'd 73 Mass. App. Ct. 1107 (2008).

Accordingly, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2007 and therefore 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

 Within thirty days of service of the Petition Under Informal Procedure, the assessors elected to transfer the proceedings to the formal docket.  See G.L. c. 58A, § 7A.

  When the last day of a filing period falls on a Saturday, Sunday, or legal holiday, the filing is still considered timely if it is made on the following business day. See G.L. c. 4, § 9; CFM Buckley/North, LLC v. Assessors of Greenfield, Mass. ATB Findings of Fact and Reports 2007-220, 223, n. 2. Accordingly, the Appellate Tax Board found that the appellants timely filed their abatement application on Monday, December 18, 2006. 

ATB 2009-382