F266343; F266344; F266350; F266276; F266346; F266347

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COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

WILLIAM F. & DESIREE C. ARMITAGE BOARD OF ASSESSORS
PHILIP & BETSY CALDWELL v. OF THE TOWN OF CONCORD
JOHN C. & HOLLY C. CRATSLEY
ALVA & ERICA MORRISON
CHARLES A., Jr. & MARGARET W. ZEIRING

Docket Nos. F266343, F266344, Promulgated:
F266350, F266276, F266346 and October 13, 2004
F266347

These are consolidated appeals 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 appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2002.
Commissioner Scharaffa heard the appeals and was joined by former-Chairman Burns and Commissioners Gorton and Rose in the decisions for the appellee in Docket Numbers F266343, F266344 and F266346 and for the appellants in Docket Numbers F266350, F266276 and F266347.
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.

William F. Armitage, pro se; Philip Caldwell, pro se; John C. Cratsley, pro se; Alva Morrison, pro se; and Charles A. Zeiring, Jr., pro se; for the appellants.

Kevin Batt, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
Because all of the above captioned appeals raised the common issue of disproportionate assessment of properties located in Neighborhood 1 of Concord, the Appellate Tax Board ("Board") issued an Order consolidating these appeals for hearing. At the hearing, the Board, with the agreement of all parties, determined that Docket No. F266343, Armitage v. Concord, would be the "lead" case and that Mr. Armitage would put forth the appellants' arguments pertaining to the appellants' common claim of disproportionate assessment. Each appellant then presented his or her own case as to over-valuation of their respective property.

DISPROPORTIONATE ASSESSMENT
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/Interstate 95, which travels in a north/south direction. Public transportation is available via commuter rail, 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, and the town has produced some of the nation's leading literary figures, including Ralph Waldo Emerson and Henry David Thoreau. The Town of Concord, Harvard University and the National Park Service own large tracts of land in the Town. These holdings, in combination with others, comprise about 5,000 acres of conservation land that are protected from development. Emerson Hospital is located in Concord as is the regional high school, Concord-Carlisle High School.
Simon Willard Road is located in Concord Center in the Nashawtuc Hill area, which is identified by the assessors as "Neighborhood 1." The main entrance into the Nashawtuc Hill area is over a single-arch granite bridge that crosses the Sudbury River, one of the borders of the Nashawtuc Hill area. The area is also bordered by the Assabet River. All three rivers converge at "Egg Rock" on the northeast corner of the Nashawtuc Hill area. The top of the area contains Willard Common, which is named for a founder of Concord.
The appellants timely filed their appeals with the Board and argued that their properties, all located in "Neighborhood 1," were assessed at a higher value than properties located in other neighborhoods of Concord. The appellants maintained that the 1.75 neighborhood adjustment factor ("NAF") assigned to Neighborhood 1 properties for valuation purposes for fiscal year 2002 was excessively high and unjustified.
At the hearing, Mr. Armitage offered into evidence documents which he maintained, proved that numerous properties in Concord were under-assessed for fiscal year 2002. The appellants argued that these under-assessments resulted in corresponding over-assessments of other properties in Concord, and that the properties located in Neighborhood 1, including their properties, were most adversely impacted. Specifically, the appellants argued that the assessors' use of a 1.75 NAF for Neighborhood 1, compared to NAFs of less than 1.00 for fourteen of the fifteen remaining neighborhoods of Concord, resulted in the disproportionate assessment of properties located in Neighborhood 1.

The appellants offered into evidence the testimony and report of Jonathan Avery, a real estate appraiser to support their contention that the 1.75 NAF for Neighborhood 1 resulted in an erroneous value being attributed to the properties in the neighborhood. On the basis of his education and professional experience, the Board qualified Mr. Avery as an expert real estate appraiser.
Mr. Avery was asked by the appellants to determine if there existed major neighborhood value differences between the premium areas of Concord, including Neighborhood 1, so as to justify the assessors' use of varying NAFs. Mr. Avery's report was based on a review of buildable lot sales occurring between June 1999 and June 2001. He analyzed this data by use of a "matched-pair analysis" where the sale of a parcel in Neighborhood 1 was compared to the sale of a "comparable" parcel in another Neighborhood to ascertain indicated differences as reflected in price. He suggested that such a matched-pair of sales could provide important information "indicating market reaction to the location of a property." Mr. Avery's conclusions were based on the following three land sale comparisons.

Address
Sale
Price
Sale
Date Lot Size (Square feet)
Zoning
Neighborhood
Example 1
Lot 5/79 Oxbow &750,000 09/01/00 43,307 A 6
Lot 1E Musterfield $725,000 06/23/00 52,228 A 1

Example 2
Lot 1 Pond View $640,000 10/07/99 30,394 A 16
313 Simon Willard $645,000 07/07/99 46,827 A 1

Example 3
Lot 3A Captain Miles $725,500 01/13/00 64,793 AA 7
Lot 1E Musterfield $725,000 06/23/00 52,228 A 1

Mr. Avery testified that although there were differences between the paired properties, in his opinion these differences were "minor and did not affect the selling price." Instead, he suggested, the differences in price were "likely attributable to appreciation." He then concluded that the matched-pair analysis "present[ed] no confirmation of major neighborhood value differences between the premium areas of Concord."
On cross-examination, counsel for the Concord Board of Assessors ("assessors") questioned Mr. Avery about the shape of Lot 1E Musterfield Road, used as the Neighborhood 1 parcel in his Examples #1 and #3, and its impact on the selling price. Mr. Avery acknowledged that this parcel was "bow-tie" shaped, but made no adjustments for its shape, and suggested that the lot shape represented only a "minor" difference. In his testimony, however, he conceded that due to the lot's irregular shape, there would be constraints placed upon where a building could be located on the parcel. Mr. Avery also acknowledged that the existence of a right-of-way easement across the lot could limit placement of a building. Conversely, the non-Neighborhood 1 properties used for comparison in the matched-pair analysis, 5 Oxbow Road and 3A Captain Miles Road, had no such constraints.
The appellants also offered into evidence an analysis prepared by Mr. Armitage, which he claimed showed that there was a "marked non-uniformity and inconsistency" with the town's assessments for fiscal year 2002 and that Neighborhood 1 was one of the most adversely impacted. Using calendar year 2001 sales, and their fiscal years 2002 and 2003 assessments, Mr. Armitage first calculated the assessment-to-sales ratio that he claimed would "provide a consistent and uniform result to the Town-wide average for that ratio." He then calculated the amount by which the assessment-to-sales ratio for each sold property differed from a "consistent and uniform ratio" and applied that difference to the property's assessed value. Mr. Armitage provided no explanation of his calculations or conclusions, nor did he explain how he defined his "consistent and uniform" ratio.
Rather, Mr. Armitage simply argued that his analysis showed that of the sixteen neighborhoods in Concord, six of them showed "marked non-uniformity and inconsistency" with the rest of the Town's assessments; two of the neighborhoods were under-assessed, and the corresponding over-assessments fell on only four neighborhoods, with "[t]he greatest absolute impact per individual property [falling] on Neighborhood 1." Again, Mr. Armitage offered no explanation of his calculations or conclusions.
In support of the 1.75 NAF assigned to Neighborhood 1, the assessors offered the testimony and assessment report of Jacqueline Crimins, Town Appraiser. Ms. Crimins began her testimony with a description of Neighborhood 1 and noted that it is the most elite area of Concord. She explained that this area is surrounded on two sides by a river, is within two blocks of local shopping areas, and is also within two blocks of commuter Route 2. Also, there are large tracts of legally non-developable conservation land dispersed throughout the area.
Ms. Crimins explained that fiscal year 2002 was a revaluation year for the Town of Concord, with the last revaluation having occurred in 1999. She testified that between the years 1999 to 2002, the change in mean value of residential property increased, on average, forty-three percent. Although Concord made no interim adjustments to property assessment values during the intervening fiscal years, she believes that property values increased and that the annual adjustments would have been twelve percent for fiscal year 2000, twenty percent for fiscal year 2001 and twelve percent for fiscal year 2002. Thus, she explained, in fiscal year 2002, properties throughout Concord saw significant increases in their assessment values.
Ms. Crimins provided some history as to how Concord derived its assessment values. She explained that in 1980, the Town assembled twenty-three real estate brokers and had them determine a neighborhood plan. The resulting map grouped the Town of Concord into sixteen different neighborhoods. Ms. Crimins explained that the purpose of this plan was to assist the assessors when determining values within different locations and, therefore, to ensure that property in each particular neighborhood was similarly valued. She testified that the assessors did not intend to discriminate against either the appellants in these appeals or other property owners in Neighborhood 1.
Ms. Crimins then explained that during the 2002 revaluation, it was necessary for the Town of Concord to perform a conversion between two databases, noting that the 1999 revaluation had used a "street price index" to value properties. Therefore, to convert the prior land values to the fiscal year 2002 values, which now used a "neighborhood" pricing index, Ms. Crimins first had to do a comparison between the two systems. Since both methods used the identical buildable lot size developed from the Town Zoning, she chose two areas within "Zone A", which required a minimum 40,000 square-foot lot size. Ultimately, she chose to compare land values of Sandy Pond Road, Neighborhood 14, and Simon Willard Road, Neighborhood 1.
In 1999, Sandy Pond Road had a street price value of $180,000 and properties located in Neighborhood 1 had a street price value of $450,000 per buildable lot. Therefore, under the 1999 valuation method, the land values in Neighborhood 1 were approximately 2.5 times that of the land values of properties located on Sandy Pond Road. After the fiscal year 2002 revaluation, Sandy Pond Road properties had a land value of $408,800, and properties located on Simon Willard Road had a land value of $1,067,600, per building lot. Thus, in fiscal year 2002 the land values of Simon Willard Road, Neighborhood 1, were 2.6 times that of the land values on Sandy Pond Road.
Ms. Crimins then compared the fiscal year 2002 "neighborhood" factors that were used to value properties in these areas. For assessment purposes, Neighborhood 14, which includes Sandy Pond Road, was assigned an NAF of 0.67 while Neighborhood 1, which includes Simon Willard Road, was assigned a NAF of 1.75. Again, the values of properties in Neighborhood 1 were calculated approximately 2.5 times greater than the values of properties in Neighborhood 14. Based on these comparisons, Ms. Crimins concluded that values of properties located in Neighborhood 1, compared to property values in other neighborhoods of Concord, have remained uniform and consistent from fiscal year 1999 to 2002. She further concluded that the assignment of a 1.75 NAF for Neighborhood 1 was appropriate and justified by her analysis.
Ms. Crimins also presented an analysis of land sales in Neighborhood 1. Her first sale, 24B Musterfield Road, was also cited by Mr. Avery. This property is an hourglass-shaped piece of land with two easements, one a forty-foot right-of-way cutting through the front portion of the land and the other a right-of-way for the neighbor's driveway. This parcel sold on June 22, 2000 for $725,000. Sale number two, 350 Simon Willard Road, is a 1.56-acre triangular shaped lot located at the end of a cul-de-sac. This property sold in July of 2001 for $1,455,000. At the time of sale, there was a Colonial style home with 2,808 square feet of living space, which was torn down and rebuilt. Lastly, sale number three, 74 Musterfield Road, is a 1.81-acre lot that sold in April of 1997 for $1,085,000. At the time of sale, there was a Federalist-style home with 3,596 square feet of living space on the property. The house was torn down and a new home, with 5,162 square feet of living space, was built. Based on these sales, Ms. Crimins concluded that a good buildable lot in Neighborhood 1 would sell for close to $1,400,000, and a lot with some restrictions would sell for a minimum of $725,000.
Based on the evidence presented, the Board found that the appellants failed to prove that they were the victims of a scheme of discriminatory, disproportionate assessment. The Board found no evidence that the assessors deliberately discriminated against the appellants' properties or in favor of certain classes of property in Concord.
The Board further found that the assessors applied a uniform standard of valuation to all properties in Concord and that the assessors demonstrated that the use of an NAF for properties located in Neighborhood 1 that was higher than the NAFs used for the other neighborhoods of Concord was both justified and proper. The Board also found that any shortcomings in the assessors' valuation of a particular property are appropriately addressed by claims for overvaluation and not for disproportionate assessment.

II. OVERVALUATION
Having ruled that the appellants failed to establish a right to an abatement on the basis of disproportionate assessment, the Board next addressed the appellants' individual claims for overvaluation.

Docket No. F266343
On January 1, 2001, William F. and Desiree C. Armitage were the assessed owners of a parcel of real estate located at 199 Simon Willard Road, Concord, Massachusetts, improved with a single-family home ("Armitage property"). For fiscal year 2002, the assessors valued the Armitage property at $1,817,600, and assessed a tax at the rate of $9.83 per thousand, in the amount of $17,867.01. The Armitages paid the tax due without incurring interest. On February 1, 2002, the appellants timely filed an application for abatement with the assessors and, on April 5, 2002, the appellants agreed in writing to extend the period of time for the assessors to act upon their abatement application.
On July 16, 2002, the assessors granted the Armitages a partial abatement in the amount of $98,400 of valuation, decreasing the property's assessed value to $1,719,200. Nevertheless, the Armitages seasonably filed an appeal with the Board on October 11, 2002. On this basis, the Board found that it had jurisdiction over this appeal.
The property is a 1.1-acre parcel of real estate located at the southwest corner of Simon Willard and Musterfield Roads, in the Nashawtuc Hill Neighborhood. The property is improved with a single-family colonial-style residence. The structure is turned ninety-degrees from Simon Willard Road and faces the rear of the abutting property at 175 Simon Willard Road. To the west there is a buildable vacant lot located at 18A Musterfield Road.
The home was originally built in 1936. A major addition was completed in 1996, which increased the gross living area by approximately one-third to its present size of 4,062 square feet. The dwelling is a two-and-one-half story house with a center chimney and two fireplaces. There are a total of eleven rooms including four bedrooms, an office and a family room, and four bathrooms. The house has an unfinished basement, an attic, and a small, but functional, garage. The property has town water and a private sewage system. There is a security system, central air conditioning and a lawn sprinkler system.
In support of their contention that the subject property was over-valued for fiscal year 2002, the Armitages offered the testimony of Mr. Armitage and presented two self-prepared assessment analyses. First, Mr. Armitage claimed to have searched the assessors' database for homes that had effective areas, land size, and replacement costs within approximately ten-percent of the Armitage property. He then chose the following six properties for comparison.

Location
Neighborhood Land
Area (acre) Effective Area
(sq feet) FY 2002 Assessment
16 Captain Miles Ln 7 1.06 5,060 $1,350,000
65 Park Ln 13 0.99 4,479 $1,127,400
53 Sarah Way 14 1.15 4,828 $1,204,900
147 Independence Rd 14 1.01 5,141 $1,148,300
1041 Old Marlboro Rd 7 1.12 5,062 $1,146,200
13 Garland Rd 13 1.03 4,868 $ 901,900

The Armitages also conducted a second search of the assessors' database to find Colonial-style homes that, like the Armitage property, had four bedrooms and also had living areas within fifteen percent of the Armitage property, and land areas of one to two acres. The following table summarizes the alleged assessment information for these properties.

Location
Neighborhood Land
Area
(acre) Living Area
(sq feet) FY 2002 Assessment
1000 Sudbury Rd 6 1.84 3,856 $1,497,300
16 Captain Miles Ln 7 1.06 4,252 $1,350,000
1345 Monument St 16 1.87 4,652 $1,283,300
116 Park Ln 16 1.20 4,506 $1,123,900

Based on the second search, and including the assessed value of the subject property, Mr. Armitage calculated an average assessment value of $1,394,740 which was less than the subject property's fiscal year 2002 assessment. Noting that none of these properties was assessed for more than $1,500,000, and that most were tightly grouped just above $1,300,000, Mr. Armitage argued that this supported his contention that the subject property was over-assessed for fiscal year 2002.
The Armitages did not, however, establish comparability between these properties and their property, or suggest any quantitative adjustments. Also, the Armitages failed to relate these properties' assessments to the market or to their respective fair cash values.
In support of the assessed value, the assessors again offered into evidence the testimony of Jacqueline Crimins, Town Appraiser. To calculate the subject property's fair market value, Ms. Crimins utilized the sales comparison approach. Specifically, she relied on three sales of properties that she deemed comparable to the subject property and that occurred between January 1, 2000 and October 20, 2000.
Noting that differences did exist between her chosen comparable properties and the Armitage property, Ms. Crimins made adjustments for differences in style, land size, location, effective living area and overall condition. Noting that sale number 1 is a Federalist-style home, which she found to be of a grander style than the Armitage property, Ms. Crimins made a five-percent downward adjustment. She considered the style of sale number two and three to be equivalent to the subject property. All three properties were adjusted for their differences in land size, at the rate of $60,000 per acre. Sale number two, also located in Neighborhood 1, needed no adjustment for location. Because sale number one is not in "Neighborhood 1," the premier neighborhood, although located in a desirable neighborhood, Ms. Crimins made a ten-percent downward adjustment. Lastly, sale number three is located near Sudbury on the south side of Route 2 and, therefore, was adjusted downward by twenty percent.
Sales number one and number two have smaller effective areas than the Armitage property and so Ms. Crimins made upward adjustments to both, calculated at $50.00 per square foot. Sale number three needed no adjustment. Lastly, Ms. Crimins made a ten-percent upward adjustment to sale number two for its overall inferior condition. After all adjustments were made, Ms. Crimins' calculations indicated values for the three comparables of $1,906,700, $1,866,350, and $1,818,000, respectively.
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 Armitage property.

Subject
199 Willard Sale #1
63 Monument Sale #2
285 Musketaquid Sale #3
279 Garfield
Sale Date 01/01/00 06/21/00 10/20/00
Sale Price $1,800,000 $1,687,500 $2,400,000
Land Size 1.1 acres 1.82 acres 1.42 acres 2.80 acres
Effective Area 4,795 sf 3,597 sf 4,209 sf 4,774 sf
Style Colonial Federalist Cape Cape
Adjustments
Land Size $ -43,200 $ -19,200 $ -102,000
Location $ 180,000 $ -480,000
Style $ -90,000
Effective Area $ 59,900 $ 29,300
Condition $ 168,750
Net Adjustments $ 106,700 $ 178,850 $ -582,000
Indicated Value $ 1,906,700 $ 1,866,350 $ 1,818,000

Finally, Ms. Crimins determined that sale number two, located in Neighborhood 1, was the most comparable to the subject property. In conclusion, she determined that the subject property had a fair cash value of $1,860,000 for fiscal year 2002.
On the basis of all the evidence presented, the Board found that the Armitages' self-prepared valuation analyses were flawed. First, the Board found that the Armitages failed to establish comparability between any of the properties presented and their property. The Board further found that the Armitages failed to make adjustment for any differences that did exist, including the fact that all of the cited properties were located outside of Neighborhood 1, which by itself would have an impact on the cited properties' values. Further, the assessors' evidence supported the assessed value. The Board therefore concluded that the Armitages failed to meet their burden of proving overvaluation.
Accordingly, the Board issued a decision in this appeal for the appellee.

Docket No. F266344
On January 1, 2001, Philip and Betsey Caldwell were the assessed owners of a parcel of real estate located at 18A Musterfield Road, Concord, Massachusetts ("the Caldwell property"). For fiscal year 2002, the assessors valued the Caldwell property at $1,068,100, and assessed a tax at the rate of $9.83 per thousand, in the amount of $10,499.42. The Caldwells paid the tax due without incurring interest. On January 4, 2002, the Caldwells timely filed an application for abatement with the assessors and, on April 3, 2002, agreed in writing to extend the period of time for the assessors to act upon their abatement application.
On July 15, 2002, the assessors granted the Caldwells a partial abatement in the amount of $317,200 of valuation, decreasing the property's assessed value to $750,900. Nevertheless, on October 11, 2002, the Caldwells seasonably filed an appeal with the Board. On this basis, the Board found that it had jurisdiction over the subject appeal.
The Caldwell property is a vacant tract of land that abuts 153, 175 and 199 Simon Willard Road and 191 Musterfield Road. The lot is 40,212 square feet, which meets the minimum zoning requirement of 40,000 square feet for a buildable lot, and has 172.05 feet of frontage. The Caldwells argued that the narrow shape of the lot, its downward slope and the resulting limitation on the placement of a septic system, limits the future placement of a house and, therefore, negatively impacts the value of the land. The Caldwells also noted that this parcel is much smaller than most lots in Neighborhood 1, has no privacy, and that a house built on this lot would be closer to adjacent houses than any other two adjacent houses in the neighborhood. The Caldwells argued that these factors negatively impact the value of the land.
The Caldwells noted that the assessors' fiscal year 2002 assessment database showed that there were five vacant buildable lots in Concord that ranged in size from 40,000 square feet to one acre. The Caldwells further noted that the Caldwell parcel was assessed between 46% and 228% more than these other lots. Accordingly, the Caldwells argued, their parcel was over-assessed for fiscal year 2002.
In support of their assessment of the Caldwell parcel, the assessors again offered the testimony and assessment report of Ms. Crimins. Ms. Crimins testified that she relied on the three land sales cited in her Neighborhood 1 Assessment Report, which was prepared to refute the appellants' claims of disproportionate assessment, to support the assessment of the subject lot. In particular, she found comparable sale No. 1, located at 24B Musterfield Road, to be most comparable. She noted that although this lot is slightly larger than the Caldwell parcel, it is irregular in shape and has two easements running across it. Despite these negative factors, the lot sold on June 22, 2000 for $725,000.
Ms. Crimins also noted that the Caldwells had submitted a proposed house plan for their parcel which showed that a house with a gross living area of 4,000 square feet could be built. She explained that there are currently one hundred properties located in Neighborhood 1 and that fifty-seven of them have a gross living area of 4,000 square feet, or less.
On the basis of the evidence presented, the Board found that the Caldwells failed to meet their burden of proving that their parcel was over-assessed for fiscal year 2002. Although the Caldwells cited the assessed values of other vacant buildable lots in Concord, the Board found that none of these lots is located in the premier Neighborhood 1 location. As previously found by the Board, and as supported by the assessors' Neighborhood 1 assessment report, properties located in Neighborhood 1, in general, have justifiably higher assessed values than those in other areas in Concord. Further, as evidenced by the Neighborhood 1 assessment report, an encumbered vacant buildable lot in Neighborhood 1 would sell for a minimum of $725,000 and, therefore, an unencumbered lot, such as the Caldwell parcel, would sell for more than the assessed value, as abated, of $750,900.
Accordingly, the Board issued a decision for the appellee.

Docket No. F266350
On January 1, 2001, John C. and Holly B. Cratsley were the assessed owners of a parcel of real estate located at 221 Nawshatawuc Road, Concord, Massachusetts, improved with a single-family home ("the Cratsley property"). For fiscal year 2002, the assessors valued the Cratsley property at $1,450,500, and assessed a tax at the rate of $9.83 per thousand, in the amount of $14,258.42. The Cratsleys paid the tax due without incurring interest. On February 1, 2002, the Cratsleys timely filed an application for abatement with the assessors and, on March 31, 2002, agreed in writing to extend the period of time for the assessors to act upon their abatement application.
On July 15, 2002, the assessors denied the Cratsleys' request for an abatement and on October 11, 2002, the appellants seasonably filed an appeal with the Board. On this basis, the Board found that it had jurisdiction over the subject appeal.
The Cratsley property is a 0.97-acre parcel of real estate improved with a single-family Contemporary-style dwelling. The Cratsley property is hourglass-shaped, with the middle being approximately thirty feet narrower than the top and bottom lot lines, and borders on both Nashawtuc Road and Musketaquid Road. The lot drops more than 55 feet in 262 feet, for a 20% grade. The lot does not have access to town sewer, and, therefore, the Cratsleys must have a private septic system. Because of the lot's steep slope and the required septic system, house placement was difficult. Also, a garage could not be built adjacent to the dwelling since there would be no place for snow removal. Consequently, the garage is located more than one hundred feet away from the house.
The house has twelve rooms, four bedrooms and three-and-one-half bathrooms, with a total living area of 2,617 square feet. The house is styled with an open floor plan with the structure fanning in the rear to allow an expansive view of the yard, and river. The house has central air conditioning and a security alarm system.
In support of their contention that their property was over-assessed, the Cratsleys offered into evidence both assessment and sales comparison analyses. First, the Cratsleys presented assessment information for three properties also located in Neighborhood 1: 40 and 80 Squaw Sachem's Trail and 283 Simon Willard Road. Mrs. Cratsley testified that all three of these lots, unlike the Cratsley property, are completely level and also have town sewer. The assessment information for these properties is as follows.

Location
Style Land
Area
(acre) Living Area
(sq feet) FY 2002 Assessment
40 Squaw Sachem's Trail
Ranch
2.07
2,815
$1,035,500
80 Squaw Sachem's Trail
Ranch
1.9
1,711
$1,102,300
283 Simon Willard Rd Contemporary 2.1 2,248 $1,530,500

Using the assessment information for these three properties, the Cratsleys calculated an average assessment value of $1,200,000. This, in the Cratsleys' opinion, is the appropriate value of their property.
The Cratsleys also submitted an assessment analysis of seven properties located in different neighborhoods of Concord, which they claimed had similar Contemporary-style houses. The relevant assessment and sales data is presented in the following table.

Location Land Area
(acre) Living Area
(sf) FY 2002 Assessment Sale Date
Sale Price
389 Lindsay Pond Rd 3.45 2,115 $1,202,500
1 Revolutionary Rd 0.84 3,105 $ 925,600 11/30/00 $ 940,000
430 Annursnac Hill 1.48 2,782 $ 645,100
300 Old Pickard Rd 1.94 3,831 $ 882,000 09/25/00 $ 800,000
197 Holdenwood Rd 0.93 2,727 $ 660,900
119 Bartlett Hill Rd 0.73 1,938 $ 753,100 07/31/00 $ 736,500
123 Farmers Cliff Rd 1.84 3,562 $ 825,100

Based on this second search, the Cratsleys calculated an even lower average assessment value of $669,500, significantly less than the Cratsley property's fiscal year 2002 assessment. In their analysis, however, the Cratsleys did not establish comparability between these cited properties and the Cratsley property or suggest any quantitative adjustments. The Cratsleys also failed to relate these properties' assessments to the market or to the fair cash values of the alleged comparables and the Cratsley property.
In support of the assessed value, the assessors again offered the testimony of Jacqueline Crimins. To calculate the Cratsley property's fair market value, Ms. Crimins utilized the sales comparison approach. Specifically, she relied on three sales of properties that she deemed comparable to their property and that occurred between June 30, 2000, and November 30, 2000.
Noting that differences did exist between her chosen comparable properties and the Cratsley property, Ms. Crimins made adjustments for differences in style, land size, location, effective area and overall condition. Noting that sale number one has severe restrictions on the use of their land, and that the useable portion is equal to the Cratsley property, no adjustment was made. Sales two and three were adjusted for their differences in land size, at the rate of $60,000 per acre. All three properties were located in areas outside of Neighborhood 1 and, consequently, were given upward adjustments. Sale number one, located in a new development near the Acton town line was given a twenty-percent adjustment, and sale number two, also located in a newer development but near the center of town, was given a ten-percent adjustment. Sale number three, located on Monument Street, a desirable neighborhood but not near the center of town, was also given a ten-percent adjustment.
Sales numbers one and two have more effective area than the Cratsley property and, therefore, Ms. Crimins made downward adjustments to both at $35.00 per square foot. Sale number three, which has a smaller effective area, was given an upward adjustment calculated at the same rate. Also, since sale number two lacked a finished basement, Ms. Crimins made a $40,000 upward adjustment.
Ms. Crimins also made a downward five-percent adjustment to sale number one for its superior condition, and made an upward ten-percent adjustment to sale number three for its overall inferior condition. Finally, all three sales were given a $10,000 downward adjustment for the garages' close proximity to the homes. After all adjustments were made, Ms. Crimins' calculations indicated fair market values of $1,489,065, $1,461,670 and $1,379,300 for comparables number one, two and three, respectively.
The following table is a presentation of the sales on which Ms. Crimins relied, and all adjustments that she made for differences in comparison to the Cratsley property.

Subject
221 Nashawtuc Rd Sale #1
75 Channing Rd Sale #2
236 Partridge Ln Sale #3
906 Monument St
Sale Date 09/08/00 11/30/00 06/30/00
Sale Price $1,355,000 $1,285,000 $1,250,000
Land Size 0.97 ac 4.81 ac 0.47 ac 3.06 ac
Effective Area 3,683 sq feet 5,374 sq feet 4,021 sq feet 3,263 sq feet
Style Contemporary Contemporary Contemporary Contemporary
Adjustments
Land Size $ 30,000 $ -125,400
Location $ 271,000 $ 128,500 $ 125,000
Effective Area $ -59,185 $ -11,830 $ 14,700
Basement $ 40,000
Condition $ -67,750 $ 125,000
Garage $ -10,000 $ -10,000 $ -10,000
Net Adjustments $ 134,065 $ 176,670 $ 129,300
Indicated Value $ 1,489,065 $ 1,461,670 $ 1,379,300

Ms. Crimins determined that sale number two was the most comparable to the Cratsley property in net adjustments. In conclusion, she determined that the Cratsley property had a fair cash value of $1,460,000 for fiscal year 2002.
With respect to the Cratsleys' cited comparable properties located on Squaw Sachem's Trail, Ms. Crimins noted that although these properties are located right next to the river, they have no river view. Because of the nearby conservation lands the property owners are prohibited from removing trees. Ms. Crimins also noted that both of these properties are ranches, very different in style from the Cratsley property's Contemporary-style house. Lastly, Ms. Crimins acknowledged that the Cratsley property is sloped. However, since the property also has a water view, in her opinion these two factors negated each other and, therefore, she made no adjustment for the property's topography.
On the basis of the evidence presented, the Board found that the Cratsleys met their burden of proving that their property was over-assessed for fiscal year 2002. The Board found that the topography of the lot, a steep slope of about a twenty-percent grade, negatively impacted the utility of the lot and limited future improvements. The Board found that the topography had a negative impact on the property's overall value. The Board further found that the property's value did not offset or negate the negative impact of its slope and, therefore, allowed a reduction in value of $150,500.
Accordingly, the Board issued a decision for the Cratsleys in this appeal and granted an abatement in the amount of $1,479.42.

Docket No. F266276
On January 1, 2001, Alva Morrison and Erica Van Cunera-Morrison ("the Morrisons") were the assessed owners of a parcel of real estate located at 229 Musketaquid Road, Concord, Massachusetts, improved with a single-family home ("the Morrison property"). For fiscal year 2002, the assessors valued the Morrison property at $1,460,300, and assessed a tax at the rate of $9.83 per thousand, in the amount of $14,354.75. The appellants paid the tax due without incurring interest. On January 28, 2002, the Morrisons timely filed an application for abatement with the assessors and, on March 29, 2002, agreed in writing to extend the period of time for the assessors to act upon their abatement application.
On July 15, 2002, the assessors denied the Morrisons' request for an abatement and, on October 1, 2002, the Morrisons seasonably filed an appeal with this Board. On this basis, the Board found that it had jurisdiction over the subject appeal.
The Morrison property is a 0.95-acre parcel of real estate improved with a two-story stucco/concrete house. The lot is rectangular in shape and has good drainage. The house has ten rooms, including five bedrooms, a living room, a dining room, a den, a storage room and two bathrooms with a total living area of 3,355 square feet. There is a two-car garage attached to the house by an enclosed breezeway. Above the garage is a studio apartment rented to Mr. Morrison's secretary.
In support of their contention that their property was over-assessed, the Morrisons offered into evidence an appraisal report prepared by Robert Hilsinger. Based on his education and experience, the Board qualified Mr. Hilsinger as an expert real estate appraiser. Mr. Hilsinger testified that although the Morrison property has an excellent location, it also has features that are atypical to the Concord market. For example, he testified that the value of the property is negatively affected by its poured-concrete construction and lack of a basement.
To calculate the Morrison property's fair market value, Mr. Hilsinger relied on the sales comparison approach. He testified that the underlying value of land is the most important attribute of properties in Concord. Therefore, in selecting his comparables, he first looked for sales in the same neighborhood. He looked then for houses similar in style and size. Ultimately, he chose three sales of Colonial-style houses of approximately the same square footage and which are located less than two miles from the Morrison property.
Sale number one, located just around the corner at 7 Simon Willard Lane, is a 0.31-acre parcel improved with a residence that has a gross living area of 3,227 square feet. The property sold on March 30, 2001 for $865,000. Since the sale was slightly beyond the valuation date of January 1, 2001, Mr. Hilsinger made a negative timing adjustment at the rate of one percent per month. He then made upward adjustments for the lot's small size and also for the difference in gross living area. In his calculations, Mr. Hilsinger also made adjustments for the comparable property's basement, additional fireplaces and lack of a patio.
Sale number two is located at 128 Revolutionary Road, approximately 1.63 miles from the Morrison property. It is a 0.58-acre parcel improved with a dwelling that has a gross living area of 2,612 square feet. This property sold on August 25, 2000 for $877,500. Again, Mr. Hilsinger made adjustments to account for the timing of the sale, the size of the lot, the difference in living area, the additional one-and-a-half bathrooms, existence of a basement, and its overall condition. He also made an upward adjustment for location, noting that the location of the comparable is slightly inferior to the Morrison property's location.
Lastly, sale number three is a 1.87-acre parcel improved with a dwelling that has a gross living area of 3,324 square feet. The property sold on May 2, 2000 for $920,000. Mr. Hilsinger also made adjustments to this sale to account for timing, lot size, square footage, number of bathrooms, additional fireplaces, and overall condition. Mr. Hilsinger chose to make no adjustment for location, noting that although the property is located on a busy street, the house is set back from the road so that the impact from traffic is not substantial.
All three sales were given an upward adjustment of $50,000 for the Morrison property's garage apartment.
The following table summarizes the sales that Mr. Hilsinger relied on and the adjustments made for differences in comparison to the Morrison property.

Subject
229 Musketaquid Sale #1
7 Simon Willard Sale #2
128 Revolutionary Sale #3
1048 Lowell
Sale Date 3/30/01 8/25/00 5/02/00
Sale Price $ 865,000 $ 877,500 $ 920,000
Land Size 0.97 ac 0.31 ac 0.58 ac 1.87 ac
Gross Living Area
3,300 sq feet
3,227 sq feet
2,612 sq feet
3,324 sq feet
Style Colonial Colonial Colonial Colonial
Adjustments
Date of Sale $ -25,000 $ 37,000 $ 73,000
Land Size $ 75,000 $ 50,000 $ -50,000
Location $ 43,875
Effective Area $ 3,650 $ 34,400 $ -1,200
Bathrooms $ -12,000 $ -12,000
Basement $ -20,000 $ -20,000
Patio $ 5,000
Fireplaces $ 10,000 $ -10,000
Condition $ -43,875 $ -46,000
Apartment $ 50,000 $ 50,000 $ 50,000
Net Adjustments $ 98,650 $ 139,400 $ 3,800
Indicated Value $ 963,650 $ 1,016,900 $ 923,800

The Morrisons also offered into evidence the property record card for 268 Elm Street. This property abuts the Morrison property on its southern border. The property is a 0.97-acre parcel improved with a single-family dwelling with a gross living area of 8,340 square feet. For the fiscal year at issue, the assessors valued this property at $1,032,900, over $400,000 less than the assessed value of the Morrison property.
In support of the assessed value, the assessors relied on the testimony and assessment report of Jacqueline Crimins. To calculate the Morrison property's fair market value, Ms. Crimins also utilized the sales comparison approach. Specifically, she relied on three sales of properties that she deemed comparable to the Morrison property that occurred between June 21, 2000 and November 30, 2000. Noting that differences did exist between her comparable properties and the Morrison property, Ms. Crimins made adjustments for differences in location, square footage, number of baths and overall condition. Lastly, Ms. Crimins made an upward adjustment of only $5,000 to each of the three comparables to account for their lack of a garage apartment.
The following table presents the sales upon which Ms. Crimins relied, and the adjustments made for differences in comparison to the Morrison property.

Subject
229 Musketaquid Sale #1
285 Musketaquid Sale #2
350 Simon Willard Sale #3
18 Windmill Hill
Sale Date 06/21/00 11/03/00 10/09/00
Sale Price $ 1,687,500 $ 1,425,000 $ 1,437,500
Land Size 0.95 ac 1.42 ac 1.45 ac 1.10 ac
Effective Area 3,646 sq feet 4,209 sq feet 3,097 sq feet 3,894 sq feet
Style Stucco Cape Cod Colonial Stucco
Adjustments
Land Size
Location $ 143,750
Effective Area $ -28,150 $ 27,450 $ 12,400
Baths $ -20,000 $ -20,000
Condition $ -168,750 $ -143,750
Additional Apt $ 5,000 $ 5,000 $ 5,000
Net Adjustments $ -211,900 $ 32,450 $ -2,600
Indicated Value $ 1,475,000 $ 1,457,450 $ 1,434,900

Finally, Ms. Crimins determined that sale number two was the most comparable to the Morrison property because it is in the same overall condition as the Morrison property and is located in the same neighborhood. In conclusion, she determined that the Morrison property had a fair cash value of $1,460,000 for fiscal year 2002.
With respect to Mr. Hilsinger's report, Ms. Crimins testified that the information he provided for his comparable sale number one, 3,227 square feet of living area, included an addition to the house that was completed subsequent to the March 30, 2001 sale date. She further testified that the house that sold for $865,000 was a much smaller house with a living area of only 2,451 square feet, as evidenced by the 2001 property record card. Ms. Crimins also noted that Mr. Hilsinger made no adjustments to account for the fact that his comparables numbers one and three have considerably more traffic than the Morrison property as both are located on "commuter routes."
Ms. Crimins testified that although the property located at 268 Elm Street abuts the Morrison property and is similar in size, it is assessed for less than the Morrison property because of the increased traffic, which negatively impacts the Elm Street property's fair cash value.
On the basis of the evidence presented, the Board found that the Morrisons met their burden of proving that their property was over-assessed for fiscal year 2002. The Board found that, although the abutting property located at 268 Elm Street has more traffic than the Morrison property, the thirty-percent disparity in assessed values between these similar abutting properties was not justified. Accordingly, the Board, after consideration of the traffic issue as well as differences between the Elm Street and Morrison properties, issued a decision for the appellant reducing the property's assessed value by approximately ten-percent to $1,300,000.
Therefore, the Board entered a decision for the Morrisons and granted an abatement in the amount of $1,572.80.

Docket Nos. F266346, F266347
On January 1, 2001, Charles A. Jr. & Margaret W. Ziering were the assessed owners of two abutting parcels of real estate located at 263 and 24A Simon Willard Road, Concord. The assessors valued the properties at $3,341,700 and $1,304,600, respectively, and assessed taxes thereon at the rate of $9.83 per thousand in the amounts of $32,848.91 and $12,824.22, respectively. The Zierings timely paid the taxes due without incurring interest and, on February 1, 2002, filed an application for abatement. On March 31, 2002, the Zierings agreed in writing to extend the period of time for the assessors to act upon their abatement applications. On July 15, 2002 the assessors denied the abatement applications and, on October 11, 2002, the Zierings seasonably filed appeals with the Board. On this basis, the Board found that it had jurisdiction over the subject appeals.
The parcel located at 263 Simon Willard Road is a 2.61-acre parcel improved with a three-story single family dwelling. The home has a total of fourteen rooms, including five bedrooms and four-and-a-half bathrooms. The residence has arched hallways, approximately eight center and exterior-wall fireplaces, and hardwood floors with cherry borders. The kitchen has maple cabinets and a copper exhaust hood. There is built-in cabinetry made of cherry, walnut and mahogany throughout the home. The basement is finished with a billiards room and a home theatre.
In addition to the main residence, the property is improved with a pool house, which includes both an indoor three-fixture bathroom and an outside shower. Both the dwelling and the pool house are heated by radiant heat. Including the pool house, the property has a total living area of 6,719 square feet. There is an L-shaped two-plus car garage, which is detached from the residence but connected to it by a covered breezeway.
In support of their contention that their property was over-assessed, the Zierings offered into evidence the testimony and appraisal report of James Marchant. Mr. Marchant is a certified general appraiser and has been qualified by this Board and Massachusetts courts as an expert witness. On the basis of his education and experience, the Board qualified Mr. Marchant to testify as a real estate valuation expert.
To arrive at his estimate of fair cash value for the property located at 263 Simon Willard Road, Mr. Marchant researched sales of properties that sold for more than two million dollars during calendar year 2000. Mr. Marchant found that during this time period five properties in the Nashawtuc Hill area sold, ranging in price from $2,900,000 to $2,999,000.
Comparable sale number one, located at 224 Musterfield Road, abuts the subject property to the rear. The property, only 1.10 acres with a gross living area of 4,988 square feet, sold for $2,825,000 on October 1, 2000. Although this comparable property's improvement is newer than this Ziering property's improvement, Mr. Marchant found that no adjustment for quality was necessary. The Zierings had recently renovated their property to a high quality finish. Mr. Marchant did, however, note that differences existed between the two properties and made adjustments for the following: time of sale; lot size; number of bathrooms; gross living area; radiant heating; and fireplaces. Although comparable sale number one does not have a pool house, it does have a guest apartment located above the garage. Mr. Marchant found these two items were of equal value and, therefore, he made no adjustment.
Comparable sale number two is located less than one-tenth of a mile away at 313 Simon Willard Road. The property is new construction, which sold in August 2000 for $2,171,363. The lot is less than half the size of the Ziering property, only 1.08 acres, and the dwelling has a gross living area of 5,842 square feet. Mr. Marchant made adjustments to this sale for the new construction, the inferior quality of construction, timing, lot size, living area, number of bathrooms, unfinished basement, no radiant heat, no deck, number of fireplaces and no guest apartment or pool house.
Comparable sale number three, located at 437 Nashawtuc Road, is less than one-half mile from the subject property. The property sold on June 29, 2000 for $2,466,000. The land area of this property is also less than half the size of this Ziering property, and the dwelling also has a smaller gross living area, only 5,772 square feet. Mr. Marchant testified that this is an older home with some high quality features but has not been renovated like the Ziering property. There is no garage, the basement is not finished, and the home is in overall inferior condition compared to the Ziering property. Lastly, Mr. Marchant found that the property's guest house is comparable to the subject's pool house and pool and, therefore, no adjustment was necessary.
Comparable sale number four, located right around the corner at 295 Musterfield Road, is larger than the subject property with 4.59 acres and 7,704 square feet of gross living area. The property sold on July 6, 2000 for $2,999,999. Although this home is newer, only six years old, Mr. Marchant found the overall condition to be comparable to the Ziering property. He did, however, make adjustments to account for the following difference: timing; lot size; living area; number of bathrooms; unfinished basement; radiant heating; fireplaces; additional garage space; and lack of pool house.
Lastly, comparable sale number five is located at 29 Willard Common. This property, 1.21 acres in size with 3,381 square feet of gross living area, sold on August 15, 2000 for $2,695,000. Although the property is in the same general area as the subject property, Mr. Marchant made downward adjustments for both location and view as it is situated at the very top of Nashawtuc Hill with a view of the Town of Concord. In addition, Mr. Marchant made the customary adjustments for timing, lot size, living area, bathrooms, unfinished basement, radiant heat, number of fireplaces and the lack of a garage and pool house.
Mr. Marchant noted in his testimony that, subsequent to the 2000 sale, this property again sold in 2001 for around $2,500,000. The existing structure was demolished and a very large home was being built. On this basis, Mr. Marchant concluded that the greatest influence on the market for properties greater than $2 million is the location.
In addition to the testimony and report of Mr. Marchant, the Zierings also presented two self-prepared comparable assessment reports based on the assessors' database. The first was a review of properties in Concord with assessed values within ten-percent of the Ziering property. Mr. Ziering noted that although all of the properties had more land, and many had larger living areas than his property, many of these properties were assessed for less than his property. The second report prepared by the Morrisons was a review of properties that had five or more bedrooms and between one and 1.25 acres of land. The properties cited have land areas within half an acre of the Ziering property's lot size and many have more living area but all were assessed for less than the Ziering property.
On the basis of their analyses, the Zierings argued that their property's fair market value as of January 1, 2000 was $2,500,000.
In support of their assessment for this Ziering property, the assessors offered the testimony and assessment report of Jacqueline Crimins. Ms. Crimins first noted that the Ziering property was purchased by the Zierings in March of 1994 for $1,100,000. Subsequently, in 1996, the Zierings took out a building permit which showed a renovation cost of $1,206,000. Ms. Crimins testified that this is a state of the art house in excellent condition.
Also, Ms. Crimins relied upon three sales of properties that occurred during 2000, which the Zierings' valuation expert also used in his analysis: 295 Musterfield Road, 29 Willard Common and 224 Musterfield Road. Like Mr. Marchant, Ms. Crimins made adjustments for difference in land size compared to the subject property. Ms. Crimins calculated the adjustments at $60,000 per residual acre based on both the land-residual and the land-sales methods. Ms. Crimins also made adjustments for grade, effective year built, living area, swimming pools, pool house, landscaping, and garage.
After adjustments, Ms. Crimins arrived at adjusted fair market values for her three comparables of $3,200,000, $3,500,000 and $3,350,000, respectively, as summarized in the following table.

Subject
263 Simon Willard Rd Sale #1
295 Musterfield Road Sale #2
29 Willard Common Sale #3
224 Musterfield Rd
Sale Date 07/06/00 08/15/00 10/02/00
Sale Price $2,999,999 $2.695.000 $2,825,000
Land Size 2.61 ac 4.59 ac 1.22 ac 1.15 ac
Effective Area 7,643 sq feet 8,659 sq feet 5,439 sq feet 6,322 sq feet
Style Colonial Colonial Colonial Colonial
Adjustments
Land Size $ -118,880 $ 83,400 $ 87,600
Grade $ 299,999 $ 269,500 $ 282,500
Eff Yr Built $ 269,500
Eff SF $ -50,800 $ 110,200 $ 66,050
Pools $ 20,000 $ 20,000
Poll House $ 75,000 $ 75,000 $ 75,000
Garage $ 50,000
Net Adjustments $ 225,319 $ 857,600 $ 531,150
Indicated Value $ 3,225,318 $ 3,552,600 $ 3,356,150

Ms. Crimins concluded that sale number three was most comparable to the subject property after net adjustments and concluded that the fair market value of the subject property as of January 1, 2001 was $3,350,000.
On the basis of the evidence presented, the Board found that Ms. Crimins used the wrong effective living area for the Ziering subject property and for two of her three comparable sales. Therefore, the overall reliability of her analysis and her credibility were negatively impacted by this error. The Board further found that, based on the corrected information for the Ziering property and two of Ms. Crimins' comparables, and after making necessary adjustments for differences, the subject property's fair market value as of January 1, 2001 was $3,100,000. Accordingly, the Board issued a decision for the Zierings and granted an abatement in the amount of $2,375.91.
Regarding the Zierings' vacant lot located at 24A Musterfield Road, which abuts the Ziering home, Mr. Ziering testified that his opinion of value for this lot was "somewhere in the order of $900,000." His opinion of value was based on the sale of lot 24B Musterfield Road, a parcel of only 1.2 acres, which sold for $725,000 on October 1, 2001. He suggested that since his lot was bigger it should sell for more. His opinion of value was, in his words, "not based on any serious analysis."
The assessors rested on their assessment for the vacant lot.
The Board found that the appellants failed to meet their burden of proving that the vacant lot was over-assessed and issued a decision for the appellee in this appeal.
OPINION

The assessors have the statutory and constitutional obligation to assess all real property at its full and fair cash value. Part 2, C. one, section one, article 4, of the Constitution of the Commonwealth; Article 10 of the Declaration of Rights; General Laws chapter 59 sections 38, 52. See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975)(citations omitted). 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 Company v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The Board is entitled to presume that the assessment is valid until the taxpayer sustains his burden of proving otherwise. Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974). Accordingly, the burden of proof is upon the taxpayers to make out their right as a matter of law to an abatement of the tax. Id. The taxpayers must demonstrate that the assessed valuation of their property was improper. See Foxborough Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).
I. DISPROPORTIONATE ASSESSMENT
To demonstrate that their properties were over-assessed for fiscal year 2002, the appellants argued that their properties, located in Concord's Neighborhood 1, were disproportionately assessed relative to other properties in Concord.
If the taxpayer can demonstrate in an appeal to the Board that he has been the victim of a scheme of discriminatory, disproportionate assessment, he "may be granted an abatement . . . which will make . . . his assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory principles."

Coomey, 367 Mass. at 836 (quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1965)). See also Brook Road Corporation v. Board of Assessors of Needham, 2001 ATB Adv. Sh. 648, 658; Gargano v. Assessors of Barnstable, 2003 ATB Adv. Sh. 501, 531-532 (September 10, 1999). The burden of proof as to existence of a "scheme of discriminatory, disproportionate assessment" is on the taxpayer. First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971); see also Schlaiker, 365 Mass. at 245.
"In 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 Shoppers' World, 348 Mass. at 562). If taxpayers successfully demonstrate 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. Shoppers' World, 348 Mass. at 377. "The ultimate burden of persuasion, of course, will remain upon the taxpayer[s]." First National Stores, 358 Mass. at 562.
For these appeals, the appellants suggested that the assessors' use of a significantly higher neighborhood adjustment factor for valuing properties located in Neighborhood 1 resulted in a disproportionate assessment of their properties. The appellants, however, did not offer sufficient evidence to prove that there existed a deliberate scheme of disproportionate assessment in this regard.
The Board further found that the assessors adequately supported the 1.75 neighborhood adjustment factor used in valuing properties located in Neighborhood 1 and successfully rebutted any potential inference of discriminatory, disproportionate assessment in this context. The Board found and ruled that the evidence was insufficient to demonstrate that the assessors engaged in an "intentional widespread scheme of discrimination." Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982). At any rate, where assessments, even if wrong, are "consistent with honest mistake or oversight on the part of the assessors," as opposed to a "deliberate scheme of disproportionate assessment," no relief for disproportionate assessment is appropriate. Brown v. Assessors of Brookline, 18 Mass. App. Tax Bd. Rep. 83, 92 (1996), aff'd, 43 Mass. App. Ct. 327 (1997)(quoting Stilson, 385 Mass. at 728).

II. OVERVALUATION
A taxpayer must prove that the assessed valuation of his or her property was improper. See Foxboro Associates, 385 Mass. at 691. 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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984), quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).
In Docket Numbers F266343, Armitage, F266344, Caldwell, and F266346, Ziering, the Board ruled that the appellants did not "expose any flaws or errors in the assessors' method of valuation" and did not "present persuasive evidence of overvaluation" by any method or measure. The appellants did not introduce sufficient evidence to support their propositions that the fair cash value of their properties were less than their assessed values. In contrast, the Board found and ruled that the comparable sales analyses submitted by the assessors supported the fiscal year 2002 assessments for these properties. Accordingly, the Board decided these appeals for the appellee.
In Docket Number F266350, the Board found that the Cratlseys did meet their burden of proving that the subject property was over-assessed for fiscal year 2002. The Board found that the topography of the lot, a steep slope of about a twenty-percent grade, limited the use of the parcel and potential future improvements, thereby negatively impacting the property's overall value. Therefore, the Board granted an abatement of ten-percent of the assessed value.
On the basis of the evidence presented in Docket Number F266276, the Board found that the Morrisons met their burden of proving that their property was overassessed for fiscal year 2002. The Board found that although the abutting property located at 268 Elm Street has more traffic than the subject property, it did not warrant a thirty-percent disparity between the assessed values of the abutting properties. Accordingly, after consideration of the traffic issue as well as differences in size between the Morrison property and the abutting parcel, the Board granted an abatement of $160,000, approximately ten-percent of the assessed value of the Morrisson property, rounded.
Lastly, in Docket Number F266347, the second Ziering property, the Board found that the assessment report offered into evidence by the assessors included significant errors which negatively impacted its reliability and the credibility of the assessors' witness. The Board further found that the appraisal report offered into evidence by the Zierings' expert provided evidence sufficient to substantiate a reduction in the subject property's assessed valuation. Therefore, the Board granted an abatement of $2,375.91.

APPELLATE TAX BOARD

By: _____
Frank J. Scharaffa, Member

A true copy,

Attest:
Clerk of the Board

 The jurisdictional evidence for each appeal is discussed in the following subsection of these Findings.
 In his appraisal report Mr. Hilsinger lists a gross living area of 3,300 square feet.  The property record card, however, lists the gross living area as 3,355 square feet.


ATB 2004-334

William F. & Desiree C. Armitage, Philip & Betsy Caldwell, John C. & Holly C. Cratsley, Alva & Erica Morrison, Charles A. Jr. & Margaret W. Zeiring v. Board of Assessors of the Town of Concord (October 13, 2004)

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