Robert D. & Barbara S. Cavanagh v. Board of Assessors of the Town of Bourne (April 12, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ROBERT D. & BARBARA S.	  v.	   	BOARD OF ASSESSORS OF
CAVANAGH				        	THE TOWN OF BOURNE

Docket No. F304740				Promulgated:
							April 12, 2012
This is an appeal filed 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 Bourne ("assessors" or "appellee") to abate taxes assessed on certain property located in Bourne owned by and assessed to Robert D. and Barbara S. Cavanagh ("appellants") under G.L. c. 59, §§ 11 and 38 for fiscal year 2009 ("fiscal year at issue").
Commissioner Egan ("Presiding Commissioner") heard this appeal and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellee.
These findings of fact and report are promulgated at the request of the appellants pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.
	

Robert Cavanagh, pro se, for the appellants.

	Donna Barakauskas, assessor, for the appellee.


FINDINGS OF FACT AND REPORT
Based on the evidence and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2008, the appellants were the assessed owners of a parcel of real estate located in Bourne at 4 Anne Lane and identified on the assessors' Map 26 as Parcel 34 ("subject property").  For the fiscal year at issue, the assessors valued the subject property at $490,800 and assessed taxes thereon, at the rate of $7.37 per $1,000, in the total amount of $3,725.72.  In accordance with G.L. c. 59, § 57C, the appellants timely paid the taxes due without incurring interest.  On February 2, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors, which the assessors denied on March 26, 2009.  On June 25, 2009, the appellants timely filed an appeal with the Barnstable County Commissioners.  Pursuant to G.L. c. 59, § 64, the Town of Bourne elected to have the appeal heard and decided by the Appellate Tax Board ("Board").  The appellants were notified of the Town of Bourne's election to transfer by notice from the Board and timely paid the filing fee required under § 64.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
The subject property consists of a 1.30-acre parcel of land, comprised of a 0.92-acre main parcel and a 0.382-acre secondary parcel.  At all times relevant to this appeal, the subject property was improved with a 1.9-story, Colonial-style, wood-framed residence, built in 1997, and heated with a gas-fired hot water heater.  The subject home contained 2,456 square feet of living area with six rooms, including three bedrooms, as well as two full bathrooms and one half bathroom.  The subject home's exterior was wood shingle and featured an asphalt shingled, gambrel-style roof.  Additional features of the subject home included:  a woodstove; a fireplace with, according to the property record card, "nice chimney and hearth work"; ceramic tile in the foyer, kitchen and family room; skylights; a built-in bookcase; a three-car attached garage; and a 625-square foot wooden deck.  The assessors rated the subject residence as in average condition.
The appellants contended that the subject property was overvalued and disproportionately and "unfairly" assessed.  As evidence, the appellants submitted: a photocopied article from "The Bourne Enterprise" newspaper with a hand-written date of January 2, 2009; property record cards from five purportedly comparable neighboring properties; the property record card for the subject property; copies of assessors' maps depicting the subject property's and the comparable properties' locations and proximities to water; and a photograph of the view from the subject property towards Old Dam Road.   
Appellant Robert Cavanagh testified on behalf of the appellants.  Mr. Cavanagh first presented the article from "The Bourne Enterprise."  According to the article, a recent town-wide revaluation had resulted in a decrease of about 9% in the median value of a single-family home in Bourne from fiscal year 2008 to the fiscal year at issue.  However, the article also included an explanation from the Principal Assessor, Donna Barakauskas, that because of "a continued upward rise in values for water-front or 'water-influenced' properties," properties on or near the water experienced on average a 15% increase in value from the previous fiscal year. 
Mr. Cavanagh next presented evidence of purportedly comparable properties.  He explained that he was unable to find any sales in the immediate vicinity of the subject property.  Therefore, Mr. Cavanagh offered a comparable-assessment analysis using five purportedly comparable properties -- 66 Old Dam Road, 35 Old Dam Road, 28 Old Dam Road, 16 Old Dam Road, and 10 Old Dam Road.  The maps submitted as evidence indicated that Anne Lane is perpendicular to Old Dam Road and that the subject property and the purportedly comparable properties were all located in the same neighborhood.  Moreover, the maps indicated that three of the purportedly comparable properties were located along the salt marsh behind Old Dam Road - 28 Old Dam Road, 35 Old Dam Road, and 66 Old Dam Road.  Mr. Cavanagh presented his purportedly comparable properties to contend that, even though three of the purportedly comparable properties were located along the salt marsh, each of the properties experienced a larger percentage decrease in assessed value than the subject property, which was not located on the water.  The key features of these purportedly comparable properties, as noted on their property record cards, together with Mr. Cavanagh's calculation of percentage decrease from the previous year's assessment, were as follows:


Property	Assessed value	Decrease from FY08	Lot size (acres)	Year built	SFLA	Total number of rooms/bedrooms/bathrooms		 Subject	$490,800
	 - 2.7%	  1.30	1997	2,456	   6/3/2.5		66 Old Dam Road	$564,900	-14.4%	0.85	1981	1,764	6/4/2		35 Old Dam Road	$470,000	-10.2%	1.20	1989	3,472	13/6/3		28 Old Dam Road	$510,200	-24.2%	0.82	1983	1,904	6/3/2		16 Old Dam Road	$473,400	-21.8%	0.62	1997	2,829	8/3/1 plus 2 half baths		10 Old Dam Road	$370,700	-17.7%	0.30	1998	1,764	6/3/2		
Based on information regarding an apparent decrease in property values gleaned from "The Bourne Enterprise" article as well as his own comparable-assessment analysis, Mr. Cavanagh's opinion of value for the subject property was $464,200, which represented a decrease of about 8% from the previous fiscal year's assessment of $504,600.  However, Mr. Cavanagh did not offer any adjustments to his comparable properties to account for any differences between the comparable properties and the subject property.  Mr. Cavanagh also did not offer any evidence of recent comparable sales for comparison with the subject property.  
Ms. Barakauskas, Assessor for Bourne, testified on behalf of the appellee.  Ms. Barakauskas spoke briefly regarding the assessment for 35 Old Dam Road, explaining that the reduction in assessed value was the result, in part, of an error in the measurement of the improvement in the previous fiscal year that was now corrected for the fiscal year at issue.  Ms. Barakauskas pointed out that the land component of 35 Old Dam Road and the subject property were assessed comparably based on their square footage, and that the difference in assessment, therefore, was the result in the change in the measurement of the improvement for 35 Old Dam Road.  The assessors offered no other evidence.  
On the basis of the evidence presented, the Presiding Commissioner found that the appellants failed to present evidence sufficient to meet their burden of proving that the subject assessment was too high.  The appellants presented the property record cards for five purportedly comparable properties and calculated the percentage decrease in assessed values from the previous fiscal year.  However, the appellants' comparable-assessment analysis did not provide any adjustments to account for crucial differences between the subject property and the purportedly comparable properties.  Absent such adjustments, no meaningful comparison of these properties with the subject property could be made.  Therefore, the appellants' evidence lacked persuasive value.  The Presiding Commissioner thus found that the appellants failed to meet their burden of proving that the subject property was overvalued.  
The appellants also argued that the subject property was disproportionately assessed.  However, Mr. Cavanagh's analysis did not contain any evidence or implication that a widespread scheme of intentional disproportionate assessment existed in Bourne or that the assessors were discriminating against the appellants or the subject property in any way.  The Presiding Commissioner thus found that the appellants failed to meet their burden of proving that the assessors were engaged in an intentional widespread scheme of disproportionate assessment and that they were discriminating against the appellants in their assessment of the subject property.
Accordingly, the Presiding Commissioner 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.  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).  
The assessment is presumed valid unless the taxpayers sustain their 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 appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that the assessed valuation of the property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  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)). 
Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, Graham v. Assessors of West Tisbury, 73 Mass. App. Ct. 1107 (2008).  In the instant appeal, Mr. Cavanagh testified that he was unable to find any comparable sales in the subject property's neighborhood.  However, evidence of comparable assessments may also be used to determine a property's fair cash value.  "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 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 Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  The appellants bear the burden of "establishing the comparability of . . . properties [used for comparison] to the subject property."  Fleet Bank of Mass. v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 1998-546, 554.  Accord New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981). "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."  New Boston Garden Corp., 383 Mass. at 470.
In the instant appeal, the appellants offered five purportedly comparable properties, which were located in the same neighborhood as the subject property.  However, the appellants failed to make any adjustments for differences between their purportedly comparable properties and the subject property.  The Presiding Commissioner thus found and ruled that the appellants failed to provide meaningful evidence of value.  See Letasz v. Assessors of Westfield, Mass. ATB Findings of Fact and Reports 2011-579, 588 (when party failed to make adjustments for differences between purportedly comparable properties and the subject property, "the Presiding Commissioner found that he was unable to determine from the evidence a value for the subject property lower than the assessment.").  Therefore, the Presiding Commissioner found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.
The appellants also raised a claim of disproportionate assessment.  "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, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)).  If the taxpayers can demonstrate in an appeal to the Board that they have been the victim of a scheme of discriminatory, disproportionate assessment, they "may be granted an abatement . . . which will make . . . [their] 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 v. Assessors of Sandwich, 367 Mass. 836, 838 (1975) (quoting Shoppers' World, 348 Mass. at 377-78).  
In the present appeal, the appellants failed to introduce sufficient evidence to show that a policy or scheme of discriminatory, disproportionate assessment was employed by the assessors against any class of properties in Bourne.  The Presiding Commissioner found and ruled that there was no evidence to demonstrate, or even suggest, that the assessors engaged in an "intentional widespread scheme of discrimination."  Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  Therefore, the Presiding Commissioner found and ruled that the appellants failed to meet their burden of proving that a deliberate scheme of disproportionate assessment existed in Bourne for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee in this appeal.

				        THE APPELLATE TAX BOARD			
   By: ______________________________
	     		       Nancy T. Egan, Commissioner


A true copy,
Attest: _______________________
	       Clerk of the Board







   

 This amount included a Community Preservation Act ("CPA") surcharge of $108.52.
 G.L. c. 59, § 59 requires that applications for abatement be filed: "on or before the last day for payment, without incurring interest in accordance with the provisions of chapter fifty-seven or section fifty-seven C, of the first installment of the actual tax bill issued upon the establishment of the tax rate for the fiscal year to which the tax relates."  According to G.L. c. 59, § 57C, the applicable payment section for this appeal, the last day for payment is February 1st.  However, in 2009, February 1st fell on a Sunday.  When the last day of a filing period falls on a 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.  Accordingly, the Presiding Commissioner found that the appellants timely filed their abatement application on Monday, February 2, 2009.
 This lot consists of a 0.81-acre main parcel plus a 0.39-acre secondary parcel.

ATB 2012-538