Christine Florio, Trustee PMNEMN Nominee Trust v. Board of Assessors of the Town of Newbury (December 10, 2004)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



CHRISTINE FLORIO, TRUSTEE	v.	   BOARD OF ASSESSORS OF 
PMNEMN NOMINEE TRUST			   THE TOWN OF NEWBURY


Docket No. F266868			   	   Promulgated:
							   December 10, 2004


	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on certain real estate located in the Town of Newbury owned by and assessed to the appellant under G.L. c. 59, § 11 and 38, for fiscal year 2003.
	Commissioner Scharaffa heard the 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 made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Paul Novak, Esq. for the appellant.
	Frank Kelley, Assessor, for the appellee.




FINDINGS OF FACT AND REPORT

On January 1, 2000, Christine Florio, Trustee of the PMNEMN Nominee Trust, was the assessed owner of a parcel of real estate located at 58 Northern Boulevard in the Town of Newbury ("subject property").  The property is approximately 0.216 acres of beachfront real estate with fifty feet of frontage on the ocean and is improved with a two-story colonial-style dwelling with a finished living area of 2,584 square feet.  For fiscal year 2003, the Board of Assessors of Newbury ("assessors") valued the property at $510,400 and assessed a tax thereon, at the rate of $10.20 per thousand, in the amount of $5,206.08.  
The appellant paid the tax due without incurring interest.  On January 28, 2003, the appellant timely filed an application for abatement with the assessors, who denied the appellant's request for abatement on February 12, 2003.  On March 21, 2003, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the presiding member found that the Board had jurisdiction to hear this appeal.
	In her appeal to the Board, the trustee argued that the assessors had over-valued the land portion of her assessment in comparison to the adjacent property.  She also argued that the assessors failed to adjust for the high sodium level in the subject property's well water, the lot's continuing erosion, the lack of off-street parking, and the negative impact of a restaurant located across the street from the subject property.  
	The dwelling situated on the property was built in 1997.  Because of its location on the beach, there is no foundation and the house sits on piers.  The exterior is vinyl-sided.  There are a total of seven rooms, including four bedrooms, one full- and two half-baths.  
The water supply for the property comes from an on-site well which, according to the Newbury Board of Health, does not meet the Massachusetts Department of Environmental Protection guidelines.  Testing shows that the sodium levels are 3789.0 mg/L and DEP guidelines are 20.0 mg/L.  The water cannot be used for drinking, food preparation, or bathing.  Therefore, by order of the Board of Health, the appellant must either locate a new well or contract with a bottling company for the supply of water.  Ms. Florio argued that the severity of the salt level results in a higher level of depreciation for the subject property than would normally be expected and, therefore, negatively impacts the value of the subject property.  
Ms. Florio also testified that there are no sidewalks on the subject property's side of street.  The rear of the property has a ten- to twelve-foot drop-off down to the beach area.  There is off-street parking for only one vehicle and vehicles from the restaurant across the street continuously park in front of the subject property, thereby further limiting parking.  In addition, the property's land area has decreased due to beach erosion.  All these facts, she argued, negatively impact the value of the subject property.
Arguing that her property was disproportionately assessed, Ms. Florio offered into evidence the property record card for the property located at 60 Northern Boulevard.  This vacant parcel of real estate is 0.215 acres, approximately the same size as the subject property and was valued by the assessors at $58,000. 
Lastly, Ms. Florio cited the Board's prior decision for fiscal year 2002 (Docket Number X292340).   For fiscal year 2002, the assessors valued the subject property at $499,400.  Based on the evidence presented at the hearing of that appeal, the Board found the subject property's fair cash value, as of January 1, 2001, was $472,000.  Relying on the Board's fiscal-year-2002 decision, noting that no improvements had been made to the property since that decision, and also the property's aforementioned negative attributes, the appellant sought an abatement of the fiscal year 2003 assessed valuation.
Pursuant to G.L. c. 58A, § 12A, because this appeal involves one of the "next two fiscal years after a fiscal year for which the Board has determined the fair cash value" of the subject property and because the assessed value of the property for fiscal year 2003 is greater than the value found by the Board for fiscal year 2002, the burden shifts to the assessors to prove that an increase in value is justified.
In support of the increased assessment, the assessors offered the testimony of Mr. Frank Kelley, principal assessor for the town of Newbury.  In his testimony, Mr. Kelley acknowledged the high sodium level issue that faces the subject property.  As noted in the Board of Health letter to the appellant, Newbury is pursuing construction of municipal water and sewer in this area of the town, which would rectify the situation.  He further testified that the appellant could itself take action to address and rectify the situation.  The appellant could, as suggested by the Board of Health, locate a new well on the property or possibly simply redirect the existing well point.  
Mr. Kelley also noted that the parking issue and other "negative" aspects of the subject property testified to by Ms. Florio have been present for some time.  They were argued by the appellant in its fiscal year 2002 appeal and were addressed by the Board in its decision.  Based on the Board's decision, the assessors allowed a ten-percent reduction to the assessed land value for the fiscal year at issue.
With regard to the adjacent property located at 60 Northern Boulevard, Mr. Kelly testified that this parcel is valued significantly less than the subject property as it is an unbuildable lot.  When town water and sewer are put in place, the lot will be buildable and its assessment will increase accordingly.  
Mr. Kelly then offered into evidence the property record card for 92 Northern Boulevard.  This parcel, 0.193 acres with a finished living area of only 1,836 square feet, is smaller in both land and finished living area.  Despite its smaller land area and less finished living area, this property sold for $729,000 on August 15, 2000 and was assessed considerably higher than the subject property for fiscal year 2003.  Although this higher valuation, as Mr. Kelly noted, is based on the better condition of this property together with its recent sale, it still supports the assessed value of the subject property for fiscal year 2003.  Mr. Kelly also noted that 90 Northern Boulevard, which is very similar in both land area (0.210 acres compared to 0.216 acres) and finished living area (2,258 square feet compared to 2,584 square feet) was assessed at $595,700 for fiscal year 2003 compared to the subject property's assessment of $510,400. 
On the basis of the evidence presented, the Board found that the assessors met their burden of proving that the fair cash value of the subject property for fiscal year 2003 was higher than the value found by the Board for fiscal year 2002.  Therefore, the assessors were justified in increasing the fiscal year 2003 assessment for the subject property above the Board's finding of value for fiscal year 2002.  On the basis of all the evidence of record, the Board found that the subject property was not overvalued for fiscal year 2003. 
Accordingly, the presiding member issued a decision for the appellee.

OPINION
	Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  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 (1954).
	The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out her right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of her property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  However,  
[i]f the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted . 

G.L. c. 58A, § 12A.  
In the present appeal, the assessment at issue falls within the two-year statutory period of § 12A.  Therefore the burden shifts to the appellee to prove that the increased value is warranted.  See generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); Cressey Dockham & Co., Inc. v. Assessors of Andover, 11 Mass. App. Tax Bd. Rep. 41, 50 (1989); Ellis v. Assessors of Northborough, 3 Mass. App. Tax Bd. Rep. 152, 154-155 (1983).  The appellant acknowledged that there had been no changes to the subject property from one year to the next and, therefore, relied primarily on the Board's prior determination of fair cash value.    
"Once a prior determination of the Board of the fair cash value of the same property has been placed in evidence [] the statute requires the appellee to produce evidence to 'satisfy the Board that the increased valuation was warranted.'"  Cressey Dockham, 11 Mass. App. Tax Bd. Rep. at 50.     
In the present appeal, to support the increased assessment for the subject property, the assessors offered into evidence the property record card for 92 Northern Boulevard.  This comparable property, which has both less land area and less finished living area than the subject property, sold on August 15, 2000 for $729,000, substantially more than the subject property's fiscal year 2003 assessment.  Moreover, the assessment data of two comparable properties upon which the assessors relied also supported the assessed value of the subject property for the year at issue. 
In evaluating the evidence before it, the presiding member selected among the various elements of value and formed his own independent judgment of fair cash value.  General Electric v. Assessors of Lynn, 393 Mass. 591, 605 (1984); North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941).
Based on the evidence presented, the presiding member found that the comparable sale and assessment data offered by the assessors justified the increase in valuation of the property over the value found by the Board for fiscal year 2002.

Accordingly, the presiding member issued a decision for the appellee.  

							APPELLATE TAX BOARD 

									
By:			_____	____
						   Frank J. Scharaffa, Member


A true copy,

Attest:					
	   Clerk of the Board

ATB 2004-575