Christine Florio, Trustee, PMNEM Nominee Trust v. Board of Assessors of the Town of Newbury (July 25, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



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


Docket No. F282870			   	   Promulgated:
							   July 25, 2007


	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and 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 2006.
	Commissioner Egan heard the appeal and was joined by Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern in a 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 M. Novak, Esq. for the appellant.
	Frank Kelley, Assessor, for the appellee.




FINDINGS OF FACT AND REPORT
On January 1, 2005, Christine Florio, Trustee of the PMNEMN Nominee Trust ("appellant"), was the assessed owner of a parcel of real estate located at 58 Northern Boulevard, Plum Island, in the Town of Newbury ("subject property").  The subject property is an approximately 0.216 acre parcel 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 2006, the Board of Assessors of Newbury ("assessors") valued the property at $743,800 and assessed a tax thereon, at the rate of $8.79 per thousand, in the amount of $6,538.00.  
The appellant paid the tax due without incurring interest.  On January 16, 2006, the appellant timely filed an application for abatement with the assessors, who denied the appellant's request for abatement on February 21, 2006.  On March 8, 2006, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear this appeal.
	The subject dwelling was built in 1997.  Because of its location on the beach, there is no foundation and the house sits on pilings.  The exterior is vinyl-sided.  There are a total of seven rooms, including four bedrooms, one full- and two half-baths.  There is no off-street parking.
	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.  By order of the Board of Health, the water cannot be used for drinking, food preparation, or bathing and the appellant must, therefore, contract with a bottling company for the supply of water.  According to Frank Kelley, principal assessors for the town of Newbury, this is true for all properties located on Plum Island.
In the present appeal, Mr. Eugene Novak, beneficiary of the trust, testified on behalf of the appellant.  Mr. Novak testified that the subject property has no off-street parking and is further negatively impacted by the restaurant located across the street from the subject property.  He also testified that the subject property's well water, which has a very high level of sodium, has ruined many of the appliances and fixtures.  Lastly, Mr. Novak testified to, and focused primarily on, the subject property's erosion which he testified has occurred over the past six to eight years.  Mr. Novak suggested that during that time period, the subject parcel has lost approximately 3,600 square feet and that the lot size now is only 5,808 square feet.  The appellant did not, however, offer any substantiating evidence to support his testimony.
Mr. Novak also argued that the land assessment for the subject property was higher than the land assessments for adjacent properties for fiscal year 2006.  In support of this argument, Mr. Novak offered into evidence the property record cards for six properties also located on Northern Boulevard which showed lower per-square-foot land assessments compared to the subject property.  Although these parcels were located in close proximity to the subject property, Mr. Novak failed to show that they were comparable to the subject property.  More than half of his chosen comparables were double the size, or larger, of the subject property and the one parcel that was similar in size is designated "undevelopable."  The appellant presented no further evidence.
The assessors testified that the assessed value of the subject property includes an adjustment for the lack of parking and rested on the presumed validity of their assessment.  
Based on the evidence presented, the Board found that the appellant failed to show that the lot size used by the assessors in their fiscal year 2006 assessment was incorrect.  The Board further found that the appellant failed to offer comparable sales or any other affirmative evidence indicating that the subject property's fair market value as of January 1, 2005, was less than the fiscal year 2006 assessment.
On the basis of the evidence presented, the Board found that the appellant failed to meet its burden of proving that the subject property was overvalued for fiscal year 2006.  Accordingly, the Board issued a decision for the appellee in this appeal.

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).  
A taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. at 591 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellant attempted to prove that the subject property was overvalued by asserting that the lot size used by the assessors was incorrect due to erosion.  The Board found, however, that the appellant failed to present sufficient persuasive evidence to prove that the lot size used by the assessors was erroneous.  Furthermore, the Board found that the appellant failed to offer comparable sales or other affirmative evidence indicating that the subject property's fair market value as of January 1, 2005, was less than the fiscal year 2006 assessment. 
Based on the evidence presented, the Board found that the appellant failed to meet its burden of proving that the subject property was overvalued for fiscal year 2006.  Accordingly, the Board issued a decision for the appellee. 
 
						APPELLATE TAX BOARD 

									
    By:			_____	___		
					  Thomas W. Hammond, Jr., Chairman

A true copy,

Attest:						__
	   Assistant Clerk of the Board

 The fiscal year 2002 and 2003 assessments on the subject property were also the subject of appeals to this Board.  See Christine Florio, Trustee PMNEMN Trust v. Assessors of Newbury, ATB Findings of Fact and Report 2004-575, 576-577 ("PMNEMN I").  

ATB 2007-716