Mary A. & Burke T. Barrett v. Board of Assessors of the Town of Franklin (August 23, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MARY A. & BURKE T. BARRETT	v.   BOARD OF ASSESSORS OF 
                             		THE TOWN OF FRANKLIN

Docket Nos. F299419				Promulgated:
							August 23, 2010
							   

	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 Board of Assessors of the Town of Franklin ("assessors" or "appellee") to abate taxes on certain real estate located in Franklin owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.
	Chairman Hammond heard the appeal.  Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in the decision for the appellant.  
	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.

Burke T. Barrett, pro se, for the appellants.

	Kevin Doyle, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.  
On January 1, 2008, the relevant date of assessment for the fiscal year at issue in this appeal, the appellants were the owners of a 30,250 square-foot parcel of land, improved with a wood-framed, single-family home, located at 41 High Ridge Circle in Franklin, in a neighborhood identified by the assessors as neighborhood 22 ("subject property").  The subject dwelling, built in 1998, has a concrete foundation, a wood clapboard and stucco exterior, and an asphalt-shingled hip roof.  The dwelling contains a total of eleven rooms, including five bedrooms, and also three full bathrooms and one half-bathroom, with a total living area of 4,528 square feet.  Other amenities include a fireplace, central air conditioning, a wood deck, an enclosed porch, a whirlpool/Jacuzzi, an in-ground pool, and a multi-car attached garage.    
For the fiscal year at issue, the assessors valued the subject property at $950,200 and assessed a tax thereon, at the rate of $11.17 per $1,000, in the total amount of $10,613.73.  On December 30, 2009, the Collector of Taxes for Franklin mailed out the actual fiscal year 2009 tax bills.  The appellants timely paid the tax due without incurring interest.  On February 2, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors, which they denied on March 11, 2009.  On March 30, 2009, in accordance with G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Board.  On this basis, the Board found and ruled that it had jurisdiction over this appeal.
	The appellants' primary argument in support of their claim that the subject property was overvalued for fiscal year 2009 was the sale of 20 Cranberry Road, located four houses away from the subject property, which the appellants argued was similar to the subject property in style, size and location.  20 Cranberry Road consists of a 36,901 square-foot lot improved with a Colonial-style dwelling with a finished living area of 4,061 square feet.  The property sold on June 22, 2007 for $850,000.  The appellants added the assessed value of the subject property's extra features, $17,400, to arrive at their opinion of the subject property's fair market value of $868,000.  The property record cards for the subject property and the appellants' comparable sale property showed that the assessors considered 20 Cranberry Road to be located in neighborhood 20, while they determined that the subject property, despite being only four houses away, should be in neighborhood 22.  The appellants offered no other evidence of value.    
Kevin Doyle, the assessor for Franklin, testified on behalf of the assessors.  The assessors also offered into evidence the requisite jurisdictional documentation, a map of Franklin, the subject property's property record card, and a sales-comparison report.  In their sales-comparison report, the assessors cited six properties located in Franklin that they deemed comparable to the subject property and sold during calendar year 2007.  The properties ranged in size from 0.609 acres to 0.984 acres with finished living areas that ranged from 3,856 square feet to 4,664 square feet.  The properties' sale prices ranged from $795,600 to $969,900.   
Comparable sale number one, which is located at 13 Dutchess Road was the only property offered by the assessors that, like the subject property, was located in neighborhood 22.  This property sold for $969,000 on January 22, 2007.  Although the lot sizes and finished living areas are relatively similar, comparable sale number one was new construction at the time of its purchase.  With respect to the assessors' remaining comparable sales, all but one were relatively new construction and none was located in the same neighborhood as the subject property.  The assessors failed to explain why they did not consider the sale of nearby 20 Cranberry Road, which sold just six months prior to the relevant date of assessment.
On the basis of the evidence presented, the Board found that the appellants' met their burden of proving that the subject property was overvalued for the fiscal year at issue.  In reaching its decision, the Board found that the best evidence of the subject property's fair market value as of January 1, 2008, was the June 22, 2007 sale of 20 Cranberry Road.  The Board noted that the property at 20 Cranberry Road has a slightly smaller finished living area than the subject property.  Therefore, the Board found that an upward adjustment was warranted.  The Board found that the assessors' decision to put the subject property and 20 Cranberry Road in different neighborhoods for assessment purposes did not justify the magnitude of difference between the $850,000 sale price of 20 Cranberry Road and the $950,200 assessed value of the subject property. 
 With respect to the assessors' comparable-sales analysis, the Board found that although the lot sizes and finished living areas of the assessors' purportedly comparable properties were, generally speaking, similar in size, all but one of the comparable properties were located in different neighborhoods and all but one of the comparable properties were relatively new construction, and, therefore, lacked basic comparability.  Moreover, the Board found that the assessors' failure to include in their comparable-sales analysis the sale of 20 Cranberry Road, which is located just 4 houses away from the subject property and which sold only six months prior to the relevant assessment date, was a significant omission that undercut the credibility of their analysis.
Based on all of the evidence, the Board found that the subject property's fair cash value for fiscal year 2009 was $920,200.  Accordingly, the Board found that the subject property was overvalued by $30,000 for the fiscal year at issue and granted an abatement of $335.10. 

OPINION
Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue. G.L. c. 59, §§ 11 and 38. The fair cash value of property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion. Boston Gas. Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The appellant has the burden of proving that the property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prove the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).  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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  "[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date 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 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).   
The Board found that the appellants submitted credible affirmative evidence showing that the subject property was overvalued while the assessors failed to establish comparability between their purportedly comparable sales and the subject property and also failed to consider the sale of a nearby property within six months of the relevant assessment date.  Based on all of the evidence, the Board found that the sale at 20 Cranberry Road, upon which the appellants primarily based their claim of overvaluation, was the most persuasive evidence of value.  The Board further found, however, that it was necessary to adjust the sale price of 20 Cranberry Road upward to account for the subject property's larger finished living area.
"In reaching its opinion of fair cash value in this appeal, the board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation . . .  .  Rather, the board could accept those portions of the evidence that the board determined had more convincing weight." Foxboro Associates, 385 Mass. at 683; New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473, 469 (1981); Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 701-02 (1972).  
The Board need not specify the exact manner in which it arrived at its valuation. Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 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 Consol. Gas Co., 309 Mass. 60, 72 (1941). "The credibility of witnesses, the weight of evidence, the inferences to be drawn from the evidence are matters for the board." Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
Based on the foregoing, the Board found and ruled that the appellants met their burden of proving that the subject property was overvalued for fiscal year 2009.  Accordingly, the Board issued a decision for the appellants in this appeal and granted and abatement in the amount of $335.10.
				   APPELLATE TAX BOARD
 
 By: ____________________________________
                         Thomas W. Hammond, Jr., Chairman
A true copy,

Attest: _________________________
		 Clerk of the Board

	ATB 2010-758