Irene E. Chater v. Board of Assessors of the Town of Dighton (April 13, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

IRENE E. CHATER		   v.	  BOARD OF ASSESSORS OF
							  THE TOWN OF DIGHTON

Docket No. F293961				  Promulgated:
						  April 13, 2009


This is an appeal originally filed with the Bristol County Commissioners pursuant to G.L. c. 59, § 64 from the refusal of the appellee to abate taxes on certain real estate in the Town of Dighton assessed under G.L. c. 59, §§ 11 and 38 for fiscal year 2008. In accordance with G.L. c. 59, § 64 and 831 CMR 1.09, the appellee elected to transfer this appeal to the Appellate Tax Board ("Board") formal procedure.
Commissioner Mulhern ("Presiding Commissioner") 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 appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

Irene E. Chater, pro se, for the appellant.
Carol Beauregard, assessor, for the appellee.
FINDINGS OF FACT AND REPORT
	On January 1, 2007, Irene E. Chater ("appellant") was the assessed owner of a parcel of real estate located at 2477 Maple Swamp Road in the Town of Dighton ("subject property").  For fiscal year 2008, the Dighton Board of Assessors ("assessors") valued the subject property at $459,300 and assessed a tax at the rate of $10.18 per thousand in the total amount of $4,675.67.  On December 31, 2007, Dighton's Collector of Taxes sent out the town's actual real estate tax bills.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest.    
On January 10, 2008, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors, which the assessors denied on January 16, 2008.  Subsequently, the appellant filed a Complaint for Abatement of Taxes with the Bristol County Commissioners.  On February 10, 2008, pursuant to G.L. c. 59, § 64, the assessors elected to transfer the Complaint from the Bristol County Commissioners to the Board.  The appellant filed a petition with the Board on February 27, 2008 pursuant to G.L. c. 59, § 64 and G.L. c. 58A, § 7.  On the basis of these facts, the Board found that it had jurisdiction to hear and decide this appeal.
The subject property contains approximately 13.45 acres and is improved with a single-family, Colonial-style dwelling with a finished living area of 1,764 square feet.  The home has a total of six rooms, including three bedrooms and also one full bathroom and one half-bathroom.  There are two fireplaces and also a wood deck off the rear of the dwelling.  Originally, the dwelling was sited on a lot of approximately 12 acres.  In 2008, the appellant acquired, for no monetary consideration, 1.45 acres of back land as settlement of a boundary dispute. 
The appellant argued that the subject property's fiscal year 2008 assessment was excessive because the assessors placed too high a value on the land portion of her assessment.  To prove that the subject property's land was overvalued, thereby rendering the overall assessment excessive, Ms. Chater offered into evidence pictures of the subject property and seven property record cards of properties located in the same neighborhood, which the assessors designated as Neighborhood 5.  Ms. Chater maintained that these properties received decreases in the land portion of their respective assessments, yet the subject property's land assessment increased by $5,500.  However, Ms. Chater did not provide any details concerning the purportedly comparable properties which would allow the Board to determine whether they were actually comparable to the subject property.  The property record cards merely provided the Board with the properties' land size and assessment.  Further, Ms. Chater failed to account for any differences that did exist between her purported comparables and the subject property.  
Ms. Chater also argued that the 1.45 acres of back land, which she received from the settlement of a boundary dispute, adds no additional value to the subject property and, therefore, should be excluded from the subject property's fiscal year 2008 assessment.  Ms. Chater offered no evidence to support her claim.
In support of their assessment, the assessors relied on the testimony of Carol Beauregard, an assessor for the Town of Dighton.  Ms. Beauregard testified that the subject property was valued in a manner consistent with other properties in the same neighborhood.  She further testified that there are three land value districts in Dighton.  For each district, the assessors value the primary site at a set per-acre value and assign a lower per-acre value to any excess back land.  The subject property is located in Zone 1 where the primary site, 43,560 square feet, was valued at $180,774.  Any excess land was valued at $8,000 per acre.  Ms. Beauregard testified that the 1.45 acres of back land, which the appellant received in the dispute settlement, was discounted to $5,500 to account for a gas line that crosses the property.      
Based on the evidence presented, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued for fiscal year 2008.  The Presiding Commissioner found that the appellant's evidence lacked sufficient detail to establish comparability between the appellant's purportedly comparable properties and the subject property.  Without a showing of basic comparability, the assessed values of the other properties lacked probative force as indications of the value of the subject property.  
Moreover, the Presiding Commissioner found that the assessors properly included in the subject property's fiscal year 2008 assessment the additional 1.45 acres which the appellant received in a land dispute settlement.  The assessors valued this land at $5,500, which essentially accounted for the difference between the appellant's land value and the appellant's comparable properties' land values.  
Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that her land and the subject property as a whole were overvalued for the fiscal year at issue and issued a decision for the appellee in this appeal.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation." G.L. c. 59, § 2. The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year. G.L. c. 59, §§ 2A and 38. Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market 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 appellant has the burden of proving that the subject 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 [B]oard is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] 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)).
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 admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the board."  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  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. Id. 
"The appellant bears the burden of 'establishing the comparability of ... properties [used for comparison] to the subject propert[ies].'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Report 2008-213, 225. (Citation omitted.) "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. v. Assessors of Boston, 383 Mass. 456, 470 (1981). 
In the present appeal, the appellant relied on the land assessments of seven purportedly comparable properties.  However, the appellant failed to provide a narrative or descriptive information about the purportedly comparable properties needed to supply an evidentiary basis for a finding of basic comparability to the subject property. See Wood, Mass. ATB Findings of Fact and Reports 2008 at 228. In addition, the appellant's failure to make any adjustment to the data for differences between the purported comparable properties and the subject property rendered her valuation conclusions unreliable.  See Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 71 ("[R]eliance on unadjusted assessments of assertedly comparable properties . . . was insufficient to justify a value lower than that assessed."). 
A taxpayer "does not conclusively establish a right to an abatement merely by showing that his land or building is overvalued.  'The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately.΄"  Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 778 (quoting Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941)).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive. The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 49.
In the present appeal, the appellant introduced evidence primarily challenging the value of the land component of the assessment at issue, but failed to introduce sufficient credible evidence showing that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.  Accordingly, the Board found and ruled that the appellant's comparable assessment analysis was incomplete because it focused on part of, but not the entire, assessment.  
Based on the evidence presented, the Presiding Commissioner found and ruled that the appellant did not meet her burden of proving that the subject property's overall assessment was excessive. On this basis, the Presiding Commissioner issued a decision for the appellee in this appeal.

  THE APPELLATE TAX BOARD



				
                  By: ___________________________________
				  Thomas J. Mulhern, Commissioner


A true copy,

Attest:  __________________________________
	          Clerk of the Board

ATB 2009-372