King Caesar Beach Trust v. Board of Assessors of the Town of Duxbury (October 3, 2007)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

KING CAESAR BEACH TRUST         v.    BOARD OF ASSESSORS OF     
							       THE TOWN OF DUXBURY
Docket No. F277996                    Promulgated:
							   October 3, 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 in the Town of Duxbury owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2005.
Commissioner Egan heard the appeal and, in accordance with G.L. c. 58A, § 1A, issued a single-member decision for the appellee.
These findings of fact and report are promulgated on the Appellate Tax Board's own motion pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.  

Nicolas A. Kensington, Esq., for the appellant. 
Robert S. Troy, Esq., for the appellee.  
FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence during the hearing of this appeal, Commissioner Egan ("Presiding Commissioner") made the following findings of fact.
On January 1, 2004, the relevant assessment date for fiscal year 2005, King Caesar Beach Trust ("appellant" or "Trust") was the assessed owner of a parcel of real estate located between 283 and 315 King Caesar Road in the Town of Duxbury, Massachusetts ("subject property").  The Board of Assessors of Duxbury ("assessors" or "appellee") valued the subject property at $48,900 for fiscal year 2005, and assessed a tax at the rate of $10.14 per thousand, in the amount of $510.73, which included a 3% community preservation act charge.  
On January 28, 2005, the appellant timely filed an application for abatement with the assessors.  The assessors denied the application on February 8, 2005, and on May 5, 2005, the appellant seasonably filed its petition with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner ruled that the Board had jurisdiction over the subject appeal.
The subject property consists of a 0.24 acre parcel of land in the section of Duxbury known as Powder Point.  The parcel contains a rocky beach area of approximately 0.16 acres and a path of approximately 0.08 acres that provides access to the beach area from King Caesar Road.  The path is approximately 20 feet wide and 154 feet long.  The beach area has 205.3 feet of shoreline frontage and is backed by a sea wall.  The subject property was originally part of a larger parcel of land in the Powder Point area that Harvard College inherited from Georgina B. Wright on or about 1946.  The subject parcel was transferred by Harvard College to five individuals in 1946; in that same year, these five individuals created the Trust, naming themselves as trustees, and transferred the subject property to the Trust.
Prior to her death, Ms. Wright subdivided her Powder Point property, setting aside the subject property for the exclusive use of buyers of non-waterfront lots that she created for development purposes.  The right to use the subject parcel was created by way of easements that are appurtenant to and run with the non-waterfront lots.  These easements provide owners of the non-waterfront lots with access to the water and beach area provided by the path, and the use of the beach itself, including a right to use the subject property for "recreational purposes," including the right to "walk upon, bathe from" and "land boats on" the subject property.       
For fiscal year 2005, the assessors valued the subject property as residual land.  The assessors used a base price for residual land of $75,000 per acre in the "neighborhood 213" area of Duxbury, where the subject property is located.  They also used a size-factor multiplier to value residual lots, which in this case was 2.718.  Applying the base value and size-factor multiplier to the subject property results in an indicated value of $48,924, which the assessors rounded to $48,900 as the assessed value of the subject property for fiscal year 2005.
The appellant argued that the above method resulted in an overvaluation of the subject property because it failed to account for easements, the rockiness of the beach, and the sea wall.  Of particular concern to the appellant are the easements, which it claims so overburden the small beach that it renders the subject property essentially valueless.  The appellant also argued that the subject property has been overvalued relative to comparable properties in the area, namely the Hunter and Thompson beaches.  The appellant claimed that these comparable beach properties are of superior quality to the subject property, but were assessed at roughly the same value.
In support of its abatement claim, the appellant offered a list of the 24 nearby properties with deeded easement rights to use the subject property.  All 24 of the properties, which were part of the original Georgina Wright subdivision, are located in the immediate vicinity of the subject property.  Accordingly, the owners of these 24 properties have the right to access and use the subject property consistent with the provision of the easements.  
In addition, the appellant offered a diagram showing that a maximum of 16 beach towels can be laid comfortably on the subject property at once, and argued that if all 24 easement holders used the subject property at the same time, an overcrowding of the beach would result.  The appellant also offered pictures of the beach area, showing its rocky nature and the sea wall.  Finally, the appellant offered property record cards and pictures of both the Thompson and Hunter beaches in support of its comparable assessment argument.  
The appellee argued that it did not overvalue or disproportionately assess the subject parcel.  The appellee offered into evidence the property record card for the subject property, and a chart showing the base-acre value and size factors for neighborhood 213 properties.  The appellee testified that rockiness and sea walls are not factors accounted for when assessing residual land, and that the process used in assessing the subject property was largely identical to that used in assessing the Hunter and Thompson beach properties.    
Based on the evidence submitted, the Presiding Commissioner found that the appellant failed to meet its burden of proving that the subject property's assessed value exceeded its fair cash value for fiscal year 2005.  Specifically, the Presiding Commissioner found that the appellant failed to quantify the impact of the easements on fair cash value and failed to prove that the easements affecting the subject property reduced its value below the assessed value.  While the appellant did offer evidence designed to show that, hypothetically, every easement holder could not comfortably use the beach at the same time, it failed to offer any evidence that the beach was actually overcrowded on a regular basis, or how any potential overcrowding negatively impacted the value of the subject property.  Further, the appellant failed to show how the rockiness of the beach or the sea wall affected the value of the subject property.     
The evidence also showed that the assessment of the subject property was consistent with the assessments of comparable beaches.  The assessors did not fail to take the relative quality of the beaches into account; an additional $9,965 was added to the base value of Thompson Beach and an additional $7,401 was added to the base value of the Hunter Beach, while no such value was added to the subject property.  The Presiding Commissioner found that those additions reflect the superior quality of these beaches compared to the subject property. 
On this basis, the Presiding Commissioner found and ruled that the appellant failed to meet its burden of proving that the assessed value of the subject property for fiscal year 2005 exceeded its fair cash value as of January 1, 2004.  Accordingly, the Presiding Commissioner decided this appeal for the assessors and issued a single-member decision for the appellee. 

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 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)).  In the instant appeal, the appellant attempted to show that the assessors' method was flawed because it did not account for the fact that the beach was subject to 24 easements or that it was rocky and contained a seawall.  However, the Presiding Commissioner found and ruled that the appellant failed to meet its burden of proof in establishing the extent to which any of these factors may have had a negative effect on the value of the subject property.  
	The appellant also entered evidence of the assessments of comparable properties, in an attempt to show that the subject property was overvalued.  General Laws Chapter 58A, § 12B provides, in pertinent part, that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  "The introduction of ample and substantial evidence in this regard may provide adequate support for abatement."  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80).  
The Presiding Commissioner found, however, that the comparable properties in question were valued in a manner consistent with the valuation of the subject property.  Further, the Presiding Commissioner found that the superior quality of the comparable beaches was adequately accounted for by the influence factors that the assessors added to the assessments of these beaches. 
	Finally, the appellant argued that because it cannot sell the subject property, it essentially has no value.  "However, the fact that land is not saleable does not mean it must have no 'fair cash value.'"  Mashpee Wampanoag Indian Tribal Council, Inc. v. Assessors of Mashpee, 379 Mass. 420, 421 (Mass. 1980) (quoting Beale v. Boston, 166 Mass. 53, 55 (1896)).  Rather, "it is proper to determine fair cash value from the intrinsic value of the property, including 'any and all the uses to which the property is adapted in the hands of any owner.'"  Id. at 421 (quoting Tremont & Suffolk Mills v. Lowell, 163 Mass. 283, 285 (1895)).  Here, the Presiding Commissioner ruled that the subject property has inherent value to any owner, and is in fact of value to its current owners both for purposes of access to the water and beach area provided by the path, and the use of the beach itself.
On this basis, the Presiding Commissioner decided this appeal for the appellee. 

						 THE APPELLATE TAX BOARD

					
By:  _______________________________
					      Nancy T. Egan, Commissioner

								
	

A true copy,


Attest:  ______________________________
              Clerk of the Board

  After receiving the Board's decision for the appellee, and being uncertain of its post-decision remedies, the appellant filed a Motion for Clarification of Order and to Set Aside Decision for Appellee on September 18, 2006.  By Order dated September 22, 2006, the Board denied the Motion, but indicated that it would issue Findings of Fact and Report on its own motion. 
  Despite the appellant's argument concerning overcrowding of the beach, the pictures of the subject property submitted by the appellant show a completely deserted beach area.

ATB 2007-1148