John & Barbara Ligor v. Board of Assessors of the Town of Wellesley (June 10, 2002)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JOHN & BARBARA LIGOR		v.	   BOARD OF ASSESSORS OF 
   THE TOWN OF WELLESLEY


Docket Nos. F259015, F259016		   Promulgated:
							   June 10, 2002


	These are appeals 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 Wellesley owned by and assessed to the appellants under G.L. c. 59, § 38, for fiscal year 2001.
	Commissioner Rose heard the appeals and issued  single-member decisions in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20.  In docket number F259015, Commissioner Rose issued a decision for the appellants.  In docket number F259016, Commissioner Rose issued a decision for the appellee.
	These findings of fact and report are made pursuant to requests by both parties under G.L. c. 58A, § 13 and 831 CMR 1.32.

	John Ligor, pro se, for the appellants.
	Donna McCabe, Assessor, for the appellee.
FINDINGS OF FACT AND REPORT

Docket No. F259015
	On January 1, 2000, John & Barbara Ligor ("the appellants") were the assessed owners of a parcel of real estate located at 1 Beach Road, Wellesley ("Beach Road property").  Subsequent to their purchase of the property in 1989, the appellants gutted the interior and have made no improvements since that time.  The property was unoccupied at all times relevant to this appeal.  
As of January 1, 2000, the Beach Road property consisted of an approximately 9,359 square-foot lot improved with a gutted, unoccupied building which prior to the gutting was a two-bedroom, single-family dwelling with a gross living area of 1,516 square feet.  There is an unheated, enclosed porch, and a two-car garage located below the main living level.  The property is located on Morse Pond in Wellesley and has direct access to a beach via a small roadway adjacent to the property.  
	In fiscal year 2001, the Board of Assessors of the Town of Wellesley ("the Assessors") valued the property at $299,000 and assessed a tax at the rate of $8.85 in the amount of $2,646.15.  The appellants paid the tax due without incurring interest.  On December 28, 2000, the appellants timely filed an application for abatement with the Assessors.  On March 1, 2001, the Assessors granted the appellants a partial abatement in the amount of $6,000, reducing the assessed value to $293,000.  On the same day, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  On this basis the presiding member found that the Board had jurisdiction.
	The appellants' present appeal was premised on the Board's prior decision for fiscal year 2000 (Decision dated June 22, 2000, Docket Number X289277).   For fiscal year 2000, the Assessors had valued the Beach Road property at $253,000.  Based on the evidence presented at a full hearing, Commissioner Rose, also the presiding member in that appeal, issued a single-member decision for the appellants and found the Beach Road property's fair cash value, as of January 1, 1999, to be $232,000.  Relying on the Board's fiscal year 2000 decision and testifying that they had made no changes to the property, the appellants sought an abatement of the fiscal year 2001 assessed valuation.
Accordingly, 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 Beach Road property and because the assessed value of the property for fiscal year 2001 is greater than the value found by the Board for fiscal year 2000, the burden shifts to the Assessors to prove that an increase in value is justified.
	Ms. Donna McCabe, an assessor for Wellesley, testified on behalf of the Assessors.  In support of the town's increased assessment, Ms. McCabe presented four sales that occurred between May and December of 1999.  All four properties are also located on Morse Pond.  The first property, 9 Bacon Street, consisted of a parcel containing approximately 15,744 square feet with a building and sold for $545,000 in December 1999.  Subsequent to the sale, the building was razed.  Ms. McCabe noted that the Bacon Street property's location, adjacent to railroad tracks and on a busy street, was inferior to the location of the subject property.  
The second and third sales referenced by Ms. McCabe are lots located at 89 and 77 Russell Street, both of which are improved with an occupied single-family dwelling.  These properties are similar to the subject property in both lot size and gross living area.  The properties sold for $328,000 in May 1999 and $400,000 in July 1999, respectively.  The last property referenced by Ms. McCabe is located at 9 Pickerel Road, across the pond from Beach Road.  This property, which is smaller in lot size than the Russell Street properties, but which has a single-family dwelling with a larger gross living area, sold for $375,000 in June 1999.  
Ms. McCabe conceded in her report that the Beach Road property is in "poor" condition compared to the sale properties referenced by the Assessors.  She also observed that since the property was gutted in 1990, there have been no improvements made, although the appellant has taken out building permits to renovate.  However, she also observed that the subject property benefited not only by its waterfront location but also its direct access to the water via a roadway located adjacent to the property.  Ms. McCabe testified that these additional factors were considered in valuing the subject property.
The presiding member noted that the Assessors' first comparable sale, located at 9 Bacon Street, was essentially a land sale, since the purchaser razed the building on the parcel shortly after purchase.  Accordingly, the 9 Bacon Street sale provides evidence of land values in the Morse Pond area for the fiscal year at issue.  Moreover, although the remaining properties referenced by the Assessors differ from the subject property in that they include a habitable and occupied dwelling on the lot, they are indicative of the fair market value of property located on Morse Pond.  
Based on the evidence presented, the presiding member found that the fair cash value of the subject property for fiscal year 2001 was higher than the value found by the Board for fiscal year 2000 and, therefore, the Assessors were justified in increasing the fiscal year 2001 assessment for the Beach Road property above the Board's finding of value for fiscal year 2000.  However, based on the evidence presented, the presiding member further found that the Assessors' valuation was excessive and, instead, found that the fair cash value for the Beach Road property, as of January 1, 2000, was $278,350, a five-percent reduction in the assessed value as abated.  Accordingly, Commissioner Rose granted the appellants a partial real estate tax abatement in the amount of $129.65. 

Docket No. F259016
	On January 1, 2000, the appellants were also the assessed owners of a parcel of real estate located at 53 Russell Road, Wellesley ("Russell Road property").  The parcel contains approximately 3,123 square feet and is improved with a two-bedroom cottage with approximately 864 square feet of gross living space.  It is located near, but not on, Morse Pond.  The Russell Road property contains two baths, one fireplace, a 672 square-foot recreation room in the basement and a one-car garage located in the lower level.  The property is presently occupied by the appellants' daughter and her family, and has been used in the past as rental property.
    In fiscal year 2001, the Assessors valued the property at $281,000 and assessed a tax at the rate of $8.85 in the amount of $2,486.85.  The appellants paid the tax due without incurring interest.  On December 28, 2000, the appellants timely filed an application for abatement with the Assessors.  On March 1, 2001, the Assessors granted the appellants a partial abatement in the amount of $14,000, reducing the assessed value to $267,000.  On the same day, the appellants seasonably filed an appeal with this Board.  On this basis, the presiding member found that the Board had jurisdiction over the subject appeal.
	Similar to the earlier appeal for the Beach Road property, the appellants also based this appeal on a prior Board decision relating to the subject property for fiscal year 2000 (Decision dated June 21, 2000, Docket Number X289278).  The Assessors had valued the Russell Street property at $244,000 for fiscal year 2000.  Based on the evidence presented at a full hearing, Commissioner Rose issued a single-member decision for the appellants and found that the Russell Street property's fair cash value, as of January 1, 1999, was $238,000.    At the hearing, Mr. Ligor testified that there had been no changes to the property since the Board's decision for fiscal year 2000.
Accordingly, 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 Russell Street property and because the assessed value of the property for fiscal year 2001 is greater than the value found by the board for fiscal year 2000, the burden shifts to the Assessors to prove that an increase in value is justified.
In defense of their assessment, the Assessors offered three sales of properties that they considered to be comparable to the Russell Street property.  Ms. McCabe noted that due to the Russell Street property's small lot and dwelling size, it was necessary to use sales that occurred outside of the immediate neighborhood as comparables.
The three sales she referenced occurred between June 1999 and May 2000, sandwiching the assessment date of January 1, 2000.  The first sale is located at 31 Thomas Road and has a lot size of 4,871 square feet and a dwelling with a gross living area of 958 square feet.  This dwelling also contains a one-car detached garage.  The property sold in May 2000, for $287,000.  The second sale referenced by the Assessors, located at 28R Laurel Avenue, is an approximately 5,182 square-foot lot improved with a one-bedroom cottage with 798 square feet of gross living area.  This property is set back off the road and has no garage.  The property sold in June 1999 for $269,000.  The last sale, located at 41 Park Avenue, has a lot size of 3,034 square feet and is improved with a two-bedroom residence with 1,000 square feet of gross living area.  This property also has no garage.  The property sold in April 2000 for $299,000. 
Based on the evidence presented, the presiding member found that the fair cash value of the subject property for fiscal year 2001 was higher than the value found by the Board for fiscal year 2000 and, therefore, the Assessors were justified in increasing the fiscal year 2001 assessment for the Beach Road property above the Board's finding of value for fiscal year 2000.  Accordingly, Commissioner Rose 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, § 28; 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 taxpayers sustain 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 appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that the assessed valuation of their 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, both assessments at issue fall within the two-year statutory period of § 12A.  Therefore the burden of persuasion must shift 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 appellants acknowledged that there had been no changes in either of the properties from one year to the next and, therefore, relied on the Board's prior determinations 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 appeals, the Assessors offered a market approach to justify the assessed values of the properties.  To support the assessment for the Beach Road property, the Assessors relied on four sales that occurred between May and December of 1999, prior to the date of assessment of January 1, 2000.  To support the assessment for the Russell Street property, the Assessors offered three sales that occurred between June 1999 and May 2000. 
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."  Boston Consolidated Gas Co., 309 Mass. at 72.
Based on the evidence presented, the presiding member found that, with respect to the Beach Road property, the comparable sales offered by the Assessors and the other evidence presented did not justify the full increase in valuation of the property over the value found by the Board for fiscal year 2000.  Instead, the presiding member found, based on the evidence of sales in the Morse Pond area that the fair cash value of the Beach Road property for fiscal year 2001 was $278,350 and, therefore, granted a partial abatement in Docket Number F259015 in the amount of $129.65.  
With respect to the Russell Street property, the presiding member found that the comparable sales offered by the Assessors and the other evidence presented justified the full increase in valuation of the property over the value found by the Board for fiscal year 2000.  Accordingly, the presiding member issued a decision for the appellee in Docket Number F259016.  



							   APPELLATE TAX BOARD

							By:			_____	
							   James R. Rose, Member



A true copy,



Attest:					
		Clerk of the Board

ATB 2002 -302