John Trinidad v. Board of Assessors of the City of Attleboro (June 29, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOHN TRINIDAD				v.	BOARD OF ASSESSORS OF								THE CITY OF ATTLEBORO

Docket No. F312244				Promulgated:
		   					June 29, 2012


	This is an appeal 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 City of Attleboro (the "appellee" or the "assessors") to abate taxes on certain real estate in the City of Attleboro owned by and assessed to John D. Trinidad (the "appellant") and Mary Ann Trinidad under G.L. c. 59, §§ 11 and 38, for fiscal year 2011.  
	Commissioner Mulhern heard this appeal under       G.L. c. 58A, § 1A and 831 CMR 1.20, and issued a single-member 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.  

	John Trinidad, pro se, for the appellant.

	Stanley J. Nacewicz, City Assessor, for the appellee.

FINDINGS OF FACT AND REPORT
Introduction
	On January 1, 2010, the appellant and Mary Ann Trinidad were the assessed owners of an improved parcel of real estate located at 1059 Washington Street (State Route 1) in the City of Attleboro (the "subject property").  As of the January 1, 2010 assessment and valuation date for fiscal year 2011, the subject property contained approximately 0.46 acres of land (the "subject parcel") and was improved with a 1,484-square-foot single-family home (the "subject home") and a detached garage (the "subject garage").  The subject home has two levels with a total of seven rooms, including three bedrooms, as well as two bathrooms.  The garage is a pre-engineered structure with metal sidewalls and roof.  The garage is constructed over a concrete slab and contains three large bays with separate overhead doors.  The assessors classified a 0.28-acre portion of the subject parcel on which the subject home is located as residential and the remaining 0.18-acre portion on which the garage is located as commercial.   For assessment purposes, the subject property is identified on map 3, as lot 23.  The subject property's property record card notes that lots 24, 52, and 53 are included in lot 23.  
For fiscal year 2011, the assessors valued the subject property at $335,100.  They attributed $34,300 to the subject home and $98,300 to the residential portion of the subject parcel for a total residential assessment of $132,600.  The assessors also attributed $60,700 to the garage and $141,800 to the commercial portion of the subject parcel for a total commercial assessment of $202,500.  The assessors assessed a tax on the subject property, at the rate of $12.20 per thousand for the residential portion and at the rate of $19.61 per thousand for the commercial part, in the total amount of $5,588.75. 
 
Jurisdiction
On or about December 29, 2010, Attleboro's Collector of Taxes sent out the city's actual real estate tax notices.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax assessed on the subject property without incurring interest.  On January 31, 2011, in accordance with G.L. c. 59, § 59, the appellant timely filed his Application for Abatement with the assessors.  On March 9, 2011, the assessors denied the appellant's application, and on June 7, 2011, in accordance with    G.L. c. 59, §§ 64 and 65, the appellant seasonably filed a Petition Under Formal Procedure with the Appellate Tax Board (the "Board").  On the basis of these facts and subsidiary findings, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.  
Merits
	At the hearing, the appellant presented his case through his own testimony and the testimony of John Brady, a local real-estate broker, as well as the introduction of five numbered exhibits.  His exhibits included: several Multiple Listing Service ("MLS") sheets; a deed and photograph of 1049 Washington Street in Attleboro; six photographs of the subject property; and two "Detail Print Pages" of properties located on Washington Street in Attleboro downloaded from "Appraisal Resource Property."  The assessors presented their case through the testimony of the City Assessor, Stanley J. Nacewicz, and the introduction of the requisite jurisdictional documents, the subject property's property record card, an aerial depiction of the subject property and its neighborhood, and a newspaper article with quotations describing the commercial use of the subject property credited to the appellant.  
The testimony and exhibits offered by the appellant focused primarily on his allegations that: the assessors failed to adequately consider the age and condition of both the subject home and the subject garage; sales of other small commercial properties in Attleboro supported a fair cash value of $232,000 for the subject property; the sale of a two-family home on Washington Street in Attleboro supported a fair cash value of $250,000 for the subject property; and the subject garage was not used commercially.
More specifically, the appellant pointed out perceived defects and deficiencies in the subject home and the subject garage, including items of deferred maintenance and the lack of utility hook-ups for the garage.  Mr. Brady observed that other commercial properties in the subject property's area sold for an average of $232,500.  He did not offer into evidence, however, an adjustment grid or any type of comparability analysis.  The appellant noted that the only recent residential sale on Washington Street -- a two-family residence -- sold for $265,000.  Like Mr. Brady, the appellant did not make any adjustments to the sale price to account for differences with the subject property or offer any type of comparability analysis.  Lastly, the appellant testified that the garage was not used commercially and was essentially a shell without any utilities.       
	Mr. Nacewicz's testimony attempted to refute the appellant's and his real-estate broker's allegations.  Mr. Nacewicz asserted that the sales of small commercial properties presented by the appellant's real-estate broker and the sale of the two-family residential property that the appellant entered into evidence were not comparable to the subject property because they were single-use, not mixed-use properties.  Mr. Nacewicz additionally maintained that the assessed values that the assessors had placed on the subject home and the subject garage adequately accounted for their conditions.  The assessed value attributed to the subject garage contained a depreciation factor of 32%, while the assessed value attributed to the subject home contained a depreciation factor of 70%.  Lastly, Mr. Nacewicz related that the appellant used the garage and the portion of the subject property classified as commercial for his excavation business.  Mr. Nacewizc testified that the appellant stored his commercial equipment, including large trucks and excavation equipment, on the subject property and used the commercial portion of the subject property as his business's headquarters.  According to Mr. Nacewicz, the garage had electric service.   
Based on all of the evidence, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property's assessed value for fiscal year 2011 exceeded its fair cash value.  The Presiding Commissioner found that the appellant failed to show that the assessed values attributed to the subject home and the subject garage were excessive and did not adequately account for their condition and items of deferred maintenance.  The Presiding Commissioner found that Mr. Nacewizc credibly testified that the subject property's assessment appropriately accounted for these improvements' defects and deficiencies through the depreciation factor.  The Presiding Commissioner further found that the appellant did not establish the comparability of his commercial-sale properties and his residential-sale property to the subject property.  As Mr. Nacewicz observed, these properties were not multi-use properties like the subject property.  The Presiding Commissioner also agreed with the credible testimony of Mr. Nacewicz, which was corroborated by the unrebutted newspaper article, and found that the portion of the subject property classified as commercial was used as the headquarters and primary storage area for the appellant's excavating business and was, therefore, properly classified and assessed.  Based on Mr. Nacewicz's testimony and one of the pictures in evidence showing a wire running to the garage, the Presiding Commissioner also found that the subject garage did have electric service.     
On this basis, the Presiding Commissioner found that the appellant did not sustain his burden of demonstrating that the subject property's assessment for fiscal year 2011 exceeded its fair cash value.  The Presiding Commissioner, therefore, decided this appeal for the appellee.    

OPINION
	 The assessors are required to assess real estate at its fair cash value as of the January first preceding the fiscal year under consideration.  G.L. c. 59, § 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 property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out his 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 taxpayer[] . . . prov[es] 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 this appeal, the appellant attempted to show that the assessors had overvalued the subject property by proving that they had failed to properly account for defects and deficiencies, as well as items of deferred maintenance, in the subject home and the subject garage.  The Presiding Commissioner found, however, that the portion of the subject property's assessment attributed to the subject home and the subject garage sufficiently accounted for any defects, deficiencies, and items of deferred maintenance through the depreciation factors used for each improvement.  The Presiding Commissioner further found that the portion of the subject property classified as commercial was used as the headquarters and primary storage area for the appellant's excavating business and was, therefore, properly classified and assessed.  The Presiding Commissioner also found that the subject garage did have electric service.     
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 2007-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices.  See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value."  Appraisal Institute, The Appraisal of Real Estate 430 (13th ed. 2008).
In the present appeal, the Presiding Commissioner found that neither the appellant nor his real-estate broker established the comparability of the commercial-sale properties or the residential-sale property to the subject property.  The Presiding Commissioner found that these properties did not share the subject property's multi-use characteristic of combining commercial and residential uses on the same parcel.  The Presiding Commissioner also found that neither the appellant nor his real-estate broker made any adjustments to the commercial-sale properties or the residential-sale property to account for differences with the subject property.  The Presiding Commissioner, therefore, found and ruled that this evidence provided little assistance to the appellant in meeting his burden of showing that the subject property's assessment exceeded its fair cash value.         
In sum, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property's assessed value for fiscal year 2011 exceeded its fair cash value.  The Presiding Commissioner found that the appellant failed to show that the assessed values attributed to the subject home and the subject garage were excessive and did not adequately account for their condition and items of deferred maintenance.  The Presiding Commissioner further found that the appellant did not establish the comparability of his commercial-sale properties and his residential-sale property to the subject property, and, to the extent that they may have been comparable, did not apply any adjustments to account for their differences with the subject property.  The Presiding Commissioner observed that these properties were not multi-use properties like the subject property.  The Presiding Commissioner also found that the portion of the subject property classified as commercial was used as the headquarters and primary storage area for the appellant's excavating business and was, therefore, properly classified and assessed.  As a result of these subsidiary findings and based on all of the record, the Presiding Commissioner found and ruled that the appellant failed to prove that the subject property's assessed value exceeded its fair cash value.    
In reaching his decision in this appeal, the Presiding Commissioner was not required to believe the testimony of any particular witness or to adopt any particular method of valuation that a witness suggested.  Rather, the Presiding Commissioner could accept those portions of the evidence that the Presiding Commissioner determined had more convincing weight. Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981).  "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).        
On this basis, the Presiding Commissioner issued a single-member decision for the appellee. 					
APPELLATE TAX BOARD



					By:	_______________________________
						Thomas J. Mulhern, Commissioner

A true copy,


Attest: _________________________
	   Clerk of the Board

 These "Detail Print Pages" were apparently downloaded from the Appraisal Resource Revaluation Group, LLC database for Attleboro.

ATB 2012-887