Joan L. Crowell v. Board of Assessors of the City of Worcester (November 4, 2013)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JOAN L. CROWELL		v.      BOARD OF ASSESSORS OF
			   THE CITY OF WORCESTER
 
Docket No. F318481	 	 	        Promulgated:
							   November 4, 2013

					 
	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 City of Worcester ("assessors" or "appellee") to abate a tax on certain real estate in the City of Worcester owned by and assessed to Joan L. Crowell ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2012 (the "fiscal year at issue").
	Commissioner Rose ("Presiding Commissioner") heard the appeal and issued a single-member decision for the appellant in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20. 
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. 

	Joan L. Crowell, pro se, for the appellant.

	John F. O'Day, Jr., Esq. for the appellee.



FINDINGS OF FACT AND REPORTS
On January 1, 2011, Joan L. Crowell was an assessed owner of a 20,244 square-foot waterfront parcel of land improved with a two-story, conventional-style dwelling located at 5 Bernice Street in Worcester ("subject property").  The subject property is situated in the southern section of Worcester, proximate to state routes 12 and 190 and is located at the end of a private dirt road abutting Leesville Pond.  The assessors classified the subject property as waterfront and in neighborhood 102.     
The wood-framed subject dwelling was built in 1895.  There are a total of eight rooms, including three bedrooms, as well as one full bathroom and one half bathroom, with a total living area of 1,836 square feet.  The exterior of the subject dwelling has a mix of vinyl and aluminum siding with an asphalt-shingled gable roof and a stone foundation.  The interior walls are plaster and the floors are hardwood, with the exception of the floors in the kitchen and bathroom, which are finished with peel-and-stick tiles.  The subject dwelling has no central heat or hot water; instead, it is heated by three portable, electric radiators and a free-standing wood-pellet stove.  The subject property is serviced by town water, but has a private septic system.  Additional amenities include a greenhouse, an in-ground swimming pool, a detached wood deck, and a wood-framed shed.  The property record card rated the subject dwelling's condition as "average."
For fiscal year 2012, the assessors valued the subject property at $198,000 and assessed a tax thereon at the residential rate of $16.98 per $1,000, in the amount of $3,362.04.  On May 25, 2012, Worcester's Collector of Taxes sent out the city's actual real estate tax bills for fiscal year 2012.  The appellant timely paid the tax assessed without incurring interest.  On Monday, June 25, 2012, in accordance with G.L. c. 59, § 59, the appellant timely filed with the assessors an Application for Abatement.  On September 25, 2012, the assessors granted a partial abatement reducing the assessed value of the subject property by $17,300 to $180,700.  Not satisfied with this reduction, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on December 26, 2012.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
In the present appeal, the appellant argued that the subject property was overvalued because the assessors failed to account for: (1) the subject dwelling's lack of a central heating system; and (2) the subject property's location, adjacent to a shallow and stagnant pond, which breeds mosquitos, negatively impacting its fair cash value.  The appellant attempted to prove these assertions through her testimony and the introduction into evidence of a submission, which contained the subject property's property record cards for fiscal years 2011 and 2012, sales information for seven purportedly comparable properties, and also fiscal year 2012 assessment information for ten purportedly comparable properties.
The appellant testified that from fiscal year 1988 through fiscal year 2011, the assessors' property record card listed the subject property's heat as "None."  For fiscal year 2012, however, the property record card listed the heat as "Typical."  The appellant testified that there was an oil fire in the dwelling and consequently she "ripped out" the entire heating system, including all necessary pipework.  She opined that the installation of a new heating system would cost, at a minimum, $15,000.
The appellant also relied on sales of seven purportedly comparable properties that sold during the period July 28, 2010 through September 30, 2011, with sale prices that ranged from $145,000 to $290,000.  Of the seven comparable-sale properties cited, five are located in the assessors' neighborhood class 102; the remaining two comparable-sale properties are located in the assessors' neighborhood class 104.  None of the appellant's purportedly comparable-sale properties is a waterfront property.  After adjustments, the appellant arrived at a range of adjusted sale prices from $114,993 to $190,153.
The appellant also provided the fiscal year 2012 property record cards for her seven comparable-sale properties, plus three additional properties.  Of the appellant's ten cited comparable-assessment properties, only two were waterfront -- 3 Aster Place and 119 Hope Ave.  3 Aster Place is a 15,700 square-foot parcel improved with a single-family dwelling containing 1,860 square feet of living area.  For fiscal year 2012, the assessors valued this property at $241,600.  119 Hope Ave. is a 14,250 square-foot parcel improved with a single-family dwelling containing 1,642 square feet of living area.  For fiscal year 2012, the assessors valued this property at $158,500.  The appellant made adjustments for differences between the subject property and her purportedly comparable-assessment properties, including public road, public sewer, lot size, condition, number of bedrooms and bathrooms, living area, and heat, to arrive at adjusted assessed values of $143,125 and $134,945, respectively.  She did not, however, make any location adjustments for those properties that were not waterfront.
The assessors relied primarily on the testimony of William Ford, an assessor for Worcester.  Mr. Ford testified that the assessors had inspected the subject property.  He acknowledged that the subject dwelling has no central heating system, but suggested that the appellant only needed to replace the furnace.  Mr. Ford, however, failed to take into account the subject dwelling's lack of pipework essential to a heating system.
After considering all of the evidence, the Presiding Commissioner found and ruled that the appellant met her burden of proving that the subject property was overvalued for fiscal year 2011.  In reaching this decision, the Presiding Commissioner gave substantial weight to the appellant's credible testimony and evidence regarding the subject dwelling's lack of a heating system and also the deteriorated condition of the subject dwelling.  The Presiding Commissioner also gave some weight to the two waterfront properties that the appellant cited in her comparable-assessment analysis.
On the basis of the foregoing, the Presiding Commissioner determined that the fair cash value of the subject property for fiscal year 2012 was $165,000. Accordingly, the Presiding Commissioner issued a decision for the appellant and granted a tax abatement of $266.59. 

OPINION
The assessors are required to assess real estate at its fair cash value.  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 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 . . . 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 present appeal, the appellant provided probative credible evidence that in valuing the subject property for fiscal year 2012, the assessors failed to adequately consider the subject dwelling's lack of a central heating system and the resulting effects on the subject dwelling's overall condition.  This evidence included the appellant's own testimony as well as photographs of the subject property's deteriorated condition.
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." Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 50, 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 evidence presented in this appeal, and the reasonable inferences drawn therefrom, the Presiding Commissioner found that the fair cash value of the subject property for fiscal year 2012 was $165,000.  The Presiding Commissioner therefore issued a decision for the appellant in this appeal and granted an abatement in the amount of $266.59. 

  				   	  THE APPELLATE TAX BOARD


			        By: ______________________________                                                         James D. Rose, Commissioner 



A true copy,

Attest: _____________________
         Clerk of the Board
	

 According to the property record card, Joan L. Crowell and Charles H. Mason were the assessed owners of the subject property.  However, this appeal was filed only in the name of Joan L. Crowell.
  "In the event that actual tax bills are not mailed by December thirty-first, then upon the establishment of the tax rate there shall be a single actual bill due and payable on May first, or thirty days after the date of mailing, whichever is later." G.L. c. 59, § 57C.  Pursuant to G.L. c. 59, § 59, a taxpayer may file an abatement application on or before the last day for payment of the tax.  Because the actual tax bills were not mailed until May 25, 2012, the filing deadline for the appellant's application for abatement was Sunday, June 24, 2012. When the last day of a payment or filing period falls on a Saturday, Sunday, or holiday, the payment or filing is still considered timely if it is made on the following business day. G.L. c. 4, § 9.  Accordingly, the Board found that the appellant's abatement application filed on June 25, 2012 was timely.
 December 25, 2012 was a legal holiday.  Therefore, an appeal filed on December 26, 2012 was timely.  See G.L. c. 4, § 9.  

ATB 2013-1121