Edward H. Stone v. Board of Assessors of the Town of Wakefield (May 27, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



EDWARD H. STONE			v.	BOARD OF ASSESSORS OF
                               	THE TOWN OF WAKEFIELD

Docket No. F293551              Promulgated:  May 27, 2008
                                                                                                                        
	
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 appellee to abate taxes on real estate assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
Commission Mulhern heard the appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in a decision for appellee. 
These findings of fact and report are promulgated simultaneously with the Board's Decision pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

Edward H. Stone, pro se, for appellant.

Victor P. Santaniello, Assessor, for appellee.


FINDINGS OF FACT AND REPORT

On the basis of exhibits and testimony offered at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2006, Edward H. Stone ("appellant") was the assessed owner of a parcel of real estate located at 37 Morrison Road West in the Town of Wakefield ("subject property").   For fiscal year 2007 ("fiscal year at issue"), the Wakefield Board of Assessors ("assessors") valued the subject property at $674,000 and assessed a tax of $6,416.48, which appellant timely paid without incurring interest.
On January 29, 2007, appellant timely filed an Application for Abatement with the assessors.  The assessors took no action on the application within three months of January 29, 2007 and the application was, therefore, deemed denied on April 29, 2007.  Appellant seasonably filed an appeal with the Board on July 16, 2007.  On the basis of these facts, the Board found that it had jurisdiction over this appeal.
The subject property consists of a 16,360 square-foot parcel of real estate improved with a single-family, "Colonial" style home that was completed in 2002.  The home contains 2,666 square feet of living space and includes eight rooms, including four bedrooms, as well as two and one-half bathrooms.   The home has oil-fired heating and central air conditioning.  
Appellant maintained that the subject property was overvalued and that its value on the relevant valuation date of January 1, 2006 was $568,000, as reflected on appellant's abatement application and the Board's Decision dated December 28, 2005 concerning appellant's fiscal year 2005 appeal.  Subsequent to the Board's fiscal year 2005 Decision, the Board issued a Decision on appellant's fiscal year 2006 appeal in favor of the assessors, upholding the fiscal year 2006 assessed value for the subject property of $661,600.  See Stone v. Assessors of Wakefield, Mass. ATB Findings of Fact and Reports, 2007-931.
Because the assessed value at issue in the present appeal was greater than the value found by the Board for fiscal year 2005, the burden was on the assessors to establish that the assessed value at issue in the present appeal was warranted.
The assessors' witness offered a series of four sales of what he had determined to be comparable, single-family, Colonial-style homes in Wakefield that had occurred during 2005, proximate to the January 1, 2006 valuation date for fiscal year 2007.  His sales properties were, like the subject property, newer Colonial-style homes built between 1995 and 2005.  These properties were also similar to the subject property in terms of living area, and total number of rooms, bedrooms and bathrooms.  The properties and sale prices were as follows: 10 Cowdry Lane, $852,000; 18 King Street, $759,000; 2 Blueberry Lane, $830,000; and 62 Andrews Road, $815,000.    
To support his overvaluation claim, appellant focused primarily on four single-family Colonial-style homes in Wakefield that were being offered for sale in February and October of 2007.  His evidence consisted of: a February 26, 2007 newspaper listing of property located at 19 Fellsway Avenue being offered at $599,000; an October 1, 2007 multiple listing sheet for property located at 150 Nahant Street being offered at $519,900; an October 1, 2007 multiple listing sheet for property at 18 Butler Avenue being offered at $529,900; and a 2007 Century 21, Commonwealth listing packet for property at 7 Brant Circle being offered at $399,900.  Appellant contended that these properties were similar Colonial-style homes in Wakefield that were, at the time of the hearing of this appeal, being offered for sale for substantially less than the assessed value of his property.  
On the basis of the evidence submitted, the Board found that the assessors met their burden of proving that the increase in the assessed value of the subject property over the value found by the Board for the fiscal year 2005 appeal concerning the subject property was warranted.  In particular, the Board found that the assessors' witness demonstrated that the properties on which he relied to support the assessment were comparable to the subject property, particularly with respect to their recent construction, size of dwelling and the number of rooms, bedrooms and bathrooms that each offered.  Further, the sales of these properties occurred near the time of the relevant valuation date and reflected market conditions at that time.  
Conversely, the Board found that appellant did not present credible affirmative evidence to support his claim of overvaluation.   First, appellant offered insufficient evidence to support a finding that his sale properties were comparable to the subject property and he attempted no adjustments to account for differences between these properties and the subject property.  Further, appellant offered asking prices, rather than actual sales prices, for these properties.  Compounding this problem is that his evidence concerned asking prices long after the relevant valuation date - in some cases, nearly two years after January 1, 2006 - and appellant offered no evidence of market conditions at the time of these offerings compared to the relevant valuation date.  
For all of the foregoing reasons, the Board issued a decision for appellee in this appeal.

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 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).  
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 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, 363 Mass. at 245).
If, however, within the two preceding fiscal years the Board has determined the fair cash value of the subject property and the assessment at issue exceeds that determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.   Because the fiscal year 2007 assessed value at issue in this appeal exceeded the fair cash value found by the Board for fiscal year 2005, the burden was on the assessors to prove that the fiscal year 2007 assessed value was warranted.
Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains on appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 1992-8; Cressey Dockham & Co., Inc. v. Assessors of Andover, ATB Findings of Fact and Reports 1989-72, 1989-86-87.
In the present appeal, the Board found and ruled that the assessors' witness provided persuasive, credible evidence to establish the validity of the assessment placed on the subject property for the fiscal year at issue.   The assessors' witness identified sales of properties that were comparable to the subject property, particularly with respect to their recent construction, size of dwelling and the number of rooms, bedrooms and bathrooms that each offered.  Further, the sales of these properties occurred near the time of the relevant valuation date and reflected market conditions at that time.  
Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data for determining the value of the property at issue.  McCabe v. Chelsea, 265 Mass. 494, 496 (1929). "[T]he market value of a property is related to the [sale] prices of comparable, competitive properties." The Appraisal Institute, The Appraisal of Real Estate (12th ed. 2001) 277, 417 
In contrast, appellant offered listings of property presently on the market as his sole evidence to challenge or contradict the assessors' analysis and provided no credible affirmative evidence of overvaluation.   Listing prices of properties are not reliable indicators of value.  See Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports, 2007-1098, 2007-1103.  Further undercutting the reliability of this data was that appellant's evidence consisted of asking prices long after the relevant valuation date with no indication of the relevant market conditions at the time of these offerings compared to the relevant valuation date.  Id. (ruling that actual sales that did not occur at or sufficiently near the relevant assessment date and were not adjusted to reflect the market value of the properties as of that date were unreliable indicators of fair cash value).  
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)). On this record, the Board ruled that appellant offered no credible evidence of overvaluation.  
Accordingly, on the basis of all of the evidence of record in these appeals, the Board ruled that the assessors met their burden of proving that the subject assessment was warranted and that appellant did not met his burden of 





proving that the subject property was overvalued for fiscal year 2007.  Therefore, the Board issued a decision for appellee in this appeal.

APPELLATE TAX BOARD


                   By:  ___________________________________
                        Thomas W. Hammond, Jr., Chairman





A true copy,

Attest:   ____________________________
          Assistant Clerk of the Board

 See G.L. c. 58A, § 12A.  

ATB-2008-656