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. F312245				   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 Trinidad (the "appellant") and Wanda P. 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 Wanda P. Trinidad were the assessed owners of a vacant parcel of real estate located at 0 Arcadia Avenue 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 1.1 acres of land.  For assessment purposes, the subject property is identified on map 72, as lot 296.  
For fiscal year 2011, the assessors valued the subject property at $35,700 and assessed a tax thereon, at the rate of $12.20 per thousand, in the amount of $435.54.  

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, 2010, 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 of this appeal, both the appellant and the City Assessor, Stanley J. Nacewicz, testified and introduced several exhibits, including: the requisite jurisdictional documents; the subject property's property record card; a deed for a 0.138-acre unimproved parcel located on Zoar Avenue; a property record card for another property located at 0 Arcadia Avenue; and two photographs depicting a small segment of the subject property.  
The testimony and exhibits offered by the appellant focused primarily on his allegations that the assessment did not adequately account for the extensive presence of wetlands located on the subject property, which rendered it unbuildable.  According to the appellant, both the city's Conservation Agent and Building Inspector inspected the subject property and stated that "it's all wetlands and not buildable."  The appellant also asserted that a "certified wetlands specialist [Walter Hewitson] inspected [the subject property] and stated the same in writing."  The appellant, however, did not call Mr. Hewitson to testify in this appeal but merely supplemented the record with a copy of the letter.  The appellant further maintained that "a buildable lot [on Zoar Avenue] with . . . no wetlands sold for $35,000."
	Mr. Nacewicz testified for the assessors and stated that the subject property does not appear to be on the local wetlands map, and the appellant has never caused the purported wetland area to be flagged by professionals to identify its area and dimensions, as is the usual custom and practice for depicting wetland areas.  In addition, Mr. Nacewicz emphasized that the fiscal-year-2009 property record card, which the appellant introduced into evidence and which values another unimproved property in Attleboro with an address of 0 Arcadia Avenue for only $7,000, is for a land-locked parcel and is therefore not comparable to the subject property.  Lastly, Mr. Nacewicz explained that, for the past three fiscal years, the assessors have been consistently assessing the subject property in accordance with the Board's most recent decision which valued it at $41,800 for fiscal year 2008.        
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 did not demonstrate the extent or degree to which the subject property may have been affected by wetlands that rendered it unbuildable.  As Mr. Nacewicz testified, the appellant did not introduce wetland maps, surveys, or even area measurements depicting the portion of the subject property purportedly affected by wetlands.  Moreover, the appellant did not call any witnesses to substantiate his allegations that the subject property was designated by city officials as being "all wetlands and unbuildable."  In addition, the two photographs that the appellant introduced into evidence pictured only a small patch of scrub and not much else. 
Even though the appellant supplemented the record with a copy of a letter from his purported "certified wetlands specialist," the Presiding Commissioner did not give the letter any weight because Mr. Hewitson did not appear at the hearing of this appeal and was not available for voir dire or cross-examination by the assessors or for questioning by the Presiding Commissioner.    
The Presiding Commissioner also found that because the appellant failed to show that the subject property was unbuildable, he was not able to successfully develop his argument that the subject property should have been valued considerably less than the purportedly buildable lot which sold for $35,000.  The Presiding Commissioner further found that other than this one $35,000 sale, which tends to support the subject property's assessed value, and the one assessment of a land-locked parcel for $7,000, which is not comparable to the subject property, the appellant did not present any comparable-sales or comparable-assessments analyses.  Lastly, the Presiding Commissioner found that the assessors had continued to value and assess the subject property in accordance with the Board's most recent decision which valued it at $41,800 for fiscal year 2008.  
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 the extensive presence of wetlands on the subject property and had failed to consider that the subject property was unbuildable.  The Presiding Commissioner found, however, that the appellant did not demonstrate the extent or degree to which the subject property may have been affected by wetlands or whether it was unbuildable.  The appellant did not introduce wetland maps, surveys, or even area measurements depicting the portion of the subject property purportedly affected by wetlands.  Moreover, the appellant did not call any witnesses to substantiate his allegations that the subject property was designated by city officials as being "all wetlands and unbuildable."  
Even though the appellant supplemented the record with a copy of a letter from his purported "certified wetlands specialist," the Presiding Commissioner did not give the letter any weight because this purported expert did not appear at the hearing of this appeal and was not available for voir dire or cross-examination by the assessors or for questioning by the Presiding Commissioner.  See Ward Brothers Realty Trust v. Assessors of Hingham, Mass. ATB Findings of Fact and Reports 2012-515, 533 (citing Papernik v. Assessors of Sharon, Mass. ATB Findings of Fact and Reports 2011-600, 615 ("[T]his hearsay information was opinion evidence, which, although not objected to by the assessors, was offered without proper foundation, qualification, or underlying factual support and without providing the assessors with an opportunity for cross-examination.  Accordingly, the Presiding Commissioner gave it no weight.")).  Furthermore, the two photographs that the appellant introduced into evidence pictured only a small patch of scrub and not much else.  The Presiding Commissioner also found that the assessors had continued to value and assess the subject property in accordance with the Board's most recent decision which valued it at $41,800 for fiscal year 2008.  The Presiding Commissioner found and ruled that the appellant's evidentiary omissions and shortcomings, as well as his failure to properly substantiate his allegations, significantly diminished the viability of his case.   
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).  Evidence of comparable assessments may also be used to determine a property's fair cash value.  "At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . at which assessors have assessed other property of a comparable nature . . . shall be admissible."  G.L. c. 58A, § 12B.   The introduction of assessment evidence may provide adequate support for either the granting or denial of an 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); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  
In the present appeal, the Presiding Commissioner found that the one comparable-assessment property introduced by the appellant was not comparable to the subject property and it was therefore entitled to no weight.  The Presiding Commissioner further found that because the appellant did not show that the subject property was unbuildable, the one sale property that he entered into evidence tended to validate the assessment.  While one comparable-sale property does not ordinarily make a reliable comparable-sales analysis, see Carney v. Assessors of Ashland, Mass. ATB Findings of Fact and Reports 2011-559, 566 ("the sale of a single purportedly comparable property is generally not sufficient to establish the fair cash value of property") and Appraisal Institute, The Appraisal of real estate 141 (13th ed. 2008) ("The sale comparison approach is most useful when a number of similar properties have recently been sold . . . in the subject property's market (emphasis added)."), it is still some evidence of value, and it indicated here that the subject property was not overvalued.  See id. at 298, n.1 ("[A]s soon as the market consists of only one buyer and one seller, called bilateral monopoly, economic theory can no longer predict a unique price . . . [only] a minimum . . . and a maximum sale price . . . [because the] transaction price depends not on supply and demand but on the negotiating or bargaining skills of the buyer and seller.").  
In sum, the Presiding Commissioner found that the appellant's allegations that the subject property was virtually all wetlands and unbuildable were unsubstantiated and therefore not credible.  The Presiding Commissioner further found that the appellant's one comparable-assessment property was not comparable to the subject property and his one sale property tended to validate the assessment.  Consequently, 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 in this appeal for the appellee. 					
APPELLATE TAX BOARD


					By:	_______________________________
						Thomas J. Mulhern, Commissioner A true copy,

Attest: _____________________________
	   Clerk of the Board

ATB 2012-900