F300170; F300198; F311482; F300172; F200198; F300171

Full text

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

AUTUMN GATES ESTATES, LLC v. BOARD OF ASSESSORS OF
& FOX GATE, LLC THE TOWN OF MILLBURY

Docket Nos. F300170-F300198 Promulgated:
& F311482 August 28, 2013

These are appeals 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 Town of Millbury (the "appellee" or the "assessors") to abate taxes on certain real estate in Millbury owned by and assessed to Autumn Gates Estates, LLC ("AGE, LLC") for fiscal year 2009 and owned by and assessed to Fox Gate, LLC ("Fox Gate, LLC") for fiscal year 2011 under G.L. c. 59, §§ 11 and 38.
Commissioner Chmielinski heard these appeals. Chairman Hammond and Commissioners Scharaffa and Rose joined him in the decision for the appellant in Docket Nos. F311482, F300170 and F300172-F200198, and in the decision for the appellee in Docket No.F300171.
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.

Paul F. Vozella, Esq. for the appellant.
Jeffrey T. Blake, Esq., and Thomas W. McEnaney, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits entered into the record, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008, the relevant date of assessment for fiscal year 2009, AGE, LLC was the assessed owner of a 32.87-acre parcel of land located at Autumn Gate Circle in Millbury. ("subject property"). The subject property was subdivided into 31 separate lots, with 27 lots designated for residential development and four lots set aside as open space. On the relevant date of assessment, the subject property was improved with a sewage pumping station, cleared roadways with an asphalt basecoat, and granite curbing. The residential lots were cleared and most of them were graded.
On October 10, 2008, Fox Hill Builders, Inc. acquired the subject property after making the winning bid of $1,850,000 at a foreclosure sale, and on that same date, it transferred the subject property to Fox Gate, LLC. Fox Gate, LLC was therefore the assessed owner of the subject property on January 1, 2010, the relevant date of assessment for fiscal year 2011. Hereinafter, AGE, LLC and Fox Gate, LLC will be jointly referred to as "the appellant" and fiscal years 2009 and 2011 will be jointly referred to as "the fiscal years at issue."
The following tables set forth the sizes, assessed values, and taxes assessed by the assessors for each of the subject property's 31 lots for both of the fiscal years at issue.

FY 2009

Map Lot Lot #
on Plan St. #
Lot Size (sq. ft.) Assessed
Value ($) Total
Tax ($)
48 78 1 2 22,267 118,900 1,393.51
48 79 2 4 23,202 119,200 1,397.02
48 80 3 6 23,204 119,200 1,397.02
56 4 4 8 20,001 118,100 1,384.13
56 5 5 10 20,002 118,100 1,384.13
56 6 6 12 20,002 118,100 1,384.13
56 7 7 14 39,168 125,400 1,469.69
56 8 8 16 1.92 ac. 135,200 1,584.54
56 10 9 18 1.86 ac. 135,600 1,589.23
56 11 10 20 1.12 ac. 128,100 1,501.33
56 12 11 22 41,485 126,200 1,479.06
56 13 12 24 1.28 ac. 130,800 1,532.98
48 86 13 26 1.26 ac. 130,300 1,527.12
48 85 14 28 22,720 119,100 1,395.85
48 84 15 1 20,000 118,100 1,384.13
48 83 16 3 20,218 118,200 1,385.30
48 82 17 5 20,001 118,100 1,384.13
48 81 18 7 20,002 118,100 1,384.13
56 22 19 9 20,002 118,100 1,384.13
56 21 20 11 20,001 118,100 1,384.13
56 20 21 13 20,001 118,100 1,384.13
56 19 22 15 20,001 118,100 1,384.13
56 18 23 17 20,002 118,100 1,384.13
56 17 24 19 20,001 118,100 1,384.13
56 16 25 21 20,002 118,100 1,384.13
56 15 26 23 20,002 118,100 1,384.13
56 14 27 25 20,002 118,100 1,384.13
56 9 Open
Space 0 1,658 7,100 83.21
56 23 Open
Space 0 8.5 ac. 16,800 196.90
56 24 Open
Space 0 1.56 ac. 5,200 75.66
48 89 Open
Space 0 14,141 113,700 1,332.56
Total
FY 2009 3,428,600 40,183.19

FY 2011
Map Lot Lot #
on Plan St. #
Lot Size
(sq. ft.) Assessed
Value ($) Total
Tax ($)
48 78 1 2 22,267 95,100 1,383.71
48 79 2 4 23,202 95,400 1,388.07
48 80 3 6 23,204 95,400 1,388.07
56 4 4 8 20,001 94,300 1,372.07
56 5 5 10 20,002 94,300 1,372.07
56 6 6 12 20,002 94,300 1,372.07
56 7 7 14 39,168 101,000 1,469.55
56 8 8 16 1.92 ac. 109,500 1,593.23
56 10 9 18 1.86 ac. 109,900 1,599.05
56 11 10 20 1.12 ac. 103,500 1,505.93
56 12 11 22 41,485 101,700 1,479.74
56 13 12 24 1.28 ac. 105,900 1,540.85
48 86 13 26 1.26 ac. 105,400 1,533.57
48 85 14 28 22,720 95,200 1,385.16
48 84 15 1 20,000 94,300 1,372.07
48 83 16 3 20,218 94,400 1,373.52
48 82 17 5 20,001 94,300 1,372.07
48 81 18 7 20,002 94,300 1,372.07
56 22 19 9 20,002 94,300 1,372.07
56 21 20 11 20,001 94,300 1,372.07
56 20 20 13 20,001 94,300 1,372.07
56 19 22 15 20,001 94,300 1,372.07
56 18 23 17 20,002 94,300 1,372.07
56 17 24 19 20,001 94,300 1,372.07
56 16 25 21 20,002 94,300 1,372.07
56 15 26 23 20,002 94,300 1,372.07
56 14 27 25 20,002 94,300 1,372.07
56 9 Open
Space 0 1,658 10,800 157.14
56 23 Open
Space 0 8.5 ac. 13,600 197.88
56 24 Open
Space 0 1.56 ac. 5,200 75.66
48 89 Open
Space 0 14,141 90,400 1,315.32
Total
FY 2011 2,746,900 39,967.40

The appellant timely paid the taxes due for fiscal year 2009 without incurring interest. On January 28, 2009, the appellant timely filed Applications for Abatement with the assessors, and those applications were denied on February 3, 2009. The appellant timely filed Petitions Under the Formal Procedure with the Board on April 17, 2009.
The appellant timely paid the taxes due for fiscal year 2011 without incurring interest. On January 28, 2011, the appellant timely filed its Applications for Abatement with the assessors, and those applications were denied on March 15, 2011. The appellant timely filed a Petition Under the Formal Procedure with the Board on May 13, 2011.
On the basis of the foregoing facts, the Board found that it had jurisdiction to hear and decide these appeals.
The Appellant's Case-in-Chief
In support of its case, the appellant offered numerous documentary submissions into the record as well as the testimony of five witnesses. The first witness to testify for the appellant was Steven Gallo ("Steven"), an owner and officer of Fox Gate, LLC. Steven testified regarding Fox Gate, LLC's acquisition of the subject property at a foreclosure auction in the fall of 2008. He stated that prior to making a bid on the subject property, he contacted the Town Planner for the Town of Millbury to inquire whether a bond was in place for the subject property, as required by G.L. c. 41, § 81U. Steven testified that he was informed that a bond was in place for the development of the subject property, and documentary evidence entered into the record confirmed that a bond in the amount of $474,000 was in place at that time.
Steven testified that after making the winning bid for the subject property, Fox Gate, LLC commenced its plans to proceed with building houses on each of the subject property's lots, starting with building a model home. He testified that, in further conversations with Town officials, the status of the bond for the subject property became unclear. He stated that he eventually asked the Town to pursue the release of the bond from the bond company, Bond SafeGuard, which refused to release the money for the completion of the subject property's infrastructure because it maintained that the bond was non-assignable and did not cover the obligations of subsequent owners of the subject property.
In November of 2008, Fox Gate, LLC applied to the Town for a building permit to construct a model home on the subject property. Robert Blackman, the building inspector for the Town of Millbury, testified that he was advised by the Town's Planning Board to deny the permit application because there was no bond in place for the completion of the infrastructure on the subject property, and he denied the appellant's application for a permit for that reason. Mr. Blackman testified that, although he began his employment as building inspector in June of 2008, it was his understanding that a bond was in place for the subject property on January 1, 2008. Mr. Blackman testified that, other than the lack of a bond for the completion of the infrastructure, there were no other encumbrances of which he was aware that would preclude the issuance of building permits for any of the 27 lots on the subject property.
The appellant subsequently filed an appeal in Land Court, challenging the Town's denial of the building permit, and it also brought a mandamus action, in which it sought to compel the Town to enforce the bond against Bond SafeGuard. Attorney George Kiritsy, who represented the appellant in the Land Court proceedings, testified regarding those proceedings, which were still pending at the time of the hearing of these appeals. Steven's father, Robert Gallo ("Robert"), who was also a principal in Fox Gate, LLC, likewise testified. Robert stated that when he bid on the subject property, he understood that it was ready for building permits to be issued. Robert testified that if he had known that the Town would not issue building permits for the subject property until the posting of a bond for the completion of the infrastructure, he would have bid significantly less than $1,850,000. Robert also stated that the cost to complete the infrastructure at the subject property, in his estimation, was approximately $500,000.
The appellant presented its valuation evidence primarily through the testimony and summary appraisal report of its real estate appraisal witness, Joseph Flanagan. Mr. Flanagan is a licensed real estate appraiser with over 22 years of appraisal experience. Based on his credentials and experience, and in the absence of objection from the appellee, the Board qualified Mr. Flanagan as an expert in real estate valuation.
Mr. Flanagan inspected the subject property in April of 2010 in preparation for his valuation. Prior to beginning his valuation of the subject property, Mr. Flanagan offered his opinion of its highest and best use. He testified that even though it would be more profitable to sell the subject property's lots individually than in bulk, he considered having buyers for all 27 lots to be too extraordinary an assumption. Mr. Flanagan therefore considered the bulk sale of the lots for development as a subdivision to be the subject property's highest and best use for fiscal year 2009. For fiscal year 2011, because of a decline in the real estate market, it was Mr. Flanagan's opinion that the highest and best use of the subject property was to hold it for development until the market improved.
Mr. Flanagan next selected a valuation methodology. He declined to use the cost approach because the subject property was mostly unimproved. Because of a lack of comparable sales of undeveloped land, and because Mr. Flanagan concluded that the most probable buyer of a property like the subject property would be a developer who would acquire the subject property for development and sale of the lots and/or homes, he considered the income approach to be the most reliable method with which to value the subject property.
Specifically, Mr. Flanagan selected the discounted cash flow technique, which is a valuation methodology that calculates net operating income from the present date forward, for a certain period of years, to identify a net present value. See generally, Appraisal institute, the appraisal of real estate 539-41 (13th ed. 2008) (discounted cash flow method relies on "forecasting income, vacancy, operating and capital expenses, and equity dividend (if appropriate) over ownership periods of 5 to 15 years").
Mr. Flanagan began his discounted cash flow analysis by conducting a comparative sales analysis of bulk sales of comparable land development projects for the purpose of extracting retail lot values. His first comparable project ("Project One") was located in Millbury and was an 18-lot subdivision. Project One sold for $1,400,000 on September 2, 2004. The development of Project One began in 2005 and was completed that year. Project One featured detached, single-family homes ranging in size from 1,638 to 2,813 square feet in living area, with the majority containing approximately 1,800 square feet of finished living area, while lot sizes were 13,000 square feet.
Seventeen of the lots/homes in Project One were sold over the 26-month period beginning in April of 2005 and ending in June of 2007, for an absorption rate of 7.85 units per year. The 18th home was reserved by the developer and later sold on July 22, 2011. Sale prices in Project One began at $387,900, and the final property sold for $364,900.
Mr. Flanagan's second comparable project ("Project Two") was a 31-lot subdivision, also located in Millbury. Project Two sold on August 29, 2002 for $1,450,000. The development of Project Two began in 2004, and featured detached, single-family homes ranging in size from 2,186 to 2,686 square feet of finished living area, with lot sizes of approximately 20,000 square feet. Sales of the homes in Project Two began in February of 2005 and the most recent sale prior to the hearing of these appeals occurred in November of 2009, for an overall absorption rate of 3.5 units per year. As of the time of the hearing of these appeals, eight lots remained unsold at Project Two.
Mr. Flanagan's third comparable project ("Project Three") was a 28-lot subdivision located in the neighboring town of Northbridge. The development of Project Three was completed in 2004, and featured detached, single-family homes ranging in size from 2,500 to 3,450 square feet of finished living area. Sales commenced in November of 2004, and the most recent sale prior to the hearing of these appeals occurred on June 18, 2010, for an overall absorption rate of 3.6 units per year. Sale prices ranged from $470,000 to $583,500. As of the time of the hearing of these appeals, four lots remained unsold at Project Three.
Based on his three comparable development projects, Mr. Flanagan concluded that four lot sales per year was a reasonable absorption rate. He further concluded that, as of January 1, 2008, the fair cash value for a single-family lot was $115,000. Because of the steep decline in the real estate market following that date, Mr. Flanagan concluded that the fair cash value for a single-family house lot as of January 1, 2010 was $50,000.
Having concluded that four lots per year would sell for either $115,000 or $50,000, the next step in Mr. Flanagan's discounted cash flow analysis was the determination of appropriate expenses. According to Mr. Flanagan, local marketing and commission costs averaged 5% of annual gross sales, so he adopted that figure to account for those costs. Based on his own experience with similar subdivisions, Mr. Flanagan opined that 0.5% of annual gross sales was a reliable estimate of administrative and overhead costs as well as miscellaneous costs, so he adopted that figure for those categories of expenses.
Based on the average assessed values of the individual lots in the subject property and the applicable tax rates, Mr. Flanagan determined a tax burden of $1,449 per lot for fiscal year 2009 and $1,539 per lot for fiscal year 2011.
To assist in the determination of engineering and architecture expenses and infrastructure completion costs - including a top coat of asphalt for streets and sidewalks, landscaping, and the installation of street lighting - Mr. Flanagan consulted the Marshall & Swift Valuation Service ("Marshall & Swift"). Based on data contained in Marshall & Swift, Mr. Flanagan estimated remaining costs to complete the roads, including a top coat of asphalt, lighting, and engineering expenses, to be $449,803 for fiscal year 2009 and $434,886 for fiscal year 2011.
Mr. Flanagan incorporated the developer's expected profit into his discount rate, and to estimate that rate, he consulted the Korpacz Real Estate Investor Survey ("Korpacz") and RealtyRate.com. Information contained in Korpacz indicated that the developer's expected returns ranged from 10 to 25%, with an average of 17.72%, while the data contained on RealtyRate.com indicated rates ranging from 13.24 to 30.76%, with an average of 21.12%. Based on this data, Mr. Flanagan ultimately selected a discount rate of 17% for fiscal year 2009. According to Mr. Flanagan, the data contained on RealtyRate.com indicated a decline in the average discount rate for fiscal year 2011, and therefore, for that year, he used a discount rate of 11%.
After incorporating all of these figures into his discounted-cash flow analysis, Mr. Flanagan's final opinion of fair cash value for the subject property for fiscal year 2009 was $1,170,000, and his final opinion of its fair cash value for fiscal year 2011 was $320,000.
Mr. Flanagan testified that, for both of the fiscal years at issue, his determination of the subject property's highest and best use, and fair cash values, was predicated on the assumption that building permits could not have been issued for the subject property. He stated that if building permits could have been issued, his conclusions as to the fair cash value of the subject property would most likely have increased. Mr. Flanagan also testified that if building permits could have been issued, he would have used both sales-comparison and discounted cash flow analyses to value the subject property.

The Assessors' Case-in-Chief
The assessors presented their case-in-chief through the testimony and summary appraisal report of their real estate valuation witness, Mark S. Reenstierna. Mr. Reenstierna is a licensed real estate appraiser with over 25 years of appraisal experience. Based on his credentials and experience, and in the absence of objection from the appellant, the Board qualified Mr. Reenstierna as an expert in real estate valuation.
To begin his valuation analysis, Mr. Reenstierna first determined the highest and best use of the subject property. Mr. Reenstierna noted that properties located in the neighborhood of the subject property were primarily developed for single-family residential uses. He also considered the subject property as vacant and as improved, and concluded that its highest and best use was as a 27-lot residential subdivision.
He next considered which valuation approach to use in valuing the subject property. Mr. Reenstierna explained that because his goal in appraising the subject property was to determine the retail value of each lot, he did not believe that the cost or income-capitalization approaches were appropriate valuation methodologies. Mr. Reenstierna selected the sales-comparison approach to value because, he noted, it is particularly useful for valuing properties that are sold on a per-lot basis.
For fiscal year 2009, Mr. Reenstierna selected five properties that were sold in Millbury in arm's-length transactions between March and November of 2007. Relevant information about those five properties is contained in the following table:
Address Sale Date Sale Price Lot Size
Lot 137 Curve St. 3/26/07 $100,000 34,653
1 Elmwood Trce. 4/06/07 $110,000 12,500
133 Elm St. 7/25/07 $87,500 21,496
86 S. Main St. 10/31/07 $110,000 15,038
Lot 137 Curve St. 11/15/07 $140,000 34,653

Before adjustments, the sale prices of Mr. Reenstierna's five comparable properties ranged from $87,500 to $140,000. Mr. Reenstierna made adjustments to account for differences in location, and following those adjustments, the sale prices ranged from $98,000 to $115,000.
Based on his sales-comparison analysis, Mr. Reenstierna concluded that, for fiscal year 2009, the indicated value of the average 20,000-square foot lot contained within the subject property was $110,000, with the larger lots having a slightly higher value. To determine the retail value of each lot, Mr. Reenstierna deducted the cost to complete the infrastructure within the subdivision, which he estimated at $480,000, along with an additional $50,000 to account for miscellaneous expenses. Mr. Reenstierna then divided the total expense amount of $530,000 by 27, and deducted the resulting amount - $19,630 - from the indicated value of each lot to arrive at his final estimates of fair cash value. Mr. Reenstierna attributed no independent value to the subject property's four open parcels, but instead included the value associated with those parcels within the values of the other 27 lots. The fair cash values determined by Mr. Reenstierna for each of the subject property's individual lots for fiscal year 2009 are set forth in the following table.

Mr. Reenstierna's FY 09 Fair Cash Values
Map Lot Lot #
on Plan St. #
Lot Size
(sq. ft.) Fair Cash
Value ($)
48 78 1 2 22,267 90,370
48 79 2 4 23,202 90,370
48 80 3 6 23,204 90,370
56 4 4 8 20,001 90,370
56 5 5 10 20,002 90,370
56 6 6 12 20,002 90,370
56 7 7 14 39,168 110,370
56 8 8 16 1.92 ac. 130,370
56 10 9 18 1.86 ac. 130,370
56 11 10 20 1.12 ac. 110,370
56 12 11 22 41,485 110,370
56 13 12 24 1.28 ac. 110,370
48 86 13 26 1.26 ac. 110,370
48 85 14 28 22,720 90,370
48 84 15 1 20,000 90,370
48 83 16 3 20,218 90,370
48 82 17 5 20,001 90,370
48 81 18 7 20,002 90,370
56 22 19 9 20,002 90,370
56 21 20 11 20,001 90,370
56 20 21 13 20,001 90,370
56 19 22 15 20,001 90,370
56 18 23 17 20,002 90,370
56 17 24 19 20,001 90,370
56 16 25 21 20,002 90,370
56 15 26 23 20,002 90,370
56 14 27 25 20,002 90,370
56 9 Open
Space 0 1,658 0
56 23 Open
Space 0 8.5 ac. 0
56 24 Open
Space 0 1.56 ac. 0
48 89 Open
Space 0 14,141 0
Total
FY 2009 2,620,000

Accordingly, based on his sales-comparison analysis, Mr. Reenstierna's final opinion of the subject property's fair cash value for fiscal year 2009 was $2,620,000.
For fiscal year 2011, Mr. Reenstierna selected five properties that were sold in Millbury in arm's-length transactions between April of 2008 and August of 2010. Relevant information about those five properties is contained in the following table:
Address Sale Date Sale Price Lot Size
2 Taft Circle 4/22/08 175,000 31,161
0 Bayberry Lane 6/26/09 60,000 65,663
Lot B Dwinell Road 7/10/09 120,000 61,472
Unidentified Lot West Main Street 8/3/09 68,500 116,810
Lot B Ackerman Road 8/13/10 70,000 12,567

Before adjustments, the sale prices of Mr. Reenstierna's five comparable properties ranged from $60,000 to $175,000. These five properties were sold between April of 2008 and August of 2010, during which period the local real estate market was in decline. Accordingly, Mr. Reenstierna made downward adjustments to their sale prices to account for the difference in market conditions. In addition, Mr. Reenstierna made adjustments to account for differences in location. Following these adjustments, Mr. Reenstierna's comparable-sale properties ranged in sale price from $76,000 to $95,000.
Based on his sales-comparison analyses, Mr. Reenstierna concluded that the indicated value of the average 20,000 square- foot lot in the subject property was $85,000, with the larger lots having a slightly higher value. To determine the retail value of each lot, Mr. Reenstierna deducted the cost to complete the infrastructure within the subdivision, which he estimated at $480,000, along with an additional $50,000 to account for miscellaneous expenses. Mr. Reenstierna then divided the total expense amount of $530,000 by 27, and deducted the resulting amount - $19,630 - from the indicated value of each lot to arrive at his final estimates of fair cash value. Mr. Reenstierna attributed no independent value to the subject property's four open parcels, but instead included the value associated with those parcels within the values of the other 27 lots. The fair cash values determined by Mr. Reenstierna for each of the subject property's individual lots for fiscal year 2011 are set forth in the following table.

Mr. Reenstierna's FY 2011 Fair Cash Values
Map Lot Lot #
on Plan St. #
Lot Size
(sq. ft.) Fair Cash
Value ($)
48 78 1 2 22,267 85,000
48 79 2 4 23,202 85,000
48 80 3 6 23,204 85,000
56 4 4 8 20,001 85,000
56 5 5 10 20,002 85,000
56 6 6 12 20,002 85,000
56 7 7 14 39,168 115,000
56 8 8 16 1.92 ac. 115,000
56 10 9 18 1.86 ac. 115,000
56 11 10 20 1.12 ac. 100,000
56 12 11 22 41,485 100,000
56 13 12 24 1.28 ac. 100,000
48 86 13 26 1.26 ac. 100,000
48 85 14 28 22,720 85,000
48 84 15 1 20,000 85,000
48 83 16 3 20,218 85,000
48 82 17 5 20,001 85,000
48 81 18 7 20,002 85,000
56 22 19 9 20,002 85,000
56 21 20 11 20,001 85,000
56 20 21 13 20,001 85,000
56 19 22 15 20,001 85,000
56 18 23 17 20,002 85,000
56 17 24 19 20,001 85,000
56 16 25 21 20,002 85,000
56 15 26 23 20,002 85,000
56 14 27 25 20,002 85,000
56 9 Open
Space 0 1,658 0
56 23 Open
Space 0 8.5 ac. 0
56 24 Open
Space 0 1.56 ac. 0
48 89 Open
Space 0 14,141 0
Total FY 2011 1,915,000

Accordingly, based on his sales-comparison analysis, Mr. Reenstierna's final opinion of the subject property's fair cash value for fiscal year 2011 was $1,915,000.

The Board's Ultimate Findings of Fact
Based on the evidence presented, the Board found that on January 1, 2008, a bond in the amount of $474,000 was in place for the completion of road work and other infrastructure within the subject property. Accordingly, the Board found that there was no legal impediment precluding the issuance of building permits on that date. Similarly, the Board found that, on January 1, 2010, building permits could have been issued for the subject property if the appellant had completed the road work and other infrastructure within the subject property, or posted a bond with the Town for its completion. Therefore, the Board found that the only impediment to the issuance of building permits for the subject property on January 1, 2010 was the appellant's failure to perform the necessary work or post bond for the completion of the subject property's infrastructure with the Town. As will be discussed further in the Opinion, infra, the Board found that the appellant could not cite its own failure to act as an impediment to the issuance of building permits.
Having found that building permits could have been issued for the subject property on January 1, 2008 and, but for the appellant's failure to act, on January 1, 2010, the Board by and large adopted the approach used by Mr. Reenstierna, which was also the approach adopted by the Board in GD Fox Meadow, LLC v. Assessors of Westwood, Mass. ATB Findings of Fact and Reports 2011-501, 518 ("GD Fox Meadow, LLC"). Specifically, the Board found that the highest and best use of the subject property for both of the fiscal years at issue was as 27 residential lots within a subdivision, to be sold individually to multiple purchasers, rather than in bulk to a single, wholesale purchaser. The Board further found, like Mr. Reenstierna, that the sales-comparison approach was the most reliable method with which to value the subject property.
In addition, the Board agreed with Mr. Reenstierna's decision to subtract the costs to complete the subject property's infrastructure. However, rather than utilizing his estimate of $530,000, the Board adopted the amount of the bond in place - $474,000 - along with Mr. Reenstierna's estimate of $50,000 for miscellaneous expenses, for a total of $524,000, or a deduction of $19,407 per lot for each of the 27 lots to be sold for both of the fiscal years at issue.
As for the four lots set aside as open land, the Board disagreed with Mr. Flanagan's and Mr. Reenstierna's opinions that they had no independent value. The Board found that each lot designated as open space in fact had independent value. Because neither party offered evidence of the fair cash values of these four lots, and recognizing the presumptive validity of the assessments, the Board found that the fair cash value of each of the open space lots was its assessed value for both of the fiscal years at issue, with the exception of the parcel identified as Map 48, Lot 89. The evidence regarding this lot, including the testimony and property record cards, indicated that the assessors made a clerical error by using a "c" factor of 1.0 for that parcel, instead of a "c" factor of 0.10, as they had for the other three open lots, resulting in an overvaluation of this lot by a factor of ten. Accordingly, for fiscal year 2009, the Board found that the fair cash value of the parcel identified as Map 48, Lot 89 was $11,370, as opposed to its assessed value of $113,700. For fiscal year 2011, the Board found that the fair cash value of that parcel was $9,040, as opposed to its assessed value of $90,400.
After making these adjustments to the fair cash values determined by Mr. Reenstierna, the Board's final findings of the subject property's fair cash value was $2,644,400 for fiscal year 2009 and $1,928,570 for fiscal year 2011. The following tables contain the Board's findings of fair cash value for each lot within the subject property for both of the fiscal years at issue.

Board's FY 2009 Fair Cash Values and Abatements
Map Lot Lot #
on Plan St. #
Lot Size
(sq. ft.) Assessed
Value ($) Board's Fair Cash Value ($) Value Abated ($) Abatement
@ $11.72/
$1,000 48 78 1 2 22,267 118,900 90,590 28,310 331.79 48 79 2 4 23,202 119,200 90,590 28,610 335.31 48 80 3 6 23,204 119,200 90,590 28,610 335.31 56 4 4 8 20,001 118,100 90,590 27,510 322.42 56 5 5 10 20,002 118,100 90,590 27,510 322.42 56 6 6 12 20,002 118,100 90,590 27,510 322.42 56 7 7 14 39,168 125,400 110,590 14,810 173.57 56 8 8 16 1.92 ac. 135,200 130,590 4,610 54.03 56 10 9 18 1.86 ac. 135,600 130,590 5,010 58.72 56 11 10 20 1.12 ac. 128,100 110,590 17,510 205.22 56 12 11 22 41,485 126,200 110,590 15,610 182.95 56 13 12 24 1.28 ac. 130,800 110,590 20,210 236.86 48 86 13 26 1.26 ac. 130,300 110,590 19,710 231.00 48 85 14 28 22,720 119,100 90,590 28,510 334.14 48 84 15 1 20,000 118,100 90,590 27,510 322.42 48 83 16 3 20,218 118,200 90,590 27,610 323.59 48 82 17 5 20,001 118,100 90,590 27,510 322.42 48 81 18 7 20,002 118,100 90,590 27,510 322.42 56 22 19 9 20,002 118,100 90,590 27,510 322.42 56 21 20 11 20,001 118,100 90,590 27,510 322.42 56 20 21 13 20,001 118,100 90,590 27,510 322.42 56 19 22 15 20,001 118,100 90,590 27,510 322.42 56 18 23 17 20,002 118,100 90,590 27,510 322.42 56 17 24 19 20,001 118,100 90,590 27,510 322.42 56 16 25 21 20,002 118,100 90,590 27,510 322.42 56 15 26 23 20,002 118,100 90,590 27,510 322.42 56 14 27 25 20,002 118,100 90,590 27,510 322.42 56 9 Open
Space 0 1,658 7,100 7,100 0 0 56 23 Open
Space 0 8.5 ac. 16,800 not appealed ___ ___ 56 24 Open
Space 0 1.56 ac. 13,300 not appealed ___ ___ 48 89 Open
Space 0 14,141 113,700 11,370 102,330 1,199.31 Total
FY 2009 3,398,510 2,644,400 754,100 8,838.10

Board's FY 2011 Fair Cash Values and Abatements
Map Lot Lot #
on
Plan St. #
Lot Size
(sq. ft.) Assessed
Value ($) Board's Fair Cash Value ($) Value Abated ($) Abatement ($) 48 78 1 2 22,267 95,100 65,590 29,510 429.37 48 79 2 4 23,202 95,400 65,590 29,810 433.74 48 80 3 6 23,204 95,400 65,590 29,810 433.74 56 4 4 8 20,001 94,300 65,590 28,710 417.73 56 5 5 10 20,002 94,300 65,590 28,710 417.73 56 6 6 12 20,002 94,300 65,590 28,710 417.73 56 7 7 14 39,168 101,000 80,590 20,410 296.97 56 8 8 16 1.92 ac. 109,500 95,590 13,910 202.39 56 10 9 18 1.86 ac. 109,900 95,590 14,310 208.21 56 11 10 20 1.12 ac. 103,500 80,590 22,910 333.34 56 12 11 22 41,485 101,700 80,590 21,110 307.15 56 13 12 24 1.28 ac. 105,900 80,590 25,310 368.26 48 86 13 26 1.26 ac. 105,400 80,590 24,810 360.99 48 85 14 28 22,720 95,200 65,590 29,610 430.83 48 84 15 1 20,000 94,300 65,590 28,710 417.73 48 83 16 3 20,218 94,400 65,590 28,810 419.19 48 82 17 5 20,001 94,300 65,590 28,710 417.73 48 81 18 7 20,002 94,300 65,590 28,710 417.73 56 22 19 9 20,002 94,300 65,590 28,710 417.73 56 21 20 11 20,001 94,300 65,590 28,710 417.73 56 20 21 13 20,001 94,300 65,590 28,710 417.73 56 19 22 15 20,001 94,300 65,590 28,710 417.73 56 18 23 17 20,002 94,300 65,590 28,710 417.73 56 17 24 19 20,001 94,300 65,590 28,710 417.73 56 16 25 21 20,002 94,300 65,590 28,710 417.73 56 15 26 23 20,002 94,300 65,590 28,710 417.73 56 14 27 25 20,002 94,300 65,590 28,710 417.73 56 9 Open
Space 0 1,658 13,600 13,600 0 0 56 23 Open
Space 0 8.5 ac. 5,200 not appealed __ ___ 56 24 Open
Space 0 1.56 ac. 10,800 not appealed __ ___ 48 89 Open
Space 0 14,141 90,400 9,040 81,360 1,183.79 Total
FY 2011 2,746,900 1,928,570 802,330 11,673.92
The Board thus found that the appellant met its burden of proving that the subject property was overvalued for both of the fiscal years at issue. Accordingly, for fiscal year 2009, the Board issued decisions for the appellant, with the exception of Docket No. F300171, relating to the parcel identified as Map 56, Lot 9, in which the Board issued a decision for the appellee. For the fiscal year 2011 consolidated appeal, Docket No. F311482, the Board's decision was for the appellant, except insofar as it related to the parcel identified as Map 56, Lot 9, in which its decision was for the appellee. The Board granted abatements totaling $8,838.05 for fiscal year 2009 and $11,673.92 for fiscal year 2011.

OPINION
The assessors are required to assess real estate at its fair cash value as of the first day of January preceding the start of the fiscal year. G.L. c. 59, §§ 2A and 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 appellants have 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).
"Prior to valuing the subject property, its highest and best use must be ascertained, which has been defined as the use for which the property would bring the most." Tennessee Gas Pipeline Co. v. Assessors of Agawam, Mass. ATB Findings of Fact and Reports 2000-859, 875 (citing Conness v. Commonwealth, 184 Mass. 541, 542-43 (1903)); Irving Saunders Trust v. Assessors of Boston, 26 Mass. App. Ct. 838, 843 (1989)(and the cases cited therein). As defined in the authoritative valuation treatise, The Appraisal Institute, The Appraisal of Real Estate 277-78 (13th ed. 2008), highest and best use is "[t]he reasonably probable and legal use of vacant land . . . that is physically possible, appropriately supported, and financially feasible and that results in the highest value." See also Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 687 (1972).
In the present appeals, the Board found and ruled that, for ad valorem tax purposes, the subject property's highest and best use was as 27 residential building lots to be sold to multiple individual purchasers and not as a bulk sale of lots to a single, wholesale purchaser. See GD Fox Meadow, LLC, Mass. ATB Findings of Fact and Reports at 2011-515 (finding that, for ad valorem tax purposes, highest and best use of a 19-lot subdivision was the sale of each lot to multiple individual purchasers, and not the bulk sale of all 19 lots to one purchaser). The Board's conclusion as to highest and best use was based on numerous factors, including the fact that the infrastructure associated with the subject property was substantially complete, lacking only a top coat of asphalt for the roadways and sidewalks, lighting improvements, and landscaping. The subject property was in no way a paper subdivision, but one that was well underway and substantially complete. See id.
The Board's conclusion as to highest and best use was also based in part on its subsidiary findings that, subject to certain conditions precedent, building permits could have been issued for both of the fiscal years at issue. The evidence showed that, as of January 1, 2008, a bond was in place for the completion of the subject property's infrastructure, and there was no legal impediment to the issuance of building permits on that date. In addition, the evidence showed that on January 1, 2010, the only impediment to the issuance of building permits for the subject property was the lack of a bond to secure its completion. Had the appellant posted a bond, building permits could also have been issued for fiscal year 2011, and the Board found and ruled that the appellant could not cite its own failure to act as a legal impediment to the issuance of building permits. See Mark Nelson, Trustee/P.O.A. for George Nelson v. Assessors of Wilmington, Mass. ATB Findings of Fact and Reports 2013-320, 339 (rejecting taxpayer's argument that property at issue was nearly valueless because an occupancy permit could not be issued until the completion of approximately $20,000 worth of work on the property where the taxpayer's failure to perform the work was the only impediment to the issuance of the permit).
The Board's findings with regard to highest and best use in these appeals, and its valuation approach in general, largely mirrored its conclusions in GD Fox Meadow, LLC, in which it found and ruled that, for ad valorem tax purposes, the highest and best use of a 19-lot subdivision was the sale of each individual lot to multiple purchasers rather than a bulk sale of the lots to one purchaser, and that a sales-comparison approach was the most reliable method with which to value the property at issue in that case. The appellant attempted to distinguish the present appeals from GD Fox Meadow, LLC on the grounds that the subdivision in that case was a "turn-key" subdivision, with lots being actively marketed and some lots having already sold. See GD Fox Meadow, LLC, Mass. ATB Findings of Fact and Reports at 2011-515. In contrast, the appellant argued that, here, no lots were being actively marketed, none had been sold, and additional infrastructure work was required to complete the subdivision.
However, the Board did not find the appellant's arguments persuasive. The relevant inquiry is not whether lots within the subdivision had sold or were listed for sale, but rather, whether the lots were saleable as residential lots ripe for building permits, and the Board found and ruled that they were. See Cnossen v. Assessors of Uxbridge, Mass. ATB Findings of Fact and Reports, 2002-675, 686 (finding that where eight lots out of an incomplete, 19-lot industrial subdivision bordered a completed road, they were individually saleable). Moreover, and as will be discussed in greater detail below, infra, to the extent that the subject property's infrastructure was incomplete, the Board accounted for this fact by subtracting the costs to complete the infrastructure to arrive at the subject property's fair cash value. Accordingly, the Board rejected the appellant's arguments as well as its valuation analysis, which was premised upon a highest and best use that involved the bulk sale of the subject property's lots to a single wholesale purchaser.
After making a determination as to the highest and best use of the subject property, the Board next selected an appropriate valuation methodology. Generally, real estate valuation experts, the Massachusetts courts, and this Board rely upon three approaches to determine the fair cash value of property: income capitalization; sales comparison; and cost reproduction. Correia v. New Bedford Redevelopment Auth., 375 Mass. 360, 362 (1978). The cost approach is most appropriate for special purpose properties or other properties which are not bought and sold frequently enough to generate reliable market data. See Oxford v. Oxford Water Co., 391 Mass. 581, 589 (1984); Fairview Group Investments and Charles Geilich, G.P. v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 1997-93, 115.
The income-capitalization method is frequently applied to income-producing properties. See Taunton Redevelopment Associates v. Assessors of Taunton, 393 Mass. 293, 295 (1984). However, in cases involving multiple buildable lots or units within a substantially completed development, the Board has found that the sales-comparison approach is the most reliable method to determine fair cash value for ad valorem tax purposes. See Cnossen, Mass. ATB Findings of Fact and Reports at 2002-688 ("For unimproved lots within an existing subdivision, a comparable sales approach is an appropriate method for estimating their value.") (citing The Appraisal Institute, The Appraisal of real estate 419 (12th ed., 2001); GD Fox Meadow, LLC, Mass. ATB Findings of Fact and Reports at 2011-512 (finding that sales-comparison approach was the proper way to value multiple buildable lots within a subdivision and rejecting a valuation analysis which treated "the lots as inventory within a subdivision to one purchaser.").
Moreover, the majority of other courts which have considered this issue have rejected valuation approaches premised on bulk-sale scenarios where the property at issue involves units or lots that have been carved out for tax purposes and are substantially marketable or market ready. See JCO Properties v. Board of Review for Scott County, Iowa 2010 Iowa App. Lexis 1162 (2010)(rejecting the application of an absorption discount in case at bar and distinguishing it from prior cases in which lots had not yet been subdivided or placed on the market); Chesterfield Associates v. Edison Township, 13 N.J. Tax 195, 211, n. 7 (1993) (rejecting argument by owner of a 95-townhouse development that the value of each townhouse should be reduced to reflect the cumulative effect of all 95 townhouses being offered for sale at once); St. Leonard Shores Joint Venture v. Supervisor of Assessments of Calvert County, 397 Md. 441, 446 (1986) (rejecting developer's argument that a "sell out" period of its 105-lot subdivision should be considered for purposes of measuring fair cash value). These cases recognize that fair cash value, for tax purposes, is the amount that a hypothetical buyer will pay for a property. See Board of Equalization v. Utah State Tax Comm'n ex rel. Benchmark, Inc., 864 P.2d 882, 888 (Utah 1993) ("[f]or tax purposes, it is irrelevant that a 'willing buyer' for each lot taxed does not in fact exist because the relevant taxing statute contemplates nothing more than a hypothetical sale to a hypothetical willing buyer during the tax year."). These cases also recognize that a proper sales-comparison analysis will account for issues of "oversupply" in the market. See St. Leonard Shores Joint Venture, 397 Md. at 446 ("[T]he condition of the market is adequately reflected in the price that the hypothetical buyer would be willing to pay.").
In addition, granting a discount to owners of multiple lots would likely result in disproportionate and unconstitutional taxation. The Supreme Judicial Court has held that the Massachusetts Constitution "'forbid[s] the imposition of taxes upon one class of persons or property at a different rate from that which is applied to other classes,'" Bettigole, et. al v. Assessors of Springfield, 343 Mass. 223, 230 (1961) (quoting Opinion of the Justices, 332 Mass. 769, 777 (1955)), and courts in states with similar constitutional provisions have ruled that those provisions require owners of multiple parcels to be taxed in the same manner as owners of single parcels. For example, in Mathias v. Department of Revenue, 312 Ore. 50, 66 (1991), the Supreme Court of Oregon ruled that a state statute which allowed for a "discount" in taxable value to owners of four or more residential lots violated state constitutional requirement of uniform taxation. See also JCO Properties, 2010 Iowa App. Lexis 1162 (ruling that "a developer owning multiple lots should not be able to reap a benefit for taxation purposes that an individual owner of the same lot would not be able to realize."). Accordingly, the Board rejected the valuation methodology espoused by the appellant in these appeals as it improperly incorporated an absorption discount.
Moreover, the cases cited by the appellant in support of its valuation methodology were inapposite. The appellant cited Hall v. Assessors of Barnstable, Mass. ATB Findings of Fact and Reports 1997-1, 18 for the proposition that Board has approved the "development" approach to appraising subdivisions in certain circumstances. However, in that case, the Board expressly relied on the sales-comparison approach to reach its determination of fair cash value, although the taxpayer in the case had offered a "development" valuation analysis featuring the discounted cash flow technique, much like the valuation analysis presented in this case by Mr. Flanagan. Id. at 1997-33. Similarly, there was no indication in Meachen v. Assessors of Sudbury, Mass. ATB Findings of Fact and Reports 2001-211 ("Meachen"), that a discounted cash flow analysis informed the Board's findings of value. Rather, the Board accepted the assessors' valuation, which was derived by adding the sum of the individual values of a number of parcels as set forth in a subdivision plan which had been filed for the property at issue. Id. at 2001-222. In addition, the appellant cited Clifford v. Algonquin Gas Transmission Co., 413 Mass. 809 (1992), which involved the valuation of undeveloped land taken by eminent domain for the purpose of determining damages. The question before the Court in that case was whether the trial judge had abused his discretion in allowing into evidence the testimony of the plaintiff's valuation expert, who had valued the property using a "subdivision development" methodology which incorporated an absorption rate and a developer's profit, like the approach used by Mr. Flanagan here. Id. at 813-14. The Court in that case did not endorse the methodology used by the plaintiff's expert as the preferred method of valuing undeveloped property, but rather, merely ruled that the trial judge did not abuse his discretion in allowing the testimony because it was not so speculative as to preclude its submission to a jury. Id. at 821. Even the expert whose testimony was at issue in that case admitted that he had only used the "subdivision development" methodology because of the lack of sales of comparable properties. Id. at 813. Accordingly, here, the Board rejected the arguments made by the appellant as well as the methodology used by Mr. Flanagan - a discounted cash flow analysis which incorporated an absorption rate - and found and ruled that the sales-comparison approach was the most appropriate method with which to value the subject property.
"[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982). Actual sales of the subject property generally "furnish strong evidence of market value," however, the sale price recited in the deed is not conclusive evidence of fair cash value. Id. at 682-83. The burden of proof that the price was fixed fairly rests with the proponent of the sale; but there is a rebuttable presumption that the price was freely established. Epstein v. Boston Housing Authy., 317 Mass. 297, 300-01 (1944); see also Thorndike Properties of Massachusetts II, LLC v. Assessors of Plymouth, Mass. ATB Findings of Fact and Reports 2006-127, 135 ("[The evidence revealed that] the sale price recited in the deed was not indicative of [the subject lots'] fair cash value and . . . the appellant had not met its burden of showing [otherwise; accordingly, the Board did not rely on price in the deed].").
The Board in this case did not rely on the actual bulk sale of the subject property to inform its opinion of fair cash value. The evidence indicated that the appellant purchased the subject property at a foreclosure auction in the fall of 2008, and thus the sale was not an arm's-length transaction. See DSM Realty Trust v. Assessors of Andover, 391 Mass. 1014 (1984) (rescript opinion) ("A foreclosure sale inherently suggests compulsion to sell[.]"). Further, the sale of the subject property to the appellant was a bulk-sale of the lots, and as discussed above, because of its conclusions regarding highest and best use, the Board found that the actual sale price of the subject property did not provide a reliable indication of the fair cash values of each individual lot. See GD Fox Meadow, LLC, Mass. ATB Findings of Fact and Reports at 2011-511 (placing no weight on the actual sale price of the property at issue because it was a bulk sale of the lots and infrastructure to one purchaser, which was contrary to the Board's conclusion that the highest and best use of the property was the retail sale of the lots to multiple individual purchasers).
Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue. McCabe v. Chelsea, 265 Mass. 494, 496 (1929). When comparable sales are used, however, adjustments 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 in the elements of comparison are made to the price of each comparable property." Appraisal Institute, The Appraisal of real estate at 322.
In the present appeals, the Board found and ruled that the sales-comparison properties selected by Mr. Reenstierna were sufficiently comparable to the subject property to provide reliable evidence of its fair cash value. Further, the Board found that he made appropriate adjustments to his selected properties' sale prices to account for differences between them and the subject property, such as differences in location. Accordingly, the Board adopted the fair cash values determined by Mr. Reenstierna for each of the subject property's 27 individual lots that were designated for construction.
However, the Board disagreed with both Mr. Flanagan's and Mr. Reenstierna's conclusions that the four lots designated as open space within the subject property had fair cash values of zero.
[T]he fact that land is not saleable does not mean it must have no 'fair cash value[,]' . . . If fair cash value cannot be ascertained by reference to sales of comparable property, it is proper to determine fair cash value from the intrinsic value of the property, including 'any and all the uses to which the property is adapted in the hands of any owner.'

Mashpee Wampanoag Indian Tribal Council, Inc. v. Assessors of Mashpee, 370 Mass. 420, 421 (1980) (citing Beale v. Boston, 166 Mass. 53, 55 (1896)). See also Cline v. Assessors of Canton, Mass. ATB Findings of Fact and Reports 1996-677, 681 (rejecting taxpayer's contention that property surrounded by wetlands, and therefore impacted by regulations governing development on wetlands, was "virtually worthless."). On the contrary, the Board found that these four lots contributed value as extra land within the subject property, even though they were not slated for sale, and accordingly, found that they had independent value.
Because neither party offered evidence of the fair cash values of the four open space lots, and recognizing the presumptive validity of the assessments, the Board found that the fair cash value of each of the lots was its assessed value for both fiscal years at issue, with the exception of the parcel identified as Map 48, Lot 89. The evidence regarding that lot, including the testimony and property record cards, indicated that the assessors made a clerical error by using a "c" factor of 1.0 for that parcel, instead of a "c" factor of 0.10, as they had for the other three open space lots. This error resulted in an overvaluation of that parcel by a factor of ten. Accordingly, for fiscal year 2009, the Board found that the fair cash value of the parcel identified as Map 48, Lot 89 was $11,370, as opposed to its assessed value of $113,700, and for fiscal year 2011, the Board found that its fair cash value was $9,040, as opposed to its assessed value of $90,400.
In addition, the Board agreed with Mr. Reenstierna's conclusion that the costs to complete the subject property's infrastructure should be subtracted from estimated values to arrive at the subject property's fair cash value. However, rather than Mr. Reenstierna's estimated amount of $480,000, the Board found that the best evidence of the cost to complete was the amount of the bond that had been in place - $474,000 - along with $50,000 for miscellaneous expenses, for a total of $524,000. After subtracting that amount from its preliminary fair cash values, the Board's final findings of fair cash value for the subject property were $2,644,400 for fiscal year 2009 and $1,928,570 for fiscal year 2011.
In making its various findings and rulings in these appeals, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation suggested. Rather, the Board could accept those portions of the evidence that it determined had more convincing weight. Foxboro Associates, 385 Mass. at 682; New Boston Garden Corp., 383 Mass. at 469. "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).
In conclusion, on the basis of all of the evidence, the Board found and ruled that the appellant met its burden of proving that the assessed value of the subject property exceeded its fair cash value for both of the fiscal years at issue. Accordingly, the Board issued decisions for the appellant in these appeals except for the appeals involving the parcel identified as Map 56, Lot 9, (Docket No. F300171 for fiscal year 2009 and Docket No. F311482, insofar as it related to that parcel, for fiscal year 2011), and it granted abatements totaling $8,838.10 for fiscal year 2009 and $11,673.92 for fiscal year 2011.
THE APPELLATE TAX BOARD

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

A true copy,

Attest: ____________________________
Clerk of the Board

 As will be discussed infra, the relatively higher valuation of the open space parcel identified as Map 48, Lot 89 appears to have been the result of a clerical error on the part of the assessors.  
 See footnote 1, supra.  
 Unlike the fiscal year 2009 appeals, the appellant's appeals for fiscal year 2011 were consolidated into the single Docket No. F311482.  
 Although this approach was referred to as a "development approach" by the Board in its findings in Meachen, that phrase did not reference a specific method of valuation, but rather was intended only to convey the Board's adoption of the number and type of parcels set forth in the subdivision plan in its determination of fair cash value in that case.  Meachen, Mass. ATB Findings of Fact and Reports at 2001-228.

ATB 2013-822

Autumn Gates Estates, LLC & Fox Gate, LLC v. Board of Assessors of the Town of Millbury (August 28, 2013)

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