GRL Realty Trust, Guy R. LeFebvre, Trustee v. Board of Assessors of the City of Lowell (August 9, 2016)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


GRL REALTY TRUST,  	  		 v.	   BOARD OF ASSESSORS OF   
GUY R. LeFEBVRE, TRUSTEE			   THE CITY OF LOWELL
					
	         
Docket No. F324696				   Promulgated:									   August 9, 2016


	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 Lowell ("appellee" or "assessors") to abate taxes on certain real estate in Lowell, owned by and assessed to GRL Realty Trust, Guy R. LeFebvre, Trustee (the "appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2014 ("fiscal year at issue").  
	Commissioner Rose heard this appeal and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, he issued a single-member decision for the appellant.  
	These findings of fact and report are made pursuant to the request under G.L. c. 58A, § 13 and 831 CMR 1.32 of the appellant.  

	Guy R. LeFebvre, pro se, for the appellant.
	
Elliot Veloso, Esq. for the appellee. 


Findings of Fact and Report

On January 1, 2013, the relevant assessment date for the fiscal year at issue, the appellant was the owner of a single condominium unit with an address of 219 Central Street, Unit 1E in Lowell (the "subject property").  For the fiscal year at issue, the assessors valued the subject property at $107,700.00 and assessed a tax thereon, at the rate of $31.75 per thousand, in the total amount of $3,419.48. The appellant paid the tax due without incurring interest. On January 27, 2014, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application for the subject property with the assessors, which they granted in part on April 14, 2014, reducing the valuation of the subject property to $67,600.00. In accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed a Petition with the Appellate Tax Board ("Board") on July 9, 2014.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
The subject property is a one-unit, 700-square-foot commercial condominium that is used for office space.  The subject property is store-front property and has a direct exit to the street as well as a second means of egress to an adjacent hall with access to the street.  
The appellant presented its appeal through his testimony as well as a comparable-sales analysis consisting of twelve purportedly comparable condominium sales in Lowell.  The appellant testified that other condominium units within the 219 Central Street building had sold in the relevant time period, including Units 1F and 1D.  However, he testified that the appellee had "coded out" -- meaning excluded from consideration for purposes of making a fair market value determination -- all sales within the 219 Central Street building that had occurred prior to February 2013, because the appellee had determined that these sales were not negotiated at arm's length.  He testified that the assessors gave him no reason for why they had deemed these sales not to be reasonable reflections of the subject property's fair market value other than their bare assertion that these sales were "coded out." 
The appellant then presented a comparable-sales analysis, which was also introduced in Lassard v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-329) and Unit 1D (Middleton v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-336.  The Board found that this evidence "showed a widespread occurrence of assessed values vastly exceeding actual sale prices." Lessard v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-329, 331; Middleton v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-336, 339. 
The appellee presented jurisdictional documents as well as the testimony of Joel Cohen, the assessor for the City of Lowell.  Mr. Cohen testified that the sale of the units within the subject property's building were "coded out" because the seller was in the process of a divorce proceeding during the times of the sales prior to February of 2013, suggesting to the appellee that the seller made these sales under financial duress.  The Presiding Commissioner found, however, that the assessors offered no credible evidence to support their assertion that the sales were not made at arm's length. 
On the basis of the evidence presented, the Presiding Commissioner found that two of the appellant's comparable-sale properties that were located in the subject property's same building and similar to the subject property's square footage - Unit 1D and Unit 1F - yielded sales that were highly persuasive evidence of the subject property's fair market value.  Based particularly on the two sales of Unit 1F -- which sold in the same month as the subject property for $30,000 and then for $40,000 on February 2, 2013, just a little over a month after the relevant assessment date -- as well as the sale of Unit 1D in December of 2011 for $33,000, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  On the basis of these sales, as adjusted, together with the other evidence of record, the Presiding Commissioner found and ruled that the fair market value for the subject property was $50,800 for the fiscal year at issue.
Accordingly, the Presiding Commissioner issued a single-member decision for the appellant and granted an abatement in the amount of $533.40.

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 at 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 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 the Board, taxpayers "'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)).
The Presiding Commissioner looked in particular at the sales of two condominium units located within the subject property's same building that were very similar in size to the subject property.  Unit 1D and Unit 1F yielded sales that were highly persuasive evidence of the subject property's fair market value.  Based particularly on the $40,000 sale of Unit 1F about a month after the relevant assessment date, as well as the sale of the same Unit 1F in November of 2011 for $30,000 and the sale of Unit 1D in December of 2011 for $33,000, the Presiding Commissioner found that the appellant met his burden of proving a fair market value for the subject property that was lower than its assessed value.  On the basis of the evidence of record, particularly the sale prices of the subject property and Units 1F and 1D, the Presiding Commissioner found and ruled that the subject property's fair market value for the fiscal year at issue was $50,800.
Accordingly, the Presiding Commissioner issued a single-member decision for the appellant and granted an abatement in the amount of $533.40.

					     THE APPELLATE TAX BOARD



				  	 By: ______________________________
				          James D. Rose, Commissioner

A true copy,

Attest: __________________________
	   Clerk of the Board

 In addition to the instant appeal involving the subject property, the Presiding Commissioner also heard on the same day appeals involving two other commercial condominium units in the same building: Unit 1B (Lassard v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-329) and Unit 1D (Middleton v. Assessors of Lowell, Mass. ATB Findings of Fact and Reports, 2016-336). The appeals were tried together and, with minor variations in the size and assessed values of the units, the evidence and operative facts are essentially the same in all three appeals. 

ATB 2016-347