Mark J. Brooks v. Board of Assessors of the Town of Worthington (January 7, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MARK J. BROOKS				v.	BOARD OF ASSESSORS OF
							THE TOWN OF WORTHINGTON

Docket No. F293514				Promulgated:
							January 7, 2009


	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 appellee to abate a tax on certain real estate in the Town of Worthington assessed to the appellant under G.L. c. 59, §§ 11 and 38 for fiscal year 2007.
	Chairman Hammond ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellant in accordance with G.L. c. 58A, § 1A.
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Mark J. Brooks, pro se, for the appellant.
	David J. Martel, Esq., for the appellee.

FINDINGS OF FACT AND REPORT

On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2006, Mark J. Brooks was the assessed owner of a 10.45-acre parcel of real estate located at 148 Lindsey Hill Road in the Town of Worthington ("subject property").  The parcel is improved with a single-family, contemporary-style home built in 1997 with 1,825 square feet of finished living area.  The home has two floors consisting of 7 rooms, including 3 bedrooms, as well as two full baths.
	For fiscal year 2007, the Board of Assessors of Worthington ("assessors") valued the subject property at $276,900 and assessed a tax thereon at a rate of $12.07 per thousand for a total amount of $3,342.18.  Appellant did not timely pay the tax due and accrued $10.36 in interest.  However, the average of the tax assessed for the prior three years, which is "deemed to be the tax due" for purposes of G.L. c. 59, § 64, was less than $3,000.  Accordingly, pursuant to § 64, appellant's failure to timely pay the tax due for fiscal year 2007 did not deprive the Appellate Tax Board ("Board") of jurisdiction over this appeal.  
Appellant timely filed an abatement application with the assessors on January 30, 2007.  On April 17, 2007, the assessors denied the abatement and sent timely notice of this denial on the same day.  On July 9, 2007, appellant seasonably filed an appeal with this Board under the informal procedure.  Based on these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
Appellant's primary argument in support of his overvaluation claim was that the assessors failed to take into account the condition of Lindsay Hill Road, the main access road for the subject property.  Appellant testified that Lindsay Hill Road is closed for part of the year.  When it is closed, even emergency vehicles cannot access the property via Lindsay Hill Road, but must instead take a detour amounting to 6 miles of additional travel.  Appellant further contended that when Lindsay Hill Road is open, it is still generally impassable and in such poor condition that one cannot drive on it at speeds greater than 10 miles per hour.  Appellant provided evidence of the condition of Lindsay Hill Road by submitting photographs, which highlight the dangerous conditions, and by submitting a videotape of appellant driving down the road.  The videotape shows the effects of the bumpy conditions while driving over Lindsay Hill Road, and supports appellant's contention that one could drive on the road, when it is open, at only a very low speed.  
	Appellant also argued that the assessors did not take into account the significant drainage problems on the subject property.  He provided evidence of these problems by submitting a letter from an employee of the Massachusetts Department of Environmental Protection stating that there is a roadside ditch draining water onto his property.  Appellant also provided photographs of the drainage ditch.  Appellant contended that because of these factors, the subject property should have been valued at $155,000.  
Appellant also submitted photographic evidence of four single family homes in the vicinity of the subject property which he believed were comparable.  These properties are located at 72 Lindsay Hill Road, 210 Lindsay Hill Road, 82 Lindsay Hill Road, and 248 Patterson Road.  For fiscal year 2007, these properties were assessed at $183,000, $102,800, $147,100, and $151,480, respectively.  Based on the similarity of the homes on these properties to the subject property as well as their location -- three of the properties were located on the same road as the subject property -- Mr. Brooks concluded that the assessors overvalued the subject property.
The assessors' Chairman, Thomas Quinn, testified for the assessors.  Mr. Quinn relied on the recent sales of what he considered to be comparable single-family homes in Worthington to support the subject assessment.  The following table shows the address, date of sale, and sale price for these properties:
ADDRESS	  DATE OF SALE	SALE PRICE	
219 River Road	     July, 2005	$291,000	
 76 Radiker Road	  October, 2006	$228,400	
347 Kinne Brook Road	     July, 2006	$330,000	
123 Capen Street	 July, 2004	$225,500	

All of these properties are single-family homes of varying styles with living areas between 1,170 and 1,905 square feet sited on parcels of land ranging in size from 1.42 to 14.3 acres.  On the basis of these sales, Mr. Quinn concluded that the subject property's assessment was accurate.
Appellant questioned the comparability of these properties because the roads leading to them were not in the same poor condition as Lindsey Hill Road and were thus easier to access.  The assessors contended that the conditions on Lindsay Hill Road did not affect the value of the subject property.
	On the basis of all the evidence presented, the Presiding Commissioner found and ruled that appellant met his burden of proving overvaluation.  The Presiding Commissioner agreed with appellant that the properties presented by the assessors were not sufficiently comparable to the subject property due to the difference in location and severely deficient road condition.  Moreover, the Presiding Commissioner found that appellant presented sufficient evidence of comparable assessments to support his claim of overvaluation.  Accordingly, the Presiding Commissioner determined that the fair cash value of the subject property for fiscal year 2007 was $215,000 and granted an abatement in the amount of $747.13.

OPINION
	Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  The definition of fair cash value is the price upon which a willing buyer and a willing seller would agree if both are fully informed and neither is under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The burden of proof is on the taxpayer to make out a right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  Id.  The taxpayer may sustain this burden by introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).
	General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  "The introduction of ample and substantial evidence in this regard may provide adequate support for 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 Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  
In the present appeal, appellant submitted evidence of comparable assessments.  The Presiding Commissioner found that the properties offered by appellant were comparable to the subject property, given the similarity of the homes on these properties, and their proximity, to the subject property.  In contrast, the assessors failed to establish basic comparability between their comparable-sale properties and the subject property. 
	A taxpayer may prove a right to an abatement by proving that the assessors erred in their valuation of the subject property.  General Electric Co. v. Assessors of Lynn, 393 Mass. at 600.  In the present appeal, appellant sufficiently proved this error by providing evidence of the poor conditions of the road and the drainage problems on the property, neither of which was taken into account by the assessors.  The Presiding Commissioner therefore agreed that the assessment was not accurately reached and that an abatement was in order.
	"The [B]oard [is] not required to believe the testimony of any particular witness but it [can] accept such portions of the evidence as appear to have the more convincing weight."  Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence and inferences to be drawn from the evidence are matters for the [B]oard."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  "The market value of the property c[an] not be prove[n] with mathematical certainty and must ultimately rest in the realm of opinion, estimate, and judgment . . . .  The [B]oard c[an] select the various elements of value as shown by the record and from them form . . . its own independent judgment."  Boston Consolidated Gas Co., 309 Mass. at 72 (citations omitted).  See also North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Jordan Marsh Co. v. Assessors of Malden, 359 Mass. 106, 110 (1971).  Based on the evidence presented in this appeal, the Presiding Commissioner determined the fair cash value of the subject property to be $215,000, a $61,900 reduction from the assessed value of $276,900.  

Accordingly, the Presiding Commissioner ruled that the appellant met his burden of proving his right to an abatement.  Thus, the Presiding Commissioner issued a decision for appellant and awarded an abatement in the amount of $747.13.

						APPELLATE TAX BOARD

		  		  By:				_____	____						 Thomas W. Hammond, Jr., Chairman



A true copy,


Attest:		______			
	      Clerk of the Board

 Although the assessors listed the size of the finished living area as 1,955 square feet, the Board found appellant's evidence of finished living area to be more credible.
 Pursuant to G.L. c. 58A, § 7A, the assessors elected to transfer the appeal to the formal procedure.

ATB 2009-24