Ernest Opanesets v. Board of Assessors of the Town of Plymouth (May 27, 2010)

COMMONWEALTH OF MASSACHUSETTS

		      APPELLATE TAX BOARD


ERNEST OPANASETS		v.	  BOARD OF ASSESSORS OF  
 							  THE TOWN OF PLYMOUTH			   
Docket No. F291889       		  Promulgated:
							  May 27, 2010
		   
							
	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 appellee, Board of Assessors of the Town of Plymouth ("assessors" or "appellee"), to abate taxes on certain real estate located in the Town of Plymouth, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007 ("fiscal year at issue").
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in a 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.
  
	Ernest Opanasets, pro se, for the appellant.
	Cathy Salmon, Assessor, 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 Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2006, Ernest Opanasets ("appellant") was the assessed owner of a waterfront parcel of real estate located at 137 West Long Pond Road in Plymouth ("subject property").  For the fiscal year at issue, the assessors valued the subject property at $618,600 and assessed a tax thereon, at the rate of $9.71 per $1,000, in the total amount of $6,096.71.  On December 29, 2006, the Collector of Taxes for Plymouth mailed out the actual fiscal year 2007 tax bills.  The appellant timely paid the taxes due without incurring interest.  On January 29, 2007, in accordance with G.L. c. 59, § 59, the appellant timely filed his Application for Abatement with the assessors, which they denied on April 3, 2007.  In accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed his appeal with the Board on June 25, 2007.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.     
The subject property, which is located on Long Pond, consists of a 2.60-acre parcel of land improved with a Colonial-style, multi-family home built circa 1920 with nine rooms and an attached one-car garage.  The appellant purchased the subject property in an arm's-length transaction in July, 2004 for $735,000.
The total assessment for the fiscal year at issue was $618,600.  The appellant had previously appealed his fiscal year 2006 assessment of $643,600.  On February 12, 2007, the Board issued a single-member decision in favor of the appellee.
The assessment for the fiscal year at issue is comprised of a land value of $447,100 and a building value of $171,500.  The appellant contended that the land portion of the subject was too high and disproportionately assessed.  To prove his case, the appellant presented spreadsheets of what he considered to be twelve comparable Long Pond waterfront properties and their assessments for the fiscal year at issue as well as for fiscal years 2005 and 2000.  He also submitted spreadsheets listing the land-component assessments of his comparables from fiscal year 2007 back to fiscal year 1995.  From this data, the appellant pointed out that the range of land-component assessments was much broader in fiscal year 2007, and that the more narrow range of land-component assessments from fiscal year 2000 was more in keeping with the actual fair market value of the land portion of the comparable properties and the subject property.  From the land-component assessments which he presented, the appellant determined that the subject property's land should be valued at $342,100.  
To further his argument, the appellant presented a witness, Glen Bacevicious, a real estate appraiser.  Mr. Bacevicious presented a series of Multiple Listing Service ("MLS") listings of vacant parcels sold in Plymouth between June 11, 2003 and November 30, 2004.  The sales ranged in value from $97,900 to $605,000; most of the sales were in the mid-$200,000 range.  Based on his evidence, Mr. Bacevicious' opinion of the fair market value of the subject land was $350,000.
On cross-examination by Cathy Salmon, the Assessor for Plymouth, Mr. Bacevicious conceded that the subject property sold in an arm's-length transaction, about eighteen months prior to the relevant assessment date, for $735,000.  He also conceded that his comparables were located in inferior locations, on smaller ponds, compared to the subject property.  Ms. Salmon then asked Mr. Bacevicious for his analysis for formulating his opinion of value for the subject's fair market land value. Mr. Bacevicious responded that he could not produce this analysis.  Finally, Ms. Salmon asked Mr. Bacevicious for his opinion of the total fair market value of the subject property.  Mr. Bacevicious stated that he did not have an opinion, as he had been instructed to appraise only the land component of the subject property.
On the basis of the evidence presented, the Board found that the appellant's focus on the land values of his comparable properties failed to address whether the overall assessment of the subject property was excessive. The Board further found that the sale of the subject property -- in an arm's-length transaction, about eighteen months prior to the relevant assessment date -- was the most persuasive indicator of the subject property's total fair market value.  The Board found that the sale price of $735,000 in July, 2004 supported the subject property's overall assessment of $618,600 for the fiscal year at issue.  The Board, therefore, found that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue.  
The appellant also argued that the subject property was disproportionately assessed.  However, he offered scant evidence to support this assertion.  Of the thousands of residential properties in Plymouth, the appellant only "analyzed" the land values of twelve properties along Long Pond plus the subject.  His analysis did not contain any evidence or implication that a widespread scheme of intentional disproportionate assessment existed in Plymouth.  Therefore, the Board found that the appellant failed to meet his burden of proving that the assessors were engaged in an intentional widespread scheme of disproportionate assessment.
Accordingly, the Board issued a decision for the 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).  
The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out his right as a matter of law to an abatement of the tax. Id.  The appellant must show that the assessed valuation of the property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). 
In the present appeal, the appellant asserted that the land component of the subject property was overvalued in comparison to the land-component valuations of neighboring parcels.  However, a taxpayer does not establish the right to an abatement merely by showing that either the land or a building is overvalued; he must demonstrate that the overall assessment overstated the fair cash value of the subject property.  See Anderson v. Assessors of Barnstable, Mass. ATB Findings of Fact and Reports 1999-596, 601.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  "In abatement proceedings, 'the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether the single assessment is excessive.'"  Anderson, Mass. ATB Findings of Fact and Reports at 1999-601-02 (quoting Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921)).  The Board found and ruled that the appellant's evidence, which focused only on the land portion of the subject assessment, was insufficient to show that the overall assessment of the subject property exceeded its fair cash value. 
Moreover, the Board found the sale of the subject property, within eighteen months of the assessment date, to be persuasive evidence of the subject property's fair cash value.  "[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, 385 Mass. at 682.  Actual sales of the subject are "very strong evidence of fair market value, for they represent what a buyer has been willing to pay to a seller for [the] particular property [under appeal]."  New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 469 (1981) (quoting First Nat'l Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971)).  In this appeal, the Board found and ruled that the sale of the subject property within eighteen months of the assessment date was reasonably proximate to the assessment date, and that the sale price of $735,000 supported the assessment of $618,600.  
Based on this evidence, the Board found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue.
The appellant also raised a claim of disproportionate assessment.  "In order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is an 'intentional policy or scheme of valuing properties or classes of properties at a lower percentage of fair cash value than the taxpayer's property.'"  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997)(quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)).  If the taxpayer can demonstrate in an appeal to the Board that he has been the victim of a scheme of discriminatory, disproportionate assessment, he "may be granted an abatement . . . which will make . . . his assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory principles."  Coomey v. Assessors of Sandwich, 367 Mass. 836, 838 (1975) (quoting Shoppers' World, 348 Mass. at 377-78).  
In the present appeal, the appellant failed to introduce sufficient evidence to show that a policy or scheme of discriminatory, disproportionate assessment was employed by the assessors against any class of properties in Plymouth.  The Board found and ruled that the evidence was virtually nonexistent to demonstrate, or even suggest, that the assessors engaged in an "intentional widespread scheme of discrimination."  Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  Accordingly, the Board found and ruled that the appellant failed to meet his burden of proving that a deliberate scheme of disproportionate assessment existed in Plymouth for the fiscal year at issue. 

In sum, the Board found and ruled that the appellant failed to show that the assessors' methodology was faulty, that the assessment over-valued his property, or that a deliberate scheme of disproportionate assessment existed in Plymouth in fiscal year 2007.  Accordingly, the Board decided this appeal for the appellee.

					 APPELLATE TAX BOARD
  					


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


A true copy,

Attest: ________________________
	     Clerk of the Board

ATB 2010-532