Paul D. Murphy v. Board of Assessors of the Town of Southwick (June 21, 2011)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



PAUL D. MURPHY			      v.		BOARD OF ASSESSORS OF
								THE TOWN OF SOUTHWICK

Docket No. F307007				   	Promulgated:
		 						June 21, 2011


	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 Town of Southwick ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to Paul D. Murphy ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2010.
	Commissioner Rose ("Presiding Commissioner") 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.

	Paul D. Murphy, pro se, for the appellant.
	Susan Gore, assessor, and Roy Bishop, assistant 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 Presiding Commissioner made the following findings of fact.
	On January 1, 2009, the appellant was the assessed owner of a waterfront parcel of real estate located at 80 Point Grove Road, Southwick ("subject property").  The subject property consists of a 21,780 square-foot parcel of real estate improved with a two-story, Colonial-style dwelling.  The subject property is located in a business-zoned district and its present residential use is a legally permissible grandfathered use.  Primarily rectangular in shape, the subject property has 80 feet of frontage on Congamond Lakes - North Pond.  
	According to the property record card, the subject dwelling has a total of six rooms, including three bedrooms and two full bathrooms, with a total finished living area of 1,730 square feet.  The residence's interior walls are primarily painted drywall and the floors are a mix of hardwood and carpeting.  The residence has an oil-fired forced hot water heating system.  The exterior of the dwelling is clapboard with an asphalt-shingled, gable roof.  There are two wood decks, which total 633 square feet, and a 440-square-foot detached garage. 
	For fiscal year 2010, the assessors valued the subject property at $364,000 and assessed taxes thereon, in the amount of $13.44 per thousand, in the total amount of $4,998.60.  Of the subject property's total assessment, the assessors attributed $242,600 to the land and $117,900 to the dwelling.  The detached garage was valued at $3,500.  In accordance with G.L. c. 59, § 57C, the appellant timely paid the tax due without incurring interest.  On January 20, 2010, in accordance with G.L. c. 59, § 59, the appellant filed an Application for Abatement with the assessors, which they denied on March 8, 2010.  On June 3, 2010, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
	The appellant argued that the subject property was overvalued because the assessors had placed too high a value on both the land and garage components of his assessment. He did not address the valuation of the dwelling on the subject property.  In support of his argument that the land was overvalued, the appellant relied on the land assessments of nine properties located within three miles of the subject property.  The properties ranged in size from 23,448 square feet to 74,052 square feet.  The land assessments for the appellant's chosen properties ranged from $140,700 to $273,600.  The appellant argued that despite the fact that all the parcels were larger than the subject property's parcel, the land assessments were either less than the subject property's land assessment or only marginally greater.  A majority of the properties were zoned for residential use, and several were zoned for commercial use.  Unlike any of these properties, the subject property was zoned for commercial use, but was used for residential purposes, a legally permissible grandfathered use. Based on the distinct combination of zoning and permitted use of the subject property, the Presiding Commissioner found on this record that the properties cited by the appellant were not comparable to the subject property.
	As previously noted, the appellant also argued that the assessors overvalued the subject property's detached garage.  To support this argument, the appellant offered into evidence "parcel summary" print-outs, downloaded from Vision Appraisal's website, of seven properties with detached garages.  The garages each had assessed values lower than the garage on the subject property. The data provided, however, did not include information relating to the age or construction of the garages. Therefore, the Presiding Commissioner was not able to determine if the garages were comparable to the garage on the subject property.  
	For their part, the assessors offered into evidence the relevant jurisdictional documents and rested on the validity of their assessment.
	Based on the evidence presented, the Presiding Commissioner found that the appellant failed to prove that the subject property was overvalued for fiscal year 2010.  The Presiding Commissioner found that the appellant did not establish comparability between the land and garage components of his chosen properties and these components of the subject property. Moreover, the Presiding Commissioner found that even if the appellant had shown that the subject property's land and garage assessments were excessive, he failed to demonstrate that the subject property's overall assessed value exceeded its fair cash value.
	Accordingly, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2010.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.  

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 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 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 taxpayer[] . . . prove[s] 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)).  "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 admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the board."  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  The properties used in a comparable-assessment analysis must be comparable to the subject property to be probative of its fair cash value. See id. 
	In the present appeal, the appellant argued that the subject property was overvalued for fiscal year 2010 because the land and garage components of the subject property's assessment were excessive. To support his argument, the appellant submitted purportedly comparable land and garage assessments. The Presiding Commissioner, however, did not find the appellant's evidence persuasive. Not one of the properties offered for comparison of land valuation shared the subject property's combination of commercial zoning and legally permitted residential use. Therefore, the Presiding Commissioner found that the properties were not comparable to the subject property. Similarly, although the appellant presented assessed values for seven garages which were lower than the value placed on the subject garage, there was no evidence indicating the age or construction of the garages. Consequently, the Presiding Commissioner could not determine if the cited garages were comparable to the garage on the subject property.  
	Moreover, even if the appellant had provided sufficient evidence to demonstrate that the land and garage components of his assessment were excessive, the Presiding Commissioner found that the appellant still would not have met his burden of demonstrating that the subject property's fair cash value exceeded its assessed value. 
A taxpayer does not conclusively establish a right to abatement merely by showing that a component of his property is overvalued. "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).  "[T]he question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive." Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Lareau v. Assessors of Norwell, Mass. ATB Findings of Fact and Reports 2010-879, 888.
	In the present appeal, the appellant failed to present credible evidence relating to the subject property's assessment as a whole. In particular, the appellant focused only on the subject property's land and garage valuations and failed to address in any way its dwelling. The Presiding Commissioner therefore found that the appellant failed to demonstrate that the subject property's overall assessment was excessive.
Based on the foregoing, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2010 and therefore issued a single-member decision for the appellee in this appeal.


		    APPELLATE TAX BOARD

				  	By: _________________________________
					     James D. Rose, Commissioner



A true copy:

Attest: _____________________________
             Clerk of the Board

 This includes a Community Preservation Act ("CPA") charge of $106.44.

ATB 2011-591