Stephen J. McHugh & Susan L. McHugh v. Board of Assessors of the Town of Marblehead (February 3, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


STEPHEN J. McHUGH &			v.	  BOARD OF ASSESSORS OF
SUSAN L. McHUGH				  THE TOWN OF MARBLEHEAD

Docket Nos. F288171, F288172		
		  F294114, F294115		  Promulgated:
							  February 3, 2009		


	These are appeals 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 to abate taxes on real estate located in the Town of Marblehead, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal years 2007 and 2008.
	Commissioner Mulhern heard these appeals.  Chairman Hammond and Commissioners Egan and Rose joined him in the decisions for the appellants.  
	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.

	Evan Y. Semerjian, Esq., for the appellants.
	
	Michael A. Tumulty, assessor, for the appellee.






FINDINGS OF FACT AND REPORT

	Based on the testimony and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2006 and January 1, 2007 ("the relevant assessment dates"), Stephen J. McHugh and Susan L. McHugh ("appellants") were the assessed owners of adjacent parcels of real estate located at 0 Beacon Street and 1 Beacon Street (collectively "subject properties") in Marblehead.  For assessment purposes, the parcel that comprises 0 Beacon Street is identified as Map 187 Block 11 Lot 0 and contains 19,154 square feet.  The parcel that is 1 Beacon Street is identified as Map 187 Block 10 Lot 0 and contains 25,086 square feet.
	For fiscal year 2007, the Board of Assessors of Marblehead ("assessors") valued 0 Beacon Street and 1 Beacon Street at $1,336,500 and $4,592,300, respectively, and assessed taxes thereon, at the rate of $7.76 per thousand, in the corresponding amounts of $10,371.24 and $35,636.25.  The appellants timely paid the taxes assessed without incurring interest.  On January 19, 2007, in accordance with G.L. c. 59, § 59, the appellants timely filed their abatement applications for the subject properties with the assessors.  On March 14, 2007, the assessors granted the appellants a partial abatement by reducing the value of 0 Beacon Street by $434,400 to arrive at an abated assessed value of $902,100.  On March 28, 2007, the assessors denied the appellants' request for abatement for 1 Beacon Street.  Subsequently, on April 20, 2007, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed their appeals for the subject properties with the Board. 
For fiscal year 2008, the assessors valued 0 Beacon Street and 1 Beacon Street at $512,800 and $4,356,100, respectively, and assessed taxes thereon, at the rate of $8.34 per thousand, in the corresponding amounts of $4,276.75 and $36,329.87.  The appellants timely paid the taxes assessed without incurring interest.  On January 11, 2008, in accordance with G.L. c. 59, § 59, the appellants timely filed their abatement applications for the subject properties with the assessors, which they denied on February 8, 2008.  Subsequently, on March 27, 2008, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed their appeals for the subject properties with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
In support of their contention that the subject properties were overvalued for the fiscal years at issue, the appellants presented the testimony of Mr. Stephen J. McHugh, the property owner, and also Richard F. Newburg, a certified real estate appraiser.  Mr. Newburg had been a real estate appraiser in Marblehead for approximately fifteen years.  Based on his education and experience, the Board qualified Mr. Newburg as an expert witness in the field of real estate valuation.   The appellants also offered into evidence numerous exhibits, including assessing records and maps, zoning maps and land use regulations, plot plans, the subject properties' deed, photographs, and Mr. Newburg's summary appraisals for each of the subject properties for each of the fiscal years at issue.  In support of their assessments, the assessors relied on the testimony and sales grids of Mr. Michael A. Tumulty, principal assessor for Marblehead. 
The subject properties are adjacent parcels of water-front real estate situated on Little Harbor in Marblehead.  The subject properties are located in Marblehead's Harborfront zoning district, which allows boat services and also allows, by special permit, one-family dwellings, retail stores and other commercial uses.  The assessors' property record card lists 0 Beacon Street as a 16,352 square-foot "potentially developable" lot.  At the hearing of these appeals, however, Mr. Tumulty concurred with the accuracy of the appellants' survey plan, which lists the parcel at 19,154 square feet.  Mr. Tumulty also conceded that 0 Beacon Street is unbuildable due to its lack of frontage or access, its very steep slopes, and the prevalence of rocky ledge on the parcel.  
The property located at 1 Beacon Street is a 25,086 square-foot lot with approximately 125 feet of frontage on Little Harbor.  The lot is improved with a 108-year-old wood-frame, single-family dwelling.  According to the property record card, the dwelling contains a total living area of 4,179 square feet with a total of eight rooms, including four bedrooms, and also three full bathrooms and one half-bathroom.  There are three fireplaces.  The lower level has a finished family room and mud room.  The heating system is forced hot water by oil.  There is a large deck and covered porch to the rear of the dwelling and a small greenhouse to the side.   
The dwelling at 1 Beacon Street faces south toward Little Harbor.  To its left, heading east, there is a commercial area and a public boat ramp.  Located in the commercial area are several businesses, including a large boatyard building, a boat repair shop, a retail fish store, and an industrial-sized crane to haul the larger boats from the water.  At the top of the boat ramp are several small lobster shanties.  Also located in this area is a faucet and hose, which is often used by individuals to wash off their boats after they have been taken out of the harbor.  
Mr. McHugh testified that there is considerable truck and other commercial vehicle traffic in the area.  According to Mr. McHugh, these vehicles are constantly parked in the area and often back up into his driveway to turn around.  Mr. McHugh also testified that his driveway is frequently blocked by commercial vehicles and also vehicles waiting for access to the boat ramp.  In addition to the commercial businesses, which are visible from the subject property, Mr. McHugh also testified that a water pump, which is used by the fish store to circulate water from the harbor, operates continuously night and day and can be heard from the subject dwelling. 
Located at the rear of the subject properties is a public park known as Fountain Park.  The subject properties and the park are separated by a chain-link fence which begins behind the garage located at 1 Beacon Street and continues at the rear of 0 Beacon Street.  The subject properties are encumbered by a perpetual growth trimming easement which allows the Town of Marblehead to enter onto the properties to trim, cut and remove portions of trees, shrubs and brushes to enhance the views of Little Harbor from Fountain Park.  Mr. McHugh testified that the trimming is done very sporadically, roughly every few years.  In addition, there is a ten-foot right-of-way that runs across the driveway of 1 Beacon Street, which allows public access to the path that leads to Fountain Park.

VALUATION 
The appellants argued that the subject property was overvalued by the assessors for both of the fiscal years at issue.  To arrive at his estimates of value for the fiscal years at issue, the appellants' real estate valuation witness, Mr. Newburg, relied on the sales-comparison approach. 
0 Beacon Street - Fiscal Years 2007 and 2008  
First, Mr. Newburg reviewed the site plan for 0 Beacon Street and the assessors' records to determine if it was a buildable lot.  Based on the information that he reviewed, the property's topography and zoning requirements, Mr. Newburg determined that 0 Beacon Street was an unbuildable lot.  He then reviewed sales in Marblehead and its vicinity of unbuildable lots for the previous four years.
Ultimately, Mr. Newburg chose to rely on three land sales that occurred during the period July 2004 through November 2006.  Sale number one is a 20,440 square-foot ocean-front lot located at Lot 3 Ocean Avenue, Marblehead, which sold on November 10, 2006 for $175,000, or $8.56 per square foot.  Sale number two is a 3,965 square-foot lot, with no water view, located at 12-R Seaview Avenue, Marblehead, which sold for $20,000, or $5.04 per square foot.  Sale number three is a 6,400 square-foot harbor-view lot located at Lot 29 Wendell Road Extension, Nahant, which sold for $30,000, or $4.69 per square foot.  Sales number two and number three were adjusted upward to account for their smaller lot sizes and also their inferior locations, to arrive at adjusted per-square-foot values of $6.30 and $5.86, respectively.  No adjustments were made to sale number one.  Due to its similarity in size and location in comparison to 0 Beacon Street, Mr. Newburg gave the most weight to sale number one and determined that $8.50 per square foot was an appropriate value for 0 Beacon Street.  Applying this per-square-foot value, Mr. Newburg determined an indicated value of $163,000 for 0 Beacon Street, for both fiscal years at issue.
In support of the assessment, Mr. Tumulty submitted an analysis of three land sales, which he deemed to be most comparable to the subject property. First, like Mr. Newburg, Mr. Tumulty relied on Lot 3 Ocean Avenue in Marblehead which is a 20,440 square-foot, unbuildable, ocean-view lot that sold on November 10, 2006 for $175,000.  Sale number two, which is located at 41 Norman Street, is a 9,875 square-foot unbuildable lot that sold on December 9, 2005 for $300,000, or $30.38 per square foot.  Mr. Tumulty testified that this property is located approximately five hundred feet from the subject property on the opposite side of Fountain Park.  The property has no water view and was sold to an abutter who wished to acquire additional land.  
Sale number three is a 36,500 square-foot ocean-view lot located at 16 Foster Street on Marblehead Neck, Marblehead.  The property sold for $3,500,000 on July 14, 2006.  Mr. Tumulty testified that the existing structure at the time of sale was demolished and a new dwelling was built.  Because, unlike 0 Beacon Street, 16 Foster Street was a buildable lot, Mr. Tumulty gave no weight to this sale in arriving at his final opinion of value.  Based on his comparable sales number one and number two, Mr. Tumulty testified that a value of $15.00 per square foot, nearer the mid-range, was appropriate and that the fair cash value of the subject property was $290,000 for both fiscal years at issue.

Based on the evidence presented, the Board found that Lot 3 Ocean Avenue, which is similar in both size and location, compared to 0 Beacon Street, and was used by both parties in their analyses, was a strong indicator of value for 0 Beacon Street.  The Board also found that while Mr. Newburg was unaware of the sale at 41 Norman Street, it also provided probative evidence of value for 0 Beacon Street.  Although this parcel is not a water-view lot, the property is located in close proximity to the subject property.  Conversely, the Board found that the appellants' sale number two, which is a much smaller lot, and sale number three, which is located in Nahant, and also the appellee's comparable sale number three, which is a buildable lot, lacked any probative value.    
The Board therefore determined that, Lot 3 Ocean Avenue and 41 Norman Street provided the most reliable evidence in determining the market value of the subject property for fiscal years 2007 and 2008.  Based on these sales, the Board agreed with Mr. Tumulty and found that the fair cash value for 0 Beacon Street for fiscal years 2007 and 2008 was $290,000.
1 Beacon Street - Fiscal Year 2007	  
To arrive at his estimates of value for the property located at 1 Beacon Street, Mr. Newburg first inspected both the exterior and interior of the property.  He then reviewed all sales in the immediate area during the four years prior to the relevant dates of assessment and, based on the date of sale, conditions of the properties sold, the quality of their construction, views and other influences, Mr. Newburg then chose what he deemed to be the most comparable sales.  
For fiscal year 2007, Mr. Newburg relied on four harbor-front properties located within one mile of the subject property that he deemed most comparable.  Sale number one, located at 5 Nashua Street, is a 16,843 square-foot lot improved with a single-family dwelling, which has eleven rooms, including five bedrooms and also three full bathrooms and one half bathroom, with a total living area of 4,144 square feet.  This property sold on June 31, 2005 for $4,000,000.  
Sale number two, located at 133 Front Street, is a 32,720 square-foot lot improved with a single-family dwelling, which has nineteen rooms, including six bedrooms and also four full bathrooms and one half bathroom, with a total living area of 4,315 gross feet.  This property sold on April 10, 2006 for $3,900,000.  According to Mr. Newburg, this sale was contingent upon the buyer securing the right to build a deep water dock, which was granted by the appropriate authorities.  
Comparable sale number three, located at 29 Beacon Street, is a 14,470 square-foot lot improved with a single-family dwelling, which has ten rooms, including six bedrooms as well as four full bathrooms and two half-bathrooms, with a total living area of 3,450 square feet.  This property sold for $2,925,000 on August 31, 2006.  
Finally, sale number four, located at 201 Ocean Avenue, is a 43,002 square-foot lot improved with a single-family dwelling, which has ten rooms, including five bedrooms and also six full bathrooms and one half bathroom, with a total living area of 5,308 square feet.  This property sold on May 26, 2006 for $3,700,000.  
Given the proximity	in time between the relevant date of assessment and his purported comparable properties' sale dates, Mr. Newburg determined that no time adjustments were necessary.  He did, however, make adjustments for differences in location, lot size, overall condition, gross living area, finished basement, central air conditioning, size of garage, the number of fireplaces, and whether or not the property had a pier.  Based on his knowledge of the Marblehead market and the different neighborhoods, Mr. Newburg determined that comparable sale number one, which is located at the tip of Marblehead Neck, an area with generally higher property values than the subject properties' neighborhood and further removed from commercial influences, is in a superior location.  He therefore made a downward adjustment of ten percent to comparable sale number one.  
Although comparable sale number four is also located on Marblehead Neck, Mr. Newburg testified that the property is situated on one of the main arteries, the dwelling is situated close to the road, and the property has less privacy than comparable sale number one.  Mr. Newburg determined that these negative influences offset any benefit associated with being located on Marblehead Neck and therefore concluded that no adjustment for location was necessary.  
Mr. Newburg also determined that comparable sale number three, which is also located on Beacon Street but which sits on a corner lot with limited setback, is an inferior location and therefore required an upward adjustment of ten percent.  
Mr. Newburg also adjusted comparable sales number one and number three upward to account for their smaller lot sizes, and comparable sales number two and number four downward to account for their larger lot sizes.  He determined that the overall condition of comparable number two was inferior to the subject property and, therefore, made an upward adjustment of two-and-a-half percent.  Mr. Newburg made adjustments to each of the comparables to reflect their additional number of bathrooms at the rate of $10,000 per full bathroom and $5,000 per half bathroom.  He also made adjustments of $75 per square foot for differences in gross living areas.  Mr. Newburg also made adjustments to account for the comparable properties' unfinished basements, lack of central air conditioning, the size of the garages, and the number of additional fireplaces.  Finally, he adjusted comparable sale number one upward to account for its lack of access to any type of pier and comparable sale number two downward based on the permitted building of a deep water dock. 
Mr. Newburg's analysis is summarized in the following table.


	Subject	Comp #1	Comp #2	Comp #3	Comp #4
	
Address	1 Beacon Street	5 Nashua
 Street	133 Front
Street	29 Beacon
Street	201 Ocean Avenue	
Sale Date		6/21/2005	4/10/2006	8/31/2006	5/25/2006	
Sale Price 		$4,000,000	$3,900,000	$2,925,000	$3,700,000	
Land Area (s.f.)	25,086 	16,843	32,720 	14,470	43,000	
Gross Living Area (s.f.)	4,011 	4,144 	4,315 	3,450 	5,308	
Adjustments: ($)						
Location	Good	(400,000)		292,500		
Land Size		20,000	(15,000)	20,000	(40,000)	
Condition			97,500			
Bathrooms			(10,000)	(15,000)	(30,000)	
Gross living area		(9,975)	(22,800)	42,075	(97,275)	
Basement				10,000		
Finished		20,000	20,000	20,000		
Heating/cooling		5,000	5,000	5,000		
Garage/carport		(20,000)	20,000			
Fireplaces		(2,000)	(4,000)	(2,000)	(2,000)	
Pier		20,000	(100,000)			
Net Adjustments		366,975	9,300	372,575	169,275	
Adjusted Sale Price		
$3,633,975	
$3,890,700	
$3,297,575	
$3,530,725	

Mr. Newburg's sales-comparison analysis yielded adjusted sale prices that ranged from $3,297,575 to $3,890,700.  Based on this analysis, Mr. Newburg's final opinion of the value of 1 Beacon Street for fiscal year 2007 was $3,650,000. 
In support of the assessment, Mr. Tumulty offered into evidence an analysis of four purportedly comparable ocean-front property sales.  Sale number one, which is located at 393 Ocean Avenue, is an 87,222-square-foot lot improved with a Colonial-style dwelling with thirteen rooms, including five bedrooms and also five full bathrooms and one half-bathroom.  The dwelling has a total living area of
6,167 square feet.  This property sold on November 1, 2005 for $5,500,000.  
Sale number two, located at 415 Ocean Avenue, sold for $4,700,000 on December 8, 2005.  This property has a 40,749 square-foot lot improved with a dwelling, which contains ten rooms, including four bedrooms and also five full bathrooms and one half-bathroom, with a total living area of 4,419 square feet.  
Sale number three, located at 5 Nashua Avenue, is a 16,843 square-foot lot improved with an eight-room dwelling, including five bedrooms and also three full bathrooms and two half-bathrooms, containing a total living area of 4,049 square feet.  This property sold for $4,000,000 on June 21, 2005.  
Finally, sale number four, located at 201 Ocean Avenue, is a 43,002 square-foot lot improved with a Colonial-style dwelling containing ten rooms, including five bedrooms and also six full bathrooms and one half-bathroom, with a total living area of 5,308 square feet.  The property sold for $3,700,000 on May 26, 2006.
Mr. Tumulty made adjustments to account for differences between 1 Beacon Street and his chosen comparable properties.  First, he adjusted comparable sale number four for timing at the rate of 0.50 percent per month.  He adjusted comparable sales number one, number two and number three downward for their superior non-commercial locations and comparable sale number four upward for its traffic, proximity to the street and lack of privacy.  Mr. Tumulty also made adjustments for the differences in the living area and lot sizes of his sales-comparison properties as compared to the subject property at the rate of $100 per square foot and $15 per square foot, respectively.  
With the exception of sale number two, Mr. Tumulty considered 1 Beacon Street to be in superior condition in comparison to his chosen comparables and therefore made positive adjustments at the rate of $50 per square foot.  He also made adjustments at the rate of $25,000 per full bathroom and $15,000 per half bathroom.  He made a negative adjustment to sale number one to account for its full finished basement and a positive adjustment to sale number four to account for the lack of any basement.  He adjusted sale number two downward to account for its three-car garage and sale number three downward for its one-car garage with living quarters.  
Mr. Tumulty's sales-comparison analysis is summarized in the following table.


	Subject	Comp #1	Comp #2	Comp #3	Comp #4	
Address	1 Beacon Street	393 Ocean Avenue	415 Ocean Avenue	5 Nashua 
Avenue	201 Ocean Avenue	
Sale Price		$5,500,000	$4,700,000	$4,000,000	$3,700,000	
Date of Sale		11/1/2005	12/8/2005	6/21/2005	5/26/2006	
Lot Size (sf)	25,086	87,222	40,749	16,843	43,002	
Gross Living Area(sf)	4,612	6,167	4,419	4,049	5,308	
Value Adjustments: ($)						
Date of Sale/Time					92,500	
Location		(275,000)	(235,000)	   (200,000)	370,000	
Site 		(1,200,000)	(300,000)	165,000	    (270,000)	
Condition	Good	300,000		200,000	250,000	
Bath		(50,000)	(50,000)	(15,000)	(75,000)	
Gross Living Area		(77,000)	19,000	(47,000)	(70,000)	
Basement & Finished		(50,000)			50,000	
Garage/Carport			(20,000)	(50,000)		
Total Adjustments		(1,352,000)	(586,000)	233,000	347,500	
Adjusted Sale Price		$4,148,000	$4,114,000	$4,053,000	$4,047,500	
   
Mr. Tumulty's sales-comparison analysis yielded adjusted sale prices that ranged from $4,047,500 to $4,148,000.  Mr. Tumulty's appraisal report reflects in his final reconciliation that all sales were given consideration but that the most weight was given to sale number two due to its sale date's proximity to the valuation date for fiscal year 2007.  His final opinion of value for fiscal year 2007 was $4,100,000.
Based on the evidence presented, the Board found that the appellants met their burden of proving that 1 Beacon Street was overvalued for fiscal year 2007.  The Board found that 201 Ocean Ave, used by both parties in their appraisal reports, was the most comparable to 1 Beacon Street.  After adjustments, Mr. Newburg arrived at an adjusted sale price of $3,530,725, while Mr. Tumulty arrived at an adjusted sale price of $4,047,500.  In his analysis, Mr. Tumulty made an upward adjustment of $370,000 to account for what he deemed to be an inferior location, attributable to traffic, the dwelling's proximity to the street and the lack of privacy.  The Board, however, found Mr. McHugh's testimony credible concerning the negative influences on 1 Beacon Street.  The Board found that the area's considerable commercial vehicle traffic and also the public boat ramp negatively impacted 1 Beacon Street.  The Board therefore found that the location of 1 Beacon Street was not superior and no location adjustment was required.  
Based on the evidence presented and its subsidiary findings, the Board found that the fair market value for 1 Beacon Street for fiscal year 2007 was $3,800,000.
1 Beacon Street - Fiscal Year 2008
	To support the appellants' claim that 1 Beacon Street was overvalued for fiscal year 2008, Mr. Newburg relied on four sales of properties, which he deemed comparable to 1 Beacon Street.  First, Mr. Newburg cited the sale of 29 Beacon Street, a 14,470 square-foot lot improved with a single-family dwelling with ten rooms, including six bedrooms and also four full bathrooms and two half-bathrooms.  This property sold on August 31, 2006 for $2,925,000.  The property is located on a corner lot with limited setback and privacy, which Mr. Newburg deemed to be inferior to 1 Beacon Street.  Mr. Newburg therefore made an upward adjustment to account for this comparable sale property's inferior location in comparison to 1 Beacon Street.  He also made upward adjustments to account for this comparable sale property's inferior site utility, smaller gross living area, and also the lack of a basement and central air conditioning.  He made downward adjustments to account for the greater number of bathrooms and the additional fireplace.  
Mr. Newburg also relied on the sale of 201 Ocean Avenue, which sold on May 25, 2006 for $3,700,000.  This comparable sale property is a 43,002 square-foot lot improved with a ten-room dwelling, including five bedrooms and also six full bathrooms and one half-bathroom, containing a gross living area of 5,308 square feet.  Although located on Marblehead Neck, Mr. Newburg concluded that the negative traffic influence and lack of privacy resulted in an overall equivalent location in comparison to 1 Beacon Street.  He made negative adjustments to account for the larger lot size, larger gross living area, number of bathrooms, and also the additional fireplace. 
Mr. Newburg's third sale is 49 Beacon Street which sold on June 19, 2007 for $4,721,250.  This comparable sale property is a 27,500 square-foot lot improved with a single-family dwelling with a gross living area of 5,092 square feet.  The dwelling has eleven rooms, including six bedrooms and also four full bathrooms and two half bathrooms, and six fireplaces.  The property has an in-ground pool and is located on a private peninsula overlooking Brown's Island and Duliber Cove and can be accessed by a full-sized boat.  Consequently, Mr. Newburg made a downward adjustment to account for what he deemed to be a superior location.  
Based on data contained in Bankers and Tradesman, Mr. Newburg determined that single-family residential property values in Marblehead had decreased 8.77% from 2006 through 2007, and therefore he made an upward time adjustment of 4.75% to account for the property's sale date, which occurred six months after the relevant date of assessment.  Mr. Newburg also made negative adjustments to reflect the comparable property's superior quality of construction, upgrades and amenities, the larger gross living area, the additional bathrooms, the lack of central air conditioning, and the additional fireplaces, in comparison to 1 Beacon Street.  
Comparable sale number four, located at 4 Fort Sewall Terrace, is a 16,000 square-foot lot improved with a 3,471 square-foot dwelling which sold on November 29, 2007 for $2,795,000.  An upward timing adjustment was made to reflect the less desirable market conditions at the time of sale versus the assessment date.  Mr. Newburg determined that no location adjustment was required because this property is in close proximity to 1 Beacon Street and is located in the same section of Marblehead.  He also made upward adjustments for the inferior site utility, the smaller gross living area, and the lack of central air conditioning.  Negative adjustments were made to account for the comparable property's additional half bathroom, superior garage utility, and the waterfront pool.
Mr. Newburg's sales-comparison analysis for fiscal year 2008 is summarized in the following table.
		Comp #1	Comp #2	Comp #3	Comp #4	
Address	1 Beacon Street	29 Beacon 
Street	201 Ocean Avenue	45 Beacon
 Street	4 Fort Sewall Terrace	
Sale Date		8/31/2006	5/25/2006	6/19/2007	11/29/2007	
Sale Price		$2,925,000	$3,700,000	$4,721,250	$2,795,000	
Land Area (s.f.)	25,086	14,470	43,002	27,500	16,000	
Gross Living Area (s.f.)	4,011	3,450	5,308	5,092	3,471	
Adjustments: ($)						
Timing 				224,259	223,600	
Location		292,500		(472,125)		
Site		20,000	(40,000)		20,000	
Quality of Constr.	Very Good			(472,125)		
Room count		(15,000)	(30,000)	15,000	(5,000)	
Gross living area
 (@$75 psf)		
42,075	
(97,275)	
(81,075)	40,500	
Basement/Finished	Full/part ledge	10,000				
Rooms Below Grade	Partially Finished	20,000				
Heating/cooling	Central/AC	5,000		5,000	5,000	
Garage/carport	2 Car				(5,000)	
Fireplaces		(2,000)	(2,000)	(8,000)		
Pier				(100,000)	(10,000)	
Net Adjustments		372,575	(169,275)	(919,066)	269,100	
Adjusted Sale Price		$3,297,575	$3,530,725	$3,802,184	$3,064,100	

	Mr. Newburg's sales-comparison analysis yielded adjusted sale prices that ranged from $3,064,100 to $3,802,184.  In his final reconciliation, Mr. Newburg placed equal weight on comparable sales number one, number two and number four and discounted comparable sale number three due to the excessive adjustments.  In conclusion, Mr. Newburg estimated 1 Beacon Street's fair cash value for fiscal year 2008 at $3,500,000.
	In support of the assessment, Mr. Tumulty submitted an analysis of four purportedly comparable waterfront property sales.  Comparable sale number one, located at 4 Anchorage Lane, is a 66,283 square-foot lot improved with a single-family dwelling with thirteen rooms, including seven bedrooms, as well as four full bathrooms and one half-bathroom, with a gross living area of 4,656 square feet.  This property sold for $4,100,000 on November 15, 2006.  Mr. Tumulty testified that the purchaser made significant renovations to this property subsequent to the sale.  Based on the estimated costs stated on the building permits, Mr. Tumulty made a positive adjustment of $300,000 to account for the property's inferior condition in comparison to the subject property.  He made negative adjustments to account for the property's superior location, larger lot size, additional bathroom, and also the building plans for a pier which would allow access and docking for full-sized boats.  
Mr. Tumulty also relied on the sale of 45 Beacon Street, which is a 27,500 square-foot lot improved with an eleven-room single-family dwelling including, six bedrooms, as well as four full bathrooms and two half-bathrooms, with a gross living area of 4,404 square feet.  The property sold on June 19, 2007 for $4,721,250.  Mr. Tumulty made a negative adjustment to account for the time of the sale, calculated at 0.50 percent per month from the relevant date of assessment to the date of sale.  
This comparable sale property is located approximately six hundred feet from 1 Beacon Street, on the opposite side of the boatyard.  Although the backside of the boatyard and also the large crane are visible from comparable sale number three, this property is not adversely affected by the traffic using the public boat ramp and also going to and from the commercial businesses.  Therefore, Mr. Tumulty made a five percent negative adjustment to account for the superior location in comparison to 1 Beacon Street.  He also made negative adjustments to account for the property's slightly larger lot size, the additional bathrooms, the in-ground pool and the pier.  Mr. Tumulty also made a positive adjustment to account for the slightly smaller gross living area.
The third sale Mr. Tumulty cited is 20 Crowninshield Road, which is located approximately a quarter-of-a-mile from 1 Beacon Street.  This comparable sale is a 75,118 square-foot lot improved with a fifteen-room, single-family dwelling with a gross living area of 5,220 square feet.  The property sold for $4,700,000 on November 6, 2007.  He made negative adjustments to account for:  the time of the sale in relation to the January 1, 2007 date of assessment; the substantially larger lot size, nearly three times the size of 1 Beacon Street, which he calculated at $15 per square foot; the property's superior location; and the greater gross living area.  Mr. Tumulty made positive adjustments to account for the property's dilapidated condition at the time of sale, which he estimated at $100 per square foot, and also for the property's lack of a garage.   
Finally, like Mr. Newburg, Mr. Tumulty cited the sale of 201 Ocean Avenue, which sold on May 26, 2006 for $3,700,000.  This property is a 43,002 square-foot lot improved with a ten-room dwelling, which included five bedrooms and also six full bathrooms and one half bathroom, with a gross living area of 5,308 square feet.  Mr. Tumulty testified that this property has high traffic volume and the dwelling is situated close to the road thereby affording little privacy.  Therefore, he made a positive adjustment of ten percent to reflect the inferior location.  He also made a positive adjustment of $100 per square foot, to account for the property's inferior condition in comparison to 1 Beacon Street.  He made negative adjustments to reflect the property's larger lot size, additional bathrooms, and greater gross living area.  He also made a positive adjustment to account for the property's lack of a basement. 
Mr. Tumulty's sales-comparison analysis is summarized in the following table.
	Subject	Comp #1	Comp #2	Comp #3	Comp #4	
Address	1 Beacon Street	4 Anchorage Lane	45 Beacon Street1	20 Crowninshield 
Road	201 Ocean Avenue	
Sale Date		11/15/2006	6/19/2007	11/6/2007	5/26/2006	
Sale Price		$4,100,000	$4,721,250	$4,700,000	$3,700,000	
Land Area (s.f.)	25,086	66,283	27,500	75,118	43,002	
Gross Living Area (s.f.)	4,612	4,656	4,404	5,220	5,308	
Adjustments: ($)						
Timing 			(120,000)	(235,000)		
Location		(200,000)	(235,000)	(235,000)	370,000	
Site		(600,000)	(35,000)	(750,000)	(270,000)	
Condition	Very Good	300,000		522,000	250,000	
Bathrooms		(25,000)	(55,000)		(75,000)	
Gross living area 			20,800	(60,000)	(70,000)	
Basement/Finished	Full/part ledge	50,000			50,000	
Pier/Pool		(100,000)	(100,000)			
Garage/carport	2 Car			40,000		
Net Adjustments		(575,000)	(524,200)	(718,000)	255,000	
Adjusted Sale Price		$3,525,000	$4,197,050	$3,982,000	$3,955,000	

Mr. Tumulty's sales-comparison analysis yielded adjusted sale prices that ranged from $3,525,000 to $4,197,050.  According to Mr. Tumulty's appraisal report, he gave consideration to all of his sales in his final reconciliation, but he gave the most weight to sale number two due to its close proximity to 1 Beacon Street and its similarities in site size and gross living area.  His final opinion of value for fiscal year 2007 was $4,000,000.
For fiscal year 2008, both parties again relied on the sale at 201 Ocean Avenue.  After making adjustments for differences between this property and the subject property, Mr. Newburg arrived at an adjusted sale price of $3,530,725, the same value as fiscal year 2007.  Mr. Tumulty, however, arrived at an adjusted sale price of $3,955,000, which is less than his fiscal year 2007 adjusted sale price.  Both parties also relied on the sale at 45 Beacon Street, which is in close proximity to the subject property and also has similar lot size and gross living area.  After adjustments, Mr. Newburg arrived at an adjusted sale price for 45 Beacon Street of $3,802,184 while Mr. Tumulty arrived at a value of $4,197,050.  
After considering all the data, Mr. Tumulty arrived at an estimated fair cash value for 1 Beacon Street of $4,000,000, which is $100,000 less than his fiscal year 2007 value.  Mr. Newburg's estimated fair cash value of $3,500,000 is $150,000 less than his fiscal year 2007 value.  Based on the testimony of both witnesses, and the evidence of record, the Board agreed with the witnesses' conclusion that the market values for single-family homes in Marblehead depreciated between January 1, 2006 and January 1, 2007.  The Board therefore found that 1 Beacon Street declined in valued by $125,000 between January 1, 2006 and January 1, 2007, which is within the range suggested by the witnesses.  Accordingly, the Board reduced its fiscal year 2007 fair cash value of 1 Beacon Street by $125,000 to arrive at a fair cash value of $3,675,000 for 1 Beacon Street for fiscal year 2008.  
Conclusion
Based on the evidence presented, the Board found and ruled that the appellants met their burden of proving that the subject properties were overvalued for fiscal years 2007 and 2008.  Accordingly, the Board decided these appeals for the appellants and ordered abatements as follows:
Docket No.	Fiscal Year	
Address	Assessed Value	Fair Cash Value	Over-valuation	
Abatement	
F288171	2007	0 Beacon St	 $  902,100 
 (as abated)	 $  290,000	 $612,100	$4,749.90	
F288172	2007	1 Beacon St	 $4,592,300	 $3,800,000	 $792,300	$6,148.25	
F294114	2008	0 Beacon St	 $  512,800	 $  290,000	 $222,800	$1,858.15	
F294115	2008	1 Beacon St	 $4,356,100	 $3,675,000	 $681,100	$5,680.37	


OPINION
Assessors are required 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, §§ 11 and 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion. Boston Gas. Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).	 
The burden of proof is upon the taxpayer to make out a right to an abatement.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer meets its burden of proving otherwise.  Id.  A right to an abatement can be proven by either introducing 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).
"[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. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  Sales of comparable realty in
the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929), aff'd Graham v. Assessors of West Tisbury, 73 Mass. App. Ct. 1107 (2008).  When comparable sales are used, however, allowances must be made for various factors which would otherwise cause disparities in the comparable property's sale 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 . . . . The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."  Appraisal Institute, the Appraisal of Real Estate 322 (13th ed., 2008).
In the present appeals, both parties offered into evidence a sales-comparison analysis for each of the subject properties for each of the fiscal years at issue.  For 0 Beacon Street, the appellants' expert relied on three comparable sales.  The Board, however, found that two of the properties were not in fact comparable to 0 Beacon Street due to size and location.  The Board found that the remaining sale, located at Lot 3 Ocean Avenue and which had a sale price of $8.56 per square foot, was comparable.  
In their analysis, the assessors relied on the sale of Lot 3 Ocean Avenue and 41 Norman Street which had a sale price of $30.38 per square foot.  Based on the evidence presented, the Board found that Lot 3 Ocean Avenue, which is similar to 0 Beacon Street in both size and location, and was used by both parties in their analysis, was a strong indicator of value for 0 Beacon Street.  The Board also found that the sale at 41 Norman Street provided probative evidence of value for 0 Beacon Street.  Based on these sales, the Board found and ruled that the fair cash value for 0 Beacon Street for both fiscal years 2007 and 2008 was $290,000.
For 1 Beacon Street, the Board found that the sale at Lot 3 Ocean Avenue, which both witnesses used in their appraisal reports, was the most comparable.  The Board further found, however, that the assessors' location adjustment was not warranted due to the negative influences on 1 Beacon Street as a result of the adjacent commercial businesses and public boat ramp.  Therefore, based on the evidence presented, the Board found and ruled that the fair market value for 1 Beacon Street for fiscal year 2007 was $3,800,000.  
For fiscal year 2008, the Board found that single-family residential properties in Marblehead had experienced a loss in value from January 1, 2006 through January 1, 2008.  Therefore, the Board found and ruled that a decline in market value of $125,000 was appropriate, which resulted in a fair cash value for 1 Beacon Street of $3,675,000 for fiscal year 2008.  
In evaluating the evidence before it, the Board selected from among the various elements of value and formed its own independent judgment of fair cash value.  General Electric, 393 Mass. at 605; North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941). 

On this basis, the Board found and ruled that the appellants met their burden of proving that the subject properties were overvalued for fiscal years 2007 and 2008.  Accordingly, the Board decided these appeals for the appellants and ordered abatements as follows:
Docket No.	Fiscal Year	
Address	Assessed Value	Fair Cash Value	Over-valuation	
Abatement	
F288171	2007	0 Beacon St	 $  902,100 
 (as abated)	 $  290,000	 $612,100	$4,749.90	
F288172	2007	1 Beacon St	 $4,592,300	 $3,800,000	 $792,300	$6,148.25	
F294114	2008	0 Beacon St	 $  512,800	 $  290,000	 $222,800	$1,858.15	
F294115	2008	1 Beacon St	 $4,356,100	 $3,675,000	 $681,100	$5,680.37	


					 THE APPELLATE TAX BOARD

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


A true copy,

Attest:		______			
	      Clerk of the Board

ATB 2009-82