F288512; F294152; F294218

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COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

145 SUMNER AVENUE, L.P. v. BOARD OF ASSESSORS OF and RUSSELL L. SEELIG THE CITY OF SPRINGFIELD

Docket Nos. F288512-13 Promulgated:
F294152 April 13, 2010
F294218

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 Board of Assessors of the City of Springfield ("assessors" or "appellee") to abate real estate tax on certain real estate in the City of Springfield, owned by and assessed to Russell L. Seelig and/or 145 Sumner Avenue L.P. (together, "appellants") under G.L. c. 59, §§ 11 and 38 for fiscal years 2007 and 2008 ("fiscal years at issue").
Commissioner Rose heard these appeals. Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern joined him in issuing decisions for the appellants.
These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

Robert M. Finkel, Esq. and Diana Espanola, Esq. for the appellants.

Patricia Bobba Donovan, Esq. for the appellee.

FINDINGS OF FACT AND REPORT

On the basis of the Statement of Agreed Facts and attached documents, testimony, and other exhibits offered into evidence in 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 dates of assessment for the fiscal years at issue, appellant Russell L. Seelig was the assessed owner of a 10,454 square-foot parcel of land located at 290 Sumner Avenue in Springfield. 290 Sumner Avenue was improved with a four-story, brick apartment building containing twenty units, twelve of which were one-bedroom, one-bathroom apartments, and eight of which were two-bedroom, two-bathroom apartments. For fiscal year 2007, the assessors valued 290 Sumner Avenue at $845,200, and assessed a tax thereon, at a rate of $16.04 per $1,000, in the total amount of $13,557.01. For fiscal year 2008, the assessors valued 290 Sumner Avenue at $922,500, and assessed a tax thereon, at a rate of $16.03 per $1,000, in the total amount of $14,787.68.
On January 1, 2006 and January 1, 2007, appellant 145 Sumner Avenue L.P. was the assessed owner of a 26,276 square-foot parcel of land located at 145 Sumner Avenue in Springfield. 145 Sumner Avenue was improved with a four-story, brick apartment building containing forty units, twenty-four of which were one-bedroom, one-bathroom apartments and sixteen of which were two-bedroom, two-bathroom apartments. For fiscal year 2007, the assessors valued 145 Sumner Avenue at $1,690,400 and assessed a tax thereon, at the rate of $16.04 per $1,000, in the total amount of $27,114.02. For fiscal year 2008, the assessors valued 145 Sumner Avenue at $1,844,900 and assessed a tax thereon, at a rate of $16.03 per $1,000, in the total amount of $14,787.68.
The appellants timely paid the taxes due for 290 Sumner Avenue and 145 Sumner Avenue (together, the "subject properties"), for both of the fiscal years at issue, without incurring interest. The appellants timely filed their Applications for Abatement for fiscal year 2007 with the assessors on January 23, 2007. By vote of the assessors, those abatement applications were denied on April 10, 2007, and notice of the denial was given to the appellants on April 13, 2007. The appellants timely filed their petitions with the Board on May 10, 2007.
The appellants timely filed their Applications for Abatement for fiscal year 2008 with the assessors on January 10, 2008. The abatement applications were denied on March 4, 2008. The appellants timely filed their petitions with the Board on April 1, 2008. On the basis of the foregoing, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
In challenging the assessments at issue, the appellants initially raised both overvaluation and disproportionate assessment claims. However, subsequent to the hearing of these appeals, but prior to the Board's decisions, the parties stipulated to the fair cash value of the subject properties. The fair cash values stipulated to by the parties were lower than the assessed values of the subject properties, and the parties' stipulation therefore resulted in decisions for the appellants. Following that stipulation, the issue of valuation was no longer before the Board and the only issue remaining for the Board's consideration was the disproportionate assessment claim.
The Appellants' Disproportionate Assessment Claim
During the course of pre-trial litigation in these appeals, the appellants sought information in discovery regarding approximately 150 properties in Springfield, each of which, the appellants alleged, hosted cell towers, antennae, or billboards. It was the appellants' position that the assessors engaged in a deliberate scheme of undervaluing properties hosting such structures ("host properties"), both by improperly using the cost-reproduction methodology rather to value the cell towers, antennae, and billboards, and also by failing to consider income generated by the structures in determining the value of the host properties. The appellants alleged that this practice resulted in discrimination against the appellants, because the subject properties, which were not host properties, were assessed at their full, fair cash value, while approximately 150 host properties in Springfield were not.
The assessors, in turn, filed a Motion in Limine with the Board, asking the Board to issue an Order precluding the introduction of any evidence relating to the sale, valuation, or assessment of cell towers, antennae, or billboards, or of host properties, among other things. It was the assessors' position that such evidence was wholly irrelevant to the issues before the Board. For reasons discussed more fully in the Opinion below, the Board allowed the assessors' Motion in Limine, and issued an Order precluding the introduction of evidence or testimony regarding the sale, valuation, or assessment of cell towers, antennae, billboards, or host properties in Springfield, as it related to appellants' claims of disproportionate assessment. The Board issued this Order based on its finding that the allegations made by the appellants, even if true, would not show that the assessors intentionally and deliberately engaged in a discriminatory scheme of disproportionate assessment. Rather, the Board found and ruled that the appellants' allegations, if proven, could at best show that the assessors made an error or honest mistake in assessing the host properties. Accordingly, the Board found and ruled that the appellants could not and did not prove that the assessors engaged in an intentional scheme of discrimination in setting the assessments at issue or in assessing any other properties or class of properties in Springfield during the fiscal years at issue.
In accordance with the parties' stipulated fair cash values, which the Board adopted, the Board decided these appeals for the appellants and ordered abatements in the following amounts:

Property Fiscal Year Assessed Value Fair Cash Value Over-
valuation Abatement
290 Sumner Avenue 2007 $845,200 $770,000 $75,200 $1,206.21
290 Summer Avenue 2008 $922,500 $820,000 $102,000 $1,643.08
145 Sumner Avenue 2007 $1,690,400 $1,565,000 $125,400 $2,011.42
145 Summer Avenue 2008 $1,844,900 $1,650,000 $194,900 $3,124.25

OPINION
The assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value. Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth; art. 10 of the Declaration of Rights; G.L. c. 59, §§ 38, 52. See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975)(citations omitted). Fair cash value means fair market value, which 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).
A taxpayer aggrieved by the assessment of his property may appeal to the Board for an abatement of the tax. Taxpayers have two avenues by which to pursue a claim for abatement. First, a taxpayer may challenge the valuation of his property "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 addition, "[i]f the taxpayer can demonstrate in an appeal to the board that he has been a 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 assessment principles.'" Coomey, 367 Mass. at 838, (quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1965)).
Regardless of the route chosen by the taxpayer, "the board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] . . . prov[es] the contrary.'" General Electric Co., 393 Mass. at 598, (quoting Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974). In appeals before this Board, "[t]he burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" Schlaiker, 365 Mass. at 245, (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). As with claims of overvaluation, the burden of proof as to existence of a scheme of discriminatory, disproportionate assessment is on the taxpayer. See First National Stores, Inc. v. Board of Assessors of Somerville, 358 Mass. 554, 559 (1971); see also Schlaiker, 365 Mass. at 245.
The appellants originally raised both overvaluation and disproportionate assessment claims with respect to the subject properties for both of the fiscal years at issue. Subsequent to the hearing of these appeals, but prior to the Board's decisions, the parties stipulated to the fair cash values of the subject properties, and the Board adopted those values. Therefore, the only issue to be determined by the Board was the issue of disproportionate assessment.
In their filings with the Board, the appellants contended that their property was disproportionately assessed because the assessors failed to assess approximately 150 host properties in Springfield at their full, fair cash value. The appellants asserted that the assessors improperly undervalued the cell towers, antennae and billboards by using the cost-reproduction method to value them instead of the income-capitalization and/or sales-comparison approach. Further, the appellants contended that the assessors undervalued the host properties by failing to include the rental income generated by the cell towers, antennae and billboards in calculating the fair cash value of the host properties. The Board found and ruled that, even if these allegations were true, they would not prove that the subject properties were disproportionately assessed. The Board notes that the open-ended and voluminous discovery requested by the appellants would have done nothing to advance a claim of disproportion. The record before the Board indicated that neither the subject apartment buildings nor any apartment buildings in Springfield had billboards, cell towers or antennae. The appellants' attempts to arbitrarily construct a subclass of commercial property based on a limited cluster of income-producing measures, with no adjustments for comparability, could not give rise to a general scheme of disproportionate assessment where the only issue contested was the methodology that was utilized by the assessors.
To make out a claim of disproportionate assessment, the appellants must show that a "statistically significant number" of properties have been valued at lower assessment-to-fair-cash-value ratios than the subject property. Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 391, aff'd, Graham v. Assessors of West Tisbury, 73 Mass. App. Ct. 1107 (2008). The appellants must also show that the assessors engaged in an "intentional widespread scheme of discrimination." Graham, Mass. ATB Findings of Fact and Reports at 207-405 (quoting Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982)). To proceed to trial, the appellants must "make specific allegations . . . as would, if proved, establish . . . the precise nature of the lack of uniformity in assessments which he expects to prove and the circumstances indicating that it was intentionally discriminatory, rather than caused by inadvertence, mistake, or incompetence." Stone v. City of Springfield, 341 Mass. 246, 249 (1960). "Except upon clear allegation of specific facts showing a widespread scheme of intentional discrimination rather than merely isolated, inadvertent lack of uniformity . . . an inquiry [is] not required of the Appellate Tax Board." Id. at 251.
The Board found and ruled that the appellants' allegations, even if true, would not support the finding that a deliberate scheme of disproportionate assessment was undertaken by the assessors. The appellants alleged no facts that would prove that the assessors deliberately and intentionally assessed host properties more favorably than other types of property in Springfield so as to discriminate against those other properties. Moreover, in their filings with the Board, the appellants acknowledged the difficulty of valuing structures such as cell towers, antennae, and billboards, given the lack of a market for them and the concomitant dearth of comparable sales. Industry publications corroborate the difficulties inherent in valuing such structures and the real properties hosting them. See The Reenstierna Associates Report, "Billboards," Eric Reenstierna Associates, 1998. Given these difficulties, the Board found that, to the extent the appellants could show that the assessors undervalued any cell towers, antennae and billboards in Springfield, or properties hosting them, such valuations were more "'consistent with honest mistake or oversight on the part of the assessors' as opposed to a 'deliberate scheme of disproportionate assessment.'" Gargano v. Board of Assessors of Barnstable, Mass. ATB Findings of Fact and Reports at 2003-22 (quoting Stilson, 385 Mass. at 728).
With respect to their claim that the assessors improperly used the cost-reproduction methodology rather than the income-capitalization or sales-comparison methodology to value the antennae, billboards and cell towers, the Board found and ruled that this allegation, even if true, was insufficient to prove a scheme of disproportionate assessment. The "use of differing valuation methodologies, without substantially more, will not support a finding of disproportionate assessment. Rather, there must be substantial evidence demonstrating that a class or subclass of properties is valued so that it is shouldering more than its fair share of the property tax, irrespective of methodology." Bell v. Board of Assessors of the City of Boston, Mass. ATB Findings of Fact and Reports 2006-754, 767-68, (citing Stilson, 385 Mass. at 728; Ecker v. Assessors of Chatham, Mass. ATB Findings of Fact and Reports 2003-81, 88-90; Brown v. Assessors of Brookline, Mass. ATB Findings of Fact and Reports 1996-1.)
"Trial judges have broad discretion to control the proceedings before them." Commonwealth v. Jonathan Stockhammer, 409 Mass. 867, 882 (1991). "The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence . . . and in granting such a motion, a judge has discretion similar to that which he has when deciding whether to admit or exclude evidence . . . ." Commonwealth v. Paul Hood, 389 Mass. 581 , 594, (1983) (citations omitted). In the present appeals, the Board found and ruled that the evidence which the appellants sought to admit was irrelevant because it could not support their argument that the subject properties were disproportionately assessed. Moreover, the Board determined that allowing the appellants to conduct factual inquiries involving the valuation of 150 host properties would require a tremendous expenditure of resources for no benefit. The Board therefore allowed the appellee's Motion in Limine and declined to permit the appellants to introduce evidence relating to their disproportionate assessment claims.
In accordance with the parties' stipulated fair cash values, the Board decided these appeals for the appellants and ordered abatements in the following amounts:

APPELLATE TAX BOARD

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

A true copy,

Attest: ______ _____ _____
Clerk of the Board

 Russell L. Seelig was the general partner of 145 Sumner Avenue L.P.  
 For example, the appellants did not request discovery or make any arguments concerning the valuation of buildings with vending machines, parking lots, or any other ancillary income-producing improvements.


ATB 2010-315

145 Sumner Avenue, L.P. & Russell L. Seelig v. Board of Assessors of the City of Springfield(April 13, 2010)

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