Richard Dixon & Another v. Board of Assessors of the Town of Sherborn (December 23, 2002)

COMMONWEALTH OF MASSACHUSETTS
 
APPELLATE TAX BOARD
 
 
 
RICHARD DIXON & Another		v.	BOARD OF ASSESSORS OF 
							THE TOWN OF SHERBORN
 
 
Docket No. F262599				Promulgated:
 							December 23, 2002
 
 
	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and c. 59, §§ 64 and 65, from the refusal of the appellee Board of Assessors to abate a tax on certain real estate located in the town of Sherborn, owned by and assessed to the appellants under G.L. c. 59, § 38, for fiscal year 2002.
	Commissioner Scharaffa heard the appeal and, in accordance with G.L. c. 58A, § 1A, issued a single-member decision for the appellants and granted an abatement in the amount of $523.60.
	These findings of fact and report are promulgated at the request of both the appellants and the appellee pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.
 
	Richard Dixon, pro se, for the appellants.
	Yvonne Remillard, Assessor, for the appellee.
 
FINDINGS OF FACT AND REPORT
	On January 1, 2001, Richard and Margaret Dixon ("the appellants") were the assessed owners of a parcel of real estate situated at 177 Maple Street, Sherborn ("the subject property").  For fiscal year 2002 ("the fiscal year at issue"), the Board of Assessors ("assessors") valued the subject property at $445,000 and assessed a tax at the rate of $14.96 per thousand, in the amount of $6,657.20.  The fiscal year 2001 assessment is broken down as follows:
	Land (@ $2.13 per square foot)			$284,200
	
Residence	(@ $62.66 per square foot)		$130,200
	
	Yard Items							$ 30,600
 
On November 1, 2001, the appellants filed an application for abatement with the assessors.  The assessors denied the application on December 6, 2001, and on January 31, 2002, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  Based on these facts, the Board found that it had jurisdiction over the subject appeal.
	The subject property is a 3.06-acre parcel improved with a two-story, "Cape" style dwelling, built in 1973.  The home has seven rooms including three bedrooms, one-and-a-half baths, and one fireplace, and has a total finished living area of 2078 square feet.  Overall, the property is in average condition.  There is also a full, unfinished basement.
	The home's heat is provided by oil with forced hot water.  The home has a well and a septic system.  Because the property has not been updated since it was built in 1973, there are many needed improvements, including updating the plumbing, electrical system, the bathroom fixtures, and outdated kitchen appliances.  
	Also on the property is a two-car carport, a small woodshed and a two-story barn.  The landscaping immediately surrounding the dwelling needs to be improved but the walkways and driveway are in good condition.  The driveway is eight-hundred feet long and is shared with a neighbor.  The parcel has no frontage on a town road.  
	In support of their contention that the subject property was over-valued for fiscal year 2001, the appellants offered into evidence the property record cards for certain properties located in the town of Sherborn.  Mr. Dixon testified, and the town map supports, that these properties are in close proximity to the subject property.  The following table is a summation of the properties' relevant information pertaining to their assessments for fiscal year 2002.
 
Location	Lot
Size (sf)	Land
Assessment	Finished Area (sf)	Building Assessment	
15 Brook	 87,120.00	$230,900	1815	$101,000	
18 Brook	44,866.80	$201,400	1344	$ 86,100	
9 Pleasant	112,384.80	$232,400	2208	$119,600	
31 Washington	 36,285.48	$229,500	2300	$103,600	
136 Western	 98,010.00	$219,600	2300	$103,600	
172 Western	 56,628.00	$209,500	1602	$126,600	
176 Western	 48,351.60	$203,600	1659	$102,200	
236 Western	 44,866.80	$201,400	1504	$128,800	
230 Western	 44,866.80	$201,400	2314	$135,700	
272 Western	275,734.80	$233,156	2340	$149,400	
90 Maple	222,156.00	$291,700	2296	$183,500	
 
As shown in the preceding table, the properties range in size from 0.833 acre to 6.33 acres with assessed values that range from $229,600 to $291,700.  The finished building area for the dwellings ranged in size from the smallest with 1344 square feet of finished area and an assessed value of $86,100 ($64.06 per square foot), to the largest with 2340 square feet of finished area and an assessed value of $149,400 ($63.85 per square foot).  
The appellant also offered into evidence property record cards for other properties located in Sherborn, which are on lots that range from 2.04 to 2.36 acres and which have finished living area larger than the subject property.  All of the homes have either four or five bedrooms, two-and-a-half baths, and a two-car garage.  In addition some have screened porches.  Despite these substantial differences, all of these homes were assessed in the mid-range of $400,000, as was the subject property. 
To support the assessment, the assessors offered into evidence a report prepared by Yvonne Remillard, Deputy Assessor for the town of Sherborn.  In her report, Ms. Remillard maintains that she relied primarily upon the direct sales comparison approach to value the subject property.  She claims to have researched the Sherborn Assessors' office and also the Greater Boston Multiple Listing Service, in search of sales in Sherborn, and ultimately selected three sales which she determined to be comparable to the subject property.  
The first sale, located at 130 Nason Hill Road, is a 6.162 acre parcel improved with a seven room, four-bedroom, two-bath dwelling.  There is a two-car attached garage, a barn with a loft, and two fireplaces, with a finished living area of 2114 square feet.  There is a full basement approximately thirty-percent finished with a recreation room.  The home is nicely landscaped and has both open and screened porch areas.  For fiscal year 2002, the assessors valued the property as of January 1, 2001 at $500,100.  Ms. Remillard testified that the property sold for $505,000 on May 17, 2000.
	The second comparable, located at 208 South Main Street, is a 2.63 acre parcel improved with a three-bedroom, two-bath residence, with a finished living area of 2180 square feet.  The home also has a two-car attached garage, three fireplaces, an enclosed porch and central air conditioning.  Ms. Remillard listed the property as "very good" condition.  For the fiscal year at issue, the assessors valued the property as of January 1, 2001 at $419,500.  Ms. Remillard testified that the property sold on March 2, 2000, for $520,000.
	The last comparable, located at 102 Coolidge Street, is a 2.73 acre parcel improved with a four-bedroom, two-bath dwelling with a finished living area of 2199 square feet.  This home also has a two-car detached garage and two fireplaces.  There is an enclosed porch area, a screened porch area, and an open porch area.  There is a full basement approximately seventy-percent finished.  Ms. Remillard also listed this property as "very good" condition.  For fiscal year 2002 the assessors valued the property as of January 1, 2001 at $425,900.  This property, according to Ms. Remillard, sold on September 26, 2000, for $520,000.  
Ms. Remillard's report states that she made adjustments for differences between the subject property and the purported comparables, including the following:  time of sale, site size, location, landscaping and topography, age of building, number of bathrooms, square footage, garage and porches, fireplaces and barn, and overall functionality.  Relying on the three comparables and the adjustments made, finding sales #1 and #3 to be most comparable to the subject property, Ms. Remillard estimated the subject property's fair cash value to be $495,000. 
	Notably, Ms. Remillard's report did not include, nor did the assessors offer into evidence, either the property record cards for these properties or the deeds evidencing the sale transactions.  Also, as evidenced by her report, none of the three properties was located in the vicinity of the subject property.  	
Based on the evidence presented, the presiding member found and ruled that the appellants met their burden of proving that the subject property was overvalued for fiscal year 2002.  According to the property record cards offered into evidence, the presiding member found that although the property located at 9 Pleasant Street was slightly smaller in land size than the subject property, it was valued at a lower per-square-foot price.  The presiding member further found that although the property had more finished living area, including a second full bath a screened porch and a two-car garage, it was assessed at a lower value.    The presiding member also found that the appellants demonstrated that there were other larger dwellings assessed at lower values than the subject property.
Moreover, the presiding member found that the assessors' report contained flaws and errors.  Ms. Remillard failed to adequately explain how the adjustment dollar values were determined but instead noted that she consulted with a third party.  Also, the presiding member found that the report contained miscalculations.  For example, Ms. Remillard's report indicates that she made a $1,000 per-year adjustment to account for the difference in age between the comparables and the subject property.  With respect to comparables #1 and #3, however, she used incorrect adjustment amounts.  Property #1 is thirty-six years old compared to the subject property's twenty-eight years, an eight-year difference, which should have resulted in an $8,000 adjustment.  Ms. Remillard, however, used only a $6,000 adjustment.  A similar error was made for sale #3, which was nine years older than the subject property yet Ms. Remillard applied an $11,000 adjustment.
Based on the evidence presented, the presiding member found that the subject property was overvalued for fiscal year 2002 and that the fair cash value for the property was $410,000 and granted an abatement in the amount of $523.60.
  
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 his burden of proving otherwise.  Chalkier v. Board of Assessors of Great Barrington, 356 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 his property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  In appeals before this Board, the appellants "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).
	In the present appeal, the appellant Mr. Dixon offered his opinion of the subject property's fair cash value for the fiscal year at issue.  Generally, an owner of property is competent to testify to his or her opinion of value of the property.  See Board of Assessors of Holbrook v. Dennehey, 357 Mass. 243, 245 (1970)("as an owner of the property in question, he 'is assumed to have a knowledge of his property adequate to form an intelligent estimate of its value.'")  See also Correia v. New Bedford Redevelopment Authority, 5 Mass. App. Ct. 289, 295 (1977), rev'd on other grounds, 375 Mass. 360 (1978).  In this appeal, the presiding member found and ruled that the appellants possessed the requisite familiarity, knowledge, and experience about the property to express an opinion of value.  	
In support of his contention that the subject property was overvalued for fiscal year 2002, Mr. Dixon offered into evidence the property record cards for several properties located in close proximity to the subject property, one being on the same street.  	At any hearing relative to the assessed fair cash valuation or classification of property, evidence as to the fair cash valuation or classification of property at which the assessors have assessed other property of a comparable nature or class shall be admissible.  G.L. c. 58A, § 12B.  In the present appeal, the presiding member found and ruled that the property assessments offered into evidence by the appellants was probative evidence that the subject property was overvalued for fiscal year 2002.
The presiding member found that several of the properties offered into evidence by the appellant, which had larger finished living areas than the subject property, were assessed at values lower than the subject property's assessed building value.  In addition, there were smaller properties that carried a lower per-square-foot land assessment.  
	The presiding member further found that Ms. Remillard's report was flawed and, consequently unreliable.  First, Ms. Remillard failed to offer supporting documentation for the sales, either deeds or property record cards.  Next, Ms. Remillard failed to adequately explain how the various dollar value adjustments were derived.  Lastly, the presiding member found miscalculations in the report bringing into question the overall reliability.
 	In evaluating the evidence before him, the presiding member selected from among the various elements of value and formed his own independent judgment of fair cash value.  See General Electric v. Assessors of Lynn 393 Mass. 591, 605 (1984); 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 proved with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and the inferences to be drawn from the evidence are matters for the Board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).












Based on the evidence presented, the presiding member found and ruled that the appellants offered affirmative evidence exposing flaws in the assessors' valuation of the subject property for fiscal year 2002.  The presiding member further found and ruled that the fair cash value of the subject property for fiscal year 2002 was $410,000.  Accordingly, the presiding member issued a single-member decision for the appellants and granted an abatement in the amount of $523.60.     


				    APPELLATE TAX BOARD
							
				 By:              				_____					    	    Abigail A. Burns, Chairman



A true copy,



Attest:					
    Clerk of the Board

ATB 2002-734