William F. Carney v. Board of Assessors of the Town of Plymouth (April 10, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


WILLIAM F. CARNEY           v.        BOARD OF ASSESSORS OF                                  
   THE TOWN OF PLYMOUTH
 
Docket No. F281413				   Promulgated:
							   April 10, 2008

		  		   				
	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 ("appellee" or "assessors") to abate taxes on real estate located in the Town of Plymouth, owned by and assessed to appellant William F. Carney ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2005.
Commissioner Gorton heard this appeal. With Commissioner Gorton materially participating in the deliberations of this appeal, Chairman Hammond and Commissioners Scharaffa, Egan, Rose, and Mulhern joined in the decision for the appellee.
These findings of fact and report are made on the Appellate Tax Board's ("Board's") own motion under G.L. c. 58A, § 13 and 831 CMR 1.32 and are promulgated simultaneously with its decision.

William F. Carney, pro se, for the appellant.
Patrick J. Costello, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2004, appellant William F. Carney was the assessed owner of a parcel of real estate located at 230 Manomet Point Road in the Town of Plymouth. The parcel has a land area of 0.11 acres and is improved with a ranch-style cottage dwelling. The ocean-front property is situated behind an area of rocky shoals, with easy access to the beaches nearby. 
	The actual tax bill for the subject property was sent on December 31, 2004. Taxes due were timely paid without incurring interest. Appellant filed an Application for Abatement on January 25, 2005. The application was denied by a vote of the assessors on April 19, 2005. Appellant timely filed a Petition Under Formal Procedure with the Board on July 15, 2005, commencing the instant appeal. The foregoing facts establish the Board's jurisdiction over this appeal. 
	The assessed value of the subject property for fiscal year 2005 was $655,900. Of that total, the property record card states a building value of $79,300 and a land value of $576,600. The structure is wood-frame with an asphalt-covered roof and sits on a concrete foundation. The finished area is 1008 square feet. It was built in 1920 and is heated with oil-fueled forced hot water. The cottage has a deck overlooking the water. 
	Mr. Carney's principal complaint related to the portion of the assessed value assigned to the subject land at $576,600. He said that the property's exposure to high waves during nor'easter storms impaired its value. He argued that his lot was overassessed relative to the land values imputed to neighboring properties. He maintained that the property at 212 Manomet Point Road enjoyed a superior location, with direct beach frontage, but had a land value less than that of the subject property at $526,400. 220 Manomet Point Road was also said to have advantageous beach frontage, with a land value of $585,100. 
Mr. Carney asserted that a neighboring property at 228 Manomet Point Road sold for $350,000 one year after the relevant assessment date. However, Mr. Carney did not offer property record cards or sales information for the properties to which he drew comparisons, relying on his testimony alone. The assessors indicated that the sale of 228 Manomet Point Road was not an arms-length transaction. 
	Mr. Carney's opinion of value for the parcel as improved was $300,000. His opinion of the land value alone was $221,700. 
	The assessors offered an analysis of comparable sales from the immediate area of the subject property, in defense of the disputed assessment. The assessors' submission, unlike appellant's, was supported by property record cards and deeds. First, they cited the October 24, 2003 sale of 125G Taylor Avenue for $725,000. The parcel at 125G Taylor Avenue is 0.13 acres in size, and is improved with a two-story colonial dwelling built in 1997, with a finished area of 1920 square feet. The assessors made upward adjustments to the sale price for the inferior location and view, and a downward adjustment for the larger finished area of the residence at 125G Taylor Avenue, to arrive at an indicated value of $715,720.
	The assessors also relied on the November 7, 2003 sale of 6 Boathouse Lane for $825,000. The 0.23 acre parcel had a similar location and view, but a larger land area. The 2-story colonial dwelling had a finished area of 2,609 square feet. The assessors arrived at an indicated value of $654,925 by adjusting the sale price of the 6 Boathouse Lane property.
	The third sale the assessors relied upon was that of the property at 15 Arnold Avenue, where a two-and-one-half story Victorian dwelling on 0.55 acres of land sold for $825,000 on December 19, 2003. The residence at 15 Arnold Avenue had 2,528 square feet of finished area. The assessors adjusted the sale price upward for an inferior location and view, but made downward adjustments for the larger lot and residence. The assessors derived an indicated value of $749,900 for the subject property from the comparison to 15 Arnold Avenue.
	Finally, the assessors pointed to the sale of 21 Arnold Avenue on July 19, 2004 for $837,000. The property had a one-story ranch dwelling with a finished area of 2,021 square feet, situated on a 0.58-acre lot. The assessors made an upward adjustment to the sale price for the inferior location and view of 21 Arnold Avenue, and downward adjustments for the time lapse between the valuation date and the date of sale, and the larger size of the lot and residence. The assessors arrived at an indicated value of $656,555 from the sale of 21 Arnold Avenue. 
	The assessors also offered the property record card for 224 Manomet Point Road, which was on the market at the time of the trial. That 0.11 acre lot, more proximate to the subject property than any of the assessors' proposed comparable sales, was assessed for $576,600, identical to the assessed land value of the subject property.
Relying on the hearing officer's observations as to matters of witness credibility, the Board found and ruled that appellant did not meet his burden of proving that the subject property had a value lower than that assessed. Appellant failed to offer assessment records or other documentation for his comparable sale and assessment properties. The Board had only the appellant's testimony regarding the assertedly comparable properties. The appellant offered scant descriptive details for the proposed comparison properties. Without the property record cards or other documentation about the comparison properties, appellant's showing was not persuasive. 
A corollary of the lack of information about the other properties was appellant's failure to establish basic comparability between the subject property and the properties he used for purposes of comparison. Without a showing of basic comparability, the assessed values of the other properties lacked probative force as indications of the value of the subject property. 
	Moreover, appellant did not offer sufficient information about the claimed sale of the property at 228 Manomet Point Road to permit its use for sales comparison purposes. Appellant's argument relating to the assessed land value of the subject property only was not persuasive in proving overall overvaluation. Finally, the market analysis prepared by the assessors supplied some evidence that the subject property was not overvalued, although the locations of many of the comparable properties and their improvements raised serious questions as to their comparability with the subject property. 
	In sum, appellant failed to prove that the fair cash value of the subject property was less than the amount assessed. The Board accordingly decided the instant appeal in favor of the appellee assessors.

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 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 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 taxpayers . . . prov[e] the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 363 Mass. at 245).
	Real estate valuation experts, the courts, and this Board generally utilize three principal methods to arrive at fair cash value: the cost approach, income capitalization, and comparable sales analysis. See Correia v New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978). In valuing owner-occupied residential property, this Board has tended to rely on the comparable sales or market approach to value.  See Lyons v. Assessors of Wilbraham, Mass. ATB Findings of Facts and Reports 2004-385, 2004-398-400; Sisk v. Assessors of Essex, Mass. ATB Findings of Fact and Reports 1997-528, 1997-537, aff'd, 426 Mass. 651 (1997).  "Evidence of the sale prices of 'reasonably comparable property' is the next best evidence to the sale of the property in question." Lattuca v. Robsham, 442 Mass. 205, 216 (2004)(Citation omitted.) Required are "'fundamental similarities'" between the subject property and the comparison properties. See Lattuca, 442 Mass. at 216. (Citation omitted.)
"The appellant bears the burden of 'establishing the comparability of … properties [used for comparison] to the subject propert[ies].'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Report 2008-213, 2008-225. (Citation omitted.) "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value." New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981). 
"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). Other properties the assessed values of which are relied upon must be comparable to the subject property in order to be probative of the fair cash value. See id. "Moreover, reliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value." Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 2007-403.
An owner of real estate, having adequate familiarity with his property, may offer an opinion as to its value. 45 Rice Street Realty Trust v. Assessors of Cambridge, Mass. ATB Findings of Fact and Reports 2007-1269, 2007-1328. "Nevertheless, the rule permitting an owner to express an opinion of value as to his own property coexists with the 'well-settled [principle] that 'the value of property … [is] a proper matter for expert opinion.'" Id. at 2007-1328. (Citation omitted.)
In the instant appeal, appellant's reliance on the assessed values of nearby properties as indicators of the value of the subject property was entitled to less weight because he failed to offer substantiating information about the proposed comparable assessments, such as the property record cards. See Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 2006-779-80. The Board also lacked narrative or descriptive information about the other properties needed to supply an evidentiary basis for a finding of basic comparability to the subject property. See Wood, Mass. ATB Findings of Fact and Reports at 2008-228. Moreover, "reliance on unadjusted assessments of assertedly comparable properties … was insufficient to justify a value lower than that" assessed. Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 2008-71. Further undercutting the reliability of appellant's comparable assessment evidence was the property record card for 224 Manomet Point Road, offered by the assessors, which showed that a neighboring parcel with the same land area as the subject parcel was assessed at the same value. 
"[A] taxpayer does not conclusively establish a right to an abatement merely by showing that his land 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.'" Hinds, Mass. ATB Findings of Fact and Reports at 2006-778, quoting Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941). The appellant's evidence "challenging the value of the land component of the subject assessment" failed to demonstrate "that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date." Hinds, Mass. ATB Findings of Fact and Reports at 2006-779. 
In contrast to the taxpayer's unsubstantiated testimony about the assessed values of other beachfront properties, the assessors offered some evidence of sales of properties claimed to be comparable, and made adjustments for their differences with the subject property. The assessors' evidence of comparable sales transactions provided some support for the value of the subject property as assessed, although their locations and improvements differed significantly from those of the subject property.
A finding of fair cash value by the Board requires factual support in substantial evidence. See General Electric, 393 Mass. at 610. "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" RCN-BecoCom, LLC v. Commissioner of Revenue, 443 Mass. 198, 204 (2005). (Citation omitted.) "[T]he fair cash value of property 'could not be proved with mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment.'" Montaup Electric Co. v. Assessors of Whitman, 390 Mass. 847, 854 (1984), quoting Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of the evidence, and inferences that reasonably may be drawn from the evidence are matters for the board." General Mills, Inc. v. Commissioner of Revenue, 440 Mass. 154, 161 (2003).
In the absence of a showing of a fair cash value lower than the assessed value of the subject property, the Board relied on the presumption of the validity of the disputed assessment. See General Electric, 393 Mass. at 598. Accordingly, the Board ruled that the appellant failed to meet his burden of proving overvaluation and decided the instant appeal in favor of the appellee.

                      APPELLATE TAX BOARD


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


A true copy,

Attest: ________________________________
	        Clerk of the Board	

 On September 11, 2006, Commissioner Gorton was sworn as a temporary member of the Appellate Tax Board pursuant to G.L. c. 58A, § 1, his status as a member of the Board having terminated on that date with the appointment and qualification of his successor. See G.L. c. 30, § 8. This appointment was renewed for an additional year commencing September 11, 2007. Commissioner Gorton's material participation in the deliberation of this appeal included, inter alia, drafting and distributing proposed Findings and giving a detailed report on the evidence and his observations as to witness credibility. He also made oral presentations of his recommendations to the Board members. 
 The assessors also offered two sales of properties from outside the immediate area of the subject property.

ATB 2008-443