Robin L. Foley & Florence Y. Lee v. Board of Assessors of the Town of Eastham (March 11, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



ROBIN L. FOLEY and		  v.	     BOARD OF ASSESSORS OF
FLORENCE Y. LEE				THE TOWN OF EASTHAM

Docket No. F294010				Promulgated:
		  					March 11, 2009


	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 to abate taxes on real estate located in the Town of Eastham, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
	Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern joined him in the decision 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.

	Robin L. Foley, pro se, for the appellants.
	
	Gail Fitzback, assessor, for the appellee.






FINDINGS OF FACT AND REPORT

	Based on the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2007 ("relevant valuation date"), Robin L. Foley and Florence Y. Lee ("appellants") were the assessed owners of a 7,405 square-foot waterfront parcel of real estate located at 7 West Shore Drive ("subject property").  West Shore Drive is a dead-end sandy road, which provides access to one of the area's beaches.  As of the relevant valuation date, the parcel was improved with a small, single-story, wood-framed, seasonal cottage that contained approximately 730 square feet of living area along with an attached open deck, and also a detached outbuilding.  The cottage had two bedrooms and also one bathroom and was in fair condition overall.  
For fiscal year 2008, the Board of Assessors of Eastham ("assessors") valued the subject property at $1,046,300, and assessed a tax thereon, at a rate of $5.08 per thousand, in the total amount of $5,315.20.  The fiscal year 2008 assessment is broken down as follows:
	Land (@ $133.72 per square foot)			$990,200
Residence	(@ $67.81 per square foot)		$ 49,500
	Detached outbuilding					$  6,600
	On September 17, 2007, Eastham's Collector of Taxes mailed the town's first-half fiscal year 2008 tax bills.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax assessed on the subject property without incurring interest.  On October 5, 2007, in accordance with G.L. c. 59, § 59, the appellants filed an Application for Abatement with the assessors, which the assessors denied on December 12, 2007.  Subsequently, on February 25, 2008, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Board.  On this basis, the Board found and ruled that it had jurisdiction over this appeal.
The appellants argued that the subject property was overvalued because the land portion of their assessment was excessive in comparison to nearby properties.  To support their assertion that their land was overvalued, thereby rendering the overall assessment excessive, the appellants offered into evidence the property record cards for the abutting properties located at 5 and 7A West Shore Drive and also for the property located at 21 Galis Way, an adjacent street.  The relevant assessment information for the appellants' comparable assessments is outlined in the following table.

Location	Lot Size (sf)	Assessed Land Value	Assessed Land Value psf	
7 West Shore Drive	7,405	$  990,200	$134	
5 West Shore Drive	8,862	$1,017,400	$115	
7A West Shore Drive	7,841	$  798,000	$102	
21 Gails Way	8,772	$1,013,600	$116	

The appellants argued that while the parcels associated with these neighboring properties were reasonably comparable to the subject property's parcel with respect to location and size, the neighboring parcels' assessed land values were considerably less, ranging from $102 per square foot to $116 per square foot, compared to the subject property's assessed land value of $133.72 per square foot.
The appellants also offered into evidence a sales-comparison of four waterfront properties located within 3.1 miles of the subject property, which sold in Eastham during the period January 2006 through November 2006.  The properties' lot sizes ranged from 14,723 square feet to 25,700 square feet, and their gross living areas varied from approximately 860 square feet to 1,922 square feet.  The properties' sale prices ranged from $890,000 to $1,950,000.  The land value assessments for these properties ranged from $46 per square foot to $73 per square foot.  

Gail Fitzback, a member of the Eastham Board of Assessors, testified for the assessors.  Ms. Fitzback relied on three sales of properties in Eastham that she deemed comparable to the subject property and which occurred during the four-month period prior to the relevant valuation date.  Sale number one, located at 435 Turnip Road, is a 7,405 square-foot, non-waterfront, parcel improved with a bungalow-style dwelling with a total living area of 764 square feet.  The property sold on October 24, 2008 for $725,000.  
Sale number two, located at 245 Harmes Way, is a 23,958 square-foot, waterfront parcel improved with a ranch-style dwelling with a total living area of 1,032 square feet.  This property sold for $1,470,100 on November 6, 2006.  Finally, sale number three, located at 265 Sparrow Road, is a 21,344 square-foot, waterfront parcel improved with a ranch-style dwelling with a total living area of 1,922 square feet.  This property sold on September 22, 2006 for $1,604,900.  On the basis of these sales, Ms. Fitzback concluded that the subject property's assessment was accurate.  
On the basis of the evidence presented, the Board found that the appellants presented credible evidence demonstrating that the subject property was overvalued for fiscal year 2008.  After analyzing the neighboring property's characteristics and assessments, the Board found that the subject property's land assessment value of $133.72 per square foot was excessive compared to neighboring properties' land assessments, which ranged from $102 per square foot to $116 per square foot.  The Board further found that, since the vast majority of the subject parcel's value was in the land, the subject property's overall assessment was similarly excessive.  
The Board found that the comparable sales information offered into evidence by the assessors was not persuasive.  First, although comparable sale number one was similar in lot size and living area, it was not a waterfront property and therefore lacked comparability.  Second, comparable sales number two and number three were significantly larger lots with greater living area and therefore also were not comparable to the subject property.  Finally, the assessors conceded that at least two of their chosen comparables were located in superior neighborhoods, which further undermines the purported comparability of these properties.
The Board, therefore, primarily relied on comparable assessment information in deciding this appeal for the appellant and in reducing the subject property's assessed value from $1,046,300 to $856,300.  Accordingly, the Board granted an abatement in the amount of $965.20. 
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, § 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 appellants have the burden of proving that the property has a lower value than that assessed. "`The burden of proof is upon the petitioner[s] to make out [their] 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)). The assessment is considered to be valid unless the taxpayers meet their burden and prove otherwise.  Id. 
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. v. Assessors of Lynn, 393 Mass. 591, 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeal, the appellants primarily focused on perceived errors in the assessors' separate valuation of the land component of the subject assessment.
A taxpayer does not conclusively establish a right to 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."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  The question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2006-190, 198; Guernsey v. Assessors of Williamstown, Mass. ATB Findings of Fact and Reports 2006-158, 168-69; Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 48-9; Everhart v. Assessors of Dalton, Mass. ATB Findings of Fact and Reports 1985-49, 54.  
General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  The introduction of such evidence may provide adequate support for either the granting or denial of an abatement.  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18. 
In the present appeal, the appellants challenged the value of the land component of the subject assessment to show that the overall assessment exceeded its fair cash value.  The Board found that the subject property's land assessment value was excessive compared to neighboring properties' land assessments.  The Board further found that, since the vast majority of the subject parcel's value was in the land, the subject property's overall assessment was similarly excessive.  The Board therefore found that the land and overall assessments for the subject property were not consistent with the land and overall assessments for neighboring waterfront properties.   
The Board also found that the assessors' chosen comparable sales lacked comparability to the subject property.  Comparable sale number one was not a waterfront property and comparable sales number two and number three were larger lots with greater living areas, located in superior neighborhoods.  Therefore, the Board found and ruled that the comparable sales analysis offered into evidence by the assessors was not helpful to the Board in determining the subject property's fair cash value for the fiscal year at issue.
In reaching its opinion of fair cash value, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation that a witness suggested.  Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 683 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Board of Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 701-702 (1972).  In evaluating the evidence before it in this appeal, the Board selected among the various elements of value and formed its own independent judgment of fair cash value. See General Electric Co., 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. 196, 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 Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
Based on the evidence presented, the Board found and ruled that the appellants met their burden of proving that the subject property's land and overall assessments were excessive.  After comparing the subject property's land assessments to other reasonably comparable waterfront properties' land assessments, the Board found and ruled that the land component of the subject property's assessment was excessive and that the subject property's overall assessment was similarly excessive.  
Accordingly, the Board found that the appellants met their burden of proving that the subject property was overvalued and granted an abatement in the amount of $965.20.
					 APPELLATE TAX BOARD

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




A true copy,

Attest:		______			
	      Clerk of the Board

ATB 2009-222