Stephen A. Greenbaum and Sherre M. Greenbaum v. Board of Assessors of the Town of Wayland (June 23, 2008)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

STEPHEN A. GREENBAUM and      v.    BOARD OF ASSESSORS OF                SHERRE M. GREENBAUM                 THE TOWN OF WAYLAND	

Docket No. F289289			      Promulgated:
							 June 23, 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 Board of Assessors of the Town of Wayland ("assessors" or "appellee") to abate taxes on real estate located in Wayland, owned by and assessed to Stephen A. and Sherre M. Greenbaum ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan, and Rose joined him in the decision for the appellee.
	These Findings of Fact and Report are made pursuant to a request by appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Stephen A. & Sherre M. Greenbaum, pro se, for appellants.

	Mark Lanza, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of 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, 2006 ("relevant date of assessment"), appellants were the assessed owners of a 2.89-acre parcel of real estate located at 161 Plain Road, Wayland ("subject property").  The parcel is improved with a two-story, wood-framed, colonial-style dwelling with a finished living area of 3,031 square feet.  The dwelling has ten rooms, including five bedrooms, as well as four full-bathrooms and one half-bathroom, and a partially finished attic and basement.  There is also a detached garage, an in-ground pool, and an outdoor patio area.    
For fiscal year 2007, the assessors valued the subject property at $1,001,300 and assessed a tax thereon, which appellants timely paid, at a rate of $13.82 per thousand plus a Community Preservation Act surcharge, in the total amount of $14,024.81.  Appellants timely filed an Application for Abatement on January 29, 2007.  On April 24, 2007, the assessors granted a partial abatement and reduced the assessment of the subject property to $919,697.  On May 7, 2007, the assessors granted a further abatement reducing the assessed value of the subject property to $917,200.    Appellants seasonably filed their appeal with the Board on June 6, 2007.  Based on these facts, the Board found that it had jurisdiction over this appeal.
Appellants argued that the fair cash value of the subject property on the relevant assessment date was $804,639, and that the subject property was therefore overvalued for fiscal year 2007.  Specifically, appellants argued that the land component of the subject assessment was too high due to the assessors' failure to properly account for the area's high traffic volume and their parcel's steep slopes and wetlands.  
Appellants maintained that Plain Road is a heavily traveled road, principally because it is used as a cut-through road connecting State Routes 30 and 126.  To support this claim, appellants offered into evidence the testimony of Mrs. Greenbaum and a traffic count study that she conducted during the peak morning hours of 7:00 A.M. to 9:00 A.M., and the peak evening hours of 4:30 P.M. to 6:30 P.M., on September 25, 2005.  Mrs. Greenbaum testified that during these peak hours, 464 vehicles traveled eastbound and 331 vehicles traveled westbound, respectively.  
Appellants also offered into evidence Wayland's Town Master Plan dated August 2004 ("Master Plan").  The Master Plan Advisory Task Force, which included residents and various Town boards, listed in the Master Plan several streets, including Plain Road, which would benefit from traffic "calming techniques."  
Appellants also presented the property record cards for 199 Concord Road and 265 Old Connecticut Path. Appellants noted that both properties were assigned a condition factor of 0.90 for traffic.  Appellants argued that the same condition factor adjustment should have been assigned to the subject property's land value to account for the heavy traffic.  Instead, appellants maintained, the subject property was valued in a manner similar to properties located on less traveled streets.
Mrs. Greenbaum also testified that the rear portion of the subject property has wetlands with steep slopes that drop off into a swamp.  In support of this claim, appellants offered into evidence two documents.  First, in an internal memo dated March 16, 2000 from Carol Gumbart, Wayland's former conservation administrator, to Molly Reed, Wayland assistant assessor, Ms. Gumbart noted that she had visited the subject property and "found the rear section in a naturally vegetated condition with steep slopes that drop off into a swamp."  A second memo dated April 9, 2007, written by Brian Monahan, Wayland's current conservation commissioner, to Ellen Brideau, Wayland's assistant administrator, noted that although the geographic information survey ("GIS") maps do not show wetlands on the subject property, a survey on file for the adjacent property located at 169 Plain Road, depicted some wetlands at the rear of the subject property.  Appellants did not, however, commission a wetlands survey of the subject property and did not produce other maps or photographs showing the existence or extent of wetlands.  
Appellants presented the property record card for 153 Glezen Lane which listed a condition factor of 0.75 for "shape/size wetlands."  Appellants argued that the subject property's land value should be assigned the same 0.75 condition factor adjustment, thereby reducing the subject property's assessed land value. 
Lastly, appellants suggested that the assessors erred by placing a significant portion of the subject parcel, 20,448 square feet, into the higher valued category of "residual land" instead of the lower valued category of "back area."  Appellants' proposed reallocation was based solely on their estimates and they offered no supporting topographical survey or other evidence.  
Molly Reed, assistant assessor for Wayland, testified on behalf of the assessors.  Ms. Reed acknowledged that various properties in Wayland receive a discount for both excessive traffic and/or wetlands.  She testified that the assessors generally adjust for traffic issues only for properties located on marked routes such as Routes 20, 27, 30, 126, and the Massachusetts Turnpike.  She further testified that the assessors occasionally grant traffic adjustments for other properties and that they base these adjustments on a sales analysis of properties located on the purported heavily trafficked road compared to town-wide sales.  The sales analyses for calendar year 2005 indicated that traffic was not a factor which would warrant an adjustment for the subject property.  Therefore, the assessors made no adjustment for traffic for properties located on Plain Road, including the subject property.  The assessors offered no further evidence and relied on the presumed validity of the assessment.
On the basis of the evidence presented, the Board found that appellants did not provide credible affirmative evidence to support their claim that the subject property's overall assessment, as abated, was excessive.  The Board found that while certain properties in Wayland may receive a condition factor adjustment to account for the negative impact on the property's market value due to excessive traffic, appellants failed to demonstrate how, and to what extent, the subject property's fair cash value was impacted by excessive traffic.  Therefore, the Board found that appellants failed to prove how the assessors' failure to make a condition factor adjustment resulted in overvaluation of the subject property.  
Further, the Board found that although appellants presented cursory evidence suggesting that there may be wetlands on the subject property, they failed to provide sufficient documentary evidence, such as a wetlands delineation report or even photographs, to prove that wetlands existed and to what extent.  Moreover, assuming that wetlands did exist, the Board found that appellants failed to prove the impact of any wetlands on the subject property's overall fair cash value.  
	Accordingly, the Board found that appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2007.

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).  
Appellants have the burden of proving that their property had 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).
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. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  "[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.'" Leonard & Debora Hinds v. Board of Assessors of the Town of Manchester-by-the-sea, Mass. ATB Findings of Fact and Reports at 2006-771, 778 (quoting Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941)). 
In the present appeal, the Board found and ruled that appellants failed to introduce sufficient credible evidence showing that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.  Appellants argued that the subject property was over assessed due to the assessors' failure to make condition factor adjustments to the land value to account for the area's heavy traffic and the parcel's steep slopes and wetlands.  The Board, however, found that appellants failed to sufficiently prove the existence or extent of these perceived deficiencies or how they negatively impacted the subject property's fair market value.  As in Hinds, supra, appellants' 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.
Therefore, the Board found and ruled that the subject property was not overvalued for the fiscal year at issue.  Accordingly, the Board issued a decision for the appellee in this appeal.


                      APPELLATE TAX BOARD


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





A true copy,

Attest: ________________________________
	        Clerk of the Board	

ATB 2008-797