Sophia Z. & Susan J. Gordon v. Board of Assessors of the City of Newton (December 8, 2010)

			COMMONWEALTH OF MASSACHUSETTS 
APPELLATE TAX BOARD

SOPHIA Z. & SUSAN J. GORDON	 v.    BOARD OF ASSESSORS OF
               	 			  THE CITY OF NEWTON  
		   									  
Docket No. F288619				  Promulgated:
							  December 8, 2010	


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 City of Newton ("assessors" or "appellee") to abate taxes on certain real estate located in Newton owned by and assessed to Sophia Z. & Susan J. Gordon ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2007 ("fiscal year at issue").  
	Commissioner Mulhern heard the appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose 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.

	Stephen F. Gordon, Esq., for the appellants.

James Shaughnessy, assistant assessor, for the appellee.  

			FINDINGS OF FACT AND REPORT 
Based on the testimony and exhibits offered into evidence in this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2006, the relevant date of assessment for the fiscal year at issue, Sophia Gordon and Susan Gordon ("appellants") were the assessed owners of a 15,360- square-foot parcel of land improved with a single-family, ranch-style dwelling located at 1450 Commonwealth Avenue in Newton ("subject property").  For the fiscal year at issue, the assessors valued the subject property at $958,700 and assessed taxes thereon, at the rate of $9.33 per $1,000, in the total amount of $9,034.12.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest.  On January 28, 2007, the appellants filed an Application for Abatement with the assessors.  On February 21, 2007, the assessors granted a partial abatement, reducing the assessed value of the subject property from $958,700 to $890,100.  After the abatement, the total tax on the subject property was reduced from $9,034.12 to $8,387.68.  The appellants seasonably filed an appeal with the Board, which the Board received on May 22, 2007 in an envelope that was postmarked May 21, 2007.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.  
The subject property is situated on a corner lot, at the intersection of Commonwealth Avenue and Dartmouth Street in Newton.  The dwelling on the subject property was built in 1950 and contains 2,225 square feet of finished living area.  The dwelling's exterior is brick veneer with a slate roof cover.  There are a total of six rooms, including two bedrooms, along with two bathrooms.  The dwelling has a gas-fueled, hot-water baseboard heating system, and there is also a central air conditioning system.  Additional features of the dwelling include two fireplaces, a two-car garage and an enclosed porch. 
	The appellants presented their case through documentary submissions and the testimony of Stephen Gordon, the son of appellant Sophia Gordon.  The appellants' evidence primarily consisted of an analysis comparing the assessed value of the subject property to the assessed values of a half-dozen nearby properties located on Commonwealth Avenue in Newton that the appellant deemed similar to the subject property.  The appellants' comparison properties ranged in lot size from 15,420 square feet to 45,980 square feet, with dwellings ranging in size from 2,028 square feet of finished living area to 2,778 square feet of finished living area.  The fiscal year 2007 assessed values of the appellants' comparison properties ranged from $766,000 to $1,926,000.  The appellants argued that their comparative analysis showed that the subject property was overvalued for the fiscal year at issue.  
Further, the appellants claimed that the value of the subject property was negatively impacted by virtue of its location adjacent to a busy commercial enterprise.  The parcel abutting the subject property is home to The Teddy Bear Club, a daycare center which the appellants claimed generated a significant amount of traffic and noise in the immediate vicinity, thereby negatively impacting the fair cash value of the subject property.  
The appellants also reported that on April 3, 2008, the subject property was sold in an arm's-length transaction for $815,000.  The dwelling on the subject property was subsequently razed for the construction of a substantially larger home.  Based on their evidence, the appellants' opinion of value for the subject property for the fiscal year at issue was $700,000.  
After considering the appellants' evidence, the assessors revised their opinion of value for the subject property for the fiscal year at issue.  The assessors conceded during the hearing of this appeal that the appellants' evidence demonstrated that the fair cash value of the subject property for the fiscal year at issue was $775,000.  
The Board found that the comparative analysis offered by the appellants supported a finding that the assessed value of the subject property, as abated, exceeded its fair cash value.  The appellants' comparison properties ranged in lot size from 15,420 square feet to 45,980 square feet, with dwellings ranging in size from 2,028 square feet of finished living area to 2,778 square feet of finished living area; their assessed values for the fiscal year at issue ranged form $766,000 to $1,926,000.  The Board found that the subject property was more comparable to the properties at the lower end of that range, with a lot size of 15,360 square feet and a dwelling featuring 2,225 square feet of finished living area.  However, nothing in the record supported the conclusion that the fair cash value of the subject property was less than the lowest assessed value of all of the properties contained in the appellants' comparative analysis.  The Board found that the evidence supported the assessors' revised opinion of value, which was $775,000, but not the appellants' opinion of value, which was $700,000.
The appellants also introduced evidence of the sale price of the subject property, which sold in an arm's-length transaction on April 3, 2008.  However, the Board found that the sale of the subject property on that date - over two years after the January 1, 2006 assessment date -- was too remote in time to provide a reliable indication of the fair cash value of the subject property on the relevant assessment date.  The Board therefore did not rely on the sale price of the subject property in determining its fair cash value for the fiscal year at issue.  
The Board also rejected the appellants claim that the traffic and noise generated by The Teddy Bear Club, a daycare center which abutted the subject property, negatively impacted the subject property's fair cash value.  The appellants failed to provide sufficient detail or information on this point, and further, did not quantify the alleged negative impact on the subject property's fair cash value.  The Board therefore placed no weight on this evidence. 
Accordingly, the Board determined that the fair cash value of the subject property for the fiscal year at issue was $775,000.  The Board therefore issued a decision for the appellants in this appeal and granted an abatement of $1,084.62. 

				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 [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)).  "[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, 365 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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). 
G.L. 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."  John Alden Sands, et al. v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07, (citing Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-08.) (other citations omitted).  Properties whose assessed values are relied upon must be comparable to the subject property in order to be probative of fair cash value.  Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972).  In the present appeal, the appellants offered a comparative analysis of the assessed value of the subject property with the assessed values of several other properties located nearby on Commonwealth Avenue.  The Board found that the appellants' comparative analysis demonstrated that the assessed value of the subject property, as abated, exceeded its fair cash value.  The assessed values of the comparison properties ranged from $766,000 to $1,926,000, and the Board found that the subject property was most comparable to the properties at the lower end of that range.  However, the Board found that the appellants' comparative analysis did not support the appellants' opinion of value, which was $700,000.   Rather, the Board found that it supported the assessors' revised opinion of the subject property's fair cash value, which was $775,000.  
Further, the appellants introduced evidence of the sale of the subject property, which sold in an arm's-length transaction on April 3, 2008 for $815,000 "[A]ctual sales of property generally furnish strong evidence of market value, provided they are arm's-length transactions." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982).  However, the sales must be within a "reasonable time of the assessment date [to provide] credible data and information for determining the value of the property at issue."  Giard v. Assessors of Colrain, Mass. ATB Findings of Fact and Reports 2009-115, 123 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)).  Here, the Board found and ruled that the sale of the subject property was too remote in time from the relevant date of assessment to provide reliable evidence of the fair cash value of the subject property on that date.  Accordingly, it placed no weight on this evidence.  
Lastly, though the appellants claimed that the traffic and noise generated by The Teddy Bear Club, a daycare center which abutted the subject property, negatively impacted the subject property's fair cash value, they failed to provide sufficient detail or information on this point, and further, did not quantify the alleged negative impact on the subject property's fair cash value.  The Board therefore placed no weight on this evidence. Contrast Judith C. & Anne M. Pistorio v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2010-206, 212 (finding that appellants introduced substantial evidence demonstrating a decrease in their property's fair cash value caused by its proximity to a busy dog daycare business).  
On the basis of all of the evidence, the Board found and ruled that the fair cash value of the subject property for the fiscal year at issue was $775,000.  Accordingly, the Board found that the appellants met their burden of proving that the subject property was overvalued for fiscal year 2007.  The Board therefore issued a decision for the appellants in this appeal and granted an abatement in the amount of $1,084.62. 

APPELLATE TAX BOARD
				
By:				______	undefinedundefined_______
				    Thomas W. Hammond, Jr., Chairman


A true copy,

Attest:	__________		_____
	       Clerk of the Board

  This amount also included a Community Preservation Act tax.  
  Where, as here, the Board receives a petition after the three-month due date, the date of postmark is deemed to be the date of filing.  G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 & 65.  Accordingly, the Board found and ruled here that the filing date of the petition was deemed to be May 21, 2007 and the appellants' appeal was timely.  
  Sophia Gordon was deceased as of the date of the hearing of this appeal.  

ATB 2010-1034