Paul A. Giard v. Board of Assessors of the Town of Colrain (February 5, 2009) (Docket No. F293869)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



PAUL A. GIARD 			v.	BOARD OF ASSESSORS OF 
     THE TOWN OF COLRAIN


Docket No. F293869				Promulgated:
							February 5, 2009
							 
							
	This 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 Colrain ("assessors"), to abate taxes on certain real estate located in the Town of Colrain owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007 ("fiscal year at issue").
	Chairman Hammond ("Presiding Commissioner") heard the appeal and, in accordance with G.L. c. 58A, § 1A and     831 CMR 1.20, issued a single-member decision for the appellant.  These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A,   § 13 and 831 CMR 1.32.  

	William J. Pudlo, Esq. for the appellant.
	Nicholas Anzuoni, assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
	On January 1, 2006, Paul A. Giard, the appellant, was the assessed owner of five contiguous parcels of land located on Jacksonville Road in the Town of Colrain (collectively the "subject properties").  The subject properties consist of four vacant parcels ("vacant parcels") and one parcel containing a single-family home and numerous barns, sheds and outbuildings ("improved parcel").  The total acreage of the subject properties is 124.75 acres, with 27.08 acres attributable to the improved parcel.     
	For the fiscal year at issue, the assessors assessed a tax on the subject properties at a rate of $14.25 per thousand.  The assessment and tax for each of the four vacant parcels, followed by the improved parcel, were as follows: 
Lot Description	Assessment ($)	Tax ($)	
			
Lot 130/05	137,100	1,420.73	
Lot 130/08	    600	    8.55	
Lot 131/03	 47,500	  676.88	
Lot 131/04	    600	    8.55	
Lot 131/02	189,000	2,693.25	

The appellant timely filed one abatement application relating to the subject property with the assessors on   June 6, 2007, which the assessors denied with one decision on August 28, 2007.  The assessors notified the appellant of their denial of his abatement application on September 24, 2007, exceeding the ten-day notification period prescribed by G.L. c. 59, § 63.  The Presiding Commissioner therefore found and ruled that the assessors' statutorily-mandated notice was defective.  Accordingly, the Presiding Commissioner applied the "deemed to be denied" time frame for appeal from G.L. c. 59, §§ 64 and 65 and further found and ruled that on December 10, 2007, the appellant seasonably filed his appeal with the Appellate Tax Board ("Board").  See Stagg Chevrolet, Inc. v. Board of Water Comm'rs, 68 Mass. App. Ct. 120, 126 (2007) (holding that where, as here, a defective notice under G.L. c. 59, § 63 has been given, "the 'deemed to be denied' time frame provides a reasonable time period with dates certain easily ascertained by both parties.").  Based on these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
The improved parcel includes a two-story, single-family home.  The living area of the home measures 2,616 square feet and has a total of 14 rooms, including 5 bedrooms on the first floor, 3 bedrooms on the second floor, and a living room, dining room and kitchen on each floor, as well as 1 bathroom on each floor. 
	The appellant introduced an appraisal report for the subject properties prepared by Susan J. Lamoureux, a Massachusetts licensed real estate appraiser.  The appraisal report indicated that the appellant's home was in poor condition as of April 25, 2006, the effective date of the appraisal.  The interior had dated, yellowed walls, floors and ceiling surfaces; the wood flooring was worn and faded; and the kitchen was dated.  There was no central heat; a wood furnace on the home's exterior was used to heat the home.   One bathroom was not in working order.  Much of the home's exterior, including the roof, trim, siding, and window and door casements, was also in fair to poor condition.  Consistent with other evidence present in this appeal, the Board found that the condition of the subject property as recorded in the appraisal report reflected the condition of the subject property as of relevant assessment date.  In addition, several of the barns and sheds were caving in and appeared to be in dangerous condition, as evidenced by a photograph submitted by the appellant.    
	The appraisal report included a comparable-sales analysis of four properties in the general vicinity.  The first comparable, approximately 25.5 miles away from the subject properties, is located at 909 Huntington Road in Worthington.  This parcel is improved with a 1548-square-foot home with 6 rooms, including 3 bedrooms, as well as 1 bathroom.  This property sold on September 30, 2004 for $213,500.  The second comparable, approximately 5.5 miles away from the subject properties, is located at 136 Hosmer Road in Heath.  This parcel is improved with a 1514-square-foot home with 8 rooms, including 3 bedrooms, as well as 2.5 bathrooms.  This property sold on November 16, 2004 for $280,000.  The third comparable, approximately 11.7 miles away from the subject properties, is located at 26 Dodge Corner Road in Hawley.  This parcel is improved with a 1420-square-foot home with 8 rooms, including 4 bedrooms, as well as 1 bathroom.  This property sold on April 29, 2004 for $300,000.  The fourth comparable, approximately 1.6 miles away from the subject properties, is located at 38 River Road in Leyden.  This parcel is improved with a 2900-square-foot home with 10 rooms, including 4 bedrooms, as well as 1 bathroom.  This property sold on December 3, 2004 for $245,000.  
	The comparable-sales analysis included adjustments for, among other factors, date of sale, location, size, number of rooms, condition of property and functional utility.  The comparable sales' adjusted sale prices ranged from $198,940 to $221,600, or $84.48 to $211.27 per square foot of living area.  
	Based on the indicated values derived from the adjusted comparable sales and the condition of the buildings on the improved parcel, the appraisal report concluded that the fair market value for the improved parcel was $205,000.
The appellant's evidence focused exclusively on the condition of the home and outbuildings, which were situated on the improved parcel.  The appellant offered no evidence concerning the four vacant parcels.  
	The assessors offered their own appraisal report, prepared by Kim A. Levitch, a Massachusetts licensed real estate appraiser, for lot 130/05, one of the vacant parcels of the subject property.  The appraisal report valued this 90-acre vacant portion of the subject properties at $135,000 as of September 1, 2006, the effective date of the appraisal.  The assessors offered no evidence on the improved parcel.  In addition, Mr. Ed Purrington, a member of the assessors, admitted in his testimony at the hearing that the barns and outbuildings located on the improved parcel were in a dilapidated condition on the relevant valuation date.     
The Presiding Commissioner found that the appellant met his burden of proving that the assessors did not account for the poor condition of the home and outbuildings in their assessment of the improved parcel for the fiscal year at issue.  As evidenced by the appellant's appraisal report, the appellant's dwelling had a high level of functional and physical obsolescence and depreciation.  The Presiding Commissioner also found that the appellant's comparable-sales analysis included appropriate adjustments and demonstrated that the improved parcel of the subject property was overvalued.  Therefore, the Presiding Commissioner found that a 20% reduction, or $37,800, in the value of the improved parcel was appropriate.  The Presiding Commissioner thus found that $151,200 was the fair market value of the improved parcel.  
The appellant submitted no evidence on the value of the four vacant parcels.  Therefore, the Presiding Commissioner found and ruled that the appellant did not meet his burden of proving that the vacant parcels were overvalued.  
Accordingly, the Presiding Commissioner issued a decision for the appellant based on a reduction of $37,800 in the assessed value of the improved parcel and granted an abatement in the amount of $538.65.  

OPINION  
	Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January of the year preceding the fiscal year at issue.  G.L. c. 59 §§ 11 and 38.  The definition of fair cash value is the price upon which a willing buyer and a willing seller would agree if both are fully informed and neither is under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The burden of proof is upon the taxpayer to make out a right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  Id.  The taxpayer may sustain this burden by introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591,        600 (1984).  
	"[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller."  Foxboro Associates v. Board of Assessors of Foxborough,   385 Mass. 679, 682 (1982).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue.  McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  Sales data should also be appropriately adjusted for any differences with the subject property.  Foxboro Associates, 385 Mass. at 682.
In the present appeal, the appellant submitted evidence of comparable sales, with appropriate adjustments, which the Presiding Commissioner found supported the appellant's contention that the improved parcel was overvalued for the fiscal year at issue and overcame the presumed validity of the assessment.  
By contrast, the assessors proffered no evidence to demonstrate that they had properly accounted for the poor condition of the buildings in their assessment of the improved parcel.  The Presiding Commissioner thus found and ruled that the appellant met his burden of proving that the improved parcel was overvalued for the fiscal year at issue.  The Presiding Commissioner applied a downward adjustment of 20%, or $37,800, to arrive at $151,200 as the fair market value for the improved parcel.  "Fair cash value of property cannot be proved with mathematical certainty and must ultimately rest in realm of opinion, estimate, and judgment."  Mountaup Elec. Co. v. Assessors of Whitman, 390 Mass. 847, 854 (1984).       
The appellant, however, did not bring forth any evidence concerning the vacant parcels, and thus failed to meet his burden of proving overvaluation with respect to each of the four vacant parcels at issue.  




On the basis of the foregoing, the Presiding Commissioner decided this appeal for the appellant and granted an abatement in the amount of $538.65. 						
APPELLATE TAX BOARD

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



A true copy:



Attest: undefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefinedundefined_____________________
	    Clerk of the Board

	Because no single tax bill for any of the parcels exceeded $3,000, the Board had jurisdiction to hear the appeal in accordance with G.L. c. 59 §§ 64 and 65, notwithstanding the appellant's late payment of the tax bills at issue.  
  An appellant may file one appeal to the Board when multiple parcels are included in one decision by the assessors.  The Board, however, may exercise its discretion and "require that each parcel be the subject of a separate petition."  831 CMR 1.03.  See also G.L. c.58A, § 57.
  The Board admitted the appraisal report without any objection by the appellee.
 There is a discrepancy in the appellant's appraisal report - the report refers to the fourth comparable as 38 Paige Road and 38 River Road.  The Board chose to refer to the fourth comparable as 38 River Road, because the appraisal report's map indicated that the comparable was located on North River Road.

ATB 2009- 115