David B. Jenkins et al. v. Board of Assessors of the Town of Bourne (July 13, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DAVID B. JENKINS; ELAINE M. WYNN;     v. 		BOARD OF ASSESSORS OF MICHAEL FOLEY; JOHN POTTER;				THE TOWN OF BOURNE
RICHARD PHILLIPS et al, TRUSTEES; 
STANLEY REED MORTON, JR., TRUSTEE;			
JOHN REEN, et al; STUART O. CHASE;	 		
JOHN J. BRINE et al; JOAN B. BAKER;	  		
JAMES C. MOONEY et al, TRUSTEES;
MADLYN B. COYNE; CHARLES W. 
SULLIVAN, JR., TRUSTEE; JOHN E. 
SWEENEY; EMILY HARDON et al, 
TRUSTEES; MARSHALL SLOANE et al; 
CHARLES D. HOWELL et al, TRUSTEES;
PETER S. GREGORY; WILLIAM W. SCOTT



Docket Nos.	F270820 thru F270824,			Promulgated:
	     	F270826 thru F270831			July 13, 2007
F270833 thru F270839
F270953 thru F270955
		F272337, F272896 thru F272900
		F272907 thru F272917

		

	These are consolidated appeals filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on real estate located in the Town of Bourne, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal years 2003 and 2004.
	Commissioner Egan heard the appeals and was joined by Commissioners Scharaffa, Gorton and Rose in the decisions for the appellee.
	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.

	Anthony M. Ambriano, Esq. for the appellants.  

	Robert S. Troy, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
Because all of the above captioned appeals raised the single issue of disproportionate assessment of residential properties located in the Wings Neck area of Bourne, the Appellate Tax Board ("Board") issued an Order consolidating these appeals for hearing.  On the basis of the testimony and evidence introduced at the hearing of these appeals, the Board made the following findings of fact. 
Wings Neck is a 400-acre peninsula, which extends into Buzzards Bay at the western entrance to the Cape Cod Canal. The neighborhood is located in an R-80 zoning district, which requires a minimum lot size of 80,000 square feet.  The area is home to mostly summer residents.  For the fiscal years at issue, the assessors valued the properties and assessed taxes as follows:


Fiscal Year 2003
Docket	Address	Assessed Value	Tax Rate (per $1000)	Tax Assessed	
270820	174 North Road (Gregory)	$3,128,200.00	$        8.06	$25,213.29	
270821	480 Wings Neck Road (Baker)	$2,052,400.00	$        8.06	$16,542.34	
270822	420 Wings Neck Road (Brine)	$1,989,400.00	$        8.06	$16,034.56	
270823	448 Wings Neck Road (Coyne)	$1,939,600.00	$        8.06	$15,633.18	
270824	363 Wings Neck Road (Howell)	$   736,900.00	$        8.06	$  5,939.41	
270826	0 Bassetts Island (Chase)	$1,541,150.00	$        8.06	$12,421.67	
270827	0 South Road (Howell)	$1,869,700.00	$        8.06	$15,069.78	
270828	209 South Road (Mooney)	$2,007,200.00	$        8.06	$16,178.03	
270829	43 South Road (Morton)	$2,389,400.00	$        8.06	$19,258.56	
270830	51 South Road (Phillips)	$1,966,000.00	$        8.06	$15,848.96	
270831	147 South Road (Reen)	$2,576,800.00	$        8.06	$20,769.01	
270833	293 Wings Neck Road (Sloane)	$   367,600.00	$        8.06	$  2,962.86	
270834	115 South Road (Sloane)	$2,355,600.00	$        8.06	$18,986.14	
270835	71 North Road (Sullivan)	$   889,900.00	$        8.06	$  7,172.52	
270836	221 South Road (Jenkins)	$1,869,700.00	$        8.06	$15,069.78	
270837	196 North Road(Sweeney)	$   793,900.00	$        8.06	$  6,398.83	
270838	198 North Road (Sweeney)	$1,882,800.00	$        8.06	$15,175.37	
270839	461 Wings Neck Road (Wynn)	$2,401,900.00	$        8.06	$19,359.31	
270953	200 North Road (Foley)	$2,346,300.00	$        8.06	$18,911.18	
270954	333 Wings Neck Road (Hardon)	$   683,300.00	$        8.06	$  5,507.40	
270955	321 Wings Neck Road (Hardon)	$   677,500.00	$        8.06	$  5,460.65	

Fiscal Year 2004 
Docket	Address	Assessed Value	Tax Rate (per $1000)	Tax Assessed	
272337	147 South Road (Reen)	$  2,946,000.00	$        7.37	$21,712.02	
272896	363 Wings Neck Road (Howell)	$     825,900.00	$        7.37	$  6,086.88	
272897	0 South Road (Howell)	$     608,700.00	$        7.37	$  4,486.11	
272898	221 South Road (Jenkins)	$  1,855,800.00	$        7.37	$13,677.24	
272899	209 South Road (Mooney)	$  1,877,300.00	$        7.37	$13,385.70	
272900	43 South Road (Morton)	$  2,647,000.00	$        7.37	$19,508.39	
272907	115 South Road (Sloane)	$  2,578,000.00	$        7.37	$18,999.86	
272908	293 Wings Neck Road (Sloane)	$     387,700.00	$        7.37	$  2,857.34	
272909	55 South Road (Scott)	$  1,914,300.00	$        7.37	$14,108.39	
272910	321 Wings Neck Road (Hardon)	$     714,600.00	$        7.37	$  5,266.60	
272911	51 South Road (Phillips)	$  2,059,200.00	$        7.37	$15,176.30	
272912	174 North Road (Gregory)	$  3,066,400.00	$        7.37	$22,599.36	
272913	200 North Road (Foley)	$  2,369,300.00	$        7.37	$17,461.74	
272914	448 Wings Neck Road (Coyne)	$  1,875,500.00	$        7.37	$13,822.43	
272915	0 Bassetts Island (Chase)	$  1,116,800.00	$        7.37	$  8,230.81	
272916	420 Wings Neck Road (Brine)	$  1,924,800.00	$        7.37	$14,185.77	
272917	480 Wings Neck Road (Baker)	$  1,989,200.00	$        7.37	$14,660.40	

On December 31, 2002, and December 31, 2003, the Town of Bourne Collector of Taxes sent out the town's actual real estate tax bills for fiscal year 2003 and 2004, respectively.  The appellants timely paid the taxes due.  For the fiscal years at issue, in accordance with c. 59, § 59, appellants timely filed their applications for abatement with the assessors and their petitions with the Appellate Tax Board ("Board").  Based on these facts, the Board found that it had jurisdiction over the subject appeals.
The appellants' witness, Paul Hartel, is a Massachusetts licensed appraiser and the Board qualified him as an expert in the area of real estate valuation.  The appellants did not argue that their properties were over assessed in relation to their fair market values or in relation to other properties located in Wings Neck.  Instead, Mr. Hartel presented a claim that the subject properties were "disproportionately assessed" as compared to properties located in Scraggy Neck, an area he deemed to be comparable to that of the subject properties.  Mr. Hartel, having chosen Scraggy Neck as a reliable statistical sample, presented an analysis which compared the land value assessments of properties in Wings Neck to the land value assessments of purportedly comparable properties in Scraggy Neck.  
Mr. Hartel described Wings Neck as situated on a peninsula extending into Buzzard's Bay located in the Pocasset section of Bourne.  He testified that the secluded area is home to mostly summer residents and that common areas are controlled by a separate homeowners' association.  According to the town zoning requirements, the minimum size for a buildable lot in Wings Neck is 80,000 square feet.  Approximately five miles to the south is Scraggy Neck located in the Cataumet section of Bourne.  Mr. Hartel testified that Scraggy Neck is a gated community.  According to town zoning requirements, the minimum legal lot size in Scraggy Neck is 40,000 square feet.  
According to Mr. Hartel, during fiscal years 1999 through 2002, assessments for properties in Wings Neck and Scraggy Neck were statistically equal.  He suggested that in 2003, however, a disparity emerged resulting in the disproportionate assessment of the subject properties in Wings Neck as evidenced by the fact that their land assessments exceed by approximately forty-five percent the land assessment of the properties in Scraggy Neck.  In an attempt to prove what he termed disproportionate assessment, Mr. Hartel relied on three sets of assessment comparisons between lots on Wings Neck and lots on Scraggy Neck.  Based on his analysis, Mr. Hartel concluded that the Wings Neck properties' fiscal year 2003 assessments exceeded the Scraggy Neck assessments.  He opined that the disparity was due to a faulty land curve used by the assessors which flattened out at 40,000 square feet, thereby assigning the same dollar value for each incremental square foot of land greater than 40,000 square feet.  The result, according to Mr. Hartel, was that Wings Neck properties were disproportionately assessed relative to the "peer group" of Scraggy Neck properties.  
Mr. Hartel noted that for fiscal year 2004, the assessors implemented a new land curve, which extended to 80,000 square feet, to cure the prior year's error.  He argued, however, that the assessors' increase of the Wings Neck neighborhood "N" factor resulted in erroneous values attributed to the subject properties.  According to Mr. Hartel, the adjustment resulted in the Wings Neck properties once again being disproportionately assessed as compared to Scraggy Neck.  Mr. Hartel suggested that the Wings Neck "N" factor adjustment was unwarranted because there was "no indication of a market premium for Wings Neck" properties.  
In his testimony, Mr. Hartel acknowledged that the two neighborhoods are located in different zoning districts, Wings Neck is zoned R-80 and Scraggy Neck is zoned R-40.  Therefore, a buildable lot in Wings Neck is required to have twice the land area of a buildable lot in Scraggy Neck, resulting in a much less densely populated neighborhood on Wings Neck.  There are other differences between the two neighborhoods, including zoning setbacks and the fact that property owners on Wings Neck are permitted to have more than one residential dwelling on a buildable lot whereas Scraggy Neck property owners are allowed only one residential dwelling.  Despite these considerable differences, however, Mr. Hartel chose to use Scraggy Neck as the control feature in his analysis to prove that the subject properties located on Wings Neck were disproportionately assessed.
Mr. Hartel offered no evidence to prove that the subject properties were overvalued relative to the properties' respective fair market values, nor did he offer evidence to show that the subject properties were disproportionately assessed vis a vis other properties in Wings Neck, which were not the subject of these appeals.  
In support of their assessments, the assessors relied on the testimony of Ms. Donna Barakouskas, Principal Assessor for the town of Bourne.  At trial, Ms. Barakouskas conceded that in early January 2002 the assessors discovered that the land curve used for the fiscal year 2003 assessments was erroneous.  Upon making this discovery, she noted, corrections were immediately made for fiscal year 2004.  Moreover, based on a review of sales data for the town of Bourne, the assessors determined that the fiscal year 2003 Wings Neck land and overall assessments were supported by market data and that no abatements were warranted.  
Specifically, she cited two sales at 37 South Road and 196/198 North Road, Wings Neck, in support of the subject properties' fiscal years 2003 and 2004 land assessments.  According to property record cards, 37 South Road is a 2.5-acre lot improved with a single-family dwelling.  The property sold for $1,850,000 on May 2, 2001.  For fiscal years 2003 and 2004 this property had assessed values of $1,809,300 and $1,862,800, respectively.  The second sale is that of two contiguous parcels of real estate with a combined land area of four acres, each improved with a single-family dwelling located at 196 and 198 North Road, respectively.  The properties sold under one deed dated October 2, 2000 for $2,500,000.  The parcels combined assessments for fiscal years 2003 and 2004 were $2,676,700 and $2,778,900, respectively.    
Relying on these sales, together with the town wide sales data, the assessors reviewed the fiscal years 2003 and 2004 property assessments for the subject properties.  The assessors determined that, despite the incorrect land curve for fiscal year 2003, the subject properties' land value and overall assessments were proper and justified.  Further, as Ms. Barakouskas explained, using the sales data together with the mass appraisal computer system, the assessors examined each of the properties located on Wings Neck and made the requisite adjustments.  
Based on the evidence presented, the Board found that the appellants failed to prove that they were the victims of a deliberate scheme of discriminatory, disproportionate assessment. The Board found no evidence that the assessors deliberately discriminated against the appellants' properties or in favor of certain classes of property elsewhere in Bourne.  The Board further found that the assessors applied a uniform standard of valuation to all properties in Bourne and that the use of an N factor for properties in Wings Neck for fiscal year 2004, which was higher than neighborhood factors used for properties located in other neighborhoods in Bourne, was justified.  Further, despite the admitted error in the assessors' land curve for fiscal year 2003, relevant sales data supports the conclusion that any such error did not result in the overvaluation of the subject properties.  The evidence of record amply demonstrates that the subject properties were neither disproportionately assessed nor overvalued.
Accordingly, the Board decided these appeals for the appellee.

OPINION

	The assessors have the statutory and constitutional obligation to assess all real property at its full and fair cash value.  Part 2, C. one, Section one, Article 4, of the Constitution of the Commonwealth; Article 10 of the Declaration of Rights; G.L. c. 59 §§ 38 and 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975)(citations omitted). 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 Company v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The Board is entitled to presume that the assessment is valid until the taxpayers sustain their burden of proving otherwise.   Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the taxpayers to make out their right as a matter of law to an abatement of the tax.  Id.  The taxpayers must demonstrate that the assessed valuation of their property was improper.  See Foxborough Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).
In appeals before this Board, taxpayers "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 (1984), quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  In the present appeals, the appellants argued that the assessors use of an erroneous land curve for fiscal year 2003 assessments and an increase in the neighborhood "N" factor for fiscal year 2004 were flaws in the assessors' valuation methodology which resulted in the subject properties being disproportionately assessed in comparison to properties located in the Scraggy Neck neighborhood of Bourne.
If the taxpayer can demonstrate in an appeal to the Board that he has been the victim of a scheme of discriminatory, disproportionate assessment, he "may be granted an abatement . . . which will make . . . his assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory principles."


Coomey, 367 Mass. at 836 (quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1965)).  See also Brook Road Corporation v. Board of Assessors of Needham, Mass. ATB Findings of Fact and Reports 2001-648, 658; Gargano v. Assessors of Barnstable, Mass. ATB Findings of Fact and Reports 2003-501, 531-532.  The burden of proof as to the existence of a "scheme of discriminatory, disproportionate assessment" is on the taxpayers.   First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971); see also Schlaiker, 365 Mass. at 245.  
 "In order to obtain relief on the basis of disproportionate assessment, [] taxpayer[s] must show that there is an 'intentional policy or scheme of valuing properties or classes of properties at a lower percentage of fair cash value than the [taxpayers'] property.'"  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997)(quoting Shoppers' World, 348 Mass. at 562).  If taxpayers successfully demonstrate improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Shoppers' World, 348 Mass. at 377.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer[s]."  First National Stores, 358 Mass. at 562.
	For these appeals, the appellants argued that the assessor's use of an erroneous land curve for fiscal year 2003 and an increased neighborhood adjustment factor for fiscal year 2004 resulted in a disproportionate assessment of their properties in comparison to properties located in Scraggy Neck.  The appellants, however, offered no credible evidence to prove that there existed a deliberate scheme of disproportionate assessment.
	The Board further found that the assessors adequately supported their fiscal year 2003 and 2004 assessments.  In her testimony, Ms. Barakouskas acknowledged that the fiscal year 2003 land curve failed to properly value parcels greater than 40,000 square feet, such as the subject properties.  She further explained, however, that upon learning of the error, the assessors reexamined the valuations of all parcels within the 80,000 square foot zoning, specifically Wings Neck, and, based upon relevant sales data, determined that the fiscal year 2003 assessments were justified.  
Further, she noted that during this re-examination process the assessors made necessary adjustments to several neighborhood adjustment factors.  After reviewing the relevant sales data and the assessment valuation factors, the assessors determined that the subject properties' fiscal year 2004 assessments were also warranted and justified and that the appellants' failed to prove that the subject properties' assessments exceeded their respective fair market values.
The Board found and ruled that the appellants failed to present evidence that the assessors engaged in an "intentional widespread scheme of discrimination."  Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  Where assessments, even if wrong, are "consistent with honest mistake or oversight on the part of the assessors," as opposed to a "deliberate scheme of disproportionate assessment," no relief for disproportionate assessment is appropriate.  Brown v. Assessors of Brookline, Mass. ATB Findings of Fact and Reports 1996-1, 20, aff'd, 43 Mass. App. Ct. 327 (1997)(quoting Stilson, 385 Mass. at 728). 
There is simply no credible evidence of a deliberate scheme of disproportionate assessment on this record.  Further, sales evidence offered by the assessors supports the conclusion that the subject assessments were correct.  The appellants failed to meet their burden of proving their entitlement to an abatement.
Accordingly, the Board issued decisions for the appellee in these appeals.

					       APPELLATE TAX BOARD


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




A true copy,


Attest:					_______
	   Assistant Clerk of the Board

ATB 2007-651