Ligor Realty Trust, John P. & Barbara Ligor, Trustees v. Board of Assessors of the Town of Wellesley (April 28, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




LIGOR REALTY TRUST			v.	BOARD OF ASSESSORS OF
JOHN P. & BARBARA LIGOR,			THE TOWN OF WELLESLEY
TRUSTEES

Docket No. F272580				Promulgated:
							April 28, 2006



	This is an appeal 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 Wellesley, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2004.
	Commissioner Scharaffa heard the appeal.  He was joined in the decision for the appellee by Chairman Foley and Commissioners Gorton, Egan, and Rose.  
	These findings of fact and report are made pursuant to requests by both the appellants and the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.
		
	John P. Ligor, pro se, for the appellants.
	Albert S. Robinson, Esq. for the appellee.


FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence during the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.  
On January 1, 2003, John P. & Barbara Ligor, Trustees of the Ligor Realty Trust ("appellants"), were the assessed owners of a parcel of real estate located at 1 Beach Road in the Town of Wellesley ("subject property").  The subject property is an approximately 11,522 square-foot waterfront lot situated on Morse's Pond.  Approximately 9,000 square feet of the lot are above the existing waterline.  A small roadway adjacent to the subject property provides access to a beach.
The lot is improved with a single-family dwelling that was originally built in 1920 ("subject dwelling").  Subsequent to the appellants' purchase of the subject property, the interior of the dwelling was gutted in anticipation of demolition and/or renovation.  The property remained in its unimproved state for more than ten years.  On March 16, 2001, a building permit for $40,000, to remodel the kitchen, bathrooms, and cellar, was issued to the appellants.  Following a public hearing, the Wellesley Zoning Board of Appeals granted Mr. Ligor permission to raise the roof of the subject dwelling to accommodate a second floor.  In May 2002, another building permit was issued in the amount of $60,000 to add a second floor with bedrooms and two bathrooms.  At completion, the subject dwelling was to have a gross living area of 3,902 square feet.  As of June 30, 2003, construction was only partially complete. 
	For fiscal year 2004, the Board of Assessors of the Town of Wellesley ("assessors") valued the subject property at $752,000 and assessed a tax thereon at the rate of $8.56 per thousand in the total amount of $6,437.12.  The appellants paid the tax without incurring interest.  On January 17, 2004, the appellants timely filed an application for abatement with the assessors, which was deemed denied on April 17, 2004.  On May 5, 2004, the appellants seasonably filed an appeal with the Board.  On this basis, the Board found that it had jurisdiction over this appeal.
The appellants argued that since construction of the subject dwelling was not complete as of January 1, 2003, the subject property was overvalued for fiscal year 2004.  The appellants conceded, however, that as of June 30, 2003, construction was well under way.  The foundation and frame were complete.  Most windows were installed.  The roof, including shingling, was also complete.  The interior was framed but with no electric service or plumbing.  The appellants also argued that the assessors erred in including the basement area in the gross living area.  As indicated in the subject dwelling's building plans, the basement is to be fully finished with two bedrooms, a bathroom, a recreation room, and a gym/t.v. room.  
	Lastly, Mr. Ligor testified about three properties in Wellesley which he claimed had been sold in April, May and August of 2003, with sale prices of $745,000, $725,000 and $729,351, respectively.  Mr. Ligor suggested that these sales somehow proved that the subject property was overvalued for fiscal year 2004.  The Board, however, disagreed.  Mr. Ligor did not know where any of these properties were located.  He offered no testimony to establish comparability with the subject property, nor did he make adjustments to account for differences that existed between the cited properties and the subject property.  Further, Mr. Ligor offered no evidence to verify these sales transactions.  Finally, the appellants failed to demonstrate how these proffered sales prices related to the subject property's fiscal year 2004 assessment.
	Ms. Donna Lee McCabe, chief assessor for Wellesley, testified on behalf of the assessors.  In support of the town's assessment, Ms. McCabe presented a report containing photographs which showed the subject property's condition at various stages of construction, its location on the pond and the resulting views.  Ms. McCabe also introduced into evidence three sales of properties which occurred between June and November of 2002.  
The first sale upon which Ms. McCabe relied relates to property located at 2 Lake Road in Wellesley, two houses away from the subject property.  This is a 14,800-square-foot waterfront lot improved with a one-bedroom ranch-style dwelling with a total gross living area of 1,082 square feet, slightly more than one-quarter the size of the completed subject dwelling.  This property has two full baths and one half bath, one fireplace, a one-car detached garage, and a 480-square-foot finished basement.  There is no central air conditioning.  The property sold in June 2002 for $670,000.	 
The second sale property, located at 32 Pickerel Road in Wellesley, is an 11,340 square-foot waterfront lot.  The property is improved with a four-bedroom contemporary-style dwelling with a gross living area of 2,673 square feet.  There are two full baths and one half bath.  There is no fireplace or garage.  The basement is gravel and the home does not have central air conditioning.  This property sold in June 2002 for $530,000. 
The last sale property is located at 24 College Road in Wellesley.  The lot, which is not waterfront, is 15,176 square feet and is improved with a colonial-style dwelling with a total living area of 1,584 square feet, less than half the size of the completed subject dwelling.  There are three bedrooms, two full baths, two fireplaces, a one-car attached garage, and a 224-square-foot finished basement.  This property sold for $615,000 in November 2002.
The assessors determined that the subject property's value at completion, based on the style of house, its location on the water, and quality of construction, was $753,000.  Based on the "Percentage of Completion Chart," a copy of which was included in Ms. McCabe's report, the assessors estimated that construction of the subject dwelling, as of June 30, 2003, was forty-five percent complete. The appellants offered no evidence as to the subject dwelling's degree of completion as of this date.  
Applying the forty-five percent completion figure to the $753,000 "as completed" value, the assessors determined the subject property's building value as of June 30, 2003, of $339,000.  Added to the land value of $413,000, the assessors assessed the subject property for fiscal year 2004 at $752,000.  
Based on the evidence presented, the Board found that the appellants did not adequately demonstrate how or to what extent the assessors' appraisal methodology was flawed.  The Board further found that the appellants failed to offer any persuasive, credible evidence that the fair cash value of their property was less than the fiscal year 2004 assessment.  Moreover, the Board found that the comparable sale properties that the assessors introduced into evidence supported the subject property's fiscal year 2004 assessment.  
Accordingly, the Board found that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2004.  The Board, therefore, decided this appeal for the appellee.    

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  G.L. c. 59, §§ 2A 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market 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).  Further, "buildings and other things erected on or affixed to land during the period beginning on January second and ending on June thirtieth of the fiscal year . . . shall be deemed part of such property as of January first."  G.L. c. 59, § 2A.  
	The appellants have the burden of proving that the subject 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) ("Schlaiker") (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he [B]oard 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)("General Electric") (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, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellants first argued that since construction of the subject dwelling was not complete as of January 1, 2003, the assessors' valuation for fiscal year 2004 was excessive.  General Laws c. 59, § 2A, however, authorizes the assessors to value the subject property in its "as is" condition on June 30, 2003 and to include that value in the fiscal year 2004 assessment.  The assessors first determined that the subject dwelling's value as completed was $753,000.  The assessors then determined that as of June 30, 2003, the subject dwelling was forty-five percent complete.  Applying the forty-five percentage of completion to the building's "as completed" value of $753,000, the assessors calculated the building's value as of June 30, 2003 to be $339,000, and correspondingly, the subject property's fiscal year 2004 assessment.  
The appellants also offered testimony of three sales of properties that allegedly sold for less than the subject property's 2004 assessment.  The appellants, however, failed to offer evidence to substantiate the claimed sales information, failed to establish comparability between these properties and the subject property, and failed to explain how the sale prices of these properties related to the subject property's assessment.
	Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property's fiscal year 2004 assessment was excessive.
	Accordingly, the Board decided this appeal for the appellee.
						APPELLATE TAX BOARD

				By:	___________________________________
					Anne T. Foley, Chairman


					___________________________________
					Frank J. Scharaffa, Commissioner


					___________________________________
					Donald E. Gorton, III, Commissioner


					___________________________________
					Nancy T. Egan, Commissioner


					___________________________________
					James D. Rose, Commissioner

A true copy,

Attest:	____________________________
		Assistant Clerk of the Board

ATB 2006-296