Elizabeth T. Gordon v. Board of Assessors of the Town of Upton (June 28, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ELIZABETH T. GORDON       v. 	BOARD OF ASSESSORS OF    THE TOWN OF UPTON	   
	
Docket No. F299396				Promulgated
                                   June 28, 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 Town of Upton ("appellee" or "assessors") to abate taxes on certain real estate in Upton, owned by  and  assessed to Elizabeth T. Gordon ("Ms. Gordon" or "appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2009 ("fiscal year at issue").
Commissioner Egan ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20.  
These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Elizabeth T. Gordon, pro se, for the appellant. 

	Charles Marsden, Assessor, for the appellee.



		               FINDINGS OF FACT AND REPORT 

	On the basis of the testimony and exhibits entered into evidence in the hearing of this appeal, the Presiding Commissioner made the following findings of fact.  On January 1, 2008, the relevant date of assessment for the fiscal year at issue, the appellant was the assessed owner of two parcels of land located in Upton (together, the "subject parcels").    The first parcel, designated as map 001 lot 002 in the assessors' records, consists of 8.59 acres of unimproved land ("parcel A").  The second parcel, designated as map 001 lot 003 in the assessors' records, consists of 53.8 acres of unimproved land ("parcel B").  The subject parcels are wooded with some wetlands.  The subject parcels are accessible only from Fay Mountain Road, which is not a public road.  Town services, such as paving, plowing, and sewer, are not provided on Fay Mountain Road.  At their rear boundaries, the subject parcels come to a steep ledge, where they abut the Massachusetts Turnpike.  
	For the fiscal year at issue, the assessors valued parcel A at $88,700 and assessed a tax thereon, at the rate of $12.43 per $1,000, in the total amount of $1,102.54.  For the fiscal year at issue, the assessors valued parcel B at $320,200 and assessed a tax thereon, at the rate of $12.43 per $1,000, in the total amount of $4,062.20.  On December 31, 2008, Upton's Collector of Taxes mailed the actual fiscal year 2009 tax bills.  The appellant timely paid the tax due without incurring interest.  On January 29, 2009, the appellant timely filed an Application for Abatement with the assessors, which they denied on March 3, 2009.  The appellant seasonably filed her petition with the Appellate Tax Board ("Board") on April 13, 2009.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.  
	In her case-in-chief, the appellant presented her testimony and a number of documents and exhibits, including her own written narratives, several maps and photographs, deeds, and data from supposedly comparable properties.  Ms. Gordon's written narratives included information regarding three abutting or nearby parcels on Fay Mountain Road owned by Joseph and Judith Meichelbeck, ("Meichelbeck property"), and Raymond and Susan Nydam ("Nydam property").  Ms. Gordon asserted that the Meichelbeck and Nydam properties were comparable to the subject parcels, and that the subject parcels were overvalued in comparison to those properties.  However, Ms. Gordon did not offer the property record cards, or any other relevant assessing document, showing the size, assessed value, or any other particulars about the Meichelbeck and Nydam properties.	
In presenting their case-in-chief, the assessors presented various jurisdictional documents, a land value chart showing land values in Upton, and the testimony of Mr. Marsden, which the Presiding Commissioner found to be credible.  Mr. Marsden testified that the Meichelbeck and Nydam properties, as well as many other parcels near the subject parcels, were classified as recreational land under G.L. c. 61B ("chapter 61B").   Chapter 61B allows taxpayers who own "land not less than five acres in area [that is] retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition or in a managed forest condition" to apply to the assessors to have the land classified as recreational land.  Under chapter 61B, the assessed value of land classified as "recreational land shall [not] exceed twenty-five per cent of its fair cash value as determined pursuant to chapter fifty-nine."  The Presiding Commissioner therefore found that the record did not support a finding that the Meichelbeck and Nydam properties were comparable to the subject property, both because there was insufficient evidence to establish their basic comparability and because they were classified as recreational land, while the subject parcels were not.  
	Mr. Marsden further testified that the valuation of the subject parcels was consistent with Upton's fiscal year 2009 land assessment tables.  For excess land, the assessment table specified that the first five acres were to be valued at $12,000 per acre, the next twenty acres were to be valued at $8,000 per acre, and any additional acreage was to be valued at $4,000 per acre.  The property record cards for the subject parcels indicated that their values were consistent with Upton's excess land values for the fiscal year at issue, with the exception that there appeared to be a reduction of 25% to the value of the first five acres of parcel B, such that they were valued at $45,000, rather than $60,000.  Accordingly, the Presiding Commissioner found that the subject parcels were valued as excess land, rather than residential property or property with road frontage, for the fiscal year at issue.  
	Based on the foregoing, the Presiding Commissioner found that the record did not support a finding that the assessed values of the subject parcels exceeded their fair cash values for the fiscal year at issue.  The appellant attempted to establish the overvaluation of the subject parcels by comparing them to the Meichelbeck and Nydam properties.  However, the Presiding Commissioner found that those properties were not comparable to the subject parcels, and therefore, did not establish a basis for proving that the subject parcels were overvalued.  The appellant offered additional evidence, including maps and pictures.  The Presiding Commissioner found that the record in its totality, however, did little more than establish that the subject parcels were unimproved excess land, which is how they were valued by the assessors, in accordance with Upton's excess land assessment table.  Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject parcels were overvalued for the fiscal year at issue and issued a decision for the appellee in this appeal.
				     OPINION
Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both were fully informed and under no 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.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is considered to be valid unless the taxpayer meets its burden and proves otherwise.  Id.  A right to an abatement can be proven by either 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). 
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 appellant relied upon a comparison of the subject parcels with the Meichelbeck and Nydam properties.  The Presiding Commissioner found that the appellant failed to establish basic comparability between the subject properties and those properties, which the evidence showed were classified under Chapter 61B, while the subject parcels were not.  The assessed values of those properties therefore did not provide reliable evidence of the fair cash values of the subject parcels. 
Similarly, the additional evidence offered by the appellant failed to demonstrate that the assessed values of the subject parcels exceeded their fair cash values.  The record showed that the subject parcels were wooded land, some portions of which were wetlands.  The evidence showed that the subject parcels were valued as excess land by the assessors, in accordance with Upton's excess land valuation tables.  The evidence simply did not support a finding that the assessors erred in assessing the subject parcels or that the subject parcels' assessed values were greater than their fair cash values.  
Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving her right to an abatement, and issued a decision for the appellee in this appeal.  
							
					      APPELLATE TAX BOARD
									
    By:			_____	___		
					   Nancy T. Egan, Commissioner



A true copy,

Attest:						__
	       Clerk of the Board

 Ms. Gordon is the Trustee of the Elizabeth T. Gordon Revocable Living Trust, which is the record owner of the parcels at issue.  
 This amount includes a Community Preservation Act Tax. 
 Mr. Marsden further testified that, in previous discussions with Ms. Gordon, the assessors suggested that she apply to have the subject parcels classified as recreational land, but she declined to do so.

ATB 2010-599