Paul A. & Sheila K. Gargano v. Board of Assessors of the Town of Barnstable (September 10, 2003)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


PAUL A. & SHEILA K. GARGANO  	 v.   BOARD OF ASSESSORS OF
							 THE TOWN OF BARNSTABLE
							     
Docket Nos. F250893, F250997, 	 Promulgated:
  F255207, F255213, 	 September 10, 2003
  F255410, F255571, 
  F262156, F262157					
							

These are appeals under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on certain real estate located in the Town of Barnstable assessed under G.L. c. 59, §§ 11 and 38 for fiscal years 1998, 1999, 2000, and 2001.  Commissioner Egan heard these appeals and was joined in the decisions for the appellee by Commissioners Scharaffa and Rose.
These findings of fact and report are made at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.   

Paul A. Gargano, Esq., and Sean M. Beagan, Esq., for the appellants.

Robert D. Smith, Esq., Ruth J. Weil, Esq., and T. David Houghton, Esq., for the appellee.


FINDINGS OF FACT AND REPORT
On the basis of testimony and exhibits introduced at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.  On January 1, 1997, January 1, 1998, January 1, 1999, and January 1, 2000, Paul A. and Sheila K. Gargano (the "appellants") were the assessed owners of a parcel of real estate located at 251 Green Dunes in the West Hyannisport section of the Village of Hyannisport of the Town of Barnstable (the "subject property").  The appellants had previously brought appeals relating to the subject property before the Board for fiscal years 1992, 1993, 1995, 1996, and 1997.  The Board hereby adopts the following portions of its Findings of Fact and Report concerning the fiscal year 1997 appeal:
The appellants had purchased the subject property in December 1991 for $950,000.  The irregularly-shaped parcel consists of approximately 8.93 acres of land, of which 2.66 acres are upland, 3.96 acres are wetland, and 2.31 acres are tidal.  The parcel also contains approximately 588 feet of sandy beach frontage on Centerville Harbor, which is part of Nantucket Sound, as well as approximately 1,500 feet of marshy water frontage on Hall's Creek along with twenty-eight feet of street frontage.

The upland portion of the land, upon which the improvements are sited, is a plateau-like area on the northerly side of the parcel.  From the upland portion, the land slopes downward toward the surrounding wetlands.  Along the southerly side, the wetlands consist of primarily sandy soil with beach grass.  The sandy beach frontage is along the extreme southerly portion of the parcel.  The parcel's easterly side consists of marshy frontage along Hall's Creek along with adjoining sandy soil with beach grass.  A stone jetty extends along the extreme southeasterly part of the property.  The subject property is served with town water, electricity, and telephone.  A private septic system disposes of the sewerage.

The appellants razed the then existing home in 1993 and built a new custom-designed, approximately 8,200-square-foot, two-story house with a construction contract price of $1,570,000.  The new house has ten rooms plus five full baths, three half baths, and an approximately 1,500-square-foot wing that contains an indoor swimming pool.  The property offers unobstructed water views of Nantucket Sound and across the Hall's Creek marshes to the Hyannisport Country Club area.  Construction on the present dwelling began in September 1994 and was completed in May 1996.  The property is further improved with a 1.5 story wood-framed six-car garage with an upper loft.

For fiscal year 1998, the Assessors valued the subject property at $2,844,200.00 and assessed a tax thereon, at the rate of $13.37 per $1,000 in the amount of $38,026.95.  The Assessors attributed $1,182,000.00 of the value to the land and $1,662,100.00 to the improvements.  The appellants timely paid the tax without incurring interest. On August 14, 1998, within thirty days of the sending of the tax bill, the appellants timely applied in writing to the Assessors, on a form approved by the Commissioner of Revenue ("Commissioner") for an abatement of the tax, alleging that the Assessors had overvalued the subject real property.  On October 5, 1998, the Assessors denied their application for abatement, and on December 9, 1998, the appellants seasonably filed their appeal with the Board.  
For fiscal year 1999, the Assessors valued the subject real property at $2,850,800.00 and assessed a tax thereon, at the rate of $12.31 per $1,000 in the amount of $39,911.20.  The appellants timely paid the taxes without incurring interest.  On May 11, 1999, within thirty days of the sending of the tax bill, the appellants timely applied in writing to the Assessors, on a form approved by the Commissioner for an abatement of the tax, alleging that the Assessors had overvalued the subject real property.  The Assessors also assessed a tax on the appellants' personal property, valuing the personal property at $166,210.00 and assessing a tax thereon at the rate of $12.31 in the amount of $2,326.94.  The appellants paid the tax on August 19, 1999 and incurred interest in the amount of $116.04.  On May 7, within thirty days of the sending of the tax bill, the appellants timely applied in writing to the Assessors, on  a  form approved by the Commissioner for 

an abatement of tax, alleging that the  appellants were  domiciled at  the subject property.  On July 13, 1999, the Assessors denied the appellants' application for abatement of real estate taxes and on August 12, 1999, the Assessors denied their application for abatement of personal property taxes.  On October 5, 1999, the appellants seasonably filed their appeal with the Board for the abatement of real estate taxes, and on October 8, 1999, they seasonably filed their appeal with the Board for the abatement of personal property taxes.  
For fiscal year 2001, the Assessors valued the subject property at $5,398,000.00 and assessed a tax thereon in the amount of $35,208.18.  The appellants timely paid the taxes without incurring interest.  On May 25, 2001, within thirty days of the sending of the tax bill, the appellants timely applied in writing to the Assessors, on a form approved by the Commissioner for an abatement of the tax, alleging that the Assessors had overvalued the subject real property.  On June 12, 2001, the Assessors denied their application for abatement, and on July 31, 2001, the appellants seasonably filed their appeal with the Board.  
Based on these facts, the Board found it had jurisdiction over the appeals for fiscal years 1998, 1999, and 2001.  The appellants conceded for the purposes of these appeals that the assessments at issue reflect the fair cash value of the subject property.  However, the appellants raised three separate issues with respect to the assessments: 	(1) whether the Assessors correctly assessed personal   property   taxes   for   fiscal    year   1999; (2)  whether  their property was entitled to classification under G.L.  c. 61B; and (3) whether the Assessors disproportionately assessed the subject property in relation to assessments of properties which, in the appellants' view, were subject to restrictions similar to those imposed on their property, including parcels subject to conservation restrictions under G.L. c. 184, § 31 and those which qualify for classification as recreational land under c. 61B.  A fourth issue, raised by the Assessors, was whether the appellants filed their application for abatement of the fiscal year 2000 real estate tax late, thereby depriving the Board of jurisdiction for that appeal.

1.  Jurisdiction for fiscal year 2000.
For fiscal year 2000, the Assessors valued the subject property at $2,850,800.00 and assessed a tax thereon in the amount of $21,415.22.  The appellants timely paid the taxes without incurring interest.  However, the appellants did not file an application for abatement with the Assessors at the time they paid their taxes and instead delayed filing until January 5, 2000.  The Assessors voted to deny the appellants' abatement application and sent notification of their denial to the appellants on January 11, 2000.  On February 11, 2000, the appellants filed their appeal with the Board.  
The appellants called the appellant, Mr. Gargano, as a witness.  Mr. Gargano testified that, according to his recollection, the fiscal year 2000 tax bill arrived "very, very late," within days of the due date.  However, the appellants' mailing address for the subject property was a post office box and not the residential street address, raising the possibility that the bill could have remained in the appellants' post office box before it was retrieved by the appellants.  Mr. Gargano then explained that he and his wife drove to the town clerk's office to pay the bill on December 17, 1999.  Mr. Gargano admitted that he and his wife did not file an abatement application at the time that they paid the taxes and offered no reason for this failure.  
The appellee called as a witness Maureen J. McPhee, the Tax Collector for Barnstable.  Ms. McPhee brought with her an affidavit of mailing of the tax bills for fiscal year 2000.  The affidavit stated that the tax bills were mailed on November 17, 1999 and included a stamp from the Hyannisport post office reflecting this same date.   Ms. McPhee testified that she faxed this affidavit to the Department of Revenue ("Department").  She then explained the process by which the tax bills were mailed, which included folding the bills produced by the information systems, placing them in envelopes, and putting them into mail trays that met the post office standards for first class presort mailing.  The Department of Public Works ("DPW") for Barnstable would then bring the bills to the post office in Hyannisport.  Ms. McPhee testified that she supervised the assembling of the tax bills for mailing up until the point when they were transported by DPW to the post office.  On cross-examination, Ms. McPhee admitted that "people sometimes complain they don't receive their bills timely" but that there was no unusually large number of complaints for fiscal year 2000.  She testified that she uses her own tax bill from Barnstable as a guide in determining the timeliness of mailing for the bills, and that her fiscal year 2000 bill had arrived in a timely manner.
On the basis of the evidence, the Board found that it did not have jurisdiction over the appeal for fiscal year 2000, because the appeal was filed beyond the time for timely payment of the real estate taxes.  The Board found credible the testimony of Ms. McPhee and the supporting evidence indicating that the tax bills for Barnstable were delivered to the post office on November 17, 1999.  Verification that the tax bills had been mailed by the post office on that same date was demonstrated by the post office stamp, bearing the date of November 17, 1999, which was affixed to the Department's affidavit of mailing form.  Moreover, it is undisputed that the appellants chose not to file their application for abatement at the time when they paid their real estate taxes in person on December 17, 1999, but instead filed the application on January 10, 2000.  The Board also found that Mr. Gargano, a practicing attorney, was familiar with the procedures for filing an application for abatement, having filed them timely for previous appeals relating to the subject property.  As explained more fully in the Opinion, the failure to file a timely application for abatement with the Assessors is a prerequisite for jurisdiction before the Board.  Accordingly, the Board found that it lacked jurisdiction over the appeal for fiscal year 2000.

Assessment of personal property tax for fiscal year 1999.

Mr. Gargano testified that he "never averred that [he] was a permanent resident" at the subject property, but the appellants offered several documents into evidence to argue that Mrs. Gargano was domiciled there.  The documents consisted of: (1) a letter dated May 7, 2002 from a parish priest from Our Lady of Victory Rectory in Centerville, Massachusetts, stating that the appellants "have been registered and active members of this parish since 1996"; (2) a portion of a bank statement from November 8, 1996 through December 6, 1996 demonstrating that the appellants held a personal account at the Cape Cod Bank and Trust Company and used the West Hyannisport post office box as the address on file; (3) a hand-written note from the postmaster at the West Hyannisport post office stating that the appellants "have received mail at this office on a year round basis since 1996"; (4) the appellants' application for their post office box in West Hyannisport; (5) a printout of a Commonwealth website demonstrating that Mrs. Gargano registered to vote using the address for the subject property; (6) a printout from the Massachusetts Registry of Motor Vehicles demonstrating that Mrs. Gargano registered her vehicle using the address for the subject property; (7) a copy of a ComElectric energy bill dated August 20, 1996 for service provided to the subject property; (8) a Nynex telephone bill dated May 30, 1996 through June 10, 1996 addressed to Mr. Gargano at the subject property;  (9) a Keyspan gas bill dated April 18, 2002 for service provided to the subject property; (10) a Verizon telephone bill dated March 11, 2002 through April 10, 2002 addressed to Mr. Gargano at the post office box in West Hyannisport; and (11) a Centerville-Osterville-Marsons Mills Water Department bill dated October 1, 2001 addressed to Mr. Gargano at the post office box in West Hyannisport for service provided at the subject property.
The Board found that several of the documents - the Cape Cod Bank and Trust statement, the ComElectric energy bill and the Nynex telephone bill -- were dated 1996, prior to the January 1, 1998 assessment date for fiscal year 1999.  The Board thus accorded little weight to these documents.  Moreover, the Board found that the documents offered did not necessarily support the conclusion that Mrs. Gargano was domiciled at the property; the documents were equally supportive of the conclusion that Mrs. Gargano was a part-time, seasonal or weekend resident of this property.  Moreover,  Mrs. Gargano never testified before the Board and, accordingly, the Board could not determine the extent of her contacts with the property nor her intent to make the property her domicile based solely on the inconclusive documents introduced as exhibits. 
On the basis of the evidence, the Board found that the appellants failed to meet their burden of proving that Mrs. Gargano was domiciled at the subject property.  The appellants did not contest the assessed value of the personal property.  Accordingly, the Board upheld the assessment of personal property taxes for fiscal year 1999.

Classification under G.L. c. 61B.
For fiscal year 1999, the appellants applied in writing to the Assessors for classification of "7+" acres of their land under G.L. c. 61B.  The appellants filed this application on September 1, 1998.  The application was deemed denied on December 1, 1998.  The appellants did not apply in writing to the Assessors for modification of the deemed denial.  Instead, on December 9, 1998, the appellants filed their appeal with the Board from the Assessors' denial of their application for classification of certain portions of their land under G.L. c. 61B.  
Again for fiscal year 2000, the appellants applied in writing to the Assessors for classification of "7+" acres of their land under G.L. c. 61B.  The Assessors denied their application on October 13, 1999 and notified the appellants of their denial on October 14, 1999.  The appellants did not apply in writing to the Assessors for modification of the denial.  Instead, on January 10, 2000, the appellants filed their appeal with the Board from the Assessors' denial of their application for classification of certain portions of their land under G.L. c. 61B.  
For fiscal year 2001, the appellants applied in writing to the Assessors for classification of 8 acres of their land under G.L. c. 61B.  The appellants filed this application on May 25, 2001.  This application was deemed denied on August 25, 2001.  The appellants did not apply in writing to the Assessors for modification of the denial.  Instead, on July 31, 2001, the appellants filed their appeal  with  the Board from the Assessors' denial of their

application for classification of certain portions of their land under G.L. c. 61B.    
In support of their c. 61B claim, the appellants called as a witness Robert W. Gatewood, the Conservation Administrator for Barnstable.  Mr. Gatewood testified that the previous owner of the subject property had corresponded with the Barnstable Conservation Division concerning a transfer of the parcel to the Town for use as open space or conservation land.  Mr. Gatewood testified that the land was very valuable as a natural resource, but he also identified several obstacles to the Town's acquisition of the subject property for use as open space or conservation land, including the landscaped and developed portion of the land and the private access way into the parcel.  In addition, Mr. Gatewood testified that the appellants' residence was located in the "regulatory buffer zone" of the wetlands and that this land was landscaped.  Mr. Gatewood also defended the Conservation Commission's approval of an enforcement order against the appellants for their landscaping activities.  This enforcement order also included the appellants' installation of sprinkler spigots and lights.
Michael Emerson, a registered professional engineer engaged in specialty construction and design work, including residential development within wetlands regions, was also called as a witness for the appellants.  Mr. Emerson was familiar with the subject property.  He testified that the amount of land not subject to the Conservation Commission's jurisdiction was 0.92 acres, which included the appellants' residence and lawn area.  However, the Board did not qualify Mr. Emerson, a development engineer, as a surveyor.  The witness was then asked to characterize the nature of the property within the Conservation Commission's jurisdiction.  Mr. Emerson described the land as "a very open, comfortable piece of recreation land" with trees, grass, bushes and "teeming with wildlife" including various species of birds, squirrels, rabbits, rodents, foxes, wild ducks, and deer.  The witness was asked whether, in his opinion, the subject property lent itself to the preservation of wildlife.  However, the Board did not qualify Mr. Emerson as an expert in wildlife preservation, and he was not qualified to answer this question.  
The appellants also called Robert Whitty, the Director of Assessing for Barnstable.  Mr. Whitty testified that the appellants' applications for § 61B classification of the subject property were never brought before the full board of Assessors for deliberation and were summarily dismissed by the office staff for the Assessors without action from the Assessors.  On cross-examination, Mr. Whitty elaborated by explaining that the concerns of the office staff included those previously cited by Mr. Gatewood, as well as the vagueness of the application and its lack of a "clear identifier or identification of the land that he was actually applying for."  
The appellants also called John H. Greene, Assistant Assessor for Barnstable.  Mr. Greene's specific duty was the valuation of all oceanfront and soundfront property in the Town, including the villages of Cotuit, Osterville, Hyannisport, the Hyannis waterfront, and the section of West Barnstable north of Route 6A.  The appellants' property was within Mr. Greene's assessing responsibility.  Mr. Greene was asked to read from the October 14, 1999 notice of denial of the appellants' application for c. 61B classification.  The notice informed the appellants that their application for c. 61B classification for their land for fiscal year 2000 was denied by vote of the Assessors on October 13, 1999, and that the appellants had a right to appeal the denial "in the manner and under the conditions provided by Chapter 59 Sections 64-65B of the General Laws," which allows appeal to the Board within three months of the denial by the Assessors.
On the basis of the evidence, the Board found that it lacked jurisdiction over the appeals of the Assessors' denial of G.L. c. 61B classification for the subject property.  The appellants did not file any requests for modification of the Assessors' decisions with respect to their applications for c. 61B classification.  For the reasons stated in the Opinion, the Board found that the lack of any requests for modification created a jurisdictional defect that prevented the Board from hearing and deciding the merits of the taxpayers' c. 61B appeals.  Moreover, even if it had jurisdiction over the appellants' c. 61B claims, the appellants failed to offer substantial evidence that the subject property, which included a sizeable single-family residence, private access way, and beachfront, qualified as recreational land "retained in substantially a natural, wild, or open condition or in a landscaped condition in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources."  G.L. c. 61B, § 1.  Accordingly, and for reasons stated in the Opinion, the Board found it did not have jurisdiction over the appellants' c. 61B appeals and further found that, even if it had had jurisdiction to decide this issue, the appellants failed to offer meaningful proof of its qualification for c. 61B status.

Disproportionate assessment of subject property.
The appellants' witness, Mr. Gatewood, identified on a map the portions of the subject property that were within the jurisdiction of the Conservation Commission.  The portion of the subject property within the jurisdiction of the Conservation Commission included coastal bank and coastal dune land.  Mr. Gatewood clarified that pursuant to the state Wetland Protection Act and the town Wetland Protection Ordinance, the appellants could submit an application to develop land within the Conservation Commission's jurisdiction, and the Conservation Commission could authorize further development on the subject property.  The Commission reviews applications with an interest towards the potential impact of the proposed development on the protected resource areas.  The fact that the parcel is within the Conservation Commission's jurisdiction does not mean that all development, management, or alteration of the parcel is prohibited.  
According to the Assessors' practice, real estate subject to a deeded conservation restriction pursuant to G.L. c. 184 is assessed at a lower value than parcels which are not subject to such restrictions.  The Assessors quantify this reduction in fair market value resulting from the deeded restriction by assessing the parcel at twenty-five percent of the fair market value as non-restricted if the property does not allow for public assess and at ten percent of its fair market value as non-restricted if the property does allow for public access.  The reduction in assessed value reflects the diminution in the fair market value of the property because of the deeded restriction.  Where land is subject to Conservation Commission jurisdiction, wetland protection, and related by-laws, but there is no deeded restriction requiring the property to be maintained in its open and natural state, no reduction is granted because of the Assessors' view that, based on the benefits and burdens of waterfront land, the fair market value of parcels not encumbered by deeded restrictions is reflected in the sales price of such parcels.       
On the basis of the evidence, the Board found no evidence supporting a disproportionate assessment.  The appellants chose not to contest the assessed value of their property, thus conceding that their property was not overvalued for the fiscal years at issue in these appeals.  The appellants' argument instead is based upon comparing the tax assessment of their property, which is subject to the Wetlands Protection Act at G.L. c. 130, with other properties that are subject to restrictions under G.L. c. 184 and c. 61B, which authorize the voluntary granting of interests in land to the town for conservation purposes.  However, the appellants presented no evidence of sales prices of properties subject to deeded restrictions.  Accordingly, the Board could not evaluate whether the appellants' waterfront property had been assessed at a higher percentage of fair cash value than the class of properties subject to deeded restrictions.  For these reasons and those stated in the Opinion, the Board found that the appellants failed to meet their burden of proving disproportionate assessment.
The Board thus issued decisions for the appellee in these appeals.

OPINION
Jurisdiction for fiscal year 2000.
Pursuant to G.L. c. 59, § 59, an abatement application must be filed "on or before the last day for payment, without incurring interest . . . of the first installment of the actual tax bill . . . ."  The Board found that the actual tax bills for fiscal year 2000 were mailed on November 17, 1999.  It is uncontested that the appellants did not file their application for abatement by December 17, 1999.  Moreover, Mr. Gargano testified that he and his wife drove to Barnstable Town Hall on December 17th  in order to pay the tax bill timely, but they chose not to file the abatement application at that time and offered no reason for this failure.
The filing of a timely application for abatement is a prerequisite to the Board having jurisdiction over an appeal.  New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 748 (1975) ("Manifestly, there can be no appeal to the board on the merits after the right to apply to the assessors for abatement has been lost through failure to follow statutory procedures.").  See also, Old Colony R.R. v. Assessors of Quincy, 305 Mass. 509, 511-12 (1940) ("[T]he time within which the application is to be made is not a mere matter of limitation but is an integral part of the right [to apply for abatement of taxes assessed], and the failure to apply within the prescribed time destroys the right.").  By contrast, "[t]here is no statutory requirement that the [tax] bill actually be received."  Bible Baptist Church of Plymouth, Inc. v. Assessors of Plymouth, 391 Mass. 1015, 1016 (1984), and accordingly, the failure to receive a tax bill, even if proved, cannot restore jurisdiction.  
In the instant appeal, the Board found that the Barnstable tax bills for fiscal year 2000 were mailed from the Hyannis post office on November 17, 1999, as attested by Ms. McPhee and documented by the affidavit of mailing.  The Board found that the affidavit of mailing by Ms. McPhee, the collector of taxes for Barnstable, was prima facie evidence that the tax bills were in fact mailed on that date.  G.L. c. 60, § 3; see also Roda Realty Trust v. Board of Assessors of Belmont, 385 Mass. 493, 495 (1982).  Moreover, the appellants admitted that they received the tax bill in time to pay the tax bill without incurring interest.  The Board also found that Mr. Gargano, a practicing attorney, was familiar with the procedure for filing abatement applications, having filed them for previous appeals related to the subject property for fiscal years 1992, 1993, 1995, 1996, and 1997.
In the instant appeal, the appellants did not file a timely application for abatement.  Therefore, the Board found and ruled that it lacked jurisdiction over the appeal for fiscal year 2000.  Accordingly, the Board sustained the Assessors' denial of abatement for that fiscal year.

Assessment of personal property tax for fiscal year 1999.

Pursuant to G.L. c. 59, § 2, "[a]ll property, real and personal, situated within the commonwealth, and all personal property of the inhabitants of the commonwealth wherever situated, unless expressly exempt, shall be subject to taxation."  A specific exemption for certain personal property is provided by G.L. c. 59, § 5, cl. (20), which provides an exemption for a taxpayer's "household furniture and effects . . . used or commonly kept in or about the dwelling of which he is owner of record . . . and which is the place of his domicile . . . ."  According to the exemption, a taxpayer's domicile is key to the exemption of her personal property. 
It is well-settled in Massachusetts that "'[a] person's domicile is usually the place where he has his home' . . . .  Home, in turn, is 'the place where a person dwells and which is the center of his domestic, social and civil life.'"  Reiersen v. Commissioner of Revenue, 26 Mass. App. Ct. 124, 125 (1988) (citations omitted).  A person may have multiple residences, but there is only one domicile for tax purposes.  Id. at 128-29.
The issue of domicile is a question of fact.  Mellon National Bank & Trust Co. v. Commissioner of Corps. & Tax'n., 327 Mass. 631, 632 (1951); Commonwealth v. Davis, 284 Mass. 41, 50 (1933).  The most "persuasive indicators of domicile" are the "physical, business, social and civic activities of the taxpayer."  Reiersen, 26 Mass. App. Ct. at 131.  The party alleging a change in domicile bears the burden of producing evidence sufficient to proving that fact.  Horvitz v. Commissioner of Revenue, 51 Mass. App. Ct. 386, 394 (2001).   
Conceding that Mr. Gargano was not domiciled in Barnstable for fiscal year 1999, the appellants instead submitted several documents into evidence for the purpose of proving that Mrs. Gargano was domiciled at the subject property.  However, the Board did not find these documents to be persuasive on the issue of domicile.  Several documents related to time periods before and after the relevant assessment date for fiscal year 1999.  Accordingly, the Board did not find the Cape Cod Bank and Trust Company statement, the ComElectric energy bill, or the Nynex telephone bill to be particularly persuasive.  Moreover, the Board found that the documents submitted were not sufficient to establish Mrs. Gargano's domicile.  The other utility documents and post office box documents do not reveal whether Barnstable was the center of Mrs. Gargano's   "physical,  business, social  and  civic 
activities," but instead merely indicate that the property was maintained on a year-round basis.  The Board found that the maintenance of a home was not alone sufficient to establish domicile.  See Davis, 284 Mass. at 51 (recognizing that a taxpayer may maintain more than one residence, but a "temporary sojourn" to escape tax consequences will not be regarded as one's domicile).  The Board also found that maintenance of one bank account did not provide an indication of Mrs. Gargano's social or civic activities but merely demonstrated that the Garganos, perhaps for convenience, wanted to be able to conduct some financial affairs from the subject property.  
The letter from the parish priest indicated that the Garganos attended church services in Centerville, which would be a relevant fact in determining the center of Mrs. Gargano's social and civic activities.  Yet, as Mr. Gargano himself demonstrates, perhaps unwittingly, by acknowledging his domicile to be in Cambridge, a person can be domiciled in one place and attend church services and perform banking activities in another.  Mrs. Gargano's car registration and voter registration also provide relevant facts in determining the center of her civic activities.  However, the Board found that these pieces of evidence were not sufficient to establish that Mrs. Gargano's home, the center of her social and civic activities, was in Barnstable, especially where her husband admitted domicile in Cambridge.  
Moreover, the common law concept of domicile, which Massachusetts follows, consists not only of physical residence but also the intent to make that physical residence a permanent home.  National Bank & Trust, 327 Mass. at 640 (finding that proof of domicile centers upon a person's intent to make a particular place her home).  Had Mrs. Gargano actually testified, she may have been able to provide more helpful information as to her intent to make the subject property her home, but without her testimony or any evidence as to Mrs. Gargano's actual intent, the Board found that the appellants proved nothing beyond the fact that Mrs. Gargano resided at the subject property on an occasional, seasonal, weekend, or other basis.  
The Board found that the appellants did not meet their burden of proving that Mrs. Gargano maintained her domicile at the subject property.  The Board thus affirmed the assessment of personal property taxes for fiscal year 1999.





Classification under G.L. c. 61B.

The Assessors contend that the Board lacks jurisdiction to consider the appeals in fiscal years 1999, 2000, and 2001 relating to classification of the subject property pursuant to G.L. c. 61B, because the appellants appealed directly to the Board from the denial of their applications without first applying to the Assessors for modification of their denial.  G.L. c. 61B, § 14 provides in pertinent part:
Any person aggrieved by any determination or assessment by the board of assessors under this chapter may within sixty days of the date of notice thereof apply in writing to the assessors for modification or abatement thereof.  Any person aggrieved by the refusal of the assessors to modify such a determination or make such an abatement or by their failure to act upon such an application may appeal to the appellate tax board within thirty days after the date of notice of their decision or within three months of the date of the application, whichever date is later.

The Board has previously found that the plain language of this provision requires the appellants to apply to the Assessors for a modification before they are entitled to bring an appeal before the Board, and the failure to follow this statutory procedure deprives the Board of jurisdiction over the appeal.  D.S.M. Realty, Inc. v. Board of Assessors of Andover, 8 Mass. App. Tax Bd. Rep. 8, 10-11 (1986), aff'd, 25 Mass. App. Ct. 945 (1988).  
Although the appellants had Mr. Greene read the notice of denial of their c. 61B application for fiscal year 2000 into the record, they made no argument concerning this notice either orally or in their written submissions.  The notice of denial informed the appellants that they had a right to appeal the denial of classification "in the manner and under the conditions provided by Chapter 59 Sections 64-65B of the General Laws."  However, the appellants' right of appeal from a denial of c. 61B classification is found in G.L. c. 61B, § 14.  In D.S.M. Realty, Inc. v. Board of Assessors of Andover, 8 Mass. App. Tax Bd. Rep. (1986), the Board addressed the issue of a notice from the assessors which incorrectly referred taxpayers to c. 59,   § 63, referring to the notice of the assessors' decision on applications for abatement, rather than c. 61B, § 14, pertaining to appeals of determinations for c. 61B classification.  While "the board cannot condone the assessors' failure to comply with the clear requirements of c. 61B, § 6," the Board nonetheless found that the provisions of c. 61B, § 14 are jurisdictional requirements for an appeal on classification which must be met "no less than those of an appeal on exemption or abatement under c. 59."  Id. at 11.  
The appellants here did not actually raise the argument that they relied to their detriment on this faulty notice.  However, even if they had, the Board found and ruled that a taxpayer must comply with statutory requirements before it may have jurisdiction over an appeal: "[e]ven if we assume that the appellant[s] reasonably believed the assessors' incorrect notice and relied on it, however, the appellant must meet the jurisdictional requirements of an appeal on classification under c. 61B no less than those of an appeal on exemption or abatement under c. 59."  D.S.M. Realty, 8 Mass. App. Tax Bd. Rep. at 11, citing New Bedford Gas and Edison Light Co, 368 Mass. at 748.  Accordingly, the Board found that the Board had no jurisdiction to entertain the appeals from the Assessors' denials of the appellants applications for c. 61B classification.
Even if the Board had jurisdiction over the appeals pertaining to c. 61B classification, the appellants' evidence falls far short of supporting a claim for classification.  The Board found persuasive the testimony of witnesses who described the obstacles which prevented the subject property from being classified as c. 61B property.  Mr. Whitty, echoing the testimony of Mr. Gatewood, the Town's Conservation Administrator, explained that while the land was valuable as a natural resource, the developed portion of the land with the sizeable single-family residence, separate 1.5 story six-car garage, and the private access way into the parcel posed serious obstacles to classification.  Moreover, an enforcement order issued by the Conservation Commission cited the appellants for landscaping on the property and installing sprinkler spigots and lights, which have further altered the natural state of the subject property.  The Board thus found that the predominant use of the parcel was as a single-family residence, not as a parcel "retained in substantially a natural, wild, or open condition" as required by G.L. c. 61B, § 1.  The Board also gave little weight to the testimony of Mr. Emerson regarding the preservation of wildlife on the subject property, and in fact did not allow him to answer specific questions on this topic, because Mr. Emerson was not qualified as an expert in wildlife preservation.  The Board thus found that the subject property was not maintained "in a landscaped condition in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources."  G.L. c. 61B, § 1.  
The Board found that it lacked jurisdiction to entertain the appeals pertaining to the Assessors' denial of c. 61B classification for the subject property and that, even if the Board had had jurisdiction, the Assessors rightly denied the applications.  Accordingly, the Board upheld the Assessors' denial of c. 61B classification for the subject property. 

Disproportionate assessment of subject property.

The Assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value.  Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth; art. 10 of the Declaration of Rights; G.L. c. 59, §§ 38, 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975) (citations omitted).  Fair cash value means fair market value, which 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).
"In order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is an 'intentional policy or scheme of valuing properties or classes of property at a lower percentage' of fair cash value than the taxpayer's property."  Brown v. Board of Assessors of Brookline, 43 Mass. App. Ct. 327, 328, reh'g denied, 426 Mass. 1102 (1997) (quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965)).  The burden of proof as to the existence of a "scheme of discriminatory, disproportionate assessment" lies squarely on the taxpayer.  First National Stores, Inc. v. Assessors of Summerville, 358 Mass. 554, 559 (1971); see  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  If a taxpayer successfully demonstrates a pattern of discriminatory and disproportionate assessment in a manner to establish an inference that 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."  First National Stores, 358 Mass. at 562.
The appellants conceded that their property was not overvalued for the fiscal years at issue, but instead argued that the subject property, which is subject to the Wetlands Protection Act at G.L. c. 130, § 105, is disproportionately assessed in comparison to those properties that are subject to voluntary conservation restrictions pursuant to G.L. c. 184, § 31 and properties which are classified and taxed under G.L. c. 61B, notwithstanding the fact that the appellants were unwilling to execute a conservation restriction pursuant to G.L. c. 184, § 31 and failed to properly appeal their c. 61B denial.  In support of this claim, the appellants also cite G.L. c. 59, § 11, which states in pertinent part: 
[r]eal estate permanently restricted under section seventeen B of chapter twenty-one, section one hundred and five of chapter one hundred and thirty and section forty A of chapter one hundred and thirty-one shall be assessed as a separate parcel of real estate and real estate under a conservation restriction in perpetuity under section thirty-one of chapter one hundred and eighty-four subject to a written agreement with a city or town shall be assessed as a separate parcel and the city or town acting through its assessor shall be bound by the terms of the written agreement until its expiration. 
 
Referring to this statute, the appellants claim that the Assessors had a duty to value the 8 acres of their property separately from, and lower than, the 0.93 acres that contained their residential space.  The appellants cite the practice of the Assessors to value property subject to deeded conservation restrictions at twenty-five percent of its fair market value if reserved for the enjoyment of the owner or at ten percent of its fair market value if open to the general public.  However, the appellants presented no evidence of sale prices or assessment values of properties subject to deeded restrictions.  
The Board found that the appellants provided no evidence that they were victims of any "intentional widespread scheme of discrimination" on the part of the Assessors.  Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  Rather, the evidence supports the conclusion that the Assessors determined that real estate subject to deeded restrictions for conservation and recreation purposes faces a reduction in fair market value because of those restrictions, which prohibit, often in perpetuity, development on land that is otherwise developable.  To quantify this reduction in terms of fair market value, the Assessors reduced the value of property subject to deeded restrictions by a percentage of its non-restricted fair market value.  The Board found that this reduction in assessed value reflected the diminution in the fair market value of the restricted property.  
In contrast to wetlands regulated under G.L. c. 130,  § 105, which often consist of submerged lands, marshes, or swamps, properties subject to conservation restrictions are often highly developable.  A conservation restriction may therefore alter the highest and best use of that property and "exert[] a downward influence on the fair market value of the property," especially if the land is "otherwise suitable for development."  Daniel C. Stockford, Property Assessment of Conservation Easements, 17 B.C. Envtl. Aff. L. Rev. 823, 830 (1990).  
However, where there is no deeded restriction, as for waterfront property like that of the appellants', there is no encumbrance on that property which should be reflected in a reduced valuation for that parcel.  As explained by Mr. Gatewood, owners of properties like the subject property which are subject to c. 130 and c. 131 jurisdiction are entitled to submit an application to develop their land, and the Conservation Commission can authorize further development on the property.  In contrast, owners of property who have deeded a conservation restriction or easement to the town or who have completed the c. 61B classification process have parted with rights in their property.  Under c. 184, the owner grants, sometimes in perpetuity, rights in the property to the town.  Under c. 61B, any proposed changes in the property's use will result in the imposition of roll-back or conveyance tax (G.L. c. 61B, § 7), and a lien is recorded in the appropriate Registry of Deeds to ensure that the roll-back or conveyance tax is paid (G.L. c. 61B, § 6).  Moreover, the owner grants the town a right of first refusal in the property in the event the owner wishes to sell the property.  G.L. c. 61B, § 9.  Clearly, the appellants have not voluntarily stripped themselves of any rights in their property nor granted any encumbrances on the property; instead, their property was subject to a procedure whereby they, like other similarly-situated owners of waterfront land, must seek permission and the proposed improvements must be reviewed for their potential impact on the protected resource areas.  See Erving H. Cline v. Board of Assessors of Canton, 20 Mass. App. Tax Bd. Rep. 36, 40-41 (1996) (rejecting taxpayers' argument that land containing wetlands had no value, and finding that permitting process under the Department of Environmental Protection did not affect the fair cash value of either buildable uplands or unbuildable wetlands).  
In the present appeals, the appellants offered no evidence to establish that their property was assessed at a higher percentage of its fair cash value than property subject to deeded conservation restrictions or property classified under c. 61B.  The appellants offered no evidence to support the conclusion that the assessed values of properties so restricted were less than the fair market values of such parcels.  Accordingly, the appellants failed to establish any discriminatory scheme on the part of the Assessors.
The Supreme Judicial Court has previously ruled that disparate tax treatment can be justified by facts that establish a rational basis for the distinction.  See Cooper v. Commissioner of Revenue, 421 Mass. 557, 560 (1995) ("Disparate [tax] treatment [between contributory and noncontributory retirement funds] is justified by the fact that, in the Commonwealth's contributory system, the preretirement employee pays into the pension fund a percentage of after-tax wages, while in a noncontributory system the preretirement employee sacrifices nothing and receives full salary.").  In the instant appeals, the Board found and ruled that the diminished fair market value of properties and the additional burdens of roll-back taxes and transfer restrictions supported the reduced valuation of those properties subject to voluntary conservation restrictions.  
Finally, the Board found that G.L. c. 59, § 11 does not support the appellants' argument that 8 acres of the subject property should have been separately assessed and valued lower than the residential portion of the property.  The Board found that § 11 does not compel this result.  The Supreme Judicial Court in Parkinson v. Board of Assessors of Medford, 398 Mass. 112, 116 (1986) held that where part of a taxpayer's property is subject to a restriction and part is not, § 11 "has no effect where, as in this case, the entire locus owned by the taxpayer" is subject to wetlands restrictions.  Moreover, the Board found that the appellants' residence and lawn were located in the "regulatory buffer zone" of the wetlands.   Accordingly, the Board found and ruled that the appellants failed to meet their burden of proving that 8 acres of their property should have been separately assessed from the remaining portion of their property.
The Board ultimately found and ruled that the appellants did not meet their burden of proving disproportionate assessment.  Accordingly, the Board upheld the assessment of the subject property.











5.  Conclusion
The Board ruled in favor of the Assessors for each of the four issues in contention: (1) the Board's jurisdiction over the fiscal year 2000 appeal for disproportionate assessment; (2) the assessment of personal property taxes for fiscal year 1999; (3) classification of the subject property under G.L. c. 61B; and (4) disproportionate assessment.  Accordingly, the Board issued decisions for the Assessors in these appeals. 


	    					APPELLATE TAX BOARD	



																	By:____________________________
				    Abigail A. Burns, Chairman 





A true copy:


Attest: _____________________
          Clerk of the Board



 

  Pursuant to G.L. c. 59, § 64, the appellants may appeal an assessment of personal property tax if they have paid at least one-half of the tax.  Accordingly, incurring of interest does not deprive the Board of jurisdiction on a personal property tax appeal.
   The notice stated that the Assessors "voted to take No Action" on the appellants' application, and the notice was signed by the Assessors.  However, the Board notes that the Assessors actually denied the appellants' application for abatement by voting on the application.  G.L. c. 59, § 63, which governs notices of decision on abatement applications sent by assessors, requires the assessors to send written notice to an appellant within ten days after their decision on an application.  By contrast, when the assessors take no action on an application for a period of three months, the application is deemed denied after the expiration of that three month period, and the assessors must send written notification of their inaction to the appellant within ten days following this three month period.  G.L. c. 59, § 63.  Because the Assessors voted on the application prior to the expiration of the three-month period, there was no "inaction" on the application.
 The parties dispute the date of filing for this application, with the appellants arguing they filed the application on September 30, 1999 and the Assessors arguing the appellants filed the application on October 4, 1999.  
  The Board need not address the issue of whether spouses could maintain separate domiciles for purposes of the personal property tax exemption under G.L. c. 59, § 5 cl. 20.  Instead, the Board ruled that, even assuming that only one owner-spouse need be domiciled at the subject property, the appellants did not meet their burden of proving that Mrs. Gargano was domiciled at the subject property.  

ATB 2003-501