Cheri McCasland a/k/a Cheri Rodhouse v. Board of Assessors of the Town of Hinsdale (March 13, 2015)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


CHERI McCASLAND a/k/a    	v.	   BOARD OF ASSESSORS OF
CHERI RODHOUSE					   THE TOWN OF HINSDALE

Docket No. F320547				   Promulgated:									   March 13, 2015


	This is an appeal 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 Hinsdale (the "appellee" or the "assessors") to abate a tax on a certain improved parcel of real estate located at 811-813 Middlefield Road in the Town of Hinsdale (the "subject property") owned by and assessed to Cheri McCasland (the "appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2013 (the "fiscal year at issue").  
	Commissioner Chmielinski (the "Presiding Commissioner") heard this appeal under G.L. c. 58A, § 1A and 831 CMR 1.20 and issued a single-member decision for the appellee.      
	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.    

	Cheri Rodhouse, pro se, for the appellant.
	Rosemary Crowley, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
Introduction
	The appellant's case-in-chief consisted of her testimony coupled with the introduction of one primary exhibit which contained a description of the subject property, a narrative of the appellant's contentions, a copy of the subject property's property record card, a copy of certain building permits pertaining to the subject property, copies of the requisite jurisdictional documents, an analysis of some purportedly comparable-sale properties, a September 10, 2012 bank appraisal of the subject property, copies of some lease agreements, and copies of certain receipts.  In addition, and at the request of the Presiding Commissioner, the appellant submitted after the hearing an attested copy of Hinsdale's zoning by-laws.  In support of the assessment, the assessors offered the testimony of Hinsdale's Assistant Assessor, Karen Tonelli, copies of the necessary jurisdictional documents, a copy of the subject property's property record card, and several photographs of the subject property.  
On the basis of the testimony of the appellant and Ms. Tonelli and the exhibits that the parties offered, the Presiding Commissioner made the following findings of fact.
	On January 1, 2012, the valuation and assessment date for the fiscal year at issue, the appellant was the assessed owner of the subject property.  For assessment purposes, the subject property is identified as map 411, lot 15.  At all relevant times, the subject property was comprised of an approximately 2.00-acre parcel which was improved with a one-hundred-year-old, 2,008-square-foot, two-story, eight-room, Colonial-style home that contained two dwelling units, each with a kitchen, living area, two bedrooms and a full bathroom.  The 1,304-square-foot first level comprised the owner's unit while the 704-square-foot upper level was for a tenant.  The subject property also had a 704-square-foot unfinished basement and a large detached barn.
For the fiscal year at issue, the assessors valued the subject property at $264,200 and assessed a tax thereon, at the rate of $12.22 per thousand, in the amount of $3,228.52.  

Jurisdiction
On or about December 18, 2012, Hinsdale's Collector of Taxes sent out the town's actual real estate tax notices for fiscal year 2013.  In accordance with G.L. c. 59,      § 57, the appellant paid the tax assessed on the subject property without incurring interest.  On January 15, 2013, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors.  On April 2, 2013, the assessors denied the appellant's application, and on May 10, 2013, in accordance with     G.L. c. 59, §§ 64 and 65, the appellant seasonably filed a Statement Under Informal Procedure with the Appellate Tax Board (the "Board").  In accordance with G.L. c. 58A, § 7A, the assessors timely elected to transfer the appeal to the Board's formal procedure.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.  
Merits
	The appellant argued that the subject property should have been assessed as a single-family residence with an in-law suite or apartment, just as it had been assessed historically for the past twenty-eight years.  The assessors defended the assessed value as being an appropriate one for the subject property's actual use as a two-family residence, which they only discovered during their inspection of the subject property in July, 2011.  Virtually all of the taxpayer's evidence was in support of the subject property's use as a single-family residence with an in-law suite or apartment, including purportedly comparable-sales data and a bank appraisal report prepared in 2012 for a refinance, which valued the subject property below its assessed value.  A written one-year lease commencing October 1, 2011 rented the "in-law apartment" for $900 per month, not including utilities, to third parties who were unrelated to the appellant.  Hinsdale's zoning by-laws established that the subject property was located in an area zoned for multi-family residences.  Ms. Tonelli's testimony, coupled with the appellant's own evidence, substantiated that the layouts and features of the subject property's units were suitable for, and in fact were being utilized as, two residences and that the subject property's assessment was commensurate with the fair market value for a two-family residence.    
	In consideration of all of the evidence, the Presiding Commissioner found that the appellant failed to demonstrate that the subject property was overvalued for the fiscal year at issue.  In particular, the Presiding Commissioner found that the subject property constituted a two-family residence, and not merely a single-family residence with an in-law apartment or suite.  He based this finding on the facts that both units were in fact legal residences, each one complete with multiple ingresses/egresses, kitchens, living space, bedrooms, and a full bathroom.  Moreover, the supposed "in-law apartment" or "suite" was rented to third parties unrelated to the appellant, and a two-family residential use complied with the applicable zoning.  The Presiding Commissioner further found that the appellant's purportedly comparable-sale properties were not comparable to the subject property because they were single-family residences.  The Presiding Commissioner also found that the appraisal report, which was submitted into evidence by the appellant without objection from the assessors, had been prepared for a bank refinance and was of little evidentiary value because it was hearsay - the appraiser who prepared the appraisal was not present at the hearing - and he, therefore, did not testify and was not available for cross-examination or for questions from the Presiding Commissioner.  At any rate, the purportedly comparable-sale properties that the appraiser utilized and relied upon to formulate an opinion of the subject property's fair market value were also single-family residences and not two families.  
In addition, the Presiding Commissioner credited the assessors' rationale for increasing the subject property's assessment after their inspection because they convincingly explained that the physical examination revealed to them for the first time that the subject property was being utilized as a two-family residence as opposed to a mere single-family residence with an in-law apartment or suite.  
On this basis, the Presiding Commissioner found that the appellant failed to meet her burden of establishing that the subject property was overvalued for the fiscal year at issue and, 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 preceding the start of the fiscal year.         G.L. c. 59, §§ 2A and 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).   
	The burden of proof is upon the taxpayer to make out her right as a matter of law to abatement of the tax.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The taxpayer must show that the assessed valuation of the subject property was improper.  See Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 691 (1982).  The assessment is presumed valid until the taxpayer sustains her burden of proving otherwise.  Schlaiker, 365 Mass. at 245.
	In appeals before this Board, a taxpayer "ʽmay 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 appeal, the appellant tried to show that the assessed value of the subject property exceeded its fair cash value by introducing an analysis of purportedly comparable-sale properties and an appraisal report prepared for a bank refinance by an appraiser who was not present and did not testify at the hearing of this appeal.  
With respect to the appellant's affirmative evidence of value, the Presiding Commissioner found and ruled that the appellant did not show that her purportedly comparable-sale properties were comparable to the subject property.  As a fundamental matter, her purportedly comparable-sale properties were single-family residences as opposed to two-family residences.  Therefore, even a cursory review of the properties' characteristics placed their comparability to the subject property in issue.  See, e.g., Hinds v. Assessors of Manchester-By-The-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 780 ("[T]he appellants' purportedly comparable properties were . . . so [dissimilar from] the appellants' property that their comparability was dubious.")(citing Narkiewich v. Assessors of Newbury, Mass. ATB Findings of Fact and Reports 2006-354, 360-61).  
Moreover, the Presiding Commissioner found and ruled that the appellant's analysis did not include any adjustments, assuming there could be any, to account for this fundamental use discrepancy between the subject property and the purportedly comparable-sale properties.  While "an opinion of the market value of a property can be supported by studying the market's reaction to comparable and competitive properties," Appraisal Institute, The Appraisal of Real Estate 297 (13th ed., 2008), allowances must be made for various factors, particularly the one so fundamental here, which would cause disparities in sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  
The Presiding Commissioner further found and ruled that the appraisal report prepared at the request of a bank in connection with a refinance of the mortgage on the subject property was unsubstantiated hearsay, and therefore, the Presiding Commissioner ruled that it was not reliable evidence of the fair market value of the subject property.  See, e.g., Ward Brothers Realty Trust v. Assessors of Hingham, Mass. ATB Findings of Fact and Reports 2012-515, 525 (rejecting adjustments and an opinion of value contained in an appraisal report on the basis of hearsay where the author of the report did not testify at the hearing and therefore was not available for cross-examination by the opposing party or questioning by the Presiding Commissioner).  Moreover, the appraiser here fell into the same trap into which the appellant had tumbled - he valued the subject property as a single-family residence instead of a two-family home. 

Finally, the Presiding Commissioner found and ruled that the assessors' evidence, based upon their inspection of the subject property in July, 2011 and concomitant corrections to the subject property's property record card, credibly explained the increase in the subject property's assessment from the previous fiscal year.   
On these bases, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued for the fiscal year at issue and, therefore, decided this appeal for the appellee.
	  
  					THE APPELLATE TAX BOARD

				By:			          _____	____
				   Richard G. Chmielinski, Commissioner 


A true copy,

Attest:					
    	    Clerk of the Board

 The subject property's property record card lists the total living area at 2,048 square feet - 1,344 square feet for the first-floor unit and 704 square feet for the second-floor unit. The Presiding Commissioner found that the appellant's measurements were the most accurate representations of the subject property's living area for the fiscal year at issue.  The Presiding Commissioner also found, however, that the effect of the 40-square-foot difference on the subject property's value was de minimis.  

ATB 2015-74