Robert J. & Gina M. McCullough v. Board of Assessors of the Town of Mattapoisett (March 19, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ROBERT J. & GINA M. 	   v.  	BOARD OF ASSESSORS OF
MCCULLOUGH					THE TOWN OF MATTAPOISETT

Docket No. F303802 				Promulgated:
							March 19, 2012


	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 Mattapoisett ("assessors" or "appellee"), to abate taxes on real estate owned by and assessed to Robert J. and Gina M. McCullough ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2009 ("fiscal year at issue").
	Commissioner Rose heard this appeal. Chairman Hammond, and Commissioners Scharaffa, Mulhern and Chmielinski joined him in the decision for the appellee.
These findings of fact and report are made on the motion of the Appellate Tax Board ("Board") pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32, and are issued simultaneously with the Board's Decision in this appeal.

Patricia A. McArdle, Esq., for the appellants.
Donald Fleming, Esq., assessor, for the appellee.

FINDINGS OF FACT AND REPORT
INTRODUCTION
For the fiscal year at issue, the assessors dramatically increased values of waterfront and water-view land in the Town of Mattapoisett relative to values for the prior fiscal year. In certain cases, land values more than doubled over fiscal year 2008 values, resulting in substantially increased property tax burdens on the owners of such land.
Following the issuance of assessments reflecting the increases, numerous appeals were filed with the assessors and, subsequently, the Board.  Many of the appeals were filed by one attorney who, in turn, retained a single appraisal firm to prepare an appraisal report for each property and testify at the hearing of each appeal.  
 Given the volume of the appeals, similarities among the properties, common representation of the appellants, and valuation by a single appraiser employing substantially the same valuation analysis, the Board, with the consent of the parties, consolidated the appeals brought by the referenced attorney, which were divided for hearing by location. Commissioner Mulhern heard appeals relating to properties on Pease Point and Commissioner Rose heard appeals of properties in the Crescent Beach area. 
II. JURISDICTION AND FACTS 	
Based on the testimony and exhibits entered into evidence at the hearing of this appeal, the Board made the following findings of fact.
	On January 1, 2008, the appellants were the assessed owners of an improved parcel of real estate located at 0 Union Avenue in the Crescent Beach section of Mattapoisett ("subject property").  The subject property consists of a 4,792 square-foot vacant parcel located across Union Avenue from several waterfront properties. The appellants and the assessors agreed that the subject property is not buildable as a matter of right.    
For the fiscal year at issue, the assessors valued the subject property at $28,300, and assessed a tax thereon at the rate of $9.48 per thousand, in the total amount of $268.28.   
The appellants timely paid the taxes due without incurring interest and, in accordance with G.L. c. 59, § 59, timely filed an abatement application with the assessors on January 28, 2009.  On April 25, 2009, the assessors denied the appellants' abatement application. The appellants seasonably filed a Petition Under Formal Procedure with the Board on July 16, 2009.  On the basis of the foregoing, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	The appellants argued that the subject property was significantly overvalued for the fiscal year at issue. In support of their argument, the appellants offered the testimony of Ms. Lori Carroll-Melker, a certified residential real estate appraiser whom the Board qualified as an expert in residential real estate appraisal. 
	Ms. Carroll-Melker testified that she had several years of real estate appraisal experience in Southeastern Massachusetts, including Cape Cod, the Islands, and in particular, Mattapoisett. Ms. Carroll-Melker acknowledged that her name did not appear on the original appraisal report relating to this appeal, which had been submitted to the assessors prior to the hearing of the appeal. She maintained, however, that the absence of her signature was an oversight, and that she had participated in all facets of the report's preparation with her mother, Ms. Carol A. Carroll, who had signed the original appraisal report and served as principal of the Carroll Appraisal Company. The appellants offered into evidence a revised version of the original report signed by Ms. Carroll-Melker as well as  Ms. Carroll (together, "the appraisers").   On the basis of Ms. Carroll-Melker's testimony regarding her participation in the preparation of the appraisal report, which the Board found credible, the Board allowed the report to be entered into evidence.
	The appraisal report reflects a value for the subject property of $14,000.00, derived under the "Sales Comparison Approach." The report, however, does not list any of the sale properties that were used to arrive at the subject property's indicated value. During her testimony, Ms. Carroll-Melker confirmed that she had employed a sales-comparison methodology to value the subject property. She further stated that the appraisers had based their opinion of value "on other nonbuildable lots that I found that sold through either MLS or Banker and Tradesman," ultimately employing a median price of approximately three dollars per square foot. The appraisers did not indicate if any adjustments were made to their claimed comparable properties. 
	Lacking any information whatsoever regarding the appraisers' purportedly comparable properties, the Board had no means to determine if the appraisers' valuation methodology was valid. The Board, therefore, found that the appraisers' methodology was of minimal probative value and could not be relied upon to estimate the subject property's fair cash value for the fiscal year at issue.  
For their part, the assessors offered the testimony of Mattapoisett assessor Robert Cole who explained, generally, that the subject property's assessed value was arrived at by applying factors that formed part of the town's overall valuation methodology.  
Having considered all of the evidence, the Board found and ruled that the appellants failed to provide probative credible evidence of the subject property's fair cash value for the fiscal year at issue. They therefore failed to demonstrate that the property's assessed value exceeded its fair cash value. Further, the identified elements of the assessors' valuation methodology did not support a finding of overvaluation. Accordingly, the Board issued a decision for the appellee in this appeal.
  
OPINION
The assessors are required to assess real estate at its fair cash value. G.L. c. 59, § 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 are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
The taxpayer has the burden of proving that the 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) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] sustained the burden of proving the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
In appeals before the 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." Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).
In the present appeal, the appellants sought to demonstrate that the subject property was overvalued. The Board, however, found that the appellants failed to present probative credible evidence of overvaluation.
Generally, real estate valuation experts, the Massachusetts courts, and this Board rely upon three approaches to determine the fair cash value of property: income capitalization; sales comparison; and cost reproduction.  Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  
 "[A]ctual sales of property generally furnish strong evidence of market value, provided they are arm's-length transactions." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982).  "Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue."  Giard v. Assessors of Colrain, Mass. ATB Findings of Fact and Reports 2009-115, 123 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)). Properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property, including similar age, location, size and date of sale.  Lattuca v. Robsham, 442 Mass. 205, 216 (2004). When offering sales, the taxpayer "bears the burden of 'establishing the comparability of . . . properties [used for comparison] to the subject property.'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Reports 2008-213, 225.
When comparable sales are used, allowances must be made for various factors which would otherwise cause disparities in the comparable property's sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences in the elements of comparison are made to the price of each comparable property . . . . The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."  Appraisal Institute, the Appraisal of Real Estate 322 (13th ed., 2008).
While the Board would have sanctioned a properly executed comparable-sales analysis to value the subject property, the Board found that the appraisers' methodology was woefully lacking. Not only did the appraisers fail to indicate what adjustments, if any, were made to their purportedly comparable properties, but they did not identify a single one of the properties. For reasons which need not be specified in detail, in the absence of such information, the Board could not make a judgment as to the validity of the appraisers' valuation methodology. The Board therefore found and ruled that the appraisers' methodology was of minimal probative value and, in turn, the appellants failed to sustain their burden of demonstrating that the subject property's assessed value exceeded its fair cash value for the fiscal year at issue. 
Accordingly, the Board issued a decision for the appellee in this appeal. 


  				   THE APPELLATE TAX BOARD

  
   By:	_____	   ________________	       Thomas W. Hammond, Jr., Chairman 

A true copy,

Attest:				_____undefinedundefinedundefinedundefined______
	   Clerk of the Board

ATB 2012-478