Edward H. Stone v. Board of Assessors of the Town of Wakefield (September 4, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



EDWARD H. STONE 		  v.	        BOARD OF ASSESSORS OF
							   THE TOWN OF WAKEFIELD

Docket No. F286060				   Promulgated:
							        September 4, 2007


	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 appellee to abate taxes on real estate assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2006.
	Chairman Hammond ("Presiding Commissioner") heard the appeal and, pursuant to G.L. c. 58A, § 1A and 831 CMR 1.30, issued a single-member decision for the appellee.
	These findings of fact and report are promulgated pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Edward H. Stone, pro se, for the appellant.

	Victor P. Santaniello, Assessor, for the appellee.


FINDINGS OF FACT AND REPORT

On the basis of exhibits and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2005, Edward H. Stone ("appellant") was the assessed owner of a parcel of real estate located at 37 Morrison Road West in the Town of Wakefield ("subject property").  For fiscal year 2006 ("fiscal year at issue"), the Wakefield Board of Assessors ("assessors") valued the subject property at $661,600, which included a land value of $231,000 and a building value of $430,600. On the basis of the $661,600 assessed value, the appellant was assessed a tax of $6146.16, which he timely paid without incurring interest.
On January 24, 2006, the appellant timely filed an application for abatement with the assessors.  The assessors denied the application on March 15, 2006, and on June 5, 2006, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found that the Board had jurisdiction over this appeal.
The subject property consists of a 16,360 square-foot parcel of real estate improved with a single-family, "Colonial" style home, which contains 2,666 square feet of living space.  The home was completed in 2002, and the interior's finished area is comprised of eight rooms, including four bedrooms, and two and one-half bathrooms.  The home has oil-fired heating and central air conditioning.  
The appellant maintained at the hearing of this appeal that the subject property was overvalued and that its value on the relevant valuation date was $568,000, as reflected on appellant's abatement application and as the Board determined in its December 28, 2005 decision concerning appellant's fiscal year 2005 appeal concerning the subject property.  
To support his assertion, the appellant focused primarily on lower assessed values for properties located on his street and alleged assessment discrepancies within what the appellant considered to be the subject property's neighborhood as well as other neighborhoods in Wakefield. 
The appellant also noted that the condition of his property was less than desirable due to rust spots on baseboards, creaking floors and also the slope of the subject parcel.  Appellant further contended that his dwelling, as a component of the overall assessment, was substantially similar in condition and value to the dwellings at 24 and 64 Morrison Road. 
The assessors' witness testified at length about a sales analysis that he performed on all sales during the relevant time period.  After narrowing the number of sales to those properties that were, like the subject property, recently constructed and were comparable to the subject property in size and condition, the assessors' witness determined that the properties at 111 Harrison Avenue and 1 and 2 Thayer Circle were the most comparable to the subject, particularly with respect to their recent construction and size.  
The appellant disputed the neighborhood grade determinations of the town and attempted to show errors in a table of neighborhood grades.  The table, as adjusted by the appellant, was not adequately explained and the Board was not presented with any credible evidence tying the hand-written calculations to the subject property's value. Further, the calculations were not sufficiently explained and, accordingly, they were not given any weight. 
Based on the evidence submitted, the Presiding Commissioner found that the assessors met their burden of proving that the increase in the assessed value of the subject property over the value found by the Board for the fiscal year 2005 appeal concerning the subject property was warranted.  In particular, the Presiding Commissioner found that the assessors' witness demonstrated that the properties on which he relied to support the assessment were comparable to the subject property, particularly with respect to their recent construction and that his adjustments to the indicated sale prices were proper, credible and supported the assessment.  
Conversely, the Presiding Commissioner found that the appellant did not present credible affirmative evidence to support his claim of overvaluation.  Many of appellant's claims were undocumented and the data that was offered was not adequately explained or tied to fair cash value in any meaningful way.  Based on the foregoing, the Presiding Commissioner found and ruled that the assessors met their burden of proving that the increase in the assessed value of the subject property over the value found by the Board for the fiscal year 2005 appeal concerning the subject property was warranted.  The Presiding Commissioner further found and ruled that the appellant failed to meet his burden of proving that he was entitled to an abatement.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.

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 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 appellant 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 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 taxpayers . . . prov[e] the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 363 Mass. at 245).
If, however, within the two preceding fiscal years the Board has determined the fair cash value of the subject property and the assessment at issue exceeds the Board's prior determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  Because the Board found a value of $568,000 for fiscal year 2005, the Presiding Commissioner ruled in the present appeal that the burden of going forward to justify the increase in the assessment to $661,600 for fiscal year 2006 was on the assessors.  See, generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); see also Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87 ("Once a prior determination of the Board of the fair cash value of the same property [for one of the prior two fiscal years] has been placed in evidence . . . the statute requires the [assessors] to produce evidence to 'satisfy the Board that the increased valuation was warranted.'" (citation omitted)) ; Ellis v. Assessors of Northborough, Mass. ATB Findings of Fact and Reports 1983 (Docket Nos. 120878 & 123140, October 25, 1983). 
Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains on the appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 8; Cressey Dockham, Mass. ATB Findings of Fact and Reports 1989 at 86-87.   
In the present appeals, the Presiding Commissioner found that the assessors' witness identified sales of comparable properties that he properly adjusted to reach a credible determination of the subject property's fair cash value for the fiscal year at issue.  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.  McCabe v. Chelsea, 265 Mass. 494, 496 (1929). "[T]he market value of a property is related to the [sale] prices of comparable, competitive properties." The Appraisal Institute, The Appraisal of Real Estate 277, 417 (12th ed. 2001). When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082. "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value." Appraisal Institute, The Appraisal of Real Estate at 430.  The Board found and ruled in this appeal that the assessors' witness provided persuasive, credible evidence to establish the fair cash value of, and the validity of the assessment placed on, the subject property for the fiscal year at issue.  
In contrast, the appellant offered no evidence to challenge or contradict the assessor's analysis and provided no credible affirmative evidence of overvaluation.  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 Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). "A taxpayer may show that its property is overvalued by demonstrating that the assessors relied on inaccurate information contained in their property record cards that improperly increased the value of the subject property."  Kelly v. Board of Assessors of Bedford, Mass. ATB Findings of Fact and Reports 1998-941, 946; see also Olivieri v. Board of Assessors of Egremont, Mass. ATB Findings of Fact and Reports 1998-950, 955; Mason v. Board of Assessors of Lakeville, Mass. ATB Findings of Fact and Reports 1998-558, 566.   
Regarding valuation of land and building as separate components of the overall assessment, a taxpayer does not establish the right to an abatement merely by showing that land or building is overvalued.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 49.  
In the present appeal, the appellant offered no credible evidence of errors on the part of the assessors or affirmative evidence of overvaluation.  Accordingly, on the basis of the evidence presented in these appeals, the Board ruled that the assessors met their burden of proving that the increase in the value of the subject property for fiscal year 2006 over the value determined by the Board in the fiscal year 2005 appeal of the subject property's
assessment was warranted. Therefore, the Presiding Commissioner entered a decision for the appellee in this appeal.

						APPELLATE TAX BOARD


				By:	___________________________________
					Thomas W. Hammond, Jr., Chairman





A true copy,

Attest:	____________________________
		Assistant Clerk of the Board

8


ATB 2007-931