Tsissa, Inc. v. Board of Assessors of the Town of West Tisbury (April 4, 2011)

COMMONWEALTH OF MASSACHUSETTS

		      APPELLATE TAX BOARD


TSISSA, INC.  	       v.	     BOARD OF ASSESSORS OF 
 							THE TOWN OF WEST TISBURY			   
Docket Nos. F298159      	     Promulgated:
		  F304179				April 4, 2011

							   
	These are appeals 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, Board of Assessors of the Town of West Tisbury ("assessors"), to abate taxes on certain real estate located in the Town of West Tisbury, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal years 2008 and 2009 ("fiscal years at issue").
	Commissioner Mulhern heard these appeals.  He was joined by Chairman Hammond and Commissioners Scharaffa, Egan, and Rose in decisions 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. 
  
	Donald Quinn, Esq., Danielle Justo, Esq. and Dennis P. Crimmins, Esq. for the appellant.

	Ellen M. Hutchinson, Esq. for the appellee.  
FINDINGS OF FACT AND REPORT
On January 1, 2007 and January 1, 2008, the appellant was the assessed owner of a certain parcel of real estate located at 200 Deep Bottom Road in the Town of West Tisbury ("subject property").  As of the relevant valuation dates for the fiscal years at issue, the appellant, Tsissa, Inc. ("Tsissa" or "appellant"), owned an approximately 193-acre lot of land in the southern section of West Tisbury.  The 193-acre lot is divided into 5 taxable parcels.  Four parcels are separately assessed and taxed to each of the four individual shareholders of appellant who each are leasees of one of the four parcels.  The subject property is the remaining 123.08-acre parcel, which is assessed to the appellant.  
For fiscal year 2008, the assessors valued the subject property at $10,299,300 and assessed a tax thereon, at the rate of $4.10 per $1,000, in the total amount of $43,481.64.  The appellant timely paid the tax in full without incurring interest.  On January 31, 2008, the appellant timely applied to the appellee for an abatement, claiming that the subject property was overvalued.  By a vote on June 24, 2008, pursuant to an agreement extending its decision date, the appellee granted a partial abatement reducing the valuation to $7,773,200 and abating tax in the amount of $10,836.64.  The appellant seasonably filed its petition with the Board on July 22, 2008.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for fiscal year 2008.
For fiscal year 2009, the assessors valued the subject property at $7,735,300 and assessed a tax thereon, at the rate of $4.28 per thousand, in the total amount of $34,084.40.  The appellant timely paid the tax in full without incurring interest.  On January 27, 2009, the appellant timely applied to the appellee for an abatement, claiming that the subject property was overvalued.  The abatement application was deemed denied on April 27, 2009.  The appellant seasonably filed its petition with the Appellate Tax Board ("Board") on July 23, 2009.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for fiscal year 2009.    
The appellant is a domestic corporation duly organized in 1971 under the laws of the Commonwealth of Massachusetts to hold title to land in the Town of West Tisbury, a lightly populated community located on Martha's Vineyard, that consists of peninsulas jutting into Tisbury Great Pond.  Homes in West Tisbury range from modest to substantial.  The subject property is a largely unimproved 123.08±-acre parcel of land located at 200 Deep Bottom Road.  Its only improvements are a small barn, a small seasonal loft cottage and a tennis court, which together were assessed at $35,000 for fiscal year 2008 and at $37,100 for fiscal year 2009.  The property record card on file with the appellee reflects the division for assessment purposes of the subject property from the larger 193.08±-acre parcel of land owned by the appellant.  However, the subject property is not separately described by recording or endorsement, has never been separately surveyed, and cannot be subdivided without Town approvals.  The subject property has never been mapped on the appellee's maps but was hand drawn by the lessees and the appellant within the body of each of the four leases.  The subject property is characterized as a "hypothetical" parcel by the appellant's own experts. 
The subject property is generally bordered to the south by West Tisbury Great Pond, a barrier beach and the Atlantic Ocean; to the east by Long Point Wildlife Refuge; to the west by the Town of Chilmark; and to the north by Edgartown-West Tisbury Road.  The subject property is located off Tiah's Cove Road, approximately three miles away from the West Tisbury village center.  The subject property has water frontage and access; it is bordered on the far northeast corner by Deep Bottom Cove for approximately 400 feet and on the far southwest corner by Tsissa Cove for approximately 700 feet.  The northern edge of the subject property straddles Deerfield Road, which runs from west to east, for approximately 1,200 linear feet, and the eastern portion of the property straddles Deep Bottom Road for approximately 3,200 linear feet.  Deerfield and Deep Bottom Roads are mostly paved, private ways, which serve as the access roads for the five parcels that make up the peninsula upon which the subject property is situated.  Immediately adjacent to the west of the subject property is an extensive wildlife preserve owned by the Martha's Vineyard Land Bank.  
The subject property is irregular in shape, and its vast majority consists of rolling woodlands and local vegetation, with a gentle north-to-south slope to Tsissa Cove in the southwest.  The subject property is crisscrossed in several locations by dirt roads and footpaths.  There is a plot of approximately 5 acres of land along the northern border that has been cleared and is used for farming.  On average, the subject property is about thirty feet above sea level in most places, and the subject property is serviced by an underground power line that runs southwest to southeast across the top section of the parcel.  The subject property is zoned "RU" for Rural District.  Permitted uses in the RU district include:  single-family dwelling; two-family dwelling; subordinate dwelling; open space development; preservation of natural areas; and agriculture, fishing, and forestry.  The minimum lot area in the RU district is three acres, with minimum lot frontage of between 100 to 200 linear feet.  The Town of West Tisbury zoning bylaws state that the purpose of the RU district is to maintain the town's pattern of rural settlement, which historically has been characterized by large expanses of open space and unspoiled views from the road, a scattering of residences and small businesses, and clustered development surrounded by open space.  
At the hearing, the appellant presented its case-in-chief through the testimony of Paul J. Hartel, whom the Board qualified as an expert in the area of real estate valuation, and Douglas R. Hoehn, whom the Board qualified as an expert in the area of land surveying, with an expertise in land planning on Martha's Vineyard.  The appellee did not present witnesses but instead offered exhibits and challenged the appellant's witnesses on cross-examination. 
The appellant's first witness, Mr. Hartel, testified and presented an appraisal report for each fiscal year at issue.  Mr. Hartel presented his opinion as to factors which, he believed, would negatively affect the fair cash value of the subject property.  He testified that the subject property was heavily wooded and that this terrain obstructed water views as well as frontage to the water.  He also claimed that substantial sandbars impeded boat access to and from Tisbury Great Pond.  Mr. Hartel also cited the poor infrastructure of unpaved and gravel roads as a factor affecting fair market value.  In his appraisal reports, Mr. Hartel also described the various obstacles to valuing the subject property, several of which are detailed below. 
Because it is located in an RU district, development of the subject property is subject to approval by the Martha's Vineyard Commission ("MVC"), the regional planning agency for Duke's County.  The MVC's stated goal, according to Chapter 637 of the Acts of 1974, is to manage growth on Martha's Vineyard so as to "preserve[] and conserve[] for the enjoyment of present and future generations the unique natural, historical, ecological, scientific, and cultural values of Martha's Vineyard . . . ."  The MVC meets this goal by creating Districts of Critical Planning Concern ("DCPC") and regulating Developments of Regional Impact ("DRI").  West Tisbury has several DCPCs.  Two areas of the subject property fall within West Tisbury's Coastal DCPC.  These are the areas within 500 feet of Tsissa Cove and Deep Bottom Cove.  Any development in the Coastal DCPC requires a site plan review by the West Tisbury Planning Board.  Concerns to be addressed would be permitted uses in the shore zone and the inland zone, and the height of buildings.  	Further, a potential subdivision of the subject property would prompt its regulation as a DRI on multiple criteria, including that the subject property has been listed by the Commonwealth of Massachusetts Division of Fisheries and Wildlife, Natural Heritage and Endangered Species Program ("NHESP") as an area of special concern.  DRIs must undergo an extensive review process, which includes a public hearing and deliberation by the MVC and final approval by the MVC and the West Tisbury Planning Board.  Subdivision of the subject property would be subject to review by the NHESP, as the subject property has been categorized as an area of "Priority Habitat of Rare Species" and an "Estimated and Priority Habitat of Rare Wildlife."  As Mr. Hartel explained in his report, the problem with this designation is that "it can take many months (mating seasons, etc.)" to resolve issues surrounding the potential impact of protected species caused by development of the subject property.
Moreover, based on his visual inspection of the subject property, Mr. Hartel believed, and the appellee did not contest, that the subject property most likely contained some wetlands.  West Tisbury's Conservation Commission would thus require a complete survey and delineation of the wetlands before any development could be undertaken, adding another layer of municipal review.
Mr. Hartel also cited multiple peripheral issues, which would also add uncertainty to valuation, including: (1) the possibility of further archeological study if a review of the shellfish middens on the peninsula uncovers archaeological finds; (2) the uncertainty to a prospective buyer of a view from any development, since tree clearing is limited by the MVC; and (3) the uncertainty as to whether existing roadways are sufficient to support a development or whether upwards of 3,500 linear feet of roadway would need to be enhanced.  
In his analysis, Mr. Hartel first struggled with the "highest and best use" analysis for the subject property.  Mr. Hartel's report detailed the four components of a highest and best use analysis: (1) physically possible; (2) legally permissible; (3) financially feasible; and (4) maximally productive.  Mr. Hartel was unable to determine any of these criteria.  His reports detail the following: (1) he mused that possible uses could include conservation, fishing, and residential, but "[w]ithout a wetland determination, archaeological and National Heritage studies, one has no idea as to the potential physical development footprint."; (2) legal use is "[c]ompletely undetermined as of the date of valuation, given the jurisdiction of the MVC and the lack of any permitting"; (3) it is "[h]ard to test financial viability if you do not know what you are testing"; and (4) "Given the uncertainty of the Physical and Legal uses, and the time frame to ultimately effectuate said use, although it is likely to be some form of residential development, it is impossible to speculate as to the maximally productive use as of [the relevant assessment dates]."  In conclusion, "[i]n the subject's case, the Highest and Best Use is likely to be some level of residential development; however, the details of which were yet to be determined and as such, a prospective buyer would base their investment decision on a personally established worst case scenario." (Emphasis in original).  
	While admitting his inability to affirmatively determine the exact highest and best use, Mr. Hartel premised his appraisal on his assumption that the highest and best use of the subject property was subdivision and development possibly into five lots.  Mr. Hartel proposed that each lot would be approximately 24 acres in size, with four "estate lots" each possibly containing a main house and also a guest house, and the fifth "junior lot" containing only the main house.  Mr. Hartel based this conjecture on the fact that MVC review and requirement for affordable housing units would be triggered at ten dwelling units for a development.  
	From here, Mr. Hartel employed a "project development/discounted cash flow analysis" to value the subject property.  This technique incorporates certain elements of both the income-capitalization and sales-comparison valuation methodologies.  For his analysis, Mr. Hartel performed a sales-comparison analysis employing sales of land.  All of Mr. Hartel's purportedly comparable properties consisted of buildable lots.  
	Mr. Hartel first used sales of land that did not have significant water influence; he deemed these properties to be reflective of all but the premium subject property lot.  Mr. Hartel's analysis for fiscal year 2008 included twenty-one land sales in West Tisbury from 2004, eleven land sales in West Tisbury from 2005, and seven West Tisbury land sales from 2006.  Mr. Hartel's analysis for fiscal year 2009 used the eleven land sales from 2005, the seven land sales from 2006 and nine West Tisbury land sales from 2007.  The median lot sizes for these sales were: 1.70 acres in 2004; 3.01 acres in 2005; 1.69 acres in 2006; and 3.19 acres in 2007.  The average sale prices were $397,119 for 2004; $662,818 for 2005; $415,143 for 2006; and $1,101,389 for 2007.  
	Mr. Hartel then expanded his analysis to include more premium lots.  For his fiscal year 2008 analysis, he included two Chilmark land sales with frontage on Tisbury Great Pond.  For his fiscal year 2009 analysis, Mr. Hartel again considered the two Chilmark land sales and an additional land sale in Aquinnah with frontage on Menemsha Pond.  Mr. Hartel's analysis listed the sale price and price per acre for his comparable-sales properties.  He did not provide adjustments for any of his comparable-sale properties.  Mr. Hartel then resolved all of his data and estimated price ranges for the individual lots as follows: the best of the five lots (based on its proximity to Tsissa Cove) would sell between $2.0 and $2.5 million; the second best would sell between $1.25 and $1.75 million; and the three remaining lots would sell between $750,000 and $1.250 million.
	Mr. Hartel relied upon several key assumptions in his analysis.  For example, he assumed that it would take a developer one year to receive all regulatory approvals for the 5-lot subdivision.  He also assumed a 40% open space factor, meaning that the MVC would require at least 40% of the subject property to remain as restricted open space.  He next assumed that, for the fiscal year 2008 analysis, the prices of the subject property's lots would increase by 3% annually, and for the fiscal year 2009 analysis, the prices would increase by 1% annually.  He applied a discount rate of 9%, which he calculated based on the risk rate and opportunity costs associated with the project.  He also estimated construction costs that the developer would incur, including site preparation, roadway preparation, installation of electric and other utilities, and landscaping.  Mr. Hartel's report stated in general that he had contacted "appropriate real estate brokers, developers, managers and appraisers" as well as reviewed his own files, to identify construction costs.  With these assumptions, Mr. Hartel's discounted cash flow analysis yielded fair cash values of $4,800,000 for fiscal year 2008 and $4,500,000 for fiscal year 2009.
The appellee challenged Mr. Hartel on cross examination as to his inability to determine the legally permissible uses for the subject property.  The appellee contended that Mr. Hartel's inability to make this determination made it impossible for him to determine the highest and best use for the subject property.  The appellee pointed out that Mr. Hartel's appraisal reports themselves classify the highest and best use of the subject property as "undetermined."  The appellee also challenged the method by which Mr. Hartel merely relied on MV LINK, the Martha's Vineyard equivalent to Multiple Listing Service, for his sales information.  Mr. Hartel admitted that he did not review actual sales deeds in creating his analysis and he confirmed the sales only "[i]n some cases."  On cross-examination, Mr. Hartel also acknowledged several mistakes in his comparable-sale listings, including the wrong address, wrong acreage and wrong sales prices for many of the parcels. 
The appellant's next witness was Douglas Hoehn, a land surveyor whom the Board qualified as an expert with respect to the procedures that would be involved in gaining regulatory approvals from the MVC and the West Tisbury Planning Board for subdivision of the subject property.  Mr. Hoehn confirmed Mr. Hartel's testimony that the MVC's affordable housing requirement would apply once a development reaches ten units.  However, Mr. Hoehn then offered further testimony that "West Tisbury also has an affordable housing component in their bylaws and it is triggered where there is a subdivision of three or more lots."  Further, when asked on direct examination what the "optimal" configuration would be for the 123-acre subject property, Mr. Hoehn testified that the MVC would possibly approve an eleven-dwelling-unit subdivision plan with one of these units being reserved for affordable housing.  Mr. Hoehn also testified that Mr. Hartel's assumption of a 40% open space factor would very likely not be sufficient for the MVC and that the MVC would most likely require at least 75% of the subject property to remain permanently restricted open space.  However, Mr. Hoehn's testimony on this point was somewhat confusing, as he also indicated that the MVC would make exception to this rule to accommodate for the affordable-housing requirement.  Finally, Mr. Hoehn testified that Mr. Hartel's estimate of 12 months to obtain regulatory approval for the subdivision plan was "overly optimistic."  Mr. Hoehn's opinion was that regulatory approval would actually take at least twice this time, between two to two and one-half years. 
Based on the evidence presented, the Board found several flaws in Mr. Hartel's valuation method.  First, the Board found that the 5-lot subdivision plan, upon which the appraisal reports were based, was a purely speculative valuation assumption that lacked proper foundation.  Mr. Hartel admitted that he was unable to resolve the issue of the highest and best use of the subject property, and thus, he could not substantiate whether his subdivision plan reflected the optimal use of the subject property.  In fact, the appellant's other expert witness, Mr. Hoehn, undercut Mr. Hartel's determination that a 5-lot subdivision plan was the highest and best use, when in response to a question regarding an "optimal" plan, he offered a different configuration, an eleven-unit subdivision plan with one affordable-housing unit.  As will be explained in the Opinion, the Board thus found that Mr. Hartel's appraisal lacked the proper foundation to be credible evidence of the subject property's fair market value.  
Second, Mr. Hartel's valuation was founded upon several premises which were contradicted by Mr. Hoehn.  For example, Mr. Hartel believed that the appellant could avoid the additional hurdles required with respect to offering affordable housing by keeping the number of units below ten.  However, the appellant's own expert surveyor, Mr. Hoehn, contradicted this assumption, suggesting that West Tisbury's affordable housing bylaws may be triggered at a three or four lot subdivision.  Mr. Hoehn further contradicted Mr. Hartel's opinions with respect to the amount of open space required for the subdivision plan, and therefore, the size and configuration of the subject property's units, and the amount of time likely required to gain approval for the subdivision plan.  The Board also found that, because Mr. Hartel was not an engineer, he was not qualified to offer evidence on costs of construction, a critical component of his valuation methodology.  
Finally, the Board recognizes that Mr. Hartel's comparable-sales analysis was based solely on sales of small, developable, single-lot properties, which may be appropriate for a "project development/discounted cash flow analysis."  However, as applied to the subject property, his analysis included no sales of properties like the subject that were large and unpermitted, thus undercutting both the comparability of his comparable-sales properties and the application of the "project development/discounted cash flow analysis" to a large, unpermitted property like the subject.  Moreover, Mr. Hartel's analysis was devoid of adjustments indicating how he arrived at his projected sale prices for the subject property's projected finished lots.  Mr. Hartel failed to specify adjustments for any of his comparable-sales properties where adjustments would have been warranted, particularly for date of sale, location and size of the property.  Because Mr. Hartel did not use sales of land that were sufficiently comparable to the subject property, and because he made no adjustments to account for differences between the subject property and the purportedly comparable properties, the Board found that the appellant's comparable-sales evidence did not constitute persuasive, credible evidence that the subject property was overvalued.  
On the basis of the evidence presented, the Board found that the appellant failed to meet its burden of proving that the subject property was overvalued.  Accordingly, the Board issued a decision for the appellee in these appeals.

OPINION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  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 (1954).
An assessment is presumed valid unless the taxpayer sustains its burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out its right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of its property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  
"Prior to valuing the subject property, its highest and best use must be ascertained, which has been defined as the use for which the property would bring the most."  Tennessee Gas Pipeline Co. v. Assessors of Agawam, Mass. ATB Findings of Fact and Reports 2000-859, 874 (citing Conness v. Commonwealth, 184 Mass. 541, 542-43 (1903)); see also Irving Saunders Trust v. Assessors of Boston, 26 Mass. App. Ct. 838, 843 (1989) (and the cases cited therein).  A property's highest and best use must be legally permissible, physically possible, financially feasible, and maximally productive.  Appraisal Institute, The Appraisal of Real Estate 279 (13th ed., 2008).  See also Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 687 (1972).  "In determining the property's highest and best use, consideration should be given to the purpose for which the property is adapted."  Northshore Mall Limited Partnership et al. v. Board of Assessors of the City of Peabody, Mass. ATB Findings of Fact and Reports 2004-195, 247 (citing Appraisal Institute, The Appraisal of Real Estate at 315-16 (12th ed., 2001) and Tennessee Gas Pipeline Co., Mass. ATB Findings of Fact and Reports at 2000-875), aff'd, 63 Mass. App. Ct. 1116 (2005). 
In the present appeals, the appellant's valuation expert, Mr. Hartel, could not affirmatively determine that his hypothetical five-lot subdivision plan constituted its highest and best use.  In fact, the appellant's other expert, Mr. Hoehn, seemed to contradict its valuation expert when, in response to the question regarding the optimal use of the subject property, Mr. Hoehn proposed an eleven-unit subdivision plan which included affordable housing.  The opinion of an expert must be based on a proper foundation.  State Tax Commission v. Assessors of Springfield, 331 Mass. 677, 684 (1954).  Because a highest-and-best-use determination is a prerequisite to establishing a foundation for a determination of fair market value, the Board found and ruled that Mr. Hartel's opinions of value, which were based on a proposed five-lot subdivision plan, lacked proper foundation.
Assuming, arguendo, that the five-lot subdivision plan was the highest and best use of the subject property, the Board found that Mr. Hartel's sales data did not support the appellant's valuation claims.  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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984)(quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
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 reproductions.  See Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  The properties used in a comparable-sales analysis must be comparable to the subject property in order to be probative of the fair cash value.  See Anne B. Sroka v. Assessors of Monson, Mass. ATB Findings of Fact and Reports 2009-835, 846 (citing Lattuca v. Robsham, 442 Mass. 205, 216 (2004)). 
The appellant bears the burden of "establishing the comparability of . . . properties [used for comparison] to the subject property."  Fleet Bank of Mass. v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 1998-546, 554.  Accord New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981). "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."  Id.  
In the instant appeals, the appellant's expert introduced a comparable-sales analysis based upon data from a number of property sales in West Tisbury, as well as in Chilmark and Aquinnah.  Mr. Hartel compared these purportedly comparable properties with the five hypothetical 24-acre lots as envisioned by his proposed subdivision plan.  However, none of Mr. Hartel's purportedly comparable properties was an undeveloped and unpermitted lot like the subject property, nor were any equivalent in size.  The Board found that, because Mr. Hartel's analysis failed to include property sufficiently comparable to the subject property, his analysis was not probative of the subject property's valuation.  See, e.g., Diamond Ledge Properties Corp. v. Assessors of Swansea, Mass. ATB Findings of Fact and Reports 2009-1185, 1192.
Moreover, Mr. Hartel's comparable-sales properties were diverse in size, location and date of sale, and differed from one another as well as from the subject property in these respects.  In fact, all but one of the comparable-sales properties were less than half the size of the proposed 24-acre lots, with the vast majority of these properties being about one-quarter or less the size of Mr. Hartel's proposed lots.  Yet, Mr. Hartel failed to make adjustments to these properties' sales prices to account for key differences between them and the subject property.  Instead, he simply relied upon the unadjusted sales prices of the purportedly comparable properties to form his opinion of value for the subject property.  Mr. Hartel also failed to identify other key differences between his purportedly comparable properties and the subject property, such as topography, shape, zoning and available utilities.  His report simply gave a generic listing of address, size and sale price.  "[G]eneric summaries" of groups of sales, with no adjustment for specific comparison to the subject property, are "devoid of persuasive value" for determining a subject property's fair market value.  Andreozzi v. Assessors of Seekonk, Mass. ATB Findings of Fact and Reports 2010-800, 810.  
Because Mr. Hartel's appraisal reports and testimony failed to employ properties that were sufficiently comparable to the subject property, and because they were devoid of any adjustments to account for obvious differences between the subject property and his comparison properties, the Board placed no weight on Mr. Hartel's opinion of value.  
Furthermore, the testimony and appraisal report of Mr. Hartel estimated costs associated with developing the subject property.  However, "[t]he Courts and this Board have found and ruled consistently that only qualified engineers, architects, or contractors should present cost estimates in most circumstances."  Cnossen v. Assessors of Uxbridge, Mass. ATB Findings of Fact and Reports 2002-675, 690 (citing Tiger v. Mystic River Bridge Authority, 329 Mass. 514, 519 (1952) and Maryland Cup Corp. v. Assessors of Wilmington, Mass. ATB Findings of Fact and Reports 1988-169).  Mr. Hartel is not a licensed engineer, architect, or contractor.  The Board thus found and ruled that Mr. Hartel was not competent to offer evidence of construction costs.  See Cnossen, Mass. ATB Findings of Fact and Reports at 2002-690 (finding that the witnesses' lack of qualifications substantially diminished the probative value of their testimony relating to the reproduction-cost approach); see also Andreozzi, Mass. ATB Findings of Fact and Reports at 2010-808-10; Mason v. Assessors of Winchester, Mass. ATB Findings of Fact and Reports 2004-110, 143.
The Board is guided by the principle that "'evidence of a party having the burden of proof may not be disbelieved without an explicit and objectively adequate reason.'" New Boston Garden v. Assessors of Boston, 383 Mass. 456, 473 (1981) (quoting L.L. Jaffe, Judicial Control of Administrative Action 607 (1968)).  However, the Board has also ruled that the mere qualification of a person as an expert does not endow his testimony with any magic qualities (Boston Gas Co. v. Assessors of Boston, 334 Mass. at 579), particularly where the expert speaks to issues beyond his realm of expertise.  See, e.g., Khan and Zasky, Trustees v. Assessors of Brookline, Mass. ATB Findings of Fact and Reports 2004-403, 435-6 (finding that, because the assessors' real estate valuation expert lacked the expertise to estimate certain development costs, his approach to valuing the property based on those costs lacked merit).  In the instant appeal, the Board found objective reasons for disregarding the value that Mr. Hartel derived for the subject property for the fiscal year at issue, namely: Mr. Hartel's failure to determine whether his hypothetical five-lot subdivision plan was the highest and best use for the subject property; his lack of qualification to offer construction costs for the potential development of the subject property; his failure to offer for comparison sales of sufficiently large, unpermitted and unapproved land more akin to the subject property and thus sufficiently comparable to the subject property; and the generic unadjusted nature of his comparable-sales analysis.  
Moreover, the appellant's other witness, Mr. Hoehn, contradicted the appellant's valuation expert with respect to key features of the hypothetical subdivision, including the amount of open space required for the subdivision plan (and therefore, the size and configuration of the subject property's units); the amount of time likely required to gain approval for the subdivision plan; and the requirement for affordable housing units.  The Board thus ruled that Mr. Hartel's opinion of value lacked adequate foundation or persuasive value.  

On the basis of the evidence provided, the Board found and ruled that the appellant failed to meet its burden of proving a fair market value for the subject property that was lower than that assessed for the fiscal years at issue.  The Board therefore decided these appeals for the appellee.

					 APPELLATE TAX BOARD			


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


A true copy,

Attest: ________________________
	   Clerk of the Board

 This amount includes a Community Preservation Act assessment of $1,254.51.
 This amount includes a Community Preservation Act assessment of $315.63. 
 This amount includes a Community Preservation Act assessment of $977.32.
 This assessment remained constant after the appellee's partial abatement.
 Specifically prohibited uses are industrial, automotive, warehouse, adult, junkyard, lodging, restaurant, office, airport, and solid waste facility. 
  The shore zone is the part of the Coastal District that consists of all land one hundred feet inland of the inland edge of any beach grass, marsh grass or bluff over 15 feet in height that abuts any pond, lake, stream, creek, ocean, sea or water that is subject to tidal action.  The inland zone is the remainder of the land in the Coastal District.  
   Permitted uses in the shore zone are limited to those uses which are consistent with the fragile nature of the area, like outdoor recreation, conservation, agricultural purposes and minor non-residential structures.  Permitted uses in the inland zone are single-family dwellings and accessory structures.  All other uses allowed in the RU district are eligible for consideration for a special permit.
  In the subject's wooded landscape, the maximum height of structures is the lesser of the height of the surrounding trees, or twenty-four feet for a pitched roof and thirteen feet for a flat or shed roof. 
  The one comparable-sales property that was not less than half the size of the proposed 24-acre lots was 0 State Road in Aquinnah, used for comparison with Mr. Hartel's hypothetical premium lot.  This purportedly comparable property was only slightly more than half the size of Mr. Hartel's hypothetical lot.

ATB 2011-198