Doris Nuby v. Board of Assessors of the Town of Holbrook (March 3, 2003)

									


COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DORIS NUBY				v.	BOARD OF ASSESSORS OF
							THE TOWN OF HOLBROOK

Docket No. F262747				Promulgated:
							March 3, 2003


	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee Board of Assessors to abate a tax on real estate in the Town of Holbrook owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2002.
	Commissioner Egan heard the appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1A.
	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.

	Theodore Nuby, pro se, for the appellant.
	Arthur George, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2001, Doris Nuby ("the appellant") was the assessed owner of a parcel of real estate, improved with a single-family home, located at 45 Pond Street in the Town of Holbrook ("subject property").  For fiscal year 2002, ("the fiscal year at issue") the Board of Assessors ("assessors") valued the property at $221,700 and assessed a tax at the rate of $16.35 per thousand, in the amount of $3,624.80.  On January 17, 2002, the appellant timely filed with the assessors an application for abatement.  The assessors denied the application on January 29, 2002, and on March 11, 2002, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, Commissioner Egan found that the Board had jurisdiction over the subject appeal.
	  The subject property is an 8,900 square-foot parcel of real estate which rises gently from the roadway to a level yard that is improved with shrubbery and large trees.  Located on the property are a single-family, Colonial-style home and a one-car detached garage.  The home was built in 1990 after a fire destroyed the prior residence.  The dwelling has a gross living area of 1,764 square feet with five rooms including three bedrooms, a living room and a kitchen/dining room.  There are two and one-half baths.  The home also has one fireplace and a 144 square-foot rear-deck.  The home is heated by forced hot water and the plumbing is modern.
The appellant's husband, Theodore Nuby, who resides with the appellant in the subject property, testified on behalf of the appellant.  Mr. Nuby testified that the subject property was overvalued for the fiscal year at issue.  He suggested that the subject property's relatively small lot size, together with the presence of two water tanks located behind the subject property, negatively impacts the subject property's value.  
In support of the appellant's claim of overvaluation, Mr. Nuby offered into evidence the property record card for 320 Pine Street.  Mr. Nuby noted that although this property has twenty-five percent more living area than the subject property and a lot size twice that of the subject, its assessed value for fiscal year 2002 was $40,000 less than the subject property's assessment.  Mr. Nuby also alluded to two other properties which he claimed had a lower per-square-foot assessment.  However, the appellant did not introduce any evidence, such as property record cards, to support Mr. Nuby's recitation of data for these two properties.  The appellant offered no other evidence to support the contention that the subject property was overvalued. 
	In support of their assessment, the assessors offered into evidence the testimony and appraisal report of Hannelore Simonds, Deputy Assessor.  Ms. Simonds relied primarily upon the comparable sales approach to value the subject property.  In particular, she analyzed eight sales of "Colonial-style" dwellings that occurred during the period June 1, 2000 through December 7, 2001.  Ms. Simonds made adjustments to the sale prices for factors such as:  date of sale, age, gross living area, land size, finished basement, number of bathrooms, fireplace, garage, deck, shed and swimming pool.  She calculated adjusted sale prices for these properties ranging from $202,000 to $267,200.  Based on these calculations, Ms. Simonds determined that the subject property's fair cash value as of January 1, 2001, was $221,700.
	Based on the testimony and exhibits offered into evidence, Commissioner Egan found that the appellant failed to meet her burden of proving that the subject property was overvalued for the fiscal year at issue.  The appellant offered into evidence only one property record card showing a larger property with a lower assessment, but failed to demonstrate that the property located at 320 Pine Street was comparable to the subject property, or that proper adjustments were made for any differences.  
	Moreover, Commissioner Egan found that the appellant did not demonstrate that the assessors overvalued the land portion of the subject property.  Although Mr. Nuby suggested that the water tanks located to the rear of the property negatively impacts the subject property's value, the appellant offered no evidence to support this assertion or the impact the tanks may have had on the value of the subject property.  Furthermore, the appellant did not introduce any evidence of recent sales of comparable properties.
	Commissioner Egan found that the appraisal report offered into evidence by the assessors supported the subject property's assessment.  She found that the properties used by Ms. Simonds in her appraisal report were comparable to the subject property and that proper adjustments were made for differences between the comparables and the subject property.
	On the basis of these facts, Commissioner Egan found that the appellant failed to meet her burden of proving that the subject property was overvalued for fiscal year 2002.  Accordingly, Commissioner Egan issued a 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 assessment is presumed valid unless the taxpayer sustains her burden of proving otherwise.  Shlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out her right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of her property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  In appeals before this Board, the appellant "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).

	The appellant's sole witness was her husband, who also resided at the subject property.  The assessors objected to Mr. Nuby's testimony noting that he was not the owner of record.  "The rule which permits the owner of real or personal property to testify as to its value does not rest upon the fact that he holds the legal title . . . .  It is []his familiarity, knowledge and experience, not the holding of the title, which qualify him to testify as to its value."  Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503 (1934).  Accordingly, Commissioner Egan found that as a resident of the subject property, Mr. Nuby had sufficient familiarity with and knowledge of the subject property to testify as to its value. 
    	Mr. Nuby testified that the subject property's fair cash value for the fiscal year at issue was $175,000, approximately $45,000 less than the assessed value.  In support of this contention, Mr. Nuby offered into evidence a single property record card that listed a larger property, both living area and lot size, with a lower assessment than the subject property.  "At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . of property at which the assessors have assessed other property of a comparable nature or class shall be admissible."  G.L. c. 58A, § 12B.  Commissioner Egan found and ruled, however, that the appellant failed to establish comparability between the property located at 320 Pine Street and the subject property, or to make adjustments for differences between the two properties.
	Mr. Nuby also alluded to two other properties located in Holbrook which he claimed to have lower per-square-foot assessments compared to the subject property.  However, Mr. Nuby offered no specific information pertaining to these two properties and failed to demonstrate that they were comparable to the subject property.  In addition, he failed to offer into evidence any supporting documentation, such as property record cards, to support the appellant's claims. 
Commissioner Egan further found that the comparable sales analysis prepared by Ms. Simonds and offered into evidence by the assessors was reliable and supported the subject property's fiscal year 2002 assessment.  
"The Board is not required to believe the testimony of any particular witness nor to adopt any particular method of valuation that an expert witness may suggest, but can accept those portions of the evidence which the Board determines have the more convincing weight.  Foxboro Associates, 385 Mass. at 683; New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 473 (1981); Assessors of Lynnfield New England Oyster House, Inc., 362 Mass. 696, 701-702 (19721).  "The credibility of witnesses, the weight of evidence, and the inferences to be drawn from the evidence are matters for the Board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977). 
Based on these facts, Commissioner Egan found and ruled that the appellant failed to meet her burden of proving that the subject property was overvalued for fiscal year 2002.  Accordingly, Commissioner Egan issued a decision for the appellee.

						APPELLATE TAX BOARD

					By:			_			
					   Nancy T. Egan, Commissioner


A true copy,


Attest:					
	    Clerk of the Board

ATB 2003-111