Steven Byrne v. Board of Assessors of the Town of Norwell (October 15, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


STEVEN BYRNE       	      v.     	   BOARD OF ASSESSORS OF                        
						        THE TOWN OF NORWELL
 
Docket No. F296818				   Promulgated:
		  		   			   October 15, 2009


	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 appellee Board of Assessors of the Town of Norwell ("assessors" or "appellee") to abate taxes on real estate located in Norwell, owned by and assessed to the appellant, Steven Byrne, ("appellant") under G.L. c. 59,  §§ 11 and 38, for fiscal year 2007.
Commissioner Mulhern heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20.  
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.  

Steven Byrne, pro se, for the appellant.  
Barbara Gingras, Assistant Assessor, for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008, the appellant was the assessed owner of a parcel of real estate located at 143 Pleasant Street in Norwell, Massachusetts ("subject property"). The assessors valued the subject property at $485,800 and assessed a tax thereon, at a rate of $11.07 per $1,000, in the total amount of $5,377.81.  The tax was timely paid without incurring interest. The appellant filed an Application for Abatement with the assessors on February 1, 2008.  On March 10, 2008, the assessors voted to grant the appellant a partial abatement, reducing the assessed value of the subject property to $459,800 and abating tax in the amount of $287.82.   The appellant timely filed his appeal with the Board on May 23, 2008.   On the basis of these facts, the Board found and ruled that it had jurisdiction to hear this appeal.
The appellant offered his own testimony at the hearing of this appeal, while the assessors offered the testimony of Barbara Gingras, Assistant Assessor for Norwell.  On the basis of this testimony and the evidence of record, the Board made the following findings of fact.  
The subject property consists of a 1.84-acre parcel of land improved with a single-family, Colonial-style dwelling, built in approximately 1845.  The dwelling originally contained ten rooms, including four bedrooms and also one full bathroom and one half-bathroom.  According to the property record card for the subject property, the total living area is 3,110 square feet, which includes a finished attic and a finished enclosed porch.  Also located on the property is a barn with an attached well house.
	According to the appellant's testimony, the subject property was in need of substantial repair and renovation when he purchased it in 1994.  The appellant had "gutted" certain areas of the house as part of the renovation process. The appellant testified that he lives in a small area of the house while gradually conducting the renovations himself. The appellant testified that the buildings on the property are overvalued because much of the living area which the assessors considered finished is actually unfinished and/or uninhabitable due to the renovations and deteriorated condition of the house.  The appellant also argued that the property was overvalued because it was located on what he felt was a busy road and because a neighboring residence was located close to one side of his house, impinging on the view and privacy of the subject property.  
The appellant further testified that both the attic and an enclosed porch located to the rear of the kitchen have been rendered "unfinished" space as a result of the renovation process and that, therefore, they should not be included in the subject property's total living area.   In support of his argument, the appellant offered into evidence numerous photographs which showed that the attic has only a subfloor, unplastered walls, and no insulation.  Further, the photographs showed that the enclosed porch floor consists of rocks and dirt with the wall studs exposed.  The appellant testified that neither of these areas has heat or electricity.  However, the photographs were taken sometime in January or February of 2008, approximately one year after the relevant valuation date, January 1, 2007.  The appellant did not introduce any evidence concerning the condition of these rooms on the relevant valuation date.  
The appellant also testified that the barn has structural issues and that he has applied for a demolition permit to raze the structure.  Therefore, he argued, no value should be attributed to the 1,288 square-foot barn, and the assessors' value of $3,200 was excessive.  As of the relevant valuation date, however, the structure still existed.  
Further, the appellant claimed that the roof of the dwelling requires significant repair, the flashing for the chimneys was deteriorated and leaking, the dwelling's clapboards and trim needed replacement, and the electrical and plumbing systems needed to be replaced. 
 The appellant offered ample evidence of the condition of the property at various points in time.  However, he failed to establish the impact of the condition of the subject property on its assessed value.  Further, he failed to establish that the assessors had not taken into account the subject property's condition in arriving at the assessed value, as abated.  The Board found that the appellant's evidence did not establish that the fair cash value of the subject property was less than its assessed value, as abated, on the relevant assessment date.
In support of their assessment, the assessors offered into evidence the testimony of Barbara Gingras as well as sales data from comparable properties that sold during the relevant assessment period.  Ms. Gingras testified that the assessors applied a depreciation factor in arriving at the valuation of the subject property.  Specifically, they applied 60% "physical" and 10% "external" depreciation to the dwelling.  Subsequent to these depreciation allowances and the $26,000 partial abatement, the value of the building component of the subject assessment was $81,900.  
The assessors offered sales data from three comparable properties in Norwell which sold during 2006.  These three properties had parcels close in size to the subject property, and two of them were antique homes, like the subject property. After appropriate adjustments to fair market value for location, condition and differences in total living area, the comparable properties ranged in value from $454,600 to $617,400.  
On the basis of all of the evidence, the Board found that the appellant failed to introduce persuasive evidence that the subject property was overvalued as of the relevant assessment date.  The appellant introduced evidence primarily concerning the condition of the dwelling, which the assessors accounted for by using significant depreciation factors resulting in a building value of just $81,900.  The appellant offered no evidence of the fair cash value of comparable properties, nor did he offer evidence which showed that the assessors made an error in their assessment, as abated.  In contrast, the assessors offered credible evidence supporting their assessment, as abated, including sales data from comparable properties.  For these reasons, and as discussed further in the Opinion below, the Board found that the appellant failed to meet his burden of proof, and 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 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.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974). 
	Real estate valuation experts, the courts, and this Board generally utilize three principal methods to arrive at fair cash value: the cost approach, income capitalization, and comparable sales analysis. See Correia v. New Bedford Redevelopment Authority, 375 Mass. 360,   362 (1978). "In valuing owner-occupied residential property, this Board has tended to rely on the comparable-sales or market approach to value."  Carney v. Assessors of Plymouth, Mass. ATB Findings of Fact and Reports 2008-443, 450.  In the present appeal, the assessors presented evidence of comparable sales from the relevant assessment period that supported their assessment of the subject property.  The appellant, however, presented evidence as to only the condition of the dwelling at various points in time, and did not present any evidence as to the value of the property on the relevant assessment date.  Moreover, "[t]he 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.'"  Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 778-79, (quoting 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.  
Generally, there are two ways in which a taxpayer can meet its burden of proof in a property tax appeal. "'The 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 (1989) (quoting Donlon v. Assessors of Holliston,    389 Mass. 848, 855 (1983)).  In this appeal, the appellant did neither.  The appellant presented no valuation evidence supporting his assertion that the fair cash value of the subject property was less than its assessed value, as abated, as of the relevant assessment date.  Further, he failed to show that the assessors committed errors in assessing the subject property which resulted in an overvaluation.  
Based on the foregoing, the Board found and ruled that the appellant failed to meet his burden of proving that the fair cash value of the subject property was less than its assessed value, as abated. Accordingly, the Board issued a decision for the appellee in this appeal.  

         APPELLATE TAX BOARD

				 By:	___________________________________
					Thomas J. Mulhern, Member

A true Copy:

Attest: _____________________________________
        Clerk of the Board

 The appellant initially filed his appeal under the informal procedure pursuant to G.L. c. 58A, § 7A.  In accordance with G.L. c. 58A, § 7A, the assessors timely elected to have the appeal heard under the formal procedure pursuant to G.L. c. 58A, § 7.  

	ATB 2009-1014