John Alden Sands, et al. v. Board of Assessors of the Town of Bourne (October 2, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

JOHN ALDEN SANDS, et al.     v.       BOARD OF ASSESSORS OF   
                                       THE TOWN OF BOURNE


Docket No. F279705                     Promulgated:
							    October 2, 2007


	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 to abate taxes on certain real estate in the Town of Bourne owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2005.
	Commissioner Egan heard this appeal.  She was joined in the decision for the appellee by Chairman Hammond and Commissioner Scharaffa.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

   John Alden Sands, pro se, for the appellants.
   Donna Barakauskas, principal assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On the basis of 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, 2004, the appellants	were the	assessed owners of approximately 2 acres of waterfront real estate located at 6 Scotch House Cove Road, in the Cataumet section of the Town of Bourne ("subject property").  The parcel is improved with a small single-family cottage, containing 572 square feet of finished living area.  The parcel abuts Scotch House Cove Road, which is a dead-end dirt road.  The parcel has approximately forty feet of water frontage and has 1.59 acres upland, with the rest wetland.
	For fiscal year 2005, the Board of Assessors of the Town of Bourne ("assessors") valued the subject property at $1,254,600, and assessed a tax thereon at a rate of $6.69 per thousand in the amount of $8,645.07, which included a community preservation act charge.  The town mailed the actual tax bills on December 31, 2004, and the appellants timely paid the tax without incurring interest.  The appellants seasonably filed an application for abatement with the assessors on January 31, 2005.  On March 15, 2005, the assessors denied the application, sending notice to the appellants of the decision on March 25, 2005.  
The appellants timely filed a complaint and appeal with the Barnstable County Commissioners on or before May 25, 2005.  In accordance with G.L. c. 59, § 64 and 831 CMR 1.09, the assessors elected to transfer the appeal to the Board on June 14, 2005.  The appellant then timely filed a petition with the Board on June 28, 2005 pursuant to G.L. c. 59, § 64 and G.L. c. 58A, § 7.  On the basis of these facts, the Board found that it had jurisdiction to hear and decide this appeal.
	Because there was a prior decision of the Board valuing the subject property at $841,000 for fiscal year 2004, the burden was upon the assessors to show that the increased assessment of $1,254,600 was warranted.  To meet this burden, the assessors offered the testimony of Donna Barakauskas, principal assessor, and submitted into evidence property record cards for the subject property and other comparable properties on Scotch House Cove Road.
	The appellee also submitted property record cards of purportedly comparable properties located in other parts of Cataumet.  The Board, however, found that none of these additional properties was sufficiently comparable to the subject property, because they contained either significantly larger parcels, superior improvements, or both.
	Additionally, the appellee testified about a specific property that the appellants had relied on to support their successful fiscal year 2004 appeal.  In the prior case, the appellants referred to an allegedly comparable property located on Red Brook Harbor Road, which is connected to Scotch House Cove Road.  The property, located at 100 Red Brook Harbor Road, is a ten-acre waterfront property with a larger water frontage, but lower assessment, than the two-acre subject property.  The assessors offered no evidence concerning the Red Brook Harbor Road property in the fiscal year 2004 appeal.
	The appellee testified in the present appeal, however, that the Red Brook Harbor Road property was not comparable to the subject property for several reasons, which were not brought to the Board's attention in the fiscal year 2004 appeal.  While it does have an area of approximately 10 acres, only 4.5 are useable; the rest contains a saltwater marsh.  Accordingly, the assessors assessed the property as one house lot and two secondary lots.  Additionally, the property has a dike, which the owners are required to maintain at their own expense.  Furthermore, the property at Red Brook Harbor Road is not designated by the assessors as being in the same neighborhood as the subject property.  Property values along Red Brook Harbor Road are generally lower than in the neighborhood of the subject property because Red Brook Harbor Road is busier, affording property owners less privacy than owners of property on Scotch House Cove Road.  Accordingly, the Board found that the appellee sufficiently established that the 100 Red Brook Harbor Road property was not a reliable indicator of value for the subject property for the fiscal year at issue in the present appeal.
	The appellants attempted to prove that the subject property was overvalued by showing that its value increased at a rate disproportionately higher than the values of properties that they deemed to be comparable.  In support of this assertion, they submitted a list showing the increase in the assessed values of purportedly comparable properties between fiscal years 2004 and 2005.  The Board, however, found that this evidence was unpersuasive because the appellants did not provide sufficient detail concerning the properties to enable the Board to determine whether they were actually comparable to the subject property.  The appellants only listed for their comparable properties the names of the property owners, the lot size, the amount of water frontage, the land and building value, and the rate of increase of the overall assessment between fiscal years 2004 and 2005.  Since this evidence is insufficient to allow a determination of comparability, it did not assist the Board in determining the fair cash value of the subject property for the fiscal year at issue.
	The appellants also submitted evidence of the sales and listing prices of other properties that they deemed to be comparable.  The Board found this evidence to be unpersuasive for several reasons.  The actual sales offered by appellants did not occur at or sufficiently near the relevant date of January 1, 2004, nor were they adjusted to reflect the market value of the properties as of that date.  Additionally, some of the "sales data" offered by the appellants were listing prices of unsold properties, which are not reliable indicators of the fair cash value of a property.
	Furthermore, the appellants failed to offer sufficient evidence to establish that these properties were comparable to the subject property; in fact, they are not in the same neighborhood as the subject property.  The subject property is in Cataumet, while the sold and listed properties offered by the appellants are in Monument Beach and Pocasset.  Since they are located in a different section of Bourne, and the appellants offered insufficient evidence to establish basic comparability of these properties to the subject, and also failed to make any adjustments to the data for differences between these properties and the subject property, the Board found that the appellants' sales data did not constitute persuasive evidence of value in this appeal.
	On the basis of these facts, the Board found that the appellee met its burden of producing evidence which showed that its increased assessment of the subject property over the value found by the Board for fiscal year 2004 was warranted.  By submitting evidence of the assessments of comparable properties on the same street as the subject and by offering credible evidence to explain why the Red Brook Harbor Road property relied on in the prior appeal was not persuasive evidence of value in the present appeal, the assessors sufficiently established that the increase in the subject property's assessed value over the Board's finding of value for fiscal year 2004 was warranted and that the assessed value for fiscal year 2005 did not exceed the subject property's fair cash value as of January 1, 2004.
	In contrast, the appellants failed to offer sufficient credible evidence to establish that their property was overvalued for fiscal year 2005.  Their testimony and evidence lacked sufficient detail to establish that their purported comparable properties were actually comparable.  The appellants not only failed to establish the comparability of the properties on which they relied but they also failed to make any adjustments to those properties to indicate the subject property's market value as of the relevant date.  The Board therefore found and ruled that, once the assessors meet their burden of production, the appellants failed to meet their burden of persuasion that their property was overvalued for the fiscal year at issue.
	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 of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	Generally, the appellant has the burden of proving that the property has a value lower than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  However, when the Board has issued a decision establishing the fair cash value of a property for either of the two fiscal years immediately preceding the year at issue, the burden is on the assessors to show that any increase in the value over the value found by the Board for the latest of the preceding two fiscal years is warranted.  G.L. c. 58A, § 12A.  In a prior decision, the Board held that the fair cash value of the subject property for fiscal year 2004 was $841,000.  See Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2006-190.  Therefore, the appellee had the burden of producing evidence to show that its fiscal year 2005 assessment of $1,254,600 was warranted.
	General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  The introduction of such evidence may provide adequate support for either the granting or denial of an abatement.  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  Accordingly, the Board held that the appellee's evidence of comparable assessments of other parcels on Scotch House Cove Road supported both the increase in the fair cash value over that found by the Board for fiscal year 2004 as well as the subject assessment.
	In reaching an opinion of fair cash value, the Board may accept the portions of the evidence that it determines have more convincing weight.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 683 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Board of Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 701-702 (1972).  
	In the present appeal, the Board found that the appellee's evidence had more convincing weight.  The evidence of comparable assessments on the subject property's street combined with the distinction between the Red Brook Harbor Road property and the subject property substantially outweighed the evidence presented by the appellants, which had little probative value.  The appellants provided insufficient evidence to support their assertion that the properties on which they relied were actually comparable to the subject property and they failed to make adequate adjustments for differences between the properties and the subject property.
	The Board "must base its findings and conclusions on the substantial evidence as supported by the record."  New Boston Garden Corp., 383 Mass. at 467.  In the fiscal year 2004 appeal, the evidence of record supported the Board's finding that the fair cash value of the subject property was $841,000.  At the hearing of the fiscal year 2004 appeal, the appellants presented evidence that allowed the Board to reasonably conclude that the property at 100 Red Brook Harbor Road was comparable to the subject property, and the appellee failed to offer any evidence to contradict that conclusion.
	In the present appeal, however, the evidence of record supported the appellee's assessment of the subject property at $1,254,600.  The appellee submitted substantial evidence that showed that the property at 100 Red Brook Harbor Road was in fact not comparable, and therefore not probative of the fair cash value of the subject property.  Therefore, the evidence of record in the present appeal supported a finding in favor of the appellee.
	Based on the evidence presented, the Board found that the appellee met its burden of proving that the increase in the subject property's assessment over its fair cash value found by the Board for the prior fiscal year was warranted.  The Board further found and held that the appellants failed to meet their burden of proving that the subject property was overvalued for the fiscal year at issue.  On this basis, 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: ________________________________
         Clerk of the Board

 The other appellants are Priscilla Alden Beck and Janet L. Samson; hereafter, Mr. Sands, Ms. Beck and Ms. Samson are referred to as "appellants."
 See Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2006-190.

ATB 2007-1098