Elizabeth L. Andersen v. Board of Assessors of the Town of Falmouth (August 27, 2013)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD


ELIZABETH L. ANDERSEN         v.      BOARD OF ASSESSORS OF 
							   THE TOWN OF FALMOUTH
Docket Nos.  F314689 (FY 2011)	   Promulgated:
		   F316333 (FY 2012)	   August 27, 2013		 

	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 Board of Assessors of the Town of Falmouth ("assessors" or "appellee") to abate taxes on certain real estate in Falmouth, owned by and assessed to Elizabeth L. Andersen ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal years 2011 and 2012 ("fiscal years at issue").
	Commissioner Rose heard these appeals. Chairman Hammond, Commissioners Scharaffa and Chmielinski, and former Commissioner Mulhern joined him in the decision 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.

Elizabeth L. Andersen and Neil Andersen, pro se, for the appellant.

James Jursak, assistant assessor, for the appellee.
FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2010, and January 1, 2011, the appellant was the assessed owner of an improved 1.84-acre parcel of real estate located at 211 Blacksmith Shop Road in Falmouth ("subject property"), at which she resided with her husband, Neil Andersen. The subject property is improved with a two-story, contemporary-style dwelling, built around 1990, which has a finished living area of 3,839 square feet.  The dwelling has four bedrooms, two bathrooms, two half-bathrooms, and a wood deck.
	For fiscal year 2011, the assessors valued the subject property at $587,200 and assessed a tax thereon in the total amount of $4,354.68.  For fiscal year 2012, the assessors valued the subject property at $553,300 and assessed a tax thereon in the total amount of $4,433.83.  
Jurisdiction
A. Fiscal Year 2011 (Docket No. F314689)
On March 11, 2011, Falmouth's Collector of Taxes sent out the town's actual real estate tax notices for fiscal year 2011.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax assessed without incurring interest.  Also on March 11, the appellant timely filed an Application for Abatement with the assessors in accordance with G.L. c. 59, § 59.  The two-page Application for Abatement form included the following language on page 2: 
The assessors have 3 months from the date your application is filed to act unless you agree in writing before that period expires to extend it for a specific time.  If the assessors do not act on your application within the original or extended period, it is deemed denied.
 
The assessors did not act on the application within three months, and it was deemed denied on June 11, 2011.  This deemed denial set a deadline of September 12, 2011 for the appellant to file an appeal with the Board.  Because the assessors did not send notice of their inaction within ten days of the deemed denial of the appellant's application as required by G.L. c. 59, § 63, the appellant was entitled to file a Petition for Late Entry ("PLE"), under G.L. c. 59, § 65C, "within two months after the appeal should have been entered."  
However, the appellant did not file her appeal with the Board until December 12, 2011, one month after the deadline for filing a PLE.  Her tardiness may have been caused by reliance on a September 13, 2011 notice that she received from the assessors, which inexplicably cited a deemed denial date of September 13, 2011, over three months after the abatement application was deemed denied by operation of G.L. c. 58A, § 6 and G.L. c. 59, §§ 64 and 65.  It stated:
Your application was deemed denied on September 13, 2011.

You may appeal this denial in the manner and under the conditions provided by Chapter 59, Sections 64-65B of the General Laws.

Under those sections, your appeal may be made to the Appellate Tax Board . . . . The appeal must be filed within three months of the date your application was denied by vote of the assessors or within three months of the date your application was deemed denied, whichever is applicable.

The notice was not only inaccurate and therefore void, but also misleading in that it suggested the appellant had three months from September 13 to file her appeal.  Notwithstanding the misleading and inaccurate notice and that neither party raised this jurisdictional issue during the hearing of these appeals, the Board was compelled to find and rule that it did not have jurisdiction over the fiscal year 2011 appeal.
B. Fiscal Year 2012 (Docket No. F316333)
In accordance with G.L. c. 59, § 57C, the appellant paid the tax assessed on the subject property for fiscal year 2012 without incurring interest.  On January 26, 2012, the appellant timely filed an Application for Abatement with the assessors in accordance with G.L. c. 59, § 59.  The assessors denied the application on March 8, 2012.  On June 6, 2012, the appellant seasonably filed a Petition Under Formal Procedure with the Board appealing the assessors' denial.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide the fiscal year 2012 appeal.
II. Valuation
The appellant asserted that the assessors' valuation for fiscal year 2012 did not appropriately account for the subject property's proximity to a wind turbine owned by the Town of Falmouth.  The 1.65-megawatt turbine, which became operational in March of 2010, is 400 feet tall and is located approximately one quarter mile from the subject property at Falmouth's Waste Water Treatment Facility, which is located at 154 Blacksmith Shop Road.  As of the fiscal year 2012 assessment date of January 1, 2011, the turbine operated both night and day, whenever wind levels were sufficient to facilitate motion.  According to the appellant, the turbine's rotation emits low frequency noise that has adversely affected her and her husband's enjoyment of the subject property and has caused them to suffer loss of sleep, headaches, vertigo, depression, and other physical and mental ailments.  The appellant presented evidence to this effect, which detailed the nature of the noise and sought to establish its impact on the couple's quality of life and general well-being. However, the Board found that the appellant did not present evidence which demonstrated that the subject property's proximity to the turbine had a quantifiable negative effect on its fair cash value.  Moreover, the Board found that the appellant did not present any affirmative evidence, such as a comparable-sales analysis, to support a fair cash value for the subject property lower than its assessed value.
For their part, the assessors offered the requisite jurisdictional documentation and a valuation analysis that included three sales of purportedly comparable properties in Falmouth occurring between June, 2010, and February, 2011, as well as one real estate listing.  However, the transactions included in the comparable-sales analysis each involved properties located more than twice as far from the wind turbine as the subject property.  Consequently, the Board could not discern the effect, if any, that the turbine's operation had on the sale prices of the properties, or if the value of the subject property would have been similarly affected.  Moreover, the assessors made no adjustments to account for differences between their chosen properties and the subject property. For these reasons, the Board gave no weight to the assessors' valuation analysis.
Based on the evidence submitted, the Board found and ruled that the appellant failed to meet her burden of proving that the subject property's assessed value exceeded its fair cash value for fiscal year 2012.  Because the Board also found and ruled that it did not have jurisdiction over the fiscal year 2011 appeal, the Board issued a decision for the appellee in these appeals.

OPINION
I. Jurisdiction
The Board has only that jurisdiction conferred on it by statute.  Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982).  "Since the remedy of abatement is created by statute, the board lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981) (citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936)). Furthermore, the Board cannot use principles of equitable estoppel to extend its authority beyond statutory prescription. See Stilson, 385 Mass. at 732; Comm'r of Revenue v. Marr Scaffolding, 414 Mass. 489, 493 (1993) ("An administrative agency has no inherent or common law authority to do anything. An administrative board may act only to the extent that it has express or implied statutory authority to do so."); Hillside Country Club Partnership, Inc. v. Comm'r of Revenue, Mass. ATB Findings of Fact and Reports, 2011-191, 196 ("[T]he Board lacks the authority to grant an abatement based on principles of equitable estoppel.").
The assessors' failure to raise an impediment to the Board's jurisdiction does not preclude the Board from raising the issue on its own motion.  "Adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent."  Sevenars Concert Trust v. Assessors of Worthington, Mass. ATB Findings of Fact and Reports, 2008-534, 538-39 (citing Nature Church, 384 Mass. at 812).
G.L. c. 59, §§ 64 and 65, provide that a taxpayer who is aggrieved by the assessors' refusal to abate a tax on real estate may appeal to the Board "within three months after the date of the assessors' decision on an application for abatement ... or within three months after the time when the application for abatement is deemed to be denied." See also Berkshire Gas v. Assessors of Williamstown, 361 Mass. 873 (1972); Alan Ades v. Assessors of New Bedford, Mass. ATB Findings of Fact and Reports, 1996-287, 289.  "The time limit of three months provided for filing the petition by statute is jurisdictional and a failure to comply with it will result in dismissal of the appeal."  Ades, Mass. ATB Findings of Fact and Reports at 1996-290 (citing Cheney v. Inhabitants of Dover, 205 Mass. 501 (1910); Berkshire Gas, 361 Mass. at 873)).  
An Application for Abatement is deemed denied at the expiration of three months from the date the application was filed if the assessors take no action on the application, unless the applicant provides written consent.  G.L. c. 58A, § 6 and G.L. c. 59, §§ 64 and 65.  Once an application is deemed denied, the assessors "shall have no further authority to act" on the application other than to agree with the taxpayer on a final settlement.  Id.  "This board has consistently applied the rule that when the assessors fail to act within three months after the filing of an application, the period for appeal to the board begins to run on the expiration of the three months, and that any action taken on the application by the assessors after that date is a nullity."  Lenson v. Assessors of Brookline, Mass. ATB Findings of Fact and Reports, 1984-337, 341, aff'd, 395 Mass. 178 (1985). 
Pursuant to G.L. c. 59, § 63, the assessors are required to send written notice to a taxpayer applying for an abatement within ten days of the assessors' decision on an application or within ten days of the date the application is deemed denied by the assessors' inaction.  G.L. c. 59, § 65C provides a remedy to taxpayers when the assessors fail to comply with the requirements of § 63.  In such instances, § 65C allows an additional two months beyond the ordinary three-month period during which taxpayers may maintain appeal rights by filing a PLE with the Board.
	In the instant case, the statutory framework of G.L. c. 59, §§ 64-65C compelled the Board to rule that it did not have jurisdiction over the appellant's fiscal year 2011 appeal.  The deadlines to appeal to the Board -- three months from a deemed denial generally and an additional two months with a PLE -- are respectively set by G.L. c. 59, § 64 and § 65C.  Further, the Board has no authority to look to principles of equitable estoppel to extend jurisdiction beyond the scope allowed by statute.  See Stilson, 385 Mass. at 732.  As such, because the appellant failed to meet the statutory deadlines, the Board cannot exercise jurisdiction over her appeal.  On this basis, the Board decided the fiscal year 2011 appeal for the appellee.

II. Valuation
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  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).  
	The appellant has the burden of proving that the subject 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 [an] 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 taxpayer[] sustain[s] the burden of proving the contrary.'"  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
In appeals before the 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)). 
Here, the appellant argued that the assessors overvalued the subject property for fiscal year 2012.  However, the Board found and ruled that the evidence offered by the appellant was insufficient to meet her burden of proof.  In particular, the appellant presented insufficient evidence to support the claim that the subject property's proximity to the wind turbine had a quantifiable effect on its fair cash value.  
Pistorio v. Assessors of Boston, Mass. ATB Findings of Fact and Reports, 2010-206, serves as a useful contrast to the instant appeal.  Pistorio dealt with the opening of a dog daycare, grooming, and walking facility across the street from an apartment building.  Id. at 2010-210.  The owners of the apartment building appealed a property tax assessment to the Board on the grounds that the dog-care facility depressed their property's fair cash value.  Id.  In addition to documenting the nature of the intrusion of the dog care facility, which produced noise and dog droppings, the taxpayers presented evidence demonstrating that the market for their rental units decreased after the facility opened.  Id.  The owners prevailed in their claim for an abatement because this evidence provided the Board with an objective indicator that the presence of the dog care facility had decreased the fair cash value of the taxpayers' property.  See id. at 2010-215-16.  Unlike the taxpayers in Pistorio, the appellant here did not provide the Board with sufficient evidence, beyond her and her husband's personal experience at the subject property, to indicate that the wind turbine decreased the fair cash value of the subject property.  Accordingly, the Board found and ruled that the appellant neither "expos[ed] flaws or errors in the assessors' method of valuation," nor "introduc[ed] affirmative evidence of value which undermine[d] the assessors' valuation.'" General Electric Co., 393 Mass. at 600 (quoting Donlon, 389 Mass. at 855).  The Board therefore found and ruled that the appellant failed to meet her burden of proving that the subject property's fair cash value was lower than its assessed value for fiscal year 2012. 
On the basis of the foregoing, the Board decided these appeals for the appellee.
	
					APPELLATE TAX BOARD

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


A true copy,

Attest:			______		
	      Clerk of the Board

 The deadline for filing an appeal with the Board is generally three months from the date of deemed denial, pursuant to G.L. c. 59, § 64.  However, in 2011, September 11 fell on a Sunday.  When the last day of a filing period falls on a Sunday or a legal holiday the filing is still considered timely if it is made on the following business day.  See G.L. c. 4, § 9; Barrett v. Assessors of Needham, Mass. ATB Findings of Fact and Reports, 2004-614, 615, n.2.  Accordingly, the Board found that the filing deadline under G.L. c. 59, § 64 was Monday, September 12, 2011.

ATB 2013-821