Barkev & Seta Kaligan v. Board of Assessors of the Town of Lexington (August 6, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




BARKEV H. & SETA KALIGIAN	v.	BOARD OF ASSESSORS OF 
THE TOWN OF LEXINGTON

Docket No. F284151				Promulgated:
							August 6, 2007



	This is an appeal 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 to abate a tax on real estate assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2006.
	Commissioner Egan heard the appeal and was joined in the decision for the appellee by Chairman Hammond and Commissioners Scharaffa, Rose and Mulhern.  
	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.  

	Barkev H. Kaligian, pro se, for the appellants.
	Robert Lent, assistant assessor, for the appellee.


FINDINGS OF FACT AND REPORT
	On the basis of the testimony and exhibits submitted at the hearing of this appeal, the Appellate Tax Board ("Board') made the following findings of fact.
On January 1, 2005, Barkev H. & Seta Kaligian, the appellants, were the assessed owners of a parcel of real estate, improved with a single-family home, located at 30 Dewey Road in the Town of Lexington ("subject property").  For fiscal year 2006, the Board of Assessors of Lexington ("assessors") valued the subject property at $532,000, and assessed a tax, at the rate of $11.11 per thousand, in the amount of $5,910.52.  In accordance with G.L. c. 59, § 57C, the appellants timely paid the tax without incurring interest.
	On January 25, 2006, in accordance with G.L. c. 59,   § 59, the appellants timely filed an application for abatement with the assessors.  On March 14, 2006, in accordance with G.L. c. 59, § 63, the assessors notified the appellants that their application had been denied on March 10, 2006.  On June 1, 2006, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Board found and ruled that it had jurisdiction over this appeal.  
The subject property is a two-story, single-family residence situated on a 30,746 square foot parcel of real estate.  The home has nine rooms, including four bedrooms, as well as two full bathrooms.  There is an attached one-car garage accessible through a screened porch, an unfinished basement, and a wooden deck at the rear of the home. The home is heated by oil and there is no air conditioning.
The appellants maintained that the subject property was overvalued for fiscal year 2006.  The appellants argued that the subject property was overvalued primarily due to the existence of two sets of high-voltage power lines that cross the property pursuant to a right of way granted to NStar.  The appellants also maintained that the driveway is in poor condition and that the garage floor is in very poor condition with many large settlement cracks.  The appellants offered no further evidence.
In support of their assessment, the assessors offered into evidence four sales of purportedly comparable properties located in Lexington.  The sales all occurred within the ten-month period prior to the relevant assessment date with sales prices that ranged from $520,000 to $668,000.   Of these five sales, the assessors relied most heavily on the sale of the adjacent property located at 32 Dewey Street.  This property has a lot size similar to that of the subject property, and power lines, but has a slightly smaller living area, 1,955 square feet, compared to the subject property's living area of 2,016 square feet.  The property at 32 Dewey Street also has a two-car garage and is in superior condition.  This property sold on February 9, 2004 for $610,000.  
The assessors also testified that the assessed value of the subject property, and also the property at 32 Dewey Street, includes an adjustment for the high-voltage power lines.  The subject property also receives an adjustment for the settlement in the foundation. 
	Based on the evidence presented, the Board found that the taxpayers did not meet their burden of proving that the subject property was overvalued for fiscal year 2006.  The appellants offered no evidence to demonstrate how, and to what extent, the deficiencies cited regarding their property negatively impacted the fair market value of the subject property as of the relevant assessment date.  The Board further found that the appellants failed to offer any evidence of either comparable sales or comparable assessments proving that the assessed value of the subject property as of January 1, 2005, exceeded its fair market value.  Moreover, the Board found that the assessors' comparable sales analysis supported the subject property's fiscal year 2006 assessment.
	Accordingly, the Board issued a decision for the appellee.

OPINION
"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, §§ 2A and 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 appellants have the burden of proving that the subject property has a lower value than that assessed. "'The burden of proof is upon the petitioner[s] to make out [their] 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 [B]oard is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245). 
In appeals before this Board, taxpayers "'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. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
	In the present appeal, the appellants argued that the subject property was overvalued due to the presence of high voltage power lines which traversed the lot and foundation cracks attributable to settlement.  They did not, however, offer any evidence to demonstrate how, and to what extent, these factors negatively impacted the fair market value of the subject property.  Moreover, the appellants offered no evidence of comparable sales or assessments to support their claim of overvaluation for the subject property.

Accordingly, the Board found that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2006 and, therefore, issued a decision for the appellee.

    APPELLATE TAX BOARD


					By: _______________________________
					    Thomas W. Hammond, Chairman




A true copy,


Attest:______________________________
	   Assistant Clerk of the Board

ATB 2007-783