Joan L. Schaub v. Board of Assessors of the City of Boston (June 26, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOAN L. SCHAUB	        v.       BOARD OF ASSESSORS OF 
				  THE CITY OF BOSTON

Docket Nos. F311277 			  Promulgated:  
		  F317162 			  June 26, 2014
			   				
 					
	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 appellee, the Board of Assessors of the City of Boston ("assessors"), to abate taxes on certain real estate in the City of Boston, owned by and assessed to the appellant, Joan L. Schaub, under G.L. c. 59, §§ 11 and 38, for fiscal years 2011 and 2012.
	Commissioner Rose heard these appeals. He was joined in the decisions for the appellee by Chairman Hammond and Commissioners Scharaffa and Chmielinski, as well as former Commissioner Mulhern.
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.  

	Joan L. Schaub, pro se, for the appellant.
Laura Caltenco, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of 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 a parcel of real estate located at 35 Appleton Street in the South End neighborhood of Boston, which was improved with a single-family brick row house containing approximately 2,050 square feet of living area ("subject property"). The dwelling had a total of seven rooms, including two bedrooms, two full bathrooms and one half bathroom.   
For fiscal year 2011, the assessors valued the subject property at $766,100 and assessed to the appellant a tax thereon in the amount of $8,203.57, which the appellant timely paid without incurring interest. On February 1, 2011, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors.  The assessors denied the application on March 8, 2011, and the appellant seasonably filed an appeal with the Board on May 9, 2011.  
For fiscal year 2012, the assessors valued the subject property at $842,200 and assessed to the appellant a tax thereon in the amount of $9,338.01, which the appellant timely paid without incurring interest. On February 1, 2012, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors, which was denied on March 26, 2012.  On June 26, 2012, the appellant seasonably filed an appeal with the Board.  On the basis of the foregoing facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
The subject property has been the topic of more than one appeal to the Board. More specifically, the appellant first contested the subject property's assessment for fiscal years 2007 and 2008. See Joan L. Schaub v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2009-763 ("Schaub I"). In Schaub I, the Board agreed with the appellant's contention that the assessors had not accounted for the subject property's poor condition in arriving at the property's assessed value and ruled that the subject property had been overvalued for fiscal years 2007 and 2008. Id. at 2009-770.
The appellant next appealed the subject property's assessment for fiscal years 2009 and 2010. See Joan L. Schaub v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2011-629 ("Schaub II"). In Schaub II, the appellant again asserted that the assessors had not accounted for the subject property's poor condition and had overvalued the subject property. The Board disagreed and cited, with specificity, the subject property's "many deficiencies," which the assessors had taken into account in deriving the property's assessed value for fiscal years 2009 and 2010. Id. at 2011-636. Thus, the Board ruled that the subject property had not been overvalued for either fiscal year 2009 or fiscal year 2010.
As indicated above, fiscal years 2011 and 2012 are at issue in the present appeals. The appellant's opinion of value was approximately $735,500 for fiscal year 2011 and $742,850 for fiscal year 2012. Once again, the appellant's overvaluation argument focused primarily on the assessors' failure to consider the subject property's poor condition in determining its assessed value.  
In support of her argument, the appellant submitted a Memorandum and Affidavit in Support of Abatement of Valuation, which was accompanied by several photographs of the subject property that reflected the poor condition of its dwelling. Also attached were a copy of a 2008 report from Granite State Brickface Stucco and Plastering Co. describing the extent of brick spalling on the dwelling's surface walls and a copy of a "Home Consultation" report prepared for the appellant by Highland Home Inspections, Inc. during March of 2013, which described the dwelling's various deficiencies. The Board allowed into evidence only the undisputed factual descriptions contained in the reports because they were unsubstantiated hearsay and the authors were not present at the hearing and available for cross-examination by the assessors or for questioning by the Board. Regardless, the reports' descriptions as well as the appellant's photographs were consistent with the assessors' characterization of the subject property's condition as "poor" for the fiscal years at issue, a classification that figured prominently in the assessors' valuation of the subject property. Consequently, the Board found that the core of the appellant's argument, that the assessors had failed to consider the subject property's poor condition in determining its fair cash value, was without merit.  
The appellant also stated that the subject property's assessed value, without justification, rose more rapidly from fiscal year 2011 to fiscal year 2012 than five other South End properties and cited three properties that she stated had sold during 2011 and 2012 for less than their assessed values. The appellant, however, did not submit property record cards for any of these properties or otherwise substantiate that the properties were comparable to the subject property and what adjustments would have been necessary to account for differences between the properties and the subject property. The Board, therefore, found that the appellant's submissions relating to the properties were of virtually no probative value. 
For their part, the assessors offered a comparable-sales analysis of five nearby South End properties, two of which were on the same street as the subject property and each of which was similar to the subject property in construction and living area. The sales took place during 2009 and 2010 and the assessors made adjustments to the properties' sale prices to account for differences between the properties and the subject property in lot size, kitchen and baths (age, quality and condition), living area, and overall condition. Notably, the condition adjustments, which accounted for the poor condition of the subject property, comprised the lion's share of the adjustments. Based on their analysis, the assessors derived indicated values for the subject property that exceeded its assessed values for the fiscal years at issue. The Board found that the assessors' comparable-sales analysis supported the contested assessments. 
On the basis of all of the evidence, the Board found and ruled that the appellant failed to demonstrate that the assessed value of the subject property exceeded its fair cash value for either of the fiscal years at issue. In particular, the appellant's central argument that the assessors failed to consider the condition of the subject property when valuing it was plainly misplaced. Further, her statements regarding the assessed values and sale of certain South End properties lacked probative value. Finally, the assessors presented a comparable-sales analysis that supported the contested assessments. 
On the basis of the foregoing, the Board issued decisions for the appellee in these appeals.

			  	            OPINION
	
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).	 
	The appellant has the burden of proving that the property has a lower value than its assessed value. See Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974). "The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax." Id. (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). 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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).
	In the present appeals, the appellant failed to present persuasive evidence of overvaluation. To the contrary, the primary focus of the appellant's case, that the assessors failed to consider the poor condition of the subject property in arriving at the property's assessed value, was without merit. Indeed, the record reflects, as it did in Schaub II, that the assessors acknowledged and accounted for the subject property's poor condition.   
	The fair cash value of property may be determined by recent sales of comparable properties in the market, which generally "furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971). Properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property, including similar age, location, size and date of sale.  Lattuca v. Robsham, 442 Mass. 205, 216 (2004). When comparable sales are considered, adjustments must be made for various differences among the properties which would otherwise cause disparities in the properties' sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082. 
Evidence of the assessed values of comparable properties may also provide probative evidence of fair cash value. G.L. c. 58A, § 12B. "The introduction of such evidence may provide adequate support for either the granting or denial of an abatement." John Alden Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07 (citing Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308). However, "[r]eliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value."  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403, aff'd, 73 Mass. App. Ct. 1107 (2008).
The appellant submitted figures regarding both property assessments and sales in support of her assertion that the subject property had been overvalued. Her submissions, however, were unsubstantiated and lacked crucial data that may have established that the properties were comparable to the subject property or allowed for adjustments to account for differences between the properties and the subject property. Thus, the Board found that the appellant's submissions lacked probative value.  
Unlike the appellant, the assessors offered a comparable-sales analysis of five properties that shared fundamental similarities with the subject property including location, construction and living area. Further, the assessors made various adjustments to the properties' sale prices and derived indicated values for the subject property that exceeded its assessed values for the fiscal years at issue. The Board therefore found that the assessors' comparable-sales analysis supported the subject property's assessed values. 
On the basis of the foregoing, the Board found and ruled that the appellant failed to establish that the assessed value of the subject property exceeded its fair cash value for either of the fiscal years at issue and that the assessors' evidence supported the contested assessments.  Accordingly, the Board issued decisions for the appellee in these appeals. 
     
                          THE APPELLATE TAX BOARD



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

A true copy,

Attest: __________________________
		Clerk of the Board

  The appellant's petition was mailed in an envelope postmarked June 26, 2012, which was received by the Board on June 28, 2012.  Where, as here, the Board receives a petition after the three-month due date, the date of postmark is deemed to be the date of filing. See G.L. c. 58A, § 7; G.L. c. 59, §§ 64 & 65. Accordingly, the Board found and ruled that the filing date of the appellant's petition for fiscal year 2012 was deemed to be June 26, 2012, and the appeal was timely. 

 The Board calculated these sums based on the appellant's assertion that the subject property's value increased one percent per year from its fiscal year 2006 assessed value of $699,800.

ATB 2014-476