Paul A. LaPointe v. Board of Assessors of the Town of Danvers (November 3, 2011)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



PAUL A. LaPOINTE		        v.   	   BOARD OF ASSESSORS OF
								   THE TOWN OF DANVERS

Docket No. F307197				   	   Promulgated:
		 						   November 3, 2011


	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 Board of Assessors of the Town of Danvers ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to Paul A. LaPointe ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2010.
	Commissioner Rose ("Presiding Commissioner") heard this appeal under G.L. c. 58A, § 1A and 831 CMR 1.20 and issued a single-member decision for the appellant.
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.  A Corrected Decision in this appeal is promulgated herewith.

	Paul A. LaPointe, pro se, for the appellant.
	Marlene M. Locke, assessor, for the appellee.


FINDINGS OF FACT AND REPORT	
	On January 1, 2009, Paul A. LaPointe was the assessed owner of a condominium unit located at 27 Carriage Way in the Town of Danvers ("subject property").  The subject property is a one-and-one-half story, end-unit condominium with a total of seven rooms, including two bedrooms and also two full bathrooms, with a total finished living area of 2,583 square feet.  The exterior is clapboard with an asphalt-shingled, gable roof. The home is heated by electric heat and there is central air conditioning.  Additional features of the home include a fully-finished walk-out basement, a wood deck, and a detached one-car garage.  The property record card on file with the assessors graded the subject property's condition as "C+."  The appellant purchased the subject property on July 31, 2008 for $289,000.  The subject property is located within a 164-unit condominium complex known as Olde Salem Village.  
	For fiscal year 2010, the assessors valued the subject property at $349,500 and assessed taxes thereon, in the amount of $12.22 per thousand, in the total amount of $4,270.89.   In accordance with G.L. c. 59, § 57C, the appellant timely paid the tax due without incurring interest.  On January 8, 2010, in accordance with G.L. c. 59, § 59, the appellant filed an Application for Abatement with the assessors, which the assessors denied on March 19, 2010.  On June 8, 2010, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
	The appellant argued that the subject property was overvalued for fiscal year 2010 because the assessors failed to take into account the subject dwelling's overall condition.  Mr. LaPointe testified that the subject property, which had been occupied by the original owner since the subject property was built in 1982, required significant repairs and improvements.  Specifically, Mr. LaPointe testified that the kitchen cabinets and appliances, the carpeting, and the bathroom fixtures needed to be replaced.  Therefore, he argued, the purchase price of $289,000 reflected the anticipated costs associated with the necessary renovations and represented the subject property's fair market value since none of the renovations had been initiated as of the relevant assessment date.   
	In support of their assessment and in response to the appellant's claim of overvaluation, the assessors offered into evidence the testimony of Marlene Locke, assessor, and a comparable-sale analysis of three condominiums located in Olde Salem Village.  The purportedly comparable properties are located at 96 Village Post Road, 154 Village Post Road, and 28 Carriage Way.  The properties sold on July 21, 2008, September 17, 2008, and November 10, 2008, respectively, with sale prices of $342,500, $322,500, and $262,000, respectively.  In their analysis, the assessors made adjustments only for differences in finished living area to arrive at adjusted sale prices of $374,600, $357,000, and $311,600, respectively.    
	Ms. Locke testified that she had not been inside the purportedly comparable properties.  However, according to the property listing sheets, which were included in the assessors' sales-comparison analysis, 96 and 154 Village Post Road had undergone substantial renovations including new kitchen appliances, new cabinets, granite and Corian countertops, hardwood floors, Pella windows, built-in gas fireplaces, and gas heat conversion; 28 Carriage Way had newer appliances.  The assessors made no adjustments to account for these improvements. 
	Moreover, the assessors offered no evidence to suggest that the subject property's July 31, 2008 sale was not an arms'-length transaction.  
	Based on the evidence presented, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  In reaching his decision, the Presiding Commissioner found that at the time of sale, the subject property required substantial renovations which negatively impacted the subject property's fair cash value.  The Presiding Commissioner further found that none of these renovations had been initiated as of the relevant assessment date.  Therefore, the Presiding Commissioner found that the best evidence of the subject property's fair market value as of January 1, 2009, was the subject property's July 30, 2008 sale for $289,000.  Moreover, the Presiding Commissioner found that the assessors failed to adjust for obvious differences between the purportedly comparable properties and the subject property.  
	Based on all of the evidence, the Presiding Commissioner found that the subject property's fair cash value for fiscal year 2010 was $289,000.  Accordingly, the Presiding Commissioner found that the subject property was overvalued by $60,500 for the fiscal year at issue and granted an abatement of $739.31.


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).
	The appellant has the burden of proving that the 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[] . . . prove[s] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).  
	Actual sales of the subject property itself are "̒very strong evidence of fair market value, for they represent what a buyer has been willing to pay to a seller for [the property under appeal].'"  New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981) (quoting First Nat'l Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1970)); see also Kane v. Assessors of Topsfield, Mass. ATB Findings of Fact and Reports 2000-409, 411 (finding that a sale of the subject property three months before the relevant assessment date was the best evidence of the subject's fair cash value absent any evidence of compulsion).
	Based on the evidence presented, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued for fiscal year 2010.  The Presiding Commissioner found that the subject property's July 31, 2008 sale was an arm's-length transaction between a willing buyer and seller and that the sale price represented the subject property's fair cash value.  With respect to the assessors' purportedly comparable properties, the Presiding Commissioner found that the assessors failed to account for differences that existed between the purportedly comparable properties and the subject property.
	Accordingly, the Presiding Commissioner found and ruled that the fair cash value of the subject property for the fiscal year at issue was $289,000. Accordingly, the Presiding Commissioner found that the subject property was overvalued by $60,500 for the fiscal year at issue and granted an abatement of $739.31.

		     APPELLATE TAX BOARD

				  	By: _________________________________
					     James D. Rose, Commissioner


A true copy,


Attest: _____________________________
             Clerk of the Board

ATB 2011-954