Stanley U. Robinson III et al v. Board of Assessors of the Town of Wayland (February 10, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


STANLEY U. ROBINSON III &       v.	  	BOARD OF ASSESSORS OF
LOIS VOLTMER				   		THE TOWN OF WAYLAND

Docket Nos. F304847, F308071			Promulgated:
								February 10, 2012

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 Wayland ("assessors" or "appellee") to abate taxes assessed on certain property located in Wayland owned by and assessed to Stanley U. Robinson, III and Lois Voltmer ("appellants") under G.L. c. 59, §§ 11 and 38 for fiscal years 2009 and 2010 ("fiscal years at issue").
Commissioner Rose heard these appeals.  He was joined in the decisions for the appellee by Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern.
These findings of fact and report are promulgated at the request of the appellee pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.
	

Stanley U. Robinson, III, pro se, for the appellants.

	Ellen M. Brideau, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
Based on the evidence and testimony offered at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008 and January 1, 2009, the relevant dates of assessment, respectively, for fiscal years 2009 and 2010 (collectively "the tax years at issue"), the appellants were the assessed owners of a parcel of real estate located at 9 Wheelock Road in Wayland, identified on the assessors' Map 24 as Lot 68 (the "subject property").  At all times relevant to these appeals, the subject property was improved with a single-family, split-level residence, which contained approximately 1,104 square feet of living area.  The residence had a total of six rooms, including three bedrooms, as well as one full bathroom and one half bathroom.     
For fiscal year 2009, the assessors valued the subject property at $350,300 and assessed to the appellants a tax thereon, at the rate of $16.37 per $1,000, in the corresponding amount of $5,734.41, which the appellants timely paid without incurring interest.  On February 2, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors.  On July 13, 2009, pursuant to the appellants' written consent to extend the time beyond three months from the date their abatement application was filed, the assessors denied the appellants' abatement request.  On October 1, 2009, the appellants 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 the appeal for fiscal year 2009.
For fiscal year 2010, the assessors valued the subject property at $336,300 and assessed to the appellants a tax thereon, at the rate of $17.78 per $1,000, in the corresponding amount of $5,979.41, which the appellants paid without incurring interest.  On February 1, 2010, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors.  The assessors denied the appellants' abatement request on April 2, 2010.  On June 25, 2010, the appellants 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 the appeal for fiscal year 2010.
The appellants maintained that the subject property was overvalued for the fiscal years at issue, primarily because the assessors no longer considered topography as an influence factor in the valuation of the subject land.  The appellants also cited supposed defects in the assessment of the subject property's residence, namely, upgrades of the construction quality from a C- to a C, the condition from "Very Poor" to "Poor," and the fireplace condition from 0% useable to 43% useable in fiscal year 2009 and to 40% useable in fiscal year 2010.
The appellants first contended that, by upgrading the subject property's land-condition factor from 0.75 to 1.00, the subject assessment failed to take into account the poor condition of the subject land, which they pointed out was comprised of 25% wetlands.  The appellants submitted a copy of a map indicating that a portion of the subject property was located in flood Zone A3.  Moreover, they continued, because the majority of the land was below street level, the parcel had severe drainage issues.  The appellants cited side effects of poor drainage on the property, namely, that their garage frequently became flooded, the pavement and cement entry steps at the front and side doors had heaved, the chimney was leaning, and there were numerous plaster cracks which, they said, indicated the foundation's instability.  
The appellants also cited the future possibility of attempting a Title V septic system upgrade.  Based on stories they claimed to have heard from their neighbors, the appellants suspected that finding a suitable site for a septic system upgrade would be very difficult for them, given the issue with the subject property's wetlands and poor drainage.  However, the appellants did not plan or attempt this upgrade, nor did they hire any experts to investigate their suspected problems, and therefore, this issue remained purely hypothetical.   
The appellants admitted that the assessors had recently upgraded the land-condition factor of "numerous" neighboring parcels in Wayland, with some comparable properties upgraded partway and others upgraded fully to 1.00.  They submitted as evidence a chart listing other neighboring properties in Wayland that were assigned a land-condition factor of 0.75 in fiscal year 2008, together with their assessed land value, lot size, and, for those that had sold since 2003, the sale date and price.  According to the appellants' chart, three properties had their land-condition factor upgraded to 0.80, five were upgraded to 0.90, one was upgraded to 0.95, and 43 properties, including the subject, were fully upgraded to 1.00.  The appellants questioned why one purportedly comparable property, 85 Lakeshore Drive, was not upgraded from its 0.75 land-condition factor.  The appellants did not submit a property record card for this purportedly comparable property, nor did they submit any other evidence, including photographs, to demonstrate to the Board the supposedly comparable features of their comparable property.  
The appellants also submitted as evidence another chart listing what they calculated to be the assessment-to-sale ratios for single-family properties that sold during calendar year 2007 and that had a fiscal year 2008 land-condition factor of less than 1.00.  According to their calculations, the ratio for the properties ranged from 0.90 to 1.12 for fiscal year 2008 and from 0.92 to 1.00 for fiscal year 2009.    
The appellants next contended that the upgrade of the subject residence's construction-quality factor from C- to C was in error.  They cited numerous construction defects, including: alignment of the exterior siding; alignment of chimney flue pipes; plumbing of the washbowl drain in the half bathroom; deficient copper tubing in the water system; insufficient insulation; windows that were not airtight; hollow interior doors; and faulty exterior drainage.  The appellants submitted as evidence four photocopied pictures depicting a crack in a wall, defective exterior siding, and the defective exterior drainage.  The appellants claimed that the construction quality of the subject residence had not improved during the fiscal years at issue, and therefore, the upgrading of the construction grade was unwarranted.
The appellants' third contention was the upgrade of the condition of the subject residence from "Very Poor" to "Poor."  The appellants cite numerous defects with the condition of the subject residence, including: peeling paint; cracks in the plaster; crumbling chimney; heaving in the front- and side-entry steps; and flooding in the garage.  As with the construction-quality grade, the appellants contended that the condition of the subject residence had not improved during the fiscal years at issue, and therefore, the upgrade of the condition was unwarranted.
Attached to the appellants' abatement applications for both fiscal years, which were submitted into evidence, were questionnaires issued by the assessors requesting information about the subject property.  In response to the query as to whether there had been any "new or significant rehabilitation" on the subject property during the last five years, the appellants answered "yes" on both questionnaires; they indicated that bathroom and exterior wall repairs, at a total cost of about $3,000, had been completed in 2007, and that the electric SVC riser and weatherhead had been replaced, at a total cost of $297, in 2008.  The questionnaire for the fiscal year 2010 abatement application also indicated that repairs had been performed in 2009 on the subject's chimney, foundation wall, and gutters.
The appellants' fourth and final contention was the upgrade of the subject residence's fireplace condition from 0% useable to 43% useable in fiscal year 2009 and to 40% useable in fiscal year 2010.  The appellants maintained that the fireplace remained in the same non-useable condition at all relevant times.
The appellants submitted copies of the property record card for the subject property for each of fiscal years 2008, 2009, 2010 and 2011 to demonstrate the upgrade of the land-condition factor, construction grade, overall condition, and condition of the fireplace.  The property record card for fiscal year 2008 indicated that the subject property's assessed value for that year, prior to the upgrade of the various factors cited by the appellants, was $308,700.  The appellants calculated that the upgrade of the land-condition factor resulted in an increase in assessed value of about $67,000; the upgrade of the construction grade and overall condition of the residence resulted in an increase of about $5,000; and the upgrade of the fireplace condition resulted in an increase of about $1,300 for fiscal year 2009 and $1,200 for fiscal year 2010.  The appellants did not explain how they calculated their figures, and their figures did not equal the actual increases in the subject assessments:  the total assessed value of the subject property increased from its fiscal 2008 assessment by only $41,600 in fiscal year 2009 and by only $27,600 in fiscal year 2010. 
The appellants also offered a comparable-sales analysis.  They submitted a chart listing four purportedly comparable sales in what they called their "neighborhood" that had occurred between August 1, 2008 and December 18, 2008.  The chart listed for each purportedly comparable property: sale date; map and lot number; address; sale price; assessment values for fiscal years 2008, 2009 and 2010; and the ratio of assessment-to-sale-price for each of those fiscal years.  The chart did not offer supporting details delineating any similar or distinguishing features for the purportedly comparable properties, including but not limited to, number of rooms, number of bathrooms, square foot living area or precise location, nor did it offer any adjustments in sale price or assessed value for any differences between those properties and the subject property. 
The appellants' opinion of the subject property's fair market value was $270,000 for both fiscal years at issue.  Their opinion of value was thus lower than the assessment of $308,700 for fiscal year 2008, the year prior to the upgrades which they contended were erroneous.
For its case-in-chief, the assessors submitted jurisdictional documents and rested on their assessment. 
On the basis of the evidence presented, the Board found that the appellants' evidence which relied solely on the land-condition factors of their purportedly comparable properties did not provide any information as to the fair market value of the subject property as a whole.  Therefore, the Board found that these charts lacked persuasive value and thus did not rely upon them in making its decision.  The Board further found that the appellants' comparable-sales analysis lacked information as to any differences between the subject property and the purportedly comparable properties and also lacked any adjustments for these differences to produce meaningful evidence of fair cash value.  Therefore, the Board found the appellants' comparable-sales analysis lacked persuasive value and thus did not rely upon this evidence in making its decision.  The Board thus found that the appellants failed to meet their burden of proving a fair market value for the subject property that was less than the assessed value for the fiscal years at issue.  Accordingly, the Board issued decisions for the appellee.


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 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, real estate valuation experts and the Massachusetts courts rely upon three approaches to determine fair cash value of property: income capitalization, sales comparison, and cost reproduction.  Correia v. New Bedford Redevelopment, 375 Mass. 360, 362 (1978).  "The board is not required to adopt any particular method of valuation."  Pepsi-Cola Bottling Co. v. Assessors of Boston, 397 Mass. 447, 449 (1986).   
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 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, 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)). 
A taxpayer does not conclusively establish a right to abatement merely by showing that one component of the subject property is overvalued.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  "[T]he question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921).  See also Lareau v. Assessors of Norwell, Mass. ATB Findings of Fact and Reports 2010-879, 888. 
The appellants relied heavily upon the upgrade of the land-condition factor from 0.75 to 1.00 to support their claim that the assessed value of the subject property was its fair market value.  However, the relevant inquiry is whether the total assessment as a whole exceeds the total fair market value of the subject property.  The Board thus found that the appellants' charts, which simply compared land-condition factors and assessed values of their purportedly comparable properties, without any information concerning the overall features and conditions of the comparable properties, lacked any probative value for determining the fair market value of the subject property.  The Board thus did not rely on this evidence.
"[S]ales of property usually 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).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham  v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  When comparable sales are used, however, allowances must be made for various factors which would otherwise cause disparities in each comparable property's sale price.  See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082 (and the cases cited therein).  
In the instant appeals, the appellants presented a simple chart that listed the purportedly comparable properties' 2008 sale prices, their assessments for fiscal years 2008, 2009 and 2010, and the ratio between the sale price and the assessed value for each of the three fiscal years.  This schedule provided no information about distinguishing features between the subject property and their purportedly comparable properties including, but not limited to, location, lot size, gross living area, and number of rooms/bedrooms/bathrooms.  Further, the appellants made no attempt to make adjustments to the comparable sales and assessments, where adjustments would have been required, to account for differences with the subject property.  See New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 ("Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value.").  "Adjustments for differences in the elements of comparison are made to the price of each comparable property . . . .  The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."  Appraisal Institute, The Appraisal of Real Estate 322 (13th ed., 2008).  The Board found that, without the necessary comparison of features demonstrating the properties' comparability to the subject and adjustments to compensate for any differences that would affect fair market value, the appellants' comparable-sales and comparable-assessments analyses were fundamentally flawed and thus lacked probative value.


For the reasons stated above, the Board found and ruled that the appellants failed to meet their burden of proving assessed values lower than those assessed for the fiscal years at issue.  Accordingly, the Board issued a decision for the appellee in the instant appeals.

					THE APPELLATE TAX BOARD

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


A true copy,
Attest: _______________________________
       Clerk of the Board

 This amount was exclusive of a Community Preservation Act surcharge ("CPA") of $61.46.
 When the last day of a filing period falls on a Saturday, Sunday or legal holiday, the filing is still considered timely if it is made on the following business day.  G.L. c. 4, § 9.  Because February 1, 2009 was a Sunday, the abatement application was timely when filed on Monday, February 2, 2009.
 See G.L. c. 59, § 64.
 This amount was exclusive of a CPA surcharge of $63.02

ATB 2012-99