William S. Ricci v. Board of Assessors of the Town of Dennis (May 7, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



WILLIAM S. RICCI  	        	v.  		BOARD OF ASSESSORS OF                 THE TOWN OF DENNIS  THE TOWN OF DENNIS

Docket No. F294079					Promulgated:
  								May 7, 2009

	This is an appeal initially filed under the informal procedure pursuant to G.L. c. 58A, § 7A and c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on real estate located in the Town of Dennis owned by and assessed to William S. Ricci under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
	Commissioner Rose heard the appeal and was joined in the decision for the appellee by Chairman Hammond and Commissioners Scharaffa, Egan, and 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. 

	William S. Ricci, pro se, for the appellant.
	Thomas McEnaney, Esq., for the appellee.     


FINDINGS OF FACT AND REPORT

	On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.   
	On January 1, 2007, William S. Ricci ("appellant") was the assessed owner of a 0.50 acre parcel of real estate located at 70 Pilgrim Road in the Town of Dennis ("subject property").  The parcel is improved with a Cape-style, 2,666 square-foot home constructed in 2003.  The home, which is in good condition, features deeded beach rights offering access to the waters of Cape Cod Bay via a right-of-way near the waterside terminus of Pilgrim Road.  The home contains eight rooms, including four bedrooms, three full bathrooms, an attached two-car garage, a deck, and central air conditioning. For fiscal year 2008, the Board of Assessors of Dennis ("assessors") valued the subject property at $917,400 and assessed a tax thereon at a rate of $4.35 per $1,000 in the total amount of $4,110.41.   
In accordance with G.L. c. 59, § 57, the appellant timely paid the tax due without incurring interest. On October 24, 2007, in accordance with G.L. c. 59, § 59, the appellant filed an Application for Abatement with the assessors, which the assessors denied on December 10, 2007. Subsequently, on March 3, 2008, the appellant seasonably filed a petition with the Board.  Based upon these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.  
	The appellant argued that the subject property was overvalued for fiscal year 2008, citing several factors affecting its value that he believed were not sufficiently accounted for by the assessors. In particular, the appellant claimed that the parcel is located at the intersection of two busy side streets, and the nearest beaches are located approximately one mile away.  The appellant further argued that the assessors made an error in approximating the value per square foot of the dwelling.    
The appellant relied upon his testimony and photographs in attempting to demonstrate that the subject property is located at the intersection of two busy streets.  The appellant's pictures illustrate, however, that Frank Tobey Road, one of the streets bordering the subject property, does not exhibit significant levels of traffic.  In fact, the appellant acknowledged that it is a dirt road that is not maintained.  Further, aside from the appellant's bare assertions, the evidence presented did not indicate that Pilgrim Road is a busy street.  Consequently, the Board found that the appellant did not demonstrate that the subject property was located at a busy intersection, and that he provided virtually no evidence to support the conclusion that traffic flow had a negative effect on the value of the subject property.
To establish that the subject property is located approximately one mile from the nearest beach, the appellant submitted maps of the area including a map of the beaches of Dennis.  Contrary to his assertions, the appellant's exhibits place the subject property only slightly more than 1,200 feet from the nearest beach. Moreover, the subject property includes a deeded easement for access to the beach at the bay-side terminus of the road adjoining Pilgrim Road, a fact the appellant did not disclose prior to inquiry by the assessors at the hearing of the appeal. Neither did the appellant account for the beach rights' positive effect on the value of the subject property. 
The appellant also presented certain assessment and sales data relating to properties in the vicinity of the subject property to support his assertion that the subject property was overvalued. Specifically, the appellant cited more than thirty-five properties on Pilgrim Road for comparison of the properties' assessed values with the subject property's assessed value, yet presented only the address and assessed value for virtually all of the properties. This lack of detail precluded a finding of comparability with the subject property or necessary adjustment for existing differences between the purportedly comparable properties and the subject property. 
The appellant presented sales data relating to nine properties, which sold between December of 2006 and November of 2007, for prices ranging from $700,000 to $3,395,000. The appellant drew only generalized comparisons between these properties and the subject property, without establishing comparability with the subject property. Indeed, certain of the properties, including three whose sale prices exceeded two million dollars, were clearly not comparable to the subject property. Neither did the appellant account for existing differences between the properties and the subject property or the time differential between their sale dates and January 1, 2007, the relevant assessment date. Thus, the Board found that neither the assessment nor the sales data presented by the appellant was sufficient to establish the fair cash value of the subject property. 
The appellant also contended that the subject property's fiscal year 2008 valuation was excessive because the assessors, having corrected an error relating to the amount of finished living space on the subject property, failed to reduce the dwelling's value proportionately, thereby inappropriately increasing the building's per-square-foot assessed value. In support of his contention that this value was excessive, the appellant cited eighteen properties in Dennis whose structures had been built since 2000, detailing the value per square foot of each dwelling and its quality rating assigned by the assessors.  The appellant noted that the per-square-foot value of the subject property's dwelling exceeded the values associated with the majority of the cited properties. The appellant failed, however, to account for the structures' other relevant attributes. Moreover, the appellant's presentation isolated the building component of each property's assessed value without incorporating factors relating to the parcels upon which the buildings were situated. Consequently, the Board found that the appellant's arguments relating to the value per square foot of the subject property's dwelling were not compelling.
In support of the assessment, the assessors submitted an analysis of three purportedly comparable properties located within a mile of the subject property. The properties included 17 Seaside Avenue ("Comparable 1"), 129 Corporation Road ("Comparable 2"), and 11 Bleak House Road ("Comparable 3").      
The assessors noted that Comparable 1, which was closer to the water than the subject property, had a better location than the subject property, but it did not have beach rights. Though it was built nearly eleven years earlier than the subject property and had less gross living area, Comparable 1 had a higher quality of construction.  
Comparable 2 lacked beach rights and was located on a 0.78 acre lot.  While it was in average condition and was built nearly 150 years earlier than the subject property, Comparable 2 was soundly constructed.  Overall, it had fewer features than the subject property.    
Comparable 3, like the subject property, had deeded beach rights.  The properties also had similar parcel sizes, and the homes had similar features, but Comparable 3 had a superior location. Comparable 3's building was in average condition compared to the subject property's good condition, and was built in 1970.    
The assessors' comparable-sales analysis included adjustments for factors including location, beach rights, quality of construction, condition, and living area to account for differences between the purportedly comparable properties and the subject property. Having incorporated these adjustments, the assessors arrived at an indicated value for the subject property of $950,000 on the relevant assessment date. The Board found that the assessors' analysis was persuasive.  
In sum, the Board found that the appellant's claim of overvaluation was not sufficiently substantiated. Further, the probative value of the appellant's testimony was substantially diminished by his failure to disclose or account for the subject property's deeded beach rights, which contributed significantly to the property's value. In contrast, the assessors presented a comparable-sales analysis that the Board found supported the subject property's assessed value. Thus, the Board found and ruled that the appellant did not meet his burden of proving that the subject property was overvalued for fiscal year 2008 and decided this appeal 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 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 had 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 [B]oard 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)).  
Sales of comparable properties, appropriately adjusted to account for differences with the subject property, provide strong indicators of fair cash value.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982). "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value." The Appraisal Institute, The Appraisal of Real Estate 430 (12th ed., 2001).   
"At any hearing relative to the assessed fair cash valuation … of property, evidence as to the fair cash valuation … at which assessors have assessed other property of a comparable nature … shall be admissible." G.L. c. 58A, § 12B. "The admissibility under G.L. c. 58A, § 12B, of evidence of assessments imposed on other property claimed to be comparable in nature to the subject property is largely a matter within the discretion of the [B]oard." Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 703 (1972). Other properties, the assessed values of which are relied upon, must be comparable to the subject property to be probative of fair cash value. See id. "Moreover, reliable 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, Mass. App. Ct. No. 07-P-1024, Memorandum and Order under Rule 1:28 (November 28, 2008).
     In the present appeal, the Board found that the appellant failed to sustain his burden of demonstrating that the subject property had a lower value than its assessed value. To support his claim of overvaluation, the appellant provided assessed values relating to numerous properties, but did not establish comparability between these properties and the subject property or make adjustment for existing differences. For virtually all of more than thirty-five properties whose assessed values the appellant submitted for consideration, the appellant provided only the address and assessed value. The Board, in its discretion, admitted this information into evidence, but found that the data were not sufficient to establish comparability with the subject property, and thus were not probative of its fair cash value. 
	The appellant's sales data were also lacking.  Several of the cited properties were clearly not comparable to the subject property, and the appellant made only generalized comparisons between these properties and the subject property, failing to establish comparability with the subject property.  Similarly, the appellant's argument that the assessors failed to appropriately adjust the per-square-foot value of the dwelling on the subject property lacked sufficient evidentiary support. Having noted that the per-square-foot value of the subject property's dwelling exceeded the values associated with the majority of eighteen properties of varying quality ratings, the appellant failed to account for the structures' other relevant features and considered only the building component of each property's assessed value without incorporating factors relating to the parcels upon which the buildings were situated. 
	The Board also found that the probative value of the appellant's testimony was diminished by his failure to disclose or account for the subject property's deeded beach rights, an attribute that contributed significantly to the subject property's fair cash value. For their part, the assessors presented a comparable-sales analysis that included adjustments for various factors, and which the Board found supported the contested assessment.  
	"The [B]oard [is] not required to believe the testimony of any particular witness but [may] accept such portions of the evidence as appear to have the more convincing weight." Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  Having considered the most credible and probative evidence presented in this appeal, the Board found and ruled that the appellant did not meet his burden of proving that the subject property was overvalued for fiscal year 2008.   Accordingly, the Board issued a decision for the appellee.
					   APPELLATE TAX BOARD

			  By: __________________________________ 
                    	  Thomas W. Hammond, Jr., Chairman 
A true copy, 

Attest: ____________________________
		 Clerk of the Board

  Within thirty days of service of the Petition Under Informal Procedure, the assessors elected to transfer the proceedings to the formal procedure.  See G.L. c. 58A, § 7A. 
  This sum includes a 3% charge levied pursuant to the Community Preservation Act.  

ATB 2009-542