Michael Franco v. Board of Assessors of the City of Holyoke (July 15, 2008)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

MICHAEL FRANCO			   v.   	  BOARD OF ASSSESSORS OF
							  THE CITY OF HOLYOKE


Docket No. F293425				  Promulgated:
							  July 15, 2008


	This is an appeal 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 certain real estate in the City of Holyoke assessed to the appellant under G.L. c. 59, §§ 11 and 38 for fiscal year 2007.
	Commissioner Mulhern ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1A.
	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.

	Michael Franco, pro se, for the appellant.
	Anthony Dulude, assessor, 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 Presiding Commissioner made the following findings of fact.
	On January 1, 2006, Thomas Franco was the assessed owner of a 22,686-square-foot parcel of real estate located at 7 Primrose Lane  in the City of Holyoke ("subject property").  Michael Franco ("appellant") was the administrator of the estate of Thomas Franco at the time of the filing and hearing of this appeal. The parcel is improved with a single-family, ranch-style home built in 1970 with 1,498 square feet of finished living area.
	For fiscal year 2007, the Board of Assessors of Holyoke ("assessors") valued the subject property at $199,900, and assessed a tax thereon, at a rate of $12.95 per thousand, for a total amount of $2,588.71. The Treasurer/Collector mailed the actual tax bill on April 16, 2007.  Appellant timely filed an Application for Abatement with the assessors on May 16, 2007.  On July 12, 2007, the assessors denied the Application for Abatement and sent timely notice of this denial on the same day.  On July 14, 2007, appellant seasonably filed a Petition Under the Formal Procedure with the Appellate Tax Board ("Board").  Based on these facts, the Presiding Commissioner found that the Board had jurisdiction to hear and decide this appeal.
	The subject property features five rooms, including three bedrooms, as well as one full bath and an additional half-bath. The subject property also has central air conditioning.  Appellant submitted evidence of the sale of what he considered to be a comparable neighboring property at 5 Primrose Lane, which sold on February 23, 2007 for $182,900.  This property consists of a 25,329-square-foot parcel of land and is improved with a single-family, ranch-style home with 1,144 square feet of finished living area.  Unlike the subject property, this property has no additional half-bath and no central air conditioning. It also has foundational problems and has essentially no useable backyard due to its location on a steep slope.  Based on this sale, appellant contended that his property was overvalued by $15,000.
	Anthony Dulude, the assessor for Holyoke, testified in support of the assessment.  Mr. Dulude relied on four recent sales of what he considered to be comparable single-family homes in the area.  The properties are located at 30 Breton Lane, 14 Sterling Road, 20 Mason Road, and 14 Upland Road. The properties sold for $222,500 in June 2005, $195,000 in September 2005, $199,000 in July 2005, and $192,900 in March 2005, respectively. All these properties were single-family, ranch-style homes with living areas between 934 and 1,623 square feet on parcels which ranged in size from 9,900 to 13,903 square feet.  Based on these comparable sales, Mr. Dulude opined that the assessment on the subject property was reasonable.
	On the basis of all the evidence presented, the Presiding Commissioner found that the sale of the property located at 5 Primrose Lane submitted for comparison by appellant did not provide persuasive evidence of overvaluation in this appeal. Appellant failed to make adjustments to the sale price of 5 Primrose Lane for its smaller living area and its lack of an additional half-bath and central air conditioning.  Moreover, appellant failed to adjust for this purportedly comparable property's foundation issues and location on a steep slope, leaving it with essentially no useable backyard. In addition, as Mr. Dulude noted, the valuation date for the year in question, fiscal year 2007, was January 1, 2006.  The sale a 5 Primrose Lane occurred in February of 2007, which is 13 months after the relevant assessment date. Without evidence of the market trends in the period between the relevant valuation and sale dates and time adjustment, if necessary, the sale offered little probative evidence of value.
	In contrast, the comparable sales submitted by the assessors ranged from a sale price of $192,900 to $222,500, bracketing the assessment of the subject property at $199,900.  Further, the properties were of a size and style similar to the subject property and all were sold in 2005, offering credible, persuasive comparable sales evidence for the fiscal year in question.  On this basis the Presiding Commissioner found and ruled that appellant failed to meet his burden of proof and decided this appeal for the appellee.
OPINION
	Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January of the year preceding the fiscal year at issue.  G.L. c. 59 §§ 11 and 38.  The definition of fair cash value is the price upon which a willing buyer and a willing seller would agree if both are fully informed and neither is under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The burden of proof is on the taxpayer to make out the right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  Id.  The taxpayer may sustain this burden by introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).
	Sales of other comparable properties provide strong indicators of fair cash value. Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982).  When using comparable sales evidence, however, allowances must be made for various factors which would otherwise cause disparities in the comparable prices. See Pembroke Industrial Park Co., Inc. v. Assessors of the Town of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "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."  Appraisal Institute, The Appraisal of Real Estate (12th ed. 2001) 430.
In the present appeal, appellant provided evidence of one sale at 5 Primrose Lane, which has less square footage than the subject property, as well as no half bath and no central air conditioning.  It also has issues with its foundation and is built on a steep slope.  Even if the size and quality of the property were more similar to the subject property, the property at 5 Primrose Lane was sold 13 months after the valuation date for fiscal year 2007, and appellant offered no evidence of the intervening market conditions and made no adjustment for time.  Furthermore, appellant offered evidence of only one sale, which is not usually a sufficient sample size for market comparison.  "[A] single sale does not necessarily reflect market value."  The Appraisal of Real Estate at 438.  Therefore, due to the lack of any other evidence, the Presiding Commissioner found that appellant did not meet his burden of proof.
	Moreover, the assessors submitted evidence of four other comparable sales, which all sold for approximately $190,000 or more.  While some of these properties were smaller than the subject property and a few did not have the same additional amenities such as a half-bath or central air conditioning, they still sold for approximately the same amount as the assessed value of the subject property.  This evidence supports a finding that the assessed value of the subject property did not exceed its fair cash value as of the relevant valuation date.
	Based on the evidence presented, the Presiding Commissioner found and ruled that appellant failed to meet his burden of proving overvaluation of the subject property for fiscal year 2007.  The Presiding Commissioner therefore decided this appeal for the appellee. 

						APPELLATE TAX BOARD


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




A true copy,


Attest: _______________________________
	        Clerk of the Board

ATB 2008-885