Edward Blanchard, Trustee of Asnacomet Pond Realty Trust v. Board of Assessors of the Town of Hubbardston (May 6, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



EDWARD  BLANCHARD, TRUSTEE		BOARD OF ASSESSORS OF
ASNACOMET POND REALTY TRUST	v.	THE TOWN OF HUBBARDSTON 

Docket No. F294101				Promulgated:
							May 6, 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 Hubbardston ("assessors" or "appellee") to abate taxes assessed on certain property located in the Town of Hubbardston, owned by and assessed to Edward Blanchard, Trustee of the Asnacomet Pond Realty Trust ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2007.
	Commissioner Mulhern ("Presiding Commissioner") heard the appeal and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellant.
	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.

	Edward Blanchard, Trustee, pro se, for the appellant.

	Ellen M. Hutchinson, Esq. for the appellee.
 FINDINGS OF FACT AND REPORT
Based on the evidence and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2006, the appellant was the assessed owner of a 1.65-acre parcel of unimproved real estate located at 19 East Comet Pond Access Road in Hubbardston identified on the assessors' Map 11A as Parcel 19 ("subject property").  Although the subject property does not meet the minimum zoning requirements of 2 acres and 200 feet of road frontage, it is nonetheless classified as a buildable lot because it is a grandfathered lot.  For fiscal year 2007, the assessors valued the subject property at $195,200 and assessed taxes thereon, at the rate of $9.69 per $1,000, in the amount of $1,905.33.  On May 24, 2007, the Collector of Taxes for Hubbardston mailed out the actual fiscal year 2007 tax bills.  In accordance with G.L. c. 59, § 57, the appellant timely paid the taxes due without incurring interest.  
The appellant timely filed an abatement application with the assessors on June 21, 2007.  Pursuant to G.L. c. 59, § 64, the assessors had until September 21, 2007 to act on the appellant's abatement application.  On September 10, 2007, the appellant filed a written consent which granted the assessors "an additional three months beyond the three months provided by application for abatement."  As a result, the assessors had until December 21, 2007 to act on the appellant's abatement application.  On December 10, 2007, the assessors sent notice to the appellant that his abatement application was "deemed denied."  The Presiding Commissioner found and ruled that the assessors' December 10, 2007 notice was defective and that the appellant's abatement application, with a valid consent to extend, was deemed denied on December 21, 2007.  Therefore, in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed his appeal with the Appellate Tax Board ("Board") on March 21, 2008.  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 increase in the subject property's assessment from $107,000 for fiscal year 2006 to $195,200 for fiscal year 2007 was unwarranted and therefore the subject property was overvalued for fiscal year 2007.  The appellant presented his case primarily through his own testimony and that of Maria Hopkins, whom the Board qualified as a real estate valuation expert.  The appellant also offered into evidence numerous exhibits, including a land map of Asnacomet Pond and the surrounding area, the subject property's deed, the subject property's property record cards for the fiscal year at issue and also the preceding fiscal year, a written explanation of Hubbardston's revaluation process, letters and emails from both the assessors and the Hubbardston Building Commissioner, and also an appraisal report prepared by Ms. Hopkins.
The subject property is located to the rear of several residential waterfront properties situated on that portion of Asnacomet Pond more specifically identified as East Comet Pond, ("the pond"), which is reported to be the best of the several ponds in Hubbardston.  The 127-acre pond, which is spring fed and feeds into the Quabbin Reservoir, is protected by the Watershed Protection Act, G.L. c. 92, § 107A.  Pursuant to § 107A, development of the area within 400 feet of the shore line of the pond is restricted.  The subject parcel is generally rectangular in shape with the exception of a heavily wooded, ten-foot wide strip of land that runs between two abutting parcels, identified on the assessors' map as parcel 24 and parcel 25, and provides access to the pond.  The parcel is encumbered by a twenty-foot wide easement, known as East Comet Pond Access Road, which travels the length of the parcel in a north-southeasterly direction and cuts the parcel's usable width from 110 feet to 90 feet.  Both parties agreed that the subject property is a buildable lot.  
East Comet Pond Access Road is an unpaved, private way subject to the oversight of the Massachusetts Department of Conservation and Recreation ("DCR").   Access to the road is via a gate, which at times is locked by DCR employees, located off of Old Boston Turnpike (otherwise known as State Route 20).  Mr. Blanchard testified that the road is basically one way with only a few turnouts.  He further testified that the road is not maintained by the DCR and, as the only year-round resident within the area, he must plow the road in the winter months to gain access to the subject property.
Ms. Hopkins performed a comparable-sales analysis.  She cited sales of four purportedly comparable properties.  The following table outlines the four sales that Ms. Hopkins relied upon in her analysis, and the adjustments she made.

	Subject Property	2B Gardner Rd,
Hubbardston	24 Narrow Ln,
Phillipston	9 Comet Pond Access,
Hubbardston	140 Seminole,
Hubbardston	
Proximity		2-3 mi	8 mi	¼ mi	1-2 mi	
Sale Price 		$150,000	$ 65,000	$ 70,000	$ 98,500	
Date of Sale		5/25/2005	8/30/2005	8/6/2004	1/29/2004	
Adjustment				+2,000	+5,500	

Location	
Gd/Avg 	
Superior	Avg - Superior Access	
Gd/Avg-Sup	
Superior-Subdivision	
Adjustment		-5,000	+5,000	-5,000	+10,000	
Site View	WV/ROW Access	WV/WF
Sawyers Pond	WV-BR
Queen Lake	Proximate to Pond	WF
Cushman Pond	
Adjustment			+5,000	+10,000	+5,000	

Lot Size	
1.65	4.82/
3.9 WF	
1.16	
3.96	
2.18	
Adjustment		-6,000	+1,000	-4,000	-1,000	

Street Access	Private/
Gravel	Public/
Paved	Public/
Paved	Private/
Gravel	Public/
Paved	
Adjustment		-5,000	-5,000	0	-5,000	
Topography/
Water Frontage	Mostly level/
10'+/-	Sloping/
2500'	Sloping/
None	Rolling/
None	Sl. Sloping/
450' +/-	
Adjustment		-10,000	+5,000	+5,000	-10,000	

Features	
None	
2 Lots	Septic Design	
4BR Design	Septic Design	
Adjustment		-50,000	-5,000	-5,000	-5,000	
Total Adjustments		
-76,000	
6,000	
3,000	
-20,500	
Indicated Value of
Subject		
$74,000	
$71,000	
$73,000	
$78,000
	

Ms. Hopkins also developed a land residual approach to value based on the sale of 51 Grimes Road, which is a 2.2-acre parcel improved with a ranch-style home with a finished living area of 1,100 square feet.  This sale is a waterfront property with approximately 200 feet of frontage on Lovewell Pond.  The property sold on October 19, 2005 for $260,000.  Using a building cost of $110 per square foot, totaling $121,000, plus additions of $25,000 for the two-car garage, $6,000 for the fireplace, $5,000 for the finished basement, and $5,000 for the porch, Ms. Hopkins calculated a total cost new of $162,000.  She then allowed a twenty-five percent deduction for depreciation and a $20,000 deduction for the cost of site improvements, to arrive at a total site/building value of $141,500.  Finally, she deducted this amount from the property's sale price of $260,000 to arrive at a residual land value of $118,500. 
Ultimately, Ms. Hopkins relied on her comparable-sales analysis in forming her opinion of value of the subject property as of January 1, 2006 of $75,000.
The assessors presented their case through the testimony of Dianne Lanney, assessor.  Ms. Lanney testified that the increase in the subject property's assessed value from fiscal year 2006 to fiscal year 2007 was attributable to the yearly revaluation and revised neighborhood factors that placed East Comet Pond at the uppermost end of the range for waterfront properties.  She conceded, however, that no sales of property on the pond had occurred during calendar year 2006.
The assessors also presented a comparable-sales analysis which relied on four sales of purportedly comparable properties, all located within Hubbardston.  Comparable sale number one, located at 45 Seminole Avenue, is a 3.31-acre parcel of waterfront land located on Cushman Pond.  This parcel sold on February 25, 2004 for $88,500.  The parcel satisfies the zoning requirements which requires a minimum lot size of 2 acres and 200 feet of road frontage and therefore is classified as a buildable lot.  Ms. Lanney testified that she did not make a time adjustment because she found the market to be flat from the date of sale to the relevant date of assessment.  She did make a positive adjustment of $115,100 to account for the inferior location on Cushman Pond, and a negative $6,300 adjustment to account for the parcel's larger lot size to arrive at an adjusted sale price of $197,300.
	Comparable sale number two is a 1.45-acre waterfront parcel located at 21 Seminole Avenue, which sold on January 29, 2004 for $98,500.  Despite the fact that this parcel does not meet the minimum zoning requirements, it is a grandfathered lot and is therefore buildable.  The only adjustment made was a positive adjustment of $128,100 for inferior location, to arrive at an adjusted sale price of $226,600.  
	Comparable sale number three is a 4.78-acre parcel of non-waterfront property located at Birches Road.  This property sold on February 6, 2004 for $75,000.  Ms. Lanney made a positive adjustment of $141,000 to account for the inferior location and also a negative adjustment of $16,800 to account for the excess acreage to calculate an adjusted sale price of $199,200.
	Finally, comparable sale number four, located at Ed Clark Road, is a 3.40-acre buildable parcel of non-waterfront property.  This property sold for $80,000 on October 31, 2006.  Ms. Lanney made a positive adjustment of $150,400 for the property's inferior location and a negative adjustment of $8,500 for the excess acreage, to arrive at an adjusted sale price of $221,900.  Ms. Lanney determined that comparable sale number two, 21 Seminole Avenue, was the most comparable to the subject property and therefore concluded that the subject property's fair market value as of January 1, 2006 was $226,600.  
Based on the evidence, the Presiding Commissioner found and ruled that the appellant met his burden of proving that the subject property was overvalued for the fiscal year at issue.  In reaching this decision, the Presiding Commissioner gave some weight to the comparable sales evidence offered by both parties.  The Presiding Commissioner, however, modified the adjustments which Ms. Hopkins and Ms. Lanney used to reach his determination of fair cash value.  After modifying the parties' adjustments, the Presiding Commissioner found, on the basis of all the evidence of record, that the fair cash value of the subject property for fiscal year 2007 was $132,000.  Accordingly, the Presiding Commissioner found that the subject property was overvalued by $63,200 and granted an abatement of $621.60. 

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 the 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 [his] 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)). 
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). "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."  New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).
In the present appeal, both the appellant's real estate valuation expert and the assessors presented sales data of comparable properties and made adjustments for differences between the subject property and the purported comparables.  On the basis of the parties' analyses, together with necessary modifications to their adjustments, the Presiding Commissioner found that the fair cash value of the subject property for fiscal year 2007 was $132,000.  
"In reaching its opinion of fair cash value in this appeal, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation . . .  .  Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight." Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 683 (1982); New Boston Garden Corp., 383 Mass. at 473; Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 701-02 (1972).  "The credibility of witnesses, the weight of evidence, the inferences to be drawn from the evidence are matters for the Board." Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
The Board need not specify the exact manner in which it arrived at its valuation. Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment." Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941). 
Based on the foregoing facts and findings, the Presiding Commissioner found and ruled that the appellant met his burden of proving that the subject property was overvalued for fiscal year 2007.  Accordingly, the Presiding Commissioner issued a single-member decision for the appellant in this appeal and granted an abatement in the amount of $621.60.
    	    		   APPELLATE TAX BOARD

				By:				______	undefinedundefined_____
				   Thomas J. Mulhern, Commissioner



A true copy,


Attest:	______		_____
	    Clerk of the Board

 This amount includes a 1.5% assessment under the Community Preservation Act ("CPA").

 The evidence is devoid of any information regarding the length of the strip of land leading to Asnacomet Pond.

ATB 2011-409