Nadine M. & Peter Hiser v. Board of Assessors of the Town of Dalton (January 10, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



NADINE M. & PETER HISER		v.	   BOARD OF ASSESSORS OF 							   THE TOWN OF DALTON

Docket No. F317423 (FY 2012)		   Promulgated:
            					   January 10, 2014

            
	This is an appeal under the formal procedure, pursuant to G.L. c. 58A, § 7, G.L. c. 59, §§ 64 and 65, and 831 CMR 1.03 and 1.04, from the refusal of the Board of Assessors of the Town of Dalton (the "assessors" or the "appellee") to abate taxes on a parcel of real estate in the Town of Dalton owned by and assessed to Nadine M. Hiser and Peter Hiser (the "appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2012 (the "fiscal year at issue"). 
Commissioner Mulhern heard this appeal pursuant to G.L. c. 58A, § 1A and 831 CMR 1.20, and he issued a single-member decision for the appellants.     
	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.  
	
Nadine M. Hiser, pro se, for the appellants.

	Laura L. Maffuccio, Chair of the assessors, for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2011, the appellants were the assessed owners of the improved parcel located at 168 Hinsdale Road in the Town of Dalton (the "subject property").  The subject property is identified for assessing purposes as map 112, lot 17.  The subject parcel contains approximately 1.10 acres of land and is improved with both a ranch-style and a bungalow-style home.  The relevant assessment information for the subject property for the fiscal year at issue is contained in the following table.
Land
Assessment	Buildings
Assessment	Yard Items Assessment	Total
Assessment	Tax Rate 
/$1,000	Tax Assessed*	
$63,700	$163,500	$6,400	$233,600	$17.41	$4,066.98	

*The tax assessed does not include a fire district tax of $163.52.

	The pertinent payment and other jurisdictional information, including relevant filing dates, for the subject property for the fiscal year at issue are contained in the following table.
Tax Bill Mailed	Tax Payment	Abatement Application	Assessors'
Denial	Petition to Board	
12/28/2011	timely	02/01/2012	04/10/2012	07/09/2012	

Based on these facts and in accordance with         G.L. c. 59, §§ 57C, 59, and 64 and 65, the Presiding Commissioner found and ruled that the Appellate Tax Board (the "Board") had jurisdiction over this appeal.  
Sometime before the hearing of this appeal, the assessors granted the appellants a partial abatement, to account for certain inaccuracies in the subject property's property record card, and lowered the assessed value of the subject property to $209,700.  Not satisfied with that reduction, the appellants continued the prosecution of this appeal and at the hearing, argued that the subject property remained overvalued compared to the adjusted sale prices of purportedly comparable properties.  The appellants attempted to substantiate this contention through the testimony of Nadine Hiser who is one of the appellants and, according to her testimony, a licensed real estate broker. The appellants introduced into evidence a packet of documents, which contained: copies of photographs of the subject property; copies of property record cards, including those pertaining to the subject property and purportedly comparable properties in Dalton; and analyses by Ms. Hiser.  
In support of the assessments, the assessors presented their case-in-chief through the testimony of Laura L. Maffuccio, the Chair of the assessors.  In addition, the assessors entered various documents into evidence, including: the deed reflecting the subject property's transfer to the appellants in October, 2008; the property record cards of purportedly comparable properties in Dalton; and all necessary jurisdictional documents.  Based on this record, the Presiding Commissioner made the following findings of fact.
The subject property is located on a residential street in Dalton which is proximate to Route 9 and Main Street (Route 8).  The appellants purchased the subject property for $131,000 in October, 2008 from the bank which had foreclosed on it approximately three months earlier.  The subject property's 1.10-acre parcel is improved with two single-family homes -- a ranch and a bungalow.  The parties agreed that, for a variety of reasons, both legal and practical, subdividing the subject property into two residential parcels was not feasible. Under the circumstances, the Presiding Commissioner agreed with the parties that the subject property should be treated as a two-family property for valuation and assessment purposes.  
At the time of the appellants' purchase of the subject property, its improvements were in poor condition.  The appellants spent close to $25,000 to bring the houses into a more rentable condition.  These expenditures funded repairs to the roofs and heating systems, as well as exterior and interior patching and painting.  As of the valuation and assessment date for the fiscal year at issue, the ranch-style house was composed of six rooms, including three bedrooms, as well as two bathrooms.  The parties considered this house to be in average condition.  The bungalow-style home contained four rooms, including two bedrooms, as well as one bathroom.  The parties also considered this house to be in average condition.
Ms. Hiser testified that the fair cash value of the subject property was somewhere between $175,000 and $180,000.  She based her opinion of value on seven sales of two-family properties in Dalton, which occurred between January, 2009 and June, 2011.  Most of these sale properties also contained separate improvements with living quarters.  These purportedly comparable properties' sale prices ranged from $145,000 to $199,900, with an average sale price of $172,914.  While Ms. Hiser identified many of the differences between her purportedly comparable-sale properties' characteristics and the subject property's features, she did not quantify these differences, instead preferring to describe them qualitatively.  The Presiding Commissioner found that the most comparable of the sale properties were the four sale properties which sold most proximate to the valuation and assessment date for the fiscal year at issue.  Their sale prices ranged from $160,000 to $199,900, and supported a value of $185,000.
In defense of the $209,700 assessment, as abated, the assessors offered three single-family properties and four two-improvement, two-family properties as purportedly comparable-assessment properties. The Presiding Commissioner found that, where the record as a whole contained an adequate number of reasonably comparable two-improvement and two-family properties, the single-family properties were not fundamentally comparable to the subject property.  The Presiding Commissioner, therefore, afforded them no weight.  As for the assessors' purportedly comparable two-improvement properties, two of their assessed values were in the $160,000 to $170,000 range, while the other two, with assessments exceeding $210,000, were located in better neighborhoods than the subject property and had better and considerably larger combined living areas.  One of these properties also has a parcel which is three times the size of the subject property's lot.  Taken as a whole, the Presiding Commissioner found that these four properties' assessments supported a value in the $180,000-to-$190,000 range.
Based on all of the evidence, the Presiding Commissioner found that four of the comparable-sale properties which the appellants offered were the best evidence of the subject property's value as of the relevant valuation and assessment date for the fiscal year at issue.  These properties supported a fair cash value of $185,000.  The Presiding Commissioner also found this value falls within the range suggested by the assessors' two-improvement, comparable-assessment properties.  On this basis, the Presiding Commissioner determined that the fair cash value of the subject property for the fiscal year at issue was $185,000, and he, therefore, decided this appeal for the appellants and granted tax abatement in the amount of $430.03.       
                       
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 appellants have 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 [Presiding Commissioner] 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).
The fair cash value of property may be determined by recent sales of comparable properties in the market.   Actual sales generally "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); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971).  When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices.  See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Facts and Reports 1998-1072, 1082-83.  "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).
General Laws Chapter 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible." Id.  "The introduction of ample and substantial evidence in this regard may provide adequate support for abatement."  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  The assessments in a comparable-assessment analysis, like the sale prices in a comparable-sales analysis, must also be adjusted to account for differences with the subject.  See Heitin v. Assessors of Sharon, Mass. ATB Findings of Fact and Reports 2002-323, 334 ("Further, the appellant did not adjust for differences between the comparable properties and the subject property in order to properly impute a value to the subject property using the assessed values of the comparables.").  "After researching and verifying transactional [or assessment] data and selecting the appropriate unit of comparison, the appraiser adjusts for any differences."  The Appraisal of Real Estate at 307.
	Based on all of the evidence, the Presiding Commissioner found and ruled that the comparable-sale properties which the appellants offered into evidence represented the best evidence of the subject property's fair cash value as of the relevant valuation and assessment date for the fiscal year at issue.  Relevant and reliable sale prices, as opposed to assessments, are the more appropriate measures for determining fair cash value.  Mason v. Assessors of Winchester, Mass. ATB Findings of Fact and Reports 2004-110, 142, aff'd, 64 Mass. App. Ct. 1104 (2005)(Rule 1:28), further appellate rev. den., 445 Mass. 1104 (2005).  See also Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403, aff'd, 73 Mass. App. Ct. 1107 (2008)("Reliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value.").  The Presiding Commissioner found that the comparable-sale properties here supported a fair cash value determination of $185,000.  The Presiding Commissioner further found that this value also fell within the range suggested by the two-improvement, comparable-assessment properties that the assessors introduced into evidence.  On this basis, the Presiding Commissioner found and ruled that the fair cash of the subject property for the fiscal year at issue was $185,000.
	In reaching his opinion of fair cash value, the Presiding Commissioner was not required to believe the testimony of any particular witness or to adopt any particular method of valuation suggested.  Pepsi-Cola Bottling Co. v. Assessors of Boston, 397 Mass. 447, 449 (1986).  Rather, the Presiding Commissioner could accept those portions of the evidence that he determined had more convincing weight and find his own value. Foxboro Associates, 385 Mass. at 682; New Boston Garden Corp., 383 Mass. at 469.  "The credibility of witnesses, the weight of evidence, the inferences to be drawn from the evidence are matters for the [Presiding Commissioner]."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
	Based on all of the evidence, his subsidiary findings above, and the applicable law, the Presiding Commissioner found and ruled that the fair cash value of the subject property for the fiscal year at issue was $185,000.  The Presiding Commissioner, therefore, decided this appeal for the appellants and granted tax abatement in the amount of $430.03.   

						APPELLATE TAX BOARD

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


A true copy,



Attest: ______________________
          Clerk of the Board      

ATB 2014-1