Maura A. Lareau & Gregory J. Lareau v. Board of Assessors of the Town of Norwell (October 30, 2013)

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APPELLATE TAX BOARD



MAURA A. LAREAU &    	  v.	        BOARD OF ASSESSORS OF 
GREGORY J. LAREAU				   THE TOWN OF NORWELL

Docket Nos.: F313776 			   Promulgated:
		   F316184			   October 30, 2013


	These are appeals 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 Norwell ("appellee" or "assessors") to abate taxes on certain real estate in Norwell, owned by and assessed to Maura A. Lareau and Gregory J. Lareau ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal years 2011 and 2012 ("fiscal years at issue").  
	Commissioner Chmielinski heard these appeals.  He was joined in the decisions for the appellee by Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern.  
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Maura A. Lareau, pro se, for the appellants.

	James F. Sullivan, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of testimony and exhibits submitted at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2010 and January 1, 2011, the relevant assessment dates for the fiscal years at issue, the appellants were the assessed owners of a parcel of real estate located at 35 Stony Brook Lane in Norwell ("subject property").  The parcel contains approximately 6.57 acres of land ("subject land") and is improved with a single-family residence containing 2,906 square feet of living area ("subject home"), as well as a storage shed.  
For fiscal year 2011, the assessors valued the subject property at $960,200, and assessed a tax thereon, at the rate of $13.87 per thousand, in the total amount of $13,675.90, which the appellants timely paid without incurring interest. 	On January 31, 2011, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors.  On April 24, 2011, in accordance with G.L. c. 59, §§ 64 and 65, the assessors denied the appellants' abatement request.  The appellants seasonably filed an appeal with the Board on July 13, 2011.  On the basis of these facts, the Board found and ruled that it had jurisdiction over the appeal for fiscal year 2011.  
On April 30, 2012, the assessors issued a partial abatement reducing the subject property's fiscal year 2011 assessed value to $842,400.  However, the appellants contended that this reduced value still exceeded the fair market value of the subject property and thus did not withdraw their appeal for fiscal year 2011.  
For fiscal year 2012, the assessors valued the subject property at $916,900 and assessed a tax thereon, at the rate of $14.24 per thousand, in the total amount of $13,405.64, which the appellants timely paid without incurring interest. 	On January 30, 2012, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors.  On March 12, 2012, the assessors granted a partial abatement reducing the subject property's assessed value to $859,200.  In accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Board on June 5, 2012.  On the basis of these facts, the Board found and ruled that it had jurisdiction over the appeal for fiscal year 2012.
The subject property was at issue in a prior appeal concerning fiscal year 2010.  See Lareau v. Assessors of Norwell, Mass. ATB Findings of Fact and Reports 2012-403.  In that appeal, the Board found that the appellants met their burden of proving a value that was lower than that assessed by the appellee.  The Board determined a fair market value of $900,000 for fiscal year 2010.  The subject assessments, as abated, for both fiscal years at issue are less than the value determined by the Board in that prior appeal.  Therefore, G.L. c. 58A, § 12A does not apply to the instant appeals.
The subject property is located on Stony Brook Lane, a one-lane, dirt, private way.  Stony Brook Lane runs through the subject property and provides access to eight properties, including the subject property.  As a private way, it is maintained at the owners' expense.  Four of the properties on Stony Brook Lane have river frontage on, and direct river access to, the North River with docks or piers and the other four, including the subject property, do not.
The 6.57-acre subject parcel is comprised of a one-acre main site plus 5.57 excess acres of lowland marsh, which the appellants claim is under conservation restrictions.  The subject property does not have frontage on the North River.  The subject property does have frontage along a segment of a tributary, the Stony Brook, which flows into the North River; this segment runs dry during low tide.  The subject property does not have a dock or pier nor does it have direct access to the North River by way of a deeded easement.  Moreover, the subject property is one parcel removed from the North River and the appellants thus contend that a neighboring property obstructs the subject property's view of the North River.    
The subject residence, built in 1979 with an effective year built of 1998, is a conventional-style, two-story, single-family home, which the appellants describe as 2/3 Cape style and 1/3 Colonial style.  The assessors' property record card for the subject property reports that it contains 2,906 square feet of living space with six rooms, including three bedrooms, as well as two full modern-styled bathrooms, one of which had a whirlpool tub, and one half bathroom.  The residence features what the assessors classified as an "above-average" kitchen, an open-concept main living area with a cathedral ceiling and fireplace, plus two additional fireplaces.  The residence's interior walls are primarily painted sheetrock, and the floors are hardwood.  The residence has an oil-fired, forced hot water heating system, and it is equipped with central air conditioning.  
The exterior of the residence has wood clapboard and shingle siding, and a gable, hip-styled roof composed of asphalt shingles.  A 912-square-foot garage is attached to the house as part of the first floor.  The house also has a 568-square-foot deck, a 768-square-foot unfinished attic, and a 1,152-square-foot crawl space under one-third of the house, accessible only from the exterior.  In 2001, the appellants completed an approximately $300,000 renovation and addition, which added a third garage bay with a living area above, as well as the replacement of the southern portion of the residence.  The assessors rated the residence as in "Good +20" overall condition.  
At the hearing of these appeals, Ms. Lareau contended that the total assessed value of the subject property, including both the land and the building components, exceeded the fair cash value of the subject property.  She contended, however, that overvaluation of the land portion of the assessment accounted for the majority of the over assessment.  With respect to the land component of the assessment, she contended that 5.57 acres of the 6.57 acres was "unusable marsh under conservation restrictions" and thus "only represents a tax liability to the appellants."  The appellants then pointed out that the subject property did not have frontage along the North River nor direct access to the North River, so it did not constitute waterfront property.  The appellants further contended that, because the subject property was one property removed from the North River, it did not enjoy an unobstructed view of the river, and therefore, it also was not a water-view property.  The appellants contended that, given the scarcity and desirability of properties that fronted the North River in Norwell, particularly those with a pier or dock, the subject property's land component should be assessed lower than the land components of those properties that were waterfront or water-view properties along the North River.  
To support their contention, the appellants submitted a chart detailing the separate components of the subject assessments and compared the original assessments with the abated assessments.  The chart demonstrated that, per the property record card, the fiscal year 2011 abatement was allocated to the subject home, which went from a valuation of $366,200 down to $248,400, while the subject land remained stable at $591,000. 	  The fiscal year 2012 abatement was also allocated to the subject home, which went from a valuation of $322,900 down to $265,200.
The appellants next offered comparable-assessment analyses to dispute both the land and house portions of the subject assessment.  The appellants submitted voluminous evidence consisting of a position statement and supporting charts, with accompanying property record cards.  One chart compared primary lot land assessments of five riverfront properties in Norwell:  64 Stony Brook Lane; 80 Old Meeting House Lane; 82 Old Meeting House Lane; 116 Old Meeting House Lane; and 89 King's Landing.  According to this chart, the subject property's primary lot assessment of $2.07 per square foot exceeded the per-square-foot primary-lot values of four of these neighboring purportedly comparable properties, which had riverfront access to the North River.
Another chart compared the subject property's primary lot's assessed land value of $2.07 per square foot to the primary lot's assessed land value of $0.75 per square foot for 124 Old Meeting House Lane, a nearby non-riverfront property.  Like the subject property, 124 Old Meeting House Lane was one property removed from the North River and thus had a similar proximity to the river.  However, unlike the subject property, 124 Old Meeting House Lane had access to the river via a deeded easement.  The appellant contended that, at $0.75 per square foot, the subject parcel should have been assessed at $214,000, which would have reduced the subject assessments to $456,711 for fiscal year 2011 and $464,673 for fiscal year 2012. 
The appellants next cited the sale of 96 Stony Brook Lane, a riverfront property, which the appellants claim sold for $282,900 in January, 2010.  The appellants offered no documentary evidence of the sale, and the only evidence they offered for that purportedly comparable-sale property is a photograph depicting the property, together with two other properties, from a vantage point across the North River.
Finally, the appellants contended that the subject property was overvalued because, in their opinion, the assessors intended to decrease the subject property's assessment by 12.37% between fiscal years 2010 and 2011 and then by another 4.51% between fiscal years 2011 and 2012.  The appellants reason that, for fiscal year 2010, the appellee originally valued the subject property at $1,095,700.   Then, before receiving the Board's decision for fiscal year 2010 which reduced the subject property's fair cash value to $900,000, the assessors valued the subject property for fiscal year 2011 at $960,200, representing a decrease of 12.37% between fiscal years 2010 and 2011.  Therefore, the appellants reason, if the appellee had determined that the subject property had decreased in value by 12.37% between fiscal years 2010 and 2011, then they should have valued the subject property at $788,670 for fiscal year 2011, which would have represented a decrease of 12.37% from the Board's valuation of $900,000 for fiscal year 2010. 
With respect to fiscal year 2012, the appellants contended that the appellee's original valuation of the subject property was $916,900, which represented a decrease of 4.51% from the appellee's original assessment of the subject property for fiscal year 2011.  Therefore, the appellants reasoned, the assessors should have valued the subject property at $753,180 for fiscal year 2012, which represented a decrease of 4.51% from $788,670, which the appellant contended was the subject property's fair cash value for fiscal year 2011.  The appellant submitted tables of the assessments of purportedly comparable properties to contend that the valuations of those properties were reduced by even more than 12.37% for fiscal year 2011 and 4.51% for fiscal year 2012 from the previous fiscal years.
Testifying for the appellee's case-in-chief was Paul Falconer, a real estate appraiser, whom the Board qualified as an expert in the area of real estate valuation.  Mr. Falconer submitted two appraisal reports, one for each fiscal year at issue.
His appraisal report for fiscal year 2011 included a comparable-sales analysis comparing the subject property to three purportedly comparable Norwell non-waterfront properties:  20 Cross Street, about 0.38 miles from the subject property; 20 Wanton Shipyard, about 1.98 miles from the subject property; and 15 Fords Crossing, about 0.54 miles from the subject property.  These properties ranged in size from 1.46 acres to 3.65 acres and were improved with homes ranging in size from 3,317 square feet to 3,468 square feet.  The comparable properties sold between June 26, 2009 and July 15, 2009 for prices ranging from $855,000 to $965,000.  After applying adjustments for the subject property's superior location -- which Mr. Falconer explained took into account the subject property's "privacy factor" and what the appraiser considered to be  the subject's view of the North River -- as well as adjustments for additional factors including land size, gross living area, bath amenities, below-grade living area, number of  fireplaces, size of garage and other amenities,  the   purportedly comparable properties yielded adjusted sale prices ranging from $955,950 to $958,050.  Comparables Two and Three required acceptable net adjustments of 0.8% each, while Comparable One required a net adjustment of 11.8%.
Mr. Falconer stated that he gave all three purportedly comparable properties equal weight in his sales-comparison approach. Based on these adjusted sale values, Mr. Falconer arrived at an indicated value of $956,000 for fiscal year 2011. Because Mr. Falconer did not perform any other valuation analyses, he concluded that the fair market value of the subject property for fiscal year 2011 was $956,000. This was higher than the subject property's assessed value, as adjusted, of $842,400.  
For fiscal year 2012, Mr. Falconer's appraisal report included a comparable-sales analysis comparing the subject property to three purportedly comparable properties:  134 Pine Street, about 2.88 miles from the subject property; 175 Old Oaken Bucket Road in Scituate, about 1.22 miles from the subject property; and 434 King Street in Cohasset, about 4.81 miles from the subject property.  These properties ranged in size from 5.45 acres to 10 acres and were improved with homes ranging in size from 2,990 square feet to 3,448 square feet.  The comparable properties sold between December 10, 2009 and June 25, 2010 for prices ranging from $810,000 to $1,094,000.  After applying adjustments for location (and again considering a "privacy factor" for the subject property), quality of construction, gross living area, bath amenities, below-grade living area, number of fireplaces, and size of garage, the purportedly comparable properties yielded adjusted sale prices ranging from $888,550 to $911,000.  Comparable Sales Two and Three required net adjustments of 9.7% and 16.7%, respectively, but Comparable One required a net adjustment of just 0.6%.  Comparable One yielded an adjusted sale price of $906,525.  
Mr. Falconer stated that he gave all three purportedly comparable properties equal weight in his sales-comparison approach. Based on these adjusted sale values, Mr. Falconer arrived at an indicated value of $910,000 for fiscal year 2012. Because Mr. Falconer did not perform any other valuation analyses, he concluded that the fair market value of the subject property for fiscal year 2012 was $910,000.  This value was higher than the subject property's assessed value, as adjusted, of $859,200.  
On the basis of the evidence of record, the Board ultimately found that the appellants failed to prove that the subject property's assessed value, as abated, exceeded its fair cash value for the fiscal years at issue.  The Board had previously determined that the fair market value of the subject property for fiscal year 2010 was $900,000, which the Board had found fairly compensated for the subject property's lack of water access and what the Board deemed to be the subject's obstructed view of the North River.  Lareau, Mass. ATB Findings of Fact and Reports at 2012-417.  The subject assessments as abated for the fiscal years at issue are $842,000 and $859,000, which are lower than the fair market value found by the Board for the prior year's appeal.  The Board found that the appellants failed to show that these reduced assessed values were excessive and did not adequately account for the subject property's lack of waterfront location, unobstructed water-view, or waterfront access to the North River.  
The Board further found no merit in the appellants' contention that the assessors improperly assigned the abatements to the home portion of the assessment rather than to the land portion.  As will be explained in the following Opinion, while the assessment has a land and a home portion, the issue on appeal to the Board is whether the total assessed value exceeds the subject property's fair market value.  The Board also found no merit to the appellants' contention that the 5.57 acres of marshland had no value because it was unusable.  
With respect to the appellants' per-square-foot comparable-assessment analyses, the appellants applied no adjustments to account for differences between their comparables and the subject property.  The appellants also failed to demonstrate why adjustments may not have been warranted. The appellants' evidence, therefore, was not sufficient to allow the Board to make determinations of comparability or to determine the fair market value of the subject property.  The appellants' comparable-sales analysis, consisting of the single sale of 96 Stony Brook Lane, also lacked adjustments and was thus similarly unpersuasive.  
Finally, the Board found no merit to the appellants' contention that the assessors "intended" to decrease the subject assessments by a certain percentage.  The only issue raised in these appeals is whether the assessed value of the subject property exceeds its fair cash value for the fiscal years at issue; speculation concerning the assessors' alleged intent is immaterial.  Moreover, there was no direct evidence offered by either party that the real estate market was declining during the fiscal years at issue.  Even assuming that the real estate market was declining during the fiscal years at issue, the appellants failed to prove that the subject assessments did not already take that decline into account, particularly since the subject assessments were less than the value found by the Board for fiscal year 2010. 
Therefore, on the basis of the evidence of record, the Board found and ruled that the appellants failed to meet their burden of proving a fair market value for the subject property that was less than its assessed value for either fiscal year at issue.
The Board further found that the appellee's comparable-sales analyses for the fiscal years at issue supported the subject assessments.  With respect to the analysis for fiscal year 2011, the Board noted that two of the properties used in the appellee's analysis required adjustments of only 0.8%, while the third required a modest adjustment of 11.8%.  After adjustments, the comparable properties yielded adjusted sale prices of between $955,900 and $958,050, which was significantly higher than the abated assessment of $842,400.  With respect to fiscal year 2012, two of the properties required less than 10% of adjustment, and the three comparable properties yielded adjusted sale prices of between $888,550 and $911,000, which was more than the abated assessment of $859,200.  
 Accordingly, the Board issued decisions for the appellee in these appeals.

OPINION
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, 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 appellant has the burden of proving that the subject property has a lower fair market value than the value 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)).  
In the present appeals, the appellants offered affirmative evidence, including photographs and property record cards, and offered their contentions as to why the subject property was overvalued for the fiscal years at issue.  First, the appellants claimed that the appellee erroneously applied its abatements for the fiscal years at issue to the house portion of the subject assessments rather than to the land portions.  However, taxpayers do not conclusively establish a right to abatement merely by showing that their land 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).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Chater v. Assessors of Dighton, Mass. ATB Findings of Fact and Reports 2009-372, 380; Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119.  The appellants' contention that the appellee erred in its applications of the abatements to the separate portions of the subject assessments does not address the issue of whether the subject assessments, as a whole, reflect the fair cash values of the subject property for both fiscal years at issue.  See Pistorio v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2010-206, 214-15.  Therefore, the Board rejected this contention.
The Board also gave no consideration to the appellants' contention that 5.57 acres of the subject property had no value because it was "unusable" marshland under conservation restriction.  The Board has routinely rejected taxpayers' contentions that land under a conservation restriction has no value.  See, e.g., Cline v. Assessors of Canton, Mass. ATB Findings of Fact and Reports 1996-677, 681 (rejecting taxpayer's contention that property surrounded by wetlands, and therefore impacted by regulations governing development on wetlands, was "virtually worthless") (citing Mashpee Wampanoag Indian Tribal Council, Inc. v. Assessors of Mashpee, 370 Mass. 420, 421 (1980) ("it is proper to determine fair cash value from the intrinsic value of the property, including 'any and all the uses to which the property is adapted in the hands of any owner.'")(citing Beale v. Boston, 166 Mass. 53, 55 (1896)); see also Autumn Gates Estates, LLC & Fox Gate LLC v. Assessors of Millbury, Mass. ATB Findings of Fact and Reports 2013-822, 861.
Next, the appellants offered comparable-sales and comparable-assessment analyses in their attempt to undermine the assessors' valuation.  G.L. c. 58A, § 12B provides 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."  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).  "The introduction of ample and substantial evidence in this regard may provide adequate support for . . . abatement."  Id.  
However, purportedly comparable properties used in a comparable-sales or comparable-assessment analysis must be adjusted for differences with the subject property.  See Lupacchino v. Assessors of Southborough, Mass. ATB Findings of Fact and Reports 2008-1253, 1269 ("[W]ithout appropriate adjustments . . . the assessed values of [comparable] properties [do] not provide reliable indicator[s] of the subject's fair cash value.").  In the instant appeals, the appellants merely focused on comparing the per-square-foot assessments of the land portions of their purportedly comparable properties with the land assessment of the subject property.  They offered no adjustments to their purportedly comparable properties to assist the Board in drawing meaningful comparisons with these properties and the subject property.  The Board therefore was not persuaded by the appellants' comparable-sales-and-assessment analyses.  
Finally, with respect to the appellants' contention that the assessors "intended" to decrease the subject property's assessments by certain percentages, the Board found and ruled that consideration of the assessors' "intent" has no bearing on the only relevant question in these appeals, which is the fair market value of the subject property for each fiscal year at issue.  See G.L. c. 59, §§ 2A, 38. The Board thus disregarded this contention.

Conclusion
Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property's land or overall assessment was overvalued for either fiscal year at issue.  On this basis, the Board decided these appeals for the appellee.

             			APPELLATE TAX BOARD

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



A true copy,

Attest: _____________________________
         Clerk of the Board

 This amount includes a Community Preservation Act ("CPA") surcharge of $357.93.
 This amount includes a CPA surcharge of $348.98.
 G.L. c.58A, § 12A, provides in pertinent part that: 
If the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted. 
 The appellants dispute this measurement, claiming that the subject residence actually contains 2,896 square feet of living space.  The appellants do not support their measurement with any documentary evidence.  Moreover, the Board found this discrepancy to be de minimus and therefore not to have any effect on its determination of the subject property's fair market value.
 The subject detached outbuilding's assessment remained at $3,000 after abatement.

 See note 5, supra.
 These included a $2,000 adjustment to Comparable One for the subject's detached shed, and a -$1,000 adjustment to Comparable Two for its wet bar and satellite dish.

ATB 2013-1066