Jennifer & Alan Deane v. Board of Assessors of the Town of Westborough (June 25, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JENNIFER & ALAN DEANE      v. 	BOARD OF ASSESSORS OF    THE TOWN OF WESTBOROUGH	   
	

Docket No. F300424				Promulgated
                                   June 25, 2010

        						  
This is an appeal filed under the informal procedure pursuant to G.L. c. 58A, § 7A and G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the Town of Westborough ("appellee" or "assessors") to abate taxes on certain real estate in Westborough, owned by and assessed to Jennifer and Alan Deane, (together, "appellants") under G.L. c. 59, §§ 11 and 38 for fiscal year 2009 ("fiscal year at issue").
Commissioner Egan heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern joined her in a 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.
	Alan Deane, pro se, for the appellants. 

	Gregory Franks, 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, 2008, the relevant date of assessment for the fiscal year at issue, the appellants were the assessed owners of a 1.156-acre parcel of land, improved with a two-story, Colonial-style dwelling ("subject dwelling"), located at 14 Olde Hickory Path in Westborough, Massachusetts ("subject property").  Constructed in 2000, the subject dwelling has a concrete foundation, wood clapboard and brick exterior, and an asphalt shingle roof.  It has thirteen rooms, including four bedrooms, as well as five full bathrooms and two half-bathrooms.  The dwelling has a total finished living area of 5,223 square feet.  Interior features include hardwood and carpet flooring and four fireplaces.  The subject dwelling also has a three-car attached garage, a full, unfinished basement, and a screened porch and patio area.  
For the fiscal year at issue, the assessors assessed the subject property at $1,808,000, and assessed a tax thereon, at a rate of $15.50 per thousand, in the total amount of $28,024.00.  Westborough's Collector of Taxes mailed the actual tax bills for fiscal year 2009 on December 18, 2008.  The appellants timely paid the taxes due without incurring interest.  The appellants timely filed an Application for Abatement with the assessors on January 6, 2009.  The Application for Abatement was denied in part and allowed in part by vote of the assessors on January 27, 2009.  The assessors partially abated the assessment because they determined that the original assessment was premised upon an incorrect measurement of the subject dwelling's total gross living area.  The assessed value was reduced to $1,720,500.  The appellants timely filed an appeal with the Board on April 22, 2009.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.  
The Appellants' Case-in-Chief
The appellants presented their case-in-chief through the testimony of Alan Deane, whom the Board found to be credible.  The appellants also introduced into evidence numerous documents - including property record cards -  with information regarding the assessments of several properties in the same neighborhood as the subject property.  The following chart substantially reproduces the chart presented by the appellants containing data from eight other properties located on Olde Hickory Path.
Address	 Acres	Year 
Built	 SFLA 	Full 
Bath	Half 
Bath	Bedrooms	Assessed
 Value ($)		Subject Property	 
 1.156	2000	5,223	5	2	4	1,720,500		8	 1.18	2005	5,262	4	2	4	1,634,300		10	1.18	2004	6,317	4	1	4	1,768,800		11	1.15	2000	5,080	4	2	4	1,100,100		12	 1.2	2003	5,218	2	2	4	1,538,300		16	1.15	2002	6,953	4	2	4	1,910,000		17	 1.6	2002	6,244	4	2	4	1,718,700		18	 1.9	2004	5,325	6	1	6	1,692,400		20	 1.7	2001	5,291	4	2	4	1,705,300		  

As evidenced in the above chart, despite being older and smaller in total finished living area than most of the comparable properties, the subject property had one of the highest assessments.  Mr. Deane testified that all of the homes on Olde Hickory Path were constructed by the same builder.  Mr. Deane further testified that the homes that were constructed first, including the subject property, were not of the same quality as the properties that were constructed later, and that he had to replace decks and balconies at the subject property because of the poor construction.  
The appellants also introduced into evidence a document entitled "Town of Westborough: Current vs. Previous Assessment Detail Report by Location" ("Assessment Detail Report").  The Assessment Detail Report showed the fiscal year 2009 assessed value and previous assessed value for approximately twenty properties located on Olde Hickory Path.  The subject property was one of only three properties on Olde Hickory Path whose assessment increased in fiscal year 2009.  Further, the Assessment Detail Report showed current and previous assessments for properties on other streets in the same neighborhood as the subject property.  The overall trend in the neighborhood was for a decrease in assessed value.  
The Assessors' Case-in-Chief
The assessors presented their case-in-chief through the testimony of assessor Linda Swadel and the submission of a comparative analysis involving five single-family homes located in the subject property's neighborhood.  The following chart substantially reproduces the comparative analysis offered by the assessors.




	Subject 
Property	18 Olde Hickory	Adjust.
($)	5 Whispering Pine	Adjust.
($)	16 Olde Hickory	Adjust.
($)	
Proximity 	N/A	Same Street		Same Subdivision		Same Street		
Sale Price ($)	
N/A	
1,900,000		
1,075,000		
N/A		
Sale Price ($/Sq. Ft.) 	
N/A	  
  396,000		
233.90		
N/A		
Assessment ($)	
1,720,500	
1,692,400	   	
1,033,600		
1,910,000		
Assessment ($/Sq. Ft.)	
355.92	
352.73		
224.89		
315.60		
Sale Date	N/A	8/29/07		9/7/07		N/A		
Location	Excellent	Excellent		Excellent		Excellent		
Lot Size (acres)	
1.156	
1.295	
    -2,100	
2.64 acres	 
 -22,300	
1.153 		
Style	Colonial	Colonial		Colonial		Colonial		
Construct. Quality	
AA- Superb	
AA- Superb		A- Very Good	  
  660,600	
AA- Superb		
Age/
Condition	9 Yrs./ Very Good	5 Yrs./
Excellent	
  -25,800	8 Yrs./Very 
Good	  -22,500	8 Yrs./
Excellent	  -12,700	
Room Count	
13/4/5 full/
2 half	

11/6/6.5	

   -2,800	

13/5/4	  

   21,700	11/4/4 full/
2 half	   

 9,100	
SFLA	4834	4798	    2,700	4596	   17,600	6052	  -90,100	
Attic Sq. Ft./% Fin.	
486/80%	
527sf/100%	
   -3,400	
568/0%	   
    7,100	
901/100%	  
-15,600	
Basement	Full Unfin.	Full Unfin.	    -2,800	Full Unfin.		Full Unfin.		
Garage	3 Car Attach.	3 Car 
Attach.		3 Car
Attach.		3 Car Attach. 		
Fireplaces	4	2	   18,200	1	   27,300	4		
Decks/Porch	SP/Deck/OFP
Patio	2 small decks	
    7,000	Deck/Enc. 
FP	   
   -3,700	Lg. Enc. FP/Patio	   -4,100	
Total Adjust.			
   -9,000		 
  685,800		 -113,400	
Adjust. Assessment			
1,683,400		
1,719,400		
1,796,600	
Adjust. Sale Price			
1,891,000		
1,760,800			







	Subject 
Property	21 Olde Hickory	Adjust.
($)	5 Olde 
Hickory	Adjust.
($)	
Proximity 	N/A	Same Street		Same Street		
Sale Price ($)	N/A	N/A		N/A		
Sale Price ($/Sq. Ft.) 	N/A	N/A		N/A		
Assessment	1,720,500	1,863,600
	   	1,732,500		
Assessment ($/Sq. Ft.)	355.92	309.47		381.02		
Sale Date	N/A	N/A		N/A		
Location	Excellent	Excellent		Excellent		
Lot Size	1.156	2.45 	  -19,500	1.879	  -10,900	
Style	Colonial	Colonial	  -13,700	Colonial		
Construction Quality	AA- Superb	AA - Superb		AA - Superb		
Age/Condition	9 Yrs./ Very Good	8 Yrs./
Excellent		4 Yrs./
Very Good	  -24,200	
Room Count	13/4/5 full/
2 half	13/5/5 full/
2 half		11/4/6 full/
2 half	   -9,100	
SFLA	4834	6022	  -87,900	4547	   21,200	
Attic	486/80%	674/60%	   -2,100	453/100%	   -1,200	
Basement	Full Unfin.	Full Unfin.		Full Unfin.		
Garage	3 Car Attach.	3 Car 
Attach.		3 Car 
Attach.		
Fireplaces	4	3	    9,100	2	   18,200	
Decks/Porches	SP/Deck/OFP
Patio	OFP/Deck	    1,200	OFP	    5,000	
Total Adjust.			 -112,900		   -1,000	
Adjust. Assessment			1,750,700		1,731,500	
Adjust. Sale Price						

For the purposes of their analysis, the assessors considered 18 Olde Hickory Path to be the most comparable to the subject property, because of its close proximity to the subject property and the fact that it sold during 2007, close to the relevant assessment date.  Based on the adjusted assessments and/or sales prices of the comparable properties derived through their analysis, the assessors' opinion of value for the subject property was $1,720,500, its assessed value as abated.  

The Board's Ultimate Findings 
On the basis of all of the evidence, the Board found that the appellants met their burden of proving that the assessed value of the subject property, as abated, exceeded its fair cash value.  The appellants presented evidence showing that the overall trend in the subject property's neighborhood was for a decrease in assessed value from the previous fiscal year.  However, the subject assessment represented an increase from the previous fiscal year.   There was no evidence in the record to explain why the subject property would have been an exception to this trend, nor evidence to support a finding that the value of the subject property increased from its value for the previous fiscal year.  
The evidence showed that, despite being older than and in inferior condition to most of the homes on the same street, the subject property had one of the higher assessments.  Only two properties on Olde Hickory Path were assessed for more than the subject property.  The dwellings at both of those properties, 10 Olde Hickory Path and 16 Olde Hickory Path, were newer and substantially larger in living area than the subject property.  The only other property constructed in 2000, like the subject property, was 11 Olde Hickory Path, which was assessed for $620,400 less than the subject property.  The Board found this discrepancy to be persuasive evidence that the subject property was overvalued for the fiscal year at issue.  
The Board agreed with the assessors that 18 Olde Hickory Path was the property most comparable to the subject property.  However, 18 Olde Hickory Path was newer and in better condition than the subject property and also had a slightly larger lot size.  18 Olde Hickory Path sold for $1,900,000 in 2007, and its assessed value for the fiscal year at issue was $1,692,400.  Based on all of the evidence, with particular reliance on 18 Olde Hickory Path, the Board found that the fair cash value of the subject property was $1,685,000.  
Accordingly, the Board issued a decision for the appellants in this appeal and granted an abatement of $550.25.  

				OPINION
Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both were fully informed and under no compulsion. Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).	 
The burden of proof is upon the taxpayer to make out a right to an abatement.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is considered to be valid unless the taxpayer meets its burden and proves otherwise.  Id.  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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
G.L. c. 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."  "The introduction of such evidence may provide adequate support for either the granting or denial of an abatement."  John Alden Sands, et al. v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07, (citing Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308.) (other citations omitted).    
In the present appeal, the appellants introduced persuasive evidence that the subject property's assessed value was greater than its fair cash value.  The evidence showed that the assessed values of most properties in the subject property's neighborhood declined from the previous fiscal year, while the subject assessment represented an increase from the previous fiscal year.  There was no evidence in the record to explain why the subject property would have been an exception to this trend, nor was there evidence to support a finding that the value of the subject property increased from its value for the previous fiscal year.
Furthermore, evidence regarding numerous comparable properties in the subject property's immediate neighborhood was entered into the record.  These properties were similar in style to the subject property and were constructed by the same builder.  However, the subject property was one of the first homes built in the development, and the evidence showed that it was older than, and in inferior quality to, most of the other homes in the neighborhood.  The subject property also had a smaller lot size and less total finished living area than many of the comparable properties.  Nevertheless, the subject assessment was among the highest on Olde Hickory Path.  The Board found this discrepancy to be persuasive evidence that the subject property was overvalued for the fiscal year at issue and found and ruled that the appellants met their burden of proving that the subject property was overvalued.  
	In evaluating the evidence before it, the Board selected among the various elements of value and formed its own independent judgment of fair cash value.  General Electric Co., 393 Mass. at 605; North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 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 Consolidated Gas Co., 309 Mass. 60, 72 (1941).
Because of its location and other similarities, the Board found that 18 Olde Hickory Path was the property most comparable to the subject property.  However, 18 Olde Hickory Path was newer and in better condition than the subject property.  18 Olde Hickory Path sold for $1,900,000 in 2007; for the fiscal year at issue, its assessed value was $1,692,400.  Based on all of the evidence, with particular reliance on 18 Olde Hickory, the Board found and ruled that the fair cash value of the subject property for the fiscal year at issue was $1,685,000.  Accordingly, the Board issued a decision for the appellants in this appeal and granted an abatement of $550.25.  

					  APPELLATE TAX BOARD

									
 By:			__________	___	__
				     Thomas W. Hammond, Jr., Chairman


A true copy,

Attest:						
	       Clerk of the Board

 The appellants originally filed this appeal under the informal procedure, pursuant to G.L. c. 58A, § 7A ("§ 7A").  On May 18, 2009, the assessors timely elected to transfer this appeal to the formal docket.  Pursuant to § 7A, the assessors, "within 30 days of the date of service of the [informal appeal], may elect to have the appeal heard under the formal procedure."  
 Though the appellants used many of the same comparable properties as the assessors, there was a difference in the living area reported by the parties for the comparable homes and the subject property.  The appellants used the total square feet of finished living area for purposes of their analysis.  The assessors reduced the square feet of finished living area for each property to account for the large, open foyer areas.  The figures used by the assessors for square feet of living area, therefore, were lower than the figures used by the appellants.   
 The Board notes that the downward adjustment of $2,800 made by the assessors appears to be an error because both the subject property and 18 Olde Hickory had full, unfinished basements.  

  ATB 2010-586