Dorothy C. Cornetta v. Board of Assessors of the Town of Topsfield (June 11, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DOROTHY C. CORNETTA		v.	     BOARD OF ASSESSORS OF
							THE TOWN OF TOPSFIELD

Docket No. F299411				Promulgated:
							June 11, 2010


	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on real estate located in the Town of Topsfield, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.
	Commissioner Mulhern heard the appeal and, together with Chairman Hammond and Commissioners Scharaffa and Egan, issued a decision for the appellant. 
	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.
		
	Dorothy C. Cornetta, pro se, for the appellant.
	Eldon Goodhue, assessor, for the appellee.




FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence during the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.  
On January 1, 2008, Dorothy C. Cornetta (the "appellant") was the assessed owner of a parcel of real estate improved with a single-family dwelling located at 50 Brookside Road in the Town of Topsfield ("subject property").  For fiscal year 2009, the Board of Assessors of Topsfield ("assessors") valued the subject property at $613,600 and assessed a tax, at the rate of $12.88 per thousand, in the total amount of $7,903.17, which the appellant paid without incurring interest.  On January 6, 2009, the appellant timely filed an abatement application with the assessors.  The assessors denied the abatement application on April 1, 2009.  On April 13, 2009, the appellant seasonably filed an appeal, under the formal procedure, with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction over this appeal.
The subject property is a 0.95-acre parcel of land, located in the Town of Topsfield, improved with a single-family, wood-frame, two-story, Colonial-style dwelling, built in 1975, with clapboard shingles and an asphalt, gambrel-style roof.  The subject home contains 2,972 square feet of living area and has a total of nine rooms, including four bedrooms, as well as two full bathrooms and one half bathroom.  The subject home also features central air conditioning, an attached two-car garage, a deck, and a fireplace.  
The appellant presented her case through her own testimony and the submission of several documents.  She contended that the subject property was overvalued for the following reasons: (1) real estate values in Topsfield were significantly depressed during the fiscal year at issue because of the national economic downturn; (2) the town's water-delivery system to the subject property was faulty, thus compromising the delivery of clean water to the subject property; and (3) wetland conditions in the rear of the subject property negatively affected the subject property's fair market value.
To support her contention that real estate values in Topsfield were depressed, the appellant cited three valuation sources that listed Essex County statistics for calendar year 2008.  First, the Warren Group found that a 10.6% decline in Essex County property values had occurred between 2007 and 2008.  Second, according to the S&P Case-Shiller Index, there was an 18% decline in property values for Essex County during 2008.  Third, the on-line Trulia Report listed a 29.3% decline in valuations for Topsfield properties during 2008.  
The appellant also presented a sales-comparison analysis, citing five examples of purportedly comparable properties that sold between March 16, 2007 and June 15, 2009.  The sales-comparison data submitted by the appellant is reproduced in the following table:
Address	Valuation by Zillow	Sale Date	Sale Price	% Value Decrease	Living Space (sf)	BR/BA	
42 Averill St.	$477,000	6/15/07	$436,000	8.6	2,271	4/2.5	
18 Candlewood Dr.	$624,000	3/16/07	$568,000	6.1	3,300	4/3.5	
25 Brookside Rd.	$542,000	3/26/09	$514,000	5.2	nv	4/nv	
8 Meetinghouse	$477,500	6/18/08 	$325,000	32	1,755	4/1.5	
39 Averill St.	$544,000	5/30/08 	$486,000	11	2,080	4/3	

To support her contention that the water system to the subject property was faulty, the appellant explained in her testimony that public water to the subject property is contaminated by particulates and rust.  To obtain clean water, appellant installed two filtration systems in the subject property, an electronic system and a "wet system"; the appellant and any subsequent property owner is responsible for the cost of the electronic system, and the Town supplies filtering materials for the "wet system."  Moreover, she explained that the water department must periodically enter the subject home, disconnect the water meter and "flush" the water line, a process which lasts between one to three days.  The appellant submitted a photocopy of a photograph depicting the water filtration system located within the subject home.  She also explained that the filtration system present at the subject property was not guaranteed to resolve the water issue in the absence of more elaborate repairs by the Town, and that the faulty water-delivery system would thus have to be disclosed to a potential buyer of the subject property.
Finally, to support her contention that the wetland conditions had negatively affected the fair market value of the subject property, the appellant testified that the Topsfield Conservation Commission forbids tree trimming in areas which abut wetlands, like the rear of the subject property.  She explained that the inability to trim the trees has caused the wetland area to grow.  The appellant submitted a photocopy of a picture of the rear of the subject property that depicted thick vegetation. 
In defense of the subject assessment, the Assessor, Eldon Goodhue, presented a comparable-sales analysis using five purportedly comparable properties.  One of the properties, 18 Candlewood Drive, was also a comparable-sale property used by the appellant.  The five comparable-sale properties were all in the same neighborhood as the subject property, they were all improved with Colonial homes of reportedly "average" condition, with living spaces between 2,378 to 2,972 square feet, and they all sold during 2007 or 2008.  After applying his adjustments for time, building differences and land size, Mr. Goodhue arrived at adjusted sale prices between $591,100 and $676,700.  The subject assessment of $613,600 was towards the lower end of this range.  
Mr. Goodhue acknowledged that the subject property was impacted by a faulty water-delivery system.  Mr. Goodhue did not contend that any of his five purportedly comparable properties were likewise affected by a faulty water-delivery system.  Mr. Goodhue also confirmed that Topsfield has an abundance of wetland property.
The Board ultimately found that the appellant's evidence with respect to the economic downturn - including the Warren Group, Trulia Report and S&P/Case-Shiller Index statistics - was too broad and not specific to the fair cash value of the subject property.  For reasons explained further in the Opinion, the Board found that arm's-length comparable sales are more probative of a subject property's fair cash value than general, regional statistics.  The appellant did offer a comparable-sales analysis with five properties; however, she failed to show the comparability of her purportedly comparable properties and the subject property in key respects, including the specific neighborhood where her comparable properties were located and their conditions in comparison to the subject property.  Furthermore, she failed to make adjustments for differences between the comparable properties and the subject property.
The Board also found that the appellee, by contrast, presented five sales of properties which Mr. Goodhue demonstrated to be sufficiently comparable to the subject property, and his analysis applied appropriate adjustments to these properties.  Therefore, the Board found that his range of adjusted sale prices was probative evidence of the subject property's fair market value for the fiscal year at issue.
However, the Board found that the appellant met her burden of proving that other factors, particularly the faulty water-delivery system and the overgrowth of wetlands to the rear of the subject property, negatively impacted the fair market value of the subject property.  The Board found that the appellant's testimony was credible and well substantiated, and Mr. Goodhue acknowledged the presence of these issues.  Considering the range of values offered by Mr. Goodhue and the existence of the water and wetland issues, the Board found that the fair cash value of the subject property was $582,900, approximately a five-percent reduction in the assessed value for the fiscal year at issue.  
Accordingly, the Board issued a decision for the appellant ordering an abatement of $395.42.

OPINION
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 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 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)). 
The Board has repeatedly found that 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.  E.g., 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).  The statistical data offered by the appellant in this appeal did not provide crucial factors for determining the comparability of individual properties to the subject property, such as the specific neighborhood where a purportedly comparable property is located, its gross living area, number of bathrooms, and its condition.  In the instant appeal, the Board found that the appellant's generalized statistical data from the Warren Group, the Trulia Report and the S&P/Case-Shiller Index was not sufficiently probative of the fair cash value of the subject property.  The Board was thus not persuaded by the appellant's statistical evidence. 
The appellant did provide a comparable-sales analysis using five purportedly comparable properties.  To be persuasive evidence of fair cash value, however, comparable-sales analyses must make allowances for various factors which would otherwise cause disparities in the comparable properties' sale prices.  See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082 (and the cases cited therein).  In this appeal, the appellant's analysis failed to provide sufficient information with respect to key similarities and differences between the purportedly comparable properties and the subject property, such as location and condition.  Moreover, the appellant failed to provide any adjustments for differences between her comparable properties and the subject property.  
In contrast, the appellee provided a comparable-sales analysis using five properties which were shown to be within the same neighborhood as the subject and included homes of comparable styles, size and condition.  The appellee further adjusted the comparables to account for key differences, thus yielding a range of adjusted sale prices which the Board found and ruled to be probative of the subject property's fair market value.  The subject assessment was at the lower end of this range.  The Board thus found and ruled that the appellee's comparable-sales analysis was probative evidence of the subject property's fair market value.
However, an assessment's failure to account for a property's defects will warrant a reduction in assessed value to account for the impact on fair cash value of those defects.  See, e.g., Hughes v. Board of Assessors of the City of Quincy, Mass. ATB Findings of Fact and Reports 2005-420, 424-5, 428 (finding an assessment to be excessive where the assessors had failed to consider documented deficiencies in the subject property).  In the present appeal, the Board found credible the appellant's evidence with respect to defects present at the subject property, specifically the faulty water-delivery system and the overgrowth of protected wetlands to the rear of the subject property.  The Board found and ruled that the appellee erred by not considering these factors in the subject assessment.  
The fair cash value of property cannot be proved 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).  In evaluating the evidence before it, the Board may select among the various elements of value and form 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 credibility of witnesses, the weight of the evidence, and 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).  After considering the credibility of the appellant's evidence with respect to the faulty water-delivery system and the overgrowth of wetlands abutting the rear of the subject property, and the effects of these factors on the value of the subject property as of the relevant assessment date, the Board found and ruled that the subject assessment should be reduced by approximately five percent, or $30,700.  
Accordingly, the Board decided this appeal for the appellant and ordered an abatement of $395.42.      
		 

APPELLATE TAX BOARD

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



A true copy,

Attest:	______	_____	_____
	      Clerk of the Board

 The valuation which appellant cited from Zillow's website (http://www.zillow.com) contained no valuation date or explanation as to the basis of the value.  Further, the valuation constituted inadmissible hearsay, with no opportunity for cross-examination by the assessors.  Accordingly, the Board gave no weight to this data. 
 See note 1, supra.
 "BR" refers to bedrooms; "BA" refers to bathrooms. 
 No value given.

ATB 2010-543