Virginia W. Ryan v. Board of Assessors of the City of Worcester (June 20, 2013)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


VIRGINIA W. RYAN 	          v.		BOARD OF ASSESSORS OF 
		          THE CITY OF WORCESTER

Docket No. F314090  				Promulgated:
		  						June 20, 2013


	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 the City of Worcester ("assessors" or "appellee") to abate a tax on certain real estate owned by and assessed to Virginia W. Ryan ("Ms. Ryan" or "appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2011 ("fiscal year at issue").
	Commissioner Chmielinski ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellee in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.
	Virginia W. Ryan, pro se, for the appellant.
	William Ford, Chief Assessor, for the appellee.

                 FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2010, the appellant was the assessed owner of a 0.23-acre parcel of land improved with a bungalow-style single-family dwelling located at 21 Arbutus Road in Worcester ("subject property").  For fiscal year 2011, the assessors valued the subject property at $230,200, and assessed a tax thereon, at the rate of $16.06 per thousand, in the total amount of $3,697.01.  
The appellant timely paid the tax due without incurring interest.  On January 31, 2011, the appellant timely filed an Application for Abatement with the assessors.  The assessors denied the appellant's abatement application by notice dated May 1, 2011.  The appellant timely filed her appeal with the Appellate Tax Board ("Board") on July 25, 2011.  Based on the foregoing, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal. 
The dwelling on the subject property was built in 1926.  It contained 7 total rooms, including four bedrooms, and also had one full bathroom and one half bathroom.  The property record card listed it as being in average condition.  
The appellant's primary argument was that the subject property, which she characterized as a Cape-style home, was overvalued because the assessors improperly treated it as a 1.75-story dwelling, while in actuality, she contended, it was a 1.5-story dwelling.  The appellant testified that prior to the fiscal year at issue, the subject property had historically been assessed as a 1.5-story dwelling, and this was the first time it was treated as a 1.75-story dwelling for assessment purposes.  The appellant conceded that there was adequate ceiling height on the second floor to walk without "ducking," with the exception of the doorways to the unfinished attic spaces towards the rear of the second floor.  
The appellant also argued that the assessors overstated the subject property's finished living area.  In support of her position, the appellant offered a documentary submission which included a letter from a local real estate broker who had purportedly measured the subject property.  The broker did not testify at the hearing of this appeal.  According to the letter, the broker measured the first floor of the subject property at 1,016 square feet, and the "half-dormered" second floor at 508 square feet, for a total of 1,524 square feet of finished living area.  However, appended to the letter was an "assessment and sales report," which listed the subject property's finished living area as 1,593 square feet.  Also contained in the submission were several pictures of the subject property and the appellant's own measurements of the subject property.  According to the appellant's measurements, the subject property's second floor had 599.2 square feet of finished living area. 
In addition to these materials, the appellant offered printouts downloaded from the assessors' webpage which contained "parcel summaries" of two bungalow-style properties located in Worcester.  The first property, located at 13 Merchant Street, had a total living area of 1,048 square feet, with 712 square feet on the first floor and 336 square feet on the second floor.  Unlike the subject property, which had a large shed dormer on the front of the second story and a window dormer on the rear, 13 Merchant Street had only a window dormer on the front of the second story.  It was classified as a 1.5-story residence, and its assessed value for fiscal year 2011 was $145,600.  
The second property was located at One Inwood Road, and had a total finished living area of 1,170 square feet, with 648 square feet on the first floor and 486 square feet on the second floor.  Like the subject property, One Inwood Road had a large shed dormer on the front of the second story.  Although the second page of the "parcel summary" report indicated that One Inwood Road was classified as a 1.5-story home, the last page, and the measurements contained thereon, revealed that its second floor was treated as being 0.75 stories.  The assessed value of One Inwood Road for fiscal year 2011 was $158,500. 
The appellant did not offer her own opinion of the subject property's fair cash value, other than to say that its fair cash value was less than its assessed value.  
The assessors presented their case-in-chief through the testimony of Chief Assessor William Ford and through the submission of several documentary exhibits, including relevant jurisdictional documents, the property record card for the subject property, a photograph of the subject property, and copies of two pages from an industry manual entitled "Sample Diagrams - Residential Building Story Heights."  One of those diagrams depicted a home with a window dormer, which was considered a 1.5-story home, while another depicted a home with a shed dormer, which was considered to be a 1.75-story home.
Mr. Ford testified regarding industry practices for assessing homes like the subject property.  Mr. Ford stated that because of the subject property's atypical roof pitch, which was slightly less than the standard roof pitch of 12, it did not exactly match the standards designated for most 1.75-story residences; however, it exceeded the standards for a 1.5-story residence.  Further, he stated that industry standards allow stories to be increased only in increments of 0.25, and do not allow for a property to be graded as a 1.6 or 1.65-story residence, for example.  Mr. Ford stated that, in his opinion, because of the large shed dormer, the subject property was properly characterized as a 1.75-story residence, as delineated in the industry manual sample diagram. 
Mr. Ford also testified regarding One Inwood Road in Worcester, which was offered as a comparable assessment by the appellant, who contended that it was classified as a 1.5-story residence.  Mr. Ford testified that it was actually classified and assessed as a 1.75-story residence, as reflected by the measurements and the notation "upper ¾ finished" on the last page of the "parcel summary" report.
On the basis of all of the evidence, the Presiding Commissioner found that the record supported the assessors' classification of the subject property as a 1.75-story residence.  The Presiding Commissioner found that, contrary to the appellant's description, the subject property was a bungalow-style home, not a Cape-style home, and that it had a large shed dormer at the front of the second floor and a window dormer at the rear of the second floor.  The existence of the large shed dormer was apparent from the photographs, and even the appellant's handwritten notations described it as a "shed dormer."  
Moreover, the Presiding Commissioner found that the subject property most closely matched the depiction of a 1.75-story residence contained in the industry manual's diagrams introduced by Mr. Ford.  According to the documentary evidence and the testimony of the appellant, the subject property had three full bedrooms on the second floor, and it was possible to walk throughout the second floor without "ducking," except for the entrances to two small attic storage spaces.  Even the purportedly comparable assessment properties offered into evidence by the appellant supported the conclusion that the subject property was a 1.75-story residence, as explained by Mr. Ford.  Although the appellant offered the "parcel summary" for One Inwood Road to demonstrate that it was classified as a 1.5-story residence, the "parcel summary" actually established that it was assessed as a 1.75-story residence.  One Inwood Road, like the subject property, had a large shed dormer on the second floor, while 13 Merchant Street - the appellant's other comparable assessment property - had only a window dormer, and was assessed as a 1.5-story residence by the assessors.   The Presiding Commissioner found that this evidence supported the assessors' conclusion that the subject property was properly classified as a 1.75-story residence.  
With respect to the appellant's assertion that the assessors overstated the subject property's finished living area, the Presiding Commissioner found that the discrepancy between the assessors' figures and the measurements advanced by the appellant arose largely because of the 0.75 multiplier that the assessors utilized for the dwelling's second floor.  Because the Presiding Commissioner agreed with the assessors that the subject property was properly considered a 1.75-story residence, the Presiding Commissioner afforded more weight to the assessors' measurements of finished living area.  Moreover, the appellant's documentary submission contained conflicting measurements for the subject property's second floor and differing measurements for its total finished living area.  Because the appellant offered three inconsistent measurements of the subject property's finished living area, the Presiding Commissioner placed less weight on her measurements.  
Lastly, the Presiding Commissioner found that the appellant failed to introduce sufficient or credible evidence to support a finding that the fair cash value of the subject property was lower than its assessed value for the fiscal year at issue.  The appellant offered no evidence of recent sales of comparable properties, nor did she offer her own opinion of the subject property's fair cash value.  Instead, she offered assessment information for two properties in Worcester featuring bungalow-style homes - 13 Merchant Street and One Inwood Road.  Both properties had approximately half of the finished living area of the subject property and smaller lot sizes, and they were located in different neighborhoods than the subject property.  Despite the dissimilarities from the subject property, the appellant failed to make any adjustments to the assessed values of her comparable assessment properties to account for these differences.  Because the appellant failed to make appropriate adjustments to her comparable assessment properties to account for their obvious differences from the subject property, the Presiding Commissioner placed no weight on her comparable assessment evidence.   
In conclusion, on the basis of all of the evidence, the Presiding Commissioner found and ruled that the appellant failed to demonstrate error in the assessors' method of valuation or to present credible and persuasive evidence of overvaluation.  Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving her entitlement to an abatement, and he issued a decision for the appellee in this appeal. 

				        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 taxpayer 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 . . . by exposing flaws or errors in the assessors' method of valuation[.]'" General Electric Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)). Here, the appellant's primary argument was that the assessors improperly classified the subject property as a 1.75-story residence when it should have been classified, in her opinion, as a 1.5-story residence.  However, the evidence showed that the subject property was not a "Cape-style" home, as the appellant characterized it, but instead was a bungalow-style home with a large shed dormer on the front of the second floor and a window dormer to the rear of the second floor.  The evidence further showed that the subject property had three full bedrooms on the second floor, with adequate ceiling height such that a person could walk throughout nearly all of the second floor without "ducking."  Additionally, industry manuals introduced into evidence by the assessors showed that homes with large shed dormers, like the subject property, are considered 1.75-story homes for assessing purposes.  On the basis of the foregoing, the Presiding Commissioner found and ruled that the assessors properly classified the subject property as a 1.75-story residence, and he therefore rejected the appellant's argument that the assessors' classification of the subject property was erroneous.  
The appellant also disputed the assessors' measurement of the subject property's finished living area.  However, as discussed above, the Presiding Commissioner found that part of the discrepancy in the measurement of the subject property's living area was related to the 0.75 multiplier used by the assessors for the dwelling's second floor. Having found that the assessors properly classified the subject property as a 1.75-story residence, the Presiding Commissioner gave more weight to their measurement of its finished living area.  Furthermore, the appellant offered three inconsistent measurements of the subject property's finished living area, and the Presiding Commissioner therefore afforded little weight to her measurements.  
 	A taxpayer may also present persuasive evidence of overvaluation "'by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. at 600 (citation omitted).   This evidence may include the property owner's opinion of fair cash value.  See CBI Partners Limited Partnership v. Town of Chatham, 41 Mass. App. Ct. 923, 924 (1996) (quoting Southwick v. Massachusetts Turnpike Authority, 339 Mass. 666, 668 (1959) ("'An owner of real estate . . . having adequate knowledge of his property may express an opinion as to its value.'")).   
Recent sales of comparable properties in the market also "furnish strong evidence of market value[.]" 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).   Additionally, evidence of the assessed values of comparable properties may provide probative evidence of fair cash value.  See G.L. c. 58A, § 12B; John Alden Sands 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).  In either case, whether comparable sales or comparable assessments, adjustments must be made to values to account for differences between the subject property and the properties offered for comparison. See Lareau v. Assessors of Norwell, Mass. ATB Findings of Fact and Reports 2010-879, 889-90 ("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.") (citation omitted).  
	In the present appeal, the record was essentially devoid of evidence indicating that the subject property was overvalued.  The appellant did not offer her opinion of the fair cash value of the subject property, nor did she offer evidence of recent sales of comparable properties.  The only valuation evidence entered into the record by the appellant was the assessment information for two bungalow-style homes located in Worcester.  However, both properties had smaller lot sizes and significantly less finished living area than the subject property, and they were also located in different neighborhoods than the subject property.  Nevertheless, the appellant made no adjustments to the assessed values of her comparable assessment properties to account for their differences from the subject property.  Because the appellant failed to make any adjustments to the assessed values of her comparable assessment properties despite their obvious differences from the subject property, the Presiding Commissioner placed no weight on her comparable assessment evidence.   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 conclusion, on the basis of all of the evidence, the Presiding Commissioner found and ruled that the appellant failed to demonstrate error in the assessors' method of valuation or to present credible and persuasive evidence of overvaluation.  Accordingly, the Presiding Commissioner found and ruled that the appellant failed to meet her burden of proving her entitlement to an abatement, and therefore issued a single-member decision for the appellee in this appeal.

 						THE APPELLATE TAX BOARD

				By: _____________________________________
					Richard G. Chmielinski, Commissioner

A true copy,

Attest: __________________________
		Clerk of the Board

 The property record card and tax bill for the subject property listed the owners of the subject property as Virginia W. Ryan and Mae L. Ryan, but Virginia W. Ryan filed and prosecuted the appeal in her name only, and accordingly is referred to herein as the appellant.  
 The abatement denial notice was dated May 1, 2011, which was a Sunday. Although the denial notice did not state the date that the assessors voted to deny the abatement application, as required by G.L. c. 59, § 63, the Presiding Commissioner inferred that the assessors voted to deny the abatement application on or before the last business day preceding May 1, 2011, which was Friday April 30, 2011.  

ATB 2013-671