Alan and Susan Sliski v. Board of Assessors of the Town of Lincoln (September 17, 2014)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD
	
ALAN AND SUSAN SLISKI  	v.     	BOARD OF ASSESSORS 	
            	OF THE TOWN OF LINCOLN

Docket Nos. F306087, F306441,        	Promulgated:
		  F310494, F310495		  	September 17, 2014

 
	These are appeals 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 Town of Lincoln ("assessors" or "appellee"), to abate taxes on certain real estate located in the Town of Lincoln owned by and assessed to Alan and Susan Sliski ("appellants") under G.L. c. 59, §§ 11 and 38 for fiscal years 2010 and 2011 ("fiscal years at issue").  
	Commissioner Mulhern heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Rose and Chmielinski joined him in decisions for the appellee.
 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.

Alan and Susan Sliski, pro se, for the appellants.

Harold Scheid, principal assessor for the appellee.
  

FINDINGS OF FACT AND REPORT
On the basis of testimony and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact. 
On January 1, 2009 and January 1, 2010, the relevant assessment dates for the fiscal years at issue,  Alan and Susan Sliski (the "appellants"), resided at a parcel of land improved with a single-family residence, identified on the appellee's Map 116 as Block 22, Lot 0 and with an address of 273 Concord Road in Lincoln (the "subject residential property").  The appellants were also the owners of record of a parcel of unimproved land, adjacent to the subject residential property, identified on the appellee's Map 116 as Block 23, Lot 0 and with an address of 0 Concord Road in Lincoln (the "subject excess property").    
For fiscal year 2010, the assessors valued the subject residential property at $726,397 and assessed a tax thereon, at the rate of $11.47 per thousand, in the total amount of $8,331.77.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax due without incurring interest.  The appellants timely filed an abatement application with the assessors, which the assessors denied on February 19, 2010.  The appellants seasonably filed their Petition Under Formal Procedure with the Board on May 19, 2010.  On the basis of the preceding facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for Docket No. F306087.
Also for fiscal year 2010, the assessors valued the subject excess property at $39,500 and assessed a tax thereon, at the rate of $11.47 per thousand, in the total amount of $453.07.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax due without incurring interest.  The appellants timely filed an abatement application with the assessors, which the assessors partially granted on February 19, 2010, reducing the subject excess property's assessed value to $2,100 and the corresponding tax to $24.09.  Not satisfied with this valuation, the appellants seasonably filed their Petition Under Formal Procedure with the Board on May 6, 2010.  On the basis of the preceding facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for Docket No. F306441. 
For fiscal year 2011, the assessors valued the subject residential property at $706,297 and assessed a tax thereon, at the rate of $12.37 per thousand, in the total amount of $8,736.89.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax due without incurring interest.  The appellants timely filed an abatement application with the assessors, which the assessors denied on January 7, 2011.  The appellants seasonably filed their Petition Under Formal Procedure with the Board on February 23, 2011.  On the basis of the preceding facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for Docket No. F310494.
Also for fiscal year 2011, the assessors valued the subject excess property at $2,100 and assessed a tax thereon, at the rate of $12.37 per thousand, in the total amount of $25.98.  In accordance with G.L. c. 59, § 57, the appellants timely paid the tax due without incurring interest.  The appellants timely filed an abatement application with the assessors, which the assessors denied on January 7, 2011.  The appellants seasonably filed their Petition Under Formal Procedure with the Board on February 23, 2011.  On the basis of the preceding facts, the Board found and ruled that it had jurisdiction to hear and decide the appeal for Docket No. F310495.
The subject residential property is a 4.665-acre irregularly ("porkchop") shaped parcel of land with a 0.125-acre prime site, an excess site that is valued, assessed and taxed as undevelopable land and an excess site that is valued, assessed and taxed under G.L. c. 61A as productive woodland and pasture.  The subject residential property fronts Concord Road, which is Route 126.  The south side of the subject residential property abuts the subject excess property.  
The subject residential property is improved with a single-family deckhouse that was built in 1986 ("subject home").  According to the property record card on file with the appellee, the subject home contains 2,650 square feet of gross living area and is comprised of a total of eight rooms, including four bedrooms, as well as two and one-half bathrooms.  The kitchen and bathrooms are rated as being in average condition.  The subject home is heated by forced hot air fueled by oil.
The subject home also includes: a 2,594-square-foot basement, a 1,271-square-foot portion of which is finished; a 1,064-square-foot wooden deck; and a 603-square-foot garage. 
The subject excess property is a 0.07-acre triangle-shaped tract of land, the short side of which has frontage along Concord Road/Route 126, another side of which abuts the subject residential property, and the third side of which follows the Wayland town line.  A portion of the subject excess property lies in the neighboring town of Wayland.  The subject excess property is valued, assessed and taxed under G.L. c. 59 as undevelopable land.
The appellants' case-in-chief consisted of the testimony of the appellant, Mr. Sliski, and several documents, including: information and correspondence from the assessors; property record cards for the subject residential property, the subject excess property and two neighboring properties - 267 Concord Road and 263 Concord Road; and graphs and charts constructed by the appellants to support their theories. 
Mr. Sliski testified concerning the purchase of the subject excess property.  He explained that the appellants had expressed an interest in purchasing the subject excess property to the original owner, Paul Moore, when the appellants purchased the subject residential property in 1984.  However, in 1986, Mr. and Mrs. Moore then sold some of their property, including the land at 0 Concord Road, to a developer.  The appellants continued to express an interest in purchasing the subject excess land to the original owners and to the developer.  In 2000, the appellants were approached to see if they were still interested in purchasing the subject excess property, as the developer no longer had an interest in developing on that portion of the land.  On October 13, 2000, the appellants purchased the subject excess property from the developer for $100. 
The appellants contended that the subject properties were misclassified, overvalued and disproportionately assessed.  They advanced several arguments criticizing the methods by which the assessors classified and valued the subject properties.
First, they claimed that the subject properties were incorrectly assigned to neighborhood code MA, with a valuation factor of 100%.  The appellants criticized what they viewed as the random assignment of neighborhood codes, contending that Lincoln properties in the XP neighborhood were "scattered around the town with no apparent pattern."  They argued that the subject properties were located along a busy street, and that other residential properties located closer to Lincoln Center on an equally busy road were assigned to neighborhood XP with a valuation factor of 57%.  Moreover, 267 Concord Road and 263 Concord Road -- which were both subdivided from the same lot as the subject residential property and were purchased the same year as the subject residential property, but located closer to the town center -- were assigned to neighborhood EV, at a valuation factor of 80%.  The appellants cited the Lincoln Board of Assessors Fiscal Year 2010 Revaluation Residential Land Valuation Narrative for their contention that the subject residential property, located along Route 126, was in a less desirable location and thus should not be assigned to neighborhood MA:
Location and site features like privacy and the presence of views are the primary determinants of land value.  Generally, property located along Route 2 has been found to be least desirable and valued accordingly.  Similarly, properties abutting the MBTA railway and Routes 117 and 127 tend to carry lower values.

The appellants next contended that the values that the assessors assigned to the various components of the subject properties were arbitrary and not based on available sales data.  They contended that the DOR Division of Local Services' FVAC Chapter Land Recommended Value - Fiscal Year 2010 guidelines were not followed with respect to the valuations of the subject residential property's productive woodland and farmland.  They further contend that the DOR requires that the assessors publicize their methodology by which they determined the land valuations. 
The appellant also contended that the subject properties were misclassified.  They claimed that a substantial portion of the subject residential property was wetlands but was not classified as such.  They also claimed that the subject excess property was misclassified as prime site instead of as undevelopable.  The appellants submitted a copy of a computer screen maintained by the Town of Lincoln entitled "Billing Installment Roll," as of September 30, 1999, that listed the subject excess property as being classified as "undevelopable land" as of September 30, 1999.  
The appellants also contended that the subject excess property was overvalued.  They offered a purportedly comparable assessment, abutting lot 0 Pine Ridge Road, a 3.97-acre parcel of undevelopable land.  The appellants contended that for fiscal year 2010, a 0.573-acre portion of this land was valued at $3,438, which translates to about $6,000 per acre.  The appellants contended that this same unit value should be applied to the subject excess property, which would result in a valuation of about $420.  The appellants submitted the property record card for 0 Pine Ridge Road.  From the Board's review, it appears that, while the property record card further categorizes the land at 0 Pine Ridge Road into three categories of undevelopable land - access, wetland and unbuildable - the total assessment for the 3.97 acres was $105,000.  The appellants submitted no other evidence to compare or contrast their purportedly comparable property with the subject excess property. 
Finally, the appellants contended that the assessors' application of farmland status to the subject residential property was incorrectly applied.  They opined that the assessors should have first categorized the various components of the subject residential property, which would have resulted in lower values for those components, and then applied the farmland status to further reduce the value of the real estate.  This method, they opined, would have resulted in a more significant local tax benefit.
The assessors' case-in-chief consisted of the testimony of Harold Scheid, assessor, and the submission of the requisite jurisdictional documents.  
Mr. Scheid explained the conditions of the sale of the subject excess property to the appellants.  He testified that, because the prior owner, who lived next door, directly contacted the appellants to negotiate the sale, the subject excess property had not been exposed to the market.  Therefore, the appellee considered the sale of the subject excess property not to be an arm's-length sale.  Moreover, Mr. Scheid explained that the appellee agreed with the appellant that the subject excess property was unbuildable, but that the subject assessment already took that condition into account.  Additionally, the fiscal year 2010 property record card for the subject excess property indicated that the assessors classified the subject excess property under Code 132 as undevelopable land.  Mr. Scheid further defended the subject assessments, claiming they were in keeping with relevant sales data of comparable properties. 
On the basis of the evidence of record, the Board found that the appellants' evidence pertaining to the classification of the certain components of the subject properties, the neighborhood assignments, and the order of applying classifications, did not provide relevant evidence as to the fair market value of the subject property as a whole.  With respect to the appellants' evidence consisting of purportedly comparable assessments that were documented solely by property record cards, the appellants failed to identify any differences between the subject property and their purportedly comparable properties and failed to adjust for these differences to produce meaningful evidence of fair cash value.  Therefore, the Board found the appellants' analysis lacked persuasive value.  
Concerning the appellants' purchase of the subject excess property in October of 2000, the Board agreed with the appellee that the sale was not exposed to the market and therefore not at arm's length.  Therefore, the Board afforded no weight to the $100 sale price.  Moreover, the Board found that the appellants failed to prove that the subject excess property's assessment did not already take into account the fact that it was undevelopable, particularly when the property record card clearly indicates that the subject excess property was classified as such.  
The Board thus found that the appellants failed to meet their burden of proving fair market values for the subject properties that were less than the assessed values for the fiscal years at issue.  Accordingly, the Board issued decisions for the appellee.
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 appellants have the burden of proving that the subject properties have lower fair market values than the values 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, taxpayers "'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 attempted to expose flaws and errors in the assessors' method of valuation.  Most of their contentions addressed only the valuation or classification of the various land components of the subject properties.  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.  Here, the appellants' contentions relative to the misclassifications of the various portions of the subject properties, either as wetlands or undevelopable, did not address the issue of whether the subject assessments, as a whole, reflect the fair cash values of the subject properties for both fiscal years at issue.  See Pistorio v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2010-206, 214-15.  
Likewise, the appellants' argument that the subject properties were assigned to the wrong neighborhood and valued at 100%, as opposed to a lower percentage of value, also did not address the assessments as a whole.  These contentions, therefore, were not sufficient to meet the appellants' burden of proving that the subject properties did not reflect their fair market values.
The appellants also offered purportedly comparable assessments to challenge the subject assessments.  General Laws 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 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.  However, the assessments in a comparable-assessment analysis, like the sale prices in a comparable-sales analysis, must be adjusted to account for differences with the subject property.  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.").  See also Appraisal Institute, The Appraisal of Real Estate 307 (13th ed. 2008) ("After researching and verifying transactional [or assessment] data and selecting the appropriate unit of comparison, the appraiser adjusts for any differences.").  
	In the present appeals, the appellants presented only limited comparable assessment data for 267 Concord Road and 263 Concord Road, using these properties to argue that the subject properties were incorrectly assigned to neighborhood MA, but otherwise failing to compare the various features of the subject properties with these purportedly comparable properties.  The appellants also offered the valuation of a 0.573-acre portion of the purportedly comparable property at 0 Pine Ridge Road in support of their contention that the subject excess property was overvalued.  The Board found that, from the limited data offered by the appellants, it was unable to compare the various features of the subject residential and subject excess properties with the purportedly comparable properties.  The Board thus found that the appellants' evidence was insufficient to meet its burden of proving that the subject properties were overvalued for the fiscal years at issue.
The appellants also presented their purchase in 2000 of the subject excess property for $100 as evidence of its fair cash value.  Actual sales of the subject property generally provide "very strong evidence of fair market value, for they represent what a buyer has been willing to pay to a seller for [the] particular property [under appeal]."  New Boston Garden Corporation v. Assessors of Boston, 383 Mass. 456, 469 (1981), (quoting First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971)).  However, "the evidentiary value of such sales in less than arm's-length transactions is diminished."  New Boston Garden Corp., 383 Mass. at 469 (quoting Jordan Marsh Co. v. Assessors of Malden, 359 Mass. 106, 108 (1971).  Thus, the circumstances surrounding actual sales of the subject property must be scrutinized.  See Pepsi-Cola Bottling Co. v. Assessors of Boston, 397 Mass. 447, 449 (1986).  The Board found that the appellants purchased the subject excess property in a sale that was brokered by the next-door neighbor and was not exposed to the market.  The Board thus ruled that the subject excess property's actual sale price was not entitled to any weight. 

Conclusion
Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject properties were overvalued for the fiscal years at issue.  On this basis, the Board decided these appeals for the appellee.


             				THE APPELLATE TAX BOARD

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



A true copy,

Attest: _____________________________
            Clerk of the Board

   When the subject residential property and the subject excess property are mentioned together, they will be referred to herein as the "subject properties."
   This amount is exclusive of a Community Property Act ("CPA") surcharge of $215.54.
  This is exclusive of a CPA surcharge of $225.00.
  The Board found that this reference to Route 127 was a typographical error and that the author(s) intended to reference Route 126, as there is no Route 127 in Lincoln.

ATB 2014-597