Steven Byrne v. Board of Assessors of the Town of Norwell (August 3, 2010)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


STEVEN BYRNE       	       v.     	   BOARD OF ASSESSORS OF                        
						        THE TOWN OF NORWELL
 
Docket No. F301345				   Promulgated:
		  		   			   August 3, 2010

	This is an appeal under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65 from the refusal of the appellee Board of Assessors of the Town of Norwell ("assessors" or "appellee") to abate taxes on real estate located in Norwell, owned by and assessed to the appellant, Steven Byrne, ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.
Commissioner Rose ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellant 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 appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.
Steven Byrne, pro se, for the appellant. 
 
Barbara Gingras, Assistant Assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony 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 appellant was the assessed owner of a parcel of real estate located at 143 Pleasant Street in Norwell, Massachusetts ("subject property").  For fiscal year 2009, the assessors valued the subject property at $467,400 and assessed taxes thereon, at the rate of $11.75 per $1,000, in the amount of $5,491.95, plus a Community Preservation Act assessment of $129.61.  The tax was timely paid without incurring interest.  The appellant filed an abatement application with the assessors on January 30, 2009, which the assessors denied on February 23, 2009.  On May 19, 2009, the appellant seasonably filed his appeal with the Board.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction over this appeal.  
The appellant presented his case through his own testimony and the submission of a written statement that he prepared, as well as numerous photographs of the subject property.
The subject property consists of a 1.84-acre parcel of land improved with a single-family, Colonial-style dwelling, built in approximately 1845.  The dwelling originally contained ten rooms, including four bedrooms, and also one full bathroom and one half-bathroom.  According to the property record card for the subject property, the total living area is 2,622 square feet.  Also located on the property is a barn with an attached well house.
	According to the appellant's testimony, the subject property was in need of substantial repair and renovation when he purchased it in 1994.  Consequently, the appellant had "gutted" substantial areas of the house as part of the renovation process, but continues to live in only a small area of the house while gradually conducting the renovations himself. The appellant testified that the subject property was overvalued because much of the living area was actually unfinished and/or uninhabitable due to the renovations and deteriorated condition of the house.  
The appellant also testified that the barn has structural issues and that he has applied for a demolition permit to raze the structure.  As of the relevant valuation date, however, the structure still existed.  Further, the appellant claimed that the roof of the dwelling requires significant repair, the flashing for the chimneys is deteriorated and leaking, the dwelling's clapboards and trim need replacement, and the electrical and plumbing systems needed to be replaced.  The appellant offered into evidence numerous photographs depicting the subject property's deteriorated condition.  
The appellant included in his written narrative two purportedly comparable sales and one comparable assessment.  Comparable sale number one is located at 39 Oak Street.  This property consists of a 21,780 square foot parcel improved with a circa 1910 Colonial-style dwelling with a finished living area of 1,799 square feet.  The property has fire damage, which dates back to 1974, and needs a new septic system.  This property sold on May 11, 2007 for $225,000 
Comparable sale number two is located at 119 High Street.  This property consists of a 1.1-acre parcel improved with a circa 1900 Colonial-style dwelling with a finished living area of 1,534 square feet.  Mr. Byrne testified that this property's overall condition closely resembles the subject property.  This property sold on March 7, 2007 for $279,900.
Lastly, Mr. Byrne offered into evidence the property record card for 393 River Street, which is a 1.02-acre parcel improved with an antique, Colonial-style dwelling built in the early nineteenth century with a finished living area of 2,627 square feet.  For fiscal year 2009, this property was assessed at $580,900, with the primary site assessed at $331,700, $57,100 less than the subject property.  As evidenced by the property record cards for the subject property and 393 River Street, the assessors applied a 15% upward adjustment to the land value of the subject property.  However, Mr. Byrne testified that the subject property is located on a well traveled road, which at times is used as a "cut-through" to the Hanover Mall, and that River Street is a nicer street with many antique homes.  Therefore, he argued, the subject property's land value should not have been adjusted upward compared to 393 River Street.  
In support of their assessment, the assessors offered into evidence the testimony of Barbara Gingras, as well as sales data from three purportedly comparable properties that sold during 2007.  The three properties ranged in size from 1.04 to 1.50 acres, and all were improved with antique homes similar to the subject property.  After adjustments for differences in lot size, condition, total number of rooms and bathrooms, and total living area, the assessors' comparable properties' adjusted sale prices ranged in value from $481,000 to $800,600.    

On the basis of all of the evidence, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued as of the relevant assessment date.  The Presiding Commissioner found that the appellant's testimony that the subject property was located on a heavily traveled street often used as a cut-through to the Hanover Mall was credible.  With respect to the appellant's comparable-sales data, however, the Presiding Commissioner found that the appellant failed to establish comparability between the subject property and his purported comparable properties and that he failed to make adjustments for differences between the subject property and the purportedly comparable properties.  However, the Presiding Commissioner did find that the assessors' upward adjustment of 15% to the subject property's primary site assessment, in comparison to the appellant's comparable assessment property and also the assessors' comparable-sales properties, was excessive.  Finally, the Presiding Commissioner found that the assessors' comparable-sales analysis, with adjusted sale prices that ranged from $481,000 to $800,000, failed to account for location differences and the condition of the subject property as of the date of assessment and was, therefore, unreliable.  Further, the assessors' very broad range of value estimates, made through their adjustment of the sales, made their final estimate of value unreliable.
For these reasons, and as discussed further in the Opinion below, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued for fiscal year 2009.  Based on all the evidence, the Presiding Commissioner found that the fair market value of the subject property was $435,000 and, accordingly, granted an abatement in the amount of $392.12.  

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 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 property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974). 
	Generally, there are two ways in which a taxpayer can meet its burden of proof in a property tax appeal. "'The 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 (1989) (quoting Donlon v. Assessors of Holliston,    389 Mass. 848, 855 (1983)).  In the present appeal, the Presiding Commissioner found that the appellant's testimony that the subject property was on a heavily traveled street often used as a cut-through to the Hanover Mall was credible.  The Presiding Commissioner further found that the assessors' upward adjustment of 15% for superior location was unwarranted. 
"In reaching its opinion of fair cash value in this appeal, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation . . . .  Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight." Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 683 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473, 469 (1981); Assessors of Lynnfield v. New England Oyster House, Inc., 362 Mass. 696, 701-02 (1972).  
The Board need not specify the exact manner in which it arrived at its valuation. Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 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 Consol. Gas Co., 309 Mass. 60, 72 (1941). "The credibility of witnesses, the weight of evidence, the 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).  
Based on the foregoing, the Presiding Commissioner found and ruled that the appellant met his burden of proving that the fair cash value of the subject property was less than its assessed value and should be reduced to $435,000.  Accordingly, the Presiding Commissioner issued a decision for the appellant and granted an abatement in the amount of $392.12. 

          	    APPELLATE TAX BOARD

				 	By: _______________________________
					    James D. Rose, Commissioner


A true copy,

Attest: ____________________________
	       Clerk of the Board

 The appellant initially filed his appeal under the informal procedure pursuant to G.L. c. 58A, § 7A.  In accordance with G.L. c. 58A, § 7A, the assessors timely elected to transfer the appeal to the formal procedure pursuant to G.L. c. 58A, § 7.  

	ATB 2010-724