Donald & Eleanor Chayet v. Board of Assessors of the Town of Brookline (November 13, 2001)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




DONALD & ELEANOR CHAYET		v.	   BOARD OF ASSESSORS OF
							   THE TOWN OF BROOKLINE


Docket No. F257203				   Promulgated:
                                      November 13, 2001


	This is an appeal under the formal procedure, pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on certain real estate in the Town of Brookline owned by and assessed to the appellants under G.L. c. 59, § 38, for fiscal year 2000.  
	Commissioner Gorton heard this appeal and issued a single member decision for the appellee in accordance with G.L. c. 58A, § 1, and 831 CMR 1.20.
	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.

	Eleanor Chayet, pro se, for the appellants.
	Linda MacDonald, Assistant Assessor, for the appellee.  


FINDINGS OF FACT AND REPORT
	On January 1, 1999, Donald C. and Eleanor Chayet were the assessed owners of a condominium unit located at 1807 Beacon Street in the Town of Brookline ("Unit 1" or "unit").  For fiscal year 2000, the Board of Assessors of Brookline ("Assessors") valued the unit at $190,700, and assessed a tax thereon, at the rate of $14.83 per thousand, in the amount of $2,828.08.  The appellants paid the tax without incurring interest.  
	The appellants timely filed an application for abatement on January 31, 2000.  In their application, the appellants sought an abatement claimimg that their property was overvalued and disproportionately assessed. On March 14, 2000, the Assessors denied the appellants' request for abatement, and on June 12, 2000, the appellants seasonably appealed the denial to the Appellate Tax Board ("Board").  On this basis, the Board found that it had jurisdiction over this appeal.  


In their petition, the appellants alleged that their unit was "disproportionately valued" compared to similar properties and overvalued because its income was restricted by a Section 8 lease to an elderly, low-income, disabled tenant.  Based on the testimony, exhibits, and reasonable inferences drawn therefrom, the hearing officer found that Unit 1 is a residential condominium unit located on the first floor of a five-unit residential condominium building.  Unit 1 contains 909-square-feet of living space along with parking.  It has four rooms including one bedroom and one full bathroom.  The size, assessments, and locations within the building of all five units are summarized in the following table.

Unit
No.	
Location	Area in Sq. Feet	No. of Bedrooms	No. of Rooms	
Parking	Assessed
Value	
G	Basement	  1,002	2	4	Yes	$175,800	
1	1st Flr.	    909	1	4	Yes	$190,700	
1A	1st Flr.	    578	1	3	Yes	$133,000	
2	2nd Flr.	  1,548	2	7	Yes	$323,500	
3	3rd Flr.	  1,560	2	6	yes	$335,400	

For the fiscal year at issue, the average assessed value of the other three above-grade condominium units was approximately $218 per square foot.  The average assessed value of all of the other condominium units, including the basement unit, was about $210 per square foot.  The assessed value of Unit 1 was slightly less than $210 per square foot.      
Three of the condominium units located in the building were sold within three years of the January 1, 1999 assessment date.  In January 1996, Unit 1A was sold for $90,000; in March 1996, Unit 3 sold for $261,000; and in July 1996, Unit 2 sold for $275,000.  Two other sales of comparable condominium units located in nearby similar buildings sold in August 1997 and May 1998 for $188,500 and $229,000, respectively.  From the dates of these sales to the assessment date, the condominiums were appreciating in a favorable market.  
	On this basis, the hearing officer found that Unit 1 was not disproportionately assessed and was not overvalued for the fiscal year at issue.  With respect to the appellants' claim of disproportionate assessment, the appellants failed to show any widespread scheme or intentional pattern of disproportionate assessment in Brookline.  No evidence was introduced regarding the assessments of any other classes or types of property, and no calculations were provided in even an attempt to demonstrate a widespread and intentional scheme of disproportionate assessment.  No evidence was introduced showing any intent on the part of the Assessors to assess condominium property in a discriminatory way.  The assessments of the condominium units that were introduced into evidence supported Unit 1's assessment.  Even including the basement unit, the average assessed value per square foot of the other condominium units that shared the same building with Unit 1 corresponded with the assessed value per square foot placed on Unit 1 by the Assessors for the fiscal year at issue.  Accordingly, the hearing officer found that the appellants failed to demonstrate any pattern of disproportionate assessment in Brookline during the fiscal year at issue and also failed to show any intent on the part of the Assessors to discriminate against any class of properties, including condominiums, or against the appellants, themselves.     
With respect to the appellants' claim of overvaluation, the hearing officer found that the sales of the two comparable condominium units from nearby and similar buildings supported the assessment.  Their average per-square-foot value, even without any upward adjustment for an appreciating market, was approximately $239.  This value, when applied to Unit 1's square footage, more than supported the assessed value ascribed to Unit 1 by the Assessors.  The hearing officer further found that the three sales of the condominium units within Unit 1's building also supported the assessment after adjustments for time of sale to reflect market conditions.  Finally, the hearing officer found that the appellants did not show that Unit 1 was under the state's Section 8 housing provisions or that the income attributable to this condominium unit was restricted by any governmental entity in any way.  The appellants did not introduce any leases, agreements, or representations of income or expenses that reflected participation in either Section 8 or any other government-housing program.  In addition, the appellants did not offer an income approach, or appropriate underlying data, for valuing the subject condominium unit using an income approach.  Accordingly, the hearing officer found that the appellants failed to show that the fair market value of Unit 1 was less than its assessment for the fiscal year at issue.
For these reasons, the hearing officer decided this appeal for the appellee.  

OPINION
	The assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value.  Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth; art. 10 of the Declaration of Rights; G.L. c. 59, §§ 38, 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975) (citations omitted).  Fair cash value means fair market value, which 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 burden of proof is upon the taxpayers to make out their right as a matter of law to abatement of the tax.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The taxpayers must show that the assessed valuation of their property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  The assessment is presumed valid until the taxpayers sustain their burden of proving otherwise.  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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984), quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  Generally, real estate valuation experts, the Massachusetts courts, and this Board rely upon three approaches to determine the fair cash value of property: income capitalization, sales comparison, and cost reproduction.  Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  "[S]ales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller." Foxboro Associates, 385 Mass. at 682.  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue.  See McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  
	In the present appeal, the appellants attempted to prove that their property was overvalued because its assessment was higher than similar property and because it was comparable to Section 8 housing with a restricted income.  The hearing officer found, however, that the sales of comparable condominium units as well as the assessed values of the other condominium units located in Unit 1's building supported Unit 1's assessment.  The hearing officer further found that the appellants failed to introduce any evidence of a restricted income flow attributable to Unit 1 from a governmentally sanctioned program.  While the hearing officer recognized that government restrictions may impact fair cash value, see, e.g., Parkinson v. Assessors of Medfield, 398 Mass. 112, 116 (1986)(conservation restriction); Boston Edison Co. v. Assessors of Watertown, 387 Mass. 298, 304 (1982)(rate-base restriction); and Community Development Co. v. Assessors of Gardner, 337 Mass. 351, 354-55 (1979)(Federal rent control), the taxpayer offered no substantial evidence that the unit was subject to governmentally imposed income restrictions.  No other methodology was presented with which to value Unit 1.  On this basis, the hearing officer found and ruled that the appellants did not meet their burden of showing that the subject property was overvalued and that the evidence actually demonstrated that the subject property was not overvalued.      
	The appellants also alleged that their property was disproportionately assessed during fiscal year 2000.  "If the taxpayer[s] can demonstrate in an appeal to the Board that [they] ha[ve] been [] victim[s] of a scheme of discriminatory, disproportionate assessment, [they] 'may be granted an abatement . . . which will make . . . [their] assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory assessment principles.'"  Coomey, 367 Mass. at 836, quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1971).  The burden of proof as to existence of a "scheme of discriminatory, disproportionate assessment" is on the taxpayers.  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971); see Schlaiker, 365 Mass. at 245.  If taxpayers successfully demonstrate improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the Assessors.  Shoppers' World, 348 Mass. at 377.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer[s]."  First National Stores, 358 Mass. at 562.  
	In the present appeal, the appellants failed to meet their burden of proving and persuading the Board that a deliberate scheme of disproportionate assessment ever existed.  The evidence submitted was simply inadequate to prove that the Assessors engaged in an "intentional widespread scheme of discrimination."   Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  The appellants provided no analysis of: classes of properties, properties, sales, and assessments for the fiscal year at issue.  The finding of a widespread scheme would require far more data and analysis between classes of property or groups of taxpayers than the minimal information and analysis supplied by the appellants.  The hearing officer found no evidence or even an inference of an intentional or deliberate scheme of disproportionate assessment on the part of the Assessors directed against any class of taxpayers or these taxpayers, in particular.  Accordingly, the hearing officer ruled that the appellants had failed to meet their burden of showing that a deliberate scheme of disproportionate assessment existed in this appeal.  Where assessments, even if wrong, are "consistent with honest mistake or oversight on the part of the assessors" as opposed to a "deliberate scheme of disproportionate assessment" no relief for disproportionate assessment is appropriate.  Brown v. Assessors of Brookline, 18 App. Tax Bd. Rep. 83, 92 (1996), aff'd, 43 Mass. App. Ct. 327 (1997), quoting Stilson, 385 Mass. at 728.  In this appeal, the hearing officer found and ruled that Unit 1's assessment for fiscal year 2000 was supported by the evidence. 


On this basis, the hearing officer found and ruled that the appellants' condominium unit was not overvalued or disproportionately assessed during the fiscal year at issue.  Therefore, the hearing officer decided this appeal for the appellee.

						THE APPELLATE TAX BOARD

					 By:______________________________
						Abigail A. Burns, Chairman




A true copy:



Attest:________________________
		Clerk of the Board                         

 Donald C. Chayet died on or about February 2, 1999.  Because Mrs. Chayet included him as one of the named appellants on the petition, they will be referred to as appellants in these findings.    
 Pursuant to G.L. c. 59, §§ 64 and 65, timely payment of the tax is not a prerequisite to the Appellate Tax Board's jurisdiction when the tax  for the fiscal year at issue is $3,000 or less.      

ATB 2001-846