Montello Street Carver Nominee Trust, John Walsh, Trustee v. Board of Assessors of the Town of Carver (August 12, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MONTELLO STREET CARVER     v.     	BOARD OF ASSESSORS OF 
NOMINEE TRUST                   	THE TOWN OF CARVER
JOHN WALSH, TRUSTEE


Docket No. F287948				Promulgated:
							August 12, 2008   


	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 appellee to abate taxes on certain real estate located in the Town of Carver owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Commissioner Mulhern heard the appeal.  Chairman Hammond and Commissioners Scharaffa and Egan joined him in the decision for the appellee.
	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.

John Walsh, Trustee, pro se, for the appellant.
	Ellen Blanchard, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
	On January 1, 2006, Montello Street Carver Nominee Trust, John Walsh, Trustee ("appellant"), was the assessed owner of a 30-acre parcel of real estate located at Park Avenue in the Town of Carver ("subject property"). The property is improved with an industrial building that houses a waste treatment facility ("the facility").  The structure was built in 1994 and contains 18,153 square feet, of which 15,376 square feet are facility floor space.
	For fiscal year 2007, the Board of Assessors of Carver ("assessors" or "appellee") valued the subject property at $2,592,400 and assessed a tax thereon at the rate of $17.65 per thousand, for a total amount of $47,128.54, which the appellant paid timely.  The appellant timely filed an abatement application with the assessors on November 14, 2006, which the assessors denied on December 19, 2006.  On March 19, 2007, the appellant seasonably filed a Petition Under Formal Procedure with the Board.  Based on these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	The appellant purchased the subject property on  August 7, 2001 for $2,350,000.  The appellant argued, however, that the fair cash value of the subject property on the relevant date of valuation, January 1, 2006, was $1,296,000, and that the subject property was therefore overvalued for fiscal year 2007.  The appellant maintained that it was unable to use the facility and was also unable to sell the business.  
More specifically, the appellant argued that the company's ability to make the facility profitable was hindered by the fact that the facility had been shut down for environmental reasons.  The appellant testified that the Massachusetts Department of Environmental Protection ("Mass DEP") issued an enforcement order, which forced the appellant to close the plant until a chief operator was hired and the required odor-control equipment was operating correctly.  Relying on tax returns for the fiscal year beginning in 2002 and ending in 2007, the appellant argued that the subject property was overvalued because the Mass DEP's closure of the facility rendered the appellant's business at the property unprofitable.  Accordingly, the appellant argued that the subject property was overvalued for fiscal year 2007.  The appellant did not offer any additional evidence to prove that the subject property was overvalued.
In defense of the assessment, the assessors offered into evidence the subject property's deed as evidence of the appellant's purchase of the subject property on   August 7, 2001 for $2,350,000.  Additionally, the assessors offered into evidence sales of other comparable commercial properties located in Carver.  The comparable sales were each zoned as Highway Commercial.  The land areas ranged from 2.841 acres to 32.05 acres, as compared to the subject property's 30 acres.  The subject property's total assessed value was $2,592,400 while the comparable properties assessed values ranged from $1,975,500 to $3,373,900.   
The assessors also cited the Mass DEP's enforcement order which stated that the reason for the plant closure was the appellant's continuous operation of the facility without a chief operator on site during business hours.  Additionally, the Mass DEP order noted that there had been numerous complaints about odors being given off because the facility operator failed to control such odors.  The assessors maintained that these environmental issues, associated with the temporary closure of the plant, were evidence directly related to lack of business oversight by the appellant and were not indicative of the subject property's fair market value.  
	Based on the evidence presented, the Board found and ruled that the appellant did not meet his burden of proving that the subject property's fiscal year 2007 assessment was in excess of its fair cash value.  The Board found that while the temporary closure of the facility impacted the business profit, it did not affect the marketability of the subject property or the price which a willing buyer would pay for the property.  The reasons for the facility shutdown were unrelated to the subject property's fair market value and there was nothing to prevent the current owner or a purchaser from using the subject property for its highest and best use.  
Moreover, the appellant did not offer any comparable sales data or other affirmative evidence of overvaluation.  In contrast, the assessors' evidence supported the subject assessment.  On the basis of all the evidence, the Board found that the appellant did not meet his burden of proving that the subject property was overvalued for fiscal year 2007.  Accordingly, the Board issued a decision for the appellee in this appeal.


OPINION
Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  Fair cash value is defined as the price upon which a willing buyer and a willing seller will agree if both 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 taxpayer to make out a right to an abatement as a matter of law.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid until the taxpayer sustains its burden of proving otherwise.  Id.  A taxpayer may prove a right to an abatement by either introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).
In the present appeal, to prove that the subject property was overvalued, the appellant primarily focused on the fact that the facility was shut down for environmental reasons and was thus not profitable.  The appellant argued that due to the Mass DEP order, it was unable to use the property's facility and was also unable to sell the business; therefore, the appellant maintained that the property should be assessed at a lower value.  However, the Board found that the facility was closed due to a lack of business oversight by the appellant.  The reasons for the facility shutdown were unrelated to the real estate; there was nothing to prevent the current, or a subsequent, owner from using the subject property for its highest and best use.  The Board further found that the appellant did not attempt to use comparable sales or offer other evidence in support of the argument that the subject property was overvalued.  Moreover, the Board found that the assessors' evidence supported the subject property's fiscal year 2007 assessment.  
Therefore, the Board found and ruled that the appellant did not meet his burden of proving that the subject property was overvalued for fiscal year 2007.  Accordingly, the Board issued a decision for the appellee in this appeal.
APPELLATE TAX BOARD

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

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ATB 2008 - 1066