Bruce & Carlene Clements v. Board of Assessors of the Town of Groton (July 9, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



BRUCE & CARLENE CLEMENTS  	v.	   BOARD OF ASSESSORS OF
							   THE TOWN OF GROTON 


Docket No. F288063				   Promulgated:
							   July 9, 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 the appellee to abate taxes on real estate located in the Town of Groton owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for the fiscal year 2007. 
Chairman Hammond heard the appeal.  Commissioners Scharaffa, Egan, Rose and Mulhern joined him in the decision for the appellants. 
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. 


Alan D. Hoch, Esq. for the appellants. 

Ellen M. Hutchinson, Esq. 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, Bruce and Carlene Clements ("appellants") were the assessed owners of a parcel of real estate located at 274 Boston Road in the Town of Groton ("subject property").  The parcel is a hammerhead-shaped lot consisting of 6.48 acres with only 40 feet of frontage. The subject property shares road access with seven other parcels by means of a private way.  Because of certain restrictions, the parcel may not be subdivided.  The subject property is improved with a 13,538-square-foot barn that contains a residence with 1,226 square feet of living space.  There is also a lean-to pole barn on the property. The subject property's property record card indicates that the roof on the barn was replaced after the relevant valuation date.  
	For fiscal year 2007, the Board of Assessors of Groton ("assessors") valued the property at $499,600 and assessed a tax thereon, which appellants paid timely, at the rate of $13.77 per thousand, for a total of $7,044.56.  Appellants timely filed an Application for Abatement on January 23, 2007.  On March 7, 2007, the assessors denied appellants' request for abatement.  On April 6, 2007, appellants seasonably filed a Petition under the Formal Procedure with the Board.  Based on these facts, the Board found and ruled that it had the jurisdiction to hear and decide this appeal.
	Appellants presented the testimony of Emile Reinsteiner, a neighbor who had lived in appellants' neighborhood since 1979, was familiar with the subject property, and had a background in farming.  He testified that the barn retained the structural characteristics of a dairy barn and still could be used as such.  Next Mr. Clements, one of the appellants, testified that the subject property includes a barn with 1,226 square feet of living space, which is the only heated part of the barn.  He also testified that certain structural elements necessary for a dairy farm still exist in the barn, including: a milking parlor; grain chute; and pens for animals.  He further stated that there are restrictive covenants that run with the property, which allow only residential and/or agricultural uses of the property. Both witnesses also testified that the barn smells like an active barn. 

     In addition to this testimony, a portion of the applicable zoning code regarding accessory uses was offered into evidence as were the property record cards for "BRN3" designated properties in Groton.  Mr. Clements testified that the fair cash value of his property was $360,000 as of January 1, 2006.  He determined this value from his knowledge of the subject property and other properties in Groton and his judgment that there were no comparable properties in town. 
Mr. Clements also looked at the previous year's assessment and the current assessment of eight neighboring properties.  He calculated the increase or decrease in the later assessment of each property and then determined the average percentage increase of the eight properties.  He calculated this percentage to be a 4.6% increase, which he then used to adjust the subject property's prior year's assessment of $342,600.  After adding 4.6% to the subject property's prior assessed value, and contending that there were no other reasons for the subject property's value to be increased from the previous year's assessment, he determined the fair cash value for fiscal year 2007 to be $360,000.  In addition, appellants entered into evidence an arms-length contract to purchase the subject property for $375,000 dated September 23, 2007, a contract made after the replacement of the roof.  However, the Board did not rely on this contract since there was no evidence that the sale closed at the contract price.   The Board found that Mr. Clements' testimony was credible as a homeowner who has lived on the subject property since 1986 and who displayed extensive knowledge about the subject property and other properties in town.  The Board also credited Mr. Reinsteiner's testimony.   
	The assessors introduced numerous photos of the subject property and various jurisdictional documents but no valuation reports or other documents directly pertaining to the fair cash value of the subject property.  The assessors also failed to present any witnesses of their own, relying on the presumed validity of the assessment.  	
Based on all of the evidence, the Board determined that the highest and best use of subject property was its existing use as a barn with a residence, especially considering: the shape of the parcel; its frontage; the subject property's condition; the covenants that run with the land, which restrict the subject property's use to residential and/or agricultural activities; and the inability to subdivide the property.  The Board further noted that the barn was in a worse condition than the average condition at which it had been assessed.  From the pictures of the property and Mr. Clements' undisputed testimony, it was clear to the Board that the barn was only in fair condition.  The Board also accepted as true Mr. Clements' assertion that there were no truly comparable properties in town to the subject property. The assessors did not introduce any comparables, and the record was devoid of any.
In addition, the Board found that other properties in the area did not experience drastic increases in their assessment from fiscal year 2006 to fiscal year 2007 as had the subject property.  The table below summarizes the data gleaned from property cards entered into evidence.

Property 	   2006 Assessment	   2007 Assessment	Increase	Percent Increase	

subject property	$342,600 	$499,600 	$157,000 	  46%	
294 Boston Rd.	$578,100 	$588,800 	$ 10,700 	  2%	
270 Boston Rd.	$956,100 	$970,400 	$ 14,300 	  1.50%	
109 Common St.	$388,400 	$407,900 	$ 19,500 	  5%	

This evidence supports Mr. Clements' opinion of the subject property's value and suggests that only a modest increase in the subject property's assessment from fiscal year 2006 to fiscal year 2007 was warranted.  On this basis and notwithstanding the presumed validity of the assessment, the Board found that appellants' claim of overvaluation and excess appreciation from the previous year's valuation was valid. 
	For the above reasons, the Board found appellants met their burden of proving that the subject property was overvalued by introducing credible and persuasive evidence. The Board further found that the fair cash value of the subject property was $360,000, and accordingly was overvalued by $139,600.  At a tax rate of $13.77 per thousand, this finding resulted in an abatement of $1,922.29 for fiscal year 2007.   

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.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
A property's highest and best use must be legally permissible, physically possible, financially feasible, and maximally productive.  The Appraisal Institute, The Appraisal Of Real Estate (12th ed. 2001) 305-308.  "In determining the property's highest and best use, consideration should be given to the purpose for which the property is adapted."  Peterson v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2002-573, 617 (citing The Appraisal Institute, The Appraisal of Real Estate (12th ed., 2001) 315-316), aff'd, 62 Mass. App. Ct. 428 (2004).  The Board is then required to make a judgment as to what the highest and best use is likely to be considering all the evidence.  New England Telephone and Telegraph Co. v. Board of Assessors of the Town of Framingham, Mass. ATB Findings of Fact and Reports 1988-95, 150. 
	The Board determined in light of all the evidence that the highest and best use of the subject property was its existing use as a barn with a residence in it.  Appellants had lived in the residence for many years, and it had been many more years since the structure was used as an actual dairy barn.  Currently, appellants used only 1,226 square feet for living space, 1,226 square feet as a garage, and 11,086 square feet for various other purposes.  That additional space, however, was not used as living space.  Further, this current use was consistent with the restrictive covenants that run with the land, as well as the parcel's inability to be subdivided.  
	The burden of proof is upon the taxpayer to make out a right to an abatement.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is considered valid unless the taxpayer meets its burden and proves otherwise.  Id.  A right to an abatement can be proven 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 case, appellants presented credible evidence documenting that the assessment on the subject property substantially exceeded its fair cash value and accordingly, was too high.  In addition, they showed that other property assessments in the area had not increased nearly as much as the subject property's had, and the record is devoid of any reasons supporting the dramatic increase in the subject property's assessment from fiscal year 2006 to fiscal year 2007.  Mr. Clements credibly testified that there was no viable reason for such a substantial increase.  Other than the presumption of validity of the assessment, which the Board found that appellants overcame in this appeal, the assessors provided no evidence of the subject property's fair cash value or why its assessment should have changed so dramatically from the previous year. Accordingly, in consideration of all of the evidence, the Board agreed with the appellants' opinion of value.  
	An owner of real estate, who has familiarity with his property, may offer an opinion as to the value of the property.  45 Rice Street Realty Trust v. Assessors of Cambridge, Mass. ATB Findings of Fact and Reports 2007-1269, 1328 (and the cases cited therein).  In the present appeal, Mr. Clements had lived on the subject property since 1986 and was intimately familiar with it.  He also had knowledge of the former uses of the barn when it was an operational dairy farm.  The Board found his testimony to be credible. For similar reasons, the Board also credited Mr. Reinsteiner's testimony. "The credibility of witnesses, the weight of the evidence, and inferences that reasonably may be drawn from the evidence are matters for the Board"  General Mills, Inc. v. Commissioner of Revenue, 440 Mass. 154, 161 (2003); Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).

     On this basis, the Board found and ruled that appellants met their burden of proving their right to an abatement. Accordingly, the Board granted an abatement in the amount of $1,922.29 for the fiscal year 2007.

   						THE APPELLATE TAX BOARD


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





A true copy,


Attest: ____________________________________
       Clerk of the Board

 The total abatement amount was $1,979.96 after the inclusion of the 3% Community Preservation Act ("CPA") tax.  
 See footnote 1, supra.

ATB 2008-874