Saad & Reem Dinno, Trustees of D & C Trust v. Board of Assessors of the Town of Weston (May 20, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


SAAD & REEM DINNO,			v.	   BOARD OF ASSESSORS OF 
TRUSTEES OF D & C TRUST			   THE TOWN OF WESTON
					
Docket Nos. F306132 & F314191 	   Promulgated:
							   May 20, 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 Weston (the "appellee" or "assessors") to abate taxes on certain real estate in Weston,  owned by  and  assessed to Saad & Reem Dinno, Trustees (together, the "appellants") under G.L. c. 59, §§ 11 and 38 for  fiscal years 2010 and 2011 (the "fiscal years at issue").
Commissioner Rose heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Mulhern and Chmielinski joined him in the decisions for the appellants.  
	These findings of fact and report are made pursuant to requests by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Robert F. Dionisi, Jr., Esq. for the appellants. 

	Eric Josephson, Principal Assessor, for the appellee.

FINDINGS OF FACT AND REPORT

On the basis of the testimony and exhibits entered into evidence at the hearing of these appeals, the Appellate Tax Board (the "Board") made the following findings of fact.
Jurisdiction
On January 1, 2009 and January 1, 2010, the relevant valuation and assessment dates for the fiscal years at issue, the appellants were the assessed owners of a 1.81-acre parcel of real estate, improved with a single-family home, located at 50 Cherry Brook Road in Weston (the "subject property"). 
For fiscal year 2010, the assessors valued the subject property at $2,726,000, and assessed a tax thereon, at the rate of $11.10 per thousand, in the total amount of $30,654.02, which the appellants timely paid without incurring interest. 	On January 28, 2010, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors.  By vote on February 23, 2010, the assessors granted a partial abatement reducing the assessed value of the subject property to $2,684,100.  Not satisfied with this reduction, in accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Board on May 21, 2010.  
For fiscal year 2011, the assessors valued the subject property at $3,651,800, and assessed a tax thereon, at the rate of $11.39 per thousand, in the total amount of $42,798.27, which the appellants timely paid without incurring interest.  On February 1, 2011, in accordance with G.L. c. 59, § 59, the appellants timely filed their Application for Abatement with the assessors, which was deemed denied on May 1, 2011.  In accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Board on July 27, 2011.  
On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
	The appellants purchased the subject property on March 30, 2007 for $1,108,250.  Subsequently, the existing structure was demolished.  On June 3, 2008, after a lengthy process that included several public hearings with the Weston Planning Board, the appellants were granted approval, subject to certain restrictions and limitations, to build their current home (the "subject dwelling").  The parties agreed that as of January 1, 2009, the subject dwelling was 62% completed, and, as of January 1, 2010, the subject dwelling was 95% completed.
Description
The Town of Weston is a residential suburb located in Middlesex County, approximately 12 miles west of Boston, and is bordered by Lincoln, Waltham, Newton, Wellesley, Natick, and Wayland.  The town's principal highways are state routes 20, 30 and 117, and also Interstate Routes 90 (Massachusetts Turnpike) and 95.  The town also has ready access to state routes 9, 16 and 27.
Cherry Brook Road is part of a subdivision located in the north side of town.  The neighborhood consists of single family residences which were originally constructed by a single developer with a general consistency of style and architectural treatments.  Developed lots in the neighborhood range in size from 1.39 to 5.60 acres with an average size of 2.01.  Excluding one 5.60-acre oversized lot, the average lot size is 1.65 acres.  Homes in the neighborhood, excluding the subject property, range in size from 2,855 to 5,777 square feet, with an average living area of 3,833 square feet.  
The subject property's lot (the "subject lot") is a 1.81-acre, rectangular-shaped parcel that abuts Cherry Brook.  There is a wetland system in the southern portion of the subject property, including the northern bank of Cherry Brook, which crosses into the rear of the subject lot and parallels the subject lot's southern boundary.  Cherry Brook is a perennial stream and is subject to protection under the Rivers Protection Act.  The 100-foot wetland buffer zone and the 200-foot river-front area restrict development and use on a significant portion of the southern part of the subject lot.  In addition, the subject property is encumbered by a 20-foot wide Town of Weston drainage easement located along the western boundary.  The subject lot's northern boundary line along Cherry Brook Road contains a vegetative boundary buffer consisting of medium to mature growth evergreen and deciduous trees and shrubs. 
The subject dwelling contains a total of eleven rooms, including five bedrooms, as well as five full bathrooms and three half bathrooms, with a total living area of 7,470 square feet.  The house was built with wider hallways and larger rooms to accommodate the appellants' handicapped daughter.  The first floor has a large reception hall foyer with a guest coat closet, half bathroom and cathedral ceiling to the second floor.  The reception foyer leads to the following rooms:  the living room; a private study; a two-story family room; a dining room; a gourmet kitchen containing executive high-end appliances with an adjoining butler's pantry, as well as a separate breakfast area for informal dining and an exterior doorway leading out to the patio; and a mud room which includes a half bathroom.  Also located on the first floor is the master suite which includes the master bedroom, a master bathroom, and an additional bedroom with a private full bathroom.  The ceiling height on the first floor is approximately ten feet.
The second floor has three bedrooms, all have a private bath and two have a private dressing closet.  There is a second private study located off of the second-floor hallway, and also a staircase for access to the unfinished attic.  
The basement is partially finished and includes a private wine cellar, an adjoining wine-tasting area, a recreation room, a home theater, a family room, an exercise room, a kitchenette, and a half bathroom.  The unfinished portion of the basement is used for storage and mechanical utility areas for the house.
The dwelling has a forced hot-air heating system fueled by gas and central air conditioning.  The exterior of the dwelling is a mix of wood shingles and stone veneer with an asphalt-shingled gable roof.  Interior finishes include a mix of hardwood and ceramic-tile flooring, tray ceilings with custom crown and base molding, and plaster walls with wood trim.  Additional amenities include a central vacuum system, a security system, five fireplaces, a three-car attached garage, a large patio, and a hot tub.
Appellants' Case-in-Chief
	The appellants presented their case-in-chief predominantly through the testimony of Mr. Dinno, a trustee of the record owner and an occupant of the subject property, and William F. Curley, a certified real estate appraiser whom the Board qualified as an expert witness in the field of residential real estate valuation.  The appellants also submitted into evidence Mr. Curley's summary appraisal report for the fiscal years at issue.  
The appellants argued that the subject property was overvalued by the assessors for both of the fiscal years at issue.  To arrive at his estimates of value for the fiscal years at issue, the appellants' real estate valuation witness relied on the sales-comparison approach.  For each of the years at issue, Mr. Curley selected three properties that he deemed most comparable to the subject property to derive an indicated value.
Fiscal Year 2010
For fiscal year 2010, Mr. Curley relied on three purportedly comparable properties that sold between September 2008 and November 2010, with sale prices that ranged from $2,000,000 to $2,925,000.  
His first sales-comparison property, 21 Westerly Road, was a 1.38-acre parcel improved with a newly-constructed, single-family dwelling with twelve rooms, including six bedrooms, as well as five full bathrooms and two half-bathrooms, containing a gross living area of 5,332 square feet.  This property sold on September 10, 2008 for $2,925,000. 
Mr. Curley's second sale was 14 Hitching Post Lane, which sold on September 18, 2010 for $2,425,000.  This comparable is a 0.86-acre parcel improved with a single-family dwelling constructed in 2008.  The dwelling contains ten rooms, including five bedrooms, as well as five full bathrooms and two half bathrooms, containing a finished living area of 5,972 square feet.  
Mr. Curley's third sale was 41 Stony Brook Road, which sold on November 22, 2010 for $2,000,000.  This property is a 2.77-acre parcel improved with a thirteen-room dwelling, constructed in 2002, including five bedrooms, as well as four full bathrooms and one half bathroom, containing a finished living area of 7,294 square feet.  This property is located partially in Weston and partially in Lincoln.
Noting that differences did exist between his comparables and the subject property, Mr. Curley made adjustments for timing, lot size, living area, total number of rooms, number of bedrooms, number of bathrooms, age, and lack of encumbrances.  Mr. Curley's sales-comparison analysis for fiscal year 2010 is reproduced in the following table.
		Sale #1	Sale #2	Sale #3	
	Subject Property	21 Westerly Rd
Weston	14 Hitching Post Ln
Weston	41 Story Brook Rd
Weston/Lincoln	
Sale Date		9/10/2008	9/18/2008	10/22/2010	
Sale Price		$2,925,000	$2,425,000	$2,000,000	
Land Size (Acres)	1.81	1.38	0.86	2.77	
Building Area (SF)	7,470	5,332	5,972	7,294	
Adjustments:					
 Date of sale				Superior (-)	
 Lot size			Inferior (+)	Superior (-)	
 Encumbrances		Superior (-)	Superior (-)	Located in 2 towns	
 Building Area		Inferior (+)	Inferior (+)		
 Room Count	11	Superior (+)	Inferior (-)	Superior (+)	
 Bedrooms	4	Superior (+)	Superior (+)	Superior (+)	
 Bathrooms (full/half)	4/2	Superior (+)	Superior (+)	Inferior (-)	
 Age				Inferior (-)	
Net Adjustments		Downward	None	Downward	

After reviewing his adjustments, Mr. Curley concluded that sale number two was the most comparable to the subject property.  In this way, he determined that the subject property had a fair cash value, "as completed," of $2,425,000.  Relying on the parties' agreed upon completion percentage of 62%, Mr. Curly calculated the subject property's total fair cash value "as is" on January 1, 2009, at $1,503,500.  Mr. Curley did not provide any specific quantitative adjustments in his analysis.
Fiscal Year 2011
For fiscal year 2011, Mr. Curley used three purportedly comparable sales that sold between October 2010 and June 2012, with sale prices that ranged from $2,000,000 to $2,700,000.  
Mr. Curley's first sales-comparison property was 568 Wellesley Street, Weston, which has a 1.79-acre parcel that is improved with a 7,161-square-foot single-family dwelling with twelve rooms, including five bedrooms, as well as four full bathrooms and two half bathrooms.  This property sold on February 23, 2011 for $2,510,000.
His second sale was 11 Driftwood Lane, Weston, which has a 1.79-acre parcel that is improved with a 5,246 square-foot single-family dwelling with eleven rooms, including four bedrooms, as well as six full bathrooms and three half bathrooms.  This property sold on June 2, 2012 for $2,700,000. 
Mr. Curley's third sale was 41 Stony Brook Road, which is located partially in Weston and partially in Lincoln and is one of the same sales that he used in his fiscal year 2010 sales-comparison analysis.  
As in his fiscal year 2010 analysis, Mr. Curley made qualitative adjustments to account for his purportedly comparable properties' differences with the subject property, including date of sale, lot size, living area, total number of rooms, number of bedrooms, number of bathrooms, age, and lack of encumbrances.  He failed, however, to provide any specific quantitative adjustments in his analysis. 
Mr. Curley's sales-comparison analysis is reproduced in the following table. 
		Sale #1	Sale #2	Sale #3	
	Subject Property	568 Wellesley St
Weston	11 Driftwood Ln
Weston	41 Stony Brook Ln
Weston/Lincoln	
Sale Date		2/23/2011	6/2/2012	10/22/2010	
Sale Price		$2,510,000	$2,700,000	$2,000,000	
Land Size (Acres)	1.81	1.79	1.79	2.77	
Building Area (SF)	7,470	7,161	5,246	7,294	
Adjustments:					
 Date of Sale			Superior (-)		
 Lot size			Inferior (+)	Superior (-)	
 Encumbrances		Superior (+)	Easement/Wetland	Located in 2 towns	
 Building Area			Inferior (+)		
 Room Count	11	Superior (-)		Superior (+)	
 Bedrooms	4	Superior (-)		Superior (+)	
 Bathrooms (full/half)	4/2		Superior (-)	Inferior (-)	
 Age				Inferior (-)	
Net Adjustments		Downward	Downward	Downward	

After reviewing his adjustments, Mr. Curley concluded that sale number one was the most comparable to the subject property.  In this way, he determined that the subject property had a fair cash value, "as completed," of $2,510,000.  Relying on the parties' agreed upon completion percentage of 95%, Mr. Curly calculated the subject property's total fair cash value "as is" on January 1, 2010, at $2,384,500.
Appellee's Case-in-Chief
The assessors presented their case-in-chief through the testimony of Eric Josephson, Principal Assessor, and also submitted several documents, including the requisite jurisdictional documentation, the subject property's property record cards for the fiscal years at issue, the subject property's floor plans, and Mr. Josephson's valuation reports for the fiscal years at issue.
For fiscal year 2010, Mr. Josephson's valuation analysis included six purportedly comparable properties.  These properties sold between June, 20, 2007 and July 14, 2008, with sale prices that ranged from $3,650,000 and $4,995,000 and assessed values that ranged from $3,308,300 and $4,668,300.  For fiscal year 2011, Mr. Josephson's analysis included five purportedly comparable properties that sold between February 22, 2008 and December 24, 2009, with sale prices that ranged from $3,700,000 to $4,995,000 and assessed values that ranged from $3,489,200 and $4,604,800.  
In both years, Mr. Josephson made the same adjustment, computed as follows.  First, he compared each comparable's land and building assessment to the subject property's land and "as completed" building assessed values.  Next, he computed the difference in assessed values, added in a small other adjustment, to come up with a total adjustment that he subtracted from the comparable property's sale price to calculate an adjusted sale price for each of his purportedly comparable properties.  Finally, he averaged the comparables' adjusted sale prices and applied the appropriate percentage of completion to achieve his indicated value for the subject property for each of the fiscal years at issue.  He did not otherwise adjust for differences between the subject property and his purportedly comparable properties.  
	Board's Findings
Based on all of the evidence, and to the extent it is a finding of fact, the Board found that the appellants met their burden of proving that the subject property was overvalued for the fiscal years at issue.  
Based on the parties' stipulations, the Board found that percentages of the improvements' completion were 62% for fiscal year 2010 and 95% for fiscal year 2011.  The Board further found that the subject dwelling's living area of 7,470 square feet, which was more than twice the average size of homes located in the subject property's neighborhood, indicated that the subject dwelling was likely an over-improvement for the neighborhood.  The assessors, however, had not accounted for this superadequacy factor in their assessment.  In addition, the Board found that the assessors had not adequately adjusted for the portion of the subject property adversely affected by the wetlands and the drainage easement, again necessitating a reduction in value.
Moreover, the Board found that the assessors' analysis of purportedly comparable properties' sale prices and assessments failed to provide an accurate measure of the subject property's fair cash value for the fiscal years at issue.  The analysis did not sufficiently compare a purportedly comparable property's characteristics to those of the subject property.  It appeared to be an exercise more relevant to triennial valuation certifications for the entire community where the difference between sale prices and assessments are compared than an accepted valuation method for determining the actual fair cash value of a specific property like the subject property. 
On the basis of the evidence of record, the Board found that the appellants successfully demonstrated that the subject property was overvalued for the fiscal years at issue.  For each fiscal year at issue, the Board determined that a 12% reduction in assessed valued was warranted, based on the sales data submitted by the parties, the subject property's superadequacy, and also the existence of wetland and the water drainage easement.  More specifically, for fiscal year 2010, the Board found that the subject property's fair cash value was $2,362,000, which is $322,100 less than the assessed value of $2,684,100.  For fiscal year 2011, the Board found that the subject property's fair cash value was $3,212,900, which is $438,100 less than the assessed value of $3,651,000.  The Board therefore decided these appeals for the appellants and granted abatements in the amount of $3,682.57 and $5,139.66, respectively.    

OPINION
The 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, §§ 11 and 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).	 
The appellant has the burden of proving that the property has a lower value than that assessed.  "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)(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] to 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, a 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., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeals, the Board found that the method used by the appellants' expert -- a sales-comparison approach as adjusted for the percentage of completion -- was the proper method of valuation to use in these appeals.  Moreover, the Board found that the analysis submitted by the assessors provided little help in determining the fair cash value of the subject property for the fiscal years at issue.  Based on all of the evidence presented, the Board found that the assessors failed to adequately account for the subject dwelling's superadequecy and also the existence of wetlands and the water drainage easement.  
In reaching its opinion of fair cash value in these appeals, 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. Assessors of Foxborough, 358 Mass. 679, 683 (1982).  In evaluating the evidence before it, the Board selected among the various elements of value and formed its own independent judgment of fair cash value.  General Electric Co., 393 Mass. at 605. 
The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 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 Consolidated Gas Co., 309 Mass. 60, 72 (1941). 
The Board applied these principles in reaching its opinion of the fair cash value of the subject property for the fiscal years at issue.  On this basis, the Board determined that the subject property was overvalued by $322,100 for fiscal year 2010 and by $438,000 for fiscal year 2011.  The Board thus ordered abatements of $3,682.57 for fiscal year 2010 and $5,139.66 for fiscal year 2011.

					   THE APPELLATE TAX BOARD


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



A true copy,

Attest: ____________________________
	   Clerk of the Board
     

 This amount includes a Community Preservation Act ("CPA") surcharge of $395.42.
 This amount includes a CPA surcharge of $1,204.27.
 The property record card lists the subject property as having four bedrooms; however, the appellants' detailed description of the home lists five bedrooms.  
 In his sales-comparison analyses Mr. Curley reported that the subject property had four full bathrooms as well as three half bathrooms; however, review of the subject property's building plans and also the property record cards revealed that the subject property in fact had five full bathrooms.
 The Board notes that in its Decision dated January 10, 2013, there was a typographical error which listed the Board's determination of Fair Cash Value the same as the Assessed Value.
 These amounts include not only the appropriate real estate tax abatement, but also the appropriate CPA surcharge abatement.

ATB 2014-288


ATB 2014-271