Marina Papernik v. Board of Assessors of the Town of Sharon (June 21, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



MARINA PAPERNIK			v.	   BOARD OF ASSESSORS OF								   THE TOWN OF SHARON

Docket No. F300017				   Promulgated:
		   					   June 21, 2011


	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 to abate taxes on certain real estate in the Town of Sharon owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.  
	Commissioner Mulhern heard this appeal under       G.L. c. 58A, § 1A and 831 CMR 1.20, and issued a single-member 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.  

	Marina Papernik, pro se, for the appellant.

	Mark Mazur, assessor, for the appellee.


FINDINGS OF FACT AND REPORT
	On January 1, 2008, Marina Papernik (the "appellant") was the assessed owner of a parcel of real estate located at 17 Jefferson Avenue in the Town of Sharon (the "subject property").  As of the January 1, 2008 assessment and valuation date for fiscal year 2009, the subject property contained approximately 1.26 acres or 54,886 square feet of land and was improved with a single-family dwelling.  
The dwelling is a wood-framed, two-story, split-level style house, built in 1960, with approximately 1,456 square feet of finished living space.  It has six rooms, including three bedrooms, as well as two full bathrooms.  The basement is partially finished, and there is an attached one-car garage.  On the main level, the floors are carpeted; on the second level, they are hardwood.  The interior walls are drywall.  For amenities, there is a fireplace, a rear patio, and central air-conditioning.  The dwelling has a forced hot-water gas heating system, town water, and a private septic system.  The exterior siding is wood shingle, and the roof is covered with asphalt shingles.  The landscaping is mature and typical for the neighborhood.     
For fiscal year 2009, the Board of Assessors of Sharon (the "assessors") valued the subject property at $375,700 and assessed a tax thereon, at the rate of $17.72 per thousand, in the amount of $6,706.25.  The subject property's land and improvement components were valued at $214,000 and $161,700, respectively.  
Jurisdiction
On or about November 19, 2008, Sharon's Collector of Taxes sent out the town's actual real estate tax notices.  In accordance with G.L. c. 59, § 57, the appellant paid the tax assessed on the subject property without incurring interest.  On December 8, 2008, in accordance with      G.L. c. 59, § 59, the appellant timely filed her application for abatement with the assessors.  On February 12, 2009, the assessors denied the appellant's application, and on May 12, 2009, in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed a Petition Under Formal Procedure with the Appellate Tax Board (the "Board").  On the basis of these facts and subsidiary findings, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.  
Merits
	At the hearing of this appeal, both the appellant and her husband, Lazar Papernik, as well as the town's assessor, Mark Mazur, testified and introduced numerous  exhibits, including: an assessment report; the subject property's property record card; several maps depicting the subject property's location in Sharon and within its neighborhood; information regarding a comparable-sale property; photographs of the subject property and other properties; an assessment analysis; value print-outs from two on-line resources, Zestimate® and eppraisal™; and various jurisdictional documents.  The testimony and exhibits offered by the appellant and her husband focused primarily on comparable-assessment data.  According to them, the assessors had overvalued the subject property because their property's overall assessed value ($375,700) divided by what they considered to be their dwelling's gross area (2,116 square feet) resulted in a square-foot-value of $178, while most other Jefferson Avenue properties had values considerably lower, averaging only $138 per square foot.  The following table reproduces the appellant's comparison.


Appellant's $/Square Foot Comparison*
Address	Land Size (acre)	Gross Area (sq.ft.)	Assessed Value $	$/sq.ft.	
6 Jefferson Ave.	1.18	3028	398,700	132	
9 Jefferson Ave.	0.93	3122	367,600	118	
10 Jefferson Ave.	0.93	3541	454,000	128	
11 Jefferson Ave.	1.11	3346	381,100	114	
14 Jefferson Ave.	0.93	2322	373,400	161	
17 Jefferson Ave.	1.26	2116	375,700	178	
18 Jefferson Ave.	0.93	4074	459,500	113	
21 Jefferson Ave.	1.09	2352	371,900	158	
22 Jefferson Ave.	0.93	2613	379,900	145	
25 Jefferson Ave.	0.92	2956	408,500	138	
26 Jefferson Ave.	0.93	2476	374,800	151	
			Average:	138	
* The information pertaining to the subject property is italicized

The appellant also compared the subject property's assessed value, Zestimate® value, and eppraisal™ value to those for the 11 Jefferson Avenue property, which had sold for $337,000 in February, 2009, 13 months after the relevant assessment date. The following table reproduces the appellant's comparison of these two properties.
Appellant's Value Comparison*
Address	Assessed Value	Zestimate® Value	Eppraisal™ Value	
11 Jefferson Ave.	$381,100	$420,000	$378,000	
17 Jefferson Ave.	$375,700	$368,000	$343,000	
Difference	$  5,400	$ 52,000	$ 35,000	
* The information pertaining to the subject property is italicized

The appellant did not submit into evidence any property record cards for any of the other Jefferson Avenue properties to verify and corroborate her and her husband's suppositions for them or a deed to substantiate the sale information for the 11 Jefferson Avenue property.  
In support of the assessment, Mr. Mazur submitted his own comparable-assessment analysis, with supporting property record cards, pictures, and a map.  His analysis included only split-level style dwellings substantially similar to the subject property and from the same neighborhood.  He believed that his analysis, which is reproduced in the table below, confirmed that these style properties had been assessed by the assessors in a similar and consistent manner, particularly concerning what he considered to be the three key adjustments that determine a properties' assessment -- namely the neighborhood, house grade, and depreciation.  
Mr. Mazur's Comparable-Assessment Analysis*

Parcel	Address	Nbhd	Area
Acres	HouseGrade	AYB	EYB	ELA	Bed-rooms	Bath-rooms	Cent A/C	AV
$		104-54	10 Madison Ave.	60	1.12	5	1960	1987	2743	3	1.5	Yes	430,100		104-25	9 Lincoln Rd.	60	1.27	5	1960	1987	1957	3	1.5	Yes	387,200		104-37	22 Jefferson Ave.	60	0.93	5	1961	1987	1963	3	1.5	Yes	379,900		104-41	31 Jefferson Ave.	60	0.92	5	1960	1987	1942	3	1.5	Yes	378,200		94-36	23 Madison Ave.	60	0.94	5	1960	1987	1904	3	1.5	Yes	377,500		104-44	17 Jefferson Ave.	60	1.26	5	1960	1987	1688	3	2.0	Yes	375,700		104-38	26 Jefferson Ave.	60	0.93	5	1960	1987	1889	3	1.5	Yes	374,800		* The information pertaining to the subject property is italicized

Mr. Mazur also compared the subject property's assessment to the adjusted sale price of the split-level style property located at 26 Jefferson Avenue, which he also included in his comparable-assessment analysis reproduced in the table above.  This property had sold in May, 2007, approximately 7 months before the relevant assessment date, for $425,000.  Mr. Mazur adjusted the 26 Jefferson Avenue property's time-adjusted sale price of $420,240 for various physical differences with the subject property, including effective living area, number and type of bathrooms, and parcel size.  The gross adjustments, not including the time adjustment, totaled $37,788 or approximately nine percent of its time-adjusted sale price.  After applying the adjustments to the 26 Jefferson Avenue property's time-adjusted sale price, the indicated value for the subject property, after rounding, equaled $413,100.    
Based on all of the evidence, the Presiding Commissioner found that the appellant failed to meet her burden of proving that the subject property's assessment for fiscal year 2009 exceeded its fair cash value.  The Presiding Commissioner found that the appellant's "$/Square Foot Comparison" contained uncorroborated data and was based on a faulty premise.  Without property record cards for the other Jefferson Avenue properties, except for several that the assessors' submitted when they presented their case, or submissions containing similar information, the Presiding Commissioner was unable to verify the data contained in the appellant's analysis or the comparability of her chosen properties.  Moreover, by dividing her properties' overall assessment by their dwellings' gross area to determine a unit of comparison, she incorrectly assumed that all other factors or components between the subject property and these properties were equal.  Consequently, she did not adjust for obvious differences between the subject property and these properties.  Just a cursory look at the land acreage of the properties in her analysis reveals that the subject property's land area is as much as 25% more than most of the others.  Some of the overlapping properties, contained in both the appellant's and the assessors' analyses, where the assessors submitted property record cards into evidence, revealed additional differences between properties.  Without property record cards for the other properties contained in the appellant's analysis, observations, comparisons, and adjustments for them were not possible.  Under the circumstances, the Presiding Commissioner found that the appellant's analysis did not provide credible or reliable evidence of the subject property's value.  Moreover, the Presiding Commissioner found that the assessors' comparable-assessment and comparable-sale submissions tended to support the subject property's assessment.
Lastly, the Presiding Commissioner found that the value information which the appellant submitted from two on-line resources, Zestimate® and eppraisal™, was not reliable or credible evidence of the subject property's fair cash value or the other properties' values.  The Presiding Commissioner found that this hearsay evidence was opinion testimony which, although not objected to by the assessors, was offered without proper foundation, qualification, or underlying factual support, and without providing the assessors with an opportunity for cross-examination.  Accordingly, the Presiding Commissioner gave it no weight.  
On this basis, the Presiding Commissioner found that the appellant did not sustain her burden of demonstrating that the subject property's assessment for fiscal year 2009 exceeded its fair cash value.  The Presiding Commissioner, therefore, decided this appeal for the appellee.    

OPINION
	 The assessors are required to assess real estate at its fair cash value as of the January 1st preceding the fiscal year under consideration.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market 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. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" 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] 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 this appeal, the appellant attempted to demonstrate that the assessors had overvalued the subject property by comparing the subject property's overall assessed value ($375,700) divided by the dwelling's gross area (2,116 square feet), resulting in a square-foot-value of $178, to other Jefferson Avenue properties which had values considerably lower, averaging only $138 per square foot.  The Presiding Commissioner found, however, that the appellant's "$/Square Foot Comparison" contained uncorroborated data and was based on a faulty premise.  Without property record cards for the other Jefferson Avenue properties, except for several that the assessors submitted when they presented their case, or submissions containing similar information, the Presiding Commissioner was unable to verify the data contained in the appellant's analysis or the comparability of her chosen properties.  Moreover, by dividing her properties' overall assessment by their dwellings' gross area to determine a unit of comparison, she incorrectly assumed that all other factors or components between properties were equal.  Just a cursory look at the land acreage of the properties in her analysis reveals that the subject property's land area is as much as 25% more than most of the others.  Some of the overlapping properties, contained in both the appellant's and the assessors' analyses, where the assessors submitted property record cards into evidence, reveal additional differences between properties.  The appellant made no adjustments for these obvious differences between the subject property and the other properties.  Without property record cards for the additional other properties contained in the appellant's analysis, further observations, comparisons or adjustments for those properties were not possible.  
The appellant bears the burden of "establishing the comparability of . . . properties [used for comparison] to the subject property."  Fleet Bank of Mass. v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 1998-546, 1998-554.  Accord New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).  "After researching and verifying the  . . . data and selecting the appropriate unit of comparison, the appraiser adjusts for any differences."  Appraisal Institute, The Appraisal of real estate 307 (13th ed. 2008).  
Similarly, the Presiding Commissioner gave no weight to the 11 Jefferson Avenue sale introduced by the appellant because she failed to establish its comparability to the subject property and failed to apply appropriate adjustments.  The appellant additionally neglected to enter the pertinent deed into evidence corroborating any relevant information relating to this sale or its applicable property record card to help establish its comparability to the subject property.
Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  Evidence of comparable assessments may also be used to determine a property's fair cash value.  "At any hearing relative to the assessed fair cash valuation . . . of property, evidence as to the fair cash valuation . . . at which assessors have assessed other property of a comparable nature . . . shall be admissible." G.L. c. 58A, § 12B.   
The introduction of assessment evidence may provide adequate support for either the granting or denial of an abatement.  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36;  Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  Purportedly comparable properties used in a comparable-assessment analysis must be adjusted, just like those used in a comparable-sales analysis, for differences with the subject property.  See Graham, Mass. ATB Findings of Fact and Reports at 2007-402 ("The assessments in a comparable assessment analysis, like the sale prices in a comparable sales analysis, must also be adjusted to account for differences with the subject."), aff'd, 73 Mass. App. Ct. 1107 (2008); Lupacchino v. Assessors of Southborough, Mass. ATB Findings of Fact and Reports 2008-1253, 1269 ("[W]ithout appropriate adjustments . . . the assessed values of [comparable] properties [do] not provide reliable indicator[s] of the subject's fair cash value."). 
In the present appeal, the appellant did not adjust for the differences between the properties that she selected for comparison to the subject property, while the assessors did adjust for differences between their comparable-sale property and the subject property.  While one comparable-sale property does not ordinarily make a reliable comparable-sales analysis, see Carney v. Assessors of Ashland, Mass. ATB Findings of Fact and Reports 2011-559, 566 ("the sale of a single purportedly comparable property is generally not sufficient to establish the fair cash value of property") and The Appraisal of real estate at 141 ("The sale comparison approach is most useful when a number of similar properties have recently been sold . . . in the subject property's market" (emphasis added)), it is still some evidence of value, and it indicated here that subject property was not overvalued.  See id. at 298, n.1 ("[A]s soon as the market consists of only one buyer and one seller, called bilateral monopoly, economic theory can no longer predict a unique price . . . [only] a minimum . . . and a maximum sale price . . . [because the] transaction price depends not on supply and demand but on the negotiating or bargaining skills of the buyer and seller."); see also Brennan v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 2004-548, 554 (using a single sale to corroborate the overall appropriateness of the assessment).  
Under the circumstances, the Presiding Commissioner found that the appellant's analysis did not provide credible or reliable evidence of the subject property's fair cash value, while the adjusted value assigned to the assessors' comparable-sale property did provide some evidence in support of the assessment.  Moreover, the assessors' comparable-assessment analysis showed consistency in their assessment of split-level properties located in the subject property's neighborhood.    
Lastly, the Presiding Commissioner found that the value information which the appellant submitted from two on-line resources, Zestimate® and eppraisal™, was not reliable or credible evidence of the subject property's or other properties' values.  The Presiding Commissioner found that this hearsay information was opinion evidence, which, although not objected to by the assessors, was offered without proper foundation, qualification, or underlying factual support and without providing the assessors with an opportunity for cross-examination.  Accordingly, the Presiding Commissioner gave it no weight.  See, e.g., Pelletier v. Assessors of Oxford, Mass. ATB Findings of Fact and Reports 2010-963, 967, n.1 ("the opinions [contained in] on-line sources were unsupported and not subject to cross-examination by the assessors, further diminishing the evidentiary weight of the opinions."); Cornetta v. Assessors of Topsfield, Mass. ATB Findings of Fact and Reports 2010-543, 546, n.1 ("[T]he valuation [from an on-line resource] . . . contained no valuation date or explanation as to the basis of the value and constituted inadmissible hearsay, with no opportunity for cross-examination by the assessors.  Accordingly, the Board gave no weight to this data.").  The Presiding Commissioner also gave no weight to the 11 Jefferson Avenue sale introduced by the appellant because she failed to establish its comparability to the subject property, see Fleet Bank of Mass., Mass. ATB Findings of Fact and Reports at 1998-554, and to apply appropriate adjustments.  See The Appraisal of Real Estate at 307.
In reaching its decision in this appeal, the Presiding Commissioner was not required to believe the testimony of any particular witness or to adopt any particular method of valuation that a witness suggested.  Rather, the Presiding Commissioner could accept those portions of the evidence that the Presiding Commissioner determined had more convincing weight. Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp., 383 Mass. at 469.  "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).


On this basis, the Presiding Commissioner decided this appeal for the appellee. 


					 APPELLATE TAX BOARD

					By:	_______________________________
						Thomas J. Mulhern, Commissioner




A true copy,

Attest: _____________________________
	       Clerk of the Board

 The tax includes a $48.85 Community Preservation Act ("CPA") assessment.  
 The appellant timely mailed her petition on May 12, 2009, and the Board received it on the following day.  See G.L. c. 59, § 65 ("If any such petition is, after the period or date prescribed by this section, delivered by United States mail . . . to such board, the date of the United States postmark . . . affixed on the envelope or other appropriate wrapper in which such petition is mailed or delivered shall be deemed to be the date of delivery . . . .").

 The abbreviations in Mr. Mazur's comparable-assessment analysis, reproduced in the table above: "Nbhd"; "AYB"; "EYB"; "ELA"; "Cent A/C"; and "AV" are acronyms for: "neighborhood"; "actual year built"; "effective year built"; "effective living area"; "central air-conditioning"; and "assessed value," respectively.   

ATB 2011-600