Mark J. Brooks v. Board of Assessors of the Town of Worthington (September 23, 2013)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


MARK J. BROOKS			   v.        BOARD OF ASSESSORS OF
							  THE TOWN OF WORTHINGTON

Docket Nos. F311268, F311269 (FY 11)      Promulgated:
		 F317587, F317588 (FY 12)      September 23, 2013				

	These are appeals 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 Worthington ("assessors" or "appellee") to abate taxes on certain real estate in the Town of Worthington owned by and assessed to Mark J. Brooks ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal years 2011 and 2012 ("fiscal years at issue").
	Commissioner Mulhern ("Presiding Commissioner") heard these appeals and issued single-member decisions for the appellee in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.
	These findings of fact and report are made pursuant to requests by both the appellant and the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Mark J. Brooks, pro se, for the appellant.
	Jeffrey T. Blake, Esq. for the appellee.
FINDINGS OF FACT AND REPORT

On the basis of the testimony and exhibits offered into evidence at the hearing of these appeals, the Presiding Commissioner made the following findings of fact.
On January 1, 2010 and on January 1, 2011, the relevant dates of assessment, Mark J. Brooks was the assessed owner of two adjacent parcels of land located at Lindsay Hill Road ("Parcel 1") and 148 Lindsay Hill Road ("Parcel 2") (collectively "subject properties").  Parcel 1 is a 10.66-acre parcel of vacant land and for assessment purposes is identified as Map 403 Block 0 Lot 85 and contains 10.66 acres of unimproved land.  Parcel 2 is identified as Map 403 Block 0 Lot 86 and contains 10.45 acres of land improved with a two-story, single-family, contemporary-style home built in 1997.  The home has 1,814 square feet of finished living area, comprised of six rooms, including three bedrooms, as well as two full bathrooms.
Fiscal Year 2011
For fiscal year 2011, the assessors valued Parcel 1 and Parcel 2 at $50,900 and $249,200, respectively, and assessed taxes thereon at the rate of $12.42 per thousand, in the corresponding amounts of $632.18 and $3,095.06.  The appellant timely paid the taxes assessed without incurring interest.  On January 31, 2011, in accordance with G.L. c. 59, § 59, the appellant timely filed his abatement applications for the subject properties with the assessors, which the assessors denied on February 8, 2011.  The appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on May 9, 2011.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide the fiscal year 2011 appeals.
Because the assessors increased the assessment of Parcel 1 by $9,900, to $50,900, which exceeded the $41,000 value determined by the Board in the appellant's 2009 fiscal year appeal, the Presiding Commissioner found that the burden of going forward shifted to the assessors to show that an increase in value was warranted for fiscal year 2011.  See G.L. c. 58A, § 12A.  However, since the fiscal year 2011 assessment for Parcel 2, $249,200, was less than the Board's finding of value of $258,800 for fiscal year 2009, no burden shifted to the assessors with respect to Parcel 2 for fiscal year 2011.  
The assessors presented their case through the testimony of John Fosnot, a member of the assessors, and also submitted a listing of road closures during the period December 15, 2009 through April 15, 2010.  In his testimony at the hearing of the present appeals, Mr. Fosnot addressed the issue raised by the appellant in his fiscal year 2009 appeals, that the subject properties are located on a seasonal road which negatively impacts their fair market values.  Mr. Fosnot testified that although a portion of Lindsay Hill Road was closed during the winter months, the subject properties were not located within the affected area.  Mr. Fosnot testified and demonstrated to the Presiding Commissioner that the assessors had accounted for the road conditions by giving a 10% discount to the property's main site, consisting of two acres, and a 30% discount to the excess land.  
Mr. Brooks testified on his own behalf in this appeal.  In addition to his testimony, Mr. Brooks offered into evidence a listing of seven sales that occurred between November 13, 2009 and June 29, 2010.  Only two of the cited sales were vacant land sales and, at 15.18 acres and 49.56 acres, were considerably larger than Parcel 1.  The remaining four cited sales were parcels improved with single-family residences ranging in size from 768 square feet to 2,520 square feet.  The appellant did not, however, establish that these properties were sufficiently comparable to Parcel 2.  Further, the appellant failed to make any adjustments to the sale prices of these properties to account for differences with the subject properties.
On the basis of all of the evidence, the Presiding Commissioner found that the assessors met their initial burden of demonstrating that the increase in the assessed value of Parcel 1 for fiscal year 2011 over the Board's determination of value for fiscal year 2009 was warranted.  The Presiding Commissioner further found that the appellant failed to prove that either Parcel 1 or Parcel 2 had fair cash values less than their assessed values for fiscal year 2011.  Accordingly, the Presiding Commissioner issued decisions for the appellee in Docket Nos. F311268 and F311269.
Fiscal Year 2012
For fiscal year 2012, the assessors valued Parcel 1 and Parcel 2 at $48,800 and $218,900, respectively, and assessed taxes thereon, at the rate of $13.69 per thousand, in the corresponding amounts of $668.07 and $2,996.74.  The appellant timely paid the taxes assessed without incurring interest.  On January 31, 2012, in accordance with G.L. c. 59, § 59, the appellant timely filed his abatement applications for the subject properties with the assessors.  On March 27, 2012, the assessors denied the appellant's applications and, in accordance with G.L. c. 59, § 63, sent written notice of their denial to the appellant within ten days of their decision.  On July 13, 2012, more than three months after the date of denial, the appellant filed with the Board an appeal for each parcel.  Based on the foregoing, the Presiding Commissioner found and ruled that the Board lacked jurisdiction over the subject properties' fiscal year 2012 appeals.  Accordingly, the Presiding Commissioner issued decisions for the appellee in Docket Nos. F317587 and F317588.

OPINION
Fiscal Year 2011 Appeals
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value 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 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).  
If, however, the assessors have increased the value of property above the value found by the Board for either of the two preceding fiscal years, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  The Presiding Commissioner took judicial notice of the Board's fiscal year 2009 decision and finding of value and ruled in this appeal that the burden of going forward to justify the increase in the assessment of Parcel 1 from the Board's fiscal year 2009 value was on the assessors.  See, generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); see also Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87 ("Once a prior determination of the Board of the fair cash value of the same property [for one of the prior two fiscal years] has been placed in evidence . . . the statute requires the [assessors] to produce evidence to 'satisfy the Board that the increased valuation was warranted.'" (citation omitted)) ; Ellis v. Assessors of Northborough, Mass. ATB Findings of Fact and Reports 1983-522, 524, 526-28.  
Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains on the appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 8; Cressey Dockham, Mass. ATB Findings of Fact and Reports at 1989-86-87.  "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)).  
On the basis of all of the evidence, the Presiding Commissioner found and ruled in the present appeal that the assessors satisfied their burden of going forward to justify the increased valuation of Parcel 1 for fiscal year 2011, and that the appellant failed to present sufficient evidence to prove that the subject properties had fair market values less than their respective assessed values for fiscal year 2011.
 The Presiding Commissioner found that the assessors offered credible evidence that the subject properties were not located within that portion of Lindsay Hill Road that was closed during the period December 15, 2009 through April 15, 2010.  In addition, the Presiding Commissioner found that the assessors' land value discounts for access and road condition accounted for any potential negative impact to Parcel 1's fair cash value.  The Presiding Commissioner further found that the appellant failed to establish that his seven sales were sufficiently comparable to the subject properties and he also failed to make any adjustments to the sale prices of these properties to account for differences with the subject properties.
"The board [is] not required to believe the testimony of any particular witness but [may] accept such portions of the evidence as appear to have the more convincing weight.  Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  The credibility of witnesses, the weight of evidence, and 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).  The Board can select the various elements of value as shown by the record and form its own independent judgment of value.  Boston Consol. Gas, 309 Mass. at 72. 

Fiscal Year 2012 Appeals
G.L. c. 59, §§ 64 and 65 provide that a taxpayer may file an appeal with the Board "within three months after the date of the assessors' decision on an application for abatement."  The appellee denied the appellant's fiscal year 2012 abatement application on March 27, 2012 and sent notice thereof to the appellant on March 28, 2012, in accordance with G.L. c. 59, § 63.  The appellant, however, did not file his fiscal year 2012 petitions to the Board until July 13, 2012, which was more than three months after the appellee denied the abatement applications.  Therefore, the Presiding Commissioner found and ruled that the Board lacked jurisdiction over the appellant's fiscal year 2012 appeals.
The Board has only that jurisdiction conferred on it by statute.  Stilson v. Assessors of Gloucester, 385 Mass. 724, 732 (1982).  "Since the remedy of abatement is created by statute, the board lacks jurisdiction over the subject matter of proceedings that are commenced at a later time or prosecuted in a different manner from that prescribed by statute."  Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981) (citing Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495 (1936).  "[A] statutory prerequisite to jurisdiction cannot be waived by any act of the assessors."  Assessors of Boston v. Suffolk Law School, 295 Mass. at 494; Old Colony R. Co. v. Assessors of Quincy, 305 Mass. 509, 511-12 (1940).  Like the assessors, the Board also cannot waive jurisdictional requirements.  Id.  Accordingly, the time limit provided for filing the petition is jurisdictional and a failure to comply with it must result in dismissal of the appeal.  Smith v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2010-567, 571-72 (citing Cheney v. Inhabitants of Dover, 205 Mass. 501 (1910); Assessors of Boston v. Suffolk Law School, 295 Mass. 489 (1936)); see also Berkshire Gas Co. v. Assessors of Williamstown, 361 Mass. 873 (1972).  

Conclusion
Accordingly, the Presiding Commissioner issued decisions for the appellee in Docket Nos. F317587 and F317588 (fiscal year 2012), because the Board lacked jurisdiction, and for the appellee in Docket Nos. F311268 and F311269 (fiscal year 2011), because the appellant failed to meet his burden of proving a fair cash value less than the subject properties' assessments.
		 
THE APPELLATE TAX BOARD

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





A true copy,

Attest:	______	_____	_____
	      Clerk of the Board

 When the last day of a filing period falls on a Saturday, Sunday or legal holiday, the filing is still considered timely if it is made on the following business day. G.L. c. 4, § 9.  Because May 8, 2011 was a Sunday, the appellant's appeals filed on Monday, May 9, 2011 were timely.
 The Board took judicial notice in the present appeal of its decision and finding of value in the appellant's fiscal year 2009 appeal.
 The appellant did not appeal the subject properties' fiscal year 2010 assessments of $41,000 for Parcel 1 and $287,600 for Parcel 2.

ATB 2013-922