James M. Frost v. Board of Assessors of the Town of Burlington (May 31, 2006)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




JAMES M. FROST				v.	BOARD OF ASSESSORS OF
							THE TOWN OF BURLINGTON

Docket No. F278506				Promulgated:
							May 31, 2006


	This is an appeal filed under the informal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on real estate located in the Town of Burlington, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2004.
	Commissioner Rose ("Presiding Commissioner") heard the appeal and, in accordance with G.L. c. 58A, § 1A, issued a single-member decision for the appellant and granted an abatement in the amount of $105.30. 
	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.
		
	James M. Frost, pro se, for the appellant.
	James F. Sullivan, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of the exhibits and testimony offered into evidence during the hearing of this appeal, the Presiding Commissioner made the following findings of fact.  
On January 1, 2004, James M. Frost was the assessed owner of an approximately one-half acre parcel of real estate located at 14 Chadwick Road in the Town of Burlington ("subject property").  The subject property is improved with a colonial-style single-family dwelling with a finished living area of 2,464 square feet.  
For fiscal year 2005, the Board of Assessors of the Town of Burlington ("assessors") valued the subject property at $463,000 and assessed a tax, at the rate of $8.10 per thousand, in the total amount of $3,750.30, which the appellant paid without incurring interest.  On January 27, 2005, within thirty days of the mailing of the tax bills, the appellant timely filed an application for abatement with the assessors.  The assessors denied the abatement application on March 17, 2005, and on April 26, 2005, the appellant seasonably filed an appeal, under the informal procedure, with the Board.  On May 17, 2005, the assessors requested that the case be transferred to the formal procedure.  On the basis of these facts, the Presiding Commissioner ruled that the Appellate Tax Board ("Board") had jurisdiction over this appeal.
	At the hearing of this appeal, the appellant argued that the subject property was overvalued for fiscal year 2004 because the assessors failed to properly consider the subject property's building condition.  The appellant attempted to prove his assertion through his testimony and photographs of the subject property.  The assessors offered no affirmative evidence of value and relied on the presumed validity of the assessment.  Based on the evidence presented, the Presiding Commissioner made the following findings of fact.	
Built in 1981, the dwelling contains a total of approximately 2,464 square-feet of living space.  There are a total of eight rooms, including four bedrooms, one full bath, one three-quarter bath, and one half-bath.  There is a wooden deck in the rear of the property and also an attached two-car garage.  The exterior of the dwelling is clapboard and there is an asphalt-shingle hip roof.  The home has forced hot-water oil heating, but no central air-conditioning.
To prove that the subject property was overvalued, the appellant relied on what he deemed to be mistakes in the assessors' property record card pertaining to the subject property.  Namely, the appellant argued that the assessors' property record card erroneously listed the subject property's condition as "average."  The appellant presented testimony and photographs of the subject property which showed the interior to be in a general condition of disrepair and incomplete construction.  The appellant also offered evidence which showed that the exterior of the subject property was, in his opinion, in less than average condition.  The appellant also offered an analysis of other assessments of what he considered to be reasonably comparable properties in the area.  The analysis showed that properties that were similar in size and assigned a similar, or better, condition rating, were assessed at a lower per-square-foot value than the subject property.  
On the basis of these facts, the Presiding Commissioner found that the appellant met his burden of proving that the subject property was overvalued for fiscal year 2004.  Specifically, the Presiding Commissioner found that the assessors did not take into account the subject property's overall state of disrepair when assigning to the property a condition factor of "average" and that such condition warranted a five-percent reduction in the building assessment value thereby reducing the subject property's overall assessment from $463,000 to $450,000.  Accordingly, the Presiding Commissioner granted an abatement to the appellant in the amount of $105.30.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation."  G.L. c. 59, § 2.  The assessors are required to assess real estate at its fair cash value determined as of the first day of January of each year.  G.L. c. 59, §§ 2A 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 subject 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) ("Schlaiker") (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he [B]oard 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)("General Electric") (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, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeal, the appellant offered evidence showing that the assessors' valuation was flawed and affirmative evidence, including photographs and testimony, undermining the assessors' valuation.  The appellant submitted evidence to show that the assessors' classification of the subject property's condition was erroneous.  Based on the evidence presented, the Presiding Commissioner found that the subject property's building condition was less than the assessors' stated "average" condition and, therefore, warranted a reduction in value.  Further, appellant's analysis of comparable assessments provided affirmative evidence of overvaluation.  Therefore, based on the evidence presented, the Presiding Commissioner found and ruled that the appellant met his burden of proving that the subject property's fiscal year 2004 assessment was excessive.
General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  Chouinard v. Assessors of Natick, ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, ATB Findings of Fact and Reports 1995-129, 135-36; Swartz v. Assessors of Tisbury, ATB Findings of Fact and Reports 1993-271, 279-80).  "The introduction of ample and substantial evidence in this regard may provide adequate support for . . . abatement."  Id.  
	The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 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 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 [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
Based on the evidence presented, the Presiding Commissioner found and ruled that the appellant met his burden of proving that the subject property's assessment was excessive.  After comparing the subject property's condition to that listed on the property record card, and considering the evidence of comparable assessments, the Presiding Commissioner found and ruled that the subject property's assessment was excessive and should be reduced to $450,000 as of the January 1, 2003 date of assessment for fiscal year 2004.  
On this basis, the Presiding Commissioner decided this appeal for the appellant and granted an abatement in the amount of $105.30.
						APPELLATE TAX BOARD


				By:	___________________________________
					James D. Rose, Commissioner



A true copy,



Attest:	____________________________
		Assistant Clerk of the Board

 Within thirty days of the service of the appeal, the Town of Burlington, in accordance with G.L. c. 58A, § 7A, elected to have the appeal heard under the formal procedure. 

ATB 2006-371