James Mattson Frost v. Board of Assessors of the Town of Burlington (September 30, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JAMES MATTSON FROST	       v.    	BOARD OF ASSESSORS OF                        
							THE TOWN OF BURLINGTON
 
Docket No. F287982				Promulgated:
		  		   			September 30, 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, the Board of Assessors of the Town of Burlington ("appellee" or "assessors"), to abate taxes on real estate located in the Town of Burlington, owned by and assessed to James Mattson Frost ("appellant"), under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
Chairman Hammond heard the appeal.  Commissioners Scharaffa, Rose, Egan, and Mulhern joined him in the decision for the appellee.  These findings of fact and report are made at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

James Mattson Frost, pro se, for the appellant.
Russell Washburn, assessor, 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, the appellant was the assessed owner of a 0.505-acre parcel of real estate located at 14 Chadwick Road in the Town of Burlington ("subject property").  The parcel has 2,240 square feet of finished living area and is improved with a contemporary, Colonial-style dwelling. 
The assessed value of the subject property for fiscal year 2007 was $519,800, and it was taxed at a rate of $9.20 per thousand in the total amount of $4,782.16.  Of the total assessed value of $519,800, $301,600 was attributable to the subject land and $218,200 was attributable to the residence.  Taxes due were timely paid without incurring interest.  The appellant filed an abatement application on January 29, 2007.  The application was denied by a vote of the assessors on February 22, 2007.  The appellant timely filed a Petition under Formal Procedure with the Board on March 19, 2007. Based on the foregoing facts, the Board found and ruled that it had jurisdiction over this appeal.
The appellant had filed appeals with the Board for each of the two fiscal years immediately preceding the fiscal year at issue.  In the fiscal year 2005 appeal, the Board found that an assessed value of $463,000 was excessive and determined a fair cash value of $450,000.  In that case, the appellant furnished evidence which showed that the subject property was in "below average" condition.  The appellant also offered an analysis which showed that similar properties were assessed at a lower per-square-foot value than the subject property.  See Frost v. Assessors of Burlington, Mass. ATB Findings of Fact and Report 2006-374.  The appellant's evidence in that case was essentially uncontested and not rebutted by the assessors, and the Board thus granted the appellant an abatement in fiscal year 2005.  
In the fiscal year 2006 appeal, however, the Board found that the fair cash value of the subject property was its assessed value of $508,600.  In that case, the assessors presented sufficient evidence to show that the dwelling was in "average" condition, and further, that adjusted sales of nearby properties with similar market appeal supported a subsequent increase in assessed value.  See Frost v. Assessors of Burlington, Mass. ATB Findings of Fact and Report 2007-1118.  The Board thus decided in favor of the appellee for fiscal year 2006.  
Because the Board issued a decision in favor of the appellant in the fiscal year 2005 appeal, the assessors had the burden of going forward with evidence showing that the increase in value to $519,800 for fiscal year 2007 was warranted.  See G.L. c. 58A, § 12A.    
The subject property's dwelling was built in 1981.  It has a primarily clapboard exterior and an asphalt-shingle roof cover.  The foundation is concrete.  The dwelling is two-storied and contains approximately 2,240 square feet of gross living area.  There are a total of eight rooms, including four bedrooms, as well as one full bathroom, one three-quarter bathroom, and one half bathroom.  The property record card prepared by the assessors rates the subject property in average condition, with a grade of C+. 
As it had in the fiscal year 2006 appeal, the appellee offered the testimony of a member of the board of assessors, Russell Washburn.  Mr. Washburn testified that he had visited the subject property several times, and that the increase in its value reflected the general rate of appreciation in the town.  Mr. Washburn also testified that nearly all of the comparable sales used by the assessors to derive the subject property's assessed value had been improved with Colonial-styled dwellings and had similar square-footage.  In addition, Mr. Washburn testified that he made negative adjustments to the subject property's value for both wetland and an easement for the presence of a town drain, each at a rate of five percent.  The Board found Mr. Washburn to be credible, and his opinions and conclusions to be well substantiated on the basis of his familiarity with the subject property.        
The appellant submitted comparable assessment and sales data in support of his fiscal year 2007 abatement application.  An abridged summary of the appellant's submission, which included property record cards and assessment data for each of his six alleged comparable properties, is as follows:  
Address	Most Recent Sale	Sales Price	FY07 Assessment	
1 Orchard Circle	1982	$0 	$513,600 	
27 Church Lane	1995	$10 	$485,500 	
27 Maud Graham	1998	$298,500 	$490,300 	
31 Bedford 	1994	$294,000 	$568,000 	
81R Bedford 	2004	$1 	$504,400 	
49 Fairfax St. 	2006	$1 	$514,700 	
Mr. Washburn testified that based on his inspections and knowledge of the subject, the comparables submitted by the appellant were not the best indicators of the subject property's value.  The Board found Mr. Washburn's testimony persuasive.  Four of the comparables used by the appellant appeared to have been sold in non-arms'-length transactions, since they were conveyed without, or with only nominal, consideration.  The appellant's remaining two comparables were sold long before the assessment date at issue, and no evidence of time adjustments were offered.  Moreover, the appellant failed to make adjustments for differences between the subject property and its comparables, and he testified that he believed such adjustments were unnecessary.
The appellant also alleged that the sales, which he believed were used by the assessors to support the subject property's assessment for the fiscal year at issue, contained a number of flaws.  The appellant argued that recently constructed property was being unfairly compared against his own, that the assessors' comparables were nearly 20 percent larger, and that they were generally located over two miles from the subject property.  However, the appellant failed to show that the assessors relied upon the alleged comparables, or that the assessors did not appropriately adjust them.  In fact, Mr. Washburn testified that the "comparable sales" listed on the subject's property record card were for general statistical information as part of the mass appraisal process, and were not used as direct comparables to the subject.  Thus, the Board found that the appellant's critique of the assessors' alleged comparables was without merit.  
In addition, the appellant contended generally that, because most of the dwellings on Chadwick Road were inferior to the subject property's dwelling, the subject property experienced a decrease in value by being located in an inferior neighborhood.  The appellant failed, however, to show what specific impact, if any, the other properties on Chadwick Road had upon the valuation of the subject property.  
Finally, the appellant argued, and submitted photographs to show, that the subject property was inferior based on its overall condition.  To that end, the appellant cited several of the subject property's defects including rot, water damage, and warping of the home's wooded interior and exterior.  However, in light of Mr. Washburn's familiarity with the subject property, the Board determined that the subject property's flaws were taken into account by the assessors when reaching its assessment for fiscal year 2007.  Indeed, the subject's property record card reported it to be in "average" condition, and the assessors likewise proved that they had made the appropriate neighborhood, wetland and land-based easement adjustments necessary to adequately support the subject property's assessed value for fiscal year 2007.  
The Board found that the best evidence of value before it was the sale of a nearly identical Colonial-styled property at 7 Winnmere Avenue.  Sold in late 2005 for $659,000, 7 Winnmere Avenue was presented as part of the appellant's submission of comparables that were allegedly used by the assessors to support the subject property's assessment for the fiscal year at issue.  The property at  7 Winnmere Avenue contains 0.359 acres of land, 2,190 square feet of living area, and has eight total rooms, including four bedrooms, as well as one full bathroom and a three-quarter bathroom.  Also, its property record card reported the building to be in similarly "average" condition.  The Board found that the sale of 7 Winnmere Avenue supported the subject property's assessment for the fiscal year at issue.  
In sum, the Board found that the appellee met its burden in presenting evidence that supported the increase in the subject property's fiscal year 2007 assessment over the fair cash value found by the Board for fiscal year 2005.  The Board reached its decision on the basis of the assessors' evidence, including its comparable sales analysis, which included appropriate adjustments.  By contrast, the Board found the appellant's omission of relevant adjustment data to be critically detrimental to his comparative analysis.  Accordingly, the Board decided the instant appeal for the appellee.

OPINION
"All the 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."  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).  
Generally, the appellant has the burden of proving that the assessors failed to assess the subject property at its fair cash value.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47,     55 (1922)).  If, however, within the two preceding fiscal years the Board has determined the fair cash value of the subject property and the assessment at issue exceeds that determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  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 & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87.  Since the Board found for the appellant in fiscal year 2005, the burden remained on the appellee to present evidence showing that its increase in assessment in fiscal year 2007 was warranted, even though the Board ruled that an increase in assessment was warranted for fiscal year 2006.  G.L. c. 58A, § 12A.
The Board often relies on the market approach of valuation for owner-occupied residential property.  "Evidence of the sale prices of 'reasonably comparable property' is the next best evidence to the sale of the property in question."  Lattuca v. Robsham, 442 Mass. 205, 216 (2004)(citation omitted).  The fair cash value of property cannot, however, 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 (Mass. 1941).  Moreover, "[t]he 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).  
In the present case, Mr. Washburn testified that all of the comparable sales used by the assessors had been improved with Colonial-styled dwellings with similar square-footage.  In addition, the assessors properly made negative adjustments for wetland and land-based easements.  By contrast, the appellant submitted evidence of comparable assessments but failed to provide relevant comparable sales data.  "Reliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value."  Graham v.  Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403.  The appellant failed to provide relevant comparable sales data.  Compounding this defect was the fact that the appellant made no attempt to make adjustments to his comparable assessments, where appropriate.  "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."     New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).  "Adjustments for differences are made to the price of each comparable property to make that property equivalent to the subject in market appeal on the effective date of the opinion of value."  The Appraisal Institute,        The Appraisal of real Estate 430 (12th ed., 2001).  Since his comparative analysis was fundamentally flawed, the Board found that the appellant's arguments carried little weight.  
For the reasons stated above, the Board found and ruled that the appellee met its burden of presenting evidence which showed that the increase in the subject property's assessment over its fair cash value found by the Board for fiscal year 2005 was warranted.  The Board thus ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for the fiscal year at issue.  On this basis, the Board issued a decision for the appellee in this appeal.


                  		APPELLATE TAX BOARD

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






A true copy,


Attest:				______	
           Clerk of the Board

 The appellant received a partial abatement due to the existence of a woodstove in subject property.  The assessors' original report erroneously listed the woodstove as a fireplace.   

	ATB 2008-1220

	ATB 2008-1209