Roman Catholic Bishop of Worcester-St. Joseph Parish v. Board of Assessors of the Town of Auburn (September 12, 2013)

COMMONWEALTH OF MASSACHUSETTS

		            APPELLATE TAX BOARD


ROMAN CATHOLIC BISHOP OF 	v.		BOARD OF ASSESSORS OF
WORCESTER-ST. JOSEPH PARISH			THE TOWN OF AUBURN
							 		   
Docket No. F313177 					Promulgated:
  						September 12, 2013
							   
	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 Board of Assessors of the Town of Auburn ("assessors" or "appellee"), to abate taxes on certain real estate in Auburn, owned by and assessed to the Roman Catholic Bishop of Worcester - St. Joseph Parish ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2011 ("fiscal year at issue").
	Chairman Hammond heard this appeal. Commissioners Scharaffa, Rose, Chmielinski, and Commissioner Mulhern joined him in the corrected decision for the appellant.
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.
 
	Deacon Peter Ryan, pro se, for the appellant.

Cynthia Cosgrove, Chief Assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
On January 1, 2010, the appellant was the assessed owner of a parcel of real estate located at 188 Oxford Street in the Town of Auburn ("subject property"). For assessment purposes, the subject property is identified as parcel number 17/211/0000. The subject property consists of 24,123 square feet of land improved with single-story wood-framed building which was formerly used as a church. For the fiscal year at issue, the assessors valued the subject property at $264,000 and assessed a tax thereon, at a rate of $24.33 per thousand, in the total amount of $6,423.12. The assessors valued the land component of the subject property at $138,500 and the building at $125,500, after a 50-percent depreciation factor.
	On December 31, 2010, Auburn's Deputy Collector of Taxes sent out the town's actual real estate tax bill fiscal year 2011. In accordance with G.L. c. 59, § 57, the appellant timely paid the tax due without incurring interest. On February 1, 2011, the appellant timely filed its abatement application with the assessors. On March 29, 2011, the assessors issued a notice to the appellant purporting to deny its application. The notice stated, "Your application was deemed by vote of the assessors on May 19, 2011." Notwithstanding the contradictory and confusing nature of this notice, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on May 4, 2011, alleging that the subject property was overvalued. On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	At the hearing of this appeal, only one witness testified for the appellant: Deacon Peter Ryan, who was authorized by the appellant to handle this appeal and had first-hand knowledge of the condition of the subject property. Deacon Ryan conceded that the subject property did not qualify as an exempt house of worship under G.L. c. 59, § 5, clause 11, but maintained that it was both overvalued and misclassified as commercial property.
	The property record card for the subject property, which was introduced into the record, showed that the subject property is a 24,123 square foot site with an irregular shape. It is improved by a church building that is more than 140 years old. The structure has 6,337 square feet of finished area, along with a 140-square-foot enclosed porch and a 48-square-foot open, finished porch for a total gross area of 6,525 square feet. Deacon Ryan testified that the building was closed by the appellant in 2006 and since then, it has been unheated, which caused the floors to buckle. In addition, he testified that the boilers are in a state of disrepair, the roof leaks, and asbestos shingles on the exterior are peeling and falling off. The Board found Deacon Ryan's testimony to be credible.
	During his testimony, Deacon Ryan argued that the subject property was grossly overvalued because of the deplorable condition of the building. He also noted that the assessors conceded that its condition was poor, after initially claiming it was average. Deacon Ryan further testified that the Diocese's property manager indicated that it would cost around $90,000 to demolish the building. In addition, he testified that it would cost around $250,000 to repair the building, and his testimony was supported by documentary evidence detailing needed improvements. Based on the condition of the building, the costs associated with demolition and the location of the subject parcel, Deacon Ryan concluded that the fair cash value of the subject property for the fiscal year at issue was $100,000.
	The appellant also submitted a sheet with 19 property listings for land in Auburn, two of which were commercial. Only one of these properties had actually sold, and the list contained no sale dates. The residential properties had list prices in the $65,000 to $90,000 range. In addition, two commercial properties were listed: one 15,570-square-foot lot for $119,000, and one 48,787-square-foot lot for $689,000. Due to the lack of actual sales information and dates, the Board found that this list was of only marginal utility.
	With respect to the appellant's classification claim, Deacon Ryan argued that the church was improperly classified as commercial property because it was located in a neighborhood zoned residential. However, no evidence was offered to establish that the subject property was used or held for human habitation or was subdivided into residential lots, as is required for residential classification by G.L. c. 59, § 2A.
	In support of the assessment, Cynthia Cosgrove, Auburn's Chief Assessor, offered the requisite jurisdictional documents and a letter from Auburn's building inspector, Nicholas Antanavica, regarding the occupational safety of the structure. 
Ms. Cosgrove did not contest or rebut Deacon Ryan's testimony but instead relied on the building inspector's letter, which indicated that the building had no significant structural damage and that it did not pose imminent danger to persons working in the building for repair and cleaning purposes. Given the credible evidence in the record, the Board found this letter to be of no probative value.
	Based on all of the evidence, the Board found that the building on the subject property was functionally obsolete and in a complete state of disrepair. Deacon Ryan's credible testimony established the poor condition of the old church, and there was no rebuttal testimony by the appellee. The Board therefore found that the structure added no value to the subject property and that the highest and best use of the subject property would be as vacant land suitable for development after the building was demolished. 
The Board therefore found that the appellant had successfully demonstrated that the subject property was overvalued for the fiscal year at issue. Further, on the basis of all the evidence of record, the Board found that the fair cash value of the subject property was $100,000. However, for the reasons detailed in the following Opinion, the Board ruled that the subject property was correctly classified as commercial property under G.L. c. 59, § 2A. 
The Board, therefore, decided this appeal for the appellant and granted an abatement in the amount of $3,990.12.

OPINION
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 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 an appeal 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 appeal, the appellant introduced affirmative evidence of value in an attempt to overcome the presumed validity of the assessment. However, the Board found and ruled that the appellant's valuation evidence, consisting of 19 property listings, suffered from the deficiencies detailed above and accordingly it placed no reliance on it. The list prices of other properties, as opposed to their sale prices, do not provide reliable evidence of a parcel's fair cash value, or even of the fair cash value of the listed properties. See Gouck v. Assessors of North Attleboro, Mass. ATB Findings of Fact and Reports 2009-554, 663.
The Board is "entitled to 'select the various elements of value as shown by the record and from them form . . . [its] own independent judgment.'" (emphasis in original). Id. at 605 (quoting North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984))(additional citation omitted).	"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).
Notwithstanding the deficiencies in the comparable sales evidence offered by the appellant, the Board, in reliance on the entire record, including the credible testimony of Deacon Ryan and the documentary evidence detailing the deplorable condition of the building, found and ruled that the assessed value of the subject property greatly exceeded its fair cash value for the fiscal year at issue. See, e.g., General Electric, 393 Mass. at 599-600. Further, the assessors did not meaningfully contest or rebut the appellant's testimony about the condition of the subject property, or the estimated costs of demolition or repair.
	In regard to the classification issue, the Board found and ruled that the subject property was properly classified as commercial property under G.L. c. 59, § 2A, as opposed to residential. This section defines residential property as "property used or held for human habitation" or residentially zoned land that has been subdivided into residential lots. The subject property meets neither criterion. Moreover, the commercial property class works as a catch-all and includes "property … not specifically includible in another class."   G.L. c. 59, § 2A. Because the subject property does not meet the definition of residential property under § 2A and is not specifically includable within any of the other § 2A classes, it is properly classified as commercial. Although the appellant may be correct in arguing that the subject property was not likely to be developed commercially, the Board ruled that it was still properly classified as commercial property for assessment purposes under G.L. c. 59, § 2A for the fiscal year at issue.
	Drawing on its subsidiary findings and the above principles, the Board found that the fair cash value of the subject property for the fiscal year at issue was $100,000, which was $164,000 less than its assessed value of $264,000. 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 Consolidated Gas Co., 309 Mass. 60, 72. (1941). However, given the demolition and remediation costs of the site, it was clear that the property was grossly overvalued.
	Having concluded that the appellant met its burden of proving that the assessment exceeded the fair cash value of the subject property for the fiscal year at issue, the Board decided this appeal for the appellant and granted an abatement in the amount of $3,990.12.


                             THE APPELLATE TAX BOARD 


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




A true copy:

Attest: _________________________
	      Clerk of the Board

 The appellant initially filed this appeal under the informal procedure pursuant to G.L. c. 58A, § 7A. The appellee timely elected to have the appeal transferred to the formal procedure pursuant to § 7A. 

ATB 2013-886