Byron and Cynthia Deysher v. Board of Assessors of the Town of Concord (December 20, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




BYRON AND CYNTHIA DEYSHER 	 v.	   BOARD OF ASSESSORS OF                    
                                 	   THE TOWN OF CONCORD

Docket No. F287041		        	   Promulgated:
							   December 20, 2007

	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 to abate a tax on real estate assessed under G.L. c. 59, §§ 11 and 38, for fiscal year 2006.  
	Commissioner Mulhern heard the appeal and was joined in the decision for the appellee by Chairman Hammond and Commissioners Scharaffa, Egan, and Rose.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Thomas Wray Falwell, Esq., for the appellants.
	Kevin D. Batt, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2005, Byron and Cynthia Deysher ("appellants") were the assessed owners of a parcel of real estate, improved with a single-family home, located at 29 Willard Common in the Town of Concord ("subject property").  
For fiscal year 2006, the Board of Assessors of Concord ("assessors") valued the subject property at $5,385,300 and assessed a tax thereon, at the rate of $10.23 per thousand, in the amount of $55,091.62. The appellants timely paid the taxes due, in accordance with G.L. c. 59, § 57C, without incurring interest.  The appellants timely filed an application for abatement with the assessors on January 31, 2006, which was deemed denied on April 30, 2006.  On May 26, 2006, the assessors granted the appellants a partial abatement reducing the assessed value to $4,809,800.  On July 26, 2006, the appellants seasonably filed their appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Board found and ruled that it had jurisdiction over this appeal. 
	The subject property is a 1.21-acre parcel of land improved with a single-family dwelling containing a finished living area of 9,387 square feet.  The dwelling has twelve rooms, including five bedrooms, and seven full-baths and one one-half bath.  The dwelling has many amenities including:  a lower level suite with walk-out access to the yard; a sauna; custom woodworking and paneling; top-of-the-line kitchen and baths; seven high-grade fireplaces; in-laid wood floors; a gunite in-ground pool; and, a three-car garage.  The house also has forced hot-air heat and central air conditioning, radiant floor heat in some bathrooms, built-in entertainment systems, and a security system.
The subject property is located at 29 Willard Common, on a cul-de-sac at the top of the Nawshatuc Hill.  The Nawshatuc Hill neighborhood is considered one of the most exclusive areas in Concord and is included within an area designated as Neighborhood 26 on the assessors' map.  Access to the neighborhood is gained by crossing a single-arch granite bridge over the Sudbury River, one of the three rivers that border the Nawshatuc Hill area.  The three rivers, the Sudbury, Assabet, and Concord Rivers, converge at "Egg Rock" on the northeast corner of the Nawshatuc Hill area.  The top of the hill contains Willard Common, which is named for a founder of Concord.  The top of the hill also has many scenic vistas.  Development within the Nawshatuc Hill neighborhood consists of many original mansions as well as newer estate homes.  The area also benefits from its close proximity to Concord Center, less than one mile away.
The appellants argued that the subject property was overvalued for fiscal year 2006 due to the assessors' erroneous classification of their dwelling.  Specifically, the appellants argued that the assessors should have assigned the subject property a style code of "03 - Colonial" ("Style 03") instead of the "60 - Fed/Revival/Victorian" ("Style 60") designation that appears on the property record card.  The appellants further argued that even if the Style-60 classification were correct, the subject property's assessment was not supported by Style-60 sales data. 
	In support of their contention that the subject property should have been classified as Style 03, the appellants presented a letter from the architect who designed the subject property stating that the subject property was designed and built, in 2003, as a "Georgian era Colonial-style" dwelling.  The appellants also presented a self-prepared chart and accompanying photographs of properties that, in Mrs. Deysher's opinion, "look very similar to our property," yet were designated Style 03 by the assessors.  She further testified that the data she reviewed showed that the Style-03 properties' assessments, which ranged from $223 to $305 per square foot of building area, had lower per-square-foot building assessments than the Style-60 properties.  However, other than the subject property's assessment, the appellants offered no other evidence of assessments for Style-60 properties.
	The appellants also presented an analysis of eight Style-60 home sales which occurred during 2002 and 2003.  According to Mrs. Deysher, these properties had an average sale price of $2,000,000.  The appellants' analysis revealed, however, that these properties had, on average, less than half the building size of the subject property.  Finally, the appellants presented the property record card for 35 Flint Road, Concord.  The property, built in 1996, is located in Neighborhood 26 but not in the Nawshatuc Hill area.  The property has more than double the acreage yet has nearly identical building square footage, with a total of sixteen rooms including six bedrooms.  The property, assigned a Style-03 classification by the assessors, sold on May 4, 2004 for $3,475,000.  According to Mrs. Deysher, the Flint Road property is comparable to the subject property because of its size, number of rooms and neighborhood location.  Therefore, appellants maintained, the subject property should have been assigned a Style-03 code and should have been assessed for $3,600,000.
    In defense of their assessment, the assessors relied on the testimony of Lynn Masson, an assessor for Concord.  Ms. Masson noted that the appellants purchased the subject property on December 3, 2001 for $2,550,000.  Sometime in August or September 2002, the appellants began construction of an addition.  At about this time, the appellants also started renovation work on the original structure.  During the process of renovating the original residence, appellants were made aware of an infestation of termites in the home.  As a result, the original dwelling was completely demolished, rebuilt and attached to the new addition.  Construction of the residence was complete as of the relevant assessment date for fiscal year 2006.   In total, for demolition and construction, the appellants expended approximately $4,120,000.  The assessors argued that the construction costs for the new residence and addition, when added to the acquisition cost of the land, amply supported the subject property's fiscal year 2006 assessment, as abated, of $4,809,800.
The assessors also offered the property record card for 175 Monument Farm Road.  This property is a 5.12-acre parcel of real estate improved with a single-family dwelling with a finished living area of 9,201 square feet.  The property sold on July 14, 2003 for $6,500,000.  Ms. Masson noted that the subject property's premier location atop Nawshatuc Hill is perhaps the most valuable location in Concord and that, therefore, it precludes the property from having any true comparables.  Acknowledging this fact, Ms. Masson noted that the sale of the Monument Farm Road property, which is not located in the Nawshatuc Hill area and does not have as desirable a location as the subject property, further supported the subject property's assessment.
Based on the evidence presented, the Board found and ruled that the appellants did not meet their burden of proving that the subject property was overvalued for fiscal year 2006.  The Board found that the appellants failed to show that the assessors' designation of the subject property as Style 60 rather than Style 03 resulted in an overvaluation of the subject property.  Further, the Board found that the appellants' evidence regarding different square-foot values for the varying colonial-style dwellings in Concord provided little to no evidence as to the fair cash value of the subject property.  The Board further found that the appellants failed to demonstrate that the single comparable sale property on which they relied was in fact comparable to the subject property and failed to adjust for any differences that existed between the purported comparable and the subject property.
Accordingly, the Board issued a decision for the appellee in this appeal.

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 and 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 appellants have 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) (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. at 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, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeal, the Board found and ruled that the appellants did neither.
"A taxpayer may show that its property is overvalued by demonstrating that the assessors relied on inaccurate information contained in their property record cards that improperly increased the value of the subject property."  Kelly v. Board of Assessors of Bedford, Mass. ATB Findings of Fact and Reports 1998-941, 946.  However, a taxpayer does not establish the right to an abatement merely by showing that land or building is overvalued.  "The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately."  Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 49.  
In the present appeal, the Board found and ruled that the appellants failed to prove that the assessors' method of valuation was flawed.  The appellants failed to prove that the assessors assigned the wrong style classification code to the subject property and, even assuming that the subject property should have been classified in the manner suggested by the appellants, the Board found that the appellants failed to demonstrate how their analysis of Style-03 properties' assessments related to the subject property's fair market value.  
The Board also found and ruled that the appellants failed to offer any affirmative evidence of overvaluation.  The Board found that the appellants' single comparable sale was not sufficient to establish a market value for the subject property.  "The sales comparison approach is most useful when a number of similar properties have recently been sold."  appraisal institute, the appraisal of real estate 403 (12th ed. 2001).  Furthermore, the Board found that the appellants failed to demonstrate that the single comparable sale property was in fact comparable to the subject property and failed to adjust for any differences that did exist between the purported comparable and the subject property.  When comparable sales are used to determine the fair cash value of property, allowances must be made for various factors which would otherwise cause disparities in the comparable prices. See Pembroke Industrial Park Co., Inc. v. Board of Assessors of the Town of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082; appraisal institute, the appraisal of real estate at 403 ("Adjustments for differences are made to the price of each comparable property to make the comparable equal to the subject on the effective date of the value estimate.").  In the present appeal, the Board found and ruled that the appellants failed to establish comparability between the subject property and their purported comparable and failed to adjust for existing differences.  
Based on the evidence presented, the Board found and ruled that the appellants presented no persuasive evidence as to the value of the property in its entirety, including both the land and building.  Their analysis focused on alleged mistakes by the assessors in valuing only their dwelling.  The Board found and ruled that this analysis did not support a finding that the assessed value of the subject property, including land and building, exceeded its fair cash value for fiscal year 2006.
Accordingly, 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
                  

Pursuant to G.L. c. 58A, § 6, an application for abatement is deemed denied when a board of assessors fails to act on the application within three months of its filing.  Three months "means three calendar months."  G.L. c. 4, § 7, Nineteenth; see also Berkshire Gas Company v. Assessors of Williamstown, 361 Mass. 873 (1972). Therefore, appellants' application for abatement was deemed denied on April 30, 2005.  See The Merry Hill Corp., Inc. v. Assessors of Concord, ATB Findings of Fact and Report 2007-1232 (ruling that an application for abatement filed on January 31, 2005 was deemed denied on April 30, 2005, because, if there is no corresponding day in the third month following the filing of an abatement application, the application is deemed denied on the last day of the third month).

ATB 2007-1367