Diana M. & James L. Henry v. Board of Assessors of the City of New Bedford (September 5, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DIANA M. & JAMES L. HENRY   v.     BOARD OF ASSESSORS OF 
                                   THE CITY OF NEW BEDFORD

Docket No. F292191				Promulgated:
							September 5, 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 to abate taxes on certain real estate located in the City of New Bedford owned by and assessed to appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2007.
	Commissioner Egan heard the appeal.  Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern joined her in the decision for appellee.  
	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.

Diana & James Henry, Trustees, pro se, for the appellants.

	Burton Pelz, Esq. 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, Diana M. and James L. Henry ("appellants") were the assessed owners of a 0.414-acre parcel of real estate located at 78 Orchard Street in the City of New Bedford ("subject property").  The parcel is improved with a single-family home. 
	For fiscal year 2007, the Board of Assessors of the City of New Bedford ("assessors") valued the subject property at $669,900 and assessed a tax thereon, at a rate of $10.31 per thousand, in the amount of $6,906.68, which appellants paid timely.  The appellants timely filed an abatement application with the assessors on January 31, 2007, which the assessors denied on April 5, 2007.  On  July 5, 2007, appellants seasonably filed a Petition Under Formal Procedure with the Board.  Based on these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
	The subject property is improved with a colonial-style home, which contains 6,059 square feet of finished living area.  The home is in average condition and contains 14 rooms, including five bedrooms as well as three full baths.  There are four fireplaces and a two-car garage.  The subject property is located on an historic street in New Bedford.
	The appellants argued that the subject property was overvalued for fiscal year 2007.  Specifically, the appellants contended that the assessment was higher than sale prices and assessed values of purportedly comparable properties which they provided.  The appellants' comparable properties were located within a one-mile radius of the subject property.  However, the subject property was on a larger parcel of land than the comparable properties relied on by the appellants.  For example, 100 Hawthorn Street has a lot size of 11,848 square feet and 114 Hawthorn consists of 10,149 square feet, compared to the subject property's 18,034 square foot parcel.  Moreover, the appellants did not take into account the square footage of the living area or the number of rooms, bathrooms, and bedrooms in the subject property and the comparables they submitted.  The appellants made no adjustments to their comparable sales prices and assessed values to account for these differences. 
The appellants hired an independent appraiser, who found that the subject property has approximately 5,352 square feet of living area, a difference of 707 square feet from the living area reported on the assessors' property record card.  Additionally, the appraiser's opinion of the value of the subject property was $505,050, compared to the assessed value of $669,900.  The appellants' appraiser did not appear at the hearing and did not explain in his appraisal report the reason for the discrepancy between his square-footage figure and the figure listed on the property record card prepared by the assessors. 
	Relying on the appraisal report, the appellants also argued for a 30% functional-obsolescence deduction because of the subject property's superadequate extras.  The appellants argued that certain period fixtures like the brick fireplaces, detailed wood moldings, leaded glass cabinets, and hardwood floors were extra features that are not useful in the current market.
	In defense of the subject assessment, the assessors provided evidence of six comparable sales in the neighborhood.  Specifically, the list of sales data provided by the assessors indicated that a neighboring property at 95 Madison Street ("Madison Street property") had land and living areas similar to those of the subject property.  The 95 Madison Street parcel, located within 1/8 mile of the subject property, is 20,688 square feet as compared to the subject parcel's 18,034 square feet.  Both the Madison Street property and the subject property have colonial-style homes.  The Madison Street home has 6,152 square feet of living area, as compared to the subject property's 6,059 square feet of living area.  It is also similar to the subject property in that it has 14 rooms, including five bedrooms as well as two and a half baths, compared with the subject's 14 rooms, including five bedrooms, and three and a half baths.  The subject property's home was built in 1881, has four fireplaces and a two-car garage.  The home at 95 Madison Street was built in 1875 and also has four fireplaces and a two-car garage.  The Madison Street property sold on May 24, 2004 for $635,000.  The assessors made appropriate adjustments for time, location, condition, and finished living and land areas and arrived at an indicated value of $631,386 for the subject property.
	On the basis of all the evidence, the Board found that the appellants did not meet their burden of proving overvaluation in this appeal.  The Board gave little weight to the comparable-sales and assessment data, which the appellants provided.  Each of the appellants' comparable properties contained parcels which were smaller than the subject property.  There were also differences between the subject property and the comparables' living areas, number of bedrooms, and number of bathrooms.  The appellants failed to make adjustments to compensate for these differences.  Therefore, the Board found that the appellants' comparables were not persuasive evidence for valuing the subject property.
Moreover, the appellants' appraiser was not present at the hearing to explain the discrepancy with the square-footage listed on the property record card on file with the assessors and did not otherwise explain it in his written report.  Consequently, the Board gave little weight to the appraisal submitted by the appellants.  In addition, the Board found that the appellants failed to establish that the supposed superadequacies made no contribution to the value of the subject property, and they failed to support their quantification of a functional obsolescence factor.  Accordingly, the Board did not find there to be superadequacies which would justify a 30% deduction of the subject property's assessed value.  	
The Board further found that the assessors' evidence, particularly the 95 Madison Street sales data, was persuasive due to the fundamental similarities between the land areas and various features of the subject property and the Madison Street property.  The Board found that the many similarities between these properties and the adjustments that the assessors made in their analysis supported the assessed value of the subject property.   
	On the basis of the foregoing facts, and as further explained in the Opinion below, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2007.  Accordingly, the Board issued a decision for the appellee in this appeal.
OPINION
	Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  Fair cash value is defined as the price upon which a willing buyer and a willing seller will agree if both are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The burden of proof is upon the taxpayer to prove that the property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid until the taxpayer sustains its burden of proving otherwise.  Id.  In appeals before the Board, a taxpayer may present persuasive evidence of overvaluation by either introducing affirmative evidence of fair cash value, or by proving that the assessors erred in their method of valuation.    General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).
	In the present appeal, to prove that their property was overvalued, the appellants primarily relied on an appraisal, which attributed a significantly lower fair cash value to the subject property than the assessors' assessment.  Appellants' appraiser used a living area of 5,051 square feet and advocated for a 30% functional-obsolescence deduction for the supposed superadequate features of the subject property.  The appraiser's opinion of the value of the subject property was $505,050, which was $164,945 less than the assessed value of $669,900.  The independent appraiser was not present at the hearing to testify and failed to explain in his report the discrepancy between the subject property's area that he determined and the area listed on the property record card.  
The appellant bears the burden of proving overvaluation and may do so by exposing 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)).  Without the testimony of the appellants' appraiser, the Board could not determine why the appraisal relied on a different square footage of living area than the figure used on the property record on file with the assessors.  The Board thus ruled that the appellants failed to justify the lower square footage used in the appraisal.  
The Board also found that the appellants' supposed superadequate construction features were no different than amenities in other similar residences.  The appellants failed to demonstrate that these features exceed market requirements or that they did not contribute to the value of the subject property.  The Board thus ruled that there was no justification for the 30% functional-obsolescence deduction.
	Sales of other comparable properties are also strong indicators of fair cash value.  Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  "Sales of comparable realty in the same geographic      area . . . contain credible data and information for determining the value of the property at issue."  McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  In the present appeal, the Board found the assessors' comparable-sales evidence was probative toward establishing the value of the subject property.  Moreover, the assessors made appropriate adjustments to account for variances between the subject property and their comparable.  Therefore, the Board ruled that the adjusted value indicated by the sale of this comparable property supported a finding that the assessed value of the subject property did not exceed its fair cash value as of the relevant valuation date. 
Based on the evidence presented, the Board found and ruled that the appellants did not meet their burden of establishing overvaluation of the subject property for fiscal year 2007.  Accordingly, the Board issued a decision for appellee in this appeal.
					   THE APPELLATE TAX BOARD

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



A true copy,


Attest:  _________________________________
		      Clerk of the Board

 The Application for Abatement indicates that both Diana and James are trustees for the "Henry Family Nominee Trust."

	ATB 2008-1143