John & Barbara Ligor v. Board of Assessors of the Town of Wellesley (September 4, 2003)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




JOHN & BARBARA LIGOR		v.	BOARD OF ASSESSORS OF
							THE TOWN OF WELLESLEY


Docket Nos. F262616, F262617		Promulgated:
							September 4, 2003



	These are appeals filed under the formal 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 Wellesley, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2002.
	Commissioner Rose heard the appeals and, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, issued single-member decisions for the appellee.
	These findings of fact and report are made pursuant to requests by both parties under G.L. c. 58A, § 13 and 831 CMR 1.32.
		
		John Ligor, pro se, for the appellants.
		Donna McCabe, Assessor, for the appellee.


FINDINGS OF FACT AND REPORT

Docket No. F262616
	On January 1, 2001, John & Barbara Ligor ("the appellants") were the assessed owners of a parcel of real estate located at 1 Beach Road, Wellesley.  The property consists of an approximately 11,522 square-foot lot improved with a wood-frame, cottage-style dwelling with a gross living area of 1,516 square feet.  There is a two-car garage located below the main living level.  The property, located on Morse Pond in Wellesley, is waterfront property, level with the water.  The property also has access to a beach via a small roadway adjacent to the property.  The property is more fully described in John & Barbara Ligor v. Board of Assessors of the Town of Wellesley, 2002 ATB Adv. Sh. 290, 291 ("Ligor I"), which concerns the appellants' fiscal year 2001 appeal of the same property.  At all times relevant to the present appeal,7 the property was unoccupied.
	For fiscal year 2002, the year at issue, the Board of Assessors of the Town of Wellesley ("the Assessors") valued the property at $342,000 and assessed a tax at the rate of $8.10 in the amount of $2,770.20.  The appellants paid the tax due without incurring interest.  On January 3, 2002, the Ligors timely filed an application for abatement with the Assessors, which was denied on February 6, 2002.  On February 11, 2002, the Ligors seasonably filed an appeal with the Appellate Tax Board ("Board").  On this basis, the presiding member found that the Board had jurisdiction.
	In their appeal, the Ligors cited to the Board's prior decision for fiscal year 2001.  For fiscal year 2001, the Assessors valued the Beach Road property at $299,000, an increase over the Board's finding of value of $232,000 for fiscal year 2000.  Commissioner Rose found that the Assessors were justified in increasing the fiscal year 2001 assessment above the Board's finding of value for fiscal year 2000, but further found that the fiscal year 2001 assessment was excessive.  Commissioner Rose found that the Beach Road property's fair cash value for fiscal year 2001 was $278,350.  Ligor I, 2002 ATB Adv. Sh. at 295. 
	Because the present appeal involved one of the "next two fiscal years after a fiscal year for which the Board has determined the fair cash value" of the Beach Road property, and because the assessed value of the property for fiscal year 2002 is greater than the value found by the Board for fiscal years 2001 and 2000, the burden shifted to the Assessors to prove that an increase in value was justified.  G.L. c. 58A, § 12A.
	Ms. Donna McCabe, assessor for the Town of Wellesley, testified on behalf of the Assessors.  In support of the town's increased assessment, Ms. McCabe presented three sales of properties that occurred between July and December of 2001.  Ms. McCabe noted that although the sales occurred subsequent to the assessment date, she still found them to be probative of value for the subject property as all three comparable properties are also waterfront property located on Morse Pond.
	The first sale, upon which Ms. McCabe relied, was Pickerel Road.  This property is a 4,034 square foot lot improved with a contemporary-style dwelling with 1,109 square feet of gross living area.  Also a waterfront property, this lot is significantly smaller than the subject property and the dwelling has less gross living area.  The Pickerel Road property sold in December of 2001 for $550,000.	 
The second sale, 77 Russell Road, has a larger lot size but less gross living area than the subject property.  Unlike the subject property, which is level to the water, this property has a very steep grade down to the water. The property sold for $460,000 in September of 2001.  The last sale, 28R Laurel Avenue, is a small home with only 798 square feet of living area.  There is no road frontage and, unlike the subject property, this home has no garage.  The property sold for $390,000 in July of 2001.  
	Ms. McCabe acknowledged that the subject property is in "poor" condition compared to her referenced sales.  She further noted that the appellants, however, have chosen not to make any improvements to the subject property since it was gutted in 1990.  Further, the subject property benefits from its waterfront location and also its direct access to the water via an adjacent roadway.  These factors were considered in the Assessors valuation of the subject property.
	The appellant presented no evidence of value for the subject property, other than the Board's prior year decision, which valued the property at $278,500.
	The presiding member found that, although the sales referenced by Ms. McCabe differ from the subject property in that they all include a habitable and occupied dwelling, they are indicative of the fair market value of property located on Morse Pond.
	Based on the evidence presented, the presiding member found that the fair cash value of the subject property for fiscal year 2002 was higher than the values found by the Board for fiscal years 2001 and 2000 and, therefore, the Assessors were justified in increasing the fiscal year 2002 assessment for the Beach Road property above the Board's findings of value for fiscal years 2001 and 2000.  Accordingly, Commissioner Rose issued a decision for the appellee.

Docket No. F262617
	On January 1, 2001, the Ligors were also the assessed owners of a parcel of real estate located at 53 Russell Road, Wellesley.  This parcel contains approximately 3,123 square feet and is improved with a two-bedroom cottage with 864 square feet of gross living area.  The property is located near, but not on, Morse Pond.  The dwelling has two baths, one fireplace, a wood deck, an open-frame porch, and a 672 square-foot recreation room and a one-car garage located below the main living level.  The property is used as rental property.  This property is also more fully described in Ligor I, 2002 ATB Adv. Sh. at 296.
	For fiscal year 2002, the Assessors valued the property at $271,000 and assessed a tax at the rate of $8.10 per thousand, in the amount of $2,195.10.  The Ligors paid the tax due without incurring interest.  On January 3, 2002, the appellants timely filed an application for abatement with the Assessors.  The Assessors denied the application on February 6, 2002, and on February 11, 2002 the Ligors filed an appeal with the Board.  On this basis, the presiding member found that the Board had jurisdiction over the subject appeal.
	For fiscal year 2001, the Russell Road property had an assessed valued of $267,000, higher than the Board's finding of value of $238,000 for fiscal year 2000.  Based on the evidence presented at the hearing, the presiding member found that the increase in value was justified and, therefore, entered a decision for the appellee.  Ligor I, 2002 ATB Adv. Sh. 290.	 
In the present appeal, Mr. Ligor cited two sales of properties in Wellesley, which he claimed support his contention that the Russell Street property was over-assessed for fiscal year 2002.  According to Mr. Ligor, the first property, located at 27 Edgemoor Road, has significantly more land and gross living area than the subject property yet it sold for $230,000, over $35,000 less than the assessed value of 53 Russell Road.  The second property Mr. Ligor referenced was 851 Worcester Road which, he claimed, is substantially larger in both land size and living area.  He suggested that the property sold for less than its assessment.  However, Mr. Ligor provided no evidence of sale dates or prices, or assessed values for either of these properties.  
	Because the present appeal involved one of the "next two fiscal years after a fiscal year for which the Board has determined the fair cash value" of the Russell Road property, and because the assessed value of the property for fiscal year 2002 is greater than the value found by the Board for fiscal year 2000, the burden shifted to the Assessors to prove that an increase in value was justified.  G.L. c. 58A, § 12A.
First, Ms. McCabe addressed the sales cited by Mr. Ligor.  She noted that the property located at 27 Edgemoor Road sold again in June of 2000 for $314,000, subsequent to the sale referenced by Mr. Ligor.  She also noted that the sale price referenced by Mr. Ligor for 851 Worcester Road was the March 2000 list price.  She noted that the property actually sold for $355,000 in December of 2001. 
	Ms. McCabe then presented three sales of properties that she considered comparable to the Russell Street property.  All three properties are relatively small lots with small houses.  The sales occurred between November 2000 and July 2001, sandwiching the assessment date of January 1, 2001.  The first property, 12 Pinevale Avenue, has a slightly larger gross living area and is located in another part of Wellesley, which was originally camp area, like the subject property.  There is a two-car detached garage and the property is listed as in "above average" condition.  Both the lot size and gross living area are larger.  This property sold in November of 2000 for $353,000.  
	The second property cited by Ms. McCabe, 28R Laurel Avenue, has a slightly larger lot size but less gross living area, no finished basement and no garage.  In addition, the property has no road frontage and uses a right-of-way to cross over the adjacent property for a shared driveway.  This property sold for $390,000 in July of 2001.  The last property, 20 Hill Top Road, is a bungalow-style dwelling.  Both the lot size and gross living area are greater than the subject property.  This property sold in December 2000, right before the assessment date in the present appeal, for $440,000.
	Based on the evidence presented, the presiding member found that the fair cash value of the subject property for fiscal year 2002 was higher than the Board's findings of value for fiscal years 2001 and 2000 and, therefore, the Assessors were justified in increasing the fiscal year 2002 assessment above the Board's findings of value for 2001 and 2000.  The Board further found that the fiscal year 2002 assessment of $271,000 was supported by Ms. McCabe's presentation of recent sales prices associates with reasonably comparable properties.  Accordingly, Commissioner Rose issued a single-member decision for the appellee.
 
OPINION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  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 (1954).
	The assessment is presumed valid unless the taxpayers sustain the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that the assessed valuation of their property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough,

385 Mass. 679, 691 (1982).  However,  
[i]f the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted . . . . 

G.L. c. 58A, § 12A.  
In the present appeal, both assessments at issue fall within the two-year statutory period of § 12A.  Therefore, the burden of persuasion must shift to the appellee to prove that the increased value is warranted.  See generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); Cressey Dockham & Co., Inc. v. Assessors of Andover, 11 Mass. App. Tax Bd. Rep. 41, 50 (1989); Ellis v. Assessors of Northborough, 3 Mass. App. Tax Bd. Rep. 152, 154-155 (1983).  The appellants acknowledged that there had been no changes in either of the properties from one year to the next and, therefore, relied on the Board's prior determinations of fair cash value.
"Once a prior determination of the Board of the fair cash value of the same property has been placed in evidence [] the statute requires the appellee to produce evidence to 'satisfy the Board that the increased valuation was warranted.'"  Cressey Dockham, 11 Mass. App. Tax Bd. Rep. at 50.     
In the present appeals, the Assessors offered a market approach to justify the assessed values of the properties.  To support the assessment for the Beach Road property, the Assessors relied on three sales that occurred between July and December of 2001.  All three properties were waterfront property located on Morse Pond.  To support the assessment for the Russell Street property, the Assessors cited three sales which occurred between November 2000 and July 2001. 
In evaluating the evidence before it, the presiding member selected among the various elements of value and formed his own independent judgment of fair cash value.  General Electric v. Assessors of Lynn, 393 Mass. 591, 605 (1984); North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 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."  Boston Consolidated Gas Co., 309 Mass. at 72.

Based on the evidence presented, the presiding member found that the comparable sales offered by the Assessors and the other evidence presented justified the increase in the valuations of the properties over the values found by the Board for fiscal years 2001 and 2000.  Accordingly, the presiding member issued single-member decisions for the appellee.  

					       APPELLATE TAX BOARD

					  By:		______	_____
					       James D. Rose, Member



A true copy,


Attest:					
	    Clerk of the Board

  Subsequent to their purchase of the property in 1989, the appellants gutted the interior and have made no improvements.  Ligor v.  Assessors of Wellesley, 2002 ATB Adv. Sh. at 291.

ATB 2003-491