David J. Duquette v. Board of Assessors of the Town of Hinsdale (July 17, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



DAVID J. DUQUETTE		    v.	BOARD OF ASSESSORS OF
							THE TOWN OF HINSDALE

Docket No. X304908 (FY 2012)		
Docket No. F319250 (FY 2013)		Promulgated:
							July 17, 2014


	These are appeals under the informal and formal procedures pursuant to G.L. c. 58A, §§ 7A and 7, respectively, G.L. c. 59, §§ 64 and 65, and 831 CMR 1.07 and 1.08 and 831 CMR 1.03 and 1.04, respectively, from the refusal of the Board of Assessors of the Town of Hinsdale (the "appellee" or "assessors") to abate taxes on certain real estate in the Town of Hinsdale assessed to the Duquette Family Nominee Trust under G.L. c. 59, §§ 11 and 38 for fiscal years 2012 and 2013.
	Commissioner Chmielinski heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Rose, and Good joined him in a decision for the appellee in Docket No. X304908 and a decision for the appellant in Docket No. F319250.
	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.
	
David J. Duquette, pro se, for the appellant.
	Rosemary Crowley, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
	David J. Duquette (the "appellant") brought these appeals for a parcel of real estate, improved with a dwelling and garage, located at 190 Michaels Road in Hinsdale (the "subject property").  For fiscal year 2012, with a valuation and assessment date of January 1, 2011, the assessors valued the subject property at $746,600 and assessed a tax thereon, which the appellant paid timely, at a rate of $12.26 per thousand, for a total amount of $9,153.32.  For fiscal year 2013, with a valuation and assessment date of January 1, 2012, the assessors valued the subject property at $679,800 and assessed a tax thereon, which the appellant paid timely, at a rate of $12.22 per thousand, for a total amount of $8,307.16.
	On December 8, 2011, in accordance with G.L. c. 59,   § 59, the appellant timely filed an abatement application for fiscal year 2012 with the assessors, within thirty days of the November 8, 2011 mailing of the actual tax bill.  On February 15, 2012, the assessors granted the appellant a partial abatement, reducing the assessed value of the subject property by $109,000 to $637,600.  Not satisfied with this reduction, and in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed his Statement Under Informal Procedure (the "Statement") with the Appellate Tax Board (the "Board") on May 15, 2012.  	
	On January 16, 2013, in accordance with G.L. c. 59,   § 59, the appellant timely filed an abatement application for fiscal year 2013 with the assessors, within thirty days of the December 18, 2012 mailing of the actual tax bill.  On April 2, 2013, the assessors granted the appellant a partial abatement, reducing the assessed value of the subject property by $19,500 to $660,300.  Yet again not satisfied with this reduction, and in accordance with   G.L. c. 59, §§ 64 and 65, the appellant seasonably filed his Petition Under Formal Procedure with the Board on May 10, 2013.  	
On the basis of these facts, the Board found and ruled that it had jurisdiction over these appeals.
 	For fiscal year 2011, the Board issued a decision reducing the subject property's assessed value from $700,500 to a fair cash value of $619,500, as of January 1, 2010.  In that appeal, the Board found that the assessors had overrated the amount of finished space in the dwelling's lower level and overestimated the degree of the dwelling's completion by approximately 10%.  See Duquette v. Assessors of Hinsdale, Decision with Findings, Docket No. F310890, December 21, 2011.  Therefore, pursuant to G.L. c. 58A, § 12A, the burden shifted to the assessors to justify their increase in valuation for the subject property for the fiscal year at issue.  To meet this burden, Karen Tonelli, the town's assistant assessor, and Peter Persoft, the chairman of the assessors, testified for the assessors.  In addition, the assessors submitted into
evidence copies of the requisite jurisdictional documents, a copy of a property record card for the subject property, a photograph of the subject property, a copy of a property record card for another waterfront property in town, and a comparable-sales analysis with copies of property record cards and deeds.  The appellant's case-in-chief consisted of his testimony along with the submission into evidence of copies of the Board's fiscal year 2011 Decision with Findings, copies of the Board's Findings for fiscal years 2007 and 2010, photographs and assessment sheets for two purportedly comparable properties in Hinsdale -- 55 and 199 South Shore Road, and a copy of a map depicting the lakes and ponds in Hinsdale.  Based on this evidence the Board made the following findings of fact.      
The subject property consists of a one-acre parcel of land on Plunkett Reservoir or Plunkett Pond, which is improved with a contemporary-style, single-family dwelling.  The dwelling has both a main and a lower level.  The 2,150-square-foot main level contains a living room with an office, a family room, a dining area, a kitchen, a laundry room, two bedrooms, and a master suite with a sitting area, as well as one half and two full bathrooms.  The rear walk-out, lower level contains a 775-square-foot finished area and an unfinished portion.  The finished area houses an additional kitchen, a dining area, a bedroom, and a full bathroom.  The unfinished part is used for utilities and storage.  The dwelling also has two fireplaces and a screened porch, as well as deck and patio areas.  In addition, there is an attached, 908-square-foot, three-bay garage with a staircase to a framed but unfinished living space above.  
The assessors, through their witnesses and exhibits, attempted to justify their $17,500 increase in the subject property's assessed value for fiscal year 2012 and their $40,500 increase for fiscal year 2013, from the Board's $619,500 finding of fair cash value for fiscal year 2011, by showing that the dwelling was now complete, the finished area in the lower level was now accurately reflected on assessment forms, and comparable properties with sale dates within the relevant time period indicate that a higher value was now appropriate.  The subject property's property record cards for the fiscal years at issue reveal that the assessors had placed the finished area in the lower level at 803 square feet, as opposed to their discredited former measurement of 1,230 square feet.  The assessors' and other town officials' inspections of the subject property indicate that it was essentially complete as of the relevant valuation and assessment dates.  The assessors' comparable-sales analysis included a total of three properties, of which the two more comparable ones were located in Hinsdale.  These properties indicated a value range of $615,600 to $660,600 for the subject property for the fiscal years at issue.  The assessors did not introduce any substantive evidence to demonstrate that the values of waterfront homes in Hinsdale increased from January 1, 2011 to January 1, 2012, the valuation and assessment dates for fiscal years 2012 and 2013, respectively.
The appellant attempted to counter the assessors' evidence by showing that some sidings and railings still needed to be completed; the lower level's finished area was 28 square feet less than that reflected on the subject property's property record card; and the Board's determination of the dwelling's interior measurements for fiscal year 2011 was excessive.  The appellant also introduced information regarding two other waterfront properties in Hinsdale and attempted to equate their assessments of $538,200 and $597,000 with what the subject property's assessments should have been for the fiscal years at issue.  The appellant did not offer any adjustments to account for obvious differences between these purportedly comparable properties and the subject property.              
Based on all of the evidence, the Board found that the fair cash value of the subject property for both fiscal years at issue was $637,000.  In making this determination, the Board relied primarily on the comparable-sale properties introduced into evidence by the assessors, the essentially finished state of the dwelling as of the relevant valuation and assessment dates, and the corrections to the assessors' assessment documents for both fiscal years at issue, which more accurately depicted the subject property's finished areas.  
The Board further found that the value attributable to the subject property's lack of some siding and railings, as well as 28 less square feet of finished area in its lower level, was de minimis.  The Board did not rely upon the unadjusted assessed values of two purportedly comparable waterfront properties in Hinsdale introduced by the appellant but rather found more persuasive the adjusted values indicated by the two reasonably comparable waterfront properties in Hinsdale introduced by the assessors.   One of the assessors' reasonably comparable properties, with a dwelling almost one-half the size of the subject property's, sold for $595,000, and after the assessors' adjustments, indicated a value for the subject property of over $660,000.  The Board found that the assessors' adjustments were excessive and lowered them, leading to an indicated value of approximately $637,000.  The Board further found that there was little substantive evidence to prove that the values of waterfront dwellings in Hinsdale had changed between the valuation and assessment date for fiscal years 2012 and the valuation and assessment date for fiscal year 2013.  
On these bases, the Board ultimately found that the assessors successfully demonstrated that they were justified in assessing the subject property for fiscal years 2012 and 2013 at values greater than the $619,500 value that the Board had found for the subject property for fiscal year 2011.  The Board found here that the fair cash value of the subject property was $637,000 for both fiscal years at issue.  Accordingly, the Board found that the $637,000 assessment, as abated, for fiscal year 2012 did not exceed the subject property's fair cash value but the $660,000 assessment, as abated, for fiscal year 2013 did exceed it by $23,000.  The Board, therefore, granted a tax abatement for fiscal year 2013 in the amount of $281.06.
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 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 burden of proof is upon the taxpayer to prove that the subject property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974)(citing Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)).  The assessment is presumed valid until the taxpayer sustains his burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 363 Mass. at 245).  
If, however, the assessment at issue exceeds the Board's prior determination of the subject property's fair cash value for either of the two immediately preceding fiscal years, then, pursuant to G.L. c. 58A, § 12A, "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  Finlayson v. Assessors of Billerica, Mass. ATB Findings of Fact and Reports 2007-531, 538.  
In the present appeals, the appellant submitted into evidence the Board's fiscal year 2011 decision and finding of value for the subject property, and the Board, therefore, ruled in these fiscal year 2012 and 2013 appeals that the burden of going forward to justify the increase in the assessment from fiscal year 2011 was on the assessors.  See generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); see also Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87 ("Once a prior determination of the Board of the fair cash value of the same property [for one of the prior two fiscal years] has been placed in evidence, [] the statute requires the [assessors] to produce evidence to 'satisfy the Board that the increased valuation was warranted.'").  Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value still remains on the appellant to prove that the subject property's fair cash value is less than the Board's prior determination.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1;       Cressey Dockham, Mass. ATB Findings of Fact and Reports at 1989-86-87.
In the present appeals, the Board found that the fair cash value of the subject property for both fiscal years at issue was $637,000.  In making this determination, the Board relied primarily on the comparable-sale properties introduced into evidence by the assessors, the essentially finished state of the dwelling as of the relevant valuation and assessment dates for the fiscal years at issue, and the corrections to the assessors' assessment documents for both fiscal years at issue which more accurately depicted the subject property's finished areas.  The Board further found that the value attributable to the subject property's lack of some siding and railings, as well as 28 less square feet of finished area in its lower level, was de-minimis.  The Board did not rely upon the unadjusted assessed values of two purportedly comparable waterfront properties in Hinsdale introduced by the appellant, see Gallo v. Assessors of Everett, Mass. ATB Findings of Fact and Reports 2013-343, 349 (finding and ruling that the appellant's failure to adjust the assessed values of comparable-assessment properties rendered his methodology without merit and any values derived from it unfounded), but rather found more persuasive the adjusted values indicated by the two reasonably comparable waterfront properties in Hinsdale introduced by the assessors.   See, generally, The Appraisal Institute, The Appraisal of Real Estate 322-343; see also id. at 307 ("After researching and verifying transactional data and selecting the appropriate unit of comparison, the appraiser adjusts for any differences.").  One of the assessors' comparable-sale properties, with a dwelling almost one-half the size of the subject property sold for $595,000, and after the assessors' adjustments, indicated a value for the subject property of over $660,000.  The Board found that these adjustments were excessive and lowered them, resulting in an indicated value of approximately $637,000.  The Board further found that there was little substantive evidence to prove that the values of waterfront dwellings in Hinsdale had changed between the valuation and assessment date for fiscal year 2012 and the valuation and assessment date for fiscal year 2013. 
In reaching its opinion of fair cash value, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation suggested.  Rather, the Board can accept those portions of the evidence that the Board determined had more convincing weight.  Foxboro Associates, 385 Mass. 679, 683 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Assessors of Lynnfield v. New England Oyster House, Inc., 363 Mass. 696, 701-702 (1972).  "The credibility of witnesses, the weight of evidence, the inferences to be drawn from the evidence are matters for the [B]oard."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 196, (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 Consol. Gas Co., 309 Mass 60, 72 (1941).  
On these bases, the Board ultimately found that the assessors successfully demonstrated that they were justified in assessing the subject property for fiscal years 2012 and 2013 at values greater than the $619,500 value that the Board had found for the subject property for fiscal year 2011.  The Board found here that the fair cash value of the subject property was $637,000 for both fiscal years at issue.  Accordingly, the Board found that the $637,000 assessment, as abated, for fiscal year 2012 did not exceed the subject property's fair cash value but the $660,000 assessment, as abated, for fiscal year 2013 did exceed it by $23,000.  

The Board, therefore, granted a tax abatement for fiscal year 2013 in the amount of $281.06.

					 THE APPELLATE TAX BOARD

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



A true copy,

Attest: ________________________________
         Clerk of the Board

 David J. Duquette apparently brought these appeals as agent for Jennifer M. Duquette, Trustee of The Duquette Family Nominee Trust.
 When an appeal is delivered to the Board by an approved alternative private delivery service beyond the appeal period authorized by     G.L. c. 59, §§ 64 and 65, the date of the substantiating mark on the envelope or wrapper is deemed to be the date of delivery to the Board.  G.L. c. 58A, § 7.  Accordingly, the Board found and ruled here that the alternative private delivery service's envelope which contained the subject Statement bore the substantiating date mark of May 15, 2012 and the Statement was, therefore, deemed to have been filed timely.   

 G.L. c. 58A, § 12A, provides in pertinent part that:
 
If 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.
 The subject property's property record card for fiscal year 2013 lists the lower level's finished area at 806 square feet.  The Board found that the difference between the area on the card and the appellant's measurement of 775 square foot was de minimis for purposes of this appeal.

ATB 2014-514