Deborah A. Lupacchino v. Board of Assessors of the Town of Southborough (October 3, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DEBORAH A. LUPACCHINO		v.		BOARD OF ASSESSORS
								OF THE TOWN OF
								SOUTHBOROUGH

Docket No. F288661					Promulgated:
								October 3, 2008


This is an appeal 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 real estate in the Town of Southborough, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2007 ("fiscal year at issue").  
Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa and Egan joined him in the decision for the appellee.
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.

	Deborah A. Lupacchino, pro se, for the appellant.
	Aldo A. Cipriano, Esq. for the appellee.


FINDINGS OF FACT AND REPORT
     On January 1, 2006, Deborah   A. Lupacchino ("appellant") was the assessed owner of a parcel of real estate improved with a single-family home located at 32 Meadow Lane, Southborough, Massachusetts ("subject property" or "subject").  For the fiscal year at issue, the Board of Assessors of the Town of Southborough ("appellee" or "assessors") valued the subject property at $915,100, and assessed a tax thereon at the rate of $12.58 per thousand, in the amount of $11,614.50.  The appellant timely paid the tax due without incurring interest.  On January 22, 2007, the appellant timely filed an abatement application with the assessors.  The assessors denied the abatement application on February 28, 2007.  On May 17, 2007, the appellant seasonably filed its appeal with the Appellate Tax Board ("Board").  Based on these facts, the Board found and ruled that it had jurisdiction over this appeal.
	The subject property is a 0.63-acre parcel of real estate improved with a two-story, Colonial-style, single-family home.  The home has a vinyl exterior with an asphalt-shingle roof.  According to the property record card, the home contains 4,030 square feet of finished area, comprised of 1,880 square feet on the first floor and 2,150 square feet on the second floor.  The home has eleven rooms, including four bedrooms, as well as two full bathrooms and one half bathroom.  Additionally, the home includes 1,136 square feet of finished basement space and contains a 988-square-foot three-car garage.  Amenities include two fireplaces, a 196-square-foot porch, a 292-square-foot patio and central air conditioning.  The home was constructed in 2002.  The appellant purchased the subject property in 2003 for $750,000.  Of the subject property's total assessed value, $290,900 was attributed to the land and $624,200 was attributed to the home.  The assessors considered the overall grade of construction and condition of the home as "very good," according to the property record card.    
The appellant contended that the subject property's fair cash value was $806,100 for the fiscal year at issue.  She argued that the subject property was overvalued compared to other similar properties, that the assessment miscalculated the square footage of her home, and that the assessed value of the subject property had disproportionately increased over time as compared to other similar properties. 
In support of her overvaluation contention, the appellant presented a self-prepared comparable-assessment analysis.  The appellant compared the subject property with two other properties located on the same street: 8 Meadow Lane ("comparable one") and 39 Meadow Lane ("comparable two").  
Comparable one consists of a 0.63-acre parcel, improved with a two-story, Colonial-style home constructed in 2002.  Like the subject, comparable one's home has a vinyl exterior with an asphalt-shingle roof.  It contains 3,346 square feet of finished living area on the first and second floors and 822 square feet of finished basement area.  The property record card in evidence does not indicate the total number of rooms or bedrooms.  The home has three full bathrooms and two half bathrooms.  The home also has an attached 572-square-foot two-car garage.  For amenities, the home has one fireplace, a 204-square-foot porch and a 280-square-foot deck.  Comparable one sold for $661,250 on December 15, 2003.  For the fiscal year at issue, the property was assessed at $707,600, $522,000 of which was attributed to the home and $185,600 was attributed to the land.   
	Comparable two consists of a 1.23-acre parcel, improved with a two-story, Colonial-style home built in 2003.  Like the subject, comparable two's home has a vinyl exterior with an asphalt-shingle roof.  The home contains 3,616 square feet of finished living area on the first and second floors and 2,264 square feet of unfinished basement area.   The home also has an attached 720-square-foot three-car garage.  It contains eleven rooms, including four bedrooms, as well as two full bathrooms and one half bathroom.  Comparable two sold for $724,458 on July 14, 2003.  For the fiscal year at issue, comparable two was assessed at $806,100, $506,600 of which was attributable to the home and $299,500 of which was attributable to the land.  
The appellant's overvaluation case consisted mainly of challenging the land portion of the subject assessment.  She pointed out that the subject property's land was valued $105,300 more than the land of comparable one, despite both parcels being 0.63 acres in size.  The appellant asserted that comparable one's parcel is superior to the subject property's because it is level while the subject property's land contains ledge and is irregularly shaped.  The appellant next pointed out that the subject property's parcel was valued only $8,600 less than comparable two's land, even though comparable two contained an additional 0.6 acres of land.  
The appellant did not introduce credible evidence to prove that the overall assessment of the subject property, including the assessment of the home, exceeded its fair cash value.  The appellant's abatement application included her contention that the subject property was overvalued as compared with her two comparables, because her home had less living space and fewer "extras," including expensive windows (palladium, half-round, bay or casement windows), multiple rooflines, and brick exterior.  The appellant did not further develop this contention during the hearing of this appeal by adjusting the comparables' assessments to account for these differences with the subject property.
In defense of the disputed assessment, the assessors offered a comparable-sales analysis consisting of five comparable sales from areas throughout the town of Southborough.     
First, the assessors cited the January 17, 2006 sale of 31 Meadow Lane, Southborough for $845,000.  The parcel contains 0.6 acres of land, improved by a two-and-one-half-story Colonial-style home.  The home was constructed in 2003 and contains 3,699 square feet of finished area.  The home also contains nine total rooms, including four bedrooms, as well as three full bathrooms and one half bathroom.  The home additionally included an attached 624-square-foot two-car garage, a 192-square-foot outdoor deck, one fireplace and central air conditioning.  Like the subject home, the overall grade of construction and overall condition of this comparable's home is "very good."  The assessors made upward adjustments for the subject's larger finished areas of the main floors and the subject's finished basement.  The assessors also adjusted upward for the subject property's larger garage, porch and additional fireplace.  After all adjustments, the assessors arrived at an indicated value of $910,600.
The assessors next relied on 10 Ashley Road, which sold on May 8, 2005 for $965,000.  The parcel contains 1.02 acres of land, improved by a two-story Colonial-style home.  The assessors believed that this property is situated in a more desirable residential neighborhood, roughly 1.8 miles from the subject.  The home was constructed in 1993 and contains 4,415 square feet of finished area.  The home has ten rooms, including four bedrooms, as well as four full bathrooms and one half bathroom.  The home additionally includes a 102-square-foot deck, a 136-square-foot porch, a 204-square-foot enclosed porch, two fireplaces, central air conditioning and an attached three-car garage.  The assessors made downward adjustments for the subject's location and size, as well as for the number of rooms, including number of bathrooms, finished area and enclosed porch space.  The assessors then made an upward adjustment for the subject's finished basement.  After all adjustments, the assessors arrived at an indicated value of $922,400.
The assessors next relied on 15 Banfill Lane, a two-story Colonial-style home situated on 3.16 acres of land, which sold for $907,500 on June 15, 2005.  The property was situated roughly 2.8 miles from the subject.  The home was built in 1998 and had 3,530 square feet of finished area with eleven rooms, including four bedrooms, as well as four full bathrooms and one half bathroom.  The home also contained 618 square feet of finished basement area, a 384-square-foot deck, one fireplace, and an attached 674-square-foot three-car garage.  The home was equipped with central air conditioning.  The assessors adjusted the sale price downward for size of the subject's parcel and number of bathrooms.  The assessors then adjusted upward for the subject's finished area, finished basement space, size of deck and the subject's additional fireplace.  The assessors derived an indicated value of $943,500.
The assessors then examined the sale at 14 Hillside Lane, where a two-story Colonial-style home, situated on a 1.14-acre parcel, sold for $900,000 on May 16, 2005.  This property was located in a similar residential neighborhood roughly 1.1 miles from the subject.  The home's grade of construction and overall condition was also similar to the subject home.  The home contains 3,499 square feet of finished living area, 1,125 square feet of finished basement area.  The home has ten rooms, with four bedrooms as well as four full bathrooms.  It also contains an 865-foot deck, a 64-foot porch and an attached 794-square-foot three-car garage.  It is equipped with central air conditioning.  The assessors adjusted the sale price down for the size of the subject's parcel, number of rooms and the number of bathrooms.  The assessors then adjusted upward for the subject's finished area and additional fireplace.  After all adjustments, the assessors arrived at an indicated value of $939,700.
Finally, the assessors cited the sale of 7 Old Harry Road for $965,500 on July 22, 2005.  The property is improved with a two-and-one-half-story Colonial-style home situated on a 2.06-acre parcel of land, located roughly 3.3 miles from the subject.  The home includes 4,530 square feet of finished living area, 938 square feet of finished basement area, and it contains thirteen rooms, including four bedrooms, as well as three bathrooms and one half bathroom.  The home also contains a 336-square-foot deck, one fireplace, and an attached 864-square-foot three-car garage.  It is equipped with central air conditioning.  The assessors adjusted the sale price downward for the subject's parcel size and finished living area and adjusted upward for the subject's larger deck and additional fireplace.  The assessors arrived at an indicated value of $928,000.
The assessors then summarized their sales comparison data.  The indicated values derived from the five comparable properties were between $910,600 and $943,500 for the fiscal year at issue.  At $915,100, the subject assessment fell within, and in fact was towards the lower end of, this range.
The appellant's second contention was that the assessors miscalculated the square footage of living space of the subject home's second floor by 400 square feet, resulting in an additional $41,400 of value to the subject assessment.  She also asserted that an error of 52 feet was made in calculating the patio area, which added an additional $400 of value to the subject assessment.  Finally, she asserted a $30,000 assessment error due to a miscalculation of the finished space over the garage.  To support her contention, the appellant submitted an inside floor plan of the subject home's second floor, which was prepared by OHC Development Corp., the builders of the development in which the subject property is located.  She did not submit any evidence of the patio area's square footage.
The appellant's third contention was that the subject property had disproportionately increased in value from its purchase price in 2003, as compared with other similar properties.  To support this contention, the appellant submitted a self-prepared chart, reproduced below:

HOUSE
NUMBER	PURCHASE PRICE 2003	ASSESSMENT 2006	PERCENTAGE INCREASE	
32	$750,000	$915,000	22%	
39	$724,458	$805,100	11%	
8	$661,250	$707,600	7%	

From the evidence submitted in this appeal, the Board found that the appellant had not met her burden of proving that the subject property had a value lower than that assessed.  The appellant relied primarily upon comparative land assessments, without adjusting any of the values provided on the record cards for differences between the subject home and the homes of her comparables.  Although her abatement application cited differences between the subject home and the homes of her comparables, the appellant did not make adjustments to attribute a value to these differences.  Without adjustments or valuations to substantiate her assertions, the assessed values of the appellant's comparables were of little probative value when trying to determine the subject property's fair cash value. 
By contrast, the assessors provided a detailed sales analysis of five comparable properties, including neighboring 31 Meadow Lane, and they adjusted the properties appropriately to account for differences between the subject property and those comparables, including differences in location, size of land, number of rooms, basement finish, size of deck or porch, and number of fireplaces.  The Board found that the comparable sales analysis provided by the assessors supported the subject assessment. 
With respect to her claim that the subject assessment miscalculated the square footage of the subject's home, the appellant's evidence consisted of an internal floor plan of her home's second floor.  However, the appellant did not attempt to prove that the assessors utilized internal floor plans, as opposed to another method, including external measurements, in making the subject assessment.  See e.g., The Appraisal Institute, The appraisal of real estate 226 (12th ed., 2001) (defining "gross living area" as the "[t]otal area of finished, above-grade residential space; calculated by measuring the outside perimeter of the structure").  Moreover, the appellant submitted no evidence to demonstrate that the assessed measurements of comparable properties were likewise not consistent with their internal floor plan measurements.  Therefore, the Board had no evidence with which to compare the subject assessment with comparable assessments in this regard.  Finally, the appellant also failed to introduce any documentary evidence to show that the assessors' measurement of the patio was incorrect.  The Board thus found that the appellant failed to meet her burden of proving that the assessors had miscalculated the square footage of the subject property.  
Finally, with respect to her claim of disproportionate assessment, the appellant merely cherry-picked two properties whose assessments had increased proportionately less than the subject property's assessment.  The appellant failed to produce evidence to show an intentional scheme of disproportionate assessment or to show that the assessors harbored a discriminatory intent against the appellant.  Moreover, the Board found that the sale of 31 Meadow Lane, as adjusted by the assessors, supported the subject assessment.  The Board thus found that the appellant failed to meet her burden of proving disproportionate assessment.
Therefore, for the reasons explained in the Opinion, the Board found that the appellant failed to meet her burden of proving that the subject assessment exceeded the subject property's fair cash value.  Accordingly, the Board decided this appeal in favor of the appellee. 

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).  
The appellant bears the burden of proving overvaluation.  "'The burden of proof is upon the petitioner to make out its right as a matter of law to 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. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).
In appeals before the Board, taxpayers "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."  Id. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  The assessed values placed on properties comparable to the subject are admissible in hearings contesting assessments before the Board.  G.L. c. 58A, § 12B.  
To determine fair cash value, the Board typically utilizes three principal methods of valuation: the cost approach, income capitalization, and comparable sales analysis. See Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 362 (1978).  For owner-occupied residential property, the Board generally relies on the comparable sales or market approach to value.  See, e.g., Lyons v. Assessors of Wilbraham, Mass. ATB Findings of Facts and Reports 2004-385, 398-400; Sisk v. Assessors of Essex, Mass. ATB Findings of Fact and Reports 1997-528, 537, aff'd, 426 Mass. 651 (1997).  "Evidence of the sale prices of 'reasonably comparable property' is the next best evidence to the sale of the property in question." Lattuca v. Robsham, 442 Mass. 205, 216 (2004) (internal citation omitted.).
In the instant appeal, the appellant offered evidence of two properties which she considered to be comparable to the subject.  The appellant's case consisted of mere reliance upon the square footage of the parcels and her contention that comparable two's parcel was superior because it was level, while the subject property's parcel contained ledge.  By relying solely on the land portion of the subject assessment, the appellant failed to take into account the overall assessment.  The Board has previously found that "a taxpayer does not conclusively establish a right to an abatement merely by showing that [her] land 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.'"  Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 2006-778 (quoting Assessors of Brookline v. Prudential Insurance Co., 310 Mass. 300, 317 (1941)).  The appellant's evidence "challenging the value of the land component of the subject assessment" failed to demonstrate "that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date."  Hinds, Mass. ATB Findings of Fact and Reports at 2006-779.  
Moreover, the appellant failed to make any adjustments to the comparables' assessments for differences between the comparables and the subject.  "[R]eliance on unadjusted assessments of assertedly comparable properties . . . [is] insufficient to justify a value lower than that" assessed.  Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 70.  The Board found that, without the appropriate adjustments, the appellant's reliance on the assessed values of two nearby properties did not provide a reliable indicator of the subject's fair cash value.  
In contrast to the taxpayer's unadjusted, comparable assessment analysis, the assessors offered an analysis of five sales of comparable properties, which included appropriate adjustments for differences with the subject property for features like size of plot, finished area, number of rooms, size of deck or patio, and number of fireplaces.  Because it included appropriate adjustments, the Board found and ruled that the assessors' evidence of comparable sales transactions provided ample support for the value of the subject property.
In sum, the Board was not persuaded by the appellant's evidence.  Her reliance on two assessments, with no adjustment for differences between the subject property and her comparables, was outweighed by the appellee's presentation of five comparable sales, which included thorough, appropriate adjustments.  
With respect to her claim that the subject assessment miscalculated the square footage of the subject's home, the appellant's evidence consisted solely of an internal floor plan of the subject's second floor.  As previously explained in the Findings, the Board found that this evidence was insufficient to prove a miscalculation of the square footage for the subject assessment.  The Board thus found and ruled that the appellant failed to meet her burden of proving that the assessors incorrectly calculated the square footage of the subject property.
Finally, "[i]n order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is an 'intentional policy or scheme of valuing properties or classes of properties at a lower percentage of fair cash value than the taxpayer's property.'"  Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 332 (1997) (quoting Shopper's World, Inc. v. Assessors of Framingham, 348 Mass. at 366, 377 (1965)).  If taxpayers successfully demonstrate improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Id.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer[s]."  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 562 (1971).
In this appeal, the appellant produced evidence consisting merely of two comparables' assessments, which had increased proportionately lower than the subject property's assessment.  She did not raise evidence to demonstrate or suggest that the assessors had engaged in an "intentional widespread scheme of discrimination."  Stillson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  Moreover, the Board found that the sale of neighboring 31 Meadow Lane supported the subject assessment.  Therefore, the Board ruled that the appellant failed to meet her burden of proving disproportionate assessment.





Conclusion 
At the hearing of this appeal the Board determined that the appellant failed to meet her burden of proving overvaluation. The Board determined that the assessors' evidence of value outweighed the appellant's.  The Board thus determined that, on the basis of the evidence presented, the subject property was not overvalued.  Therefore, the Board accordingly decided the instant appeal in favor of the appellee. 

THE APPELLATE TAX BOARD



				
                  By: ___________________________________
				    Thomas W. Hammond, Chairman





A true copy,

Attest:  __________________________________
		    Clerk of the Board

 As will be explained infra, the appellant contested the square footage calculation of the second floor, contending that the actual square footage is 1,750 square feet.

ATB 2008-1253