Christine M. Florio, Trustee v. Board of Assessors of the Town of Newbury (June 29, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


CHRISTINE M. FLORIO, TRUSTEE		v.	BOARD OF ASSESSORS OF WANDA J. NOVAK, TRUSTEE				THE TOWN OF NEWBURY

Docket No. F287875 (FY 2007)
Docket No. F294075 (FY 2008)
Docket No. F299082 (FY 2009)
Docket No. F305469 (FY 2010)		

JOSEPH DINAPOLI				     v.	BOARD OF ASSESSORS OF 								THE TOWN OF NEWBURY
Docket No. X302672 (FY 2010)		

STEPHEN A. & CATHERINE T. DeSALVO	v.	BOARD OF ASSESSORS OF 								THE TOWN OF NEWBURY
Docket No. X302664 (FY 2010)

CANDACE & PETER ERICKSON			v.	BOARD OF ASSESSORS OF 								THE TOWN OF NEWBURY
Docket No. X302689 (FY 2010)

DONALD ACCETTA, TRUSTEE			v.	BOARD OF ASSESSORS OF 								THE TOWN OF NEWBURY
Docket No. X302682 (FY 2010)

HENRY A. & SUSAN S. CHRIST		     v.   	BOARD OF ASSESSORS OF 								THE TOWN OF NEWBURY
Docket No. X302656 (FY 2010)
								Promulgated:
								June 29, 2011
		
		     
	These are appeals under the formal and informal procedures, pursuant to G.L. c. 59, §§ 7 and 7A and     G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the Town of Newbury (the "assessors" or "appellee") to abate taxes on certain real estate in the Plum Island section of the Town of Newbury assessed under G.L. c. 59, §§ 11 and 38 for fiscal years 2007, 2008, 2009 and 2010.  The six parcels located along Northern Boulevard (collectively, the "subject properties") are owned by and assessed to the parties captioned on the preceding page and identified below in Table One (collectively, the "appellants").  A summary of some of the basic identifying information related to each of the subject properties is contained below in Table One.
Table One
Fiscal
Year
	Docket
No.
	
Appellant
	
Property Address
	Assessors
Map/Lot	Parcel Size
Square Feet	
2007	F287875	Florio, TE	58 Northern Blvd.	  U03-187	 9,429	
2008	F294075	"	"	"	"	
2009	F299082	Novak, TE	"	"	"	
2010	F305469	"	"	"	"	
2010	X302672	DiNapoli	46 Northern Blvd.	  U03-191	18,206	
2010	X302664	DeSalvo	16 Northern Blvd.	  U02-12	 8,429	
2010	X302689	Erickson	48 Northern Blvd.	  U03-190	21,306	
2010	X302682	Accetta, TE	76 Northern Blvd.	  U03-182	16,945	
2010	X302656	Christ	26 Northern Blvd.	  U02-4	17,195	

	Chairman Hammond heard these appeals.  Pursuant to G.L. c. 58A, §§ 7A and 8 and 831 CMR 1.19(5) and 1.37(1) and (2), and without objection from the parties, the Chairman joined and consolidated these appeals.  Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in the decisions for the appellee in docket numbers F287875, F294075, and F299082, which relate to the 58 Northern Boulevard property for fiscal years 2007, 2008, and 2009, respectively, and the decisions for the appellants in the remaining docket numbers F305469, X302672, X302664, X302689, X302682, and X302656, which relate to the 58 Northern Boulevard, 46 Northern Boulevard, 16 Northern Boulevard, 48 Northern Boulevard, 76 Northern Boulevard, and 26 Northern Boulevard properties for fiscal year 2010, respectively.  
	The Appellate Tax Board (the "Board") promulgates this Findings of Fact and Report on its own motion under     G.L. c. 58A, § 13 and 831 CMR 1.32.  The Board's decisions are promulgated simultaneously with this Findings of Fact and Report.    


	Joseph DiNapoli, pro se, Stephen A. DeSalvo, pro se, Peter Erickson, pro se, Donald Accetta, pro se, Susan Christ, pro se, and Paul Novak, Esquire, for the appellants.

	Frank Kelley, assessor, E. Peter Murphy, assessor, Sanford Wechsler, assessor, and Carrie Keville, administrative assessor, for the appellee.


FINDINGS OF FACT AND REPORT
Basic Assessment and Jurisdictional Information
	On January 1, 2006, 2007, 2008, and 2009, the appellants were the assessed owners of their respective parcels of real estate located along Northern Boulevard in the Plum Island section of Newbury.  The relevant assessment information for the subject properties for the fiscal years at issue is contained below in Table Two.
Table Two


Fiscal
Year
	
Docket
No.
	

Appellant
	Northern Boulevard Address
	Tax Rate
$/1,000	Overall
Assessment
($)
	
Real Estate Tax ($)	Land Assessment ($)		2007	F287875	Florio, TE	58 	8.23	  963,800	  7,932.06*	645,900		2008	F294075	"	"	8.57	  935,700	  8,018.94*	645,900		2009	F299082	Novak, TE	"	9.16	  859,900	  7,876.68*	581,300		2010	F305469	"	"	9.52	  830,400	  7,905.40*	569,900		2010	X302672	DiNapoli	46 	9.52	  823,900	  7,843.52*	699,000		2010	X302664	DeSalvo	16 	9.52	  782,500	  7,449.40*	625,700		2010	X302689	Erickson	48 	9.52	  837,300	  7,971.10*	722,300		2010	X302682	Accetta, TE	76 	9.52	  819,000	  7,796.88	689,700		2010	X302656	Christ	26 	9.52	1,070,400	 10,190.20*	691,500		
* In addition to real estate tax, a betterment charge appeared on these appellants' tax bills.

	The pertinent payment and other jurisdictional information, including relevant filing dates, for the subject properties for the fiscal years at issue are contained below in Table Three.

Table Three


Fiscal Year
	
Docket
No.	

Appellant
	
Tax Bill Mailed	
Tax Payment	
Abatement Application	
Assessors'
Denial	Petition or Statement to Board
		2007	F287875	Florio, TE	12/29/2006	timely	01/17/2007	02/06/2007	02/23/2007		2008	F294075	"	12/26/2007	timely	01/24/2008	02/19/2008	03/18/2008		2009	F299082	Novak, TE	12/31/2008	timely	01/26/2009	02/17/2009	03/09/2009		2010	F305469	"	12/28/2009	timely	01/25/2010	02/12/2010	04/20/2010		2010	X302672	DiNapoli	12/28/2009	timely	01/28/2010	02/12/2010	05/12/2010		2010	X302664	DeSalvo	12/28/2009	timely	01/26/2010	02/12/2010	05/11/2010		2010	X302689	Erickson	12/28/2009	timely	01/26/2010	02/12/2010	05/12/2010**		2010	X302682	Accetta, TE	12/28/2009	timely*	01/25/2010	02/12/2010	05/12/2010**		2010	X302656	Christ	12/28/2009	timely	01/27/2010	02/12/2010	05/11/2010		
* The appellant timely paid the average of the previous three years' tax assessments.  See G.L. c. 59, §§ 64 & 65 ("a sum not less than the average of the tax assessed . . . for the three years next preceding the year of assessment may be deemed to be the tax due.")
** The appellants timely mailed Statements Under Informal Procedure on May 12, 2010, which the Board received on the following day.  See G.L. c. 59, §§ 64 and 65 ("If any complaint under this section is, after the period or date prescribed by this section, . . . delivered by United States mail, to the clerk of the . . . board, the date of the United States postmark . . . affixed on the envelope or other appropriate wrapper in which such complaint is mailed or delivered shall be deemed to be the date of delivery.").

Based on these facts and in accordance with G.L. c. 59,      §§ 57C, 59, and 64 and 65, the Board found and ruled that it had jurisdiction over these appeals.  
Summary of Valuation Evidence
Introduction
	Plum Island, named after the plethora of beach plum bushes once found there, is an approximately eleven-mile long barrier island and beach, composed of sand and sediment and formed after the last ice age, some 18 thousand years ago, when the great glaciers receded.  The island, which varies in width from about one-quarter mile to over one-half mile, extends from the south side of the mouth of the Merrimack River in Newburyport southward, through the towns of Newbury, Rowley, and Ipswich, to the mouth of the Ipswich River and Ipswich Bay.  The western boundary of Plum Island is formed by the Plum Island River and Plum Island Sound; the eastern boundary is the Atlantic Ocean.  A little over two miles of the island's most northern stretch is densely developed with about 1,200 year-round and seasonal homes and cottages, all in the Newburyport and Newbury sections.  The remaining three-quarters of the island is comprised of a 4,662-acre federal wildlife refuge, named the Parker River National Wildlife Refuge, and, at the very southern tip, called Sandy Point, a small state reservation, named Sandy Point State Reservation.  
	For reference and for illustrative purposes only, a map of Plum Island is provided below.
 
Geological and historical evidence reveals that the island, or various oceanfront parts of it, have undergone periods of accretion and erosion throughout its history.  In the past, however, when property was lost to the ocean, it usually only involved undeveloped sand dunes or sections of beach, or, in the more recent past, seasonal cottages.  Presently, however, and similar to numerous other locales located along the Massachusetts shoreline, such as Salisbury and Scituate and various other communities on Cape Cod and the Islands, Plum Island is experiencing what engineers now refer to as "severe coastal erosion" affecting relatively expensive beachfront properties.  Current efforts to curb that process have focused on stop-gap, but still costly solutions, such as dredging and sand replenishment projects, which have provided at best only temporary relief from the increased erosion.
Overview   
Based on the combined testimony and documentary evidence that forms the record in these consolidated appeals, the Board makes the following findings of fact.  In December 2008 and January 2009, the town installed massive sand bags to protect Plum Island center, which is the southern boundary of Northern Boulevard (the "Dune Stabilization Project").  In September 2009, nine months after the relevant assessment date for fiscal year 2010, the U.S. Army Corps of Engineers ("Corps") completed a so-called §204 Detailed Project Report and Environmental Assessment for Newburyport Harbor and Plum Island and Salisbury Beaches ("§204 Report").  In its study, the Corps reported, inter alia, that: "Plum Island . . . ha[s] experienced localized, acute, erosion rates along the beach face exposed to the Atlantic Ocean.  [Based on previous studies conducted in 2000 and 2007], [t]he [average] annual coastal erosion rate has been estimated at 13 feet per year at Newbury, far in excess of the long term average for this region."   The study further reveals that some areas along Northern Boulevard in Newbury nearest to Plum Island Center are receding at an even more accelerated rate of over 21 feet per year, as are some other properties located south of the center along Fordham and Annapolis Ways.  To help ameliorate the rapid reduction of the remaining beach buffer ostensibly protecting some 26 residences located on Northern Boulevard and believed to be in imminent danger from the acute erosion, the Corps recommended that the majority of the sand removed from the Merrimack River dredging project, equivalent to roughly 120,000 cubic yards, be directed to that 2,500-foot-long section of the Newbury beach on Plum Island (the "Replenishment Project").  The Replenishment Project was started and completed by the Corps in calendar year 2010.  To participate, the affected property owners were required to sign easements which ceded substantial rights to the town while significantly restricting each property owner's access to and use of the area of nourishment on their property.  Originally projected to prevent or delay coastal erosion damages for approximately four to five years, it now appears that this estimate is overly optimistic.  According to published accounts, some argue that a more permanent solution necessitates the repair of the compromised southern jetty at the mouth of the Merrimack River, which may have created off-shore currents and drifts that are scouring the shoreline to its south.  Local officials are currently lobbying for the institution of such a project.       
According to the testimony and other accounts in evidence, it appears that over the past several years, numerous newspaper articles and television news broadcasts have disseminated pictures and accounts of the severe beach erosion problem and the concomitant loss of property on Plum Island's Newbury and Newburyport beachfronts, including the November 2008 loss of an imperiled single-family home located at 4 5th Street, off Northern Boulevard and along the same beachfront where the subject properties are located.  Local, regional, and even national news media continue to report and broadcast accounts of erosion on Plum Island.  
Recent sales of beachfront property located on Northern Boulevard in the Newbury section of Plum Island, which the Corps has identified as subject to "severe erosion," have been few and far between.   On May 8, 2008, an undeveloped oceanfront parcel of approximately 9,350 square feet or 0.215 acres, located at 60 Northern Boulevard in Newbury, which the Corps considers to be within the severe erosion area, sold for $150,000.   According to the property record card, this property is undevelopable and was assessed at $126,500 for fiscal year 2010 and at $129,100 for fiscal year 2009.  The purchaser  -- in the form of an LLC -- was an abutter and one of the appellants in these appeals.  On June 11, 2010, 25 months later, an undeveloped oceanfront parcel of approximately 15,660 square feet or 0.36 acres, located at 30 Northern Boulevard in Newbury, which the Corps also considers to be within the "severe erosion" area, sold for $136,000, approximately 9½% less than the prior sale, despite its considerably larger size.  According to that property record card, it too is undevelopable and was assessed at $136,000 for fiscal year 2010 and at $138,700 for fiscal year 2009.  The purchaser -- this time as trustee of a nominee trust -- is essentially the same appellant in these appeals who purchased 60 Northern Boulevard approximately two years earlier.  
In addition, the appraiser who estimated the value of the 76 Northern Boulevard property for one of the appellants in these appeals did not testify or appear before the Board.  The appellant submitted the appraiser's report, which contained three purportedly comparable-sale properties, into evidence.  The only oceanfront property is his first sale, which is located at 4 Grant Street in Newburyport, about ½ mile north of that appeal's subject property.  This purportedly comparable property sold for $760,000 on February 2, 2008 and required less than 10% in gross adjustments for the appraiser to determine an adjusted sale price or indicated value for the 76 Northern Boulevard property of $720,500.  This purportedly comparable property is close to but not in the severe erosion area, and it is not directly on the beach and subject to the ocean's fury in the same way that the subject properties are because it is buffered by a substantial dune and beach area.  
In the four appeals which relate to the 58 Northern Boulevard property for fiscal years 2007, 2008, 2009, and 2010, discussed in greater detail below, the assessors introduced eight sales of oceanfront property in the Newbury section of Plum Island that occurred from August 15, 2005 to June 22, 2007.  These sales include 5 on Northern Boulevard, one on 41st Street, and two on Fordham Way, which are all within about one mile of one another.  Table Four below summarizes the salient information pertaining to these sales.
Table Four

Property	
Sale Date	Sale Price $	Ass'd. Val.
at Sale $	Curr. Ass'd. Value $	Parcel Size SF	Improve
Fin. Area SF
		68 Northern Blvd	08/15/2005	1,600,000	1,293,400	   1,193,300	18,308	2,225		50 Northern Blvd	08/19/2005	1,685,000	1,438,300	   1,328,200	19,850	2,852		72 Northern Blvd	09/02/2005	1,640,000	1,176,800	   1,108,300	16,310	3,548		6 Fordham Way	01/04/2006	  900,000	  910,400	     910,400	 8,100	1,729		7 41st Street	11/08/2006	1,200,000	1,078,900	   990,000	14,383	1,865		10 Fordham Way	01/22/2007	  749,000	  708,400	   641,000	 8,100	      620		4 Northern Blvd	04/18/2007	  720,000	  670,000	   612,300	 2,340	2,113		100 Northern Blvd	06/22/2007	1,350,000	1,038,700	   963,700	15,871	2,307		
Several of the appellants testified and introduced a flyer which stated that "[t]o settle the Estate of Helen C. Loyko," an auction, subject to seller's confirmation, was to be held in July 2009 to attempt to sell an oceanfront property composed of an approximately ¼-acre parcel improved with a 1,674-square-foot, single-family, 2-story, year-round residence built in the 1950s and located at 37 Southern Boulevard in the Newbury section of Plum Island.  The testimony revealed that the property, which is presently assessed for $764,900, did not garner the minimum bid of $585,000.  
Another oceanfront property located at 27 Annapolis Way in the Newbury section of Plum Island, south of Plum Island Center but still within an area experiencing severe erosion, was listed, as of November 12, 2010, as being "under agreement" for $299,000.  According to the MLS report, it originally had been listed in December 2009 for $779,000, and it went under agreement in July 2010, with an anticipated sale date of December 2010.  The listing describes the home as uninhabitable and advises prospective purchasers that it will have to be moved or demolished at the buyer's expense or the buyer may obtain a building permit for a 1,570-square-foot home to be built further from the ocean.  This property's fiscal year 2009 assessment was $820,000.  The improvement on this property was recently demolished after its cement-block foundation was compromised by surf and erosion.  The two neighboring properties' improvements are also currently on the brink.   For safety, one of those property owners was ordered to vacate the premises.    
For fiscal year 2009, the assessors granted an abatement of $930.93 -- which equates to $101,630 of value -- to the owner of the property located at 4 5th Street in the Newbury section of Plum Island pursuant to an Act that specifically authorized them to do so.  This property is the improved oceanfront parcel just south of Plum Island center that presumably received significant publicity when the home was demolished in late 2008 due to erosion.  The owner is presently seeking permits for reconstruction at the portion of the parcel furthest from the ocean. 
Several of the appellants testified that federal flood insurance only covers up to $250,000 of their improvements' values.  Private property insurance is essentially unavailable, and the cost of private flood insurance, if it is available at all, is exorbitant.  Several appellants also stated that lenders refuse to offer mortgages on Plum Island properties located along Northern Boulevard in excess of the federal flood insurance limit.  
In a journal article written by Warren Kriesel and Robert Friedman, entitled Coping with Coastal Erosion: Evidence for Community-Wide Impacts, and published in Shore & Beach Vol. 71, No. 3, July 2003, pp. 19-23 ("Coping with Coastal Erosion"), the authors discovered that oceanfront properties located along ten Atlantic and Gulf Coast counties that are threatened by an erosion rate of 3 feet per year lose about 25% of their value, while comparable properties in communities that nourish their beaches can reclaim approximately one-half of this loss.  The Board notes that the subject properties are threatened by an erosion rate in excess of the one used in this study and it now appears that the Replenishment Project on Plum Island is not meeting its expected goals.       
The Appeals         
All of the appellants in these consolidated appeals similarly assert, at least to some extent, that the values of their properties have been adversely affected by: erosion, both actual and threatened, of the upland portion of their parcels; the restrictive easements; the limited availability and, in their opinions, outrageous pricing of private property insurance; the FEMA flood insurance limit of $250,000; the reluctance or even refusal of lenders to loan funds beyond the $250,000 federal flood insurance limit; and the stigmas related to both the presence of their properties in the §204 Report, as well as the mention of their properties' general location in news reports and broadcasts.
	Fifty-eight Northern Boulevard, which is identified by the assessors as Map/Lot U03-187, consists of an approximately 0.216-acre or 9,429-square-foot parcel improved with a conventional, 2-story, year-round home built in 1998.  The house has a finished area of 2,584 square feet, and a total of seven rooms, including four bedrooms plus one full bathroom and two half bathrooms.   The house also has a 60-square-foot open porch, a 204-square-foot deck, and a 308-square-foot unfinished attic area.  The interior walls are drywall, and the floors are hardwood or carpeted.  The home is centrally heated with a gas-fired forced hot water system.  The exterior of the cottage has vinyl siding and an asphalt-shingled gable roof.  The property is serviced by town water and sewer.  The assessment history for fiscal years 2007 through 2010 is summarized below in Table Five.
Table Five
	Fiscal Year 2007	Fiscal Year 2008	Fiscal Year 2009	Fiscal Year 2010	
Date of Assessment	
01/01/2006	
01/01/2007	
01/01/2008	
01/01/2009	
Land Assessment ($)	
645,900	
645,900	
581,300	
569,900	
Improvement Assessment ($)	
317,900	
289,800	
278,600	
260,500	
Total Assessment ($)	
963,800	
935,700	
859,900	
830,400	

	On her abatement applications for fiscal years 2007 and 2008, the appellant asserted that her property lost 38% of its land from erosion.  On her petitions, the appellant suggested that the value of the parcel associated with the 58 Northern Boulevard property for fiscal year 2007 was $400,458 and for fiscal year 2008, it was $391,288, which may have been a typo considering her suggested figure for fiscal year 2009 was $331,288.  On her abatement application and petition for fiscal year 2009, the appellant requested that the assessment attributable to the land be reduced from $581,300 to $331,288.  On her abatement application for fiscal year 2010, the appellant again asserted that her property had lost about 38% of its area from erosion and, for the first time, she also raised the issue of the easement devaluing her property.  In her petition, she suggested that the value of the land component of the assessment be reduced to $150,000.  
	At the hearing of these appeals, the appellant requested alternative overall values for her property premised on either reductions in the assessments attributable to the land component or on a straight 25% reduction in the overall assessment based on the Coping with Coastal Erosion study referred to above.  Table Six below summarizes these values for the property located at 58 Northern Boulevard.
Table Six

Docket No.	Fiscal Year	Assessed Values ($)	Requested Values ($)	25% Reduced Values ($)
	
F287875	2007	963,800	718,358	722,850	
F294075	2008	935,700	681,088	701,775	
F299082	2009	859,900	609,888	644,925	
F305469	2010	830,400	410,560	622,800	

	Forty-six Northern Boulevard, which is identified by the assessors as Map/Lot U03-191, contains an approximately 0.418-acre or 18,206-square-foot parcel improved with an old-style, wood-framed, two-level, cottage built in 1930.  The cottage has a finished area of 1,020 square feet and a total of seven rooms, including four bedrooms plus one bathroom.   The cottage also has an unfinished concrete basement/foundation and a 584-square-foot open porch.  The interior walls are painted drywall, and the floors are carpeted.   The cottage has oil heat.  The exterior of the cottage has vinyl siding and an asphalt-shingled hip roof.  The property is serviced by town water and sewer.  The assessors valued the property at $823,900, as of January 1, 2009, allocating $124,900 to the property's cottage and $699,000 to its land.
	On his abatement application and at the hearing, the appellant asserted that his property should be valued at $411,950, essentially one-half its assessment.
	Sixteen Northern Boulevard, which is identified by the assessors as Map/Lot U02-12, consists of an approximately 0.194-acre or 8,429-square-foot parcel improved with an old-style, wood-framed, two-level, cottage built in 1905.  The cottage has a finished area of 1,211 square feet and a total of six rooms, including three bedrooms plus one full bathroom and one half bathroom.   The cottage also has an unfinished concrete-block basement/foundation along with a 492-square-foot enclosed porch and 468-square-feet in wood decking.  The interior walls are painted drywall, and the floors are carpeted.   The cottage has electric heat.  The exterior of the cottage has wood shingle siding and an asphalt-shingled gable roof.  The property is serviced by town water and sewer.  The assessors valued the property at $782,500, as of January 1, 2009, allocating $156,800 to the property's cottage and $625,700 to its land.
	On his abatement application and at the hearing, this appellant asserted that his property should be valued at $391,250, essentially one-half its assessment.  
	Forty-eight Northern Boulevard, which is identified by the assessors as Map/Lot U03-190, consists of an approximately 0.489-acre or 21,306-square-foot parcel improved with a seasonal cottage on piers originally built around 1890.  The cottage has a finished area of between 960 and 1,130 square feet, depending on the source, and a total of five rooms, including two bedrooms plus one full bathroom and one half bathroom.   The cottage also has a 558-square-foot enclosed porch, an 882-square-foot deck, and a 374-square-foot storage area below the deck.  There is also a 336-square-foot, single-car detached garage along with another deck.  The interior walls are primarily plywood panels, and the floors are vinyl or carpeted.  There is also a wood stove.  The exterior of the cottage has clapboard siding and an asphalt-shingled gable roof.  The property is serviced by town water and sewer.  The assessors valued the property at $837,300, as of January 1, 2009, allocating $108,600 to the property's cottage, $722,300 to its land, and an additional $6,400 to the other improvements.
	On their Statement Under Informal Procedure, the appellants asserted that their property should be valued at $460,515, and at the hearing, they sought to have the part of the assessment attributed to the land value reduced proportionately by the portion of the parcel affected by the easement -- from $722,300 to $453,821, a 37% reduction.
	Seventy-six Northern Boulevard, which is identified by the assessors as Map/Lot U03-182, contains an approximately 0.389-acre or 16,945-square-foot parcel improved with an old-style, wood-framed, two-level, cottage built in 1910.  The year-round cottage has a finished area of 1,229 square feet and a total of six rooms, including three bedrooms plus one full bathroom and one half bathroom.   The cottage also has a concrete block foundation.  The interior walls are plywood panel, and the floors are soft wood, vinyl, and carpeted.   The cottage has a forced-hot-water heating system.  The exterior of the cottage has wood clapboard siding and an asphalt-shingled hip roof.  The property is serviced by town water and sewer.  The assessors valued the property at $819,000, as of January 1, 2009, allocating $129,300 to the property's cottage and $689,700 its land.
	At the hearing, the appellant asserted that his property should be valued at $595,867 -- about 73% of its overall assessment -- because the portion of the assessment attributed to the property's cottage was too high given its condition, the portion of the assessment attributed to the subject property's land assessment was excessive compared to other nearby properties and considering the subject parcel's decreasing area, and the Corps identified the property as one of 26 structures along Northern Boulevard in imminent danger of land loss and structural damage due to storm surge and accelerated erosion.  The appellant also asserted that the property is now subject to a "permanent federal storm damage reduction easement."
Twenty-six Northern Boulevard, which is identified by the assessors as Map/Lot U02-4, consists of an approximately 0.395-acre or 17,195-square-foot parcel improved with a contemporary-style, wood-framed, two-story year-round home built in about 1977.  The house has a total of six rooms, including two bedrooms.  There are two full bathrooms and one half bathroom.  The interior is painted drywall, and the floors are carpeted or ceramic tile. The house has oil heat along with one fireplace and a one-car garage under.  The basement has a concrete floor.  The exterior of the home had wood-shingle siding and an asphalt-shingled gable roof.  The property is serviced by town water and sewer.  The assessors valued this property at $1,070,400, as of January 1, 2009, allocating $378,900 to the improvement and $691,500 to the land.  
On her abatement application, Statement Under Informal Procedure, and at the hearing, the appellant asserted that the overall value of her property should be reduced by 50% to $535,200.  
Time-Table of Related Events and Circumstances
	The dates when various value-affecting events occur are important considerations for determining a property's value as of a specific valuation date.  For the subject appeals, the Board found that it was necessary to evaluate the evidence and ascertain when stigma, property loss, diminished marketability, and any combination thereof first began to affect the value of the subject properties.  The following time-table attempts to summarize and relate those events or circumstances in evidence that could affect the values of the subject properties to the subject fiscal year 2007, 2008, 2009, and 2010 appeals' valuation and assessment dates of January 1, 2006, January 1, 2007, January 1, 2008, and January 1, 2009, respectively.

Time-Table
January 1, 2006 Valuation/Assessment Date 
for Fiscal Year 2007

August and September, 2005 - Sales of three 16,300- to 19,850-square-foot oceanfront properties on Northern Boulevard for $1,600,000 (assessed at sale for $1,293,400), $1,685,000 (assessed at sale for $1,438,300), and $1,640,000 (assessed at sale for $1,176,800);

January 1, 2007 Valuation/Assessment Date
for Fiscal Year 2008

January and November, 2006 - Sales of two oceanfront properties on Fordham Way (8,100 square feet) and 41st Street (14,383 square feet) located within a mile of the subject properties for $900,000 (assessed at sale for $910,400) and $1,200,000 (assessed at sale for $1,078,900), respectively;

January 1, 2008 Valuation/Assessment Date
for Fiscal Year 2009

January, April, and June, 2007 - Sale of a 8,100-square-foot oceanfront property located on Fordham Way for $749,000 (assessed at sale for $708,400) and sales of a 2,340-square-foot oceanfront property and a 15,871-square-foot oceanfront property both on Northern Boulevard in the amounts of $720,000 (assessed at sale for $670,000) and $1,350,000 (assessed at sale for $1,038,700), respectively;

April, 2007 - The so-called Patriots Day storm pounds coast & takes away several feet of dune & in late 2007 additional erosion at Plum Island center is evident, however, there is insufficient evidence of widespread reporting;

January 1, 2009 Valuation/Assessment Date
for Fiscal Year 2010

Early 2008 - Plum Islanders and local officials begin to lobby for Federal help to dump sand from the Merrimack River dredging project on the eroding beach;

Spring, 2008 - Commercial structure & 4 residential homes lost decks and/or steps due to storm/erosion;

May, 2008 - Sale of 9,350-square-foot unimproved & undevelopable beachfront parcel located at 60 Northern Boulevard to abutter for $150,000 (assessed for $129,100 for fiscal year 2009);

November, 2008 - Loss of an imperiled single-family home located at 4 5th Street, off Northern Boulevard and along the same beachfront;

November, 2008 - Boston Globe article describing the loss of the above home on Plum Island;

December, 2008 through January, 2009 - Dune Stabilization Project involved the installation of massive sandbags by the Town of Newbury to protect Plum Island center, which is the southern boundary of Northern Boulevard;

January 1, 2010 Valuation/Assessment Date
for Fiscal Year 2011
Not at Issue in These Appeals

July, 2009 - Auction for oceanfront property located at 37 Southern Boulevard did not fetch bid of $585,000 (assessed at time of auction for $764,900);

September, 2009 - U.S. Army Corps of Engineers completes the so-called §204 Detailed Project Report and Environmental Assessment for Newburyport Harbor and Plum Island and Salisbury Beaches which identifies 26 homes -- most along Northern Boulevard -- as environmentally imperiled & in a severe erosion zone;

September - December, 2009 - Permanent Public Access and Beach Management Easement agreements, which cede substantial rights to the town and restrict each property owner's access to and use of the area of nourishment on their property, are signed by and obtained from owners; 

Late October, 2009 - Date of survey of the 58 Northern Boulevard property showing area on that property consumed by easement; certified plot plan dated May, 2005 also submitted for the 48 Northern Boulevard property but undated portion depicting "Area of Public Easement" was apparently added to plan by appellants, and not by registered surveyor;

Late October, 2009 - Newbury town meeting appropriates $135,000 for the town's share of the beach replenishment project;

October, 2009 - Start of many newspaper articles & radio and television broadcasts and reports regarding property damage, evacuation by some property owners, & beach Replenishment Project on subject or related areas of Plum Island, as well as articles & broadcasts with every pending storm & ocean surge questioning whether imperiled properties on Plum Island will survive impending event;

January 1, 2011 Valuation/Assessment Date
for Fiscal Year 2012
Not at Issue in These Appeals

March, 2010 - Installation of large commercial bales of hay reinforced with snow fencing with proposed re-vegetation to temporally abate coastal dune erosion and protect approximately 19 homes and 1,500 feet of coastal dune;

June, 2010 - Sale of 15,660-square-foot unimproved & undevelopable beachfront parcel located at 30 Northern Boulevard to the same party who purchased 60 Northern Blvd. two years earlier, for $136,000 (assessed for $138,700 for fiscal year 2009);

September, 2010 - Sale of non-oceanfront improved parcel of approximately 4,900 square feet located at 150 Northern Boulevard, in the Newburyport section of Plum Island, for $268,780 (assessed for $322,100 in fiscal year 2010). Previously in May, 2006 (a little more than 4 years prior), the property sold for $405,000.  The latest sale is a 33% reduction in value;

Fall, 2010 - Plum Island beach Replenishment Project started and completed;

December, 2010 - Sale of uninhabitable oceanfront property (improvement demolished after sale) located at 27 Annapolis Way for $299,000 (assessed in FY 2009 for $820,000) to developer;

In addition to the events and circumstances described in the above time-table, several of the appellants testified that Federal flood insurance, up to a maximum of only $250,000, is available to insure their properties' improvements.  They further testified that private flood insurance is prohibitively expensive, if available at all.  Several of the appellants also stated that banks were unwilling to loan funds over the $250,000 Federal flood insurance limit if the loans were secured solely by mortgages on the subject properties.  The parties did not submit any evidence regarding insurance or banking practices relating to Plum Island directly from insurance agents, brokers, or underwriters, or from bank officials or personnel.  The parties did not provide the Board with any definitive start dates for these purported limitations and restrictions.  One of the appellants introduced an article, Coping with Coastal Erosion, which is referred to above.  This study evaluated the diminution of property values in ten counties along the Atlantic and Gulf coasts as a result of stigma.  The article concluded, inter alia, that the affected properties lost up to 25% of their pre-stigmatization values.  However, after replenishment, property values rebounded, reclaiming about one-half the original value lost.
Board's Ultimate Findings
	First, with respect to the two appeals for fiscal years 2007 and 2008 relating to the 58 Northern Boulevard property, the comparable sales of oceanfront property entered into evidence by the assessors for calendar years mid-2005 to mid-2007 support the assessments for fiscal years 2007 and 2008.  While the appellant alleged that her property lost 38% of its area from erosion by January 1, 2006 and January 1, 2007, the valuation and assessment dates for fiscal years 2007 and 2008, respectively, she did not introduce adequate demonstrative evidence substantiating this claim.  The §204 Report, which on one map shows two defined shorelines -- one in 2000 and another in 2007 -- depicts high total recession rates but does not reveal how much was lost or gained during any period in between.  In addition, the 2007 shoreline study referred to in the §204 report is after the January 1, 2006 and January 1, 2007 valuation and assessment dates for fiscal years 2007 and 2008, respectively.  Moreover, another map in that same report reveals that the area's historic shoreline, from 1928 to 1994, went through differing periods and degrees of accretion and erosion depending on the location, supporting the proposition that the shoreline is unpredictably dynamic.  
Also the certified easement plan introduced into evidence by this appellant that shows the area of the 58 Northern Boulevard property that is affected by the easement, and presumably the area of erosion, is dated October 2009, almost three and four years beyond the respective valuation and assessment dates for fiscal years 2008 and 2007, and even beyond the valuation and assessment date of January 1, 2009 for fiscal year 2010.  Additionally, given the evidence pertaining to recent erosion in the area, it is difficult to accept the notion advanced by the appellant that the amount of erosion related to this property remained stagnant from January 1, 2006 to January 1, 2009.  Moreover, there is no additional engineering or other reliable evidence to directly connect the October 2009 easement plan to the 58 Northern Boulevard property's condition on January 1, 2006 or January 1, 2007.  
Lastly in this regard, the appellant did not provide adequate evidence on how to properly adjust the value of the 58 Northern Boulevard property assuming a 38% diminution in its parcel's area.  As explained more fully below, it is not appropriate valuation practice to simply reduce, proportionately, the subject property's overall assessment or the portion of the assessment allocated to the land to account for the loss.  Accordingly, the Board finds that the appellant has not met her burden of demonstrating that the 58 Northern Boulevard property was overvalued for this reason for fiscal years 2007 and 2008. 
	Second, for the fiscal-year-2009 appeal relating to the 58 Northern Boulevard property, the Board finds that the appellant similarly alleged that the 58 Northern Boulevard property's parcel lost 38% of its area from erosion by January 1, 2008, the valuation and assessment date for fiscal year 2009.  However, for this fiscal year, the Board finds that she did introduce some credible demonstrative evidence substantiating this claim.  The §204 Report reveals that at least by the end of calendar year 2007, the 58 Northern Boulevard property had lost a substantial portion of its parcel.  However, the certified easement plan introduced into evidence by the appellant and discussed above is dated almost two years beyond the January 1, 2008 valuation and assessment date for fiscal year 2009.  The appellant did not submit any additional engineering or other reliable evidence to directly connect this plan to the 58 Northern Boulevard property's condition on January 1, 2008.  
Lastly in this regard, and as with the fiscal-year-2007 and fiscal-year-2008 appeals, the appellant once again did not provide adequate evidence on how to properly adjust the 58 Northern Boulevard property's value assuming a substantial diminution in its parcel's size.  As was the case for the fiscal year 2007 and 2008 appeals and as more fully explained below, it is not appropriate valuation practice to simply reduce, proportionately, the subject property's overall assessment or the portion of the assessment allocated to the land to account for the loss.  Accordingly, the Board finds that the appellant has not met her burden of demonstrating that the 58 Northern Boulevard property was overvalued for this reason for fiscal year 2009.
Third, for all of the fiscal-year-2010 appeals, the Board finds that the appellants did introduce some demonstrative evidence substantiating their claims that the subject properties suffered from the effects of erosion.  The §204 Report reveals that at least by the end of calendar year 2007, essentially all of the subject properties had lost a portion of their parcel.  However, the certified easement plan introduced into evidence for the 58 Northern Boulevard property and discussed above is dated almost one year beyond the January 1, 2009 valuation and assessment date for fiscal year 2010, and there is no additional engineering or other reliable evidence to directly connect this plan to the 58 Northern Boulevard property's condition on January 1, 2009.  The appellants who are appealing the assessment on the 48 Northern Boulevard property recently drew the area affected by the easement onto a 2005 plot plan for their property.  No additional evidence was submitted to certify that the area encompassed by the easement was equivalent to the 48 Northern Boulevard property's condition on January 1, 2009.      
In addition, the easements were signed in the fall of 2009, more than 9 months after the relevant January 1, 2009 valuation and assessment date for fiscal year 2010.  The Corps' Replenishment Project did not occur until 2010.  Therefore, the easements were not in effect until after the January 1, 2009 valuation and assessment date for fiscal year 2010.  Moreover, and as with the 58 Northern Boulevard property's appeals for fiscal years 2007, 2008, and 2009, the appellants with appeals for fiscal year 2010 failed to introduce adequate evidence on how to reasonably reduce the subject properties' values assuming a certain amount or degree of diminution in their parcels' areas due to erosion.  As was the case for the prior fiscal years' appeals and as explained more fully below, it is not appropriate valuation practice to simply reduce, proportionately, the subject property's overall assessment or the portion of the assessment allocated to the land to account for the loss.  Accordingly, the Board finds that the appellants did not met their burden of demonstrating that the subject properties were overvalued for this reason for fiscal year 2010.
Fourth, with respect to the claim that the 76 Northern Boulevard property was overvalued because, among other reasons, the assessors did not adequately take its dilapidated condition into consideration, the Board agrees with the appellant.  Based on his description of his property and placing some weight on repair estimates, the Board finds that it is appropriate to reduce his building assessment by 10%, from $129,300 to $116,370, before accounting for a possible reduction resulting from stigma.  
The Board, however, did not rely on the comparable-sales analysis prepared by his appraiser because the Board found that the properties which the appraiser used in his analysis were not comparable to the subject property; they were not oceanfront or not located in a comparable area.  In addition, the appraiser did not testify at the hearing and was not available for voir dire or cross-examination.  The Board also finds that the appellant's rationale for reducing the assessment allocated to his parcel -- a smaller-sized parcel should have a smaller per-square-foot value than nearby larger-sized parcels -- is simply incorrect.  See Appraisal Institute, The Appraisal of Real Estate 212 (13th ed. 2008) ("Size differences can affect value and are considered in site analysis.  Reducing sale prices [or assessments] to consistent units of comparison facilitates the analysis of comparable sites. . . . Generally, as size increases, unit prices decrease.  Conversely, as size decreases, unit prices increase.").    
Fifth, as for presence and possible effects of stigma on the subject properties for fiscal year 2010, the Board finds that, as of January 1, 2009, the valuation and assessment date for fiscal year 2010, the appellants demonstrated that the subject properties were adversely affected by stigma.  The factors supporting a finding of stigma include, among others: the actual destruction and loss of properties from erosion in the immediate vicinity of the subject properties; the actual erosion on and property loss suffered by the subject properties themselves; the necessity for and implementation of immediate remediation to at least forestall the problem;  the discussions regarding the desirability of and mechanism for both additional short-term and long-term solutions; the widely disseminated and prominent negative publicity about the erosion problem on Plum Island and in the area where the subject properties are located; the anticipated identification of the subject properties in the §204 Report; and the complete lack of sales of developed or developable oceanfront property in the area during the relevant fiscal-year-2010 time period, which indicates an abnormally diminished marketability that is presumably at least partially the result of and further proof of the existence of stigma relating to environmental risk.    
Based on the timing of the events discussed in its findings and listed in the foregoing timetable, the Board finds that the appellant for the 58 Northern Boulevard property failed to show stigma or diminished marketability for the 58 Northern Boulevard property fiscal years 2007, 2008, and 2009, just as she failed to prove property loss from erosion for fiscal years 2007 and 2008 and failed to properly value presumed property loss for fiscal years 2007, 2008, and 2009.  The single piece of demonstrative stigma evidence is a submission relating to fiscal year 2009, which consists of a Newburyport Daily News article that merely outlines or lists the timing of certain events.  The Board finds that this lone newspaper piece does not constitute wide-spread and notorious or prominent publicity and is insufficient to support a finding of stigma.  Moreover, the sales that occurred from September, 2005 to June, 2007 support the assessments on the subject oceanfront property for at least two of these earlier fiscal years.  Not until the spring of 2008 does the evidence begin to convincingly reflect the beginning of widespread property loss, the initiation of extensive mitigation measures, the possibility of diminished marketability, and the concomitant negative publicity.  Notwithstanding this finding, the Board also finds that after January 1, 2009, the valuation and assessment date for fiscal year 2010, the evidence demonstrates more frequent and widespread media reports of erosion and property damage.
On this basis, the Board finds that the evidence reflects that by January 1, 2009, conditions on and reported about Plum Island clear the hurdle for a finding that an environmental stigma, in the form of severe erosion and ocean surges coupled with property loss and damage and extensive media reports, exists in the area where the subject properties are located and is adversely impacting the marketability and value of the subject properties.  The lack of any relevant sales occurring in calendar year 2008, the storm and erosion damage to a commercial and several residential structures in 2008, reports in the Boston Globe and Newburyport Daily News about the property damage, the start of the Dune Stabilization Project, and continuing discussions for both additional short- and long-term solutions, all contribute to this adverse impact and finding of stigma.  After January 1, 2009, the valuation and assessment date for fiscal year 2010, the evidence reveals, among others things, more frequent and widespread media reports of erosion and property damage, the actual listing of the subject properties in the §204 Report, and the signing and implementation of the easements.
Accordingly, for fiscal year 2010, the Board finds that a stigma, measured by a percentage of the subject properties' overall assessed values -- and not limited to just their land values -- exists.  The Board further finds that 15% is a sufficient adjustment to apply to the subject properties' overall assessed values to compensate for the existence of stigma as of January 1, 2009.  The Board used the available evidence to help it determine this percentage, including, among other things, the article, Coping with Coastal Erosion, the start of the Dune Stabilization Project, the anticipated start and completion of the Corps' Replenishment Project, the lack of relevant sales of improved or buildable oceanfront properties in the area in 2008, the two sales of unimproved and unbuildable Northern Boulevard lots, and sales of other Plum Island properties, as well as the Board's own expertise.  This percentage does not reflect the actual listing of the subject properties in the §204 Report and additional widespread and even more negative publicity in 2009, and thereafter.  
 Conclusion

	Based on all of the evidence and reasonable inferences drawn therefrom, the Board finds, with respect to all of the appeals for all of the fiscal years at issue -- fiscal years 2007, 2008, 2009, and 2010 -- that the appellants did not met their burden of proving that the subject properties were overvalued because of the direct effects of erosion diminishing the size of the subject properties' parcels.  The Board also finds, however, with respect to the 76 Northern Boulevard property, that it was overvalued in fiscal year 2010 because that appellant proved that the assessors did not adequately account for his property's dilapidated condition.  Based on that appellant's description of his property and placing some weight on repair estimates, the Board finds that it is appropriate to reduce his building assessment by 10%, from $129,300 to $116,370, thereby reducing the 76 Northern Boulevard property's overall value for this reason for fiscal year 2010 to $806,070.  
As for the presence and possible effects of stigma on the subject properties for fiscal year 2010, the Board finds that, as of January 1, 2009, the valuation and assessment date for fiscal year 2010, but not for the earlier valuation and assessment dates for fiscal years 2007, 2008, and 2009, the appellants demonstrated that the subject properties were adversely affected by stigma.  Accordingly, for fiscal year 2010, the Board finds that a stigma, measured by a percentage of the subject properties' overall assessed values -- and not limited to just their land values -- existed.  The Board further finds that 15% is a sufficient adjustment to apply to the subject properties' overall assessed values to compensate for the existence of stigma-related issues as of January 1, 2009.  
Moreover, the Board recognizes the difficulty in accounting for the diminished size of the subject properties' parcels due to erosion but does not adopt the appellants' suggestion of reducing the amount of a subject property's assessment or the portion of the assessment allocated to an affected property's parcel in proportion to the amount of land lost because it is not an appropriate valuation methodology under the circumstances.  Rather, the Board suggests that it may be appropriate in future fiscal years to re-determine the size of each of the affected parcels by subtracting the square footage of the actual erosion or replenishment measurements from the assessors' parcel measurements (assuming the assessors have not already done so) and then, using the assessors' land-valuation tables, land assessments for comparably sized parcels, or other comparable tools, re-determine the subject properties' values.  Based on the present record, however, this approach cannot be implemented.
The following two tables, Table Seven and Table Eight, summarize the Board's decisions in these appeals.
Table Seven

Fiscal
Year
	
Docket
No.
	

Appellant
	Northern Boulevard Address
	Overall
Assessment
($)
	

Decision	15% Value Abated
Stigma	
FCV*
($)	Tax Abated
@ $9.52
per $1,000		2010	X302672	DiNapoli	46 	   823,900	Appellant	123,585	700,315	1,176.53		2010	X302664	DeSalvo	16 	   782,500	Appellant	117,375	665,125	1,117.41		2010	X302689	Erickson	48 	   837,300	Appellant	125,595	711,705	1,195.66		2010	X302656	Christ	26 	 1,070,400	Appellant	160,560	909,840	1,528.53		2007	F287875	Florio, TE	58 	   963,800	Assessors	N/A	N/A	N/A		2008	F294075	"	"	   935,700	Assessors	N/A	N/A	N/A		2009	F299082	Novak, TE	"	   859,900	Assessors	N/A	N/A	N/A		2010	F305469	"	"	   830,400	Appellant	124,560	705,840	1,185.81		
*"FCV" is an acronym for fair cash value.

Table Eight

Fiscal
Year
	
Docket
No.
	

Appellant
	Northern Boulevard Address
	Overall
Assessment
($)
	

Decision	10% Value Abated Condition	15% Value Abated
Stigma	
FCV*
($)	Tax Abated
@ $9.52
per $1,000		2010	X302682	Accetta, TE	76	  819,000	Appellant	12,930	120,910	685,160	1,274.16		
*"FCV" is an acronym for fair cash value.



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 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 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 board 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 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 Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeals, the appellants focused primarily on perceived errors in the assessors' valuation of the land component associated with the subject properties, and the assessors' failure to recognize the concept of stigma in their assessments.
A taxpayer, however, does not conclusively establish a right to abatement merely by showing that his 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."  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 Duquette v. Hinsdale, Mass. ATB Findings of Fact and Reports 2008-1494, 1502-03 (citations omitted).
In these appeals, the Board found that for fiscal years 2009 and 2010, but not before, the appellants successfully demonstrated that the sizes of the subject properties' parcels were diminished by erosion.  The appellants also showed that, as of the fall, 2009 and the completion of the Corps' Replenishment Project in January, 2010, their access to and use of the areas of nourishment on their properties were significantly restricted by the easement.  However, the Board also found that the appellants failed to provide a reasonable means to measure how the reduction in the subject properties' parcel area affected the subject properties' values.  The Board found that it is not appropriate valuation practice to simply reduce, proportionately, the subject property's overall assessment or the portion of the assessment allocated to the land to account for the loss.  See Finigan v. Assessors of Belmont, Mass. ATB Findings of Fact and Reports 2004-533, 537 ("One cannot take a unit of value for a given parcel and apply that unit value to increase the value of a larger parcel or decrease the value of a smaller one.").  The Board suggests that a better way might be to use the assessors' land-valuation tables, land assessments for comparably-sized properties, or other comparable tools to value the remaining land in accordance with that size parcel's value.  Such information, however, was not part of the record.    See Reliable Electronic Finishing Co. v. Assessors of Canton, 410 Mass. 381, 382-83 (1991)(holding that abatement not warranted where taxpayer did not prove impact on fair cash value from contamination of site); Novak v. Assessors of Newbury, 73 Mass. App. Ct. 1112 (2008)(affirming, under Rule 1:28, the Board's decision to uphold the assessment on the 58 Northern Boulevard property for fiscal year 2006 because "there was no evidence presented as to the effect of the erosion on the subject property's value.").
In addition, the Board determined that the easements did not affect the subject properties as of January 1, 2009, the valuation and assessment date for fiscal year 2010, because they were not in existence or effect until at least 9 months later.  The Board, therefore, did not factor them in to the subject properties' valuation for fiscal year 2010 or before then.
With respect to the claim that the 76 Northern Boulevard property was overvalued because, among other reasons, the assessors did not adequately take its dilapidated condition into consideration, the Board agreed with the appellant.  Based on his description of his property and placing some weight on repair estimates, the Board found that it was appropriate to reduce his building assessment by 10%, from $129,300 to $116,370.  
The Board did not rely on the comparable-sales analysis prepared by his appraiser because the Board found that the properties which the appraiser used in his analysis were not comparable to the 76 Northern Boulevard property; they were not oceanfront or not located in a comparable area.  The appellant bears the burden of "establishing the comparability of . . . properties [used for comparison] to the subject property."  Fleet Bank of Mass. v. Assessors of Manchester, Mass. ATB Findings of Fact and Reports 1998-546, 1998-554.  Accord New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).  In addition, the appraiser did not testify at the hearing and was not available for voir dire or cross-examination.  The Board also found that the appellant's rationale for reducing the assessment allocated to his parcel -- a smaller-sized parcel should have a smaller per-square-foot value than nearby larger-sized parcels -- is simply incorrect.  See Appraisal Institute, the Appraisal of Real Estate 212 (13th ed. 2008)("Size differences can affect value and are considered in site analysis.  Reducing sale prices [or assessments] to consistent units of comparison facilitates the analysis of comparable sites. . . . Generally, as size increases, unit prices decrease.  Conversely, as size decreases, unit prices increase.").    
While the Board found that the evidence was insufficient to support the appellants' claims for a direct and proportional reduction in the subject properties' overall assessments, or the part of the assessment allocated to their land, to account for a certain amount or degree of diminution in their parcels' areas due to erosion, the Board did determine that the evidence supported a finding that the subject properties suffered from stigma for fiscal year 2010.  According to Appraisal Institute, The Dictionary of Real Estate Appraisal (4th ed. 2002), "stigma" is defined as "[a]n adverse public perception regarding a property; the identification of a property with some type of opprobrium (environmental contamination, a grisly crime), which exacts a penalty on the marketability of the property and hence its value."  Id. at 277.   In Woburn Services, Inc. v. Assessors of Woburn, Mass. ATB Findings of Fact and Reports 1996-553, which involved valuation appeals of income-producing contaminated and uncontaminated properties within a Superfund site, the Board similarly defined "stigma" as "the negative impact on real estate values that results from public perception."

Id. at 1996-565.  In Woburn Services, Inc., the Board identified two kinds of stigma - locational stigma and direct contamination stigma.  The Board observed that: 
Locational stigma is the negative impact to value suffered by property located in an existing Superfund site[, and] [d]irect contamination stigma is the negative impact on the value of property that is not only located within a Superfund site, but is also directly contaminated beyond federal maximum contaminant levels.  The stigma engendered by a property's location within a Superfund site and its actual excessive direct contamination, diminishes that property's value due to impaired mortgageability, greater risk and uncertainty, and the possibility of associated costs.  

Id.  
A property's identity with some type of ignominy which diminishes its value through stigmatization is usually precipitated by wide-spread negative publicity.  See Wayland Business Center Holdings, LLC v. Assessors of Wayland, Mass. ATB Findings of Fact and Reports 2005-557, 573, 596-97 (finding that negative publicity concerning an income-producing property's environmental contamination was "wide-spread and notorious" and adversely affected its value because newspaper articles, broadcasts, state designations, testimony, and the like publicized the contamination resulting in high vacancies); see also Woburn Services Inc., Mass. ATB Findings of Fact and Reports at 1996-565 (finding that the locational and direct contamination stigmas lowered the values of associated properties because of negative publicity that was "prominent and notorious" thereby adversely affecting public perception).  To value property so afflicted, "[t]raditional appraisal techniques, which are appropriately modified to account for the effects of stigma caused by environmental [risk] are satisfactory for determining a property's fair cash value." Woburn Services, Inc., Mass ATB Findings of Fact and Reports at 1996-574. 
The Board's finding of stigma in these appeals is premised on the above definitions and on analogous reasoning and factors for which the Board found stigma in Woburn Services, Inc.  In general, the parallel reasoning and factors as applied to these appeals include: the actual destruction and loss of properties from erosion in the immediate vicinity of the subject properties; the actual erosion on and property loss suffered by the subject properties themselves; the necessity for and implementation of immediate remediation to at least forestall the problem;  the discussion regarding the desirability of and mechanism for both additional short-term and long-term solutions; the widely disseminated and prominent negative publicity about the erosion problem on Plum Island and in the area where the subject properties are located; the anticipated identification of the subject properties in the §204 Report; and the complete lack of sales of developed or developable oceanfront property in the area during the relevant fiscal-year-2010 time period, which indicates an abnormally diminished marketability that is presumably the result of and further proof of the existence of stigma relating to environmental risk.    
Based on the timing of the events discussed in its findings and listed in the foregoing timetable, the Board found that the appellants failed to demonstrate stigma or diminished marketability for fiscal years 2007, 2008, and 2009.  The single piece of evidence relating to fiscal year 2009, which is a Newburyport Daily News article that merely outlines or lists the timing of certain events, is insufficient to support a finding of stigma.  Moreover, the sales that occurred from September, 2005 to June, 2007 support the assessments on the subject oceanfront properties for at least two of these three earlier fiscal years.  Not until the spring of 2008 does the evidence begin to convincingly reflect property loss, the initiation of mitigation measures, the possibility of diminished marketability, and concomitant negative publicity.  
The evidence reflects that as of January 1, 2009 conditions on or reported about Plum Island clear the hurdle for a finding that an environmental stigma, in the form of severe erosion and ocean surges coupled with property loss and damage and prominent and notorious media reports, exists in the area where the subject properties are located and is likely adversely impacting the marketability and value of the subject properties.  The lack of any relevant sales occurring in calendar year 2008, the storm and erosion damage to a commercial and several residential structures in 2008, reports in the Boston Globe and Newburyport Daily News about the property damage, the start of the Dune Stabilization Project, and continuing discussions for both short- and long-term solutions, all contribute to this adverse impact and finding of stigma.  After January 1, 2009, the valuation and assessment date for fiscal year 2010, the evidence reveals, among other things, more frequent and widespread media reports of erosion and property damage, the actual listing of the subject properties in the Corps' §204 Report, and the signing and implementation of the easements.
Accordingly, for fiscal year 2010, and consistent with the notion of stigma first discussed by the Board in Woburn Services, Inc., supra, the Board finds that a stigma, measured by a percentage of the subject properties' assessed values - and not limited to just their land values - exists.  The Board further finds that 15% is a sufficient adjustment to apply to the subject properties' overall assessed values to compensate for the existence of stigma as of January 1, 2009.  The Board used the available evidence to help it determine this percentage, including, among other things, the article, Coping with Coastal Erosion, the start and anticipated completion of the Dune Stabilization Project, the anticipated start and completion of the Corps' Replenishment Project, and the lack of relevant sales of ocean-front properties in the area in 2008.  This percentage does not reflect the actual listing of the subject properties in the Corps' §204 Report and additional widespread and even more negative publicity in 2009, and thereafter.
In reaching its decision in these appeals, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation that a witness suggested.  Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight. Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp., 383 Mass. at 469.  "The credibility of witnesses, the weight of evidence, the inferences to be drawn from the evidence are matters for the Board."  Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).        
Conclusion
	Based on all of the evidence and reasonable inferences drawn therefrom, the Board finds and rules, with respect to all of the appeals for all of the fiscal years at issue -- fiscal years 2007, 2008, 2009, and 2010 -- that the appellants did not met their burden of proving that the subject properties were overvalued because of the effects of erosion diminishing the size of the subject properties' parcels.  The Board also finds and rules, however, with respect to the 76 Northern Boulevard property, that it was overvalued in fiscal year 2010 because that appellant proved that the assessors did not adequately account for his property's dilapidated condition.  Based on that appellant's description of his property and placing some weight on repair estimates, the Board reduced his building assessment by 10%, from $129,300 to $116,370, thereby reducing the 76 Northern Boulevard property's overall value for this reason for fiscal year 2010 to $806,070, before accounting for a reduction resulting from stigma.  
As for the presence and possible effects of stigma on the subject properties, the Board finds and rules that, as of January 1, 2009, the valuation and assessment date for fiscal year 2010, but not for the earlier valuation and assessment dates for fiscal years 2007, 2008, and 2009, the appellants demonstrated that the subject properties were adversely affected by stigma.  Accordingly, for fiscal year 2010, the Board finds and rules that a stigma, measured by a percentage of the subject properties' overall assessed values -- and not limited to just their land values -- existed.  The Board further finds and rules that 15% is a sufficient adjustment to apply to the subject properties' overall assessed values to compensate for the existence of stigma as of January 1, 2009.  
Furthermore, the Board recognizes the difficulty in accounting for the diminished size of the subject properties' parcels due to erosion but does not adopt the appellants' suggestion of reducing the subject properties' overall assessment or the amount of the assessment allocated to an affected property's parcel in proportion to the amount of land lost because it is not an appropriate valuation methodology under the circumstances.  Rather, the Board suggests that it may have been appropriate to re-determine the size of each of the affected parcels by subtracting the square footage of the actual erosion or replenishment measurements from the assessors' parcel measurements -- assuming the assessors have not already done so -- and then, using the assessors' land-valuation tables, land assessments for comparably-sized parcels, or a comparable tool, re-determine the subject properties' values.  Based on the record in these appeals, the Board could not implement this approach.
On this basis, the Board decides the appeals relating to the 58 Northern Boulevard property for fiscal years 2007, 2008, and 2009 for the appellee and decides all of the fiscal-year-2010 appeals for the appellants.

The following two tables, Table Seven and Table Eight, summarize the Board's decisions in these appeals.

                   Table Seven

Fiscal
Year
	
Docket
No.
	

Appellant
	Northern Boulevard Address
	Overall
Assessment
($)
	

Decision	15% Value Abated
Stigma	
FCV*
($)	Tax Abated
@ $9.52
per $1,000		2010	X302672	DiNapoli	46 	   823,900	Appellant	123,585	700,315	1,176.53		2010	X302664	DeSalvo	16 	   782,500	Appellant	117,375	665,125	1,117.41		2010	X302689	Erickson	48 	   837,300	Appellant	125,595	711,705	1,195.66		2010	X302656	Christ	26 	 1,070,400	Appellant	160,560	909,840	1,528.53		2007	F287875	Florio, TE	58 	   963,800	Assessors	N/A	N/A	N/A		2008	F294075	"	"	   935,700	Assessors	N/A	N/A	N/A		2009	F299082	Novak, TE	"	   859,900	Assessors	N/A	N/A	N/A		2010	F305469	"	"	   830,400	Appellant	124,560	705,840	1,185.81		
*"FCV" is an acronym for fair cash value.

Table Eight

Fiscal
Year
	
Docket
No.
	

Appellant
	Northern Boulevard Address
	Overall
Assessment
($)
	

Decision	10% Value Abated Condition	15% Value Abated
Stigma	
FCV*
($)	Tax Abated
@ $9.52
per $1,000		2010	X302682	Accetta, TE	76	  819,000	Appellant	12,930	120,910	685,160	1,274.16		
*"FCV" is an acronym for fair cash value.




						APPELLATE TAX BOARD

				  By: _________________________________
					 Thomas W. Hammond., Jr., Chairman
A true copy


Attest: __________________________
            Clerk of the Board

 Christine M. Florio, as Trustee of the PMNEMN Nominee Trust, Eugene Novak and Christine Florio brought the fiscal year 2007 and 2008 appeals.  Wanda J. Novak, as Trustee of the PMNEMN Nominee Trust, brought the fiscal year 2009 and 2010 appeals.      
 Donald Accetta, as Trustee of the Surfside Nominee Trust, brought this appeal.
 Susan S. Christ communicated a suggestion of Henry A. Christ's death.
 The map was taken from a website referenced by at least one of the appellants.
 The study was authorized by § 204 of the Water Resources Development Act of 1992 (33 USC Sec. 2326), as amended.
 Two of the 26 property owners initially refused to sign the easement agreement.  Because the replenishment project went forward, that issue apparently was resolved.  
 While the property at 4 Northern Boulevard appears to be one parcel removed from the ocean, it apparently has an unrestricted ocean view.  
 It is not clear in the article what, if any, easements the property owners may have signed to participate in the replenishment projects.
 The Board recognizes, however, that, under certain circumstances, some post-January first events may have some relevance to preceding fiscal years.  
 Numerous articles in The Appraisal Journal offer variations on the definition of stigma.  See, e.g., Richard Roddewig, "Stigma, Environmental Risk and Property Value: 10 Critical Inquiries," The Appraisal Journal, October 1996: 375-387 in which stigma, as it applies to real estate affected by environmental risk, is generally defined as "an adverse public perception about a property that is intangible and not directly quantifiable."  Roddewig also notes that stigma can be a temporary condition.  See also Lusvardi, Wayne and Charles B. Warren, ASA, "The Stigma Enigma: Doublespeak, Double Standards, and Double Dipping in Toxic Tort Property Damage Claims," http://www.jurispro.com/uploadArticles/Warren-Stigma.pdf (date last visited May 19, 2011), in which the authors posit that stigma is a function of the probable magnitude of any future problem, the probability of public acceptance of a present fix and/or the probability of recurrence of the problem.   

ATB 2011-779

N ↑ Scale

Not to Scale


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