Joan L. Schaub v. Board of Assessors of the City of Boston (June 22, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOAN L. SCHAUB	      v.	         BOARD OF ASSESSORS OF 
				   THE CITY OF BOSTON


Docket Nos. F301282 (FY 09)		   Promulgated:  
		  F307061 (FY 10)		   June 22, 2011
			   				
 					
	These are appeals filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the appellee, Board of Assessors of the City of Boston ("assessors" or "appellee"), to abate taxes on certain real estate in the City of Boston, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal years 2009 and 2010.
	Commissioner Scharaffa heard these appeals and was joined by Chairman Hammond and Commissioners Egan and Mulhern in the decisions for the appellee.
These findings of fact and report are made pursuant to the appellant's request under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Joan L. Schaub, pro se, for the appellant.
Laura Caltenco, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008 and January 1, 2009, Joan L. Schaub ("Ms. Schaub" or "appellant") was the assessed owner of a parcel of real estate located at 35 Appleton Street, in the South End neighborhood of Boston. The parcel was improved with a single-family brick row house, which contained approximately 2,052 square feet of living area ("subject property").  The dwelling had a total of seven rooms, including two bedrooms.  It also had two full bathrooms and one half bathroom.   
For fiscal year 2009, the assessors valued the subject property at $844,900 and assessed to the appellant a tax thereon, at the rate of $10.63 per $1,000, in the amount of $7,605.93, which the appellant timely paid without incurring interest. On February 2, 2009, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors.  On March 13, 2009, the assessors granted a partial abatement, reducing the assessed value of the subject property by $78,800 to $766,100.  The appellant seasonably filed an appeal with the Board on June 4, 2009.  
For fiscal year 2010, the assessors valued the subject property at $766,100 and assessed to the appellant a tax thereon, at the rate of $11.88 per $1,000, in the amount of $7,615.20, which the appellant timely paid without incurring interest. On February 1, 2010, in accordance with G.L. c. 59, § 59, the appellant timely filed an abatement application with the assessors, which was denied on March 5, 2010.  On June 4, 2010, the appellant seasonably filed an appeal with the Board.  On the basis of the foregoing facts, the Board found and ruled that it had jurisdiction to hear and decide these appeals.
The subject property has been the topic of recent appeals.  Ms. Schaub appealed the subject property's assessment for fiscal years 2007 and 2008. See Joan L. Schaub v. Assessors of Boston, Mass. ATB Findings of Fact and Reports 2009-763 ("Schaub I").  In Schaub I, the Board ruled that the subject property was overvalued for fiscal years 2007 and 2008, largely because the assessors failed to take into account its condition, which included water damage, spalling brick, and non-functioning bathroom fixtures, among other deficiencies.  Id. at 2009-770.  The Board found in Schaub I that the assessors overvalued the subject property by $100,000 for both of the fiscal years at issue in that appeal.  For fiscal year 2009, the assessors originally valued the subject property at $844,900, but after partial abatement, reduced its assessed value to the fair cash value found by the Board for the preceding fiscal year, which was $766,100.  Likewise, the assessors valued the subject property at $766,100 for fiscal year 2010.
The appellant's main argument in these appeals was that the subject property was overvalued for the fiscal years at issue because the assessors failed to consider the subject property's poor condition, which was documented extensively in Schaub I.  Additionally, the appellant argued that the subject property's assessed value for the fiscal years at issue was not reduced to reflect the declining real estate market, as were the assessments for other nearby, purportedly comparable properties.  
In addition to her own testimony, Ms. Schaub offered a Memorandum in Support of Abatement, which included as attachments several photographs of the subject property along with assessment data for fourteen properties located within a few blocks of the subject property in the South End.  She highlighted the fact that the assessed values of all fourteen properties had been reduced between fiscal year 2009 and fiscal year 2010. Ms. Schaub also made assertions about decreases in assessed values for four additional properties but offered no documentary evidence to support her assertions with respect to those properties, and the Board therefore gave no weight to those four properties.   
Ms. Schaub's opinion of value for the subject property for both of the fiscal years at issue was $626,550, an estimate which she based on the assessed value of 8 Cazenove Street for fiscal year 2010, a property which Ms. Schaub opined was in "far superior condition" than the subject property.  
In support of the assessment, the assessors offered the testimony of assessor Craig Riegle, who testified that, based on recent sales of comparable properties in the South End, the assessed value of the subject property did not exceed its fair cash value for the fiscal years at issue.  Specifically, Mr. Riegle testified regarding the sale of two properties in the South End, 10 Bond Street and 19 Hanson Street, which he stated were both sold in "shell" condition, and thus, were uninhabitable at the time of sale.  
10 Bond Street was a 1,260 square-foot parcel of land improved with a single-family dwelling totaling 2,389 square feet in finished living area.  Notes on the property record card for 10 Bond Street corroborated Mr. Riegle's testimony regarding its condition at the time of its sale.  Building permit information contained on the property record card reflected that 10 Bond Street had undergone extensive renovations throughout much of the previous decade.  Additional notes contained on the property record card indicated that a "stop work" order was issued on February 28, 2008 and that there were no functional utilities at the property following that time.  10 Bond Street was sold in "as is" condition on November 24, 2008 for $930,000.  
19 Hanson Street was a 1,332 square-foot parcel of land improved with a single-family dwelling totaling 2,812 square feet of finished living area.  It sold on March 31, 2008 for $985,000.  Notes contained on 19 Hanson Street's property record card indicated that, following its sale in the spring of 2008, 19 Hanson underwent a gut renovation and was listed for sale in the fall of 2008 at a price of $2,395,000.  
In addition to the property record cards for both of these properties, the assessors introduced the property record card for 8 Cazenove Street, which was Ms. Schaub's proffered comparable property.  Ms. Schaub asserted that 8 Cazenove Street was in "far superior condition" to the subject property, and yet, unlike the subject property, 8 Cazenove Street had undergone a sizeable decrease in assessed value in recent years.  According to Mr. Reigle, 8 Cazenove Street was located near Back Bay Station, and, like most buildings in that area, was built on pilings because of poor soil quality.   The assessors asserted that 8 Cazenove Street's 25 percent reduction in assessed value was attributable to piling deterioration, a problem that can compromise a building's structural integrity.  8 Cazenove Street's piling issues were noted on its property record card.  There was no indication in the record that the subject property had piling issues.  Mr. Reigle testified that but for the piling issues, 8 Cazenove Street's assessed value for fiscal year 2009 would have been $877,000; its fiscal year 2010 assessed value would have been $835,400.  
On the basis of all of the evidence, the Board found that the appellant failed to prove that the assessed value of the subject property exceeded its fair cash value for the fiscal years at issue.  Ms. Schaub's primary argument was that the assessors failed to take into consideration the condition of the subject property when valuing it.  However, the Board found that assertion to be unsupported by the evidence.  Rather, the property record cards for both of the fiscal years at issue noted that the subject property's interior was in "poor" condition and that its overall condition was also "poor."  The property record cards noted that the subject property's kitchen and bathrooms were not remodeled, and further, they noted the subject property's many deficiencies, including that it had "extensive water damage"; was in need of "plumbing/electrical" updates; its fireplace did not work; and it had no ceilings on the third floor.  In sum, the Board found that, contrary to Ms. Schaub's contention, the assessors accurately characterized the condition of the subject property for both of the fiscal years at issue.
Ms. Schaub additionally contended that the assessed value of the subject property should be reduced to reflect the decline in the real estate market during the periods relevant to these appeals.  In support of this argument, Ms. Schaub introduced assessment data for fourteen other single-family properties located in the South End, all of which had experienced decreases in assessed value between fiscal years 2009 and 2010.  However, Ms. Schaub did not introduce property record cards for any of these properties, and thus the Board could not determine the conditions of these properties or whether the properties were comparable to the subject property.  
Moreover, the Board found that, if anything, the assessment evidence introduced by Ms. Schaub actually supported the assessments at issue.  The fiscal year 2010 assessed values for the fourteen properties introduced by Ms. Schaub ranged from $626,550 to $1,049,400; of those, only four properties were assessed for less than $900,000.  The assessed value of the subject property for both of the fiscal years at issue - $766,100 - was at the low end of the range of assessed values of these fourteen properties, and the Board considered this evidence to be an indication of the reasonableness of the assessments at issue.  
Further, the lowest value in the range of assessed values offered by Ms. Schaub was that of 8 Cazenove Street, which was assessed at $657,750 for fiscal year 2009 and at $626,550 for fiscal year 2010.  Ms. Schaub argued that the fair cash value of the subject property should be reduced to $626,550, to bring it more in line with 8 Cazenove Street.  However, the evidence established that 8 Cazenove Street's assessed value had been reduced by 25 percent for each of the fiscal years at issue because of piling issues.  But for the 25 percent reduction for piling issues, 8 Cazenove Street would have been assessed for $877,000 for fiscal year 2009 and $835,400 for fiscal year 2010.  Therefore, the Board found that the assessed value of 8 Cazenove Street did not support the appellant's contention that the subject property was overvalued.  In fact, the Board found that, if anything, the assessed value of 8 Cazenove Street provided further support for the assessments at issue.  
In addition, the Board found the comparable sales introduced by the assessors to be persuasive evidence that the assessed value of the subject property did not exceed its fair cash value for either of the fiscal years at issue.  10 Bond Street sold on November 24, 2008 for $930,000 and 19 Hanson Street sold on March 31, 2008 for $985,000.  Both properties were sold in "shell" condition, and one of them was extensively renovated after its sale.    Although the subject property was smaller in finished living area than 10 Bond Street and 19 Hanson Street, its assessed value, $766,100, was also considerably less than the sale prices of either property.  The Board found these sales, which occurred reasonably close in time to both of the relevant dates of assessment, to be persuasive evidence that the assessed value of the subject property did not exceed its fair cash value for the fiscal years at issue.
On the basis of all of the evidence, the Board found that the appellant failed to prove that the assessed value of the subject property exceeded its fair cash value for either of the fiscal years at issue.  Accordingly, the Board issued decisions for the appellee in these appeals.  

			  	            OPINION

Assessors are required to assess real estate at its fair cash value as of the first day of January preceding the fiscal year at issue.  G.L. c. 59, § 38.  The fair cash value of a property is defined as the price upon which a willing buyer and a willing seller would agree if both are fully informed and under no compulsion. Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).	 
The burden of proof is ordinarily upon the taxpayer to make out a right to an abatement.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is considered to be valid unless the taxpayer meets its burden and proves otherwise.  Id.  A right to an abatement can be proven by either introducing evidence of fair cash value, or by proving that the assessors erred in their method of valuation.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 600 (1984).  However, if the Board has made a finding of fair cash value for the property at issue for either of the two fiscal years preceding the fiscal year at issue, and the assessors have assessed the property at a value which exceeds the value found by the Board, then the burden of proving that the increase was warranted lies with the assessors.  G.L. c. 58A, § 12A.  
In the present appeals, the assessed value of the subject property, as abated, for fiscal year 2009 and its assessed value for fiscal year 2010 was the fair cash value found by the Board for fiscal year 2008 in Schaub I.  Thus, the assessors did not increase the assessed value to an amount greater than the fair cash value found by the Board, and the burden of proof remained with the appellant.  
	The fair cash value of property may be determined by recent sales of comparable properties in the market.   Actual sales generally "furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller." Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971).   Further, properties are "comparable" to the subject property when they share "fundamental similarities" with the subject property, including similar age, location, size and date of sale.  Lattuca v. Robsham, 442 Mass. 205, 216 (2004).  
Additionally, evidence of the assessed values of comparable properties may provide probative evidence of fair cash value.  G.L. c. 58A, § 12B.  "The introduction of such evidence may provide adequate support for either the granting or denial of an abatement." John Alden Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07, (citing Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308).   However, "[r]eliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value."  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403, aff'd, 73 Mass. App. Ct. 1107 (2008).
	Although comparable sales generally provide the best evidence of fair cash value, the appellant in these appeals offered no evidence of recent, comparable sales to establish the fair cash value of the subject property.  Instead, her evidence consisted mainly of photographs of the subject property and assessment information for other, nearby properties.  The photographs introduced by the appellant documented the poor condition of the subject property.  However, the Board found and ruled that, contrary to the appellant's contention, the assessors properly took into consideration the subject property's poor condition when valuing the subject property for both of the fiscal years at issue.  See Paul B. Cocchi d/b/a Hick-O-Rock Farm v. Assessors of Ludlow, Mass. ATB Findings of Fact and Reports 2010-861, 876 ("[T]o the extent there [was damage to the subject property], there was no evidence suggesting that the assessors did not take this issue into consideration in valuing the subject real property.").  Additionally, the poor condition of the subject property was detailed at length in Schaub I, and played a large part in the Board's determination that the fair cash value of the subject property was $766,100. Id. at 2009-770.  In these appeals, there was no evidence indicating that the condition of the subject property had deteriorated further or otherwise changed, and the Board found that the same fair cash value of $766,100 was warranted.  
Similarly, the comparable-assessment evidence introduced by the appellant failed to persuade the Board that the assessed value of the subject property exceeded its fair cash value.  As an initial matter, the appellant failed to introduce evidence of the relative quality and characteristics of her fourteen comparable-assessment properties, and thus, failed to establish their condition or the basic comparability between the subject property and those properties.  See James & Claudia English v. Assessors of Winthrop, Mass. ATB Findings of Fact and Reports 2009-1302, 1304 (finding that, where appellants failed to provide property record cards or other information about their comparison properties, they failed to establish basic comparability between the properties and ultimately did not meet their burden of proof).  The assessed values of the fourteen properties therefore did not provide particularly probative evidence of the fair cash value of the subject property.  
Further, the Board found that the assessed value of 8 Cazenove Street, Ms. Schaub's proffered comparable property, had been reduced by 25 percent for both of the fiscal years at issue because it had piling issues, unlike the subject property.  But for the 25 percent reduction, 8 Cazenove Street would have been assessed at $877,000 for fiscal year 2009 and $834,500 for fiscal year 2010.  The Board found and ruled that, contrary to Ms. Schaub's arguments, the assessed value of 8 Cazenove Street did not establish that the subject property was overvalued.  Rather, it provided additional support for the assessments at issue.  
Similarly, the Board found that, if anything, the appellant's fourteen comparable-assessment properties provided support for the assessments at issue.  The assessments at issue were at the low end of the range of assessed values introduced by the appellant, and the vast majority of the fourteen properties had assessed values which were significantly higher than the subject property's assessed value for both of the fiscal years at issue.  The Board found this evidence to be an indication that the assessments at issue were not excessive.
Finally, the assessors introduced credible evidence supporting the assessments at issue.  The assessors introduced two sales of properties located near the subject property which sold in close proximity to the relevant dates of assessment.  Both of those properties sold for amounts far greater than the assessed value of the subject property, even though they were sold in "shell" condition.  The Board therefore found and ruled that the assessors' comparable sales provided reliable evidence that the subject property's assessed value did not exceed its fair cash value.  
Thus, on the basis of all of the evidence, the Board found and ruled that the appellant failed to establish that the assessed value of the subject property exceeded its fair cash value for either of the fiscal years at issue.  Accordingly, the Board issued decisions for the appellee in these appeals. 
                             THE APPELLATE TAX BOARD



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


A true copy,

Attest: __________________________
		Clerk of the Board

 The tax is the net amount assessed after the application of the residential exemption.  See G.L. c. 59, § 5C.

 The tax is the net amount assessed after the application of the residential exemption.  See G.L. c. 59, § 5C.
 The appellant's petition was mailed in an envelope postmarked June 4, 2010 and was received by the Board on June 7, 2010.  Where, as here, the Board receives a petition after the three-month due date, the date of postmark is deemed to be the date of filing. G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 & 65. Accordingly, the Board found and ruled here that the filing date of the petition was deemed to be June 4, 2010 and therefore the appellant's appeal was timely. 

 The Board notes the apparent discrepancy that in Schaub I, it was stated that the subject property had one bathroom, rather than two full and one half bathrooms, as noted on its property record card.  This discrepancy was likely due to the fact that some of the subject property's bathrooms were not functional.  
 General Laws c. 58A, § 12A provides that if the assessed value of a property is greater than the fair cash value as determined by the board in either of the two fiscal years following the fiscal year for which the Board has made a determination of value, the burden shall be upon the appellee to prove that the assessed value was warranted.  

ATB 2011-629