David W. & Kelly Holt v. Board of Assessors of the Town of West Springfield (October 25, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DAVID W. & KELLY HOLT        v.	BOARD OF ASSESSORS OF THE 
TOWN OF WEST SPRINGFIELD

Docket Nos. F303946		Promulgated:
            F305537        		October 25, 2010


	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 Town of West Springfield ("assessors" or "appellee"), to abate taxes on certain real estate in the Town of West Springfield, owned by and assessed to David W. Holt and Kelly Holt ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal years 2009 and 2010.
	Commissioner Mulhern ("Presiding Commissioner") heard these appeals and, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, issues, simultaneously with the promulgation of this Findings of Fact and Report, a revised single-member decision for the appellants for fiscal year 2009 (docket number F303946).  The revised single-member decision eliminates the community preservation act ("CPA") tax abatement amount from the total abatement amount contained in the original single-member decision because the assessors did not assess a CPA tax in fiscal year 2009, but only in fiscal year 2010. 
For fiscal year 2010 (docket number 305537), the Presiding Commissioner previously issued, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, a single-member decision for the appellee.  
This Findings of Fact and Report is made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.
	
David W. Holt, pro se, for the appellants.
	Christopher Keefe, assessor, for the appellee.

  

FINDINGS OF FACT AND REPORT

	On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2008 and January 1, 2009, the appellants were the assessed owners of a 1.07-acre parcel of real estate, improved with a residential dwelling that is located at 178 Rogers Avenue, in West Springfield ("subject property").  For fiscal year 2009, the assessors valued the subject property at $419,400 and assessed the appellants a tax thereon, at the rate of $14.66 per $1,000, in the amount of $6,148.40.  The West Springfield Collector of Taxes mailed the fiscal year 2009 tax bills on December 26, 2008.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest.  On Monday, February 2, 2009, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors seeking a $79,400 reduction in the subject property's assessed value to $340,000.  On April 29, 2009, the assessors granted the appellants a partial abatement, reducing the assessed value of the subject property by $19,400 to $400,000 and the tax by $284.40 to $5,864.00.  Wanting more, the appellants seasonably filed a Petition Under Formal Procedure with the Appellate Tax Board ("Board") on July 21, 2009.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide the appellants' 2009 appeal.
	For fiscal year 2010, the assessors valued the subject property at $369,700 and assessed the appellants a tax thereon, at the rate of $16.00 per $1,000, in the amount of $5,915.20, plus a community preservation act ("CPA") tax, in the amount of $59.15.  The West Springfield Collector of Taxes mailed the fiscal year 2010 tax bills on December 29, 2009.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest.  On January 28, 2010, in accordance with G.L. c. 59, § 59, the appellants timely filed an abatement application with the assessors seeking a $49,700 reduction in the subject property's assessed value to $320,000.  On March 29, 2010, the assessors denied the appellants' request for abatement, and the appellants then seasonably filed a petition with the Board on April 22, 2010.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide the appellants' 2010 appeal.
The subject property consists of an approximately 46,609-square-foot parcel, which is improved with a single-family, one-and-one-half-story, Cape Cod-style home that contains approximately 3,883 square feet of living area.  The dwelling was built circa 1950, and it has four bedrooms and three full bathrooms as well as one one-half bathroom.  There is also a 214-square-foot enclosed porch attached to the back of the home and a 34-square-foot open porch at the front.  The 914-square-foot basement is unfinished as is the 576-square-foot garage.  There is also a small utility shed located on the parcel.
The interior of the dwelling has plaster walls and a mix of hardwood flooring and carpeting.  The exterior is finished primarily in brick.  The dwelling is heated by a forced hot water system fueled by natural gas.  The subject property is in average overall condition.    
At the hearing of these appeals, the appellants maintained that the subject property was overvalued.  To prove overvaluation, the appellants primarily relied on four purportedly comparable sales and two purportedly comparable assessments.  The appellants did not provide the Presiding Commissioner with property record cards for any of these properties or any other credible documentation to verify their descriptions.  The appellants also failed to provide the Presiding Commissioner with copies of the relevant deeds to verify the sales.  
The appellants stated that the first sale occurred on February 16, 2007 and was for $310,000.  The parcel is 39,204 square feet in size and is improved with a 2,500-square-foot, three bedroom ranch-style dwelling.  The appellants identified the address of this sale property as 35 Forest Glen in West Springfield.  
The second sale property is located at 832 Dewey Street in West Springfield, and the appellants claimed that its parcel size is approximately 1.13 acres.  They further asserted that it is improved with a 3,263-square-foot, twelve-room, Cape Cod-style dwelling that has five bedrooms as well as three full bathrooms. The appellants alleged that it sold for $362,500 sometime in 2007, but they failed to provide the Presiding Commissioner with the actual sale date.   
The third and fourth sale properties, 199 Rogers Avenue and 143 Rogers Avenue, respectively, are both located on the same street as the subject property in West Springfield.  The appellants maintained that the 199 Rogers Avenue property sold for $306,000 on February 23, 2010, and the 143 Rogers Avenue property sold for $305,000 on July 30, 2008.  The appellants stated that the 199 Rogers Avenue property is situated on a 68,825-square-foot lot and is improved with a circa 1959, one-story, 3,310-square-foot dwelling with three bedrooms, two full bathrooms and one one-half bathroom.  They also stated that the 143 Rogers Avenue property is situated on a 26,504-square-foot lot and is improved with an older, two-story, 2,300-square-foot dwelling with four bedrooms and two full bathrooms. 
The appellants also compared the fiscal year 2009 and 2010 assessments on their 178 Rogers Avenue property to the same fiscal year assessments on their third and fourth sale properties, 199 Rogers Avenue and 143 Rogers Avenue, respectively.  The appellants maintained that the 199 and 143 Rogers Avenue properties were assessed for $394,400 and $320,000, respectively, in fiscal year 2009, and for $377,300 and $293,200, respectively, in fiscal year 2010, while the subject property was assessed for $400,000 in fiscal year 2009 and $369,700 in fiscal year 2010.  The appellants believed that, even without any findings of comparability or adjustments, the other Rogers Avenue properties' assessments supported abatement of the subject property's assessments.      
	In support of their assessment and in response to the appellants' claim of overvaluation, the assessors introduced a comparable-sales analysis of three properties in West Springfield that included property record cards with photographs.  The comparable properties are located at: 832 Dewey Street (Comp. One); 48 Rogers Street (Comp. Two); and 601 Birnie Avenue (Comp. Three).  The sales occurred in 2006 and 2007 and ranged in price from $355,000 to $379,000.  After applying certain adjustments to these properties to account for their individual differences with the subject property, the assessors calculated indicated values for their comparable-sale properties, which ranged from $386,400 to $435,100, leading to an estimated fair cash value for the subject property of $401,000.  A summary of the assessors' comparable-sales analysis is contained in the table below.
  Factors	Subject Property	Comp One
832 Dewey	Adjusts
($)	Comp Two
48 Rogers	Adjusts
($)	Comp Three
601 Birnie	Adjusts
($)	
								
Sale Price ($)	As of	362,500	  	355,000		379,000		
Sale Date	01/01/08	12/17/07		03/24/06		08/31/07		
Neighborhood	Six	Five	  9,000	Six	  	Five	  9,000	
Lot Size (Acre)	1.07	1.14		0.42	  3,300	0.46	  3,100	
Style	Cape	Cape		Colonial		Colonial		
Quality	Average	Average		Average		Average		
Age (Circa)	1950	1945		1915		1960		
Condition	Average	Average		Average		Good	-19,000	
Living Area (SF)	3,883	3,263	 33,500	3,460	 22,800	3,076	 43,600	
Bathrooms	3.5	2.5	  4,000	1	 10,000	2.5	  4,000	
Lower Level (SF)	672	1,240	-15,300	None	 18,100	None	 18,100	
Garage	Two	Three	- 2,000	Two	  	Two		
Heat/Air Cond.	FHW/None	FHW/None		Steam/None		FHW/None		
Fireplace	Two	One	  1,600	One	  1,600	One	  1,600	
Enclosed Porch (SF)	214	181		76		No	  4,600	
Open Porch (SF)	No	No		No		384	- 2,100	
Deck (SF)	No	180	- 1,100	456	- 2,800	No		
Patio (SF)	No	444	- 2,800	No		No		
Pool	No	Above Ground	- 1,000	Inground	- 5,800	Inground	- 5,800	
Outbuilding	Shed	Three Sheds	- 2,000	Large Shed	- 1,000	Two Sheds	- 1,000	
Net Adjustments	N/A		 23,900		 46,200		 56,100	
Indicated Value	$401,000	$386,400		$401,200		$435,100		

After considering the appellants' presentation, the Presiding Commissioner found that it did not contain or provide credible evidence to support their claim that the subject property was overvalued for the fiscal years at issue.  The appellants did not submit into evidence property record cards, deeds or other reliable evidence to substantiate their contentions regarding their comparable-sale and comparable-assessment properties.  Without this evidence, the Presiding Commissioner was not able to confirm sale dates and important property characteristics.  In addition, the Presiding Commissioner found that the appellants' evidence did not provide him with the underlying information that might enable him to apply appropriate adjustments to sale prices and assessment values accounting for differences between the subject property and the comparable-sale and comparable-assessment properties, thereby enabling him to determine a value for the subject property for the fiscal years at issue.
With respect to the assessors' comparable-sales analysis, the Presiding Commissioner found that the first comparable sale, 832 Dewey Street, was the most comparable one to the subject property.  It is the same style, age, quality, and condition as the subject property, and its lot size and finished living area are reasonably equivalent.  In addition, this comparable property had sold on December 17, 2007 for $362,500, just two weeks prior to the January 1, 2008 assessment date for fiscal year 2009.  The Presiding Commissioner further found, however, that the assessors had applied excessive adjustments to this property and therefore found that its adjusted value was closer to its sale price of $362,500 than to the assessors' suggested indicated value of $386,400.  The Presiding Commissioner also noted that the assessors had reduced the subject property's assessment to $369,700 for fiscal year 2010 without maintaining that the value of real estate similar to the subject property declined in value from fiscal year 2009 to fiscal year 2010.  Based on these findings, the Presiding Commissioner ultimately found that the fair cash value of the subject property for both fiscal year 2009 and 2010 was equal to its fiscal year 2010 assessment of $369,700.  
Accordingly, in his revised single-member decision, promulgated simultaneously with this Findings of Fact and Report, the Presiding Commissioner decides the fiscal year 2009 appeal for the appellant, reduces the fiscal year 2009 assessment, as previously adjusted by the assessors, from $400,000 to $369,700, and abates $444.20 in real estate tax.  The Presiding Commissioner decided the fiscal year 2010 appeal for the appellee. 

OPINION
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer 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)).  The appellants in these appeals attempted to prove that the subject property was overvalued by introducing the assessments and sale prices of certain properties and comparing them to the subject property's assessments for fiscal years 2009 and 2010.  The assessors attempted to defend their assessments by introducing a comparable-sales analysis.
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., 358 Mass. at 560.  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date contain credible data and information for determining the value of the property at issue.          See McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  "A major premise of the sales comparison approach is that an opinion of the market value of a property can be supported by studying the market's reaction to comparable and competitive properties."  Appraisal Institute, The Appraisal of Real estate 297 (13th ed., 2008).  
When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices.              See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  "Adjustments for differences in the elements of comparison are made to the price of each comparable property . . . . The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property."   The Appraisal of real estate at 322.  
General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible."  The introduction of such evidence may provide adequate support for either the granting or denial of an abatement.  Chouinard v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-299, 307-308 (citing Garvey v. Assessors of West Newbury, Mass. ATB Findings of Fact and Reports 1995-129, 135-36;    Swartz v. Assessors of Tisbury, Mass. ATB Findings of Fact and Reports 1993-271, 279-80); see also Turner v. Assessors of Natick, Mass. ATB Findings of Fact and Reports 1998-309, 317-18.  Purportedly comparable properties used in a comparable-assessment analysis must be adjusted, just like those used in a comparable-sales analysis, for differences with the subject property.  See Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 402 ("The assessments in a comparable assessment analysis, like the sale prices in a comparable sales analysis, must also be adjusted to account for differences with the subject."), aff'd, 73 Mass. App. Ct. 1107 (2008);    Lupacchino v. Assessors of Southborough, Mass. ATB Findings of Fact and Reports 2008-1253, 1269 ("[W]ithout appropriate adjustments, . . . the assessed values of [comparable] properties [do] not provide reliable indicator[s] of the subject's fair cash value."). 
In the present appeals, the Presiding Commissioner found and ruled that the appellants' presentation did not contain or provide credible evidence to support their claim that the subject property was overvalued for the fiscal years at issue.  The appellants did not submit into evidence property record cards, deeds or other reliable evidence to substantiate their contentions regarding their comparable-assessment and comparable-sale properties.  Without this evidence, the Presiding Commissioner was not able to confirm sale dates and important property characteristics.  See Lareau v. Assessors of Norwell, Mass. ATB Findings of Fact and Reports 2010-                     879, 890-91 (ruling that the appellants' failure to submit property record cards and other fundamental evidence containing corroborating and detailed information about their purportedly comparable properties compromised the appellants' ability to prove that their property was overvalued).  In addition, the Presiding Commissioner found that the appellants' evidence did not provide him with the underlying information that might enable him to apply appropriate adjustments to assessment values and sale prices accounting for differences between the subject property and their purportedly comparable-assessment and comparable-sale properties, thereby enabling him to determine a value for the subject property for the fiscal years at issue.
With respect to the assessors' comparable-sales analysis, the Presiding Commissioner found that the first comparable sale, 832 Dewey Street, was the most comparable one to the subject property.  It is the same style, age, quality, and condition as the subject property, and its lot size and finished living area are reasonably equivalent.  In addition, this comparable property had sold on December 17, 2007 for $362,500, just two weeks prior to the January 1, 2008 assessment date for fiscal year 2009.  The Presiding Commissioner further found, however, that the assessors had applied excessive adjustments to this property and therefore found that its adjusted value was closer to its sale price of $362,500 than to the assessors' suggested indicated value of $386,400.  The Presiding Commissioner also noted that the assessors had reduced the subject property's assessment to $369,700 for fiscal year 2010 without maintaining that the value of real estate similar to the subject property declined in value from fiscal year 2009 to fiscal year 2010.  Based on these findings, the Presiding Commissioner ultimately found and ruled that the fair cash value of the subject property for both fiscal year 2009 and 2010 was equal to its fiscal year 2010 assessment of $369,700.  
"The [B]oard [is] not required to believe the testimony of any particular witness but [may] accept such portions of the evidence as appear to have the more convincing weight. Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  
Accordingly and after evaluating all of the evidence, in his revised single-member decision, the Presiding Commissioner decides the fiscal year 2009 appeal for the appellants, reduces the fiscal year 2009 assessment, as previously adjusted by the assessors, from $400,000 to $369,700, and abates $444.20 in real estate tax.  The Presiding Commissioner decided the fiscal year 2010 appeal for the appellee. 

  					APPELLATE TAX BOARD

			    By:			          	____
				  Thomas J. Mulhern, Commissioner 


A true copy,


Attest:					
    Clerk of the Board

 Pursuant to G.L. c. 59, §§ 57C and 59, the appellants had until February 1, 2009 to file their fiscal year 2009 abatement application.  However, when, as here, the last day for filing the application falls on a Saturday, Sunday, or holiday, the deadline is extended by operation of law to the next business day.  G.L. c. 4, § 9.  See also CFM Buckley/North, LLC v. Assessors of Greenfield, Mass. ATB Findings of Fact and Reports 2007-220, 223, n. 2; Barrett v. Assessors of Needham, Mass. ATB Findings of Fact and Reports 2004-614, 615, n. 2.  Accordingly, the Presiding Commissioner found that the appellants' action in filing their abatement application on Monday, February 2, 2009 was timely.    

ATB 2010-946