Karl W. & Isabel S. Ryavec v. Board of Assessors of the Town of Pelham (April 6, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



KARL W. & ISABEL S. RYAVEC      v.		BOARD OF ASSESSORS OF
								THE TOWN OF PELHAM

Docket No. F306085				   	Promulgated:
		 						April 6, 2011


	This is an appeal 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 Board of Assessors of the Town of Pelham ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to Karl W. & Isabel S. Ryavec ("appellants") under G.L. c. 59, §§ 11 and 38, for fiscal year 2010.
	Commissioner Rose ("Presiding Commissioner") heard this appeal under G.L. c. 58A, § 1A and 831 CMR 1.20 and issued a single-member decision for the appellee.
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Isabel S. Ryavec, pro se, for the appellants.
	Martha Leamy, assistant assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	On January 1, 2009, the appellants were the assessed owners of a 4.01-acre parcel of land improved with a Cape Cod-style dwelling located at 29 South Valley Road, Pelham ("subject property").  The subject dwelling has a total of six rooms, including four bedrooms and also two full bathrooms and one half bathroom, with a total finished living area of 1,917 square feet.  The exterior is clapboard with an asphalt-shingled, gable roof.  The home is heated by radiant, electric heat.  Additional features of the home include two fireplaces, an attached two-car garage, and also an unfinished basement.
	For the fiscal year at issue, the assessors valued the subject property at $341,000 and assessed a tax thereon, at the rate of $18.34 per thousand, in the amount of $6,253.94.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest.  On January 19, 2010, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors, which the assessors denied on March 3, 2010.  In accordance with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed an appeal with the Appellate Tax Board ("Board") on May 19, 2010.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal. 
	The appellants presented their case through the testimony of Ms. Ryavec, an appraisal report prepared by a professional appraiser, Lisa Lopuk, who was not present and therefore did not testify at the hearing of this appeal, and also a listing of the fiscal year 2008 and fiscal year 2009 assessed values of other properties located in Pelham.  Ms. Lopuk's appraisal report, which was prepared for mortgage refinancing purposes, cited sales of six comparable properties that are located between one-half mile and 1.74-miles away from the subject property.  After making adjustments for differences between her purportedly comparable properties and the subject property, Ms. Lopuk arrived at a final estimate of value of $319,000 as of December 2, 2009.  The appellants also offered into evidence a listing of the fiscal year 2008 and fiscal year 2009 assessed values of other properties located in Pelham.  The assessors offered no evidence of value but instead rested on their assessment.  
	On the basis of the evidence presented, the Presiding Commissioner found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2010.  Because the appellants' real estate appraiser was not present at the hearing and was, therefore, unavailable for cross-examination by the assessors, the Presiding Commissioner gave no weight to Ms. Lopuk's opinion of value.  Moreover, the Presiding Commissioner found that Ms. Lopuk's appraisal report contained serious errors and flaws and therefore was unreliable.  First, Ms. Lopuk failed to provide the listing of adjustments made and the adjusted sale prices for comparables number one, two and three.  Next, Ms. Lopuk failed to provide the sale dates for comparables number five and six.  Lastly, Ms. Lopuk failed to include in her appraisal report copies of deeds of her purportedly comparable properties.  
	Further, the Presiding Commissioner found that the appellants' listing of the fiscal years 2008 and 2009 assessed values of other Pelham properties lacked any descriptive evidence to establish basic comparability with the subject property.  Moreover, the assessed values were not for the fiscal year at issue in this appeal.  
	The Presiding Commissioner thus found and ruled that the appellants failed to meet their burden of proving that the subject assessment was excessive.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.

OPINION
The assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).  
The appellant has 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)). 
"[S]ales of property usually 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. Board of Assessors of Foxborough, 385 Mass. 679, 682 (1982).  Sales of comparable realty should be within the same geographic area and within a reasonable time of the assessment date to be probative evidence for determining the value of the property at issue. Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008).  Moreover, when comparable sales are used, allowances must be made for various factors which would otherwise cause disparities in the comparable properties' sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082 (and the cases cited therein).
In the present appeal, the Presiding Commissioner found that the comparable sales analysis presented in Ms. Lopuk's appraisal report did not provide reliable or credible evidence of overvaluation.  First, she was not present at the hearing and as a result she was not subject to cross-examination.  The Presiding Commissioner therefore gave no weight to her opinion of value.  See John D. & Jean A. Walachy v. Assessors of Holyoke, Mass. ATB Findings of Fact and Reports 2009-620, 624.  Further, the Presiding Commissioner found that the facts contained in Ms. Lopuk's appraisal report were materially flawed.  The Presiding Commissioner found that in her appraisal report Ms. Lopuk failed to provide the sales dates of two of her purportedly comparable properties and also failed to provide copies of the deeds for any of her purportedly comparable properties.  Further, Ms. Lopuk's report failed to include an adjustment analysis for comparable sales number one, two and three.  The Presiding Commissioner also found that the appellants' listing of assessments of other properties for the prior two fiscal year lacked probative weight, both because they failed to provide a sufficient description of the properties to establish basic comparability and because the assessed values were not for the fiscal year at issue.
After evaluating all of the evidence, the Presiding Commissioner found and ruled that the appellants failed to meet their burden of proving that the subject assessment exceeded its fair cash value. Accordingly, the Presiding Commissioner issued a single-member decision for the appellee in this appeal.

					     APPELLATE TAX BOARD

			      By:			          	__				                    James D. Rose, Commissioner 
A true copy,


Attest:					
    Clerk of the Board

ATB 2011-250