Old Salt Works Road Realty Trust, Ernest M. Helides, Trustee v. Board of Assessors of the Town of Chatham (February 25, 2009)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



OLD SALT WORKS ROAD REALTY 	v.     BOARD OF ASSESSORS OF TRUST, ERNEST M. HELIDES, 		  THE TOWN OF CHATHAM
TRUSTEE		

Docket No. F294061				  Promulgated:
		  					  February 25, 2009



	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 appellee to abate taxes on real estate located in the Town of Chatham, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
	Commissioner Mulhern heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Rose joined him in the decision for the appellee.  
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Ernest M. Helides, Trustee, pro se, for the appellant.
	
	Bruce Gilmore, Esq. for the appellee.




FINDINGS OF FACT AND REPORT

	Based on the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2007, Ernest M. Helides, Trustee of the Old Salt Works Road Realty Trust ("appellant"), was the assessed owner of a parcel of real estate located at 58 Old Salt Works Road, in the Town of Chatham ("subject property").  The subject property is a 22,614-square-foot parcel of beachfront real estate with one-hundred and twenty-five feet of frontage on Bassing Harbor.  The parcel is improved with a two-story, Colonial-style dwelling containing three bedrooms and also two full bathrooms and one half-bathroom, with a finished living area of 3,725 square feet.  The dwelling also contains one fireplace, a two-car attached garage, and a rear wood deck.  There is also a dock leading out to Bassing Harbor.  
For fiscal year 2008, the Board of Assessors of Chatham ("assessors") valued the property at $3,288,200 and assessed a tax thereon, at the rate of $3.67 per thousand, in the amount of $12,067.69.  The appellant paid the tax due without incurring interest.  On November 9, 2007, the appellant timely filed an abatement application with the assessors, which the assessors denied on December 12, 2007.  On March 8, 2008, the appellant seasonably filed an appeal with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear this appeal.
Mr. Ernest M. Helides, Trustee of the appellant and resident of the subject property, testified on behalf of the appellant.  Mr. Helides focused primarily on the subject property's erosion, which he testified has occurred over the past several years.  Mr. Helides maintained that during the past twenty years there have been breaks in the natural sea walls, which in turn have caused eroding shorelines.  He further testified that the subject property is now only eight feet above sea level and that Chatham has an eleven foot flood level thereby placing the subject property within the flood plain. The appellant did not, however, offer any substantiating evidence to support his claims that there has been a loss of land due to erosion and also that the subject property is now located in a flood plain.  
Furthermore, the appellant did not offer any evidence to substantiate his claim of diminution in value due to land erosion.  Moreover, the appellant did not offer any affirmative evidence of value such as comparable sales or assessments.
The assessors presented their case-in-chief through the testimony of Andrew Machado, town assessor.  Mr. Machado offered a sales-comparison analysis of five water-front properties, which he deemed comparable to the subject property.  The properties sold during the period February 2006 through October 2006, and ranged in size from 0.50 acres to 1.72 acres, with total living areas that ranged from 1,230 square feet to 5,024 square feet.  The purportedly comparable properties' sale prices ranged from $2,600,000 to $5,300,000.  Mr. Machado argued that these sales supported the subject property's fiscal year 2008 assessment.
Based on the evidence presented, the Board found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2008.  The Board found that the appellant failed to offer sufficient documentary evidence to support his claim that the subject property was in a flood plain.  Further, the appellant failed to offer any evidence to show how, and to what extent, this perceived deficiency impacted the subject property's fair market value.  Finally, the Board found that the appellant failed to offer comparable sales or any other affirmative evidence indicating that
the subject property's fair market value as of January 1, 2007, was less than the fiscal year 2008 assessment.
Accordingly, the Board issued a decision for the appellee in this appeal.

OPINION
Assessors are required to assess all real property at its full and fair cash value.  G.L. c. 59, § 38; Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975).  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 (1954).
The assessment is presumed valid unless the taxpayer sustains the burden of proving otherwise.  Schlaiker v. Board of Assessors of Great Barrington, 356 Mass. 243, 245 (1974).  Accordingly, the burden of proof is upon the appellant to make out his right as a matter of law to an abatement of the tax.  Id.  The appellant must show that the assessed valuation of his property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982). 

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. v. Assessors of Lynn, 393 Mass. 591, 600 (1984) (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In the present appeal, the appellant argued that breaches in the natural sea walls and the eroding shorelines resulted in a reduction of the subject property's land area and caused the property to be in a flood plain.  These deficiencies, he argued, decreased the value of the subject property.  The appellant did not, however, provide any documentary evidence to support his claim.  Further, the appellant did not produce any comparable sales or other affirmative evidence indicating that the subject property's fair market value as of January 1, 2007, was less than the fiscal year 2008 assessment. 
Based on the evidence presented, the Board found and ruled that the appellant failed to meet its burden of proving that the subject property was overvalued for fiscal year 2008. 

Accordingly, the Board issued a decision for the appellee. 
 
					   APPELLATE TAX BOARD

									
    By:			_____	___		
					  Thomas W. Hammond, Jr., Chairman



A true copy,

Attest:						__
	       Clerk of the Board

ATB 2009-197