Cynthia Ann Jackson v. Board of Assessors of the City of Holyoke (April 12, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




CYNTHIA ANN JACKSON			v.		BOARD OF ASSESSORS OF                                                   				THE CITY OF HOLYOKE
									
Docket No. F314283					Promulgated:											April 12, 2012

	This is an appeal under the formal procedure, pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the City of Holyoke ("assessors" or "appellee") to abate taxes on certain real estate in the City of Holyoke owned by and assessed to Cynthia Ann Jackson ("appellant") under  G.L. c. 59, §§ 11 and 38, for fiscal year 2011.  
	Commissioner Chmielinski ("Presiding Commissioner") heard this appeal and issued a single-member decision for the appellant in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20.  
	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.  

	Cynthia Ann Jackson, pro se, for the appellant.

	Anthony Dulude, assessor, for the appellee.


FINDINGS OF FACT AND REPORT
	Based on the evidence and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2010, the appellant was the assessed owner of an improved parcel of real estate located at 23 Dale Street in the City of Holyoke ("subject property").  The parcel contains approximately 0.24 acres of land and is improved with a ranch-style dwelling. The dwelling contains approximately 1,680 square feet of finished living area, including three bedrooms, one full bathroom and one half bathroom. The dwelling also features an attached garage and a small porch in the rear.  The dwelling's exterior is brick and its roof covering is asphalt.  The interior rooms are finished with drywall, and the floors with hardwood. The cellar is finished with tile flooring, wood paneling, a drop ceiling, recessed lighting and the dwelling's half bathroom. 
The assessors valued the subject property at $181,400, and assessed a tax thereon, at the rate of $15.78 per thousand, in the amount of $2,862.49.  On or about December 31, 2010, Holyoke's Collector of Taxes sent out the city's actual real estate tax bills.  In accordance with G.L. c. 59, § 57C, the appellant paid the tax without incurring interest.  On January 31, 2011, the appellant timely filed her application for abatement with the assessors, which was deemed denied on April 30, 2011.  The appellant seasonably appealed to the Appellate Tax Board ("Board") on July 28, 2011. Based on these facts, the Presiding Commissioner found that the Board had jurisdiction to hear and decide this appeal.  
	At the hearing of the appeal, the appellant argued that her property was overvalued because the assessors had not adequately considered the condition of the property's cellar, which had been valued as finished living area for fiscal year 2011. The appellant testified that despite the presence of three sump pumps, the cellar experienced ongoing water problems and accumulated moisture and mold, ultimately causing substantial damage. 
In support of her testimony, the appellant introduced pictures of the damaged area and an estimate for mold remediation totaling $4,250.  The appellant also noted that the cellar lacked heat and that new venting and heating systems were, in her view, necessary to consider the space usable.  Because of these issues, and with particular emphasis on the water and mold damage, the appellant concluded that the cellar was not a livable space. 
To further demonstrate that the subject property was overvalued, the appellant introduced assessments of three purportedly comparable properties, which ranged in assessed value from $167,700 to $177,500. Based upon the assessed values of these properties and the condition of the subject dwelling's cellar, the appellant opined that the fair cash value of the subject property was $165,000. 
	The assessors relied primarily on the testimony of Anthony Dulude, an assessor for Holyoke, who testified that he inspected the property in either May or June of 2011. Mr. Dulude  acknowledged that the dwelling's cellar had moisture problems, but  maintained that the cellar was usable as a recreation room. To account for the condition of the cellar, Mr. Dulude testified that he made a downward adjustment of $3,400 in the assessed value of the subject property for year 2012, but not retroactively to the fiscal year at issue. 
After considering all of the evidence, the Presiding Commissioner found and ruled that the appellant met her burden of proving that the subject property was overvalued for fiscal year 2011. In reaching this decision, the Presiding Commissioner gave substantial weight to the appellant's credible testimony and evidence establishing the deteriorated condition of the subject property's cellar, which resulted from water and mold damage. The Presiding Commissioner also took note of Mr. Dulude's acknowledgement of moisture problems in the cellar. 
The Presiding Commissioner, however, gave little weight to the purportedly comparable assessments offered by the appellant, because each of the properties was distinct from the subject property in size and condition and the appellant failed to offer any adjustments to account for these differences.  Consequently, the Presiding Commissioner found that the appellant's purportedly comparable properties provided little evidence that the subject property was overvalued. 
On the basis of the foregoing, the Presiding Commissioner determined that the fair cash value of the subject property for fiscal year 2011 was $174,000. Accordingly, the Presiding Commissioner granted an abatement of $116.77. 
	
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 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 the 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 (citing Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  In the present appeal, the appellant provided probative credible evidence that in valuing the subject property for fiscal year 2011, the assessors failed to adequately consider the effect of water and mold damage in the subject dwelling's finished cellar. This evidence included the appellant's own testimony as well as her photographs of the damaged area and an estimate she provided of the cost to repair the mold damage. 
The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 196, 110 (1971).  "The market value of [] property c[an] not be proved with mathematical certainty and must ultimately rest in the realm of opinion, estimate, and judgment . . . .  The board c[an] select the various elements of value as shown by the record and from them form . . . its own independent judgment." Assessors of Quincy v. Boston Consol. Gas Co., 309 Mass. 60, 72 (1941). (citations omitted).  See also North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984); New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 473 (1981); Jordan Marsh Co., 359 Mass. at 110. "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).
Based on the evidence presented in this appeal, and the reasonable inferences drawn therefrom, the Presiding Commissioner found that the fair cash value of the subject property for fiscal year 2011 was $174,000. 



Accordingly, the Presiding Commissioner issued a single-member decision for the appellant and granted an abatement of $116.77. 

   THE APPELLATE TAX BOARD

				By:			          ______________
				   Richard G. Chmielinski, Commissioner 

A true copy,

Attest:					______
  Clerk of the Board

 Pursuant to G.L. c. 58A, § 6, ("§ 6") an application for abatement is deemed denied when a board of assessors fails to act on the application within three months of its filing.  Three months "means three calendar months."  G.L. c. 4, § 7, Nineteenth; see also Berkshire Gas Company v. Assessors of Williamstown, 361 Mass. 873 (1972). Therefore, the appellant's abatement application was deemed denied on April 30, 2011.  See, e.g., Center for Human Development, Inc. v. Assessors of Springfield, Mass. ATB Findings of Fact and Reports 2010-501, 503, n.1 (ruling that a calendar month means "'the time from any day of such a month to the corresponding day (if any; if not to the last day) of the next month.'").

ATB 2012-570