William F. Carney v. Board of Assessors of the Town of Framingham (June 18, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


WILLIAM F. CARNEY             v.  	     BOARD OF ASSESSORS OF
THE TOWN OF FRAMINGHAM

Docket Nos. F304034 				Promulgated:
		  F305333      	 		June 18, 2012

	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 Board of Assessors of the Town of Framingham ("assessors" or "appellee") to abate taxes on certain real estate in Framingham owned by and assessed to William F. Carney ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal years 2009 and 2010 ("fiscal years at issue").
Commissioner Egan ("Presiding Commissioner") heard these appeals under G.L. c. 58A, § 1A, and 831 CMR 1.20 and issued single-member decisions 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. 

William F. Carney, pro se, for the appellant.
Daniel Dargon, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of testimony and other evidence entered into the record in these appeals, the Presiding Commissioner made the following findings of fact.
On January 1, 2008 and January 1, 2009, the appellant was the assessed owner of an improved parcel of real estate located at 32 Parker Road in Framingham ("subject property"). The subject property has a land area of approximately one acre that is improved with a one-and-one-half story, eight-room Colonial-style residence. There are four bedrooms as well as two-and-one-half bathrooms, for a total finished living area of 2,096 square feet, which does not include 1,152 square feet of additional finished area in the basement. The home features central air conditioning and is heated by electric heat. 
For fiscal year 2009, the assessors valued the subject property at $485,500, and assessed a tax thereon at a rate of $12.83 per thousand, in the total amount of $6,228.97. For fiscal year 2010, the assessors valued the subject property at $425,200, and assessed a tax thereon at a rate of $14.52 per thousand, for a total amount of $6,173.90. 
The actual tax bills for the fiscal years at issue were sent on December 31, 2008, and December 30, 2009. In accordance with G.L. c. 59, § 57C, the appellant timely paid the taxes due for each fiscal year without incurring interest, and in accordance with G.L. c. 59, § 59, timely filed Applications for Abatement with the assessors on January 29, 2009, and January 28, 2010. The abatement applications were denied by votes of the assessors on April 27, 2009, and March 11, 2010. The appellant seasonably filed Petitions Under Formal Procedure with the Appellate Tax Board ("Board") on July 22, 2009, and April 12, 2010. On the basis of the foregoing, the Presiding Commissioner found that the Board had jurisdiction to hear and decide these appeals.
The appellant argued that the subject property was overvalued for the fiscal years at issue by focusing on the land component of the subject assessments. In particular, the appellant argued that the fair cash value of the subject property's parcel for both of the fiscal years at issue was $10,000, reflecting a reduction of more than 95% from the parcel's assessed value. In support of his argument, the appellant claimed the subject property's parcel was "virtually a wetland and a wetland buffer zone, and the land therefore [wa]s a non-buildable lot." The appellant offered only his unsubstantiated testimony to support this claim. 
The appellant also testified that the subject property's dwelling and land had been flooded and suffered significant water damage during the fiscal years at issue. To bolster this assertion, the appellant offered photographs of the subject property into evidence, which purported to show water damage to various parts of the dwelling and water accumulation on the land. As a threshold matter, the Presiding Commissioner found that the photographs did not portray the degree of damage claimed by the appellant. Further, the reverse side of the photographs revealed that they had been printed in 1998 and 2002. Given that the photographs were taken several years before the relevant assessment dates, the Presiding Commissioner found that they were not probative of damage caused during the fiscal years at issue and gave them no weight. 
Finally, the appellant claimed that a 1.35-acre parcel, which the appellant testified was located three lots away from the subject property, had, at some unspecified time, been revalued downward by the assessors to $10,000 due to persistent water accumulation. Other than his testimony, the only evidence the appellant submitted regarding the location and attributes of this property was a rough sketch he had drawn of the property's location relative to the subject property. The appellant failed to submit a property record card or any other documentary evidence to substantiate his testimony regarding the property's location, its historic and purportedly reduced valuation, or the reasons underlying its alleged reduction in value. The Presiding Commissioner therefore afforded no weight to the appellant's assertions regarding this property.     
For their part, the assessors presented jurisdictional documents and rested, relying on the presumed validity of their assessments.
On the basis of all the evidence, the Presiding Commissioner found that the appellant failed to sustain his burden of proving that the subject property was overvalued for the fiscal years at issue. In sum, the appellant's evidence consisted of unsubstantiated assertions that the subject property was "virtually a wetland and a wetland buffer zone," dated photographs purporting to illustrate current water damage, and bare assertions regarding alleged devaluation of a nearby property resulting from water accumulation. The Presiding Commissioner found that, taken as a whole, this evidence did not constitute probative or credible evidence of the subject property's fair cash value or, in turn, demonstrate that the subject property's assessed value exceeded its fair cash value for the fiscal years at issue. Accordingly, the Presiding Commissioner issued single-member decisions for the appellee in these appeals.
  
OPINION
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 at which a willing buyer and willing seller 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)).
In the present appeals, the Presiding Commissioner found that the appellant did not expose flaws in the assessors' valuation methodology or provide affirmative evidence of the subject property's value. Rather, in support of his claim of overvaluation, the appellant offered unsubstantiated claims that the subject property was unbuildable because it was "virtually a wetland and a wetland buffer zone," dated photographs purporting to illustrate current water damage to the property, and bare assertions regarding devaluation of a nearby property resulting from water accumulation. The Presiding Commissioner found that this evidence, which essentially comprised the whole of the record in these appeals, did not contain probative or credible evidence of the subject property's fair cash value. Consequently, the Presiding Commissioner concluded that the appellant failed to sustain his burden of demonstrating that the subject property's assessed value exceeded its fair cash value for either of the fiscal years at issue. Accordingly, the Presiding Commissioner issued single-member decisions for the appellee in these appeals.

  						APPELLATE TAX BOARD

				  	By:			          ______
					    Nancy T. Egan, Commissioner 


A true copy,

Attest:					
    	  Clerk of the Board

ATB 2012-768