Patricia M. Hughes v. Board of Assessors of the City of Quincy (July 15, 2005)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




PATRICIA M. HUGHES			v.	BOARD OF ASSESSORS OF 
THE CITY OF QUINCY

Docket No. F270186				Promulgated:
							July 15, 2005



	This is an appeal under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65 from the refusal of the appellee to abate taxes on certain real estate in the City of Quincy assessed under G.L. c. 59, §§ 11 and 38 for fiscal year 2003.  
	Commissioner Scharaffa heard this appeal and, pursuant to G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellant on February 24, 2004.  
	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.  

	Patricia M. Hughes, pro se, for the appellant.

	Jolanta Brieffett and Stephen Roche, Assistant Assessors, for the appellee.  



FINDINGS OF FACT AND REPORT
	On January 1, 2002, Patricia M. Hughes was the assessed owner of a 1,235-square-foot, thirteen-year-old residential condominium unit numbered 907E located at 101 Marina Drive in the City of Quincy ("subject unit" or "subject" or "unit").  The subject unit is situated on the top floor of a mid-rise, one-hundred-and-fifteen-unit building.  The condominium complex includes a second mid-rise building containing another one-hundred-and-thirty units.  
	For fiscal year 2003, the Board of Assessors of Quincy ("assessors") valued the subject unit at $356,000 and assessed a tax, at the rate of $13.62 per thousand, in the amount of $4,848.72.  The appellant paid the tax without incurring interest.  On Monday, February 3, 2003, the appellant timely filed her application for abatement with the assessors.  The assessors denied her application on March 21, 2003, and, on June 18, 2003, the appellant seasonably filed her appeal with the Appellate Tax Board ("Board").  On the basic of these facts, Commissioner Scharaffa found that the Board had jurisdiction over this appeal.  The trial in this matter was conducted on February 12, 2004.       
	The subject unit contains two bedrooms, living and dining space, a kitchen, a balcony, and one and one-half bathrooms.  The subject's floors are carpeted, and the unit is heated and cooled by its own heat pump.  The subject unit is situated on the city-side as opposed to the harbor-side of the condominium building.  The unit's interior is generally in good condition, but the exteriors of the condominium buildings require significant restorative work.  In addition to her monthly condominium fee, the appellant received a $45,800 assessment from the complex's condominium association, payable over a three-year period, for her unit's share of the approximately twelve million dollar costs associated with the outside repair.  
	The appellant contended that her property was both overvalued and disproportionately assessed.  With respect to her claim of overvaluation, the appellant asserted that condominium units in her complex facing the city were worth significantly less than those facing the harbor.  The prices associated with 2001 and 2002 sales of condominium units in the complex, which were described in testimony, amply demonstrated this assertion.  These sales also showed the existence of an appreciating market for condominiums.  In addition, through photographs, which were offered into evidence, the appellant demonstrated the existence of several defects in her unit such as areas of mold and mildew caused by an infiltration of moisture from some of her unit's windows.  The photographs further revealed dirt and grime adhering to the exterior of the windows, which, for lack of access, she was unable to clean and the condominium association apparently neglected.  Most importantly, however, the appellant argued that the assessors, when valuing her unit for fiscal year 2003, failed to consider the condominium association's sizable assessment on her unit for the two condominium buildings' exterior repairs.    
	With respect to disproportionate assessment, the appellant attempted to demonstrate that, for fiscal year 2003, condominium units were assessed, on average, at approximately seventy-five percent or more of their fair cash value while more traditional one-, two-, and three-family residential properties throughout Quincy were assessed, on average, at only seventy percent or less of their fair cash value.  More particularly, she claimed that the condominium units in her complex were assessed at approximately ninety percent or more of their fair cash value.  In support of these contentions, the appellant analyzed sales of both condominium and traditional residential properties in Quincy from January 1, 2002 to December 31, 2002.  She compared these properties' assessed values as of January 1, 2002 to their unadjusted sale prices.  
	For their part, the assessors essentially rested on the assessment.  They did, however, admit that they did not consider any specific defects in the subject unit or the condominium association's $45,800 assessment for exterior repairs, payable over three years, when valuing the unit for fiscal year 2003.  
	On the basis of all of the evidence, Commissioner Scharaffa found that the appellant demonstrated that the subject unit was overvalued for fiscal year 2003, but failed to prove disproportionate assessment.  With respect to overvaluation, Commissioner Scharaffa found that the subject unit was properly valued without considering the unit's defects and the condominium association's assessment for exterior repairs.  Commissioner Scharaffa found, however, that these two factors should be considered in valuing the unit for fiscal year 2003.  While the record is not clear on exactly when the condominium association assessed the unit for the exterior repairs, it is clear that, as of January 1, 2002, the necessity for substantial repairs and a concomitant assessment on the complex's units was foreseeable.  Consequently, Commissioner Scharaffa found that the assessors ultimately erred in valuing the subject unit for fiscal year 2003 by failing to consider the $45,800 assessment, payable over three years, for exterior repairs to the buildings and by ignoring the moisture problem associated with the subject's windows.  After considering the effect of these factors on the subject unit's value, Commissioner Scharaffa determined that the unit's assessment should be reduced by approximately five percent, or $16,000.  
	With respect to disproportionate assessment, Commissioner Scharaffa found that the appellant's singular reliance on unadjusted sales between January 1, 2002 and December 31, 2002 to prove her contention for fiscal year 2003 was misplaced.  Commissioner Scharaffa found that, for purposes of proving disproportionate assessment for fiscal year 2003, with an assessment date of January 1, 2002, the appellant should have examined sales derived from calendar year 2001, and, if later sales were used, at least adjusted the later sales to reflect the appreciating market.  The appellant made no adjustment to sales based on market conditions despite her recognition of local condominium units' significant appreciation during the relevant time period.  According to Appraisal Institute, The Appraisal of Real Estate at 434 (12th ed., 2001), "[a]n adjustment for market conditions is made if general property values have appreciated or depreciated since the transaction dates due to inflation or deflation or a change in investors' perceptions of the market over time."  Furthermore, the Commissioner found that the appellant failed to show that the assessors engaged in any deliberate scheme of disproportionate assessment for fiscal year 2003.     
	On the basis of these findings of fact, Commissioner Scharaffa decided that the assessors had overvalued the subject unit for fiscal year 2003, but had not disproportionately assessed either the subject unit or condominium units as a class or subclass in Quincy.  Commissioner Scharaffa, therefore, decided this appeal for the appellant and granted an abatement in the amount of $217.92.    

OPINION
	The assessors have a statutory and constitutional obligation to assess all real property at its full and fair cash value.  Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth; art. 10 of the Declaration of Rights; G.L. c. 59, §§ 38, 52.  See Coomey v. Assessors of Sandwich, 367 Mass. 836, 837 (1975) ("Coomey") (citations omitted).  Fair cash value means fair market value, which 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) ("Schlaiker") (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he [B]oard is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayer[] . . . prov[es] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984)("General Electric")(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, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  The assessed values placed on properties comparable to the subject are admissible in hearings contesting assessments before the Board.  G.L.  c. 58A, § 12B.  
In the present appeal, the appellant focused on the assessors' failure to consider certain deficiencies in her unit and the effect of the condominium association's $45,800 assessment for exterior repairs.  Commissioner Scharaffa found that the assessors erred by not considering these factors in their assessment of the subject unit.  Accordingly, after considering the effects of these factors on the value of the subject unit as of January 1, 2002, Commissioner Scharaffa found that the assessed value should be reduced by approximately five percent, or $16,000.      
	The appellant also alleged that her property was disproportionately assessed in fiscal year 2003.  "If the taxpayer can demonstrate in an appeal to the Board that [s]he has been a victim of a scheme of discriminatory, disproportionate assessment, [s]he 'may be granted an abatement . . . which will make . . . [her] assessment proportional to other assessments, on a basis which reaches results as close as is practicable to those which would have followed application by the assessors of the proper statutory assessment principles.'"  Coomey, 367 Mass. at 838 (quoting Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377-78 (1971)("Shoppers' World")).  The burden of proof as to existence of a "scheme of discriminatory, disproportionate assessment" is on the taxpayer.  First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 559 (1971)("First National Stores"); see Schlaiker, 365 Mass. at 245.  If a taxpayer successfully demonstrates improper assessment of such a number of properties to establish an inference that such a scheme exists, the burden of going forward to disprove such a scheme shifts to the assessors.  Shoppers' World, 348 Mass. at 377.  "The ultimate burden of persuasion, of course, will remain upon the taxpayer."  First National Stores, 358 Mass. at 562.  
	In the present appeal, the appellant failed to meet her burden of proving that a deliberate discriminatory scheme of disproportionate assessment existed.  The evidence submitted was simply inadequate to prove that the assessors engaged in an "intentional widespread scheme of discrimination."   Stilson v. Assessors of Gloucester, 385 Mass. 724, 727-28 (1982).  The appellant never showed intent on the part of the assessors to discriminate against her condominium unit or condominium units as a class or subclass in Quincy.  She also failed to show any inequality between the assessed and fair market values of condominium units in Quincy as of January 1, 2002.  Commissioner Scharaffa found that her reliance on unadjusted sales consummated after the assessment date in an appreciating market was without merit.   This finding is consistent with the Board's finding in Brown v. Assessors of Brookline, 1999 ATB Adv. Sh. 1 (Docket Nos. 145188, etc., February 9, 1996), aff'd, 43 Mass. App. Ct. 327 (1997), that an appellant's failure to adjust post-assessment-date sales for appreciation, in an appreciating market, compromises the methodology used by the appellant for demonstrating disproportionate assessment.  Id. at 11.    Accordingly, Commissioner Scharaffa ruled in the instant appeal that the appellant failed to meet her burden of showing that a deliberate discriminatory scheme of disproportionate assessment existed for the fiscal year at issue.  Where assessments, even if wrong, are "consistent with honest mistake or oversight on the part of the assessors" as opposed to a "deliberate scheme of disproportionate assessment" no relief for disproportionate assessment is appropriate.  Id. at 20 (quoting Stilson, 385 Mass.       at 728).  After considering all of the evidence submitted in this appeal, Commissioner Scharaffa found and ruled that the subject unit was overvalued for the fiscal year at issue, but it was not disproportionately assessed. 

On this basis, Commissioner Scharaffa decided this appeal for the appellant and granted an abatement of $217.92.
  
					APPELLATE TAX BOARD

			    By:			          	____
				  Frank J. Scharaffa, Commissioner 

A true copy,

Attest:					________
    Assistant Clerk of the Board

ATB 2005-420