William J. Franks, Trustee v. Board of Assessors of the City of Leominster (February 8, 2012)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


WILLIAM J. FRANKS, TRUSTEE      v. 	  BOARD OF ASSESSORS OF 									  THE CITY OF LEOMINSTER

Docket No. F311907			   	       Promulgated:
		 						  February 8, 2012


	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 City of Leominster ("assessors" or "appellee") to abate taxes on certain real estate owned by and assessed to William J. Franks, Trustee ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2011.
	Commissioner Mulhern ("Presiding Commissioner") heard this appeal under G.L. c. 58, § 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 appellant under G.L. c. 58A, § 13 and 831 CMR 1.32. 
 	
William J. Franks, pro se, for the appellant.

	Christopher Paquette and Walter Poirier, assessors for 
the appellee.


FINDINGS OF FACT AND REPORT	
	Based on the testimony and exhibits offered into evidence 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 a 6.57-acre parcel of land in Leominster identified on the assessors' Map 427 as Lot 39 ("subject property"). For fiscal year 2011, the assessors valued the subject property at $129,200 and assessed a tax thereon, at the rate of $15.41 per thousand, in the amount of $1,990.97.  On January 20, 2011, the appellant paid $1,519.51, including $58.00 of interest; the balance was not paid.  On January 10, 2011, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors, which was deemed denied on April 10, 2011. The appellant seasonably filed an appeal with the Appellate Tax Board ("Board") on May 27, 2011.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal.
	The subject property is a 6.57-acre unimproved parcel of land located on Legate Hill Road.  Generally triangular in shape, the subject property has 60 feet of frontage on Legate Hill Road with a sloping topography and some wetlands at the rear of the site.  The subject property was sold by the City of Leominster to Christopher J. Cox, trustee, for $50,000 on August 25, 2005.  On January 17, 2007, Mr. Cox transferred ownership, for no consideration, to John A. Faneros, trustee.  The appellant testified that subsequent to this transfer, he made a loan of $100,000 to Mr. Faneros which was secured by a mortgage on the subject property and another property not at issue in this appeal.  The appellant further testified that Mr. Faneros intended to develop the subject parcel and, on April 10, 2006, he submitted an open space subdivision plan that proposed a cul-de-sac with seven planned housing lots.  Subsequently, Mr. Faneros defaulted on the loan and, on June 7, 2010, the appellant acquired the subject property at a foreclosure auction when no other parties offered a bid.  
	The appellant further testified that, in his opinion, the subject property's limited frontage precluded it from being considered a buildable lot.  Therefore, he argued, the 2005 sale price of $50,000 represented the subject property's fair cash value for the fiscal year at issue.  The appellant did not, however, offer any evidence to support his claim.  Moreover, the appellant failed to offer any affirmative evidence of value such as comparable sales or comparable assessments.  
	The assessors presented their case-in-chief through the testimony of Christopher Paquette, an assessor for Leominster. The assessors also offered into evidence the requisite jurisdictional documentation and the subject property's property record card.  Mr. Paquette testified that the subject property is classified as residential and for the fiscal year at issue the first 43,560 square feet (one acre) was valued at $94,400.  The remaining 5.57 acres were given a fifty percent discount to account for the topography and wetlands and were valued at $34,800.  The assessors also offered into evidence the Multiple Listing Service listing that recited an asking price of $150,000.
	On the basis of all the evidence, the Presiding Commissioner found that the appellant did not provide credible evidence to support his assertion that the subject property was overvalued.  The appellant relied solely on an unsubstantiated claim that the subject property did not comply with existing zoning requirements and therefore was not a buildable lot.  Further, the appellant did not offer any affirmative evidence of value such as comparable sales or assessments.   
	Accordingly, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2011 and issued a single-member decision for the appellee.


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 taxpayer[] . . . prove[s] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245). 
	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 appeal, the appellant argued that the subject property did not have the requisite frontage and thus was not a buildable lot.  Therefore, the appellant argued, the $50,000 purchase price paid by Mr. Cox in 2005 represented the subject property's fair market value for the fiscal year at issue.  However, the appellant failed to offer any evidence to support his assertion.  Moreover, the appellant failed to offer any affirmative evidence of overvaluation such as comparable sales or assessments.  Therefore, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the subject property was overvalued for fiscal year 2011.
	Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.	

		     APPELLATE TAX BOARD

				  	By: _________________________________
					     Thomas J. Mulhern, Commissioner


A true copy,


Attest: _____________________________
             Clerk of the Board

 William J. Franks, as Trustee of the W & E Nominee Trust, brought this appeal.
 The incurring of interest and the failure to pay the tax assessed does not deprive the Appellate Tax Board of jurisdiction because the tax assessed for fiscal year 2011 was $3,000 or less.  See G.L. c. 59, §§ 64 & 65.

ATB 2012-94