Daniel J. Looney v. Board of Assessors of the City of Lowell (February 18, 2004)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DANIEL J. LOONEY			v.	BOARD OF ASSESSORS OF 
THE CITY OF LOWELL

Docket No. F266685				Promulgated:
							February 18, 2004


	This is an appeal filed under the formal procedure pursuant to G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on real estate located in the City of Lowell, owned by and assessed to the appellant under G.L. c. 59, §§ 11 and 38, for fiscal year 2003.
	Commissioner Rose heard the appeal and, in accordance with G.L. c. 58A, § 1 and 831 CMR 1.20, 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.

	Daniel J. Looney, pro se, for the appellant.
	Suzanne Lemay and Karen Golden, assessors, for the appellee.


FINDINGS OF FACT AND REPORT
On January 1, 2002, Daniel J. Looney ("the appellant") was the assessed owner of a parcel of real estate located at 697 Bridge Street, Lowell ("the subject property").  The property consists of an approximately 7,936 square-foot lot improved with a three-family Victorian-style dwelling, built around 1950, with a total living area of 4,973 square feet.  There are a total of fifteen rooms, including nine bedrooms, and three bathrooms.  The basement is unfinished.  The exterior is clapboard and the roof is slate.  The assessors characterized the subject property's condition as "good" on the property record card.  
For fiscal year 2003, the Lowell Board of Assessors ("assessors") valued the subject property at $257,900, and assessed a tax at the rate of $13.77 per thousand, in the amount of $3,551.28.  The appellant paid the tax due without incurring interest.  On January 10, 2003, the appellant timely filed an application for abatement with the assessors.  The application was denied on January 16, 2003, and on January 23, 2003, the appellant timely filed an appeal with the Appellate Tax Board ("Board").  On the basis of these facts, the Board found that it had jurisdiction over the subject appeal.
In his appeal filed with the Board, the appellant cited the Board's prior decision for fiscal year 2002 in which the Board found that the subject property had a fair cash value of $250,000, some $7,900 less than the assessed value for fiscal year 2003.
Because the present appeal involves one of the "next two fiscal years after a fiscal year for which the Board has determined the fair cash value" of the subject property, and because the assessed value of the property for fiscal year 2003 is greater than the value found by the Board for fiscal year 2002, the burden shifted to the assessors to prove that an increase in value was justified.  G.L. c. 58A, § 12A.
Suzanne Lemay, an assessor for the City of Lowell, testified on behalf of the assessors.  In support of the town's increased assessed value on the subject property, Ms. Lemay presented five sales of properties, which occurred between January and October of 2002.  All of the sales contained less living area than the subject property but sold for amounts greater than the subject's assessed value.
The first sale, located at 596 Beacon Street, Lowell, is a 5,252 square-foot lot improved with a two-and-a-half story Victorian-style dwelling with 2,771 square feet of gross living area.  The property sold on May 13, 2002, for $280,000, or $101.05 per-square-foot of living area.
Sale number two, located at 134 Coburn Street, is a 6,3152 square-foot lot improved with a one and three-quarter-story dwelling with 2,377 square feet of gross living area.  The house was built around 1890, is in average condition, and sold on July 25, 2002, for $265,000, or $111.29 per-square-foot of living area.
The third sale, located at 38 Sarah Avenue is a 3,583 square-foot lot improved with a two-and-a-half story Victorian-style dwelling with 2,752 square feet of gross living area.  The property was built in 1920, is in fair to average condition, and sold on October 30, 2002, for $287,000, or $104.29 per-square-foot of living area.  
Sale number four, located at 22 Second Avenue, has 8,700 square feet of land area and is improved with a two-and-a-half story dwelling with 2,417 square feet of gross living area.  The property was built in 1939, is in good condition, and sold on June 2, 2002, for $279,900, or $115.82 per-square-foot of living area.
The assessors' final comparable, located at 33 White Street, has a land area of 9,101 square feet, roughly 1,100 more than the subject property, and is improved with a two-story dwelling with 2,204 square feet of gross living area.  The dwelling was built around 1920, is in average condition, and sold on January 15, 2002, only two weeks after the relevant date of assessment for this appeal, for $260,000, or $117.97 per-square-foot of living area.
In addition to citing the Board's fiscal year 2002 decision in which the Board valued the subject property at $250,000, the appellant also offered into evidence a table of five sales of properties located in Lowell.  According to the appellant, these sales occurred between July and November 2001, between two and six months prior to the date of assessment, and had sale prices that ranged from $61.37 to $80.26 per-square-foot of living area.  The appellant did not, however, offer any corroborating evidence to support the sales data he presented, such as copies of deeds or property record cards.  Furthermore, the appellant offered only a cursory description of the properties he cited and failed to establish comparability between these properties and the subject property. 
Even assuming the comparability of these properties and the accuracy of the appellant's data, the appellant's evidence does not support his claim of overvaluation.  Applying his lowest per-square-foot price from his comparables, $61.37, to the subject property's 4,973 square feet of living area results in an indicated value for the subject property of $305,193, over $47,000 more than the property's 2003 assessed value.
The subject property's assessed value of $257,900 translates into a value of $51.86 per-square-foot of living area.  Although given their smaller size, the assessors' comparables would be expected to sell at a higher price per-square-foot than the subject, the fact that these sales were more than $100 per-square-foot of living areas, and the fact that even the lowest per-square-foot sale price offered by the appellant exceeded the per-square-foot assessed value of the subject, amply supports the assessed value in this appeal.  
On the basis of the evidence presented in this appeal, the presiding member found that the assessed value of the subject property for fiscal year 2003 was warranted.  The Board found that the fiscal year 2003 assessed value of $257,900 was supported by both Ms. Lemay's presentation of recent sales prices associated with reasonably comparable properties and also the appellant's presentation of recent sale prices.  Accordingly, Commissioner Rose issued a single-member decision for the appellee.



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).
	Ordinarily the assessment is presumed valid unless the taxpayers sustain 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 appellants to make out their right as a matter of law to an abatement of the tax.  Id.  The appellants must show that the assessed valuation of their property was improper.  See Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 691 (1982).  However,  
[i]f the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted . . . . 

G.L. c. 58A, § 12A.  
In the present appeal, the assessment at issue fell within the two-year statutory period of § 12A.  Therefore, the burden of persuasion must shift to the appellee to prove that the increased value is warranted.  See generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); Cressey Dockham & Co., Inc. v. Assessors of Andover, 11 Mass. App. Tax Bd. Rep. 41, 50 (1989); Ellis v. Assessors of Northborough, 3 Mass. App. Tax Bd. Rep. 152, 154-155 (1983).  
"Once a prior determination of the Board of the fair cash value of the same property has been placed in evidence [] the statute requires the appellee to produce evidence to 'satisfy the Board that the increased valuation was warranted.'"  Cressey Dockham, 11 Mass. App. Tax Bd. Rep. at 50.     
In the present appeal, the assessors offered a market approach to justify the assessed value of the subject property.  See Foxboro Associates, 385 Mass. at 682, ("sales of property usually furnish strong evidence of market value, provided they are arm's-length transactions and thus fairly represent what a buyer has been willing to pay for the property to a willing seller.")   Specifically, the assessors relied on five sales that occurred between January and October of 2002.  The properties had an average per-square-foot sale price of $110.08, which was more than double the subject per-square-foot assessed value for the subject, that when applied to the subject property's 4,973 square feet calculates to an amount greater than the 2003 assessed value.  
In an effort to refute the assessors' increase in value, the appellant relied upon five sales that occurred between July and November 2001 and which had ranged between $61.37 and $50.26 per-square-foot of living space.  Even assuming that the information presented by the appellant is accurate, the per-square-foot value at even the lowest end of the range results in a fair cash value greater than the assessed value for the fiscal year at issue. 
In evaluating the evidence before it, the presiding member selected among the various elements of value and formed his own independent judgment of fair cash value.  General Electric v. Assessors of Lynn, 393 Mass. 591, 605 (1984); North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984).  The Board need not specify the exact manner in which it arrived at its valuation.  Jordan Marsh v. Assessors of Malden, 359 Mass. 106, 110 (1971).  The fair cash value of property cannot be proven with "mathematical certainty and must ultimately rest in the realm of opinion, estimate and judgment."  Boston Consolidated Gas Co., 309 Mass. at 72.
On the basis of the evidence presented in this appeal, the presiding member found and ruled that the comparable sales evidence supported an increase in assessed value for fiscal year 2003.  Accordingly, the presiding member issued single-member decision for the appellee.  

							APPELLATE TAX BOARD



					      By:					___
    					         James D. Rose, Member



A true copy,



Attest:				_______
	  Asst. Clerk of the Board

ATB 2004-100