Denise Miner Hart v. Board of Assessors of the Town of Plainville (July 28, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DENISE MINER HART 			v.	   BOARD OF ASSESSORS OF  
							   THE TOWN OF PLAINVILLE

Docket No. F299045				   Promulgated:		
							   July 28, 2010


	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 Town of Plainville ("appellee" or "assessors") to abate real estate taxes assessed to Denise Miner Hart ("appellant") under G.L. c. 59, §§ 11 and 38 for fiscal year 2009.  
	Commissioner Egan ("Presiding Commissioner") heard this appeal, and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellant.  
	These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 8.31 CMR 1.32. 

	Denise Miner Hart, pro se, for the appellant.
	Richard Bowen, Esq. for the appellee.  


FINDINGS OF FACT AND REPORT
	On January 1, 2008, the appellant was the assessed owner of a parcel of real estate located at 79 Washington Street in the Town of Plainville ("subject property").  At all relevant times, the subject property contained approximately 26,421 square feet of land and was improved with a 1,360 square-foot, 2-story, conventional-style, single-family home and a multi-use commercial garage and office building.  
	For fiscal year 2009, the assessors valued the subject property at $488,000 and assessed a tax thereon, at the rate of $11.89 per thousand, in the amount of $5,802.33.  In accordance with G.L. c. 59, § 57, the appellant timely paid the tax without incurring interest.  On or about December 2, 2008, in accordance with G.L. c. 59, § 59, the appellant timely filed her abatement application with the assessors,  which they denied on February 23, 2009.  On February 5, 2009, in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed her petition with the Appellate Tax Board ("Board").  On this basis, the Presiding Commissioner found that the Board had jurisdiction over this appeal.  
	Because the assessors increased the subject property's assessment by $105,400, to $488,000, over the $382,600 value determined by the Board in the appellant's 2007 fiscal year appeal, the Presiding Commissioner found that the burden of going forward shifted to the assessors to show that an increase in value was warranted for fiscal year 2009.    See G.L. c. 58A, § 12A.  The appellant did not appeal the subject property's fiscal year 2008 assessment of $445,600.  
The assessors' only witness was Mary Jo LaFreniere, Plainville's Principal Assessor.  Ms. LaFreniere testified and the subject property's property record card revealed that the subject property's assessment was composed of four components: a $256,500 valuation for the land; a $87,100 valuation for the house; a $4,900 valuation for the pavement, an out building and a sign; and a $139,500 valuation for the multi-use commercial garage and office building.  Ms. LaFreniere described the house on the subject property as a wood-sided, older, conventional-style home with a Gambrel roof, in average condition.  The house, which was built in 1910, contains one one-half and one full bathroom plus seven other rooms, including three bedrooms.  The house also has an enclosed finished porch, an unfinished basement, a new roof, and a fossil-fuel forced hot-water heating system.  
The 2,448-square-foot, two-story garage and office building consists of three bays in the 1,440-square-foot first level and office space in the 1,008-square-foot upper level.  The garage bays have concrete floors and primarily masonry walls, while the offices have carpeted flooring and painted sheetrock walls.  This building has electric baseboard heat.  Its exterior is finished with vinyl siding along with asphalt singles covering its gables and hip roof.  This building is in average overall condition.  
In her testimony at the hearing of the present appeal, Ms. LaFreniere tried to address the issues raised by the appellant in her fiscal year 2007 appeal, which had led to the Board's $72,600 reduction in that fiscal year's assessment from $455,200 to $382,600.  First, she testified that the assessors visited the subject property on numerous occasions before the January 1, 2008 assessment date and determined that the subject property was no longer adversely affected by drainage issues from a neighboring property, which led to the unnatural pooling of water on the subject property.  The remedial measures that the owner of the neighboring property had instituted to mitigate these problems were apparently working.  
Second, Ms. LaFreniere introduced evidence showing that the presence of a cell tower was not nearly as close to the subject property as the Board, based on the appellant's unrebutted testimony in the prior appeal, had previously found.  Based on this newly submitted evidence, the Presiding Commissioner discovered that the tower was more than three times further away than suggested in the prior appeal and, consequently, was not a meaningful nuisance or deterrent to potential lessees of the subject property.  Other evidence supported both this proposition and the mitigation of drainage problems including leases, which revealed that the house on the subject property was rented for $1,250 per month plus utilities and the commercial garage and office property was rented for $1,450 per month plus utilities.  
Third, Ms. LaFreniere testified and demonstrated to the Presiding Commissioner that the assessors had accounted for a right-of-way and the possibility of some continued water drainage-related issues in the fiscal year 2009 assessment by reducing the subject property's scheduled land valuation.  Fourth, Ms. LaFreniere noted that even though the subject property does not have a sewer hook-up, several other properties in the area do not have one either, and, at any rate, the subject property has more than enough land to accommodate a leaching field.  Finally, the assessors' evidence indicated that the value of commercial and residential property located in Plainville did not increase from fiscal year 2008 to fiscal year 2009.    
The appellant and owner of the subject property, Denise Miner Hart, testified after the assessors rested.  For her presentation, she introduced the same maps, photographs, and information, which formed the basis of her fiscal year 2007 appeal.  She did not present any recent or timely photographs, maps, or other demonstrative evidence depicting or showing that the prior water drainage and pooling issues were continuing as of January 1, 2008 or that the cell tower was located closer than the assessors' evidence now revealed.       
On the basis of all of the evidence, the Presiding Commissioner found that the assessors met their initial burden of overcoming the Board's finding of value for the preceding 2007 fiscal year and demonstrated that at least part of the increase in the assessed value of the subject property was warranted for fiscal year 2009.  The Presiding Commissioner also found that the appellant failed to successfully rebut the vast majority of the assessors' showing.  In reaching these two ultimate findings, the Presiding Commissioner found that the water drainage issues had been successfully mitigated by the owner of the neighboring property, and, as a result, the pooling of water on the subject property had been substantially eliminated.  The Presiding Commissioner further found that the cell tower was located a substantial enough distance away from the subject property to minimize any adverse effects on the subject property's value.  The Presiding Commissioner also found that the significant rents received for both the residential and commercial buildings located on the subject property further supported these previous findings.  In addition, the Presiding Commissioner found that the reduction in the subject property's scheduled land value adequately addressed the presence of a right-of-way on the subject property.  
Moreover, the Presiding Commissioner found that the appellant's evidence was largely composed of stale reintroductions of submissions from her fiscal year 2007 appeal, which were not appropriately updated for fiscal year 2009, and were successfully refuted by the assessors' evidence in this appeal. Finally, the Presiding Commissioner found that neither the residential nor the commercial property values in Plainville had increased from fiscal year 2008 to fiscal year 2009.  On this basis, the Presiding Commissioner found that the fair cash value of the subject property for fiscal year 2009 was equivalent to its $445,600 assessed value for fiscal year 2008.  The Presiding Commissioner, therefore, decided this appeal for the appellant and granted a tax abatement in the amount of $504.14.  

OPINION
	The assessors are required to assess real estate at its 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 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).  
If, however, within the two preceding fiscal years, the Board has determined the fair cash value of the subject property and the assessment at issue exceeds the Board's prior determination, then "the burden shall be upon the [assessors] to prove that the assessed value was warranted."  G.L. c. 58A, § 12A.  The Presiding Commissioner took judicial notice of the Board's fiscal year 2007 decision and finding of value and ruled in this appeal that the burden of going forward to justify the increase in the assessment from a previous fiscal year was on the assessors.  See, generally, Beal v. Assessors of Boston, 389 Mass. 648 (1983); see also Cressey Dockham & Co., Inc. v. Assessors of Andover, Mass. ATB Findings of Fact and Reports 1989-72, 86-87 ("Once a prior determination of the Board of the fair cash value of the same property [for one of the prior two fiscal years] has been placed in evidence . . . the statute requires the [assessors] to produce evidence to 'satisfy the Board that the increased valuation was warranted.'" (citation omitted)) ; Ellis v. Assessors of Northborough, Mass. ATB Findings of Fact and Reports 1983-522, 524, 526-28.  Notwithstanding this shift in the burden of production, the burden of persuasion on the issue of fair cash value remains on the appellant.  See Johnson v. Assessors of Lunenburg, Mass. ATB Findings of Fact and Reports 1992-1, 8; Cressey Dockham & Co. Inc., Mass. ATB Findings of Fact and Reports at 1989-86-87.   
In the present appeal, the Presiding Commissioner found that the assessors offered credible evidence that the water drainage issues had been successfully mitigated by the owner of the neighboring property, and, as a result, the pooling of water on the subject property had been substantially eliminated.  The Presiding Commissioner also found that the assessors showed that the cell tower was located a substantial enough distance away from the subject property to minimize any adverse effect on the subject property's value.  The substantial rents received for both the residential and commercial buildings located on the subject property provided additional support for these findings.  In addition, the Presiding Commissioner found that the assessors demonstrated that the reduction in the subject property's scheduled land value adequately addressed the presence of a right-of-way on the subject property.  
In contrast to the well-documented and supported evidence submitted by the assessors, the Presiding Commissioner found that the appellant's evidence was largely composed of stale reintroductions of submissions from her fiscal year 2007 appeal, which were not appropriately updated for fiscal year 2009, and were successfully refuted by the assessors' evidence in this appeal.  The Presiding Commissioner did find, however, that the evidence established that neither the residential nor the commercial property values in Plainville increased from fiscal year 2008 to fiscal year 2009.  
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)).  The Presiding Commissioner found and ruled here that while the evidence supported an increase in its finding of the subject property's value for fiscal year 2007, it also supported an abatement of the fiscal year 2009 assessment. After considering their evidence, the Presiding Commissioner found and ruled that the assessors successfully showed that an increase in the subject property's value from the Board's determination for fiscal year 2007 was warranted for fiscal year 2009.  On the basis of all of the evidence, the Presiding Commissioner found and ruled that the fair cash value of the subject property for fiscal year 2009 was equivalent to its $445,600 assessed value for fiscal year 2008.    
"The board [is] not required to believe the testimony of any particular witness but it [can] accept such portions of the evidence as appear to have the more convincing weight. Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941).  "The credibility of witnesses, the weight of evidence, and inferences to be drawn from the evidence are matters for the board."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  The market value of the 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." Boston Consolidated Gas Co., 309  Mass. at 72 (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. v. Assessors of Malden, 359 Mass. 106, 110 (1971).  
On this basis, the Presiding Commissioner found and ruled that the assessors carried their burden of production in this appeal, however, the appellant still carried her burden of persuasion.  The Presiding Commissioner found that the assessors' evidence justified an increase in the value determined by the Board for fiscal year 2007, but the evidence also supported a reduction in the fiscal year 2009 assessment.  
The Presiding Commissioner, therefore, decided this appeal for the appellant and granted a tax abatement in the amount of $504.14.  

					       APPELLATE TAX BOARD

				By:			______	_______________
					   Nancy T. Egan, Commissioner


A true copy,



Attest:			____			___
	       	Clerk of the Board

 The Board calculated the tax to be $5,802.32.  
 G.L. c. 59, § 59 requires that applications for abatement be filed: "on or before the last day for payment, without incurring interest in accordance with the provisions of chapter fifty-seven or section fifty-seven C, of the first installment of the actual tax bill issued upon the establishment of the tax rate for the fiscal year to which the tax relates."  That date for purposes of this appeal was December 15, 2008.
 Even though the appellant's petition was filed prior to the date of a decision on her abatement application or the date of its deemed denial, the Board, nonetheless, found that her petition was seasonable because the Supreme Judicial Court held in Becton, Dickinson & Co. v. State Tax Commission, 374 Mass. 230, 234 (1978), that prematurity in filing an appeal is not fatal to the Board's jurisdiction. See also Coldwater Seafood Corp. v. Assessors of Everett, 23 Mass. App. Ct. 1102 (1986). The Courts and this Board have applied this concept consistently to petitions filed prematurely. See, e.g., Daniels v. Assessors of Everett, Mass. ATB Findings of Fact and Reports 1990-50, 66; Field Corner Plate Glass Co. v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1994-186, 196; Iacaboni v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1996-424, 426; Gaston v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 332, 335-36 fn. 4; Healthtrax Intern. v. Assessors of Hanover, Mass. ATB Findings of Fact and Reports 2001-366, 389. 
 The Board took judicial notice in the present appeal of its decision and finding of value in the fiscal year 2007 appeal.
 General Laws c. 58A, § 12A provides, in pertinent part:
If 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.
 

ATB 2010-703