Clarence and Maureen Dwinnell v. Board of Assessors of the Town of Upton (October 15, 2009)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD

CLARENCE & MAUREEN DWINNELL   v. 	   BOARD OF ASSESSORS OF 
                                      THE TOWN OF UPTON

	
Docket No. F295057			    	   Promulgated:
							   October 15, 2009

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 appellee to abate taxes on real estate located in the Town of Upton, owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2008.  
Commissioner Rose heard the appeal.  Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern joined him in the decision for the appellee. 
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

Maureen Dwinnell, pro se, for the appellants.
Charles Marsden, assessor for the appellee.



FINDINGS OF FACT AND REPORT

Based on the evidence offered at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2007, Clarence and Maureen Dwinnell (the "appellants") were the assessed owners of a parcel of real estate, improved with a single-family home, a barn and a shed, located at 154 West River Street in the Town of Upton ("subject property").  For fiscal year 2008, the Board of Assessors of Upton ("assessors") valued the subject property at $632,000 and assessed a tax at the rate of $10.63 per thousand in the total amount of $6,718.16.  In accordance with G.L. c. 59, § 57C, the appellants paid the tax due without incurring interest.  
On January 15, 2008, in accordance with G.L. c. 59, § 59, the appellants timely filed an Application for Abatement with the assessors.  On April 1, 2008, the assessors denied the appellants' abatement application.  The appellants seasonably filed an appeal with the Board on May 16, 2008.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
The subject property consists of an approximately 26.48-acre parcel of land improved with a single-family, modular, ranch-style dwelling, which was constructed in 2004.  The dwelling contains about 1,600 square feet of finished living area and includes three bedrooms and also two full bathrooms.  The property is further improved with a barn and a shed.
	The appellants argued that the subject property was overvalued for fiscal year 2008, because the building and land portions of their assessment were each excessive. The building value component of the subject assessment was $224,300 and the land component was $377,100.  In support of their contention that the dwelling was overvalued, the appellants offered into evidence a self-prepared analysis, which compared the subject property's building assessment to the sales prices and building assessments of three ranch-style properties located in Upton.  In their analysis, the appellants provided the purportedly comparable properties' sale date, sale price, building size, lot size, location, and overall condition.
Comparable sale number one is a 1.5-acre parcel located at 9 Mechanic Street.  This parcel is improved with a single-family dwelling with a finished living area of approximately 1,176 square feet, plus an additional 600 square feet in the finished basement.  Built in 1992, this property is located in a rural neighborhood similar to the subject property.  The property sold on September 7, 2006, for $334,000.  For fiscal year 2008, the value of the building component of the property's assessment was $170,600.
Comparable sale number two is located at 8 Hopkinton Road.  This property is a 0.38-acre parcel improved with a single-family dwelling with a finished living area of 1,238 square feet, which was built in 1970.  There is also a 1,000-square-foot finished basement.  The property sold on July 17, 2006, for $303,500.  For fiscal year 2008, the value of the building component of the property's assessment was $161,600.
Finally, comparable sale number three is a 1.09-acre parcel located at 98 Mendon Street.  This parcel is improved with a single-family dwelling, built in 1965, with a finished living area of 1,880 square feet, plus a 1,200 square-foot finished basement.  The property sold on August 18, 2006 for $409,900.  For fiscal year 2008, the value of the building component of the property's assessment was $219,500.
Despite the differences in lot size and living area between the purportedly comparable properties and the subject property, the appellants made no adjustments.  Furthermore, the appellants did not analyze or demonstrate how this information supported their claim of overvaluation.  Instead, the appellants merely presented this information to the Board with a claim that the subject dwelling was overvalued for the fiscal year at issue.
The appellants also argued that the subject property was overvalued because the land portion of their assessment was excessive.  Specifically, the appellants argued that the assessors failed to account for the topography of the subject property, which include existing Army Corps restrictions and the fact that a majority of the land is within a flood plain.  The appellants, however, did not offer any documentary or other credible evidence to support their claims.  
Mr. Charles Marsden, assessor for Upton, testified for the assessors.  Mr. Marsden explained the methodology that the assessors used to value large parcels of real estate.  Consistent with that methodology, Mr. Marsden testified that the first 80,000 square feet of the subject parcel was valued at $160,000, as the primary building site.  The remaining square footage was considered excess land.  The first 5 acres of excess land were valued at $12,000 per acre and the remaining 19.64 acres were valued at $8,000 per acre.  The assessors offered no further evidence of value and instead rested on their assessment.  
Based on the evidence presented, the Board found and ruled that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2008.  Regarding their claim that the building value of the subject assessment was excessive, the Board found that the appellants failed to make any adjustments to account for differences that existed between the purportedly comparable properties and the subject property.  
With respect to the appellants' claim that the subject property's land assessment was excessive, the Board found that the appellants failed to provide any affirmative evidence to show how the claimed deficiencies negatively and quantitatively impacted the fair market value of the subject property.  The Board further found that the subject property's land was valued in accordance with the town's land assessment valuation methodology, and that the appellants failed to prove that the value was excessive. 
	Accordingly, the Board found that the appellants failed to meet their burden of proving that the subject property was overvalued for fiscal year 2008 and issued a decision for the appellee in this appeal.

OPINION
"All property, real and personal, situated within the commonwealth . . . shall be subject to taxation." G.L. c. 59, § 2.  Assessors have a statutory obligation to assess real estate at its fair cash value as of the first day of January of the year preceding the fiscal year at issue.  G.L. c. 59, §§ 11 and 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer will agree in a free and open market if both of them are fully informed and neither is under compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956). 
The taxpayer has the burden of proving that the subject property has a lower value than that assessed.  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessment is presumed to be valid unless the taxpayer is able to sustain his or her burden of proving otherwise.  General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (citing 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. v. Assessors of Lynn, 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
"The appellant bears the burden of 'establishing the comparability of . . . properties [used for comparison] to the subject propert[ies].'"  Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Reports 2008-213, 225 (citation omitted). "Once basic comparability is established, it is then necessary to make adjustments for the differences, looking primarily to the relative quality of the properties, to develop a market indicator of value."  New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981).
In the present appeal, the appellants relied on the sales and building assessments of three purportedly comparable properties.  The appellants provided certain descriptive information including, the properties' living area, lot size, age, neighborhood location, and overall condition.  However, the appellants failed to make any adjustment to the data for differences between the purportedly comparable properties and the subject property.  See Antonino v. Assessors of Shutesbury, Mass. ATB Findings of Fact and Reports 2008-54, 71 ("[R]eliance on unadjusted assessments of assertedly comparable properties . . . was insufficient to justify a value lower than that assessed.").  
The appellants also argued that the subject property's land was overvalued due to its topography, wetlands and land restrictions.  However, the appellants offered no evidence to support their claims and failed to prove, assuming that these conditions existed, how they impacted the fair cash value of the subject property for the fiscal year at issue.
A taxpayer "does not conclusively establish a right to an abatement merely by showing that his land or building is overvalued.  'The tax on a parcel of land and the building thereon is one tax . . . although for statistical purposes they may be valued separately.'" Hinds v. Assessors of Manchester-by-the-Sea, Mass. ATB Findings of Fact and Reports 2006-771, 778 (quoting Assessors of Brookline v. Prudential Insurance, Co., 310  Mass. 300, 317 (1941)).  In abatement proceedings, "the question is whether the assessment for the parcel of real estate, including both the land and the structures thereon, is excessive.  The component parts, on which that single assessment is laid, are each open to inquiry and revision by the appellate tribunal in reaching the conclusion whether that single assessment is excessive."  Massachusetts General Hospital v. Belmont, 238 Mass. 396, 403 (1921); see also Buckley v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-110, 119; Jernegan v. Assessors of Duxbury, Mass. ATB Findings of Fact and Reports 1990-39, 49.
In the present appeal, the appellants argued that the individual building and land assessment values were excessive.  However, the appellants failed to show that the individual components of the assessment were excessive and failed to introduce sufficient credible evidence showing that the overall assessment of the subject property exceeded its fair cash value as of the relevant assessment date.  
Based on the evidence presented, the Board found and ruled that the appellants did not meet their burden of proving that the subject property's overall assessment was excessive.  Accordingly, the Board issued a decision for the appellee in this appeal.
    APPELLATE TAX BOARD

					     									    	  By: _________________________________
				   	  Thomas W. Hammond, Jr., Chairman

A true copy,

Attest: ___________________________
           Clerk of the Board

 The barn and shed were assessed at $30,600, which the appellants did not contest.

ATB 2009-1004