Said & Jehad Abuzahra, Trustees of the Abuzahra Family Trust v. Board of Assessors of the Town of Rowley (December 30, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



SAID & JEHAD ABUZAHRA, TRUSTEES	v.	BOARD OF ASSSESSORS OF  
OF THE ABUZAHRA FAMILY TRUST		     THE TOWN OF ROWLEY

Docket Nos. F294539				     Promulgated:
		  F294886-887				December 30, 2008



	 These are appeals 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 Rowley owned by and assessed to the appellants under G.L. c. 59, §§ 11 and 38, for fiscal year 2008. 
	Commissioner Rose ("Presiding Commissioner") heard these appeals and issued a single-member decision, under   G.L. c. 58A, § 1A and 831 CMR 1.20, 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.  

	Said Abuzahra, Trustee, pro se, for the appellants. 
	Sean McFadden, Assessor, for the appellee.  

FINDINGS OF FACT AND REPORT
	On January 1, 2007, Said & Jehad Abuzahra, Trustees of the Abuzahra Family Trust or Sheriff Abuzahra, Trustee of the Sheldwin Realty Trust ("appellants") were the assessed owners of three unimproved parcels of real estate located in the Town of Rowley (sometimes referred to collectively as the "subject properties").  For fiscal year 2008, the Board of Assessors of Rowley ("assessors") valued and assessed a tax on the subject properties as summarized in the following table.
Docket Number	Map-Block-Lot
Numbers	Street
Address	Assessed Value	Tax Rate /$1,000
	Tax Assessed*	
F294539	6-10-11 ("Lot 11")	 5 Cindy Ln	$ 64,500	$10.38	$  689.60	
F294886	6-10-8  ("Lot 8")	 Cindy Ln**	$283,000	$10.38	$2,937.54	
F294887	6-10-20 ("Lot 20")	69 Cindy Ln	$292,800	$10.38	$3,039.26	

*The tax includes a special assessment referenced on the tax bill as "CPF."
**The record does not reveal a street number for this property.  

On or about December 26, 2007, Rowley's Treasurer sent out the town's actual real estate tax bills.  In accordance with G.L. c. 59, § 57C, the appellants timely paid the taxes assessed on the subject properties without incurring interest.
	On or about January 15, 2008, in accordance with   G.L. c. 59, § 59, the appellants filed Applications for Abatement with the assessors, which, for Lot 11, the assessors denied on January 28, 2008, and for Lots 8 and 20, the assessors denied on February 11, 2008.  On April 28, 2008, in accordance with G.L. c. 58A, § 7 and c. 59,  §§ 64 and 65, the appellants seasonably appealed the assessors' denial of the abatement application for Lot 11 by filing a Petition Under Formal Procedure with the Appellate Tax Board ("Board").  On May 9, 2008, in accordance with G.L. c. 58A, § 7 and c. 59, §§ 64 and 65, the appellants seasonably appealed the assessors' denials of the abatement applications for Lots 8 and 20 by mailing Petitions Under Formal Procedure, which the Board received on May 12, 2008.  
On this basis, the Presiding Commissioner found and ruled that the Board had jurisdiction over these appeals.
	The appellants presented their case-in-chief through the testimony of Said Abuzahra.  Mr. Abuzahra was not only a trustee of the trust in which the subject properties were either once or presently held, but he was also the major investor in the development of the subdivision in which the subject properties are located.  He testified, and the Board found, that he was familiar with the subject properties as well as the development history of and regulatory conditions placed on the subdivision.  In addition to Mr. Abuzahra's testimony, the appellants introduced numerous exhibits, including: copies of the relevant tax bills; a copy of an index plan of the subdivision; copies of several maps depicting the subject properties; and written submissions discussing each of the subject properties' purported deficiencies.  The appellants did not submit comparable-assessment or comparable-sales data.    
	In support of the assessments, Sean McFadden, Rowley's Assessor, testified for the assessors.  The assessors also introduced copies of several jurisdictional documents, copies of the subject properties' property record cards, and Mr. McFadden's comparable-sales analysis.
	Based on all of the evidence, the Presiding Commissioner made the following findings of fact.   
	Lots 8, 11, and 20 contain 40,023 square feet, 3.41 acres, and 1.13 acres of land, respectively.  The subject properties are located in a subdivision of 20 lots where 14 of the lots are improved with houses and 6 are not.  The 14 improved lots are owned by third parties.  In March and July of 2006, third parties purchased a 1.15-acre unimproved lot and a 42,599-square-foot unimproved lot within the same subdivision in which the subject properties are located for $275,000 and $300,000, respectively.  Two other land sales in Rowley in January and May of 2006 for parcels less than one-half the size of the subject properties were sold for $280,000 each.  The sale of a 1.40-acre parcel located on a dirt road in Rowley in April of 2006 was for $255,000.  
On December 27, 2002 and January 2, 2003, Lots 8 and 20 were conveyed from the Abuzahra Family Trust to the Sheldwin Realty Trust for $250,000 and $225,000, respectively.   Lot 11 has remained in the Abuzahra Family Trust since its creation in June 1994.  Maps and         Mr. Abuzahra's testimony suggested that Lot 11 was essentially wetland.  Mr. McFadden testified, however, that the assessors accounted for the presence of wetland on Lot 11 by placing its assessment at only $64,500.  The appellants offered virtually no countervailing evidence on value.  The Presiding Commissioner found that            Mr. McFadden's testimony was credible regarding the lowered assessment on Lot 11.  The Presiding Commissioner further found that the appellants failed to provide him with sufficient evidence relating to an alternative value for Lot 11 for him to find that it was overvalued by the assessors for fiscal year 2008.    
With respect to Lots 8 and 20, the appellants introduced evidence suggesting that Lot 8 contains a considerable amount of wetland, while Lot 20 has topographical issues.  Notwithstanding this evidence, the appellants readily admitted that both parcels are buildable and had been perked.  Moreover, the appellants did not introduce evidence quantifying any effects of wetland or topographical problems on the fair market value of the subject properties or on other approximately one-acre house lots in Rowley generally.  In addition, the evidence revealed that house lots, less than one-half the size of Lots 8 and 20, had been sold in Rowley in 2006 for almost the same amount as the assessments that the assessors had placed on Lots 8 and 20 for fiscal year 2008.  The Presiding Commissioner inferred from this evidence that the fair market value of these lots likely approximated the fair market value of Lots 8 and 20 considering their wetland and topographical issues.  Consequently, the Presiding Commissioner found that the appellants failed to adequately demonstrate that Lots 8 and 20 were overvalued by the assessors for fiscal year 2008.          
On this basis, the Presiding Commissioner found that the appellants failed to carry their burden of proving that the subject properties had been overvalued by the assessors for fiscal year 2008.  The Presiding Commissioner also found that the evidence supported the assessments that the assessors had placed on the subject properties for fiscal year 2008.  Accordingly, the Presiding Commissioner decided these appeals 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 appellants have 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 [Presiding Commissioner] 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).  
In appeals before this Board, taxpayers "'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)). Actual sales generally "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."  Foxboro Associates v. Assessors of Foxborough, 385 Mass. 679, 682 (1982);      New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 469 (1981); First National Stores, Inc. v. Assessors of Somerville, 358 Mass. 554, 560 (1971).  Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date may contain relevant data and information for determining the value of the property at issue.  See McCabe v. Chelsea, 265 Mass. 494, 496 (1929).  "A major premise of the sales comparison approach is that an opinion of the market value of a property can be supported by studying the market's reaction to comparable and competitive properties."  Appraisal Institute, The Appraisal of Real estate 297 (13th ed., 2008).  
General Laws c. 58A, § 12B provides in pertinent part that "at any hearing relative to the assessed fair cash valuation or classification of property, evidence as to fair cash valuation or classification of property at which the assessors have assessed other property of a comparable nature or class shall be admissible."  The introduction of such evidence may provide adequate support for either granting or denying an abatement.  Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2007-1098, 1106-07 (and the cases cited therein).  
In this appeal, the Presiding Commissioner found that the appellants failed to meet their burden of showing that the subject property was overvalued for fiscal year 2008 because they failed to quantify the effects of wetlands or topographical issues on the values of their lots.       See, e.g., Braintree Real Estate Management Co., LLC v. Assessors of Braintree, Mass. ATB Findings of Fact and Reports 2005-432, 446-47 (ruling that the appellant's failure "to demonstrate [the] quantitative effect [of wetlands] on the fair market value of the subject property" contributed to his failure to met his burden of showing that the subject property was overvalued.).  In addition, the appellants did not introduce any data relating to comparable assessments or comparable sales upon which the Presiding Commissioner could rely.  In contrast, the comparable-sales information introduced by the assessors supported the assessments.  See, e.g., Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 401 (recognizing that comparable-sales information is often the best available means for proving a property's fair cash value), aff'd, Mass. App. Ct. No. 07-P-1024, Memorandum and Order under Rule 1:28 (November 28, 2008).  
"The [B]oard [is] not required to believe the testimony of any particular witness but [may] accept such portions of the evidence as appear to have the more convincing weight." Assessors of Quincy v. Boston Consol. 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 [B]oard."   Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).  Based on the evidence presented in this appeal, the Presiding Commissioner selected the most credible and probative evidence in finding and ruling that the appellants failed to met their burden of proving that the subject properties were overvalued and also finding and ruling that the assessors appropriately supported the relevant assessments with comparable-sales data.  
On this basis, the Presiding Commissioner decided these appeals for the appellee.

  					   APPELLATE TAX BOARD

				  
    By:			          	____
				    James D. Rose, Commissioner 












































A true copy,




Attest:					_______
   Assistant Clerk of the Board

 Where, as here, the petitions are filed after the applicable due date, G.L. c. 58A, § 7 provides in pertinent part that "the date of the United States postmark, or other substantiating mark . . . shall be deemed to be the date of delivery [or filing]."

ATB 2008-1514