F291427; F294631; F303547; F294630; F303548

Texto completo

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

HOWARD D. HAYNES v. BOARD OF ASSESSORS OF THE TOWN OF MIDDLETON

Docket Nos. F291427 (FY 2007) Promulgated:
F294631 (FY 2008) March 30, 2011
F303547 (FY 2009)

F294630 (FY 2008)
F303548 (FY 2009)

These are appeals under the formal procedure, pursuant to G.L. c. 59, §§ 64 and 65 and 831 CMR 1.03 and 1.04, from the refusal of the Board of Assessors of the Town of Middleton ("assessors" or "appellee") to abate taxes on two parcels of real estate in the Town of Middleton owned by and assessed to Howard D. Haynes ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal years 2007, 2008, and 2009 for the improved parcel located at 11 Averill Road and for fiscal years 2008 and 2009 for the improved parcel located at 9 Averill Road (collectively, "fiscal years at issue").
Commissioner Egan heard these appeals. Chairman Hammond and Commissioners Scharaffa, Rose, and Mulhern joined her in decisions for the appellant in docket numbers F294631 and F303547, which relate to the 11 Averill Road property for fiscal years 2008 and 2009, respectively, and decisions for the appellee in docket numbers F291427, F294630, and F303548, which relate to the 11 Averill Road property for fiscal year 2007 and to the 9 Averill Road property for fiscal years 2008 and 2009, respectively.
These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

Mark F. Murphy, Esq. for the appellant.

James F. Sullivan, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
On January 1, 2006, 2007, and 2008, the appellant was the assessed owner of a parcel of real estate located at 11 Averill Road in the Town of Middleton and, on January 1, 2007 and January 1, 2008, was also the assessed owner of a parcel of real estate located at 9 Averill Road in Middleton (collectively, "subject properties"). The 11 Averill Road parcel contains approximately 4.18 acres of land and is improved with a two-family home ("11 Averill Road property"). The 9 Averill Road parcel contains approximately 1.86 acres of land and is also improved with a two-family home ("9 Averill Road property"). The relevant assessment information for the subject properties for the fiscal years at issue is contained in the following two tables.
11 Averill Road Property

Docket Number Fiscal Year Assessment Tax Rate/$1,000 Tax Assessed*
F291427 2007 $595,600 $ 9.81 $5,842.84
F294631 2008 $687,400 $ 9.69 $6,660.91
F303547 2009 $575,200 $10.99 $6,321.45
*The tax assessed does not include a Community Preservation Act ("CPA") tax of $56.92 for fiscal year 2008 and $52.22 for fiscal year 2009. There was no CPA tax for fiscal year 2007.

9 Averill Road Property
Docket Number Fiscal Year Assessment Tax Rate/$1,000 Tax Assessed*
F294630 2008 $611,500 $ 9.69 $5,925.44
F303548 2009 $507,200 $10.99 $5,574.13
*The tax assessed does not include a CPA tax of $49.56 for fiscal year 2008 and $44.75 for fiscal year 2009.

The pertinent payment and other jurisdictional information, including relevant filing dates, for the subject properties for the fiscal years at issue are contained in the following two tables.
11 Averill Road Property

Docket Number Fiscal Year Tax Bill Mailed Tax Payment Abatement Application Assessors'
Denial Petition to Board
F291427 2007 12/29/2006 timely 02/01/2007 03/27/2007 06/21/2007
F294631 2008 12/31/2007 timely 01/30/2008 03/11/2008 05/01/2008
F303547 2009 12/31/2008 timely 01/28/2009 04/28/2009 07/10/2009

9 Averill Road Property
Docket Number Fiscal Year Tax Bill Mailed Tax Payment Abatement Application Assessors'
Denial Petition to Board
F294630 2008 12/31/2007 timely 01/30/2008 03/11/2008 05/01/2008
F303548 2009 12/31/2008 timely 01/28/2009 04/28/2009 07/10/2009

Based on these facts and in accordance with G.L. c. 59, §§ 57C, 59, and 64 and 65, the Appellate Tax Board ("Board") found and ruled that it had jurisdiction over these appeals.
At the hearing of these appeals, the appellant argued that the subject properties were overvalued. He attempted to prove this contention through the testimony of a licensed real estate appraiser, Rebecca Kilborn of Kilborn Property Consultants, whom the Board qualified, over the objection of the assessors' counsel, as a real estate valuation expert for purposes of these appeals. The appellant also introduced numerous exhibits into evidence, including Ms. Kilborn's summary appraisal reports.
In support of the assessments, the assessors presented their case-in-chief through the testimony of three witnesses, namely, their licensed real estate appraiser, Scott McKeen of Grasso Appraisal Services, Inc., whom the Board also qualified, without objection, as a real estate valuation expert for purposes of these appeals, Brad Swanson, Middleton's assistant assessor and Patricia Ohlson, a member of the assessors. In addition, the assessors entered various documents into evidence, including Mr. McKeen's general purpose appraisal reports and all necessary jurisdictional documents. At the hearing, the 11 Averill Road property was tried first, followed by the 9 Averill Road property. Based on this record, a summary of the salient evidence relating to both subject properties and then to each property individually, as well as the Board's subsidiary and ultimate findings of fact for each, follow.
I. Introduction
Middleton is located in the northeastern section of the Commonwealth, about twenty miles north of Logan International Airport. Middleton is bordered by North Andover to the north, North Reading and Lynnfield to the west, Peabody and Danvers to the south, and Boxford and Topsfield to the east. Middleton contains approximately 14.28 square miles and had a population approaching 7,000 persons as of 2000. The town is conveniently located between Routes 1 and I-495 with access to I-95 and Route 1 via state Routes 62 and 114, as well as access to I-495 via state Route 114.
Middleton, which was originally part of Salem Village, was incorporated in 1728. It is so named because it lies halfway between the Andover/Lawrence area and Salem. Once a farming community, Middleton is now predominantly residential with commercial and retail establishments along the Route 114 corridor.
The subject properties are located on Averill Road, which is situated off School Street in the northern section of town. The area is rural with considerable open space and wetland. Averill Road is an approximately one-quarter-mile-long, cul-de-sac with a mix of single-family and two-family homes, which were built within the past twenty years.
According to Ms. Kilborn, the appellant's real estate valuation expert, the area real estate market for two-family properties about the size of the subject properties began to decline toward the latter part of 2005. Mr. McKeen, the assessors' real estate valuation expert, believed that this market was stable between 2005 and 2006 and did not begin its decline until 2007.
II. 11 Averill Road Property
Description
The 11 Averill Road property's home is a center entrance, two-family, two-story, Colonial-style, side-by-side, duplex house located on a 4.18-acre parcel. The parcel contains extensive wetlands and, because of its composition and conservation restrictions, only about one-half acre is buildable. The appellant constructed the dwelling on this parcel in 2004 only after obtaining a special permit from Middleton's Zoning Board of Appeals and an Order of Condition from the Massachusetts Department of Environmental Protection, which limited his ability to fully utilize much of the parcel. The parcel's topography slopes slightly from the front to the back, and it is heavily wooded providing significant privacy and a natural setting. The area around the duplex has average landscaping and paved parking areas adjacent to each side of the duplex.
The subject duplex contains two equally sized living areas of 1,258 square feet each, plus two eleven-by-thirteen-foot screened porches attached to each side of the duplex in the back of the house, as well as a 36-square-foot shared front entry. Each side also has an unfinished full basement and an unfinished attic. The duplex's exterior siding is vinyl, and the roof is finished with asphalt shingles. Each unit has an identical layout of an eat-in kitchen with a bar area, a living room, one half bathroom, and a family room on the first floor, plus two bedrooms and a full bathroom on the second level. The interior is finished with painted sheetrock walls and ceilings, carpeted floors and stairs, and several rooms with recessed lighting. There are no fireplaces, but there is a cathedral ceiling and skylight in the family room on each side. The utilities servicing the duplex include propane gas and private water and septic. The electric line is underground. Each of the units in the duplex has its own heating, electrical, and air-conditioning systems and meters. The duplex is in overall good condition with no items of deferred maintenance.
Appellant's Real Estate Valuation Expert
Ms. Kilborn determined that the highest and best use of the 11 Averill Street property for the fiscal years at issue was its existing use as a two-family residential property. To estimate its fair cash value, she relied principally on a sales-comparison approach. For fiscal year 2007, she selected, and applied some adjustments to, four purportedly comparable properties located at: 2-4 Summer Street in Andover (Sale 1); 265-267 Middlesex Street in North Andover (Sale 2); 25 Clark Street in Danvers (Sale 3); and 7-9 Washington Street in Andover (Sale 4). She did not select any comparable sales from Middleton because she claimed none existed. The following two tables contain a summary of her sales-comparison methodology for fiscal year 2007.

11 Averill Road Property
Fiscal Year 2007
Sales 1 & 2
Subject Sale 1 Adj ($) Sale 2 Adj ($)
11
Averill Rd
Middleton
2-4
Summer St
Andover 265-267
Middlesex
No Andover
Proximity (miles) 9 miles 10 miles
Sale Price ("SP") $595,600* $492,000 $473,000
SP/Gross Living
Area ("LV")

$164.00

$178.80
Date of Sale 01/01/2006** 03/31/2005 -16,400 07/11/2005
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 5,520 SF 4,792 SF
Year Built 2004 1893-updates 1900-updates
Condition Good Good +5,000 Good +5,000
Bedrooms 2 & 2 3 & 3 2 & 3
Baths 1½ & 1½ 1½ & 1½ 1 & 1
Finished LA 2,552 SF 3,000 SF -13,440 2,855 SF -9,090
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes No Enclosed Porch
Garage/Carport No 1-Car Garage -5,000 2-Car Garage -10,000
Patio/Deck No No Deck
Comments Duplex Duplex

Net Adjustment ($) -29,840 -14,090
Adj Sale Price $462,160 $458,910

*Assessed Value
**Valuation Date

11 Averill Road Property
Fiscal Year 2007
Sales 3 & 4

Subject Sale 3 Adj ($) Sale 4 Adj ($)
11
Averill Rd
Middleton
25
Clark St
Danvers 7-9
Washington
Andover
Proximity (miles) 6 miles 9 miles
Sale Price ("SP") $595,600* $445,000 $442,500
SP/Gross Living
Area ("LV")

$184.42
$201.50
Date of Sale 01/01/2006** 12/16/2005 12/23/2005
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 7,550 SF 7,160 SF
Year Built 2004 1900-updated 1900-updated
Condition Good Good +5,000 Good +5,000
Bedrooms 2 & 2 2 & 2 3 & 3
Baths 1½ & 1½ 2 & 1 1 & 1
Finished LA 2,552 SF 2,413 SF +4,170 2,196 SF +10,680
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes Yes No
Garage/Carport No No 2-Car Garage -10,000
Patio/Deck No Porch Porch
Comments Duplex

Net Adjustment ($) +9,170 +5,680
Adj Sale Price $454,170 $448,180

*Assessed Value
**Valuation Date

Based on this data and placing the most reliance on Sale 1, Ms. Kilborn estimated the value of the 11 Averill Street property at $462,000 for fiscal year 2007.
For fiscal year 2008, Ms. Kilborn selected, and applied some adjustments to, a different set of four purportedly comparable properties located at: 31-33 Phillips Court in North Andover (Sale 1); 50-52 Marblehead Street in North Andover (Sale 2); 25 School Street in Danvers (Sale 3); and 262 Andover Street in North Andover (Sale 4). As in her sales-comparison approach for fiscal year 2007, she did not select any comparable sales from Middleton for fiscal year 2008 because she claimed none existed. The following two tables contain a summary of her sales-comparison methodology for fiscal year 2008.

11 Averill Road Property
Fiscal Year 2008
Sales 1 & 2
Subject Sale 1 Adj ($) Sale 2 Adj ($)
11
Averill Rd
Middleton
31-33
Phillips Ct No Andover 50-52 Marblehead
No Andover
Proximity (miles) 9 miles 10 miles
Sale Price ("SP") $687,400* $421,000 -10,000*** $467,500
SP/Gross Living
Area ("LV")

$171.32

$136.25
Date of Sale 01/01/2007** 05/22/2006 08/28/2006
Location Good Good Average +10,000
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 10,890 SF 10,454 SF
Year Built 2004 1901-updated 1905-updated
Condition Good Good (+5%) +20,550 Good
Bedrooms 2 & 2 3 & 3 3 & 3
Baths 1½ & 1½ 2 & 1 2 & 2
Finished LA 2,552 SF 2,399 SF +4,590 3,431 -26,370
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes No No
Garage/Carport No No 2-Car Garage -10,000
Patio/Deck No Deck Porch
Comments Duplex Duplex Duplex

Net Adjustment ($) +15,140 -26,370
Adj Sale Price $436,140 $441,130

*Assessed Value
**Valuation Date
***Adjusted for a concession at closing

11 Averill Road Property
Fiscal Year 2008
Sales 3 & 4

Subject Sale 3 Adj ($) Sale 4 Adj ($)
11
Averill Rd
Middleton
25
School St
Danvers 262
Andover St
No Andover
Proximity (miles) 6 miles 8 miles
Sale Price ("SP") $687,400* $465,000 $375,000
SP/Gross Living
Area ("LV")

$196.04
$173.93
Date of Sale 01/01/2007** 09/28/2006 06/08/2007 +6,250
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 5,012 SF 12,632 SF
Year Built 2004 1905-updated 1978
Condition Good Good Average (+10%) +37,500
Bedrooms 2 & 2 2 & 3 2 & 2
Baths 1½ & 1½ 1 & 2 1½ & 1½
Finished LA 2,552 SF 2,372 SF +5,400 2,156 SF +11,880
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes No No
Garage/Carport No 2-Car Garage -10,000 No
Patio/Deck No Porch No
Comments Duplex Duplex

Net Adjustment ($) -4,600 +49,380
Adj Sale Price $460,400 $424,380***

*Assessed Value
**Valuation Date
***The Board noted that Ms. Kilborn erred in her calculations with respect to Sale 4. Based on her individual adjustments, the net adjustment and adjusted sale price should be +$55,630 and $430,630, respectively.

Based on this data and relying on all of these sales, including Sale 4 which was a bank sale, Ms. Kilborn estimated the value of the 11 Averill Street property at $440,000 for fiscal year 2008.
For fiscal year 2009, Ms. Kilborn selected, and applied some adjustments to, another set of four purportedly comparable properties located at: 415-417 Winter Street in North Andover (Sale 1); 36 Cherry Street in Danvers (Sale 2); 63 Lawrence Street in Danvers (Sale 3); and 12-14 Summit Street in North Andover (Sale 4). As in her sales-comparison approaches for fiscal years 2007 and 2008, she did not select any comparable sales from Middleton for fiscal year 2009 because she claimed none existed. The following two tables contain a summary of her sales-comparison methodology for fiscal year 2009.
11 Averill Road Property
Fiscal Year 2009
Sales 1 & 2
Subject Sale 1 Adj ($) Sale 2 Adj ($)
11
Averill Rd
Middleton
415-417
Winter St
No Andover 36
Cherry St
Danvers
Proximity (miles) 8 miles 6 miles
Sale Price ("SP") $575,200* $417,000 $405,000
SP/Gross Living
Area ("LV")

$165.22
$149.11
Date of Sale 01/01/2008** 08/31/2007 -8,687 11/30/2007 -3,375
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 44,431 SF 20,865 SF
Year Built 2004 1974 1900
Condition Good Good Good (+5%) +20,250
Bedrooms 2 & 2 3 & 2 2 & 3
Baths 1½ & 1½ 2 & 1 1 & 1
Finished LA 2,552 SF 2,268 SF +8,520 2,716 -4,920
Fireplace No No 2
Separate Utilities Yes Yes Yes
Amenities-A/C Yes No No
Screened Porch Yes Yes Yes
Garage/Carport No 2-Car Garage -10,000 No
Patio/Deck No Deck Porch
Comments Duplex Duplex

Net Adjustment ($) -1,480 +15,330
Adj Sale Price $415,520*** $420,330***

*Assessed Value
**Valuation Date
***The Board noted that Ms. Kilborn erred in her calculations with respect to Sales 1 & 2. Based on her individual adjustments, the net adjustments and adjusted sale prices should be -$10,167 and $406,833, and +$11,955 and $416,955, respectively.

11 Averill Road Property
Fiscal Year 2009
Sales 3 & 4

Subject Sale 3 Adj ($) Sale 4 Adj ($)
11
Averill Rd
Middleton
63
Lawrence St
Danvers 12-14
Summit St
No Andover
Proximity (miles) 7 miles 10 miles
Sale Price ("SP") $575,200* $404,900 -5,000*** $407,000 -5,000***
SP/Gross Living
Area ("LV")

$135.70
$139.10
Date of Sale 01/01/2008** 08/31/2007 -8,312 08/31/2007 -8,375
Location Good Average +10,000 Good
View Neighborhood Neighborhood Neighborhood
Site 19,602 SF (useable) 5,000 SF 10,019 SF
Year Built 2004 1920 1976
Condition Good Good (+5%) +19,950 Good
Bedrooms 2 & 2 2 & 2 3 & 2
Baths 1½ & 1½ 1 & 1 1 & 1½
Finished LA 2,552 SF 2,947 SF -11,850 2,890 SF -10,140
Fireplace No No No
Separate Utilities Yes No Yes
Amenities-A/C Yes No No
Screened Porch Yes No No
Garage/Carport No No 1-Car Garage -5,000
Patio/Deck No Porch/Deck Deck/Patio
Comments Duplex Duplex

Net Adjustment ($) +13,100 -20,140
Adj Sale Price $418,000**** $386,860****

*Assessed Value
**Valuation Date
***Adjusted for a concession at closing
****The Board noted that Ms. Kilborn erred in her calculations with respect to Sales 3 & 4. Based on her individual adjustments, the net adjustments (exclusive of concessions, which is how she did them) and adjusted sale prices should be +$4,788 and $409,688, and -$28,515 and $378,485, respectively.

Based on this data and placing the most reliance on Sale 1, Ms. Kilborn estimated the value of the 11 Averill Street property at $415,000 for fiscal year 2009.
During cross-examination, Ms. Kilborn acknowledged that she assisted the appellant in preparing at least two of the subject abatement applications and all three of the subject petitions. She also conceded that she signed the fiscal year 2008 and 2009 abatement applications and attempted to negotiate a settlement of these appeals on behalf of the appellant with the appraiser in the assessors' office. She further admitted that she prepared and submitted supporting documentation to the assessors' appraiser in furtherance of settlement. Ms. Kilborn also listed herself on the subject petitions as "agent" and contact person for the Board. Her written "Agency Agreement" with the appellant characterizes her relationship with him "as an agent for [Mr. Haynes] in connection with real estate assessment appeal(s) to the Local Tax Assessors or the Appellate Tax Board, regarding [the subject properties]." There was no clear testimony or documentary evidence to show that this Agreement was ever rescinded. The agreement specifically authorizes Ms. Kilborn "to file on behalf of [Mr. Haynes] any documents relating to an appeal of the [subject] assessment[s]." On the basis of these facts, the Board found that, at all material times, including the preparation of her appraisal report for the subject appeals and her testimony before the Board, Ms. Kilborn was acting as the agent of the appellant.
In addition, Ms. Kilborn did not disclose any of her foregoing involvement with the appellant in her summary appraisal reports. Her appraisal report specifically states in her "Certification" section that: "I have no present or prospective interest in the property that is the subject of this report, and no personal interest with respect to the parties involved." Lastly in this regard, Ms. Kilborn testified that the appellant paid her on an hourly basis for completing the abatement applications and petitions but she charged a set amount for the appraisal report for which, at the time of the hearing, the appellant had not yet paid. There was no evidence pertaining to any fees or payments for her time spent seeking the settlement of, or for testifying in, these appeals. From the record, the Board could not determine if any fees applied for the performance of these activities and services, but inferred from the business setting and the relationship between the appellant and Ms. Kilborn that some fee likely did attach, but that Ms. Kilborn had not been paid for them before testifying.
The parties agreed and the Board found that Ms. Kilborn was similarly involved with the abatement application, settlement, petition, and hearing process for the 9 Averill Road property.
Assessors' Real Estate Valuation Expert
The assessors' real estate valuation witness, Mr. McKeen, also determined that the 11 Averill Street property's highest and best use was its continued use as a two-family residential dwelling. Like Ms. Kilborn, he relied primarily on a sales-comparison approach for estimating the value of the 11 Averill Street property for the fiscal years at issue. Unlike Ms. Kilborn, however, he found and incorporated sales of two-family dwellings from Middleton into his methodology for fiscal years 2008 and 2009. For fiscal year 2007, his six purportedly comparable properties include: three two-family properties located at 12-14 Berkley Street in North Andover (Sale 1), 31 Bradstreet Avenue in Danvers (Sale 2), and 7 Chase Street in Danvers (Sale 3); plus three single-family properties, all of which are located in Middleton at 5 Watkins Way (Sale 4), 234 Essex Street (Sale 5), and 10 Stanley Road (Sale 6). He included certain single-family properties in his methodology because he speculated that they were in competition with hypothetical sales of the subject properties. In other words, buyers considering the purchase of the subject properties would likely compare them to certain nearby single-family properties. The following two tables contain a summary of his sales-comparison methodology for fiscal year 2007.

11 Averill Road Property
Fiscal Year 2007
Sales 1, 2 & 3

Feature Subject Sale 1 Adj ($) Sale 2 Adj ($) Sale 3 Adj ($)
11
Averill Rd
Middleton
12-14 Berkley St
No Andover 31 Brad- street St
Danvers 7
Chase St
Danvers
Proximity (+/-) 4 miles 7 miles 6 miles
Sale Price ("SP") $595,600* $615,000 $530,000 $537,000
SP/Gross Bldg Area ("GBA") $193.70/SF $212.51/SF $184.28/SF
Concessions None None None
Date of Sale 01/01/2006** 06/25/2006 10/12/2005 05/31/2005
Location Good Superior -25,000 Inferior +75,000 Inferior +75,000
Site 182,005 SF 10,019 SF +50,000 11,792 SF +50,000 9,400 SF +50,000
View Nbhd*** Nbhd Nbhd Nbhd
Design 2 Family 2 Family 2 Family 2 Family
Construction Quality Average Average Average Average
Age (+/-) 5 years 26 years 55 years 107 years
Condition Good Inferior +25,000 Inferior +25,000 Inferior +25,000
GBA 2,550 SF 3,175 SF -25,000 2,494 SF 2,914 SF -14,600
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 4/2/1
6/3/2 +3,000
-2,000 8/3/2
4/2/1 -2,000
+3,000 7/4/2
4/2/1 -2,000
+3,000
Basement Full Full Full Full
Finished Basement Unfinished Unfinished Part/Bath -20,000 Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FHW/None +5,000 FHW/None +5,000
Parking Driveway Driveway Driveway 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck +500 Deck +500 Deck/Porch -500
Amenities None Fireplaces -3,000 None None
None None None None

Net Adjustment ($) +28,500 +136,500 +130,900
Adj Sale Price $643,500 $666,500 $667,900

*Assessed Value
**Valuation Date
***Neighborhood

11 Averill Road Property
Fiscal Year 2007
Sales 4, 5 & 6

Feature Subject Sale 4 Adj ($) Sale 5 Adj ($) Sale 6 Adj ($)
11
Averill Rd
Middleton
5
Watkins Way
Middleton 234
Essex St
Middleton 10
Stanley Rd
Middleton
Proximity (+/-) 1.5 miles 1 mile 0.75 miles
Sale Price ("SP") $595,600* $660,000 $739,000 $650,000
SP/Gross Bldg Area ("GBA") $244.44/SF $208.23/SF $243.45/SF
Concessions None None None
Date of Sale 01/01/2006** 07/27/2005 07/14/2005 11/23/2005
Location Good Good Good Good
Site 182,005 SF 87,120 SF +12,500 59,400 SF +25,000 46,174 SF +25,000
View Nbhd*** Nbhd Nbhd Nbhd
Design 2 Family 1 Family 1 Family 1 Family
Construction Quality Average Average Average Average
Age (+/-) 5 years 11 years 1 year 13 years
Condition Good Inferior +12,500 Good Inferior +12,500
GBA 2,550 SF 2,700 SF -6,000 3,549 SF -40,000 2,670 SF
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 9/3/2.5 -5,000
+8,000 9/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000
Basement Full Full Full Full
Finished Basement Unfinished Unfinished Unfinished Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FWA C/Air FWA C/Air FHW/None
Parking Driveway 2-Car Garage -10,000 2-Car Garage -10,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck +500 Deck +500 Deck/Porch -500
Amenities None Fireplace -1,500 2 Fireplaces -3,000 2 Fireplaces -3,000
None None None None

Net Adjustment ($) +11,000 -24,500 +27,000
Adj Sale Price $671,000 $714,500 $677,000

*Assessed Value
**Valuation Date
***Neighborhood

Based on the adjusted values ascribed to the three sales of two-family properties in the neighboring communities of North Andover and Danvers and the adjusted values assigned to the sales of the single-family properties near the 11 Averill Road property's neighborhood in Middleton, Mr. McKeen estimated the value of the 11 Averill Road property at $644,000 for fiscal year 2007.
For fiscal year 2008, Mr. McKeen's six purportedly comparable properties include: two two-family properties located in Middleton at 36 East Street (Sale 1) and 47 Lake Street (Sale 2); another two-family property located in Danvers at 33 Park Street (Sale 3); plus three single-family properties, located in Middleton at 58 Mill Street (Sale 4), 3 Jersey Lane (Sale 5), and 6 Northwood Road (Sale 6). The following two tables contain a summary of his sales-comparison methodology for fiscal year 2008.
11 Averill Road Property
Fiscal Year 2008
Sales 1, 2 & 3

Feature Subject Sale 1 Adj $ Sale 2 Adj $ Sale 3 Adj $
11
Averill Rd
Middleton
36
East St
Middleton 47
Lake St
Middleton 33
Park St
Danvers
Proximity (+/-) 1.75 miles 1.5 miles 6.5 miles
Sale Price ("SP") $687,400* $875,000 $600,000 $499,900
SP/Gross Bldg Area ("GBA") $188.90/SF $227.79/SF $149.94/SF
Concessions None None None
Date of Sale 01/01/2007** 05/11/2006 11/30/2006 09/29/2006
Location Good Traffic +25,000 Good Inferior +125,000
Site 182,005 SF 162,914 SF 44,867 SF*** +50,000 6,000 SF +50,000
View Nbhd*** Nbhd Part Water -25,000 Nbhd
Design 2 Family 2 Family 2 Family 2 Family
Construction Quality Average Average Average Average
Age (+/-) 5 years 25 years 78 years 107 years
Condition Good Slight Inf +12,500 Inferior +25,000 Inferior +25,000
GBA 2,550 SF 4,632 SF -84,600 2,634 SF 3,334 SF -32,700
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 10/3/3
4/2/2 -7,000
-2,000 4/1/2
7/3/2 -2,000
-2,000 8/5/1.5
6/3/1
+3,000
Basement Full Full Full Full
Finished Basement Unfinished Pt Fin/Bth -20,000 Part Finish -15,000 Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FHW/None +5,000 FHA/None +5,000
Parking Driveway 2-Car Garage -10,000 3-Car Garage -15,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck/Porch -500 Decking +500 Wrap @ Porch
Amenities None Fireplace -1,500 None None
None Barn/Pat/IGPI -35,000 None None

Net Adjustment ($) -118,100 +21,500 +165,300
Adj Sale Price $756,900 $621,500 $665,200

*Assessed Value
**Valuation Date
***Also Steeply Sloped
****Neighborhood

11 Averill Road Property
Fiscal Year 2008
Sales 4, 5 & 6

Feature Subject Sale 4 Adj ($) Sale 5 Adj ($) Sale 6 Adj ($)
11
Averill Rd
Middleton
58
Mill St
Middleton 3
Jersey Ln
Middleton 6
Northwood Rd
Middleton
Proximity (+/-) 1 mile 3 miles 2.75 miles
Sale Price ("SP") $687,400* 690,000 685,000 679,800
SP/Gross Bldg Area ("GBA") $255.56/SF $255.88/SF $247.29/SF
Concessions None None None
Date of Sale 01/01/2007** 05/26/2006 10/20/2006 08/15/2006
Location Good Good Good Good
Site 182,005 SF 40,685 SF +25,000 43,821 SF +25,000 43,357 SF +25,000
View Nbhd*** Nbhd Nbhd Nbhd
Design 2 Family 1 Family 1 Family 1 Family
Construction Quality Average Average Average Average
Age (+/-) 5 years 7 years 11 years 21 years
Condition Good Good Slight Inf +12,500 Slight Inf +12,500
GBA 2,550 SF 2,700 SF 2,677 SF 2,749 SF
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 9/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000
Basement Full Full Full Full
Finished Basement Unfinished Part Finish -15,000 Part Finish -15,000 Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FWA C/Air FWA C/Air FWA C/Air
Parking Driveway 2-Car Garage -10,000 2-Car Garage -10,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck +500 Deck +500 Deck/Porch -500
Amenities None Fireplace -1,500 Fireplace -1,500 Fireplace -1,500
None Pat/IGPI -20,000 None Pat/IGPI -20,000

Net Adjustment ($) -18,000 +14,500 +8,500
Adj Sale Price $672,000 699,500 688,300

*Assessed Value
**Valuation Date
***Neighborhood

Based on the adjusted values ascribed to the two sales of two-family properties in Middleton and the adjusted value assigned to the sale of the two-family property in Danvers, as well as the adjusted values attributed to the three sales of the single-family properties in Middleton, Mr. McKeen estimated the value of the 11 Averill Road property at $665,000 for fiscal year 2008, $22,400 less than the assessed value of $687,400.
For fiscal year 2009, Mr. McKeen's five purportedly comparable properties include: three two-family properties located in Middleton at 75 South Main Street (Sale 1), 47 Lake Street (Sale 2), and 36 East Street (Sale 3); plus two single-family properties, also located in Middleton at 6 Averill Road (Sale 4) and 29 Watkins Way (Sale 5). Mr. McKeen had used the two-family properties located at 47 Lake Street and 36 East Street in Middleton in his sales-comparison methodology for fiscal year 2008. The following two tables contain a summary of his sales-comparison methodology for fiscal year 2009.
11 Averill Road Property
Fiscal Year 2009
Sales 1, 2 & 3

Feature Subject Sale 1 Adj ($) Sale 2 Adj ($) Sale 3 Adj ($)
11
Averill Rd
Middleton
75
So Main St
Middleton 47
Lake St
Middleton 36
East St
Middleton
Proximity (+/-) 2.25 miles 1.5 miles 1.75 miles
Sale Price ("SP") $575,200* $465,000 $600,000 $875,000
SP/Gross Bldg Area ("GBA") $179.95/SF $227.79/SF $188.90/SF
Concessions None None None
Date of Sale 01/01/2008** 06/22/2007 -23,200 11/30/2006 -60,000 05/11/2006 -87,500
Location Good Inferior +75,000 Good Good/Traffic +25,000
Site 182,005 SF 40,075 SF +25,000 44,867 SF*** +50,000 162,914 SF
View Nbhd**** Nbhd Part Water -25,000 Nbhd
Design 2 Family 2 Family 2 Family 2 family
Construction Quality Average Average Average Average
Age (+/-) 5 years 242 years 78 years 25 years
Condition Good Inferior +25,000 Inferior +25,000 Slight Inf +12,500
GBA 2,550 SF 2,584 SF 2,634 SF 4,632 SF -83,300
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 5/1/1
6/3/1.5 +3,000 4/1/2
7/3/2 -2,000
-2,000 10/3/3
4/2/2 -7,000
-2,000
Basement Full Partial Nominal Full Full
Finished Basement Unfinished Unfinished Part Finish -15,000 Part/Bath -20,000
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FHW/None +5,000 FHW/None +5,000
Parking Driveway 1-Car Barn -7,500 3-Car Garage -15,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Porch +500 Decking +500 Deck/Porch -1,000
Amenities None 4 Fireplaces -6,000 None Fireplace -1,500
None Pat/IGPI -20,000 None Barn/Pat/IGPI -35,000

Net Adjustment ($) +76,800 -38,500 -204,800
Adj Sale Price $541,800 $561,500 $670,200

*Assessed Value
**Valuation Date
***Also Steeply Sloped
****Neighborhood

11 Averill Road Property
Fiscal Year 2009
Sales 4 & 5

Feature Subject Sale 4 Adj ($) Sale 5 Adj ($)
11
Averill Rd
Middleton
6
Averill Rd
Middleton 29
Watkins Way
Middleton
Proximity (+/-) 0.15 miles 1.5 miles
Sale Price ("SP") $575,200* $615,000 $670,000
SP/Gross Bldg Area ("GBA") $243.66/SF $262.54/SF
Concessions None None
Date of Sale 01/01/2008** 07/26/2007 -25,600 07/31/2007 -27,900
Location Good Good Good
Site 182,005 SF 46,174 SF +25,000 87,120 SF +12,500
View Nbhd*** Nbhd Nbhd
Design 2 Family 1 Family 1 Family
Construction Quality Average Average Average
Age (+/-) 5 years 20 years 18 years
Condition Good Slight Inf +12,500 Slight Inf +12,500
GBA 2,550 SF 2,524 SF 2,552 SF
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 8/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000
Basement Full Full Full
Finished Basement Unfinished Part Finish -15,000 Part Fin/Bath -20,000
Functional Utility Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FWA C/Air
Parking Driveway 2-Car Garage -10,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck/Scrn Pch/Pch -2,000 Deck +500
Amenities None 2 Fireplaces -3,000 Fireplace -1,500
None None None
Net Adjustment ($) -10,100 -30,900
Adj Sale Price $604,900 $639,100

*Assessed Value
**Valuation Date
***Neighborhood

Based on the adjusted values ascribed to the three sales of two-family properties in Middleton, as well as the adjusted values attributed to the two sales of the single-family properties in Middleton, Mr. McKeen estimated the value of the 11 Averill Road property at $565,000 for fiscal year 2009, $10,200 less than the assessed value of $575,200.
Assessors' Other Witnesses
In addition to Mr. McKeen, Bradford Swanson, the assistant assessor in Middleton and Patricia Ohlson, a member of the assessors, testified. They credibly debunked Ms. Kilborn's purportedly comparable properties and her methodology by pointing out these properties' many different characteristics compared to the 11 Averill Road property, particularly with respect to neighborhood and other locational features and Ms. Kilborn's failure to adequately account for these differences in her methodology, assuming comparability.
Summary of Assessments & Estimated Values for 11 Averill Road Property

The following table summarizes the 11 Averill Road property's assessments and its values as estimated by Ms. Kilborn and Mr. McKeen for the fiscal years at issue.
Assessments & Estimated Values for the 11 Averill Road Property
FY 2007 FY 2008 FY 2009
Assessed Values ($) 595,600 687,400 575,200
Ms. Kilborn's Values ($) 462,000 440,000 415,000
Mr. McKeen's Values ($) 644,000 665,000 565,000

Board's Analysis
Based on all of the evidence, the Board found that the 11 Averill Road property was not overvalued by the assessors for fiscal year 2007, but was overvalued for fiscal years 2008 and 2009. In making these findings the Board primarily relied on Mr. McKeen's comparable-sales methodology and his estimates of value. In particular, the Board found that his comparable two-family sales, particularly those located in Middleton, more closely reflected the 11 Averill Road property's characteristics than Ms. Kilborn's purportedly comparable two-family properties, situated in predominantly congested locales in area communities. The Board also found that Mr. McKeen's adjustments and estimates of value were reasonable and sufficiently supported, while Ms. Kilborn's were not.
The Board further found that Ms. Kilborn's methodology contained numerous mathematical errors and inconsistencies that detracted from its reliability. Ms. Kilborn also failed to include any sales from Middleton in her analysis, which further diminished her methodology's reliability. Moreover, the Board found that Ms. Kilborn's credibility as an independent fee appraiser was compromised by her continuing agency relationship with the appellant, which created bias.
Accordingly, and relying extensively on Mr. McKeen's data and analysis as the best evidence of value, the Board found that the 11 Averill Road property was not overvalued by the assessors for fiscal year 2007 and decided that appeal for the appellee. The Board further found, however, again principally based on Mr. McKeen's analysis, that the 11 Averill Road property's fair cash values for fiscal years 2008 and 2009 were $665,000 and $565,000, respectively, resulting in overvaluations by the assessors of $22,400 for fiscal year 2008 and $10,200 for fiscal year 2009. The Board, therefore, decided those two appeals for the appellant and granted abatements in the amount of $219.23 and $113.22, respectively.
III. 9 Averill Road Property
Description
The 9 Averill Road property's home, which is similar to the 11 Averill Road property's home, is a center entrance, two-family, two-story, Colonial-style, side-by-side, duplex house located on 1.86 acres. The appellant built the dwelling on this parcel in 1990. The parcel's topography slopes slightly from the front to the back, and its configuration is irregular. The area around the duplex has average landscaping and paved parking areas adjacent to each side of the duplex.
The subject duplex contains two equally sized living areas of 1,184 square feet each, plus two twelve-by-fourteen-foot screened porches attached to each side of the duplex in the back of the house, and a 36-square-foot shared front entry. Each side also has an unfinished full basement and an unfinished attic. The duplex's exterior siding is wood clapboard, and the roof is finished with asphalt shingles. Each unit has an identical layout of an eat-in kitchen with a bar area, a living room, one half bathroom, and a family room on the first floor plus two bedrooms and a full bathroom on the second level. The interior is finished with painted sheetrock walls and ceilings, carpeted floors and stairs, plus some vinyl flooring in the kitchen and bathrooms, and several rooms with recessed lighting. There are no fireplaces, but there is a cathedral ceiling and skylight in the family room on each side. The utilities servicing the duplex include propane gas and private water and septic. The electric line is underground. Each of the two units in the duplex has its own heating, electrical, and air-conditioning systems and meters. The duplex is in overall good condition with no items of deferred maintenance.
Appellant's Real Estate Valuation Expert
As with the 11 Averill Road property, Ms. Kilborn determined that the highest and best use of the 9 Averill Street property for the fiscal years at issue was its existing use as a two-family residential property. To estimate its fair cash value, she again relied principally on a sales-comparison approach. For fiscal year 2008, she selected, and applied some adjustments to, the same four purportedly comparable properties that she used in her sales-comparison analysis for 11 Averill Road. These properties are located at: 31-33 Phillips Court in North Andover (Sale 1); 50-52 Marblehead Street in North Andover (Sale 2); 25 School Street in Danvers (Sale 3); and 262 Andover Street in North Andover (Sale 4). She did not select any comparable sales from Middleton because she claimed none existed. The following two tables contain a summary of her sales-comparison methodology for fiscal year 2008.
9 Averill Road Property
Fiscal Year 2008
Sales 1 & 2
Subject Sale 1 Adj ($) Sale 2 Adj ($)
9
Averill Rd
Middleton
31-33
Phillips Ct No Andover 50-52
Marblehead
No Andover
Proximity (miles) 9 miles 10 miles
Sale Price ("SP") $611,500* $421,000 -10,000*** $467,500
SP/Gross Living
Area ("LV")

$171.32

$136.25
Date of Sale 01/01/2007** 05/22/2006 08/28/2006
Location Good Good Average +10,000
View Neighborhood Neighborhood Neighborhood
Site 81,022 SF 10,890 SF 10,454 SF
Year Built 1990 1901-updated 1905-updated
Condition Good Good (+5%) +20,550 Good
Bedrooms 2 & 2 3 & 3 3 & 3
Baths 1½ & 1½ 2 & 1 2 & 2
Finished LA 2,404 SF 2,399 SF +3,960 3,431 -30,810
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes No No
Garage/Carport No No 2-Car Garage -10,000
Patio/deck No Deck Porch
Comments Duplex Duplex Duplex

Net Adjustment ($) +14,510 -30,810
Adj Sale Price $435,510 $436,690

* Assessed Value
** Valuation Date
***Adjusted for a concession at closing

9 Averill Road
Fiscal Year 2008
Sales 3 & 4

Subject Sale 3 Adj ($) Sale 4 Adj ($)
9
Averill Rd
Middleton
25
School St
Danvers 262
Andover St
No Andover
Proximity (miles) 6 miles 8 miles
Sale Price ("SP") $611,500* $465,000 $375,000
SP/Gross Living
Area ("LV")

$196.04
$173.93
Date of Sale 01/01/2007** 09/28/2006 06/08/2007 +6,250
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 81,022 SF 5,012 SF 12,632 SF
Year Built 1990 1905-updated 1978
Condition Good Good Average (+10%) +37,500
Bedrooms 2 & 2 2 & 3 2 & 2
Baths 1½ & 1½ 1 & 2 1½ & 1½
Finished LA 2,404 SF 2,372 SF +960 2,156 SF +7,440
Fireplace No No No
Separate Utilities Yes Yes Yes
Screened Porch Yes No No
Garage/Carport No 2-Car Garage -10,000 No
Patio/deck No Porch No
Comments Duplex Duplex

Net Adjustment ($) -9,040 +44,940
Adj Sale Price $455,960 $419,940***

* Assessed Value
** Valuation Date
***The Board noted that Ms. Kilborn erred in her calculations with respect to Sale 4. Based on her individual adjustments, the net adjustment and adjusted sale price should be +$51,190 and $426,190, respectively.

Based on this data and relying on all of these sales, including Sale 4, which was a bank sale, Ms. Kilborn estimated the value of the 9 Averill Street property at $435,000 for fiscal year 2008.
For fiscal year 2009, Ms. Kilborn selected, and applied some adjustments to, the same four purportedly comparable two-family properties that she used in estimating the value for the 11 Averill Road property. These properties are located at: 415-417 Winter Street in North Andover (Sale 1); 36 Cherry Street in Danvers (Sale 2); 63 Lawrence Street in Danvers (Sale 3); and 12-14 Summit Street in North Andover (Sale 4). She did not select any comparable sales from Middleton because she claimed none existed. The following two tables contain a summary of her sales-comparison methodology for fiscal year 2009.
9 Averill Road Property
Fiscal Year 2009
Sales 1 & 2
Subject Sale 1 Adj ($) Sale 2 Adj ($)
9
Averill Rd
Middleton
415-417
Winter St
No Andover 36
Cherry St
Danvers
Proximity (miles) 8 miles 6 miles
Sale Price ("SP") $507,200* $417,000 $405,000
SP/Gross Living Area ("LV")

$165.22
$149.11
Date of Sale 01/01/2008** 08/31/2007 -8,687 11/30/2007 -3,375
Location Good Good Good
View Neighborhood Neighborhood Neighborhood
Site 81,022 SF 44,431 SF 20,865 SF
Year Built 1990 1974 1900
Condition Good Good Good (+5%) +20,250
Bedrooms 2 & 2 3 & 2 2 & 3
Baths 1½ & 1½ 2 & 1 1 & 1
Finished LA 2,404 SF 2,268 SF +4,080 2,716 -9,360
Fireplace No No 2
Separate Utilities Yes Yes Yes
Screened Porch Yes Yes Yes
Garage/Carport No 2-Car Garage -10,000 No
Patio/deck No Deck Porch
Comments Duplex Duplex

Net Adjustment ($) -5,920 +10,890
Adj Sale Price $411,0800*** $415,890***

* Assessed Value
** Valuation Date
*** The Board noted that Ms. Kilborn erred in her calculations with respect to Sales 1 & 2. The net adjustments and adjusted sale prices should be -$14,607 and $402,393, and +$7,515 and $412,515, respectively.

9 Averill Road Property
Fiscal Year 2009
Sales 3 & 4

Subject Sale 3 Adj ($) Sale 4 Adj ($)
9
Averill Rd
Middleton
63
Lawrence St
Danvers 12-14
Summit St
No Andover
Proximity (miles) 7 miles 10 miles
Sale Price ("SP") $507,200* $404,900 -5,000*** $407,000 -5,000***
SP/Gross Living Area ("LV")

$135.70
$139.10
Date of Sale 01/01/2008** 08/31/2007 -8,312 08/31/2007 -8,375
Location Good Average +10,000 Good
View Neighborhood Neighborhood Neighborhood
Site 81,022 SF 5,000 SF 10,019 SF
Year Built 1990 1920 1976
Condition Good Good (+5%) +19,950 Good
Bedrooms 2 & 2 2 & 2 3 & 2
Baths 1½ & 1½ 1 & 1 1 & 1½
Finished LA 2,404 SF 2,947 SF -16,290 2,890 SF -14,580
Fireplace No No No
Separate Utilities Yes No Yes
Screened Porch Yes No No
Garage/Carport No No 1-Car Garage -5,000
Patio/deck No Porch/Deck Deck/Patio
Comments Duplex Duplex

Net Adjustment ($) +13,660 -19,580
Adj Sale Price $413,560**** $382,420****

* Assessed Value
** Valuation Date
***Adjusted for a concession at closing
****The Board noted that Ms. Kilborn erred in her calculations with respect to Sales 3 & 4. Based on her individual adjustments, the net adjustments (exclusive of concessions which is how she calculated them) and adjusted sale prices should be +$5,348 and $405,248, and -$27,955 and $374,045, respectively.

Based on this data and placing the most reliance on Sale 1, Ms. Kilborn estimated the value of the 9 Averill Street property at $415,000 for fiscal year 2009.
Assessors' Real Estate Valuation Expert
As with the 11 Averill Road property, the assessors' real estate valuation witness, Mr. McKeen, also determined that the 9 Averill Street property's highest and best use was its continued use as a two-family residential dwelling. Like Ms. Kilborn, he too relied on essentially the same sales-comparison approach that he used for estimating the value of the 11 Averill Street property to value the 9 Averill Road property for the fiscal years at issue. Unlike Ms. Kilborn, however, he found and incorporated sales of two-family dwellings from Middleton into his methodology for both fiscal years 2008 and 2009.
For fiscal year 2008, Mr. McKeen used the same six purportedly comparable properties that he used to value the 11 Averill Road property. These properties include two two-family properties located in Middleton at 36 East Street (Sale 1) and 47 Lake Street (Sale 2), another two-family property located in Danvers at 33 Park Street (Sale 3), plus three single-family properties, located in Middleton at 58 Mill Street (Sale 4), 3 Jersey Lane (Sale 5), and 6 Northwood Road (Sale 6). The following two tables contain a summary of his sales-comparison methodology for fiscal year 2008.

9 Averill Road Property
Fiscal Year 2008
Sales 1, 2 & 3

Feature Subject Sale 1 Adj $ Sale 2 Adj $ Sale 3 Adj $
9
Averill Rd
Middleton
36
East St
Middleton 47
Lake St
Middleton 33
Park St
Danvers
Proximity (+/-) 1.75 miles 1.5 miles 6.5 miles
Sale Price ("SP") $611,500* $875,000 $600,000 $499,900
SP/Gross Bldg Area ("GBA") $188.90/SF $227.79/SF $149.94/SF
Concessions None None None
Date of Sale 01/01/2007** 05/11/2006 11/30/2006 09/29/2006
Location Good Traffic +25,000 Good Inferior +100,000
Site 81,022 SF 162,914 SF -25,000 44,867 SF*** +37,500 6,000 SF +50,000
View Nbhd**** Nbhd Part Water -25,000 Nbhd
Design 2 Family 2 Family 2 Family 2 Family
Construction Quality Average Average Average Average
Age (+/-) 19 years 25 years 78 years 107 years
Condition Good Good Inferior +25,000 Inferior +25,000
GBA 2,516 SF 4,632 SF -84,600 2,634 SF 3,334 SF -32,700
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 10/3/3
4/2/2 -7,000
-2,000 4/1/2
7/3/2 -2,000
-2,000 8/5/1.5
6/3/1
+3,000
Basement Full Full Full Full
Finished Basement Unfinished Pt Fin/Bth -20,000 Part Finish -15,000 Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FHW/None +5,000 FHA/None +5,000
Parking Driveway 2-Car Garage -10,000 3-Car Garage -15,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck/Porch -500 Decking +500 Wrap @ Porch
Amenities None Fireplace -1,500 None None
None Barn/Pat/IGPI -35,000 None None

Net Adjustment ($) -155,600 +9,000 +140,300
Adj Sale Price $719,400 $609,000 $640,200

* Assessed Value
**Valuation Date
*** Also Steeply Sloped
**** Neighborhood

9 Averill Road Property
Fiscal Year 2008
Sales 4, 5 & 6

Feature Subject Sale 4 Adj ($) Sale 5 Adj ($) Sale 6 Adj ($)
9
Averill Rd
Middleton
58
Mill St
Middleton 3
Jersey Ln
Middleton 6
Northwood Rd
Middleton
Proximity (+/-) 1 mile 3 miles 2.75 miles
Sale Price ("SP") $611,500* 690,000 685,000 679,800
SP/Gross Bldg Area ("GBA") $255.56/SF $255.88/SF $247.29/SF
Concessions None None None
Date of Sale 01/01/2007** 05/26/2006 10/20/2006 08/15/2006
Location Good Good Good Good
Site 81,022 SF 40,685 SF +12,500 43,821 SF +12,500 43,357 SF +12,500
View Nbhd*** Nbhd Nbhd Nbhd
Design 2 Family 1 Family 1 Family 1 Family
Construction Quality Average Average Average Average
Age (+/-) 19 years 7 years 11 years 21 years
Condition Good Superior -25,000 Superior -25,000 Good
GBA 2,516 SF 2,700 SF 2,677 SF 2,749 SF
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 9/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000
Basement Full Full Full Full
Finished Basement Unfinished Part Finish -15,000 Part Finish -15,000 Unfinished
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FWA C/Air FWA C/Air FWA C/Air
Parking Driveway 2-Car Garage -10,000 2-Car Garage -10,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck +500 Deck +500 Deck/Porch -500
Amenities None Fireplace -1,500 Fireplace -1,500 Fireplace -1,500
None Pat/IGPI -20,000 None Pat/IGPI -20,000

Net Adjustment ($) -55,500 -35,500 -16,500
Adj Sale Price $634,500 649,500 663,300
* Assessed Value
** Valuation Date
*** Neighborhood

Based on the adjusted values ascribed to the two sales of two-family properties in Middleton and the adjusted values assigned to the sale of the two-family property in Danvers, as well as the adjusted values attributed to the three sales of the single-family properties in Middleton, Mr. McKeen estimated the value of the 9 Averill Road property at $640,000 for fiscal year 2008.
For fiscal year 2009, Mr. McKeen's five purportedly comparable properties are the same properties that he used to estimate the value of the 11 Averill Road property. These properties include three two-family properties located in Middleton at 75 South Main Street (Sale 1), 47 Lake Street (Sale 2), and 36 East Street (Sale 3), plus two single-family properties, also located in Middleton at 6 Averill Road (Sale 4) and 29 Watkins Way (Sale 5). Mr. McKeen also used here the two-family properties located at 47 Lake Street and 36 East Street in Middleton that he had used in his sales-comparison methodology for fiscal year 2008. The following two tables contain a summary of his sales-comparison methodology for fiscal year 2009.
9 Averill Road Property
Fiscal Year 2009
Sales 1, 2 & 3

Feature Subject Sale 1 Adj ($) Sale 2 Adj ($) Sale 3 Adj ($)
9
Averill Rd
Middleton
75
So Main St
Middleton 47
Lake St
Middleton 36
East St
Middleton
Proximity (+/-) 2.25 miles 1.5 miles 1.75 miles
Sale Price ("SP") $507,200* $465,000 $600,000 $875,000
SP/Gross Bldg Area ("GBA") $179.95/SF $227.79/SF $188.90/SF
Concessions None None None
Date of Sale 01/01/2008** 06/22/2007 -23,000 11/30/2006 -60,000 05/11/2006 -87,500
Location Good Inferior +75,000 Good Good/Traffic +25,000
Site 81,022 SF 40,075 SF +12,500 44,867 SF*** +37,500 162,914 SF -25,000
View Nbhd**** Nbhd Part Water -25,000 Nbhd
Design 2 Family 2 Family 2 Family 2 Family
Construction Quality Average Average Average Average
Age (+/-) 19 years 242 years 78 years 25 years
Condition Good Inferior +25,000 Inferior +25,000 Good
GBA 2,516 SF 2,584 SF 2,634 SF 4,632 SF -84,600
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 5/1/1
6/3/1.5 +3,000 4/1/2
7/3/2 -2,000
-2,000 10/3/3
4/2/2 -7,000
-2,000
Basement Full Partial Full Full
Finished Basement Unfinished Unfinished Part Finish -15,000 Part/Bath -20,000
Functional Utility Adequate Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FHW/None +5,000 FHW/None +5,000
Parking Driveway 1-Car Barn -7,500 3-Car Garage -15,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Porch +500 Decking +500 Deck/Porch -500
Amenities None 4 Fireplaces -6,000 None Fireplace -1,500
None Pat/IGPI -20,000 None Barn/Pat/IGPI -35,000

Net Adjustment ($) +64,500 -51,000 -243,100
Adj Sale Price $529,500 $549,000 $631,900
* Assessed Value
** Valuation Date
*** Also Steeply Sloped
**** Neighborhood

9 Averill Road Property
Fiscal Year 2009
Sales 4 & 5

Feature Subject Sale 4 Adj ($) Sale 5 Adj ($)
9
Averill Rd
Middleton
6
Averill Rd
Middleton 29
Watkins Way
Middleton
Proximity (+/-) 0.15 miles 1.5 miles
Sale Price ("SP") $507,200* $615,000 $670,000
SP/Gross Bldg Area ("GBA") $243.66/SF $262.54/SF
Concessions None None
Date of Sale 01/01/2008** 07/26/2007 -25,600 07/31/2007 -27,900
Location Good Good Good
Site 81,022 SF 46,174 SF +12,500 87,120 SF
View Nbhd*** Nbhd Nbhd
Design 2 Family 1 Family 1 Family
Construction Quality Average Average Average
Age (+/-) 19 years 20 years 18 years
Condition Good Good Good
GBA 2,516 SF 2,524 SF 2,552 SF
Rooms: Total/Bed/Bath
Total/Bed/Bath 5/2/1.5
5/2/1.5 8/4/2.5 -5,000
+8,000 8/4/2.5 -5,000
+8,000
Basement Full Full Full
Finished Basement Unfinished Part Finish -15,000 Part Fin/Bath -20,000
Functional Utility Adequate Adequate Adequate
Heating/Cooling FWA/C-Air FHW/None +5,000 FWA C/Air
Parking Driveway 2-Car Garage -10,000 2-Car Garage -10,000
Porch/Patio/Deck Scrn Porch Deck/Scrn Pch/Pch -2,000 Deck +500
Amenities None 2 Fireplaces -3,000 Fireplace -1,500
None None None
Net Adjustment ($) -35,100 -55,900
Adj Sale Price $579,900 $614,100
* Assessed Value
** Valuation Date
*** Neighborhood

Based on the adjusted values ascribed to the three sales of two-family properties in Middleton, as well as the adjusted values attributed to the two sales of the single-family properties in Middleton, Mr. McKeen estimated the value of the 9 Averill Road property at $550,000 for fiscal year 2009.
Assessors' Other Witnesses
The parties stipulated that Mr. Swanson's and Ms. Ohlson's testimony during the hearing of the 11 Averill Road property also applied to the 9 Averill Road property. The parties further agreed that the cross examination of Ms. Kilborn during the hearing for the 11 Averill Road property also pertained to the hearing for the 9 Averill Road property.
Summary of Assessments & Estimated Values for 9 Averill Road Property

The following table summarizes the 9 Averill Road property's assessments and its values as estimated by Ms. Kilborn and Mr. McKeen for the fiscal years at issue.
Assessments & Estimated Values for the 9 Averill Road Property
FY 2008 FY 2009
Assessed Values ($) 611,500 507,200
Ms. Kilborn's Values ($) 435,000 415,000
Mr. McKeen's Values ($) 640,000 550,000

Board's Analysis

Based on all of the evidence, the Board found that the appellant failed to prove that the 9 Averill Road property was overvalued by the assessors for fiscal years 2008 and 2009. In making this finding, the Board found that Ms. Kilborn's purportedly comparable properties were not sufficiently comparable to the 9 Averill Road property. These properties did not exhibit sufficiently similar characteristics to the 9 Averill Road property, particularly with respect to neighborhood and other locational traits. The Board also found that Mr. McKeen's comparable two-family properties, particularly those located in Middleton, more closely reflected the 9 Averhill Road property's characteristics than Ms. Kilborn's purportedly comparable two-family properties that were situated in congested locales in area communities. In addition, the Board found that Mr. McKeen's adjustments and estimates of value were reasonable and sufficiently supported, while Ms. Kilborn's were not.
The Board further found that Ms. Kilborn's methodology contained numerous mathematical errors and inconsistencies that detracted from its reliability. Ms. Kilborn also failed to include any sales from Middleton in her analysis which further diminished her methodology's reliability. Moreover, the Board found that Ms. Kilborn's credibility as an independent fee appraiser was compromised by her continuing agency relationship with the appellant, which created bias.
Accordingly, the Board found that the 9 Averill Road property was not overvalued by the assessors for fiscal years 2008 and 2009 and decided those 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 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).
The fair cash value of property may be determined by recent sales of comparable properties in the market. 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). When comparable sales are used, however, allowance must be made for various factors which would otherwise cause disparities in the comparable prices. See Pembroke Industrial Park Co., Inc. v. Assessors of the Town of Pembroke, Mass. ATB Findings of Facts and Reports 1998-1072, 1082-83. "Adjustments for differences in the elements of comparison are made to the price of each comparable property. . . . The magnitude of the adjustment made for each element of comparison depends on how much that characteristic of the comparable property differs from the subject property." Appraisal Institute, The Appraisal of Real Estate 322 (13th ed. 2008).
Based on all of the evidence, the Board found that the 11 Averill Road property was not overvalued by the assessors for fiscal year 2007, but was overvalued for fiscal years 2008 and 2009. In making these findings the Board primarily relied on Mr. McKeen's comparable-sales methodology and his estimates of value. In particular, the Board found that his comparable two-family sales, particularly those located in Middleton, more closely reflected the 11 Averill Road property's characteristics than Ms. Kilborn's purportedly comparable two-family properties, situated in predominantly congested locales in area communities. Ms. Kilborn failed to include any sales from Middleton in her analysis which, in the Board's view, diminished her methodology's reliability. The Board also found that Mr. McKeen's adjustments and estimates of value were reasonable and sufficiently supported, while Ms. Kilborn's were not. Because Mr. McKeen's opinions of value for fiscal years 2008 and 2009 were less than the assessed values for those years, the Board found that the appellant was entitled to an abatement for those years. See General Electric Co., 393 Mass. at 600, 608 (holding that the Board is entitled to rely on all of the evidence, and not just that presented by the appellant, to determine whether there is overvaluation); see also Boston Edison Co. v. Assessors of Watertown, 387 Mass. 298, 302 (1982) ("The board's decision must be supported by substantial evidence considering the entire record before the board.").
Based on all of the evidence, the Board found that the appellant failed to prove that the 9 Averill Road property was overvalued by the assessors for fiscal years 2008 and 2009. In making this finding, the Board found that Ms. Kilborn's purportedly comparable properties were not sufficiently comparable to the 9 Averill Road property. These properties did not exhibit sufficiently similar characteristics to the 9 Averill Road property, particularly with respect to neighborhood and other locational traits. The Board also found that Mr. McKeen's comparable two-family properties, particularly those located in Middleton, more closely reflected the 9 Averhill Road property's characteristics than Ms. Kilborn's purportedly comparable two-family properties that were situated in congested locales in area communities. In addition, the Board found that Mr. McKeen's adjustments and estimates of value were reasonable and sufficiently supported, while Ms. Kilborn's were not. Ms. Kilborn also failed to include any sales from Middleton in her analysis which, in the Board's view, diminished her methodology's reliability.
Moreover, the Board found that the methodology that Ms. Kilborn employed to estimate the values of both subject properties contained numerous mathematical errors and inconsistencies that detracted from its reliability. See May Department Store Co v. Assessors of Newton, Mass. ATB Findings of Facts and Reports 2009-153, 174 ("[T]he Board found that [the real estate valuation expert's] overall methodology, report, and testimony contained many underlying inconsistencies, errors, and omissions, which, when taken as a whole, seriously compromised the credibility of his estimates of the subject property's values [for the fiscal years at issue]").
Evidence of sales may be considered "only if they are free and not under compulsion." Congregation of the Mission of St. Vincent dePaul v. Commonwealth, 336 Mass. 357, 360 (1957). "A foreclosure sale inherently suggests a compulsion to sell; a proponent of evidence of such sale must show circumstances rebutting the suggestion of compulsion." DSM Realty, Inc. v. Assessors of Andover, 391 Mass. 1014 (1984). Similarly, a sale by a bank which acquired the property by foreclosure or a deed in lieu of foreclosure also carries indicia of compulsion. G.F. Springfield Management v. Assessors of West Springfield, Mass. ATB Findings of Facts and Reports 2000-228, 242, 251 and the cases cited therein. In these appeals, the Board found and ruled that the bank sales which Ms. Kilborn used in her analyses were inherently suspect and diminished the reliability of her methodology and the estimates of value that she derived from that methodology.
Furthermore, the Board found that Ms. Kilborn's status as an agent of the appellant undercut her credibility as an independent valuation witness. The evidence clearly established the existence of an agency relationship between Ms. Kilborn and the appellant defined as a "fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." the Restatement (Third) of Agency (2006) § 1.01; see also Appraisal Institute, The Dictionary of Real Estate Appraisal 8 (4th ed., 2002)(defining "agency" as "[a] fiduciary relationship in which one party, the agent, acts as a representative of the other, the principal, in matters specified in a contract between them."); Black's Law Dictionary 72 (9th ed. 2009)(defining "agent" as "[o]ne who is authorized to act for and in place of another; a representative."). Considering her status as the agent of the appellant, the Board found that, in these appeals, Ms. Kilborn's credibility as an independent fee appraiser was compromised by her continuing agency relationship with the appellant. See Turners Falls, L.P. v. Assessors of Montague, 54 Mass. App. Ct. 732, 738 (2002)(holding that an expert witness must not be "a party or an agent for the party that employ[s] the expert . . . . [or] under the control of the party . . . [because the expert must] testif[y] impartially to assist the trier of fact about matters not in common knowledge.").
In addition, the USPAP Ethics Rule ("Rule") provides that "an appraiser must perform assignments with impartiality, objectivity, and independence, and without accommodation of personal interests." The Rule also cautions appraisers not to "perform an assignment with bias" and not to "advocate the cause or interest of any party or issue." The Rule requires an appraiser to "disclose . . . in the . . . report certification any current or prospective interest in the subject property or parties involved." Ms. Kilborn's appraisal reports specifically state in her "Certification" section that: "I have no present or prospective interest in the property that is the subject of this report, and no personal interest with respect to the parties involved." The Board found that Ms. Kilborn, as an agent, had a fiduciary duty to advocate the interest of her principal, namely the appellant here, which undermined her role as an independent fee appraiser. The Board further found that she did not disclose this relationship in her appraisal reports and actually certified the opposite.
On these bases, the Board ruled that an agent, like Ms. Kilborn, could not simultaneously act as agent for her principal, the appellant here, and maintain her independent judgment as an independent fee appraiser. Because Ms. Kilborn attempted to do just that, the Board found and ruled that her testimony and report were imbued with bias which adversely impacted her credibility and rendered her estimates of value less reliable. Cf. Pappas v. Assessors of Ipswich, Mass. ATB Findings of Facts and Reports, 1997-599, 629-30 (ruling that, in that case, Ms. Kilborn's testimony was not tainted or biased because she had demonstrated to the Board that she was no longer acting as that appellant's agent and did not have a potential interest in that case).
In reaching its opinion of fair cash value, the Board was not required to believe the testimony of any particular witness or to adopt any particular method of valuation that an expert witness suggested. Rather, the Board could accept those portions of the evidence that the Board determined had more convincing weight. Foxboro Associates, 385 Mass. at 682; New Boston Garden Corp., 383 Mass. at 469. "The credibility of witnesses, the weight of evidence, the 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).
Based on all of the evidence and its subsidiary findings above, the Board found and ruled that the 11 Averill Road property was not overvalued by the assessors for fiscal year 2007 (docket no. F291427). The Board, therefore, decided that appeal for the appellee. The Board further found and ruled, however, that the 11 Averill Road property's fair cash values for fiscal years 2008 and 2009 were $665,000 and $565,000, respectively, resulting in overvaluations by the assessors of $22,400 for fiscal year 2008 (docket no. F294631) and $10,200 for fiscal year 2009 (docket no. F303547). The Board, therefore, decided those two appeals for the appellant and granted abatements in the amount of $219.23 and $113.22, respectively.

The Board also found and ruled that the 9 Averill Road property was not overvalued by the assessors for fiscal years 2008 (docket no. F294630) and 2009 (docket no. F303548) and, therefore, decided those appeals for the appellee.

APPELLATE TAX BOARD

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

 Both of these abatements include a one-percent CPA tax.
 The cumulative effect of Ms. Kilborn's mistakes and inconsistencies appear to violate applicable professional standards.  "In developing a real property appraisal, an appraiser must not render appraisal services in a careless or negligent manner, such as by making a series of errors that, although individually might not significantly affect the results of an appraisal, in the aggregate affects the credibility of those results."  Uniform Standards of Professional Appraisal Practice ("USPSP") Standard Rule 1-1(c).
 Both of these abatements include a one-percent CPA tax.

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ATB 2011-143

Howard D. Haynes v. Board of Assessors of the Town of Middleton (March 30, 2011)

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