commonmwealth of massachusetts appellate tax board michael p. miller & v. board of assessors of sheila noyes-miller the town of stu

COMMONMWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD
MICHAEL P. MILLER & v. BOARD OF ASSESSORS OF
SHEILA NOYES-MILLER THE TOWN OF STURBRIDGE
Docket No. F310488 Promulgated:
May 9, 2012
This is an appeal under the formal procedure, pursuant to G.L. c. 58A,
§ 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the Board of
Assessors of the Town of Sturbridge (the “appellee” or “assessors”) to
abate taxes on certain real estate in the Town of Sturbridge owned by
and assessed to Michael P. Miller and Sheila Noyes-Miller
(collectively, the “appellants”) under G.L. c. 59, §§ 11 and 38, for
fiscal year 2011.
Chairman Hammond (the “Presiding Commissioner”) heard this appeal
under G.L. c. 58A, § 1A and 831 CMR 1.20 and issued a single-member
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.
Michael P. Miller & Sheila Noyes-Miller, pro se, for the appellants.
William B. Mitchell, Principal Assessor, for the appellee.
FINDINGS OF FACT AND REPORT
Introduction and Jurisdiction
On January 1, 2010, the valuation and assessment date for fiscal year
2011, the fiscal year at issue in this appeal, the appellants were the
assessed owners of a parcel of real estate, improved with a seasonal
single-family dwelling, located at 60 Goodrich Road in Sturbridge (the
“subject property”). The subject parcel contains approximately 0.31
acres. The subject property is labeled for assessing purposes as
“309-04414-060”; it is identified on assessing map 44 in block 14 as
lot 60. For fiscal year 2011, the assessors valued the subject
property at $286,800 and assessed a tax thereon, at the rate of $16.19
per thousand, in the amount of $4,643.29, plus an additional $90.73
assessment under the Community Preservation Act (“CPA”)1 bringing the
total tax to $4,734.02. The assessors valued the land and building
components of the subject property at $218,400 and $68,400,
respectively. The dwelling was assessed at $67,600, a detached
patio-deck at $600, and a shed at $200.
On October 1, 2010, Sturbridge’s Collector of Taxes sent out the
town’s actual real estate tax notices. In accordance with G.L. c. 59,
§ 57, the appellants paid the tax without incurring interest. On
October 28, 2010, in accordance with
G.L. c. 59, § 59, the appellants timely filed with the assessors an
Application for Abatement, which they granted in part on December 20,
2010, reducing the overall assessed value of the subject property by
$34,300 from $286,800 to $252,500. On February 22, 2011, in accordance
with G.L. c. 59, §§ 64 and 65, the appellants seasonably filed a
Petition Under Formal Procedure with the Appellate Tax Board (the
“Board”). On the basis of these facts, the Presiding Commissioner
found and ruled that the Board had jurisdiction to hear and decide
this appeal.
At the hearing of this appeal, both appellants testified. They also
introduced a number of exhibits including: a fiscal year 2004-2011
assessment history of the subject property; a copy of a one-half page
letter from Bank of America (“BOA”) dated October 15, 2010, which
advises the appellants of the bank’s recent review of the subject
property’s value; a 2011 single-page print-out from Zillow.com, which
nominally identifies and summarily values the subject property; a
one-page print-out listing the assessments and sale prices of 6
seasonal properties in Sturbridge, which sold between January, 2005
and the end of April, 2010; print-outs of two neighboring properties’
assessments from Vision Appraisal’s online database; and a 2002 plan
of land depicting the subject property’s on-site sewage disposal
system. The appellants contended that the subject property was
overvalued primarily because the assessment had not adequately
accounted for the subject property’s lack of a well for water, the
subject parcel’s slope, and the subject dwelling’s seasonal
limitations. The appellants further contended that the subject
property’s assessed value should have approximated the $207,555.41
value assigned to it by BOA in its October 15, 2010 letter or perhaps
the $200,100 value ascribed to it by Zillow.com in that print-out.
In their case-in-chief, William B. Miller, Sturbridge’s Principal
Assessor, testified for the assessors. The assessors also introduced
into evidence the necessary jurisdictional documents, as well as
property record cards for the subject property and a neighboring
property and Mr. Miller’s “Summary Appraisal Report.” The assessors
maintained that they had sufficiently accounted for the subject
property’s lack of a well for water, the subject parcel’s slope and
the subject dwelling’s seasonal nature in their initial assessment and
subsequent partial abatement. The assessors also contended that Mr.
Miller’s Summary Appraisal Report supported a $280,000 value for the
subject property, almost $30,000 higher than the assessment, as
abated.
Based on this evidence, the Board made the following findings of fact.
Description of the Subject Property
The subject property is composed of an approximately
13,503-square-foot, somewhat rectangular, sloping parcel that is
improved with an approximately 700-square-foot, two-story,
wood-framed, Colonial-style, single-family, seasonal dwelling. There
is also a shed and a detached patio-deck located on the subject
parcel. The subject property has approximately 150 feet of frontage
along Goodrich Road and 139 feet of frontage on Leadmine Pond (the
“Pond”).2 The subject property also has elevated views of and access
and beach rights, over a right-of-way, to the Pond.
The dwelling is less than thirty years old and in average condition
with an effective age of approximately 17 years. The dwelling was
built as and continues to be used as a seasonal residence, even though
it has an electric baseboard heating system. The dwelling contains a
total of five rooms, including two bedrooms, a kitchen, and an open
living area, as well as one full bathroom.
The dwelling’s exterior walls are finished with wood siding, and its
gable roof is covered with asphalt shingles. The windows are wooden
casement and double hung, and the gutters and downspouts are aluminum.
The dwelling’s interior walls and
ceilings are finished with painted drywall and plaster. The interior
floors consist of laminated wood covered with wall-to-wall carpeting.
Amenities include a large attached rear wooden deck overlooking the
Pond with stairs down to a lower patio-deck structure facing the Pond.
The subject property has a private septic system but no well for
water.
Appellants’ Valuation
The appellants estimated the value of the subject property at $207,555
based primarily on the October 15, 2010 single-page letter from BOA
which states in relevant part that:
As a result of declining home values, Bank of America periodically
reviews the value of property used as collateral on its Home Equity
Lines of Credit. The value of your property determined by our recent
review is $207,555.41. This valuation was prepared based on data
specific to your property obtained from a valuation service provider
and is used for Bank of America purposes only.
The appellants attempted to buttress this estimate of value with the
$200,100 approximation of the subject property’s value contained in
the print-out from Zillow.com. The assessors countered that the value
prescribed in BOA’s letter was not probative of the subject property’s
value because it was based on an 80% valuation criterion, consistent
with home equity loan underwriting, not on a 100% valuation measure
consistent with ad valorem property taxation. The assessors further
contended that even if the Presiding Commissioner found that BOA’s 80%
valuation of $207,555.41 has some probative worth, it actually
supports the $252,500 assessment, as abated, because the 80% valuation
amount yields a 100% valuation measure of $259,444.26.
Even though the assessors did not object to the admission of BOA’s
letter, the Presiding Commissioner did not give it any weight because,
among other reasons, it was double hearsay and the “valuation service
provider” referenced in the letter was not available for
cross-examination by the assessors or for questioning by the Presiding
Commissioner. Moreover, the applicable date of the valuation was not
apparent and could not be related to the relevant valuation and
assessment date. For similar reasons, the Presiding Commissioner did
not give any weight to the opinion of value contained in the
Zillow.com print-out.
The appellants also relied on a print-out that listed the assessments
and sale prices of six seasonal properties in Sturbridge, which sold
between January, 2005 and the end of April, 2010, in their attempt to
show that the subject property was overvalued for the fiscal year at
issue. The appellants, however, did not provide any descriptions of
these sale properties, attempt to demonstrate their comparability to
the subject property, or adjust or even consider adjusting for their
differences with the subject property. This print-out did reveal,
however, that the sales prices of five of these six properties
exceeded their assessed values while the sale price of the sixth
property was within six percent of its assessed value. The Presiding
Commissioner found that this print-out did not support a finding of
overvaluation.
The appellants additionally submitted a print-out of the subject
property’s assessment history from fiscal year 2004 to fiscal year
2011. This print-out revealed that the subject property’s most recent
fiscal year assessments increased by approximately 1% from fiscal year
2008 to 2009, decreased by about 5% from fiscal year 2009 to 2010, and
then increased by over 14% from fiscal year 2010 to fiscal year 2011,
even after abatement. The appellants argued that there was no
justification for the increase in the subject property’s assessed
value from fiscal year 2010 to fiscal year 2011, the fiscal year at
issue in this appeal. The assessors responded that the subject
property likely had been undervalued in earlier fiscal years and, at
any rate, the subject property’s present assessment did not exceed its
fair cash value as demonstrated by Mr. Mitchell’s comparable-sales
analysis contained in his Summary Appraisal Report.
The Presiding Commissioner found that, without added substantiation,
such as, for example, comparisons of the subject property’s assessed
value to comparable properties’ adjusted assessed values or sale
prices, or evidence regarding the state of the relevant market and the
appropriateness of the prior fiscal year’s assessment, the increase in
the subject property’s assessment from the prior fiscal year to the
fiscal year at issue was not, in and of itself, sufficient to show
overvaluation. Indeed, in most circumstances, including the one
present here, an increase in a property’s assessed value from one
fiscal year to the next is presumed valid until appropriately refuted.
Consequently, and after considering all of the evidence, the Presiding
Commissioner found that the mere fact that the subject property’s
assessment increased from the prior fiscal year did little to prove
that the subject property was overvalued for the fiscal year at issue.
The appellants also asserted that the assessment did not adequately
account for the subject property’s lack of a well for water, the
subject parcel’s slope, or the subject dwelling’s seasonal nature. The
appellants did not attempt to quantify these perceived shortcomings or
show how the assessment, as abated, neglected to account for them. The
Presiding Commissioner found that the appellants offered little direct
evidence to substantiate this contention. Rather, and as discussed in
more detail, infra, Mr. Mitchell’s testimony and comparable-sales
analysis contained in his Summary Appraisal Report indicated that the
assessed value, as abated, did account for these factors.
Consequently, the Presiding Commissioner found that the assessment, as
abated, adequately reflected any diminution in the subject property’s
fair cash value associated with these shortcomings.
Assessors’ Valuation
Mr. Mitchell first testified that the assessors had already accounted
for the subject property’s lack of a well for water, the subject
parcel’s slope and the subject dwelling’s seasonal nature in the
initial assessment and by further lowering the subject property’s
assessed value at the application-for-abatement stage by $34,300 from
$286,800 to $252,500. In addition, Mr. Mitchell discussed and
submitted his comparable-sales analysis contained in his Summary
Appraisal Report. His report analyzed the sale prices of four
purportedly comparable seasonal properties situated in or near the
subject property’s neighborhood. These properties sold from January
16, 2008 to December 30, 2010 for prices ranging from $272,000 to
$365,000. After considering adjustments to the sale prices for such
factors as: location; site size; design or style; occupancy; quality;
condition; room count; gross living area; basement finish; heating and
cooling systems; garages; porches, patios, and decks; and fireplaces,
Mr. Mitchell developed an array of indicated values which ranged from
$274,500 to $284,600. From this range, Mr. Mitchell estimated the
value of the subject property at $280,000.
The Presiding Commissioner found that Mr. Mitchell’s selection of
comparable properties and his adjustments were reasonable. The
appellants offered little to refute the credibility and reliability of
Mr. Mitchell’s testimony or his analysis. The Presiding Commissioner
further found that Mr. Mitchell’s indicated values and estimate of the
subject property’s fair cash value supported the subject assessment,
as abated.
Board’s Ultimate Findings
Based on all of the evidence and his subsidiary findings, the
Presiding Commissioner ultimately found that the subject property’s
assessment, as abated, did not exceed its fair cash value for the
fiscal year at issue. The Presiding Commissioner found that the
appellants had failed to meet their burden of establishing that the
subject property was overvalued for the fiscal at issue. The Presiding
Commissioner further found that the assessors offered credible
evidence which supported the subject property’s assessed value, as
abated, for the fiscal year at issue. Accordingly, the Presiding
Commissioner decided this appeal 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 at
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[s] to make out [their] 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)).
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)). In the present appeal, the appellants
contended that the assessors had erred in their assessment of the
subject property by failing to take into account the subject
property’s lack of a well for water, the subject parcel’s slope, and
the subject dwelling’s seasonal limitations. The appellants opined
that the value of the subject property was equivalent to the values
recited in BOA’s letter and in the print-out from Zillow.com.
To support their contentions, the appellants relied in part on an
assessment history of the subject property and the sale prices and
assessments of six seasonal properties in Sturbridge which sold
between January, 2005 and the end of April, 2010. The Presiding
Commissioner found that, without added substantiation, such as, for
example, comparisons of the subject property’s assessed value to
comparable properties’ adjusted assessed values or sale prices, or
evidence regarding the state of the relevant market and the
appropriateness of the prior fiscal year’s assessment, the increase in
the subject property’s assessment from the prior fiscal year to the
fiscal year at issue was not, in and of itself, sufficient to show
overvaluation. Indeed, in most circumstances including the one present
here, an increase in a property’s assessed value from one fiscal year
to the next is presumed valid until appropriately refuted. See Judson
Freight Forwarding Co., 242 Mass. at 55.
As for the appellants’ comparable assessments and sales data, the
Presiding Commissioner found that the appellants failed to establish
the comparability of their purportedly comparable properties to the
subject property. While analyses of comparable properties’ assessments
and sales may form a basis for an abatement, see G.L. c. 58A, §12B3
and Sands v. Assessors of Bourne, Mass. ATB Findings of Fact and
Reports 2007-1098, 1106-1107 (“The introduction of such evidence may
provide adequate support for either the granting or denial of an
abatement.”), the proponent needs to establish initial comparability.
Appraisal Institute, The Appraisal of Real Estate 301 (13th ed.
2008)(“The goal is to find a set of comparable sales as similar as
possible to the subject property to ensure they reflect the actions of
similar buyers.”). Moreover, the Presiding Commissioner found that the
appellants’ comparable assessments and sales data did not include any
adjustments to account for differences between the subject property’s
characteristics and those of the purportedly comparable properties.
“[R]eliance on unadjusted assessments [or sales] of assertedly
comparable properties . . . [is] insufficient to justify a value lower
than that” assessed. Antonio v. Assessors of Shutesbury, Mass. ATB
Findings of Fact and Reports 2008-54, 70. “The assessments in a
comparable assessment analysis, like the sales in a comparable sales
analysis, must also be adjusted to account for differences with the
subject.” Graham v. Assessors of West Tisbury, Mass. ATB Findings of
Fact and Reports 2007-321, 402, aff’d, 73 Mass. App. Ct. 1107 (2008).
On these bases, the Presiding Commissioner found and ruled that the
appellants’ comparable assessments and sales data did not provide
reliable indications of the subject property’s fair cash value for the
fiscal year at issue.
The Presiding Commissioner also found and ruled that the opinions of
value contained in the BOA’s letter and in Zillow.com were not
entitled to any probative value. The Presiding Commissioner found and
ruled that these opinions of value were hearsay, or even double
hearsay, and they were offered without providing the assessors with an
opportunity for cross-examination or the hearing officer an
opportunity for questioning. Accordingly, the Presiding Commissioner
rejected these opinions of value. See Ward Brothers Realty Trust v.
Assessors of Hingham, Mass. ATB Findings of Fact and Reports 2012-515,
533 (citing Papernik v. Assessors of Sharon, Mass. ATB Findings of
Fact and Reports 2011-600, 615 (“[T]his hearsay information was
opinion evidence, which, although not objected to by the assessors,
was offered without proper foundation, qualification, or underlying
factual support and without providing the assessors with an
opportunity for cross-examination. Accordingly, the Presiding
Commissioner gave it no weight.”)).
In defense of the assessment, as abated, the assessors relied
principally on the Summary Appraisal Report prepared by Mr. Mitchell
that compared purportedly comparable sale properties’ adjusted sale
prices to the subject property’s assessment. “[S]ales of property
usually furnish strong evidence of market value, provided they are
arm’s-length transactions and thus fairly represent what a buyer has
been willing to pay for the property to a willing seller.” Foxboro
Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 682
(1982). Sales of comparable realty in the same geographic area and
within a reasonable time of the assessment dates contain credible data
and information for determining the value of the property at issue.
McCabe v. Chelsea, 265 Mass. 494, 496 (1929). In the present appeal
the Presiding Commissioner found that Mr. Mitchell’s analysis was
reasonable. On this basis, the Presiding Commissioner found and ruled
that the indicated values and the estimate of the subject property’s
fair cash value derived from Mr. Mitchell’s analysis were credible and
supported the subject property’s assessed value, as abated.
"The board [is] not required to believe the testimony of any
particular witness but it [can] accept such portions of the evidence
as appear to have the more convincing weight. Assessors of Quincy v.
Boston Consolidated Gas Co., 309 Mass. 60, 72 (1941). “The credibility
of witnesses, the weight of evidence, and inferences to be drawn from
the evidence are matters for the board.” Cummington School of the
Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977).
Based on all of the evidence presented in this appeal and his
subsidiary findings and rulings, the Presiding Commissioner ultimately
found and ruled that the appellants failed to prove that the subject
property’s assessment, as abated, exceeded its fair cash value.
Accordingly, the Presiding Commissioner issued a single-member
decision in this appeal for the appellee.
THE APPELLATE TAX BOARD
By: __________________________________
Thomas W. Hammond, Jr., Chairman
A true copy,
Attest: _______________________________
Clerk of the Board
1 The CPA assessment for Sturbridge is 3% of the tax after exempting
an initial $100,000 in value.
2 According to several documents in evidence, the Pond is sometimes
referred to as Leadmine Lake.
3 General Laws, chapter 58A, § 12B provides that: “At any hearing
relative to the assessed fair cash valuation or classification of
property, evidence as to the fair cash valuation or classification of
property at which assessors have assessed other property of a
comparable nature or class shall be admissible.”
ATB 2012-659

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