COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

STEPHEN MORTE			  v.	     BOARD OF ASSESSORS OF
THE TOWN OF MATTAPOISETT

Docket No. F303740				Promulgated:
							February 10, 2011

	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65 from the refusal of the Board of Assessors of the Town of Mattapoisett (“assessors” or “appellee”), to abate taxes on real estate owned by and assessed to Stephen Morte (“appellant”) under G.L. c. 59, §§ 11 and 38, for fiscal year 2009 (“fiscal year at issue”).
	Commissioner Rose (“Presiding Commissioner”) heard the appeal and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.20, issued a single-member decision for the appellee.
These findings of fact and report are made at the request of the appellant pursuant to G.L. c. 58A, § 13 and 831 CMR 1.32.

Stephen Morte, pro se, for the appellant.
Donald Fleming, assessor, for the appellee.

FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits entered into evidence at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
	On January 1, 2008, Stephen Morte was the assessed owner of a parcel of real estate located at 0 Holly Woods Road, 5A, in Mattapoisett (“subject property”).  The subject property consists of 2.14 acres improved with a two-story, single-family home which the appellant purchased in September of 2005 for $991,750.   The dwelling on the subject property has 2,987 feet of finished living area, with seven total rooms, including three bedrooms, and also two full bathrooms and one half bathroom.  The subject property also features an in-ground swimming pool and a shed.
	The subject property is an oceanview property.  The assessors calculated its land value using a special valuation formula, coded as “LC5” on the property record card, to reflect the increase in fair cash value attributable to having ocean views.  For the fiscal year at issue, the assessors valued the subject property at $1,084,900.  The land value of the subject property was $699,000 while the dwelling was valued at $367,300.  The pool and shed were valued at an additional $18,600.  Taxes were assessed at the rate of $9.48 per thousand, in the total amount of $10,378.22, which included a surcharge under the Community Preservation Act.  The appellant timely paid the taxes due without incurring interest.  
On January 26, 2009, the appellant timely filed an Application for Abatement with the assessors.  On April 26, 2009, the appellant’s Application for Abatement was deemed denied.  The appellant timely filed his appeal with the Appellate Tax Board (“Board”) on July 13, 2009.  On the basis of these facts, the Presiding Commissioner found that the Board had jurisdiction to hear and decide this appeal.
	The appellant’s primary contention was that the subject property’s land was overvalued.  He argued that the land was valued at double its fair cash value.  In support of this argument, the appellant introduced property record cards for eight purportedly comparable properties in Mattapoisett, including two properties also located on Holly Woods Road.  He also introduced information from the assessors’ on-line database for two other properties, both of which are located on Holly Woods Road.  
The appellant relied most heavily on the assessed values of three properties on Holly Woods Road to demonstrate that the land value of the subject property was excessive.  Specifically, the appellant pointed to the assessed values of 24, 30, and 46 Holly Woods Road as evidence that the subject property was overvalued.  However, each of those properties is located on the opposite side of Holly Woods Road from the subject property.  They are not oceanview properties and therefore were not assessed using the “LC5” valuation formula used by the assessors to calculate the land values of oceanview properties, including the subject property.  The Presiding Commissioner found that these properties were not sufficiently comparable to the subject property to provide probative evidence of its fair cash value.  
Both the appellant and the assessors introduced property record cards for a number of properties in Mattapoisett into evidence, most of which involved oceanview properties whose land values were calculated by the assessors using the “LC5” valuation formula.  The evidence showed that the assessed land values of all of the oceanview properties were calculated consistently.  For example, both the assessors and the appellant offered property record cards for 3 Holly Woods Road and 11 Holly Woods Road.  3 Holly Woods Road is a 1.53-acre parcel of land improved with a single-family dwelling.  Its land was valued at $677,500.  11 Holly Woods Road is a 2.11-acre parcel of land improved with a single-family dwelling.  Its land was valued at $697,750, nearly the same as the subject property’s 2.14 acres, which were valued at $699,000.  
Furthermore, the sales data in the record supported the assessors’ valuation of oceanview properties.  For example, 4 Hilton Avenue is a 0.46-acre parcel of land improved with a single-family dwelling.  It is an oceanview property which sold in May of 2008 for $890,000. Its overall assessed value for the fiscal year at issue was $873,700 and its land value was $629,750.  Similarly, 17 Avenue B is 0.20-acre parcel of land improved with a single-family dwelling.  It is an oceanview property which sold in April of 2007 for $1,000,000.  Its overall assessed value for the fiscal year at issue was $912,450 and its land value was $585,250.  
On the basis of all of the evidence, the Presiding Commissioner found that the appellant did not meet his burden of proving that the subject property’s fair cash value was lower than its assessed value.  In sum, the appellant’s contention that the land value of the subject property was excessive failed because it was premised largely on a comparison of properties that were not oceanview properties and therefore were not comparable to the subject property.  The Presiding Commissioner found that the sales and assessment data entered into the record regarding oceanview properties supported both the land valuation and overall assessed value of the subject property.  Based on these findings of fact, the Presiding Commissioner found that the appellant failed to meet his burden of proving that the assessors overvalued the subject property for the fiscal year at issue.  Accordingly, the Presiding Commissioner issued a decision 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 taxpayer has the burden of proof to make out his right to an abatement of the assessed tax as a matter of law.  Schlaiker v. Board of Assessors of Great Barrington, 365 Mass. 243, 245 (1974).  The assessed value of a parcel of real estate is presumed to be valid until the taxpayer sustains his burden of proving otherwise.  Id.
In appeals before the Board, the taxpayer “may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors’ method of valuation, or by introducing affirmative evidence of value which undermines the assessors’ valuation.” Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983).  “[A]ctual sales of property generally furnish strong evidence of market value, provided they are arm's-length transactions.” Foxboro Associates v. 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 date contain credible data and information for determining the value of the property at issue.”  Giard v. Assessors of Colrain, Mass. ATB Findings of Fact and Reports 2009-115, 123 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)).  The assessed values of comparable properties may also be presented as evidence of fair cash value.  G.L. c. 58A, § 12B. However, "[r]eliable comparable sales data will ordinarily trump comparable assessment information for purposes of finding a property's fair cash value.” Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2007-321, 403, aff'd, 73 Mass. App. Ct. 1107 (2008).    Whether offering assessed values or actual sales, the taxpayer “bears the burden of 'establishing the comparability of . . . properties [used for comparison] to the subject property.'" Wood v. Assessors of Fall River, Mass. ATB Findings of Fact and Reports 2008-213, 225.
In the present appeal, the Presiding Commissioner found and ruled that the properties most heavily relied upon by the appellant to establish the overvaluation of subject property were not comparable to the subject property because they were not oceanview properties, like the subject property.  Although the appellant also offered evidence involving several oceanview properties, the Presiding Commissioner found and ruled that that evidence actually provided support for the assessment.  Specifically, the evidence in the record regarding oceanview properties in Mattapoisett showed that the land values of oceanview properties were calculated consistently.  Further, the assessors’ valuations of oceanview properties were supported by the sales data reflected on the property record cards.  For example, 4 Hilton Avenue is a 0.46-acre parcel of land improved with a single-family dwelling.  It is an oceanview property which sold in May of 2008 for $890,000. Its overall assessed value for the fiscal year at issue was $873,700 and its land value was $629,750.  Similarly, 17 Avenue B is a 0.20-acre parcel of land improved with a single-family dwelling.  It is an oceanview property which sold in April of 2007 for $1,000,000.  Its overall assessed value for the fiscal year at issue was $912,450 and its land value was $585,250.  The Presiding Commissioner found and ruled that the sales and assessment data of comparable oceanview properties served to support, rather than undermine, the assessed value of the subject property.   
On the basis of all of the evidence, the Presiding Commissioner found and ruled that the appellant failed to establish that the assessed value of the subject property was greater than its fair cash value, and, therefore, found and ruled that the appellant failed to establish his right to an abatement of the tax.  Accordingly, the Presiding Commissioner issued a decision for the appellee in this appeal.  
     APPELLATE TAX BOARD
  
     By:	_____	   ________________	           James D. Rose, Commissioner
A true copy,

Attest:				___________
	      Clerk of the Board