Opinion
10-P-849
09-09-2011
145 SUMNER AVENUE LIMITED PARTNERSHIP & another v. BOARD OF ASSESSORS OF SPRINGFIELD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The taxpayer, Russell L. Seelig, appeals from a decision of the Appellate Tax Board (board) dismissing his claim that the board of assessors of Springfield (assessors) disproportionately assessed two apartment buildings that he owns in Springfield. We affirm.
2 Seelig was the record owner of 290-294 Sumner Avenue in Springfield. He is also the general partner for 145-151 Sumner Avenue Limited Partnership.
Discussion. As the taxpayer brings this appeal under G. L. c. 58A, § 13, the question before us is whether the board erred as a matter of law, Commissioner of Rev. v. Houghton Mifflin Co., 423 Mass. 42, 43 (1996), and whether there is substantial evidence to support the board's decision, see New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 465 (1981); Boston Edison Co. v. Assessors of Watertown, 387 Mass. 298, 302 (1982). If there is 'substantial evidence to support the board's decision, we defer to the board's judgment as to what evidence to accept and which method or methods of valuation to rely on.' Ibid.
1. Disproportionate assessment. Tax assessors are obliged by statute and the Massachusetts Declaration of Rights to assess all real property at its full and fair cash value. Assessors of Weymouth v. Curtis, 375 Mass 493, 498-499 (1978). In order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there existed an 'intentional policy or scheme . . . of valuing properties or classes of property at a lower percentage' of fair cash value than the taxpayer's property. Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 377 (1965). See Brown v. Assessors of Brookline, 43 Mass. App. Ct. 327, 328 (1997). To proceed at trial, the taxpayer must 'make specific allegations . . . as would, if proved, establish . . . the precise nature of the lack of uniformity in assessments which he expects to prove and the circumstances indicating that it was intentionally discriminatory, rather than caused by inadvertence, mistake, or incompetence.' Stone v. Springfield, 341 Mass. 246, 249 (1960).
Here, even if we accepted the allegations that properties hosting structures such as cellular towers, antennae, and billboards were assessed at an amount less than the full and fair cash value, the taxpayer has not alleged that the lack of uniformity in assessment values was intentionally discriminatory. On its face, the assessors' valuation methodology (cost reproduction) was not discriminatory for the purpose of a claim of disproportionate assessment. See Blakeley v. Assessors of Boston, 391 Mass. 473, 477 (1984) (permitting use of cost reproduction methodology for assessment of newly constructed building).
The taxpayer concedes that the cost reproduction methodology, although disfavored, is permissible where reliable data is not otherwise available. See Correia v. New Bedford Redev. Authy., 375 Mass. 360, 362 (1978). Although the taxpayer contends that more reliable data were available, the board concluded otherwise, finding that the valuation of cellular towers, antennae, and billboards was difficult due to 'the lack of a market for them and the concomitant dearth of comparable sales.' This finding was supported by substantial evidence, and therefore we must give deference to the board's choice of valuation methodology. See Massachusetts Inst. of Technology v. Assessors of Cambridge, 422 Mass. 447, 452 (1996) ('[The court] should respect the board's judgment concerning the feasibility and fairness of alternate proposed methods of property valuation'). See also Keniston v. Assessors of Boston, 380 Mass. 888, 894-895 (1980) (fair cash value may be estimated in several ways).
3 Furthermore, the taxpayer acknowledged that comparable sales may not be available.
--------
Likewise, the taxpayer has not shown that the assessment methodology was applied in a discriminatory manner. As the board noted, any discrepancy in value is more likely due to the difficulty of valuing these properties and not an intentional scheme to discriminate against some types of properties. Even if, as the taxpayer contends, the assessors could have used publicly available information about rental rates for cellular towers, antennae, and billboards, our role is to review the assessors' choice of valuation methods to see that it was 'reasonable and supported by the record.' Analogic Corp. v. Assessors of Peabody, 45 Mass. App. Ct. 605, 609 (1998). The existence of alternative valuation methodologies does not mean the assessors' method was discriminatory or unreasonable.
2. Evidentiary rulings. With respect to the taxpayer's motion to compel and the assessors' corresponding motion in limine, we are not persuaded that the board's decisions constitute errors of law or abuses of discretion. See Zucco v. Kane, 439 Mass. 503, 507 (2003), citing Wilson v. Honeywell, Inc., 409 Mass. 803, 809 (1991). 'In the matter of 'discovery' much must be left to the judgment and discretion of the Appellate Tax Board.' Assessors of Provincetown v. Vara Sorrentino Realty Trust, 369 Mass. 692, 694 (1976). 'The purpose of a motion in limine is to prevent irrelevant, inadmissible or prejudicial matters from being admitted in evidence.' Boston v. Board of Educ., 392 Mass. 788, 796 (1984), quoting from Commonwealth v. Hood, 389 Mass. 581, 594 (1983). The taxpayer did not make an offer of proof at the hearing and, necessarily, copies of the excluded materials are not part of the record on this appeal. Hence, there is little basis upon which we might determine that exclusion of the materials was error or that it caused the taxpayer to suffer any harm.
Decision of Appellate Tax Board affirmed.
By the Court (Rapoza, C.J., Mills & Green, JJ.),