Opinion
13-P-1723
06-25-2015
MARK J. BROOKS v. BOARD OF ASSESSORS OF WORTHINGTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pro se plaintiff, Mark J. Brooks, owns two parcels located on Lindsay Hill Road in the town of Worthington. The first parcel is vacant and adjacent to the second, where the plaintiff's house is situated. The plaintiff appeals from the decisions of the Appellate Tax Board (board) affirming the defendant board of assessors' (assessors) denial of abatements from real property taxes assessed on each parcel for fiscal years 2011 and 2012, and denying his motion for reconsideration. We affirm.
Fiscal year 2011. The plaintiff's abatement application for the 2011 tax year rested on claims that the assessors failed to take into account the period during the winter months in which access to Lindsey Hill Road was partially restricted, and also on the known fair cash values of properties that the plaintiff contended were comparable to his. Following the assessors' denial of the plaintiff's application for abatement, he appealed to the board, which issued a decision in favor of the assessors.
On review, we determine whether the board's decision was supported by substantial evidence. New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 465 (1981). The First Marblehead Corp. v. Commissioner of Rev., 470 Mass. 497, 501 (2015). "[S]ubstantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion." New Boston Garden Corp. v. Assessors of Boston, supra at 466 (quotation marks and citation omitted). "Our review of the sufficiency of the evidence is limited to whether a contrary conclusion is not merely a possible but a necessary inference from the findings." Olympia & York State St. Co. v. Assessors of Boston, 428 Mass. 236, 240 (1998) (quotation marks and citation omitted). "A finding of the board must be set aside if the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary." New Boston Garden Corp. v. Assessors of Boston, supra (quotation marks and citation omitted).
The plaintiff had the ultimate burden of persuasion to show that his property was overvalued. General Elec. Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984). "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). Although he presented evidence of lower valuations of seven "sales in the area of his home" assessed by the assessors between November, 2009, and June, 2010, the board determined that the properties were not sufficiently comparable. Giving "due weight to the experience, technical competence, and specialized knowledge" of the board, Peterson v. Assessors of Boston, 62 Mass. App. Ct. 428, 432 (2004), quoting from G. L. c. 30A, § 14(7), we conclude that the board did not err in this determination.
The board found, "Only two of the cited sales were vacant land sales and, at 15.18 acres and 49.56 acres, were considerably larger that Parcel 1. The remaining four cited sales were parcels improved with single-family residences ranging in size from 768 square feet to 2,520 square feet." Parcel one of the plaintiff's property was 10.66 acres, and parcel two was 10.45 acres.
The board was also entitled to credit the testimony of John Fosnot, a member of the assessors, that restricted access to Lindsey Hill Road did not affect either parcel. See Stilson v. Assessors of Gloucester, 385 Mass. 724, 729 (1982). Fosnot testified that although a portion of the road was closed for four months during the winter, the plaintiff's properties were not located within that range. Notwithstanding this fact, the assessors applied a thirty percent discount to parcel one and a ten percent discount to parcel two. The evidence supported the board's determination that the plaintiff's properties were not overvalued.
The board acted within its discretion in denying the plaintiff's motion for reconsideration, in which he presented the history of the assessors' repeated overvaluation of his properties and the board's past decisions in his favor. See Audubon Hill S. Condominium Assn. v. Community Assn. Underwriters of America, Inc., 82 Mass. App. Ct. 461, 470 (2012) (outlining appropriate grounds for reconsideration).
Fiscal year 2012. The board dismissed as untimely the plaintiff's appeal from the assessors' denial of abatements for tax year 2012. Under G. L. c. 59, § 65, the plaintiff had three months from March 27, 2012, the date of the assessors' decision, to appeal. Although the plaintiff timely mailed his appeal to the board on June 21, 2012, he mailed it to the wrong address, 399 Washington Street. After learning of his mistake, on July 10, 2012, he forwarded the appeal to the board at its correct address, 100 Cambridge Street.
While we sympathize with the plaintiff, there is no provision in the statute to save him from his mistake. "[T]he board has only that jurisdiction conferred on it by statute. Adherence to the statutory prerequisites is essential to an effective application for abatement of taxes. . . . The board correctly concluded that it lacked jurisdiction to hear the appeal." Stilson v. Assessors of Gloucester, supra at 732. We note that the plaintiff had ample notice of the board's correct address. He received correspondence from the board, under letterhead displaying its correct address, "100 Cambridge Street" in 2005, 2006, 2007, and 2010 -- all of which he attached to his motion for reconsideration.
Decisions of Appellate Tax Board affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 25, 2015.