Brown v. Board of Assessors of Brookline

• Decision Date: 25 September 1997
• Docket Number: No. 96-P-584,96-P-584
• Citation: 682 N.E.2d 1373,43 Mass.App.Ct. 327
• Parties: Harold BROWN & others v. BOARD OF ASSESSORS OF BROOKLINE.
• Court: Appeals Court of Massachusetts

Page 1373

682 N.E.2d 1373

43 Mass.App.Ct. 327

Harold BROWN & others v. BOARD OF ASSESSORS OF BROOKLINE.

No. 96-P-584.

Appeals Court of Massachusetts,

Suffolk.

Argued April 7, 1997.

Decided Aug. 7, 1997.

Further Appellate Review Granted Sept. 25, 1997.

David Lee Turner, Town Counsel, for defendant.

Eric W. Wodlinger, Boston, for plaintiffs.

Before DREBEN, KAPLAN and LENK, JJ.

DREBEN, Justice.

These are 144 consolidated appeals under G.L. c. 58A, § 13, from a decision of the Appellate Tax Board (board) denying abatements to the appellant property owners because they failed to satisfy the preliminary threshold of showing that the Brookline board of assessors employed a deliberate scheme of discriminatory or disproportionate assessment. We affirm the decision of the board.

The appellants, owners of rent-controlled apartment buildings in Brookline, claimed that their properties for the fiscal years 1985, 1986, and 1987 had been disproportionately assessed: that is, their properties had been assessed at a higher percentage of fair cash value than the class of single-family homes in Brookline. In their abatement petitions the appellants also asserted that their properties had been overvalued by the town, but the parties reached agreement on the valuations eighteen months after the hearings on disproportion had closed. ¹

In order to obtain relief on the basis of disproportionate assessment, a taxpayer must show that there is 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. Board of Assessors of Framingham, 348 Mass. 366, 377, 203 N.E.2d 811 (1965) (citation omitted). If the taxpayer presents evidence that supports an inference that a scheme of disproportionate assessment exists, the assessors have the burden to show that there was no such scheme, ibid., but the taxpayer has the ultimate burden of persuasion. First Natl. Stores, Inc. v. Board of Assessors of Somerville, 358 Mass. 554, 562, 265 N.E.2d 848 (1971). See Stilson v. Board of Assessors of Gloucester, 385 Mass. 724, 727-728, 434 N.E.2d 158 (1982).

In the view of the appellants, an intentional discriminatory scheme existed because, in a period of dramatically increasing property values, namely fiscal years 1985, 1986, and 1987, the assessors deliberately kept assessments of single-family residences constant, relying on the 1985 certification of the Commissioner of Revenue (commissioner) pursuant to G.L. c. 40, § 56. Assessments did not change until 1988 when the next certification under the statute occurred.

Chapter 40, § 56, was part of a 1979 legislative effort to effect valuation at full and fair cash value throughout the Commonwealth, see Keniston v. Board of Assessors of Boston, 380 Mass. 888, 890-891, 407 N.E.2d 1275 (1980), and, as amended by St.1983, c. 79, § 1, provides that the commissioner "shall triennially certify as to whether the board of assessors is assessing property at full and fair cash valuation." ²

To show that the "scheme" of reliance on the 1985 certification for three fiscal years resulted in disproportionate assessments, the appellants, in addition to presenting three witnesses and an appraiser's report, introduced the commissioner's "equalized valuation" (EQV) reports for 1984 and 1986. The commissioner is required under G.L. c. 58, § 9, as amended through St.1987, c. 712, § 1, to establish every two years "a proposed equalized valuation which shall be the fair cash value of all property in such city or town subject to local taxation...." In addition, he must determine assessment ratios, which are a comparison of assessed values to the fair cash values of properties, derived primarily from a comparison of assessed values with selling prices. See G.L. c. 58, § 10. See also G.L. c. 58A, § 12C, set forth in the margin. ³ The ratios are computed by dividing the assessed valuations by the sales prices and expressing the quotient as a percentage. Macioci v. Commissioner of Rev., 386 Mass. 752, 756 n. 8, 438 N.E.2d 786 (1982). Thus if the assessment ratio is 1, the assessment and fair cash value are the same; if less than 1, for example, 0.85, it means that the assessed value is only 85% of the fair cash value.

The commissioner's biennial EQV reports are admissible in evidence, and the assessment ratios contained in the EQV reports are prima facie evidence of the ratios at which properties are assessed. See G.L. c. 58A, § 12C (note 3, supra ). According to the 1984 "equalized valuation" (fair cash value) report, the assessment ratio for the single family class in Brookline was 0.85, or 85%, while the ratio for the apartment class was 1.0. The 1986 EQV report states that both the single- and the apartment building class had the same ratio, namely 0.71, or 71%. ⁴

The appellants argue that since their properties were valued at fair cash value (by virtue of their 1992 agreement with the assessors, see note 1, supra ), they are entitled to at least ⁵ a reduction to 85% of fair cash value for fiscal 1985 and to 71% of fair cash value for fiscal years 1986 and 1987. ⁶ See Tregor v. Board of Assessors of Boston, 377 Mass. 602, 612, 387 N.E.2d 538, cert. denied, 444 U.S. 841, 100 S.Ct. 81, 62 L.Ed.2d 53 (1979) (taxpayer who is disproportionately assessed is entitled to an abatement to the assessment of the class of property valued at the lowest percentage of fair cash value).

To counter the appellants' disproportion claim, the assessors presented the testimony of George Moody, deputy chief assessor for the town. Previously he had been chairman of the board of assessors in Plymouth. He explained why the town did not "factor" ⁷ property values during the years following the 1985 fiscal year certification despite the large increase in property values. He pointed out that values in certain neighborhoods typically increase at a rate greater than others and that applying an average percentage factor to all properties of a given class often leads to inequities among the various neighborhoods within a community. His experience in Plymouth where factoring had been tried in one year was that factoring led to a significant increase in abatement applications. In his opinion, values in the various neighborhoods in a city or town do not increase at a uniform rate. Moody also indicated that it was his understanding, which was also the understanding of the appellants' witness from the Department of Revenue, that the commissioner will only allow factoring if the same percentage adjustment is made to all properties of a given class regardless of location.

On the evidence presented, the board concluded that by holding the values of property constant during the revaluation cycle, a practice found by the board to be common among many communities, the assessors made a reasonable effort to apply a uniform standard of valuation to all property and did not employ a deliberate scheme of discriminatory or disproportionate assessment. The board also found that there was no credible evidence that market forces affected the value of single-family residences more than the value of rent-controlled apartment buildings. Pointing out that even with the use of ratios of assessments to fair cash values, "it is impossible to secure exact equality or proportion in the imposition of taxes," Keniston v. Board of Assessors of Boston, 380 Mass. at 896, 407 N.E.2d 1275, the board cited Axelrod v. Board of Assessors of Boxborough, 392 Mass. 460, 463, 466 N.E.2d 517 (1984), a case that rejected the claim of a taxpayer that his remedy was inadequate. The taxpayer argued that the use of a 1978 equalized value of the town during a period of rising prices was improper to determine an abatement for fiscal 1979. The court, although recognizing that "in order to ensure precise proportionality," the fair cash value of the town would have to be determined on the assessment date for the fiscal year in question, held that, "[i]n light of the difficulty of making a determination of the fair cash value of a town," the Legislature could rationally determine that the Department of Revenue need make such determinations only in alternate years. The same considerations precluded burdening the board with making fair cash value determinations for years in which the Department of Revenue did not do so. Id. at 464, 466 N.E.2d 517. Drawing on the analogy of Axelrod, the board supported its decision by stating that it viewed the amendment to G.L. c. 40, § 56, which provided for revaluation and certification every three years, instead of, as previously, every two years, as a Legislative recognition of the administrative burden for cities and towns to comply with the revaluation and certification process. ⁸

As to the prima facie effect of the 1984 assessment to fair cash value ratio as evidence of the town assessment practices for fiscal years 1985 and 1986, the board found that in this period of escalating values, the revaluation and certification of all property...