Opinion
No. 15–P–1204.
06-09-2016
Jon L. BRYAN & another v. BOARD OF ASSESSORS OF MATTAPOISETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, the board of assessors of Mattapoisett (assessors), appeals from a decision of the Appellate Tax Board (ATB) in favor of the plaintiffs, Jon and Nancy Bryan. The assessors ask this panel to reverse the ruling of the ATB that the house on the property at 14 Noyes Avenue adds no value to the property. They further contend that since the cost of remediating mold in the house has been paid to the Bryans by a third party, it is not appropriate to reduce the fair market value of the property due to the presence of mold. Finally, the assessors contend that a taxpayer is obligated to remediate temporary environmental contamination when the taxpayer receives an abatement due to that contamination. We affirm.
Discussion. “A decision of the [ATB] will not be reversed or modified if it is based on substantial evidence and a correct application of the law.” Boston Gas Co. v. Assessors of Boston, 458 Mass. 715, 721 (2011). As the assessors concede, the question is the “fair cash value” of the real estate, which is defined as “the price an owner willing but not under compulsion to sell ought to receive from one willing but not under compulsion to buy.” Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956). The assessors argue that the ATB incorrectly measured the injury to the fair market value of the home because the presence of mold is merely a temporary injury to the property value. We disagree.
Here, the ATB found that the Bryans “credibly testified and presented corroborating evidence sufficient to meet their burden of proving that the presence of mold and brackish water at the subject property seriously compromised its marketability, and therefore, its fair market value.” Additionally, the ATB found that the assessors failed to rebut the Bryans' evidence of the permanence and pervasiveness of the mold within the home, and that it would likely reactivate once exposed to moisture. It also found that the Bryans would have to disclose the presence of the mold to any potential buyer. The assessors properly concede that, where, as here, no transcript of the proceedings below was requested, this panel's review is limited to questions of law.
The assessors' arguments hinge on their contention that the mold contamination of the home is temporary. This is a matter of fact, determined adversely by the ATB and beyond our review in these circumstances. The ATB found that the assessors did not rebut the evidence that mold contamination, even if remediated, lies dormant and can reactivate easily. The assessors' reliance on Black v. Coastal Oil New England, 45 Mass.App.Ct. 461 (1998), is misplaced because in that case, the trial judge found that remediation would “restore the site to its full market value in an uncontaminated state.” Id. at 464.
The assessors also argue that because the Bryans sued the manufacturer of the windows that allowed moisture to enter the walls resulting in mold, and entered a settlement, the Bryans should be forced to spend those funds on remediation. As an initial matter, the amount and other terms of the settlement are not in the record before us, as the assessors properly conceded at oral argument. We will not entertain argument based on facts not in the record. See Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979) (“No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference”). Moreover, the ATB's finding on the success of remediation is dispositive of this argument as well. The existence of the settlement does not bear on the issue at hand—the fair market value of the property. The assessors' reliance on Kanavos v. Assessors of Wilmington, 78 Mass.App.Ct. 1101 (2010), is also unavailing. In that case, the cost of remediation was properly taken into account in the valuation of a property both because all parties used an income capitalization method to value the property, which is not at issue here, and because the remediation actually was undertaken.
In sum, because the assessors have not demonstrated an error of law in the conclusions of the ATB, the decision is affirmed.
So ordered.
Nancy Bryan.