Opinion
19-P-82
11-20-2019
LOWE'S HOME CENTERS, LLC v. BOARD OF ASSESSORS OF DARTMOUTH.
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
On appeal from a decision of the Appellate Tax Board (board), the plaintiff challenges the valuation of certain property it leases in Dartmouth. We conclude that the board's decision is supported by substantial evidence, and affirm.
The property is owned by WW North Dartmouth Subsidiary, LLC, and is encumbered by a ground lease to the plaintiff, which operates a "big box" retail store thereon.
In our review of a decision of the board, "[w]e inquire whether, as matter of law, the evidence is sufficient to support the board's findings. . . . 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), quoting Kennametal, Inc. v. Commissioner of Revenue, 426 Mass. 39, 43 (1997), cert. denied, 523 U.S. 1059 (1998). Put another way (and to describe the inquiry in terms familiar in the field of administrative law), we consider whether the board's decision is supported by substantial evidence, "meaning that findings must be based on 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Peterson v. Assessors of Boston, 62 Mass. App. Ct. 428, 431 (2004), quoting G. L. c. 30A, § 1 (6). "Particularly when dealing with a complex sophisticated subject such as real estate valuation, we give 'due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.'" Peterson, supra at 432, quoting G. L. c. 30A, § 14 (7).
The plaintiff's assertion at oral argument (without citation to authority) that our review is de novo is not merely incorrect, but is directly contrary to the requirements of the statute.
Viewed against that standard, the board's decision is plainly within its authority. The board drew from the testimony of the competing appraisers, but did not adopt the analysis of either of them. For substantially the reasons summarized and explained in the board's decision and in the assessors' brief, the plaintiff's appraiser offered a capitalization rate that was outside the range supported by market conditions. The plaintiff's appraiser also relied on market vacancy reports that were less directly relevant to the conditions of the subject property, both in terms of the geographic region and the nature of "big box" retail use, than those relied upon by the assessors' appraiser. Most fundamentally, the plaintiff's suggestion that our law requires the value of the property to be based on a hypothetical lease to a tenant at will, rather than for a term of years, is both incorrect and without supporting authority.
Though the plaintiff correctly observes that Olympia & York State St. Co., 428 Mass. at 247, directs that a property such as the subject property be valued "as if no leases are in effect," it does not require that the resulting valuation be derived based on an assumption that the property would be leased on a month-to-month basis.
The decision of the board is supported by substantial evidence, and is affirmed.
So ordered.
By the Court (Green, C.J., McDonough & Englander, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 20, 2019.