Anna Harris Smith Conservation Trust, Inc. v. Board of Assessors of the Town of Pembroke (April 1, 2015)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ANNA HARRIS SMITH   	      v.		  BOARD OF ASSESSORS OF   
CONSERVATION TRUST, INC.				  THE TOWN OF PEMBROKE
					
	         
Docket No. F317393					  Promulgated:
								  April 1, 2015


	This is an appeal filed under the formal procedure, pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the Board of Assessors of the Town of Pembroke ("appellee" or "assessors") to abate a tax on certain real estate in Pembroke, owned by and assessed to Anna Harris Smith Conservation Trust, Inc. ("Trust" or "appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2012 ("fiscal year at issue").  
	Commissioner Good heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Rose and Chmielinski joined her in the decision for the appellee. 
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32. 

	Mark J. Lanza, Esq. for the appellant.
	
Catherine M. Salmon, assessor for the appellee.


Findings of Fact and Report

On the basis of the evidence presented, including the testimony and documentary exhibits entered into the record, the Appellate Tax Board ("Board") made the following findings of fact.
Introduction and jurisdiction  
On January 1, 2011, the relevant assessment date for the fiscal year at issue, the Trust was the assessed owner of a 59.5-acre parcel of vacant land, identified on the assessors' Map E10 as Parcel 71A and located off of Washington Street in Pembroke ("subject property").  
For the fiscal year at issue, the assessors valued the subject property at $594,900 and assessed a tax thereon, at the rate of $13.91 per thousand, in the total amount of $8,275.06.  In accordance with G.L. c. 59, § 57A, the appellant paid the tax due for the fiscal year at issue without incurring interest.  On February 1, 2012, in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors, seeking an abatement of the tax on the grounds that the subject property was exempt under G.L. c. 59, § 5, Clause Third ("Clause Third"), which provides an exemption for property owned and occupied by charitable organizations.  The assessors denied the appellant's Application for Abatement on April 9, 2012.  On July 6, 2012, in accordance with G.L. c. 59, §§ 64 and 65, the appellant seasonably filed its petition with the Board.  On the basis of these facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
The subject property is a vacant parcel of wooded land, with wetlands in some areas.  The subject property has no frontage but is backland located off of Washington Street.  It is situated adjacent to an approximately 9-acre parcel that was owned by the Animal Rescue League of Boston ("ARL") for the operation of a shelter.  By deed dated June 15, 2003, the appellant acquired the subject property from the ARL for nominal consideration.  Pursuant to a confirmatory fiduciary deed dated June 21, 2005, the appellant has the right and easement to use the abutting parcel of land owned by the ARL for access to the subject property from Washington Street by foot, horseback, and in motor vehicles.   
The subject property is owned by the Trust, which was incorporated on January 22, 2003.  According to its Articles of Organization, the purposes of the trust are:  
To establish one or more refuges for the wild and domesticated animals, in addition to any other charitable or benevolent act for the welfare of animals in connection with and for the benefit of the Animal Rescue League of Boston;

To promote the conservation and protection of natural resources by utilizing real property in a manner consistent with environmentally sound practices (The term "natural resources" shall include but not be limited to agricultural land, woodlands, open space, wetlands, ponds, streams, unique land formations, wildlife, and habitats for wildlife);

To make wild, open, and unspoiled places accessible to the public in ways that are consistent with preserving and protecting the habitat of the creatures who live there;

To utilize any or all of such property for educational purposes, specifically, for inculcating in young and old respect for nature, and kindness towards all animals, wild and domestic;

To provide final resting places for deceased animals, in an environment that protects and preserves the natural features of such areas;

To use conservation easements, agricultural restrictions, environmentally sound subdivision methods, and other techniques to promote the conservation and protection of natural resources consistent with the protection of land in Pembroke, Massachusetts and elsewhere; and

To solicit, collect and otherwise raise funds for the protection of land in Pembroke, Massachusetts and elsewhere for the purpose of directly and indirectly preserving open space and protecting natural resources. 

The appellant's case-in-chief
The Trust presented its case-in-chief through the testimony of its two witnesses, Robie White and Robert Williams.
Mr. White, the Chief Operating Officer for the ARL, was, during the period relevant to this appeal, serving as the Chief Financial Officer for the ARL.  He testified to the relationship between the ARL and the Trust, explaining that the ARL formed the Trust with the purpose of donating the subject property to it.  The ARL originally owned the subject property and the adjacent property that had previously housed the ARL's animal shelter before the shelter closed.  The two parcels together totaled sixty-nine acres.  Mr. White testified that the ARL decided to form the Trust and donate the subject property to it, because "we realized that we didn't need sixty-nine acres for a shelter."  He explained that the Trust was named after Anna Harris Smith, who was the founder of the ARL, and that the ARL and the Trust share directors in common.  Mr. White testified that, while ARL has a broad-based mission relating to animals, it wanted to create a separate organization, with a focus on providing a "wildlife sanctuary," to own and manage the subject property.  However, he testified that he himself had never observed wildlife on the subject property.  He also stated that one of the purposes of the Trust was to promote the conservation of the existing land.  When asked by counsel what type of vegetation was present at the subject property, Mr. White responded that there was a combination of "trees and shrubs."  
Mr. White next described some of the features of the subject property.  He testified that a brook runs through the subject property, which he had never observed to be dry, and that the Department of Fisheries and Wildlife had designated a portion of the subject property as a habitat or "potential habitat" for the Eastern Box Turtle.  Mr. White further testified that the subject property had no structures other than an approximately 5-foot wide, 100-yard long wooden boardwalk which ended at a viewing platform near the brook.  He testified that the Trust had engaged the Audubon Society to construct the walkway and that the Trust maintains the walkway.  
As an example of this maintenance, Mr. White referred to equipping the trail with dog-litter stations and ensuring periodic removal of waste from them.  Mr. White further stated that there are several trails throughout the subject property that the general public can use for hiking and walking dogs.  The Trust additionally introduced into evidence a photograph to show that the subject property also contained a part of a memorial wall, dedicated to deceased pets, that was constructed of the bricks that had previously formed a walkway to the former ARL shelter.  Mr. White testified that after the ARL shelter was closed, the bricks were excavated and formed into a wall, part of which was located on the subject property.  
Mr. White next testified to the means by which the Trust made the subject property accessible to the public.  He testified that the Trust built the walkway to enable the public to traverse part of the subject property, since it was mostly wetlands.  To explain how the Trust notified the public that it was invited to use the subject property, it submitted into evidence a copy of an article, dated March 16, 2007, in a publication, "Wicked Local Pembroke," entitled "ARL Pembroke facility extends hours prior to closure."  This one-page article includes two sentences explaining the availability of the subject property to the public:  "The League will also continue preserving its 60-acre nature sanctuary to the rear of the Pembroke facility.  This parcel, subdivided and split off from the original 69-acres purchased by the League in 1994, will continue to be available to the community for nature trails and dog walking."  On cross-examination, Mr. White admitted that "Wicked Local Pembroke" was the only publication he could pinpoint that had advertised or otherwise mentioned the availability to the public of the subject property's grounds, but that he thought that this piece "was representative of the efforts of the Trust to inform the public."  The Trust advanced no other evidence on this matter of invitation to the public.
The Trust's next witness was Robert Williams, the Director of Facilities for the ARL.  When asked what duties he performs for the Trust relative to the subject property, Mr. Williams testified that he "swings by" the subject property on a "[m]onthly basis, for the most part. Plus or minus." 
Mr. Williams testified to performing the following duties: clearing the pathways of brush if needed; checking for vandalism; insuring that all signage remains intact; and tending to the dog waste stations, which he admitted were not heavily used and therefore did not need to be emptied frequently.  Mr. Williams further testified that he had found evidence of hunting at the subject property, so he posted signs that prohibit hunting and trapping.  In addition, Mr. Williams testified that the boulder at the beginning of the boardwalk path included a plaque indicating that the subject property was owned by the Trust.  Finally, Mr. Williams stated that, as part of his duties, he traverses the boardwalk to its end about three times a year.  
When asked about the wildlife that he had observed at the subject property, Mr. Williams responded:  "Deer, squirrel . . . I have seen some other small wildlife.  I'm not sure, you know, scattering through the woods when I've walked the trail, not knowing if it could have [been] a rabbit or a small fox, but there is evidence of wildlife on the property."  He further testified that Little Pudding Brook runs through the subject property, that the boardwalk ended at a landing overlooking that brook, and that he had never observed it to be dry.  When asked how many times he had traversed the boardwalk and observed the brook, Mr. Williams testified:  "Well, I've been with the League for six years, I'd probably say three times a year, eighteen to twenty-four times over the last six years."  
In addition, Mr. Williams testified that the subject property does not "get a lot of activity," and that activity, as well as his presence, at the subject property has declined since the adjacent ARL shelter shut down.  Mr. Williams testified that he typically visits the subject property at midday, and when asked how often he encounters people at the subject property when he visits, he responded, "not often."  Upon cross-examination, Mr. Williams testified that he had no knowledge of any notice provided by the Trust to the public regarding the availability of the subject property for use by the public, other than the few lines in the "Wicked Local Pembroke" article.  Upon questioning by the Presiding Commissioner, Mr. Williams testified that the Trust does not hold any activities or events at the subject property.  
The assessors' case-in-chief
The assessors presented their case-in-chief through the testimony of Assessor Catherine M. Salmon, who also submitted photographs of the subject property.  Ms. Salmon testified that the subject property is located behind the former ARL property and did not have frontage of its own and therefore, it is not easily accessible to the public.  She further testified that, as a resident of the town of Pembroke as well as an assessor, she had no knowledge of the existence of any trails on the subject property prior to her dealings with the subject property for the abatement appeal.  She further testified that there were never any signs posted at the former ARL property to inform the public that they were invited to enter the subject property and use its trails.  Instead, she testified that, to access the subject property, one would have to first approach the abandoned ARL property and then traverse its long driveway.  She stated that no one approaching through the ARL property would ever realize there was an easement enabling access from Washington Street to the subject property, as there was no sign announcing the easement. 
In fact, Ms. Salmon further testified that there are actually signs posted at the subject property alerting the public that it was "private property," which she opined created a further disincentive for the public to enter the property.  Mr. Williams was allowed an opportunity to explain that the "private property" sign in the assessors' exhibit was the same "no hunting" sign to which he had referred in his testimony.  Mr. Williams described the sign as a generic "no hunting" sign, which simply included what he would characterize as stock "posted private property" language.  However, a photocopy picture of the so-called "no hunting" sign, entered into evidence, showed the sign's "posted private property" language emblazoned prominently in large capital letters, with the remaining text, including the language prohibiting hunting, in much smaller, less visible font below.  In fact, this language was not even legible on the copy of the picture submitted to the Board.  The Board found that a visitor to the subject property would notice the "private property" language immediately and from a much farther vantage point than the smaller "no hunting" language at the bottom of the sign.  
The Board's exemption findings.
On the basis of all of the evidence, the Board found that the Trust was created by the ARL, just a few months before the ARL transferred the property to it, for the express purpose of owning the subject property.  The Trust did not own or manage any other property, nor did have its own employees.  Rather, it shared directors in common with the ARL and employees of the ARL performed services for the Trust.  
According to the testimony of Mr. White, the ARL wished to have the subject property managed by an entity that could specifically focus on providing a "wildlife sanctuary," and it also wished to promote conservation and preservation of natural resources at the subject property.  However, the record was essentially void of evidence showing any meaningful efforts on the part of the Trust to carry out those objectives.  
As an initial matter, the Trust's witnesses displayed only a limited knowledge, at best, of the types of flora and fauna it was allegedly trying to preserve.  For example, Mr. White himself testified that he had never observed wildlife at the subject property.  When asked by counsel what type of vegetation was present at the subject property, Mr. White was unable to give a more specific answer than "trees and shrubs."  Likewise, Mr. Williams, the person charged most directly with maintaining the subject property, manifested only a very casual knowledge of the wildlife present at the subject property.  Specifically, he testified that he had observed "deer, squirrel," and other "small wildlife" - possibly foxes or rabbits - "scattering through the woods."  
In addition to this limited knowledge, the Board found that the conservation activities undertaken by the Trust at the subject property were minimal.  Those efforts consisted of "swing[ing] by" to check signs and dog waste stations at the edge of the subject property approximately once a month, clearing brush from the pathways if necessary, and traversing into the subject property approximately three times a year.  
Furthermore, no evidence was offered showing that the Trust held events or programs at the subject property, nor that it published promotional materials or maintained a website. Although the Trust alleged that the subject property was available to the public for hiking, dog walking, and the like, it was able to demonstrate only a single instance in which it informed the public of the availability of the subject property.  That single instance was a one-time mention of the subject property in a local publication, and it occurred several years prior to the fiscal year at issue in this appeal. Moreover, there were no signs around the subject property inviting the public to make use of it. 
On the contrary, the signs that were posted on the subject property stated, in prominent print, "posted private property," and only in much smaller print did they contain language prohibiting hunting.  Although Mr. Williams testified that he posted the signs because he had observed evidence of hunting on the subject property, and the Trust wished to discourage that practice, the Board found that the signs did not create a reasonable expectation that a visitor would feel welcomed so long as they refrained from hunting.  Rather, a person venturing onto the subject property would most likely believe they were trespassing. The Board further found credible Ms. Salmon's testimony that the entrance to the subject property through a long path winding past the shuttered ARL shelter, which lacked signage announcing the presence of the easement over the ARL property giving access to the subject property, together with the "private property" signs, strongly discouraged the public from making use of the subject property.       
Therefore, based on the evidence of record and for the reasons explained more fully in the following Opinion, the Board found that the appellant did not demonstrate that it was a bona fide conservation organization or otherwise a charitable organization for purposes of Clause Third, or that it occupied the subject property in furtherance of its stated charitable purposes.  Accordingly, the Board found that the appellant failed to meet its burden of establishing that the subject property qualified for the charitable exemption found in Clause Third, and it thus issued a decision for the assessors in this appeal.
  				 	 OPINION   
 	Pursuant to G.L. c. 59, § 2, all property, real and personal, situated within the commonwealth . . . unless expressly exempt, shall be subject to taxation.  Clause Third provides an exemption for "real estate owned by or held in trust for a charitable organization and occupied by it or its officers for the purposes for which it is organized."  (emphasis added).  Thus, a taxpayer seeking exemption under Clause Third must satisfy both prongs of this two-pronged test. See Mary Ann Morse Healthcare Corp. v. Assessors of Framingham, 74 Mass. App. Ct. 701, 703 (2009).  "The burden of establishing entitlement to the charitable exemption lies with the taxpayer." Western Massachusetts Lifecare Corp. v. Assessors of Springfield, 434 Mass. 96, 101 (2001).  "Any doubt must operate against the one claiming a tax exemption."  Boston Symphony Orchestra v. Assessors of Boston, 294 Mass. 248, 257 (1936).  
Qualification as a Charitable Organization 
	An organization's legal status as a charitable organization or its exemption from Federal taxation under § 501(c)(3) of the United States tax code is not sufficient to establish it as a "charitable organization" for purposes of Clause Third.  Western Massachusetts Lifecare Corp., 434 Mass. at 102.  Nor are the stated purposes in its articles of organization sufficient to qualify it as a charity for purposes of Clause Third.   Rather, it must prove that "it is in fact so conducted that in actual operation it is a public charity."  Jacob's Pillow Dance Festival, Inc. v. Assessors of Becket, 320 Mass. 311, 313 (1946).  
The term charity, in a legal sense, has been described as:
a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.  

Boston Symphony Orchestra, 294 Mass. 254-55.  

	Historically, courts and this Board have considered a list of non-determinative factors in deciding whether an organization is charitable for purposes of Clause Third.  Among those factors is whether the organization at issue offers its services or benefits "to a large and 'fluid' group of beneficiaries."  See New Habitat, Inc.  v. Tax Collector of Cambridge, 451 Mass. 729, 732 (2008) (quoting New England Legal Foundation, 423 Mass. at 62).  How much weight any particular factor will be given depends on how close an organization's "dominant purposes and methods are to traditionally charitable purposes and methods."  New Habitat, Inc., 451 Mass. at 733.  "The closer an organization's dominant purposes and methods are to traditionally charitable purposes and methods, the less significant these factors will be" in the determination of its charitable status for purposes of Clause Third. Id. 
	Recently, in New England Forestry Foundation, Inc.  v. Assessors of Hawley, 468 Mass. 138 (2014), the Supreme Judicial Court considered whether land owned by a conservation-oriented organization qualified for the exemption in Clause Third.  In that case, the Court held that conservation serves a "traditionally charitable" purpose and that the organization in question in that case conducted activities and provided benefits that "inure[d] to an indefinite number of people and lessene[d] the burdens of government."  New England Forestry Foundation, Inc., 468 Mass. at 155.     
In reaching that conclusion, the Court considered the organization's long history, its extensive real estate holdings, and its many activities.  Established in 1944, New England Forestry Foundation, Inc. ("NEFF") is one of the largest land-conservation organizations in Massachusetts. New England Forestry Foundation, Inc., 468 Mass. at 140.  It owns outright over 23,000 acres of land in five states and holds conservation easements on over one million additional acres across seven states.  In Massachusetts alone, NEFF owns 7,500 acres of conservation land, including the 120-acre parcel of land at issue in that case. Id.  NEFF's articles of organization state that its charitable purpose is to "create, foster, and support conservation, habitat, water resource, open space preservation, recreational, and other activities" by "promoting, supporting, and practicing forest management policies and techniques to increase the production of other natural resources," and to "support and engage in and advance scientific understanding of environmental issues through research." Id.  NEFF's staff includes licensed foresters, and it offered evidence showing that it "engaged in sustainable forestry practices [at the property at issue and that it used the property] to track the effects of its land management." Id. at 158. Specifically:

Shortly after acquiring the parcel at issue . . . NEFF hired an independent licensed forester to develop a "forest management plan" for the maintenance of the forest. The first round of activities recommended by the plan was carried out in 2000, and included such actions as removal of "mature and poor quality white pine and spruce saw logs" to "release good quality growing stock"; "[c]ombination strip cuts and patch cuts for wildlife and softwood regeneration," and the layout of a "loop demonstration trail" near "old growth type hemlocks" taking into consideration "erosion on fragile soils." In 2009, the plan was updated, and a tree inventory of the forest was conducted. The 2009 plan recommended that NEFF conduct a patch harvest of approximately sixty-five acres in 2010 and a harvest of a second patch in 2016. 

Id. at 141.	NEFF also offered evidence showing that "it produce[d] a range of awareness-raising materials and h[eld] conferences and continuing education programs for foresters regarding sustainable forestry practices[.]"  Id. at 158.  
	In contrast, the Trust at issue in the present appeal provided no evidence that it engaged in activities similar to those of NEFF in furtherance of its stated charitable purposes.  It was formed expressly to own - and it only owns - the subject property.  Unlike NEFF, the Trust did not maintain a website or publish promotional materials of any kind.  See id.; New England Forestry Foundation, Inc. v. Assessors of Hawley, Mass. ATB Findings of Fact and Reports 2013-63, 69.  The Trust provided no evidence showing that it engaged in any sort of educational outreach or awareness-raising activities or programs, nor did it offer evidence showing that it conducted research or studies of the wildlife and vegetation present on the subject property.  Rather than any sort of comprehensive study or research, the evidence offered by the Trust revealed, at best, a limited awareness of which wildlife and vegetation were even present at the subject property.  Further, other than the occasional clearing of brush from walking paths and infrequent removal of waste from dog waste stations, the Trust offered no evidence that it engaged in meaningful conservation or preservation efforts at the subject property, such as creating an analysis of the wildlife and vegetation present at the subject property or any sort of long-term maintenance plan for them. See New England Forestry Foundation, Inc., 468 Mass. at 141. 
Further, while the Court in NEFF did not "propose a precise formula for determining whether an organization is a 'bona fide' conservation organization," it did provide a list of factors that may be relevant in such a determination.  Those factors include:
membership in regional, State or national coalitions of conservation organizations; recognition by government entities or the scientific or academic community as a trusted community resource; partnership with local municipalities in carrying out G. L. cc. 61, 61A, or 61B (such as being selected by a town or city to exercise its right of first refusal under G. L. c. 61, § 8); ownership of multiple parcels in various locations of a similar ecological sort or of a variety consistent with the organization's stated mission; expertise of staff members in land conservation and environmental initiatives; success in receiving competitive grants from Federal or State agencies; certifications or accreditations from government or other appropriate entities; invitations from policy makers or State agencies to participate in regional or Statewide strategic planning initiatives[.]  

Id. at 151, fn. 10.

	The Trust at issue in this appeal had none of the listed hallmarks of a bona-fide conservation organization and the Board found that the absence of these indicia militated against the conclusion that the Trust was a bona-fide conservation organization or an otherwise charitable organization for purposes of Clause Third.  To the contrary, the Board concluded that the Trust more closely resembled organizations which it has previously found did not qualify for the exemption in Clause Third. See Wing's Neck Conservation Foundation, Inc. v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2003-329, 335-6 (finding that organization which acquired and held unimproved tracts of land abutting the private property of the organization's members did not demonstrate that it was in actual operation a public charity).  
In sum, although "holding land in its natural pristine condition and thereby protecting wildlife habitats, filtering the air and water supply, and absorbing carbon emissions," New England Forestry Foundation, Inc., 468 Mass. at 152, undoubtedly provides some benefit to the public in general, the Trust did not demonstrate a pattern of consistent or concerted conservation or preservation efforts sufficient to distinguish it from any other private landowner who simply holds several acres of land in an undeveloped state.  See Id. at 156.   Thus, the Board could not find on this record that the Trust proved that it provided benefits to a sufficiently large segment of the public or "lessen[ed] the burdens of government" to a degree that would qualify it as a charitable organization for purposes of Clause Third.  See Wing's Neck Conservation Foundation, Inc., Mass. ATB Findings of Fact and Reports at 2003-336 ("[A]lthough the conservation of open space for the benefit of the general public is a most laudable goal, [the evidence failed to establish that the organization in question] was in actual operation a charitable organization."). 
Occupation of the Property for Charitable Purposes
Even had the Board found that the Trust was a charitable organization for purposes of Clause Third, which it did not, it would still be necessary to examine whether the Trust occupied the subject property in furtherance of its charitable purposes.  Occupancy is "'something more than that which results from simple ownership and possession. It signifies an active appropriation to the immediate uses of the charitable cause for which the owner was organized.'" Assessors of Boston v. Vincent Club, 351 Mass. 10, 14 (1966) (quoting Babcock v. Leopold Morse Home for Infirm Hebrews & Orphanage, 225 Mass. 418, 421 (1917)). 
In the past, it had been held that:
simply keeping the land open . . . is not enough to satisfy the requirement of 'occupying' the property within the meaning of the statute. Rather, there must be an 'active appropriation to the immediate uses of the charitable cause for which the owner was organized.' 
Forges Farm, Inc. v. Assessors of Plymouth, Mass. ATB Findings of Fact and Reports 2007-1197, 1207,  (quoting The Vincent Club, 351 Mass. at 14 (other citations omitted)).   In New England Forestry Foundation, Inc., the Court addressed the difficulty of this limitation for property owned by conservation-oriented organizations, where an overly active use or significant development of the property is inimical to the organization's stated charitable purpose.  New England Forestry Foundation, Inc., 468 Mass. at 157 (noting that requiring an organization to promote and facilitate public access on the land it seeks to exempt could, in certain circumstances "thwart the very conservation objectives" it seeks to achieve.).  The Court pronounced that "in a case such as NEFF's where the entry of the public onto the land is not necessary for the organization to achieve its charitable purposes, the promotion and achievement of public access is not required to demonstrate occupancy of the land in order to qualify for a Clause Third exemption."  Id.  
Instead, the Court stated, the inquiry must begin with "whether the entity takes affirmative steps to exclude the public from the land, such as through physical barriers, 'no trespassing' signs, or actively patrolling the land."  Id.  For organizations that do engage in exclusion, the Court announced a "heightened burden to show that such exclusion of the public is necessary to enable it to achieve its charitable purposes."  Id. 
Adding to the complexity of the inquiry, as the Court recognized, is that "both private and charitable landowners may have an incentive to hold land in an undeveloped state. As a result, even after an organization has demonstrated that it is a charitable organization, "it must also demonstrate that it occupies the parcel at issue in a manner less like a private landowner and more like an entity seeking to further the public good."  Id. at 156.  The Court considered these factors, noting that NEFF does not exclude the public from its land and that it "offered evidence demonstrating how [it] uses the land as a site on which it carries out sustainable forestry practices," before concluding that NEFF occupied the land at issue within the meaning of Clause Third.  Id. at 158.  
Applying these factors to the facts of the present appeal, the record showed that the Trust posted "private property" signs on the subject property, sufficient to trigger a "heightened burden."  Id. at 157.  The record further showed that evidence of hunting at the subject property was what prompted the Trust to post the signs.  Although hunting is inharmonious with the Trust's stated goal of facilitating a refuge for wild animals, and posting signs that exclusively discouraged hunting could well meet the "heightened burden," the signs posted by the appellant most prominently featured the words "private property," and only in much smaller font contained additional language to discourage hunting.  Based on the evidence presented, the Board found that members of the public viewing the signs would most likely conclude that they were not welcome to use the subject property at all, even for uses consistent with the Trust's stated charitable purposes.  The Board found and ruled that by posting the "private property" signs, the Trust "occupie[d] the parcel at issue in a manner" more like a "private landowner" and less "like an entity seeking to further the public good."  Id. at 156.  
More important, however, was the Trust's failure to demonstrate its use of the subject property in furtherance of its stated charitable purposes.  Among the Trust's stated charitable purposes was "inculcating in young and old respect for nature, and kindness towards all animal, wild and domestic," however, it did not offer guided nature walks, lectures, or other educational activities at the subject property to advance these goals.  Contrast id. at 158 (holding that conservation organization occupied the property at issue in furtherance of its charitable purposes where it offered conferences and other educational programs as well as pre- and post-harvest tours of the property).  Although the Trust's stated purposes included providing "final resting places for deceased animals," it did not provide evidence that it undertook, or offered to the public, burials for deceased animals at the subject property.  Similarly, although the Trust's stated purposes included making "wild, open, and unspoiled places accessible to the public," it made no efforts, save for a one-time announcement in a local publication, years prior to the period at issue in this appeal, to inform the public of the availability of the subject property.  In addition, although the Trust's stated charitable purposes included using "environmentally sound practices" and "other techniques to "promote the conservation and protection of natural resources," it offered no evidence that it undertook any studies or other assessments of the wildlife, trees, or any other natural resources present at the subject property, or that it formed any sort of short- or long-term plan aimed at advancing their well-being.  Contrast id. at 159 (holding that conservation organization occupied the property at issue in furtherance of its charitable purposes where it hired an independent forestry consultant and created and carried out a comprehensive forest management plan).  The Trust failed to offer evidence showing that it used the subject property in a way that promoted its stated charitable purposes, and the Board thus found and ruled that the Trust did not occupy the subject property as required by Clause Third. 
In conclusion, after considering the evidence of record, and applying the analysis set forth by the Court in New England Forestry Foundation, Inc., as well as other relevant precedent, the Board found and ruled that the Trust was not a charitable organization for purposes of Clause Third and that it did not occupy the subject property in furtherance of its stated charitable purposes as contemplated by Clause Third.  Accordingly, the Board found and ruled that the subject property was not exempt from tax under Clause Third, and it issued a decision for the assessors in this appeal. 

					THE APPELLATE TAX BOARD

 		    
					By: 				___________	___
    Thomas W. Hammond, Jr., Chairman



A true copy,

Attest:		______	________
	     Clerk of the Board

 This amount is exclusive of the Community Preservation Act surcharge of $68.84.
 The confirmatory fiduciary deed was prepared to correct errors in the original deed, dated June 15, 2003, pertaining to the description of the subject property's property line.  
 The Board is mindful that there is no "affirmative duty to promote and facilitate public access on conservation lands in order to satisfy [Clause Third's] occupancy requirement," Id. at 156, and it considered this factor as only one of many indicators that the Trust did not use the subject property in a manner which furthered its stated charitable purposes.  

ATB 2015-148