Shrine of Our Lady of LaSalette v. Board of Assessors of the City of Attleboro (September 9, 2015)

 COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


SHRINE OF OUR LADY 		       v.		  BOARD OF ASSESSORS OF 
OF LASALETTE    					  THE CITY OF ATTLEBORO
				
	         
Docket No. F320598					  Promulgated:
								  September 9, 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 City of Attleboro ("appellee" or "assessors") to abate a tax on certain real estate in Attleboro, owned by and assessed to Shrine of Our Lady of LaSalette ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2013 ("fiscal year at issue").  
	Commissioner Rose heard this appeal.  Chairman Hammond and Commissioners Scharaffa, Chmielinski, and Good joined him 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. 

	Richard L. Wulsin, Esq. for the appellant.
	
Michael R. Siddall, Esq. for the appellee.





FINDINGS OF FACT AND REPORT


On the basis of the evidence offered at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact. 
On January 1, 2012, the appellant was the assessed owner of several parcels of land, totaling 199 acres, which were improved with a variety of structures and buildings, located at 947 Park Street in Attleboro (collectively, the "subject property" or "shrine").  For the fiscal year at issue, the assessors valued the subject property in its entirety at $12,815,800.  However, the assessors determined the taxable portions of the property to have a value of $4,955,740, on which they assessed taxes in the total amount of $92,292.98.   
The appellant paid the taxes due, with interest in the amount of $145.85.  The appellant filed an Application for Abatement with the assessors on January 27, 2013, which the assessors denied on April 4, 2013.  On July 1, 2013, the appellant timely filed its appeal with the Board.  Based on the foregoing facts, the Board found and ruled that it had jurisdiction to hear and decide this appeal.
In its petition, the appellant claimed that the subject property was exempt from tax under G.L. c. 59, § 5, Clause Third ("Clause Third") and Clause Eleventh ("Clause Eleventh").  It additionally contested the valuation of the subject property.   The appellant later waived its claim under Clause Third, after conceding that the appropriate jurisdictional forms for exemption under Clause Third had not been filed, and it likewise withdrew its claim contesting the valuation of the subject property.  Accordingly, the only issue presented for the Board's consideration was whether the subject property was exempt from taxation under Clause Eleventh. 
The Subject Property
The appellant presented its case through the submission of numerous documentary exhibits as well as the testimony of Father Cyriac Mattathilanickal ("Father Cyriac"), who is a priest affiliated with the Missionaries of Our Lady of LaSalette ("Missionaries").  
According to Father Cyriac, the Missionaries are an international Catholic religious community inspired by what was believed to be an apparition of the Virgin Mary ("Our Lady") to two children in the small village of LaSalette, France, on September 19, 1846.  Pilgrims have regularly flocked to that site since that time, and a shrine, which is erected to promote a particular devotion, was created there.  In the many years since, additional shrines honoring Our Lady were erected worldwide, including the subject property.  Father Cyriac testified that though there are many LaSalette shrines throughout the world, there can be only one national shrine in each country.  The subject property opened to the public in 1953 and was designated as the national LaSalette shrine for the United States in 2009.  
Photographs and diagrams of the subject property were entered into the record, in addition to testimony describing its improvements, which include: two large parking lots; a large church; two indoor chapels and an outdoor chapel; a retreat center; a monastery; a building which was formerly a convent; and storage and maintenance buildings.  There is also a large welcome center, which houses: conference rooms; restrooms; a cafeteria; a bistro; a gift shop; and an area for the display of nativity sets - also known as crèches - gathered from all over the world.  
In addition to these buildings, the subject property also features several discreet outdoor areas, including: the Garden of the Apparition; the Holy Stairs; the Stations of the Cross; St. Joseph's Garden; St. Francis' Garden; and the Rosary Pond and Rosary Walk.  
Lastly, much of the subject property consists of unimproved land.  One tract, of approximately 110 acres improved with only one residential building - the aforementioned former convent - is known as the Attleboro Springs Wildlife Sanctuary ("Sanctuary").  In 2009, the appellant created the Sanctuary and granted a conservation easement to the Massachusetts Audubon Society, which thereafter managed the Sanctuary, as an area containing open space and walking trails and available to the public for passive recreation.  
The appellant is a Massachusetts not-for-profit organization.  According to its articles of organization, its purposes are:
To promote the devotion to Our Lady of LaSalette through the organization of public pilgrimages and through the administration of the Sacraments of the church; to provide guidance to the pilgrims visiting the Shrine; to provide food and housing, if necessary, for the proper care of the pilgrims; to offer to said pilgrims the opportunity of purchasing religious articles and books of all kinds; to seek contributions for the development and support of said Shrine; to use any or all of said funds for the religious education of young men training for religious and missionary priesthood; to provide funds to further foreign missions; and to do such further acts as are necessary and incidental to the carrying out of the purposes hereinbefore set forth. 

There was ample description in the record of the services provided at the shrine and the activities taking place there.  Documentary evidence, and the testimony of Father Cyriac, showed that masses are held daily at the shrine, in addition to specialized prayer services and prayer groups, including but not limited to, rosary prayer groups. The shrine also offers the sacrament of reconciliation, popularly known as confession, on a daily basis.  The shrine is perhaps best known for its annual display of Christmas lights ("Festival of Lights"), which takes place every year from Thanksgiving Day to early January.  For six decades, the shrine has erected a Christmas display on the shrine grounds featuring approximately 400,000 Christmas lights and decorations.  It is a major seasonal attraction, drawing nearly 400,000 visitors annually.  
	In addition to the Festival of Lights and the aforementioned daily services, the shrine hosts a variety of other periodic activities, such as religious retreats, concerts, and various fundraising events, which are discussed in greater detail below. 
	According to Father Cyriac, pilgrims visiting the shrine can range from a single area resident making a brief visit to groups of thousands of international pilgrims who stay for as long as seven or eight hours.  Father Cyriac described what a typical pilgrimage to the shrine looks like.  He stated that they usually begin by ushering the pilgrims into the welcome center, where they are shown a video presentation about Our Lady of LaSalette.  He testified that they then go to the shrine church to pray a rosary or perhaps to the chapel for confession, followed by a tour of the shrine grounds and gardens. 
	Father Cyriac testified that pilgrims then make their way to the cafeteria for lunch, which can either be a meal that they bring for themselves or a meal catered by the cafeteria.  Father Cyriac testified that pilgrims are not charged for the lunches prepared by the shrine apart from the donation fee that is made in connection with the pilgrimage.  In fact, the cafeteria is not generally open to the public for the purchase of meals.  The only time that it is open for the public to purchase a meal is during the Festival of Lights, because of the excessive number of people visiting, and on Fridays during the season of Lent, which is the forty-day period leading up to Easter Sunday.  During Lent, the cafeteria is open from 11:00 a.m. to 1:00 p.m. and again from 5:00 p.m. to 7:00 p.m. for what Father Cyriac described as a "Lenten meal" of fish and chips.  Aside from these uses, the cafeteria functions as a soup kitchen serving free meals to the poor every Monday, and it is used on occasion as overflow space in which to host a lecture or workshop offered by the shrine.  
	While the cafeteria is not open to the public for the purchase of food every day, the shrine's bistro is open daily from 12:00 p.m. to 5:00 p.m.  However, it is a much smaller space than the cafeteria and offers a much more limited menu, including muffins, chocolate, ice cream, sandwiches, soda, coffee, and water.   The shrine's gift shop, where religious items such as books, statues, and rosary beads are sold, is also open daily from 10:00 a.m. to 5:00 p.m.
	Father Cyriac testified to the uses of some of the other buildings on the subject property.  The monastery serves as the residence for approximately three dozen clergy associated with the shrine.  It also has its own chapel and an office for the shrine director and his secretary.  The former convent located at the shrine is leased out to another entity called Abundant Hope, which operates a safe house for battered women on the premises.  As for the maintenance building, Father Cyriac testified that it is used to store: display items for the Festival of Lights during the off season; inventory for the gift shop; and golf carts and other maintenance vehicles and equipment used on the subject property.   
The evidence, including Father Cyriac's testimony as well as a lengthy schedule of events entered into the record, showed the shrine to be a virtual beehive of activity.  In addition to the many daily religious offerings, events taking place at the subject property included: farmer's markets; yard sales; clambakes; car shows; carnivals; circuses, and other fundraising and seasonal festivities. The shrine frequently leases or makes available space for use by other entities, including, but not limited to, various Catholic youth groups and ethnic groups, along with other charitable and governmental entities.    Some examples of these third-party users are: the City of Attleboro, for use as voting polls during elections; the Lions Club, a non-profit fraternal organization, for an antique car show fundraiser; a Native American group for a Pow Wow; Catholic organizations such as the Knights of Columbus and St. Vincent de Paul Society, for private events and fundraisers; and a non-profit business networking group for a networking presentation for Spanish speakers.  
In addition, the evidence showed that the shrine occasionally leased space to private groups and individuals for private functions, such as:  to a family for a baptismal party; to a family for a wedding rehearsal dinner;  to a group of families for an RV camping weekend; and to a for-profit transportation company for a presentation on religious tours and travel.  Fees, or donations, as they are called, for these groups and individuals varied.  The Lions Club, for example, paid $900 to have their antique car show at the shrine and the Native American group paid $1,000, while the City of Attleboro paid $450 to use the shrine as a polling place.  The Knights of Columbus paid $300 to host a private memorial gathering honoring a deceased priest, and the non-profit business networking group paid $200 to have their networking event.  The shrine was also used, at no charge, by the American Red Cross for a blood drive.  
Lastly, the shrine operated its own fundraising events at the subject property.  Examples of these events include: a "Touch a Truck" event, in which large trucks are made available to young children to climb in and tour, which raised $2,000; a Christmas Bazaar, at which various vendors, artists, and bakers sell their wares, which raised $7,500; a carnival, operated in connection with a for-profit entertainment company, which yielded approximately $10,000 for the shrine; and three yard sales, which raised between $3,000 and $3,500 each.  
The Taxation of the Subject Property
Clause Eleventh exempts from taxation:
houses of religious worship owned by, or held in trust for the use of, any religious organization, and the pews and furniture and each parsonage so owned . . . . but such exemption shall not, except as herein provided, extend to any portion of any such house of religious worship appropriated for purposes other than religious worship or instruction[.]  

Assessor Stanley Nacewicz testified regarding the methodology used by the assessors to tax the subject property.  Mr. Nacewicz explained that the assessors recognized that many of the subject property's improvements, such as its church, chapels, monastery, and retreat center, were exempt under Clause Eleventh, so the assessors did not consider as taxable those portions of the subject property.  They also did not consider as taxable the parking areas and some of the surrounding land, as those were considered accessory to the aforementioned exempt buildings. The former convent and surrounding land was taxed at the lower residential rate, and the maintenance building was valued with a 44% depreciation factor.   
Mr. Nacewicz explained that for the remainder of the subject property, the assessors used a pro-rated approach, in recognition of the fact that those areas were used in part for "religious worship or instruction" and in part for other purposes.  Mr. Nacewicz testified that in total, the assessors considered approximately 40% of the remainder of the subject property to be taxable and approximately 60% exempt.  
It was the appellant's contention in this appeal that the subject property was exempt in its entirety under Clause Eleventh, as it consisted of "houses of religious worship" and/or "parsonage[s]" owned by a religious organization and its dominant use was for "religious worship or instruction," or other activities consistent with the Missionaries' religious purposes.  The appellant further contended that any other uses of the subject property were merely incidental and did not constitute an appropriation for other purposes.  

The Board's Conclusions

Based on the evidence of record, the Board found that the subject property was owned by a religious organization for purposes of Clause Eleventh.  The Board additionally found that the subject property's church and chapels were "houses of religious worship," and that its monastery was a "parsonage" for purposes of Clause Eleventh, and as such were exempt under Clause Eleventh.  Further, the Board found that the subject property's retreat center was used solely for religious worship or instruction, and thus it was likewise exempt in its entirety under Clause Eleventh.  The evidence indicated that the assessors properly treated these properties as exempt under Clause Eleventh, along with surrounding land and parking lots as accessory areas.  
With respect to the former convent and surrounding land, which was at the time relevant to this appeal being used as a women's shelter, as well as the maintenance building, the Board concluded that they were neither "houses of religious worship" or "parsonage[s]" nor being used for "religious worship or instruction" within the meaning of Clause Eleventh, as there was no evidence in the record to indicate that they were so used.  Accordingly, the Board found that these properties were not exempt under Clause Eleventh.  
With respect to the welcome center and other remaining areas of the subject property, the Board found that none of them were "houses of religious worship" or "parsonage[s]" as required by Clause Eleventh.  Further, the evidence showed that they were used for a variety of purposes by a variety of organizations and individuals.  The record showed that the appellant used these areas at times for "religious worship or instruction" in that religious lectures or programs were offered.  The record also showed that the appellant permitted other tax-exempt organizations to make occasional use of these areas, which is expressly permitted by Clause Eleventh.  
However, the record indicated that these areas were also regularly used by the appellant and others for purposes other than "religious worship or instruction."  For example, the appellant's fundraising activities - which included yard sales, a carnival, a circus, a clambake, and a Christmas Bazaar - though useful to the appellant in general, could not be said to constitute "religious worship or instruction" within the meaning of Clause Eleventh.  In addition, there was no indication in the record, nor was it logical to infer, that "religious worship or instruction" occurred in the bistro or gift shop, though they may have served to promote the appellant's religious purposes in general.  Moreover, the record indicated that the appellant leased the subject property on occasion for use by private individuals and groups that were not tax-exempt organizations.  Thus, based on the foregoing facts, the Board found that certain areas of the subject property were "appropriated for purposes other than religious worship or instruction," and thus were not exempt under Clause Eleventh.  
 	The Board found that Clause Eleventh allows for properties owned by religious organizations to be taxed on an apportioned basis, in circumstances where the property is used in part for "religious worship or instruction" and in part for other purposes.  In the present appeal, the assessors taxed the subject property on just such an apportioned basis, to reflect the amount that it consisted of "houses of religious worship" or a "parsonage," or was used for "religious worship or instruction."  The appellant offered no persuasive or credible evidence to refute the methodology used by the assessors, and instead simply claimed that the entirety of the subject property was exempt under Clause Eleventh.  As the Board did not agree with the appellant's claim, and the appellant offered insufficient evidence to contradict the apportionment made by the assessors, the Board perceived no error in the methodology used by the assessors.  
On the basis of these subsidiary findings of fact, and as discussed further in the Opinion below, the Board found and ruled that the assessors properly exempted so much of the subject property that qualified for the exemption under Clause Eleventh.  Accordingly, the Board found that the assessment was proper, and it issued a decision for the appellee 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.  "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)(citing New England Legal Foundation v. Assessors of Boston, 423 Mass. 602, 609 (1996)).  "Any doubt must operate against the one claiming a tax exemption."  Boston Symphony Orchestra v. Assessors of Boston, 294 Mass. 248, 257 (1936).  "'Exemption from taxation is a matter of special favor or grace.  It will be recognized only where the property falls clearly and unmistakably within the express words of a legislative command.'"  Mass. Med. Soc'y v. Assessors of Boston, 340 Mass. 327, 331 (1960) (quoting Boston Chamber of Commerce v. Assessors of Boston, 315 Mass. 712, 718 (1944)).  
Massachusetts General Laws Chapter 59, § 5 provides a long list of exemptions for both real and personal property, with qualification for the exemption often dependent on the identity of the owner of the property or the property's dominant use.  The exemption at issue in the present appeal is set forth in Clause Eleventh, which exempts: 

houses of religious worship owned by, or held in trust for the use of, any religious organization, and the pews and furniture and each parsonage so owned . . . . but such exemption shall not, except as herein provided, extend to any portion of any such house of religious worship appropriated for purposes other than religious worship or instruction[.]  

Clause Eleventh further specifies that "the occasional or incidental use of such property by an organization exempt from taxation under the provisions of 26 USC Sec. 501(c)(3) of the Federal Internal Revenue Code shall not be deemed to be an appropriation for purposes other than religious worship or instruction."  
There was no dispute between the parties that the subject property was owned by a "religious organization" for purposes of Clause Eleventh, and the Board so found and ruled.  The issue in dispute was whether the entirety of the subject property consisted of "houses of religious worship . . . [or] parsonage[s]" or was used for "religious worship or instruction" for purposes of Clause Eleventh.  
Unlike the broader exemption found in Clause Third, which exempts property owned by a charitable organization and "occupied by it or its officers for the purposes for which it is organized," Clause Eleventh is much narrower in scope; it exempts the types of structures traditionally associated with religious organizations, i.e., "parsonage[s]" and "houses of religious worship," along with other buildings, but only to the extent they are used for "religious worship or instruction."  In other words, Clause Eleventh does not exempt property owned by a religious organization and used to advance good works consistent with its religious mission in general.  Rather, it provides a narrow exemption for specific types of properties, along with other buildings to the extent they are used for "religious worship or instruction."  
	In the present appeal, the record showed that the subject property included several "houses of religious worship," and a "parsonage," and that the assessors properly treated those structures, along with surrounding areas, including parking lots, as exempt under Clause Eleventh.  
The record showed that much of the rest of the subject property, which did not consist of "houses of religious worship" or a "parsonage," was used in part for "religious worship or instruction," and in part for other purposes, such as fundraising activities and private functions.  It was the appellant's contention that all uses of the subject property were typical for religious organizations like the appellant and consistent with the appellant's stated charitable purposes.  However, the appellant's arguments, and the cases which it cited for support, were unavailing.  
First, it is immaterial whether the many activities taking place at the subject property furthered the appellant's stated charitable purposes if they did not constitute "religious worship or instruction" within the meaning of Clause Eleventh.  While those uses, if consistent with the appellant's stated purposes, may qualify the subject property for an exemption under Clause Third, they do not qualify the subject property in its entirety under the much narrower provisions of Clause Eleventh.  Thus, the appellant's citation to Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530 (1956), was inapposite, as the issue in that appeal involved the exemption granted by Clause Third.  The appellant in the present appeal did not file the requisite jurisdictional documents to claim the exemption under Clause Third for the fiscal year at issue, and it conceded as much at the hearing of this appeal.  Accordingly, the Board rejected the appellant's argument.  
Similarly unpersuasive was the appellant's citation to Assessors of Framingham v. First Parish in Framingham, 329 Mass. 212 (1952).  At issue in that case was a building owned by a church and one adjacent to the church which housed several rooms constituting a parsonage for the parish's minister, and still other rooms which were used weekly for Sunday school classes.  Id. at 213.  In addition, there was a kitchen which was used for the preparation of church suppers, a coat room, and bathrooms.  Id.  The rooms that were used weekly for Sunday school classes were also used on a less frequent basis by church-affiliated groups such as the Women's Alliance and the Men's Club, as well as unrelated groups such as the Boy Scouts, Girl Scouts, the American Red Cross, the Framingham Garden Club, and the American Veteran's Committee, to name a few.  Id. at 214.  
In upholding the partial-exemption granted by the Board, the Court stated that "The Women's Alliance and the Men's Club are subsidiary organizations common to religious societies of all denominations, ordinarily established to promote and aid religious objectives."  Id. at 215.  Further, the Court stated that "[t]he occasional use of the rooms by various secular organizations which does not appear to interfere with their regular use for religious purposes does not, we think, constitute an appropriation for other purposes."  Id.
	As an initial matter, in citing First Parish in Framingham, the appellant failed to acknowledge that the abatement granted by the Board in that case reflected an apportioned assessment of the property at issue, as here.  Thus, that case cannot be read, or cited, to support the conclusion that a property which is not in its entirety a house of religious worship, or a parsonage, or dedicated primarily to the purpose of religious worship or instruction, will be exempted in its entirety under Clause Eleventh.  
	Further, although the facts and issue presented in First Parish in Framingham were similar to those in the present appeal, it is distinguishable in one important sense.  Apart from the rooms dedicated for use as a parsonage, and necessarily exempt as such under Clause Eleventh, the areas within the building at issue in that case were used primarily for teaching Sunday school classes, while their usage by other groups for other purposes was occasional and incidental.  Id. at 213-15.     The evidence in the present appeal established that the use of much of subject property for purposes other than "religious worship or instruction" was more than occasional and incidental, and in fact, was frequent and regular.  
This case was much more similar to Rudrananda Ashram of Boston v. Assessors of Cambridge, Mass. ATB Findings of Fact and Reports 1981-299.  In that case, which involved a 17-room building housing a chapel, meditation and classroom areas, a minister's room, kitchen and dining areas, and at least six rooms occupied by residents in exchange for monthly rent, the Board found that "significant portions [of the property at issue] were in fact used for other than religious purposes."  Id. at 304.  Although that case ultimately turned on a jurisdictional issue, the Board observed that the appellant would have lost on the merits also, as it had failed to present evidence "which could have been utilized by the Board in arriving at an" apportioned assessment.  Id. 
In the present appeal, the Board likewise found that much of the subject property was used for other than "religious worship or instruction."  The evidence showed that the assessors took the mixed usage of the subject property into consideration in arriving at the assessment at issue, and the appellant did not present evidence which meaningfully undercut the apportioned assessment made by the assessors.  "'The burden of proof is upon the petitioner to make out his right as [a] matter of law to [an] abatement of the tax.'"  Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974), quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922).


On the basis of the record in its totality, the Board found and ruled that the appellant failed to prove its entitlement to an abatement, and accordingly, it issued a decision for the appellee in this appeal.
	
	                     THE APPELLATE TAX BOARD




		            By: _________________________________
			           Thomas W. Hammond, Jr., Chairman




A true copy,

Attest: __________________________
	   Clerk of the Board

 Under G.L. c. 59, § 64, if the tax due for the full fiscal year is $3,000 or less, or a taxpayer has timely paid at least the average of the tax assessed for the prior three fiscal years, or the average tax for the prior three years is $3,000 or less, the incurring of interest does not deprive the Board of jurisdiction.  The evidence showed that the appellant timely remitted payment of more than the average of the previous three fiscal years' tax assessments for the subject property, and thus the Board found and ruled that the incurring of interest was not an impediment to its jurisdiction.  
 Subsequent to the fiscal year at issue, the appellant transferred the fee interest in the Sanctuary to the Audubon Society, but the appellant was the owner of record for the fiscal year at issue.  

ATB 2015-454