Trustees of Boston College v. Board of Assessors of the City of Boston (February 4, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


TRUSTEES OF BOSTON COLLEGE    v.	   BOARD OF ASSESSORS OF 
							   THE CITY OF BOSTON 
	  		  		  
Docket Nos. F278832, F278833	  	   Promulgated:
  F284965, F288657		   February 4, 2010		   


	These are appeals 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 ("assessors" or "appellee") of the City of Boston ("City" or "Boston") to abate taxes on certain real estate located in Boston owned by and assessed to the Trustees of Boston College ("Boston College" or "appellant") for fiscal years 2005, 2006 and 2007 ("fiscal years at issue").    
Commissioner Rose heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Egan and Mulhern joined him in decisions for the appellant.  
These findings of fact and report are made pursuant to a request by the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.  

Neal C. Tully, Esq. for the appellant.  
Saul A. Schapiro, Esq. and Laura Caltenco, Esq. for the assessors.

FINDINGS OF FACT AND REPORT
On the basis of the Statement of Agreed Facts and attached documents, and the testimony and exhibits offered into the record in the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.
Assessments and Jurisdiction
On January 1, 2004, January 1, 2005, and January 1, 2006, the relevant assessment dates for the fiscal years at issue, Boston College was the assessed owner of the three parcels at issue ("subject property" or "parcels at issue") in these appeals.  For fiscal year 2005, the assessors valued Parcel 22-05267-000 ("Commonwealth Avenue parcel") at $10,168,400, and assessed a tax thereon, at the rate of $32.68 per $1,000, in the total amount of $332,303.31.  Also for fiscal year 2005, the assessors valued Parcel 22-04960-001 ("Foster Street parcel") at $3,002,000, and assessed a tax thereon, at the rate of $32.68 per $1,000, in the total amount of $98,105.36.    	
Beginning in fiscal year 2006, the Foster Street parcel was combined with another parcel to form a new tax parcel, and the assessors exempted that parcel for fiscal years 2006 and 2007.  The Commonwealth Avenue parcel was also reconfigured beginning in fiscal year 2006, and was combined with other parcels to form Parcel 22-05267-010 ("Residence parcel").  For fiscal year 2006, the assessors valued the Residence parcel at $9,598,500, and assessed a tax thereon, at a rate of $30.70 per $1,000, in the total amount of $294,673.95.  For fiscal year 2007, the assessors valued the Residence parcel at $10,561,500, and assessed a tax thereon, at a rate of $26.87 per $1,000, in the total amount of $283,787.51.  
Boston's Collector of Taxes sent out the actual tax bills for the fiscal years at issue on the following dates: December 30, 2004 for fiscal year 2005; December 30, 2005 for fiscal year 2006; and December 29, 2006 for fiscal year 2007.  Boston College timely paid the assessed taxes, without incurring interest, for each of the parcels at issue for each of the fiscal years at issue.  
For fiscal year 2005, Boston College filed its Applications for Abatement with the assessors on January 28, 2005.  The abatement applications were deemed denied on April 28, 2005, and Boston College timely filed its petitions with the Board on May 31, 2005.  
For fiscal year 2006, Boston College filed its Application for Abatement with the assessors on February 1, 2006.  That abatement application was denied on
May 1, 2006, and Boston College timely filed its petition with the Board on June 13, 2006.  
For fiscal year 2007, Boston College filed its Application for Abatement on January 31, 2007.  That application was denied on February 28, 2007, and Boston College timely filed its petition with the Board on May 17, 2007.  
In addition, Boston College timely filed its Forms 3 ABC and Forms PC for each of the fiscal years at issue.  Based on the foregoing, the Board found and ruled that it had jurisdiction to hear and decide these appeals. 
II. The Merits	
A. Introduction 
Boston College is a non-profit, educational institution organized in 1863 under the laws of Massachusetts.  According to evidence entered into the record, its mission is to "pursue the highest standards of teaching and research" and "to foster a just society . . . by fostering intellectual development and the religious, ethical and personal formation of its students."  At all times relevant to these appeals, Boston College served a student population of approximately 14,500 students, including graduate and undergraduate students, at two different campuses.  The main campus is the Chestnut Hill campus, which consists of 117 acres situated partially in Boston and partially in Newton.  The main campus features numerous classroom buildings, residence halls, dining facilities, a library, parking facilities, and athletic facilities - including a football stadium - among other improvements.  The Newton campus, which consists of approximately 40 acres, is the site of the Law School and also contains undergraduate dormitories, athletic fields, and alumni facilities.  The parcels at issue in these appeals lie across Commonwealth Avenue from the main campus, and are part of a large tract of land which was owned by the Archdiocese of Boston ("Archdiocese") prior to the fiscal years at issue.  During the time it was owned by the Archdiocese, the subject property was exempt from tax.  
Boston College's Acquisition of the Subject Property

In September of 2003, Boston College commenced a strategic planning initiative, which was meant to assess its strengths and weaknesses as an institution and to identify goals and an overall vision for the college for the coming years.  A Phase I report released by the strategic initiative committee some months later identified "a number of weaknesses" relating to space and facilities at the college.  Specifically, the Phase I report stated "[m]ore land would open the way for possible new space-intensive academic programs, more conferences and faculty interaction, more student housing, and more space for intramural and intercollegiate athletics programs."  
In December of 2003, the Archdiocese announced its intention to sell its Brighton property, which consisted of approximately 65 acres of land improved with several parking lots, driveways and buildings.  Those buildings include an Italianate mansion which had historically been the Archbishop's residence ("Archbishop's residence"), a gymnasium, a garage, and several other buildings belonging to the Archdiocese, including a building known as St. Clement's Hall.  
Since 1991, Boston College had leased a portion of St. Clement's Hall from the Archdiocese for use as administrative offices.  The lease included the exclusive use of a 74-vehicle parking lot located directly across from St. Clement's Hall on Foster Street.  Boston College entered into a renewed lease for St. Clement's Hall in 2001, for a period of 40 years.  The terms of the 2001 lease continued the exclusive use of the Foster Street parking lot and also expanded the portion of St. Clement's Hall available for the college's use.  Throughout both lease terms, the property was treated as exempt by the assessors.  
On April 19, 2004, following several months of discussions and negotiations, Boston College and the Archdiocese reached an agreement-in-principle for the sale of the subject property.  On June 25, 2004, the transaction was closed, with the Archdiocese conveying to Boston College 43.37 acres of land for $99,400,000.  This transaction was the first of several between Boston College and the Archdiocese involving the Archdiocese's Brighton property.  Boston College purchased additional land from the Archdiocese in 2006 and 2007.  In all, Boston College acquired a total of nearly 65 acres of land.  However, the parcels at issue in these appeals were all conveyed in the initial transaction on June 25, 2004.  Those parcels are described in further detail below.
C. The Foster Street Parcel (Fiscal Year 2005)
	The Foster Street parcel contains approximately 200,000 square feet.  It is located on the easterly side of Foster Street, directly across from St. Clement's Hall.  To the south and east, it abuts residential neighborhoods in Brighton.  The vast majority of the Foster Street parcel is heavily forested, undeveloped land.  Its only improvement
is a 24,000 square foot parking lot that accommodates approximately 74 vehicles.  
Prior to its acquisition by Boston College, the Foster Street parcel was exempt from tax.  Although Boston College's use of the Foster Street parcel did not change, it was taxed by the assessors for fiscal year 2005.  Beginning in fiscal year 2006, the assessors combined the Foster Street parcel with a residential lot and exempted the newly configured parcel from tax for fiscal years 2006 and 2007.  Therefore the only question before the Board with respect to the Foster Street parcel is whether it was exempt in fiscal year 2005.  
D. The Commonwealth Avenue Parcel (Fiscal Year 2005)
The Commonwealth Avenue parcel contains approximately 5.6 acres of land and is located on Commonwealth Avenue, with frontage also on Greycliff Road.  The parcel dissects a small portion of the Archbishop's residence and its improvements also include a driveway leading to the residence.  The remainder of the parcel contains undeveloped land, including a large meadow and an apple orchard.  It abuts other parcels previously owned by the Archdiocese and residential neighborhoods in Brighton.    
     

E. The Residence Parcel (Fiscal Year 2006 and 2007)
	Beginning in fiscal year 2006, the assessors created a new tax parcel - the Residence parcel - by combining the Commonwealth Avenue parcel with other parcels.  After reconfiguration, the Residence parcel included all of the Archbishop's residence, a gymnasium, a garage, the Commonwealth Avenue parcel, and additional land.  The Residence parcel also contains a driveway and two parking lots.  
F. Boston College's Campus Planning Process 
   and Proposed Uses of the Subject Property

Boston College offered the testimony of Patrick Keating, Executive Vice President of Boston College, Peter McKenzie, Financial Vice President and Treasurer of Boston College, and Jeanne Levesque, Director of Government Relations within Boston College's Office of Governmental and Community Affairs.  These three individuals testified mainly about the college's campus planning process, including the acquisition of the subject property, and its filings and interactions with various governmental agencies and community groups.  The Board found their testimony to be credible.
The testimony of Mr. Keating, Mr. McKenzie and Ms. Levesque, along with the stipulated facts and documents, revealed that campus planning at Boston College is a closely monitored, nearly continuous activity.  As an educational institution within Boston, Boston College is required by Article 80 of the Boston Zoning Code to file an Institutional Master Plan ("IMP") with the Boston Redevelopment Authority ("BRA").  The IMP must set out the institution's use of existing property, planned future use of property and planned acquisition of property for at least a ten-year period.  Once an IMP is approved by the BRA, it is submitted for additional approval by the Boston Zoning Commission.  The City will not issue a certificate of use or occupancy for a building unless the building/use is consistent with the plans articulated in an IMP.  Prior to its acquisition of the subject property, Boston College had last filed an IMP in 2000.  The 2000 IMP was to expire in 2005.  
In late 2004, following its acquisition of the subject property, Boston College filed an Institutional Master Plan Notification Form ("IMPNF") with the BRA, seeking to renew and extend its previous IMP.  The IMPNF stated that the strategic planning initiative, originally commenced by the college in 2003, would be reconsidered in light of the recent land acquisition in order to "engage in meaningful planning for future physical needs, including the future uses of the [subject property]."  The IMPNF identified as potential future uses of the subject property: a School of Theology and Ministry, a multi-disciplinary center for the study of aging, and a center for the study of complex materials.  Subsequently, in early 2005, Boston College submitted a revised IMPNF, outlining possible future uses of the subject property which included conference and meeting facilities, graduate student housing, and open space for informal recreation as well as intramural and intercollegiate athletics programs.  
In May of 2005, the BRA notified Boston College that it would grant conditional approval of a two-year extension of its IMP to allow the college additional time to formulate plans for the use of the subject property and incorporate those plans into its IMP.  The condition was that during the two-year extension period, Boston College must use the subject property only for the temporary/existing uses for which it had already been approved.  Those uses included: the use of St. Clement's Hall, club sports, student and neighborhood recreational uses, parking on the Foster Street parcel, and for overflow parking during home football games.  In April of 2006, Boston College sought an extension of its IMP to allow more time for planning the future uses of the subject property and also sought approval from the BRA to use the Archbishop's residence, in the interim, for meetings and conferences.  
In addition to the approval of the BRA and Boston Zoning Commission, the evidence revealed that Boston College's campus planning process required the approval and involvement of numerous groups.  Boston College had a Buildings and Properties Committee, which assisted in the planning of new development at the college.  For example, the Buildings and Properties Committee vetted potential architectural firms and reviewed proposals by firms bidding on college projects.  Further, major building and planning initiatives required the approval of the college's Board of Trustees, which was required to approve all expenditures exceeding one million dollars.  
Finally, the college regularly engaged in discussions regarding its campus planning with the Allston-Brighton Boston College Community Task Force ("Community Task Force").  The Community Task Force is a group installed by the Mayor of Boston to represent the interests of the Allston-Brighton community.  According to Ms. Levesque, the college met on a monthly basis with the Community Task Force to address neighborhood concerns.  Ms. Levesque stated that during the period immediately prior to Boston College's acquisition of the subject property up to the time of the hearing of these appeals, Boston College held over 200 meetings with the Community Task Force in order to receive feedback on the proposed uses of the subject property.  According to Ms. Levesque, much of that feedback involved the Community Task Force's concern about the lack of open space in the community.
Ms. Levesque's testimony on this point was supported by an August 24, 2005 letter from the Chair of the Community Task Force to Boston College's Associate Vice President for Government and Community Affairs.  In that letter, the Chair urged the college to use the subject property in the following manner: for faculty and administrative offices and practice fields; as a buffer zone to protect the residential character of the abutting properties; and as open, green space.  
Additional evidence in the record indicated that, consistent with its representations to the BRA, Boston College continued to examine potential future uses of the subject property throughout the fiscal years at issue.  In 2004, Boston College began the search for an architectural firm to assist in the creation of a campus master plan.  In June of 2005, Sasaki Associates was chosen to develop the IMP.  During the remainder of 2005 and 2006, numerous meetings were held and presentations made for the purpose of developing the IMP.  In September of 2006, a final presentation of the proposed master plan was made to Boston College's Board of Trustees, who approved the plan in principle.  An additional firm, Vanasse, Hangen, Brestlin, Inc., was hired to assist Sasaki Associates in the preparation of a new IMP.  In 2007, a new IMPNF was filed with the BRA.  
Throughout this period, the proposed future uses of the subject property remained fairly consistent, with specific details changing from time to time.  For example, the Archbishop's residence had been targeted for use as a conference and meeting facility which offered dining services, but there was disagreement among the involved parties as to whether that conference center would include overnight accommodations and also as to the type of dining services that would be provided.  Also during this time period, reunification with the Weston School of Theology - which was affiliated with Boston College but which had been physically located in Cambridge - was proposed, and plans for its relocation to the subject property continued to evolve during the fiscal years at issue.


The Actual Use of the Subject Property During the Fiscal Years at Issue

Following its acquisition of the Foster Street parcel on June 25, 2004, Boston College continued to use the Foster Street parcel to accommodate the parking needs of administrative staff working at St. Clement's Hall.  The rest of the parcel remained in an undeveloped state.  Subsequent to fiscal year 2005, Boston College undertook a substantial renovation of St. Clement's Hall, and in September of 2006, the Information Technology department moved its operations to the north wing of St. Clement's Hall.  
	The evidence revealed that the Commonwealth Ave. and Residence parcels were used for a variety of purposes following their acquisition by Boston College.  Peter Jednak, the Director of Facility Services for Boston College, testified regarding some of the uses of those parcels.  The Board found his testimony to be credible.  
 	Mr. Jednak stated that the area behind the Archbishop's residence was used to dump excess snow in the winter and also as a staging area for dumpsters during move-in and move-out periods for the college.  He stated that the paved areas were used for periodic overflow parking, including during home football games, of which there are between five and seven per year, and also during the college's commencement exercises in the spring.  Further, Mr. Jednak testified that on a daily basis, individuals can be seen using the meadow and open areas for sunbathing, walking, studying, and informal recreational activity such as wiffle ball or frisbee.  
 	Mr. Jednak stated that he has observed the college's track and rugby teams using the parcels for training purposes.  In the wintertime, because of the hilly topography, Mr. Jednak stated that students, and possibly neighborhood residents, used the land for sledding.  Mr. Jednak also testified that he frequently observed individuals who he believed to be neighborhood residents walking dogs on the subject property.  It was Boston College's practice to allow neighborhood residents access to the property, and the parties stipulated that neighborhood residents in fact used the subject property for recreational purposes.  Mr. Jednak stated that college maintenance crews actively maintained the property, including pruning trees, mowing the grass, removing snow, repairing potholes and performing other maintenance as necessary.  
Mr. Jednak's testimony was supported by the stipulated facts, which highlighted many of the same uses of the property that Mr. Jednak related in his testimony.  In addition, the parties stipulated to the fact that Boston College granted parking permits to students with special needs for the 22-space parking lot adjacent to the gymnasium on the Residence parcel.   The parties also stipulated to the following uses of the subject property: during fiscal year 2005, the Commonwealth Avenue parcel was used for overflow parking and other purposes during parent's weekend; during fiscal year 2006, the residence was used for two Board of Trustee's meetings and for a fundraising event during parent's weekend; and during fiscal year 2007, the residence was used for four Board of Trustees' meetings.  
H. The Board's Ultimate Findings of Fact
	On the basis of all of the evidence, the Board found and ruled that Boston College was a charitable organization within the meaning of G.L. c. 59, § 5, Clause Third ("Clause Third"), and that it owned the subject property on the relevant dates for the determination of exemption for each of the fiscal years at issue.   
The Board found that, as of July 1, 2004, the relevant date for the determination of exemption for fiscal year 2005, Boston College used the Foster Street parcel to accommodate the parking needs of its administrative staff located at St. Clement's Hall.  The Board found that Boston College made the same use of the Foster Street parcel in fiscal year 2005 as it did both before and after that fiscal year, during which time the parcel was exempt from tax.  The Board further found that this use facilitated the overall operation of the college, and therefore furthered its charitable purpose.  
	With respect to the Commonwealth Avenue/Residence parcels, the Board found that, as of July 1, 2004, July 1, 2005, and July 1, 2006, the relevant dates for the determination of exemption for the fiscal years at issue, Boston College used the Commonwealth Avenue/Residence parcels to provide passive recreational opportunities for its students, including walking, jogging, reading, sunbathing, sledding, frisbee and wiffle ball.  The parcels were also used by certain student athletic teams for training purposes.  The Board found that such uses promoted the "physical training, and the social [and] moral" advancement of Boston College's students and accordingly, constituted the occupation of the property in furtherance of its charitable purpose.  Emerson v. Trustees of Milton Academy, 185 Mass. 414, 418, (1904).  
In addition, the Board found that Boston College used the Commonwealth Avenue/Residence parcels to accommodate extraordinary parking needs during several weekends each year, including parent's weekend, commencement activities, several home football games each season, and for parking for students with special needs.  Boston College also used the Archbishop's residence for Board of Trustees' meetings and fundraising events.  The Board found that each of these uses facilitated the overall operation of Boston College and therefore constituted the occupation of the property for its charitable purpose.  
Further, the Board found that, during each of the fiscal years at issue, Boston College used the Foster Street parcel and the Commonwealth Avenue/Residence parcels in order to maintain open, green space and ensure an adequate buffer from the surrounding residential neighborhood.  The evidence established that the preservation of open, green space was a priority in Boston College's campus planning efforts because of its desire to maintain a classic collegiate aesthetic for its campus.  The preservation of open, green space in the Allston-Brighton area and the maintenance of an adequate buffer between institutional, private and residential property were also of great importance to the Community Task Force.  Each of the parcels at issue was used by Boston College during the fiscal years at issue for these purposes.  The Board found that Boston College's use of the subject property as open, green space promoted the "aesthetic advancement" of the college, and as such, constituted an occupation of the subject property in furtherance of its charitable purpose. Emerson, 185 Mass. at 418.  Furthermore, the Board found that Boston College had a legitimate interest in minimizing so-called "town-gown" conflict.  The Board found and ruled that Boston College's use of the subject property as a buffer between institutional and private, residential property was a reasonable means to further that interest, and as such, constituted the use of the subject property for the college's charitable purpose.  
	Accordingly, on the basis of these findings of fact, the Board found and ruled that, for each of the fiscal years at issue, the subject property was owned and occupied by a charitable organization in furtherance of its charitable purpose, and as such, was exempt under Clause Third.  The Board therefore issued decisions for Boston College in these appeals.  For fiscal year 2005, the Board ordered an abatement of $332,303.31 for the Commonwealth Avenue parcel and an abatement of $98,105.36 for the Foster Street parcel.  For the Residence parcel, the Board ordered an abatement of $294,673.95 for fiscal year 2006 and an abatement of $283,787.31 for fiscal year 2007.  
				    
     OPINION
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 or by another charitable organization or organizations or its or their officers for the purposes of such other charitable organization or organizations."  G.L. c. 59, § 5, Third.  Clause Third also provides an exemption for "real estate purchased by a charitable organization with the purpose of removal thereto, until such removal, but not for more than two years after such purchase."  G.L. c. 59, § 5, Third.  Property owned by a charitable organization, therefore, is exempt provided that it is occupied by that, or another, charitable organization to further its charitable purpose. See Jewish Geriatric Services, Inc. v. Longmeadow, Mass. ATB Findings of Fact and Reports 2002-337, 351, aff'd, 61 Mass. App. Ct. 73 (2004) (citing Assessors of Hamilton v. Iron Rail Fund of Girls Club of America, 367 Mass. 301, 306 (1975)).  Further, property purchased by a charitable organization for the purposes of "removal thereto" will be exempt, even if unoccupied, for up to two years after its purchase.  
Thus, there were two potential bases of exemption for the subject property presented for the Board's consideration in these appeals: the subject property could qualify for exemption if it were occupied by Boston College for its charitable purpose during the fiscal years at issue; additionally and alternatively, the subject property could qualify for exemption for up to two years following the date of its purchase, even if it were unoccupied, provided that Boston College purchased it for the purpose of "removal thereto."  As discussed further below, the Board found and ruled that the subject property was exempt because it was owned by Boston College, which was a charitable organization, and occupied by Boston College for its charitable purpose.  Because the Board found and ruled that the subject property was exempt for this reason, it did not have to reach the issue of whether or when Boston College had removed its operations to the subject property.
Occupancy for the purposes of Clause Third means use for the purpose for which the charity is organized.  See Babcock v. Leopold Morse Home for Infirm Hebrews and Orphanage, 225 Mass. 418, 421 (1917); Emerson, 185 Mass. at 417.  The decision of a charitable organization concerning how to occupy its property in connection with its charitable mission is entitled to a substantial degree of deference upon judicial review.  Emerson, 185 Mass. at 415.  ("So long as [it] act[s] in good faith and not unreasonably in determining how to occupy and use the real estate of the corporation, [its] determination cannot be interfered with by the courts.")  Strict necessity is not the guidepost.  Id. at 418.  In the context of educational institutions, a long line of cases demonstrates that the range of uses which has qualified the property at issue for exemption is broad.  
In Emerson, at issue were three large parcels of land owned by an educational institution, some of which consisted of "low and swampy" or wooded land, and some of which contained athletic fields, among other things.  Emerson, 185 Mass. at 417.  The evidence in that case showed that "pupils [did] in fact constantly use the unimproved parts of the fields . . . as recreation grounds, walking and roaming over them, playing games that do not require grounds to be improved."  Id.  The Court held that the parcels were occupied for the purposes of the exemption, because it was within the charitable purposes of an educational institution to "provide liberally for the physical training, and the social, moral and aesthetic advancement of the pupils who are entrusted to its charge."  Id. at 418.  See also Assessors of Dover v. Dominican Father Province of St. Joseph, 334 Mass. 530, 538 (1956).  
Similarly, in Wheaton College v. Town of Norton, 232 Mass. 141, 146 (1919), a tract of land used by Wheaton College to open a road to provide more direct access to its power house for the efficient "hauling of coal and other heavy articles," was found by the Court to be occupied for the college's charitable purpose.  In that same case, "ordinary and wild woodland" belonging to the college, which was favored by students for walking, as well as an "unenclosed grove" of land used by "students and townspeople" alike, containing tall pine trees and "a few benches," were found to be exempt because they promoted the charitable purpose of the college.  Id. at 148-49.  
In the present appeals, the evidence established that Boston College made a variety of uses of the subject property during the fiscal years at issue.  Boston College students used the subject property for informal recreational activity, such as walking, jogging, sledding, sunbathing, reading, frisbee and wiffle ball, while college athletic teams, such as the rugby and track teams, used the subject property for training purposes.  The Board found and ruled that these uses promoted the "physical training, and the social [and] moral" advancement of the students of Boston College, and as such, constituted the occupation of the subject property for Boston College's charitable purpose.  Emerson, 185 Mass. at 417.   
With respect to the Residence/Commonwealth Avenue parcels, the evidence established that Boston College used the Archbishop's residence for at least one fundraising event and several Board of Trustees' meetings during the fiscal years at issue.  Uses similar to these uses have been held to constitute charitable uses.  See Trustees v. Board of Assessors of Windsor, Mass. ATB Findings of Fact and Reports 1991-225, 228, 242 (finding that use of "main house" on an expansive farm property for occasional meetings and community social functions was a qualifying use by the charitable organization in question) (citations omitted). See also Emerson, 185 Mass. at 417.  The Board therefore found and ruled that each of these uses was in furtherance of Boston College's charitable purpose.  
In addition, Boston College used the various parking lots on the subject property throughout the fiscal years at issue.  The Foster Street parcel was used to accommodate the daily parking needs of Boston College employees working at St. Clement's Hall, while the Commonwealth Avenue/Residence parcels were used to accommodate extraordinary parking needs, including overflow parking during commencement activities, parent's weekend, home football games and for students with special needs.  The Board found that these uses facilitated the overall operation of the college and therefore contributed to its charitable educational purpose. See Wheaton College, 232 Mass. at 146.  
Finally, Boston College used the subject property to provide a buffer from its residential neighbors in the Allston-Brighton community, and to ensure that its campus would have an adequate amount of open, green space so as to maintain a classic collegiate aesthetic.  An educational institution has broad discretion to determine the most advantageous uses of its property and how best to execute its overall educational mission.  See Emerson, 185 Mass. at 415.  The Board found and ruled that the preservation of open, green space on its campus promoted the "aesthetic advancement" of the college, and therefore, found and ruled that Boston College's use of the subject property towards that end promoted its charitable purpose.  Id. at 418.  Similarly, the Board found and ruled that the minimization of so-called "town-gown" conflict was a legitimate institutional goal, and Boston College's use of the subject property as a buffer zone was a reasonable means of accomplishing that goal.  See Massachusetts General Hospital v. Inhabitants of Somerville, 101 Mass. 319, 321 (1869) (ruling that land held by a hospital for the insane "to prevent too near proximity of buildings and use which might be deleterious to the hospital" was used for the taxpayer's charitable purpose).  The Board therefore found and ruled that Boston College's use of the subject property as a buffer was a use which furthered its charitable purpose.  
The assessors advanced several arguments as to why the subject property was not exempt, but the Board found none of them persuasive.  The assessors emphasized in particular the fact that, as of the time of the purchase of the subject property and through the fiscal years at issue, Boston College had no certain, fixed plans for the subject property.  While this argument was presumably advanced to dispel the notion that Boston College had purchased the property for the purposes of "removal thereto", the Board found that the property was in fact used by Boston College for its charitable purposes.  Accordingly, because the Board did not base its decision on the two-year removal provision of Clause Third, the Board rejected this argument. 
The record indicated that Boston College made a variety of uses of the subject property in furtherance of its charitable purpose during the fiscal years at issue, and the Board based its finding that the subject property was exempt on that evidence.  The fact that these uses may have been temporary, or that Boston College's future plans for the subject property continued to evolve during the fiscal years at issue, did not warrant a finding to the contrary.  
Additionally, the assessors argued that, to the extent that Boston College made any use of the subject property, such use was trivial and incidental to its charitable purpose, and therefore did not justify an exemption under Clause Third.  In support of this argument, the assessors cited Babcock, a case in which the real property at issue was a house owned by a charitable organization which had been used as a home for orphaned children and the elderly.  Babcock, 225 Mass. at 421.  Prior to the fiscal years at issue in that case, the charitable organization in question transferred its income to another charitable organization, and appears from the record to have ceased active operation.  In any event, during the fiscal years at issue, the real property at issue was not being used as a home for orphaned children or the elderly, but instead was being used as a residence for a caretaker and for the storage of furniture.  Id.  There was some evidence in the record that approximately one Board of Trustees' meeting was held at the home each year, but other evidence in the record contradicted that fact.  Id. In ruling that the property was not exempt, the Court stated:
[O]ccupancy means 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.  The extent of the use, although entitled to consideration, is not decisive.  But the nature of the occupation must be such as to contribute immediately to the promotion of the charity and physically to participate in the forwarding of its beneficent objects.

Id. at 421-22.

	The facts in Babcock are distinguishable from those of the present appeals.  In Babcock, it was virtually impossible for the use of the home at issue to advance the charitable purposes of the organization in question, as that organization had ceased active operation.  In the present appeals, Boston College did not cease operation and vacate property it had formerly used in connection with its charitable purpose.  Rather, it acquired new property, and used that property to facilitate and expand its charitable educational mission.  
Further, the charitable mission of the taxpayer in Babcock involved a more narrow scope of services - the provision of a home for orphaned children and the elderly.  In contrast, Boston College is a university which provides graduate and undergraduate education for some 14,500 students.  On its two campuses, Boston College has numerous dormitories, classroom buildings, administrative buildings, dining halls, libraries, and athletic and research facilities.  Its operations are necessarily more complex than those of the taxpayer in Babcock, and the scope of uses which support its charitable purpose is correspondingly greater.  Moreover, in making its ruling, the Babcock court emphasized that "[t]he extent of the use, although entitled to consideration, is not decisive."  Id. at 421-22.  The decisive factor is whether the use of the property advances the charitable purpose of the organization.  In the present appeals, the Board found and ruled that the uses of the subject property, which included use for parking, Board of Trustees' meetings, fundraising events, informal recreation, team athletic training, as a buffer from abutting residential properties, and as open, green space for the maintenance of campus aesthetics, were uses which advanced the charitable purpose of Boston College.  The Board therefore found the assessors' arguments to be without merit.  
The assessors also argued that the exemption should  be  denied on public policy grounds, citing the  growing  number  of charitable organizations within Boston  and the  concomitant diminution to the City's tax base.   Specifically, the assessors stated that "[t]he deterioration and destruction of the tax base for [Boston], by exempting large parcels of land without an accompanying public benefit . . . serves to handicap the City."  Public policy arguments are for the Legislature's consideration.  See Raytheon Company v. Commissioner of Revenue, 455 Mass. 334, 345 (2009),(citing Joslyn v. Chang, 445 Mass. 344, 352 (2005)) ("if there are any inconveniences or hardships growing out of . . . a [court's statutory] construction, it is for the legislature.") (other citations omitted). The Board therefore rejected the assessors' arguments.  
			   	 

   CONCLUSION

	On the basis of all of the evidence, the Board found and ruled that each of the parcels at issue was owned and occupied by a charitable organization, Boston College, in furtherance of its charitable purpose as of the relevant dates for the determination of exemption for the fiscal years at issue in these appeals. 
 Accordingly, the Board decided these appeals for Boston College, and, for fiscal year 2005, ordered abatements in the amount of $332,303.31 for the Commonwealth Avenue parcel and $98,105.36 for the Foster Street parcel.  For fiscal years 2006 and 2007, the Board ordered abatements of $294,673.95 and $283,787.31, respectively, for the Residence parcel.  

	APPELLATE TAX BOARD




		  		   By: 				_____	____
  Thomas W. Hammond, Jr., Chairman



A true copy,

Attest:		______	_____		
	        Clerk of the Board

 Though these appeals are brought by the Trustees of Boston College, the Board will use the term "Boston College" to mean both the appellant and the institution.    
 For ease of reference, and because the evidence established that they were used in essentially the same manner, the Board will, like the parties, discuss the use of the Commonwealth Avenue/Residence parcels as if they were one parcel throughout the fiscal years at issue.  
 The Board notes that the subject property had been exempt in the hands of the Archdiocese for decades and the record bore no evidence of further erosion to City's tax base following its transfer to Boston College.

ATB 2010-96