Danbee Real Estate Co., LLC and Lakeside Retreats, LLC v. Board of Assessors of the Town of Peru (May 7, 2012)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


DANBEE REAL ESTATE CO., LLC      v.	   BOARD OF ASSESSORS OF 
LAKESIDE RETREATS, LLC			        THE TOWN OF PERU


Docket Nos.: F294429, F294430,	        Promulgated:  
             F294960			        May 7, 2012
			   				
 					
	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 appellee, Board of Assessors of the Town of Peru ("assessors" or "appellee"), to abate taxes on certain real estate located in the Town of Peru owned by and assessed to Danbee Real Estate Co., LLC ("Danbee") and certain real estate owned by and assessed to Lakeside Retreats, LLC ("Lakeside") under G.L. c. 59, §§ 11 and 38, for fiscal year 2009.
	Commissioner Mulhern heard these appeals.  Chairman Hammond and Commissioners Scharaffa, Rose and Egan joined him in the decisions for the appellee.
These findings of fact and report are made pursuant to the appellants' request under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Dennis M. LaRochelle, Esq. for the appellants.
 
Ellen M. Hutchinson, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
On the basis of the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On January 1, 2008, Danbee was the assessed owner of two parcels of real estate located in the Town of Peru:  the parcel identified as Assessors Map 26, Parcel 50 ("Parcel 26-50"), and the parcel identified as Assessors Map 26, Parcel 4 ("Parcel 26-4") (collectively, "the subject properties").  Parcel 26-50, which consisted of 121.43 acres of land, was located at 101 West Main Road, to the south of Route 143 in Peru.  It extended from Route 143 in a southerly direction to Lake Ashmere, with extensive frontage on Lake Ashmere.  Parcel 26-4, which consisted of 119.67 acres, was located at 94 West Main Road, across Route 143 from Parcel 26-50.  Danbee sought recreational land classification for 33.7 acres of Parcel 26-50 and for 9.4 acres of Parcel 26-4, and it sought forest land classification for the remaining 198 acres of Parcels 26-50 and 26-4.    
On January 1, 2008, Lakeside was the assessed owner of the parcel of real estate identified as Assessors Map 22, Parcel 21 ("Parcel 22-21").  Parcel 22-21 consisted of 15.02 acres of land located along Route 143.  Lakeside sought forest land classification for the entire 15.02 acres of Parcel 22-21.

Forest-Land Classification Appeals
Docket No. F294429 pertains to Danbee's application for classification of 198 acres of Parcels 26-50 and 26-4 as forest land.  Docket No. F294430 pertains to Lakeside's application for classification of the entire 15.02 acres of Parcel 22-21 as forest land.  On April 3, 2007, Danbee and Lakeside each timely submitted to the State Forester a forest management plan and application seeking to have 198 acres of both Parcels 26-50 and 26-4 and all of Parcel 22-21 classified as forest land pursuant to G.L. c. 61, § 2.  On August 21, 2007, the State Forester timely certified both Danbee's and Lakeside's forest management plans.  By applications dated September 27, 2007, Danbee and Lakeside sent the assessors the approved forest management plan as evidence of the forest land certification.  In accordance with G.L. c. 61, § 2, the applications were to be filed with the assessors "prior to October first."  The last day prior to October first was Sunday, September 30, 2007.  
On Monday, October 1, 2007, the Town Clerk received and signed for a package properly addressed to the assessors which contained Danbee's and Lakeside's applications for forest land classification.  However, because the assessors did not have business hours on Monday or Tuesday, they did not pick up the applications until Wednesday, October 3, 2007.  By Notices of Action dated December 19, 2007, the assessors notified Danbee and Lakeside of their December 10, 2007 decisions to deny both classification applications.  The reason listed on both notices was "untimely filed."  
On January 17, 2008, Danbee and Lakeside each filed an Application for Modification of the appellee's disallowance of the original applications, together with supporting documentation.  On January 18, 2008, Danbee and Lakeside filed separate appeals with the State Forester.  The appellee has failed to act on the Modifications, and the State Forester has failed to act on the appeals.  By separate Petitions Under Formal Procedure, Danbee and Lakeside both appealed the appellee's failure to act on the applications for forest classification.
By Order dated January 6, 2010, the Board denied the appellee's Motion to Dismiss.  Where, as here, the deadline for filing falls on a Sunday or legal holiday, the deadline is the following business day.  The fiscal year 2009 applications for forest classification were received by the Town Clerk on October 1, 2007, and were therefore timely filed.  As the Board stated in its January 6, 2010 Order:  "The assessors' lack of daytime business hours on October 1, 2007 and their failure to pick up the applications, either through lack of business hours or otherwise, until October 3, 2009, is of no jurisdictional consequence." 
However, there is nothing in Chapter 61 or elsewhere that authorizes the appellants' appeals to the Board.  Because the State Forester has granted the appellants' applications for classification, they have no reason to appeal from the State Forester decision.  The assessors, instead of filing an appeal to the State Forester requesting removal of the lands from classification, simply refused to treat the subject properties as forest land because they believed the appellants' paperwork was filed untimely.  There is, however, no right of appeal from the assessors' decisions in Chapter 61; rather, appeals under Chapter 61 concern decisions of the State Forester or the use of the properties.  The Board thus ruled that it lacked subject matter jurisdiction to hear and decide these appeals.

Recreational-Land Classification Appeal
Docket No. F294960 pertains to Danbee's application for the classification as recreational land of 33.7 acres of Parcel 26-50 and 9.4 acres of Parcel 26-4, for a total of 43.1 acres.  On October 1, 2007, the appellee timely received Danbee's application dated September 27, 2007 seeking recreational-land classification for the 43.1 acres of the subject properties.  See G.L. c. 61B, § 3.  On December 19, 2007, the appellee mailed to Danbee a Notice of Action notifying Danbee that on December 10, 2007 the appellee had disallowed the application on the basis that the 43.1 acres were "Non-qualifying."  On February 14, 2008, Danbee filed an Application for Modification of the appellee's disallowance of its recreational-land classification application, and on April 10, 20078, Danbee submitted a Supplemental Appendix to the Application for Modification.  The appellee failed to act on the Application for Modification.  On May 14, 2008, Danbee seasonably filed a Petition Under Formal Procedure with the Board.  On the basis of these facts, the Board found that it had jurisdiction over the recreational-land classification appeal.
Danbee presented its case-in-chief through the testimony of its witnesses, Vickie Donahue, Esq., counsel for Danbee, and Mark Toporoff, the Co-Director of "Camp Danbee," a summer camp that operates at the subject properties.  Danbee also presented its fiscal year 2010 tax bills and maps for both parcels at issue.
The subject properties were used eight weeks of the year for the operation of Camp Danbee.  Mr. Toporoff explained that employees of Camp Danbee had one week of orientation and the girls attended the camp for weeks two through eight.  As indicated on the map submitted by Danbee, there was a large area of improved land, which Mr. Toporoff explained was called the "Campus."  The Campus was located on the south side of Route 143 and extended south to Lake Ashmere.  A second area of improved land was located southeast of the Campus.  Both the Campus and the smaller improved area of Parcel 26-50 were improved with multiple buildings, including:  residential cabins containing full bathroom facilities where the girls stayed for their seven-week session; several buildings for activities, including the dance, gymnastics and fine arts buildings; the dining hall; and administration and maintenance buildings.  Parcel 26-50 was further improved with numerous athletic fields, including:  softball and multipurpose fields; athletic courts for tennis, basketball and volleyball; swimming pools; and a waterslide at the edge of Lake Ashmere along with bleacher seating.  Mr. Toporoff testified that a portion of Parcel 26-50 along Lake Ashmere was used by Camp Danbee for evenings of traditional camping, which he explained meant eating and sleeping under the stars.  The map for Parcel 26-50 did not delineate the proposed recreational land or otherwise detail where the area sought to be classified as recreational land, as opposed to forest land, was located.  
According to the map of Parcel 26-4, this parcel was improved with several horse-riding facilities, including stable and barn buildings and corrals, which were also used by Camp Danbee.  As with the map for Parcel 26-50, the map for Parcel 26-4 did not delineate the proposed recreational land or otherwise detail where the area sought to be classified as recreational land, as opposed to forest land, was located.     
Attorney Donahue testified to her involvement in filing the application for recreation-land classification for the subject properties.  She explained that the application was completed by Dan Zankel in his capacity as President of Campground, LLC, which was the sole member of Danbee, and that she reviewed the application prior to its filing.  The application for classification of the subject properties as recreational land was submitted by the appellee as evidence in these appeals.  This application, signed "[u]nder the pains and penalties of perjury," indicated that the subject properties were not open to the general public but instead were restricted, as specified on the application, to "private individuals."  Attorney Donahue stated that she reviewed this application and she testified that, at the time, she saw no mistakes or problems with it.  Attorney Donohue testified that she since came to believe that this portion of the application was erroneous.  Danbee did not present Mr. Zankel as a witness in these appeals. 
Next, Mr. Toporoff testified to the use of the subject properties, primarily the use by Camp Danbee.  He testified that Camp Danbee was a full-season summer overnight camp for girls between the ages of 8 and 15 that offered a wide range of activities, including:  sports such as tennis, basktetball, soccer, sand volleyball, swimming, softball, lacrosse, field hockey, archery and gymnastics; dance; theater; and arts and crafts.  Camp Danbee also provided the opportunity for the girls to travel during their seven-week session, with the older girls traveling by plane to California for a week and the younger girls traveling by bus to places like Cape Cod and Montreal for a week.  During the fiscal year at issue, approximately 310 girls attended Camp Danbee, and the tuition was approximately $9,700 for the seven-week session.  
In an attempt to overcome the evidence of restricted access to the subject properties, Mr. Toporoff testified to other uses of the subject parcels.  In addition to Camp Danbee activities, the parcels at issue were used for one week each year for the operation of America's Camp, a non-profit program providing a week of camp at no cost to any child who had lost a parent as a result of the September 11, 2001 terrorist attacks. Mr. Toporoff did not have first-hand knowledge of precisely how America's Camp functioned, as he was not directly involved in that program.  However, Mr. Toporoff stated that he was involved in renting out the subject properties.  He claimed that other uses of the subject parcels included: the use of Danbee's tennis courts by a local regional public high school; the rental of the property by the Peru fire department for its annual picnic; rentals of the property to non-profit organizations, including educational and religious groups, for camp outings and retreats; Red Cross lifeguard training primarily for the staff of Camp Danbee but also open, at no cost, to members of the community; the use of the grounds to members of the community for hunting during the winter season; the use of the tennis courts by a few individual members of the community; and the use of the grounds to members of the community to watch Camp Danbee's annual fireworks display.  
However, Mr. Toporoff freely admitted that, during the seven-week period that the girls from Camp Danbee were present at the subject properties, which constituted the majority of his time at the subject properties, access to the subject properties was greatly restricted.  As he explained: 
Well, when the campers are there, we have total coverage of the kids.  Safety is the number one issue.  So the only way onto the camp is through the main entrance or from the lake.  And so we have staff with campers all the time.  Anybody who comes to the camp checks in at the office from the outside.  

Mr. Toporoff also admitted that there was a "No Trespassing" sign at the entrance of Parcel 26-50, again, primarily because "[w]hen we run the camp, we are responsible for all those children.  That is the focus of what we do, and we don't want people coming in while we're in charge of these kids."  There was a "No Trespassing" sign at the entrance to the facility and no evidence was produced to indicate that the sign was taken down when the camp was not in session.  In fact, Mr. Toporoff further testified that during the winter months, that front-entrance roadway was barricaded by a "locked chain," presumably to prevent outsiders from "driving down through into camp and getting stuck" in the snow, although Mr. Toporoff stated that the caretaker regularly plowed the roads at the parcel.
Moreover, the Board found that the subject properties' improvements were only enjoyed by participants in the private program run by Camp Danbee.  Even though Mr. Toporoff testified to the other uses of the subject properties aside from the two-month use by Camp Danbee, the uses he cited primarily constituted private rentals of the properties for fees.  While he attempted to prove that the subject properties were open to the public, he mentioned mere isolated instances of public usage by people who happened upon the property on their own, not as the result of public postings at the subject properties.  To the contrary, postings of "No Trespassing" signs and chains at the subject properties fostered a sense of exclusion and privacy, rather than invitation, onto the subject properties.  As for the one-week usages by America's Camp and by the American Red Cross, which was primarily geared towards employees of the appellant with only a few outside participants, the Board found those to be isolated de minimus uses rather than a consistent and substantial usage by a non-profit organization.  
Mr. Toporoff's efforts to establish public usage were not persuasive, since his involvement with, and thus his knowledge of, the subject properties stemmed from his duties as Co-Director of Camp Danbee, a seasonal camp operated for only eight weeks a year.  The Board found more credible on the issue of the subject properties' usage the statement on the application for recreational land classification by Mr. Zankel as President of the sole member of Danbee, stating that the subject properties were restricted to use by "private individuals," as well as Attorney Donahue's testimony that she had reviewed the recreational-land-classification application and that, in her opinion, it contained no errors or problems.  
The Board thus found that on the basis of the evidence of record in these appeals, Danbee failed to meet its burden of proving with sufficient evidence that the subject properties were open to the public.
Further, the Board found that neither map delineated the portion of the subject properties that Danbee sought to be classified as recreational land.  Danbee sought to have the subject properties classified as either recreational or forest land.  Assuming, for purposes of these appeals, that the improved portions that were used by Camp Danbee were the portions intended for classification as recreational land, the maps of the subject properties indicated that numerous buildings were constructed on portions of the subject properties that were used by Camp Danbee -- including activity facilities and residence halls as well as barns, stables and athletic fields -- as part of the main Campus and the other smaller campuses of Camp Danbee.  As testified to by Mr. Toporoff, these many facilities offered a wide variety of activities for the girls enrolled at Camp Danbee.  The Board thus found that the subject properties did not fall under the first category of property entitled to recreational-land classification under G.L. c. 61B, § 1, because they were not held in a wild, open, pastured, landscaped or forest condition, but rather, were heavily improved with buildings and athletic fields.  
Land may also be classified as recreational land if it is used for "recreational use," as that term is specifically defined by G.L. c. 61B, § 1, and is open to the public or to members of a non-profit organization.  First, the maps of the subject properties that were submitted by Danbee made no reference to hiking trails or picnicking areas that were available for public use.  While there were isolated areas of the subject properties that were devoted to some of the recreational uses specified in § 1 - camping, horseback riding, swimming, and some degree of hunting during the off-camp season -- there were also numerous portions of the subject properties that were devoted to uses specifically excluded by the statute, namely, any sport normally undertaken in a gymnasium or similar structure.  The Board thus found that the subject properties were not used for "recreational use" as specifically defined by § 1.  
Second, Danbee made no showing that it was a non-profit organization.  Moreover, as discussed previously, the uses of the subject properties by groups which were non-profit organizations, like America's Camp and the American Red Cross, were de minimus.  The Board thus found that the subject properties did not fall under the second category of property entitled to recreational-land classification under G.L. c. 61B, § 1.
Therefore, the Board found that Danbee failed to meet its burden of proving that the subject properties qualified for recreational status for the fiscal year at issue.   Accordingly, the Board issued a decision for the appellee in Docket No. F294960.

OPINION
Forest-Land Classification Appeals 
In their forest-land classification appeals, the appellants claimed to be aggrieved by the assessors' disallowances of their applications for forest land classification for 2009, despite the certification by the State Forester of their forest management plans.  The appellants cite G.L. c. 61, § 2, which provides in pertinent part as follows: 
Except as otherwise herein provided, all forest land, parcels of not less than 10 contiguous acres in area, used for forest production shall be classified by the assessors as forest land upon written application sufficient for identification and certification by the state forester.  Such application shall be accompanied by a forest management plan.  The state forester will have sole responsibility for review and certification with regard to forest land and forest production .  . . .  Upon receipt of such certified application, the board of assessors shall, upon a form approved by the commissioner of revenue, forthwith record in the registry of deeds of the county or district in which the parcel is situated, a statement of such classification which shall constitute a lien upon the land for taxes levied under the provisions of this chapter . . . . When in judgment of the assessors, land which is classified as forest land or which is the subject of an application for such classification is not being managed under a program, or is being used for purposes incompatible with forest production, or does not otherwise qualify under this chapter, the assessors may, on or before December first in any year file an appeal in writing mailed by certified mail to the state forester requesting a denial of application or, in the case of classified land, requesting removal of the land from such classification.
(emphasis added).  As described above, the structure for forest-land appeals under § 2 is as follows: the State Forester, in his discretion, classifies the land as forest land; next, the assessors are to abide by the State Forester's certification and record a statement of certification; then, if the assessors do not agree with the certification, they may appeal to the State Forester.  
In the instant appeal, the assessors did not file an appeal with the State Forester but instead simply refused to treat the subject properties as forest land.  The appellants then filed their petitions with the Board requesting that the Board enter an order requiring the appellee to comply with G.L. c. 61, § 2, including requiring the appellee to file the requisite statements of classification with the Registry of Deeds of Berkshire County.  However, under § 2, the "sole responsibility for review and certification" of real estate as forest land is with the State Forester.  All appeals regarding classification of land as forest land --  including whether such land is being properly managed or "does not otherwise qualify under chapter 61" -- must be filed with the State Forester.  The State Forester, in his discretion, "may deny the owner's application, may withdraw all or part of the land from classification, or may grant the application, imposing such terms and conditions as he deems reasonable to carry out the purpose of this chapter."  If either the owner or the assessors are aggrieved by this decision, § 2 creates a right of appeal to the State Forester, who must then convene a panel to conduct a hearing and render a decision.  The owner or assessors may then file an appeal of the panel's decision to the Superior Court or the Board.  Accordingly, the Board ruled that the appellants were not aggrieved by any decision of the State Forester or a panel convened by the State Forester under § 2.  On this basis, the Board found and ruled that it lacked subject matter jurisdiction over the appeals pertaining to the failure of the appellee to certify the subject properties as forest land.

Recreational-Land Classification Appeal
In Docket No. F294960, Danbee appealed from the refusal of the appellee to classify as recreational land 33.7 acres of Parcel 26-50 and 9.4 acres of Parcel 26-4, for a total of 43.1 acres of the subject properties.  In its consideration of this appeal, the Board is guided by the longstanding principle that "statutes granting exemptions from taxation are strictly construed.  A taxpayer is not entitled to an exemption unless he shows that he comes within either the express words or the necessary implication of some statute conferring this privilege upon him."  Animal Rescue League v. Assessors of Bourne, 310 Mass. 330, 332 (1941) (citations omitted). 
For the fiscal year at issue, the requirements for recreational classification of land were detailed in G.L. c. 61B, § 1 ("§ 1"), which provided two distinct categories of land to be classified as recreational land.  The first category provided as follows:  
Land not less than five acres in area shall be deemed to be recreational land if it is retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition or in a managed forest condition under a certified forest management plan approved by and subject to procedures established by the state forester in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources, . . . .  
The 43.1 acres for which Danbee sought recreational-land classification were not subject to a "certified forest management plan."  Further, the 43.1 acres contained numerous improvements that were used for the operation of Camp Danbee -- including soccer, softball and volleyball fields, dining and residence halls, and buildings used for dance, gymnastics and fine arts.  The Board found and ruled that the presence of these many facilities precluded the 43.1 acres of the subject properties from being "retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition."  Accordingly, the Board found and ruled that the subject properties did not qualify as recreational land under the first category of the § 1 definition.
For classification under the statute's second category of recreational land, § 1 provided as follows:
Land not less than five acres in area shall also be deemed to be recreational land which is devoted primarily to recreational use and which does not materially interfere with the environmental benefits which are derived from said land, and is available to the general public or to members of a non-profit organization including a corporation organized under chapter one hundred and eighty. 
For the purpose of this chapter, the term recreational use shall be limited to the following: hiking, camping, nature study and observation, boating, golfing, non-commercial youth soccer, horseback riding, hunting, fishing, skiing, swimming, picnicking, private non-commercial flying, including hang gliding, archery, target shooting and commercial horseback riding and equine boarding. 
Such recreational use shall not include . . . any sport normally undertaken in a stadium, gymnasium or similar structure. 

(emphasis added).  As detailed above, the second category of recreational land required both that the land be reserved for "recreational use," as specifically defined, and that it be "available to the general public or to members of a non-profit organization."  As explained below, the Board found that the subject properties failed to meet either prong of this definition.
First, Danbee failed to prove the proper usage of the 43.1 acres of land.   Under § 1, "recreational use" is a defined, limiting term which includes only those activities specifically enumerated, while specifically excluding certain other activities.  While there were isolated areas of the subject properties that were devoted to some of the specified recreational activities -- camping, horseback riding, swimming, and some degree of hunting during the off-camp season -- there were numerous and significant portions of the subject properties that were devoted to uses that were specifically excluded from the statute as sports undertaken in a gymnasium or other structure, namely, the gymnastics and dance buildings.  Additionally, the arts building housed an activity that not only was not a sport, but was undertaken in an indoor structure similar to a gymnasium, and thus likewise did not fit within the statute's specifically enumerated items of outdoor recreational activities.  See Banushi v. Dorfman, 438 Mass. 242, 244 ("In considering the language of the statute, the doctrine of ejusdem generis is applicable: 'Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.'") (quoting 2A N.J. Singer, Sutherland Statutory Construction § 47.17, at 273-274 (6th ed. rev. 2000))(also citing Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 660 n.8 (1984)). 
	The appellant contended that its operation of Camp Danbee qualified as a recreational use because the activities of the camp in their entirety qualified as "camping," an item specifically enumerated in § 1.  However, the Board noted that each of the other items specifically enumerated in the definition of "recreational use" -- including nature observation, horseback riding, fishing and skiing -- was specifically an outdoor activity; in fact, as discussed above, any indoor activity that normally occurred in a gymnasium or other similar structure was to be specifically excluded from being a "recreational use."  The Supreme Judicial Court has declared that "ʽ[t]he general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'"  Industrial Finance Corp. v. State Tax Commissioner, 367 Mass. 360, 364 (1975) (quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934)).  Because the operation of Camp Danbee as a whole incorporated a host of activities that were not specifically enumerated in the statute, and even activities which occurred within specifically excluded indoor improvements, the Board found and ruled that the operation of Camp Danbee did not constitute "camping" as that term was used in the statute and, accordingly, did not qualify as a specifically enumerated "recreational use" for purposes of §1. 
Second, the appellant also failed to prove that the subject properties were open to the public or to members of a non-profit organization.  Danbee did not demonstrate that it was a non-profit organization.  Moreover, while Mr. Toporoff believed that America's Camp was operated by a non-profit organization, the camp was operated at the premises for only one week a year.  Likewise, the American Red Cross training operated for only one week a year, and it was primarily geared towards training Camp Danbee employees, with only a few outsiders.  The Board found these to be incidental, de minimus uses that did not constitute a sufficient public usage of the subject properties.  See Marshfield Rod & Gun Club v. Assessors of Marshfield, Mass. ATB Findings of Fact and Reports 1998-1130, 1137 (denying the charitable exemption to a property operated by an organization when "occupation for charitable purposes was merely incidental").  
Moreover, the Board found that Mr. Toporoff's testimony attempting to establish public uses was mainly a recitation of primarily private rentals for fees of the properties, together with a few isolated instances of public usage by people who happened upon the property on their own, not as the result of public postings at the subject properties.  Ultimately, Mr. Toporoff's efforts to establish public usage were not persuasive, since his involvement with, and thus his knowledge of, the subject properties stemmed from his duties as Co-Director of Camp Danbee, a seasonal camp operated for only eight weeks a year.  The Board found more credible the application statement by Mr. Zankel, stating that the subject properties were restricted to use by "private individuals," and Attorney Donahue's statement that she found "no errors" with the application.  
"Favorable tax treatment of land available only to a select few, as opposed to the general public, has consistently been denied."  Cape Cod Five Cents Savings Bank and William R. Enlow, Trustees, et al. v. Assessors of the Town of Harwich, et al., Mass. ATB Findings of Fact and Reports 2009-659, 679 (finding that the golf course, which was open only to members of a private club and patrons of a particular hotel, was not open to the general public or members of a non-profit organization within the meaning of § 1 and therefore did not qualify as recreational land) (citing Brookline Conservation Land Trust v. Assessors of Brookline, Mass. ATB Findings of Fact and Reports, 2008-679, 699-700; Wing's Neck Conservation Foundation, Inc. v. Assessors of Bourne, Mass. ATB Findings of Fact and Reports 2003-329, 343, aff'd, 61 Mass. App. Ct. 1112 (2004)).  On the basis of the evidence of record, the Board found and ruled that Danbee failed to meet its burden of proving that the subject properties were open to the public or used by members of a non-profit organization. 

Conclusion
With respect to Docket Nos. F294429 and F294430, the appeals pertaining to forest-land classification, the Board found and ruled that it lacked subject-matter jurisdiction and accordingly issued decisions for the appellee.  
With respect to Docket No. F294960, the appeal pertaining to recreation-land classification, the Board found that the subject properties' many facilities precluded a finding that the 43.1 acres of the subject properties were "retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition."  The Board further found that the subject properties were not sufficiently devoted to "recreational uses" as specifically defined in G.L. c. 61B, § 1, nor were they sufficiently open to use by the public or members of a non-profit organization.  Therefore, the Board found and ruled that the subject properties did not qualify as recreational land under the § 1 definition.  Accordingly, the Board issued a decision for the appellee. 

      THE APPELLATE TAX BOARD

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


A true copy,

Attest:				_____undefinedundefinedundefinedundefined______
	   Clerk of the Board

 See G.L. c. 4, § 9; see also CFM Buckley/North, LLC v. Assessors of Greenfield, Mass. ATB Findings of Fact and Reports 2007-220, 223, n. 2; Holt v. Assessors of West Springfield, Mass. ATB Findings of Fact and Reports 2010-946, 948, n. 1.  
 Pursuant to G.L. c. 61B, § 3, an application for certification as recreational land must be submitted to the assessors "not later than October first" of the year preceding the tax year at issue. 
  Mr. Toporoff explained that, except for a small percentage of girls from the Dominican Republic who had to depart early for school, the campers attended Camp Danbee for the entire seven-week period.
 The first prong of G.L. c. 61B, § 1 requires that recreational land be "retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition or in a managed forest condition under a certified forest management plan approved by and subject to procedures established by the state forester in such a manner as to allow to a significant extent the preservation of wildlife and other natural resources  . . . ."

ATB 2012-618