County Superior Court
Plaintiff: Kelly M. Fracassa, Esq. John J. Kupa, Esq.
Defendant: John C. Levanti, Esq. Matthew T. Oliverio, Esq.
matter returns to the Superior Court on three consolidated
appeals from decisions of the Town of Westerly's Board of
Assessment Review (the Board). The Appellant, Marsha Fiske
(Appellant), owns real estate in the Town of Westerly (the
Town) that is classified as farmland pursuant to the Rhode
Island Farm, Forest and Open Space (FFOS) Act, codified at
G.L. 1956 §§ 44-27-1 et seq. (the Act).
The thrust of Appellant's various appeals to this Court
challenge the tax assessment attributed to the portion of her
real estate that is not designated as farmland.
discussed in a prior decision of this Court, Fiske v.
Town of Westerly Board of Tax Assessment, No. WC
2006-0246, 2009 WL 3552788 (R.I. Super. Oct. 28, 2009)
(Thompson, J.) (Fiske I), as well as herein, this
Court has jurisdiction over this matter pursuant to §
44-27-6. For the reasons that follow, this Court modifies the
Board's decisions on two of the three appeals and remands
the third appeal to the Board for further proceedings
consistent with this Decision.
purchased the subject property in 2002, which is located at
55 Watch Hill Road and designated as Tax Assessor's Plat
127, Lot 2. The lot consists of approximately 435, 000 square
feet, or roughly ten acres, that fronts Watch Hill Road to
the east and is bordered on the west by the Pawcatuck River.
property contains a three-story residence originally built in
1790 which has been renovated as recently as 2005; the
residence measures approximately 5000 square feet. With the
exception of a six-by-fourteen foot kitchen expansion with no
corresponding foundation underneath, the original footprint
of the residence has remained unchanged. The residence lies
roughly 300 to 400 feet inland from the Pawcatuck River and
is separated from the water by a heavy stand of trees and a
large section of grassland. The heavy tree stand limits views
of the river from the residence in the spring, summer and
fall months due to foliage.
2002 to 2005, Appellant and her husband Eric Fiske (Mr. Fiske
or, together with Appellant, the Fiskes) undertook certain
interior and exterior renovations to the house, including
replacing siding, windows, doors, roofing materials and
decking, at a cost of approximately $400, 000. See
Tr. 8-10, 146, Dec. 17, 2009. A swimming pool was constructed
on the property in 2004 in the general vicinity of the
residence. There is a detached garage and a small outbuilding
located on the property.
shoreline of Appellant's property along the Pawcatuck
River is rocky and provides limited recreational value. The
water in that area of the Pawcatuck River is shallow and of
poor quality, thus prohibiting fishing, bathing and other
recreational activities such as shellfishing. The shoreline
is rocky and sloped, restricting access to the water.
However, Appellant owns a dock on the shore at the southern
tip of the property, which is approximately 800 to 1000 feet
from the residence, allowing access to deep sea commercial
fishing. No recreational fishing takes place off the dock.
The dock is shared with a neighbor who has an easement right
to its use.
activity occurs on the property, including pasturing sheep,
maintaining an apiary for honey bees, harvesting lumber, and
growing a stand of Christmas trees. See Tr. 24,
26-27, 58, Dec. 17, 2009.
June 2, 2004, the property has been designated by the
Department of Environmental Management (DEM) as farmland
under the FFOS Act. In accordance with § 44-27-3(c)(1),
the Town thereafter classified Appellant's property as
farmland for the 2004 tax year, effectively reducing the tax
on 9.32 acres of the Appellant's 9.92 acres of property.
The issues before this Court do not involve the designation
of Appellant's property as farmland, but rather the
amount of the tax assessments in various calendar years
applied to the remainder of Appellant's property.
of the Case
December 31, 2003, Charles E. Vacca (Vacca), Westerly's
Tax Assessor, assessed the total property value at $2, 212,
300, valuing the land at $1, 513, 900 and the buildings at
$698, 400. For tax year 2004,  based upon the FFOS
classification, Vacca adjusted the property assessment.
Specifically, a 30, 000 square foot area around the house was
carved out pursuant to DEM regulations implementing the
Act's requirement that a "house site" be
designated and valued separately from the
farmland. Vacca valued the 30, 000 square foot house
site at $1, 225, 800, retained the $698, 400 assessment for
the buildings, and valued the remaining 9.32 acres of
farmland at $3300, for a total assessment of $1, 927, 500.
The building valuation was determined by an adjusted
replacement cost base rate of between $154.19 and $192.76 per
square foot. According to Vacca, Appellant received a tax
valuation benefit of $284, 800 for tax year 2004 by
classifying the property as farmland under the FFOS Act.
appealed the 2004 assessment of the house site and buildings,
first to Vacca on October 27, 2005, and then to the Board on
December 29, 2005, arguing that the house site and the
buildings were taxed disproportionately compared to
neighboring properties. Vacca refused to make any change to
the 2004 assessment. When the Fiskes appeared in front of the
Board, they were unrepresented by counsel and submitted
several documents to support their appeal, including the tax
cards of thirteen properties that the Fiskes believed were
comparable sites, letters of correspondence between the
Fiskes and the Town's tax personnel, and maps showing the
location of all other FFOS properties in Westerly. Each of
the other FFOS properties identified by the Fiskes had
building assessments based on an $84 per square foot
unadjusted replacement cost base rate.
February 16, 2006, the Board issued its decision, fixing the
value of Appellant's house site at $1, 001,
and the value of the buildings at $716, 100. See Fiske
I, at *1.
with the Board's February 16, 2006 decision, on April 19,
2006, Appellant filed an appeal to this Court, Thompson, J.
presiding. See Complaint, Fiske v. Town of
Westerly Board of Tax Assessment, No. WC 2006-0246.
parties requested and were permitted to supplement the record
on appeal to this Court. Appellant filed a formal appraisal by
Raymond Lueder (Lueder), who offered an assessment of a 49,
199 square foot undeveloped lot to serve as the house site.
Fiske I, at *2. Lueder's appraisal reviewed five
comparable sales that all fell within a range of $230, 000 to
$310, 000, including one comparable sale of a property
"with a distant or limited water view and because it was
located relative (sic) far away from the beaches."
Id. Lueder ultimately concluded, after making
adjustments for location, view, access to public utilities,
etc., that the proper appraisal for the Appellant's 49,
199 square foot house site was $275, 000. Id.
response, the Board submitted materials including a
"Statement of Fact" which purported to represent
the facts and rationales upon which Vacca relied in making
his determination. Id. Vacca explained in the
"Statement of Fact" that he interpreted the law to
require "'the assessor to assess the base
at a fair and full cash value, excluding land used for
farming purposes, . . . [and] to recognize that the amenities
of the base lot still exist; extensive water views and access
to the river for boating and bathing.'" Id.
(quoting Statement of Fact at 1). Vacca further stated that
he "did not define a [house site] 'by a metes and
bounds description . . . but rather by its inherent rights
similar to all other waterfront properties. The open space
designation does not preclude the owner from enjoying the
extensive water views, access to deep water for bathing and
boating, or the privacy that nearly ten acres
affords.'" Id. (citing Statement of Fact at
2). Vacca offered that he valued Appellant's house site
using the same guidelines as another FFOS-designated,
waterfront property located at 7 Niantic Avenue, to which he
assigned the base lot in excess of $7, 500, 000. Id.
The Board also asserted that Appellant had incorrectly
brought the appeal under the FFOS appellate procedure of
§ 44-27-6, when it should have been brought under §
44-5-26, the general tax appeal statute, because the
Appellant only challenged the house-site portion of the
assessment and not the propriety of the assessment of the
9.32 acres of farmland.
threshold matter, the Court determined that Appellant's
appeal from the Board's February 16, 2006 decision was
properly brought pursuant § 44-27-6, which provides for
a ninety-day appeal period under the FFOS Act, and rejected
the Board's argument that the appeal was required to be
filed within thirty days under §
44-5-26(b). Fiske I, at *5. The Fiske
I Court ruled as follows:
"Were the Court to accept the Appellee's
interpretation of § 44-27-6 as allowing appeals of a
joint assessment only as to the FFOS portion of the
assessment, the result would be a procedural quagmire.
Appellants seeking to challenge a single assessment would be
required to file two separate appeals, one within thirty days
of the board's decision, and a second within ninety days.
These appeals would then proceed, one based on the de
novo trial type hearing provided for in § 44-5-29
("the petition is subject to all provisions of law as to
time for pleading, assignment day, and all other incidents
applicable to an action at law originally commenced in the
superior court"), including even the possibility of a
jury under § 44-5-30. Meanwhile, the twin appeal would
proceed through the Superior Court under the traditional
judicial review standard applicable to administrative appeals
and limited to the evidence contained in the record under
§ 44-27-6. However, it is only through the legal fiction
created by the FFOS that the farmland exists independently
from the house-site, for all other purposes, the farmland and
the house-site are one parcel. By acquiring an FFOS
designation, a homeowner forfeits the right to develop the
FFOS designated land; and the owner cannot sell the
house-site without the farmland or vice-versa. Although the
farmland and the house-site may be assessed separately, the
lot nevertheless remains one legally recognized parcel.
Further, a twin appeal procedure requires the owner of one
parcel of land to potentially bear the burden and expense
associated with appealing two tax assessments. Requiring an
owner to proceed with two separate tax appeals from the
assessment of one parcel places an undue burden on the owner,
and the Court will not ascribe such a nonsensical intent to
our General Assembly. When construing statutes, this Court
will not interpret statutory schemes in such a manner as to
reach an absurd result. See Peck v. Jonathan Michael
Bldrs., Inc., 940 A.2d 640, 643 (R.I. 2008)."
Id. at * 4.
Court concluded that when property which includes "both
FFOS and non-FFOS designations is assessed simultaneously,
appeals seeking to challenge that assessment are properly
brought under § 44-27-6." Id. at *5.
Court in Fiske I additionally found that the Board
failed to present the Court with competent evidence to
establish the procedures and methodology upon which Vacca
made his decision, and that the Statement of Fact merely
contained "general statements of the law governing tax
assessors coupled with general principles of
assessment." Id. at *6. On the other hand, this
Court held that Appellant presented substantial evidence upon
which her requested relief could be granted, including
numerous tax cards of properties she believed to be
comparable, maps and charts of the locations of those
properties, and substantial evidence that her property was
assessed far in excess of those properties. Id. at
after engaging in a lengthy analysis of the FFOS Act and tax
assessments, see id. at *7-10, the Court held in
Fiske I that Vacca and the Board made an error of
law when they ignored the FFOS classification of the land
surrounding the house site. The Court concluded that the
Board's approach entirely contradicted the purposes and
language of the Act, which was to provide lower tax
assessments in order to encourage the preservation of farm,
forest and open space lands. Id. at *10. Thus, the
Court ordered the case to be remanded to the Board to
determine a new assessment with specific directions that the
Board may not categorize the house site as waterfront
property, that it "may consider the property's
sweeping water views, " and that "the best manner
to conceive of the Fiskes' ownership of the farmland with
river frontage is as an easement for water access."
Id. at *11.
and Decision on Remand
Board held a hearing on remand on December 17, 2009, at which
Mr. Fiske again testified on behalf of Appellant. Mr. Fiske
presented a list summarizing the assessed land values of
twelve 30, 000 square foot house sites along Watch Hill Road,
ranging from $101, 400 to $210, 600 as of 2003. (WC 2010-0305
Appellant's App. at 67.) On the issue of the buildings
assessment, Mr. Fiske submitted a document summarizing
adjusted building base rates for eleven neighboring
waterfront properties ranging from $101.61 to $132.95 per
square foot. (WC 2010-0305 Appellant's App. at 77.) Mr.
Fiske also presented his homeowner's insurance policy in
effect from May 5, 2003 to May 5, 2004, which set a
guaranteed house replacement cost at $583, 918 with a
replacement value estimated at $139.03 per square foot. (WC
2010-0305 Appellant's App. at 71.)
regard to the house site assessment, Appellant presented the
testimony and report of a local real estate broker and
appraiser, Stephen O. McAndrew (McAndrew). McAndrew's
appraisal determined the value of a 30, 000 square foot house
site on Appellant's property in 2003 was $285, 000, based
upon three comparable sales in 2003 with corresponding
adjustments as noted. (WC 2010-0305 Appellant's App. at
108.) McAndrew's appraisal took into consideration the
Court's directive in Fiske I that the house site
was to be considered as an interior rather than a waterfront
site, but also incorporated the property's
waterfront-like attributes; namely, its waterview and dock
access. He visited the property and testified that "[i]t
certainly has a view, but this is not an expansive view by
any stretch of the imagination." Tr. 100, Dec. 17, 2009.
McAndrew reviewed the April 2003 sale of a property located
at 43 Watch Hill Road that had many similar qualities to that
of the Appellant's property. The property at 43 Watch
Hill Road has a water view, water access via a right-of-way
to Mastuxet Cove on the Pawcatuck River where the owners keep
a boat, and is situated a few hundred feet northeast of the
Appellant's property. Vacca had assessed a 30, 000 square
foot house site at 43 Watch Hill Road at only $183, 600.
Id. at 102. Appellant's house site was assessed
far in excess of each of the comparable sites identified by
McAndrew and in excess of the 30, 000 square foot house site
at 43 Watch Hill Road.
also considered other properties in the area, testifying that
many of them contained strips of land granting access to
docks, each of which granted "access far superior to the
subject's access" and "views that are far
superior." Id. at 103. While not using these
properties as "comparable sales" because they were
not the subject of a recent sales transaction, McAndrew
commented that the assessments of each demonstrated that
water view and water access via these strips of land add
between 8% and 14% to the value of the land. He concluded
that it was reasonable, then, that Appellant's house site
assessment would reflect a 10% increase in value based upon
the water view and dock access. By comparison, his appraisal
of $285, 000 for Appellant's house site far exceeds a 10%
increase in value from the $183, 000 house site assessment at
43 Watch Hill Road. Id. at 102-104.
submitted his own appraisal that expressly rejected the
directive on remand to consider the property as not being
waterfront but as having "an easement for water
access." See Fiske I, at *11. Vacca again
decided to determine the assessment based on the highest and
best use of the entire property, calculating the market value
of the 30, 000 square foot house site to be $998, 000 as of
2003. In his appraisal, Vacca noted that he considered the
use as a residential home surrounded by farmland, but that
the property could be marketed as waterfront property
"with an inground pool, detached garage, deep water
dock, spectacular views, and water access." (WC
2010-0305 Appellant's App. at 141.) Vacca went on to
remark that, considering the best use of the property, a
potential buyer could remove the property from the FFOS
program and further subdivide the property into additional
building lots. Specifically, Vacca considered that
"[t]he subject's inclusion in the [FFOS] Program in
no way diminishes the appeal of the property to the market
for buyers of waterfront homes and the related boating,
bathing, and view amenities." Id. Vacca
utilized five sales from January 1, 2001 to July 30, 2004,
and the corresponding assessments of the 30, 000 square foot
house sites on each, to conclude that Appellant's house
site is valued at between $960, 000 and $1, 195, 000."
(WC 2010-0305 Appellant's App. at 152.) Additionally, he
relied upon five properties on Watch Hill Road, and the
corresponding assessments of the 30, 000 square foot house
sites on each, to fine tune his assessment of Appellant's
house site at $998, 000. (WC 2010-0305 Appellant's App.
testified before the Board that he did not think the
Legislators intended to draw a 30, 000 square foot lot that
did not encompass things that might have fallen within the
farmland. Tr. 65-66, Dec. 17, 2009. He rejected the notion
that, as Tax Assessor, he was required to draw circles or
squares in a piece of property to identify what is included
in a 30, 000 square foot house site. Id. Finally,
when asked whether he appraised the property as having an
easement for water access, Vacca responded, "I would not
have appraised it as an easement. They own the property . . .
[the Fiskes] have every right to use their property as they
see fit. They can remove that property from Farm, Forest and
Open Space in a heartbeat." Id. at 142-144.
December of 2009, members of the Board viewed the property
themselves, determining that the property's water views
were powerful and that the water views remained
"significant" even in other months of the year.
See Mins. of Board Meeting at 2, Mar. 17, 2010;
Appellant's App. at 155. The Board thereafter concluded
that Vacca's assessment was reasonable and upheld the
assessment. Appellant was notified of the Board's
decision in a letter dated March 19, 2010. Appellant appealed
the decision to this Court on May 7, 2010. (WC 2010-0305.)
also appealed the $2, 195, 200 assessment as of December 31,
2006, which included a house site assessment of $1, 448, 000.
The Board heard that appeal on November 7, 2007, prior to