dissenting. In my judgment, employment of the “reproduction cost” method to assess the land, buildings and improvements known as the “Kent Farm Village” produces a valuation substantially in excess of the property’s full and fair cash value. The resulting assessment is therefore illegal and, when challenged, should not be allowed to stand. I therefore respectfully dissent.
In appraising the Kent Farm the assessor’s obligation was to ascertain its full and fair cash value, that is, the amount which a willing buyer would probably pay to a willing seller in an arm’s length transaction in a fair *707market. Allen v. Bonded Municipal Corp., 62 R. I. 101, 105, 4 A.2d 249, 251 (1938). In that market obviously buyer availability would be limited to investors. And while an investor might resort to the reproduction cost approach to obtain an upper limit beyond which he would not pay, 2 Orgell, Valuation Under Eminent Domain §199 at 57 (2d ed. 1953), he would do so fully aware that the cost of the reproduction approach is one of the “least reliable indicia of market value,” Travellers Bldg. Ass’n v. Providence Redevelopment Agency, 106 R. I. 83, 89, 256 A.2d 5, 9 (1969), and entitled to “weight only in those cases where more satisfactory evidence based on actual sales or on earning power is not available.” 2 Orgell, supra §199 at 57.1
In this case there were no comparable sales, and therefore the only way to obtain a realistic point of reference in the valuation process was to capitalize the property’s income-producing potential. Yet, in valuing the property as of December 31, 1971 at approximately $3,776,775,2 the tax assessor, in effect, looked to a building contractor’s estimate of its reproduction cost rather than to an accountant’s ascertainment of its earning capacity. True, the absence of a full year’s operation of the apartment com*708plex would have required that some figures be projected and others estimated. But that was not an insurmountable obstacle. Indeed, such projections and estimates were made by the real estate expert who testified for the taxpayers in this case. His calculations indicated a net income for the current year, prior to depreciation,3 of $122,733, or a rate of return of 3.25% on the accessor’s valuation.
The majority regard the expert’s calculations with suspicion, and they reject it initially because the amount which he allocated to rental income, although it assumed a 100% occupancy throughout the year, was based upon the rentals actually received rather than upon an estimate of fair rental value. While the principle upon which they premise that conclusion is generally sound, Somers v. City of Meriden, 119 Conn. 5, 8-12, 174 A. 184, 186-87 (1934), it clearly is inapplicable in the peculiar circumstances of this case where concededly the actual rentals were the maximum which the law permitted to be charged.
A further fault which the majority find in the expert’s computation stems from the inclusion as an expense item of the very tax which the taxpayers are challenging as illegal. I agree arguendo that a preferable approach might have been to apply the capitalization rate to net income before taxes, and then to compensate by increasing that rate to yield the return an investor would reasonably expect plus the amount of taxes payable. That was the approach which was approved in City of New Brunswick v. State of New Jersey, Div. of Tax Appeals, 39 N. J. 537, 545-46, 189 A.2d 702, 707 (1963).
*709But at this point I am not concerned with capitalizing income in order to value the property for taxation, but with testing the assessor’s valuation by ascertaining whether on December 31, 1971 a buyer could have been found willing to invest $3,776,775 — the. price put on the property by the assessor — in order to realize a net income, prior to depreciation of $122,733, or a 3.25% return on his investment.
Whether that would have been possible obviously depended upon the conditions then prevailing in the money market. An examination4 of those conditions discloses that AAA tax exempt securities with 20-year maturities were* then yielding a 5% return; AAA corporate bonds with like maturities — 7.2%; obligations of the United States maturing in 1992 — 5.8%; and deposits in local mutual savings banks — from 4.5% to 6% depending on the nature of the deposit. Clearly, the substantially higher rates of return which those better quality, lower risk investments-were then paying would have stifled the willingness of a, potential buyer to pay for the Kent Farm property what the assessor said it was worth. Hence, the property was overassessed and the tax therefore illegal.
What remains is to ascertain the amount of the overtax, and that, of course, depends on whether the record' discloses what in fact was the property’s full and fair cash, value. While the taxpayers’ expert capitalized the net income he had projected in order to arrive at such a figure,, the trial justice rejected his conclusion, not because of any question as to his expertise, but solely because of the absence of an evidential underpinning to the capitalization rate used. That I am not prepared to say that the trial justice erred in this respect does not mean that I *710must accept the assessor’s excessive valuation. Instead, in this peculiar circumstance, what seems appropriate is to remand to afford both parties an opportunity to follow the capitalization of rental income approach and thus to arrive at a legal assessment. While such a remand may be unusual in a nonjury case, it is not without precedent. South County Sand & Gravel Co. v. Bituminous Pavers Co., 108 R. I. 239, 246, 274 A.2d 427, 431 (1971); Golden Gate Corp. v. Barrington College, 98 R. I. 35, 45, 199 A.2d 586, 592 (1964); Rhode Island Hospital Trust Co. v. Gilleney, 61 R. I. 23, 27, 199 A. 691, 693 (1938).
Edwards & Angelí, James K. Edwards, Jonathan E. Cole, for plaintiffs. Joseph T. Little, Asst. City Solicitor, for defendant.Petition for reargument denied.
I do not question the appropriateness of the reproduction cost approach for determining the fair market value of “* * * so-called ‘service properties/ that are owned for nonprofit uses and that seldom come on the market. Churches, club-houses, golf-courses, schools and university buildings are of this nature.” 2 Orgell, Valuation Under Eminent Domain §188 at 4 (2d ed. 1953); Travellers Bldg. Ass’n v. Providence Redevelopment Agency, 106 R. I. 83, 256 A.2d 5 (1969) (clubhouse for fraternal organizations) ; Trustees of Grace & Hope Mission v. Providence Redevelopment Agency, 100 R. I. 537, 217 A.2d 476 (1966).
Real estate in Bast Providence was assessed as of December 31, 1971 at a uniform percentage of 80% of full and fair cash value. Hence, the assessment of $3,021,420 against the taxpayers’ land, buildings and improvements was based upon a full and fair cash value of $3,776,775.
If a straight line depreciation rate of as little as 2% had been used, the net income would have been further reduced by about $75,000. Some courts treat depreciation as a deduction from gross income, others as a factor in determining the capitalization rate. In any event, it is generally recognized to be a relevant circumstance at the market place. City of New Brunswick v. State of New Jersey, Div. of Tax Appeals, 39 N. J. 537, 547-48, 189 A.2d 702, 708-09 (1963).
I take judicial notice of these rates of return. Simpson v. United States, 252 U. S. 547, 550, 40 S.Ct. 367, 368, 64 L.Ed. 709, 712 (1920); see Anderson v. Anderson, 107 R. I. 202, 210, 266 A.2d 56, 61 (1970).