Kingsland Bay School, Inc. v. Town of Middlebury

Peck, J.,

concurring. I agree with the result reached in this case by the Court. I write separately, however, because I disagree strongly with the rationale relied on in the opinion to support the conclusion.

I concur with the result only because, in my judgment, the . use to which the subject property is presently dedicated satisfies the “governmental function” test established in Brattleboro Child Development, Inc. v. Town of Brattleboro, 138 Vt. 402, 416 A.2d 152 (1980), as the standard to be satisfied for a “public use” tax exemption under 32 V.S.A. § 3802(4). I reach this conclusion because the service provided by plaintiff is done on be*208half of a state governmental (public) agency: the Department of Social and Rehabilitation Services (SRS) under a contract with that agency.

As the majority opinion points out, Brattleboro was overruled, most inadvisedly in my view, by American Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 557 A.2d 900 (1989). In that case, the majority rejected the governmental function standard as too narrow and, in its place, adopted a confusing three part test, set forth by the majority in Fly Fishing and reiterated by the majority in this case:

(1) the property must be dedicated unconditionally to public use;
(2) the primary use must directly benefit an indefinite class of persons who are part of the public, and must also confer a benefit on society as a result of the benefit conferred on the persons directly served; and
(3) the property must be owned and operated on a not-for-profit basis.

Because the matter before us satisfies this tripartite test, the majority opinion affirms the trial court’s decision that the property used by plaintiff is entitled to a tax exemption as being dedicated a public use.

I dissented in Fly Fishing, objecting to the three part test as well as the result. However, in this case, since I concur in the result, a dissent is not appropriate. Nevertheless, since I am still completely convinced that the three part test is not only wrong, but confusing and creates a hopeless muddle; accordingly, the appropriate resort is to a concurring opinion.

I will not go into the detail of my objections to the three part test here. They are set out in length in my Fly Fishing dissent. Rather, I will simply highlight some of the points made in my earlier opinion.

The three part test violates the rule that it is to be presumed that words in a statute are employed advisedly and are to be given effect. The three part test admits of no clear distinction between the three uses, public, pious, and charitable, which may qualify property for exemption under § 3802(4). The majority opinion, then and now, makes no definitional distinctions, *209although in the absence of definition, words in a statute are to be given their common meaning.

The Fly Fishing test permits almost every conceivable type of business which is open to the public without selection or limitation to qualify for a property tax exemption; grocery and clothing stores come to mind as clear examples. Such businesses need do no more than organize or reorganize on a nonprofit basis. This should have a particular appeal for small business; salaries will continue, and the business itself may. realize a profit, as do many nonprofit corporations.

The above opens the door to a continuing nibbling away at municipal property revenues, and contributing even further to tax increases, already a serious problem in many, if not most, Vermont communities.

The now defunct governmental function test related to the “public use” segment of the statute and set it apart from “pious” and “charitable,” thus giving effect to each of these statutory words.

It will be a morbidly amusing experience, what is known in theater as “black comedy,” to observe this Court, as it backtracks and struggles to create elaborate distinctions, if and when some of the potential situations created by the three part standard are tested. In the meantime, I remain convinced that the “governmental function” test of Brattleboro and other cases is and should remain the logical and reasonable interpretation of the statutory “public use” exemption. It should be reinstated.