Nuci Phillips Memorial Foundation, Inc. v. Athens-Clarke County Board of Tax Assessors

NAHMIAS, Justice,

concurring specially.

In my view, Presiding Justice Carley’s plurality opinion reaches the correct result in this difficult tax exemption case, but its reasoning improperly limits the expanded exemption for property of purely public charities that the people of Georgia endorsed in a 2006 referendum and the General Assembly codified in OCGA § 48-5-41 (d) (2) in 2006 and 2007. I believe that Chief Justice Hunstein’s dissent is even more improperly restrictive, as it misreads the code not only to nullify the recent amendments but those enacted in 1946 as well.

I write separately now to explain my interpretation of this complex statute, about which I have somewhat more confidence after reviewing the motion for reconsideration, but also to explain that I see the plurality opinion as governing the outcome of future cases raising this issue, which may affect many charities throughout the state. Thus, if the General Assembly wishes to have what I believe was the purpose of the 2006 and 2007 amendments recognized by this Court as the law, the Legislature will need to amend OCGA § *38848-5-41 (d) again to make its meaning crystal clear.

Fundamental to my view is the understanding that virtually all activities that produce income — such as the sale or rental of property, goods, or services — are not themselves “charitable,” but instead compete with the sale or rental of similar property, goods, or services for non-charitable purposes. As explained further below, Georgia law has never distinguished between “charitable” and “non-charitable” income-producing activities or looked to whether income-producing activities were sufficiently “charitable,” because those are not real distinctions; I respectfully submit that this is the basic defect in the reasoning of both the plurality and the dissenting opinions.

However, since 1946 our law has recognized that income-producing activities are consistent with “charitable pursuits” when all of the income is then returned to the charitable institution to be used to further its charitable purposes and operations. Thus, for more than a half-century now, the General Assembly has authorized an ad valorem tax exemption for charities that use their property to generate income, with restrictions to limit the extent of such property use and to ensure that the income is not diverted for private profit. The 2006 and 2007 amendments to OCGA § 48-5-41 (d) further expended this authorization, and that policy decision by the Legislature — which was based on a statewide referendum approved by the people of Georgia — should not now be improperly restricted by this Court.

1. The Law from, 1878 to 1946

For well over a century, Georgia law has exempted from ad valorem taxation the property of “institutions of purely public charity.” Ga. L. 1878-1879, pp. 32, 33, § 1. However, the December 1878 statute also required that “property so exempted be not used for the purposes of private or corporate profit or income.” Id. The statute reflected a policy judgment that tax-exempt institutions should not be allowed to compete with tax-paying businesses to any extent.

This Court’s decision in Mundy v. Van Hoose, 104 Ga. 292 (30 SE 783) (1898), illustrates the correct understanding of the non-charitable nature of income production generally as well as the applicable law during this period. Mundy involved the Georgia Female Seminary, an institution that used its property for the education of girls. See id. at 292, 301. The school was open to all girls who wished to attend, with no one turned away because of inability to pay, but it charged those who could afford to pay for tuition, board, uniforms, and entertainment. See id. at 293-294, 301. These charges constituted income from the use of the property, and even though the income was then used to pay the expenses of the school, it was no *389different in kind than the income produced by a non-charitable school or by any other seller of uniforms or musical performances. Thus, under the 1878 statute, the school did not qualify for the tax exemption. See id. at 300-301.

The Court explained:

“Property used to produce income to be expended in charity is too remote from the ultimate charitable object to be exempt. If property is allowed to be used as taxed property, it also is to be taxed. If it competes in the common business and occupations of life with the property of other owners, it must bear the tax which theirs bears. Thus, if even a synagogue or a church were rented out during the week for a storeroom or a shop, though divine service might be performed in it on Saturday or Sunday, and though the rents were all appropriated to religious or charitable uses, its exemption would be lost.”

Id. at 297-298 (quoting Trustees of the Academy of Richmond County v. Bohler, 80 Ga. 159, 164 (7 SE 633) (1887)).

2. The Law from 1946 to 2006

While highly protective of tax-paying competitors, the policy codified in the 1878 law effectively limits charities to obtaining their operating funds solely from donations and significantly limits how charitable institutions may use their property. As Mundy holds, a charity’s property would not be tax-exempt even if the charity charged those using it only if they could afford to pay and used the proceeds to help even more people who cannot pay for what the charity provides — thereby increasing the total amount of charity provided. The balance between the pro-competition policy and the pro-charity policy was shifted by the Georgia Constitution of 1945, see Ga. Const, of 1945, Art. VII, Sec. I, Par. IV, and the passage in 1946 of an amendment revising the charitable tax exemption law to track the language of the new constitutional provision. The revised law now allowed exempt charitable institutions to use their property to produce income, although still with significant restrictions.

The first set of restrictions prevented property owned by charities from being used to generate income that was diverted for private gain; these restrictions remain essentially unchanged today. See Ga. L. 1946, pp. 12,13, § 1 (a), now codified with minor revisions as OCGA § 48-5-41 (c). Thus, private property owned by charities “shall not be used for the purpose of producing private or corporate profit and income distributable to shareholders in corporations owning such property or to other owners of such property.” Id. But the text regarding income production did not stop there, as it did in the 1878 *390statute. Instead, the 1946 amendment now authorized charities to use their property to produce income, with the important limitation that “any income from such property is used exclusively for religious, educational and charitable purposes,... and for the purpose of maintaining and operating such institution.” Ga. L. 1946, p. 13, § 1 (a). This was a fundamental change, which recognized that activities producing income can qualify as a “charitable pursuit,” not because the income-producing activity is itself “charitable” (it still is not), but because the use of the resulting income to further the purposes and operations of the charity benefits the public.

In addition, to seek a tax exemption, an institution like the Nuci Phillips Memorial Foundation, Inc. must qualify as a “purely public charity.” OCGA § 48-5-41 (a) (4). This requires that the institution be devoted entirely to charitable pursuits that benefit the public, in addition to satisfying the rules regarding the use of its property. See York Rite Bodies of Freemasonry of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558, 558 (408 SE2d 699) (1991) (summarizing the test for a “purely public charity” as “[f|irst, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits”).

Beyond the restrictions that ensured that the new authorization of income-producing activity would be utilized solely to increase the funds available for the charity’s good works, the 1946 amendment limited the extent to which charitable property could be used to produce income. The tax exemption would not “apply to real estate or buildings . . . which [are] rented, leased, or otherwise used for the primary purpose of securing an income thereon.” Ga. L. 1946, p. 13, § 1 (a), codified with minor revisions as OCGA § 48-5-41 (d) until 2006 and now as OCGA § 48-5-41 (d) (1) (emphasis supplied). In sum, the 1945 Constitution and 1946 amendment changed the prior law to allow private charities to use their property to produce income that was then used exclusively for their charitable pursuits, and thereby to compete “in the common business and occupations of life with the property of other owners” who pay ad valorem taxes, Mundy, 104 Ga. at 298 — but only to a limited extent, as an incidental rather than primary purpose of the property.

In accordance with this new legal regime, this Court upheld tax exemptions for charitable institutions that used their property to produce a limited amount of income and satisfied the restrictions on how that income was then used. In the leading post-1946 case of Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 (53 SE2d 751) (1949), the charitable hospital was open to all patients but charged 31% of its patients for all of their medical care, 24% for part *391of their care, and 45% for none of their care, using all of the income generated for the hospital’s charitable purposes. See id. at 490-491. Acknowledging that the case would have been decided differently under the 1878 law and precedents like Mundy, the Court held that the hospital was entitled to a tax exemption under the 1946 statute. See id. at 491-493. Similarly, in Church of God of the Union Assembly, Inc. v. City of Dalton, 216 Ga. 659 (119 SE2d 11) (1961), we held that a restaurant located in the church building, which was used primarily to feed members of the church, visiting church personnel, and persons in need but also was open to paying customers, was tax-exempt. See id. at 660, 662.

On the other hand, under the 1946 law the tax exemption was denied where income production was clearly the primary purpose of the property — like where a medical facility required all patients to pay and only charged off as charity the bills that it was unable to collect, see Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663, 668 (124 SE2d 402) (1962), and when a medical facility provided services only when paid and could deny services to the poor and needy, see United Hospitals Service Assn. v. Fulton County, 216 Ga. 30, 32-34 (114 SE2d 524) (1960). See also Cobb County Bd. of Tax Assessors v. Marietta Educational Garden Center, Inc., 239 Ga. App. 740, 741, 745 (521 SE2d 892) (1999) (denying exemption not because the Garden Center generated income by charging membership dues and renting its facilities for social events, using the income to offset the center’s expenses, but rather because the Center provided substantial benefits, including free use of the Center, only to dues-paying member clubs).

Notably, in reaching these holdings, the Court did not focus on whether the income-producing activity was itself “charitable” or whether the property was being used “exclusively” for a charitable purpose, as the plurality and dissent would respectively require. Providing medical care for compensation is a common business rather than an inherently “charitable activity,” and charging 55% of patients at least partly for their care is not “exclusively” charitable. Likewise, selling food in a restaurant is an everyday business activity and not one directly related to the religious purposes of a church. But when these activities were conducted in the charity’s building and when all of the income was returned to the charity to further its charitable purposes, this Court permitted the tax exemption, in accordance with the rules laid down by the General Assembly.

3. The 2006 Referendum and the 2006 Amendment

In the November 2006 statewide election, the following referendum question was presented to the people of Georgia:

Shall the Act be approved which grants an exemption from *392ad valorem taxation on property owned by a charitable institution which generates income when that income is used exclusively for the operation of such charitable institution?

The question was answered “yes” by 68.5% of the voters.

This approval resulted in an amendment to OCGA § 48-5-41 (d), effective January 1, 2007. See Ga. L. 2006, p. 377, §§ 1, 2. The revised statute retained the existing OCGA § 48-5-41 (d) — the source of the “primary purpose” limitation on the use of charitable property to produce income — as subparagraph (d) (1), but with this new introductory phrase: “[e]xcept as otherwise provided in paragraph (2) of this subsection.” The new subparagraph (d) (2) — the exception to the old subsection (d) — was the following:

With respect to paragraph (4) of subsection (a) of this Code section [which provides the tax exemption for institutions of “purely public charity”], real estate or buildings which are owned by a charitable institution that is exempt from taxation under Section 501 (c) (3) of the federal Internal Revenue Code and used by such charitable institution for the charitable purposes of such charitable institution may be used for the purpose of securing income so long as such income is used exclusively for the operation of that charitable institution.

Read in its legal and historical context, it is clear that the 2006 amendment and the referendum that allowed it to be enacted were meant to expand the tax exemption for a charity’s property that is used to generate income for the charity. A referendum was not required to reduce or repeal an ad valorem tax exemption granted to institutions of purely public charity, see Ga. Const, of 1983, Art. VII, Sec. II, Par. IV, only to expand an existing exemption or create a new one, see Art. VII, Sec. II, Par. II (a) (1).

It is also clear that the only significant difference between the 2006 statute and its predecessor — and the only element of the new provision that expanded the existing tax exemption — was the deletion of the “primary” purpose qualifier present in the old subsection (d). Thus, while before the 2006 amendment real estate and buildings owned by all exempt institutions could not be “used for the primary purpose of securing an income thereon,” the amendment allowed such property of purely public charities to be “used for the purpose of securing income.” Importantly, the other restrictions on the use of charitable property to generate income — including the restrictions that prevent the income from being diverted to private *393gain — remained unchanged, see OCGA § 48-5-41 (c) and the second sentence of (d) (1); the new provision also was limited to institutions of purely public charity that are federally tax-exempt, and it did not apply to tax-exempt institutions such as burial places, religious and educational institutions, and nonprofit hospitals.

Even with these remaining restrictions, the value of the new law to some charities is apparent. For example, a building owned and used by the Salvation Army or Goodwill Industries entirely as a thrift store — selling low-cost clothes and other goods — might now qualify for the property tax exemption (assuming all other restrictions are satisfied), whereas before 2007 only a building not used “primarily” for such income-generating activity would have qualified. Similarly, a historic building owned and preserved by a purely public charity but used more than incidentally as rental space for parties could now qualify for the tax exemption (again assuming all other restrictions are satisfied, including the return of all income generated to the operation of the charitable institution).

4. The 2007 Amendment

Just a few months after the 2006 amendment took effect, the General Assembly revised subparagraph (d) (2), effective May 23, 2007, to read as follows, with the deletions indicated by strike-out and the additions indicated by underlining:

With respect to paragraph (4) of subsection (a) of this Code section [which provides the tax exemption for institutions of “purely public charity”], reed estate or a buildings which are is owned by a charitable institution that is otherwise qualified as a purely public charity and that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code and which building is used by such charitable institution exclusively for the charitable purposes of such charitable institution, and not more than 15 acres of land on which such building is located, may be used for the purpose of securing income so long as such income is used exclusively for the operation of that charitable institution.

Ga. L. 2007, p. 341, §§ 1, 2.

I agree with the plurality that the 2007 amendment, enacted shortly after the 2006 amendment took effect, clarified rather than substantially modified the statute, with one exception that does not affect this case. See Plurality Op. at 383-384. The preamble to the 2007 amendment expresses that its purpose was “to clarify an ad valorem tax exemption for certain charitable institutions,” Ga. L. 2007, p. 341 (emphasis supplied), and the 2007 amendment obviously did not have the effect of reverting the law to its pre-2006 state, as *394the dissent would have it, since the 2007 amendment made minor revisions rather than simply repealing the statutory text added by the 2006 amendment. See Plurality Op. at 384.

The first two changes were plainly clarifications. By its express cross-reference to subsection (a) (4), the opening phrase of subparagraph (d) (2) limits what follows to “institutions of purely public charity”; the 2007 amendment simply confirms that the existing qualifications for such institutions are unchanged. One of those qualifications was that the property at issue must be “exclusively devoted to [the institution’s] charitable pursuits,” York Rite, 261 Ga. at 558; the 2007 amendment clarifies that this restriction also has not changed.

The only substantial change made by the 2007 amendment was to limit, — to the building owned by the charity and not more than 15 acres on which the building sits — the extent of property that may be used primarily to generate income. The reason for this limitation is not apparent from the statute, but its effect is to prevent a charity from receiving the tax exemption if it owns a large amount of income-producing land. An amicus brief notes that between passage of the 2006 amendment and the 2007 amendment, a private timber company had donated 67,000 acres of timberland to its charitable foundation, which supports animal rights; the foundation then applied for about $700,000 in property tax exemptions in 18 counties. That, the Legislature may have decided, tips the balance too far.

5. The Dissenting Opinion

In my view, the dissent errs in interpreting the phrase in the current subparagraph (d) (2), “which building is used exclusively for the charitable purposes of such charitable institution,” as a limit on the type of income-generating activity in which a purely public charity may engage. The dissent says that “the receipt of donations at [Nuci’s] coffee bar, the sale of limited music supplies, and the rental of rehearsal space” may be “consistent with its [charitable] purpose of providing a safe haven for musicians and others to gather,” but that “providing a venue for private birthday parties and wedding receptions cannot be viewed as advancing the Foundation’s mission.” Dissenting Op. at 401-402. The statutory text of OCGA § 48-5-41 and its predecessors, however, has never required a connection between the type of income-generating activity at issue and the charity’s purpose, nor have this Court’s previous cases relied on judicial views of whether a particular income-producing activity “advanc[es] the [charity’s] mission.”

Instead, as recognized by this Court more than a century ago, income-generating activity is not itself charitable; it is “too remote from the ultimate charitable object,” Mundy, 104 Ga. at 297. Indeed, selling music supplies and renting rehearsal space is income-*395generating activity commonly engaged in by property-tax-paying businesses. As recognized by this Court more than a half-century ago, however, when a charity uses its property to produce income that is then used exclusively for the charitable purposes of the charity, see OCGA § 48-5-41 (c) and (d), that income production is consistent with the charity’s purposes, without examining the source of the income. See Elder, 205 Ga. at 492-493; Church of God, 216 Ga. at 662.

The General Assembly has put significant restrictions on such income production for other reasons — to limit unfair competition with tax-paying businesses and to ensure that income generated by charities is not diverted for private gain — but it has not restricted the type of income-producing activity in which the charity may engage. Nor has this Court — until today. Between 1946 and 2006, as I understand the law, a purely public charity might have a small gift shop or cafeteria in its building and still qualify for a tax exemption, even if the items sold had nothing to do with the charity’s mission, so long as the income was all used for the charity’s operations and the income-generating activity was not the primary purpose of the property. Only the last restriction was affected by the 2006 and 2007 amendments, and it was meant to be loosened. The dissent would turn the amendments on their head and make it more difficult for a charity to obtain a tax exemption than it was even under the 1946 law.

6. The Plurality Opinion

In my view, the plurality opinion reaches the correct result in this case, but its analysis of OCGA § 48-5-41 and our precedent is also flawed. The most conspicuous flaw is the plurality’s contention that, to qualify for a tax exemption, a purely public charity’s property still may not be used for the “primary purpose” of raising income. See Plurality Op. at 385-386. This position is simply contrary to the text of the 2006 amendment, which was unchanged in relevant part by the 2007 amendment. The phrase added to the beginning of subparagraph (d) (1) in 2006 expressly excepts from the “primary purpose” test of that provision — “fejxcept as otherwise provided in paragraph (2) of this subsection” — the property of a purely private charity used to secure income as provided in subparagraph (d) (2). Requiring a charity to meet all the requirements of both (d) (1) and (d) (2) renders effectively meaningless that introductory phrase — and the revision of the charitable tax exemption endorsed by Georgia voters in the 2006 referendum and the General Assembly in the 2006 and 2007 statutory amendments. The plurality fails to explain how, when an express exception to a requirement is triggered, the requirement nevertheless applies.

In an attempt to read some other meaning into subparagraph (d) *396(2), the plurality contends that it permits charities to exempt property that is used (as an “incidental” purpose) to produce income from “non-charitable activities,” as opposed to “charitable activities,” asserting that only the latter were permitted under the 1946 amendment. See Plurality Op. at 381, 385, 386. This approach resembles the dissent’s focus on the nature of the income-producing activity, although the plurality would allow a charity to use its property for “non-charitable” activities so long as that use is not “primary.” See id.

In this respect, the dichotomy offered by the plurality suffers from the same problems as the dissent’s effort to determine which income-producing activities are “consistent” with the charity’s purpose. The distinction has no foundation in the statutory text. OCGA § 48-5-41 (d) (2) nowhere refers to “charitable activities” or “non-charitable activities” in addressing the generation of income. Instead, the statute expressly provides, without limitation relating to .the type of activity that produces income, that institutions of purely public charity may use their property “for the purpose of securing income so long as such income is used exclusively for the operation of that charity.” Id. Virtually the same language existed in OCGA § 48-5-41 (c) (describing property “used for the purpose of producing . . . income”) and (d) (describing property “used for the primary purpose of securing an income”) before the recent amendments, and that language was unchanged by those amendments. Indeed, if the plurality were correct (which it is not) in claiming that only income-producing “charitable activities” were permitted between 1946 and 2006, then the use of the same language in the new subparagraph (d) (2) would be expected to mean the same thing. See Smith v. Employers’ Fire Ins. Co., 255 Ga. 596, 597 (340 SE2d 606) (1986) (holding that where the General Assembly enacts a statute using language that this Court has previously construed, the newly adopted statute will normally be construed to have same meaning).

In discussing its “charitable activities” versus “non-charitable activities” distinction, the plurality opinion cites several cases, but none of them use that terminology nor rely on that reasoning. Indeed, Church of God appears to refute the plurality’s approach as well as the dissent’s, as that case upheld, under the pre-2006 law, a tax exemption for a church building used in part as a restaurant selling food to members of the public, see 216 Ga. at 662 — but selling food is no more obviously a “charitable activity” than it is an activity obviously related to a church’s purposes. Under our precedent and the tax exemption statute since 1946, however, using the charity’s property to sell food and returning all the income produced to the charity to further its charitable purposes is “exclusively devot[ing]” that property to the institution’s charitable pursuits. *397York Rite, 261 Ga. at 558.

Like the dissent’s approach, the plurality’s approach is also amorphous, leaving it to judges after the fact to decide whether, in their opinion, the uses to which a charity devotes its property are “charitable” enough (or, in the dissent’s view, “consistent” enough with the charity’s mission). For example, the plurality describes the Foundation’s “rental of property” as a “non-charitable” activity, Plurality Op. at 385, 386, but it is unclear why the Foundation’s sale of music supplies (which the plurality apparently would deem a “charitable” activity) is any more “charitable.” Instead of these uncertain distinctions, I believe the General Assembly has drawn a clearer line to guide both charities and taxing authorities.

Finally, the plurality notes the Board of Tax Assessor’s argument that “allowing an institution that otherwise qualifies as a purely public charity to raise income from non-charitable activities, including rental of property, would lead to a greatly expanded tax exemption and would be vulnerable to abuse by commercial developers wishing to evade property tax.” Plurality Op. at 385. The plurality responds that this policy concern is avoided because “all previous requirements for qualifying as a purely public charity under OCGA § 48-5-41 (a) (4), still apply, including OCGA § 48-5-41 (d) (1).” Plurality Op. at 385 (emphasis supplied). I believe the policy concern about commercial exploitation of the recent amendments is actually avoided because of the unchanged restrictions in the statute that have long prevented charities from diverting income to anything other than their purposes and operations, including distributing income to shareholders or other owners or former owners of the property, OCGA § 48-5-41 (c), (d) (1), (d) (2).

Contrary to the plurality’s claim, however, the restrictions do not include the “primary purpose” requirement of OCGA § 48-5-41 (d) (1), which expressly excepts property to which (d) (2) applies. As discussed throughout this opinion, there is certainly a policy concern about allowing charities to produce income, free of property taxes, in competition with tax-paying businesses — but there is also a policy interest in allowing charities to produce income that will be used to further their benevolent purposes, thereby increasing the amount of charity in this state. Where to draw the line between these conflicting policies is a decision for the General Assembly and the people of Georgia. In 1878, the line was drawn strictly to preclude such competition; in 1946, the line was moved to allow income production but only as an incidental use of charitable property; in the recent referendum and amendments, the line was moved further — but only for buildings and limited acreage owned by purely private charities — to allow full use of the charity’s property to secure income. It is not this Court’s place to alter that policy balance.

*3987. Application to the Foundation Property at Issue

With the exception of its determination that the Nuci Phillips Foundation engages in “non-charitable” and “charitable” income-producing activities only incidentally, which is irrelevant in my view, I believe the plurality opinion correctly applies the law to the Foundation. See Plurality Op. at 386-387. The Nuci’s Space property qualifies as an institution of “purely public charity” under OCGA § 48-5-41 (a) (4) and York Rite. The property owning Foundation is devoted entirely to the charitable pursuit of providing a safe gathering place for musicians and young people and aiding those with mental illnesses, including paying for mental health care. The Foundation’s charitable pursuits are for the benefit of the public, available to all who seek help there, and particularly for “ ‘the classes for whose relief [the property] was intended.’ ” Plurality Op. at 386 (citation omitted).

Finally, the Foundation’s “use of the property [is] exclusively devoted to those charitable pursuits.” York Rite, 261 Ga. at 558. To be sure, the building is used to generate income in various ways, including the sale of musical supplies and the rental of rehearsal space and space for receptions and parties. But as the plurality recognizes, those activities “have the sole purpose of raising funds to be used for the organization’s charitable services.” Plurality Op. at 386. Thus, in accordance with the statute, the income is “used exclusively for the operation of [the] charitable institution,” OCGA § 48-5-41 (d) (2), and none of it is diverted to shareholders or for other private gain, see OCGA § 48-5-41 (c). In my view, those activities are therefore authorized and do not preclude the property’s tax exemption — and they would be even if the property were used for the primary purpose of securing such income. Consistent with the legislative policy judgments expressed in the 2006 and 2007 amendments, the Foundation’s securing of such income, while it may create somewhat unfair competition for tax-paying Athens businesses providing similar goods and rental space, provides the Foundation with greater resources to advance its laudable charitable mission.

8. The Implication of This Case

It is important to recognize that the plurality opinion is narrower than my opinion, because it would impose an additional, “primary” purpose restriction on “non-charitable” and “charitable” income-producing activities engaged in by purely public charities seeking the ad valorem tax exemption under OCGA § 48-5-41. In other words, as I did in this case, any time the Justices in the plurality upheld a charity’s tax exemption, I would as well, since I believe that the additional requirement does not exist. Accordingly, unless the Court changes course in a future case, the plurality opinion will be our effective precedent, governing the outcome of *399future cases raising this issue. This is unfortunate, in my view, as it undermines the 2006 referendum and the 2006 and 2007 statutory amendments. I note, however, that the Court’s decision is wholly one of statutory interpretation, so that the General Assembly may again amend OCGA § 48-5-41 (d) (2) to confirm, with clearer language, that it means what I think it already means — that a purely public charity may use its buildings and up to 15 surrounding acres to produce income that is used entirely for the operation of the charity.

For these reasons, I respectfully concur only in the judgment of the Court.

I am authorized to state that Justice Melton joins in this special concurrence.