*1 prove the State property, of stolen aided in the concealment part of the some act or conduct beyond doubt a reasonable property to his converting the assists the thief defendant diffi- more discovery the owner or which renders own use Foster, State v. cult.” ev produced sufficient the State recоrd indicates beyond reasonable doubt jury convince the at trial
idence First, defendant carried concealment had occurred. that effective Second, defendant’s statements paper bag. items a brown trading objects for food. contemplating he indicated that reasonably that defendant's concluded well jury could have objects owner discovery religious actions rendered in Foster test set forth satisfies the more difficult. Such conduct must stand. and the verdict
Affirmed. Vermont, Inc. v. Parenthood of
Planned A.2d 545] [503 83-037 No. JJ., Hill, Underwood, Gibson, Peck and Present: (Ret.), Specially Assigned Daley, J.
Opinion Filed November *2 Dinse, Spencer Knapp Erdmann, Burlington, R. Allen & for Plaintiff-Appellee. Whittlesey, McNeil,
Richard C. City Attorney, Assistant Sorrell, Inc., Murray & and Gretchen S. Bailey, Assistant City Attorney, Burlington, Defendant-Appellant. for
Underwood, J. (taxpayer) Planned Parenthood of Vermont filed an in Superior action seeking Chittenden a declara- tory ruling exempt, that is pursuant real estate to 32 V.S.A. § 3802(4), from City taxation Burlington (City). The trial first, court taxpayer’s property determined that exempt was tax 3802(4), second, under 32 V.S.A. excep- that § status, exempt tion to tax applicable to health care facilities 3832(7), under 32 V.S.A. apply taxpayer’s did not prop- § erty. City appealed The declaratory ruling. affirm. We
Taxpayer three-story building the owner of a 23 located at City Mansfield in Burlington. City Street In noti- taxpayer fied the of its intent property to assess on taxes tax- payer’s personаl real property. City The subsequently billed taxpayer in $11,413.92 the amount of for year ending the tax $12,064.00 June year for the tax ending June 1982, which paid assessments taxpayer protest. under appeal, this parties now taxpayer’s prop- erty comes exemption provisions within the of 32 V.S.A. § 3802(4).1 remaining Court, The therefore, issue before this taxpayer’s whether property is excepted exempt from that status 3832(7).2 virtue 32 V.S.A. That statute would § latter act to except preclude or taxpayer’s property qualifying for the from ex- 1 provides part: Title 32 V.S.A. § following property exempt shall be from taxation: granted, sequestered public, pi- Real and used for ous or charitable uses .... provides part: Title 32 V.S.A. § property is used if the provisions of V.S.A. emption purposes,” unless such “primarily . . for health duly approved the voters of the specifically were for purpose. Thus threshold meeting for that warned being made of primary use court was determine and 1982. years 1981 property during the tax taxpayer’s issue and findings of fact on this made extensive The trial court exempt taxation property was taxpayer’s concluded 3802(4). was It determined 32 V.S.A. under was for health public purpose primary use and its used for a status, Therefore, under exempt property’s tax purposes. exception set forth within the did not fall pri- 3832(7). found that сourt also trial specifically family planning, for for mary use contraceptive The trial court then went provision devices. prevention of con- contraceptives on to remark that per- health.3 The ception safeguard one’s and not to enhance abortions, taxpayer’s property, forming of vаsectomies taxpayer’s pri- by the incidental found *3 purpose family planning provision of birth con- mary of and recently trol devices. This Court stated: who, challenges party appeal, findings A and con- clusions of a court a difficult burden to overcome. below has to the great This is because we accord deference unless, findings set of the court and will not aside court’s pre- taking light favorable to the the evidence most modifying vailing party the effects of evi- excluding and 52(a). dence, clearly Even they are erroneous. V.R.C.P. when seques- granted, of real and taxation public, pious or shall not tered used for charitable uses be construеd as exempting: (7) personal property organization when the Real and of purposes, primarily for unless the town or mu- used health or recreational special nicipality regular so in which the located votes at meeting duly warned therefor. law, court, of the mere The trial in its conclusions could not “concludе that provision contraceptives purpose. of of a ‘health’ Health is an and itself [was] but, contraception, implies, aspect as word most of safe and effective contra prevent contraception safeguard ceptives and not to enhance or one’s used health.” contrary, findings there is substаntial evidence by supported must stand credible evidence. Clark,
Vieweger v. (citations omitted). mind, With this standard in we turn findings of the trial court. of determining trial court addressed the threshold First, primary taxpayer’s property ways. use of in two it con- taxpayer’s percentage space prop-
sidered floor the total erty purрoses. which used court for various The trial found floor, Burlington that the first which housed clinic, medical, provision surgical, diagnostic was used for the therapeutic services.
Second, proportion the trial court considered total client taxpayer’s property visits to which were allocated to the various providеd taxpayer services at its site. It found (no client visits involved abortions or vasectomies 4.1% figure sterilizations), given for female involved 6.0% colposcopy purpose diagnosis; of cervical cancer purposes. both of these uses come within the of health The trial court found that client visits were related to an 0.9% infеrtility program. Finally, court found that of cli- 95% receiving information, ent visits were related counseling devices to birth Although related control.4 found client visits related to birth control activities include physical examination diagnosis, physician super- that a prescription contraceptive vise and pills, direct the of all oral diaphragms intrauterine devices and are fitted medical personnel, did finding concerning it not make a percentage client visits related to birth control utilized medical services.
Under either of the above-described methods utilized primary taxpayer’s property, trial court to determine the use of if, contends, is clear pur- the term “health . . . *4 poses,” as used 32 V.S.A. includes all services related family planning, primarily then the used is purposes, statutory exception for health tax-exempt to its sta- tus, pursuant to 32 applicable, V.S.A. is and the trial court’s decision must be reversed. We therefore now turn to the 4 percentages The cited herein tоtal more than because client visits 100% single purpose. for more a than purposes” used in statutory term . . meaning of the “health 3832(7). recently This has reiterated: primary interpreting meaning of a method through “plain meaning is rule”: “The most ele- statute statutory plain is mean- mental rule of construction ambiguity does of the statute contrоls. If confusion appear, the statute is not construed but rather then express enforced in with its accordance terms.” Laboratories, 516, Cavanaugh 529, Abbott Vt. A.2d State, Vt. A.2d Heisse (quoting (1983)). 444, 445
Taxpayer meaning plain of the word contends to a principally “health” as in the statute condition used refers being injury. approach, free disеase or Under this activities pregnancy prevention related to the be considered primarily preventing they health activities as are not directed City, however, curing physical a injury. disease or con incorporates tends that word “health” as used the statute health, i.e., pre all activities related to the “maintenance of threatening body, vention of sound disease and conditions mind, spirit.” City We cannot with the that a definition construing given of “health” should be such a broad 3832(7). 32 V.S.A. § required language
Such a
is not
broad definition
Furthermore,
suggested
is so
statute.
definition
virtually any activity
as to
individual
broad
include
an
alia,
benefit,
might
including,
her
inter
undertake for his or
own
рursuits
(spiri-
(physical well-being),
religious
athletic
activities
(emotional
well-being)
well-being). Such
tual
and social functions
incorporation
expansive
virtu-
definition could lead to the
any public
ally
activity
scope
within
of health-related
activi-
3832(7).
ties under 32
Such a result would be absurd and
irrational,
accept
therefore decline
definition
we
Heisse,
supra,
Judgment affirmed.
Peck, J., dissenting. I disagree with the result reached majority accordingly I compelled dissenting fеel to file this opinion explaining my reasons. provisions declines to review the
3802(4), which, opinion points out, exempts as the from taxation granted, sequestered public, “Real and or used for uses,” pious grounds parties agreed charitable (the appeal on reason for a concession the defendant es- me) 3802(4) capes therefore, applicable, without more, subject property exemption. is entitled to an my judgment,
In provisions statutory subdivision, of this if addressed, dispositive would be of this case favor of the de- large fendant. group Because interests of a of individual tax- payers, distinguished from the considered as entity, legal being аdversely by today’s result, affected I be- lieve the Court should application have considered the of § sponte. The failure to do so frustrates intent in Brattleboro as this Court construed that intent Brattleboro, Inc. Town 402, 138 Vt. (1980), A.2d 152 justice and thus frustrates under the statute. As must, necessarily increases, instance a tax greater degree, or lessеr oppressive continually increas- imposed tax burden municipal owners, businesses, home great small, property. and others who own real
Ordinarily,
I
agree
this Court should not consider
an issue
parties,
which is waived
though
both
even
it was
below, particularly
raised
people,
when the interests of the
litigants,
individuals,
than the
adversely
сonsidered as
are not
af-
that,
instances,
fected. would
also
in rare
the law itself
may preclude the
effecting complete justice.
courts from
See
Roy’s Orthopedic,
Lavigne,
Inc. v.
324,
145 Vt.
fare of or a substantial to direct . . . discretion volved authorized welfare, rather interest of the general than the attention to ” Cain, State Vt. parties immediate cause.’ Appeal and Er- Am. (quoting Jur. 2d 36). ror legal or the defendant’s executive fact that construction, adversely made an error in officials *6 they represent, irreversibly binding on is not so the affects those can, remedy provided. in that no If this Court cоurts can id., below, case, proper were not consider issues that even raised question am a review of not aware of obstacle to the § in in people To do so been interests of this case. would have the already imposed upon who them. In share the onerous tax burden view, my responsibility the has failed ultimate in refusing do to consider the public case. interest instant they if were
The comments above would not be warranted no judicial more than an abstract duties. That not discussion here, the for not should the have considered case plaintiff qualified for an sponte the of whether ex- emption under 32 V.S.A. but result would the have procеedings been such a clear reversal that a remand for further justified; in would not be we could have entered this sense, has, itself, legal Court for the defendant. In a as this Court statute, plaintiff’s property is controlling construed the not pious public, “used for uses.” Therefore it is not charitable en- exemption. titled to an
It process сonstruing granting is fundamental statutes here, exemptions “existing from taxation that circumstances” — recognized the oppressive increasing tax public burden —are legisla- determining the courts as an aid in the intent of the “application existing ture. circumstances statute] [of Railroad, Notte Rutland 112 Vt. be considered.” v. (1942). applied рro- premise, 23 A.2d This to § support my position vides here under the additional rule that strictly statutory exemptions in from taxation are to be construed against claiming taxing authority, party favor of the exemption. Broughton Town is, exemption; against Charlotte, (1976). 270, 272, A.2d Doubts 134 Vt. Id. against exemption. to be resolved prior applied determining in сases in use of The test our purpose pro- public real is for a is whether the service service which the munici- vided the owner of is a words, pality upon called furnish. In would otherwise be (in case) plaintiff this a burden of the whether “assume[s] provide any municipality municipality to service which either the governmental essential hаs determined to be an Rutland, Gymnastics City . .” Ski-Lari function . 1363, 1364 require any plaintiff It is too clear to extensive discussion that satisfy Nevertheless, key does this test. illustrative point is Brattleboro Inc. v. Brat- Town of tleboro, in supra, which this affirmed trial court’s find- provided by corporation service plaintiff phrase case did fall “public pur- within the posе,” though even public the benefit to the as a of that result urgent service was more pro- than the immediate plaintiff vided in the instant case. The service furnished in day the Brattleboro working par- case was care for children crying public ents. There is a today need for such facilities cases parents work, where both equаlly so instances single parent where a is involved.
I question do not family planning that the and related services provided plaintiff by the conformity here are out in carried with highest the applicable standards to such services are and consid- by Nevertheless, ered desirable those who use them. the needs of working parents fоr form some of extra-familial child care are generally essential to continuing stability gen- the economic unit; family professional eral of the family welfare planning assis- tance, hand, on the other present equivalent public does not an urgency immediacy qua in the same sine non sense. case, the city required provide defendant is not to fam- ily planning to offer programs through any agents such of its facilities. municipality has assumed of no burden “[P]laintiff legislature which govern- has be an determined to essential Gymnastics, mental supra, function.” Ski-Lan at 465 A.2d at Inc., 1365 (citing Development, Brattleboro supra, 155). 416 A.2d at
Finally, in Brattleboro Child we cautioned against intеrmeddling by legislative courts in function: “To impose theory do so judicially of socioeconomics not A.2d at How- legislature.” Id. at 155. sanctioned ever, implicit majority decision. too first, discussion, feel, I since tax
Summarizing above individuals, as City Burlington, paying owners of the citizens, support required the ex- all its other are as well as provide (including government services which local tensive schools, sewer, many fire, among others), the police, water “public use” We cognizance taken issue. Court should have conse- people a whole to suffer adverse should not force the as by offi- quences resulting from erroneous decisions tax losses sponte. power in our to review the issue when it is cials Secondly, provided by plaintiff “public” has of 32 as that statute within past. The un- been construed our own decisions the recent protected it ignoring mistake should not be fortunate “waiver” people is so this in the welfare of the a case which technicality, clearly By majority merе relying involved. on a plaintiff, sanctions benefit which entitled law, expense public large. result- at the of the This is under in- contrary to the intent oriented Burlington. disagree sec- I with the court and the also However, issue is raised 32 V.S.A. 3832. it does ond under necessary by an extensive rec- prolong not seem this discussion my egregious part itation of reasons. most fault public use. On lies refusal to the issue review I reverse and enter alone would defendant. Daley joins me in am authorized to state Justice with
this dissent.