SUPERVISOR OF ASSESSMENTS OF BALTIMORE COUNTY v. Williаm Cardinal KEELER, Archbishop of Baltimore.
No. 85, Sept. Term, 1999.
Court of Appeals of Maryland.
Jan. 4, 2001.
764 A.2d 821
Saul E. Gilstein (David W. Kinkopf, Gallagher, Evelius & Jones, LLP, on brief), Baltimore, for appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,* RAKER, WILNER, CATHELL and HARRELL, JJ.
BELL, Chief Judge.
The issue this case presents is whether 16.5 acres of a 27-acre parcel1 should be included within the exemption for actual and exclusive religious worship, prescribed by
In 1990, William Cardinal Keeler, Archbishop of Baltimore, the appellee, entered into an option to purchase the subject property for the Roman Catholic Church. The Church intended to construct a church on the property. Because the property was zoned R.C. 2, agricultural, which permitted a church only as a special exception, the purchase was made contingent upon the necessary zoning approvals being obtained. In 1992, the County Board of Appeals for Baltimore County (“CBA“), having taken testimony from Father Donellan, the Church Pastor, George Gavrelis, a land planner and civil engineer, Paul Solomon, a Department of Environmental Protection and Resource Management representative, Wes Guckert, a traffic engineer, Adam Gross, an architect, and members of the community and of the parish, determined that the requirements of
The CBA concluded that the property should be viewed “as a package,” observing, “[w]e find the church size and scale to be appropriate on this tract of land and not out of character in relation to the surrounding community. We further find its architecturаl design to be in keeping with the site and surrounding area.” It limited construction on the property, however, to a 7.5 acre development envelope except that “the construction of driveways, road improvement, storm water management, utilities or other such improvements” could take place outside of the development envelope. Other conditions were placed, by the CBA, on the grant of the special exception, including:
“(2) Occupancy of the subject caretaker‘s residence shall be limited to a church employee (s) and the employee (s) family members.
“(3) The Petitioner shall provide a landscape plan to the Office of Current Planning for approval by the Baltimore County Landscape Planner and the deputy Director of Planning and Zoning Department. Said landscape plan shall then be submitted to the Zoning Commissioner for final approval. The approval landscape plan shall become a permanent part of the record and file this matter.
* * * *
* Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
“(5) The subject church shall have a maximum seating capacity for 650 individuals.
...
“(6) The Petitioner shall enter into legally enforceable document prior to issuance of building permits which shall restrict the areas north and south of the developed envelope as shown on Petitioner‘s Exhibit 1 to open space or agricultural use in perpetuity, unless the property or any portion of the property is rezoned to another zoning classification other than R.C. 2 [agricultural] ... or the Master Plan for Baltimore County designates the property or any portion of the property for use other than agricultural preservation or the Director of the Department of Environmental Protection and Resource Management ... finds, in writing, that the property or any portion of the property is no longer viable for agricultural use. The restriction shall take effect upon the commencement of construction of thе proposed church. This restriction shall not preclude the construction of driveways, road improvements, storm water management, utilities or other such similar improvements within the restricted area.
“(7) Petitioner shall enter into a legally enforceable agreement which shall prohibit for a period of sixty (60) years from the date of this Order the construction of any buildings outside the building envelope so designated on Petitioner‘s Exhibit 1, so long as the subject site retains its R.C. zoning ...”5
The apрellee appealed the decision of the Supervisor of Assessments of Baltimore County to the Property Tax Assessment Appeals Board (“PTAAB“) for Baltimore County. Agreeing with the appellee, that Board extended the exemption to the 16.5 acres in dispute. That decision prompted the appellant‘s appeal to the Maryland Tax Court.
The Maryland Tax Court affirmed the decision of the PTAAB.7 In upholding the exemption, it indicated that its
In addition, the Tax Court was influenced by the testimony of Father Thomas Donellan, who stated that he viewed the entire site as relevant to supporting the religious work of the church, and that the parcel, including the open space, enhanced both the worship of the congregation and the beauty of the building. Characterizing the church building and the land on which it is built as “one fabric,” Father Donellan concluded, the church would not be the same without the surrounding lands.
The appellant sought judicial review in the Circuit Court for Baltimore County. That court affirmed, holding that there was sufficient evidence in the record to uphold the Tax Court‘s decision that the land was used for religious purposes only. The Circuit Court, noting that the disputed area was available for anyone to walk, pray or contemplate the services, also expressed the view that
We issued the writ of certiorari on our own motion to consider this important issue. Now we affirm the judgment of the Circuit Court.
The decision we review is that of the Maryland Tax Court, an administrative agency, see Ch. 757 of the Acts of 1959; Read v. Supervisor of Assessments of Anne Arundel County, 354 Md. 383, 391, 731 A.2d 868, 872 (1999); Prince George‘s County v. Brown, 334 Md. 650, 658 n. 1, 640 A.2d 1142, 1146 n. 1 (1994); Shipp v. Bevard, 291 Md. 590, 592, 435 A.2d 1114, 1115 (1981); Shell Oil Co. v. Supervisor of Assessments of Prince George‘s County, 276 Md. 36, 38, 343 A.2d 521, 522 (1975); County Executive for Montgomery County v. Supervisor of Assessments of Montgomery County, 275 Md. 392, 393, 340 A.2d 246, 247 (1975); Fairchild Hiller v. Supervisor, 267 Md. 519, 521, 298 A.2d 148, 149 (1973). Thus, pursuant to
“Under this standard, a reviewing court is under no statutory constraints in reversing a Tax Court order which is premised solely upon an erroneous conclusion of law. See, e.g., Supervisor of Assess. v. Carroll, 298 Md. 311, 469 A.2d 858 (1984); Comptroller v. Mandel Re-Election Com., 280 Md. 575, 374 A.2d 1130 (1977). On the other hand, where the Tax Court‘s decision is based on a factual determination, and there is no error of law, the reviewing court may not reverse the Tax Court‘s order if substantial evidence of record supports the agency‘s decision.”
Ramsay, Scarlett & Co. v. Comptroller of the Treasury, 302 Md. 825, 834, 490 A.2d 1296, 1301 (1985).
Accordingly, in this case, we are limited to determining thе legality of the decision of the Tax Court and whether there was “substantial evidence” in the record to support its findings and conclusions. Comptroller of the Treasury v. Disclosure, Inc., 340 Md. 675, 683, 667 A.2d 910, 914 (1995); State Dep‘t of Assessments and Taxation v. Consumer Programs, 331 Md. 68, 73, 626 A.2d 360, 362 (1993); see also CBS, Inc. v. Comptroller of the Treasury, 319 Md. 687, 697-98, 575 A.2d 324, 329 (1990); Supervisor of Assessments of Montgomery County v. Group Health Ass‘n, Inc., 308 Md. 151, 156, 517 A.2d 1076, 1078 (1986); St. Leonard Shores Joint Venture v. Supervisor, 307 Md. 441, 446, 514 A.2d 1215, 1218 (1986); Ramsay, 302 Md. at 838-39. In short, a reviewing court is authorized to reverse a decision of the Tax Court, if the agency “erroneously determines or erroneously applies the law.” State Department of Assessments and Taxation v. Consumer Programs, 331 Md. 68, 72, 626 A.2d 360, 362 (citing Roach v. Comptroller, 327 Md. 438, 610 A.2d 754 (1992)); see also Friends School v. Supervisor, 314 Md. 194, 199, 550 A.2d 657, 659 (1988); Supervisor of Assessments v. Asbury Methodist Home, Inc., 313 Md. 614, 626-628, 547 A.2d 190, 196 (1988); Supervisor v. Chase Assoc., 306 Md. 568, 574, 510 A.2d 568, 571 (1986); Ramsay, 302 Md. at 834; Macke Co. v. Comptroller, 302 Md. 18, 22, 485 A.2d 254, 257 (1984).
Where the substantial evidence test applies, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State Admin‘r Bd. of Election Laws v. Billhimer, 314 Md. 46, 58, 548 A.2d 819, 825 (1988), cert. denied, 490 U.S. 1007 (1989); Supervisor v. Group Health Ass‘n, 308 Md. 151, 159, 517 A.2d 1076, 1080 (1986); Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512-13, 390 A.2d 1119, 1123 (1978); Snowden v. Mayor & City Council of Baltimore, 224 Md. 443, 448, 168 A.2d 390, 392 (1961). Stated otherwise, the scope of review “is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Bulluck, 283 Md. at 512.
“[T]he test is a deferential one, requiring ‘restrained and disciplined judicial judgment so as not to interfere with the agency‘s factual conclusions,’ Asbury Methodist, supra, 313 Md. at 625; Insurance Comm‘r v. Nat‘l Bureau, 248 Md. 292, 309-10, 236 A.2d 282, 289 (1967). This deference applies not only to agency factfinding, but to
Billhimer, 314 Md. at 58-59. Moreover, the agency‘s decision is viewed in a light most favorable to the agency, since “decisions of administrative agencies are prima facie correct,” Bulluck, 283 Md. at 513, and “carry with them the presumption of validity.” Bulluck; Dickinson-Tidewater, Inc. v. Supervisor, 273 Md. 245, 256, 329 A.2d 18, 25 (1974); Heaps v. Cobb, 185 Md. 372, 378-79, 45 A.2d 73, 76 (1945).
Further, it is well settled that tax-exemption statutes are to be strictly construed in favor of the taxing authority. In Chesapeake and Potomac Telephone Company of Maryland v. Comptroller of the Treasury, Retail Sales Tax Division, 317 Md. 3, 11, 561 A.2d 1034, 1038 (1989) (quoting Xerox Corp. v. Comptroller, 290 Md. 126, 137, 428 A.2d 1208, 1214-15 (1981)), this Court stated the rule thusly:
“It is fundamental that statutory tax exemptions are strictly construed in favor of the taxing authority and if any real doubt exists as to the propriety of an exemption that doubt must be resolved in favor of the State. In other words, ‘to doubt an exemption is to deny it‘.... [T]he State‘s taxing prerogative is never presumed to be relinquished and the abandonment of this power must be proved by the party asserting the exemption.”
See also, Supervisor of Assessments v. Bosley, 293 Md. 208, 212, 443 A.2d 91, 93-94 (1982); Hearst Corp. v. State Dept. of Assessments & Taxation, 269 Md. 625, 643, 308 A.2d 679, 688-89 (1973); Perdue v. State Dep‘t of Assessments Taxation, 264 Md. 228, 233, 286 A.2d 165, 167-68 (1972); Maryland State Fair v. Supervisor, 225 Md. 574, 588, 172 A.2d 132, 139 (1961); State Tax Comm‘n v. Whitehall, 214 Md. 316, 320, 135 A.2d 298, 300 (1957); State Tax Comm‘n v. Standard Oil Co., 181 Md. 637, 640, 31 A.2d 621, 622 (1943). On the other hand,
“[A] strict construction does not preclude a fair one, Maryland State Fair v. Supervisor, 225 Md. 574, 588, 172 A.2d 132, 139 (1961). Rather it still contemplates a construction that effectuates the legislative intent and objectives; ‘it does not require that an unusual or unreasonable meaning be given to the words used in an exemption statute.’ Id.; Standard Oil Co., 181 Md. at 640; Whitehall, 214 Md. at 320. In other words, the rule of strict construction of tax exemptions does not call for strained or unreasonable construction to the extent of being аdverse to the real legislative intention, for the judicial interpretation must always be in accordance with the actual meaning of the lawmaking power.”
(citation omitted) State Dep‘t of Assessments & Taxation v. Maryland-National Capital Park and Planning Comm‘n, 348 Md. 2, 17, 702 A.2d 690, 698 (1997). See Disclosure, Inc., 340 Md. at 683.
II
a.
The appellant‘s primary argument is that, while the 16.5 acres of open space may be necessary for the exempt use, i.e. supports it in some necessary way, because the requirement that they be kept as open space is a non-use, necessarily serving as a demarcation between the 16.5 acres and the 7.5 acre development envelope, they are not actually and exclusively used for the exempt purpose. The appellant cites, by way of contrast, Friends School v. Supervisor of Assessments of Baltimore City, 314 Md. 194, 550 A.2d 657 (1988), in which this Court extended the educational exemption to the superintendent‘s residence. That case was decided under
“[p]roperty owned by ... any nonprofit ... educational institutions or organizations ... when any of such property ... is actually used exclusively for and necessary for ... educational purposes (including athletic programs and activitiеs of an educational institution) in the promotion of the general public welfare of the people of the State.”
(Emphasis added).
Acknowledging that “the zoning order and the covenants restricted the buildings to the development envelope and preserved open space on a majority of the property,” appellant finds significance in the fact that no development would, or could, occur outside the development envelope, asserting, in particular
“there was absolutely no evidence that any activity occurred on the 16.5 acres outside the development envelope, much less public religious worship. Rather, that property functioned only as an open space buffer. The restrictions imposed by the zoning order did not change the criteria for this exemption nor did it convert mandated non-development into active public worship.”
The appellant relies on Supervisor of Assessments of Baltimore County v. Trustees of Bosley Methodist Church Graveyard, 293 Md. 208, 219-220, 443 A.2d 91, 96 (1982), in which this Court held that
b.
The appellee sees the issue and the appropriate result quite differently. It argues that church property that has, and, indeed, by virtue of zoning restrictions and covenants, could have, no other use but to support the religious worship of the church is “actually used exclusively for public religious worship,” entitling it to the religious exemption prescribed by
III
In Bosley, we set out the requirements for the religious exemption:
“[F]irst, the property must be ‘owned by a religious group or organization;’ second, the property must be used for ‘public religious worship;’ third, the exempt use must be ‘actual;’ and fourth, the exempt use must be ‘exclusive. ‘”
293 Md. at 214. The parties agree that with regard to the property to which the exemption has been determined to apply, the test has been met. There also is no dispute as to the ownership of the remainder of the property or the circumstances of its acquisition, along with the other property, for the Church and as a site for the location of a
The Property Tax Assessment Appeals Board for Baltimore County, the Maryland Tax Court, and the Circuit Court for Baltimore County, have all resolved that dispute in the appellee‘s favor, concluding that the 16.5 acres are an essential рart of the entire 27 acre parcel, that they must be viewed as a whole, an entire package or fabric. Only the appellant argues that the property cannot be viewed as a whole, but must be viewed with an eye to development potential or use. Indeed, the appellant argues that allowing the exemption for property required to be kept in an open space use, in effect a non-use, is a violation of
The appellant has not shown, however, that the 16.5 acres, whose use has been restricted to open space, is merely an appurtenance to the remainder of the tract,9 that any non-church use of these 16.5 acres has occurred, that being restricted to open space use has a subordinate position or is a use different from the rest of the property. Nor does it appear that the 16.5 acres at issue are somehow divisible from the remaining exempt acreage.
In Bosley, the property in question was the church caretaker‘s home. The use of that residence was, to be sure, directly related to the church, but the residence itself was not available for public worship or integral to the primary purpose of the church. In that instance, the caretaker‘s residence was ancil-
The appellant fundamentally disagrees that any non-tangible uses can satisfy the “actual” and “exclusive” use requirements of
The cases interpreting
“The fact that the property is used regularly three to four hours each day for appellants’ commercial purposes supports the Tax Court‘s finding that it is not used primarily
for public worship. Further, the property is used as appellants’ residence. When these two uses are weighed against the thrice-weekly services attended by the public, we agree with the Tax Court that the primary use of the property does not justify the exemption.”
Id. at 404. We also rejected the taxpayers’ other argumеnts, namely that income from a commercial use that is applied to maintain the premises for public worship, should not disqualify the property from exemption and that taxpayer‘s sincere belief in the religious aspect of the use constitutes all of the uses that support it acts of public worship. Id. at 405.
In Bullis School v. Appeal Tax Court, 207 Md. 272, 274-75, 114 A.2d 41, 42 (1955), a school purchased, for future expansion, a farm, which it used in the interim to raise livestock, thus supplying the faculty and students with beef and pork. We rejected the taxpayer‘s argument that property which was used to produce income to support an exempt use, in that case the education exemption, is thereby made exempt itself. Id. at 277. See also Morning Cheer Inc. v. Bd. of County Comm‘rs, 194 Md. 441, 447, 71 A.2d 255, 257 (1950) (religious non-profit group was entitled to exemption for all buildings and land used primarily as a religious retreat 10 weeks out of the year and left dormant for the remainder of the year).
A church is more than four walls built of stone, marble or concrete, as this Court has consistently so recognized. See Morning Cheer, 194 Md. at 447. See also Gibbons v. D.C., 116 U.S. 404, 407, 6 S.Ct. 427, 428, 29 L.Ed. 680, 681 (1886) (stating “we are not disposed to deny that grounds left open around a church, not merely to admit light and air, but also to add to its beauty and attractiveness, may, if not used or intended to be used for any other purpose, be exempt from taxation....“).
In short, the cases involving interpretation of
The result we reach today has been followed by a number of our sister courts that have considered the issue. In Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530, 540-541, 137 N.E.2d 225, 231 (1956), in allowing a religious exemption14 for a priory, which is a Dominican house similar to a monastery, the court observed as to property on which it was sited:
“The real estate owned by the taxpayer comprises seventy-eight and five-tenth acres. During most of the time only a relatively small portion of this area is used. But the area, which is wooded and pleasant, is used at times by its members of the priory for walks during recreational periods.”
Similarly, in Green Acre Baha‘i Institute v. Eliot, 150 Me. 350, 354, 110 A.2d 581, 584 (1954), the court allowed the religious exemption noting:
“Among the properties of the petitioner were two undeveloped woodland areas. There was evidence that those participating in the program regularly used these areas for walks, prayer, meditation, outdoor meetings and recreation. There was further evidence that certain locations therein had special significance for members of the faith arising out
of a former visitation to the area by a leader of the faith. There was also evidence, of a hopeful, though not a clearly planned or definite intention, that the area might in the future be used for the enlargement and development of the institution‘s facilities. There was no suggestion of any present intention or purpose to hold the property as commercial timberland or for any other revenue use.”15
See also, Columbus v. Outreach for Christ, Inc., 241 Ga. 2, 243 S.E.2d 42 (Ga. 1978) (property on which parishioners held regular prayer service and on which new church was being built was held exempt16); Pickens County Bd. of Tax Assessors v. Atlanta Baptist Assoc., Inc., 191 Ga. App. 260, 381 S.E.2d 419 (Ga. Ct. App. 1989) (partially improved lot used only for religious retreats held exempt from taxation17); National Music Camp v. Green Lake Township, 76 Mich. App. 608, 257 N.W.2d 188 (Mich. Ct. App. 1977) (undeveloped land used as nature reserve and music camp held exempt18); People ex rel.
We believe that the determination of whether a parcel of land is tax exempt does not turn on the property‘s level of development. Rather, under
Testimony from Father Donellan indicated that the religious use of the entire parcel would “enhance the worship of our people, and would enhance the beauty of our building, which is very important.” Further, he stated that the church would not be the same without the surrounding land, “It‘s just one fabric. There‘s no—no berm or demarcation or anything such as that. It‘s a total—total piece.”
The appellant‘s position, which it urgеs on this Court, is that a parcel of land consisting of more physical space than is minimally necessary to construct the main structure is, by default, subject to demarcation for taxing purposes. We do not agree for the reasons stated.
Next, the appellant argues that the Tax Court decision is inconsistent with its own factual findings. This is so, the appellant asserts, because that court‘s decision is premised on the buffer use being the only use to which the 16.5 acres can be put. Noting that the Tax Court indicated quite clearly that its decision may have been different if the property, the 16.5 acres, could have been used for other purposes, it maintains that agricultural use is allowed and that
“Agricultural use is not religious worship any more than residential or commercial use is. The opinion specifically allowed agricultural use. . . . Consequently, this church can actually, not theoretically, farm this property next week, next year and for the next 60 years. Therefore, even using the Tax Court‘s logic, its own opinion does not support the conclusion that this property should be packaged with the public worship use and thereby meets the exemption criteria.”
We are not convinced.
There simply is no doubt but that the Tax Court understood the legal and factual background of the case and appreciated their significance. Certainly, it was aware that the CBA decision did not prohibit agricultural use. Nevertheless, as the appellee points out, nothing in the case negates the conclusion “that the Tax Court viewed all the evidence before it and that the actual use of the property, and its significant development restrictions, led to the reasonable conclusion that the property was viewed as ‘a package’ or a unitary parcel presently supporting the public worship of the church.”
Nor is there any merit to the argument that the use of the 16.5 acre tract is explicitly not related to the furtherance of public worship. As the County Board of Appeals for Baltimore County stated, the primary purpose of the non-developed land is to preserve the environmental aesthetics of the neighboring community and present the primary structure in a visually pleasing and understated manner. The development envelope is balanced by the open space, non-use area,
V.
Where a portion of a parcel of real property on which a church has been constructed is, by virtue of zoning and covenants restricted to open space use, thus prohibiting any other use, that does not serve automatically to demarcate the parcel, nor does it necessarily serve to infringe, usurp, or preempt the primary use of the property. In the case sub judice, the 16.5 acres provide a natural setting for the church and, thus, the religious worship use. As such, they are being actively used by the church for religious worship, as, by the way, the Order of the County Board of Appeals for Baltimore County directed. The decision that the 16.5 acre parcel is a part of a whole or entire package was found and reiterated by the Property Tax Assessment Appeals Board for Baltimore County, the Maryland Tax Court, and the Circuit Court for Baltimore County. Each such decision, and in particular that of the Tax Court, is supported by substantiаl evidence in the record. Accordingly, we affirm the judgment of the Circuit Court, which upheld the decision of the Tax Court.
JUDGMENT AFFIRMED, WITH COSTS.
RODOWSKY, WILNER and HARRELL, JJ., dissent.
WILNER, Judge, dissenting.
The Court today affirms a determination that 16.5 acres of vacant land, not used for any particular purpose and expressly reserved by deed exclusively for open field or agricultural use, is “actually used exclusively for public religious worship” merely because it is part of a larger parcel upon which stand a church and certain structures ancillary to the church. With respect, I dissent.
Perceiving the need for a new church in the Hunt Valley area of Baltimore County, respondent purchased a 27-acre tract located in an R.C. 2 (agricultural) zone. The tract was
The county zoning authorities approved respondent‘s application for a special exception, and thus allowed the building of the church, upon certain representations made by respondent and subject to certain conditions and limitations. The order granting the special exception limited the actual building area for the church to less than one acre. It also limited the entire development area—including the existing improvements and a proposed 200 space parking lot—to a 7.5 acre envelope, and required respondent to enter into a legally enforceable agreement that would restrict the other 19.5-acres for open space and agricultural uses and prohibit the construction of any buildings on that open acreage for a period of 60 years. The only caveat to the restriction was the allowance of driveways, road improvement, storm water management, utilities, or similar kinds of improvements. Nothing was said about any walkways, trails, shrines, benches, or other structures being erected on the 19.5 acre tract. Nothing was said about parishioners or anyone else actively using the vacant land. It was intended to be a buffer, to shield the church and accessory buildings from neighboring property.
In support of its application for the special exception, respondent‘s witnesses represented that there would be two Sunday services, one at 9:30 a.m. and a second at 11:30 a.m., that Saturday services would occur in the afternoon, and that weekday services would be at noon. There would be no
In accordance with these restrictions, respondent constructed a church building on approximately one-third of an acre, converted the two existing houses to a caretaker‘s residence and church offices, and completed a parking area, all within the 7.5 acres in the interior of the parcel allowed for development. In July, 1996, respondent applied to the Supervisor of Assessments for an exemption of the entire 27-acre tract from State and local property tax assessment, alleging that the property was being used for a parish church and offices. The Supervisor for Baltimore County determined that 6.5 acres within the 7.5 acre development envelope and three acres within the adjacent 19.5-acre open space area that were used for storm water management and septic system were eligible for the religious worship exemption, but that the one acre within the development envelope used for the caretaker‘s residence and the remaining 16.5 acres of open space were not eligible for the exemption. The Property Tax Assessment Appeals Board, on respondent‘s appeal, reversed the Supervisor and granted the exemption for the entire area, less the one acre on which the caretaker‘s residence was situated, a decision affirmed, on the Supervisor‘s appeal, by the Maryland Tax Court and then by the Circuit Court for Baltimore County.
This Court further affirms those rulings, upon its conclusion that the Supervisor of Assessments “has not shown . . . that the 16.5 acres, whose use has been restricted to open space, are merely an appurtenance to the remainder of the tract, that
Prior to 1972, Maryland law provided an exemption from property tax assessment for “[h]ouses and buildings used exclusively for public worship, and the furniture contained therein, and any parsonage used in connection therewith, and the grounds appurtenant to such houses, buildings and parsonages and necessary for the respective uses thereof.”
In Bosley, supra, 293 Md. 208, 218, 443 A.2d 91, 97, we observed that the “clear legislative design” behind the 1972 enactment was “to sweep away prior property tax exemption statutes and to restructure and broaden this State‘s property
We reversed the Circuit Court‘s affirmance of those rulings, noting that, by virtue of the 1972 change in the law, the “necessary property” test applied under the earlier statute was “obsolete and inappropriate,” and that the “plain statutory language . . . exempts only church owned property that is ‘actually used exclusively for public religious worship.’” Bosley, supra, 293 Md. at 212, 443 A.2d at 93. We explained: “It is now established Maryland law, both by legislative enactment and by prior decisions of this Court, that taxation is the rule with exemption the exception, and that statutes providing for tax exemption are to be strictly construed in favor of the State.” Id. Under the 1972 law, we held, four requirements must be met: the property must be owned by a religious group or organizаtion, it “must be used for ‘public religious worship,’” the exempt use must be “actual,” and that use must also be “exclusive.” Id. at 214, 443 A.2d at 95. In the particular cases, we observed, the record disclosed “no public
The Court cites Bosley and seems to understand that, for property to be exempt under
Coupling that statement with one in the zoning opinion that looked at the property “as a whole,” the Court concludes that the Supervisor “has not shown . . . that the 16.5 acres, whose use has been restricted to open space, are merely an appurtenance to the remainder of the tract, that any non-church use of these 16.5 acres has occurred, that being restricted to open space has a subordinate position or is a use different from the rest of the property. Nor has the [Supervisor] convinced us that the 16.5 acres at issue are somehow divisible from the remaining exempt acreage.” The import of the Court‘s decision is that, so long as some part of the land is actually used for public religious worship and the buffer land is not actually used for any other purpose, the whole tract (except for the caretaker‘s residence) is exempt. With respect, it seems to
It is not the Supervisor‘s burden to convince us that the buffer land is being used for some other specific purpose. The burden is on the applicant for an exemption to prove his right to it, and, in this case, that requires an affirmative showing on respondent‘s part that the property in question is actually and exclusively being used for public religious worship. That is what the law requires. That is the plain, unambiguous, unmodified holding in Bosley. No such showing—nothing approaching such a showing—has been made in this case. It is undisputed that the 16.5 acres is not being actually and exclusively used for public religious worship, and that alone suffices to require denial of the exemption. If there was any evidence that parishioners traversed the buffer open space and engaged in outdoor public religious worship on it, I would agree with the Tax Court‘s ruling, but that is simply not the case. The fact that the buffer area enhances either the beauty of the church or the worshiping that occurs within it is irrelevant in this context. The law no longer exempts land because of its accessory or appurtenant use; if it is not itself actually used for public religious worship, it is not exempt.2
It may feel good to grant this exemption; no one wants to be the Grinch. The law, however—at least in my opinion—does not allow it.
Judges HARRELL and RODOWSKY have authorized me to state that they join in this dissent.
Notes
Property that is owned by a religious group or organization is not subject to “property tax if the property is actually used exclusively for:
“1) public religious worship;
“2) a parsonage or convent; or
“3) educational purposes.” The Court cites several cases from other states that it regards as supportive of its position. A close reading of those cases reveals quite the opposite, however. In Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530, 137 N.E.2d 225, 231 (1956), an entire 78-acre tract was held exempt even though a small area of the tract was used for religious worship because the rest of the tract “which is wooded and pleasant, is used at times by members of the priory for walks during recreational periods.” In Green Acre Baha‘i Institute v. Eliot, 150 Me. 350, 110 A.2d 581, 584 (1954), there was evidence that members regularly used the two undeveloped areas “for walks, prayer, meditation, outdoor meetings and recreation.” In Pickens County Bd. of Tax Assessors v. Atlanta Baptist Assoc., Inc., 191 Ga. App. 260, 381 S.E.2d 419 (1989), 640 acres of land was held exempt as a place of worship where even the unimproved portion of the land was used for nature walks, outdoor Bible study, and meditation. See, in similar vein, People ex rel. v. Catholic Bishop, 311 Ill. 11, 142 N.E. 520 (1924); Columbus v. Outreach for Christ, Inc., 241 Ga. 2, 243 S.E.2d 42 (1978). Apart from the fact that the statutory language in these cases was not the same as facing us here, the evidence showed some actual exempt use of the open or wooded areas.
“a. Be detrimental to the health, safety, or general welfare of the locality involved;
“b. Tend to create congestion in rоads, streets or alleys therein;
“c. Create a potential hazard from fire, panic or other dangers;
“d. Tend to overcrowd land and cause undue concentration of population;
“e. Interfere with adequate provisions for schools, parks, water sewerage, transportation or other public requirements, conveniences, or improvements;
“f. Interfere with adequate light and air;
“g. Be inconsistent with the purposes of the property‘s zoning classification nor in any way inconsistent with the spirit and intent of these zoning Regulations; nor
“h. Be inconsistent with the impermeable surface and vegetative retention provisions of these zoning Regulations.”
“(1) Those portions of the Property lying north and south of the area designated on the Plat as ‘the Developed Envelope’ shall be usеd only for open space or agricultural purposes in perpetuity unless the Property or any portion of the Property is rezoned to another zoning classification other than R.C. 2 ... or unless the Master Plan for Baltimore County designates the Property or any Portion of the Property for use other than agricultural preservation or the Director of the Department of Environmental Protection and Resource Management (or any successor to that Department) finds, in writing, that the Property or any portion of the Property is no longer viable for agricultural use. This restriction shall not preclude construction of driveways, road improvements, storm water management facilities, utilities or other similar improvements within the restricted area.
“(2) No building shall be constructed on the Property outside the area designed on the Plat as the ‘Developed Envelope’ for sixty (60) years from November 20, 1992 so long as the Property retains its R.C. 2 [agriculture] zoning classification....
“(3) Declarant for Himself, His Successors and The Catholic Community of Saint Francis Xavier Roman Catholic Congregation, Inc. agrees not to takе any affirmative action to have the Property or any portion of the Property rezoned during the aforesaid sixty (60) year period....”
“(f) Appeals from property tax assessment appeal board; exhaustion of administrative remedies.—(1) Any taxpayer, a municipal corporation, the Attorney General, the Department, or the governing body of a county may appeal a determination made by property tax assessment appeal board under
“(b)(1) Except as provided in subsection (c), property is not subject to property tax if the property:
(i) is necessary for and actually used exclusively for a charitable or educational purpose to promote the general welfare of the people of the State, including an activity or an athletic program of an educational institution...”
“Appurtenance, n. Something that belongs to or is attached to something else.” Black‘s Law Dictionary, Seventh Edition, 1999.
“Use, ν. 1. Τo put into service or apply for a purpose. 2. To avail oneself of... 4. To seek or achieve an end by means of; exploit.... 5. The quality of being suitable or adaptable to an end; usefulness. 6. A purpose for which something is used. 7. Gain or advantage; good ... 9. Law. a. Enjoyment of property, as by occupying or exercising it. b. The benefit or profit of lands and tenements ...”
“Upon compliance with
“(1) All houses of public worship and other additional buildings and property used solely for administration, education, literary, benevolent, charitable, entertainment and recreational purposes by religious organizations, the lots on which they are situated, and the pews, slips and furniture therein....”
“The following classes of property shall not be taxed:
9. Property of religious, literary, and charitable societies. All grounds and buildings used or under construction by ... religious institutions and societies solely for their appropriate objects, ... not leased or otherwise used under construction with a view of pecuniary profit.
“First. All buildings used exclusively as places of public worship and used exclusively for the accommodation of religious meetings, together with the grounds owned thereby if not leased or otherwise used with a view to profit.
“Second. All the real property actually and regularly used exclusively for educational [or] religious purposes....”
“Section 5. The following property and polls shall be exempt from taxation: . . . Third, Personal property of literary, benevolent, charitable and scientific institutions incorporated in the commonwealth, the real estate owned and ocсupied by them or their officers for the purposes for which they are incorporated . . .”
“Sec. 6. Exemptions. The following property and polls are exempt from taxation: * * * * * III. * * * * the real and personal property of all benevolent and charitable institution incorporated by the state; * * * * but so much of the real estate of such corporations as is not occupied by them for their own purposes shall be taxed in the municipality in which it is situated. . . .”
“The following property shall be exempt from taxation: . . . Fourth, [s]uch real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions . . .”
“All property used exclusively for religious purposes, or used exclusively for school and religious purposes or for orphanages and not leased or otherwise used with a view to profit. (Cahill‘s Stat. 1923, chap. 120, sec. 2, clause 2.)”