Vermont Studio Center, Inc. v. Town of Johnson
No. 09-361
Vermont Supreme Court
July 2, 2010
2010 VT 59 | 5 A.3d 904
Reiber, C.J., Johnson, Skoglund and Burgess, JJ., and Crawford, Supr. J., Specially Assigned
way Oaks Villas Horizontal Prop. Regime, 415 S.E.2d 384, 388 (S.C. 1992) (concluding that condominium and management company waived rights under declaration and bylaws).
¶ 49. If we are unwilling to enforce a waiver in this case, we are endorsing conduct that is outside the “spirit of fairness, justness, and right dealing.” Starr Farm Beach Campowners Ass‘n v. Boylan, 174 Vt. 503, 507, 811 A.2d 155, 160 (2002) (mem.) (quotation omitted). In this respect, I concur with Justice Mahady‘s sentiment, expressed roughly twenty years ago, that “[t]he law should be more solicitous of . . . innocent consumers than of the tortfeasor-developer.” Meadowbrook Condo. Ass‘n v. S. Burlington Realty Corp., 152 Vt. 16, 29, 565 A.2d 238, 245 (1989) (Mahady, J., concurring and dissenting). For the foregoing reasons, I respectfully dissent.
¶ 50. I am authorized to state that Judge Joseph joins this dissent.
David A. Barra of Unsworth & Barra, PLC, Essex Junction, for Defendant-Appellee.
William H. Sorrell, Attorney General, and Suzanne M. Monte, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.
¶ 1. Burgess, J. In this appeal, we must decide if real property owned by Vermont Studio Center, Inc. (VSC) is exempt from property tax under
¶ 2. The following facts are undisputed. VSC is a nonprofit corporation that owns real property in the Town of Johnson. VSC‘s property is primarily used for an artists’ residency program, and the direct beneficiaries of this program are artists, writers, printmakers, and photographers. Approximately 2000 individuals apply annually for 612 four-week residencies, and there are approximately fifty visual artists and writers on site each month. VSC restricts the number of residencies it offers primarily due to limited funding and space. Those who wish to participate must submit an application that includes a $25 application fee, a portfolio of their work or a manuscript, a current resume, and three references. A jury reviews these applications and selects participants. Participants are charged $3750 for a four-week residency, although most seek financial aid.
¶ 3. Based on these facts, VSC claimed a tax exemption under
¶ 4. In reaching its conclusion, the superior court looked to our decision in Sigler Foundation v. Town of Norwich, 174 Vt. 129, 807 A.2d 442 (2002). In that case, it was determined that a state-of-the-art dairy farm, established to demonstrate and advance modern farming techniques, owned by a charitable foundation, and open to the general public, provided a direct benefit to an indefinite class of persons. VSC maintained that just as the Sigler beneficiaries shared an interest in dairy farming, its beneficiaries shared an interest in the arts, and this should not preclude them from being considered an indefinite class. Additionally, it argued that its beneficiaries, selected from applicants worldwide, were even more varied and diverse than those in Sigler. The superior court found that while VSC‘s arguments might be narrowly true, they overlooked Sigler‘s directive that “[t]he broader the scope of an organization‘s beneficiaries, and less restrictive its criteria, the greater the likelihood it is engaged in providing uses for an indefinite class of persons.” Id. at 134, 807 A.2d at 447. The court recognized that a property owner could be entitled to a tax exemption notwithstanding its use of an application and selection process, but found that such restrictions nonetheless weighed heavily against such a finding.
¶ 5. Unlike Sigler, the court explained, VSC‘s property was not open to the public at large and, in fact, VSC turned away members of the public. Moreover, VSC chose its beneficiaries through a juried application process, and the “direct beneficiaries” of the selection process were artists - a definite class. The court rejected VSC‘s argument that the specific persons who received benefits and support from VSC could not be “identified, determined, or defined.” Id. at 131, 807 A.2d at 444 (quotation marks omitted). To the contrary, the court found that they were defined each year through VSC‘s exercise of its “choice, selection, or judgment.” Id. at 134, 807 A.2d at 447. For this and other reasons, the court found that VSC failed to sustain its burden of establishing its entitlement to a tax exemption under
¶ 6. VSC argues that the trial court misinterpreted our case law in reaching its decision. According to VSC, its selection process does not meaningfully narrow the scope of its beneficiaries under this Court‘s holding in Sigler. VSC asserts that it serves the needs of a subpopulation of the general public, and this Court has previously upheld tax exemptions for organizations that serve core social or aesthetic needs of discrete subpopulations. VSC states that it must limit the public‘s access to its property solely due to space and that the trial court wrongly found that its beneficiaries constituted a “closed circle or group determined by VSC‘s choice or selection.”
¶ 7. Our review is de novo, Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996), and we affirm the trial court‘s decision. As the parties recognize, the taxpayer bears the burden of establishing its entitlement to a tax exemption under
¶ 8. As stated above, to constitute a “public use,” the primary use of the property must directly benefit “an indefinite class of persons who are part of the public.” Am. Museum of Fly Fishing, 151 Vt. at 110, 557 A.2d at 904. The indefinite-class-of-persons test is intended “to distinguish uses that benefit the public from uses that benefit only a selected few.” Sigler, 174 Vt. at 134, 807 A.2d at 447; see also Trs. of Vt. Wild Land Found. v. Town of Pittsford, 137 Vt. 439, 443, 407 A.2d 174, 176 (1979) (noting that the critical distinction under
¶ 9. Contrary to VSC‘s assertion, Sigler does not stand for the proposition that if “services are offered openly to a broad spectrum of society,” and an organization uses fair and impartial criteria to determine its beneficiaries, then the class directly served is necessarily “indefinite.” The land at issue in Sigler was “open to the public at large,” id. at 135, 807 A.2d at 447, and the foundation imposed no restrictions on access and use. While the bulk of the beneficiaries could be identified as persons interested in dairy farming, the foundation had “never turned anyone away.” Id. We thus concluded that the foundation‘s primary use of the property benefitted an indefinite class of persons.
¶ 10. We reached a different conclusion in Vermont Wild Land. In that case, a foundation owned an undeveloped section of wilderness and made the land available for scientific research. Public access to the property was strictly controlled so as to keep it wild, and entrance was by permission only. The foundation decided who could enter the land, and decisions were made on the basis of applications, the requirements of which were fairly extensive. Anyone engaged in science, education, or research would almost always receive permission automatically, but an alleged scientific purpose did not guarantee admission. Additionally, the foundation did not publicize the land‘s availability, the property itself was unmarked, and would-be visitors needed to call in advance, although the foundation‘s telephone number was not published.
¶ 11. Based on these facts, we concluded that the foundation‘s property was not put to a “public use” under
¶ 12. The same holds true here. Those who seek to benefit from the use of VSC‘s property must file an application, and VSC exercises sole discretion in determining who qualifies. The fact that the application process is open “to the entire world” is of no moment. Certainly, the same can be said for the applicants in Vermont Wild Land. What is significant is the existence of VSC‘s screening process and the restrictions it imposes on those who can benefit from the primary use of the property. This is the hallmark of a “private” as opposed to a “public” use.2 See Sigler, 174 Vt. at 134, 807 A.2d at 447 (recognizing that unlike “public uses,” private uses of property “are characterized by the benefits bestowed on a particular, and most often, limited sector of the public usually distinguishable by certain characteristics or membership“). VSC‘s beneficiaries share a proficiency in the arts (as measured by VSC), and those who benefit from the operation of the artist-in-residence program are “finite and limited.” Id.
¶ 13. VSC mistakenly relies on Fort Orange Council, Inc. v. French, 119 Vt. 378, 125 A.2d 835 (1956), and Experiment in International Living, Inc. v. Town of Brattleboro, 127 Vt. 41, 238 A.2d 782 (1968), to establish that its beneficiaries are not part of a “closed circle or group.” Fort Orange held that land owned by the Boy Scouts of America and used as a boy scout camp was not entitled to a tax exemption under
¶ 14. We reached a similar conclusion in Experiment in International Living, holding that certain land used as a training facility for the Peace Corps and other organizations was not tax-exempt. The decision in that case did not turn on the mere fact that the owner of the property contracted
¶ 15. Certainly, an organization need not actually serve “every member of the community” to be entitled to a tax exemption under
¶ 16. The trial court properly concluded that VSC‘s primary use of the property did not directly benefit “an indefinite class of persons who are part of the public.” Summary judgment was therefore appropriately granted to the Town. Given that conclusion, there is no need to address VSC‘s argument that the court erred in evaluating a different portion of the “public use” test set forth in American Museum of Fly Fishing.
Affirmed.
¶ 17. Crawford, Supr. J., Specially Assigned, dissenting. I dissent from the majority opinion because in excluding from tax-exempt status any arts organization which makes use of an open competition to select participants in its programs, the majority unduly restricts the statutory exemption for “[r]eal and personal estate . . . used for public, pious or charitable uses.”
¶ 18. The substance of the statutory exemption has developed exclusively through case law. The legislative language tells us almost nothing about what constitutes a “public use” except that lands used for purposes such as schools and libraries are specified as tax-exempt. In the case of real estate used for other public purposes, it has fallen to this Court to give shape and definition to the exemption.
¶ 19. Two cases show the way. In American Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 557 A.2d 900 (1989), the Court rejected prior decisions which equated public use with the fulfillment of essential governmental functions.
¶ 20. In Sigler Foundation v. Town of Norwich, 174 Vt. 129, 807 A.2d 442 (2002), the Court refined its definition of an “indefinite class of persons.” The Sigler Foundation operated a five-acre model dairy farm (the “Dream and Do Farm“), which was open for school field trips and dairy researchers as well as to members of the public. The decision holds that whether the class of persons served is “indefinite” depends upon the type of choice or selection made by the organization to determine who benefits from its activities. Id. at 134, 807 A.2d at 447. The capacity of any nonprofit organization is finite and its mission is defined - typically quite narrowly - to provide benefits to groups such as fly-fishing enthusiasts or people with an interest in dairy farms. The choice the beneficiaries make in attending is irrelevant. The quality of “indefiniteness” depends upon the process by which the organization limits its services to a subgroup of the general population.
¶ 21. The majority opinion excludes from tax-exempt status any organization which uses a juried or merit-based selection process in defining its beneficiaries. Whether the selection process is fair or open to all is of no consequence. The very existence of a “screening process” is said to be the “hallmark” of a disqualifying private use. Ante, ¶ 12. Unless the premises are “open to all” and “turn no one away,” they cannot be said to serve an indefinite class.
¶ 22. This definition defines “public use” too restrictively and contributes in its small way to the “dumbing down” of artistic culture. Consider the case at hand. Tax-exempt status would be assured, apparently, if the artistic residencies were awarded by lottery or on a first-come basis. The beginner and the accomplished artist would be equally welcome. No one would be turned away - except perhaps by the fire marshal. This is a reasonable admissions policy for a museum or an exhibition dairy farm. It is less promising for an arts organization whose beneficiaries must demonstrate a measure of competence if their residency is to have value for them or for the public.
¶ 23. This is not a case like Trustees of Vermont Wild Land Foundation v. Town of Pittsford, 137 Vt. 439, 407 A.2d 174 (1979), in which the criteria for admission were suspect. In this case, the selection process is open to all and is described by both sides as fair and unbiased. Some 600 artists and writers attend annually out of 2,000 applicants.
¶ 24. Nor is this a “closed circle” case in which only members of the Boy Scouts or the Peace Corps are eligible to make use of the property. See Fort Orange Council, Inc. v. French, 119 Vt. 378, 125 A.2d 835 (1956); Experiment in Int‘l Living, Inc. v. Town of Brattleboro, 127 Vt. 41, 238 A.2d 782 (1968), overruled on other grounds by American Museum of Fly Fishing, 151 Vt. 103, 557 A.2d 900. Despite an unsupported assertion by the trial court that “artists” form a defined class, artists as a group are both numerous and varied.5 Artists can hardly be said to form a “closed circle” or a limited class of people.
¶ 25. Finally, this is not a case in which existing legislative language can be “strictly construed.” The substantive law of what constitutes a public use derives entirely from decisional law. The statute itself is silent about what constitutes a public use. In his dissent in American Museum of Fly Fishing, Justice Peck criticized the three-part test as “out-of-the-hat, unsupported guesswork.” 151 Vt. at 112, 557 A.2d at 905 (Peck, J., dissenting). To be fair, the development of the three-part test represents not so much “guesswork” as it does deliberate policy-making through case law. In the absence of new legislation, the judiciary remains responsible for refining its own test incrementally and in directions which avoid imperfect or anomalous outcomes.
¶ 26. A reasonable definition of “indefinite class of persons” should not exclude groups whose activities require training, practice, and technical accomplishment. “Public use” does not have to be limited to activities such as museum-going which anyone can do without preparation. Nothing in
¶ 27. The phrase “indefinite class of persons” should include classes of people selected through an open, competitive admissions process. These would include artists selected through a juried process, musicians and actors who audition, and writers and poets who submit manuscripts to a competition. The activities of these groups provide obvious public benefit. The open nature of the competitions invites a class which is broad, numerous, and indefinite in its membership. That winning a place through a fair competition depends upon individual skill makes it no less “open to all.”
¶ 28. Since I conclude that the majority has defined the statutory term “public use” too narrowly, I respectfully dissent.