Hellenic Orthodox Cmty. v. Waterbury

Full title: HELLENIC ORTHODOX COMMUNITY, INC. v. CITY OF WATERBURY ET AL

Court: Connecticut Superior Court Judicial District of Waterbury at Waterbury

Date published: Apr 16, 2009

2009 Ct. Sup. 6950 (Conn. Super. Ct. 2009)

47 CLR 621

Opinion

No. CV07-4013379S

April 16, 2009

MEMORANDUM OF DECISION

ALVORD, J.

This case is a tax appeal brought pursuant to § 12-117a of the General Statutes.

The plaintiff in this action is Hellenic Orthodox Community, Inc. (Hellenic), a Greek Orthodox Church which owns four contiguous lots located at Prospect and Farrell Roads in the City of Waterbury. Tr. Pp. 15-18. The four lots are separately taxed. Tr. Pp. 85-86.

The plaintiff's amended application, dated December 26, 2008, contains 12 Counts, three for each individual parcel at issue.¹ The application claims relief from the Waterbury Grand List years of October 1, 2006, October 1, 2007 and October 1, 2008. The basis of the claim for relief is an allegation that the defendant, Waterbury, acting through its assessor, improperly removed a tax exemption the property had enjoyed on grand list years prior to October 1, 2006. The application alleges that the property should continue to be exempt, pursuant to Connecticut General Statutes § 12-81(14) and § 12-88.

1 The plaintiff amended its application to eliminate the portion of the original application which alleged improper valuation of the land at issue. This court makes no finding as to whether the valuation of the property is proper and whether the plaintiff is entitled to relief because of any overvaluation of the property by the defendant.

The defendants are the City of Waterbury, the City's Tax Assessor, David N. Dietsch, and the City's Board of Assessment Appeals. The defendants admit that prior to the October 1, 2006 grand list, the assessor listed the properties on the City's tax exempt list, but then removed them beginning with the grand list of October 1, 2006. The defendants deny, however, that the properties at any time met the statutory requirements for exemption, and that it was wrongful for the assessor to remove the exemptions.

The matter was tried before the court on December 10, 2008. Various members of the plaintiff's parish testified as well as Father Steven Natsis, the parish priest, and David Dietsch, the city assessor. Counsel for the respective parties were well prepared and presented cogent arguments reflective of their positions. The court enters judgment denying the appeal.

FACTS

The following facts are relevant to the disposition of this appeal. Hellenic is a Connecticut nonprofit corporation. The plaintiff owns four parcels of unimproved wooded property on Farrell and Prospect Roads, totaling approximately 25 acres (the properties). The Church was gifted the properties in late 1997, and applied to the Waterbury Office of Tax Assessor for the properties to become tax exempt. After discussions between Waterbury and the Church's counsel, Waterbury granted a tax exemption on April 30, 1998. Several years later, during the Summer of 2006, Waterbury received a phone call from a local reporter inquiring about the tax exempt status of the properties, and an unrelated property. Solely as a result of this phone call Dietsch visited the properties. Dietsch testified that whenever he received a call, whether from a newspaper or a taxpayer, he would attempt to follow up on the inquiry. As a result of Dietsch's visit to the properties, he removed the exemption from the properties effective with the October 1, 2006 grand list. (1-12-07 Letter from Assessor, City of Waterbury to Hellenic Orthodox Community, Inc. Pl Ex 8). The Assessor visited the properties two additional times, in September 2007 and early October 2007. The properties remain taxed by the City of Waterbury. He testified that on those occasions he was going out to inspect the properties, looking for a recreational facility or one of the other permitted uses under the statute.

The properties are heavily wooded, with rocky ledges, a brook and sparse trails. The land is not suitable for development. The properties are largely landlocked by dense housing. The properties are not surveyed, and based on the testimony, it is not clear where one parcel ends and the other begins. There are no buildings or shelters of any sort on the property, none were there historically and none are planned to be built. The Church has formulated no plans for developing the property. Sometime before Columbus Day Weekend in 2007, members of the Church Council erected a twelve foot by seven foot cross on the properties, anchored in the sandy soil. The cross was blessed by a pastor of the Church. Once a year, starting in 2007 and again in 2008, the Church Youth Group spends a few hours on Columbus Day afternoon hiking the properties, stopping to pray adjacent to the cross. It is not clear on which of the four parcels the cross is located. The nature of the properties has not changed, since their acquisition by the Church, but for the placement of the cross in the sandy soil. There is no additional evidence that any religious services were held on the properties.

THE LAW CT Page 6952

"The general rule of construction in taxation cases is that provisions granting a tax exemption are to be construed strictly against the party claiming the exemption." Loomis Institute v. Windsor, 234 Conn. 169, 176, 661 A.2d 1001 (1995). "Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms . . . It is also well settled that the burden of proving entitlement to a claimed tax exemption rests upon the party claiming the exemption." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). We strictly construe such statutory exemptions because "[e]xemption from taxation is the equivalent of an appropriation of public funds [where] the burden of the tax is lifted from the back of the potential taxpayer who is exempted and shifted to the backs of others . . . The owners of tax-exempt property in the community derive the same benefits from government as other property owners but pay no property taxes for those benefits." (Citation omitted; internal quotation marks omitted.) United Church of Christ v. West Hartford, 206 Conn. 711, 718-19, 539 A.2d 573 (1988). "It is well settled that the plaintiff has the burden of establishing its right to an exemption." NSA Properties, Inc. v. Stamford, 100 Conn.App. 262, 270, 917 A.2d 1034 (2007). The plaintiff alleges that the property was exempt from taxation pursuant to § 12-81 and § 12-88.² Section 12-81, titled "Exemptions," provides in pertinent part that the following described property shall be exempt from taxation: "(14) Property of religious organizations used for certain purposes. Subject to the provisions of section 12-88, real property and its equipment owned by, or held in trust for, any religious organization and exclusively used as a school, a Connecticut nonprofit camp or recreational facility for religious purposes, a parish house, an orphan asylum, a home for children, a thrift shop, the proceeds of which are used for charitable purposes, a reformatory or an infirmary or for two or more of such purposes."

General Statutes § 12-88 provides in relevant part: "Real property belonging to . . . any organization mentioned in subdivision (7), (10), (11), (13), (14), (15), (16) or (18) of section 12-81, which real property is so held for one or more of the purposes stated in the applicable subdivision, and from which real property no rents, profits or income are derived, shall be exempt from taxation though not in actual use therefore by reason of the absence of suitable buildings and improvements thereon, if the construction of such buildings or improvements is in progress . . . If a portion only of any lot or building belonging to, or held in trust for, any such organization is used exclusively for carrying out one or more of such purposes, such lot or building shall be so exempt only to the extent of the portion so used and the remaining portion shall be subject to taxation." (Emphasis added.)

The term "improvement" is not mentioned in § 12-81(14) and it is only mentioned in § 12-88 to ensure that organizations who may not be using their property for one of the specific uses described in § 12-81(14), are given the benefit of the exemption if the construction of "suitable buildings and improvements thereon," is in progress.

There are little or no applicable statutes or case law that provide a definition of the phrase "recreational facility for religious purposes," as used in § 12-81(14). A case from the Appellate Court interpreting the exemption statutes, however, with similar facts to the present case, does provide guidance. In Grace N'Vessels of Christ Ministries, Inc. v. Danbury, 53 Conn.App. 866, 733 A.2d 283 (1999), the Appellate Court was asked to review the trial court's determination that a portion of a Connecticut non-profit corporation's real property did not qualify for tax exempt status under § 12-81 of the General Statutes. The lot at issue was described as an "unimproved, wooded lot that contained no structures or buildings other than a volleyball court." Id., 872. There was also evidence that "prayer walks" were occasionally conducted on the property. Id. Faced with these facts, the Appellate Court declined to overrule the trial court's factual finding that these uses exempted the real property under the statute. Id. The Appellate Court stated that there was sufficient testimony at the trial court level "to demonstrate that the lot had no buildings or improvements, either completed or in process, suitable for use for charitable purposes . . . nor [were] such improvements in the process of being constructed." Id. (Emphasis added.)

At trial, the evidence presented was that Farrell Road lots were unimproved and wooded, containing no structures or buildings other than a cross.³ Despite Hellenic's assertion that the Farrell Road properties were used for religious purposes in that "prayer walks" were occasionally conducted on the property, there was sufficient testimony presented to demonstrate that the lot had no buildings or improvements, either completed or in progress, suitable for use for charitable purposes. The plaintiff has not met its burden of proving that its real property is entitled to tax-exempt status under § 12-81(14) or § 12-88 of the General Statutes. The lots contain neither any building or other improvement used for charitable purposes, nor are such improvements in the process of being constructed. The plaintiff relies on the presence of a 14-foot wooden cross and a visit to the cross by its church youth group a few hours per year to make its case for an exemption. In this case, it is clear from the evidence presented, that no construction is in progress or planned that would qualify for a tax exemption under § 12-81(14). This court will not, therefore, disturb the ruling of the Board. The appeal is denied.

3 The court does not make any comment as to the importance or symbolic nature of the cross; however, the placement of the cross, alone, does not exempt the property from taxation under the clear statutory language.