City of Burlington v. City of South Burlington., Nos. 937-9-14 Cncv, 1222-11-13 Cncv, 183-2-13 Cncv (Toor, J., March 3, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                                     VERMONT SUPERIOR COURT
                                                        CHITTENDEN UNIT
                                                         CIVIL DIVISION

                                                                          │
CITY OF BURLINGTON,                                                       │
 Appellant                                                                │
                                                                          │
    v.                                                                    │                 Docket Nos. 937-9-14 Cncv
                                                                          │                            1222-11-13 Cncv
CITY OF SOUTH BURLINGTON,                                                 │                            183-2-13 Cncv
 Appellee                                                                 │
                                                                          │


                             RULING ON MOTIONS FOR SUMMARY JUDGMENT

           This is a tax appeal involving the taxability and valuation of municipally-owned property

located in another municipality. Specifically, the case involves Burlington International Airport,

which is owned by the City of Burlington but located in the City of South Burlington. Burlington

appeals the decision of the South Burlington Board of Civil Authority as to the value of certain

airport properties as provided on the 2012, 2013, and 2014 Grand Lists.1 There are two categories

of property at issue: areas leased to other entities, and areas purchased pursuant to the airport’s

Noise Compatibility Program. Both parties have moved for partial summary judgment. For

purposes of clarity, the court refers to Burlington as “Taxpayer” and South Burlington as “the

City,” except in citations.

                                                                     FACTS

           Unless noted otherwise, the following facts are not genuinely disputed.2 This tax appeal

involves real estate located in the City but owned by Taxpayer. See Burlington’s Statement of


1
    Each docket number refers to a separate grand list appeal.
2
 Taxpayer states that solely for the purposes of its own motion for partial summary judgment, it adopts the City’s
version of any and all facts that the City attempts to dispute with admissible evidence. See Burlington’s Reply Mem.
of Law in Further Support of its Motion for Partial Summ. J. (Burlington’s Reply) (Sept. 18, 2015) at 1.
Undisputed Material Facts (“SMF”) ¶ 2 (July 15, 2015). The real estate under appeal includes a

large tract of 882.6 acres, which includes Burlington International Airport and land devoted to its

operation. See 

South Burlington’s SMF ¶ 2. Although the parties contest whether the real

estate functions as multiple parcels or as a single, larger parcel for appraisal and taxation purposes,

it is not disputed that Taxpayer acquired the real estate piece by piece over the years, beginning in

1921. South Burlington’s SMF ¶¶ 1, 3; Burlington’s Resp. to South Burlington’s SMF

(“Burlington’s Resp.”) ¶¶ 1, 3; Ex. CC to Burlington’s Resp. (airport property map and list); Ex.

DD (Aff. of George Silver ¶ 7).

       The amount Taxpayer paid the City annually for the airport real estate, as either ad valorem

property taxes or payment in lieu of taxes, was formerly determined by agreement between the

municipalities. See Burlington’s SMF ¶ 20; Ex. F (tax stabilization agreement). This dispute arose

when, starting with the 2012 tax year, the assessed value of what the parties refer to as the “main

airport site” or “main airport parcel” (Parcel ID #: 2000-00000.001; also identified as 1200 Airport

Drive # 1), as reported in the City’s grand list, increased from $22,847,300 to $47,015,700, a

difference of $24,168,400. See Ex. I. According to the South Burlington Board of Civil Authority’s

most recent decision, the total assessed value of all of Taxpayer’s real estate located in the City is

$75,668,700. See Decision of Board of Civil Authority (Aug. 28, 2014) (filed with court Dec. 14,

2015). To highlight the disparity between the parties, Taxpayer claims that the total grand list value

determined by the Board of Civil Authority is incorrect, and that the correct “equalized market

value” for all of its property in the City for ad valorem tax purposes is $7 million. See Ex. EE

(Appraisal of George Silver); see also Ex. 6 to South Burlington’s SMF (Burlington’s Answers to

South Burlington’s Interrogatories) at 3.




                                                  2
           Taxpayer acquired at least 130.2 acres that make up the airport property in conformity with

5 V.S.A. §§ 751–753. See Burlington’s SMF ¶ 8; Ex. E and F.3 Those statutes provide for state

matching funds for the acquisition of property to be used for airport development, and are a

prerequisite to the application of the taxation scheme provided in 5 V.S.A. § 754. Taxpayer has

submitted evidence that land acquired since the enactment of the predecessors to sections 751–753

pursuant to its Airport Improvement Program (AIP program) has been funded with a combination

of federal, state, and local dollars. See Burlington’s Resp. to South Burlington’s Statement of

Additional Facts ¶ A; Ex. H (Aff. of Robert McEwing ¶ 11). The parties dispute whether § 754 is

applicable to airport property acquired with any federal funds, a purely legal question which will

be addressed below.

           A number of improvements on the airport property are leased by Taxpayer to third parties,

and have been set in the grand list by the City as taxable:

       (a) 15 Eagle Drive (facility where Pratt & Whitney performs engine services on
           aircraft, including general aviation, commercial, charter, and fractional ownership
           aircraft, whose owners/pilots visit the facility for maintenance, repair, or engine
           refurbishment);

       (b) 73 Customs Drive (FedEx facility which provides air shipping of packages for
           customers);

       (c) 1120 Airport Drive (“South Hangar” and “T-Hangars”) (provides leasing of aircraft
           storage space to private aircraft owners);

       (d) 1130 Airport Drive (former terminal building);4 and

       (e) 1150 Airport Drive (“North Hangar”) (providing rental of hangar space to private
           aircraft owners and rental of office space to commercial tenants, including a fishing
           equipment manufacturer and two general contractors).



3
    The City’s objection to and denial of this fact is addressed later in the decision.
4
    The City is not seeking partial summary judgment as to whether it properly treated 1130 Airport Drive as taxable.



                                                               3
See South Burlington’s SMF ¶¶ 7–12.5 Taxpayer has not conducted a separate appraisal of any of

those improvements. 

For the tax years in question, the City has not assessed taxes on

certain improvements at the airport, including the airport terminal, control tower, parking garage,

and the Heritage Aviation fixed based operator facilities at 228 and 265 Airport Drive. 

Burlington Community Development Corporation (BCDC), not the City of Burlington, is the

owner of the improvements/building located at 265 Aviation Avenue. See South Burlington’s

Statement of Additional Facts ¶ C. BCDC is a non-profit corporation that is a separate entity from

Taxpayer. 

In the lease agreements by which Taxpayer leases land to the Burlington

Community Development Corporation (BCDC) (which subleases to Heritage Aviation, Inc.),

Federal Express, Pratt & Whitney, and SASO (Continental Express), Taxpayer and each lessee

agreed that the lessee would pay real estate taxes as may be applicable to the leased premises. 

         The airport is a Federal Aviation Administration (FAA) Part 139 certified airport and is

classified as a primary small hub airport in the National Plan for Integrated Airport Systems.

Burlington’s SMF ¶ 9. As such, it is eligible to receive federal grant funds for capital improvements




5
  The parties dispute whether the uses of these private leaseholds are primarily “public,” which appears to be a mixed
question of law and fact. The court addresses that dispute later in the decision. The parenthetical information provided
in the above list is for background purposes.
6
  The City alleges that Taxpayer has “no evidence to contradict the values set in the grand list” for the listed
improvements. Taxpayer concedes only that it has not undertaken separate appraisals of those improvements, and
contends that it does not have the burden to prove that taxation of the improvements is improper, and that the
improvements are not taxable under 32 V.S.A. § 3659 as a matter of law. See Burlington’s Resp. to South Burlington’s
SMF ¶ 8.
7
  Taxpayer claims that the City has, in fact, taxed “some of Heritages’s FBO facilities.” See Burlington’s Resp. ¶ 6.
However, to support this contention, Taxpayer cites only to paragraphs 11 and 12 of its Response, which do not
indicate that the Heritage Aviation fixed base operator facilities located at 228 and 265 Airport Drive were taxed.
Thus, the City’s fact is deemed admitted.



                                                           4
and land acquisitions, including former residential properties in furtherance of its FAA-approved

Noise Compatibility Program (NCP). 

1992 and as of April 1, 2012, Taxpayer purchased approximately 121

residential properties8 located west of Airport Drive with federal grant funds under the Noise

Compatibility Program. See South Burlington’s SMF ¶¶ 14–15. The program provides for the

voluntary sale of residential homes located within a certain day-night average (“dnl”) noise contour

of the airport. See 

Some of the homes acquired were located within the 70 dnl noise

contour, while some were within the 65 dnl noise contour. 

All or substantially all of the

residential properties had homes on them at the time Taxpayer acquired them. See 

To

purchase property under the Noise Compatibility Program, a requirement is that “[e]ligible

property owners will be paid fair market value for their property at its highest and best rate, and

provided relocation assistance in accordance with the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970 . . . .” See 

Burlington’s Resp. ¶ 18; Ex. 13 (June

19, 2008 FAA Record of Approval for Recommended Noise Compatibility Program Revision).

The highest and best use determined by Taxpayer’s appraiser, George Silver, for purposes of

setting the fair market value and purchase price of residential properties acquired under the Noise

Compatibility Program, was “residential use” when considered either as vacant land or as

improved. See South Burlington’s SMF ¶ 19.9




8
    The residential properties are also referred to throughout this decision as “noise lots.”
9
 Taxpayer disputes this fact as incomplete, noting that the appraisals are “required to be performed and reviewed in
connection with Taxpayer’s NCP in order to establish an appropriate purchase price for those properties.” Burlington’s
Resp. ¶ 19. Taxpayer also adds that those appraisals “presume a hypothetical condition that the presence of the Airport
does not influence the market value of those properties and that the Airport was not proposing any changes or
expansion of its current operation. Under those hypothetical conditions, it is appropriate to conclude that their highest
and best use was for residential use.” 

KK (Aff. of George Silver) ¶¶ 4–6). The court addresses the
admissibility of the Silver affidavit supporting that hypothetical condition later in this decision.


                                                              5
         As of April 1, 2012, of the approximately 121 residential properties acquired by Taxpayer

under the Noise Compatibility Program, about 55 still contained houses, while 66 had been

demolished or moved off site. South Burlington’s SMF ¶ 20. Because the residential properties

were acquired with FAA grant funds, Taxpayer is obligated to honor certain grant assurances with

respect to those properties. See 

Burlington’s SMF ¶ 10. For instance, any attempt by

Taxpayer to dispose of such land must “ensure that such land will only be used for purposes which

are compatible with noise levels associated with operation of the airport.” Burlington’s SMF ¶ 12;

Ex. G at 10. That assurance provides:

                  21. Compatible Land Use. [Burlington] will take appropriate action,
                  to the extent reasonable, including the adoption of zoning laws, to
                  restrict the use of land adjacent to or in the immediate vicinity of the
                  airport to activities and purposes compatible with normal airport
                  operations, including landing and takeoff of aircraft. In addition, if
                  the project is for noise compatibility program implementation, it will
                  not cause or permit any change in land use, within its jurisdiction,
                  that will reduce its compatibility, with respect to the airport, of the
                  noise compatibility program measures upon which Federal funds
                  have been expended.

South Burlington’s SMF ¶ 22; Ex. 16. Although the FAA grant assurances do not strictly prohibit

residential use of the noise lots, Taxpayer states it would not be financially feasible for it to now

allow residential development or use of those properties, because it would have to repay all its

federal grant funds. See 

Burlington’s Resp. ¶ 23.

         Many single and multi-family residential properties within the 65 dnl noise contour remain

owned and occupied by persons other than Taxpayer. 

Homeowners who sell to Taxpayer

are permitted to remain in their homes for 90 days after closing. 

All of the residential


10
  In paragraph 24 of the City’s statement of facts, undisputed by Taxpayer, the City refers to a “65 dB contour.” The
court assumes the City meant to refer to “dnl” rather than “dB,” as it referred to “dnl” earlier in its facts in describing
the day-night average noise contour within which residential properties acquired under the Noise Compatibility
Program were located.



                                                            6
properties are located within the City’s Residential 4 (“R4”) zoning district. 

According to

South Burlington Land Development Regulations, permitted uses within the R4 district are

residential, places of worship, and in-home day cares. 

Permitted conditional uses include

assisted living, education, and bed & breakfast. Id.11 Deeds for the conveyance of residential

properties to Taxpayer include no use restrictions. 

Taxpayer has not conveyed title or an

interest in any of the residential properties to another party. 

         As a recipient of federal funds, the airport must comply with additional FAA Airport Grant

Assurances, which require that Taxpayer

             a. Make the airport available for public use on reasonable terms and
                without unjust discrimination;
             b. Maintain a fee and rental structure for facilities and services which
                will make the airport as self-sustaining as possible; and
             c. Ensure that all revenues generated by the airport will be used only
                for:
                i.     Capital and operating costs at the airport;
                ii.    The local airport system;
                iii.   Other local facilities owned by Burlington directly and
                       substantially related to the actual air transportation of
                       passengers or property; and
                iv.    For noise mitigation purposes on or off the airport.

Burlington’s SMF ¶ 10; Ex. H and G. Taxpayer must reinvest any net revenue back into the airport

and cannot divert any such revenue into Taxpayer’s general municipal fund to pay for non-airport

governmental services. See Burlington’s SMF ¶ 13; Ex. D, G, and H. In the fiscal year ending June

30, 2010, the airport operated at a loss of more than $1.3 million. See Burlington’s SMF ¶ 14; Ex.

C.

         The grant assurances further obligate Taxpayer to “make the airport available as an airport

for public use on reasonable terms and without unjust discrimination to all types, kinds and classes



11
  The parties dispute whether the regulations prohibit “all other uses in the R4 district.” See South Burlington’s SMF
¶ 27; Burlington’s Resp. ¶ 27. This is addressed later in the decision.


                                                          7
of aeronautical activities, including commercial aeronautical activities offering services to the

public at the airport.” Burlington’s SMF ¶ 15. Taxpayer must also make available without charge

to the federal government airport facilities “developed with federal financial assistance” and “all

those usable for landing and takeoff of aircraft.” 

The airport is open to “anyone and

everyone” who wishes to travel or ship cargo by air. 

Taxpayer does not discriminate

amongst potential airport tenants. 

The parties dispute whether all of the airport tenants

provide “services that are reasonably necessary or essential to the efficient operation and

maintenance of the airport,” and the City objects to the alleged “conclusory statement” supporting

that point by Robert McEwing, the former Director of Planning and Development at the airport.

South Burlington’s Resp. ¶ 18. This goes to the public use issue, which will be addressed

later in the decision.

         In valuing the airport property, the City’s expert witness Michael A. Hodges applied

different appraisal methods to two different parts of the property. This resulted in a per acre value

for the part denoted as “Area 2” that is five times the per acre value of “Area 1.” “Area 1” consists

of the “main airport site” or almost 98% of the total acreage, while “Area 2” consists of “developed

private leaseholds for commercial aeronautical uses.” Burlington’s SMF ¶¶ 22–23; South

Burlington’s Resp. ¶¶ 22–23. Hodges points to no difference in topographical features between

Area 1 and Area 2 that would explain the difference in value. Burlington’s SMF ¶ 24. Instead, he

justifies treating the two areas differently because of the existence of commercial leases for Area

2 and the designation of the area for commercial aviation uses. 

The rental data relied upon

by Hodges for his Area 2 value assumes that a tenant would pay $0.35 per square foot per year.

In his original report, Hodges included the noise lots in Area 1 along with the main airport


12
  The City’s affidavit supporting its denial of this fact contains inadmissible hearsay. See South Burlington’s Resp. ¶
19;Ex. 21 ¶¶ 6–7.


                                                          8
parcel, but a supplemental report excluded the 26.45 acres of the noise lots from that analysis

because he was requested to do so by the City’s attorneys. 

South Burlington’s Resp.

¶ 27. Contrary to Hodges’ original report, South Burlington Assessor R. Todd LeBlanc claims that

the noise lots should continue to be assessed as residential. Burlington’s SMF ¶ 29. LeBlanc opined

that soundproofing, as an alternative to removal of the structures, could possibly be implemented

on the existing houses on the noise lots to comply with the Noise Compatibility Program. 

South Burlington’s Resp. ¶ 30.

         In the value opinion upon which Taxpayer relies in this case, appraiser George Silver

determined that the highest and best use of all the land he appraised is “industrial[,] commercial[,]

or transportation development.” South Burlington’s SMF ¶ 30. Mr. Silver’s analysis of the

residential properties is based on his treating all the land of such properties as if they were

undeveloped and part of the main airport parcel. 

The only evidence Taxpayer adduced as

to value of the residential properties is the appraisal performed by Mr. Silver, which contains no

information as to what residential acreage is worth in the City and no information as to the value

of the improvements located on close to half the residential properties as of the valuation date April

1, 2012. 

According to the City’s Assessor, residential property in the City has a typical

value of $280,000 per acre, although Taxpayer contends that the City’s Assessor has no evidence

of that value other than the airport’s purchases of properties pursuant to the Noise Compatibility

Program. 

Burlington’s Resp. ¶ 33. Appraised fair market values at the time of Taxpayer’s

acquisition of each of the residential properties, and the purchase prices paid by Taxpayer for them,

are set forth in Taxpayer’s discovery responses. See South Burlington’s SMF ¶ 34; Ex. 20.13



13
  Taxpayer claims that the fair market value listed in those discovery responses “is based upon a hypothetical
condition that the Airport is not adjacent to the property.” See Burlington’s Resp. ¶ 34; see also 

19. This is
addressed later in the decision.


                                                           9
       There is no other single landholding “similar” to Burlington International Airport in the

City. See South Burlington’s Statement of Additional Facts ¶ B; Burlington’s Resp. ¶ B.

                                  SUMMARY OF THE ISSUES

       The legal dispute in these consolidated cases involves the application of Vermont taxation

statutes. These are 32 V.S.A. § 3659, which addresses the taxation of municipally-owned

extraterritorial property, and 5 V.S.A. §§ 751–754, which deal more specifically with the taxation

of airports located in one municipality and owned by another, and situated on land acquired with

certain state financing. Both parties have moved for partial summary judgment.

                                             DISCUSSION

                                        I.     Burden of Proof

       The parties disagree about who bears the burden of proof, each arguing that it rests on the

other. The question here is complicated by the fact that the disputes include both (1) what tax

statute applies, and (2) how valuation is to be calculated under the statutes.

       The standard rule as to valuation is as follows:

               The burden of proving the illegality of an assessment is on the one
               who contests its validity, generally the taxpayer, and it is incumbent
               upon the taxpayer to sustain his or her contentions by adequate
               proof. Whether property has been overvalued for property tax
               assessment purposes is a question of fact for the trier of fact.

16 McQuillin Mun. Corp. § 44:162 (3d ed.). Vermont law is consistent with this general

proposition. In tax appeals pursuant to 32 V.S.A. § 4467, “[t]he burden of persuading the trier of

fact that his property is over-assessed, which is the underlying issue, remains with the taxpayer

throughout the entire proceeding.” Dewey v. Town of Waitsfield, 

, ¶ 2, 

(2008) (quoting Kruse v. Town of Westford, 

, 372 (1985)); see also Alison v. Town

of Rochester, 

, 527 (1988); Elliott v. Town of Barnard, 

, 311 (1989).




                                                 10
        Likewise, where a taxpayer claims an exemption, “[t]he burden of proof is upon the one

who claims exemption.” 16 McQuillin Mun. Corp. § 44:115 (3d ed.); see also Our Lady of Ephesus

House of Prayer, Inc. v. Town of Jamaica, 

, ¶ 14, 

(“in construing tax

exemptions, the burden is on the person claiming the benefit of the exemption . . . and the

exemption statute must be strictly construed against that person”) (citing In re Aloha Found., Inc.,

, 240 (1976); In re Abbey Church, 

, 229 (1984)). “This same principle is

applicable to those seeking preferential tax classification,” in addition to those seeking a total

exemption. Estell Manor City v. Stern, 

, 416 (1995) (citing MacMillan v. Taxation

Div. Director, 

(App. Div. 1981)); see also Gramercy N. Associates v.

Biderman, 

, 494 (App. Div. 1st Dep’t 1991) (taxpayer has the burden of proof

when seeking partial tax exemption).

        The reason for this is that “[i]t is the general policy of the law to make all taxable property

share the common burden of taxation.” 71 Am. Jur. 2d State and Local Taxation § 207. Thus, tax

exemption is considered a “privilege,” is “never presumed,” and such property “must clearly fall

within the boundaries of the provision granting the exemption.” 16 McQuillin Mun. Corp. § 44:80

(3d ed.).

        The question becomes more complicated in a case such as this, however. “[T]he rule has

also been stated that where state policy is to exempt property, the burden is on the taxing authority

to establish taxability.” 

Airport Authority v. Lehigh County Bd.

of Assessment Appeals, 

(2005); In re Deromedi, 

(Wyo. 2002); In re

Town of Thermopolis From a Decision of State Board of Equalization—2000 Property Valuation

(Town of Thermopolis, Parcel 2486-Old West Wax Museum), 

(Wyo. 2002)); cf. 71

Am. Jur. 2d State and Local Taxation § 207 (“any claim for exemptions asserted by the owner,




                                                  11
other than a public governmental body, must rest upon some definite provision of law granting

him or her a tax exemption”) (emphasis added).

       Muddying the waters further is the fact that this is municipally-owned property located in

another town. In New England Power Co. v. Town of Barnet, the Supreme Court outlined the

various types of burdens in “§ 4467 litigation,” which it appeared to distinguish from “§ 3659

litigation.” 

, 507 (1976). The first is the standard tax appeal challenging valuation. 32

V.S.A. § 4467. The second involves the taxation of municipal property located in another town.

32 V.S.A. § 3659. The Court first observed that in Vill. of Morrisville Water & Light Dep’t v.

Town of Hyde Park, 

(1973) (Morrisville II), it had held that under section 3659, “the

burden of proof in establishing substantial compliance with all statutory requirements resided with

the taxing authority.” New England 

(citing Morrisville 

).

The Court then observed that in a more recent opinion it had noted that “§ 4467, unlike § 3659,

deals with property normally subject to taxation, and we intimated that the burden of proof under

section 4467 might be on the taxpayer rather than on the taxing authority.” 

of

Morrisville Water & Light Dep’t v. Town of Hyde Park, 

(1976) (Morrisville III)). As

the Court noted in Morrisville III, Ҥ 3659 deals with the taxation of property ordinarily exempt,

while § 4467 deals with property normally subject to 

.

       The New England Power Court then outlined several general principles applicable to tax

appeals. The grand list value is presumed valid and legal. When the town introduces the appraisal

of the taxpayer’s property into evidence in section 4467 litigation, “the burden of going forward

with the evidence to overcome the presumption [of validity] resides with the moving 

. That burden “is satisfied by the introduction of credible evidence fairly and reasonably

tending to show that the property was assessed at more than fair market value or that the listed




                                                12
value exceeded the percentage of listed value actually applied to the general mass of property in

the community.” 

evidence is presented, the presumption disappears, and the town

must then “meet its burden of justifying the appraisal by producing evidence demonstrating

substantial compliance with constitutional and statutory provisions relative to uniformity as well

as fair market value.” 

Court cautioned: “It is to be emphasized, however, that the

burden of persuasion as to the contested issues in a § 4467 hearing remains at all times with the

taxpayer.” 

see also Beach Properties, Inc. v. Town of Ferrisburg, 

, 375

(1994).

          Taxpayer argues that the City has the burden of proof on establishing the airport’s taxability

and on all other contested issues. The City contends that Taxpayer, as the property owner, has the

initial burden to prove that the parcels under appeal are subject to one of the special taxing statutes

at issue here: (1) which, if any, parcels it acquired in conformity with 5 V.S.A. § 751–54 or its

predecessor; and (2) which, if any, of the parcels and improvements it owns that are not subject to

section 754 are devoted to a public use so as to be eligible for treatment under section 3659.

          Taxpayer cites Morrisville II, 

, 594 (1973), where a municipal water and light

department challenged the validity of the property tax assessment of its property located in a

different town. The municipal property owner argued that taxation of its property was governed

by 32 V.S.A. § 3659. The trial court dismissed the case, concluding that the property owner had

not shown it was entitled to relief under that statute, but the Supreme Court reversed, finding that

that holding “incorrectly places the burden of proof on the plaintiff [property owner].” 

However, that decision referred to the taxing authority’s burden to justify its taxation after the

property owner had already established the statute’s applicability. “[P]laintiff had established that




                                                   13
the taxation of its land was governed by 32 V.S.A. § 3659 . . . .” 

owner had the

first burden, and the taxing authority the second.

       Taxpayer offers two out of state citations in support of its argument that the taxing authority

has the burden of proof on all issues here. See Norwegian Twp. v. Schuylkill Cty. Bd. of

Assessment Appeals, 

, 1129–31 (Pa. Commw. Ct. 2013) (while taxpayer ordinarily

has burden to establish tax exemption, “[t]he burden of proof of liability for taxes is on the taxing

authority where the real estate in question is owned by a governmental body”); City of Cheyenne

v. Bd. of Cty. Comm’rs of Laramie Cty., 

, 709 (Wyo. 1971) (in declaratory judgment

action by city against county involving status for tax purposes of buildings located upon

municipally owned and operated airport, “[t]he burden is on the taxing authority to establish

taxability”). In both cases, it was already established that the property was municipal and thus

presumptively non-taxable. The burden of the taxing authority was to show that the use was non-

public, an exception to the presumption of non-taxability. See also In re Deromedi, 

,

1153–54 (Wyo. 2002) (burden is on the taxing authority to establish taxability “where the

established policy of the state is to exempt publicly owned property . . . .”); Lehigh-Northampton

Airport Auth. v. Lehigh Cty. Bd. of Assessment Appeals, 

, 669 (2005) (state and

municipal property is presumptively immune from taxation and remains unaffected by local taxing

power “absent express statutory authorization to the contrary”).

       Other jurisdictions have held that even when the taxpayer is a municipality, it has the

burden of proof to establish a tax exemption. See Mikos v. City of Sarasota, 

, 85

(Fla. Dist. Ct. App. 1994) (“When a municipality claims an exemption, it has the burden to clearly

show its entitlement to the exemption and any exemption must be construed against the property

owner.”); Westmarc Cablevision, Inc. v. Bair, No. 03-0667, 

, *3 (Iowa Ct. App.




                                                 14
May 25, 2005) (“The party claiming the exemption, here [a municipal communications utility],

has the burden to show that the property should not be taxed.”); City of Lawrenceville v. Maxwell,

, 49 (1955) (municipality, which claimed that its property was exempt from taxation,

had burden of proving by competent evidence that the property was being used exclusively for

municipal or public purposes).

        The Vermont Supreme Court has remarked that it is “contrary to the policy of this State”

to subject municipal property to taxation “absent the most positive legislative enactment.” Swanton

Village v. Town of Highgate, 

, 322 (1973). Though the legislature has created such

positive legislative enactments, see, e.g., No. 38 of the Public Acts of 1912; 32 V.S.A. § 3659; 5

V.S.A. § 754, those exceptions do not change the general policy against taxation of municipal

property. Other Vermont case law suggests, but does not definitively say, that Taxpayer has the

burden of proof as to the applicability of a particular taxation statute. See Morrisville 

–95. Though section 3659 must be “strictly construed” against the taxing authority because it

taxes property “otherwise exempt,” Morrisville 

–94, the Supreme Court has never

suggested that the taxing authority bears the burden to prove that a particular preferential tax statute

applies to a municipal taxpayer.

        The case law and authorities do not offer a clear answer. The court concludes that in

applying the legal principles to the complicated situation here, the best way to articulate the

burdens of proof in this case is as follows, from the most general to the most specific. First, the

most general rule is that everyone is subject to taxation, because “[i]t is the general policy of the

law to make all taxable property share the common burden of taxation.” 71 Am. Jur. 2d State and

Local Taxation § 207.




                                                  15
           However, that rule is subject to another general policy that municipal property, put to a

public use,14 is not taxable. See 

(stating it is “contrary to the policy of this

State” to subject municipal property to taxation “absent the most positive legislative enactment”);

Morrisville 

(describing municipally owned property as “property ordinarily

exempt” from taxation); Morrisville 

–94 (section 3659 must be “strictly

construed” against the taxing authority because it taxes property “otherwise exempt”). The

taxpayer-municipality invoking this policy must prove that it is a municipality which owns the

subject property, and that its property is put to a public use.15 In this case, there is no dispute that

Taxpayer is a municipality which owns the property in question; the only issue here is whether the

property is put to a public use.16 It would be nonsensical to make the taxing authority bear the

burden here, as any taxpayer could then claim it is a municipality with land subject to public use,

thus requiring the taxing authority to disprove those facts. Furthermore, the taxpayer, as property

owner, would likely be in a much better position to produce evidence indicating how its own real

estate is used. Cf. AIG Ins. Mgmt. Servs., Inc. v. Vermont Dep’t of Taxes, 

, ¶ 18 n.2

(reasonable to place burden on business in tax appeal because “evidence relevant to a business’s

operations is uniquely available to that business”). If the taxpayer-municipality meets its burden



14
     The public use requirement is discussed in a later section of this decision.
15
   The court notes that the Pennsylvania and Wyoming cases cited by Taxpayer state that the taxing authority must
show a non-public use to establish an exception from the general rule of immunity for municipal property. See
Norwegian 

–31; Lehigh-Northampton Airport 

; 

–54; 

. However, the court believes the accurate expression of that presumption under
Vermont law is that it includes municipal property that is put to a public use. The mere fact that a property is
municipally owned, without considering the use to which it is put, does not establish that presumption. The fact of
municipal ownership and the fact of public use necessarily go together, and therefore must be established together, by
the party invoking the presumption. Following the logic of the Pennsylvania and Wyoming cases cited above would
artificially separate two required elements of the presumption against taxation for municipal public-use property.
16
  The court observes that in some cases, the taxpayer’s status as a municipality may be at issue. See, e.g., Int’l Water
Co. v. Town of Holland, 

, 585 (1993) (town’s argument that taxpayer was a municipality “fails because
there is no indication at all in the record that IWC is a municipality”). That is not the case here.


                                                             16
here, then the property is presumptively non-taxable. If not, the property is subject to full fair

market value taxation.

       Once a taxpayer establishes it is subject to the non-taxation presumption applicable to

municipal “public use” property, the next question is whether that presumption goes away because

of specific statutory provisions permitting taxation. In Vermont, section 3659 provides an

exception to the general policy of non-taxation for municipal property put to a public use. That

exception applies to municipal property located in another municipality. Because this statute taxes

municipal property, “contrary to the policy of this State,” 

, the taxing

authority bears the burden to prove that such property falls under section 3659. That is, the taxing

authority must prove that the subject property is located within its own municipal limits. If it meets

this burden, the “ordinarily exempt” property is taxable according to the formula in section 3659.

If not, the property is not taxable. Here, there is no question that all the disputed real estate lies

within the boundaries of the City.

       However, a further exemption to the section 3659 exception exists in 5 V.S.A. § 754, and

applies if the land was purchased in conformity with certain state financing as articulated by

sections 751–753. The taxpayer invoking section 754 must prove that its property was acquired in

conformance with sections 751–754. As with the public use requirement, it would make no

practical sense to require the taxing authority to disprove the special financing of the property,

because the property owner would naturally have more thorough and accurate records as to how it

financed its purchase of the property. Cf. AIG, 

, ¶ 18 n.2. If the taxpayer meets its

burden, the property is subject to more favorable tax treatment under section 754. If not, the

property remains subject to section 3659 taxation.




                                                 17
        Lastly, to the extent Taxpayer challenges the actual valuation of “public use” property as

placed in the grand list, the taxing authority has the burden to show statutory compliance, including

that the subject properties were taxed the same as “similar property” in the municipality under

section 3659. See Morrisville 

. Thus, the City must show some evidence of the

value of “similar property.” If so, the presumption of validity for the listed value applies, and

Taxpayer must come forward with its own evidence of value. See New England 

–08. Assuming the case reaches that point, taxability would already have been established, and

so the normal rules regarding tax appeals would apply. If Taxpayer challenges the grand list value

of non-public use property, however, or property it owns that is otherwise not entitled to a

presumption of non-taxability, then Taxpayer must present its own evidence of value as to those

properties that is contrary to the grand list value. 

Rule of Construction for Municipal Taxation Statutes

        In addition to the burden of proof, the parties also dispute the rule governing how to

construe 5 V.S.A. § 754 and 32 V.S.A. § 3659. While Taxpayer argues these statutes should be

strictly construed in favor of the taxpayer because they permit taxation of property normally

exempt, the City argues the opposite.

        In light of the above discussion regarding the burden of proof, only a brief analysis is

necessary here. It is “contrary to the policy of this State” to subject municipal property to taxation

“absent the most positive legislative enactment.” 

. Section 3659 must be

“strictly construed” against the taxing authority because it taxes property “otherwise exempt,”

Morrisville 

–94, and there is no reason to think the same rule would not apply to

section 754, another statute which taxes property otherwise exempt. The case law is clear. To the




                                                   18
extent that statutory construction is necessary, the court will apply that rule, rather than the rule

that tax exemptions are strictly construed against the taxpayer.

                                   III.   Public Use Requirement

       The City argues that both 5 V.S.A. § 754 and 32 V.S.A. § 3659 contain a public use

requirement and that Taxpayer can only receive special tax treatment under those statutes if the

property is primarily dedicated to a public use. Taxpayer contends that neither statute contains

such a requirement, nor can it be implied through the legislative history or case law.

       Section 754 provides:


               Title to land purchased in conformity with sections 751-753 of this
               title shall vest entirely in the state, jointly in the state and the local
               governmental units, or entirely in the local governmental units as in
               each case is most proper. Land so acquired shall not be taxable, but
               when the title vests in the state or when the title is held jointly by
               the state and a town or towns, and the site is located in a different
               town or when the title vests in one or more towns and the site exists
               in a different town, then the holders of the title shall make an annual
               payment, instead of taxes, to the town in which the site is located of
               a sum equal to the tax otherwise assessed on the land alone.

       Section 3659 provides:

               Land and buildings of a municipal corporation, whether acquired by
               purchase or condemnation and situated outside of its territorial
               limits shall be taxed by the municipality in which such land is
               situated. Said land shall be set to such municipal corporation in the
               grand list of the town or city in which such real estate is located at
               the value fixed in the appraisal next preceding the date of acquisition
               of such property and taxed on such valuation. The value fixed on
               such property at each appraisal thereafter shall be the same per acre
               as the value fixed on similar property in the town or city.
               Improvements made subsequent to the acquisition of the land shall
               not be taxed; except that an additional tax not to exceed 75 percent
               of the appraisal of the land may be levied in lieu of a personal
               property tax. Electric utility poles, lines and pole fixtures owned by
               a municipal utility lying beyond its boundaries shall be taxed at
               appraisal value as defined in section 3481 of this title.




                                                  19
       Neither statute contains an explicit public use requirement. Therefore, if such a requirement

exists, it must be implicit, or derived from some source other than the plain statutory language. It

is instructive to review the rules of statutory construction, which demonstrate that legislative intent

may not necessarily be consistent with the literal meaning of the statutory language:

               When interpreting statutes, the bedrock rule of statutory
               construction is to determine and give effect to the intent of the
               Legislature. We effectuate this intent by first examining the plain
               meaning of the language used in light of the statute's legislative
               purpose. If that plain language resolves the conflict without doing
               violence to the legislative scheme, there is no need to go further. But
               if the literal meaning of the words is inconsistent with legislative
               intent, the intent must prevail. Such inconsistency occurs if applying
               the precise wording of a statute produces results which are
               manifestly unjust, absurd, unreasonable or unintended, or conflicts
               with other expressions of legislative intent. The legislative intent is
               most truly derived from a consideration of not only the particular
               statutory language, but from the entire enactment, its reason,
               purpose and consequences. Finally, where there are similar statutes
               in other jurisdictions, we are also guided by the interpretations of
               those statutes.

Delta Psi Fraternity v. City of Burlington, 

, ¶ 7, 

(alterations in original)

(quotations and citations omitted); see also In re Carroll, 

, ¶ 9, 

(noting that

Vermont courts determine legislative intent by considering “the whole statute, the subject matter,

its effects and consequences, and the reason and spirit of the law”).

       The City contends there is a “fundamental principle that a municipally owned improvement

must be dedicated to a public use for limitations on taxation to apply.” South Burlington’s Mot.

for Partial Summ. J. at 31. To support this proposition, it cites Int’l Water Co. v. Town of Holland,

, 585 (1993) (mem.) (“taxing power granted by § 3659 must be ‘strictly construed’

because it is contrary to policy of state to subject property devoted to public use to general property

tax, absent ‘the most positive legislative enactment’”) (emphasis added) (quoting City of

Montpelier v. Town of Berlin, 

, 293 (1983)). Second, the City points the court to an



                                                  20
excerpt from an older case which, while it predates section 3659, offers a discussion of the basic

concept that municipal property must be dedicated to public use to qualify for special tax treatment:

               It has been repeatedly said in general discussions that property
               owned by municipal corporations cannot be taxed without express
               statutory authority, that the nature and purpose of taxation are such
               as preclude the idea of its being made a burden upon public property,
               and that tax laws will not be held applicable to municipal holdings
               unless the language positively requires it. These statements are
               doubtless made with reference to the general rule that a municipal
               corporation does not and cannot hold property except for public use.
               They certainly have failed to control when the courts have met with
               exceptional cases where the ownership was municipal, and the use
               distinctly private. . . . It is doubtless in recognition of this class of
               cases that most writers treat the rule as requiring not only municipal
               ownership, but appropriation to a public use. We are satisfied that
               under the doctrine of implied exemption, as applied to
               municipalities, the ultimate test is not municipal ownership, but
               public use, so that this doctrine gives the defendant no greater right
               than it has by our statute, and the question whether the use is public
               will be controlling under either branch of its claim.

Styles v. Vill. of Newport, 

, 163–64 (1904). Finally, the City cites an A.L.R. annotation

indicating that courts have consistently denied tax exemptions for airport operations that serve

private aircraft. See James L. Buchwalter, When Is Property Owned by State or Local

Governmental Body Put to Public Use So As to Be Eligible for Property Tax Exemption, 

, § 14(a), 14(b), 24(a), 24(b), 25 (originally published in 2003).

       In arguing that there is no public use requirement, Taxpayer notes unsurprisingly that such

public use language is “glaringly absent” from both sections 751–754 and section 3659.

Burlington’s Opp’n at 16. Taxpayer also argues that International Water, Styles, and 32 V.S.A. §

3802(4) (which dates back to the 1780s) make clear that the legislature knows how to explicitly

draft an exemption for public use, and that its failure to include such language in the later enacted

sections 751–754 and section 3659 demonstrates its intent to omit a public use requirement from

those statutes. Taxpayer further cites two out of state cases interpreting state provisions which are



                                                  21
silent on the public use issue. Finally, Taxpayer observes that a number of the cases listed in the

City’s A.L.R. citation are inapposite because they involve “tax exemption statutes with explicit

use-type requirements,” unlike sections 751–754 and 3659. See Burlington’s Opp’n at 17–18.

         The introduction to the annotation cited by the City provides that “[t]he annotation . . . does

not encompass cases discussing only whether the property is in fact owned by a governmental

body, or the taxation of governmental property where there is no ‘public use’ requirement for

gaining an exemption.” 

, § 1(a) (emphasis added). The threshold question here

is whether there is a public use requirement in the statutes, not, as is the focus of the annotation,

“whether property owned by a state or local governmental body is being put to a ‘public use,’ or

is used for a ‘public purpose,’ within the meaning of a constitutional or statutory exemption from

real property ‘ad valorem’ taxation.” Id.17 While the annotation demonstrates that many other




17
   Thus, the cases cited in the annotation do not address whether a property tax exemption statute that is silent on the
issue of public use contains an inherent or implicit public use requirement. Instead, they address whether the subject
property satisfies a public use requirement that is explicit in the statutory or constitutional provision. For instance,
City of Little Rock v. McIntosh, 

(1995) dealt with Ark. Const. art. XVI, § 5(b) (“The following property
shall be exempt from taxation: public property used exclusively for public purposes”); Town of Harrison v.
Westchester County, 

(1963) involved N.Y. Real Prop. Tax Law § 406 (McKinney) (“Real property
owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and
exempt from special ad valorem levies and special assessments . . . .”); the Iowa Supreme Court decision in City of
Osceola v. Board of Review of Clarke County, 

(Iowa 1992) focused on Iowa Code Ann. § 427.1
(West) (“The following classes of property shall not be taxed: . . . The property of a county, township, city, school
corporation, levee district, drainage district . . . when devoted to public use and not held for pecuniary profit”); an
Illinois appellate court in Du Page County Airport Authority v. Department of Revenue, 

(2d Dist.
2005) addressed 35 Ill. Comp. Stat. Ann. 200/15-160 (“All property belonging to any Airport Authority and used for
Airport Authority purposes . . . is exempt”); and a Florida appellate court decision, Greater Orlando Aviation Authority
v. Crotty, 

(Fla. Dist. Ct. App. 5th Dist. 2000), addressed the following state constitutional provision:
Fla. Const. art. VII, § 3 (“All property owned by a municipality and used exclusively by it for municipal or public
purposes shall be exempt from taxation”).

Only one case in the annotation might have construed a constitutional provision that was silent on the issue to require
public use for a tax exemption on municipal property to apply. However, that case involved a former provision of the
Florida Constitution that has since been amended or reorganized, and the exact language of that provision it is not
clear from the case. See Hillsborough Cty. Aviation Auth. v. Walden, 

, 195 (Fla. 1968). Further, the
Florida Constitution currently contains an express public use requirement. See Fla. Const. art. VII, § 3.



                                                          22
states have included a public use requirement in express statutory or constitutional provisions, that

does not answer the question here. See 

14(b), 24(a), 24(b), 25.

         Styles also does not resolve the 

–64. While it states the general

principle that municipally owned property is subject to tax exemption only if dedicated to a public

use, and demonstrates that Vermont has recognized that principle, it also predates both 5 V.S.A. §

754 and 32 V.S.A. § 3659. It does not answer the question of what the legislature intended when

the statutes were enacted.

         The Supreme Court remarked in City of Montpelier v. Town of Berlin, 

, 293

(1983)—later quoted in Int’l 

—that the taxing power granted by section 3659

is to be “strictly construed, as ‘[i]t is contrary to the policy of this State to subject its own property

or that of its municipalities, which is devoted to a public use, to a general property tax, absent the

most positive legislative enactment.’” (quoting Swanton Village v. Town of Highgate, 

, 322 (1973)) (emphasis added). In Swanton, from which the Court derived the “which is

devoted to a public use” language, the Court outlined the legislative history of what became

section 3659. That legislative history does not plainly indicate a public use requirement.18

However, the public use requirement has been at least alluded to by the Supreme Court as a general

principle, both before and after the enactment of the precursors to sections 754 and 3659. See Int’l

Water 

; City of 

; Swanton 

;




18
   Taxpayer claims that Swanton recognizes only that “municipally owned property is de facto devoted to a public
use,” and that the City’s argument “fails as a matter of grammar.” Burlington’s Mot. for Partial Summ. J. at 15 n.4.
Taxpayer observes that the phrase “which is devoted to a public use” is set off by commas, and that as a subordinate
clause “it modifies the preceding noun, namely municipal property.” 

is not clear the Supreme Court
intended that meaning. One of the earlier cases cited in Swanton states the same public use principle, but without the
comma: “[I]t is not the policy of the state to subject its own property, nor that of its municipalities which is devoted
to a public use, to a general property tax.” In re Downer’s Estate, 

, 174 (1928). Thus, it appears the extra
comma was added inadvertently years later in Swanton.


                                                          23
In re Estate of Taft, 

, 273 (1939); In re Downer’s Estate, 

, 174 (1928);

Styles, 

(1904).

       Nor do the two out of state cases cited by Taxpayer resolve the issue. See Town of Hanover

v. City of Lebanon, 

, 265 (1976) (holding that under a statutory amendment deleting

the requirement of use for public purposes, an affirmative showing of public use is not required of

a town seeking abatement of taxes on land properly owned by the town); Clark v. City of Tucson,

, 433 (1965) (holding that under Arizona constitutional provision which does not

contain any express limitations on tax exemption for public use, “property owned by a municipality

is exempt from ad valorem taxes regardless of the use made of the property”). The New Hampshire

case is inapposite. There, unlike here, the intent of the legislature was clear given the explicit

statutory amendment deleting “public use” language. The Arizona case seems more on point in

that it dealt with a constitutional tax exemption provision which was silent on the issue of public

use, see Ariz. Const. art. IX, § 2 (“There shall be exempt from taxation all federal, state, county

and municipal property”), though its analysis is limited. In that case, there was no indication that

the constitutional provision, when enacted, had changed a previous common law rule as to public

use requirements for tax exemptions. Though an earlier Arizona case had concluded that the

legislature had the power under the constitution to provide for the assessment and taxation of

private leasehold interests in municipal property, it also observed that “a careful examination of

[Arizona] statutes from early territorial days to the present time” revealed “no specific reference

to the taxation of leasehold interests of this nature.” Maricopa Cty. v. Fox Riverside Theatre Corp.,

, 412 (1941).

       While 32 V.S.A. § 3802(4) contains an explicit and total public use exemption under the

default taxation scheme, and the predecessor to that statute dates back to the 1780s, see




                                                 24
MacDonough-Webster Lodge No. 26 v. Wells, 

, ¶ 12, 

, the court deems

that of limited relevance in light of the Supreme Court’s subsequent recognition of the public use

requirement as a general principle in 1904. See 

–64. The court further notes

that “[g]enerally, . . . it is unrealistic to assume that a legislature has in mind all prior acts relating

to the same subject whenever it enacts a new statute. The process of enactment may have

considered some, but not all, related statutes.” 2B Sutherland Statutory Construction § 51:1 (7th

ed.).

         In outlining the legislative history of sections 754 and 3659, Taxpayer claims that history

indicates that the legislature had several opportunities to impose an express public use requirement

onto those statutes, and did not do so. Indeed, Taxpayer contends, the legislature specifically

rejected two proposed changes that would have done so.

         Courts frequently rely upon legislative history where the meaning of a statute cannot be

determined from the words alone. In re Dep’t of Bldgs. & Gen. Servs., 

, ¶ 14, 

. In doing so, however, courts “must be cognizant of the quality of the evidence of legislative

intent.” 

“the remarks of a witness at a committee hearing are accorded little weight

in determining the intent of the legislature in enacting a statute.” State v. Madison, 

,

373 (1995). Rather, legislative history is helpful only where it clearly shows the intent of the

legislature. 

         While the legislative history here shows a tortured history of changes and proposed changes

to the precursor to 32 V.S.A. § 3659 between 1943 and 1949, see Burlington’s SMF ¶¶ 42–55,

none of the various proposals along the way included “public use” language, so the court can draw

no clear conclusion from its mere omission. To similar effect is the legislative history of 5 V.S.A.

§ 754.




                                                    25
       The appropriate analysis of the legislative history is whether the enactment of the statutes

and their subsequent amendments effectively abrogated the common law as articulated in Styles

by eliminating a public use requirement for tax exemption of municipally owned property. “The

common law is changed by statute only if the statute overturns the common law in clear and

unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute

attempts to cover the entire subject matter.” Villeneuve v. Powers, 

, 332 (1992)

(quoting Langle v. Kurkul, 

, 516 (1986)). Further, in construing a statute, courts “are

not to presume that the [L]egislature intended to work any change in the common law beyond what

the statute itself declares in either express terms, or by unmistakable implication.” 

original) (quoting Record v. State Highway Board, 

, 236–37 (1959)); see also E.B.

& A.C. Whiting Co. v. City of Burlington, 

, 464 (1934) (“rules of the common law are

not to be changed by doubtful implication, nor overturned except by clear and unambiguous

language”).

       The Vermont Supreme Court has repeatedly found that statutory enactments have not

replaced the common law by implication. For example, in State v. Hazelton, 

, ¶¶ 29–

31, 

, the Court concluded that while 13 V.S.A. § 3251(3) did not explicitly exclude

minors from entering into voluntary agreements to engage in sexual acts, it nonetheless did “not

alter the common law making such consent by underage children a legal impossibility.” 

The Court wrote:

               The statute simply fails to address the issue of a minor’s legal
               capacity to consent, and the definition is not inconsistent with a
               minor’s incapacity to consent under common law. Since enactment
               of this statutory scheme in 1977, this Court has continued to
               recognize the application of common law impossibility of consent
               by underage minors.

Villeneuve, 

, plaintiffs brought an action seeking damages for defendants’

failure to remove a beaver dam on their adjoining property. 

Although the trial court

dismissed the action, concluding that plaintiffs’ common law rights were abrogated by 10 V.S.A.

App. § 43(e) and that plaintiffs were left to their statutory remedies, the Supreme Court reversed.

The Court held that “there is nothing in the text of § 43(e) that denotes or implies abrogation of

common-law actions, and we have no reason to assume that it overrode preexisting common-law

rights.” 

“In sum, in the absence of statutory intent in § 43(e) to substitute an

administrative permit process for existing common-law actions, the need for an administrative

permit to remove a beaver dam did not by itself relieve defendants of whatever common-law duty

they might have to plaintiffs with respect to the beaver dam on their property.” 

       Similarly, in In re Estate of Lamore, 

, ¶¶ 9–12, 

, a probate statute

did not expressly state what would happen if the “next of kin” ordinarily entitled to administration

of an estate were a minor. The Court noted that, in this situation, “we fall back on the notion that

ambiguous provisions ‘do not change common law rules; the intent to do so must be expressed in

clear and unambiguous language.’” 

(quoting Swett v. Haig’s, Inc., 

, 5 (1995)).

Because, “as in Hazelton,” the common law rule at issue in Lamore addressed an issue that the

statute “simply fail[ed] to address” and was “not inconsistent with the statute,” the Court applied

the common law rule to interpret the statute and held that the minor’s guardian would step into the

shoes of the minor to administer the estate. 

Court also noted that its holding was

consistent with courts in other jurisdictions. 

12.

       Applying the factors from Villeneuve and Langle, the court concludes that the statutes here

did not abrogate the common law. The statutes simply fail to explicitly address the public use

requirement, and imposing such a requirement is not inconsistent with the statutes. Moreover, there




                                                  27
is nothing to suggest that these statutes were intended to restate every possible issue related to

taxation of municipally owned property. See 15A Am. Jur. 2d Common Law § 15 (common law

abrogated by statute where statute “revises the common law and is clearly designed as a substitute

therefor” or “purports to be a revision of the whole subject,” while “partial codification of a

common-law rule does not necessarily abolish such portion of the rule not encompassed within the

statute”); 

; 

–33; Hazelton, 

, ¶ 36.

This analysis comports with previous Vermont and out of state decisions, which have

demonstrated reluctance to find that statutes changed the common law in similar situations. See

generally 3 Sutherland Statutory Construction § 61:1 (7th ed.) (“Statutes which impose duties or

burdens or establish rights or provide benefits not recognized by the common law have frequently

been held subject to strict, or restrictive, interpretation. Where there is any doubt about their

meaning or intent they are given the effect which makes the least, rather than the most, change in

the common law.” 15A Am. Jur. 2d Common Law § 15 (“abrogation of common-law claims by

legislative creation of a statutory remedy is disfavored”).

       In order for the taxation schemes under 5 V.S.A. § 754 and 32 V.S.A. § 3659 to apply, the

municipally owned property must be put to public use. This conclusion is consistent with the

obvious purpose behind such a public use requirement for municipal property, as well as a rational

interpretation of the statutes. See Du Page Cty. Airport Auth. v. Dep’t of Revenue, 

476, 497 (2005) (“[d]eclaring all commercial and recreational uses, along with airport-related

uses, to be tax exempt would . . . create a substantial tax loophole to be exploited by private

lessees”); see also Delta Psi Fraternity v. City of Burlington, 

, ¶ 7, 

(court

will not interpret statutes to produce absurd or unreasonable results).




                                                 28
                           IV.      Public Use Test as Applied to the Leased Lots

         Vermont case law concerning the concept of “public use” generally addresses the explicit

tax exemption in 32 V.S.A. § 3802(4) for “[r]eal and personal estate . . . used for public, pious or

charitable uses.” In determining whether the public use exemption applies, “the crucial factor is

the primary use to which the property is put.” Am. Museum of Fly Fishing, Inc. v. Town of

Manchester, 

, 108 (1989).19 The Supreme Court has further explained:

                  Before a property is entitled to tax-exempt status as a public use, it
                  must meet certain criteria, as follows: (1) the property must be
                  dedicated unconditionally to public use; (2) the primary use must
                  directly benefit an indefinite class of persons who are part of the
                  public, and must also confer a benefit on society as a result of the
                  benefit conferred on the persons directly served; and (3) the property
                  must be owned and operated on a not-for-profit basis. All of the
                  above criteria are explicitly stated or are implicit in the prior
                  decisions of this Court.

In many out of state cases, the general rule is that “public property is exempt from

taxation if used for a predominantly public purpose and only incidentally for a private purpose.”

. McQuillin has also explained:

                  In determining whether or not property is used for a public purpose,
                  the test appears to be whether it is used primarily for the health,
                  comfort and welfare of the public. It is not essential that it be used
                  for governmental purposes. It is sufficient if it is property which all
                  of the public has a right to use under proper regulations. “Public
                  purpose” contemplates that the use must be common to all and not
                  a particular group.

16 McQuillin Mun. Corp. § 44:89 (3d ed.).

         The parties here have not expressly articulated whether the three-factor legal standard from

Am. Museum of Fly Fishing should be utilized to decide whether the property is put to a “public

use.” However, they both seem to agree that the determination is whether a property is primarily


19
  The City agrees that much of the airport property, such as the terminal, control tower, and parking garage, constitutes
a non-taxable public use. South Burlington’s Mot. for Summ. J. at 4.


                                                          29
devoted to a public use. See South Burlington’s Mot. for Partial Summ. J. at 32 (citing Our Lady

of Ephesus House of Prayer, 

, ¶ 23); Burlington’s Mot. for Summ. J. at 19–27.

       The court questions the utility of strictly applying the three-part Am. Museum of Fly

Fishing test here, for two reasons. First, that test was originally established with regard to the

public use exemption in section 3802(4) which, unlike the sections 754 and 3659 taxation schemes,

is an explicit and total exemption for property put to a public use. Second, a strict application of

the “dedicated unconditionally to public use” and “non-for-profit” prongs of that test would

exclude a finding of “public use” in situations where it would be nonsensical to do so. See Twin

Valley Cmty. Servs., Inc. v. Town of Randolph, 

, 649–50 (2000) (requiring a

“concurrence of nonprofit ownership and use” between taxpayer-owner and lessee-operator). For

example, such an application might automatically exclude application of the special taxation

statutes to all the various private industry tenants located in the terminal building, such as

restaurants, car rentals, newsstands, and areas used for airline operations, because those tenants all

operate on a for-profit basis. Those are operations which are clearly essential to efficient and

convenient operation of the airport, and which the City has apparently not even tried to tax,

although it claims it could do so. See South Burlington’s Opp’n at 44 (citing City of Little Rock v.

McIntosh, 

(1995)). The court believes the three-factor Am. Museum of Fly Fishing

test offers useful guidance, but declines to strictly apply it here where the more general and flexible

“primary use” inquiry is appropriate.

       Taxpayer also urges the court to view the airport as a whole; since the whole airport is

primarily devoted to a public use, any private leaseholds are merely incidental to that primary

purpose. The City argues that the private leaseholds must be viewed individually. Framed that




                                                  30
way, the City contends, the leaseholds are not primarily put to a public use. Taxpayer counters that

even viewed individually, the private leaseholds still pass the public use test.

         The court sees no bar on viewing the leaseholds separately for purposes of determining

whether the primary use of those leaseholds is public. See Scott Const., Inc. v. City of Newport

Bd. of Civil Auth., 

, 237–38 (1996) (municipality could appraise real property for tax

purposes by applying separate valuation criteria to parts of parcel, by considering development

scenario, and was not limited to contemplating single use of entire, undivided parcel); see also

Medical Center Hospital v. City of Burlington, 

, 199 (1973) (“While the precise

question has not, to our knowledge, been heretofore presented to this Court, it has been held that

where property of a tax exempt institution is devoted partly to public uses, a building may be

divided, for the purpose of taxing that part of it engaged in business use and exempt that part

devoted to public use.”). Many courts have made a public use determination as to individual tracts

of a larger property. See generally 

.

         The City has not attempted to divide up buildings into “public use” and “private use” in an

irrational manner. Instead, it has attempted to tax entire buildings or facilities which it deems to

be operated primarily for a private use, while it has not tried to tax other large parts of the airport

clearly devoted to a public use, such as runways and the entire airport terminal building.20

Taxpayer cites to its City Charter § 64b(a)(2), which simply defines “airport” to mean: “the entire

airport now owned by the City, including runways, hangars, loading facilities, repair shops,

terminals, retail stores in such terminals, restaurants, parking areas, and other facilities necessary

or convenient for the operation of the airport, together with any improvements thereto hereafter



20
  It is not clear to the court whether the City means that it has not tried to tax certain parts of the airport at all, or
whether it means that it has tried to tax those parts pursuant to the formula under section 3659 as opposed to full fair
market value. However, this does not appear to be a disputed issue.


                                                           31
constructed or acquired.” 24 App. V.S.A. § 64b(a)(2). However, it does not point to anything

suggesting that this general definition is binding in the context of tax valuation.

       Taxpayer also argues that whether municipal property is devoted to a public use may be

determined by legislative declaration. See Martha’s Vineyard Land Bank Comm’n v. Bd. of

Assessors of W. Tisbury, 

, 31 (2004) (holding that land bank commission

was exempt from taxation where legislature buttressed commission’s powers with “explicit

declarations that their exercise is to be deemed ‘an essential governmental function’ and that the

entire enabling act is to be ‘liberally construed’ to effect the public purposes set forth therein for

the welfare of the inhabitants of Martha’s Vineyard). While this may be true in some cases,

Martha’s Vineyard is inapposite to the present case. There, the commission’s enabling act provided

that its real property is exempt “from taxation of any sort” during the period when it is “used solely

. . . in furtherance of its public purposes”—a use to which the parties stipulated in that case. 

“Then, that categorical exemption is functionally reinforced by the immediately following

language, which explicitly frees the commission from having to pay any State or local tax or

assessment on its real property so used or otherwise.” 

       Nor is Dade Cty. v. Pan Am. World Airways, Inc., 

, 510 (Fla. 1973) helpful.

That decision, aided by legislative declarations, held that an airline’s lease of airport property

constituted a public use and was tax exempt. However, as the City points out, the statutes then at

issue in that case have since been repealed, and the current public use test in Florida is the actual

use of the leased property. See St. John’s Associates v. Mallard, 

, 37 (Fla. Dist. Ct.

App. 1978) (“Legislative declarations . . . do not necessarily make the function a commercial lessee

performs governmental. It is rather the actual use made of the leased property which determines

whether it is taxable under the constitution.”).




                                                   32
         More importantly, the Vermont authorities cited by Taxpayer do not demonstrate any such

clear legislative declaration. See, e.g., 5 V.S.A. § 751 (noting that it is state policy to assist

municipalities in selecting and acquiring sites for airport development); Burlington City Charter §

48(50) (24 App. V.S.A. § 3-48(50)) (authorizing Burlington to acquire, maintain, and properly

equip “within the limits of an adjoining town, a public aviation field and municipal airport”); 

(discussing governance of “the public aviation field and municipal airport . . . located within

the limits of . . . South Burlington”).

         Cases in other jurisdictions have analyzed portions of airport property separately. Some

have determined that portions of public airport property leased to private entities were not devoted

to public use.21 Others have found that certain private leaseholds in publicly-owned



airports served a public purpose.22


21
   See 

, §§ 14(b), 24(b), 25; see also, e.g., City of Little Rock v. McIntosh, 

, 430 (1995)
(tracts of airport leased to private businesses for operation of aircraft modification center and two aircraft service
centers were not exempt because they did not exclusively serve a public purpose); Town of Harrison v. Westchester
Cty., 

, 263–64 (1963) (hangars and land occupied by private corporations as lessees or sublessees under
long-term leases were not exempt); Du Page Cty. Airport Auth. v. Dep’t of Revenue, 

, 478–81,
498 (2005) (properties leased to third parties and used as a golf course, office building and tie-down area for aircraft,
auto repair facility, commercial cellular tower, and farms did not meet standard for “Airport Authority purposes”
under Illinois statute and was not exempt); Greater Orlando Aviation Auth. v. Crotty, 

, 981 (Fla. Dist.
Ct. App. 2000) (airport hotel was operated by airport authority for a profit rather than to provide public benefits to
citizens of Orlando and thus not exempt under the exclusive municipal or public purposes provision of Florida
constitution); Page v. City of Fernandina Beach, 

, 1075–76 (Fla. Dist. Ct. App. 1998) (airport not
used exclusively for public purposes, where one lessee used premises to offer aviation services to general public and
sell edibles within terminal, while another lessee conducted national air shows); Mallard v. Tele-Trip Co., 

, 971 (Fla. Dist. Ct. App. 1981) (no exemption for company that operated air travel insurance concession at
international airport); Appeal of Moon Twp., 

, 150–51 (1956) (jewelry store, display windows and area,
drugstore, and newsstand were merely attractions for airport patrons, rather than necessary to efficient operation of
airport, and therefore not exempt); In re Application of Strother Field Airport for Exemption from Ad Valorem
Taxation in Cowley Cty., Kansas, 

, 322–24 (2011) (municipally owned airport not entitled to tax
exemption for portion leased to General Electric for its operation of refurbishing, reconditioning, and rebuilding
aircraft engines, a multi-million dollar business).
22
   See 

, §§ 14(a), 24(a); see also Dade Cty. v. Pan Am. World Airways, Inc., 

, 511
(Fla. 1973) (property at airport leased to airline “is clearly leased and used for the public purpose of providing
indispensable air transportation and an air terminal to [a] metropolitan area as an essential public service . . .”); Appeal
of Allegheny Cty., 

, 582 (1967) (hotel, restaurant, portion of drug store, and newsstand located within
airport terminal building but operated by concessioners, were exempt); In re Bd. of Prop. Assessment, 

,


                                                            33
         As explained above, Taxpayer has the burden to prove that its property is primarily put to

a public use. For the purposes of the pending summary judgment motions, there are four private

leaseholds on the airport property which have been set in the grand list by the City as taxable, and

the public use of which is disputed. The court will address each in turn.

                                          A. 15 Eagle Drive

         It is undisputed that 15 Eagle Drive is used by Pratt & Whitney to perform engine services

on aircraft, including general aviation, commercial, charter, and fractional ownership aircraft,

whose owners/pilots visit the facility for maintenance, repair, or engine refurbishment. See South

Burlington’s SMF ¶ 9. Taxpayer also alleges that Pratt & Whitney performs emergency

maintenance on almost any aircraft that comes into the airport. See Burlington’s Resp. ¶ 9 (citing

Ex. 7 (McEwing Depo) at 128–32).23

         The undisputed facts do not establish whether Pratt & Whitney’s services are necessary to

airport operations. The fact that Pratt & Whitney performs emergency maintenance on almost any

aircraft that comes into the airport, if proved, might render this improvement primarily a public

use. Emergency maintenance on aircraft is certainly essential to an airport’s operation, and

provides a clear benefit to the travelling public. However, there are no facts in the record

concerning the frequency of such emergency maintenance performed by Pratt & Whitney, whether



418–20 (Pa. Commw. Ct. 2002) (facilities at county owned airport terminal that sold candy/alcoholic beverages were
reasonably necessary to efficiently operate airport rather than mere conveniences); Charleston Cty. Aviation Auth. v.
Wasson, 

, 487–89 (1982) (lease of county airport to airlines, car rental companies, parking lot operator,
limo taxi service, air cargo company, and operator of restaurant, snack bar, lounge, and gift shop were recognized as
necessary part of public airports and exempt); City of Osceola v. Bd. of Review of Clarke Cty., 

, 542
(Iowa 1992) (on-site residence provided to manager of municipal airport on airport property was public use and
exempt); City of Toledo v. Jenkins, 

, 156 (1944) (substation w/transformers, distribution system,
electrical equipment, office where gas sales recorded, outgoing planes registered, and floodlights for field illumination
was devoted to a public use and exempt).
23
   Taxpayer’s statement that Pratt & Whitney performs emergency services on aircraft is an additional fact that came
in response to the City’s statement of facts, to which the City did not have a duty to reply and did not reply. Thus, this
additional fact must be treated as disputed for purposes of summary judgment.


                                                           34
there are other businesses or facilities on the airport that perform such a function, or what

percentage of Pratt & Whitney’s work is for general aviation as opposed to private charter or

fractional ownership planes. See, e.g., Ex. 7 (McEwing depo.) at 131–32. Absent such facts, the

court cannot determine whether the improvement at 15 Eagle Drive is primarily devoted to a public

use.

                                        B. 73 Customs Drive

           The parties agree that 73 Customs Drive contains a FedEx facility that provides air shipping

of packages for customers. See South Burlington’s SMF ¶ 10. Taxpayer also alleges that FedEx

has a flight into and out of the airport every day that serves an air cargo function. The facility

houses the equipment needed to maintain FedEx’s aircraft, plus the equipment needed to load and

unload that aircraft. The air cargo function carried out by FedEx provides a benefit to the

community. See Burlington’s Resp. ¶ 10 (citing Ex. GG (McEwing Depo) at 99–101; Ex. HH

(Hodges Depo) at 279). 24

           Generally, other courts have concluded that air cargo facilities located on airports are not

operated for a public purpose in the context of tax exemption. See Emery Worldwide, 

, at *7 (private cargo transportation business located on airport not a public use); 

(facility leased to postal service at airport did not facilitate “effective operation”

of airport, and thus not exempt). However, at least one court has reached a different conclusion. In

Charleston, the South Carolina court held that the lease of part of a county airport to an air cargo

company, among other private businesses, was recognized as a necessary part of the public airport

customarily performed by private business, and thus was incidental to public 

–89. Although the analysis was limited, the court there noted the property was leased to



24
     The court treats Taxpayer’s additional facts as disputed for purposes of summary judgment.


                                                          35
Carolina Air Terminal, Inc., which it used “in providing cargo facilities to air carriers.” 

“Without their services passenger and freight transportation would not be available, or if available,

would be materially limited or restricted.” 

It appears that the air cargo company in

Charleston was of a different nature than a FedEx, UPS, or U.S. Postal facility, such as the facility

at Burlington International Airport.

       The FedEx facility here is more similar to the air cargo facilities in Emery and Clayton. In

Emery, for instance, the air cargo tenant “offer[ed] no service directly associated with use of the

airport by the general public. Rather, [the company’s] use of airport property merely facilitate[d]

its more general, private business purpose, i.e., the transportation of cargo.” 

, at

*7. Likewise, in Clayton, “while it was economical and convenient for the Postal Service to have

an onsite annex to its newer facility, the Postal Service’s use of the annex did not ‘facilitate the

effective operation of the airport.’ Instead, it facilitated the effective operations of the Postal

. Though FedEx’s use of the airport undoubtedly benefits its private

business purpose, there is no evidence that any public benefit from its use is anything more than

incidental to its primary, private purpose, nor that it is essential or even convenient for airport

operations. Taxpayer’s claim that the FedEx facility benefits the community is too general,

attenuated, and tangential to demonstrate a public use. Any private business could be said to

provide general economic benefits to the community, but that does not make its use “public” for

tax exemption purposes. This location is subject to taxation at full market value.

              C. 1120 Airport Drive (“South Hangar” and “T-Hangars”)

       1120 Airport Drive is used for leasing of aircraft storage space to private aircraft owners.

See South Burlington’s SMF ¶ 11. Taxpayer also alleges the following. 1120 Airport Drive also

houses the Heritage Ground Support Equipment (“GSE”) team, which includes three full-time staff




                                                  36
members. The GSE team services any and all ground support equipment at the airport that is

necessary for airline travel, including fueling and de-icing trucks, ground power units, airplane

tugs, and baggage loaders and carts. Heritage is an FAA-certified repair station providing

maintenance for almost all types of aircraft, as well as 24/7 ground handling, fueling, de-icing, and

related aviation support. Additionally, Heritage is the only provider of fueling and de-icing

services to airlines and general aviation aircraft at the airport. Heritage further provides at 1120

Airport Drive a terminal lobby which serves as an access point for pilots and passengers of general

aviation aircraft. See Burlington’s Resp. ¶ 11 (citing Ex. II (affidavit of Carol Betz) ¶¶ 2, 4, 6, 7).25

         The out of state case law holds that tracts of airports rented out for private aircraft storage

and hangars are not held for a public use. See, e.g., Marshall Cty. Airport 

; Pike Cty. Bd. of Assessment 

; Town of 

; Chemung 

–60; H. K. Porter 

–42; Reading

Mun. Airport Auth., 4 Pa. Cmwlth. at 304–05; Du Page Cty. Airport Auth., 

at

478–81, 498. However, if Taxpayer’s allegations are proved at trial, that would establish that the

Heritage GSE team is based there, that it provides all ground support equipment necessary at the

airport, and that it is the only provider of fueling and de-icing services to airlines. Surely this

service is necessary to efficient airport operations, as flights in winter months would be

exceedingly difficult without de-icing, and impossible at any time without fuel. These facts are,

however, not conceded by the City and thus must await resolution at trial.

                           D. 1150 Airport Drive (“North Hangar”)

         1150 Airport Drive is used for the rental of hangar space to private aircraft owners, and

office space to commercial tenants, including a fishing equipment manufacturer and two general


25
  As discussed above, the court treats all of Taxpayer’s additional facts alleged in response to the City’s statement of
facts as disputed for purposes of summary judgment.


                                                          37
contractors. The City also claims the tenants there have “no involvement” in the airport’s

operations. While some of the commercial tenants have some connection to private aircraft

activities, the City states, they do not support the airport’s “operation for the travelling public.”

See South Burlington’s SMF ¶ 12 and n.8.

       Taxpayer asserts that the tenants have involvement with airport operations, noting that as

of April 1, 2012, this facility was occupied by an aircraft mechanic and flight instructor as a

business, and that equipment used to service scheduled air carriers was stored here. See

Burlington’s Resp. ¶ 12; see also Ex. 11 (Gagnon Depo) at 131–32. Taxpayer also argues that the

commercial tenants’ private aviation activities support the airport’s operation for the benefit of the

travelling public. See Ex. JJ (affidavit of Jim Richards, manager of Aerodyme Corporation) ¶ 6

(stating that general aviation operations at the airport add to the overall numbers of operations

there, which increases the airport’s capabilities, number of flights, and ability to receive staffing

increases for air traffic control and new safety technology).

       As stated above, the out of state case law holds that tracts of airports rented out for private

aircraft storage and hangars are not held for a public use. See, e.g., Marshall Cty. Airport 

; Pike Cty. Bd. of Assessment 

; Town of 

; Chemung 

–60; H. K. Porter 

–

42; Reading Mun. Airport Auth., 4 Pa. Cmwlth. at 304–05; Du Page Cty. Airport Auth., 358 Ill.

App. 3d at 478–81, 498. Further, unlike 1120 Airport Drive, there is no indication that any service

similar to the GSE team’s fueling and de-icing occurs at 1150 Airport Drive. Again, Taxpayer’s

evidence that general aviation activities at the airport benefit the public through increased funding

and new security technology, even if true, is simply too attenuated to establish 1150 Airport Drive

as a public use for tax purposes. The availability of private hangars for rent undoubtedly provides




                                                 38
some general public benefit to the airport and the region. That does not make the improvement

primarily devoted to a public use or essential to efficient airport operations. Cf. Town of Harrison,

at 265 (“The Legislature may quite properly conclude that hangars for private

parties are essential to the economy and in the public interest [for purposes of land condemnation]

. . . . But it by no means follows . . . that the parties using the private hangars should not bear their

proper share of the tax burden, that that entire burden should be thrown on the residents and other

taxpayers of the town.”).

             Nor is the fact that a particular leasehold produces revenue for the airport sufficient to

constitute a public use. See Strother 

(“it cannot be said that revenue

generation alone satisfies an exemption statute requiring a ‘purpose essential to the operation of

an airport’”); Greater Orlando Aviation 

(airport hotel was not exempt

where negotiations between aviation authority and airlines regarding hotel “focused almost

exclusively on the revenue-generating aspects of the hotel”); Marshall Cty. Airport Bd., 163 Ill.

App. 3d at 876 (“Property is not exempt from taxation merely because the income from it is used

for an exempt purpose where the property itself is not so employed.”); Town of 

(“that rentals from municipally owned property provide needed revenue for the

governmental body, enabling it to carry out its public functions, is not sufficient to render the use

of the property public; the property itself must be devoted to a public use”); 16 McQuillin Mun.

Corp. § 44:74 (3d ed.) (“it is generally held that . . . property of a municipality is subject to taxation

if it is not devoted to public use but is held for revenue or like purposes, . . . . [But] the mere fact

that some revenue is incidentally derived from public property primarily and principally devoted

to a public use does not in and of itself alter the character of the holding as one for a public purpose

. . . .”).




                                                     39
       The court concludes that even assuming the facts asserted by Taxpayer, 73 Customs Drive

is not primarily devoted to public use. It is therefore subject to taxation at full fair market value

rather than under section 3659.

                                        V.    The Noise Lots

       Taxpayer argues that certain portions of the “noise lots” are subject to the special rules

applicable to lands financed with state funds, 5 V.S.A. § 754. As the more specific statute, if

section 754 applies, then it controls over any other tax statute that could apply. See Looker v. City

of Rutland, 

, 346 (1984) (“An established rule of statutory construction is that when

two statutes deal with the same subject matter, and one is general and the other specific, the more

specific statute must be given effect unless the legislature intended the general to control.”). To

the extent that section 754 does not apply, section 3659 will apply.

                                      A.      5 V.S.A. § 754

                  i. Purchase Financed in Conformity with Sections 751–753

       Taxpayer argues that at least 130.2 acres of the land at issue were acquired pursuant to

sections 751–53, and are therefore governed by section 754 and subject to a payment in lieu of

taxes. To support this contention, Taxpayer cites to a 1943 Burlington City Engineer Report (Ex.

E) and a 1996 Tax Stabilization Agreement between Taxpayer and the City (Ex. F). The Engineer

Report lists several parcels acquired by Taxpayer between 1931 and 1942 for the “Airport

development.” It is notable that the acreage of the last 14 properties listed, starting with Moses

Dumas property purchased July 21, 1941 and ending with the Brownell Estate purchased August

28, 1942, adds up to exactly 130.2. Exhibit A to the Tax Stabilization Agreement describes the

airport property as including “130.2 acres of land (acquired pursuant to 5 V.S.A. Chapter 7 prior

to 1972).”




                                                 40
       Both Taxpayer and the City signed the Tax Stabilization Agreement in 1996, and the

agreement does not contain any reservations, objections, or refusals to concede that 130.2 acres of

airport property were acquired pursuant to the predecessors to sections 751–753. Thus, the court

deems that fact admitted by both parties. However, the court is unable to determine on the record

before it exactly which parcels make up that 130.2 acres. Taxpayer’s Ex. CC, consisting of an

airport map and list of parcels with identification numbers, as well as Ex. E (engineer’s report),

demonstrate a triable issue as to which of the parcels make up that 130.2 acres acquired pursuant

to sections 751–753, but are not conclusive. That issue will need to be determined at trial.

       The City alleges that because of a discovery violation by Taxpayer, the engineer report and

tax stabilization agreement should not be considered. Although Taxpayer may not have been

compliant with discovery, it did submit these documents in the summary judgement phase rather

than for the first time at trial. This is an important issue in a complex case, best decided on the

merits. The court further notes that the City has had plenty of time since the last filing to seek

additional discovery on this issue, and will have additional time if needed prior to trial. Perhaps

most importantly, the City was a party to the tax stabilization agreement, has surely had that

agreement in its possession since 1996, and it cannot now argue that it is prejudiced by its

production.

                                        ii. Federal Funds

       The parties argue over whether section 754 applies to lands acquired in part with federal

funds. Taxpayer contends that all land acquired subsequent to enactment of the predecessor to

§ 754 is covered by that section to the extent that the land was acquired with a combination of

federal, state, and local funds. See Burlington’s Mot. for Partial Summ. J. at 11 n.3. Taxpayer




                                                41
submitted an affidavit by the former Director of Planning and Development at the airport providing

that:

               Land acquisitions and capital improvements at BTV pursuant to the
               AIP program have been funded with federal, state, and local dollars
               according to the following split: Pre-Federal Fiscal Year (“FFY”)
               2004—Federal 90%, State 6%, local 4%; FFY2004-FFY2011—
               Federal 95%, State 3%, local 2%; with §§ 751–53. and Federal
               FY2012-current—Federal 90%, State 6%, local 4%.

Ex. H (Aff. of Robert McEwing) (dated July 15, 2015) ¶ 11. “AIP” refers to the FAA-administered

Airport Improvement Program, which provides federal grants for the acquisition of land for airport

growth and development. 

Additionally, Exhibit CC consists of an airport map and list of

parcels with acquisition dates, as well as notations that certain parcels were acquired through the

AIP program. The City argues there is “no indication in the plain language of section 754 or its

predecessors that the statute is intended to apply to land acquired with federal funds, whether those

funds be primary, matching or incidentally contributory.” South Burlington’s Opp’n at 30.

        The taxation scheme in section 754 applies to “land purchased in conformity with sections

751–753 . . . .” Section 753 provides that money from a state appropriation “shall be used to match,

dollar for dollar, money appropriated, raised, or contributed by a local governmental unit, city or

town, or by a combination of units for the purchase of lands or rights in land for airport, landing

field, air navigation facilities, or landing strip purposes.” Nowhere in sections 751–754 is there a

prohibition against the use of federal money for such acquisitions, nor is there a requirement that

the land must be purchased only with state and local matching funds to qualify for section 754

taxation. In fact, section 751 implicitly recognizes the possibility of federal financial assistance,

declaring it state policy to assist municipalities to acquire airport land “[t]o provide for the orderly

development of air facilities in this state and to cooperate with the national government by making




                                                  42
available sites for airports, landing fields, air navigation facilities, and landing strips necessary for

defense against an attack by sea or air . . . .” (emphasis added).

        The City’s reliance on subchapters 3 (5 V.S.A. §§ 691–697) (state aid to municipalities in

conjunction with receipt of federal funds for airport development) and 5 (5 V.S.A. §§ 771–774)

(state aid for repairs at municipal and private airports) is unpersuasive. The City contends that

because the legislature expressly included in subchapter 4 (sections 751–754) a tax exemption for

land acquired pursuant to that subchapter, and excluded any such special tax treatment for land or

improvements acquired under subchapters 3 and 5, section 754 cannot apply to land or

improvements acquired or repaired under subchapters 3 or 5. That may be true, but the issue is

whether airport land can be acquired in conformance with sections 751–753 even if it was funded,

in part, with federal money. The plain language of the statute clearly leaves open that possibility.

The precursor to sections 751–754 was enacted for the purpose of taking advantage of a proposed

federal grant that was conditioned upon Taxpayer owning title to a certain amount of real estate.

See Ex. LL through PP. Taxpayer sought state aid to purchase the property because the owners

were demanding a high price. See 

history behind the statute does not indicate an

intent to preclude application of section 754 tax treatment if the purchase of the property was aided

with federal funds, in addition to state and local matching funds. There is no rational reason to

think the legislature would object if the town or state found the money for airport property

acquisitions in federal coffers. Thus, the court grants summary judgment for Taxpayer on this

issue; section 754 can apply to lands acquired in part with federal funds. The exact parcels to which

section 754 applies in this case will be determined at trial.

                                    iii. Taxation of Improvements




                                                   43
       Another area of dispute involving section 754 is whether buildings or improvements on

land subject to that statute are taxable. Again, the statute reads:

               Title to land purchased in conformity with sections 751-753 of this
               title shall vest entirely in the state, jointly in the state and the local
               governmental units, or entirely in the local governmental units as in
               each case is most proper. Land so acquired shall not be taxable, but
               when the title vests in the state or when the title is held jointly by
               the state and a town or towns, and the site is located in a different
               town or when the title vests in one or more towns and the site exists
               in a different town, then the holders of the title shall make an annual
               payment, instead of taxes, to the town in which the site is located of
               a sum equal to the tax otherwise assessed on the land alone.

5 V.S.A. § 754. While the statute provides for a payment in lieu of taxes “of a sum equal to the tax

otherwise assessed on the land alone,” the City contends that because it is silent as to improvements

located on that land, improvements are taxed at full fair market value. Taxpayer, of course, reads

the silence as to improvements to mean that improvements are not taxed.

       There is no Supreme Court caselaw discussing sections 751–754. However, the legislative

history of those statutes may be summarized as follows. In 1941, just months before the United

States officially entered World War II, the legislature passed H. 215 as Act No. 101 (1941), “An

Act to Provide State Aid in the Development of Air Facilities, to Make an Appropriate Therefor

and to Prescribe Conditions for the Expenditure Thereof.” See Ex. P. The Act established an

appropriation of state funds to aid municipalities in developing airport facilities. 

by municipalities with matching state funds was to be exempt from taxation, but subject to a

payment in lieu of taxes. 

passage of the bill, House Aviation committee meeting notes

describe the tax exemption as a “provision in re taxation of land so acquired: land shouldn’t be

taxed but the owner should pay annually the average [amount] paid by the owner of same land

during preceding quadrennial.” See Ex. Q at 7. Section 5 of Act 101 is substantially similar to, and




                                                  44
eventually became, 5 V.S.A. § 754. In addition to the $65,000 state fund to aid municipalities in

purchasing land for airport development, Act 101 also created the Vermont Aeronautics

Commission to administer that state fund. See Ex. PP.

       A previous trial court decision addressed this issue, and concluded:

               [T]he plain language of § 754 evinces a clear intent to exempt only
               land from taxation. The statute refers only to ‘land,’ and to construe
               § 754 more broadly would be contrary to the mandate to construe
               tax exemptions strictly. Moreover, where the legislature has
               intended to refer to both land and improvements, it has done so
               explicitly. See 32 V.S.A. § 3659.

Heritage Aviation, et al v. City of South Burlington, Decision on Rule 12(b)(6) Motion to Dismiss,

Docket No. 1425-11 CnC, at 4 (Vt. Super. Ct. Jan. 3, 2013) (J. Crawford). The court also cited

Attorney General Opinion 1956-58, which observed that in enacting sections 754 and 3659, “the

legislature was careful to spell out that only the land purchased for airport purposes was exempt.”

(emphasis in original). Although section 754 makes no direct reference to buildings constructed

on the land, the Attorney General opined that “there is a clear reference that any exemption granted

by those sections does not extend to buildings constructed on the land.” 1956-58 Op. Atty. Gen.

206. The court noted that this Attorney General Opinion was cited in the annotations to former

section 414, “and that the legislature thereafter enacted the successor section, § 754, without

broadening the scope of the exemption.” Heritage Aviation, et al v. City of South Burlington,

Decision on Rule 12(b)(6) Motion to Dismiss, Docket No. 1425-11 CnC at 4. Finally, the court

noted that the statute’s reference to the “land alone” in the last sentence of § 754 did not alter its

conclusion that the statute exempts only land from taxation.

               That description fixing the amount of the annual payment makes it
               clear that the size of the payment depends only on what the tax
               would have been on the land alone, rather than on the land plus any
               improvements. Far from being superfluous, the language serves to




                                                 45
               highlight that the calculation of the annual payment is performed in
               a way different than the usual appraisal for real estate.

        This court does not agree with that rationale. The previous trial court decision speaks of

construing tax exemptions strictly. However, like section 3659, section 754 is not an exemption

statute, but a statute permitting taxation of property otherwise exempt. See, e.g., 

; Morrisville 

–94; Morrisville 

. Hence, it must be strictly

construed against the taxing authority and in favor of the taxpayer. See City of 

. Nor is section 754 a “tax exemption” as a practical matter. An “annual payment, instead of

taxes . . . of a sum equal to the tax otherwise assessed on the land alone” is not an exemption, and

any characterization of it as an exemption is a legal fiction.

        Under the previous trial court decision’s analysis, while the land is subject to an annual

payment in lieu of taxes, the improvements would be taxed at full fair market value. Taking that

decision and the City’s argument to their logical conclusion, section 754 would provide no special

tax treatment, as Taxpayer would pay, effectively, taxes based on a full fair market value

assessment of the land and the improvements. Thus, tax treatment pursuant to section 754 would

be less favorable for Taxpayer than under section 3659, and the same as under the default taxation

scheme. It would make no sense for the legislature to enact a statutory scheme allowing

municipally owned extra-territorial airports that were acquired with state financing to be taxed the

same as privately owned property. See Delta Psi Fraternity v. City of Burlington, 

, ¶

7, 

(court will not interpret statutes to produce absurd or unreasonable results). Thus,

the court grants Taxpayer summary judgment on this issue: for lands covered by section 754, the

payments in lieu of taxes are based on the value of the land alone.

                                  B. 32 V.S.A. § 3659



                                                 46
         Both parties agree that because the noise lots are municipal property located in a different

municipality, 32 V.S.A. § 3659 applies unless—as is addressed above—section 754 applies.26

However, they disagree over the meaning of the statute. The disagreement stems from the statute’s

apparent distinction between land and buildings, as well as its silence on preexisting

improvements.

                                   i. Valuation in the Year of Acquisition

         Section 3659 permits the limited taxation of municipally owned property existing within

the territory of another municipality. It reads in relevant part:

                  Land and buildings of a municipal corporation, whether acquired by
                  purchase or condemnation and situated outside of its territorial
                  limits shall be taxed by the municipality in which such land is
                  situated. Said land shall be set to such municipal corporation in the
                  grand list of the town or city in which such real estate is located at
                  the value fixed in the appraisal next preceding the date of acquisition
                  of such property and taxed on such valuation. The value fixed on
                  such property at each appraisal thereafter shall be the same per acre
                  as the value fixed on similar property in the town or city.
                  Improvements made subsequent to the acquisition of the land shall
                  not be taxed; except that an additional tax not to exceed 75 percent
                  of the appraisal of the land may be levied in lieu of a personal
                  property tax.

32 V.S.A. § 3659. The statute separates the taxability of land from the taxability of improvements

on the land. Swanton Village v. Town of Highgate, 

, 323 (1973). The land is taxable;

improvements following ownership are not. However, the statutory language does not explicitly

say whether preexisting improvements (i.e., buildings existing on the property before acquisition

by the municipality) are taxable.




26
  In its Reply, Taxpayer raises a new claim that the entire airport is totally exempt from taxation under the public use
exception in 32 V.S.A. § 3802(4). This argument is unpersuasive.


                                                          47
        The first sentence provides that “[l]and and buildings of a municipal corporation . . . shall

be taxed . . . .” (emphasis added). The next sentence, however, mentions only the land: “Said land

shall be set . . . in the grand list . . . at the value fixed in the appraisal next preceding the date of

acquisition of such property and taxed on such valuation.” (emphasis added). Then, the value fixed

on “such property at each appraisal thereafter shall be the same per acre as the value fixed on

similar property” in the situs municipality. (emphasis added). Finally, “[i]mprovements made

subsequent to the acquisition of the land shall not be taxed” except for the additional payment in

lieu of taxes “not to exceed 75 percent of the appraisal of the land . . . .” (emphasis added). Again,

the statute makes no specific reference to preexisting improvements. The apparent confusion is the

initial reference to “[l]ands and buildings” as taxable, as compared to the later specific references

to “land” and “[i]mprovements made subsequent to the acquisition of the land.”

        The City’s position appears to be inconsistent. First, it asks the court to hold that the noise

lots should be forever taxed based upon (1) the land value based on the per-acre fair market value

of comparable residential land in the City, and (2) the fair market value of the improvements which

existed at the time of Taxpayer’s acquisition (even if they are no longer there). See South

Burlington’s Mot. for Summ. J. at 19–20. In a later filing, it argues that if the houses have been

removed, the valuation can be based upon the open land. See South Burlington’s Reply at 10.

        Taxpayer responds that the City may tax the noise lots at the value per acre of the land

alone, plus an additional tax computed on no more than 75% of the value of that land to reflect

any improvement made subsequent to acquisition, but no further. Effectively, Taxpayer’s position

is that the limit on the airport’s value for tax purposes can be expressed by the following equation:

[the value of the land alone] X [1.75]. Thus, according to Taxpayer, any amount the City has

assessed for airport property over and above 175% of the value of the land alone exceeds statutory




                                                   48
authority. It should be noted that the noise lots contain no post-acquisition improvements, because

the Airport is tearing down the former residences in favor of green space. Thus, for any lots where

the residences have been removed, Taxpayer’s approach would lead to a tax solely on the land,

both before and after acquisition.27

         In addition to the language of the statute that “[l]ands and buildings . . . shall be taxed,”

there are several authorities that support the City’s reading of § 3659 as to the taxability of

preexisting improvements. First, Judge Bent stated in a 2013 trial court opinion that

                   Section 3659 allows a municipality to impose a tax on the land
                   owned by another municipality and the buildings existing on that
                   land when it was acquired. It does not allow taxation on
                   improvements thereafter, but it does allow an additional tax on the
                   land to compensate for the inability to tax improvements and
                   personal property.
                   ...
                   The Town thus argues that the [water] mains are “land” within the
                   meaning of § 3659. It does so by applying the law of fixtures.
                   Section 3659, however, deviates from the law of fixtures for taxation
                   purposes by separating the taxability of land from the taxability of
                   improvements. The former is taxable; the latter are not unless on
                   the land at the time it was purchased.

Village of Northfield v. Town of Northfield, Nos. 559-9-11 and 567-9-11 Wncv, slip op. at 5 (Vt.

Super. Ct. Jan. 25, 2013) (emphasis added). Second, a 1956 Attorney General Opinion reached the

same conclusion as to the predecessor to § 3659: “Plainly, any buildings on airport land at the time

of the purchase or condemnation of such land are taxable by the formula provided in No. 17, 1949.”

1956-58 Op. Atty. Gen. 206, 208. Third, the legislative intent of § 3659 as articulated by the




27
   The court observes that, like the City’s argument, Taxpayer’s argument is also somewhat inconsistent. While it
claims initially that all pre-existing buildings are not taxed at all, it also contends (in the alternative, apparently) that
assuming those buildings are taxed, “similar” property taxation includes such buildings until demolished. See
Burlington’s Opp’n at 8–9. Taxpayer is further inconsistent in that the Silver appraisal apparently values all noise lots
(vacant or not) as commercial/industrial/transportation development, whereas its actual argument in the briefing does
not go quite so far, in that it concedes that the homes may be taxed until demolished. See 

treats these as
alternative arguments.


                                                            49
Supreme Court is that “the town of situs neither gain nor lose in its tax base through municipal

ownership and development.” Morrisville 

.

       Lastly, Swanton v. Highgate notes that House Bill 58 in 1949, which proposed changes to

the precursor to § 3659, allowed for the taxation of municipal, extraterritorial “lands and also

including buildings thereon at their full assessed 

. The Senate “did not

approve of the taxation of improvements made after the acquisition of land,” and the legislature

eventually “reach[ed] a compromise between the intent of the House . . . to tax all improvements

to the land owned by municipal corporations and the intent of the Senate not to tax improvements

made subsequent to the acquisition of such land . . . .” 

       Taxpayer argues that the statutory silence on pre-existing improvements should be

interpreted strictly against the City as the taxing authority, and cites cases stating that general

proposition, as well as an example of the Vermont legislature specifically taxing buildings.

“Without express statutory authority to tax preexisting improvements, South Burlington cannot do

so at all.” Burlington’s Opp’n at 5; see also City of Montpelier v. Town of Berlin, 

,

293 (1983) (“[t]he taxing power granted by this statute [§ 3659] is to be strictly construed”); 32

V.S.A. § 3608 (“Buildings on leased land or on land not owned by the owner of the buildings shall

be set in the list as real estate.”); Gordon v. Bd. of Civil Auth. for Town of Morristown, 

, ¶ 8, 

(“By enacting § 3608, the Legislature specifically included buildings on leased

land in the definition of taxable real estate, and recognized that a building can be taxed separately

from the land upon which it sits.”).

       The court concludes that the discussion in Swanton is persuasive, and that the perceived

“statutory silence” as to preexisting improvements is really not statutory silence at all. Rather, the

language of the statute is clear enough. It provides that “[l]and and buildings of a municipal




                                                 50
corporation . . . shall be taxed . . . .” 32 V.S.A. § 3659 (emphasis added). It makes no sense to

ignore the reference to buildings merely because it is not repeated in the next sentence. “[S]uch

property” can only logically be read to mean the land including the buildings on the land. Unlike

5 V.S.A. § 754, which does not reference buildings at all and which was be discussed above,

32 V.S.A. § 3659 unambiguously taxes preexisting improvements at the fair market value as of

the last appraisal prior to acquisition.28

                                           ii. Valuation in Later Years

         The parties also disagree over how to value the noise lots in the years after acquisition.29

Section 3659 provides that:

                  Said land shall be set to such municipal corporation in the grand list
                  of the town or city in which such real estate is located at the value
                  fixed in the appraisal next preceding the date of acquisition of such
                  property and taxed on such valuation. The value fixed on such
                  property at each appraisal thereafter shall be the same per acre as the
                  value fixed on similar property in the town or city.

indicates that subsequent appraisals are based on the current tax assessments of

“similar property” in the City. As the court has ruled above, the property to be taxed includes the

buildings on the land at the time of acquisition. Thus, if those buildings remain on the property

after acquisition, “similar property” includes such buildings. If the buildings are razed, “similar

property” will be lots without buildings. The parties seem to agree on these points.30 They disagree,


28
   The court notes that any discussion here of the noise lots’ valuation pursuant to section 3659 could be rendered
moot if such property is found at trial to have been acquired in conformance with 5 V.S.A. §§ 751–753. In that event,
all of the noise lots could be taxed pursuant to section 754. See Ex. CC.
29
   As noted above, the City has apparently taken inconsistent positions on this issue. The court takes its later filing as
its current position.
30
   The City correctly points out that when it enacted section 3659, “the legislature likely never envisioned a
municipality buying property . . . just to tear down the preexisting improvements out of concern for airport noise and
replacing those improvements with green space.” South Burlington’s Opp’n at 7. However, that does not mean the
court can choose to disregard the statute. If the current value of the property is lower now than when it was purchased,
the statute mandates that the lower value controls for taxation purposes under section 3659.



                                                           51
however, over whether the vacant land should be considered similar to open lots that have future

residential     development        potential,     or    as    open     lots    that    are     usable     only     for

commercial/industrial/transportation.

         The City argues that those lots cannot be treated as “airport,” “airport industrial,” or

“industrial, commercial, or transportation development” for appraisal purposes under a highest and

best use analysis. Rather, they must be valued as residential property, because that is their only

legally permissible use under the applicable zoning regulations, there is no evidence of a

prospective zoning change from “residential” to “airport,” and the FAA grant assurances and

regulations cited by Taxpayer actually allow residential use of the noise lots. Taxpayer argues that

the lots must be valued as commercial/industrial/transportation development land because they

will never again be used for residences.31

         In assessing real property for taxation purposes, “properties must be listed at fair market

value.” Lathrop v. Town of Monkton, 

, ¶ 10, 

. The statute defines fair market

value as:

                  the price that the property will bring in the market when offered for
                  sale and purchased by another, taking into consideration all the
                  elements of the availability of the property, its use both potential and
                  prospective, any functional deficiencies, and all other elements such
                  as age and condition which combine to give property a market value.
                  Those elements shall include the effect of any State or local law or
                  regulation affecting the use of land, . . . and any local or regional
                  zoning ordinances or development plans. In determining estimated



Further, it is unclear whether the values in the City’s grand list for 2012, 2013, and 2014 reflect “the value fixed in
the appraisal next preceding the date of acquisition of such property” or “[t]he value fixed on such property at each
appraisal thereafter [which] shall be the same per acre as the value fixed on similar property in the town or city.”
32 V.S.A. § 3659. This would necessarily depend on when the residential properties were acquired by the airport. The
statute makes clear that the City cannot rely on the pre-acquisition appraisal value years after acquisition.
31
  Taxpayer also argues that, even assuming the noise lots are to be assessed as residential, the City has submitted
inadequate evidence of the noise lots’ value. Although evidence of value must be based on similar property in South
Burlington other than the noise lots or other property owned by the airport, such evidence apparently exists in the
record. See Ex. 14A at 24, 25, 27, 29, 31; 15A at 38 (Navin appraisals).


                                                         52
                   fair market value, the sale price of the property in question is one
                   element to consider, but is not solely determinative.

32 V.S.A. § 3481(1). Fair market value is based on the highest and best use of the property.

Lathrop, 

, ¶ 10 (citing Zurn v. City of St. Albans, 

, ¶ 8, 

(mem.)).

“The highest and best use of property has generally been construed to refer to ‘the value of the

property for its most profitable, likely, and legal use.’” Scott Const., Inc. v. City of Newport Bd.

of Civil Auth., 

, 235 (1996) (quoting D. Stockford, Property Tax Assessment of

Conservation Easements, 17 B.C. Envtl. Aff. L. Rev. 823, 827 (1990)). Thus, fair market value

“accounts for the property’s availability, use, and other elements which combine to give the

property a market value” and, “[a]lthough this may include consideration of intangibles associated

with the realty, such as zoning, permits, and licenses, . . . the mere existence of uncertainty in the

regulatory process does not bar consideration of development potential. Zurn, 

, ¶ 8

(internal quotations omitted).

         Taxpayer’s appraiser, George Silver, treats the noise lots as part of the main airport parcel

in his appraisal, and values them at the same rate per acre as the main parcel, as “industrial,

commercial, or transportation development” rather than “residential.”32 Taxpayer also points to



32
   Raising collateral estoppel, Taxpayer claims the noise lots cannot be used for residential purposes, citing In re
Burlington Airport Permit, where the Supreme Court stated: “Once BTV has acquired a home under the NCP and the
sellers have relocated, the home is left vacant and cannot be permanently reoccupied on the current premises for
residential purposes.” 

, ¶ 3, 

.

Taxpayer’s attempt to use issue preclusion based on Burlington Airport Permit is unpersuasive. Potential use of the
noise lots was not actually litigated and decided by the Environmental Court. Instead, inability to permanently
reoccupy for residential purposes was apparently an undisputed fact recited by the Supreme Court from the
Environmental Court decision. See 

Decision on Cross Motions for Summary Judgment, Burlington Airport
Permit, No. 93-7-12 Vtec, 

, *1 (Vt. Super. Ct. Mar. 20, 2013) (Durkin, J.); see also Scott v. City of
Newport, 

, ¶ 8, 

(“Collateral estoppel, or issue preclusion, bars the subsequent relitigation of
an issue that was actually litigated and decided in a prior case where that issue was necessary to the resolution of the
dispute.”). It is also unlikely the City had a full and fair opportunity to litigate the issue in that case, as it involved a
permit application for structure demolition, rather than anything related to municipal taxation. See 

. Moreover, the issue in that case—whether demolition of vacant houses and filling of cellar holes was a change
in use requiring site plan review—is different from the issue here: whether future reoccupation for residential purposes


                                                            53
the fact that, before being instructed by counsel to use a different approach, South Burlington

appraiser Michael Hodges’ included the noise lots with his valuation of the “airport”/“airport

industrial” property in “Area 1.” See Ex. B at 21. Hodges stated in pertinent part:

                  Area 1 is the main Airport site, which consists of the airfield area,
                  to include terminal, and aircraft/passenger support areas, the
                  Vermont Army Guard and Vermont Air National Guard
                  developments, as well as all of the individual parcels acquired as
                  part of the Noise Compatibility Program (NCP). . . . [T]he inclusion
                  of the NCP parcels into the total land area comprising Area 1 is
                  deemed to best reflect the contributory value of various
                  complementary areas of airport developments. Due to various
                  setbacks, open space requirements, ingress/egress areas, and land
                  areas utilized as buffer zones or for future expansion, areas such as
                  the NCP parcels at BTV are typically found at all publicly owned
                  and operated airports. Airports are constantly evolving enterprises
                  that must constantly adapt to changes in technology, regulatory
                  modifications, community concerns, etc. As such, most are
                  continuously acquiring surrounding properties for noise
                  mitigation/buffer zones, safety areas, or economic development.
                  These areas are generally incorporated into the airport parcel and
                  redeveloped as necessary. While the current zoning for these parcels
                  is R-4, it is deemed likely that the zoning will be modified in the
                  future to Airport, Mixed Industrial and Commercial, and/or Airport
                  Industrial zoning to be consistent with the surrounding Airport
                  environs.

Ex. B (Michael A. Hodges, Appraisal of Retrospective Market Value of the Underlying Land:

Burlington International Airport Development, dated Mar. 11, 2014) at 21. Hodges later assessed

the noise lots as residential, as instructed by South Burlington’s attorneys. See Burlington’s SMF

¶¶ 27–28; South Burlington’s Resp. ¶ 27. The fact that Hodges changed his methodology at the

instruction of the City’s attorneys goes to the weight of his testimony at trial. It does not bind the

City to his initial position. His original report certainly provides evidence that a zoning change to

the noise lot land is likely at some point in the future.



is prohibited. Burlington Airport Permit, 

, ¶ 8; see also Trepanier v. Getting Organized, Inc., 

,
265 (1990).


                                                         54
         These lots in all likelihood will not be occupied as residential property in the foreseeable

future. They are being utilized as a “green space” noise buffer for the airport. Although

reoccupation as residential property is not strictly prohibited by federal regulations and the FAA

grant assurances, such a use is so remote as to be practically prohibited. Taxpayer has submitted

evidence that the airport would have to pay back millions of dollars in federal grants if it reversed

its noise compatibility program. See Ex. KK (Aff. of Robert McEwing) ¶ 11. Although a residential

use is permitted under the grant assurances provided the buildings are insulated to comply with

certain noise levels, the fact is that the current NCP plan is demolition of the residences for the

establishment of green space, rather than reinsulating the structures. The record is not clear as to

the exact costs and efforts required to transition from the current plan to a redevelopment and

insulation plan, but at this point all of the structures have been demolished. See Affidavit of Gene

Richards ¶ 3 (attached to Burlington’s Resp. to South Burlington’s Supplement, filed Oct. 19,

2015).33

        A determination of highest and best use considers “the value of the property for its most

profitable, likely, and legal use.” Scott 

. Although the “mere existence of

uncertainty in the regulatory process does not bar consideration of development potential,” Zurn,

, ¶ 8, future use of the property as a residential development is not likely. While the

City claims that any use of residentially zoned property other than that specifically enumerated

under the zoning regulations is legally impermissible, it is clear that the noise lots’ current use as

airport green space is not illegal. In fact, that use has been implicitly approved by the City through




33
   All of the structures had not been demolished, however, at the beginning of this appeal process, due to an
individual’s appeal of the issuance of removal permits by the City. See Affidavit of Gene Richards ¶ 3 (attached to
Burlington’s Resp. to South Burlington’s Supplement, filed Oct. 19, 2015).


                                                        55
its granting of demolition permits for the properties. See Ex. KK (Aff. of Robert McEwing) ¶¶ 14–

15.

       The Supreme Court aptly described the noise lots in its recent decision as currently existing

in “land-use limbo,” noting that “these structures lack any practical utility at present and that the

underlying lots are used only as empty space.” Burlington Airport Permit, 

, ¶ 17.

Though it is obvious that the lots will not be used again for residential purposes, such a use is

legally permissible. It is equally clear that the lots cannot be used as “industrial, commercial, or

transportation development” property under the existing “residential” zoning regulations, and

Silver’s report indicates that no evidence of plans to change the zoning currently exist, yet the lots

currently function as an empty “green space” noise buffer zone next to the airport.

       The bottom line here is that there are competing expert opinions on each side with differing

views of what constitutes “similar” property. Taxpayer’s expert opines that the highest and best

use of the noise lots is as “industrial, commercial, or transportation development.” The City’s

expert opines that the highest and best use is as “residential.” The court is not persuaded that either




                                                  56
opinion is inadmissible or entirely unsupported.34 Therefore, the valuation of the noise lots is

disputed, and the matter is appropriate for trial.35

                 VI.      “Subdivision” or “Partition” of Parcels for Appraisal Purposes

         Taxpayer contends that the City impermissibly “subdivided” or “partitioned” the airport

property in its valuation. However, as the court has ruled above in the context of determining

“public use,” it is not error for a taxing authority to partition property for appraisal purposes. See

pp. 

, see also Lathrop v. Town of Monkton, 

, ¶ 10, 

(“The Town

is not required to treat an undivided parcel as one economic unit for appraisal purposes if the

highest and best use of the property is as subdivided lots. . . . The development potential of property

is an appropriate factor to consider in fixing appraised values.”).

         Taxpayer argues, however, that here the airport property must be assessed as a single,

undivided whole, citing 32 V.S.A. § 4152(a)(3). That statute provides:


34
   The City argues that Taxpayer’s expert opinion on value must be excluded. The City offers several grounds for
exclusion of the Silver appraisal: (1) he provides no evidence of value of “similar property” in the City; (2) by valuing
the lots as raw undeveloped acres without considering the improvements, he fails to comply with the section 3659
statutory scheme; (3) he does not separately account for the noise lots, instead grouping them into one area; (4) his
highest and best use analysis is invalid because it fails to account for a legal impermissibility; and (5) he makes an
erroneous assumption that the FAA grant assurances amount to an encumbrance with no evidence of how it has
affected sale prices.

Based upon the court’s rulings elsewhere in this decision, the court rejects all of these arguments except the second.
With regard to acquisition years, by not valuing the pre-existing improvements, Silver did not comply with section
3659’s requirement to value the land and preexisting improvements in the year of acquisition. (The record suggests
that some properties were acquired in 2012 and 2013, although many predated the years at issue here. See Ex. CC.)
Silver’s appraisal offers no evidence of value as to the improvements. However, this does not justify excluding him
as a witness at trial. It merely limits his ability to testify on that one issue.

To the extent that the court’s rulings above affect either side’s appraisal, portions of each may be inadmissible or
invalid at trial. The weight of each appraisal, and whether portions are inadmissible, will be determined at trial.
35
  Taxpayer also argues that the value of the noise lots must be reduced from what it paid to acquire the lots because
of their close proximity to the noise-generating airport. The City moves to exclude the Silver affidavit supporting
Taxpayer’s argument here because Taxpayer previously admitted that it paid fair market value for the noise lots. The
City also claims that any reduction in value due to airport noise was already taken into account because the noise has
been there for many years. To the extent that the Silver affidavit (Ex. DD) and appraisals imply that because of airport
noise the lots are worth less than what Taxpayer actually paid, Silver’s affidavit is admissible. Its weight will be
determined by the court at trial.



                                                          57
                    When completed, the grand list of a town shall be in such form as
                    the Director prescribes and shall contain such information as the
                    Director prescribes, including:
                    ...
                    A brief description of each parcel of taxable real estate in the town.
                    “Parcel” means all contiguous land in the same ownership, together
                    with all improvements thereon[.]

This section, however, does not appear to have any bearing on valuation as separate parcels or as

one tract. It simply directs towns procedurally how to list property within a grand list. In re

Beliveau, No. 2009-399, 

, at *1 (Vt. Apr. 1, 2010) does not indicate otherwise.

That case involved a taxpayer who did not challenge the assessed value of his property, “only the

mere fact that both lots are listed as one parcel on the grand list.” 

The grand list must

also include “[t]he listed valuation of each parcel which is not exempt.” 32 V.S.A. § 4152(a)(5).

Assuming the same definition of parcel applies in that sub-subsection, it still does not mandate

anything beyond a particular method of listing each parcel.37

           In re Spectrum Arena, Inc. is similarly inapposite. That case held that the articulated

distinctions between two different stadiums located within the City of Philadelphia “as to the

public purposes they serve are distinctions without differences and are not legally justifiable.” 

, 128 (E.D. Pa. 1971). While that might have been true in that particular case,

Spectrum does not stand for the proposition that all properties everywhere must be treated as a




36
     Indeed, the Supreme Court seemed perplexed by the taxpayer’s argument, and noted in dicta:

                    As an initial matter, it is difficult to discern how taxpayer has suffered any
                    cognizable injury, and therefore, how he has standing to pursue this claim. He
                    does not challenge the assessed value of his property, only the mere fact that both
                    lots are listed as one parcel on the grand list. What harm has he suffered as a result
                    of the Town’s action?

In re Beliveau, No. 2009-399, 

, at *1 (Vt. Apr. 1, 2010).
37
  As noted above, the court is also unpersuaded by the Burlington City Charter definition of “airport.” Taxpayer does
not point to anything suggesting that this general definition is binding in the context of tax valuation.


                                                             58
unitary, undivided whole for tax valuation purposes. Rather, “[t]estimony as to the value of

property if subdivided is generally admissible on the issue of fair market value as evidence of the

highest and best use of that land.” Scott 

(citing Tolman v. Carrick, 

, 192 (1978)).

         The court notes, however, that although partitioning a property for appraisal purposes is

generally legally permissible, it is a factual question whether the highest and best use of the

property is, in fact, as subdivided lots, or as a single, unitary whole. Indeed, “‘[t]here is no hard

and fast rule that can be applied universally to guide assessors in determining whether parcels of

land are to be assessed separately or together. . . . [N]o single factor is decisive of the issue.’”

Fearon v. Town of Amherst, 

, 393–94 (1976) (quoting Town of Lenox v. Oglesby,

, 271 (1942)); see also Neun v. Town of Roxbury, 

, 243–44 (1988) (“All

relevant factors must be considered in determining whether or not property should be assessed as

a single parcel, including whether the property was conveyed in one deed, the character of the land

and the purposes for which it is used, whether separately deeded tracts are contiguous, and whether

the property currently functions as one tract for the owner.”); Vanderminden v. Town of Wells,

, ¶ 12, 

.38 Here, because there is expert testimony that genuinely disputes

whether the highest and best use is as subdivided lots or as a unitary whole, the issue is appropriate

for trial.

                                VII.     Other Non-Residential Real Estate

         The City moves for summary judgment as to the value of eight parcels, which are listed on

page 39 of its motion for partial summary judgment. The City contends that those properties are


38
  The court disagrees with Taxpayer’s claim that the Neun multi-factored test as to whether multiple parcels must be
valued together or separately was superseded by statute as implied by In re Beliveau, No. 2009-399, 

. That is a different issue than how parcels must be listed.



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not subject to sections 3659 or 754, that the only potential issue is whether the grand list value is

correct, and that Taxpayer has submitted no evidence of value as to those properties. Taxpayer

seemingly responds to this argument on page 22 of its opposition, claiming only that the City bears

the burden of proof and must put forth evidence demonstrating the validity of its assessed values.

As there is no evidence in the record that these particular properties are put to a public use, they

are not subject to a presumption of non-taxability, and so neither section 3659 nor section 754 can

apply. Thus, Taxpayer has the burden to submit evidence of value as to those properties if it in fact

contests the grand list value. See New England 

. Because it has not done so,

summary judgment is granted for the City as to those eight parcels.

             VIII.     Immunity or Exemption from Statewide Education Property Tax

        Vermont has a two-tiered property taxation system where a municipality collects a

statewide education property tax on behalf of the State, as well as local taxes which go to the

municipality. The City argues that there is no immunity or exemption from the statewide education

property tax, so at most, Taxpayer’s arguments pertain only to the local portion of property taxes

assessed and collected by the City.

        The statewide education tax is imposed on “all nonresidential and homestead property.” 32

V.S.A. § 5402(a). “Nonresidential property” is defined to include “all property,” but there are

certain listed exceptions. 

Those exceptions include “[p]roperty which is exempt

from the municipal property tax by law and not by vote of the municipality.” 

39
  There is also an exception for “[p]roperty owned by a municipality which is located within the municipality and
which is used for municipal purposes including the provision of utility services.” 32 V.S.A. § 5401(10)(F). However,
by its express terms, it does not exclude municipally owned property which is located outside that municipality from
the statewide education property tax.


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          Here, if Taxpayer succeeds at trial in its arguments that the property is subject to the special

taxation rules of section 3659, it is still subject to taxation, albeit at special rates. That would

therefore not trigger the “exemption” language of Title 32. However, if Taxpayer succeeds on its

claims that section 754 applies, it does expressly state that the property “is not taxable.” It would

therefore be exempt under Title 32. Thus, the resolution of this issue must await trial.

                                                    Order

          The parties’ motions for partial summary judgment are granted in part and denied in part,

in accordance with the decision above:

   I.         The burdens of proof for the various parts of this appeal will be utilized at trial as

              articulated in Section I above.

   II.        Summary judgment is granted for Taxpayer as to the general rule of construction for

              municipal taxation statutes, as discussed in Section II above.

   III.       Summary judgment is granted for the City on the issue of whether the pertinent statutes

              contain a public use requirement.

   IV.        As to whether four particular private leaseholds on the airport are primarily devoted to

              a public use, summary judgment is granted for the City as to 73 Customs Drive and

              1150 Airport Drive, and those locations are subject to taxation at full market value.

              Summary judgment is denied as to 15 Eagle Drive and 1120 Airport Drive, and the use

              of those locations will be determined at trial.

   V.         As to the noise lots:

              A. Specifically as to 5 V.S.A. §§751–754:




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              i. Summary judgment is granted for Taxpayer as to whether 130.2 acres of

                  land were purchased in conformity with sections 751–753, although which

                  parcels make up that 130.2 acres will be determined at trial;

             ii. Summary judgment is granted for Taxpayer as to the legal question of

                  whether land purchased in part with federal funds may be subject to section

                  754, although the factual questions of which land and how it was financed

                  will be determined at trial;

             iii. Summary judgment is granted for Taxpayer as to the construction of

                  section 754. As discussed in Section V above, for lands covered by section

                  754, the payments in lieu of taxes are based on the value of the land alone

                  and the improvements are not taxed;

      B. Summary judgment is denied to both parties regarding the construction of 32

          V.S.A. § 3659. The court holds that the statute unambiguously taxes the land and

          any preexisting improvements at the then assessed value for the acquisition years,

          and as “similar property” for later years (but with a limit on the taxation of any

          post-acquisition improvements. See Section V above. However, because there are

          disputes of fact over what constitutes “similar” property, including whether the

          property should be treated as residential or commercial/industrial/transportation,

          summary judgment is denied on that issue;

VI.   As discussed in Section, although it is not legally impermissible to subdivide or

      partition property for appraisal purposes, this presents a factual question which is

      appropriate for trial;




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   VII.    Summary judgment is granted for the City as to the eight parcels of real estate discussed

           in Section VII above; and

   VIII.   Summary judgment is denied as to the Statewide Education Property tax, as that issue

           must await trial for resolution.

       The clerk will schedule a status conference to discuss trial scheduling, and what appears

to be (buried in the briefs) a request by the City for additional time to conduct discovery. As the

parties do not disagree on the City conducting some such discovery, it should begin now rather

than awaiting the conference.

Dated at Burlington this 3rd day of March, 2016.


                                                      _____________________________
                                                      Helen M. Toor
                                                      Superior Court Judge




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