City of Winooski v. City of Burlington

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 89-151
 
 
City of Winooski and Raymond J.              Supreme Court
Clavelle, Sr., as Delinquent
Tax Collector                                On Appeal from
                                             Chittenden Superior Court
     v.
                                             March Term, 1990
City of Burlington
 
 
 
Matthew I. Katz, J.
 
William E. Wargo, Winooski City Attorney, Winooski, for plaintiffs-
appellants
 
Joseph E. McNeil and William F. Ellis of McNeil & Murray, Burlington, for
   defendant-appellee
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     PECK, J.   The City of Winooksi appeals the trial court's decision that
imaginary surfaces extending from the Burlington International Airport into
airspace over Winooski cannot be assessed and taxed by the City under 32
V.S.A. { 3659.  We affirm.
     Federal Aviation Regulation 14 C.F.R. { 77.25 (l989) creates certain
finite civil airport "imaginary surfaces" above the earth's surface
extending out from the airport and its runways for airplane takeoff and
landing.  Winooski contends that these extensions of the airport are
measurable and taxable under 32 V.S.A. { 3659 because they project into the
airspace above the city.  The City of Winooski and its collector of
delinquent taxes sought a declaration that the airspace in question could be
assessed and taxed under the statute, and demanded judgment against the
City of Burlington for alleged delinquent property taxes.  Burlington
responded with a motion to dismiss.  The superior court granted the motion,
ruling that the imaginary surfaces above Winooski were not land subject to
taxation under the statute.  This appeal followed.
     The surfaces encroaching on Winooski's airspace are required and
established by federal regulations, not by the City of Burlington.
Burlington has no property interest in this airspace, and has acquired
nothing outside its territorial limits within the meaning of 32 V.S.A. {
3659, which provides that "[l]and and buildings of a municipal corporation
. . . situated outside of its territorial limits shall be taxed by the
municipality in which such land is situated."  (Emphasis added.)  The taxing
power granted by this section is to be strictly construed.   City of
Montpelier v. Town of Berlin, 143 Vt. 291, 293, 465 A.2d 1104, 1105 (l983).
     Despite appellants' imaginative and effective presentation, we are
unwilling to usurp the Legislature's role by a liberal interpretation of the
statute, and decline to hold that the "imaginary surfaces" above the airport
constitute "land" within the meaning of 32 V.S.A. { 3659.  We are convinced
that the novel facts and the claims made in this case were not anticipated
by the Legislature when { 3659 was enacted.  A statute which does not
contemplate a particular question will not be extended by the courts to
cover an unforeseen situation.  See In re Knapp,     Vt.    ,    , 564 A.2d 1064, 1067 (l989).  For us to do so, certainly in this case, would
constitute impermissible judicial legislation, invade the province of the
Legislature, and violate the separation of powers doctrine.  Courts will
not, and undoubtedly should not, amend laws enacted by the Legislature under
the guise of statutory construction.  "We will only expand the plain meaning
of a statute by implication when necessary to make the statute effective."
McAllister v. AVEMCO Ins. Co., 148 Vt. 110, 112, 528 A.2d 758, 759 (1987).
     This Court is satisfied that the airspace involved in this case does
not meet the definition of taxable property under { 3659.
     Affirmed.
 
 
 
                                   FOR THE COURT:
 
 
 
                                   Louis P. Peck, Associate Justice