Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica

Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica (2004-001); 
178 Vt. 35; 869 A.2d 145

2005 VT 16

[Filed 28-Jan-2005]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT 16

                                No. 2004-001


  Our Lady of Ephesus House of Prayer, Inc.	 Supreme Court

                                                 On Appeal from
       v.	                                 Windham Superior Court


  Town of Jamaica	                         September Term, 2004


  John P. Wesley, J.

  Christina Reiss of Gravel and Shea, Burlington, for Plaintiff-Appellant.

  Robin Stern of Potter Stewart, Jr. Law Offices, P.C., Brattleboro, for
    Defendant-Appellee. 


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

       ¶  1.  DOOLEY, J.   Plaintiff, Our Lady of Ephesus House of Prayer,
  Inc. (OLEHOP), appeals a superior court judgment that declined to increase
  the portion of plaintiff's property exempt from property taxation beyond
  the amount determined in a previous ruling.  OLEHOP argues that all of its
  property is exempt as either a pious or public use.  We affirm.
   
       ¶  2.  OLEHOP is a nonprofit corporation organized in Vermont and
  granted tax-exempt status as a church under § 501(c)(3) of the Internal
  Revenue Code by the U.S. Internal Revenue Service (IRS).  Mary and Donald
  Tarinelli incorporated OLEHOP after visits to a shrine at the last
  residence of Mary, the mother of Christ, in Ephesus, Turkey.  The
  Tarinellis deeded OLEHOP 81.7 acres of land, subdivided from the land
  surrounding their own residence, in the Town of Jamaica.  A private road
  serves a common driveway for both the Tarinelli's house and OLEHOP's
  property. 

       ¶  3.  Plaintiff's by-laws describe it as a "private institution which
  exists for the purpose of nurturing the spiritual growth and development of
  all those who come into association for religious services, periods of
  meditation, and spiritual retreats."  In OLEHOP's application to the IRS
  for tax-exempt status, it represented itself as a church without membership
  and open to persons of all faiths.  Plaintiff further indicated that it
  holds services for weddings, stations of the cross, rosary, catechism, and
  occasional meetings for visiting priests.  OLEHOP described its
  ecclesiastical government as "Catholic Faith-this church does not have
  hierarchy." 

       ¶  4.  There are several buildings on OLEHOP's property, including a
  main barn, a smaller barn, three sheds and an abandoned sugarhouse.  In
  2001, the west end of the main barn was converted into a small chapel.  In
  2002, OLEHOP began work on a second, larger chapel next to the smaller one,
  and this work was largely completed in 2003 although the chapel remains
  unheated. Another part of the barn served as an indoor riding ring, and,
  following the collapse of the roof in this area, the space has been
  converted into outdoor parking.  Also, the stable area in the barn was
  converted into room units with bathrooms, and above that two units were
  constructed for visiting priests.  Next to the small chapel is a meditation
  garden and pathway with the Stations of the Cross.

       ¶  5.  The main part of OLEHOP's property is open and undeveloped. 
  Approximately 22.8 acres consists of fenced fields and pastures.  The
  remaining acreage is wooded, with an extensive network of bridle trails
  running through it.  Some of this woodland was sugared in the past.
   
       ¶  6.  The Jamaica listers set plaintiff's property at $511,700 in
  2000, and plaintiff grieved the assessment, claiming the entire property
  was exempt because it was a religious society.  In response, the listers
  adjusted the assessment to $341,500, and plaintiff filed for a declaratory
  judgment in superior court.  In that action, the court accepted that the
  property was used for "pious" purposes, a prerequisite for exemption from
  property taxation under 32 V.S.A. § 3802(4), but further concluded that a
  limiting provision, 32 V.S.A. § 3832(2), allowed only part of the property
  to be  exempt: a small portion of the barn renovated as a modest chapel,
  its lawn, the meditation garden and the pathway containing the Stations of
  the Cross.  Accordingly, the court granted plaintiff an exemption for ten
  percent of the barn's total value and its accompanying well and septic
  system, and for six acres containing the garden, lawn, and Stations of the
  Cross.  The total exemption was $38,494, and the resulting property value
  subject to tax was $473,206.

       ¶  7.  OLEHOP then undertook further renovations to the property,
  adding the large chapel, the room units and the parking area as described
  above, and sought another declaratory judgment, asking the court to
  reexamine the proportion of the property exempt from property taxes in
  light of the changes.  The renovations were incomplete in 2002 at the
  listers' assessment, but were "substantially complete" when the court
  issued its order in 2003.

       ¶  8.  In this second proceeding, plaintiff advanced a new theory. 
  Plaintiff argued that it was not a "religious society," under the operative
  language in the limitation of 32 V.S.A. § 3832(2), and that all of its
  property should be exempt under the "public use" exception of 32 V.S.A. §
  3802(4).  In the alternative, OLEHOP argued that even if it was a
  "religious society" engaged in pious uses, it was entitled to more than a
  ten percent property tax exemption.
   
       ¶  9.  The court found that there was no basis to exempt plaintiff's
  entire property.  Specifically, the court rejected plaintiff's claim that
  it is not a religious society.  The court did not articulate a definition
  for a religious society and acknowledged that the term was ambiguous.  It
  found, however, that "the Legislature must have intended to include any
  organization which, as Plaintiff did here, represented itself as a 'church'
  to the Internal Revenue Service."  Although OLEHOP argued that all of its
  property should be exempt as a "public use," the court rejected this claim
  because the property was unquestionably being used for pious purposes. 
  Further, the court found that the limitations of § 3832(2) would apply
  regardless of whether the use was defined as public or pious because the
  real estate is "owned or kept by a religious society."  The court denied
  plaintiff's request to expand the tax exemption from the 2001 order,
  finding that, even considering the changes made to the property, no greater
  proportion of OLEHOP's property was eligible for exemption.

       ¶  10.  We view the trial court's factual findings in the light most
  favorable to the party prevailing below and will set them aside only for
  clear error.  Brown v. Whitcomb, 150 Vt. 106, 109, 550 A.2d 1, 3 (1988). 
  Our review of questions of law is nondeferential and plenary.  Vt. Alliance
  of Nonprofit Orgs. v. City of Burlington, 2004 VT 57, ¶ 5, 15 Vt. L. Wk.
  183, 857 A.2d 305.  Issues of statutory construction are questions of law
  and, thus, subject to a nondeferential standard of review.  State v. Koch,
  169 Vt. 109, 112, 730 A.2d 577, 580 (1999).

       ¶  11.  We divide OLEHOP's appellate issues into two categories: those
  that would result in a determination that all of its property is exempt
  from taxation, and those that would increase the share of its exempt
  property.  We begin with the first category.

       ¶  12.  OLEHOP's main argument is that it is not subject to 32 V.S.A.
  § 3832(2), primarily because it is not a "religious society," but also
  because its real estate is sequestered and used for both public and pious
  uses.  That subsection provides:

      The exemption from taxation of real and personal estate granted,
    sequestered or used for public, pious or charitable uses shall not
    be construed as exempting:

    . . . . 


      (2) Real estate owned or kept by a religious society other than a
    church edifice, a parsonage, the outbuildings of the church
    edifice or parsonage, a building used as a convent, school,
    orphanage, home or hospital, land adjacent to any of the buildings
    named in this subsection, kept and used as a parking lot not used
    to produce income, lawn, playground or garden and the so-called
    glebe lands.

  32 V.S.A. § 3832 (emphasis added).   This provision must be read with the
  applicable property tax exemption statute:

    The following property shall be exempt from taxation:

    . . . .


      (4) Real and personal estate granted, sequestered or used for
    public,  pious or charitable uses; real property owned by churches
    or church societies or conferences and used as parsonages and
    personal property therein used by ministers engaged in full time
    work in the care of the churches of their fellowship within the
    state . . . .

  Id. § 3802(4).
   
       ¶  13.  As set out above, this argument represents a change from
  OLEHOP's position in 2001 that resulted in the declaration that ten percent
  of the barn's value and a small portion the acreage was exempt from
  property taxation.  Under OLEHOP's current argument its real property is
  exempt under § 3802(4) as "real . . . estate granted, sequestered or used
  for public, pious or charitable uses," but the exemption is not limited
  under § 3832(2) because the limitation applies to "real estate owned or
  kept by a religious society" and only if the use creating the exemption is
  solely "pious."  Id. § 3832(2).  OLEHOP submits that it is not a religious
  society because it does not "have a membership, established vows or tenets,
  and does not engage in the teaching or indoctrination of either the Board
  of Trustees or the members of the public which visit the Property."  It
  submits that the use is public because any member of the public can use the
  chapel and grounds to meditate, contemplate or pray.  We find that
  plaintiff is a religious society and its use is subject to the exemption
  limits of § 3832(2). 

       ¶  14.  We must consider OLEHOP's arguments in light of the statutory
  scheme designed by the Legislature.  Our primary goal in interpreting a
  statute is to give effect to the Legislature's intent.  Town of Killington
  v. State, 172 Vt. 182, 188-89, 776 A.2d 395, 400-01 (2001).  If terms are
  unambiguous we use the plain meaning, but "we will not enforce the common
  and ordinary meaning of statutory language if doing so would render the
  statute ineffective or lead to irrational results."  Id.  Furthermore, in
  construing tax exemptions, the burden is on the person claiming the benefit
  of the exemption, In re Aloha Found., Inc., 134 Vt. 239, 240, 360 A.2d 74,
  ___ (1976), and the exemption statute must be strictly construed against
  that person, In re Abbey Church, 145 Vt. 227, 229, 485 A.2d 1263, 1264
  (1984).
   
       ¶  15.  Our main precedent on the interrelationship between the
  property tax exemption in § 3802(4) and the limitation in § 3832(2) is In
  re Abbey Church.  In Abbey Church, we rejected the argument that § 3832(2)
  was an expansion of § 3802(4)'s general terms.  145 Vt. at 229, 485 A.2d  at
  1265.  The issue in Abbey Church was whether a private individual, who
  owned property leased to a church, could claim the exemption from property
  taxation because the property was "kept" by the church as provided by §
  3832(2).  We held that the exemption was unavailable because § 3802(4) did
  not apply unless the property was owned by a charitable organization.  Id.
  at 230, 485 A.2d  at 1265.  In response to the argument under § 3832(2), we
  held that this section limits the scope of § 3802(4) and cannot create a
  right to an exemption independent of § 3802(4).  Id. at 229, 485 A.2d  at
  1265; see 32 V.S.A. § 3832 (prefacing the list of exceptions for property
  tax exemption with: "[t]he exemption from taxation of real and personal
  estate granted, sequestered or used for public, pious or charitable uses
  shall not be construed as exempting") (emphasis added). 

       ¶  16.  This interpretation is consistent with our rule of
  construction that "[w]here two statutes cover the same subject and one is
  more specific than the other, we harmonize them by giving effect to the
  more specific provision according to its terms."  Cent. Vt. Hosp., Inc. v.
  Town of Berlin, 164 Vt. 456, 459, 672 A.2d 474, 476 (1995).  Also, newer
  statutes will be enforced over older statutes, if there is a conflict.  Id. 
  Further, we earlier held that the purpose of § 3832 was to respond to "a
  growing complaint about the removal from taxation of real estate held for
  tax exempt purposes."  Troy Conference Acad. v. Town of Poultney, 115 Vt.
  480, 490, 66 A.2d 2, 9 (1949).

       ¶  17.  As did the trial court, we need deal only briefly with the
  argument that because OLEHOP admits the public generally, it is not subject
  to the limitations of § 3832(2).  This section specifically provides that
  its limitations apply to property whether it is sequestered or used "for
  public, pious or charitable uses."  32 V.S.A. § 3832(2) (emphasis added). 
  Thus, under the language's plain meaning, it does not matter whether its
  use is exempt because it is public or pious.  In either case, if OLEHOP is
  a religious society, the extent of its tax exemption must be determined
  under § 3832(2). 

       ¶  18.  We must then review the trial court's determination that
  OLEHOP is a religious society.  This is a mixed question of fact and
  law-the factual determination will be overturned only if clearly erroneous;
  the review of the legal conclusion is plenary.  MacDonough-Webster Lodge
  No. 26 v. Wells, 2003 VT 70, ¶ 17, 175 Vt. 382, 834 A.2d 25.  We will
  reverse the superior court decision only if OLEHOP is not a religious
  society as a matter of law.
   
       ¶  19.  The term religious society is quite broad.  "Society" is
  defined as "[a]n association or company of persons united by mutual
  consent, to deliberate, determine, and act jointly for a common purpose." 
  Black's Law Dictionary 1396 (7th ed. 1999).  Religious is defined as
  "having or showing belief in and reverence for God or a deity."  American
  Heritage College Dictionary 1153 (3rd ed. 1997).  Therefore, by these
  dictionaries, a religious society would encompass any association of
  persons united in a common purpose through their belief in God or a deity.  

       ¶  20.  We recognize that the term "religious society" has been used
  for centuries.  The second sentence of Chapter II, § 68 of the Vermont
  Constitution provides: 

    All religious societies, or bodies of people that may be united or
    incorporated for advancement of religion and learning, or for
    other pious and charitable purposes, shall be encouraged and
    protected in the enjoyment of the privileges, immunities, and
    estates, which they in justice ought to enjoy under such
    regulations as the general assembly of this state shall direct.  

  To a very limited degree, they are specially regulated by Chapter 13 of
  Title 11, and § 1501 refers to such societies as having members.
   
       ¶  21.  OLEHOP argues that it is not "religious" within the meaning
  of § 3832(2) because it does not have established vows or tenets and does
  not engage in teaching or indoctrination.  The superior court rejected this
  position largely based on OLEHOP's filing with the IRS that it was a church
  affiliated with the Roman Catholic religion.  We also note that in OLEHOP's
  articles of association, filed with the State, it wrote that it is
  "organized exclusively to provide facilities for the personal growth of
  individuals through reflection and prayer in the Roman Catholic tradition." 
  Further, in its grievance to the Board of Listers on July 16, 2002, OLEHOP
  claimed that it was a "not-for-profit religious organization established
  for the purpose of providing a religious house of prayer."  Although these
  self-representations are not determinative, the superior court could rely
  upon them in reaching its own conclusion about the nature of the
  organization.

       ¶  22.  Moreover, OLEHOP's words are supported by its undisputed
  activities.  As OLEHOP acknowledged in its brief to this Court, "[t]he
  evidence establishes that OLEHOP uses its sacristy, larger chapel, smaller
  chapel, visiting priest's quarters, Stations of the Cross, replica house,
  meditation garden and adjoining parking lot for pious purposes on
  considerably more than a de minimus basis."  OLEHOP has a chapel with pews
  and "artifacts associated with religious worship."

       ¶  23.  Just as the fact-finding is against OLEHOP's position, we view
  its definition of "religious" in § 3832(c) as too narrow.  OLEHOP's lack of
  formal dogma does not prevent it from being a religious society.  See Lamad
  Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 602 S.E.2d 845,
  853 (Ga. Ct. App. 2004) ("It is not the number of worshipers or the
  frequency of worship, but the primary use that defines a place of worship. 
  A place of worship is no less a place of worship, because it allows all to
  freely worship as they believe or chose [sic] and does not impose a dogma
  or ritual."); Goodwill Home & Missions, Inc. v. Garwood Borough, 658 A.2d 1330, 1333-34 (N.J. Super. Ct. App. Div. 1995) (finding that a group
  conducting religious services and accepting persons of all denominations
  constituted a religious congregation); 2 T. Cooley, The Law of Taxation §
  742, at 1552 (4th ed. 1924) ("In order to be exempt as a 'religious'
  society, it is not necessary that the sole purpose be public worship in a
  church, and it has been held that the exemption includes a publishing house
  printing and distributing religious books.").  OLEHOP's operation is based
  on a "belief in and reverence for God," as the dictionary definition
  provides.
   
       ¶  24.  We also reject the argument that OLEHOP cannot be considered
  a society because it has no members.  To the extent members are needed,
  OLEHOP has members sufficient to be considered a society.  In this respect,
  the case is very similar to In re Estate of Curtis, 88 Vt. 445, 92 A. 965
  (1915).  Curtis involved inheritance taxes under a statute that exempted
  legacies to an in-state "charitable, educational or religious society or
  institution."  88 Vt. at 448, 92 A.  at 966.  The testatrix left a sum of
  money to three trustees to hold and invest until it reached a certain sum
  and then to expend it to aid young women and men to obtain an education. 
  This Court posed the issue as whether "the trustees were at liberty to
  become, and by their action since have become, a society within the meaning
  of the statute to receive and administer the trust."  Id. at 451, 92 A.  at
  967-68.  Using a broad definition of a society as set out above, the Court
  held that the trustees were a society:

      If the individuals named in the will as trustees had voluntarily
    associated themselves for the purpose of collecting funds to aid
    needy boys and girls in securing an education or if the legacy in
    question had been given as a foundation of a society thereafter to
    be formed for that purpose and they had associated themselves in
    accordance with the provisions of the will to receive the legacy,
    no one would question but that in so doing they had formed a
    charitable association or society.  In that case their right to
    receive a legacy for the purpose of their association would not be
    taxable under the statute in question.

    . . . .


      We hold that under the provisions of this will the board of
    trustees are a charitable society within the meaning of the
    exemption clause of the statute, and that they are entitled to
    receive the legacy . . . exempt from the inheritance tax.

  Id. at 452-53, 92 A.  at 968.

       ¶  25.  We recognize that Curtis was based, in part, on a liberal
  construction of the statute to protect the charitable purpose of the
  legacy.  Id. at 450, 92 A.  at 967.  Here, we must narrowly construe the tax
  exemption, and a broad construction of "society" is consistent with this
  purpose.  If the three trustees in Curtis are a society as decided in that
  case, the seventeen trustees of OLEHOP are equally a society under the
  broad definition of the term. (FN1)
    
       ¶  26.  In reaching our conclusion that OLEHOP is a religious society,
  we are also influenced by an inability to ascertain a legislative intent
  consistent with OLEHOP's definition of religious society.  Under OLEHOP's
  interpretation of the language, it is entitled to a property tax exemption
  where a traditional church occupying the same space, with the same uses,
  would not be entitled to the exemption.  While we understand that OLEHOP
  may operate differently from a traditional church, we discern no
  differences that would affect tax exemption policy.  Thus, in keeping with
  the relatively broad terminology used in describing entitlement to some
  exemption under § 3802(4), we conclude that we should broadly construe §
  3832 to complement the entitlement language.  See Experiment in Int'l
  Living, Inc. v. Town of Brattleboro, 127 Vt. 41, 45, 238 A.2d 782, 785
  (1968) ("[O]ur statutes relating to tax exemption must be construed as
  parts of one system."), overruled on other grounds by Am. Museum of Fly
  Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 557 A.2d 900 (1989).
   
       ¶  27.  Although  OLEHOP supports its definition in part with cases
  from other jurisdictions, we find that the decisions support the conclusion
  we have reached.  Probably the most similar decision is Institute in Basic
  Life Principles, Inc. v. Watersmeet Township, 551 N.W.2d 199, 204 (Mich.
  Ct. App. 1996), in which the court found that an organization conducting
  Biblical seminars was a "religious society" within the meaning of the
  property tax exemption statute.  The court defined religious society as an
  organization whose "predominate purpose and practice include teaching
  religious truths and beliefs," and concluded that the statute does not
  require "religious society" to have members, noting in part that the
  Nonprofit Corporation Act allows nonprofit corporations to be organized
  without members.  551 N.W.2d  at 203-04.  The court reasoned:

    [N]othing within [the statute] . . . requires that a religious
    society have members.  This narrow interpretation of the statute,
    in reliance on out-of-state authority, precludes exemptions for
    property owned by ecumenical religious societies, such as
    petitioner, even though the property is used for teaching
    religious beliefs and truths.  The Tax Tribunal's definition
    further excludes from exemption religious entities with only loose
    affiliations with organized religions.  Although petitioner may
    not fall within the traditional definition of a religious society,
    that does not mean that it is not entitled to an exemption as a
    religious society under the house of public worship exemption.

  Id. at 204.

       ¶  28.  In  World Evangelistic Enterprise Corp. v. Tracy, a Christian
  radio broadcast facility applied for tax exemption as a " 'house[] used
  exclusively for public worship,' " arguing that its broadcast center was
  used to encourage public worship.  644 N.E.2d 678, 680 (Ohio Ct. App. 1994)
  (quoting Ohio Rev. Code Ann. § 5709.07(2)).  In holding for the broadcast
  corporation, the court invoked a constitutional provision against giving
  preference to any religious society.  In its opinion, the court noted that
  the term "society" traditionally "involved a community of persons living
  and worshiping together" and acknowledged that "[r]adio broadcasts of
  religious programs do not constitute an institutionalized church, which is
  the traditional form of religious society."  Id. at 681.  It concluded,
  however, that "for purposes of the tax exemption concerned, the test does
  not concern the form of a religious society but the fact of its existence." 
  Id.  The court held that the statute 
   
    must accommodate a structure or facility that is used exclusively
    or primarily to propagate a religious message to persons who
    receive that message for a worshipful purpose.  Those who engage
    in that activity constitute a form of religious society, whether
    they are gathered where the religious message originates or are
    dispersed elsewhere.
   
  Id.
       ¶  29.  Just as in Watersmeet Township and Tracy, OLEHOP may not meet
  the traditional concept of a religious society, but it meets a fair
  definition of that term consistent with its purposes.  As expressed in
  Tracy, our concern is not whether its form is traditional, but whether it
  exists.  OLEHOP is an association of people that are united in their common
  purpose of providing a place of prayer and worship and are motivated to do
  so through their belief in God.

       ¶  30.  We turn now to OLEHOP's arguments that would increase the
  share of its property found exempt.  In this category, OLEHOP argues that
  even if it is considered a religious society under the statute,  the
  superior court erroneously applied a quantum of use test to determine which
  portion of plaintiff's property could be properly allocated as "pious."  It
  further argues that the court erred in not finding a greater portion of the
  property exempt in light of the modifications made by OLEHOP since the 2001
  adjudication.  Before we examine these arguments, we must explain the
  unusual procedural circumstances involved in this case.  

       ¶  31.  Although OLEHOP's declaratory judgment action generally sought
  a declaration that its property was exempt from property taxation, its
  factual statement made it clear that the action was, in essence, an appeal
  of the Town's 2002 assessment.  OLEHOP itemized the changes in the
  property's use as of the complaint's date of the filing, September 23,
  2002.  The case was heard almost a year later in August, 2003.  The court's
  judgment was simply "petition for declaratory judgment is denied," leaving
  in place the 2002 assessment.
   
       ¶  32.  In its 2001 decision, the superior court evaluated OLEHOP's
  use of each part of its property.  Relying upon Governor Clinton Council,
  Inc. v. Koslowski, 137 Vt. 240, 249, 403 A.2d 689, 695 (1979), the court
  held that a use must be substantial to qualify for property tax exemption. 
  This holding was particularly challenging for OLEHOP because it was slowly
  engaged in a process of converting property used for housing and riding
  horses into its religious retreat.  Thus, of the structures on the
  property, the court found that only a portion of the main barn was used for
  pious purposes consistent with § 3832.  Apparently with agreement of the
  parties, the court chose to divide the value of the barn building, allowing
  an exemption for the percentage of the barn actually being used for uses
  exempt under § 3832(2).  It found the authority to divide the value of a
  building in Medical Center Hospital v. City of Burlington, 131 Vt. 196,
  199, 303 A.2d 468, 470-71 (1973). (FN2)  
   
       ¶  33.  Although OLEHOP's complaint did not state so, it made clear
  at the bench trial that it wanted to revisit the 2001 allocation decision
  in light of the property's new construction if it did not prevail on its
  argument that the entire property was tax exempt.  Neither OLEHOP nor the
  Town sought to revisit the court's approach of dividing the value of the
  main barn.

       ¶  34.  The issues presented to the court caused uncertainty about the
  proper procedure.  Relying on our precedent that a property owner claiming
  a property tax exemption could bypass the assessment appeal procedure and
  bring a declaratory judgment action, see Subud of Woodstock, Inc. v. Town
  of Barnard, 169 Vt. 582, 583, 732 A.2d 749, 750 (1999) (mem.); Gifford
  Mem'l Hosp. v. Town of Randolph, 119 Vt. 66, 70, 118 A.2d 480, 483 (1955),
  OLEHOP insisted that its challenge was a declaratory judgment action only. 
  This position was of little consequence in OLEHOP's action for declaratory
  judgment in response to the 2001 listing because OLEHOP used the
  administrative appeal process for that year and the declaratory judgment
  action was filed in superior court within the time limit for an appeal. 
  There was a consequence in the declaratory judgment action to the 2002
  listing, however, because OLEHOP, and then the Town, introduced evidence of
  structural modifications, and use, without regard to when these occurred. 
  Eventually, the evidence moved into how the Town assessed the property in
  2003, although some of OLEHOP's claims were not presented to the listers
  even in 2003.
   
       ¶  35.  Our statutory scheme requires the listers to assess taxable
  property as of April 1 for the ensuing year.  32 V.S.A. § 3651; Robtoy v.
  City of Saint Albans, 132 Vt. 503, 505, 321 A.2d 45, 47 (1974).  There is
  no statutory authorization for a rebate if property becomes exempt from
  taxation after that date but within the same tax year.  Thus, under the
  2001 holding, the question for OLEHOP and the Town was the value of the
  property not exempt from taxation on each April 1, as OLEHOP continued its
  modification of the buildings and the uses of the property.  Under these
  unique circumstances, each annual determination involves a combination of
  exemption and assessment determinations.  We conclude that to maintain the
  integrity of the assessment and review process, specifically to give the
  listers the opportunity to inspect and assess the property on the relevant
  date, OLEHOP must first go through the assessment review process and then
  use an appeal to contest that assessment decision, including the portion of
  exempt property.  See 32 V.S.A. §§ 4222 (grievance of lister's assessment),
  4404 (appeal to board of civil authority), 4461 (appeal from board to
  director or superior court).  Indeed, if we do not authorize and require
  use of this process, OLEHOP will have to file a declaratory judgment action
  each year to arrive at an enforceable allocation for that year.

       ¶  36.  In this case, based on its complaint and proposed findings of
  fact, OLEHOP contested only the 2002 tax assessment.  Although evidence of
  structural modifications and new uses after that date was introduced, we do
  not believe that this evidence changed the fundamental nature of the case
  from an appeal of the 2002 assessment.  Therefore, we reach only questions
  pertaining to facts presented at the time of the 2002 assessment.

       ¶  37.  We now reach OLEHOP's arguments that additional parts of its
  property should be found exempt: (1) the second, larger, chapel in the
  barn; (2) the new parking area created after part of the barn roof
  collapsed; and (3) the apartments used for visiting clergy.  We summarily
  reject OLEHOP's arguments with respect to the first two items.  Both were
  constructed after April 1, 2002, and, thus, would not be considered in the
  2002 tax assessment that was before the court.
   
       ¶  38.  We affirm the superior court's decision with respect to the
  apartments.  Mary Tarinelli testified that some of these rooms are reserved
  for visiting clergy while others are open to the public.  We agree with the
  trial court and "cannot interpret § 3832(2) to cover as a 'parsonage' the
  rooming units occasionally reserved for visiting clergy."  A parsonage is
  commonly defined as a residence for an ordained minister who is serving a
  congregation's needs.  Corp. of Presiding Bishop of Church of Jesus Christ
  of Latter-Day Saints v. Ada County, 849 P.2d 83, 90 (Idaho 1993) (citing
  cases); St. John's Evangelical Lutheran Church v. City of Bay City, 319 N.W.2d 378, 382 (Mich. Ct. App. 1982).  OLEHOP's new apartments cannot be
  construed as a parsonage because visiting clergy are not in residence on a
  permanent basis and do not conduct pastoral duties or minister to a
  congregation.  

       ¶  39.  Finally, we come to OLEHOP's argument that the court
  improperly used a "quantum-of-use" test to determine whether particular
  parts of the property were tax exempt.  Plaintiff submits that once the
  court determines an organization uses property primarily for pious
  purposes, there should be no examination of the magnitude of that use. 
  OLEHOP alleges that the trial court engaged in an improper subjective
  analysis of whether its activities were sufficiently pious, frequent or
  substantial to qualify for tax exemption and that this analysis constituted
  excessive entanglement in violation of First Amendment protections. 
  Specifically, OLEHOP argues that courts should not be arbiters of what uses
  are sufficiently pious to qualify for the exemption.  
   
       ¶  40.  OLEHOP did not raise this constitutional argument in the
  trial court and we conclude that it was not preserved.  In addition, we
  note that the U.S. Supreme Court long ago affirmed states' ability to
  provide property tax exemption for religious institutions.  Walz v. Tax
  Comm'n of N.Y., 397 U.S. 664, 676-77 (1970).  In the past, we have rejected
  the notion that simply because the court must decide whether an
  organization fits within a statutorily defined exemption there is
  necessarily entanglement.  Chittenden v. Waterbury Ctr. Cmty. Church, 168
  Vt. 478, 487, 726 A.2d 20, 26-27 (1998) ("[I]f a court's analysis and
  decision-making constituted 'excessive government entanglement' then
  religious institutions would never have recourse in court as to any dispute
  in which their religious status was in issue.").  Even under OLEHOP's
  analysis, the court must determine the "primary use" of property to
  determine if it is an exempt use.  Inst. of Prof'l Practice, Inc. v. Town
  of Berlin, 174 Vt. 535, 538, 811 A.2d 1238, 1242 (2002) (mem.).  This
  property-specific inquiry is mandated by § 3832(2), which does not provide
  a blanket exemption for all property put to pious use, but instead limits
  the exemption to property used for specific purposes. 

       ¶  41.  OLEHOP's argument is based primarily on the superior court's
  reliance on Governor Clinton Council, Inc., 137 Vt. at 249, 403 A.2d  at
  695, for the proposition that a use must be substantial to be considered
  for purposes of determining exemption from property taxation.  To the
  extent the court employed a substantial use test, it was with respect to
  the additional parking area and the second chapel, property modifications
  not in place on April 1, 2002.  Thus, even if OLEHOP had properly preserved
  this argument, it was premature.

       ¶  42.  As we stated above, the court's judgment in this case was
  "petition for declaratory judgment, DENIED."  As we have explained the
  scope of the action above, we conclude that the court's entry was correct.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  A Board of Trustees list was presented to the trial court.  It shows
  seventeen people, but twelve entries, the difference reflecting the listing
  of husband and wife at the same address in five entries.  Even if there are
  only twelve trustees, our conclusion would be the same.


FN2.  In Medical Center Hospital, we held:

      The critical question for determining whether property is entitled
    to a charitable or public use exemption, under the provisions of
    32 V.S.A. § 3802(4), is the use to which the property is put,-not
    its ownership.  It is the primary as distinguished from an
    incidental use of the property that determines whether it is
    exempt from taxation.

      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.  In the case of Chapman v. Draughons School of
    Business, 287 P.2d 903 (Okl. 1955), it was held that when an
    exempt entity uses nine floors of an eleven story building for
    exempt purposes and leaves two floors for commercial use,
    two-elevenths of the property's value is subject to taxes and
    nine-elevenths is exempt.

  131 Vt. at 199, 303 A.2d  at 470-71 (citations omitted).  The evidence was
  not present to perform the allocation in Medical Center Hospital so we
  could not perform the required analysis.  None of our decisions since have
  applied an analysis that allocates space within a building between exempt
  and non-exempt.  We do not decide whether such an allocation was
  appropriate in this case because no party has contested the decision to
  allocate the space in the large barn.