Layden v. City of Rutland

Layden v. City of Rutland (98-459); 169 Vt. 594; 737 A.2d 894

[Filed 01-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-459

                               JUNE TERM, 1999


Thomas J. Layden	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Rutland Superior Court
	                               }	
City of Rutland and Ronald Graves      }
	                               }	DOCKET NO. S0434-97/648-97RcCa	


             In the above-entitled cause, the Clerk will enter:

       Plaintiff Thomas Layden appeals the superior court's grant of summary
  judgment for   defendant City of Rutland, claiming that the development
  rights and interests he acquired in a  condominium project are not subject
  to taxation by the City under 27 V.S.A. § 1322.  We  affirm.
	
       The essential facts are not in dispute.  On February 14, 1997,
  plaintiff purchased Country  Grove Condominiums, an incomplete condominium
  project developed by Patch Pond  Partnership.  Prior to the purchase, the
  project had been the subject of a tax dispute between the  partnership and
  the condominium owners and the City.  By stipulation, the undeveloped
  property  of Country Grove Condominiums was taxed to the partnership,
  separately from the individual  condominium owners' tax assessment.
	
       The partnership's condominium project was subsequently foreclosed upon
  by Marble  Bank and the land and premises conveyed to Sowamco X, Ltd. by
  limited warranty deed.   Sowamco X, Ltd. then conveyed the same land and
  premises to plaintiff.  In a separate "bill of  sale," Sowamco X, Ltd.
  conveyed to plaintiff the personal property located on the real property 
  and the intangible property attached to it, including development rights. 

       Plaintiff filed a request for declaratory judgment with the superior
  court for a  determination as to whether the taxes assessed against the
  development rights were invalid under  27 V.S.A. § 1322, a provision
  contained in the Condominium Ownership Act.  In a companion  case,
  plaintiff filed a tax appeal from the assessment of the Board of Civil
  Authority of Rutland.   The court consolidated the two cases and plaintiff
  filed motions for summary judgment with the  City filing cross motions. 
  Without addressing § 1322, the court determined that, based on the  deed,
  the bill of sale, and the stipulation entered into by the prior owner and
  the City, real  property was transferred to plaintiff along with the
  development rights of the property.  The  court found that although
  development rights were transferred, the acquired land was physical 
  property held separately from the condominium owners' association and
  therefore subject to  separate taxation by the City.  The court granted the
  City's motion for summary judgment and  plaintiff appealed. 

       Plaintiff claims that because only non-taxable condominium development
  rights were  transferred, 27 V.S.A. § 1322 controls the disposition of this
  tax dispute.  Plaintiff argues that  the land may not be taxed separately
  to plaintiff because the undeveloped land is included in the  common areas
  of the condominium association under § 1322, and is therefore included in
  the  taxes

 

  assessed to the individual condominium owners. 
	
       We review a motion for summary judgment using the same standard as the
  trial court.   See O'Donnell v. Bank of Vermont, 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997).  Summary  judgment is granted only when the moving party
  has demonstrated that there are no genuine  issues of material fact and the
  moving party is entitled to judgment as a matter of law.  See id.  
	
       Before we reach the issue of whether 27 V.S.A. § 1322 applies, we must
  first determine  whether the Condominium Ownership Act applies.  We
  determine that the property at issue falls  within the Condominium
  Ownership Act.  See 27 V.S.A. § 1303 (chapter applies only to  property
  subject to properly executed and recorded declaration).  We reach this
  conclusion by  examining the controlling declaration of condominium for
  Country Grove Condominium at the  time of the acquisition by plaintiff in 
  February 1997.   In that document, the partnership was the  "declarant" and
  owner of "lands and premises which are made subject to this Declaration."  
  Under section 20 a), the declarant reserved the "right and exclusive
  authority to act for and as  the Owners' Association until the sale and
  conveyance of 75% of Country Grove Units," with  the additional provision
  that at declarant's sole discretion, the authority to operate and manage 
  the owners' association could be transferred to the unit owners prior to
  the sale of seventy-five  percent of the units.  Additionally, the
  declarant could, without consent of the owners or any  persons, "modify the
  development plan for undeveloped Phases of Country Grove."
	
       At the time of the transfer to plaintiff, only forty-four of the
  proposed sixty-four  condominiums had been constructed, less than
  seventy-five percent of the project.  No  amendments stating that the
  partnership was no longer controlling the condominium owner's'  association
  had been filed.  At the time of purchase, plaintiff acquired exclusive
  control over the  owners' association, the common areas, and the
  undeveloped land and development rights of the  project.  Thus any
  undeveloped land associated with the project and the development rights
  were  contained within the declaration of condominium and therefore fall
  under the rubric of the  Condominium Ownership Act.  

       After reaching this conclusion, we re-frame the issue to be  whether
  "undeveloped land"  subject to a declaration of condominium is the same as
  "common areas."  We hold that they are  not.  Therefore the undeveloped
  land could be taxed to plaintiff separately from the  condominium owners.  

       Section 1322 provides: "Each apartment . . . and its percentage of
  undivided interest in  the common areas and facilities shall be considered
  to be a parcel and shall be subject to separate  assessment and taxation." 
  27 V.S.A. § 1322 (emphasis added).  "Common areas and facilities"  includes
  land on which the buildings are located, yards, gardens, private roads and
  streets,  parking areas and storage spaces, community facilities if
  provided in the declaration, and "[a]ll  other parts of the property
  necessary or convenient to its existence, maintenance and safety, or 
  normally in common use."  27 V.S.A. § 1302(6)(H) (emphasis added). 
  Furthermore, "[t]he  percentage of the undivided interest of each apartment
  or site owner in the common areas and  facilities as expressed in the
  declaration shall have a permanent character."  27 V.S.A. § 1306  (b)
  (emphasis added). 

       Our goal in interpreting statutes is to give effect to the intent of
  the Legislature.  See  Russell v. Armitage, 166 Vt. 392, 403, 697 A.2d 630,
  637 (1997).  When the meaning of a  statute is plain on its face, we
  enforce it according to its terms.  See id.  We conclude from the  plain
  language of §§ 1322, 1302 and 1306 that common areas taxed to condominium
  owners  individually apply only to those lands normally in common use by
  owners and not yet-to-be-

 

  developed lands subject to the declaration of condominium.  

       Here, the declaration of condominium's site plan described the "lands"
  separately from  the "premises, common areas, limited common areas and
  common facilities."  Furthermore,  after purchasing the property, plaintiff
  applied for, and was granted, an amendment to the land  use permit altering
  the development project from twenty-four unbuilt condominiums to four 
  single family homes.  In his application for the amended land use permit,
  only plaintiff is listed  as the applicant and landowner, with plaintiff's
  legal interest in the land listed as "ownership in  fee simple."  We
  conclude that plaintiff is subject to taxation by the City for the
  undeveloped  land  included in the declaration of condominium.

       Affirmed. 
   
	

	

	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice

	                               _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice