McKinney v. Town of Coventry

Decision Date13 February 1979
Citation410 A.2d 453,176 Conn. 613
CourtConnecticut Supreme Court
PartiesDavid A. McKINNEY et al. v. TOWN OF COVENTRY et al.

William E. Breslau, Vernon, with whom was Joel M. Fain, Merrow, for appellants (plaintiffs).

Abbot B. Schwebel, Rockville, with whom was Joseph J. Kristan, Jr., Rockville, for appellees (defendants).


COTTER, Chief Justice.

On February 23, 1961, William A. McKinney and Dorothy M. McKinney, the parents of the plaintiff David A. McKinney, acquired approximately 234 acres of land in Coventry known as "The McKinney Farm." Public Act No. 490, enacted by the 1963 General Assembly, provided for a reduced property tax rate for land which the municipal tax assessor determined eligible for classification as farmland, forest land or open space land. 1 Pursuant to that legislation, William A. McKinney obtained farmland classification for approximately 230 acres of the property on the Coventry tax lists for the years 1968, 1969 and 1970. On March 13, 1971, "The McKinney Farm" was sold for $38,500 to the plaintiffs, David A. McKinney and Donna H. McKinney. Subsequently, in October, 1971, the plaintiffs classified a major portion of the property as farmland in accordance with Public Acts 1963, No. 490. See General Statutes § 12-107c.

The 1972 General Assembly enacted Public Act No. 152, effective October 1, 1972, establishing a conveyance tax on land classified as farm, forest or open space land at time of transfer or change in classification, which has been codified with certain amendments not pertinent to this case as General Statutes §§ 12-504a 12-504f. On October 25, 1972, the plaintiffs renewed the farmland tax list classification for their property under the provisions of Public Acts 1963, No. 490. Thereafter, on December 28, 1972, they conveyed the premises known as "The McKinney Farm" by warranty deed to the Lorco Corporation for $500,000.

The dispute which is the subject of the present appeal originated when the warranty deed was tendered to the defendant town clerk for recording in mid-January, 1973, and when she refused to record the deed unless the plaintiffs paid her a conveyance tax of $27,450 alleged to be due pursuant to the provisions of Public Acts 1972, No. 152. 2 The plaintiffs paid the tax under protest and thereafter initiated the present action seeking a return of the amount paid together with interest and a permanent injunction restraining the defendants from imposing a tax upon them under Public Acts 1972, No. 152, claiming, inter alia, that the tax imposed under that act was in violation of the state and federal constitutions. From a judgment in favor of the defendants, the plaintiffs have appealed to this court.

The principal issue for our determination in this appeal is whether the trial court erred in sustaining the validity of the 1972 conveyance act in light of the plaintiffs' constitutional challenge. It is significant to note that the plaintiffs did not appeal from the imposition of the tax in question to the board of tax review as authorized by § 4 of Public Acts 1972, No. 152, codified as § 12-504d of the General Statutes. In addition, the plaintiffs' complaint in the present collateral challenge to the validity of the taxing statute itself did not allege that the tax imposed upon them was improperly calculated. Consequently, to prevail in this action and obtain reimbursement of the taxes paid, the plaintiffs must establish the invalidity of the assessment in the first instance. See Vecchio v. Sewer Authority, 176 Conn. 497, 500, 408 A.2d 254; Vaill v. Sewer Commission, 168 Conn. 514, 518-19, 362 A.2d 885; Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898; 14 McQuillin, Municipal Corporations (3d Ed. Rev.) § 38-188. The plaintiffs have chosen to proceed in that manner on the basis of their claims that the taxing statute was unconstitutional as it existed at the time in question.

The constitutional claims pursued by the plaintiffs in this appeal are predicated upon the due process provisions of the state and federal constitutions which generally have the same meaning and impose similar constitutional limitations. State v. Pastet, 169 Conn. 13, 19 n.5, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270; Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845. The plaintiffs make two interrelated assertions: first, that Public Acts 1972, No. 152, failed to provide them with reasonable and fair notice of the potential conveyance tax consequences of renewing their farmland classification; and second, that the wording of that act is so inconsistent and unintelligible as to be unconstitutionally vague. Since the accepted analysis of the so-called vagueness doctrine is, in large part, based upon considerations of the traditional due process requirements of notice and nondiscretionary standards, those two constitutional claims are, in reality, founded upon the same common premise and thus may be treated as one.

In 1926, the United States Supreme Court in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322, a case involving a statute imposing criminal sanctions for its violation, succinctly explained the notice requirement upon which the vagueness doctrine rests, stating: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." See comment, "Recent Supreme Court Developments of the Vagueness Doctrine," 7 Conn.L.Rev. 94 (1974). It is often within the context of challenges to statutes limiting or impinging upon First Amendment freedoms that the void for vagueness doctrine emerges. See Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39 L.Ed.2d 605.

Pertinent portions of the 1972 conveyance tax act are set forth in the footnote. 3 As the plaintiffs indicated at oral argument, their claim that the statute is unconstitutionally vague is directed at the first section of the act which sets forth the general conditions under which the conveyance tax is applicable. More specifically, the plaintiffs take exception to that portion of § 1 which provides for the imposition of a tax when classified land is sold within a period of ten years "From time of initial acquisition or classification, whichever is earlier." (Emphasis added.) They contend that the above quoted phrase fails to provide a clear declaration or direction whether the "tacking" of successive periods of ownership of classified farmland is allowable in ascertaining the tax, if any, on the present owner of such land, and is accordingly unconstitutionally vague.

Due process requires that a statute afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. United States Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222; Stolberg v. Caldwell, 175 Conn. 586, 610, 402 A.2d 763; Mitchell v. King, 169 Conn. 140, 143, 363 A.2d 68. A statute is not void for vagueness, however, simply because it may be open to two possible constructions; Williams v. Brewer, 442 F.2d 657, 660 (8th Cir.); see In re Davis, 242 Cal.App.2d 645, 652, 51 Cal.Rptr. 702; or "merely because the imagination can conjure up hypothetical situations in which the meaning of some terms may be in question. American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925." Schiller Park Colonial Inn, Inc. v. Berz, 63 Ill.2d 499, 513, 349 N.E.2d 61, 68.

Although the vagueness doctrine has been applied in cases not involving criminal statutes; see annot., "Supreme Court's Application of Vagueness Doctrine to Noncriminal Statutes or Ordinances," 40 L.Ed.2d 823; see Wiegand v. Heffernan, 170 Conn. 567, 575, 368 A.2d 103; stricter standards of permissible statutory vagueness have been applied to statutes imposing criminal penalties where a greater degree of specificity is demanded than in other contexts; see Campbell v. J. D. Jewell, Inc., 221 Ga. 543, 547, 145 S.E.2d 569; Shobe v. Borders, 539 S.W.2d 330 (Mo.App.); 1A Sutherland, Statutory Construction (4th Ed.) § 21.16, cum.sup., p. 22 (1978); and, "(w)hen First Amendment rights are involved, (courts) look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer." Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469; Smith v. Goguen, Supra.

The present statute under consideration neither imposes criminal sanctions nor attempts to regulate conduct protected by the First Amendment. Moreover, no claim is made by the plaintiffs that the language of Public Acts 1972, No. 152, failed to provide them with a reasonable opportunity to know that certain specified transfers of land classified as farmland would be subject to a conveyance tax. Rather, they contend that the statute's alleged vagueness arises with regard to the language relating to the computation of the "holding period" for such land which determines the rate of tax, if any, imposed upon sellers at the time their classified farmland is transferred.

A reading of the legislation makes it clear that the statutory provision imposing a tax when classified farmland is sold "within a period of ten years from time of initial acquisition or classification, whichever is earlier," was, in terms of...

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