University of Vt. v. Town of Essex, 177-70

• Decision Date: 07 December 1971
• Docket Number: No. 177-70,177-70
• Citation: 285 A.2d 728,129 Vt. 607
• Court: Vermont Supreme Court
• Parties: , 55 A.L.R.3d 477 UNIVERSITY OF VERMONT and State Agricultural College v. TOWN OF ESSEX and Town of Colchester.

Page 728

285 A.2d 728

129 Vt. 607, 55 A.L.R.3d 477

UNIVERSITY OF VERMONT and State Agricultural College v. TOWN OF ESSEX and Town of Colchester.

No. 177-70.

Supreme Court of Vermont.

Dec. 7, 1971.

Latham & Eastman, Burlington, for plaintiffs.

Kolvoord & Overton, Essex Junction for appellant Town of Essex.

Wick, Dinse & Allen, Burlington, for appellant Town of Colchester.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

The University of Vermont and State Agricultural College, hereinafter termed UVM, brought separate actions for declaratory judgment against the defendant towns seeking a determination of a continuing dispute between UVM and the towns, on whether or not the towns were entitled to be paid property taxes assessed against real property of UVM located in the respective towns. After hearings on the consolidated actions, the Chancellor below made findings of fact and entered judgment orders and decrees adjudging that the property of the plaintiff, UVM, was exempt from taxation in each of the respective towns. The defendant towns have taken their appeal here from the judgment orders and decrees and to certain findings of fact filed below.

The plaintiff, as an instrumentality of the State of Vermont, provides facilities for, and instruction in, higher education in the City of Burlington, Vermont. The land, which is the subject of this controversy was the former Fort Ethan Allen, once the property of the United States Government, and was acquired by UVM at no cost from the Federal government in 1964, after the discontinuance of the military facility there. This property is located in the two defendant towns, and is located some six miles from the main campus of UVM in Burlington.

After this property was acquired, UVM renovated and restored the former officer's quarters, most of which are large brick houses, to make them suitable for housing facilities. In addition to the seventy-four residences thereon, there is also a very large open area, the former parade ground, now used by the occupants of the various houses as a recreational area.

It is the claim of UVM that these properties are exempt from taxation under the provisions of No. 66 Public Acts of 1955, subsection 7(15), which reads as follows:

'Real and personal property now held or owned or hereinafter acquired by the University of Vermont and State Agricultural College for educational purposes shall be exempt from taxation.'

Before we turn to the question presented, which is whether the properties owned by UVM in the defendant towns is used for educational purposes, and would thus be exempt from taxation under the above statute, we must first consider various of the findings of fact made below.

Without objection, the Chancellor found that prior to the acquisition of this property the plaintiff had no housing facilities that were available to or for its faculty members. Also found was that these various properties were used only as residences, and not for teaching or instructional purposes. While the properties have never been used for commercial purposes, they have been occupied at times by graduate or advanced degree students.

Occupancy of the housing units by plaintiff's personnel is limited from three to four years under recent restrictions. However, other tenants have occupied some of the residences for much longer periods, having been tenants before the present restrictions were adopted. The rents charged for such premises by UVM are approximately sixty per cent of those received for comparable property in the Chittenden County area.

Also found, without objection, is that the defendant towns furnished the occupants of these properties the same kind and type of services they supply other citizens of their towns, and the cost of these services exceeds the sum of Thirteen Thousand Dollars paid each town by the plaintiff in lieu of taxes. These annual payments are based on the number of school children making use of defendants' school facilities.

The various premises, according to the undisputed findings, have been at various times occupied by a housing director, an athletic coach, practicing physicians and television managers.

In considering the findings of the Chancellor, to which exception has been briefed, we must determine if such findings are supported by the evidence in the case, having in mind that the trier of the fact is given the sole determination as to the weight of the evidence, the credibility of the witnesses and the persuasive effect of the testimony. State v. Pecor, 127 Vt. 401, 403, 250 A.2d 736.

We do not think we need burden this opinion with a full recital of all the findings of fact excepted to by the defendants. The essence of Findings 4, 17 and 18, to which defendants object, is that the housing in question was acquired by the plaintiff as an aid to obtaining and retaining qualified personnel. Further, that the plaintiff had difficulty in locating and employing competent and qualified teaching personnel without the inducements of housing. Such finding was supported by the testimony of Melvin Dyson, Vice-President of Financial Affairs at UVM, and was not disputed.

In the same manner we can dispose of the exceptions of the defendants to Findings Nos. 9, 13 and 15, all of which have to do with the determination of the Chancellor that there is a housing shortage in the Burlington area, which findings are supported by evidence in the case.

In Finding 16, the Chancellor found:

'In some instances the plaintiff takes into consideration its low rental housing in fixing salaries paid its employees.'

We find no evidence in the record before us to support this finding and the objection of the defendants is sustained. We also find that the Chancellor was in error in the second sentence of Finding 19, in which he states:

'The reduced rentals do not defray the operating expense.'

Such finding does not seem to be supported by the testimony of Mr. Dyson who testified that the debt owed by UVM for the repairs to the property had been reduced over the years, which would indicate that from its rentals UVM did require receipts over and above the operating expenses. Defendants also except to Finding 20 in which the Chancellor stated that the sum of $13,000.00 was paid to the defendant towns by UVM 'in lieu of taxes.' Such was the testimony of the witness for the plaintiff although a witness for the defendants testified that such payments were credited by the towns as payments on taxes due.

However, the main objections of the defendants are to Findings 22, 23 and 24, which findings also present to this Court the real question before it. Because of their importance, we quote such findings in full:

'22. The Chancellor finds the properties involved here were acquired by, and are being used for educational purposes by the plaintiff within the meaning and interpretation of Section 15 of No. 66 of the Public Acts of 1955.

23. The Chancellor finds the property here in question is exempt from taxation by the defendant towns.

24. The question or issue here is a close one, but in viewing the overall situation with field glasses rather than a microscope, as we have, we think we must find and hold the property to be exempt from taxation by the defendants.'...