Rainbow Housing Corp. v. Cromwell ( 2021 )

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RAINBOW HOUSING CORP. v. CROMWELL—CONCURRENCE
ROBINSON, C. J., concurring in the judgment. I agree
with the majority’s decision to affirm the judgment of
the trial court, which rendered summary judgment in
this tax appeal in favor of the plaintiffs, Rainbow Hous-
ing Corporation (Rainbow Housing) and Gilead Com-
munity Services, Inc. (Gilead), on the ground that they
provide temporary housing within the meaning of Gen-
eral Statutes § 12-81 (7) (B).1 I agree with the majority’s
ultimate conclusion that Valor Home, which is a resi-
dence for adults with mental illness that Rainbow Hous-
ing owns and leases to Gilead to operate, provides tem-
porary housing. I write separately, however, because I
respectfully disagree with the majority’s analysis inso-
far as it concludes that § 12-81 (7) (B) is ambiguous
under our well established principles of statutory con-
struction.2 I conclude that the statutory language of
§ 12-81 (7) (B), and particularly the definition of ‘‘tempo-
rary,’’ is clear and unambiguous, with whether a facility
meets that definition being a highly fact sensitive ques-
tion for the trier. Because the facts in this tax appeal
were stipulated, meaning that the defendant, the town
of Cromwell, did not establish the existence of a genu-
ine issue of material fact as to the temporary nature of
the housing provided by Valor Home, I join with the
majority in affirming the judgment of the trial court.
As noted by the majority, whether Valor Home’s hous-
ing is ‘‘temporary’’ within the meaning of § 12-81 (7)
(B) presents an issue of statutory construction, which
is a question of law over which we exercise plenary
review. See, e.g., Boisvert v. Gavis, 332 Conn. 115, 141,
210 A.3d 1 (2019). It is well settled that we follow the
plain meaning rule pursuant to General Statutes § 1-2z
in construing statutes ‘‘to ascertain and give effect to the
apparent intent of the legislature.’’ (Internal quotation
marks omitted.) Sena v. American Medical Response
of Connecticut, Inc., 333 Conn. 30, 45, 213 A.3d 1110(2019); see id., 45–46 (stating plain meaning rule).
We begin with the text of the statute. Section 12-81
(7) (A) provides that, with certain exceptions, property
used for ‘‘charitable purposes’’ is exempt from taxation.
However, § 12-81 (7) (B) provides in relevant part that
‘‘housing subsidized, in whole or in part, by federal,
state or local government . . . shall not constitute a
charitable purpose under this section. . . .’’ The statute
then provides that the term ‘‘housing’’ does ‘‘not include
real property used for temporary housing belonging
to, or held in trust for, any corporation organized exclu-
sively for charitable purposes and exempt from taxation
for federal income tax purposes, the primary use of
which property is one or more of the following . . .
(iii) housing for persons who are homeless, persons
with a mental health disorder, persons with intellectual
or physical disability or victims of domestic violence
. . . and (v) short-term housing operated by a charita-
ble organization where the average length of stay is
less than six months. The operation of such housing,
including the receipt of any rental payments, by such
charitable organization shall be deemed to be an exclu-
sively charitable purpose . . . .’’ (Emphasis added.)
General Statutes § 12-81 (7) (B). Because it is undis-
puted that Valor Home provides treatment and services
for ‘‘persons with a mental health disorder,’’ and we
assume, without deciding, that Valor Home is subsi-
dized in part by the Department of Mental Health and
Addiction Services, the sole question before us is
whether Valor Home provides ‘‘temporary’’ housing so
as to qualify for a property tax exemption under § 12-
81 (7) (B).
Under § 1-2z, we first must determine whether § 12-
81 (7) (B) is ambiguous. ‘‘The test to determine ambigu-
ity is whether the statute, when read in context, is
susceptible to more than one reasonable interpreta-
tion.’’ (Internal quotation marks omitted.) Commis-
sioner of Public Safety v. Freedom of Information Com-
mission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). In
other words, a statute is considered plain and unambig-
uous when ‘‘the meaning . . . is so strongly indicated
or suggested by the [statutory] language . . . that . . .
it appears to be the meaning and appears to preclude
any other likely meaning.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Ledyard v. WMS Gam-
ing, Inc., 338 Conn. 687, 698 n.6, 258 A.3d 1268 (2021). In
interpreting statutes, words and phrases are construed
according to their ‘‘commonly approved usage . . . .’’
General Statutes § 1-1 (a); see e.g., State v. Panek, 328
Conn. 219, 227–29, 177 A.3d 1113 (2018). As discussed
by the majority, ‘‘ ‘temporary’ means ‘lasting for a time
only: existing or continuing for a limited time: imperma-
nent, transitory . . . .’ Webster’s Third New Interna-
tional Dictionary (2002) p. 2353; see also Oxford Ameri-
can Dictionary and Language Guide (1999) p. 1038
(defining ‘temporary’ as ‘lasting or meant to last only
for a limited time’).’’ Part II of the majority opinion.
Neither the parties nor the majority presents an alterna-
tive interpretation for the meaning of ‘‘temporary’’ other
than its plain meaning. Instead, the majority concludes
that, because the statute provides a durational limita-
tion for short-term housing and is silent regarding a
durational limitation for temporary housing, the statute
is ambiguous. I respectfully disagree with the majority’s
conclusion as to the statute’s ambiguity.
First, the majority points out that § 12-81 (7) (B), in
enumerating the exceptions to the general exclusion of
subsidized housing from tax exempt status, provides a
time limit only for ‘‘short-term housing,’’ which, as
defined in the statute, means an average stay of less
than six months in duration. See General Statutes § 12-
81 (7) (B) (v). The majority suggests that such an inclu-
sion indicates that the legislature intended the phrases
‘‘short-term’’ and ‘‘temporary’’ to have different mean-
ings. I agree that the meaning of ‘‘short-term’’ is distinct
from the previously discussed meaning of ‘‘temporary’’
based on the plain wording of the statute. An inclusion
of a time limit for ‘‘short-term’’ housing but not for
‘‘temporary’’ housing, however, does not render the
word ‘‘temporary’’ ambiguous. Indeed, it demonstrates
that, had the legislature intended to provide a durational
limitation for ‘‘temporary’’ housing, rather than just
‘‘short-term’’ housing, it could have done so. See, e.g.,
DeNunzio v. DeNunzio, 320 Conn. 178, 194, 128 A.3d
901 (2016) (common principle of statutory construction
is that, when legislature expresses list of items, exclu-
sion of item is deliberate); Stafford v. Roadway, 312
Conn. 184, 194, 93 A.3d 1058 (2014) (‘‘[i]t is a well settled
principle of statutory construction that the legislature
knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do so’’
(citation omitted; internal quotation marks omitted)).
It is clear from the plain text of the statute that ‘‘tempo-
rary’’ housing encompasses residential mental health
programs, drug rehabilitation programs, and orphan-
ages, in contrast to ‘‘short-term’’ housing, which is spe-
cifically limited in duration, and addresses a broad,
catchall category of temporary housing.
Second, I disagree with the majority’s conclusion that
the statute’s silence as to a durational time limit for
‘‘temporary’’ housing is evidence of its ambiguity. This
court has ‘‘made clear that [t]he fact that . . . relevant
statutory provisions are silent . . . does not mean that
they are ambiguous.’’ (Internal quotation marks omit-
ted.) State v. Orr, 291 Conn. 642, 653–54, 969 A.2d 750(2009); see, e.g., id., 654 (statute’s silence about whether
it permits in-court testimony by social worker ‘‘should
not be skewed as to indicate ambiguity’’ because it is not
susceptible to more than one plausible interpretation);
Manifold v. Ragaglia, 272 Conn. 410, 419, 862 A.2d 292(2004) (‘‘[statutory] silence does not . . . necessarily
equate to ambiguity’’). I recognize that, in limited cir-
cumstances, this court has found a statute ambiguous
as a result of its silence. However, this case does not
present such a circumstance. ‘‘[S]ilence may render a
statute ambiguous when the missing subject reasonably
is necessary to effectuate the provision as written.’’
State v. Ramos, 306 Conn. 125, 136, 49 A.3d 197 (2012);
see also Stuart v. Stuart, 297 Conn. 26, 37, 996 A.2d
259 (2010) (silence as to standard of proof rendered
statute ambiguous because there was ‘‘more than one
plausible interpretation of its meaning’’). In contrast,
§ 12-81 (7) (B) is not silent as to its subject and therefore
does not fall within this first instance of ambiguity cre-
ated by silence.
I also acknowledge that ‘‘the legislature’s silence as
to the scope of a term may render the statute ambigu-
ous. See Thomas v. Dept. of Developmental Services,
297 Conn. 391, 400, 999 A.2d 682 (2010) ([W]e note that
the lien provision is silent with respect to its scope.
Although [statutory] silence does not . . . necessarily
equate to ambiguity . . . we conclude that this silence
renders the provision ambiguous with respect to its
scope because there is more than one plausible interpre-
tation of its meaning. . . .).’’ (Internal quotation marks
omitted.) State v. Ramos, supra, 306 Conn. 137. In
Thomas, the statute was silent as to an employer’s rights
under the lien provision for future workers’ compensa-
tion claims. See Thomas v. Dept. of Developmental Ser-
vices, supra, 396. No such ambiguity exists here.
Instead, the silence of § 12-81 (7) (B) as to a specific
duration for temporary housing does not render the text
of the statute susceptible to more than one plausible
reading. See State v. Ramos, supra, 138–39 (statutory
silence as to effect of untimely filed motion did not
render statute ambiguous). Rather, the statutory silence
simply requires this court to apply the plain and unam-
biguous meaning of the word ‘‘temporary’’ to the facts
of this case in order to determine whether Valor Home
provides temporary housing to its residents.
Because the language of § 12-81 (7) (B) is clear and
unambiguous, the only remaining question is whether,
as a factual matter, Valor Home’s residential program
provides temporary housing within the common usage
of the term.3 Under the plain meaning of the statute,
whether a charitable program provides temporary hous-
ing leads to a fact intensive inquiry. I note that the
record in this case consists of stipulated facts, under
which there is no genuine issue of material fact. Valor
Home provides housing for up to five men at a time,
each of whom pays a monthly rental fee. Valor Home
provides its residents with a myriad of services, includ-
ing psychiatric clinical services, skill building instruc-
tion, and rehabilitative activities. Gilead’s chief execu-
tive officer, Dan Osborne, states in his affidavit that
‘‘[o]ccupancy at [Valor Home] is temporary and transi-
tional insofar as the individuals who live at [Valor
Home] . . . live there [only] until they no longer need
the services provided by Gilead. There is no specific
term by which an individual must leave [Valor Home];
the term is entirely dependent [on] the individual’s treat-
ment progress. Once the individuals are capable of liv-
ing more independently through the services and sup-
ports [provided] by Gilead, they move out of [Valor
Home].’’ I agree with the majority’s observation that
‘‘[t]he defendant failed to produce any evidence to con-
tradict or rebut the plaintiffs’ evidence demonstrating
that the housing provided by Valor Home is temporary.’’
Part II of the majority opinion.
I emphasize that a more developed factual record
might well have led to a different conclusion in this
case. For example, the record does not contain any
evidence regarding how long residents generally stay
at Valor Home. It also does not contain any evidence
concerning whether Valor Home’s residents act in a
manner consistent with living somewhere on a more
than temporary basis, such as using its address to regis-
ter to vote.4 Cf. Hicks v. Brophy, 839 F. Supp. 948,
951 (D. Conn. 1993) (‘‘[F]actors [to determine domicil]
include the place where civil and political rights are
exercised, taxes paid, real and personal property (such
as automobiles) located, driver’s and other licenses
obtained, bank accounts maintained, and places of busi-
ness or employment. . . . Other factors are also rele-
vant, such as whether the person owns or rents his
place of residence, how permanent the residence
appears, and the location of a person’s physician, law-
yer, accountant, dentist, stockbroker . . . .’’ (Citations
omitted.)); Litvaitis v. Litvaitis, 162 Conn. 540, 546,
295 A.2d 519 (1972) (‘‘[t]o constitute domicil, the resi-
dence at the place chosen for the domicil must be actual,
and to the fact of residence there must be added the
intention of remaining permanently; and that place is
the domicil of the person in which he has voluntarily
fixed his habitation, not for a mere temporary or special
purpose, but with the present intention of making it his
home’’ (internal quotation marks omitted)).
Based on the limited factual record in this case, I
conclude that Valor Home provides temporary housing
to its clients within the meaning of the plain language
of § 12-81 (7) (B). I, therefore, agree with the majority’s
conclusion that the trial court properly rendered sum-
mary judgment in favor of the plaintiffs.
Accordingly, I concur in the judgment of the court
affirming the trial court’s judgment.
1
General Statutes § 12-81 provides in relevant part: ‘‘The following-
described property shall be exempt from taxation . . . (7) (B) On and after
July 1, 1967, housing subsidized, in whole or in part, by federal, state or
local government and housing for persons or families of low and moderate
income shall not constitute a charitable purpose under this section. As
used in this subdivision, ‘housing’ shall not include real property used for
temporary housing belonging to, or held in trust for, any corporation orga-
nized exclusively for charitable purposes and exempt from taxation for
federal income tax purposes, the primary use of which property is one or
more of the following: (i) An orphanage; (ii) a drug or alcohol treatment or
rehabilitation facility; (iii) housing for persons who are homeless, persons
with a mental health disorder, persons with intellectual or physical disability
or victims of domestic violence; (iv) housing for ex-offenders or for individu-
als participating in a program sponsored by the state Department of Correc-
tion or Judicial Branch; and (v) short-term housing operated by a charitable
organization where the average length of stay is less than six months. The
operation of such housing, including the receipt of any rental payments, by
such charitable organization shall be deemed to be an exclusively charitable
purpose . . . .’’
2
I also note my agreement with part I of the majority opinion, in which
the majority concludes that, because the parties stipulated that the plaintiffs’
M-3 application was ‘‘complete,’’ the defendant cannot now challenge that
fact for the first time on appeal.
3
I note that, prior to the enactment of § 1-2z, this court addressed latent
ambiguity arising from the application of an otherwise unambiguous statute
by referencing the legislative history of the statutory provision. ‘‘When appli-
cation of the statute to a particular situation reveals a latent ambiguity in
seemingly unambiguous language . . . we turn for guidance to the purpose
of the statute and its legislative history . . . .’’ University of Connecticut
v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690(1991); see also State v. Courchesne, 262 Conn. 537, 564–65, 572, 816 A.2d
562 (2003); Conway v. Wilton, 238 Conn. 653, 665, 680 A.2d 242 (1996).
However, after the passage of § 1-2z, this court has recognized that such
an approach is no longer appropriate. ‘‘Prior to the enactment of § 1-2z, this
court sometimes turned to the legislative history of a statutory provision
that, although clear on its face, contained a latent ambiguity when the statute
was applied to the facts of the case . . . .’’ State v. Ramos, supra, 306
Conn. 144 n.4 (Palmer, J., concurring); see also Envirotest Systems Corp.
v. Commissioner of Motor Vehicles, 293 Conn. 382, 391 n.8, 978 A.2d 49(2009) (‘‘the legislature responded to Courchesne by passing § 1-2z . . . and
rejected, in toto, this [court’s] method of interpretation’’ (citation omitted));
Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 392
n.8 (‘‘the statutory construction principles set forth in Courchesne . . . have
been rejected’’).
As Justice Palmer reiterated in his concurrence in Ramos, ‘‘we are directed
by § 1-2z not to consider extratextual sources in determining the outcome
of the present case because [the statute] is not ambiguous on its face with
respect to the issue presently before the court.’’ State v. Ramos, supra, 306
Conn. 148 (Palmer, J., concurring). I agree with Justice Palmer that § 1-2z
has the potential to limit this court’s ability to ascertain legislative intent
accurately, which presents an impediment that is ‘‘troubling’’ in light of a
latent ambiguity as is present in this case. Id. (Palmer, J., concurring).
Thus, under the interpretation regime of § 1-2z, when an ambiguity arises
in application, so too does a fact intensive inquiry for the court. This case
is illustrative of this potentially difficult point. Instead of looking to the
legislative history for further guidance as to the application of the word
‘‘temporary’’ in this context, it appears that we are bound to apply the
seemingly plain meaning of the word temporary to the facts in the record.
See id., 140–41.
4
As the majority notes, the defendant could have sought such evidence
pursuant to Practice Book § 17-47. See footnote 13 of the majority opinion.