DocketNumber: File No. CV99-0429472.
Citation Numbers: 47 Conn. Super. Ct. 594, 47 Conn. Supp. 594
Judges: HON. JOHN T. DOWNEY, JUDGE TRIAL REFEREE.
Filed Date: 12/17/2001
Status: Precedential
Modified Date: 1/12/2023
Section 2, subsection 204 of the 1983 agreement reads: "Pursuant to [General Statutes §
Section 4, subsection 402 reads in pertinent part: "This Agreement shall automatically terminate in the event that . . . (2) [a] special airport district is provided for under general or special laws, including, but not limited to, a metropolitan district or a special services district, and [New Haven] and [East Haven adopt] such a law, if required. . . ."
By 1996, New Haven's administration, led by the mayor, sought the creation of an airport authority to operate, maintain and improve the airport. Public Acts 1997, No.
Subsequent to the passage of the act, the authority entered into negotiations with New Haven and East Haven. Initially, the authority sought a single agreement among the three parties; then the authority sought separate agreements, between itself and New Haven and between itself and East Haven. In its review of the draft lease agreement, the FAA advised that "Participation in the Lease and Operating Agreement should be limited to the existing owner, the City of New Haven and the Airport Authority. The Town of East Haven's interest can be protected under a separate agreement." Ultimately, the authority concluded it need not enter into a lease with East Haven because East Haven "had nothing to lease." On July 1, 1998, New Haven and the authority entered into a lease and operating agreement entitled the "Lease and Operating Agreement By and Between the City of New Haven and Tweed-New Haven Airport *Page 598 Authority" (lease). East Haven was not a party to this agreement and it is undisputed that the authority has not entered into a lease with East Haven.
Subsequent to the entry into effect of the July 1, 1998 lease between New Haven and the authority, East Haven notified New Haven of its intent to tax six properties, owned by New Haven, located in East Haven and used for airport purposes. These properties are: 3 Thompson Avenue; 20 Thompson Avenue; 317 Dodge Avenue; 325 Dodge Avenue; 340 Dodge Avenue; and 10 Holmes Street. This appeal followed.
Section
General Statutes §
"[T]o ascertain the intention of the legislature with respect to a tax exemption, we employ three overlapping presumptions. First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption." Oxford Tire Supply,Inc. v. Commissioner of Revenue Services,
East Haven claims the 1983 agreement terminated automatically upon creation of the authority by virtue of Public Acts 1997, No.
East Haven cites a right of "first refusal" granted it by § 4, subsection 402 (3) of the 1983 agreement. Subsection 402 (3) states that the 1983 agreement shall automatically terminate in the event that: "The municipalities agree to permanently close the Airport and to reuse the lands within the Airport boundaries for other than Airport use. In the event that the Airport is permanently closed, the lands within [East Haven's] municipal boundaries shall no longer be considered in public use and will be subject to all land use regulations of [East Haven]. [East Haven] will have, in that event, the option of first refusal to purchase the lands from [New Haven]." Clearly, these provisions do not address use of the airport, but rather reuse of lands within airport boundaries should the airport be permanently closed. The court notes that the authority could not grant such option of first refusal to East Haven in any event, as the airport property is owned by New Haven.
East Haven claims that under the 1983 agreement it had "veto power" over changes to the master use plan. In the lease between New Haven and the authority, New Haven has such veto power while East Haven does not. East Haven, therefore, says that New Haven has greater privileges as to the use of the airport than does East Haven.
The court is not persuaded. The "veto power" in question has to do with plans for expansion and improvement of the airport, not with use by the municipalities of the airport for air transportation purposes.
East Haven claims that whereas, under the 1983 agreement, East Haven held two of nine seats on the board of airport commissioners, it now holds two of fourteen seats on the authority's board of directors. This "dilution," says East Haven, means New Haven has greater privileges as to use of the airport than does East Haven. *Page 602
Again, the court is not persuaded. Membership on the airport's board is a question of governance and does not have reference to use by municipalities of the airport for air transportation purposes.
Finally, the fact that East Haven is not a signatory to the lease between the authority and New Haven does not affect East Haven's privileges as to the use of the airport for air transportation purposes.
The court finds that the lease between New Haven and the authority affords New Haven no privileges as to the use of the airport that East Haven does not enjoy equally. The court finds that East Haven enjoys the same privileges as to the use of the airport as does New Haven.
General Statutes §
While "person" may be construed to include, inter alia, private corporations and associations, there would be no purpose in enumerating these latter two categories had the legislature intended that the term "person," as used in §
In support of its claim, East Haven presented the testimony of two experts, Steven Shapiro, an economist and chairman of the department of economics and finance at the University of New Haven and Michael D'Addio, an attorney and tax consultant. Both witnesses testified that the lease between New Haven and the authority evidenced an intent on the part of New Haven to make a profit.
Shapiro based his conclusion on provisions of the lease limiting New Haven's operating and capital contributions to the airport operation, and, commencing in 2003, eliminating subsidies by New Haven. Thus, by terms of the lease, New Haven caps its future losses. Moreover, the lease terms provide for repayment by the authority to New Haven of the latter's contributions, with interest. Shapiro also cited the "reverter" clause in the lease whereby, should the lease expire, all of the airport's assets would revert to New Haven. All this, Shapiro concludes, evidences New Haven's intent to make a profit. *Page 605
D'Addio also concludes the lease evidences an intent by New Haven to make a profit. D'Addio focused on income projections made by the authors of "The Emerging Blueprint: Tweed-New Haven Regional Airport," a statement of goals and objectives for the first fifteen years of its operation issued by the authority. D'Addio focuses specifically on a chart appearing on page twenty-two, projecting annual operating results. Basing his calculations on these projections D'Addio projects an expected profit of some $138,000,000 over the term of the lease. Since there is no guaranteed lease extension, these moneys, as well as any other airport assets must someday return to New Haven, claims D'Addio. Thus, D'Addio concludes, New Haven intends to operate the airport as a source of profit.
The court is not persuaded. First, East Haven's experts never define "profit"; this allows them to term any increment in value as profit. Thus, a return of assets which have appreciated in value is deemed a profit. A repayment, with interest, of subsidies is deemed a profit. An operating surplus is deemed a profit. In a similar context, our Supreme Court indicated its understanding of "profit" as used in General Statutes §
East Haven ignores the contingent nature of the repayment clauses. Under terms of the lease, the authority is not obligated to repay New Haven for New Haven's contributions unless certain events occur. The authority's repayment obligations are also strictly limited in time and amount. East Haven ignores the requirement imposed by the regulating authority, the FAA, that any *Page 606 operating surplus must be used for airport improvements.
D'Addio's reliance on the "blueprint" is misplaced. The blueprint forms no part of the lease and was not adopted by either the authority or New Haven as binding on either party. D'Addio also ignores the footnote to the aforementioned chart, which reads: "Any operating surplus will be applied to infrastructure improvements approved and authorized by the [authority] and the [FAA]." Moreover, D'Addio's characterization of the projection as showing a profit of $138 million is unconvincing. The aforementioned chart is simply too flimsy a basis on which to rest such a conclusion.
New Haven correctly points out that an operating surplus does not necessarily constitute a profit. It points out that the FAA requires that any surplus revenue earned must be devoted to capital and operating expenses of the airport; that, in fact, the airport has been operated for many years at a deficit and that the provisions of the lease at issue do not allow for the full recovery by New Haven of such deficits; that the provisions of the lease do not require the authority to reimburse New Haven for the deficits incurred; that such payments by the authority, contingent in nature, are capped; that the reversion of airport assets to New Haven, a contingency, would not constitute profit; that New Haven's capping its losses does not constitute profit.
Pursuant to article III, § 3.2 of the lease, New Haven and the authority agree that in the period from July 1, 1992, through June 30, 1998, New Haven has contributed to the airport over four million dollars and that New Haven will further contribute moneys during the transfer period from July 1, 1998 through June 30, 2003, which, with interest, makes a maximum contribution of over eleven million dollars. Pursuant to the lease, *Page 607 the authority undertakes to commence repayment of these moneys after July 1, 2003, in equal monthly installments, but the monthly repayment is capped at $50,000, and "no compensation shall be paid to [New Haven] unless the [a]uthority has sufficient funds to make such payment and to operate the airport and maintain a reasonable reserve for necessary operating and/or capital expenditures." Such contingency provisions for repayment of subsidies cannot reasonably be construed as evidencing the purpose of making a profit for New Haven. East Haven's rejoinder that no lease guarantees a profit is unpersuasive; there is a crucial distinction between an agreement whereby one party undertakes to make certain payments to another and an agreement whereby a payor's obligation to pay is contingent on the financial condition of the payor. It should be noted that, under the lease, a failure of the authority to make monthly repayments does not itself constitute a default. Similarly, the capping of New Haven's future subsidies to the airport cannot reasonably be construed as evidence of New Haven's intent to make a profit from the operation of the airport.
Section 3.5 of the lease between the authority and New Haven provides in pertinent part: "Upon the expiration or sooner termination of the Demised Term, the Authority shall give up, surrender and deliver to [New Haven] the Leased Premises, in its then condition, together with all other Airport Assets . . . ." Section 4.2 of the lease provides in pertinent part: "Upon the expiration or sooner termination of this Agreement, all of the Authority's right, title and interest in any and all Airport Assets then in existence shall immediately and automatically vest in [New Haven]. . . ." Section 3.11 of the lease gives either party the right to terminate the lease prior to January 1, 2003, under certain conditions in which event: "This Agreement shall thereupon terminate and the Leased Premises and title to the other *Page 608
Airport Assets shall revert to [New Haven]. . . ." It cannot reasonably be maintained that the reverter provisions or the transfer provision of the lease evidence an intent to operate the airport as a source of profit. "A lease transfers an estate in real property to a tenant for a stated period, with a reversion in the owner after the expiration of the lease." (Internal quotation marks omitted.) Monarch Accounting Supplies,Inc. v. Prezioso,
Moreover, there is the "reverter" provision in General Statutes §
"The exemption will become unavailable if, considering all the circumstances, it is obvious that the airport is being operated for the purpose of making money for the city. . . ." Bridgeport v. Stratford, supra,
The court finds that the terms of the lease between the authority and New Haven evidenced no intent by New Haven to use the airport in such manner as to become a source of profit to New Haven. *Page 609
The court finds that New Haven has established, by a fair preponderance of the evidence, that the properties at issue are exempt from taxation, pursuant to §§
New Haven contends that, in entering into a lease with the authority, it has not breached the 1983 agreement and that the 1983 agreement has not been terminated. New Haven claims it entered the lease pursuant to statute and had no control as to whether the authority entered into a lease with East Haven.
The authority claims that the coming into effect of
East Haven insists that the 1983 agreement terminated automatically with the passage of
The court must decide, in the first instance, whether the 1983 agreement was automatically terminated by passage of
There are three events, any of which shall automatically terminate the 1983 agreement:
"(1) The State of Connecticut acquires and operates the Airport as a state airport; or
"(2) A special airport district is provided for under general or special laws, including, but not limited to, a metropolitan district or a special services district, and [New Haven] and [East Haven] adopts such a law, if required; or
"(3) The municipalities agree to permanently close the Airport and to reuse the lands within the Airport boundaries for other than Airport use. . . ."
There is no claim that either events (1) or (3) have occurred. It is East Haven's claim that
This court has found no statutory definition of "special airport district." The drafters of the 1983 agreement offer the terms "metropolitan district" and "special services district" as illustrative of what sort of entity they had in mind, but are careful not to limit special airport district to the latter two types of entity.
Municipal special services districts are the subject of chapter
The court finds that East Haven has failed to establish, by a preponderance of the evidence, that, by entering into the lease with the authority, New Haven breached its contract (the 1983 agreement with East Haven).
The elements of tortious interference with contract rights are well established. "`One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.'" Selby v. Pelletier,
Again, the court's finding that the 1983 agreement between East Haven and New Haven had automatically terminated by the time the latter entered into its lease with the authority is fatal to East Haven's claim. Absent such contract, there can be no tortious interference with contractual relations by the authority.
The court finds that East Haven has failed to establish, by a fair preponderance of the evidence, its claim that the authority tortiously interfered with contractual relations between East Haven and New Haven.
First, New Haven unilaterally appropriated East Haven's right of first refusal as to the airport property located in East Haven.
Section 4, subsection 402 of the 1983 agreement provides that the 1983 agreement automatically terminates in the event that: "The municipalities agree to permanently close the Airport and to reuse the lands within the Airport boundaries for other than Airport use. In the event that the airport is permanently closed, the lands within [East Haven's] municipal boundaries shall *Page 614 no longer be considered in public use and will be subject to all land use regulations of [East Haven]. [East Haven] will have, in that event, the option of first refusal to purchase the land from [New Haven]."
The 1983 agreement automatically terminated by virtue of the enactment of
The court notes that the authority has no power to negotiate or agree to any such right of first refusal which could only come into effect after the authority ceased to function.
East Haven's representation on the airport's oversight body and East Haven's ability to make meaningful decisions, have been "diluted" in that, under the 1983 agreement, East Haven held two seats of nine on the board of airport commissioners, whereas, under
Third, and finally, under the 1983 agreement, East Haven claims it had "veto power" over changes to the master plan. That power, it claims, was lost by virtue of the authority's refusal to enter into a lease with East Haven.
Section 1, subsection 104 of the 1983 agreement provides: "Any modification to the [master plan] must be recommended by the [New Haven] Board of Airport *Page 615 Commissioners and submitted for approval to the legislative bodies of both [New Haven] and [East Haven]. Upon approval by the legislative bodies, these modifications shall then be submitted to the State of Connecticut, Department of Transportation, and the [FAA], Airports Division." Section 1, subsection 104 did not survive the automatic termination of the 1983 agreement.
The provisions of the lease and operating agreement between the authority and New Haven relating to the airport master plan make no reference to the town of East Haven. This is not to say, however, that East Haven is devoid of a remedy should changes to the aforementioned master plan be proposed. East Haven remains free to pursue its position on proposed changes in administrative, legislative or judicial arenas. The court notes that the city claims East Haven retains its right to approve changes in the master plan under the provisions of the 1983 agreement.
East Haven clearly has a legitimate interest in the master plan and in the impact on East Haven of any proposed changes in that master plan. There are indications in the record that there are vehicles available for East Haven's assertion of its rights. See, e.g., the transmission memo dated May 27, 1998, from Jim Horan to the New Haven Board of Aldermen stating: "Any taking of land . . . could only be done by the City of New Haven (or Town of East Haven), since the Authority lacks the power of eminent domain." See also Federal Assurances, § C.5 "Preserving Rights and Powers" attached to the copy of the lease submitted into evidence by New Haven. East Haven has failed to establish that a lease to the authority by New Haven and East Haven, pursuant to §
Pursuant to Practice Book § 17-54, the court has the authority to render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity, or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.
Section
In the course of these proceedings, an underlying concern of East Haven is that certain rights and privileges, conferred upon it by the terms of the 1983 agreement, have been lost and should have been reestablished by terms of a lease among it, New Haven and the authority. As indicated previously in part V of this *Page 617
memorandum of decision, the rights and privileges specified by East Haven are: (1) East Haven's "right of first refusal"; (2) East Haven's representation on the airport's oversight body, which has been diluted; and (3) East Haven's "veto power" over changes to the airport master plan. While every lease is an agreement, not every agreement is a lease. "A lease transfers an estate in real property to a tenant for a stated period, with a reversion in the owner after the expiration of the lease."Jo-Mark Sand Gravel Co. v. Pantanella,
As to the counterclaim, the court finds that East Haven, the plaintiff on the counterclaim, has failed to establish, by a fair preponderance of the evidence, its claims of breach of contract as against New Haven and tortious interference with a contract as against the authority and has failed to persuade the court to issue a declaratory judgment declaring that the authority has unlawfully taken over the control and operation of the airport. Judgment on the counterclaim, may, accordingly, enter in favor of the city of New Haven and the authority, the counterclaim defendants, as against the town of East Haven.
Jo-Mark Sand & Gravel Co. v. Pantanella , 139 Conn. 598 ( 1953 )
Town of East Haven v. City of New Haven , 159 Conn. 453 ( 1970 )
New Haven v. East Haven , 35 Conn. Super. Ct. 157 ( 1977 )
City of Bridgeport v. Town of Stratford , 142 Conn. 634 ( 1955 )
Monarch Accounting Supplies, Inc. v. Prezioso , 170 Conn. 659 ( 1976 )