County of Kent v. City of Grand Rapids

167 N.W.2d 287, 381 Mich. 640, 1969 Mich. LEXIS 158

• Court: Michigan Supreme Court
• Decided: May 5, 1969
• Docket: Calendar 3, Docket 51,714-51,716
• Status: Published

Opinions

Kelly, J.

This is an appeal from decisions of the Kent county circuit court in separate actions, here consolidated, and involves the interpretation of section 1 of PA 1953, No 189, as amended by PA 1962, No 226 (MCLA § 211.181 [Stat Ann 1968 Cum Supp §7.7(5)]). In pertinent part, the statute here involved reads:

“When any real property which for any reason is exempt from taxation is leased, loaned or otherwise made available to and used by a private individual, association or corporation in connection with a business conducted for profit, except where the use is by way of a concession in or relative to the use of a public airport, * * * or similar property which is available to the use of the general public, the lessees or users thereof shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property.” (Emphasis ours.)

Plaintiff county of Kent filed its complaint on September 30, 1965, stating that on August 30, 1963, it had, through the Kent county aeronautics board, entered into a 20-year lease agreement with Fred Harvey, whereby certain property of the Kent county airport was leased to said Fred Harvey for purposes of a motel and restaurant business on said premises; that defendant city of Grand Rapids levied its 1965 taxes on the premises so used as a motel and restaurant; that plaintiff paid said taxes under protest, and now seeks judgment for the amount so paid, claiming to be exempt from taxation by virtue of the above statute.

On March 8, 1966, plaintiffs Northern Air Service, Inc. (hereinafter called Northern), and the county of Kent filed their complaint against the township of Cascade, Kent county, Michigan, stating that said Northern Air Service had in October, 1962, leased from the Kent county aeronautics hoard, acting for and on behalf of the county of Kent, certain facilities, including hangars, offices and related buildings, and that defendant had assessed for real property taxes the lands and buildings owned by Kent county airport and leased to Northern and had levied 1965 taxes thereon; that plaintiff Northern paid said taxes under protest; that county of Kent is the real party in interest because it has agreed with Northern that in the event a real property tax or tax in lieu thereof is assessed against Northern based upon the value of the capital improvements provided and owned by Kent county airport, the rental to be paid by Northern to the Kent county airport should be reduced by the amount of such tax; that Northern is also a real party in interest in that under the terms of its agreement with plaintiff county of Kent, in the event such tax is assessed, Northern will pay additional rentals based upon gross sales.

On December 28, 1966, Hon. Fred N. Searl, circuit judge, entered judgment in each of the cases in favor of plaintiffs.

Leave to appeal prior to decision of the Court of Appeals was granted by the Supreme Court.

The Kent county department of aeronautics and board of supervisors determined that the proper operation of the terminal required that there be situated at the airport suitable restaurant facilities and a motel for use by the patrons or users of the airport and such members of the public as desired to use these facilities. The department further determined that there should be a “fixed base operator” at the airport to furnish certain services in connection with planes using the airport.

Pursuant to such recommendations, the county entered into a 20-year written lease with Fred Harvey, a nationally known corporation, to operate the restaurant facilities, and a 30-year lease with Northern to perform the functions of the “fixed base operator.”

The record sustains and appellants do not challenge the following findings of fact by the trial court:

“Under this lease Fred Harvey operates three restaurants, one a coffee shop, the second a full meal restaurant on the first floor of the terminal, and the third another full meal restaurant on the second floor of the terminal. Fred Harvey has a Michigan liquor license and has a bar and cocktail lounge in connection with each of the two full meal restaurants.

“Fred Harvey also furnishes some meals to the airlines to be served to passengers in flight.

“The motel is owned by the county and situated on airport property, and there are available 35 rooms for guests. Advance reservations account for from 80 to 90 per cent of its business, and lessee estimates from such information as it has been able to obtain that more than 90 per cent of its patrons have some dealings with the airport in one way or another — airline employees, passengers, persons meeting or taking passengers to the airport. The motel is open to the public and gets some of its business from patrons who have no dealings with the airport.

“Plaintiff introduced proofs which were not disputed to the effect that restaurant facilities are necessary to operating a modern airport, and that to make the operation of a good restaurant economically successful and to meet the requirements of the patrons, the serving of cocktails and other liquors is a practical necessity. Proof was further made that motel or hotel facilities are increasingly being made a part of the terminals of the large airports throughout the United States.”

Said lease requires Fred Harvey to perform in accordance with the following:

“4. Lessee shall at all times provide personnel sufficient to operate the leased facilities on a standard equal to that maintained by comparable restaurant, concession and motel operations at comparable locations. Lessee will not maintain in its employ any personnel whose conduct lessor finds to be detrimental to the proper operation of the airport. All employees shall be neat and clean in their appearance at all times. All restaurant employees shall wear uniforms.

“5. Lessee agrees that it will adopt and use decorating schemes and motifs in harmony with the design and architectural treatment of the terminal building and will submit the same, including any proposed changes therein, to the department of aeronautics for its approval prior to installation.

“6. Lessee agrees to keep the coffee shop, the merchandise concession and newsstand, dining room and bar and cocktail lounge open for business during such hours as may be required to meet the reasonable demands for said services. Lessee shall provide breakfast, lunch and dinner service 7 days a week at least from 7:00 a.m. to 9:00 p.m. and shall provide a minimum food service during the entire 24 hours of each day. Such minimum service may consist of offering food only through vending machines. Lessee agrees to keep the motel open for 24 hours during each day.

“7. Lessee agrees that it will maintain the motel site in good condition and appearance and will keep the drives, walks and motel parking lot free and clear of snow and in good and safe condition. Lessee agrees that the motel parking lot shall be used only by registered guests of the motel, or their visitors, immediate prospective guests, persons employed at the motel, and suppliers doing business at the motel.

“8. Lessee agrees that it will not directly or through a subsidiary or enterprise affiliated with lessee operate competitive restaurant or motel facilities within 8 miles of the airport terminal building without the prior approval of lessor.

“9. Lessee agrees that the prices charged for all food, beverages and other merchandise sold on the demised premises shall be competitive with the established prices charged by similar restaurants, gift shops and other businesses selling like quality and quantities of similar food, beverages and merchandise and providing similar services.”

The portion of the airport property leased to Northern consists of hangars and hangar space utilized by Northern for purposes of conducting its business of subleasing space for aircraft storage, maintenance, and the operation of a private flying school. The uses of subject property were characterized by witnesses for the plaintiffs as a “fixed base operator.”

The lease between the Kent county aeronautics board, acting for and on behalf of the county of Kent, and Northern Air Service, Inc., provided that lessee will agree to observe and obey lessor’s rules and regulations with respect to the use of the airport, protecting the safety of those using the airport; that lessee will furnish any services to be provided by it on a fair, equal and not unjustly discriminatory basis to all users thereof, and that it will charge fair, and not unjustly discriminatory prices for each unit of service; that lessee will under date of the commencement of the term of this lease file with the lessor a schedule of the rates and charges covering hangar rental fees, charges for tie-downs and charges for fuel. The lease provided further that any charges, revisions or additions to the original schedule so filed should immediately be filed with the lessor; also that in the event lessor should determine such rates or charges are unreasonable, and no agreement in relation thereto is reached between lessor and lessee, either party could by notice in writing to the other, submit the controversy or claim to arbitration.

The State of Michigan since the enactment of the aeronautics code of the State of Michigan¹ has encouraged and helped political subdivisions in the establishing of airports and has granted the right “to confer the privileges of concessions of supplying upon its airports goods, commodities, things, services and facilities: Provided, That in each case in so doing the public is not deprived of its rightful, equal and uniform use thereof.” (CL 1948, § 259-.133 [Stat Ann 1953 Cum Supp § 10.233].)

And the amendment to this provision (PA 1959, No 181 [CLS 1961, § 259.133; Stat Ann 1968 Rev § 10.233]) provided the right

“to confer the privileges of concessions of supplying upon its airports goods, commodities, things, services and facilities; and to enter into leases, contracts, agreements or grants of privileges of concessions with any person or persons. * * * Such terms, charges, rentals and fees shall be equal and uniform for the same type of facilities provided, services rendered or privileges granted with no discrimination between users of the same class for like facilities provided, services rendered or privileges granted: Provided, That in each case in so doing the public is not deprived of its rightful, equal and uniform use thereof.”

PA 1945, No 329 as amended² and PA 1951, No 206³ created the “Michigan aviation matching fund” and the “Michigan aviation supplemental matching fund,” respectively, for the purpose of assisting political subdivisions in the construction and improvement of public owned airports. The State contributed $800,000 toward the Kent county airport project.

The Fred Harvey and Northern Air Service facilities were constructed under bond issues authorized by the Kent county board of supervisors and approved by the Michigan municipal finance commission.

Complaining about the trial court’s finding, appellants state:

“The trial court appears to treat the relationship as pursuant to a lease but holds that it makes no difference under the exemption provision of Act 189.

“The appellants contend that the relationship created is that of a landlord and that such relationship causes the interest to be taxable under Act 189.”

The trial court answers appellants’ complaint, as follows:

“The use by the two lessees comes squarely within the generally accepted definition of a ‘concession,’ and I can find no authority for the position that a concession cannot be granted by lease as well as by other forms of written instruments. * * *

“The question here is, of course, what did the legislature intend? Usually it is presumed to intend the ordinary meaning of the words used. The ordinary meaning of the word ‘concession,’ as evidenced by the dictionary definitions, embraces the uses made by Fred Harvey and Northern Air Service. The ordinary meaning of the words used are entirely consistent with the intention of the legislature as evidenced in an earlier statute, the 1945 aeronautics act wherein the legislature authorized a political subdivision establishing an airport ‘to confer the privilege of concessions.’ * * *

“From the language of the section, as amended, counsel infer that there is a distinction between ‘leases’ and ‘grants of privileges of concessions.’ And further infer that the legislature intended that the grant of the privilege of concession cannot be made by lease,

“If the legislature so intended, it chose a very complicated method of indicating its intention, that is, requiring the making of an inference upon another inference, when it could have made its intention clear and unequivocal in a few words. I can find no reason for drawing such an inference. * m *

“There is nothing in this language that indicates any intention to require the concession to be granted by some form of grant other than a lease. To the contrary, there is indicated the intention to except concessions granted by lease, loan or otherwise.”

Subsequent to our September 1968 decision of City of Detroit v. Tygard, 381 Mich 271, this Court granted the request that the parties to this litigation be allowed to submit additional briefs as to what extent, if any, that decision should control this decision.

Defendants Tygard were granted possession of certain T-hangars under a written agreement with the Detroit aviation commission, an agency of the city of Detroit, to hold and use the property on a month-to-month basis, terminable with or without cause by the city.

The same taxation statute that is under consideration in this present appeal, was considered and construed as this Court affirmed the trial court’s order granting summary judgment to plaintiff city of Detroit in its action against defendants to collect unpaid taxes.

In deciding that defendants should pay the taxes, this Court commented on the fact that the question was one of first impression, that the act did not define the meaning of “concession” as that term was used by the legislature, and approved a dictionary definition of concession as (p 275):

“ ‘A privilege or space granted or leased for a particular use within specified premises.’ ” (Emphasis ours.)

Emphasizing that the factual situation created by the agreement there under consideration was all-important and that the opinion was confined to the City of Detroit-Tygard agreement, this Court stated (p 277) :

“By our holding here we express no opinion upon the merits of any case now pending under the same statute, nor upon any factual situation created by agreements different from those which are in force between appellants and the Detroit aviation commission, acting for the city of Detroit.”

The factual situation created by the City of Detroit-Tygard agreement is not similar to the situation in the present appeal, and our decision in that case does not control our decision in this appeal.

Both the 20-year Harvey lease and the 30-year Northern lease contain provisions that fully met the requirements of the aeronautics code of the State of Michigan, which provided that:

“Such terms, charges, rentals and fees shall be equal and uniform for the same type of facilities provided, services rendered or privileges granted with no discrimination between users of the same class for like facilities provided, services rendered or privileges granted.”

The City of Detroit-Tygard decision established that the agreement there considered failed to meet those requirements.

The privileges granted under the leases to Fred Harvey and Northern Air Service are concessions and “are entirely consistent with the intention of the legislature as evidenced in an earlier statute, the 1945 aeronautics act wherein the legislature authorized a political subdivision establishing an airport To confer the privilege of concessions.’ ”

We agree with the trial court and affirm its opinion holding that the uses of the property leased by Fred Harvey and Northern Air Service are concessions and that by PA 1953, No 189 as amended, the property here involved is exempt from taxation.

Affirmed. No costs, a public question being involved.

T. E. Brennan, C. J., and Dethmers, Black, and T. M. Kavanagh, JJ., concurred with Kelly, J.

1 PA 1945, No 327, being CL 1948, § 259.1 et seq., as amended (Stat Ann 1960 Rev and Stat Ann 1965 Cum Supp § 10.101 et seq.).

2 CL 1948, §§ 259.504, 259.506, 259.508, and CLS 1961, § 259.501 et seq.

3 CLS 1961, § 259.511 et seq.