Wind Colebrook South, LLC v. Colebrook (Concurrence)

CourtSupreme Court of Connecticut
DecidedAugust 2, 2022
DocketSC20594
StatusPublished

This text of Wind Colebrook South, LLC v. Colebrook (Concurrence) (Wind Colebrook South, LLC v. Colebrook (Concurrence)) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wind Colebrook South, LLC v. Colebrook (Concurrence), (Colo. 2022).

Opinion

*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

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The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** WIND COLEBROOK SOUTH, LLC v. COLEBROOK—CONCURRENCE

ECKER, J., concurring. I agree that a wind turbine is properly classified as real property for taxation pur- poses under General Statutes § 12-64 (a), and I therefore join the result reached by the majority. But I would reach that outcome by way of a different analysis. The plaintiff, Wind Colebrook South, LLC, concedes— indeed, it insists—that the wind turbines at issue are machines. In my view, that concession is dispositive because ‘‘machinery’’ is taxed as realty under the express terms of § 12-64 (a) unless it falls within the narrow exception carved out by General Statutes § 12- 41 (c), which provides in relevant part that ‘‘[m]achinery used in mills and factories’’ is taxed as personalty. Wind turbines do not fit within this exception and, therefore, are classified as real property under the statutory scheme. This result is compelled by the language of the relevant statutes construed, in accordance with the applicable canons of construction. It has the virtue of avoiding a number of concerns raised by the alternative construction contained in the majority opinion. As a preliminary point, I observe that, although I ultimately consider the outcome of the statutory analy- sis to be an easy call in this particular case, the relevant statutes made the task of interpretation far more diffi- cult than necessary. Their text consists of what appears to be a randomly arranged series of specifically enumer- ated items deemed to be either real or personal prop- erty, conjoined with one or more broad, open-ended phrases, all without any apparent internal cohesion or structure. Sections 12-64 (a) and 12-41 (c) contain no definitions of their key terms: real property, personal property, buildings, structures, improvements, fixtures or machinery. Worse, neither statute contains any dis- cernable standards that would enable tax assessors, taxpayers, or courts to classify property as personalty or realty. The statutes give every appearance of having been stitched together over hundreds of years by a committee of strangers. It may well be that there is an explanation for this apparent lack of legislative upkeep and maintenance; the legislature well knows how to give careful attention to such matters when it considers the task worthwhile.1 Perhaps there is no felt need to update these particular statutes because they serve their function as written; taxation, after all, is a special- ized and esoteric field, and the proper application of these statutes in all but the most unusual case may be obvious to experts and tax professionals privy to whatever unwritten conventions have emerged over time to guide the cognoscenti. In any event, this court has no choice but to decide the present case as pre- sented, under the statutes as written. I The plaintiff’s wind turbines2 are taxable either as real property pursuant to § 12-64 (a) or as personal property pursuant to § 12-41 (c). It is one or the other; no claim of exemption has been raised by the taxpayer. Reciting the relevant provisions goes a long way toward illustrating why the classification scheme can lead to interpretive difficulties with respect to property that is not expressly enumerated. Section 12-64 (a) provides in relevant part: ‘‘All the following mentioned property, not exempted, shall be [taxed as real property]: Dwell- ing houses, garages, barns, sheds, stores, shops, mills, buildings used for business, commercial, financial, man- ufacturing, mercantile and trading purposes, ice houses, warehouses, silos, all other buildings and structures, house lots, all other building lots and improvements thereon and thereto, including improvements that are partially completed or under construction, agricultural lands, shellfish lands, all other lands and improvements thereon and thereto, quarries, mines, ore beds, fisheries, property in fish pounds, machinery and easements to use air space whether or not contiguous to the surface of the ground. . . .’’ Section 12-41 (c) provides in relevant part: ‘‘The annual declaration of the tangible personal property owned by such person on the assessment date, shall include, but is not limited to, the following property: Machinery used in mills and factories, cables, wires, poles, underground mains, conduits, pipes and other fixtures of water, gas, electric and heating companies, leasehold improvements classified as other than real property and furniture and fixtures of stores, offices, hotels, restaurants, taverns, halls, factories and manu- facturers. . . .’’ I believe that the present case is an easy one under the express terms of these statutes. More particularly, I agree with the defendant that a wind turbine is properly classified as real property because it is machinery that is not located in a mill or factory.3 ‘‘Machinery’’ is included as the penultimate category of real property enumerated in § 12-64 (a), listed between ‘‘property in fish pounds’’ and ‘‘easements to use air space whether or not contiguous to the surface of the ground.’’ A wind turbine plainly does not fall within the single exception to this categorization, the provision in § 12-41 (c) deem- ing ‘‘[m]achinery used in mills and factories’’ to be per- sonal property. The plaintiff’s wind turbines are not located ‘‘in’’ any building, and certainly not in a mill or a factory. In my view, the analysis ends there.4The plaintiff agrees that its wind turbines are machinery. Indeed, it repeatedly insists that a wind turbine ‘‘squarely meet[s] the definition of a machine’’ in sup- port of its argument that wind turbines should be classi- fied as personal property under § 12-41 (c) and should not be treated as a ‘‘building’’ or a ‘‘structure’’ under § 12-64 (a).5 Focusing specifically on the language in § 12-41 (c) providing that ‘‘cables, wires, poles, under- ground mains, conduits, pipes and other fixtures of water, gas, electric and heating companies’’ are per- sonal property, the plaintiff contends that the wind tur- bines ‘‘unequivocally fall within this statute as they are machinery of an electric company and are primarily comprised of the articles specifically enumerated in . . . § 12-41 (c).’’ This argument is flawed for the fol- lowing reasons.6 First, the ‘‘fixtures’’ provision on which the plaintiff relies does not mention the words machine or machin- ery; it does not appear to refer to machines at all. Cables, wires, poles, underground mains, conduits, and pipes are not machines; they are equipment used for the trans- mission or transportation of water, gas, electricity, and heat.

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