206 Conn. 579

Elizabeth Sadlowski et al. v. Town of Manchester et al.

(13227)

Peters, C. J., Shea, Callahan, Glass and Hull, Js.

Argued February 3

decision released March 15, 1988

*580Edward F. Hennessey, with whom were S. Frank D'Ercole, Kevin M. O’Brien and John W. Cooney, town attorney, for the appellants (named defendant et al.).

Bourke G. Spellacy, with whom, on the brief, were R. Dial Parrott, Amy S. McCabe and Karen P. Blado, for the appellants (Homart Development Company et al.).

Kathleen Eldergill, for the appellees (plaintiffs).

Peters, C. J.

General Statutes § 8-192 (a)1 authorizes a municipality to issue tax increment bonds with the approval of its local “legislative body.” The sole issue in this case is how to reconcile this reference to “legislative body” with the provisions of a local charter that stipulate that municipal bonds generally must *581be authorized by a two step process including not only the approval of the local board of directors but also the favorable action of the voters of the town. The plaintiffs, residents, taxpayers and electors of the town of Manchester, brought this action against the defendants, the town of Manchester and its economic development commission, to enjoin the issuance of tax increment bonds until their approval by a referendum.2 Homart Development Corporation and the Mall at Buckland Hills Partnership were permitted to join the action as party defendants. In their answers to the complaint, the defendants responded that, as a matter of law, such bonds could validly be issued without a referendum. Faced with opposing motions for summary judgment, the trial court ruled in favor of the plaintiffs. The defendants have appealed. We find error.

The facts are undisputed. The defendants have proposed the construction of a regional shopping center in the northern part of Manchester. Planning for the *582project contemplates some form of assistance from the town to finance needed traffic, water and sewer improvements. Accordingly, the town, represented by appropriate agencies including its economic development commission and its board of directors, proposed the issuance of “tax increment bonds” pursuant to the authority of § 8-192 in a principal amount not to exceed $13,000,000. After a public hearing held on August 27, 1987, a bond authorization resolution was approved by the economic development commission on August 31, 1987, and by the board of directors on September 1, 1987.

The plaintiffs’ lawsuit challenged the authority of the town to issue “tax increment bonds” without the approval of the voters at a town referendum. Although the board of directors is the local legislative body for most purposes, the plaintiffs maintained that the board lacks plenary authority over the issuance of municipal bonds. Such bonds, according to the plaintiffs, fall within the terms of § 5-25 of the Manchester town charter, which permits the town to “incur indebtedness by issuing its negotiable bonds” only if such bonds are “authorized by a majority vote of all the members of the Board of Directors” and approved “by the voters of the Town.”3

The trial court agreed with the plaintiffs. The court recognized that § 8-192 authorizes tax increment bonds that, in their provenance and in their impact on local tax resources, differ from general municipal obligation *583bonds. The court held nonetheless that Manchester’s town charter requires tax increment bonds to be approved by a town referendum in addition to the affirmative vote of the town’s board of directors. For this reason, the court rendered judgment in favor of the plaintiffs, enjoining the issuance of the tax increment bonds “until the development project has been favorably acted upon by the voters of the town in accordance with section 5-25 of the charter.” The defendants took a timely appeal to this court.

In their appeal, the defendants urge us to overturn this judgment and to direct summary judgment in their behalf. They contend that the trial court’s conclusion that a referendum was required was in error because: (1) § 5-25 of the Manchester charter was not intended to apply to the issuance of tax increment bonds under § 8-192; (2) the term “legislative body” used in § 8-192 of the General Statutes refers only to Manchester’s board of directors and not to its voters; and (3) § 8-192, by its own terms, supersedes local charter provisions relating to the issuance or sale of bonds.4 We agree with the defendants in principle.

I

Before we reach the merits of the defendants’ claims of error, we must consider whether events have so overtaken this litigation that the appeal has become moot. Mootness implicates the subject matter jurisdiction of this court. We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. Board of Edu*584cation v. Board of Labor Relations, 205 Conn. 116, 124-25, 530 A.2d 588 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

The plaintiffs urge us to dismiss this appeal on the ground of mootness. Although we lack a formal record of the events that transpired subsequent to the judgment of the trial court, it appears to be undisputed that, as a result of that judgment, the board of directors voted to hold a referendum to obtain voter approval of the proposed tax increment bonds. On November 3, 1987, the Manchester voters rejected the proposed bond issue. Since that time, the Manchester board of directors and the developers have been engaged in negotiations for an alternate method of financing that would substitute a partial tax abatement for tax increment bonding. These negotiations have not yet been finalized, and their validity is coming under renewed challenge.

Given this uncertain state of the record, we agree with the defendants that they are entitled to an appellate resolution of their claims of error. Lacking assurance that there is no longer any practical relief that we can afford the parties, we are obligated to consider their appeal on its merits. Our decision will not only clarify the authority of the town of Manchester to issue tax increment bonds in the future, but will, in all likelihood, enable the present defendants to pursue their claims concerning the tax increment bonds to which they have previously agreed.

II

In order to address the defendants’ specific claims of error, we can usefully begin with a description of *585tax increment bonds. Tax increment bonds are sui generis. They are authorized by a special chapter of the General Statutes, chapter 132, §§ 8-186 through 8-200b, enacted in 1967 to facilitate municipal development projects. For this purpose, § 8-192 (a) permits municipalities to issue bonds “which are payable solely from and secured by: (1) A pledge of and lien upon any or all of the income, proceeds, revenues and property of development projects, including the proceeds of grants, loans, advances or contributions from the federal government, the state or other source, including financial assistance furnished by the municipality or any other public body pursuant to this chapter; (2) taxes, in whole or in part, allocated to and paid into a special fund of the municipality pursuant to the provisions of section 8-192a; or (3) any combination of the methods in subsections (1) and (2) of this section.” Tax increment bonds differ from the municipal bonds that chapter 109 of the General Statutes authorizes municipalities to issue for capital improvement projects. In contradistinction to tax increment bonds, general municipal obligation bonds engage the borrowing power of a municipality and are repayable from its tax base; for that reason, the legislature has imposed ceilings on the aggregate amount of such indebtedness that a municipality may undertake. General Statutes §§ 7-369, 7-374. Tax increment bonds are excluded from such ceilings by § 8-192 (a) unless portions of the bond repayment have been advanced from town funds. Because no such advance has been made in this case, the trial court recognized that “[these] bonds will not be a general obligation of the town, other tax revenues of the town will not be used to repay them, and they will not affect the plaintiffs’ taxes.”

A

From this perspective, we turn to the defendants’ claim that the trial court erred in concluding that § 5-25 *586of the Manchester charter applies to tax increment bonds issued pursuant to § 8-192 (a). The defendants maintain that the referendum that the charter prescribes for the financing of “any capital project which the Town may lawfully construct or acquire” pertains only to those capital improvements that are funded by general municipal obligation bonds and not to municipal development projects funded by tax increment bonds. We agree.

In order to determine the proper scope of § 5-25, we must examine the language of the section itself and of related provisions of the charter that may shed light on the charter’s intent and purpose. See Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637, 513 A.2d 52 (1986); Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985). Looking at the charter as a whole, we are persuaded that the only bonding governed by § 5-25 is general municipal obligation bonding that constitutes a charge on the town’s taxpayers. Indeed, in 1947, when the Manchester charter was first adopted, other forms of municipal bonding, such as tax increment bonds, had not yet been authorized by the General Assembly. Furthermore, the bonding provisions in the charter reflect the understanding that they are designed to implement general municipal obligation bonds for which the taxpayers will be indebted. Notably, the prefatory language in § 5-25 describes the borrowing that is subject to referendum as financing by which “the Town may incur indebtedness . . . .” That theme is echoed in other parts of the charter. Section 19-1,5 dealing with *587bond issues, refers to § 7-371 of the General Statutes, which regulates general municipal obligation bonds that have such tax implications. In the same part of the charter, § 19-66 provides rules to implement the tax consequences of bonding. The charter provisions dealing with capital programs contain similar fiscal regulations. For example, § 5-2 (a)7 requires capital improvement funding to be reflected in the annual budget. All of these charter provisions support an interpretation of § 5-25 that limits its application to financing in the form of general municipal obligation bonds.

*588The plaintiffs’ arguments to the contrary do not address the particulars of the language of the Manchester charter or the interrelationship between the charter and the General Statutes. They rely instead on general principles that may well be sound but are not directly relevant. Whatever may be the general scope of municipal bonds defined in City of Stamford v. Town of Stamford, 107 Conn. 596, 610, 141 A. 891 (1928), we are concerned in this case with a special form of bonding that forms an exception from municipal obligations that “are evidences of indebtedness, issued by . . . towns.” Whatever may be the constitutional jeopardy of tax increment bonds in other jurisdictions with special state constitutional provisions that regulate bonding; Tucson v. Corbin, 128 Ariz. 83, 623 P.2d 1239 (1980); we are not faced with a constitutional challenge in this case. Whatever may be the authority of a state treasurer to issue other forms of limited obligation bonds; State ex rel. Finance Committee v. Martin, 62 Wash. 2d 645, 384 P.2d 833 (1963); we are confronted with the special position of tax increment bonds in the Connecticut scheme of municipal development financing. We therefore agree with the defendants that tax increment bonds were not intended to be included within the class of capital improvement bonds for which § 5-25 of the Manchester charter prescribes approval by referendum.8

*589B

Our conclusion that § 5-25 of the Manchester charter does not include tax increment bonds does not, however, dispose of all of the issues. Although the validity of tax increment bonds does not turn directly on the terms of § 5-25, we must still decide how to reconcile the provisions of the Manchester charter with the requirement of § 8-192 (a) that tax increment bonds must be approved by the local “legislative body.” The trial court agreed with the plaintiffs that, in the town of Manchester, at least for bonding purposes, the local “legislative body” is comprised of the town’s board of directors together with its voters exercising legislative powers through a referendum. The defendants maintain that the applicable provisions of the General Statutes compel a different result.

The term “legislative body” is defined by General Statutes § 7-193 (a) (1) as follows: “(A) A town meeting; (B) a representative town meeting; (C) a board of selectmen, council, board of directors, board of aider-men or board of burgesses; or (D) a combination of a town meeting or representative town meeting and one of the bodies listed in subparagraph (C).” The trial court concluded that the voters of Manchester, acting on a referendum, constituted a town meeting, and that the town’s “legislative body” therefore fell within the combination of “town meeting” and “board of directors” authorized by § 7-193 (a) (1) (D). This ruling can only be sustained if voters exercising legislative power by voting on a referendum can be said to be a town meeting. We hold that they cannot.

We note at the outset that the Manchester charter nowhere designates its provision for a referendum as *590the equivalent of a town meeting. For us to imply such an equivalence would fly in the face of reality. In ordinary usage, the term “meeting” means an assembly or a gathering for political, social, religious or economic purposes. N. Webster, Third New International Dictionary. We have taken judicial notice of the fact that “[i]n a Connecticut town which has a town-hall, the words 'town meeting’ connotes a meeting in the town-hall.” Portland Water Co. v. Portland, 97 Conn. 628, 635, 118 A. 84 (1922). In Pollard v. Norwalk, 108 Conn. 145, 146, 142 A. 807 (1928), upon which the plaintiffs attempt to rely, this court cited Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 29 (1883), for a description of a town meeting as an occasion on which “[t]he assembled voters” are, upon proper “warning,” empowered to act. Thus a referendum in which individual voters cast individual ballots in individual voting booths does not constitute a town meeting.

The distinction between legislative power exercised in a town meeting and legislative power exercised in a referendum is underscored by other provisions, both in the General Statutes and in the Manchester charter. Section 7-193 (a) (1) of the General Statutes specifies that when a local legislative body consists of a combination of town meeting and board of directors, “the body having the greater number of members shall have the power to adopt the annual budget . . . .” If voter approval by way of referendum were to constitute a town meeting, then, under § 7-193, such voter approval would be required to enact the Manchester town budget. The Manchester charter, however, in the relevant provisions of §§ 3-1, 3-9, 5-3 through 5-8 and 5-10,9 vests exclusive budgetary authority in the board *591of directors. In order to make both the statutes and the charter workable, Manchester’s board of directors *592must be deemed to be its sole legislative body for the purposes of §§ 8-192 (a) and 7-193.

*593Our conclusion that a referendum is not a “legislative body” is reenforced when we compare § 7-193 with other related statutes governing the same subject matter. See Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987), and cases there cited. We have found no statutes that suggest an equivalence between legislative body and referendum, or between town meeting and referendum. On the contrary, statutes such as §§ 7-427 and 9-164c contain legislative mandates to municipalities that expressly require the approval of both the local “legislative body” and a “referendum” of its electorate.

*594As we have interpreted the operative provisions of §§ 8-192 (a) and 7-193, Manchester’s board of directors is the local legislative body whose approval is required for the issuance of tax increment bonds. The Manchester charter does not incorporate the type of combination legislative body that § 7-193 recognizes. There is therefore no conflict between the statutes and the charter. Were there to be such a conflict, however, it is worth noting that § 8-192 (a) expressly provides that the rules that it prescribes for the issuance of tax increment bonds “shall not be subject to the provisions of any other law or charter relating to the issuance or sale of bonds.” The plaintiffs have not challenged the power of the General Assembly to override local charter provisions that conflict with legislative policy. See Shelton v. Commissioner, 193 Conn. 506, 521-23, 479 A.2d 208 (1984).

The trial court was therefore in error when it ruled that the town of Manchester’s board of directors could not approve the issuance of tax increment bonds without seeking the further approval of a town referendum. This conclusion of law is unaffected by the fact that such a referendum was subsequently held, and went down to defeat. We have no record upon which to determine whether other events following the trial court’s judgment have affected the board’s approval of the bond issue. We therefore remand the case for a further hearing to determine the present status of that approval.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

Sadlowski v. Town of Manchester
206 Conn. 579

Case Details

Name
Sadlowski v. Town of Manchester
Decision Date
Mar 15, 1988
Citations

206 Conn. 579

Jurisdiction
Connecticut

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