Attorney General: The Honorable Reginald J. Smith, Senate Minority Leader, 1991-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 6, 1991

The Honorable Reginald J. Smith
Senate Minority Leader
State Capitol
Hartford, CT 06106

Dear Senator Smith:

In your letter dated June 25, 1990, you requested our opinion on the following questions regarding the meaning of subsection (g) of Section 7-147b of the Connecticut General Statutes:

  1. If the possible creation of a local historic district is being considered by a municipality under Conn. Gen. Stat. 7-147a and 7-147b, and if a municipality owns real property within the proposed local historic district, is the municipality's legislative body entitled to vote, under Conn. Gen. Stat. 7-147b(g), on the proposed establishment of the district?
  2. Under the circumstances described in (1) above, would community members, either those in the municipality as a whole or only those within the proposed historic district, be entitled to cast a vote as collective owners of the municipal property in a vote taken under Conn. Gen. Stat. 7-147b(g)?

To answer your first question, in most instances a municipality will not have a vote in an election held under Conn. Gen. Stat. 7-147b(g) regarding possible establishment of a local historic district within the municipality. There is, however, one set of circumstances under which a municipality would have the right to cast a vote in such an election. A municipality will have one vote or a fraction of a vote in such an election if the municipality owns real property within the proposed district, which property appeared at some time on t he municipality's last-completed grand list of real property within the proposed district, which property was assessed at that time at a value for taxing purposes of a least one thousand dollars, and which property was owned at that time by a party (a) who was liable to the municipality for taxes on that assessment, or (b) who would have been so liable were it not for an exemption under subdivision (7), (8), (10), (11), (13), (14), (15), (16), (17), (20), (21), (22), (23), (24), (25), (26), (29) or (49) of Conn. Gen. Stat. 12-81. Under these exceptional circumstances, the municipality would have at most one vote.

To answer your second question, members of the community, even under these exceptional circumstances, would have no right to vote in an election under Conn. Gen.. Stat. 7-147b(g), because the municipality's vote must be cast, under that same statutory subsection, by the municipality's chief executive officer or his or her designee.

We also call your attention to the fact that, in a sense, a municipality may cast the deciding "vote" in any proceeding to consider establishment of a local historic district within the municipality's confines. Even if a local historic district committee should hold an election under Conn. Gen. Stat. 7-147b(g) and more than two-thirds of those voting should approve of the establishment of such a district, it would still be the legislative body of the municipality which had the power to establish the district, Conn. Gen. Stat. 7-147a(b); and that body would likewise have the power, under Conn. Gen. Stat. 7-147b(8)(2), to reject a committee report recommending establishment of such a district, thereby blocking its creation.

Chapter 97a of the Connecticut General Statutes, in Section 7-147a and 7-147b, provides a process whereby:

Any municipality may, by vote of its legislative body and in conformance with the standards and criteria formulated by the Connecticut historical commission establish within its confines an historic district or districts to promote the education, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places associated with the history of or indicative of a period or style of architecture of the municipality, of the state or of the nation.

Conn. Gen. Stat. 7-147a(b).

Your questions are answered by referring to the relevant statutes themselves. The provision of primary concern, Conn. Gen. Stat. 7-147b(g), reads as follows:

(g) The legislative body shall, not later than sixty-five days from receipt of such report, authorize the clerk of the municipality, or his designee, to mail ballots to each owner of record of real property to be included in the proposed district or districts on the question of creation of a historic district or districts, as provided for in sections 7-147a to 7-147k, inclusive. Only an owner who is eighteen years of age or older and who is liable, or whose predecessors in title were liable, to the municipality for taxes on an assessment of not less than one thousand dollars on the last-completed grand list of the municipality on real property within the proposed district, or who would be or would have been so liable if not entitled to an exemption under subdivision (7), (8), (10), (11), (13), (14), (15), (16), (17), (20), (21), (22), (23), (24), (25), (26), (29) or (49) of section 12-81, may vote, provided such owner is the record owner of the property, thirty days before the ballots must be returned. Any tenant in common of any freehold interest in any land shall have a vote equal to the fraction of his ownership in said interest. Joint tenants of any freehold interest in any land shall vote as if each joint tenant owned an equal, fractional share of such land. A corporation shall have its vote cast by the chief executive officer of such corporation or his designee. No owner shall have more than one vote.

Since a municipality would obviously not be liable to itself for taxes on property which it owns within a proposed district, inmost instances the municipality would not be entitled to a vote under Conn. Gen. Stat. 7-147b(g).

A close reading of the statute reveals that a municipality would be entitled to vote on the proposed establishment of a local historic district if the municipality owned property within the proposed district and if one of the prior owners of that property, "on the last-completed grand list of the municipality on real property within the proposed district," had had that property assessed by the municipality at a value "of not less than one thousand dollars," and if (a) that prior owner of record had been liable to the municipality for taxes based on that assessment, or (b) "would have been so liable if not entitled to one of the listed exemptions under section 12-81." Therefore, a municipality which had acquired property sometime since the last compiling of the municipality's grand list, if the above conditions were satisfied, would be entitled to vote on the proposal or establishing a local historic district.

It is our duty to interpret statutes

"in light of well established principles that require us to ascertain and give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A Sutherland, Statutory Construction (4th Ed. 1984) 45.05..."

City of Norwich v. Housing Authority, 216 Conn. 112, 117, ___ A.2d ___ (1990) (emphasis added).

A municipality's right to vote under the limited circumstances described must be given effect since the language which creates it is not ambiguous.

It is the court's duty to "interpret statutes as they are written." Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). "'Courts cannot, by construction, read into statutes provisions which are not clearly stated.'" Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988); Robinson v. Guman, 163 Conn. 439. 444, 311 A.2d 57 (1972)... "[T]he intent of the legislature is to be found not in what it meant to say but in what it did say." Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Caldor Inc. v. Heffernan, supra, 571. Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or review of the legislative history. Federal Aviation Administration v. Administrator, supra, 550.

All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989) (emphasis added).

It should be borne in mind, however, that no matter how much "voting" property a municipality owns within a proposed historic district, the municipality will still be entitled to no more than one vote. "No owner shall have more than one vote." Conn. Gen. Stat. 7-147b(g). Since Connecticut municipalities are corporations, Webster v. Town of Harwinton, 32 Conn. 131, 137 (1864), the party who would cast the municipality's vote (or, in some possible instances its fraction of a vote) would be its chief executive officer or his or her designee, whether that chief executive officer be a mayor, first selectman, town manager or some other official. "A corporation shall have its vote cast by the chief executive officer of such corporation or his designee." Conn. Gen. Stat. 7-147b(g).1

This last provision provides the answer to your second question: Members of the community as such are not entitled to vote on a proposed local historic district in which their municipality owns property; it is the chief executive officer of he municipality, or an appropriate designee, who casts any vote arising from municipal ownership of property within the proposed district.

To address your concerns fully, however, its necessary to go beyond the specific questions you have addressed to us. This is because there is another sense, beyond the matter of voting under Conn. Gen. Stat. 7-147b(g), in which a municipality casts a critical "vote" on any proposal for establishing a local historic district within the municipal boundaries.

It should be noted, first, that it is not the vote of property owners under Conn. Gen. Stat. 7-147b(g) that serves to establish a local historic district, but rather the "vote of [a municipality's] legislative body...in conformance with the standards and criteria formulated by the Connecticut historical commission." Conn. Gen. Stat. 7-147a(b) (emphasis supplied). That the municipal legislative body is not required to establish such a district is apparent from the use of the word "may" in this provision: "Any municipality may, by vote of its legislative body...establish within its confines an historic district or districts..." Conn. Gen. Stat. 7-147a(b). It is, of course, well-established that the word "may" implies a discretionary, rather than a mandatory, function or activity. Dailey v. New Britain Machine Co., 200 Conn. 562, 572, 512 A.2d 893 (1986); see also, e.g., Duguay v. Hopkins, 191 Conn. 222, 229, 464 A.2d 45 (1983); Sullivan v. Liberty Mutual Fire Insurance Company, 174 Conn. 229, 233, 384 A.2d 384 (1978).

That the municipality need not establish a local historic district even "[i]f two-thirds of all property owners voting [under Conn. Gen. Stat. 7-147b(g)] cast votes in the affirmative" is plain from the provisions of Conn. Gen. Stat. 7-147b(8), which gives the legislative body of the municipality the choice of taking any one of the following three steps in such a case:

(1) Accept the report of the committee and enact an ordinance or ordinances to create and provide for the operation of an historic district or districts in accordance with the provisions of this part; (2) reject the report of the committee, stating its reasons for such rejection; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee.

Under subsection (2) of this provision, the municipality has, in essence, a veto power over any proposal to establish a local historic district within the municipality's confines. Therefore, while the municipality might not have even a single vote under Conn. Gen.. Stat. 7-147b(g), in another sense it will invariably have more "voting" power in proceedings for consideration of a proposed local historic district than will any voting property owner.

In summary, our answers to your questions are:

  1. A municipality may cast a maximum of one vote in an election under Conn. Gen. Stat. 7-147b(g) if the municipality owns real property within the proposed historic district which, at some prior time, was owned by another party who

    (a) was liable to the municipality for taxes on that property on an assessment of not less than one thousand dollars during the time that the last-completed grand list of the municipality for properties within the proposed district has been in effect, or

    (b) would have been so liable if not for an exemption under subdivision (7), (8), (10), (11), (13)-(17), (20)-(26), (29) or (49) of Conn. Gen. Stat. 12-81.

  2. If a proposal to create a local historic district is being voted upon in accordance with the provisions of Conn. Gen. Stat. 7-147b(g), and if the municipality which contains the district owns property within it which gives rise to some voting power, community members as such will have no right to exercise that voting power themselves. Any such voting power possessed by the municipality is to be exercised by the chief executive officer of the municipality or by his or her designee.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Lawrence Russ
Assistant Attorney General

CNR/LR/cd


1 Please note that although we are advising you as to who casts any vote a municipality may have under Conn. Gen. Stat. 7-147b(g), we are not advising you as to who has the power to determine whether that vote shall be cast in the affirmative or in the negative. That is a question which should be addressed by the municipality with the advice of its legal counsel.


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