Town of Peterborough v. MacDowell Colony, Inc.

The petitioner, Town of Peterborough (town), appeals an order of the Superior Court (Abramson, J.) ruling that the respondent, The MacDowell Colony, Inc. (MacDowell), is entitled to a tax exemption under RSA 72:23, Y (2003) for the 2005 tax year. We affirm.

The following facts were either recited in the trial court’s order or appear in the record. MacDowell is a nonprofit corporation founded in 1907 by Edward and Marian MacDowell. Edward was an internationally-recognized composer, photographer, poet and journeyman architect. MacDowell’s 1986 Restated Certificate of Incorporation states its purpose, in language unchanged from the original 1907 Certificate of Incorporation, as follows:

To promote the arts of music, literature and the drama, architecture, painting and sculpture, and the other fine arts; to encourage study, research and production of all branches of art; to develop a sympathetic understanding of their correlation and appreciation of their value; and to broaden their influence; and thus carry forward the life purpose of Edward MacDowell;

To acquire by gift and to develop, in furtherance of such purpose, the home of Edward MacDowell and his wife in Peterborough, in the State of New Hampshire, proposed by them to be made a place for work and companionship of students in all the arts, and to maintain the same as their home meanwhile, and to apply any funds of the corporation for their benefit during their respective lives, as well as for the other objects of the corporation, and to acquire by gift or purchase such other property in that State and elsewhere as shall be deemed desirable in accomplishing the objects of the corporation.

MacDowell owns approximately 450 acres of land in Peterborough on which are located thirty-two art studios and various common buildings (collectively, the Colony). MacDowell operates an artist-in-residence program on the property. Each artist admitted to the program (a “Colony Fellow”) may spend up to eight weeks at the Colony, where he or she is provided a studio in which to create art. The studios are isolated from one another and from the common buildings and provide, in the trial court’s words, “a secluded, natural environment in which to work.”

Eight studios are equipped with beds and full bathrooms, enabling the artists assigned to those studios to reside in them during their stay. The artists assigned to the remaining studios are housed in three on-site *4dormitory buildings. Other common buildings include Colony Hall, which contains dining, laundry and communication facilities as well as a hall in which artists may socialize and informally present their work; Savidge Library, which provides twenty-four-hour research facilities and an additional venue for the artists to present their work; and Hillcrest, which is Edward and Marian MacDowell’s former home and is now used for visitors, guests, meetings and special events.

MacDowell’s artist-in-residence program operates throughout the year, in three separate four-month-long sessions. The program is open to both professional and emerging artists. Selection for admission is based primarily upon talent. Applicants must submit a two-page application form, a project description, two references and a $20.00 application fee, which may be waived. Applications are reviewed by separate admission panels for each of the artistic disciplines involved. The trial court noted that the admission panels “are comprised of a revolving group of distinguished professionals in each artistic discipline.” (Quotation omitted.) In 2005, the panels represented the following disciplines: “literature (poets, playwrights, fiction and non-fiction writers, and translators); music composition; visual arts; film/ video; interdisciplinary arts; and architecture.”

The admission panels rank applications by degree of talent or excellence, using a shared rating scale. No consideration is given to the applicants’ financial status, although travel grants are available for artists in financial need. Between two applicants of equal rank and with similar space requirements, preference is given to an applicant who has not previously been a Colony Fellow. In 2005, 246 artists, including one New Hampshire resident, were selected from 1765 applicants to receive fellowships:

MacDowell sought a charitable tax exemption in 2005 for 420 acres of its land and forty of its buildings (the remaining thirty acres and one building were apparently not used directly for MacDowell’s charitable mission). See RSA 72:23, V. Although the town previously had treated MacDowell’s property as tax exempt, it denied the application, concluding, as averred by a town selectman, that MacDowell was not a public charity meeting the requirements of RSA 72:23, V and RSA 72:23-l (2003). The parties agreed to resolve their dispute through a declaratory judgment action, and, in summary judgment rulings, the trial court determined that MacDowell was entitled to the tax exemption.

On appeal, the town argues that MacDowell is not a public charity entitled to a tax exemption under RSA 72:23, V because: (1) it provides benefits only to “a very limited and insubstantial group”; (2) “it has complete discretion over who will receive its benefits”; and (3) it has “failed to meet the statutory requirement that residents of New Hampshire [be] admitted to a charity’s benefits.”

*5In an appeal from an order on motions for summary judgment, we apply the following standard of review:

When reviewing a trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. If our review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court’s decision. We review the trial court’s application of the law to the facts de novo.

Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006) (quotation omitted).

“It is elemental that determination of the rights of [MacDowell] to an exemption from taxation is statutory. The existence and extent of exemptions depends on legislative edict.” E. Coast Conf. of the Evangelical Covenant Church of America v. Town of Swanzey, 146 N.H. 658, 661 (2001) (quotation omitted). “In matters of statutory interpretation, we are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole.” Lacasse, 154 N.H. at 250 (quotation omitted). Accordingly, we will overturn the trial court’s decision “if we find that the [court] misapprehended or misapplied the law.” E. Coast Conf, 146 N.H. at 661 (quotation omitted). We note that “[t]he legislative purpose to encourage charitable institutions is not to be thwarted by a strained, over-technical and unnecessary construction.” Young Women’s Christian Ass’n v. Portsmouth, 89 N.H. 40, 42 (1937) (quotation omitted).

We begin by examining the language of the relevant statutes. See Lacasse, 154 N.H. at 250. RSA 72:23, V provides an exemption from taxation for:

The buildings, lands and personal property of charitable organizations and societies organized, incorporated, or legally doing business in this state, owned, used and occupied by them directly for the purposes for which they are established, provided that none of the income or profits thereof is used for any other purpose than the purpose for which they are established.

In turn, RSA 72:23-l defines charitable as follows:

The term “charitable” as used to describe a corporation, society or other organization within the scope of this chapter, including RSA 72:23 ..., shall mean a corporation, society or organization *6established and administered for the purpose of performing, and obligated, by its charter or otherwise, to perform some service of public good or welfare advancing the spiritual, physical, intellectual, social or economic well-being of the general public or a substantial and indefinite segment of the general public that includes residents of the state of New Hampshire, with no pecuniary profit or benefit to its officers or members, or any restrictions which confine its benefits or services to such officers or members, or those of any related organization. The fact that an organization’s activities are not conducted for profit shall not in itself be sufficient to render the organization “charitable” for purposes of this chapter ....

In ElderTrust of Florida, Inc. v. Town of Epsom, 154 N.H. 693 (2007), we set forth four factors for determining whether an organization qualifies for a charitable tax exemption under RSA 72:23, V and RSA 72:23-l; namely, whether:

(1) the institution or organization was established and is administered for a charitable purpose; (2) an obligation exists to perform the organization’s stated purpose to the public rather than simply to members of the organization; (3) the land, in addition to being owned by the organization, is occupied by it and used directly for the stated charitable purposes; and (4) any of the organization’s income or profits are used for any purpose other than the purpose for which the organization was established. Under the fourth factor, the organization’s officers or members may not derive any pecuniary profit or benefit.

ElderTrust, 154 N.H. at 697-98.

The town first contends that “MacDowell is not a public charity because the creative artists who gained access to the Peterborough property in 2005 were not a substantial and indefinite segment of the general public.” The town’s argument assumes that the artists admitted to the artist-in-residence program are its sole beneficiaries. In its tax-exempt survey, however, MacDowell asserted that its mission advances “the intellectual well being of the general public.” (Emphasis added.) The trial court concurred, at least in part, with MacDowell’s assertion, concluding that by “supporting the artistic process,” MacDowell benefits “at the very least, artists across the world, and, in a broader sense, the general public.” The court further concluded that MacDowell’s artist-in-residence “program primarily benefits society as a whole.” We agree. Therefore, performance of *7MacDowell’s mission satisfies RSA 72:23-Z without inquiry into whether Colony Fellows constitute “a substantial and indefinite segment of the general public,” RSA 72:23-l.

The town nevertheless urges us to reject the proposition that “the beneficiary of the Peterborough property is the general public based upon what [the admitted artists] may or may not do at the Peterborough property.” The town’s argument, however, conflates the second and third ElderTrust factors — the requirements of public service and of use and occupancy. The relevant inquiry is not whether the public, or a substantial and indefinite segment of it, benefits from the organization’s property, but whether the public, or a substantial and indefinite segment thereof, benefits from the organization’s performance of its stated purpose. See ElderTrust, 154 N.H. at 697-98. Thus, the town’s argument that “MacDowell’s service is room, board, and a studio, which is entirely consumed by the creative artists invited to the Peterborough property,” misses the mark. While MacDowell does provide those services to the Colony Fellows, its charitable purpose is, as the trial court determined, “promotion of the arts.” The provision of that service benefits a far greater segment of society than the artists who actually use MacDowell’s property and, in so doing, serves the “general public” as that term is used in RSA 72:23-l.

For similar reasons, we reject the town’s contention that “MacDowell cannot ride upon the coattails of the individual artists to receive a public charitable tax exemption” where: (1) it is not MacDowell, but the individual artists, who produce art at the Colony; and (2) there is no requirement that Colony Fellows actually produce art while at the Colony. Again, MacDowell’s charitable purpose is not to actually create art but to promote it; that is, in the words of its charter, “to encourage study, research and production of all branches of art; to develop a sympathetic understanding of their correlation and appreciation of their value; and to broaden their influence.” It is MacDowell, not the individual artists, that performs that stated purpose.

The town next contends that because MacDowell’s application and admission procedures give it “total discretion over who will receive its benefits,” it has no enforceable obligation to perform a charitable service. In determining whether an organization has an enforceable obligation to perform a charitable service, “we look to both its charter or organizational statements and its actions taken pursuant to those statements.” E. Coast Conf., 146 N.H. at 662. The trial court concluded that MacDowell’s charter requires the corporation to “use its property to promote the arts, and more specifically, make the property a place for work and companionship of *8students in the arts. Further, MacDowell is obligated to use any funds of the corporation to fulfill this purpose.” (Citation omitted.) We agree. MacDowell’s charter requires it to acquire Edward and Marian MacDowell’s home in Peterborough and “to develop [it, in furtherance of MacDowell’s stated charitable purpose, into] ... a place for work and companionship of students in all the arts.” The charter also requires MacDowell “to apply any funds of the corporation for... the ... objects of the corporation.” We conclude that MacDowell’s charter “sufficiently circumscribe[s] its discretion and define[s] an enforceable charitable obligation.” ElderTrust, 154 N.H. at 700.

The town contends, however, that the trial court erred by examining only MacDowell’s charter, and failing to consider its actions, in determining whether it is obligated to provide a service of public good or welfare. The town asserts that “MacDowell has chosen to perform [its] mission” through a program restricted to artists it considers to be of the highest talent and argues that because MacDowell’s application and admission procedures give it “total discretion over who will receive its benefits,” it has no enforceable obligation to perform a charitable service. In support, the town cites the following passage from ElderTrust:

[T]he public service which [the organization] is to render must be obligatory so as to enable the Attorney General or other public officer to enforce this right against it if the service is not performed. It follows that if the public benefit is limited to that which the plaintiff sees fit to provide at its option or in its uncontrolled discretion the requirements of RSA 72:23[,] V are not satisfied.

ElderTrust, 154 N.H. at 699 (quotation omitted).

The town’s argument again conflates two of the requirements for a charitable tax exemption: public service and obligatory service. The obligatory service requirement relates not to whom the service is provided but to whether the organization is required to provide the service at all. Thus, as we explained in ElderTrust: “The purpose of the obligation requirement is to prevent organizations, even if they operate for charitable purposes, from obtaining the benefits of a tax exemption without providing some service of public good.” Id. As noted above, MacDowell is obligated by its charter to perform a charitable service. In addition, contrary to the town’s contention, the trial court did consider MacDowell’s “actions taken pursuant to [its organizational] statements,” E. Coast Conf., 146 N.H. at 662, and concluded that “for approximately 100 years, MacDowell’s Charter has been interpreted as obligating MacDowell to further the charitable purpose of promoting the arts; and MacDowell has administered this *9purpose through its artist-in-residence program.” Upon our review of the record, we agree with the trial court’s conclusion.

The town also argues that MacDowell fails to meet the statutory definition of a charity because it selected only one New Hampshire resident as a Colony Fellow in 2005. The town represents it as undisputed “that RSA 72:23-l requires ‘residents’ of New Hampshire to receive a charity’s benefits.” RSA 72:23-i actually requires, in pertinent part, that a charitable organization’s obligatory public service “advanc[e] the spiritual, physical, intellectual, social or economic well-being of the general public or a substantial and indefinite segment of the general public that includes residents of the state of New Hampshire.” RSA 72:23-l (emphasis added). We read the phrase “that includes residents of the state of New Hampshire,” as modifying “a substantial and indefinite segment of the general public.” Id. We find it implicit that the term “general public” automatically includes residents of New Hampshire. Accordingly, a specific inquiry into the organization’s impact upon New Hampshire residents is necessary only when the organization serves a narrower population than the general public, i.e., in the statute’s words, “a substantial and indefinite segment of the general public.” Id. As we have concluded that MacDowell’s' public service advances the intellectual well-being of the general public, we need not undertake a more specific inquiry.

Notably, the trial court went further, concluding that “MacDowell’s location in Peterborough has contributed immensely to the artistic culture of New Hampshire.” The court reasoned:

Colony Fellows participate in and contribute to promoting the arts in Peterborough by donating works to the Peterborough library, or offering to judge poetry contests. While it is true that Colony Fellows have the option of engaging in such activities in Peterborough, such artistic contributions occur only because MacDowell maintains its artist-in-residence program in Peterborough.

The record supports these findings.

The town further contends that if it is the art created by Colony Fellows that constitutes the public benefit, “then the profits from that art must be accounted for,” because, under RSA 72:23, V, none of the income or profits of the artist-in-residence program may be used for any purpose other than that for which MacDowell was established. The town asserts that the art is owned by the artists, who may sell or do what they please with it. As MacDowell points out, however, RSA 72:23, V’s prohibition against private inurement applies to it, not the Colony Fellows. See *10ElderTrust, 154 N.H. at 698 (requiring for charitable tax exemption that “any of the organization’s income or profits are [not] used for any purpose other than the purpose for which the organization was established” (emphasis added)).

Finally, the town argues that certain programs facilitated by MacDowell, but provided by its artists in residence on a purely voluntary basis, do not qualify MacDowell for public charitable status. We need not address this argument, as MacDowell relies solely upon its artist-in-residence program as satisfying its public service requirement, and we have found that program sufficient. Similarly, we need not address the town’s contention that we should reject MacDowell’s argument that it is similar to other “self-selecting” groups, as we have not adopted that reasoning in our analysis. For the foregoing reasons, we affirm the trial court’s order.

Affirmed.