Did Connecticut need property review board approval to transfer the Stratford Shakespeare Theatre to the town?

Plain-English summary

In 2008, Connecticut's Attorney General concluded that the state had validly transferred the Stratford Shakespeare Theatre site to the Town of Stratford in 2005. The question was whether the transfer needed approval from the State Properties Review Board. The AG said the controlling law was Conn. Gen. Stat. § 22a-26, which governed property transfers from the environmental department to towns and required approval from the Office of Policy and Management. That approval had been obtained.

The transfer included the theatre building and another structure. The AG explained that the word "land" in the town-transfer statute included permanent buildings and fixtures. He distinguished a separate statute requiring property review board approval for transfers of surplus houses or buildings to private persons or entities.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

State property officials and auditors at the time

The opinion treated § 22a-26 as the specific authority for the Theatre conveyance to Stratford. Because the theatre and office house were attached to the land, the transfer of "land" covered them. The AG found Office of Policy and Management approval was the required review and had been secured.

Municipal recipients at the time

The opinion distinguished a conveyance to a town from one to a private buyer. It found the statute specifically addressing governmental recipients controlled over the more general provision for surplus buildings. Its conclusion was limited to the Stratford transfer it reviewed.

Common questions

Q: Did the Stratford Theatre transfer need State Properties Review Board approval?
A: The AG said no. He concluded the statute for transfers to municipalities governed, and that provision required a different approval that the state had obtained.

Q: Did a law allowing transfer of state "land" cover the theatre building?
A: Yes, according to the opinion. Connecticut property law treated permanent buildings as part of the land conveyed.

Q: Why did the separate surplus-building statute not control?
A: The AG read it as addressing transfers to private persons or entities. The Theatre property went to a town, for which § 22a-26 provided a specific transfer rule.

Background and statutory framework

State auditors forwarded a question from the State Properties Review Board about the 2005 conveyance. The environmental department had transferred a 14.49-acre site with the Shakespeare Theatre and another building to Stratford. The AG compared Conn. Gen. Stat. § 22a-26, for transfers to municipalities and other governments, with § 26-3b(b), concerning surplus buildings and private recipients.

The opinion relied on Connecticut cases treating buildings as part of land and on the rule that the specific statute governed the particular transaction. It concluded the required policy office approval had been obtained and the transfer was valid.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 22a-26; Conn. Gen. Stat. § 26-3b(b).

Cases cited in the opinion: Waterbury Petroleum Products v. Canaan Oil & Fuel, 193 Conn. 208, 215-216 (1984); Zemerzakis v. Commissioner of Social Services, 274 Conn. 1, 18 (2005).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2008-formal-opinions/hon-robert-g-jaekle-hon-kevin-p-johnston-state-auditors-state-of-connecticut-auditors-of-public-acco

Original opinion text

Hon. Robert G. Jaekle, Hon. Kevin P. Johnston, State Auditors, State of Connecticut, Auditors of Public Accounts, Formal Opinion 2008-013, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 24, 2008

Hon. Robert G. Jaekle, State Auditor

Hon. Kevin P. Johnston, State Auditor

State of Connecticut, Auditors of Public Accounts

State Capitol

210 Capitol Avenue, Rooms 114-116

Hartford, CT 06106-1628

Dear Messrs. Jaekle and Johnston:

Thank you for your May 29, 2008 letter forwarding correspondence from Edwin S. Greenberg, Chairman of the State Properties Review Board (“SPRB”), questioning the 2005 transfer of the Stratford Shakespeare Theatre (the “Theatre”) from the Department of Environmental Protection (“DEP”) to the Town of Stratford (the “Town”).

The property in question, comprised of 14.49 acres together with the improvements thereon, including the Theatre building and a two story house that had long been utilized as office space, was conveyed to Stratford by the Commissioner of the DEP (the “Commissioner”) pursuant to Conn. Gen. Stat. § 22a-26. That statute requires the approval of the Office of Policy and Management, not the SPRB. Mr. Greenberg asks if the transfer should have been made pursuant to Conn. Gen. Stat. §26-3b(b), which requires SPRB approval.

It is our opinion that the transfer of the Theatre land and buildings was properly accomplished under Section 22a-26. That statute expressly and specifically authorizes DEP to transfer “land” to municipalities and other governmental entities. Because Connecticut case law encompasses buildings and other fixtures within the term “land,” Conn. Gen. Stat. §22a-26 provided DEP the proper authority to transfer the Theatre’s land and buildings to the Town of Stratford. In contrast, Conn. Gen. Stat. § 26-3b(b) empowers DEP to sell, exchange or otherwise transfer the State’s interest in land or buildings to any private person or entity, and does not mention municipalities or other governmental entities. Because Section 22a-26 specifically governs transfers of property to municipalities and other governmental entities, it controls over the general transfer authority given to DEP in Section 26-3b(b).1

Conn. Gen. Stat. § 22a-26 specifically addresses transfers of “land” from the Commissioner of the Department of Environmental Protection to municipalities, other state agencies and the federal government. As used in Conn. Gen. Stat. § 22a-26, the word “land” includes buildings and other structures. At common law, the structures in question ­­ the Theatre building and a two story house ­­ are fixtures in that they are permanent improvements to, and therefore a part of, the land. See, Waterbury Petroleum Products v. Canaan Oil & Fuel, 193 Conn. 208, 215-216 (1984). “The land and the buildings not only become one legal entity, but they are also inseparable as respects the character of their ownership and all its incidents. In the fullest sense they are one in the eye of the law.” Ward v. Ives, 91 Conn. 21-22 (1916). Therefore, the conveyance of the Theatre “land” authorized under Conn. Gen. Stat. § 22a-26 would encompass the buildings and other structures affixed to that land. Consistent with conveyancing practices in the State of Connecticut, the property description contained in the deed from the DEP to the Town of Stratford set forth the bounds of the land conveyed without a separate reference to specific buildings on the property.

Conversely, Section 26-3b(b) gives the DEP the general authority to “sell, exchange, or otherwise transfer the state’s interest in houses or buildings … and any land accompanying any such house or building.” The legislative history of Conn. Gen. Stat. § 26-3b discloses that it was enacted to address the disposal of residential dwellings located in or proximate to state parks and forests, but which were not necessary for the management of those properties, and to enable the DEP to rent houses that were integral to management of the property to DEP employees. 39 H.R.Proc., Pt. 13, 1996 Sess., pp. 4478-4479 and Conn. Joint Standing Committee Hearings, Environment, Pt. 1, 1996 Sess., p. 226. Nothing in the legislative history of Conn. Gen. Stat. § 26-3b indicates that the statute was intended to address the specific subject of transferring DEP lands, including the buildings on them, to other governmental entities such as towns.

According to Conn. Gen. Stat. § 26-3b(b), whenever the DEP seeks to transfer a surplus house or building, and any realty accompanying such house or building, to a private person or entity, the transfer must be for "fair market" value and the DEP must obtain the approval of the SPRB. Similarly, the DEP must obtain SPRB approval for the rental of any DEP buildings or houses to non-governmental persons or entities. Conn. Gen. Stat. §26-3b(a).

In the specific situation presented here, that is, a transfer of DEP controlled property to the Town of Stratford, the particular terms of Conn. Gen. Stat. §22a-26 relating to DEP transfers to municipalities and other governmental entities govern over statutes of more general applicability, such as Conn. Gen. Stat. § 26-3b(b), which addresses the transfer of the state’s interests in houses, buildings and land to private persons or entities. Zemerzakis v. Commissioner of Social Services, 274 Conn. 1, 18 (2005).

Accordingly, we conclude that Conn. Gen. Stat. § 22a-26 not Conn. Gen. Stat. § 26-3b, was the proper statutory authority to transfer the land and buildings comprising the Shakespeare Theatre site from DEP to the Town of Stratford, and that approval of the transfer by OPM was required and properly obtained. Therefore, the transfer was valid.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

1 Conn. Gen. Stat. § 26-3b(b) directs that all transfers to private entities be for "fair market value." Transfers to municipalities and other governmental entities under Conn. Gen. Stat. § 22a-26 do not have such a requirement.