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