Edward A. Crapo, as Alachua County Property Appraiser, Appellant,
Provident Group-Continuum Properties, L.L.C., a Florida not-for-profit limited liability company, and Von Fraser, in his capacity as Alachua County Tax Collector, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Monica J.
C. Dent, Jr., and Jennifer A. McClain of Dent & McClain,
Chartered, Sarasota, for Appellant.
K. Miller of Broad and Cassel LLP, Tallahassee, for Appellee
Provident Group - Continuum Properties, L.L.C.
Edward A. Crapo, as Alachua County Property Appraiser,
appeals a Final Declaratory Judgment in which the trial court
determined that property used for student housing that is
legally owned by Appellee, Provident Group - Continuum
Properties, L.L.C., is equitably owned by the University of
Florida ("UF") and is, thus, immune from ad valorem
taxation. For the reasons that follow, we affirm.
owns legal title to the property at issue known as "The
Continuum." The property is located near UF's campus
in Gainesville and consists of 350, 000 square feet, most of
which is dedicated for graduate and professional student
housing. Appellee's sole member is Provident Resources
Group, Inc., a nonprofit corporation that, as one of its
charitable functions, assists public universities to acquire,
develop, and operate student housing. Appellee's Amended
and Restated Articles of Organization describes its purpose
The Company is organized exclusively to further the stated
charitable purposes of its Sole Member, a Georgia nonprofit
and an organization exempt from Federal Income tax.
Specifically, the Company is organized for the purpose of
planning, developing, financing, equipping, operating, and
maintaining a student housing facility and certain ancillary
facilities located in Gainesville, Florida, exclusively for
the benefit of [UF] and its students, consistent with the
terms of a Student Housing Agreement by and between the
University and the Company. The Company may engage in any
lawful business activity permitted by the Act in furtherance
of the foregoing purposes.
Article V, entitled "Public Benefit, " sets forth:
The Company shall operate exclusively in furtherance of the
above stated charitable purposes and shall not engage in any
activities that would jeopardize the tax exempt status of the
Sole Member. No substantial part of the Company's
activities will be carrying on propaganda or otherwise
attempting to influence legislation. No part of the real
earnings of the Company or any of its operations shall result
in private inurement or impermissible benefits to private
interests or individuals. The Company shall not be operated
for pecuniary profit.
to its Operating Agreement, Appellee is to "undertake
the acquisition, financing, equipping, ownership, operation
and maintenance of the Student Housing Facility for the
benefit of the University and its students, consistent with
the terms and provisions of the Student Housing Agreement,
which purpose is in furtherance of the stated charitable
purposes of the Sole Member. . . ." The Board of
Managers is to "utilize any available surplus cash flow
of the Company solely and exclusively in furthering the
Charitable Activities of the Company, consistent with the
stated charitable purposes of the Sole Member." Upon the
"winding up of the Company, " the "Company
Property (or the proceeds thereof)" must be distributed
in the "following order and priority: (a) to creditors .
. . (b) to the University . . . (c) to the Sole Member of the
Company for distribution in accordance with its charitable
purposes . . . ."
Student Housing Agreement, which Appellee and UF's Board
of Trustees executed on August 9, 2010, explains "that
there is a need for additional housing for graduate and
professional school students, " that Appellee desired to
assist UF in meeting the need for additional housing, and
that Appellee would, with the support and direction of
UF's Department of Housing and Residence Education,
implement housing educational programs and policies to serve
the needs of UF's graduate and professional school
students. UF "shall market and promote the Facility as a
University-affiliated housing option for University
Students." Appellee agreed "that all net revenues
from operations of the Facility shall be used solely for the
purpose of furthering the Charitable Activities." UF
acknowledged that it "shall directly and substantially
benefit from the development, operation and management of the
Facility by Provident and that the Facility will provide a
much needed addition to the housing supply . . . ." Upon
the repayment in full of the project's financing,
"all right, title, and interest in and to the Property
shall be conveyed from Provident to the University or to
another similarly situated charitable organization . . .
." If all or a portion of the property were to be taken
by condemnation or other eminent domain proceedings,
"any award or compensation payable in connection with
such Taking shall be paid to the following priority: (i)
first, to satisfy any remaining repayment obligations under
the Continuum Financing . . . (ii) second, to the University
. . . ."
Declaration of Covenants and Restrictions for the property
provides that "Declarant hereby covenants that the
Property herein . . . shall be used exclusively as a housing
community with related retail and ancillary uses . . .
." UF "shall have the right to enforce . . . all
restrictions, covenants and conditions imposed by the
provisions of this Declaration."
April 2013, Appellee sought declaratory relief for tax
immunity from May 28, 2010, to the date of judgment and also
sought a refund of taxes for a portion of 2010 and for 2011.
After the trial court granted Appellant's motion to
dismiss the action for lack of subject matter jurisdiction,
Appellee filed an amended complaint as the "Trustee for
the use and benefit of the University of Florida."
Appellee sought tax immunity for 2010 through 2014 and again
sought a refund of taxes for a portion of 2010 and for 2011.
The trial court granted Appellant's motion to dismiss the
amended complaint, a ruling which Appellee ...