Opinion
MMXCV185010739
07-20-2018
George BERKA v. CITY OF MIDDLETOWN
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendant, City of Middletown, has moved to dismiss this case for lack of subject matter jurisdiction pursuant to Connecticut Practice Book § 10-30(a)(1) because it contends that the case is not justiciable.
Factual Background
The City issued Mr. Berka a Notice of Blight on January 10, 2018 for several violations of Chapter 120, Article II, § 120-25A of the Middletown Code of Ordinances, the "blight ordinance." The blight ordinance was passed pursuant to Connecticut General Statutes § 7-152c, which specifies a citation hearing procedure. In accordance with the procedure set forth in the statute, the City issued a Blight Citation to Mr. Berka on February 14, 2018. That Citation gave Mr. Berka 15 days to pay the fines for the violations in the Notice of Blight.
The City issued Mr. Berka a Failure to Pay Fines Notice on March 28, 2018. Under § 7-152e, Mr. Berka had 10 days from the date of the Failure to Pay Fines Notice to seek an appeal before an administrative hearing officer. He did so. On May 2, 2018, the hearing officer held a hearing and issued a notice of decision sustaining the City’s blight citations to date and reducing them going forward, without prejudice, based on Mr. Berka’s claims during that hearing that he had remediated some of the violations.
Mr. Berka filed the present action on March 22, 2018 before the hearing on the Failure to Pay Notice and even before that Notice had been issued. On May 8, 2018, Mr. Berka filed an appeal of the aforementioned hearing officer’s decision, which appeal is pending in this court, George Berka v. City of Middletown, Docket No. MMX-CV-5010856.
Discussion of the Law and Ruling
Pursuant to Practice Book § 10-30 "[a]ny defendant wishing to contest the court’s jurisdiction, may do so ... by filing a motion to dismiss." "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Cox v. Aiken, 278 Conn. 205, 210-11, 897 A.2d 71 (2006). (internal quotation marks and emphasis omitted).
Pursuant to the Municipal Powers Act, Connecticut General Statutes § 7-148, section 7-152c of the Connecticut General Statutes established the process for municipalities to enforce citations, including blight citations. The City has incorporated this process in its blight ordinance, Chapter 120, Article II, § 120-25A of the Code of Ordinances.
Section 7-152c provides:
(a) Any municipality as defined in subsection (a) of section 7-148 may establish by ordinance a citation hearing procedure in accordance with this section. The Superior Court shall be authorized to enforce the assessments and judgments provided for under this section.
(b) The chief executive officer of any such municipality shall appoint one or more citation hearing officers, other than police officers or employees or persons who issue citations, to conduct the hearings authorized by this section.
(c) Any such municipality, at any time within twelve months from the expiration of the final period for the uncontested payment of fines, penalties, costs or fees for any citation issued under any ordinance adopted pursuant to section 7-148 or section 22a-226d, for an alleged violation thereof, shall send notice to the person cited. Such notice shall inform the person cited: (1) Of the allegations against him and the amount of the fines, penalties, costs or fees due; (2) that he may contest his liability before a citation hearing officer by delivering in person or by mail written notice within ten days of the date thereof; (3) that if he does not demand such a hearing, an assessment and judgment shall be entered against him; and (4) that such judgment may issue without further notice. For purposes of this section, notice shall be presumed to have been properly sent if such notice was mailed to such person’s last-known address on file with the tax collector. If the person to whom such notice is issued is a registrant, the municipality may deliver such notice in accordance with section 7-148ii, provided nothing in this section shall preclude a municipality from providing notice in another manner permitted by applicable law.
(d) If the person who is sent notice pursuant to subsection (c) of this section wishes to admit liability for any alleged violation, he may, without requesting a hearing, pay the full amount of the fines, penalties, costs or fees admitted to in person or by mail to an official designated by such municipality. Such payment shall be inadmissible in any proceeding, civil or criminal, to establish the conduct of such person or other person making the payment. Any person who does not deliver or mail written demand for a hearing within ten days of the date of the first notice provided for in subsection (c) of this section shall be deemed to have admitted liability, and the designated municipal official shall certify such person’s failure to respond to the hearing officer. The hearing officer shall thereupon enter and assess the fines, penalties, costs or fees provided for by the applicable ordinances and shall follow the procedures set forth in subsection (f) of this section.
(e) Any person who requests a hearing shall be given written notice of the date, time and place for the hearing. Such hearing shall be held not less than fifteen days nor more than thirty days from the date of the mailing of notice, provided the hearing officer shall grant upon good cause shown any reasonable request by any interested party for postponement or continuance. An original or certified copy of the initial notice of violation issued by the issuing official or policeman shall be filed and retained by the municipality, and shall be deemed to be a business record within the scope of section 52-180 and evidence of the facts contained therein. The presence of the issuing official or policeman shall be required at the hearing if such person so requests. A person wishing to contest his liability shall appear at the hearing and may present evidence in his behalf. A designated municipal official, other than the hearing officer, may present evidence on behalf of the municipality. If such person fails to appear, the hearing officer may enter an assessment by default against him upon a finding of proper notice and liability under the applicable statutes or ordinances. The hearing officer may accept from such person copies of police reports, investigatory and citation reports, and other official documents by mail and may determine thereby that the appearance of such person is unnecessary. The hearing officer shall conduct the hearing in the order and form and with such methods of proof as he deems fair and appropriate. The rules regarding the admissibility of evidence shall not be strictly applied, but all testimony shall be given under oath or affirmation. The hearing officer shall announce his decision at the end of the hearing. If he determines that the person is not liable, he shall dismiss the matter and enter his determination in writing accordingly. If he determines that the person is liable for the violation, he shall forthwith enter and assess the fines, penalties, costs or fees against such person as provided by the applicable ordinances of the municipality.
(f) If such assessment is not paid on the date of its entry, the hearing officer shall send by first class mail a notice of the assessment to the person found liable and shall file, not less than thirty days or more than twelve months after such mailing, a certified copy of the notice of assessment with the clerk of a superior court facility designated by the Chief Court Administrator together with an entry fee of eight dollars. The certified copy of the notice of assessment shall constitute a record of assessment. Within such twelve-month period, assessments against the same person may be accrued and filed as one record of assessment. The clerk shall enter judgment, in the amount of such record of assessment and court costs of eight dollars, against such person in favor of the municipality. Notwithstanding any provision of the general statutes, the hearing officer’s assessment, when so entered as a judgment, shall have the effect of a civil money judgment and a levy of execution on such judgment may issue without further notice to such person.
(g) A person against whom an assessment has been entered pursuant to this section is entitled to judicial review by way of appeal. An appeal shall be instituted within thirty days of the mailing of notice of such assessment by filing a petition to reopen assessment, together with an entry fee in an amount equal to the entry fee for a small claims case pursuant to section 52-259, at a superior court facility designated by the Chief Court Administrator, which shall entitle such person to a hearing in accordance with the rules of the judges of the Superior Court.
Emphasis added.
There is no subject matter jurisdiction for citation appeals that occur prior to assessments being entered. Mangiafico v. Town of Farmington, 173 Conn.App. 178, 191, 163 A.3d 631 (2017). In Mangiafico a property owner tried to challenge Farmington’s citations and assessments for his violations of the town’s blight ordinance. He filed an appeal under Connecticut General Statutes § 7-152c before a hearing officer had been appointed or any assessments had been entered. The trial court denied the town’s motion to dismiss for lack of subject matter jurisdiction. The Appellate Court reversed and remanded with directions to enter the dismissal. The Mangiafico court held: "The plaintiff did not comply with the statutory administrative procedure and, accordingly, the Superior Court lacked jurisdiction over the appeal." Id.
Mangiafico is directly on point with the present case. Since Mr. Berka appealed prior to any assessments having been entered and even prior to the appointment of the hearing officer, the court has no jurisdiction and the motion to dismiss is granted.