Opinion
No. CV-04-4005036-S
June 13, 2006
MEMORANDUM OF DECISION
Pursuant to General Statues § 12-161, on May 24, 2005, the plaintiff, the city of West Haven (the city), filed a four-count amended complaint against the defendant, Solid Waste Disposal, Inc., arising out of the collection of real property taxes assessed on four properties owned by the defendant. The city alleges that the defendant has not paid real property taxes on its properties located in West Haven at 239 Front Avenue, 75 Front Avenue, 2 Spring Street and 8 Spring Street. On April 8, 2005, the defendant filed an answer and special defenses. In its special defenses, the defendant alleges: (1) "[t]he taxes are not enforceable due to the fact that they are expected to be paid [fifteen] years after the due date pursuant to [General Statutes] § 12-164(a)"; (2) "[s]ome or all of the aforesaid parcels in [c]ounts [one through four] have been double taxed"; and (3) "[t]he taxes were manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining valuation of such property, and the city therefore should be equitably estopped from collecting all such outstanding taxes."
General Statutes § 12-161 provides: "All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed."
On June 21, 2005, the city filed a motion to strike the defendant's three special defenses and submitted a memorandum of law in support of the motion. On July 18, 2005, the defendant filed a memorandum of law in opposition to the motion. At the short calendar on May 22, 2006, the defendant withdrew its first special defense.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App 9, 13, 779 A.2d 198 (2001). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The city moves to strike the second and third special defenses on the ground that the defendant "improperly attempts to challenge the amount of tax assessed" through these defenses. The city argues that "the Connecticut Supreme Court has consistently held that challenges to the amount of municipal tax assessments must be made, if at all, pursuant to appropriate statutory procedures contained in General Statutes § 12-111 et seq." The defendant counters that it is not challenging the amount of the tax assessed, but rather, the city's maps that are used "to get the amount of the tax." Furthermore, the defendant argues that "if it is found that this is an attempt to `challenge the amount of tax assessed' the holding in LG Defelice Sons, Inc. v. Wethersfield, 167 Conn. 509 [ 356 A.2d 144 (1975)], where plaintiff sought relief against a claimed wrongful and excessive taxation of personal property would allow the [s]pecial [d]efense."
In Danbury v. Dana Investment Corp., 249 Conn. 1, 6, 730 A.2d 1128 (1999), the defendant asserted the same special defense. The court granted the city's motion to strike, reasoning that "[i]t is well settled that, if the owner of the properties at the times of the assessments in question had wanted to challenge the assessments, it would have been required to follow the appropriate statutory procedures, either by (1) timely appealing from the assessments to the city's board of assessment appeals pursuant to General Statutes §§ 12-111 and 12-112, and from there by timely appealing to the trial court pursuant to General Statutes § 12-117a, or (2) timely bringing a direct action pursuant to General Statutes § 12-119. `[A] taxpayer who has failed to utilize the available statutory remedies [may not] assert, in an action to collect a tax . . . that the tax has not been properly assessed.' (Internal quotation marks omitted.) Hartford v. Faith Center, Inc., 196 Conn. 487, 491, CT Page 11333 493 A.2d 883 (1985); Farmington v. Dowling, 26 Conn.App. 545, 549-50, 602 A.2d 1047 (1992), appeal dismissed, 224 Conn. 592, 619 A.2d 852 (1993). The rationale for this rule is the need on the part of the government for fiscal certainty. A municipality, like any governmental entity, needs to know with reasonable certainty what its tax base is for each fiscal year, so that it responsibly can prepare a budget for that year. See Norwich v. Lebanon, 200 Conn. 697, 710, 513 A.2d 77 (1986) (both General Statutes [Rev. to 1985] §§ 12-118 [now § 12-117a] and 12-119 `limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes' [internal quotation marks omitted]); Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944) (same). Public policy requires, therefore, that taxes that have not been challenged timely cannot `be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer . . . A taxpayer who has not sought redress in an appropriate manner is foreclosed from continuing litigation outside [those] statutes.'" Danbury v. Dana Investment Corp., supra, 249 Conn. 12-15.
The defendant in Danbury v. Dana Investment Corp., "alleged that the assessments on the properties for the tax years in question were manifestly excessive and could have been arrived at only by disregarding the statutes governing valuation of real property for tax purposes and, therefore, that the city should be equitably estopped from collecting the taxes."
In the present case, the factual allegations described in the defendant's special defenses are founded upon a claim for unlawful assessments. Based on the case law, this type of claim, as alleged in the defendant's second and third special defense, cannot be properly raised against a city in an action brought under § 12-161 to collect taxes. The defendant had the opportunity to challenge the tax assessments and raise its concerns about the maps and related surveys through the available statutory remedies as set forth in Danbury v. Dana Investment Corp.
The defendant argues that because the city did not plead the defense of statute of limitations in the present case, the city is barred from asserting that the taxpayer cannot challenge the excessive assessments. To support this argument, the defendant relies on L.G. Defelice Son, Inc. v. Wethersfield, supra, 167 Conn. 509. In that case, "[t]he sole question presented [was] whether, in an action brought pursuant to 12-119, a defense based upon a statute of limitations must be pleaded by the party claiming protection thereunder, or whether the trial court, of its own motion, may dismiss an action for lack of compliance with the particular statute of limitations herein involved." (Emphasis added.) Id., 510-11. L.G. Defelice Son, Inc., as well as the other authorities cited by the defendant, concern actions brought by taxpayers under § 12-119 challenging excessive assessments. The present case, however, was not brought by the taxpayer under § 12-119, but by the city pursuant to 12-161 to collect taxes from the defendant. The city is not required under § 12-161 to plead a defense based on the statute of limitations in an action to collect real property taxes as the defendant argues.
Therefore, under Danbury v. Dana investment Corp., supra, the defendant is not entitled to challenge the tax assessments through special defenses in an action initiated by the city pursuant to § 12-161. The defendant's second and third special defenses are stricken as legally insufficient. The first special defense, which was withdrawn, is no longer before the court.