Opinion
No. CV 01 0186748
November 29, 2004
MEMORANDUM OF DECISION
On October 17, 2001, the plaintiff, the Commissioner of Transportation of the state of Connecticut (Commissioner), filed a Statement of Compensation with this court relating to 815 square feet of land belonging to the defendants, Frances V. Sessa and Everett J. Sessa, Jr., and located on Myrtle Avenue in Stamford, in the amount of $60,000. The property was condemned by the Commissioner in order to construct a bus garage.
Service of a copy of the Statement of Compensation was made on the defendants on October 24, 2001. On November 19, 2001, the Commissioner deposited the sum of $60,000 with the chief clerk of this court. On November 27, 2001, the plaintiff Commissioner filed a "Return of Notice" indicating that those entitled to notice had been served by a state marshal. On December 27, 2001, the chief clerk of this judicial district filed a Certificate of Taking.
On May 15, 2002, the defendants filed with this court an application seeking "a reassessment of damages and benefits" because the $60,000 offered by the Commissioner was described as "inadequate." The plaintiff Commissioner filed motion #105 on January 14, 2003, to dismiss the application by the defendants for a reassessment of damages because the application was not filed within six months after the Statement of Compensation has been filed, as required by General Statutes § 8-132 for redevelopment agencies. That Statement, as noted previously, was filed on October 17, 2001, but the appeal by the defendants was not filed until May 15, 2002. Thus, according to the plaintiff, the defendants forfeited their right to appeal, and the appeal should be dismissed.
General Statutes § 8-132 provides that: "Any person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court for the judicial district . . . for a review of such statement of compensation so far as the same affects such applicant . . ."
The Commissioner proceeded under General Statutes § 13b-36 regarding operation of transportation services, which directs him to follow General Statutes § 48-12 relating to taking of land for state institutions. That statute in turns directs the Commissioner to comply with the procedures of redevelopment agencies, including General Statutes § 8-132.
In opposing the motion to dismiss, the defendants contend that the proper and equitable date to measure the six-month period in which to appeal a compensation award is November 27, 2001, the date the plaintiff Commissioner filed a Return of Notice indicating that the defendants had been served on October 24, 2001 with a copy of the Statement of Compensation by a state marshal. The defendants also argue that the plaintiff's motion to dismiss does not pertain to subject matter jurisdiction, that the statute of limitations defense should be pleaded as a special defense, and that a motion to dismiss must be filed within 30 days after filing an appearance as required by Practice Book § 10-30.
General Statutes § 8-132 is very clear that an application must be filed within six months after a Statement of Compensation has been filed with the chief clerk of the Superior Court, not from some other date that the defendants in this case would prefer. In Commissioner of Transportation v. Kahn, 262 Conn. 257, 811 A.2d 693 (2003), our Supreme Court accepted the proposition that the six-month period for seeking a reassessment begins at the time a Statement of Compensation is filed. Id., 264. However, such limitation does not involve "subject matter jurisdiction." Id. Rather, the limitation period "is analogous to a statute of limitations;" id., 266, and is "nonjurisdictional." Id., 268. Therefore, such a claim requires that: "the Commissioner . . . raise timely the property owner's failure to comply with that provision; failure to do so constitutes a waiver of the defense." Id.
The defendants' application for reassessment in this case was filed on May 15, 2002, and the Commissioner's motion to dismiss this application was not filed until January 14, 2003. The Commissioner, however, had filed an appearance by counsel on June 13, 2002. Practice Book § 10-30 requires that, except for claims of lack of jurisdiction over subject matter, a motion to dismiss must be filed "within thirty days of the filing of an appearance." Motion #105 was not filed in a timely fashion and therefore "constitutes a waiver of the defense." Commissioner of Transportation v. Kahn, supra, 263 Conn. 268.
Accordingly, the plaintiff Commissioner's motion to dismiss is denied.
So Ordered.
Dated at Stamford, Connecticut, this 29th day of November 2004.
William B. Lewis, Judge