Opinion
No. 4102381
January 10, 2006
MEMORANDUM OF DECISION
The plaintiff, Dianne L. Gaudreau, commenced a two-count action against the City of Norwich appealing the tax increase for the subject property located at 33 Sachem Street, Norwich, Connecticut. The defendants, City of Norwich Board of Assessment Appeals et al, filed a motion to dismiss the first count of the complaint. The defendants contend that they sent a notice of the October 1, 2003 revaluation to the subject property address in December 2003. The plaintiff denies receipt of the notice and, therefore, had no actual or constructive receipt of the notice of increase of assessment pursuant to statute.
The court held a hearing on the motion to dismiss on December 5, 2005. After reviewing the affidavits, testimony and exhibits at the hearing, the court concludes based upon the evidence presented that the plaintiff did not receive notice of the assessment increase until she received her tax bill for July 2004.
The court further finds that she had no notice of an assessment increase until long after the time period provided by statute to appeal the revaluation to the Board of Assessment Appeals as set out in C.G.S. § 12-111. Without actual or constructive notice of the assessment increase, the plaintiff could not also meet the statutory time period to an appeal from the Board of Assessment Appeals to court pursuant to § 12-117a.
In the defendants' motion to dismiss, they essentially assert that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. Blumenthal v. Barns, 61 Conn. 434, 442 (2002). A motion to dismiss is the appropriate motion to raise a lack of subject matter jurisdiction. St. George v. Gordon, 264 Conn. 545 (2003). Once a motion to dismiss on subject matter jurisdiction is raised, the court must fully resolve it before proceeding further with the case. Espisito v. Specyalski, 268 Conn. 336 (2004).
The defendants claim that the court must dismiss the matter because the plaintiff has not met the specific statutory requirements for exhaustion of administrative appeals before tax appeals to the court. It is the plaintiff's position that failure of the assessor's office to send her a notice of increase in the valuation of her property within the proper time frame resulted in her inability to challenge the assessment before the Board and appeal any adverse decision under § 12-117a. The plaintiff relies on previous trial court decisions in this judicial district involving claims of lack of notice of assessment increases for assessment year October 1, 2003. Aliano v. City of Norwich, CV05-4100180 judicial district of New London at Norwich (August 6, 2005, Hurley, J.), Peachtree v. City of Norwich, CV05-4100591, judicial district of New London at Norwich, (April 18, 2005, Hurley, J.)
As in the Daniels and Peachtree cases, the court concludes that the plaintiff failed to receive either actual or constructive notice of the change in the valuation of her property until after the time period expired to appeal the matter before the Board of Assessment Appeals. As in the above-referenced cases, the plaintiff in the present controversy could not be required to exhaust administrative remedies in a timely manner because the above statutory scheme does not provide an adequate remedy when not brought within the specific time frame or by February 20th following the notification of the assessment value of the previous year. As reasoned in Daniels and Peachtree, the dictates of due process require that aggrieved parties who receive no notice of an action within the time period to bring an appeal may challenge such action after receiving notice because otherwise the right of appeal would be rendered meaningless.
This court holds that it has subject matter jurisdiction where the plaintiff failed to receive any notice of the assessment increase on her property following its revaluation by the assessor. As a result of lack of actual or constructive notice, she was not able to file the timely appeal to the Board of Assessment Appeals as set forth in § 12-211 or pursue an administrative remedy under § 12-117a.