Opinion
No. CV 07 4007075
January 14, 2008
MEMORANDUM OF DECISION MOTION TO DISMISS
On May 9, 2007, the plaintiff, Lawrence Memorial Hospital, the owner of real property a portion of which is leased to a third party and subject to the local property tax, filed a three-count complaint against the defendant, the city of New London. Each of the three counts is an appeal from actions taken by the New London's assessor and the New London board of assessment appeals (the board).
In the complaint, the plaintiff alleges the following. On October 1, 2003, a taxable piece of property owned by the plaintiff was assessed at a per square foot value of $139.16. One year later, in October 2004, the defendant reassessed this same piece of property at a value of $257.88, per square foot, an increase of $118.72, per square foot. As a result, the property taxes in 2004, 2005, and 2006 were based on the increased value established in this 2004 reassessment. Furthermore, in October 2004, the plaintiff had been informed by one of the assessors that this property would be assessed at a significantly lower value than it ultimately was.
The plaintiff further alleges that the change in property valuation from the 2004 reassessment only came to light when the plaintiff communicated with the assessor regarding the valuation of the property for the 2006 grand list. In response to this communication which took place in October 2006, the assessor finally provided the plaintiff with a letter dated February 7, 2005, that purported to give notice of the 2004 reassessment. The plaintiff, however, had no record of receiving this letter, which was addressed to the plaintiff's accounting department, nor does this letter satisfy the statutory notice requirements in § 12-55 of the General Statutes.
Based on these allegations, the plaintiff has filed a three-count complaint against the defendant. The first count is an appeal from the board's decision not to reduce the plaintiff's 2006 assessment. The second count alleges a due process violation based on the defendant's failure to have provided proper notice of the 2004 assessment increase, as required by statute. The third count is an appeal from the 2004, 2005 and 2006 tax assessment under General Statutes § 12-119, on the ground that the 2004 reassessment and the 2005 and 2006 assessments are manifestly excessive and out of equalization with the rest of the assessed property in New London and that such values could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of property.
On August 20, 2007, the defendant filed a motion to dismiss the appeal as to the entire second count, and all parts of the third count, except for the challenge to the 2006 assessment, on the grounds that the court lacks subject matter jurisdiction because the plaintiff has failed to exhaust its administrative remedies and that its appeal is time barred.
"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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, supra, 211.
"[I]t is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 725, 894 A.2d 259 (2006). Further, "[t]he failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it." (Internal quotation marks omitted.) Heffi v. Commission on Human Rights and Opportunities, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).
In the present case, the defendant argues that the court must dismiss the second count because the plaintiff has failed to meet the statutorily mandated time periods under General Statutes §§ 12-117a and 12-119 for appealing tax assessments. Because the plaintiff did not exhaust its administrative remedies, the defendant asserts that any attempt to appeal an assessment after the limitations period has ended falls outside the court's jurisdiction and cannot be remedied. The defendant further argues that the second count should also be dismissed on the ground that § 12-55 does not provide a separate and independent cause of action upon which tax assessments can be contested.
In response, the plaintiff counters that the court has jurisdiction over the second count because it is bringing a due process claim pursuant to the state and federal constitution, and not a claim under § 12-55. The plaintiff argues that due process requires the defendant to give property owners both notice and an opportunity to have any objections heard, before it is entitled to levy taxes based on a recent assessment increase. Thus, the plaintiff maintains that the defendant has failed to provide proper notice of the increase as required under § 12-55; that it did not have actual notice of the 2004 reassessment increase until October 2006; that this failure to provide notice resulted in its inability to challenge the assessment by timely appeal, to either the board or to the Superior Court; and, because it never received proper notice until 2006, due process requires that all limitation periods should be tolled until that time.
Section 12-55 grants broad powers to a municipal tax assessor to make interim adjustments to the valuation of property to achieve a fair and equal assessment for all taxpayers. Matzul v. Montville, 70 Conn.App. 442, 446-47, 798 A.2d 1002, cert. denied, 261 Conn. 923, 806 A.2d 1060 (2002). Each notice of assessment increase shall include: "(1) The valuation prior to and after such increase; and (2) information describing the manner in which an appeal may be filed with the board of assessment appeals . . . Each such notice shall be mailed not earlier than the assessment date and not later than the tenth calendar day immediately following the date on which the assessor or the board of assessors signs and attests to the grand list. If any such assessment increase notice is sent later than the time period prescribed . . . such increase shall become effective on the next succeeding grand list." General Statutes § 12-55(c).
There have been several Superior Court cases in this judicial district, similar to the present case, in which property owners did not receive either actual or constructive notice of a change in the value of their property until after the statutory period to bring an action to the board had expired. See Daniels v. Norwich, Superior Court, judicial district of New London at Norwich, Docket No. 4100335 (February 15, 2005, Hurley, J.T.R.) (38 Conn. L. Rptr. 711); Peachtree L.P. v. Norwich, Superior Court, judicial district of New London at Norwich, Docket Number 4100591 (April 18, 2005, Hurley, J.T.R.); Aliano v. Norwich, Superior Court, judicial district of New London at Norwich, Docket No. 4100180 (August 26, 2005, Hurley, J.T.R.); Gaudreau v. Norwich Board of Assessment Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 4102381 (January 10, 2006, Devine, J.) (40 Conn. L. Rptr. 562). In those cases, the court ultimately held that "the dictates of due process require that aggrieved parties who receive no notice of any 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." (Internal quotation marks omitted.) Gaudreau v. Norwich Board of Assessment Appeals, supra, 40 Conn. L. Rptr. 562. Courts have noted that "[t]his rationale comports with decisions by the Connecticut appellate and trial courts with respect to notice provisions contained in statutes governing procedures for appeals from local agencies and that the applicable time period begins to run on the day on which the aggrieved party has meaningful notice of the decision." Daniels v. Norwich, supra, 38 Conn. L. Rptr. 713. Accordingly, "subject matter jurisdiction [is implicated where a] plaintiff failed to receive any notice of the tax assessment on her properties following their revaluation by [an] assessor [and] [a]s a result was not able to file a timely appeal to the board of assessment appeals . . . or pursue an administrative remedy . . ." (Internal quotation marks omitted.) Aliano v. Norwich, supra, Superior Court, Docket No. 4100180.
The reasoning in the above cited cases is equally applicable to the present case. Herein, the plaintiff alleges that it was precluded from timely filing an appeal to the board, or to the Superior Court, because of the defendant's failure to provide it with actual or constructive notice of the October 2004 reassessment. Since the plaintiff maintains that it did not receive notice of the 2004 assessment increase in either 2004 or 2005, and it was not until October 2006, that it received actual notice of the assessment increase, it had no meaningful notice in which to bring a timely appeal. Because of this failure, the motion to dismiss count two of the plaintiff's complaint for lack of subject matter jurisdiction must be denied.
If the existence of notice is disputed in a due process case, a court will maintain subject matter jurisdiction over the due process issue because "[t]he existence of actual or constructive notice is a question of fact properly within the province of the trial court." Cadlerock Properties Joint Venture, L.P. v. Ashford, 98 Conn.App. 556, 562 n. 2, 909 A.2d 964 (2006). In the present case, the issue of constructive notice has neither been argued, nor addressed by either party.
With regard to the third count of the plaintiff's complaint, the defendant argues that, this court has no jurisdiction over the plaintiff's attempt to challenge the legality of the 2004 and 2005 assessments based on the time limitations of § 12-119. The defendant concedes, however, that since the plaintiff's complaint was filed on May 9, 2007, the plaintiff's challenge of the October 2006 assessment, is timely.
In response, the plaintiff counters that the tax reassessment of 2004 and the assessments for the years 2005 and 2006 were manifestly excessive and inasmuch as the plaintiff was never provided with notice of an increase in its property assessment value until October 2006, the one-year time limitation in § 12-119 to challenge the assessments should be tolled until it had actual notice of the assessment increase. The plaintiff further argues that § 12-119 automatically assumes that proper notice was sent to the property owner pursuant to § 12-55, and, therefore, its time limitation should not be applied to a situation where one party disregards entirely the notice provision. In addition, it is the plaintiff's position that factual issues exist that cannot be decided on a motion to dismiss.
"[Section] 12-119 allows a taxpayer to bring a claim that the tax was imposed by a [city] that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property." (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 340-41, 654 A.2d 1233 (1995); see also Aliano v. Norwich, supra, Superior Court, Docket No. 4100180. To bring a case under § 12-119, an "application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . ." General Statutes § 12-119. Notwithstanding the time limitation, however, "[t]he focus of § 12-119 is whether the assessment is illegal." (Internal quotation marks omitted.) Aliano v. Norwich, supra, Superior Court, Docket No. 4100180.
No provisions, however, exist in the statutory scheme for bringing an appeal to the board or superior court in which a city fails to provide notice to the taxpayer of the assessment or revaluation of the property. Instead, § 12-119 presupposes that valid notice was given to the affected property owner at some point before the one-year appeals period ended. "The consequences [however] of an untimely or delayed notice are obvious . . . a taxpayer might be denied the opportunity to appeal the board's decision in a number of situations in which the taxpayer is faultless." Trap Falls Realty Holding Ltd., Partnership v. Board of Tax Review, 29 Conn.App. 97, 103, 612 A.2d 814, cert. denied, 224 Conn. 911, 617 A.2d 170 (1992). As noted previously, the right of a meaningful appeal would be defeated without proper notice. Id., 103. If that right "is to have any value, [it] must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue." (Internal quotation marks omitted.) Id.; see also Mary Catherine Development Co. v. Glastonbury, 42 Conn.App. 318, 323, 679 A.2d 52 (1996) ("Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses").
If, as the plaintiff alleges in the present case, it did not receive proper and timely notice of the 2004 increase, then it would be illegal for the defendant to have levied a tax on the plaintiff's property in 2004, based on this higher assessment. Similarly, if it is found that the plaintiff did not receive notice of the assessment increase in either 2004 and 2005, and the tax levied in 2005 was based on the increase in property value that the plaintiff never knew about, then it follows that the defendant would be illegally taxing the plaintiff in the tax year of 2005. Thus, the court must look at each year following the assessment increase, including 2004 and 2005, to determine whether a continuing due process violation prevented the plaintiff from timely bringing its appeal under § 12-119 to deprive this court of subject matter jurisdiction.
Our Supreme Court in Wilson v. Kelly, 224 Conn. 110, 617 A.2d 433 (1992) stated that "[§ ]12-119 has been held to be merely declaratory of existing legal and equitable rights . . . We, therefore, read the limitation period contained in 12-119 not as a jurisdictional prerequisite, but only as an ordinary statute of limitations. Accordingly, the plaintiffs' failure to bring the declaratory judgment action within the limitation period [of § 12-119] did not deprive the trial court of jurisdiction but merely barred the plaintiffs' declaratory judgment action as untimely." (Citation omitted; internal quotation marks omitted.) Id., 123. Even if there exists an issue in the present case as to when the plaintiff had knowledge of facts which would have put a reasonable person on notice, a more complete factual record is needed to determine whether any of the claims in count three are barred by the statutory time period in § 12-119. Thus, the court has jurisdiction to hear any due process claim.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant's motion to dismiss is, in all respects, denied.