Opinion
No. CV 04 0569745
February 18, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS ASSESSMENT APPEAL
In this appeal from the Board of Assessment Appeals of the City of New London, applicant John Madden alleges that his property, known as 202-204 Pequot Avenue, in the City of New London was assessed as of October 1, 2003 in the amount of $494,500. The applicant further alleges that the assessor determined that all property should be 70% of its true and actual valuation on that assessment date.
The applicant also alleges that the valuation was not that percentage of its true and actual value and that it was grossly excessive, disproportionate and unlawful. Finally, the applicant alleges that it appealed the assessment to the New London Board of Assessment Appeals which made no changes in the valuation. In this appeal, the applicant seeks a ruling that the valuation on this property be reduced to 70% of its true and actual value.
The defendant City of New London has filed a motion to dismiss this tax appeal. The City argues that Connecticut General statutes section 12-117a limits the time within which to file an appeal from the Board of Assessment to two months from the date of mailing of notice of the decision of the board on the appeal. In this regard the City points out that although the notice of the decision of the Board of Assessment Appeals was mailed to the plaintiff on April 6, 2004, it was not until June 11, 2004 — two months and five days later — that this appeal in the Superior Court was filed.
Sec. 12-117a. Appeals from boards of tax review or boards of assessment
Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, . . . to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. (Emphasis added.)
Plaintiff, John Madden, argues that this appeal is taken not under Connecticut General Statutes Section 12-117a, but under 12-119 which allows the aggrieved party one year from the date of last valuation within which to file an appeal to this Superior Court. The plaintiff correctly alleges that this appeal was filed well within the one-year time frame of valuation. The issue before the Court in this appeal is whether it is governed by Conn. Gen. Stat. Sec. 12-117a or by Sec. 12-119. According to our Supreme Court in Second Stone Ridge Cooperative Corp v. Bridgeport, 220 Conn. 335 (1991)
Sec. 12-119. Remedy when property wrongfully assessed.
When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease, may in addition to the other remedies provided by law, make application to the superior court . . . Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . .
Our case law makes clear that a claim that an assessment is" excessive" is not enough to support an action under this statute. Instead, 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes 12-119 from its more frequently invoked companion, 12-118. In Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924), we addressed the predecessor statute of 12-119 and concluded that there were two possible grounds for recovery under the statute:" the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions." Claims under 12-119 must fall into one of these two categories.
Id., 340
The focus under Sec. 12-119 is whether the assessment is illegal. Id., 341.
Conclusion
The court finds that inasmuch as this appeal includes the allegation that the actions of the assessors was unlawful, the court should deny the Motion to Dismiss, without prejudice. The court orders the plaintiff to file an Amended Appeal within twenty days, setting out with pleading specificity the unlawfulness asserted so that the defendant and the court will be in a better position to determine whether the focus of 12-119 is met. Clearly, the time-frame for taking an appeal under Sec. 12-117a has expired.
Accordingly, the Motion to Dismiss is denied, without prejudice.
Clarance J. Jones, Judge