Opinion
CV116021621S.
11-15-2012
NFW ASSOCIATES v. TOWN OF BRANFORD.
UNPUBLISHED OPINION
BRIAN T. FISCHER, J.
FACTS
This action is for relief from an allegedly excessive tax valuation of real property. On June 28, 2011, the plaintiff, NFW Associates, filed a two-count application for relief from excessive tax valuation against the defendants, the town of Branford (the town), the town of Branford office of tax assessor (the assessor) and the town of Branford board of assessment appeals (the board of assessment appeals).
All references to " the defendants" in this memorandum are to all three defendants.
In the first count, the plaintiff makes the following relevant allegations. The plaintiff was and is the owner of certain property in Branford known as 616 East Main Street (the property). The assessor valued the property on the assessment date and the assessment was manifestly excessive, disproportionate and unlawful and could not have been arrived at except by disregarding the statutes for determining the valuation of the properties. The plaintiff appealed the assessor's action to the board of assessment appeals, which declined to hear its appeal pursuant to General Statutes § 12-111. Accordingly, in count one, the plaintiff appeals from the ruling of the board and requests that the valuation of the property be reduced to 70 percent of its true and actual value.
General Statutes § 12-111(a) provides in relevant part: " Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of a lease to pay real property taxes and any person to whom title to such property has been transferred since the assessment date, claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth ..."
In count two, the plaintiff alleges the following additional relevant facts. On or about February 3, 2009, the assessor declassified the property from its farm land classification. On October 29, 2010, the plaintiff properly filed state of Connecticut form M-29, application to the assessor for classification of land as farm land. On May 2, 2011, the applicant received its first notice that the assessor had rejected its application. The plaintiff's attorney received this notice, dated December 30, 2010, from the town attorney's office. On May 20, 2011, the plaintiff appealed the assessor's rejection of its application for farm classification to the board of assessment appeals. On or about May 25, 2011, the board issued a notice to the plaintiff, in which the board declined to hear the plaintiff's appeal on the basis that the plaintiff's petition to the board was received after February 18, 2011. The plaintiff contends that the actions of the assessor and the board were unlawful, wrongful and without merit or authorization. The plaintiff seeks, inter alia, reclassification of the property as farm land and a reduction of the property's assessment value and the amount of tax owed.
On July 15, 2011, the defendants filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust its administrative remedies in a timely fashion pursuant to § 12-111. On the same date, the defendants also filed a memorandum in support of its motion with an affidavit. The plaintiff filed an objection and memorandum in support on May 17, 2012, and a second objection with a memorandum in support and an affidavit on May 31, 2012. The defendants filed a reply on July 3, 2012. The court heard argument on this matter on July 30, 2012.
DISCUSSION
A
Standard of Review
" 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). " Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (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). " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
B
Arguments
In their motion to dismiss, the defendants argue as follows: the plaintiff did not appeal to the board until May 20, 2011, three months past the date that such an appeal was required to be filed pursuant to § 12-111. Because the plaintiff failed to exhaust its administrative remedies in a timely fashion, the court lacks subject matter jurisdiction. In particular, the defendants argue that the December 30, 2010 letter from the assessor denying the plaintiff's application for farm classification was properly and timely sent to the plaintiff via certified mail and the fact that the plaintiff allegedly did not receive the letter is no excuse for the plaintiff's failure to file a timely appeal to the board.
The defendants submitted the following exhibits in support of their arguments: (1) an affidavit of Barbara Neal, dated July 15, 2011; (2) an uncertified copy of a letter from Barbara Neal, dated December 30, 2010; (3) an uncertified copy of a United States Postal Service certified mail receipt with a " track and confirm" web page dated January 3, 2011; (4) an uncertified copy of a different United States Postal Service " track and confirm" web page dated July 8, 2011; (5) an uncertified copy of the envelope of a piece of sent mail; (6) an uncertified copy of the plaintiff's application for appeal with the Branford board of assessment appeals, dated May 20, 2011; and (7) an uncertified copy of the board's letter declining to hear the plaintiff's appeal, dated May 25, 2011. In her affidavit, Neal testifies, inter alia, to the following: she is the assessor of the town of Branford and that in a letter dated December 30, 2010, she informed the plaintiff that its application for classification of farm land had been denied. On December 30, 2010, she sent this letter to the plaintiff via certified mail, return receipt requested. On December 31, 2010, the postal carrier attempted to deliver the letter to the plaintiff, but could not do so because there was no one at the address to accept delivery of the letter. Instead, the postal carrier left notice at the property that a piece of mail was being held for the plaintiff at the Branford post office. The letter was then stored at the Branford post office for fifteen days pending pickup by the plaintiff. On January 22, 2011, the postal carrier left the unclaimed and unopened letter in the mailbox of the town of Branford. On January 24, 2011, a representative from the Branford office of the tax assessor received the unopened and unclaimed letter.
The plaintiff argues as follows: Although General Statutes §§ 12-111 and 12-112 provide that written appeal to the board of assessment appeals must be made by the twentieth of February, there is a presumption that knowledge of the aggrievement is first established by the assessor sending notification to the aggrieved person. The purpose of the plaintiff's May 20, 2011 filing of an application for appeal with the defendant board was to exhaust all available administrative remedies. The defendant assessor had full knowledge that the plaintiff did not receive notification and purposefully made no attempt to assure receipt. Although the plaintiff was unable to file on or before February 20, 2011, it was still an aggrieved party. As a result of the defendant board's action in declining to hear the appeal on the basis that the petition was received after February 18, 2011, the plaintiff brought the present action within two months of the board's decision pursuant to General Statutes § 12-117a. The court has jurisdiction over the complaint because it exhausted all administrative remedies.
General Statutes § 12-112 provides: " No appeal from the doings of the assessors in any town shall be heard or entertained by the board of assessment appeals unless referred to it at one of its meetings during the month of September in the case of an appeal related to motor vehicle assessment or unless written appeal is made on or before February twentieth in accordance with the provisions of section 12-111."
General Statutes § 12-117a provides in relevant part: " Any person ... claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals ... 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 ..."
The plaintiff submitted the following exhibits in support of its arguments: (1) the affidavit of Wayne Cooke, dated May 31, 2012; (2) a copy of the same letter that the defendants submitted dated December 30, 2010; (3) a copy of the same envelope of a piece of sent mail that the defendants submitted; (4) a copy of the same application for appeal with the Branford board of assessment appeals that the defendants submitted, dated May 20, 2011; (5) a copy of the same letter of the board declining to hear the plaintiff's appeal that the defendants submitted, dated May 25, 2011; and (6) a copy of an e-mail dated February 17, 2010.
In his affidavit, Cooke testifies, inter alia, as follows: he is majority owner and member of NFW Associates. It was normal for mailings from the defendant town to be mailed and received via regular United States Postal Service mail and he had no knowledge or reason to believe that notice would be sent via certified mailing. He never received the letter or notification, and at no time from January 22, 2011 to May 2, 2011, did the defendants attempt to resend the letter via regular or certified mail or attempt to notify the plaintiff or the plaintiff's counsel of its decision to decline the plaintiff's application for farm classification. During that time, four Superior Court cases involving the parties to the present case were pending and the defendants were aware that the deadline for filing an appeal was February 18, 2011. The plaintiff was not notified of the town's decision declining the plaintiff's application for farm classification until May 2, 2011, when the letter was faxed to the plaintiff's counsel by the defendant's counsel.
Although the parties have expressed disagreement regarding some of the affidavit testimony in their briefs, the parties have submitted no evidence raising any issue of fact. The court, therefore, considers the above facts to be undisputed.
C
Exhaustion of Administrative Remedies
" It 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.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). " Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ... In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). Furthermore, " A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created ... Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotation marks omitted.) Raines v. Freedom of Information Commission, 221 Conn. 482, 489-90, 604 A.2d 819 (1992).
" A statutory scheme has been developed by the legislature for the assessment of real estate and the procedure for challenging that assessment." 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, 714 n. 1). The same statutory scheme for challenging assessments also applies when a taxpayer wishes to challenge an assessor's denial of an application for the classification of land as farm land. See General Statutes § 12-107c(d). Under this statutory scheme, an aggrieved person may appeal to the board of assessment appeals under the provision of § 12-111(a). " If a taxpayer is aggrieved by the decision of the board of assessment appeals, the taxpayer may then proceed to appeal his or her decision to the Superior Court within two months from the date of notice of such action under § 12-117a." Daniels v. Norwich, supra, at 38 Conn. L. Rptr. 714 n. 1. Alternatively, nothing in General Statutes §§ 12-111 or 12-117a proscribes a proper appeal to the Superior Court pursuant to 12-119. See Timber Trails Associates v. New Fairfield, 226 Conn. 407, 412, 627 A.2d 932 (1993). " [Section] 12-119 requires an allegation that something more than mere valuation is at issue." (Internal quotation marks omitted.) Id., at 413 n. 9.
General Statutes § 12-107c(d) provides: " Any person aggrieved by the denial of any application for the classification of land as farm land shall have the same rights and remedies for appeal and relief as are provided in the general statutes for taxpayers claiming to be aggrieved by the doings of assessors or boards of assessment appeals."
Statutes § 12-119 provides in relevant part: " 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 to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant ..."
In the present case, the plaintiff has not specified whether it brings its appeal pursuant to § 12-117a or § 12-119. In their memorandum, the defendants state that they assume that the present appeal is being brought pursuant to § 12-117a. The court need not resolve this issue because it concludes that it has subject matter jurisdiction over this matter either way.
The undisputed facts demonstrate the plaintiff has exhausted its administrative remedies. The defendant board was required, under § 12-111, to decline to hear the plaintiff's appeal because the plaintiff filed its appeal after February twentieth following the assessor's denial of its application for farm land classification. The plaintiff appealed to this court within two months of the date of mailing of notice of the board's decision, in compliance with § 12-117a. The plaintiff sought all remedies which could be provided through administrative proceedings and was denied the relief it sought. Consequently, the plaintiff has exhausted its administrative remedies.
D
Statutory Compliance
The question is whether, despite having exhausted its administrative remedies, the plaintiff's failure to strictly comply with the requirements for filing a timely appeal to the board deprives the court of subject matter jurisdiction. Although General Statutes § 12-107c contains no express notice requirement, it does provide for a statutory appeal. Our Supreme Court has stated that " [t]he right of appeal, if it is to have any value, 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. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless." Hubbard v. Planning Commission, 151 Conn. 269, 271-72, 196 A.2d 760 (1963). The lack of an express statutory notice requirement should not bar the application of this principle. In Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979), our Supreme Court, in interpreting a probate appeals statute, opined: " Section 45-289 does not specifically require the Probate Court to notify interested parties of its decision or order following a hearing where ... the court reserves its determination of the issues involved. It does not follow, however, that the failure of a statute expressly to provide for notice makes possible, by implication, an effective probate decree not based upon notice." Id.
Actual notice is " [n]otice given directly to, or received personally by, a party." Black's Law Dictionary (9th Ed.2009). Constructive notice is " [n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of ... notice presumed by law to have been acquired by a person and thus imputed to that person." Id.
" [A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity [to be heard]." (Internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 440, 698 A.2d 867 (1997). In cases where property owners did not receive 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, several Superior Court cases have 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, Superior Court, judicial district of New London at Norwich, Docket No. 4102381 (January 10, 2006, Devine, J.) (40 Conn. L. Rptr. 561, 562). " This 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. at 713.
Accordingly, " subject matter jurisdiction [is implicated where a] plaintiff fail[s] 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, Superior Court, judicial district of New London at Norwich, Docket No. 4100180 (August 26, 2005, Hurley, J.T.R.). Furthermore, " § 12-111 does not impose on an aggrieved property owner any inquiry requirement about the board's decision ... the person specified to receive notice of the decision must receive either actual or constructive notice of that determination." (Citation omitted; internal quotation marks omitted.) Daniels v. Norwich, supra, 38 Conn. L. Rptr. at 713, citing Trap Falls Realty Holding Ltd., Partnership v. Board of Tax Review, 29 Conn.App. 97, 100, 103-4, 612 A.2d 814, cert. denied, 224 Conn. 911, 617 A.2d 170 (1992).
It is worth noting, however, that in Danbury v. Dana Investment Corp., 249 Conn. 1, 12-15, 730 A.2d 1128 (1999), our Supreme Court opined 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 ... 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 ... 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." (Citations omitted; internal quotation marks omitted.) Id.
Nevertheless, in Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn.App. 757, 765, 811 A.2d 717 (2002), the court concluded that " the trial court properly denied the commissioner's motion to dismiss the taxpayer's appeal as untimely." Id. In that case, involving different statutes, the defendant commissioner notified the plaintiff taxpayer of his denial of the taxpayer's request for reassessment of its tax liability under General Statutes § 12-218 in a letter sent by first class mail. Id., at 762. The taxpayer appealed the commissioner's decision exactly one month following receipt of the letter. Id. The court stated that " [u]nder § 12-237, the commissioner was required to serve the taxpayer with notice of the denial of its reassessment claim. The statute did not define the manner in which the commissioner was obligated to make service. Once service had been made, the taxpayer had one month to appeal to the Superior Court." Id. The commissioner argued that " service" meant mailing, while the taxpayer argued that " service" meant receipt. Id. The court opined that " [i]f, as the commissioner argues, § 12-237 permitted him to make service by first class mail, the taxpayer bore the risk of delay in the receipt of notice of an adverse decision by the commissioner. Such a delay, as in this case, usually will shorten the time to file a tax appeal in the Superior Court. To the contrary, if, as the taxpayer argues, § 12-237 contemplated service by a taxpayer's receipt of notice, the commissioner bore the risk of uncertainty about the date when notice had been received, with the consequence that the appeal period might be prolonged beyond the period contemplated by the statute." Id., at 764.
General Statutes § 12-237 provides in relevant part: " Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of New Britain, which shall be accompanied by a citation to the Commissioner of Revenue Services to appear before said court ..."
The Millward Brown, Inc. court alluded to the fact that it did " not [find] any Connecticut appellate cases that allude to the meaning of the undefined term ‘ service’ in § 12-237." Millward Brown, Inc. v. Commissioner of Revenue Services, supra, 73 Conn.App. at 764. The court agreed with the trial court's conclusion that " § 12-237 should be construed in favor of the taxpayer because that construction was consistent with principles of fairness and due process. Without an express definition of ‘ service, ’ the [trial] court was understandably reluctant to ascribe to the legislature the intent to deem a taxpayer to have received notice when it had not actually received the notice." Id., at 764-65. The court stated further that " [t]he [trial] court's conclusion conforms to the established rule of statutory construction with respect to statutes that implicate the subject matter jurisdiction of the Superior Court. Whenever such a statute contains language that is ambiguous, or, as in this case, fails to define an essential term, the statute is construed in favor of subject matter jurisdiction ... Furthermore, the court's conclusion is consistent with the policy position that our Supreme Court has taken with regard to administrative appeals pursuant to General Statutes § 4-183(c). In these appeals, our Supreme Court has construed requirements of service and notice so as to preserve the appellate rights of those aggrieved by governmental orders ... [The court noted] that the court's decisions have turned, in part, on the lack of a showing of prejudice to the governmental agency in question. This case, similarly, contains no allegation of prejudice to the commissioner as a result of his delayed notice of the taxpayer's intent to appeal." (Citations omitted.) Id., at 765.
Although General Statues § 4-183(c) is housed in the Uniform Administrative Procedure Act, and hence not applicable to a tax appeal, as is the present case, the Millward Brown, Inc. court noted that " [for jurisdictional purposes ... [it could] see no distinction between tax appeals and other statutory appeals." Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn.App. 757, 764, 811 A.2d 717 (2002).
This case does not involve first class mail, but rather certified mail. In Taylor v. Commissioner of Revenue Services, 48 Conn.Supp. 410, 418-19, 849 A.2d 26 (2004), the court concluded " that where the commissioner had the statutory discretion to use first class mail or personal service to serve the notice of assessment on the plaintiff, the use of certified mail with return receipt converted the notice from notice by mail to notice by personal service, thereby delaying the commencement of the ten-day period to file a petition for reassessment to February 23, 2003, the date of the receipt of the notice by the plaintiff." Id.
Personal service is " [a]ctual delivery of the notice or process to the person to whom it is directed." Black's Law Dictionary (9th Ed.2009).
In the present case, although the plaintiff missed the statutory deadline to appeal to the board, the right of appeal presupposes notice so that the plaintiff can properly know what it is appealing. The defendants' collective actions were improper. Specifically, while it may be disputed whether notification of attempted delivery was left at the property, it is undisputed that receipt was not accomplished and the defendant retained the notification originally sent to the plaintiff without attempting to resend it. The notice of the board's denial of the plaintiff's appeal was sent by certified mail, return receipt requested, thus converting it to personal service. It is undisputed that the plaintiff was never personally served in this matter. Therefore, the court has subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.