Opinion
No. CV 94317449
March 10, 1997
MEMORANDUM FILED MARCH 10, 1997
In Connecticut, the property tax has probably always been the principal source of revenue for cities and towns; it remains so today. State Tax Cases Reporter (CCH), p. 2011, ¶ 20-001 — ¶ 20-002; cf. Horton v. Meskill, 31 Conn. Sup. 377, 383, 332 A.2d 113 (1974), affirmed, 172 Conn. 615, 630, 376 A.2d 359 (1977). The tax, which has existed in Connecticut since 1650; 1 Colonial Records of Connecticut (1636-1665), Code of Laws of 1650, pp. 547-51; 1 Connecticut Tax Reporter (CCH), p. 3551, ¶ 20-010 (1996); is imposed both on real and personal property. Since 1917, state law has required that the assessors of all towns and cities conduct a general revaluation of real property every ten years. Public Act, 1917, ch. 214. Over the ensuing eighty years, the term "decennial revaluation" has become a term of art in Connecticut jurisprudence. In 1994, and again in 1995 and 1996, the General Assembly authorized municipalities to defer the revaluation process. The principal issues in this action are whether that legislation is constitutional and whether it has been properly implemented by the city of Norwalk.
Public Act, 1917, ch. 214, entitled "An Act concerning the Revaluation of Real Property for Taxation Purposes," provided: "The assessors of all towns, consolidated towns and cities and consolidated towns and boroughs, unless otherwise provided, shall, on or before February 1, 1920, and during each period of ten years thereafter, view all of the real estate of their respective municipalities, and shall revalue the same for assessment, and in the performance of these duties at least two of the assessors shall act together and all valuations shall be separately approved by a majority of the assessors."
See, e.g., Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 26, 633 A.2d 1368 (1993): Wilson v. Kelley, 224 Conn. 110, 114, 617 A.2d 433 (1992); Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 343, 597 A.2d 326 (1991); Stop Shop Companies v. East Haven, 210 Conn. 233, 234, 235, 238, 242, 243, 554 A.2d 1055 (1989); 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 255, 541 A.2d 478 (1988); Holbrook v. Casazza, 204 Conn. 336, 350, 528 A.2d 774 (1987); Ralston Purina v. Board of Tax Review, 203 Conn. 425, 427, 431, 433, 435, 437, 525 A.2d 91 (1987); Chamber of Commerce of Greater Waterbury v. Lanese, 184 Conn. 326, 333, 439 A.2d 1043 (1981); MacLean v. Town of Darien, 43 Conn. App. 169, 170, 682 A.2d 1064 (1996); Ireland v. Town of Wethersfield, 41 Conn. App. 421, 422, 426, 676 A.2d 422, cert. granted, 238 Conn. 903 (1996); Grossomanides v. Wethersfield, 33 Conn. App. 511, 512, 636 A.2d 867 (1994).
In 1993, as required by General Statutes § 12-62 (a), the City of Norwalk (Norwalk) conducted a decennial revaluation of all real property. The prior revaluation had been in 1983. Based upon the October 1, 1993 decennial revaluation, Norwalk established a proposed 1993 grand list. The plaintiffs, GTE Realty Corporation (GTE); Cambridge Associates; Stafford Higgins Industries, Inc. (Stafford Higgins); Richard Hodgson (Hodgson): Walter Baum (Baum); and JoMur Associates appealed their assessments, based on the proposed October 1, 1993 grand list, to the Norwalk Board of Tax Review.
In 1994, General Statutes § 12-62 (a) provided, in relevant part, that "[c]ommencing October 1, 1993, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the effective date of the last preceding revaluation of all real property and every ten years thereafter, revalue all of the real estate in their respective municipalities for assessment purposes, in accordance with the provisions of subsection (b) of this section. The assessments derived from each such revaluation shall be used for the purpose of levying property taxes in such municipality in the assessment year in which such revaluation becomes effective and in each assessment year thereafter until the next succeeding revaluation in accordance with this section becomes effective."
Public Act No. 95-283, § 3 amended General Statutes § 12-62 (a), which in 1995 provided, in relevant part, that "[c]ommencing October 1, 1996, the assessors of all towns . . . or their designees shall, no later than twelve years following the effective date of the last preceding revaluation by physical observation of all real property and every twelve years thereafter, revalue all of the real estate in their respective municipalities for assessment purposes. In addition, commencing October 1, 1996, every four years following such physical revaluation, such assessors shall revalue all real property for assessment purposes by use of a statistical method of adjusting the value, without a physical observation, reflecting any change in the value of such real estate as compared to its value determined for the purposes of said immediately preceding revaluation. The assessments derived from each physical and statistical revaluation shall be used for the purpose of levying property taxes in such municipality in the assessment year in which such revaluation becomes effective and in each assessment year thereafter until the next succeeding revaluation in accordance with this section becomes effective."
Public Act No. 96-171, § 5 amended General Statutes § 12-62 (a) directing the assessors or their designees to revalue all real property statistically every four years following a revaluation by physical observation.
Public Act No. 96-218, § 1 amended General Statutes § 12-62 (a) which currently lists revaluation dates for towns based on the date of the previous revaluation. Section 1 of P.A. 96-218 retains the requirement that towns conduct revaluations by physical observation every twelve years and revaluations by statistical methods every four years. Section 1 of P.A. 96-218 divided General Statutes § 12-62 (a) into three subsections. General Statutes § 12-62 (a)(3) provides, in relevant part, that "[n]othing in this subsection shall be construed as prohibiting a town from effecting more frequent revaluations by means of either physical observation or a statistical method of adjusting assessed valuations . . ."
General Statutes § 12-62a(b) provides that "[e]ach such municipality shall, no later than the close of its next revaluation required under the provisions of Section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value, as determined under Section 12-63." This provision means that at each revaluation the assessors determine the "true and actual" value of all property. Then, all the property is assessed at seventy per cent of its "true and actual" value. These assessments form the basis of the grand lists for each year until the next revaluation is implemented.
General Statutes § 12-62a(a) provides, in relevant part, that "[e]ach municipality . . . shall establish a uniform assessment date of October first . . ."
On April 12, 1994, Norwalk's Board of Estimate and Taxation established a final budget and mill rate based not on the October 1, 1993 revaluation, but on the October 1, 1983 revaluation. On or about June 1, 1994, while the plaintiffs' appeals were pending, tax bills were issued, accompanied by a letter from Norwalk Mayor Frank J. Esposito stating that implementation of the October 1, 1993 decennial revaluation was postponed. The Norwalk Board of Tax Review did not hold hearings prior to issuance of these tax bills to hear potentially aggrieved taxpayers' appeals of the October 1, 1983 revaluation.
On June 9, 1994, Governor Weicker approved Public Act, May Special Session, No. 94-4 (hereafter Public Act No. 94-4). That act, now codified as General Statutes (Rev. 1995) § 12-62h, permits the legislative body of a municipality to stay implementation of a decennial revaluation for up to two years. On June 28, 1994, the Norwalk Common Council suspended its rules and, purporting to act pursuant to Public Act No. 94-4, entertained and passed a resolution not listed on its agenda, resolving to authorize staying implementation of Norwalk's October 1, 1993 decennial revaluation for up to two years. On December 27, 1994, the Norwalk Common Council passed a motion to stay implementation of its 1993 revaluation until July 1, 1996.
Public Act, May Special Session, No. 94-4, now codified as General Statutes § 12-62h, provides: "(a) Notwithstanding any provision of this title, the local legislative body of a municipality may, at its option, stay the implementation of such municipality's revaluation in order to implement the recommendations of the Property Tax Reform Commission enacted during the 1995 session of the general assembly. The local legislative body of a municipality may stay such implementation for a period or periods not to exceed in the aggregate two years. Any distressed municipality shall by majority vote of its legislative body approve such stay and any municipality, other than a distressed municipality shall by two-thirds vote of its legislative body approve such stay. Any municipality required to implement revaluation for the assessment year commencing October 1, 1993, which has not as of February 15, 1994, adopted mill rates for taxes due July 1, 1994, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes in ownership as of October 1, 1993, provided any such municipality may commence a phase-in of its revaluation pursuant to subsection (e) of Section 12-62a or Section 12-62c with respect to such assessment year and may after the first year of such phase-in stay the further implementation of such phase-in in accordance with the provisions of this section. Any municipality required to implement revaluation for the year commencing October 1, 1994, which has not as of February 15, 1995, adopted a mill rate for taxes due July 1, 1995, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes of ownership as of October 1, 1994. Any municipality which has elected to defer all or any part of the amount of increase in the assessed value of real property as approved by the legislative body of such municipality, pursuant to subsection (e) of Section 12-62a or 12-62c, and which has not as of June 9, 1994, adopted a mill rate for taxes for July 1, 1994, may, subject to approval by the legislative body of such municipality, stay the further implementation of such phase-in, so that the assessed value shall not include such further increments in value for the grand lists of October 1, 1993 and October 1, 1994, as provided for in such plan. On and after December 31, 1995, each municipality shall comply with all provisions of any new property tax statutes enacted during the 1995 session of the general assembly for implementation as of July 1, 1996. If during the 1995 session of the general assembly no legislation is enacted concerning property tax reform each municipality which has stayed the implementation of revaluation or phase-in of revaluation shall recommence the implementation of such revaluation or phase-in upon the expiration of any stay implemented according to the provisions of this section.
"(b) Any municipality which has elected to stay the implementation of a phase-in of revaluation, pursuant to this section, shall, at the expiration of such stay, resume such phase-in at the point where such municipality would have been during the first year in which such stay was implemented if such stay was not implemented."
In addition, the parties have stipulated to the following facts. By virtue of various actions of the City of Norwalk, the implementation of revaluation for the grand list of October 1, 1993 (fiscal year: July 1, 1994-June 30, 1995) was postponed from the grand list of October 1, 1993 and the grand list of October 1, 1994 (fiscal year: 1995-96) prior to the commencement of these actions. On December 27, 1994, the city of Norwalk postponed implementation of revaluation for the grand list of October 1, 1995 (fiscal year: 1996-97). The City of Norwalk adopted the annual budget and established the tax rates for the 1995-96 fiscal year based upon the grand list of October 1, 1994 using real estate tax assessment values established in 1993. On December 12, 1995, the Common Council of the city of Norwalk voted to postpone the implementation of Norwalk's revaluation for the grand list of October 1, 1995 (fiscal year 1996-97) by adopting the following resolution: "Approve and authorize the stay of the implementation of Norwalk's revaluation for an additional one year period in accordance with the provisions of Section 8 of Public Act 95-283." The City of Norwalk adopted its annual budget and established its tax rates for the 1996-97 fiscal year based upon the October 1, 1995 grand list using the real estate assessment values established in 1983. On August 13, 1996, the Common Council of the City of Norwalk voted to postpone the implementation of Norwalk's revaluation for the grand list of October 1, 1996 (fiscal year 1997-98), by adopting the following resolution: "Approve and authorize a stay of the implementation of Norwalk's revaluation for an additional one (1) year period in accordance with the provisions of Public Act No. 96-218."
Pursuant to General Statutes § 12-119, Stafford Higgins, Baum; Hodgson, and JoMur Associates (collectively referred to herein, together with Cambridge Associates, as "the plaintiffs") filed a verified appeal against the City of Norwalk and certain city of officials. GTE and Cambridge Associates each filed a motion to intervene, which were granted by the court (Maiocco. J.). These plaintiffs then filed complaints alleging that the taxes levied against their respective properties were illegal, pursuant to General Statutes § 12-119.
General Statutes § 12-119 provides, in relevant part, that "[w]hen it is claimed 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 . . . 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."
James Corless, who was an original party to this proceeding, subsequently withdrew his complaint on January 24, 1995.
Although originally entitled an "appeal" by the plaintiffs, this proceeding is an action for a declaratory judgment and injunction and an action pursuant to General Statutes § 12-119. Although occasionally referred to as an appeal, a proceeding pursuant to General Statutes § 12-119 is not an appeal from an administrative decision, but, rather, is "a plenary action." Pauker v. Roik, 232 Conn. 335, 338, 654 A.2d 1233 (1995). "In contrast to § 12-117a, which allows a taxpayer to challenge the assessor's valuation of his property, § 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town 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 . . . 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. Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991); accord Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924)." (Internal quotation marks omitted.) Id., 339-41. There are "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." Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 220 Conn. 340. It is the latter category that is implicated here. This "category consists of claims that assessments are `(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.' (Emphasis added.) E. Ingraham Co. v. Bristol, 146 Conn. 403, 409, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S.Ct. 367 4 L.Ed.2d 352 (1959). Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. `[The] plaintiff . . . must satisfy the trier that [a] far more exacting test' has been met: either `there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.' Mead v. Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of § 12-119 is whether the assessment is `illegal.' Cohn v. Hartford, 130 Conn. 699, 703, 37 A.2d 237 (1944); see E. Ingraham Co. v. Bristol, supra, 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value); Stratford Arms Co. v. Stratford, 7 Conn. App. 496, 500, 508 A.2d 842 (1986) (property could not be taxed as condominiums when still legally an apartment building at date of assessment). The statute applies only to an assessment that establishes `a disregard of duty by the assessors.' L. G. DeFelice Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975)." Id., 341-42.
Stafford Higgins, Baum, Hodgson, and JoMur Associates named the following officials of the city of Norwalk as additional defendants: Mayor Esposito; Jeannine Soper, Chairperson of the Norwalk Board of Tax Review; Kenneth Whitman, Norwalk Tax Assessor; Mary Ryan, Norwalk Tax Collector; and Douglas Hempstead, President of the Norwalk Common Council.
GTE and Cambridge Associates name the same parties as defendants except that they both name Edward M. Bowers, President of the Norwalk Common Council as a defendant in lieu of Douglas Hempstead.
"In order to follow the claims as made by the plaintiff[s] in [their] brief[s] we will list them seriatim and discuss them in that order." New Haven v. Public Utilities Commission, 165 Conn. 687, 713, 345 A.2d 563 (1974). The plaintiffs and GTE make the following claims: first, that the action of the Norwalk Common Council on March 8, 1994 violated the Freedom of Information Act; second, that the mayor's request to Secretary Cibes for a deferment of the implementation of the 1993 revaluation failed to comport with statutory requirements third, that the mayor's unilateral decision to postpone the implementation of the 1993 decennial revaluation was illegal: fourth, that the adoption of the 1994-95 budget, establishment of mill rates and calculation and issuance of tax bills were done in derogation of statutes, when the Board of Tax Review had yet to complete its business; fifth, that the June 28, 1994 vote of the Common Council purporting to ratify prior action was illegal: sixth, that Public Act No. 94-4 is unconstitutional because: (a) it unconstitutionally delegates legislative authority to municipalities (b) its retroactive application denies the plaintiffs of vested fights: (c) it impermissibly interferes with plaintiffs' due process rights. Finally, in addition to certain of the foregoing claims, GTE contends that Public Act No. 94-4 deprives it of equal protection.
Although the plaintiffs make other claims in their respective complaints, those claims have not been briefed. "Issues that were raised . . . but not briefed by the plaintiff[s] . . . are considered abandoned." Grace Community Church v. Planning Zoning Commission, 42 Conn. Sup. 256, 259, CT Page 2199 615 A.2d 1092 (1992); see Practice Book § 285A.
"Plaintiffs' principal arguments are that Public Act No. 94-4, an enabling act permitting municipalities to — at their discretion — postpone implementation of their decennial real property tax revaluations, is constitutionally deficient due to the lack of standards attending the Act's delegation of authority to the municipal level, and that the operation of the Act impermissibly divests Plaintiffs and property owners of certain due process rights." (Plaintiffs' Reply to Defendants' Post-Trial Brief, pp. 1-2.)
I
Preliminarily, it is necessary to address the question of standing. "`In order for a party to challenge the constitutionality of a statute or an action predicated thereon he must have standing.' Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 48-49, 357 A.2d 472 (1957)." St. John v. State, 9 Conn. App. 514, 522, 520 A.2d 612 (1987). "`The fundamental aspect of standing . . . [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated. Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947. Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). Standing is not a technical rule intended to keep aggrieved parties out of court . . . Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). Maloney v. PAC, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The requirements of justiciability and controversy are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. [ Maloney v. Pac, supra, 183 Conn. 321]. As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great. Id.; see Bassett v. Desmond, 140 Conn. 426, 432, 101 A.2d 294 (1953). Where the nexus between the injury and the claim sought to be adjudicated is obvious and direct, a plaintiff has standing to maintain the claim. Maloney v. Pac, supra, [183 Conn.] 322.' (Internal quotation marks omitted.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-13, 508 A.2d 743 (1986)." Gay Lesbian Law Students v. Board of Trustees, 236 Conn. 453, 463-64, 673 A.2d 484 (1996).
The plaintiffs allege that they are "aggrieved by the defendants' actions in that a stay of implementation of revaluation in the City of Norwalk for the assessment year commencing October 1, 1993, will directly result in the increase of the plaintiff's real property taxes, far in excess of what the tax would have been had the proper assessment been made and to manifestly excessive levels, and will cause irreparable injury for which there is no adequate remedy at law." GTE makes a similar claim. GTE and "[t]he plaintiffs are statutorily aggrieved because § 12-119 provides that an owner may bring an action when he claims `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 . . .' General Statutes § 12-119." MacLean v. Town of Darien, 43 Conn. App. 169, 172, 682 A.2d 1064 (1996). The plaintiffs, therefore, have standing to maintain this action.
II
The plaintiffs contend that in the course of staying, or attempting to stay, the implementation of its 1993 revaluation, Norwalk acted illegally. Specifically, the plaintiffs and GTE contend that at its March 8, 1994 meeting, the Norwalk Common Council violated the Freedom of Information Act, that in requesting a stay of implementation from the Secretary of the Office of Policy and Management pursuant to General Statutes § 12-117, the defendants failed to comply with the requirements of General Statutes § 12-117, and that Mayor Esposito lacked authority to stay implementation of the 1993 revaluation. The plaintiffs and GTE contend that the Norwalk Common Council's vote, at its June 28, 1994 meeting, did not actually stay implementation of the 1993 revaluation and that if the Norwalk Common Council's vote did effectively stay implementation of the 1993 revaluation, that action did not cure any prior illegal conduct, particularly a stay of implementation of the 1993 revaluation imposed without statutory authority.
A.
On March 8, 1994, the Norwalk Common Council held a meeting. The plaintiffs assert that the defendants' actions at that meeting violated the Freedom of Information Act. Prior to the meeting, in accordance with General Statutes § 1-21 (a), the Norwalk Common Council had set an agenda, which was made available to the public. This agenda indicated that after the roll call, acceptance of minutes from previous meetings and public participation, Mayor Esposito would address appointments and resignations and make remarks. At the meeting, Mayor Esposito requested authorization to petition the State of Connecticut for a deferment of property revaluation for a period not to exceed three (3) years. Mayor Esposito's motion was carried by a unanimous roll call vote.
The plaintiffs argue that "without providing the public notice or an opportunity to be heard . . . the Common Council agreed to lend [its] endorsement to the Mayor's `freeze' request. Such action was patently improper. Although a public board may, by 2/3 vote, undertake to consider `any other business that may properly come before the [b]oard', to do so without meaningful and sufficiently specific notice of same violates the letter and the spirit of the Freedom of Information laws." The defendants did not brief this issue.
The plaintiffs do not claim that the Council meeting itself was illegal. See State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 190-91, 28 A. 110 (1893).
GTE does not join in the plaintiffs' claim that the defendants violated the Freedom of Information laws. Rather, GTE states that the defendants raise the plaintiffs' failure to appeal to the Freedom of Information Commission as a defense. On that assumption, GTE argues that "the Freedom of Information Commission does not have any authority to view the actions of the Norwalk Council and the tax assessment procedure in Norwalk in general."
GTE mischaracterizes the issue. The issue is not whether the plaintiffs should have first appealed to the Freedom of Information Commission regarding the actions of the Norwalk Common Council as a whole or the tax assessment procedure in general, but rather, whether the plaintiffs should have appealed to the Freedom of Information Commission regarding the defendants' failure to put the stay of implementation on the agenda before raising such an issue in Superior Court.
The plaintiffs' contention that the defendants failed to comply with the Freedom of Information laws is grounded in the defendants' alleged violation of General Statutes § 1-21 (a). General Statutes § 1-21 (a) provides, in relevant part, that "[t]he agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer . . . Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings."
The remedy for a violation of § 1-21 (a) is itself provided by statute. General Statutes § 1-21i(b)(1) provides, in relevant part, that "[a]ny person . . . denied any other right conferred by Sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, 1-20a and 1-21 to 1-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission." General Statutes § 1-21i(d) provides, in relevant part, that "[a]ny party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of Section 4-183." General Statutes § 4-183 (a) provides, in relevant part, that "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section."
The plaintiffs did not appeal the defendants' alleged violation of the Freedom of Information laws to the Freedom of Information Commission pursuant to General Statutes § 1-21i(b)(1). "[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.) O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995); see Lucarelli v. Freedom of Information Commission, 29 Conn. App. 547, 552, 616 A.2d 816 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993). Because the plaintiffs did not first appeal the alleged violation of the Freedom of Information Act to the Freedom of Information Commission, this court does not have jurisdiction to entertain this issue.
B.
The plaintiffs contend that the request submitted by the Norwalk Common Council and Mayor Esposito to the Secretary of the Office of Policy and Management seeking permission to stay implementation of Norwalk's 1993 revaluation failed to comply with General Statutes § 12-117.
General Statutes (Rev. 1993) § 12-117, provided in relevant part that "[t]he period prescribed by law for the completion of the duties of any . . . board of tax review, may for due cause shown, be extended by the secretary of the office of policy and management for a period not exceeding one month, and in the case of the board of tax review in any town in the assessment year immediately following completion of a revaluation of all real property in such town and adjustment of the assessment list for such assessment year accordingly, such period may be extended by said secretary for a period not exceeding two months, provided such . . . board shall submit to said secretary, not less than ten days before the expiration of the period prescribed by law, a request in writing, approved by the chief executive officer of the municipality, for such extension, setting forth the reasons therefore. If, in the opinion of the board of tax review and the chief executive officer, the number of appeals pending before such board is such as to preclude fair and equitable consideration of such appeals within the time restrictions prescribed herein, the secretary of the office of policy and management may, upon the request in writing of the board of tax review approved by the chief executive officer, setting forth such opinion, authorize the assessors to assess all real estate according to the list in effect immediately prior to the list from which such appeals are taken, subject only to transfers of ownership, additions for new construction and reductions for demolitions."
Public Act No. 95-283, § 55 amended General Statutes § 12-117 changing "board of tax review" to "board of assessment appeals." In addition, this act divided General Statutes § 12-117 into three sections. In 1995, General Statutes § 12-117(c) provided, in relevant part, that "[d]uring any assessment year in which the provisions of subsection (b) of this section become applicable, the assessor or board of assessors shall, within sixty days of the date on which the secretary of the office of policy and management grants his authorization, complete the list as required by said subsection."
Public Act No. 96-1, § 2 amended General Statutes § 12-117 (a). Currently, if an extension is granted to an assessor or board of assessors, the date by which a taxpayer is required to submit a written request for appeal to the board of assessment appeals and the time during which the board of assessment appeals may hold hearings are extended. This act amended General Statutes § 12-117 (c) with regard to when an increase notice must be sent.
The plaintiffs argue that because the request for a stay originated with Mayor Esposito and was approved by the Norwalk Common Council, rather than originating with the Board of Tax Review and carrying Mayor Esposito's endorsement, the defendants failed to comply with General Statutes § 12-117. Secretary of the Office of Policy and Management, William J. Cibes, Jr. (Secretary Cibes) did not grant a stay of implementation of Norwalk's October 1, 1993 decennial revaluation. Rather, Secretary Cibes granted the Board of Tax Review a two-month extension to hear taxpayers' appeals. No plaintiff has shown any injury because of that two-month extension, nor has the Secretary of the Office of Policy and Management been made a party to this action. "It is a well-settled general rule that . . . it is not the province of . . . courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). "Mootness implicates the subject matter jurisdiction of this court." Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). Because the defendants did not receive a one-year extension, this court cannot afford the plaintiffs any practical relief, and the issue of the defendants' alleged failure to comply with the statutory requirements of General Statutes § 12-117 in requesting that extension is moot.
The plaintiffs overlook a letter dated March 16, 1994 sent to the Secretary of the Office of Policy and Management, William J. Cibes, Jr., requesting permission, pursuant to General Statutes § 12-117, to use the October 1, 1992 Grand List. In compliance with General Statutes § 12-117, the letter was sent by the Board of Tax Review and carried Mayor Esposito's endorsement. GTE, noting this letter in its trial memorandum did not join in the other plaintiffs' claim that the defendants failed to comply with the requirements delineated in General Statutes § 12-117.
By letter dated April 15, 1994, Secretary Cibes granted the Board of Tax Review a two-month extension, which expired on May 31, 1994. Secretary Cibes nevertheless stated that the extension did not preclude the Board of Tax Review from again requesting a one-year extension. On May 17, 1994, the Board of Tax Review and Mayor Esposito did write to Secretary Cibes seeking a one-year extension. The City of Norwalk did not receive any response, either positive or negative, to its May 1994 request for permission to use its October 1, 1992 Grand List.
C.
The plaintiffs assert that Mayor Esposito lacked authority to unilaterally stay implementation of Norwalk's 1993 revaluation. As discussed supra, General Statutes § 12-117 confers on the Secretary of the Office of Policy and Management the authority to permit a municipality's "assessors to assess all real estate according to the list in effect immediately prior to the list from which such appeals are taken . . ." See, e.g., Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 427 A.2d 866 (1980). "The general rule is that municipal officers whose authority is defined by statute or charter have no implied powers except such as are necessary to carry into effect the powers expressly conferred on them. This is a general rule of public policy." Bridgeport Brass Co. v. Drew, 102 Conn. 206, 214 128 A. 413 (1925). The rule applies to mayors as it does other municipal officials. Rowland v. Hayes, 124 Conn. 129, 137-38, 198 A. 337 (1938); 3 McQuillin Municipal Corporations (3rd Ed. 1987) § 12.43. "The charter or statute by which the municipality is created is its organic act. Neither the [municipal] corporation nor its officers can do any act . . . not authorized thereby, or by the legislative act applicable thereto. All acts beyond the scope of the powers granted are void." Highgate Condominium Assn v. Watertown Fire District, 210 Conn. 6, 16, 553 A.2d 1126 (1989), quoting 56 Am.Jur.2d, Municipal Corporations § 227 (1971). At the time the mayor purported to "freeze" implementation of the 1993 revaluation, there was nothing in the city charter or in any other statute authorizing him to do so. Moreover, such action was manifestly inconsistent with General Statutes § 12-117 by which the legislature had conferred sole authority to delay implementation of a revaluation on the secretary of the office of policy and management. "Of course, the exercise by the Mayor of any power which he does possess is necessarily conditioned on its not being inconsistent with any applicable State enactment." Bauch v. City of New York, 54 Misc.2d 343, 282 N.Y.S.2d 816, 821 (1967). In purporting to unilaterally stay implementation of Norwalk's 1993 revaluation for one year, Mayor Esposito acted without authority. That action is void.
GTE contends that the defendants stayed implementation of Norwalk's 1993 revaluation without statutory authority. However, GTE does not specifically argue that Mayor Esposito stayed implementation without authority.
D.
The plaintiffs assert that the Norwalk Common Council's actions at its June 28, 1994 meeting did not actually stay implementation of the 1993 revaluation. At the June 28, 1994 meeting of the Norwalk Common Council, Councilman Lombardi moved to "authorize the stay of implementation of Norwalk's revaluation for a period not to exceed two years." This motion was carried by a vote of twelve to two. The plaintiffs meticulously analyze the word "authorize," arguing that it "permits a thing to be done in the future, and has mandatory effect or meaning, implying a direction to act." The plaintiffs conclude that authorizing a stay of implementation "does not, however, accomplish the act."
A two-year stay of implementation of a municipality's revaluation can be achieved only by a vote of the municipality's legislature pursuant to Public Act No. 94-4. "General Statutes § 1-1(m) provides, with one exception not relevant here, that `the words "legislative body" . . . as applied to cities and consolidated towns and cities, shall mean the board of aldermen, council or other body charged with the duty of making annual appropriations.'" Town of Stratford v. State Board of Mediation Arbitration, 239 Conn. 32, 48, 681 A.2d 281 (1996). "Furthermore, the term `legislative body' in its normal usage ordinarily means a body that enacts laws." Id., 49. "The common council is the legislative body of the city of Norwalk." J M Realty Co. v. Norwalk, 156 Conn. 185, 189, 239 A.2d 534 (1968); see Gentry v. Norwalk, 196 Conn. 596, 598, 494 A.2d 1206 (1985); RK Development Corporation v. Norwalk, 156 Conn. 369, 372, 242 A.2d 781 (1968). The Norwalk Common Council could not direct anyone else to exercise its legislative discretion to stay implementation of its 1993 revaluation for up to two years. Donnelly v. New Haven, 95 Conn. 647, 653, 111 A. 897 (1921) (municipal legislature cannot delegate its legislative function).
"It must be borne in mind, however, that we are dealing with a group of laymen who may not always express themselves with the nicety of a Philadelphia lawyer. Courts must be scrupulous not to hamper the legitimate activities of civic . . . [municipal bodies] by indulging in a microscopic search for technical infirmities in their-actions." Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954); see Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993); Pecora v. Zoning Commission, 145 Conn. 435, 445, 144 A.2d 48 (1958); Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48 (1956). "[A] poorly expressed minute should not ordinarily undo the work which otherwise bears the stamp of legality." Couch v. Zoning Commission, supra, 141 Conn. 359. Although it would have been preferable for the Norwalk Common Council to vote on a resolution to "stay implementation" of the 1993 revaluation for up to two years, the Norwalk Common Council, by its June 28, 1994 vote to "authorize a stay of implementation," clearly manifested its intent to stay implementation of Norwalk's 1993 revaluation.
Public Act No. 94-4 generally permits a municipality's legislature to stay implementation of a revaluation for up to two years by a two-thirds vote. However, if a municipality qualifies as a "distressed municipality," its legislature need only carry such a resolution by majority vote. The parties stipulated before the court that Norwalk qualifies as a "distressed municipality." Accordingly, the Norwalk Common Council's seven to six vote comports with the requirements of Public Act No. 94-4.
E.
The plaintiffs maintain that the Norwalk Common Council's June 28, 1994 action does not cure any prior illegal conduct. The defendants maintain that the action of the City Council on June 28, 1994 ratified the Council's March 8, 1994 action or the mayor's action in staying implementation of the 1993 revaluation.
The record reflects that it was the hope and intent of the Council on June 28, 1994 that its action would operate as a ratification. At the June 28, 1994 meeting Councilman Nolin stated that "the item was technically ratification of the decision the Council had already made to request such a stay, and that the item was being brought forward to make sure Norwalk was complying with the law's requirements." Corporation Counsel Reid also explained that the motion "was ratifying a decision the Council had already made to request the stay, but that the request had been made before the Legislature had acted."
While the distinction is not dispositive, it is worthy of note that the only action relevant to the defendants' claim of ratification by the Council is the mayor's action in staying the implementation of the 1993 revaluation. The March 8, 1994 action of the Council was a vote to request Secretary Cibes, the secretary of the office of policy and management, to stay implementation of the revaluation. Except for the claim that this action violated the Freedom of Information Act, there is no claim that it was illegal or not binding on the Council itself. "`Ratification means the adoption by a person, as binding upon himself, of an act done in such relations that he may claim it as done for his benefit, although done under such circumstances as would not bind him except for his subsequent assent; as where an act was done by a stranger having at the time no authority to act as his agent, or by an agent not having adequate authority. The acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances, is a ratification.' Ansonia v. Cooper, 64 Conn. 536, 544, 30 A. 760; Matulis v. Gans, 107 Conn. 562, 566, 141 A. 870; see 3 Am.Jur.2d, Agency, § 160; Restatement (Second), 1 Agency § 82." Hartford Accident Indemnity Co. v. Windsor Bank, 171 Conn. 63, 72, 368 A.2d 76 (1976). With respect to the action of the Council on March 8, the defendants' claim is not one of ratification but of transmogrification, for which there is no authority.
With respect to the action of the mayor, "[t]he ultra vires act of a municipal corporation cannot be cured by ratification. State ex rel. Fitzroy v. Trustees of Firemen's Relief Fund, 122 Conn. 650, 660, 191 A. 729. " State ex rel. Gaski v. Basile, 174 Conn. 36, 40, 381 A.2d 547 (1977). "An act is ultra vires of a municipal corporation . . . when it was not within the power of the corporation to perform it." (Citations omitted; internal quotation marks omitted.) Hartford v. Connecticut Co., 107 Conn. 312, 338, 140 A. 734 (1928). There is no doubt that it was beyond the scope of the corporate power of the city of Norwalk, or of any officer or body thereof, to stay the implementation of revaluation prior to the approval by the Governor of Public Act No. 94-4. Even if Public Act No. 94-4 were deemed to be a curative act, "[c]urative acts cannot cure a want of authority at all." Montgomery v. Branford, 107 Conn. 697, 705, 142 A. 574 (1928) (later enacted statute could not validate a tax assessment void when made); see State v. Blasko, 202 Conn. 541, 556, 522 A.2d 753 (1987). Since neither the city nor any officer or board thereof had authority to stay the implementation of revaluation prior to the enactment of Public Act No. 94-4, the action of the Council on June 28, 1994 did not ratify any prior stay of implementation of the 1993 revaluation.
"A curative act is a statute passed to cure defects in prior law or to validate legal proceedings, instruments, or acts of public and private administrative authorities. In the absence of such an act the statute would be void for want of conformity with existing legal requirements." 2 Sutherland Statutory Construction (5th Ed. Singer 1994) § 41.11.
F.
The next issue is whether Public Act No. 94-4 is retrospective. Related to this issue is the plaintiffs' claim that "the adoption of the 1994-1995 operating budget, establishment of mill rates and calculation and issuance of tax bills were done in express derogation of statutes prescribing procedures for them, at a time when the Board of Tax Review had yet to complete its business." General Statutes § 12-122 provides in relevant part that "[u]pon completion of the work of the board of tax review and of the final assessment list, the town shall levy a tax on such list . . ." Thereafter, the tax collector is to make out and sign rate bills containing the proportion which each individual is to pay according to the assessment list. General Statutes § 12-130 (a). The plaintiffs claim the defendants acted unlawfully because they illegally and erroneously acted on the assumption that the 1992 grand list could be used.
It is axiomatic that whether a statute is to be applied retroactively is a matter of legislative intent. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971). "[A] statute may have retroactive effect if the legislature so intends." State v. Ross, 230 Conn. 183, 282, 646 A.2d 1318 (1994), cert. denied, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). However, "[i]t is generally presumed that legislation is intended to operate prospectively `[e]xcept as to amending statutes that are procedural in their impact.' Enfield Federal Savings Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989)." Mulrooney v. Wambolt, 215 Conn. 211, 216, 575 A.2d 996 (1990); see General Statutes § 55-3. "Statutes should be construed retrospectively only when the mandate of the legislature is imperative." Michaud v. Fitzryk, 148 Conn. 447, 449, 171 A.2d 397 (1961).
General Statutes § 55-3 provides: "Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect."
Although Public Act No. 94-4 does not expressly state that it is retroactive, the mandate of the legislature is imperative. Public Act No. 94-4 by its very terms operates retrospectively. Although that law was approved by the Governor on June 9, 1994, it provides, inter alia: "Any municipality required to implement revaluation for the assessment year commencing October 1, 1993, which has not as of February 15, 1994, adopted mill rates for taxes due July 1, 1994, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes in ownership as of October 1, 1993 . . ." Although Public Act No. 94-4 permits a stay if a municipality has not adopted mill rates as of February 15, 1994, the statute was not signed into law until June 9, 1994. Because Public Act No. 94-4 permits a stay of implementation of a decennial revaluation based on events which occurred prior to its adoption, "the mandate of the legislature is imperative": the General Assembly intended Public Act No. 94-4 to apply retroactively. Therefore, because Public Act No. 94-4 is retroactive, the Norwalk Common Council's June 28, 1994 action resulted in a stay of the implementation of Norwalk's 1993 revaluation, pursuant to the provisions of that statute. While it may otherwise have been illegal for the defendants to adopt the 1994-95 operation budget, establish mill rates and issue tax bills based on the 1992 grand list, the retroactive nature of Public Act No. 94-4 and the action of the Common Council implementing it necessarily cured any illegality. "`[I]t is the situation now rather than the situation at the time of the . . . decision [under review] that must govern.' Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)." Labbe v. Hartford Pension Commission, 239 Conn. 168, 184, 682 A.2d 490 (1996).
Although this statement in Labbe was made in the context of a ripeness claim, I find it applicable here.
III
The plaintiffs and GTE make a multifaceted constitutional challenge to Public Act No. 94-4. Preliminarily, it is well to observe that "a validly enacted statute carries with it a strong presumption of constitutionality . . . Those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Fleming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994)." (Internal quotation marks omitted.) Morascini v. Commissioner of Public Safety, 236 Conn. 781, 789, 675 A.2d 1340 (1996). Therefore, "in evaluating [a] defendant's challenge to the constitutionality of [a] statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. We will indulge in every presumption in favor of the statute's constitutionality." (Internal quotation marks omitted.) State v. Defrancesco, 235 Conn. 426, 442, 668 A.2d 348 (1995). The court "will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Fleming v. Garnett, supra, 231 Conn. 88.
A.
The plaintiffs and GTE claim that Public Act No. 94-4 is unconstitutionally vague. They argue that Public Act No. 94-4 lacks any standards by which a municipality may determine when a stay may be imposed. The plaintiffs maintain that "[m]unicipal decisions to postpone implementation of decennial revaluations pursuant to Public Act No. 94-4 were made in a vacuum, without benefit of any guidance, oversight, or suggestion from the General Assembly identifying reasonably distinct boundaries for fairly doing so. This vagueness is constitutionally fatal to Public Act No. 94-4." In effect the plaintiffs blend a claim of unconstitutional vagueness with a claim of an unconstitutional delegation of legislative power by the General Assembly.
Although the defendants assert both federal and state constitutional claims, they do not independently analyze their claims under the constitution of Connecticut. Accordingly, this court will limit its analysis to the constitution of the United States. State v. Barnes, 232 Conn. 740, 744 n. 4, 657 A.2d 611 (1995).
A claim of an unconstitutional delegation of legislative power is founded on the doctrine of separation of powers. State v. Stoddard, 126 Conn. 623, 626-28, 23 A.2d 586 (1940). Article XVIII of the Constitution of the State of Connecticut, adopted November 24, 1982 and which amended Article Second, provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one: those which are executive, to another: and those which are judicial, to another. The legislative department may delegate regulatory authority to the executive department: except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed." Thus, with certain exceptions not relevant here, "[t]he Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the law-making power to any other department or agency. In the establishment of three distinct departments of government the Constitution, by necessary implication, prescribes those limitations and imposes those duties which are essential to the independence of each and to the performance by each of the powers of which it is made the depository. McGovern v. Mitchell, 78 Conn. 536, 547, 63 A. 433. Although our Constitution contains no specific limitations, relevant to the present inquiry, upon the exercise of legislative power `the limitations . . . are no less real, and perhaps more effective, than if phrased in specific terms.' State v. Conlon, 65 Conn. 478, 489, 33 A. 519." State v. Stoddard, supra, 126 Conn. 627. In State v. Stoddard, which was decided long before the adoption of Article XVIII, the court held that "[a] Legislature, in creating a law complete in itself and designed to accomplish a particular purpose, may expressly authorize an administrative agency to fill up the details by prescribing rules and regulations for the operation and enforcement of the law. In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration . . . If the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity." (Citations omitted.) Id., 628.
Article Second of the Constitution of the State of Connecticut provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."
The constitution of Connecticut, article third, § 1, provides: "The legislative power of this state shall be vested in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly. The style of their laws shall be: Be it enacted by the Senate and House of Representatives in General Assembly convened."
In fact, the Constitution carves away additional components of the executive and legislative power to certain unelected commissions. See Article XI, Article XXII, Article XXIII, and Article XXV of the Constitution of the State of Connecticut.
In Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989), the Supreme Court held that "[t]he separation of powers doctrine, however, does not pertain to delegations from the state legislature to a municipality. A municipality cannot be considered `any other department or agency' in the context of that phrase in Stoddard; a municipality is not one of the three departments enumerated in the constitution's separation of powers provision. Accordingly, a nondelegation doctrine founded upon the separation of powers doctrine does not pertain by jurisprudential necessity to the delegation of power from the state legislature to a municipality." Id., 664.
However, the Court held that allocation of the legislative power to the state legislature in article third, § 1 of our state constitution together with the due process guarantees of article first, § 8, and amendment seventeen to the constitution of Connecticut and the fifth and fourteenth amendments to the United States constitution form the framework for a constitutional challenge to a delegation of legislative power from the General Assembly to a municipality. Bottone v. Westport, supra, 209 Conn. 664-67. "A delegation of power can be challenged on the ground that the statute is unconstitutionally vague under traditional due process analysis." Id., 666. "Specifically, the standard is whether the statute afford[s] a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited." (Internal quotation marks omitted.) Id., 667. In Bottone, the Supreme Court, quoting 1 J. Sutherland, Statutory Construction (4th Ed. Sands 1985) § 4.07, observed that "in delegating power to municipal corporations none of the limitations imposed on administrative or executive agencies applies. Thus, the delegation may be of the most general nature and it will not be invalid for failure to create an adequate standard." (Emphasis added; internal quotation marks omitted.) Id., 668-69.
"Such an approach to delegations by a state to a municipality acknowledges the nature and respective resources of state and local governments. It would not be realistic to assume that the state legislature could address all of the local concerns in the state. It is clear, however, that the municipality cannot legislate to address local concerns until it is authorized to do so by the state . . . Thus, in providing local governments with authority to legislate, the state necessarily must grant municipalities the power to act with broad discretion within the framework of the delegated authority. The state legislature may give a municipality the power to fill in the details of police power legislation that addresses particularized, local concerns." (Citations omitted: internal quotation marks omitted.) Bottone v. Westport, supra, 209 Conn. 669-70.
"Now we must apply this standard for state legislature to municipality delegations to the present case." Bottone v. Westport, supra, 209 Conn. 671. There can be no serious question that Public Act No. 94-4 satisfies the rarified due process test for vagueness restated in Bottone: whether the statute affords a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. Public Act No. 94-4 states that the local legislative body of a municipality, by a two-thirds vote, may stay the implementation of such municipality's revaluation for a period or periods not to exceed in the aggregate two years. "Adequate standards" for the implementation of this grant of power are unnecessary. Id., 668-69. A "distressed municipality" may approve such a stay by a majority vote. If a municipality implements such a stay, it may continue to use the prior year's grand list. "Any municipality required to implement revaluation for the assessment year commencing October 1, 1993, which has not as of February 15, 1994, adopted mill rates for taxes due July 1, 1994, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes in ownership as of October 1, 1993, provided any such municipality may commence a phase-in of its revaluation pursuant to subsection (e) of Section 12-62a or Section 12-62c with respect to such assessment year and may after the first year of such phase-in stay the further implementation of such phase-in in accordance with the provisions of this Section." Similarly, if a municipality is due to implement a revaluation commencing October 1, 1994, and has not as of February 15, 1995, adopted a mill rate for taxes due July 1, 1995, it may use its most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes of ownership as of October 1, 1994. A municipality which had previously voted to defer all or any part of the amount of increase in the assessed value of real property as approved by the legislative body of such municipality, pursuant to General Statutes §§ 12-62 (e) or 12-62c, and which has not as of June 9, 1994, adopted a mill rate for taxes for July 1, 1994, may stay the further implementation of such phase-in. Public Act No. 94-4 further provides that if the General Assembly did not enact property tax reform during its 1995 legislative session, then "each municipality which has stayed the implementation of revaluation or phase-in of revaluation shall recommence the implementation of such revaluation or phase-in upon the expiration of any stay implemented . . ."
Although the statutory definition of "distressed municipality" is not referenced in Public Act No. 94-4, the words have become a term of art in the General Statutes in recent years. See General Statutes §§ 8-190, 8-195, 8-376, 12-81[(59), (60), (70)], 22a-133m(b), 32-9j(a), 32-9q(a), 32-9r(a), 32-9s, 32-23d(aa), 32-23jj, 32-56[(e), (f)], 32-70 (a), 32-75. The term "distressed municipality" is particularly defined in General Statutes § 32-9p(b) which provides: "`Distressed municipality' means, as of the date of the issuance of an eligibility certificate, any municipality in the state which, according to the United States Department of Housing and Urban Development meets the necessary number of quantitative physical and economic distress thresholds which are then applicable for eligibility for the urban development action grant program under the Housing and Community Development Act of 1977, as amended, or any town within which is located an unconsolidated city or borough which meets such distress thresholds. Any municipality which, at any time subsequent to July 1, 1978, has met such thresholds but which at any time thereafter fails to meet such thresholds, according to said department, shall be deemed to be a distressed municipality for a period of five years subsequent to the date of the determination that such municipality fails to meet such thresholds, unless such municipality elects to terminate its designation as a `distressed municipality,' by vote of its legislative body, not later than September 1, 1985, or not later than three months after receiving notification from the commissioner that it no longer meets such thresholds, whichever is later. In the event a distressed municipality elects to terminate its designation, the municipality shall notify the commissioner and the secretary of the office of policy and management in writing within thirty days. In the event that the commissioner determines that amendatory federal legislation or administrative regulation has materially changed the distress thresholds thereby established. `distressed municipality' shall mean any municipality in the state which meets comparable thresholds of distress which are then applicable in the areas of high unemployment and poverty, aging housing stock and low or declining rates of growth in job creation, population and per capita income as established by the commissioner, consistent with the purposes of subdivisions (59) and (60) of Section 12-81 and Sections 12-217e, 32-9p to 32-9s, inclusive, 32-23n and 32-23p, in regulations adopted in accordance with chapter 54. For purposes of Sections 32-9p to 32-9s, inclusive, `distressed municipality' shall also mean any municipality adversely impacted by a major plant closing, relocation or layoff, provided the eligibility of a municipality shall not exceed two years from the date of such closing, relocation or layoff. The commissioner of economic development shall adopt regulations, in accordance with the provisions of chapter 54, which define what constitutes a `major plant closing, relocation or layoff for purposes of Sections 32-9p to 32-9s, inclusive. `Distressed municipality' shall also mean the portion of any municipality which is eligible for designation as an enterprise zone pursuant to subdivision (2) of subsection (b) of Section 32-70." In Public Act No. 96-218, which amended Public Act No. 94-4, the legislature expressly provided that the term "distressed municipality" shall have the same meaning as that provided in General Statutes General Statutes § 32-9p(b).
Neither the plaintiffs nor GTE claim that the term "distressed municipality" renders the statute ambiguous. Indeed, the parties have stipulated that Norwalk is a distressed municipality. See supra, note 19.
Because Public Act No. 94-4 affords a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited, the court holds that the statute does not effect an unconstitutional delegation of power and is not unconstitutionally vague.
B.
The plaintiffs allege that Public Act No. 94-4 violates their equal protection rights under the state and federal constitutions. The plaintiffs, however, fail to brief this claim. Any claim of error which is not briefed is considered abandoned. State v. Ruiz, 171 Conn. 264, 265, 368 A.2d 222 (1976); Grace Community Church v. Planning Zoning Commission, 42 Conn. Sup. 256, 259, 615 A.2d 1092 (1992); Massimo v. Planning Commission, 41 Conn. Sup. 196, 197, 564 A.2d 1075 (1989); Mangels v. Commissioner of Motor Vehicles, 40 Conn. Sup. 226, 227, 487 A.2d 1121 (1984); see also Practice Book § 285A.
In fact, Stafford Higgins, Hodgson, Baum, and JoMur Associates concede that their constitutional challenge is based on an alleged violation of their due process rights: "[p]laintiffs' principal claim, however, is not that they are being required to bear a disproportionate share of the tax burden [which] is constitutionally impermissible. Rather, Plaintiffs' chief complaint is that their rights have been violated by the extension of the interim periods between the implementation of revaluation assessments in derogation of Plaintiffs' due process rights." (Emphasis added.) (Plaintiffs' Reply to Defendants' Post-Trial Brief, p. 7.)
Practice Book § 285A provides: "Trial Briefs; Claims of Law. The parties may, as of right, or shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved.
"If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim."
In its trial brief GTE does state that Public Act No. 94-4 "is unconstitutional in that it violates the equal protection clauses of the 14th Amendment to the United States Constitution and Article First, Sections 1 and 20 of the Connecticut Constitution." However, GTE fails to allege this claim in its complaint. "The principle that a plaintiff may rely only upon what he has alleged is basic. Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977); Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 302, 254 A.2d 473 (1968). `It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496.' Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952)." Matthews v. F.M.C. Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983).
Nonetheless, the defendants not only have not objected to GTE's equal protection claim, but have themselves briefed the issue. The court considers this a waiver of GTE's failure to plead the issue in its complaint; cf. Scribner v. O'Brien, 169 Conn. 389, 405, 363 A.2d 160 (1975); and will address the claim since it significantly impacts the public interest; Sassone v. Lepore, 226 Conn. 773, 778, 629 A.2d 357 (1993); and because the plaintiffs have given notice to all interested persons that they are challenging the constitutionality of Public Act No. 94-4.
"The equal protection provisions of the federal and state constitutions have the same meaning and limitations." (Internal quotation marks omitted.) State v. Leary, 217 Conn. 404, 409, 587 A.2d 85 (1991). "The first step in confronting the plaintiffs' equal protection argument is to ascertain whether the rational basis test or the more stringent strict scrutiny test applies." Gallacher v. Commissioner of Revenue Services, 221 Conn. 166, 181, 602 A.2d 996 (1992). "When a statutory classification impinges upon an inherently suspect class or affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interest." Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982). Since Public Act No. 94-4 does not affect a suspect class or fundamental interest, the rational basis test is applicable. Frazier v. Manson, 176 Conn. 638, 646-47, 451 A.2d 408 (1979). This is the test usually applied to tax legislation. United Illuminating v. New Haven, 179 Conn. 627, 637-38, 427 A.2d 830 (1980), appeal dismissed, 449 U.S. 801, 101 S.Ct. 45, 66 L.Ed.2d 5 (1980). "In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . . This standard is especially deferential in the context of classifications made by complex tax laws. [I]n structuring internal taxation schemes the States have large leeway in making classifications and drawing lines which, in their judgment, produce reasonable systems of taxation." (Citations omitted; internal quotation marks omitted.) Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); see also D.A. Pincus Co. v. Meehan, 235 Conn. 865, 876-77, 670 A.2d 1278 (1996).
Ordinarily, in order to determine whether a statutory scheme violates the equal protection clause, "a court must consider three factors: `the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.' Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)." Bruno v. Civil Service Commission, 192 Conn. 335, 345, 472 A.2d 328 (1984). GTE does not identify any classification embodied in Public Act No. 94-4 which renders any person treated differently than any other. Rather, GTE argues that "the effect of Public Act No. 94-4 is to treat owners of real property differently depending upon whether their property is commercial in nature, a residential condominium, or a single family residence." (Emphasis added.)
"Most laws classify and many affect groups unevenly." Keogh v. Bridgeport, supra, 187 Conn. 66. When facially neutral legislation is subjected to equal protection attack, an inquiry into intent is necessary to determine whether the legislation in some sense was designed to accord disparate treatment on the basis of suspect considerations. Harris v. McRae, 448 U.S. 297, 326, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). "The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, Washington v. Davis, 426 U.S. 229, and when a facially neutral . . . statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that [the legislature] `selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.' Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279. There is no evidence to support such a finding of intent in the present case." Id., 324 n. 6; cf. Hunt v. Prior, 236 Conn. 421, 443-44, 673 A.2d 514 (1996). This is so whether we examine the legislative intent of the General Assembly which authorized the legislation or the legislative intent of the Norwalk City Council which implemented the stay of the revaluation pursuant to that authorization. While the legislative history of Public Act, May Special Session, No. 94-4 does not address the particular intent behind § 51, that history does reflect that the intent behind the legislation as a whole was to provide property tax relief. With respect to the defendant City of Norwalk, the evidence proves that the Norwalk City Council voted to stay its decennial revaluation of real property because of a shift in the tax burden to single family home owners from nonsingle family property owners which would result. It chose this course, however, not to burden commercial property owners but to alleviate the burden on single family home owners, that is, "in spite of" not "because of" the burden which would be assumed by nonsingle family property owners. More, these were policy choices which both democratically elected legislatures were entitled to make, free of constitutional restraints. Nordlinger v. Hahn, supra, 505 U.S. 1; United Illuminating Co. v New Haven, supra, 179 Conn. 627.
The legislative history reflects that the General Assembly's goal with respect to the legislation in its entirety, was to provide "a tax cut through current spending reductions . . ." Remarks of Senator Robert Genuario, 37 S. Proc., Pt. 9, 1994 Sess., p. 3232. Public Act No. 94-4 was "intended to be as much property tax relief as we can offer, given the dollars that are available to us . . . There is approximately $300 million of property tax relief included in this legislation. There is also included in this legislation a mechanism to try to achieve property tax reform and that's the creation of a Property Tax Reform Commission. This is not the end of the process in regard to property tax reform. It is the beginning of the process and we anticipate that the commission will take its mandate seriously and we'll be making recommendations for a number of years to try to provide property tax reform." Id., 3236-37. "Of course, the largest feature of the tax bill is a cut in the income tax by virtue of allowing families to get a credit against the income tax for the taxes they pay on their personal automobiles . . . The bill also . . . does create a tax credit program, which will open the door to additional property tax relief as the funds are available and it is our hope that as those funds are available . . . they may be added to the tax credit that is created in this legislation and applied to real estate taxes as well as the automobile." Id., 3242.
In a December 1, 1994 memorandum submitted to Norwalk's Finance Committee, Finance Director Miller explained the effect of the 1993 revaluation, stating that "[t]he State requirement that municipalities must revalue all real property not less than every ten years has caught us in an economic cycle where commercial property values have lagged against residential property appreciation. Thus, if revaluation is implemented in this cycle, the unavoidable result is that residential property assessments will comprise a greater proportion of the Grand List of all assessable property and consequently bear the greater proportion of taxes. This unfortunate result, from the viewpoint of most residential property owners, is further aggravated because personal property owned principally by commercial businesses will also drop significantly as a component of the taxable Grand List and push even more of the tax burden onto residential property owners." According to Miller, "[i]f the revaluation had been implemented in the current year, FY 1994-95, the tax levy on commercial real property would have dropped by $3,114,776, the personal property tax levy would have dropped by $5,368,943 and the levy on residential condominium property would have dropped by $1,778,055 and the levy on one, two and three family residents would have increased by $10,261,774 to make up the reductions in all the other categories."
In Nordlinger v. Hahn, supra, 505 U.S. 1, California had adopted by statewide ballot initiative an "acquisition value" system of taxation, whereby property was reassessed up to the current appraised value upon new construction or a change in ownership. Over a period of about ten years, this acquisition-value system created immense disparities in the taxes paid by persons owning similar pieces of property. Longer term property owners paid lower taxes based on a lower assessment, while newer owners of similar property paid much higher taxes based on a more recent assessment. The United States Supreme Court held that this did not violate the Equal Protection Clause of the Fourteenth Amendment because "the State has a legitimate interest in local neighborhood preservation, continuity and stability . . . The State therefore legitimately can decide to structure its tax system to discourage rapid turnover in ownership of homes . . ., for example, in order to inhibit displacement of lower income families by the forces of gentrification." (Citations omitted.) Id., 12.
Similarly, in United Illuminating Co. v. New Haven, supra, 179 Conn. 627, the Connecticut Supreme Court upheld against an equal protection challenge the constitutionality of General Statutes (Rev. 1979) § 12-62a(e) whereby a city was authorized to phase in an increase in property assessments over a five year period if, in any year, its total assessments, as a result of a decennial revaluation, are at least 30% greater than its assessments for the previous year. Said the court: "It cannot be assumed that the legislature could not have reasonably concluded that by the coincidence of §§ 12-62 (revaluation required every ten years) and 12-62a(b) (uniform assessment rate of 70 percent) of the General Statutes numerous owners of real property might have been faced with a dramatic and sudden increase in taxes. Because of the coincidence of these statutes, not only is appreciation in realty which accrued over a period of years being compressed into a single revaluation, but also assessment is imposed at a uniform rate of 70 percent of true and actual value (a rate which is higher than that previously imposed at least by the city). Perhaps to ameliorate the potential hardship and deleterious consequences on the social structure of certain communities that the above statutes might impose — for example, numerous foreclosures — the legislature enacted [General Statutes (Rev. 1979) § 12-62a(e)]. This is a legitimate purpose for governmental action." Id., 643. "The legislature may well have feared that although appreciation in the value of [certain] property may have been gradual over the years, the cumulative appreciation may have been so substantial that when reflected in the subsequent assessment, forced sales, foreclosures, and other conceivable hardships might result." Id., 646.
In United Illuminating, the court addressed the claim that the statutory classification between real property which had appreciated in value classification and that which had not "violates equal protection because, inter alia, `those whose real property has increased sufficiently in value will be subsidized by those owners of real property which has decreased, remained the same or increased less in value.'" Id., 647. Said the court: "Although such a `subsidy' may result from the act and ordinance, the classification does not constitute a denial of equal protection of the laws because of the existence of at least the following conceivable rational bases. To achieve the purpose of mitigating the burden of increased assessments of real property in a revaluation year, a logical distinction exists between pieces of realty which have appreciated since the prior revaluation and those which have not. The legislature might have reasonably believed that only owners of appreciated property potentially would face a significant "double barrel" tax impact resulting from the coincidence of the legislation involving mandatory periodic revaluation; General Statutes § 12-62; and that imposing a uniform assessment rate; General Statutes § 12-62a(b). Owners of unappreciated property would be in less need of protection from a sudden and dramatic increase in tax burden. Likewise, the distinctions between pieces of real property which have appreciated more than others are rational." Id., 647-48.
For like reasons, neither the action of the General Assembly nor the action of the Norwalk City Council denied GTE of equal protection of the law.
C.
The plaintiffs next claim that Public Act No. 94-4 is an unconstitutional retroactive tax. The United States Supreme Court "repeatedly has upheld retroactive tax legislation against a due process challenge. See, e.g., United States v. Hemme, 476 U.S. 558 [, 106 S.Ct. 2071, 90 L.Ed.2d 538, appeal dismissed, 476 U.S. 1166, 106 S.Ct. 2884, 90 L.Ed.2d 973] (1986); United States v. Darusmont, 449 U.S. 292 (1981); Welch v. Henry, 305 U.S. 134 [, 59 S.Ct. 121, 82 L.Ed. 87] (1938); United States v. Hudson, 299 U.S. 498 (1937); Milliken v. United States, 283 U.S. 15 (1931); Cooper v. United States, 280 U.S. 409 (1930)." United States v. Carlton, 512 U.S. 26, 30, 114 S.Ct. 2018, 2021-22, 129 L.Ed.2d 22 (1994). "`Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the costs of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process . . .' Welch v. Henry, [supra, 305 U.S. 146-47]. Accordingly, courts recognizing the power of taxation as an attribute of government essential to the raising of necessary revenue hold that retroactive tax laws be valid even though they impair vested rights. Parlato v. McCarthy, 136 Conn. 126, 130, 69 A.2d 648 [(1949)]; see Rahr v. Smith, 243 Wis. 497, 11 N.W.2d 355 [(1943)]; 85 C.J.S., Taxation, 1092(b)." Wiegand v. Heffernan, 170 Conn. 567, 576-77, 368 A.2d 103 (1976); see also Gunther v. Dubno, 195 Conn. 284, 299-300, 487 A.2d 1080 (1985).
The two principal United States Supreme Court cases which invalidated a retroactive tax in this century are Blodgett v. Holden, 275 U.S. 142, 48 S.Ct. 105, 72 L.Ed.2d 206 (1927), modified, 276 U.S. 594 (1928), and Untermyer v. Anderson, 276 U.S. 440, 48 S.Ct. 353, 72 L.Ed. 645 (1928). These, however, were gift tax cases, involving the very first gift tax levied, and the gifts in question were made and completely vested before the enactment of the taxing statute. United States v. Darusmont, 449 U.S. 292, 299, 101 S.Ct. 549, 66 L.Ed.2d 513 (1981); cf. Parlato v. McCarthy, 136 Conn. 126, 69 A.2d 648 (1949).
Although the consistency with which the United States Supreme Court has since upheld retroactive tax legislation over the past seventy years suggests that Blodgett and Untermyer may have become obsolete Lochner-era cases, limited to their facts or implicitly overruled, the Court has continued to acknowledge that "[s]ome of its decisions have stated that the validity of a retroactive tax provision under the Due Process Clause depends upon whether retroactive application is so harsh and oppressive as to transgress the constitutional limitation. Welch v. Henry, [supra, 305 U.S. 147], quoted in United States v. Hemme, [supra, 476 U.S. 568-69]. The harsh and oppressive formulation, however, does not differ from the prohibition against arbitrary and irrational legislation that applies generally to enactments in the sphere of economic policy. Pension Benefit Guaranty Corp. v. R. A. Gray Co., 467 U.S. 717, 733 (1984). The due process standard to be applied to tax statutes with retroactive effect, therefore, is the same as that generally applicable to retroactive economic legislation: Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches . . . To be sure, . . . retroactive legislation does have to meet a burden not faced by legislation that has only future effects . . . The retroactive aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former . . . But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose. Id., at 729-30, quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976)." (Internal quotation marks omitted.) United States v. Carlton, supra, 512 U.S. 31. "One of the relevant circumstances is whether, without notice, a statute gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute. United States v. Hemme, supra, 476 U.S. 569.
Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), typified an era of jurisprudence extending, with only a few detours, from Dred Scott v. Sandford, 19 How. 393 (1857), until the mid-1930's, during which the United States Supreme Court struck down legislation which conflicted with common-law property rights and contractual autonomy under the pretext of the Due Process Clause. During the "Lochner-era" judicial policy judgments often prevailed over legislative policy judgments. See Seminole Tribe of Florida v. Florida, U.S., 116 S.Ct. 1114, 1176, 134 L.Ed.2d 252 (1996) (Souter, J., dissenting); United States v. Lopez, U.S., 115 S.Ct. 1625, 1652-53, 131 L.Ed.2d 626 (1995) (Souter, J., dissenting); Pruneyard Shopping Center v. Robins, CT Page 2206 447 U.S. 74, 93, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). "Lochner" is now a "discredited doctrine"; Central Hudson Gas Elec. v. Public Serv. Comm'n, 447 U.S. 557, 591, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); American Dredging Co. v. Miller, 510 U.S. 443, 457, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994); used today almost exclusively as a rhetorical device. "The doctrine that prevailed in Lochner . . . and like cases — that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely — has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).
As discussed supra, Public Act No. 94-4 is rationally related to a legitimate legislative purpose, alleviating a sudden increase in the property tax burden from single family homeowners and the consequences for neighborhood preservation, continuity and stability that would result from the failure to do so. Nordlinger v. Hahn, supra, 505 U.S. 12; United Illuminating Co. v. New Haven, supra, 179 Conn. 645-48. Since these effects of the decennial revaluation of property values would relate back to October 1, 1993, the retroactive application of the legislation is justified by a rational legislative purpose.
It also is relevant that Public Act No. 94-4 is not legislation that "without notice . . . gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute." United States v. Hemme, supra, 476 U.S. 569. That is, there is no evidence that either the plaintiffs or GTE did or refrained from doing something in reliance on the expectation that their property would be subject to a decennial revaluation.
Other circumstances are relevant to this court's conclusion that neither the plaintiffs nor GTE have suffered different and oppressive treatment as a result of the legislation. United States v. Hemme, supra, 476 U.S. 571. First, the very nature of their complaint is peculiar when it is seen that Public Act No. 94-4, rather than changing the nature of the property tax, merely authorized the continuation of the assessment basis established in the prior revaluation. Far more substantive retroactive changes in tax laws have been upheld. United States v. Hemme, supra, 476 U.S. 558 (retroactive elimination of the lifetime gift tax exemption of $30,000 deductible from amounts otherwise not unconstitutional); United States v. Darusmont, supra, 449 U.S. 292 (retroactive amendments of the minimum tax provisions of the Internal Revenue Code increasing the rate of the minimum tax and decreasing the allowable exemption as to enumerated items of tax preference, including the deduction for 50% of any net long-term capital gain, not unconstitutional). The position of GTE, and that of the plaintiffs, is far different from that of the individual who, as Judge Learned Hand stated, "has no reason to suppose that any transactions of the sort will be taxed at all." Cohan v. Commissioner, 39 F.2d 540, 545 (2nd Cir. 1930), quoted in United States v. Darusmont, supra, 449 U.S. 298. Second, the propriety of the ad valorem property tax has been the subject of intense and ongoing debate in Connecticut for over two decades. Under the circumstances of this case, the plaintiffs and GTE cannot reasonably claim surprise. See Milliken v. United States, 283 U.S. 15, 22, 24, 51 S.Ct. 324, 75 L.Ed. 809 (1931); First Federal Savings Loan Assn. v. Connelly, 142 Conn. 483, 491, 115 A.2d 455 (1955), appeal dismissed, 350 U.S. 927, 76 S.Ct. 305, 100 L.Ed. 811 (1956). Indeed, prior to the enactment of Public Act No. 94-4, there already existed statutes by which the city of Norwalk could have deferred all or part of the increase in assessments resulting from the revaluation; General Statutes § 12-62a(e), (f); or could have imposed a property tax surcharge of 15% on property classified as commercial, industrial or utility. General Statutes § 12-62d(b). Third, it is relevant that Public Act No. 94-4 was retroactive only to the start of the tax year in which it was enacted. Cf. United States v. Darusmont, supra, 449 U.S. 292; Atlantic Coast Line R. Co. v. Daughton, 262 U.S. 413, 425, 43 S.Ct. 620, 67 L.Ed. 1051 (1923) (taxing statute not impermissibly retroactive though not enacted until March but laid a tax based upon the net income of the calendar year); Wiegand v. Heffernan, supra, 170 Conn. 576; Burke International Research Corp. v. Lindley, 58 Ohio St.2d 27, 387 N.E.2d 1227 (1979). "This limited retroactive application is of no consequence." Kellems v. Brown, 163 Conn. 478, 510, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973). Nor is this a case of a statute, without notice, giving a different and more oppressive effect to conduct undertaken before enactment of the statute. United States v. Hemme, supra, 476 U.S. 569. The retroactive effect of Public Act No. 94-4 does not violate the Due Process Clause.
General Statutes § 12-62a(e) and (f) provide: "(e) Any such municipality may, with respect to the assessment list in such municipality in a year in which a revaluation becomes effective, as required under Section 12-62, provided such revaluation has resulted in an increase in the total assessed value of all real property on the assessment list in the year immediately preceding such revaluation, commencing with any such assessment list for 1977 and including any such list for assessment years commencing October 1, 1978, to October 1, 1985, inclusive, or commencing on and after October 1, 1992, by vote of its legislative body and in the manner provided in this subsection, defer all or any part of the amount of such increase in the assessed value of real property included in the assessment list in the year such revaluation becomes effective, provided in the year such revaluation becomes effective and in any succeeding year in which such deferment is allowed by such municipality, the assessed value of such real property in the year immediately preceding revaluation shall be increased in such equal amounts in each of such years that the assessed value of such real property in the last year of such deferment, but in no event later than the fourth year following the year of such revaluation, shall be no less than the assessed value applicable to such property in the year of revaluation except for deferment of such increased assessment in accordance with this subsection. In any municipality with such a revaluation becoming effective and electing to defer all or any part of the amount of such increase in the assessed value of real property over the period of four years immediately following, as provided in this subsection, subject to approval by the legislative body as provided above with respect to real property included in the assessment list in the year of such revaluation, new real estate construction in such municipality which is completed and determined to be subject to property tax-as provided in Section 12-53a after the assessment date in the year of such revaluation and prior to the assessment date in the fourth year following the year of such revaluation, may be assessed during such period in a manner similar to that provided in this subsection for real property included in the assessment list in the year of such revaluation, deferring a portion of the actual assessed value of such new construction as of the date liability for property tax is established and adding such portion in equal increments to an assessed value for such new construction estimated as that which would have been applicable if it had been completed immediately prior to the assessment date in the year of such revaluation, such increments to be added in each assessment year commencing with the year in which liability for property tax is so established and ending not later than the fourth year following the year of such revaluation. The assessed value for purposes of this subsection in each of said years shall be determined as the sum of (1) such estimated assessed value (2) any of the equal increments already added to such estimated value for purposes of determining the assessed value in accordance with this subsection and (3) the increment for the year with respect to which such assessed value is being determined. The portion of the actual assessed value of such new construction as of the date of such liability which is to be deferred and added in increments to such estimated assessed value shall be the amount by which the actual assessed value of such new construction on the date tax liability is so established exceeds the estimated assessed value for such new construction as described in this subsection."
"(f) Any municipality which has elected to defer all or any part of the amount of increase in the assessed value of real property as provided in subsection (e) may (1) continue the plan of such deferment as approved by the legislative body of such municipality until the fourth year following the year of such revaluation as provided in said subsection (e) or (2) at any time, subject to approval by the legislative body in such municipality, discontinue the plan of such deferment as adopted and notwithstanding the provisions of Section 7-344 and any other public or special act or charter, lay such rate of property tax on the assessment list for the assessment year in which such discontinuance occurs, as completed and placed in the town clerk's office in accordance with Section 12-55, without any deferment of amounts of increase in assessed values in accordance with said subsection (e), in the amount that would have been applicable with respect to said assessment list if such plan of deferment had not been adopted. In the event any such tax in accordance with said subsection (e) has been levied and become due and payable in such assessment year prior to the date of such discontinuance as provided in this subsection, the amount of tax due and payable under this subsection shall be that portion of such tax in excess of the amount of tax due and payable prior to the date of such discontinuance and which amount, notwithstanding discontinuance of such plan of deferment, shall continue to be collectible by the tax collector. Within a period not exceeding thirty days following the date on which such plan of deferment is discontinued, the assessor in such municipality shall notify the tax collector as to the additional amounts of such tax due with respect to the assessment list for the assessment year in which such discontinuance occurs and the tax collector shall within ten days thereafter mail a bill to the owner of each parcel of real property subject to such additional tax. Such tax shall be due and payable and collectible as other municipal property taxes, provided such tax shall be due and payable in an initial or single instalment not sooner than thirty days following the date such bill is mailed to the owner and in any remaining installments of equal amounts as the same are determined to be due and payable by the legislative body."
General Statutes § 12-62d(b) provides: "Property tax surcharge in municipalities adopting program under subsection (d). In any municipality in which the legislative body provides for residential property tax relief pursuant to this section, a property tax surcharge of no more than the lesser of (1) fifteen per cent of the property tax payable for the assessment year in which such relief is granted, or (2) the portion of the total tax credit which may be provided under subsection (d) of this section allocable to the surcharged property, shall be charged for all real and personal property subject to property tax imposed by such municipality classified, for purposes of assessment, as commercial, industrial or public utility, or a combination thereof, excepting (A) motor vehicles, (B) multiple-dwelling structures which are more than fifty per cent residential in use and which contain more than three units and (C) lodging houses, provided the surcharge shall be calculated and surcharged against each individual parcel or item of property on a basis which includes multiple-dwelling structures which are more than fifty per cent residential in use and which contain more than three units and lodging houses as surcharged property. Such property tax surcharge shall be payable and collectible as other property taxes and subject to the same liens and processes of collection, provided such surcharge shall be due and payable not sooner than thirty days after the instalment of the property tax for the assessment year on which residential property tax credits are applied. The amount of property tax surcharge made payable in the year in which revaluation becomes effective in such municipality shall remain unchanged in each of the four succeeding years. Any new construction in such municipality which would have been subject to the property tax surcharge payable under this subsection if completed in the year in which such surcharge first becomes effective shall be subject to such surcharge for the year in which such structure is approved for use and in each of the succeeding years in which such surcharge is applicable."
D.
Finally, the plaintiffs argue that "[b]ecause the retroactive feature of Public Act No. 94-4 unlawfully impairs Plaintiffs' vested substantive right to appeal the doings of the municipal assessor to the municipal board of tax review and from the board of tax review to superior court, such provision is unconstitutional." In addition, the plaintiffs note that General Statutes § 12-117a is the exclusive remedy for overvaluation. Therefore, the plaintiffs claim that they "and taxpayers with legally cognizable claims of overassessment, based on the utilization of outdated or otherwise inaccurate property valuations were, by operation of Public Act No. 94-4 precluded from pursuing redress of their grievances. The lawful sessions of the boards of review had expired, leaving it impossible for grievants to perfect the jurisdictional prerequisite of petitioning the local board before an appeal with court pursuant to Connecticut General Statutes § 12-117a." Similarly, GTE maintains that Public Act No. 94-4 "deprives the plaintiffs of vested substantive fights to appeal the actions of the municipal assessor to the Board of Tax Review, and from the Board of Tax Review to the Superior Court."
These claims are old wine in new bottles, albeit creatively designed bottles. "A vested right is one that equates to legal or equitable title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 71, 441 A.2d 68 (1981)." (Emphasis in original.) Rudewicz v. Gagne, 22 Conn. App. 285, 290, 582 A.2d 463 (1990).
The plaintiffs would like to contest the 1983 revaluation in light of the changes in market conditions demonstrated by the 1993 revaluation. In essence, the plaintiffs are seeking an interim revaluation based on changes in market conditions. Generally, however, an adjustment to an assessment to reflect fluctuations in property values resulting solely from changes in market conditions is an impermissible interim revaluation. Pauker v. Roig, 232 Conn. 335, 342, 654 A.2d 1233 (1995).
In Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629-30, 438 A.2d 782 (1981), the court stated that "[i]n Connecticut, the remedy for variations in the effect of market conditions on different parcels is set forth in General Statutes 12-62. The remedy of revaluation was established by the legislature and it was the judgment of the legislature that the remedy need only be available once each decade. See Bassett v. Rose, [ 141 Conn. 129, 135, 104 A.2d 212 (1954)] . . . [A]s a practical matter, assessors cannot be expected to revalue every year, even though changes which affect property values may occur within a given year.' Kays, Inc. v. Board of Tax Review, [ 170 Conn. 477, 480, CT Page 2190 365 A.2d 1207 (1976)]." Therefore, variations in property values "accruing within ten-year periods is a permissible variation under the legislative scheme for assessment. General Statutes § 12-62. We have said that: `Tax assessors are required to recognize and act on the principle that the true value of a fixed asset such as real estate is fairly constant and must be gauged, not by conditions temporary and extraordinary, but by those prevailing over a period of time, and the assessors, in listing values of property for taxation, may, to a certain extent, disregard the excesses of a boom as well as the despair of a depression. Alfred J. Sweet, Inc. v. Auburn, 134 Me. 28, 32, 180 A. 803.' Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 677-78, 154 A.2d 608 (1959)." Uniroyal, Inc. v. Board of Tax Review, supra, 182 Conn. 629. In Ralston Purina v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987), the Supreme Court reaffirmed its holding in Uniroyal that a municipality is not obligated to adjust the plaintiffs' tax assessments during interim years between decennial revaluations of real property to account for fluctuations in property values resulting solely from changes in market conditions.
This rule does not apply where there is "a showing of the destruction or expansion of the property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business. Ralston Purina Co. v. Board of Tax Review, [supra, 203 Conn. 435-39]; Uniroyal [II, supra, 182 Conn. 629]." Pauker v. Roig, supra, 232 Conn. 342. Under any of these situations, an interim revaluation, and perhaps a lower assessment, would be appropriate. However, the plaintiffs have neither alleged nor proven that they come within the ambit of these exceptions. GTE concedes that its real property has not experienced a change which would warrant an interim revaluation. "[I]t is well established that those who challenge the constitutionality of a state statute bear the heavy burden of demonstrating beyond a reasonable doubt that the presumption of its validity has been overcome." D.A. Pincus Co. v. Meehan, supra, 235 Conn. 879-80.
That the legislature has in Public Act No. 94-4 and succeeding legislation authorized stays or extensions of the decennial revaluation does not distinguish this case from Ralston Purina and Uniroyal. A person does not have a vested right in a statutory remedy which is not grounded in the common law. See Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 472, 378 A.2d 547 (1977); Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 456-57, 280 A.2d 344 (1971); Bahr Corporation v. O'Brion, 146 Conn. 237, 246, 149 A.2d 691 (1959); State v. Vashon, 140 Conn. 478, 485, 101 A.2d 509 (1953); Neilson v. Perkins, 86 Conn. 425, 428, 85 A. 686 (1913); compare Gentile v. Altermatt, 169 Conn. 267, 282-87, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976); Massa v. Nastri, 125 Conn. 144, 147, 3 A.2d 839 (1939). Specifically, "the taxpayer cannot have any vested right in the remedy granted by [the legislature] for the correction of an error in taxation." The Collector v. Hubbard, 79 U.S. (12 Wall.) 1, 14, 20 L.Ed. 272 (1870), reversing Hubbard v. Brainard, 35 Conn. 563, 576 (1869). Notably, "[t]his is not an instance in which plaintiffs have gained vested rights or equities through reliance upon statutory provisions prior to" the enactment of Public Act No. 94-4. C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 455, 334 A.2d 909 (1973).
Due process of law requires that a taxpayer have notice and opportunity for a hearing as to the assessment of a tax against his property at some stage of the proceedings. Turner v. Wade, 254 U.S. 64, 67, 41 S.Ct. 27, 28, 65 L.Ed. 134 (1920); see also Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 52 L.Ed. 1103 (1908); Central of Georgia v. Wright, 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134 (1907). The plaintiffs and GTE had just such an opportunity after the 1983 assessment. That assessment has not been effectively changed. They may not appeal that assessment even though it has continued longer than they may have expected. Public Act No. 94-4 does not deprive the plaintiffs or GTE of vested rights or due process of law.
IV
The plaintiffs and GTE assert the same claims of unconstitutionality with respect to Public Act No. 95-283, § 8 and Public Act No. 96-218 as they have with respect to Public Act 94-4. Public Act No. 95-283, § 8 and Public Act No. 96-218 each amended General Statutes § 12-62h, which codified Public Act No. 94-4, so as to, inter alia, enable the legislative body of a municipality to extend the stay of implementation of the decennial revaluation, beyond that provided for in Public Act No. 94-4, and to enable the municipality to continue to use its most recently completed grand list prior to revaluation. The facts relevant to Norwalk's implementation of Public Act No. 95-283, § 8 and Public Act No. 96-218 are contained in a supplemental stipulation of the parties recited above at note 7.
Public Act No. 95-283, § 8 amended General Statutes § 12-62h(a) so as to provide: "(a) Notwithstanding any provision of this title, the local legislative body of a municipality may, at its option, stay the implementation of such municipality's revaluation in order to implement the recommendations of the Property Tax Reform Commission enacted during the 1995 session of the general assembly. The local legislative body of a municipality may stay such implementation for a period or periods not to exceed in the aggregate three years. Any distressed municipality shall by majority vote of its legislative body approve such stay and any municipality, other than a distressed municipality shall by two-thirds vote of its legislative body approve such stay. Any municipality required to implement revaluation for the assessment year commencing October 1, 1993, which has not as of February 15, 1994, adopted mill rates for taxes due July 1, 1994, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes in ownership as of October 1, 1993, provided any such municipality may commence a phase-in of its revaluation pursuant to subsection (e) of Section 12-62a or Section 12-62c with respect to such assessment year and may after the first year of such phase-in stay the further implementation of such phase-in in accordance with the provisions of this section. Any municipality required to implement revaluation for the year commencing October 1, 1994, which has not as of February 15, 1995, adopted a mill rate for taxes due July 1, 1995, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes of ownership as of October 1, 1994. Any municipality which has elected to defer all or any part of the amount of increase in the assessed value of real property as approved by the legislative body of such municipality, pursuant to subsection (e) of Section 12-62a or 12-62c, and which has not as of June 9, 1994, adopted a mill rate for taxes for July 1, 1994, may, subject to approval by the legislative body of such municipality, stay the further implementation of such phase-in, so that the assessed value shall not include such further increments in value for the grand lists of October 1, 1993 and October 1, 1994, as provided for in such plan. Any municipality required to implement revaluation for the year commencing October 1, 1995, which has not as of February 15, 1996, adopted a mill rate for taxes due July 1, 1996, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes of ownership as of October 1, 1995. Any municipality which has elected to defer all of any part of the amount of increase in the assessed value of real property as approved by the legislative body of such municipality. Pursuant to subsection (e) of Section 12-62a or 12-62c, and which has not as of June 9, 1995, adopted a mill rate for taxes for July 1, 1995, may, subject to approval by the legislative body of such municipality, stay the further implementation of such phase-in, so that the assessed value shall not include such further increments in value for the grand lists of October 1, 1994, and October 1, 1995, as provided for in such plan. On and after December 31, 1996, each municipality shall comply with all provisions of any new property tax statutes enacted during the 1995 session of the general assembly for implementation as of July 1, 1997. If during the 1995 session of the general assembly no legislation is enacted concerning property tax reform each municipality which has stayed the implementation of revaluation or phase-in of revaluation shall recommence the implementation of such revaluation or phase-in upon the expiration of any stay implemented according to the provisions of this section."
Public Act No. 96-218, § 3 provides: "(a) Notwithstanding any provision of this title, the local legislative body of a municipality may, at its option, stay the implementation of such municipality's October 1, 1993, 1994, or 1995 revaluation, for a period not to exceed three years, two years and one year, respectively, in order to implement the recommendations of the Property Tax Reform Commission enacted during the 1995 session of the General Assembly and any revisions thereto as enacted during the 1996 session of the General Assembly. On or before the date by which a mill rate to provide for the levy of taxes relative to any such assessment year is established, any distressed municipality, as defined in subsection (b) of Section 32-9p, shall by majority vote of its legislative body approve such stay and any municipality, other than a distressed municipality shall by two-thirds vote of its legislative body approve such stay. The assessors of any municipality in which the legislative body approves a stay of revaluation in accordance with the provisions of this section, may use such municipality's most recently completed grand list prior to revaluation as updated by any additions, deletions, splits, combinations and other changes in ownership as of the October first date which, except for such approval, would be the effective date of revaluation. Alternatively, any such municipality, except a municipality implementing revaluation as of October 1, 1995, may commence a phase-in of its revaluation pursuant to subsection (e) of Section 12-62a, as amended by Section 2 of this act, or Section 12-62c, as amended, with respect to such assessment year and may after the first year of such phase-in stay the further implementation of such phase-in.
"(b)(1) The assessor of each municipality having stayed the implementation of an October 1, 1993, 1994, or 1995 revaluation shall, on the grand list for the assessment year commencing October 1, 1996, reflect assessments based upon the revaluation that was stayed. The assessor of each municipality having stayed the further implementation of phase-in with respect to a revaluation implemented on October 1, 1993, shall, on the grand list for the assessment year commencing October 1, 1996, recommence such phase-in by reflecting assessments that include the incremental value that would, except for such stay, have been added in the assessment year commencing October 1, 1994, and for each assessment year thereafter, until the term of the phase-in as adopted by the municipality is completed, such assessors shall reflect assessments which include the addition if the applicable phase-in increment. Any municipality which has elected to defer all or part of the increase in the assessed value of real property pursuant to Section 12-62a, as amended by Section 2 of this act, or 12-62c, as amended, shall, as of October 1, 1996, reflect ownership and valuation changes for each assessment year during such stay."
For two reasons, this court cannot entertain the parties' claims with respect to Public Act No. 95-283, § 8 and Public Act No. 96-218. First, no allegations with respect to Public Act No. 95-283, § 8 and Public Act No. 96-218 are alleged in the complaint. A stipulation of facts cannot expand the plaintiffs' right of recovery beyond the allegations of the complaint. Seymour Housing Authority Tenants Assn. v. Housing Authority, 18 Conn. App. 393, 404 n. 10, 558 A.2d 1002 (1989). "[F]acts found but not averred cannot be made the basis for a recovery." (Citations omitted; internal quotation marks omitted.) Id.
Second, the plaintiffs seek a declaratory judgment as well as relief under General Statutes § 12-119. All interested parties have not been given notice that Public Act No. 95-283, § 8 and Public Act No. 96-218 are being challenged in this action. "General Statutes § 52-29 authorizes the Superior Court to adjudicate declaratory judgment actions and delegates to the judiciary the task of making rules to govern such actions. One of the prerequisites to a declaratory judgment is that `all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.' Practice Book § 390(d).' "Under [Practice Book § 390 (d),] all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of the process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies." ' . . . Benz v. Walker, 154 Conn. 74, 78, 221 A.2d 841 (1966)." (Emphasis omitted.) AIU Insurance Company v. Brown, 42 Conn. App. 363, 368, 679 A.2d 983 (1996). With respect to the claims of the plaintiffs and GTE relating to Public Act No. 94-4, notice by publication was given to all Norwalk taxpayers and certified letters were sent to the chief executive officers of the other 168 Connecticut municipalities. However, no order of notice was sought nor is there any evidence that notice was given to these persons with respect to any claim pertaining to Public Act No. 95-283, § 8 or Public Act No. 96-218. "Without compliance with § 390(d), the trial court lacks jurisdiction over the matter. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993)." Patriot General Insurance Co. v. Normandie, 41 Conn. App. 66, 67, 674 A.2d 861 (1996). For this reason, the court cannot consider the plaintiffs' arguments for declaratory relief with respect to Public Act No. 95-283, § 8 or Public Act No. 96-218. Scinto v. Stamm, 42 Conn. Sup. 144, 152, 605 A.2d 898 (1992), affirmed, 224 Conn. 524, 620 A.2d 99 (1993), cert. denied, U.S., 114 S.Ct. 587, 126 L.Ed.2d 484 (1993): see Walsh v. City of Bridgeport, 2 Conn. Sup. 88 (1935).
Judgment may enter for the defendants.
LEVIN, J.