Opinion
UWYCV146025421
10-11-2016
Brass City Residences, Inc. v. City of Waterbury
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
On October 28, 2014, this action was filed in one count against the City of Waterbury pursuant to C.G.S. § 12-119. The plaintiff, Brass City Residences, Inc. filed an Amended Complaint dated January 24, 2016 in two counts alleging the property taxes were manifestly excessive (Count One) and that the assessor ignored the provisions of C.G.S. § 8-58 which exempted the property and thus the valuation of the property was excessive in violation of C.G.S. § 12-119 (Count Two). The defendant filed an answer and special defenses that the claims are barred by the one-year statute of limitations.
The plaintiff purchased the property at 52 Burton Street, Waterbury Connecticut on or about February 25, 2014. Prior to the purchase by the plaintiff, the property was owned by the City of Waterbury. The property was at the time of purchase exempt from taxation in accordance with C.G.S. § 12-81(4) as municipal property. The property had been assessed in the October 1, 2013 Grand List in the amount of $102, 610. On June 9, 2014, the City of Waterbury adjusted the property from exempt to taxable as of the acquisition date for the 2013 Grand List. The notice of the taxation was provided to the plaintiff on June 9, 2014. The plaintiff paid the first installment of the 2013 Grand List taxes on August 1, 2014.
On April 29, 2016, the defendant, City of Waterbury, filed a motion for summary judgment in which they argue that this action was filed beyond the statutory time permitted pursuant to C.G.S. § 12-119. The plaintiff filed a memorandum in opposition to the motion dated June 16, 2016. The parties argued the motion at short calendar on June 27, 2016. The court requested additional information in support of the positions of each party. The plaintiff filed a supplemental memorandum on July 18, 2016 and the defendant filed a supplemental memorandum dated July 19, 2016.
II. FACTS
In February 2014, the plaintiff purchased a parcel located at 52 Burton Street in the City of Waterbury. Prior to the purchase, the property was owned by the City of Waterbury and was tax-exempt in accordance with C.G.S. § 12-81(4) as municipal property used for a public purpose. During the time that the property was owned by the City it was listed on the Grand List of the City. However, it was also noted as an exempt property pursuant to the statues and thus they did not pay the taxes based upon the property evaluation. After the purchase of the property by the plaintiff, the City removed the property as tax-exempt under C.G.S. § 12-81(4). The plaintiff argues that at the time of purchase it anticipated utilizing the property for low income housing. After the purchase, the plaintiff received a tax bill based upon the assessment on the 2013 Grand List in conformity with § 12-81(4).
The plaintiff took no action to challenge the prorated assessment until October 28, 2014 when it filed a complaint with this court challenging the assessment as excessive. Thereafter, the plaintiff amended the complaint to contend that the assessment of the property was excessive pursuant to C.G.S. § 12-119 and should have been based upon the use of the property as low or moderate income housing and thus the property was assessed contrary to C.G.S. § 8-215. The plaintiff contends that at some time after filing this action, it has transferred the property to the Waterbury Housing Authority and it is subject to C.G.S. § 8-58. The plaintiff contends that the assessor did not properly review the property in accordance with this new use. Once again, however the plaintiff has confused the assessment with an exemption which are different concerns and applied differently. Both counts of the Amended Complaint are claims of excessive assessment pursuant to C.G.S. § 12-119.
The property was transferred on February 19, 2015 which is beyond the deadline date of October 1, 2014 that is considered in this action. (Exhibit A, Affidavit of Dietsch, Par. 11.)
The defendant contends that the statute of limitations for these actions is one year from the date of Grand List assessment of October 1, 2013. The plaintiff alleges that the one-year statute runs from the date " last evaluated" pursuant to the statute which it argues extends the time for filing the appeal of the assessment beyond the October 1, 2013 date. The plaintiff contends the last evaluated date does not begin on the October 1, 2013 Grand List assessment date because of the purchase by the plaintiff to re-use the property. The plaintiff does not identify a specific date for " last evaluated."
II. DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008)
" Summary judgment may be granted where the claim is barred by the statute of limitations . . ." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). Generally, " in the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . ." Id., 321.
The defendant argues that the plaintiff failed to bring this action challenging the assessment for the property at 52 Burton Street within the one-year statutory time frame. In particular, the defendant cites to C.G.S. § 12-119 as requiring the appeal to be brought within one year of the assessment date. The defendant provides an affidavit of the City of Waterbury assessor, Mr. David Dietsch, which indicates that the assessment date for the property for the 2013 Grand List is October 1, 2013. Therefore, in accordance with this assessment the defendant contends that the one-year period began on October 1, 2013 and thus, the one-year statute expired on October 1, 2014. The plaintiff argues that the language of the statute upon which the defendant relies requires that the court interpret differently what is meant by " last evaluated." C.G.S. § 12-119 states that, " the owner . . . or any lessee . . . whose lease has been recorded . . . who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the Superior Court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . ." The plaintiff argues that the term " last evaluated" should be interpreted to be the date when the property was changed from tax exempt to taxable and thus the filing of the action on October 28, 2014 satisfies the one-year statutory limitation. Even though they argue that October 1, 2013 is not the correct date for last evaluated, the plaintiff fails to provide a date or new assessment rate in accordance with their interpretation.
The defendant argues that the " last evaluated" language can have no other meaning other than the annual assessment date. Prior to this action the courts have interpreted the time period as controlled by the assessment date.
The records of the Waterbury Tax Assessor show that prior to February 28, 2014 the property located at 52 Burton Street was exempted from taxation pursuant to C.G.S. § 12-81. (Affidavit of David Dietsch.) The exemption which is recognized based upon the type of use of the property and the allowance pursuant to the statute does not amount to or contribute to the determination of the assessment. The assessment is clearly the value of the property and the formula to assess a taxable amount for the property. In determining the amount of assessment the City does not apply the various statutory exemptions. After the assessment of property within the City there is a claim for exemption from taxation based upon the multitude of uses, ownership or special circumstances as noted in the statutes. There is no testimony or evidence that the assessed amount for this property was evaluated or changed as a result of the use. There is no evidence or testimony that the City of Waterbury has changed the value established as $102, 610 in any way since the Grand List of October 2013.
The defendant refers to a number of cases which have found appeals untimely. In City of Norwich v. Lebanon, 193 Conn. 342, 477 A.2d 115 (1984), the plaintiff appealed from a number of assessments for the years 1974 through 1979. In each year, the plaintiff's property was assessed on October 1. For each of the years assessed there was no appeal or challenge nor was there a change to the status or the assessment during each of the years. The facts in Norwich do not include a change in the status but the action clearly indicates that the plaintiff simply did not appeal the assessment either to the board of tax review or to the Superior Court. The failure to appeal within the statutory period precluded the challenge.
The defendant contends that the plaintiff in the instant action did not appeal the 2013 Assessment but on October 1 the property was listed as exempt even though there was an assessed value recorded for the property. The defendant contends that because the assessment placed on the exempt property did not change after the tax exempt status was changed, the property has a last evaluation based upon the pre-exempt assessment. The question becomes whether the October 1, 2013 assessment can be defined as the last evaluated tax. The assessed value of the property in the tax records is not based on the status of the property as exempt and therefore is based upon the October 1, 2013 assessed value.
When the property was purchased by the plaintiff the status of the property as tax-exempt changed and C.G.S. Section 12-81a was applied. This statute states in relevant part: " (a) The purchaser, his heirs, successors or assigns of any property which, on the assessment date prior to such sale, was tax-exempt to any extent in accordance with the provisions of section 12-81 or with respect to which taxes for the current tax year were abated to any extent in accordance with provisions of chapter 204, shall be liable for the payment of municipal taxes on that portion of such property which was so exempt or with respect to which taxes were so abated, from the date on which the conveyance is placed on the land records of the town in which such property is situated, as provided in subsection (b) of this section, including a prorated share of taxes for the tax year in which the transfer took place. Such liability shall attach to the property as a charge thereon." On June 9, 2014, the City of Waterbury Assessor's Office mailed notice to the plaintiff setting forth the change in status from exempt to taxable and indicating the assessed value with the prorated portion of the assessment that would be taxable to the plaintiff. (Affidavit of Dietsch, Par. 10.) The plaintiff did not challenge the assessment and in August paid the assessed tax. Additionally, plaintiff has not submitted any evidence of a claim for exemption prior to the present legal action.
In accordance with C.G.S. § 12-81a, the purchaser is liable for payment of the municipal taxes on that portion of the property which was exempt from the date on which the conveyance is placed on the land records. If the purchaser challenges the assessment, the statute provides a method and time for the challenge. It states: " (d) The purchaser may appeal the doings of the assessor to the board of assessment appeals and the Superior Court as otherwise provided in this chapter, provided such appeal shall be extended in time to the next succeeding board of assessment appeals, if the statutory period for the meeting of such board has passed." This statute offers a very clear picture and guidance in addressing the plaintiff's novel interpretation of " last evaluated." The extension of the appeal to the board of assessment appeals noted in this section and the referral to the appeal " as otherwise provided" to the Superior Court distinguishes the allowance of additional time for the assessment appeals as compared to the plaintiff's argument for additional time for the appeal to the Superior Court. Obviously, the statute recognizes that the change of the exempt status could have an impact upon the appeal to the assessment board which has a very limited time for appeals and review of the challenged assessment. A new purchaser is thus allowed a specific time frame to bring an appeal after the purchase or change in status. However, the language of this statute adopts the appeal period as noted in § 12-119 for the Superior Court.
Both counts are based upon C.G.S. § 12-119 which refers to the monetary assessed value to the property. The statute does not include as part of the last evaluated, consideration of the status of the property in accordance with the many exempt uses in C.G.S. § 12-81 or other similar statutes that address use or status of the taxpayer. Unless the City of Waterbury changes the assessed value of the property during the Grand List year because it was improperly valued for any number of reasons, there is no other date or configuration for last evaluated figure and value other than October 1, 2013 valuation. The plaintiff reads the terms of the statute to include a last evaluated to be interpreted with the inclusion of exempt status of the property. Such an evaluation method has not been recognized. There is nothing in the affidavit of the Assessor that recognizes any basis for a change in assessed value of the property at 52 Burton Street. The pre-purchase value and the after purchase value were the same for assessment purposes. Thus, there is no other assessed value date other than October 1, 2013.
The motion for summary judgment is granted because the only time frame or assessment for the property at issue was October 1, 2013 and the one-year period for appeal would run on October 1, 2014. The filing of the appeal on October 28, 2014 was beyond the time set by the statutory period permitted by C.G.S. § 12-119.
THE COURT
Brazzel-Massaro, J.