Opinion
No. FST CV 09 4016614S
February 11, 2010
MEMORANDUM OF DECISION
MOTION TO STRIKE # 105 BACKGROUND
The plaintiff, appellant, The Country Club of Darien, Inc., (Club) has filed an appeal from the Board of Assessment Appeals for property located at 300 Mansfield Avenue, Darien, Connecticut. The plaintiff has named as defendants the Town of Darien and the Board of Assessment Appeals of the Town of Darien. The complaint contains three counts alleging in count one pursuant to General Statutes § 12-117a that the valuation is grossly excessive, disproportionate and unlawful; count two alleges that the defendants unlawfully and improperly changed the basis of the land's valuation and no longer considered it as recreational open space; and count three alleges a claim pursuant to equitable estoppel. The defendants have filed a motion to strike counts two and three of the appeal contending that they do not set forth legally sufficient claims based upon the Supreme Court decision in Aspetuck Country Club, Inc. v. Weston, 292 Conn. 817, 975 A.2d 1241 (2009). The defendants submitted memorandum in support of the motion dated August 12, 2009 and an amended motion and memorandum dated September 17, 2009. The plaintiff has submitted memoranda in opposition dated September 2 and September 21, 2009. The parties appeared at short calendar and argued the motion on October 13, 2009.
LEGAL DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1977). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
The property at issue in this appeal consists of a Clubhouse, various accessory structures and improvements and an eighteen-hole golf course. The property is approximately 139.051 acres of land. Since approximately 1986, the property has been valued based on its use as recreational open space without regard to neighborhood land use of a more intensive nature. In October 2008, 2009, the Tax Assessor of the Town of Darien assessed the property and did not base the value upon its current use as recreational space without regard to neighborhood land use of a more intensive nature which had been the assessed value for the prior twenty years. The plaintiff claims that this change of classification was unlawful and improper. The court in Aspetuck Valley Country Club, Inc. v. Weston, 292 Conn. 817, 975 A.2d 1241 (2009) recently held that a designation of land as open space on the defendant Town's plan of development did not render the land eligible under § 12-107e for classification as open space for tax assessment purposes where the town's legislative body never approved the designation by a majority vote. In Aspetuck, the property had been used as a golf course for over forty years and had been designated as open space for thirty-five years. The defendants argue that the ruling in Aspetuck Valley Country Club, Inc. v. Weston, supra, supports the position that count two does not set forth a legally sufficient claim.
Classification and declassification of open space land are accomplished pursuant to §§ 12-107e and 12-504h. General Statutes § 12-107e states in relevant part: "(a) the planning commission of any municipality in preparing a plan of conservation and development for such municipality may designate upon such plan areas which it recommends for preservation as areas of open space land, provided such designation is approved by a majority vote of the legislative body of such municipality. Land included in any area so designated upon such plan as finally adopted may be classified as open space land for purposes of property taxation or payments in lieu thereof if there has been no change in the use of such area which has adversely affected its essential character as an area of open space land between the date of the adoption of such plan and the date of such classification . . . (b) An owner of land included in any area designated as open space land upon any plan as finally adopted may apply for its classification as open space land on any grand list of a municipality by filing a written application for such classification with the assessor thereof not earlier than thirty days before or later than thirty days after the assessment date, provided in a year in which a revaluation of all real property in accordance with section 12-62 becomes effective such application may be filed not later than ninety days after such assessment date. The assessor shall determine whether there has been any change in the area designated as an area of open space land upon the plan of development which adversely affects its essential character as an area of open space land and, if the assessor determines that there has been no such change, said assessor shall classify such land as open space land and include it as such on the grand list . . ."
Connecticut General Statutes § 12-504h was enacted to eliminate the necessity of applying annually for the classification of property as open space land. It provides that: "[a]ny land which has been classified by the record owner . . . open space land pursuant to [§]12-107e shall remain so classified without the filing of any new application subsequent to such classification . . . until either of the following shall occur: (1) the use of such land is changed to a use other than that described in the application for the existing classification by said record owner, or (2) such land is sold by said record owner."
"Tellingly, neither § 12-107e nor § 12-504h directs an assessor, explicitly or implicitly, to consider the planned or potential use of property when determining whether it qualifies as open space, but instead, both statutes direct an assessor simply to consider the property's use. As a rule, terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . Moreover, [i]t is a principle of statutory construction that a court must construe a statute as written . . . and not, through interpretation, supply omitted language . . ." (Citations omitted; internal quotation marks omitted.) Griswold Airport, Inc. v. Madison, CT Page 4874 289 Conn. 723, 733-34, 961 A.2d 338 (2008).
These statutes which govern classification and reclassification of property as open space simply require assessors to determine whether the property at issue is being used in a way that entitles it to a favorable tax treatment pursuant to General Statutes § 12-63(a). Griswold Airport, Inc. v. Madison, supra, 289 Conn. 734.
In Aspetuck Valley Country Club, Inc. v. Weston, supra, 292 Conn. 817, the Supreme Court discussed the qualifications for open space designations under § 12-107e. The facts in that case while not identical are very similar to the instant action. There the plaintiff owned property, which for approximately forty years had been used as a private golf course, and as recently as 2000 was labeled a "private recreational area of open character." Id., 820. The property was designated as open space on the plan of development in 1969. In 2004, the plaintiff for the first time applied for an open space designation for tax assessment purposes, pursuant to § 12-107e(a) and (b). Id. This application was denied in 2005, because the legislative body had not approved this designation by a majority vote. Id., 821. The plaintiff appealed from that decision to the trial court, which rendered judgment for the defendant, holding that any designation of open space on the plan of development was merely advisory, and a majority vote was required, Id., 821-22.
On appeal, the court affirmed the judgment of the trial court, on the issues "whether the trial court improperly: (1) determined that, because the open space designation of the plaintiff's property in the defendant's plan of conservation and development had never been approved by a majority vote of the town's legislative body, the property was therefore ineligible for open space classification for tax assessment purposes to § 12-107e(a) and (b); and (2) deprived the plaintiff of its vested right to an open space classification for tax assessment purposes under § 12-107e(b)." Id., 820.
Discussing the meaning of the statute, the court concluded that "the legislative history of § 12-107e is clear that the legislature intended that property designated as open space land in a municipality's plan of development be approved by a majority of the municipality's legislative body before it may be classified as open space land for tax assessment purposes." Id., 828-29. Moreover, the court reasoned the "the more reasonable interpretation of § 12-107e . . . is consistent with this court's long recognition of the distinction between open space designation and open space classification . . . [I]t is apparent that the initial designation of areas of open space land by a local planning commission is to be distinguished from the classification of such land by the town assessor." (Internal quotation marks omitted.) Id., 830. Affirming the trial court's decision that majority legislative approval was required, the court further concluded that "the mere designation of the plaintiff's property as open space land in the plan of development does not make the plaintiff's property eligible for open space classification for tax purposes pursuant to § 12-107e(b) . . ." Id., 832.
"Senator Audrey Beck, a proponent of the legislation in the Senate and cochair of the subcommittee on business taxation of the finance, revenue and bonding committee, explained that `[t]he purpose of the bill is to require the legislative body of a municipality to approve any designation by the planning commission of that municipality's land in the municipality as open space land for property tax purposes . . .'" 22 S.Proc., Pt. 15, 1979 Sess., p. 5064." Aspetuek Valley Country Club, Inc. v. Weston, supra, 292 Conn. 828. "In addition to Senator's Beck's statement, the proposed committee bill that ultimately was enacted as P.A. 79-513 contained the following statement of purpose: `To require that the legislative body of a municipality approve the classification of land as open space land for property tax purposes.'"
In the present case, the plaintiff alleges that the tax assessor had valued the subject property as recreational open space from 1986 until the year prior to the commencement of this action, causing the plaintiff to believe that the property was properly classified as open space. The majority legislative approval requirement of § 12-107e(a) was imposed in 1979, seven years prior to the first alleged classification of open space. See Public Acts 1979, No. 79-513, § 3 ( P.A. 79-513); see Aspetuck Valley Country Club, Inc. v. Weston, supra., 292 Conn. 821. Section 12-504h only applies once the property has been classified as open space, and the initial classification is subject to § 12-107e. Accordingly, if the property has not previously been classified as open space, then the requirements of § 12-107e must be fulfilled, which includes the requirement of majority legislative approval subsequent to 1979. Further, Aspetuck concluded that to bypass the requirements of § 12-107e, the open space classification for tax assessment purposes must be an official one, and not merely a designation on a development plan. Aspetuck Valley Country Club, Inc. v. Weston, supra, 292 Conn. 832.
In accordance with the allegations in count two, the tax assessor has designated the property as open space for purposes of taxation. However, there are no allegations that the property has ever been classified as such within the plan of development or that more importantly the majority of the legislative body has ever approved such property as open space pursuant to General Statutes § 12-107e. Additionally, the complaint indicates that the present owners of the property received a warranty deed in about 1986 when the property was first assessed by the tax assessor as open space but there are no allegations within the complaint that would indicate that approval of the majority of the legislative body was requested particularly if the ownership was new at the time. Such a lapse would also confirm that the property had not been properly classified as open space.
Although there are differences in the factual background of Aspetuck and the present case, the cases are similar in that neither of the cases had an official application filed to fulfill the requirement of the majority legislative approval. In Aspetuck, however, there was no mention of past treatment of the property by a tax assessor, and the case only addressed that the first time the plaintiff had applied for the classification, which was denied for failure to fulfill the requirements, was in 2004. Although Aspetuck held a designation on a development plan to be an inadequate classification under the statute, the court did not address whether any designations of the property received in ways other than satisfying all the statutory requirements, would be sufficient. Accordingly, Aspetuck does not directly address the factual scenario in the present case, and fails to address whether a tax assessor's valuation is sufficient evidence of a valid classification.
Since § 12-107e on its face, however, provides that in order for the tax assessor to value the property as open space, it must be classified as open space, which in turn is accomplished by receiving majority legislative approval for the designation. It would appear to be contrary to the statute, to imply a classification from the actions of a tax assessor. Accordingly, it appears to be contrary to the statute to allow the plaintiff to bypass the requirements of § 12-107e, merely because the property has in the past been valued as open space, particularly as the valuation as open space began after the majority legislative approval requirement became part of the statute and with what appears to be new owners of the property.
The court in Aspetuck, acknowledges that the Connecticut Supreme Court, in Griswold Airport, Inc. v. Madison, supra, 289 Conn. 732, "recently recognized the additional requirement of approval of a majority of the municipality's legislative body." Aspetuck Valley Country Club, Inc. v. Weston, supra, 292 Conn. 831-32.
Therefore, the motion to strike count two of the complaint is granted.
The plaintiff contends in count three that the doctrine of equitable estoppel applies to this action. The defendant contends that such an action is improper because the tax assessor did not act within the scope of his authority. It is well established that a municipality cannot generally be estopped by the unauthorized acts of its officers. Dupuis v. Submarine Base Credit Union, 170 Conn. 344, 365 A.2d 1093 (1976). Count three states that the "Assessor of the Town of Darien did or said something calculated or intended to induce the Club to believe that its land had been properly classified as open space and to act on that belief." They also allege that even with due diligence the club was unable to "ascertain the truth with regard to the basis of the Assessor's valuation of its land and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge . . ." and that, "the Club would be subjected to substantial losses if the Town of Darien and/or its Assessor were permitted to negate the acts or statements of the Assessor which valued the Club's land on the basis of its use as recreational open space without regard to neighborhood land use of a more intensive nature." These allegations leave open the questions as to whether the actions by the tax assessor induced the defendants in some manner and were of such a nature that there are substantial losses as alleged in count three. The court in Kimberly-Clark Corporation v. Dubro, Commissioner of Revenue Services, 204 Conn. 137, 527 A.2d 679 (1987) permitted an action for equitable estoppel when there was an allegation of substantial losses and there had been certain representations by the representatives of the state in determining tax consequences. The court states: "[A] s a general rule, estoppel may not be invoked against a public agency in the exercise of its governmental functions . . . Nevertheless, we noted an exception to this general rule is made where the party claiming estoppel would be subjected to a substantial loss if the public agency were permitted to negate the acts of its agents . . . We perceive no reason why this limited exception should not apply in an appropriate case to estop the department of revenue services, especially in view of its statutory authority to render declaratory rulings." Id., 146-47. These claims also incorporate the allegation that the enforcement of such a change in the classification and valuation may be inequitable or oppressive.
Therefore, the motion to strike count three is denied.