MEMORANDUM OF DECISION ON MOTION TO DISMISS DATED APRIL 30, 2008 (#104.00)

HON. KEVIN TIERNEY.

The defendants filed this Motion to Dismiss, seeking to terminate this Declaratory Judgment action. The salient facts are:

On March 7, 2008 plaintiff, Fred DeCaro, III, commenced two separate lawsuits in relation to the sewer assessment for the new sewers constructed in the North Mianus section of the Town of Greenwich. The earliest docket number FST CV-08 4013478 S is entitled Vincent R. DeFina, et al v. Town of Greenwich and the Condemnation Commission of the Town of Greenwich. The DeFina lawsuit is a one-count complaint dated March 7, 2008. It is an appeal from levy of sewer assessments. The appeal was filed pursuant to Section 259 of the Greenwich Municipal Code. Paragraph 11 of that appeal claims that the method used to calculate the cost of construction of the North Mianus sewer project was "inaccurate, arbitrary, inequitable, unreasonable and illegal in the following respects." The appeal alleges specific calculation errors in paragraph 12 sub paragraphs A, B, C, D, E and F. Greenwich Municipal Code Section 259(a) states: "Any person aggrieved by the assessment of damages or benefits under the provision of this Article shall have the right to appeal to the Superior Court for Fairfield County . . . within thirty (30) days after filing of the assessment of damages or benefits as provided in this Article." There are 747 plaintiffs in the DeFina appeal and all of these plaintiffs are property owners in North Mianus Section of Greenwich. Mr. DeCaro is a plaintiff in the appeal from assessments, FST CV 08-4013478 S.

In the instant case, docket number FST CV 08-4013485 S, six of the North Mianus property owners have filed this Declaratory Judgment action in a one-count March 7, 2008 complaint entitled Fred DeCaro, III et al. v. Town of Greenwich and The Condemnation Commission of the Town of Greenwich. Mr. DeFina and Mr. DeCaro are two of the six named plaintiffs. The plaintiffs in this Declaratory Judgment action allege in paragraph 14: "The Plaintiffs seek a Declaratory Judgment of this Court ruling that the certification of the Cost of Construction made by the Comptroller and made by the Condemnation Commission late in 2007 was inaccurate and contains items of cost which should not be included in arriving at said Costs of Construction, and further that certain credits to said Costs of Construction were not applied arising from the following facts." What follows in paragraph 14 are subparagraphs A, B, C, D, E and F. These six subparagraphs of 14. A.-F. are identical to the same subparagraphs 12. A.-F. in docket number FST CV 08-4013478 S, the appeal from the assessments that was filed pursuant to Greenwich Municipal Code Section 259. The plaintiff's Claim for Relief in the DeCaro case states: "Plaintiffs claim a decree of this court declaring the rights of the parties and in particular: 1. declaring whether or not the Defendant, Town of Greenwich and the Condemnation Commission are justified and legally entitled to base assessments on the Plaintiffs' properties and on the properties of other owners in the North Mianus Sewer System arising from the Defendant's calculation of Cost of Construction. 2. declaring whether or not interest on unpaid assessments and installments shall accrue pending the determination of the issues raised in this action and/or in the Appeal of the Plaintiffs and other parties taken under Code § 259."

The defendants, Town of Greenwich and Condemnation Commission of the Town of Greenwich, filed this Motion to Dismiss dated April 30, 2008 (#104.00) along with a Memorandum of Law in support thereof (#105.00). The court will disregard pleadings #102.00 and #103.00, which appear to be duplicates of #104.00 and #105.00. The plaintiffs filed a Response to Defendants' Motion' to Dismiss dated May 16, 2008 (#106.00). The Motion to Dismiss was assigned to the undersigned who heard oral argument. Both parties waived the presentation of evidence.

Defendants claim three reasons in the Motion to Dismiss: (1) "The municipal actions complained of in the action for declaratory judgment are administrative or discretionary actions of public boards or officials preliminary to the assessment of benefits for sewer improvements by the Condemnation Commission on the plaintiffs' properties and there is no right of appeal from these preliminary actions"; (2) "The plaintiffs have as a remedy a right of appeal to the Superior Court from the assessment of benefits on their properties for the sewer improvements by the Condemnation Commission and have in fact purported to take such an appeal which is their exclusive remedy," and (3) "The Connecticut Supreme Court has held that the parallel state statute, Section 7-250, to the Town Charter Section 259 appeal provision is the exclusive remedy for claimed excessive sewer assessments and have dismissed actions for declaratory judgment accordingly. The court should therefore do the same in this case."

The defendants' Motion to Dismiss does not state which jurisdictional grounds of P.B. § 10-31(a) are being relied on. The defendants' Memorandum of Law in Support of Motion to Dismiss claims "jurisdictional grounds." The court cannot determine from the defendants' Motion to Dismiss whether the Town claims "lack of jurisdiction over the subject matter" or "lack of jurisdiction over the person" or both. P.B. § 10-31(a)(1) and (2).

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Cox v. Aiken, 278 Conn. 204, 210-11 (2006). "In ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33 (2003). "In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79 (2006).

The court will discuss each of the three reasons mentioned above.

In a routine sewer assessment appeal the property owner alleges that their individual assessments are incorrect alleging errors by the condemning authority in performing the calculations on individual properties relating to such items as the square footage of the buildings and improvements on the property, the square footage of land, the street frontage, and/or the ratio of assessments to the other benefited assessments. Johnson v. Sewer Authority, 21 Conn.App. 814, 815 (1990); Kearney v. Public Utilities Commission, City of Meriden, Superior Court, judicial district of New Haven at Meriden, Docket Number CV 98-0264513 (February 5, 2002, Winslow, J.). The plaintiffs' burden in the routine sewer assessment appeal is to present evidence of the market value of the benefited property with and without the sewer access. Tower Business Park No. 1 Partnership v. Water Pollution Control Authority, CT Page 7205 213 Conn. 212, 218 (1989). The routine sewer assessment appeal usually does not challenge the cost of the construction of the sewer project. Anderson v. Litchfield, 4 Conn.App. 24, 27 (1985). In the DeFina case, FST CV08 4013478 S, the plaintiffs have specifically waived any right of appeal from the assessment on individual properties. The DeFina plaintiff's admit: "In this case the appeal of each and every Plaintiff is identical, it is not an appeal from the assessment on the individual properties, it is an appeal based on the allegations that the Defendants violated ARTICLE 16 of the Greenwich Municipal Code by failing to carry out the mandates of that Code, the failures particularly set forth in Paragraph 12. A-F. As pleaded in Paragraph 12, this Appeal arises out of the same transaction and involves a common question of law and fact touching upon the calculations of the Comptroller of the Town of Greenwich and/or the Condemnation Commission of the Cost of Construction of the Sewers installed in the benefited area in which the plaintiffs reside." FST CV 08-4013478 S Objections to Defendants' Request to Revise (#104.00).

In determining a sewer assessment, the cost of construction is one of the mathematical components. The plaintiffs in DeFina have challenged the calculations of the municipal sewer project and they have rightly appealed from that assessment pursuant to Connecticut Municipal Code Section 259. Code Section 259 does not indicate the procedures for an appeal and makes no direct reference to costs of construction. Therefore, the plaintiffs have filed this action for Declaratory Judgment to make sure that the costs of sewer construction are properly reviewed by the Superior Court. The Town of Greenwich is correct, that there is no appeal from any determinations made by the Department of Public Works or the ascertainment of the costs until it gets to the Condemnation Commission. After the Condemnation Commission has performed its mathematical calculations and assessed each individual property, then the plaintiffs have an appellate right to the Superior Court.

The entirety of the sewer construction project as well as the cost of construction is now properly before the court even though most routine sewer appeals deal only with a percentage assessment as opposed to the cost of construction. The Declaratory Judgment is properly framed. The Motion to Dismiss as to the first reason must be denied.

The defendants are claiming that the DeCaro plaintiffs have a right of an appeal under Greenwich Municipal Code Section 259 and they have exercised that right of an appeal in the DeFina case. Cases have permitted an appeal and a Declaratory Judgment both to continue.

Our Supreme Court has permitted the litigation of sewer assessment benefits by way of a declaratory judgment action. Cyr v. Coventry, 216 Conn. 436, 440 (1990). In Cyr, the Water Pollution Control Authority (WPCA) levied a sewer assessment against individual property owners after the construction of the sewer was completed in accordance with Gen. Stat. § 7-249. Despite the fact that Gen. Stat. § 7-250 granted a right of appeal to the Superior Court, the plaintiff's property owners in the benefited area instituted a declaratory judgment lawsuit claiming that the operation of the referendum statute and the assessment of benefits imposed by the WPCA pursuant to Gen. Stat. § 7-249 were unconstitutional. The trial court, Appellate Court and the Supreme Court found otherwise holding that the referendum statute was constitutional and the assessment of benefits were valid. By making no comment on the impropriety in the use of a declaratory judgment to test those issues, the Supreme Court implicitly approved a declaratory judgment as a method of hearing more complicated assessment of benefit cases. Highgate Condominium Association v. Watertown Fire District, 210 Conn, 6, 16 (1989).

A pending statutory assessment appeal did not prevent the court from considering at the same time a declaratory judgment in Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 577-79 (1998). A declaratory judgment claim must rest on some cause of action that would be cognizable in a non-declaratory judgment lawsuit. Id. 578. A declaratory judgment claim provides a more adequate and flexible remedy in cases where jurisdiction already exists. Wilson v. Kelley, 224 Conn. 110, 116 (1992).

Trial courts have held that it is permissible to file a separate action in a municipal assessment situation seeking a declaratory judgment. Knapp Cavanaugh v. Newtown Water Pollution Control Authority, Superior Court, judicial district of Danbury, Docket Number CV 98-0331288 (September 4, 1998, Radcliffe); Bertelson v. City of Norwich, Superior Court, judicial district of New London at Norwich, Docket Number 119199 (October 5, 2000, Corradino, J.); Middlebury Partnership v. Middlebury Water Pollution Control Authority, Superior Court, judicial district of Waterbury, Docket Number 112978 (May 28, 1993, Sullivan, J.); Messina v. Bridgeport Water Pollution Control Authority, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 90-0277269S (May 22, 1991, Katz, J.); McCart v. City of Shelton, Superior Court, judicial district of Ansonia-Milford at Milford, Docket Number CV 02-0077572 S (August 12, 2002, Sequino, J.), (73 property owners permitted to appeal united in one complaint if they arise out of common question of law or fact. Failing that allegation the defendant's Motion to Strike was granted.)

The plaintiffs have properly used a declaratory judgment in the manner authorized by our rules of procedure. P.B. § 17-54. They have followed the proper conditions and procedures. P.B. §§ 17-55, 17-56, Gen. Stat. § 52-29.

The court finds that the fact that the pending appeal under Greenwich Municipal Code Section 259 does not prevent similar issues from being addressed by the court in a separate Declaratory Judgment action. The Motion to Dismiss as to the second reason must be denied.

The Town claims that Gen. Stat. § 7-250 is parallel to the Greenwich Town Charter Section 259 and that an appeal under Gen. Stat. § 7-250 is the exclusive remedy challenging an assessment by a water pollution authority. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 690 (1985); Vaill v. Sewer Commission, 168 Conn. 514, 519 (1975).

The Zizka case challenged the formula used by a Water Pollution Control Authority for sewer assessments. In this context the court held that Gen. Stat. § 7-250 was the exclusive remedy rejecting the plaintiffs' use of the Federal Civil Rights Act, 42 U.S.C. § 1983. The DeCaro appeal does not involve Gen. Stat. § 7-250 and does not include the formula for individual properties.

In Vaill, the sewer commission of the Town of Salisbury imposed an assessment on the plaintiff's property pursuant to Gen. Stat. § 7-249. The lawsuit was filed one day short of a year from the date of the assessment. The Town moved to terminate the lawsuit since Gen. Stat. § 7-250 required the filing of an appeal within twenty-one days of the assessment. The plaintiff objected stating that the lawsuit was not an appeal but a suit seeking equitable relief from a sewer assessment claimed to be discriminatory, manifestly excessive and promulgated in disregard to the statutes for assessing sewer benefits resulting in a taking of the plaintiff's property without due process of law, The plaintiff pointed to the dual remedies for real estate tax assessments (non-sewer) under Gen. Stat. §§ 12-118 and 12-119. The court found that an assessment for sewer benefits is not ordinarily included in the term "taxes."

The Vaill court found that Gen. Stat. § 7-250 offered all the relief the plaintiff was requesting and found that the trial court was correct in abating the plaintiffs' lawsuit for failure to commence it within the statutory required twenty-one days. The court concluded: "It is the general rule, with reference to special assessments of benefits, that an assessment legally made cannot be attacked in a collateral proceeding but requires pursuit of the statutory remedy for review, unless the assessment is void." Id. 518-19; Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33 (1963).

The plaintiffs are not utilizing Gen. Stat. § 7-250, which applies to a water pollution control authority. The plaintiffs have appealed in one action under the Greenwich Municipal Code Section 259 and at the same time litigated this action, a declaratory judgment. In effect the plaintiffs are claiming that the assessment or a portion of the assessment is void. The general rule of Vaill and Zizka is not applicable under the facts of this case since the validity of the assessment itself is being challenged. Vecchio v. Sewer Authority, 176 Conn. 497, 501-02 (1979).

Gen. Stat. § 7-250 contains appellate rights for those impacted by the actions of a water pollution control authority. There is no evidence that the Town of Greenwich has such an authority. Gen. Stat. § 7-250 is contained within Chapter 103 of the General Statutes; Gen. Stat. § 7-245 through 7-273a. These statutes cover a broad range of procedures, none of which appear in Greenwich Municipal Code Section 259 or are applicable to the issues in this case. In addition the Connecticut General Assembly recently adapted precise appellate procedures for sewer assessment appeals parallel to those in existence for zoning appeals. Gen. Stat. § 8-8, P.A. 03-177. Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 278 (2009). None of these procedures have been adopted by the Greenwich Municipal Code. "Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful." Caldrello v. Planning Board, 193 Conn. 387, 391 (1984); Mackall v. Planning and Zoning Commission of the Town of Greenwich, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 98-0166185 S (August 23, 1999, Tobin, J.).

There is no case authority that Greenwich Municipal Code Section 259 is the exclusive remedy for all sewer assessment issues. The language of Greenwich Municipal Code Section 259 contains no such limitation. The plaintiffs are not challenging the formula used in the assessment. The plaintiffs are challenging the underlying procedures used to determine the cost of construction. The cases citing Gen. Stat. § 7-250 as the exclusive remedy are not applicable to this lawsuit where the underlying cost of construction of the sewer project itself is at issue. A declaratory judgment is an appropriate cause of action to address those issues. The Motion to Dismiss as to the third reason must be denied.

The Motion to Dismiss is denied in its entirety.