Opinion
No. CV 01 0076261 S
January 12, 2006
MEMORANDUM OF DECISION
I. Statement of Appeal
The plaintiffs, James E. Wysocki (Wysocki) and Old Lot No. 30, LLC (Old Lot), appeal from a decision by the board of assessment appeals (the board) of the defendant, town of Ellington, claiming that the valuation of the plaintiffs' properties was "manifestly excessive and could not have been arrived at except by disregarding the statutes for determining the valuation of such property." The board acted pursuant to § 12-111 of the General Statutes. The plaintiffs appeal pursuant to § 12-119 of the General Statutes.
Section 12-111 provides the method for a taxpayer to appeal his property taxes to the local board of assessment appeals.
II. Procedural History
The board's decision reevaluating the plaintiffs' property was mailed on May 2, 2001. (Return of Record [ROR], Item 33.) On July 2, 2001, the plaintiffs served the defendant by leaving the appeals papers with Ellington's town clerk. (Marshal's Return.) The appeals were filed with the clerk of the Superior Court on July 6, 2001, and the amended appeals were filed on August 31, 2001, with copies mailed to the defendant's attorney on August 29, 2001. The defendant filed an answer to both cases on July 8, 2003, and filed a return of record on August 18, 2004. Thereafter, the parties filed their briefs and the appeals were consolidated and scheduled before the court on September 26, 2005.
Subsequently, the board's chairman wrote a letter which was mailed on June 26, 2001, to the plaintiffs. (ROR, Item 34.) The plaintiffs contend this letter was also a "[d]ecision" of the board. (Wysocki Brief, p. 6, Old Lot Brief, p. 6.) For purposes of this appeal, the decision which was mailed on May 2, 2001, will be considered the relevant decision.
Because Wysocki is the sole owner and managing member of Old Lot and the cases entitled Wysocki v. Ellington and Old Lot No. 30, LLC v. Ellington involved the transfer of property between Wysocki and Old Lot, they were heard together by this court. This memorandum of decision shall constitute this court's decision in both of them.
III. Facts
A review of the record reveals the following facts. The plaintiff, Wysocki, owns four parcels of land in Ellington; (ROR, Item 1; ROR, Item 2; ROR, Item 4; ROR, Item 8); for which he applied to the town assessor for classification as forest land by that office on August 26, 1991. (ROR, Item 5.) The parcels were granted forest land classification by the division of forestry per state forester certificate number 9039 issued on September 5, 1991. (ROR, Item 6.) Thereafter, Wysocki contacted the town to determine what effect the transfer of his 13.63-acre parcel of land to his limited liability company, Old Lot, which was formed on September 28, 1999, would have on his original application. (ROR, Item 9.) In correspondence dated January 12, 2000, Frances M. Keenan, the assessor for the town of Ellington, indicated to Wysocki that "[t]he transfer of [parcel 189-004-0000] to [his] LLC will have no adverse affect [sic] on [his] original application providing [he was] the sole [owner] of the LLC. The original application [would] remain intact with no penalties or reapplication required." (ROR, Item 10.) Wysocki, however, had already transferred this parcel to Old Lot on July 20, 1999, but waited to record the conveyance until January 12, 2000, at which time he paid no conveyance tax due to a claimed exemption from the tax under General Statutes § 12-498. (ROR, Item 13.)
Section 12-498 lists the various transactions which are exempt from a requirement that a conveyance tax on real property be paid under Connecticut General Statutes § 12-494. The exemption claimed in this case was that it was a "[transfer] or [conveyance] to effectuate a mere change of identity or form of ownership or organization, where there is no change in beneficial ownership." General Statutes § 12-498(a)(17).
On January 12, 2000, Wysocki filed an application to the tax assessor to continue the forest land designation of the 13.63-acre parcel of land known as tract number 189-004-0000, which had been designated as such in state forester certificate number 9039, dated September 5, 1991. (ROR, Item 11.) This application indicated that the owner is "Old Lot No. 30 LLC" and referenced state forester certificate number 9039, the document in which the entire four parcels were given forest land designation. (ROR, Item 11.) It was approved by the tax assessor on January 12, 2000. (ROR, Item 11.) On January 31, 2000, Wysocki and the town's tax assessor signed an amended application to the department of environmental protection, division of forestry, to designate the conveyed parcel as forest land. (ROR, Item 12.) The application requested that the forestry division amend existing certificate number 9039 to indicate a change in ownership for the 13.63 acres from Wysocki to the current owner of record as Old Lot. (ROR, Item 12.) On February 22, 2000, the division of forestry informed Wysocki, by letter, that in order for land to be designated as forest land it must be at least twenty-five acres in area pursuant to General Statutes § 12-107b(b) and, separately, neither Wysocki nor Old Lot owned the requisite amount of land. (ROR, Item 15.) The letter also indicated that certificate number 9039 would be cancelled on April 25, 2000, due to the change in ownership, unless documentation was provided to prove that the cancellation was not warranted. (ROR, Item 15.) The state forester cancelled the forest land designation on May 1, 2000. (ROR, Item 6.) Subsequently, the tax assessor issued a certificate of declassification of the land classified as forest land, which was recorded on October 2, 2000. (ROR, Item 16.) As stated in that certificate, the parcels were "declassified by reason of Certificate #9039 — State of Connecticut, and conveyance tax, if applicable, has been paid as prescribed by Section 12-504b of the Connecticut General Statutes." (ROR, Item 16.)
In a letter dated December 14, 2000, Wysocki indicated to the state forester that he relied on a letter from the town's tax assessor; (ROR, Item 10); and on a phone conversation with the deputy bureau director of the state of Connecticut department of agriculture, in which Wysocki was told that a transfer of the land to Old Lot would not result in a declassification of his land. (ROR, Item 17.) This phone conversation was seemingly memorialized in a letter by the deputy bureau director dated January 29, 2001, in which he stated that the land must either be sold or changed in use for it to be declassified. (ROR, Item 20.) A "sale" was defined by the deputy bureau director as "receiving something of value for a price paid." (ROR, Item 20.) In response to the letter from Wysocki, the state forester wrote in a letter dated December 20, 2000, that "neither [Wysocki] nor Old Lot No. 30 LLC owned the statutorily required minimum of twenty-five acres of forest land . . . [Moreover, Wysocki] as an individual and Old Lot No. 30 LLC were, in fact, different owners of record." (ROR, Item 18.) The state forester reiterated that Wysocki's forest land certificate would remain cancelled. (ROR, Item 18.) In addition, the state forester indicated that the "Connecticut Department of Agriculture has no administrative authority with regard to the designation of land as forest land under Connecticut General Statutes sections 12-96 or 12-107d." (ROR, Item 18.)
Section 12-96 states that "[w]oodland or land suitable for forest planting not less than twenty-five acres in area and not exceeding in value one hundred dollars per acre exclusive of timber growing thereon may, upon application of the owner, be given special classification as forest land for purposes of taxation. Application for such classification shall be made to the State Forester . . ." Section 12-107d(c) indicates that "[a]n owner of land seeking classification of such land as forest land shall employ a certified forester to examine the land to determine if it conforms to . . . standards established by the [s]tate [f]orester . . . If the certified forester determines that such land conforms to such standards, such forester shall issue a report to the owner of the land pursuant to [12-107d(g)] and retain one copy of the report."
After a meeting between Wysocki and two members of the division of forestry, a letter dated March 23, 2001, was sent to Wysocki stating the conditions under which Wysocki may have the forest land "re-instated." (ROR, Item 24.) The letter advised Wysocki to write to the division of forestry requesting the reinstatement of certificate number 9039 and list all of the parcels indicating that either he or some other party is "the owner of record of all parcels so listed." (ROR, Item 24.) Furthermore, the letter required that if the parcel, which was transferred to Old Lot was returned back to Wysocki, then the division of forestry was to get a copy of the deed, date and time stamped by the town clerk. (ROR, Item 24.) Also, the state forester stated therein that "[t]he certificate would be issued with a letter to signify that the certificate is a change from the original — e.g. 9039A. In addition, the certificate would state that the certificate [was] being re-instated and all dates would reflect the date of re-instatement — e.g. April 11, 2001." (ROR, Item 24.) On April 19, 2001, the state forester wrote to Wysocki that the forest land designation on his parcels could be reinstated, pointing out that the "ownership of all four parcels [had] been returned to a single owner as it was prior to [its] cancellation on May 1, 2000." (ROR, Item 28.) A certificate of land designating the land as forest land was issued by the state forester from the division of forestry on April 19, 2001, with a designation date of April 19, 2001, for Wysocki's four parcels, and indicating the certificate number as "9039A." (ROR, Item 30.) On October 29, 2001, Wysocki applied to the assessor to continue the classification of his four parcels as forest land, as originally classified on September 5, 2001, and indicating that the state forester certificate number is 9039 and amended state forester certificate number is 9039A. (ROR, Item 35.) This application was approved by the assessor on November 9, 2001. (ROR, Item 35.) These four parcels then were included as forest land on the 2001 grand list. (ROR, Item 35). The dates of acquisition listed for the properties were: "4/9/2001, 7/29/1992, 6/7/1991, [and] 1/10/1990." (ROR, Item 35.) Due to certain tax amounts which were unpaid on the four parcels, a tax lien on the parcels for the 2000 grand list was recorded on the land records in volume 290 at page 185 and dated June 5, 2002. (ROR, Item 36.)
When the forest land designation was cancelled on the land, which led to an increased assessment on the parcels, Wysocki applied for an appeal of his tax assessment to the board on February 7, 2001, for the 2000 grand list for all four parcels. (ROR, Item 33.) A certificate of correction as to parcel 189-004-0000 was signed by four members of the board and dated April 20, 2001. (ROR, Item 31.) This decision was mailed to Wysocki on May 2, 2001, indicating that they would not change the assessment due on three of the four parcels and that an addition of a "prime lot with frontage on Elderberry" as to parcel 189-004-0000 increased the assessment above the amount assessed. (ROR, Item 33.) The plaintiffs are appealing the valuation of the properties on the grand list of October 1, 2000.
The assessments for the parcels, as indicated in the town assessor's cards and a certificate of correction, were as follows: parcel 189-004-0000 was assessed at $63,020.00, parcel 180-017-000 was assessed at $22,491.00, parcel 181-015-000 was assessed at $16,968.00 and parcel 188-001-0000 was assessed at $10,143.00. (ROR, Item 33.)
IV. Standard of Judicial Review CT Page 833
"When 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 . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the [s]uperior [c]ourt shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court." General Statutes § 12-119.
The plaintiffs' appeal is pursuant to this statute claiming that the tax assessed on their properties was "manifestly excessive and could not have been arrived at except by disregarding the statutes for determining the valuation of such property." Moreover, the appeal is timely. Therefore, this court finds that it has jurisdiction to hear this appeal.
A taxpayer may appeal a property tax laid on his or her real property under Connecticut General Statutes §§ 12-117a and 12-119. "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 . . . [A] claim that an assessment is excessive is not enough to support an action under this statute." (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 339-41, 654 A.2d 1233 (1995); accord Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 30-31, 633 A.2d 1368 (1993); Wilson v. Kelley, 224 Conn. 110, 118-19, 617 A.2d 433 (1992); Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991).
"[T]he taxpayer bears a heavier burden under § 12-119 than under § 12-117a and must establish something more egregious than mere overvaluation in order to prevail under § 12-119." Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 762, 699 A.2d 81 (1997). "[T]he 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 a duty on their part . . . 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 on an action under § 12-119." (Citation omitted; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 220 Conn. 341.
V. Discussion
Wysocki and Old Lot appeal pursuant to § 12-119, on the basis that the town improperly failed to assess the subject parcels for the 2000 grand list as forest land and, thereby, taxed the plaintiffs at a rate which was manifestly excessive and with disregard to the pertinent Connecticut statutes. The plaintiffs claim that the subject parcels were reinstated as forest land by the state forester and, as such, each should have been assessed as forest land by the town.
The town counters that when the subject parcels were declassified, the land was properly assessed and taxed. It argues that the state forester, not the town tax assessor, has the authority, to designate the subject parcels as forest land. In addition, the town argues that the plaintiffs failed to request a new application from the state forester or apply for such classification with the town's assessor within the statutory time period of September 1, 2000 through December 31, 2000, as indicated in General Statutes § 12-107d(f).
With regard to the classification of land as forest land under § 12-107d, the Connecticut Supreme Court has described the duties of the state forester and the tax assessor. "It is clear from the plain and unambiguous language of the relevant statutory provisions and from the statutory scheme itself that [a tax] assessor [is] not empowered to deny the application of [a landowner] to continue the classification of [his or her] property as forest land without the cancellation of the forest land designation." Carmel Hollow Associates, Ltd. Partnership v. Bethlehem, 269 Conn. 120, 130, 848 A.2d 451 (2004). "[I]f the state forester cancels the forest land designation because the property no longer qualifies, the assessor may deny the owner's application to classify the property as forest land. If the state forester does not cancel the forest land designation, the assessor must continue to classify the property as forest land pursuant to § 12-107d(c)." Id., 134. "Upon termination of classification as forest land, the assessor of the municipality in which the land is located shall issue a notice of cancellation and provide a copy of such notice to the owner of the land . . ." General Statutes § 12-107d(e).
In the present case, the subject parcels were classified as forest land on September 5, 1991. (ROR, Item 6.) These parcels were subsequently declassified on May 1, 2000. (ROR, Item 6.) On April 19, 2001, the state forester "re-instated" the parcels as forest land in certificate number 9039A. (ROR, Item 30.) The state forester required the following conditions be met before reinstatement would be effected: all of the parcels were to be returned to one owner of record; the new certificate would reflect a change from the former certificate; and "all dates would reflect the date of re-instatement — e.g. April 11, 2001." (ROR, Item 24.) The designation date on the reinstatement certificate ultimately became April 19, 2001. (ROR, Item 30.) In addition, the state forester never indicated a change in his department's position which was that the plaintiffs were "different owners of record"; (ROR, Item 18); and that separately the plaintiffs each did not own the requisite acreage of twenty-five acres for forest land designation. (ROR, Item 15.) The court finds that the forest land designation of the parcels came into effect on April 19, 2001. From May 1, 2000, until April 19, 2001, the subject parcels were not deemed forest land by the state forester, and, therefore, could not have been assessed as such by the town. Moreover, this court finds that the reinstatement of this designation on April 19, 2001, is not retroactive to the cancellation date of May 1, 2000. In addition to the reinstatement certificate, the court finds, based upon the state forester's letters to Wysocki, that the date on which the subject parcels were designated as forest land was April 19, 2001.
"The municipality within which land proposed for classification as forest land is situated or the owner of such land may appeal to the [s]tate [f]orester for a review of the findings of the certified forester as issued in the certified forester's report. Such appeal shall be filed with the [s]tate [f]orester not later than thirty business days after the issuance of the report and shall be brought by petition in writing." (Emphasis added.) General Statutes § 12-107d(i). Despite the opportunity to do so, there is no indication that the plaintiffs appealed the state forester's reinstatement date of April 19, 2001, which designated the subject parcels as forest land within the requisite time period. Therefore, this court need not determine the propriety of the state forester's designation of date of April 19, 2001, for the parcels.
Once the state forester determined that the forest land certification was cancelled on May 1, 2000, the tax assessor was statutorily required to issue a notice of this cancellation. See General Statutes § 12-107d(e). The assessor issued this notice through the town of Ellington's "certificates of declassification" which were recorded on the town land records on October 2, 2000, in volume 265 at pages 325 through 328. (ROR, Item 16.) These certificates indicated that the reason for declassification was due to state forester's "Certificate #9039," which was the certificate designating the four parcels of land as forest land. (ROR, Item 16.) The town's certificates of declassification also include pre-printed statements that a "conveyance tax, if applicable, has been paid as prescribed by Section 12-504b of the Connecticut General Statutes." (ROR, Item 16.) In their briefs, the plaintiffs state that "the Ellington tax assessor cannot support declassifying the [plaintiffs'] property based on the conveyance to Old Lot No 30 LLC, but not assessing or collecting a conveyance tax pursuant to § 12-504a(b)." (Wysocki Brief, p. 10, Old Lot Brief, p. 10.) It is the finding of this court that the tax assessor declassified the plaintiffs' property on October 2, 2000, as a result of the cancellation of the forest land designation on May 1, 2000, by the state forestry division, and not because of the conveyance between Wysocki and Old Lot. As noted by the Connecticut Supreme Court, "the statutory scheme affirmatively provides that the state forester is the only government official authorized to designate property as forest land and that property so designated `shall' be classified as forest land by the town assessor." Carmel Hollow Associates, Ltd. Partnership v. Bethlehem, supra, 269 Conn. 134. As a result, the tax assessor must continue the classification until it is cancelled by the state forester.
The plaintiffs rely on Timber Trails Associates v. New Fairfield, 226 Conn. 407, 627 A.2d 932 (1993) and Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 797 A.2d 494 (2002), to advance their arguments that because no conveyance tax was triggered by the Wysocki-Old Lot transfer, this transfer did not terminate the forest land classification pursuant to General Statutes §§ 12-504b or 12-504h. (Wysocki Brief, p. 8, Old Lot Brief, p. 8.) This reliance is misplaced. In Timber Trails Associates v. New Fairfield, supra, 408, the court reviewed the transfer of over 950 acres of forest land from a corporation which was dissolved to the plaintiff, the corporation's sole stockholder. In Stepney Pond Estates, Ltd. v. Monroe, supra, 411, that case involved the transfer of forty-seven acres of forest land by an executor's deed to a corporation. In neither of those cases did the transferor and transferee of the land own less than the acreage required for forest land certification. General Statutes § 12-107b(2) states: "The term `forest land' means any tract or tracts of land aggregating twenty-five acres or more in area bearing tree growth that conforms to the . . . standards established by the [s]tate [f]orester pursuant to [§ 12-107d(a)] . . ." In the present case, when the 13.63-acre parcel of land was transferred from Wysocki to Old Lot, neither plaintiff separately owned the statutorily required twenty-five acres. (ROR, Item 18). Whereas the Timber Trails Associates and Stepney Pond Estates, Ltd. cases involved the transfer of more than twenty-five acres of land from one entity to another, the present matter involves the transfer of land of less than the requisite amount. Simply put, the forest land classification in this case was cancelled not merely because there was a transfer, but because the transfer split the property, wherein three parcels were owned by Wysocki and one parcel by Old Lot, thereby, creating two different owners of record with each entity owning less than the required twenty-five acres. This was in violation of the requirements for designation as forest land set forth in § 12-107b(2).
The plaintiffs further claim that the board did not comply with General Statutes § 12-60 in that it failed to send the mandatory written notice to the plaintiffs within ten days from a notice of correction being issued by the board. The defendant did not respond to this argument in its brief.
Generally, "strict compliance with . . . statutory provisions is a condition precedent to the imposition of a valid tax . . ." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 462, 692 A.2d 742 (1997). Section 12-60 provides in relevant part: "Any clerical omission or mistake in the assessment of taxes may be corrected according to the fact by the assessors or board of assessment appeals, not later than three years following the tax due date relative to which such omission or mistake occurred, and the tax shall be levied and collected according to such corrected assessment. In the event that the issuance of a certificate of correction results in an increase to the assessment list of any person, written notice of such increase shall be sent to such person's last-known address by the assessor or board of assessment appeals within ten days immediately following the date such correction is made." (Emphasis added.)
"In determining whether the use of the word `shall' is mandatory or directory, the test is whether the prescribed mode of action is of the essence of the thing to be accomplished . . . That test must be applied with reference to the purpose of the statute." (Internal quotation marks omitted.) Sears, Roebuck Co. v. Board of Tax Review, supra, 241 Conn. 760. "If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provision, the statute should be construed as directory . . ." (Citations omitted, internal quotation marks omitted.) United Illuminating Co. v. New Haven, supra, 240 Conn. 465-66. "[I]n the context of time and notice requirements, the Connecticut appellate courts have often found the world `shall' to be directory rather than mandatory." (Internal quotation marks omitted.) Tilcon Connecticut, Inc. v. North Branford, Superior Court, judicial district of New Haven, Docket No. CV 04 0489089 (August 19, 2004, Thompson, J.) ( 37 Conn. L. Rptr. 750).
In Wee Burn Country Club, Inc. v. Board of Assessment Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195964 (April 26, 2004, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 887), the court determined that the notice provision in General Statutes § 12-55(b) was directory. Id., 891. Section 12-55(b) provides in relevant part: "In each case of any increase in valuation of a property above the valuation of such property in the last-preceding grand list or the valuation, if any, stated by the person filing such declaration or report, the assessor or board of assessors shall mail a written notice of assessment increase to the last-known address of the owner of the property the valuation of which has increased . . . All such notices shall be subject to the provisions of subsection (c)." Section 12-55(c) further states that if notice is issued beyond a ten-day time limit, "such increase shall become effective on the next succeeding grand list." In Wee Burn Country Club, the court determined that this notice provision in subsection (b) "is not related to a matter of substance but serves as an inducement to the defendant to send notice to the plaintiff in a timely manner and as a remedy for a property owner whose rightful notice is delayed beyond ten days." Id., 891. The court therein also noted that the statute "does not contain language indicating that the [board's] decision regarding an increase in the assessment of the taxes on the . . . property will be void if more than ten days elapse between the date of assessment and notice of the assessor's decision." Id.
Section 12-60, the relevant statute in the present matter, states that where "the issuance of a certificate of correction results in an increase to the assessment list of any person, written notice of such increase shall be sent to such [person] . . . within ten days immediately following the date such correction is made." In this statute, as in § 12-55(b), there is no language indicating that the decision will be void if not sent to the taxpayer within that requisite time period. Although the statute in Wee Burn Country Club did indicate that the untimely notice under § 12-55(b) would result in the increased assessment taking effect on the next grand list and no such provision exists within § 12-60, this court still finds the reasoning of Wee Burn Country Club to be persuasive in its interpretation of § 12-60. Therefore, this court will interpret the time requirements in § 12-60 to be an "inducement" for the board to send notice in a timely fashion rather than as a mandatory requirement.
In Winslow v. Zoning Board, 143 Conn. 381, 122 A.2d 789 (1956), the court stated that a town charter which provided for "a public hearing to be held within sixty days from the date [the] petition [to amend zoning regulations] was filed" included a mandatory public hearing but a directory time limit. (Internal quotation marks omitted.) Id., 387. The court observed that "[l]egislative provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where, as here, they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words." Id., 388.
Accordingly, this court concludes, and the plaintiffs have provided no case law to indicate otherwise, that the time frame required for notice in § 12-60 is directory. As such, the effect of the notice being sent by the defendant two days later than required by the statute is not fatal.
The plaintiffs further claim that the board also violated § 12-111 by failing to send mandatory written notice to the plaintiffs one week before it increased the assessment. The defendant conceded in its brief that the board "did not notify [the plaintiffs] and invite [them] to appear at least one week before adding to [plaintiffs'] assessment as required by § 12-111." (Defendant Brief, p. 9.)
Generally, § 12-111 provides an aggrieved land owner the opportunity to appeal an assessment to the board of assessment appeals. "Any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals . . . The board shall determine all such appeals and send written notification of the final determination of such appeals to each such person within one week after such determination has been made . . . Such board may . . . increase or decrease the assessment of any taxable property or interest therein . . . but, before proceeding to increase the assessment of any person . . . it shall mail to such person, postage paid, at least one week before making such increase or addition, a written or printed notice addressed to such person at the town in which such person resides, to appear before such board and show cause why such increase or addition should not be made." General Statutes § 12-111(a).
"[A] plain reading of § 12-111 suggests that the purpose of the statute is to provide a taxpayer with an opportunity to be heard before the [board of assessment appeals] regarding the levy of a tax assessment. The statutory section contemplates that a taxpayer should seasonably ascertain whether the valuation placed on his property was correct, and, if it was considered erroneous, resort to appeal." Rand-Whitney Containerboard v. Montville, Superior Court, judicial district of New London, Docket No. CV 02 0562692 (October 21, 2004, Hurley, J.T.R.) ( 38 Conn. L. Rptr. 147, 147), citing Pitt v. Stamford, 117 Conn. 388, 393-94, 167 A. 919 (1933). In Rand-Whitney Containerboard, "[t]he plaintiff had taken issue with the [town of Montville's] assessment of its property and subsequently filed an appeal with the [board of assessment appeals]. It had the opportunity to present evidence as to its opinion of the proper assessment of its property, and left the [board] to its decision. The [board of assessment appeals] then proceeded to take action as it saw fit." Rand-Whitney Containerboard v. Montville, supra, 38 Conn. L. Rptr. 147-48. In denying the plaintiff's motion for summary judgment, the court determined that "[t]he plaintiff had an opportunity to be heard before the [board], and the [board] adjusted the plaintiff's tax assessment accordingly. The only remedy . . . available to the plaintiff [was] for it to present its evidence to the [S]uperior [C]ourt . . ." Id., 148. "A municipal board of tax review has the unilateral power to equalize and adjust valuations and assessment lists submitted by assessors." Id., citing Albert Bros., Inc. v. Waterbury, 195 Conn. 48, 50, 485 A.2d 1289 (1985).
In the present case, the board scheduled an appointment on March 17, 2001. (ROR, Item 33.) In their briefs, the plaintiffs concede that a hearing was held on that date. (Wysocki Brief, p. 5, Old Lot Brief, p. 5.) The plaintiffs were given the opportunity to be heard on that day, and based on the plain reading of § 12-111, the board was not required to provide the plaintiffs with another opportunity to be heard before it increased the amount of the plaintiffs' assessments.
The plaintiffs' next argument is that the board erred in assessing the Elderberry Lane property as a "prime lot with frontage." The defendant counters that this parcel could be assessed as a building lot based on the cancellation of its designation as forest land and under the authority of General Statutes § 12-99.
As to parcel numbered 189-004-0000, the board "added [a] prime lot with frontage on Elderberry [Lane]" and referenced a April 4, 2001 memo by the Ellington town planner. (ROR, Item 33.) The memo stated that this parcel "should be considered as a pre-existing `rear lot' for the purposes of the application of Ellington Zoning Regulations and therefore should be considered a legitimate parcel of record for all zoning purposes." (ROR, Item 46.) A rear lot as defined by the Ellington zoning regulations, is "[a]ny lot which does not contain the required lot width at the street line or setback line on an accepted Town road or state highway or private street used for travel otherwise approved by the Commission as part of a subdivision approved after July 1999." Ellington Zoning Regs., article II, § 230-4. Elderberry Lane gained acceptance as a town road on December 15, 2003. (ROR, Item 39.) There has been no evidence presented that Elderberry Lane was not a "private street used for travel otherwise approved by the Commission as a part of a subdivision after July 1999." Ellington Zoning Regs., article II, § 230-4.
In their briefs, the plaintiffs define a rear lot "[a]s any lot which does not contain the required lot width at the street line or setback line on an accepted town road or state highway." The plaintiffs' citation to the zoning regulations for the town of Ellington; (ROR, Item 43); were amended only through December 1987, and are not the current regulations, to which the court has cited.
As has been stated above, the plaintiffs are left to a very strict standard in appealing under § 12-119. "[T]he plaintiff . . . must [show]: 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 a duty on their part . . . 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 220 Conn. 341. The plaintiffs have failed to show that either of these tests have been met.
Finally, the plaintiffs claim that the tax assessor should have reinstated the classification based on applicable Connecticut case law and statutes. This court has already concluded that based upon the evidence in the record, applicable case law and statutes, the tax assessor was not required to reinstate the forest land classification retroactively to include the period when it had been transferred to separate ownership and reclassified. The assessments relating to the period of time when the land was not classified as forest land, therefore, were not the result of misfeasance or nonfeasance by the taxing authorities nor have they been shown to be arbitrary or so excessive or discriminatory as in itself to show a disregard of a duty on the part of the assessor.
The plaintiffs also claim that the assessor failed to reinstate the classification after a representation was made by that office that such a transfer of land would not adversely affect their forest land certification. Inasmuch as this might be an attempt to raise the issue of equitable estoppel, this claim has been inadequately briefed and is, therefore, deemed abandoned in this appeal. See Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005).
VI. Conclusion
Accordingly, the court dismisses the appeal.