Opinion
CV156050122S
05-09-2017
Dorothy S. Pastir et al. v. Town of Stratford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael Hartmere, Judge Trial Referee.
On May 19, 2015, the plaintiff, Dorothy S. Pastir (" Pastir"), individually and as executrix of the estate of Stephen M. Pastir filed a one-count complaint seeking a declaratory judgment concerning the Town of Stratford's (" Stratford") actions in charging her for water assessments. A court trial was scheduled before the undersigned for April 12, 2017. The trial was abbreviated because the parties filed the following joint stipulation of facts (pleading #112) and evidence (pleading #113), and presented only oral arguments on April 12, 2017.
The Joint Stipulation of Facts provides:
JOINT STIPULATION OF FACTS
Property Ownership
1. On June 8, 1998 and August 13, 2001, the property which is the subject of this action was owned by Gertrude Ann Kelly. (Exhibit 1--Deed from Wilson to Kelly.)
2. On November 21, 2002, the property which is the subject of this action was owned by Michael A. Wilson and Barbara Ede. (Exhibit 2--Deed from Kelly to Wilson and Ede.)
3. On October 21, 2005, the Plaintiff purchased the property which is the subject of this action. (Exhibit 3--Deed from Wilson and Ede to Dorothy S. Pastir, and Map No. 3388 referenced in the legal description of the property conveyed.)
4. On January 18, 2011, the Plaintiff sold the property, which is the subject of this action, for one dollar ($1.00) to Richard P. Cerniglia, who already owned the adjoining premises identified as 410 Whippoorwill Lane. (Exhibit 4--Deed from Pastir to Cerniglia & Plaintiff Affidavit.)
Water Line Extension
5. On June 8, 1998, the Stratford Town Council approved the project for the extension of water service to that section of Whippoorwill Lane which runs past the general land in which the parcel of property which is the subject of this action is located, but does not abut the parcel which is the subject of this action, at a total cost of $93,205 allocated as an approximate cost of " $10,000 to $13,000 per homeowner." A contract to extend the water mains was entered into between the Town of Stratford and the BHC Company. (Exhibit 5--Copy of said Contract.)
6. On April 23, 2001, a public hearing was noticed and held by the Stratford Town Council to determine the amount of the assessment of water main benefits in regards to the Whippoorwill Lane water main extension project. (Exhibit 6--Excerpt from Council Minutes of April 23, 2001.)
7. On August 13, 2001, the Stratford Town Council approved the water main extension assessments for the Whippoorwill Lane project. (Exhibit 7--Excerpt from Council Minutes of August 13, 2001.)
8. The property owners affected by the assessment was approved by the Stratford Town Council on August 13, 2001 and the amount of each assessment is shown on a spreadsheet prepared by Town Engineer John Casey. (Exhibit 8.)
9. On said spreadsheet the amount of the assessment to each listed property owner appears in the column headed " Water Main Assessment"; under the column heading " House Lateral Assessment." Those homeowners who had connected to the water main and were receiving public water service are shown together with the cost of said connection, while those homeowners with no numerical figures in that column have not connected to the water main.
10. Pursuant to the approval of the Stratford Town Council as set forth above, on November 21, 2002, the Stratford Tax Collector recorded on the Land Records a " Certificate of Notice of Installment Payment of Assessment of Benefits, " a generic form used by the Tax Collector for all municipal assessments. (Exhibit 9 is specific to the property which is the subject of this action.)
11. The original ID number for Plaintiffs' lot was 1819200, which was later changed in the Tax Assessor's Office to ID number 1819150.
12. No appeal was taken from either the approval of the assessment by the Stratford Town Council on August 13, 2001, or from the Notice of Assessment recorded on November 21, 2002, by the then property owners, Michael A. Wilson or Barbara Ede.
13. The assessment was paid for the years 2002, 2003, 2004 and 2005 by Michael A. Wilson and Barbara Ede and for the years 2006, 2007, 2008 and 2009 by the Plaintiffs, Dorothy S. Pastir Individually and as Executrix of the estate of Steven M. Pastir. (Exhibit 10-Print-out prepared by Tax Collector Deborah Heim.) During this time period the subject property was considered, and understood by the Plaintiffs to be, an approved building lot.
14. On September 28, 2009, the Plaintiffs received a letter from Gary Lorentson, Planning and Zoning Administrator for the Town of Stratford, explicitly stating that the Plaintiffs' property, which is the subject of this action, was an illegal lot in violation of Stratford Zoning Regulations because it " did not contain the required street frontage" and that it did not contain the " . . . required lot width." The letter directed Plaintiffs to cure the violation by merging the lot with an adjoining lot. (Exhibit 12--Letter from Gary Lorentson.)
15. Map No. 3388 (Ex 3) shows plaintiffs' property is surrounded on all sides by and does not abut Whippoorwill, i.e. it has no street frontage on Whippoorwill Lane as required, but does have access to a gravel road for ingress and egress (Ex. 12).
16. As a result of said letter stating that Plaintiffs' lot was illegal and " to correct this matter you will need to eliminate your illegally created lot by merging it to an adjoining lot . . ." (Ex. 12), the Plaintiffs stopped paying the water assessment and eventually sold this property for one dollar ($1.00) to Richard Cerniglia (an adjoining lot owner), as described in Paragraph 4 above.
17. On March 30, 2012 the assessment on 410 Whippoorwill Lane (ID number 1820400), which now contained the Plaintiffs' " illegal lot" (Ex. 12) due to being merged on January 18, 2011 (Ex. 4) has been paid by the property owner, Richard Cerniglia, and no further installments are owed on this assessment. (Exhibit 11 Print-out of payments for assessment on 410 Whippoorwill Lane.)
18. Despite conveying the property to Cerniglia, and despite Plaintiffs' claims that the assessment runs with the property and Plaintiff's former property is not benefitted by the water main project, the Town of Stratford continued to bill the Plaintiff for the water assessment.
19. The parcel of land known as 320 Whippoorwill Lane, identified as ID number 1819100, unlike the subject property, is an illegal lot, although it is a validly existing but of nonconforming use despite not complying with street frontage requirements of present Stratford Zoning Regulations although there are no exhibits of confirmation. The assessment on this parcel has been regularly paid.
20. The Plaintiff claims: 1.) the assessment was illegal and should not have been laid on the subject property pursuant to the Charter of the Town of Stratford and the holding in Berne v. Town of Stratford, 217 Conn. 806, 584 A.2d 1190 (1991), and 2.) that once it disallowed as a validly existing non-conforming lot by Stratford in the September 28, 2009 I (see Ex. 12, ¶ 14) the Defendants had a duty to correct its assessment error by issuing a refund and correcting the assessment record, and its failure to do so was an abuse of its power. (Exhibit 13--Section 2.2.1 and Sections 6.4.1 through 6.4.6 of the Charter of the Town of Stratford and Berne v. Town of Stratford, 217 Conn. 806, 584 A.2d 1190 (1991).)
21. The Defendant claims the assessment was validly laid on the subject property pursuant to Sections 7-137c and 7-137d of the Connecticut General Statutes. (Exhibit 14-Sections 7-137c and 7-137d of the Connecticut General Statutes.)
22. The requirements regarding recording of certificates on the Land Records pursuant to Sections 6.4.3 and 6.4.6 of the Charter of the Town of Stratford have not been complied with.
LEGAL DISCUSSION
The plaintiffs purchased a parcel of land which at all times, from the date of purchase on October 21, 2005, to the date of transfer on January 19, 2011, was an illegal lot. The plaintiffs were unaware of the lot's illegality until notified by a letter from the defendant, Gary Lorentson, planning and zoning administrator for Stratford on September 28, 2009.
The background is that the town of Stratford approved the extension of water service to Whippoorwill Lane pursuant to Connecticut General Statutes, section 7-137c. Stratford's charter provisions set forth the mechanism for the construction of a public improvement and for the assessment of the cost of the same to the property owners who are benefitted thereby. The project was approved by the town council on June 8, 1998. On April 23, 2001 a public hearing was noticed and held by the town council to allow comments on the proposed assessment of the cost of the water main extension to those properties benefitted by it. Thereafter, the town council approved the assessments of the cost of the extension of water mains on Whippoorwill Lane to those properties on August 13, 2001.
At the time of the council's approval of the project, the property in question was owned by Gertrude Ann Kelly and was assessed in the amount of $7,767.08. On February 22, 2002, Gertrude Ann Kelly conveyed the property to Michael A. Wilson and Barbara Ede. On November 21, 2002, a " Certificate of Notice of Installment Payment of Assessment of Benefits" was recorded in the land records against said property in the names of Michael A. Wilson and Barbara Ede as record owners. Wilson and Ede then conveyed the property to the plaintiffs on October 21, 2005. The deed of conveyance to the plaintiffs contained three important caveats. First, title to the property was conveyed to the plaintiffs, together with the rights to use a 20-foot gravel drive leading from the plaintiffs' property to Whippoorwill Lane as a direct means of ingress and egress to and from the plaintiffs' property to Whippoorwill Lane. Thus, the plaintiffs' property was not landlocked. Second, the deed to the plaintiffs expressly conveyed the property to the plaintiffs, subject to the water assessment recorded against the property and the plaintiffs took title to the property subject to that water assessment. Third, the plaintiffs took the property subject to Stratford's planning and zoning regulations.
Thus, the owners of the property at the time of the assessment were given notice of Stratford's intention to assess a proportionate share of the cost of the water main extension to the subject property and were given the opportunity to be heard prior to the assessment being levied. In addition, the language in the deed by which the plaintiffs took title makes it clear that the plaintiffs were aware of the existence of the assessment before taking title, and that they acquiesced to the same. Indeed, the plaintiffs paid the assessments for the years 2006 through 2009.
The plaintiffs argue that Stratford failed to follow its town charter provisions. The defendants concede that they did not record on the land records a " certificate describing the proposed public work or improvement" approved by the Town Council on June 8, 1998, within ten days of the Council's approval of the project as required by Section 6.4.3 of the charter. Section 6.4.3 of the charter provides, in pertinent part: " If at the hearing upon such proposal, it is decided or determined that the proposed public work or improvement shall be undertaken, the Council shall, within ten (10) days of the date of such decision or determination, cause to be recorded in the land records of the town a certificate describing the proposed public work or improvement . . . Said certificate shall be indexed in the general index to the land records under the name of each owner of property to be affected thereby." The defendants also concede that they did not file with the town clerk a single " certificate" setting forth the amount of the assessment against each property owner as set forth in section 6.4.6 of the charter. The town did record separately against each property owner, including the owners of the property in question here, a certificate of notice of installment payments, setting forth the amount and terms of the assessment.
Plaintiffs cite and rely upon Berne v. Town of Stratford, 23 Conn.App. 554, 583 A.2d 136 (1990) as authority for the argument that the assessment approved by the Council against the subject property is invalid. Berne, however, is distinguishable from the present case. There, the town was seeking to take a portion of Berne's property for permanent drainage easements. Pursuant to section 6.4.2 of the charter, notice and an opportunity to be heard was supposed to be given to the affected property owners before the condemnation action to take the property was commenced. The town did not provide such notice or opportunity to be heard and the Berne court invalidated the action on that basis. In the present case, notice and the opportunity to be heard were given to the affected property owners before the action was undertaken, and it was simply the subsequent act of recordation of the approval that was not undertaken in a timely fashion. Section 6.4.3 was complied with when notices of assessment were recorded on the land records against all property owners whose property was affected, albeit approximately three years late. Any defect in the untimely recording of the notice of approval of the project in 1998 was minimized when the plaintiffs took title to the subject property in 2005, expressly subject to the water assessment. The plaintiffs were aware of the existence of the water assessment prior to taking title to the property.
The defendants contend that notwithstanding the failure to completely comply with the charter provisions, the assessment against the subject property is valid because the requirements of sections 6.4.3 and 6.4.6 of the charter are directory only and not mandatory. In both sections 6.4.3 and 6.4.6 of the charter, the word " shall" is used in setting forth the specified requirements. However, the use of the word " shall" does not necessarily render mandatory the act which is supposed to be taken. In order to determine whether the use of the word " shall" denotes a mandatory duty, the test to be applied is " whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . 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 the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms, unaccompanied by negative words . . ." Dickerson v. Pincus, 154 Conn.App. 146, 153-54, 105 A.3d 338 (2014). A statutory provision to secure order and system in the proceedings, as opposed to being substantive in nature, is one which prescribes what shall be done but does not invalidate the action on the failure to comply with the requirements set forth the provision. Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 595 A.2d 819 (1991). " It is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 448, 558 A.2d 1021 (1989).
Here, the language of sections 6.4.3 and 6.4.6 of the charter are directory in nature. The essence of the thing to be accomplished pursuant to the pertinent sections of the charter is the approval of and financing of public improvements. The project was approved by the town council and the cost of the same assessed against properties benefitted thereby at duly called meetings of the council, of which members of the public were notified and at which opportunity for comment was available. The project was approved at a public meeting in 1998, but Stratford did not immediately record notice of the same on the land records as required by section 6.4.3. However, no language appears in section 6.4.3 (or elsewhere), invalidating the council's approval of the project for failure to comply with the recording requirement. The recording requirements subsequent to the approval have nothing to do with the merits of the approval itself, but rather are designed to secure order in the system by providing formal notice to the owners of the properties affected by the approval. Stratford did not determine the specific properties benefitted by the action until 2001, at which time a public hearing was noticed and held, and at which time affected property owners were given the opportunity to comment prior to the cost being assessed against them. Subsequent to the assessment of costs, individual notices of assessment were recorded on the land records against each property owner affected, but no single certificate was filed with the town clerk as set forth in section 6.4.6. Again, the essence of the thing to be accomplished pursuant to section 6.4.6, the proportionate assessment of the costs of the benefit provided to affected properties in the filing of a single certificate with the town clerk after the assessment has been approved, has nothing to do with the " essence of the thing, " especially in light of the fact that individual notices of assessment were recorded on the land records.
Again, the plaintiffs' reliance on Berne is misplaced. In Berne, the town was seeking to take a portion of Berne's property for permanent drainage easements. Pursuant to section 6.4.2 of the charter, notice and an opportunity to be heard was supposed to be given to the affected property owners before the condemnation action to take the property was commenced. The town did not provide such notice or opportunity to be heard and the Berne court invalidated the action on that basis. In Berne, the defect found by the court went to the " essence" of what was being attempted to be accomplished by the town. In the present case, notice and the opportunity to be heard were given to the affected property owners before the action was undertaken, and it was simply the subsequent act of recording which was untimely. The untimely action of the defendants did not go to the essence of what was being attempted to be accomplished by the town.
The plaintiffs claim that the property was not benefitted by the water main extension since the property was never in compliance with Stratford zoning regulations and, therefore, not a valid building lot. The plaintiffs' argument ignores the fact that when title to the property was taken, it was taken expressly subject to the planning and zoning regulations of the town of Stratford. The plaintiffs took the property subject to the planning and zoning regulations, however those regulations might affect the property. In addition, there is no requirement in section 6.4 of the charter which requires land to be a valid building lot in order to be assessed for a benefit provided to it. Importantly, the legal description in the deed by which plaintiffs took title describes the property being conveyed to plaintiffs as shown on map number 3388. Note #14 on that map states: " The area of land being conveyed depicted on this map does not represent a building lot approved by the town of Stratford planning and zoning department." Thus, plaintiffs knew or should have known that they were not purchasing an approved building lot in 2005, based upon the express language contained on the map. The plaintiffs were aware or should have been aware of the status of the property long before receiving the letter from the planning and zoning administrator in 2009. Lastly, there were a number of options available to the plaintiffs to cure the defect on the property. Given that the property was conveyed to the plaintiffs with the right to use a 20-foot gravel drive leading from the plaintiffs' property to Whippoorwill Lane as a direct means of ingress and egress, the plaintiffs could have applied to the zoning board of appeals for a variance in order to validate the defect which violated the zoning regulations. The plaintiffs also could have cured the defect by acquiring a portion of land from the adjacent property owner in order to provide the necessary street frontage. However, the plaintiffs chose to merge the property with that of adjacent landowner by selling the property for one dollar. The plaintiffs' argument that the presence of a water main in the street did not potentially benefit the property is unavailing, given that had steps been taken by the plaintiffs to cure the defect and make the property legal, city water would have been available to the property.
In 2001 the water main extension assessment on the property was $7,767.08. The plaintiffs paid Stratford $2,071.24 on the water assessments by way of four annual installments of $517.81 each, beginning in 2006 and continuing through 2009. The plaintiffs did not make an annual installment payment in 2010 or in subsequent years. The town continued to bill for those annual installments. Here, the plaintiffs seek a refund of monies previously paid toward the water assessment. Stratford concedes that, despite the fact that the plaintiffs continued to receive annual bills on the assessment, the plaintiffs have no liability for installment payments subsequent to their conveyance of the property on January 18, 2011. Thus, Stratford's claim here is that the plaintiffs owe the single payment of $517.81 which was due in 2010, plus interest. On the other hand, the plaintiffs contend that they are entitled to a refund of all monies paid to Stratford for installment payments on the water assessment, plus interest, from the time they took title in 2005.
The plaintiffs are not entitled to a refund of monies previously paid based on the court's previous findings. There is no requirement in the charter, nor in other law, which requires the property to be a valid building lot in order for the assessment to be valid. The plaintiffs purchased the property expressly subject to all the zoning regulations of the town, and expressly subject to the water assessment. Finally, the map on which the subject property is shown which is specified in the deed by which the plaintiffs took title clearly states that the subject property is not a valid building lot.
Additionally, the plaintiffs' action fails because it is in derogation of the express remedy provided in the statutes for parties aggrieved by water assessments or assessments for public improvements in general. Connecticut General Statutes, section 7-137c provides a specific remedy for parties aggrieved by water assessments laid upon their properties. That statute provides for an appeal by the property owner to the Superior Court challenging the assessment, which had to have been filed no more than sixty days following the assessment. Section 7-142 of the General Statutes prescribes the procedure to appeal from municipal assessments in general. Section 7-142 requires the appeal to be brought within thirty days of the notice of assessment. No appeal was taken from either the approval of the assessment by the town council on August 13, 2001 or from the notice of assessment recorded on November 31, 2002.
" Where a statute has established a procedure to redress a particular wrong. A person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure." Norwich v. Lebanon, 200 Conn. 697, 708, 513 A.2d 77 (1986). The court in Danbury v. Dana Inv. Corp., 249 Conn. 1, 730 A.2d 1128 (1999), held that a taxpayer could not challenge the validity and amount of a municipal tax assessment other than by following the statutory remedies provided in the general statutes. As is the situation here, the taxpayer in Danbury did not own the property during the period in which a tax appeal could have been filed. The taxpayer attempted to attack the assessment collaterally through a special defense set forth in a tax foreclosure action brought by the city. The court stated: " A taxpayer who has failed to utilize the available statutory remedies [may not] assert . . . that the tax has not been properly assessed . . ." quoting Hartford v. Faith Center, Inc., 196 Conn. 487, 493 A.2d 883 (1985). The Danbury court cited the public policy requirement that municipal governments need to know with a reasonable degree of certainty what their tax revenue will be so that a responsible budget can be prepared. The court noted that tax assessments which were not timely challenged pursuant to the statutes could not later be challenged at the time frame of the taxpayer, because this would interject uncertainty into the municipal budget process.
The above rationale as to taxes applies also to municipal assessments. The municipality spent money to construct the public improvement, which it then sought to recoup by way of assessment. The assessments are built into the municipality's budget as projected revenue. A statutory remedy by which the property owner can challenge the assessment is provided as a basic element of due process. The remedy consists of a reasonably quick appeal so that the municipality can be aware quickly of the potential challenges to its revenue stream in order to take any necessary curative action. To allow the plaintiffs to reach back ten years to redress an issue which could have been addressed in a timely manner if action been taken to challenge the water assessment at the time the assessment was laid upon the property is unsupported by the law.
CONCLUSION
Based on the foregoing, judgment will enter for the defendants on the plaintiffs' action seeking a declaratory judgment. The plaintiffs are ordered to pay Stratford the unpaid assessment for $517.81 which was due in 2010, plus interest.