Opinion
No. FST CV 08-4014088 S
September 22, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS DATED SEPTEMBER 25, 2008 (#107.00)
The Stamford Advocate, the leading newspaper in the City of Stamford for over a hundred years, relocated its publishing and office facilities from 75 Tresser Boulevard, Stamford, Connecticut leaving these legal issues in its wake. The City of Stamford has moved to dismiss the First Count of the purchaser's, SG Stamford, LLC, real estate tax appeal for the 75 Tresser Boulevard property on the grounds that the plaintiff lacks standing to bring such an action. The September 25, 2008 Motion to Dismiss (#107.00) states: "that Plaintiff lacks standing to bring an action/proceeding under the statute cited . . . § 12-117a does not provide a right of appeal from the action of the Board of Assessment Appeals to a party when acquiring the subject property after the Board has acted and is not otherwise legally aggrieved."
Southern Connecticut Newspapers, Inc., the corporate owner of the Stamford Advocate, was the owner of real property located at 75 Tresser Boulevard, Stamford, Connecticut on October 1, 2007. At that location they published the daily and weekend issues of the Stamford Advocate. They moved their facilities out of Stamford and placed the Tresser Boulevard real property for sale.
On April 22, 2008 the plaintiff, SG Stamford, LLC, purchased 75 Tresser Boulevard from Southern Connecticut Newspapers Inc., and at all times thereafter is and was the owner of the real property.
On October 1, 2007 the Assessor of the City of Stamford valued the real property for its full fair market value at $43,594,372 and 70% thereof established the assessed value of the real property at $30,516,060. The real estate taxes on the October 1, 2007 assessment would be due and payable July 1, 2008 and January 1, 2009. The owner, Southern Connecticut Newspapers, Inc., then appealed to the Board of Assessment Appeals for the City of Stamford claiming to be aggrieved by the action. On March 24, 2008 the Board of Assessment Appeals elected not to conduct an appeal hearing relating to the property thus denying the relief requested by Southern Connecticut Newspapers, Inc. As stated the plaintiff thereafter became the record title owner of the real property on April 22, 2008. The plaintiff commenced this instant two-count complaint on May 22, 2008.
The First Count of the complaint claims excessive evaluation under Gen. Stat. § 12-117a. It alleges that SG Stamford, LLC is aggrieved by the decision of the Board of Assessment Appeals of the City of Stamford. The Second Count alleges wrongful assessment under Gen. Stat. § 12-119. The ownership and assessment allegations of the First Count were incorporated in the Second Count. Paragraph 5 of the Second Count alleges: "A tax was laid on this property which tax was computed on the assessment which was manifestly excessive and could not have been arrived at except by disregarding the statutes, including without limitation Conn. Gen. Stat. § 12-63d, for determining the valuation of such property." Gen. Stat, § 12-63d prevents a municipal assessor from making a change in the assessed value of the real property "solely on the basis of the sale price of such parcel in any sale or transfer of such parcel." As to both counts, the plaintiff, SG Stamford, LLC, seeks a reduction in the assessed valuation of real property placed on the property as of October 1, 2007, reimbursement for any overpayment of taxes, credit for any overpayment of taxes, interest and costs.
The City of Stamford filed a Motion to Dismiss dated September 25, 2008 (#107.00) claiming that the plaintiff lacks standing to bring First Count of this tax appeal under Gen. Stat. § 12-117. The court notes that the defendant, City of Stamford, is not claiming lack of aggrievement or standing on the Second Count, wrongful assessment under Gen. Stat. § 12-119. The parties briefed the matter, presented themselves at oral argument, waived testimony and evidence on the issue.
There are three separate statutes all in chapter 203 of the Connecticut General Statutes that are relevant to this Motion to Dismiss: Gen. Stat. §§ 12-117a, 12-119 and 12-111. The first statute supports the First Count: "Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom . . . to the superior court for the judicial district in which such town or city is situated . . ." Gen. Stat. § 12-117a.
The second statute supports the Second Count: "When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or 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 or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make an application for relief to the superior court for the judicial district in which such town or city is situated." Gen. Stat. § 12-119.
The third statute relates to the statutory authority for appeals to the board of assessment appeals: "(a) Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of a lease to pay real property taxes and any person to whom title to such property has been transferred since the assessment date, claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals . . ." Gen. Stat. § 12-111(a). P.A. § 95-283 changed the name of the board of tax review to the board of assessment appeals. Although this case involves the action of the Board of Assessment Appeals of the City of Stamford, both terms will be used interchangeably in the case law cited herein.
The defendant admits that SG Stamford LLC has standing to litigate the Second Count of the complaint under Gen. Stat. § 12-119 since they are "the owner thereof" but claims the plaintiff has no standing as to the First Count since the phrase "the owner thereof" does not appear in Gen. Stat. § 12-117a. This case involves the interpretation of a statute and the issue of standing.
"When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, Gen. Stat. § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we look for the interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." Windels v. Environmental Protection Commission, 284 Conn. 268, 294-95 (2007).
Both parties claim that § 12-117a is plain and unambiguous. The plaintiff is claiming that "any person" is a broad category and encompasses the facts of this case. The defendant is claiming that "any person" is limited by Gen. Stat. § 12-111, which only permits "any person to whom title to such property has been transferred since the assessment date" to appeal to the board of assessment appeals and this transfer language does not appear in Gen. Stat. § 12-117a. The plaintiff claims that the defendant's interpretation of the statutes is without merit. In its brief the plaintiff notes: "The Defendant argues that the legislature created classes of statutorily aggrieved parties without citing any supporting case law. Indeed, to apply Defendant's interpretation of the Statute yields unreasonable and unjust results and provides Defendant with an unfair windfall (collecting taxes on an improper assessment." #113.00, page 7.
Although both briefs are silent on the subject it appears that the issue being raised in this Motion to Dismiss is that of subject matter jurisdiction. The defendant's Motion to Dismiss was filed more than thirty days after the City filed its appearance. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . A court lacks discretion to consider the merits of a case over which it is without jurisdiction. The objection of want of jurisdiction may be made at any time . . . and the court or tribunal may act on its motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can raised at any stage in the proceedings . . ." Standing is an issue of subject matter jurisdiction. Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802 (2009) "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure the courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue." Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 802-03.
Gen. Stat. § 12-117a requires the plaintiff to allege and prove that they are aggrieved. "Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals . . ." "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse affect on a legally protected interest . . ." Id., 803. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation . . ." Id., 803.
The City argues that the plaintiff, SG Stamford, LLC, is not aggrieved by the action of the Board of Assessment Appeals and lacks any statutory basis for asserting the rights of its predecessor in title. Essentially the City's argument relies on the second portion of the first sentence of Gen. Stat. § 12-111; ". . . any person to whom title to such property has been transferred since the assessment date . . ." The City argues that this language is not contained in Gen. Stat. § 12-117a. The City argues that when different terms are used in related legislative enactments it is presumed the difference is intentional and therefore a different result would occur. Perretta v. New Britain, 185 Conn. 88, 100 (1981). The City notes that the lessee language is found in both § 12-111 and § 12-117a. The City notes that by statute subsequent purchasers who purchased after the assessment date are identified as potential appellants only with respect to the initial appeal to the Board of Assessment Appeals. The City agrees that Gen. Stat. § 12-117a is silent as to the rights of any subsequent purchaser. The City admits a subsequent purchaser who took an unsuccessful appeal to the Board of Assessment Appeal, would be "a person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals"; under Gen. Stat. § 12-117a. The City argues: "There is no statutory authority for an appeal to Court by a transferee of the property whether the transferee acquired the property after the appeal to the Board (and even more so, after the Board acted.)"
Connecticut law provides two methods by which a taxpayer may contest property taxes. That two-part statutory scheme for challenging assessments and reevaluations was outlined in Second Stone Ridge Cooperative Corporation v. Bridgeport, 220 Conn. 335, 339-42 (1991).
The first and most widely used method is to appeal the assessment to the board of assessment appeals and if the taxpayer is not satisfied it may appeal to the Superior Court under the provisions of Gen. Stat. § 12-117a. Woodbury v. Pepe, 6 Conn.App. 330, 332 (1986). The second method of challenging an assessment or revaluation is by way of Gen. Stat. § 12-119 wherein the taxpayer must allege and prove that its property has been wrongfully assessed. Section 12-119 "allows a taxpayer one year to bring a claim 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 . . .'" "Our case makes clear that a claim that an assessment is `excessive' is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes Gen. Stat. § 12-119 from its more frequently invoked companion, [12-117a]." Wilson v. Kelley, 224 Conn. 110, 118 (1992). Many tax appeals invoke both Gen. Stat. §§ 12-117a and 12-119. Reardon v. Stonington, Superior Court, judicial district of New London at New London, Docket Number 567065 (October 28, 2004, Hurley, J.T.R.).
Not all cases afford the remedies contained in both statutes. Gen. Stat. § 12-117a and Gen. Stat § 12-119 differ in purpose, whereas § 12-117a provides for a review of the amount of the assessment made on taxable property, § 12-119 contests the taxability of the property. Woodbury v. Pepe, supra, 6 Conn.App. 333.
The Supreme Court has liberally construed Gen. Stat. § 12-117a. Andover Limited Partnership I. v. Board of Tax Review, 232 Conn. 392, 401 (1995). In Andover the plaintiff commenced an appeal under Gen. Stat. § 12-117a and named the Board of Tax Review of the Town of West Hartford as the sole defendant. The statute required that the appeal "shall be accompanied by a citation to such town or city to appeal before such court." The statute also required the plaintiff to take a recognizance to such town or city. The plaintiff's appeal did neither. The trial court strictly construed Gen. Stat. § 12-117a and dismissed the appeal. The Supreme Court reversed and invoked the circumstantial defect statute, Gen. Stat. § 52-123, finding that the Town of West Hartford had actual notice of the appeal, knew it was the intended defendant and was not misled to its prejudice. Resnik v. City of New Haven, 12 Conn.Sup. 47, 48-49 (1943).
The plaintiff has the burden of proof under Gen. Stat. § 12-117a to prove aggrievement by the action of the Board of Assessment Appeals in that its property has been overassessed. The defendant claims that the tax evaluation system is a "snap shot" system and not a continuing process as in zoning matters.
Only after the court determines that the taxpayer has met his burden of proving that the assessor's valuation was excessive and that the refusal of the board of [assessment appeals] to alter the assessment was improper, however, may the court then proceed to the second step in a § 12-117a appeal and exercise its equitable power to grant such relief as to justice and equity appertains . . . If a taxpayer is found to be aggrieved by the decision of the board of [assessment appeals], the court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the applicant's property." (Emphasis added; internal quotation marks omitted.) Breezy Knoll Ass'n., Inc. v. Morris, 286 Conn. 766, 775-76, 946 A.2d 215 (2008).
J.C. Penny Corporation, Inc. v. Town of Manchester, 291 Conn. 838, 844-45 (2007).
The defendant argues that a different aggrievement standard pertains to tax appeals but fails to cite such a case. In zoning cases the law of classic assessment is as follow:
It is axiomatic that aggrievement encompasses a twofold test: First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The injury to his specific, personal and legal interest must "[affect his] property or other legal rights." Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502, 264 A.2d 566 (1969).
Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172, 175-76 (1985).
The court believes that the aggrievement requirements of a tax appeal is outlined by the J.C. Penny case and the administrative appeal aggrievement outlined in Goldfeld are the same.
The court makes the following findings and legal conclusion.
(1) The two statutes cited contain two different definitions. Gen. Stat. § 12-119 states that "an owner" may take an appeal whereas § 12-117a states that "any person" may take an appeal. Therefore, the plain and unambiguous language of Gen. Stat. § 12-117a is broader than the limitation of merely an "owner" in Gen. Stat. § 12-119. Conceivably a non-owner, non-lessee can be "any person" and commence a Gen. Stat. § 12-117a appeal.
(2) The phrase "any person" used in administrative appeals has been broadly construed in recent Supreme court decisions. Windels v. Environmental Protection Commission, supra, 284 Conn. 294; Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 812.
(3) The plain language of the two statutes does not distinguish between prior owners and subsequent owners.
(4) The plaintiff has alleged sufficient statutory aggrievement based upon the plain "any person" language of reading Gen. Stat. § 12-117a by reason of being the current owner of the real property at issue being obligated to pay the real estate taxes due upon the contested tax assessment.
(5) Plaintiff has alleged taxpayer standing. "Thus, our cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer `some pecuniary or other great injury.'" Alarm Applications v. Simsbury Volunteer Fire Company, 179 Conn. 541, 549 (1980); In this case it is alleged that the plaintiff is a taxpayer at the time of the Superior Court appeal. It is further alleged that it is paying more real estate taxes for their property under the illegal and excessive assessment.
(6) The plaintiff has alleged sufficient classical aggrievement under Hall v. Planning Commission, supra, 181 Conn. 444.
(7) The plaintiff has alleged sufficient classical aggrievement under J.C. Penny Corporation, Inc. v. Town of Manchester, supra, 291 Conn. 844-45.
(8) After a Gen. Stat. § 12-117a appeal is commenced by the original owner, a subsequent purchaser may intervene. Wallingford Center Associates v. Board of Tax Review, 68 Conn.App. 803, 804 (2002). The subsequent purchaser after intervening, can amend the appeal to include later assessment years during the period the subsequent purchaser was the owner. Id., 812.
(9) Southern Connecticut Newspapers, Inc., satisfied the standing requirements of Gen. Stat. § 12-111 since it was the owner of the premises on October 1, 2007 the assessment date and was the owner of the premises on March 24, 2008 the date of the denial of relief by the Stamford Board of Assessment Appeals. Therefore, there is no further need to examine or consult Gen. Stat. § 12-111 under the facts of this case.
(10) The defendant does not contest the right of the plaintiff to raise in the Second Count the violation of Gen. Stat. § 12-63d because the increased assessment was due to the recent sales price paid by the plaintiff. Inherent in a claimed § 12-63d violation is a determination of the then current fair market value; the very issue before a court in a Gen. Stat. § 12-117a appeal. Matzul v. Montville, 70 Conn.App. 442, 448 (2002); DeSena v. Waterbury, 249 Conn. 63, 84-85 (1999).
(11) Gen. Stat. § 12-117a and 12-119 are not inconsistent and both allow subsequent purchasers who have acquired title after the action by a Board of Assessment Appeals to bring a Superior Court tax appeal. Gen. Stat. § 12-111 is a separate and distinct proceeding, which does not include appeals to the Superior Court. Gen. Stat. § 12-111 relates only to standing before the Board of Assessment Appeals. Therefore, Gen. Stat. § 12-111 should not be used to read language and terms into Gen. Stat. § 12-117a. Frazier v. Manson, 176 Conn. 638, 642 (1979).
(12) The golden rule of statutory interpretation mandates that whenever a statute's plain language yields an absurd outcome, courts must not adopt that result even if the language is clear on its face. "The legislature cannot possibly have intended such an absurd result." State v. Orr, 291 Conn. 642, 689 (2009). "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result . . . Statutes must be construed, if possible, that absurdity and mischief may be avoided." (Citations omitted; internal quotation marks omitted.) Ford Motor Credit Company v. B.W. Beardsley, Inc., 208 Conn. 13, 20 (1988).
(13) If the defendant is correct, subsequent lessees who are obligated to pay real estate taxes pursuant to their leases have standing under Gen. Stat. § 12-117a but subsequent owners, who also have the obligation to pay these real estate taxes have no standing. This is not a common sense result.
(14) The defendant does not object to the plaintiff appealing the legality of its assessment under Gen. Stat. § 12-119 despite the fact that the plaintiff purchased the property between the date of the action of the Board of Assessment Appeals and date of this court appeal. The defendant does not object to the plaintiff being permitted to appeal under Gen. Stat. § 12-117a if it purchased the property before October 1, 2007 assessment date. The defendant does not object to the plaintiff being permitted to appeal under Gen. Stat. § 12-117a if it purchased the property before October 1, 2007 and the plaintiff filed the application to reduce the October 1, 2007 assessment with the Board of Assessment Appeals. The defendant does not object to the plaintiff contesting the October 1, 2008 assessment in this appeal since it was the owner on October 1, 2008. It is only in that small window of time after the action by the Board of Assessment Appeals and the commencement of this court appeal, when the plaintiff acquired the real property at 75 Tresser Boulevard, that the defendant argues that the plaintiff no longer has access to court.
(15) Not permitting the plaintiff to proceed on the First Count would strip Gen. Stat. § 12-63d of its statutory power since in general appeals under Gen. Stat. § 12-119 are more narrow.
(16) These findings and legal conclusions are consistent with General Realty Improvement Company v. New Haven, 133 Conn. 238, 241 (1946) (Owner in appeal under predecessor to Gen. Stat. § 12-119 met statutory requirements when they acquired title after the assessment date) and Danbury v. Dana Investment Corp., 249 Conn. 1, 16 (1999) (Subsequent purchaser had no right to allege excessive assessments as a special defense in a real estate tax foreclosure filed by the City. The case discusses subsequent purchaser's right to appeal pursuant to Gen. Stat. §§ 12-117a and 12-119).
Based on the above findings and legal conclusions the Motion to Dismiss dated September 25, 2008 (#101.00) is denied.