Opinion
No. FST CV 05-4007101 S
November 15, 2007
MEMORANDUM OF DECISION
This action is an appeal pursuant to General Statutes § 7-250 of a supplemental sewer assessment in the amount of $1,332,963 levied by the defendant Water Pollution Control Authority of the Town of Wilton (the "WPCA"). The appeal alleges that the assessment is unlawful under the General Statutes, the regulations of the Town of Wilton and the rules and regulations of WPCA for a variety of reasons including a claim that the WPCA has "already recovered all costs and expenses associated with the acquisition and construction of the sewerage project pertaining to the plaintiff's property" which is the subject of the assessment.
The defendants filed an answer admitting that an assessment was filed in the amount alleged, but otherwise denying the allegations of the appeal.
At issue are a "Motion for Partial Summary Judgment" dated April 12, 2007, filed by the defendants (#110.00) and "Plaintiff's Cross-Motion for Summary Judgment" dated April 13, 2007 (#112.00). Both motions address the plaintiff's claim that WPCA has already recovered the costs and expenses associated with the acquisition and construction of the sewerage project pertaining to the plaintiff's property. The defendants claim that the allegation is irrelevant to the validity of the special assessment, while the plaintiff claims that the undisputed fact that the defendants have already recovered such cost renders the special assessment invalid as matter of law.
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . .
(Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005)
[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is entitled to judgment as a matter of law.
(Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
The only supporting materials annexed to the defendants' motion is an affidavit signed by Joseph A. Dolan, Chief Financial Officer of the Town of Wilton. In that affidavit, Dolan states that the plaintiff's property is served by a sewerage system constructed starting in 1979, that on October 22, 1984 Wilton levied an assessment of benefits against the plaintiff's property in the amount of $247,270.40, that in 2001 the plaintiff constructed a commercial building on its property and that on December 27, 2004 the Town filed an assessment of benefits in the amount of $1,332,963 against the plaintiff's property. The plaintiff's cross motion is supported by extracts from the General Statutes, the Code of the Town of Wilton and the Regulations of the WPCA.
In their respective briefs supporting their own motions and opposing their opponents' motion, the parties set forth statements of fact on which they base their legal arguments. In large measure these statements of fact are not supported by facts admitted in the pleadings or by appropriate documents.
Appeals brought pursuant to General Statutes § 7-250 are required to be heard as trials de novo. In such an appeal "the court, without reference to an administrative record, receives evidence and acts as a finder of fact." O'Rourke v. Stamford, 179 Conn. 342, 345 (1979). When benefit assessments are made pursuant to General Statutes § 7-249, it is an issue of fact as to whether the increase in the market value of the property due to the improvement is greater than the benefit assessed. Bridge Street Associates v. Water Pollution Authority, 15 Conn.App. 140, 144 (1988).
Motions for partial summary judgment are often made either with respect to one or more counts in a complaint setting forth multiple counts or with respect to the issue of liability where only damages are in dispute. Practice Book §§ 17-44, 17-51. Neither party has cited any authority for their respective attempts to isolate a single issue (plaintiff's claim that the defendant is not authorized to base an assessment on costs it has already recovered) and resolve it on a motion for summary judgment. The court concludes that, to the extent the issue has been considered, Connecticut courts have rejected such attempts. See, for example: Telesco v. Telesco, 187 Conn. 715, 718-19 (1982); Electrical Contractors, Inc. v. City of Hartford, Docket Number CV 04-0831259S, Superior Court, Hartford J.D. (Scholl, J., March 17, 2006) [40 Conn. L. Rptr. 878]; Lee v. BSB Greenwich Mortgage, L.P., Docket Number X-08-CV 04-0200344S, Superior Court, Stamford/Norwalk J.D., Complex Litigation Docket (Jennings, J., August 31, 2007).
In this case neither party has presented any evidence with respect to the valuation of the plaintiff's property and the extent to which that property benefitted from the sewer improvements which form the basis of the assessment which the defendant has levied against the plaintiff's property. Since the evidence before the court on the parties' motions for summary judgment are insufficient to enable the court to determine that there are not material issues of fact, the court must deny both motions.