February 15, 2005
MEMORANDUM OF DECISION
On August 20, 2004, the plaintiff, Catherine R. Daniels, filed a four-count complaint against the defendants, the city of Norwich and its tax assessor, Charles S. Glinski. Therein, the plaintiff alleged the following. On October 1, 2003, the plaintiff was the owner of property at 242 and 210 Broadway in Norwich, Connecticut. The property consists of a parcel of land with two buildings upon it valued by the assessor at $415,000. The assessor determined that the property is liable for taxation at 70 percent of its true and actual valuation on the assessment date. Counts one and two are claims for the property at 242 Broadway pursuant to General Statutes §§ 12-117a and 12-119, respectively. Counts three and four are claims for the property at 210 Broadway pursuant also to §§ 12-117a and 12-119, respectively.
The defendants filed a motion to dismiss counts one and three on the ground that the plaintiff "failed to take an appeal to the Board of Assessment Appeals prior to bringing the instant action under . . . § 12-117a. It is the position of the defendants that this is a condition precedent to the bringing of a tax appeal." The defendants argue that the plaintiff's failure to bring an appeal to the board deprives this court of subject matter jurisdiction. They further argue that the procedure to be followed in bringing an appeal is prescribed in §§ 12-111 and 12-212 of the General Statutes with which the plaintiffs did not comply. In addition, they argue that "[m]istake or ignorance of fact is not ground [for recovery] where the public records show the facts, since public policy requires that taxpayers be presumed to know facts appearing of record."
In response, the plaintiff filed her memorandum of law in opposition along with her affidavit. She argues that the motion to dismiss should be denied because she did not receive notice of the tax valuation to contest it to the board pursuant to the procedures in §§ 12-111 and 12-117a. On September 17, 2004, the defendants submitted an affidavit from the assessor. This matter was heard on the short calendar on October 18, 2004.
"A motion to dismiss . . . properly attacks the jurisdiction of the court essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314 (1995). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250-51, 851 A.2d 1165 (2004). "A motion to dismiss [also] is used to assert jurisdictional flaws that . . . are alleged by the [party] in a supporting affidavit as to facts not apparent on the record." (Internal quotation marks omitted.) Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999).
"It is a settled principle of administrative law that if an adequate remedy exsits, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn 558, 563, 821 A.2d 725 (2003). "Because the exhaustion of [administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Neiman v. Yale University, supra, 270 Conn. 251.
The plaintiff has alleged that the defendants' failure to provide notice of any increases in valuation of her properties resulted in her inability to challenge the assessment by timely appeal to the board of assessment appeals pursuant to § 12-111 and then to the Superior Court pursuant to § 12-117a. In her affidavit, the plaintiff attests that the "assessor never notified [her] of the change in valuation of [her] properties or [her] appeal rights. [Her] first notice of [the] new revaluations was on or about July 1, 200, when the October 1, 2003, grand list became due and [she] received [her] tax bill." The defendants maintain that owners of properties who want to challenge their assessments must follow the appropriate statutory procedure either by appealing to the board of assessment appeals pursuant to § 12-111 and then the Superior Court as set out in § 12-117a or bringing a direct action to the Superior Court pursuant to § 12-119. They further argue that the failure to timely appeal the assessment to the board of assessment appeals prior to initiating this lawsuit in the Superior Court divests this court of subject matter jurisdiction.
A statutory scheme has been developed by the legislature for the assessment of real estate and the procedure for challenging that assessment. A taxpayer who is aggrieved by the actions of the assessor may appeal his or her decision to the board of assessment appeals as set out in § 12-111. Section 12-111 states in relevant part: "(a) Any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth . . ." If a taxpayer is aggrieved by the decision of the board of assessment appeals, the taxpayer may then proceed to appeal his or her decision to the Superior Court within two months from the date of notice of such action under § 12-117a. Buonauto v. Waterbury, Superior Court, judicial distinct of Waterbury, Docket No. CV 02 0172888 (December 22, 2003, Alvord, J.) ( 36 Conn. L. Rptr. 199). Section 12-117a states in relevant part: "Any person . . . 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 . . ."
In her affidavit, the plaintiff has stated that the date on which she first received notice of her revaluations was July 1, 2003. The year must be in error because the revaluation was generated from the October 1, 2003 and not the October 1, 2002 grand list. The defendants, in their memorandum of law in support of the motion to dismiss, neither concede nor refute the fact that the plaintiff did not receive notice of the revaluation until July 1, 2004. The defendants, however, submitted on September 17, 2004, an affidavit from the assessor in which he attests that at his direction, the "revaluation company mailed notice[s] of increase to all property owners located in the city of Norwich . . . [and] [n]o mail to the plaintiff was returned to [his] office." "Ordinarily if a letter is mailed to the correct address with the correct postage it is presumed that it was received." Pitts v. Hartford Life Annuity Ins. Co., 66 Conn. 376, 384, 34 A. 95 (1895). Such a presumption, however, can be rebutted by substantial countervailing evidence that it was in fact not received. C. Tait J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 5.2.2.
Notwithstanding the plaintiff's direct action under § 12-119 in counts two and four for the two properties respectively, she argues that pursuant to § 12-117a, counts one and three should not be dismissed because: (1) the purpose of the two statutes, §§ 12-117a and 12-119, is distinct and different and (2) she never received notice of the new assessment to timely file an appeal to the board of assessment appeals. Sections 12-117a "and 12-119 differ in purpose. The first is an avenue providing for a review of the amount of the assessment made on taxable property, whereas the second contests the taxability of the property." Woodbury v. Pepe, 6 Conn.App. 330, 333, 505 A.2d 723 (1986), affd. sub nom. Einbinder v. Board of Tax Review, 217 Conn. 240, 584 A.2d 1188 (1991). To bring a case under § 12-119, the complaint "must contain allegations beyond the mere claim that the assessor overvalued the property. [The] 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 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. The focus of § 12-119 is whether the assessment is illegal . . ." (Internal quotation marks omitted.) Reardon v. Stonington, Superior Court, judicial district of New London, Docket No. 567065 (October 28, 2004, Hurley, J.T.R.) (38 Conn. L. Rptr 165, 166). Since the plaintiff in counts one and three is challenging the excessiveness and not the illegality of the valuation, her remedy exists under § 12-117a. The Connecticut Supreme Court has "recognized an exception to the exhaustion requirement where recourse to the administrative process is futile or provides an inadequate remedy . . . An administrative remedy is futile or inadequate if the agency lacks authority to grant the requested relief." (Citations omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680 n. 3, 578 A.2d 1025 (1990); see also Derham v. Brown, Superior Court, judicial district of Hartford, Docket No. CV 99 0594305 (July 19, 2001, Peck, J.) ( 30 Conn. L. Rptr. 155) ("a party . . . may not, instead of appealing, bring an independent action to test the very issue which the appeal was desired to test").
Also, no provisions exist in the statutory scheme for bringing an appeal to the board of assessment appeals in which a city or town fails to provide proper notice to the taxpayer of the assessment or revaluation of properties. Instead, § 12-111 requires that following notification of an assessment or revaluation by the city assessor, the taxpayer must appeal to the board of assessment appeals within a specific time frame or by February 20, following notification of the assessment value. See General Statutes § 12-111.
The legislative history behind § 12-111 was reviewed in Trap Falls Realty Holding Ltd., Partnership v. Board of Tax Review, 29 Conn.App. 97, 612 A.2d 814, cert. denied, 224 Conn. 911, 617 A.2d 170 (1992). The legislative debate focused on time limits provided for in § 12-111, as amended in 1963, "to include the requirement that a board of tax review report its determination in writing within one week of its [decision.]" Id., 102. "[A] sponsor of the bill . . . stressed his concern for a notification provision that would avoid a situation where the time for appeal to the court would have elapsed before the taxpayer would have been aware of the disposition of his case . . . The concern of the entire debate was clearly that taxpayers get sufficient written notice of a board's decision in a timely fashion. The consequences of an untimely or delayed notice are obvious . . . a taxpayer might be denied the opportunity to appeal the board's decision in a number of situations in which the taxpayer is faultless." (Internal quotation marks omitted.) Id., 102-03. The Trap Falls court agreed with the plaintiff that § 12-111 does "not impose on an aggrieved property owner any inquiry requirement" about the board's decision; id., 100; and that the person specified to receive notice of the decision must receive either "actual or constructive notice" of that determination. Id., 103-04. The Appellate Court further stated that without proper notice, "the well established precept of a meaningful right to appeal" would be defeated. Id., 103. "[T]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue." (Internal quotation marks omitted.) Id.
In other cases dealing with the issue of notice, our courts have stated that § 12-111 requires the board to give notice within one week of its decision, and where the statutory mandate is not followed, proper notice can only be given commencing with either the date of the notice or the date of the mailing of the notice, not the date of the original decision by the board. See Integrated Systems v. Southington, Superior Court, judicial district of Waterbury, Docket No. 120368 (January 3, 1995, Sullivan, J.) ( 13 Conn. L. Rptr. 256); see also Appletree v. Board of Tax Review, Superior Court, judicial district of Hartford, Docket No. CV 95 0551837 (March 1, 1996, Aronson, J.) ( 16 Conn. L. Rptr. 323, 324) ("applicable time period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the decision"). The court in Mary Catherine Development Co. v. Glastonbury, 42 Conn.App. 318, 323, 679 A.2d 52 (1996) also concluded that the date that the decision of the board is issued is the operative date from which the appeal period commences. "Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless." Id., 320. "[I]t is a principle of natural justice of universal obligation, that before the rights of an individual be bound by a judicial sentence he shall have notice . . . of the proceedings against him . . . Fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." (Internal quotation marks omitted.) Id., 323; see Dohany v. Rogers, 281 U.S. 362, 369, 50 S.Ct. 299, 74 L.Ed. 904 (1930).
"`[A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity [to be heard].'" Worsham v. Greenberger, 242 Conn. 432, 440, 698 A.2d 867 (1997) (quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "Principles of due process require that aggrieved parties who receive no notice of an action . . . within [the time] . . . permitted [to bring an appeal may] challenge such an action after receiving notice." Munroe v. Zoning Board of Appeals, 261 Conn. 263, 272 n. 5, 802 A.2d 55 (2002). This rationale comports with decisions by the Connecticut appellate and trial courts with respect to notice provisions contained in statutes governing procedures for appeals from local agencies and that the applicable time period begins to run on the day on which the aggrieved party has meaningful notice of the decision. For example in Security Connecticut Life Ins. Co. v. Bajorski, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 387879 (June 26, 1991, Wagner, J.) ( 4 Conn. L. Rptr. 631, 6 C.S.C.R. 682), the commissioner mailed a copy of his decision on October 18, 1990, and the taxpayer received the decision by mail on November 15, 1990. The taxpayer appealed the commissioner's decision on December 14, 1990, more than thirty days after the mailing of the decision. The court held that the appeal period ran from the date of the receipt of the notice, not the date of mailing because a party cannot appeal from a decision unless the party has either actual or constructive notice of the decision. See also Tilo Co. v. Fishman, 164 Conn. 212, 214-15, 319 A.2d 409 (1972) (maintaining that although the plaintiff received notice of the decision late, the delay did not cause the plaintiff to lose his right to appeal because the appeal period began when the plaintiff actually received notice); Hubbard v. Planning Commission, 151 Conn. 269, 272-73, 196 A.2d 760 (1963) (any official action taken by the planning commission requires an announcement of it to the interested parties); Topar v. Sullivan, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0382656 (April 21, 2003, Doherty, J.) ("The time within which an appeal may be taken does not begin to run until the plaintiff receives notice of the condemnation . . . [a contrary] conclusion would raise serious due process concerns."); Dinan v. Appeal from Probate, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0379844 (March 1, 2001, Brennan, J.) (probate decree effective only after due notice to parties even if statute is silent on that issue); Seiler v. Castaneda, Superior Court, judicial district of Hartford, Docket No. CV 98 0577236 (February 28, 2000, Berger, J.) ( 26 Conn. L. Rptr. 629) (appellant's right of appeal is extended until receipt of notice).
The crux of these decisions is to ensure that notice is provided to the aggrieved party that comports with principles of due process. In the present case, the plaintiff attests that she failed to receive any notice of the tax assessment on her properties following their revaluation by the assessor. As a result, she was not able to file a timely appeal to the board of assessment appeals as set forth in § 12-11 or pursue an administrative remedy under § 124-17a. The legislature could not possibly have intended that the plaintiff be required to exhaust an administrative process of which she had no notice. The court has subject matter jurisdiction over counts one and three. Accordingly, the defendants' motion to dismiss counts one and three of the plaintiff's complaint brought pursuant to § 12-117a is denied.
D. Michael Hurley, JTR