14 MAMARONECK REINVESTMENT ASSOCIATES, LLC ET AL. v. TOWN OF FAIRFIELD.

2007 Ct. Sup. 22144
No. CV06 401 64 71 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
December 27, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
DALE W. RADCLIFFE, JUDGE.

FACTS
The plaintiffs, 14 Mamaroneck Reinvestment, LLC and 1375 Kings Highway, are the owners of three commercial parcels of real property located in the Town of Fairfield. The three properties, 1375 Kings Highway, 777 Commerce Drive, and 0 Frank Street, were assessed by the defendant, Town of Fairfield on the Grand List of October 1, 2005, as follows:

1375 Kings Highway 777 Commerce Drive 0 Frank Street
Land: $ 728,630 $ 2,225,020 $ 304,080
Buildings: $ 2,552,830 $ 3,762,430 $ 0
Outbuildings: $___ 79.800 143,290 $ 10,360
Total
Assessments: $ 3,361,260 $ 6,130,740 $ 314,440

The plaintiffs appealed the assessments to the Board of Assessment Appeals of the Town of Fairfield, and requested a hearing concerning each of the properties.

The Board of Assessment Appeals, pursuant to § 12-111[1] of the General Statutes, determined not to hold a hearing concerning 1375 Kings Highway and 777 Commerce Drive.

The plaintiffs claim that they did not receive an Action Notice dated February 22, 2006, notifying them of the decision not to conduct a hearing concerning the two improved properties.

The Action Notice was addressed to Attorney Ronald Kowalski, at Cacace, Tusch Santagata, 777 Summer Street, Stamford, CT 06901. The notice states that an appeal of the assessment may be taken within two CT Page 22145 months of the date of the letter.

Concerning the 0 Frank Street property, the plaintiffs claim that a hearing was scheduled for March 8, 2006, but was continued until March 21, 2006. At the March 21, 2006 hearing, the plaintiffs allege that their attorney was informed that the Board of Assessment Appeals had determined not to conduct an appeals hearing concerning 1375 Kings Highway and 777 Commerce Drive. They claim that this oral notification was their first notice of the decision.

The Town of Fairfield claims that the appeal concerning the Frank Street parcel was denied on March 21, 2006, and that a notice of the denial was sent to the plaintiffs on March 22, 2006.

The notice, which stated that an appeal could be taken within two months of the date of notice, was sent to 14 Mamaroneck Reinvestment Associates, LLC and 1375 Kings Highway, LLC at 777 Summer Street, Stamford, CT 06109. The notice was not addressed to the plaintiffs’ attorney, Ronald Kowalski, and did not reference the law firm of Cacace, Tusch Santagata.

The plaintiffs maintain that they did not receive either the Action Notice indicating that no hearing would be conducted concerning two of the parcels, or the notice of March 22, 2006, denying the appeal of the 0 Frank Street assessment. The plaintiffs do not maintain an office at 777 Summer Street, Stamford.

The plaintiffs contend that their first notification of any action by the Fairfield Board of Assessment Appeals concerning any of the three properties was received on April 25, 2006, via a FAX transmission from the Fairfield Tax Assessor. The FAX was prompted by an inquiry from the plaintiffs’ attorney.

This appeal was served on May 18, 2006 by a State Judicial Marshall.

The Town of Fairfield now moves for summary judgment concerning the two improved parcels, 1375 Kings Highway and 777 Commerce Drive. It argues that suit was not instituted within two months of notice of the decision not to hold an appeals hearing concerning the two parcels, and that the appeal cannot be maintained.

The 0 Frank Street property is not the subject of Fairfield’s motion for summary judgment. The appeal concerning the Board of Assessment Appeal’s decision concerning that property was instituted timely, pursuant to § 12-117a[2] of the General Statutes. CT Page 22146

The plaintiffs, in opposing the motion for summary judgment, insist that they never received the Action Notice of February 22, 2006, and that a genuine issue of fact exists concerning receipt of the notice.

STANDARD OF REVIEWS
A party seeking summary judgment has the burden of showing the presence of any genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). A material fact has been defined as one which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

Summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue of any material fact, and the moving party is entitled to a judgment as a matter of law.” Practice Book § 17-49; Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983). The party opposing a motion for summary judgment must do more than say that a genuine issue of material fact exists. That party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Miles v. Foley, 253 Conn. 381, 386 (2000); Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81 (1998).

The test to be applied is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, 246-47 (1990).

APPEAL OF DECISION WAS NOT COMMENCED WITHIN THE TIME PROVIDED BY STATUTE
In their complaint, paragraph 8, the plaintiffs claim that on March 21, 2006 they “learned for the first time that the Board had elected not to conduct a hearing on two of the parcels . . .” Therefore, they argue, they were permitted to begin an appeal within two months of March 21, 2006, the day they had actual notice of the Board’s determination.

They claim that the March 21 date should govern the period within which the appeal could begin, because they did not receive a copy of the February 22, 2006 Action Notice.

The plaintiffs’ claim that this case is governed by the Appellate Court decision in Trap Falls Realty Holding Limited Partnership v. Board CT Page 22147 of Tax Review, 29 Conn.App. 97 (1992), is not well taken.

Trap Falls involves an appeal from the granting of a motion to dismiss, based upon a failure to bring an appeal within the two-month statutory period.

Notice had been sent to the address of the property, despite the fact that an agent had appeared on behalf of the property owner, and the file contained two addresses: “Trap Falls Road and Bridgeport Avenue,” and “c/o Tenebaum Associates, Inc., 50 Columbus Blvd., Hartford, CT 06106.” The applicable statute, § 12-111 of the General Statutes, required that a board give written notice of its decision within one week following a determination.

The Court held that the statute imposed no burden on the property owner to make inquiry concerning whether a decision had been made by the agency, following a hearing. Instead, the statute mandates that the agency give written notice of its decision. Trap Falls Realty Holding Limited Partnership v. Board of Tax Review, supra, 100. Furthermore, when a property owner appoints an agent to represent him, in a hearing before the board, and the agent appears before the board, and requests that notice be sent to the agent’s address, a failure to notify the agent does not comply with the statute’s notice requirement, and an appeal can be maintained. Trap Falls Realty Holding Limited Partnership v. Board of Tax Review, supra, 104.

Here, it is acknowledged that the plaintiffs’ agent was notified that the board had already determined not to hold a hearing concerning two of the properties. Actual notice of that determination was received on March 21, 2006.

Section 12-111 contains a specific requirement, obligating the municipality to notify a property owner that it has determined not to conduct an appeal hearing “. . . not later than March 1st . . .” Therefore, a clear reading of the statute informed the plaintiffs either that a decision had been made, or that Fairfield had failed to comply with the notice requirements.

There is no evidence that the plaintiffs demanded that a hearing be held, based upon a failure to notify them prior to March 1st.

In Trap Falls, the court found that the property owner was not required to inquire concerning whether a decision, after hearing, had been made.

CT Page 22148 Here, the plaintiffs had actual notice that a decision had been made, within the time period when an appeal could have been instituted, and a statutory provision requiring notice by a date certain.

As stated in the affidavit of Leonard Blum, the chairman of the Fairfield Board of Assessment Appeals, notice was sent to the agent of the property owner on February 22, 2006. The Town of Fairfield, therefore, followed the procedure mandated by the Trap Falls holding.

The plaintiffs argue that the notice of decision concerning 0 Frank Street in March of 2006 was not received, and was addressed to the owners of the property at 777 Summer Street, Stamford, without reference to their attorney or his law firm. That notice is not germane to the motion for summary judgment, since this appeal was begun within two months of March 22, 2000.

However, if it is assumed that the outer envelope of the March 22, 2000 notice concerning 0 Frank Street was addressed in the same manner as the letter, the notification would have been insufficient pursuant t Trap Falls. Neither plaintiff maintained an office at 777 Summer Street, and the agent was not identified.

The plaintiffs, however, in a leap of faith unsupported by an evidentiary foundation, claim that because the letter of March 22, 2000 was improperly addressed, a genuine issue of fact exists concerning whether the envelope of the February 22, 2006 letter was properly addressed to the plaintiffs’ attorney.

This argument is creative, but thoroughly unpersuasive.

The letter of February 22, 2006, was addressed: “Ronald Kowalski, Cacace, Tusch Santagata, 777 Summer Street, Stamford, CT, 06901,” the precise address listed on the appeal filed with the Fairfield Board of Assessment Appeals. The notice complies with both the applicable statute, and the Trap Falls requirement.

Furthermore, in the absence of an outer envelope, it would be pure speculation and conjecture to find that the envelope was not addressed as was the enclosed letter.

In order to sustain the plaintiffs’ contention concerning the March 22, 2006 letter, one must assume that the outer envelope was addressed in the same form as the letter.

However, a contrary finding is necessary in order to find that the CT Page 22149 February 22, 2006 letter was improperly addressed.

The affidavit filed by the chairman of the Fairfield Board of Assessment Appeals demonstrates that written notification was sent to the attorney for the property owners on February 22, 2006.

The unambiguous record demonstrates that no appeal was begun within two months of the notification.

The plaintiffs’ claim that notice was not received is insufficient, standing alone, to raise a genuine issue of material fact. The appeal process begins when notice of the decision is sent, not when it is received. Appletree v. Board of Tax Review, 16 Conn. L. Rptr. 373
(1996); Mary Catherine Development Co. v. Glastonbury, 42 Conn.App. 318, 323 (1996). The inquiry is whether notice was sent, not whether it was in fact received. ABL Association v. Town of Manchester, 20 Conn. L. Rptr. 323 (1997).

The motion for summary judgment should therefore be GRANTED.

ISSUE IS PROPERLY RAISED BY MOTION TO DISMISS
Although the Town of Fairfield has demonstrated that no genuine issue of material fact exists, and is entitled to summary judgment, it would also prevail, had it chosen to raise this issue via a motion to dismiss.

The right of appeal is a creature of statute, and compliance with the statute’s provisions is mandatory, and jurisdictional in nature Simco v. Zoning Board of Appeals, 205 Conn. 413, 419 (1981); Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6 (1975). The failure to file a timely appeal goes to subject matter jurisdiction Holloway Brothers, Inc. v. Avon, 26 Conn.Sup. 164, 167 (1968).

Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise than the court lacks jurisdiction over the subject matter, the court is required to dismiss the action. Practice Book 10-33.

CONCLUSION
The motion for summary judgment filed by the Town of Fairfield i GRANTED, as to the properties located at 1375 Kings Highway and 777 Commerce Drive.

[1] Section 12-111, C.G.S. — “. . . the board may elect not to conduct CT Page 22150 an appeal hearing for any commercial, industrial, utility or apartment property with an assessed value of greater than five hundred thousand dollars. The board shall, not later than March 1st, notify the appellant that the board has elected not to conduct an appeal hearing . . .”
[2] Section 12-117a, C.G.S. — “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals . . . may, within two months from the date of mailing of notice of such action, make application to the superior court for the judicial district in which such town or city is situated . . .”

CT Page 22151

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