257 BLAKE, LLC v. TOWN OF SEYMOUR ET AL.

2009 Ct. Sup. 13340, 48 CLR 350
No. CV08 4031348 SConnecticut Superior Court Judicial District of New Haven at New Haven
August 4, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
DAVID W. SKOLNICK, Judge Trial Referee.

The plaintiff, 257 Blake, LLC, appeals the decision of the defendant, Joseph Kusiak, the tax assessor for the town of Seymour (the assessor), to re-assess certain parcels of its land, located on Warren Drive, as “individual subdivision lots” for tax purposes. The town of Seymour (Seymour) is additionally named as a defendant. In re-assessing the plaintiff’s properties for the October 1, 2007 grand list, the assessor acted pursuant to § 12-55 of the General Statutes. The plaintiff appeals pursuant to § 12-119 of the General Statutes.

The plaintiff was notified of the assessor’s decision by written notice dated March 6, 2008. Within two months of receiving said notice, the plaintiff served the defendants by having the state marshal deliver the appeal papers to the assessor and the assistant town clerk in Seymour. The plaintiff’s application was filed with the clerk of the Superior Court on May 19, 2008. The defendants filed an answer on June 10, 2009. The parties have additionally filed briefs, as well as a joint stipulation of facts.

The facts, as stipulated to by the parties, are as follows. At all relevant times, the plaintiff owned the parcels of land in Seymour known as 27, 29, 30, 31, 32, 33, 35, 37, 38, 39, 40, and 41 Warren Drive (the property). On October 14, 2004, Seymour granted the plaintiff subdivision approval for the property. This approval, however, was appealed and did not become effective until July 26, 2007. Shortly thereafter, Seymour executed the necessary subdivision map. Yet, despite the expiration of the subdivision appeals and the execution of the subdivision map, Seymour did not return the subdivision map to the plaintiff for recording until February 27, 2008. Between July 26, 2007 and February 27, 2008, the plaintiff requested two extensions of time so that the subdivision approval would not expire due to the failure of Seymour to return the subdivision map to the plaintiff for recording. Upon the eventual receipt of the subdivision map, the plaintiff promptly filed it.

CT Page 13341

In a correspondence dated March 6, 2008, Seymour informed the plaintiff that it had reassessed the property as “individual subdivision lots” on its October 1, 2007 grand list. This determination subjected the plaintiff to a tax liability of seventy percent of the property’s true and actual valuation as of that date. The plaintiff appeals this determination.

General Statutes § 12-119 provides in relevant part: “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 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 . . . prior to the payment of such tax, may, in addition to other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

Section 12-119 “does not act in any way as . . . an appeal [from the board of tax review]. It provides another and different method of attacking the validity of an assessment upon two different grounds included in its provisions, and upon those only.” (Internal quotation marks omitted.) E. Ingraham Co. v. Bristol, 146 Conn. 403, 407, 151 A.2d 700 (1959), cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed. 352
(1960).

“In contrast to § 12-117a, which allows a taxpayer to challenge the assessor’s valuation of his property, § 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or 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 . . . [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.” (Emphasis in original; CT Page 13342 internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 339-41, 654 A.2d 1233 (1995); accord Interlude, Inc. v. Skurat, 253 Conn. 531, 538, 754 A.2d 153 (2000); Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 30-31, 633 A.2d 1368 (1993).

“Claims under § 12-119 must fall into one of . . . two categories . . . The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . This category includes claims alleging that the municipality has exceeded the scope of its taxing power. Cases that fit in this category include Fenwick v. Old Saybrook, 133 Conn. 22, 24, 47 A.2d 849 (1946) (municipality cannot tax a public park established by a borough of the municipality), and First National Bank Trust Co. v. West Haven, 135 Conn. 191, 194, 62 A.2d 671 (1948) (municipality has no authority to tax the property of a national bank). See also Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 332 A.2d 83 (1973) (utility right-of-way generally not taxable separate from freehold to which attached) . . .

“The second category consists of claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property . . . Cases in this category 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 . . . [S]ee E. Ingraham Co. v. Bristol, supra, [146 Conn.] 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value); Stratford Arms Co. v. Stratford, 7 Conn.App. 496, 500, 508 A.2d 842 (1986) (property could not be taxed as condominiums when still legally an apartment building at date of assessment). The statute applies only to an assessment that establishes a disregard of duty by the assessors.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 340-42, 597 A.2d 326
(1991); see also Timber Trails Associates v. New Fairfield, 226 Conn. 407, 418, 627 A.2d 932 (1993) (upholding trial court’s decision to affirm CT Page 13343 appeal pursuant to § 12-119 because reassessments of property, based upon improper declassification of forest land, were manifestly excessive); NSA Properties, Inc. v. Stamford, 100 Conn.App. 262, 917 A.2d 1034 (2007) (upholding trial court’s decision to affirm appeal pursuant to § 12-119
because denial of tax exemption is not an illegal assessment).

In its application dated April 29, 2008, the plaintiff contends that the assessor incorrectly re-assessed the property on October 1, 2007 when he classified the property as individual subdivision lots. “Claims that an assessor has misclassified property and, consequently, overvalued it, comprise a category of appeals frequently pursued under the aegis of §12-119 . . . In such cases, the determinative issue typically is whether, as a matter of law, the property at issue properly was subject to taxation as the type of property falling within the classification applied by the assessor . . . If the plaintiff can show that it was not, it necessarily follows that the resulting assessment was manifestly excessive.” (Citations omitted.) Griswold Airport, Inc. v. Madison, 289 Conn. 723, 740-41, 961 A.2d 338 (2008). The plaintiff’s application, therefore, appears to be properly made under General Statutes § 12-119, and accordingly, the court must consider the substantive arguments presented by the parties.

In its memorandum of law, the plaintiff contends that “the Town of Seymour placed a condition of the Subdivision Approval (i.e., the Bond Condition) and withheld the delivery of the Subdivision Map to the Plaintiff pursuant to Section 6.3 of the Seymour Zoning Regulations until said condition was satisfied. Based upon the foregoing, the Town of Seymour treated the compliance with said condition as a condition precedent to final approval. Otherwise, the Town of Seymour would have had to deliver the Subdivision Map to the Plaintiff for recording within thirty days of the Appeal Expiration Date as required by Connecticut General Statutes Section 8-25(a).” Essentially, the plaintiff argues that the bond requirement placed on it by Seymour in a letter dated November 1, 2004 is a condition precedent, thus rendering the property as something other than “individual subdivision lots” until the bond condition was satisfied, thus rendering the approval effective. In their brief, the defendants counter that the bond was a condition subsequent to approval, that precedent supports the proposition that the subdivision approval takes effect before the filing of the subdivision map and that “[i]t is clear that the date of approval by the Planning and Zoning Commission is the defining moment for a reassessment because on that date, the raw land now becomes a viable and legal subdivision.”

The plaintiff’s legal argument is that its “case falls within the exception contemplated by Fyber Properties, [228 Conn. 476, 636 A.2d 834
CT Page 13344 (1994)], in which [the Supreme Court] . . . held that, as a general rule, subdivision approval, rather than recording of a subdivision map, furnishes an appropriate occasion for the revaluation and reassessment of real property. In Fyber Properties, [the Supreme Court] relied in [its] analysis of the applicable real property statutes to conclude that [t]he legislature has . . . indicated that, in the subdivision of property, the focal point is the date of approval . . . [The Supreme Court] declined to decide, however, the date upon which a property becomes taxable as a subdivision if the approval has been appealed, or conditions imposed upon an approval have not been fully satisfied before the assessment date.” (Citations omitted; emphasis added; internal quotation marks omitted.)Pauker v. Roig, supra, 232 Conn. 344.

The plaintiff’s brief, however, fails to consider the subsequent law established by Pauker v. Roig, supra, 232 Conn. 335. In Pauker, the Supreme Court once again addressed the effect of such approval conditions and “discern[ed] a bright-line rule underlying our taxing and real property statutes with regard to subdivision approvals. Absent an appeal challenging its validity, the approval of a subdivision authorizes a tax assessor to tax the property as subdivided lots rather than as the undifferentiated parcel or parcels that preceded the approval. The authority to tax subdivided lots in such a manner means that taxpayers have no basis for challenging such a revaluation under § 12-119. To the extent that conditional approvals deprive taxpayers of immediate economic returns from their investment, such conditional approvals raise issues only of valuation, which properly may be addressed only by appeals under § 12-117a.” (Emphasis added.) Id., 345. Although the plaintiff may attempt to distinguish the bond condition in this case from the conditions imposed in Pauker, the court believes that it would be a disservice to the “bright-line rule” clearly established in that case to find that such highly technical distinctions effectuate a different result. Id., 337 345. Furthermore, unlike an actual misclassification, such as the one in Griswold Airport, Inc., the essence of this claim is the mere timing of a condition. Neither party contends that the property is presently anything other than “individual subdivision lots.” Thus, this case falls under the clear purview of bot Pauker and Fyber Properties.

An appeal pursuant to § 12-119, therefore, although generally proper in cases of misclassification, is improper in this case. Rather, after considering the Supreme Court’s holding in Pauker, the assessor’s inclusion of the property on the October 1, 2007 grand list as “individual subdivision lots” was proper[1] and any further issues regarding the bond condition’s effect on the property’s economic value on that date must be resolved by a valuation appeal under § 12-117a. CT Page 13345 Accordingly, the plaintiff’s application pursuant to General Statutes §12-119 is denied.

[1] Both parties seemingly assume that the prior appeal challenging the approval’s validity does not effect the outcome of this case because neither party discusses its relevance at length in their respective briefs. Although the Supreme Court does not reach the effects of such an appeal in Pauker, the court agrees that the mere existence of a previously resolved approval appeal does not change the outcome of this § 12-119
appeal. The assessor did not attempt to include the property on the grand list as a subdivision until after the appeal challenging approval had reached its conclusion. The potential issues alluded to by the Supreme Court in Pauker and Fyber Properties exist only if the assessor had hypothetically attempted to include a property on the grand list as a subdivision after its approval, but before the completion of the appeal challenging said approval. During the approval appeal process, it would prove to be difficult to ascertain whether an approval was indeed effective or not because the result of the approval appeal could render the initial approval invalid. Such is not the case under these facts.

CT Page 13346