A. SECCHIAROLI SONS, INC. v. TOWN OF WATERFORD.

2010 Ct. Sup. 15681, 50 CLR 403
No. KNLCV095012759SConnecticut Superior Court Judicial District of New London at New London
August 3, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 105)
DEVINE, J.

Background and Facts
The plaintiff, A. Secchiaroli Sons, Inc. (Secchiaroli Sons), filed a two-count amended complaint against the defendant, the Town of Waterford, on November 6, 2009. The amended complaint alleges the following facts. Secchiaroli Sons is a Connecticut corporation that owns real property at 70 Miner Lane in Waterford, Connecticut (the property). The property is approximately twenty-one acres zoned residential and is primarily used as a pig farm. Waterford has the right under General Statutes § 7-137c to extend water mains into residential areas and may require property owners abutting any such water main to reimburse the municipality a proportionate share of the costs of extending the main. In cases of undeveloped land zoned for residential purposes, assessments determining the amount to be reimbursed are limited to a formula set forth in § 7-137c. The property at issue here falls within an exception set forth in § 7-137c. Notwithstanding this exception, Waterford, acting through its Water Pollution Control Authority, made a water assessment against the property in violation of the requirements of § 7-137c. Secchiaroli Sons maintains that the lien placed on its property based on the assessment and the assessment itself are both invalid.

Secchiaroli Sons further alleges that at or around the time of the assessment, Thomas B. Secchiaroli, Sr., an officer and director of the plaintiff, attended meetings with Waterford officials and was advised that Waterford would attempt to correct the assessment. Secchiaroli Sons relied on these statements and Waterford is now threatening to foreclose on the lien placed on the property by virtue of the invalid assessment. Secchiaroli Sons maintains that Waterford’s method of assessment amounts to a reclassification of property and is an attempted taking of the plaintiff’s property rights in violation of the fifth and fourteenth amendments of the constitution of the United States and under CT Page 15682 § 11 of article first of the constitution of Connecticut. Secchiaroli
Sons requests that the court invalidate the assessment and also seeks costs, attorneys fees and equitable relief.

On December 7, 2009, Waterford filed a motion to dismiss the amended complaint on the ground that the court lacks subject matter jurisdiction. On February 11, 2010 and March 10, 2010, Secchiaroli
Sons filed memoranda in opposition to the motion to dismiss. Waterford filed a memorandum in further support of the motion to dismiss on April 13, 2010. The matter was heard at short calendar on April 23, 2010.

Law and Analysis
“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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book §10-31(a).” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “The proper procedural vehicle for disputing a party’s standing is a motion to dismiss.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).

“When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315
(2008).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430
n. 12, 829 A.2d 801 (2003). “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of CT Page 15683 the dispute.” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.)Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081
(2002).

Here, Waterford has moved to dismiss this action on the ground that Secchiaroli Sons failed to file a timely statutory appeal under §7-137c. Specifically, Waterford argues that an administrative appeal under § 7-137c is the exclusive method to challenge a water main assessment and the plaintiff’s failure to file an appeal within the time period provided in § 7-137c deprives the court of subject matter jurisdiction to hear this action. Waterford also urges the court to draw on case law interpreting § 7-250, which governs sewer assessments, because of its substantial similarity to § 7-137c.

In its memorandum in opposition, Secchiaroli Sons argues the court should deny the motion to dismiss because the assessment was illegal and is void as a matter of law and that the action was timely brought. Secchiaroli Sons first notes that there is a substantial difference in the language in § 7-250 and § 7-137c, rendering § 7-250 inapplicable to this action. Next, Secchiaroli Sons argues that the language in § 7-137c
allows a flexible time for appeals and that the sixty-day time frame provided in § 7-137c is not the exclusive period for a statutory appeal. Third, even if the court finds the time period in § 7-137c is an exclusive period for appeals, Secchiaroli Sons argue that the assessment here is illegal and void as a matter of law because the assessment was made outside the authority granted by § 7-137c. Specifically, Waterford failed to comply with mandatory provisions of §7-137c requiring it to (i) defer assessments on land such as the property at issue here and (ii) adopt ordinances relating to the time and manner in which assessments are made. In addition, in its supplemental motion in opposition to the motion to dismiss, Secchiaroli Sons present the additional argument that the period for appeal in § 7-137c is personal and procedural, rather than substantive and jurisdictional, which allows it to bring the current action under the doctrine of equitable tolling, even if the sixty-day appeals period specified in § 7-137c has passed.

In its memorandum in reply, Waterford contests several of the arguments set forth above. First, it claims that the assessment is not void as a matter of law because Waterford has enacted ordinances, as required under § 7-137c, to determine the rules under which assessments may be made. Specifically, Waterford claims that § 7-137c does not specify “what type of ordinance authority the town requires to levy water assessments,” and CT Page 15684 here Waterford has enacted at least two ordinance provisions relating to water assessments. Second, Waterford argues that the appeals provision of § 7-137c is not permissive by the plain language of the statute. Third, Waterford notes that no authority has designated that the appeals period in § 7-137c as personal and procedural and without such a designation, Waterford argues, the court should follow the general legal rule for assessments that a party must follow the statutorily provided avenue for relief prior to seeking review.

As a preliminary matter, the court notes that the ground for dismissal stated by the original motion to dismiss is based upon the court’s lack of subject matter jurisdiction. In the course of the parties’ responsive pleadings, multiple issues of law and fact have been placed on the record before the court, extending the scope of the parties’ arguments far beyond the question of whether this court may hear the matter. The court reiterates that all that is necessary for the plaintiff to establish subject matter jurisdiction is to allege facts sufficient to show the court may exercise jurisdiction, and the court must indulge every presumption in favor of granting jurisdiction. Accordingly, this court shall only address those arguments that go to the question of subject matter jurisdiction. Should the court determine that this matter is within its jurisdiction, other questions of law and fact may then be raised by the parties in the appropriate motion. As to the arguments raised here, the court shall examine two jurisdictional questions: (i) whether the court has subject matter jurisdiction to hear this action under the authority of § 7-137c, which includes the question of whether the appeals period in § 7-137c is procedural or jurisdictional, and (ii) whether the court may hear this action on the basis of some authority outside of § 7-137c.

I. Jurisdiction based on an appeal under § 7-137c
The court shall first address arguments relating to the court’s jurisdiction to hear this matter under § 7-137c. “The principles that govern statutory construction are well established. When construing a statute, [o]ur 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, General Statutes § 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 CT Page 15685 shall not be considered.” (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).

“It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . Because [e]very word and phrase [of a statute] is presumed to have meaning . . . [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Internal quotation marks omitted.) PJM Associates, LC v. Bridgeport, 292 Conn. 125, 138, 971 A.2d 24 (2009). “It is the general rule, with reference to special assessments of benefits, that an assessment legally made cannot be attacked in a collateral proceeding but requires pursuit of the statutory remedy for review, unless the assessment is void.” Vaill v. Sewer Commission, 168 Conn. 514, 518, 362 A.2d 885 (1975).

Section 7-137c is located within title 7 of our General Statutes in chapter 97, which encompasses general provisions for municipalities. The statute provides, in relevant part: “Any municipality may appropriate funds to extend or cause to have extended water mains (1) into areas to be used for industrial or commercial purposes or partly for industrial or commercial purposes and partly for residential purposes, or (2) into residential areas or into areas zoned for residential use. Notwithstanding the provisions of any special act, the municipality may pay the cost of such extension or may require each owner of property which abuts any such main to reimburse the municipality such owner’s proportionate share of the cost of such extension at such time and by such rule as the municipality by ordinance determines . . . In the case of land zoned for other than commercial or industrial purposes or classified . . . as farm land, forest land or open space land . . . which exceeds by more than one hundred per cent the size of the smallest lot permitted in the lowest density residential zone allowed under zoning regulations, or in the case of a town having no zoning regulations, a lot size of one acre in area and one hundred fifty feet in frontage, assessment of such excess land shall be deferred until such time as such excess land shall be built upon or a building permit issued therefor or until approval of a subdivision plan of such excess property by the planning commission having jurisdiction, whichever event occurs first, at which time assessment may be made as provided in this section. The municipality shall place a caveat on the land records in each instance where an assessment is deferred. Such share shall represent a reasonable proportion of the total cost of such water mains . . . Such shares shall be proportioned in such a way as to ultimately leave the municipality free of any of the cost of the extension of the water main . . . Within sixty days of an assessment under this section, the owner of any property so assessed may appeal to the superior court for the judicial district CT Page 15686 within which such land is situated from the valuation of his assessment, by service of process made in accordance with the provisions of section 52-57. Such appeal shall be a privileged case and shall not stay any proceeding under this section. The court shall have the power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appears equitable.” General Statutes § 7-137c.

A.
The first issue of statutory construction is one raised by the parties and involves whether the term “may” should be construed as indicating a mandatory or permissive period for appeals under § 7-137c. The language at issue provides: “Within sixty days of an assessment under this section, the owner of any property so assessed may appeal to the superior court for the judicial district within which such land is situated from the valuation of his assessment, by service of process made in accordance with the provisions of section 52-57.” (Emphasis added.)

Waterford argues that the sixty-day appeals period to challenge a water assessment is mandatory and the sole avenue of appeal for an aggrieved party, and that because Secchiaroli Sons failed to bring its appeal within this time its claims are barred. Secchiaroli Sons counter that the word “may” indicates that it did not have to file an appeal within the specified time period and maintains that “the legislature intended to permit the court to forgive the sixty day requirement where justice and equity requires it to do so.”

“[A]s opposed to `[d]efinitive words, such as must or shall, [which] ordinarily express legislative mandates of a nondirectory nature’ . . . the word `may’ imports permissive conduct and the conferral of discretion . . . Only when the context of legislation permits such interpretation and if the interpretation is necessary to make a legislative enactment effective to carry out its purposes, should the word `may’ be interpreted as mandatory rather than directory.” (Citations omitted.) State v. Bletsch, 281 Conn. 5, 17-18, 912 A.2d 992 (2007).

“There is no especial significance in the fact that [a statutory provision] reads that appeals `may’ be taken to the Supreme Court of Errors rather than that they `shall’ be so taken. The word `may’ when used in a statute is to be interpreted as mandatory rather than permissive if the context permits it and it is necessary to do so in order to make the statute effective to carry out the legislative intent.” Lake Garda Co. v. LeWitt, 126 Conn. 588, 590-91, 13 A.2d 510 (1940).

A plain reading of § 7-137c lends itself to the interpretation that the CT Page 15687 term “may” is permissive insofar as it gives a property owner the option
to appeal or not appeal from the valuation of an assessment. The use of a mandatory term, such as “shall,” in this sentence would lend itself to the interpretation that appeals must be taken in all cases, an illogical interpretation. Nevertheless, it does not follow that this permissive reading of “may” should be extended to the sixty-day period for appeals set forth earlier in the sentence. Examining the structure of the sentence, the sixty day requirement is found in the first clause and provides a temporal frame for subsequent provisions. The word “may” appears in the second clause and does not purport to relate back to or modify the first clause. In addition, applying “may” to the first clause and construing the sixty days as a permissive period for appeals renders this time limitation meaningless because a property owner could opt to bring an appeal either within sixty days or at some later date. This interpretation is contrary to the principle that a statute “must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”

The court can find no sound basis upon which to apply “may” to the first clause of the sentence at issue without unduly torturing its plain meaning. Accordingly, the court finds that § 7-137c provides a mandatory sixty-day period for appeals to challenge the valuation of an assessment and that the term “may” indicates that a property owner has the option of bringing such an appeal during this time.

B.
A second question of statutory interpretation raised by the parties relates to whether the sixty-day period set forth in § 7-137c is the exclusive period for appeals. Waterford argues that this specified time frame provides the exclusive period for the appeal of all assessments made under § 7-137c. Secchiaroli Sons argues that the final sentence in § 7-137c provides a broader grant of jurisdiction to the Superior Court based in equity, and that the court should take jurisdiction here because the acts of Waterford went beyond what was permitted under §7-137c.

The statutory language at issue and the two preceding sentences, all of which relate to appeals under § 7-137c, provide: “Within sixty days of an assessment under this section, the owner of any property so assessed may appeal to the superior court for the judicial district within which such land is situated from the valuation of his assessment, by service of process made in accordance with the provisions of section 52-57. Such appeal shall be a privileged case and shall not stay any proceeding under this section. The court shall have the power to grant such relief as to CT Page 15688 justice and equity appertains, upon such terms and in such manner and form as appears equitable.” General Statutes § 7-137c.

Section 7-137c does not specify any alternative appeals process by which a party may challenge the legality of an entire assessment. While Secchiaroli Sons invokes the final sentence of § 7-137c and argues that its broad language provides a separate basis upon which it may bring an appeal, this provision must be read in the context of the preceding sentences. Taken together, the ultimate sentence is shown to merely continue the discussion of the sixty-day appeals period from the two previous sentences. While the sentence does provide the Superior Court with broad equitable jurisdiction on appeals, the type of appeal it refers to is still one that must be made within sixty days of an assessment. Accordingly, the court finds that the sentence at issue does not provide an alternative means by which the Superior Court may take jurisdiction once the prescribed period for an appeal of the valuation of an assessment has passed.

C.
Next, the court shall address is whether the period for appeal in §7-137c is personal and procedural or substantive and jurisdictional. The plaintiff argues, in a conclusory manner, that the statute is personal and procedural, citing in support the recent decision in Wiele v. Board of Assessment Appeals, 119 Conn. 544, 988 A.2d 889 (2010), which in turn relies on L.G. De Felice Son, Inc., v. Wethersfield, 167 Conn. 509, 356 A.2d 144 (1975), for the law on whether a statute of limitations is procedural or jurisdictional.

In De Felice, our Supreme Court stated: “Generally, limitations on actions . . . are considered procedural or personal and thus subject to waiver . . . This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available . . . Such is not considered to be the case, however, where a specific limitation is contained in the statute which establishes the remedy. Here the remedy exists only during the prescribed period and not thereafter . . . In such situations the Statute of Limitations is considered substantive o jurisdictional rather than procedural or personal . . . Since the expiration of the cause of action is jurisdictional, the court could properly raise the question of jurisdiction on its own motion . . . The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone.” (Citations omitted; emphasis in original; internal CT Page 15689 quotation marks omitted.) Id., 512. Our recent case law has reaffirmed this legal principal. See, e.g., Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 23 (2004).

As applied to statutory appeals from administrative actions, “[t]here is no absolute right of appeal to the courts from a decision of an administrative agency.” (Internal quotation marks omitted.)Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 262, 715 A.2d 701 (1998). “Appeals to the courts from . . . boards exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory . . . provisions in which it has its source.” (Citations omitted; internal quotation marks omitted.)Charles Holdings, Ltd. v. Planning Zoning Bd. of Appeals, 208 Conn. 476, 479 (1988).

Applying these principals to the present case, by its plain language §7-137c provides: “within sixty days of an assessment . . . the owner of any property so assessed may appeal to the superior court . . . from the valuation of his assessment . . .” This is the only language relating to appeals in § 7-137c, and thereby appears to limit the path for appeals to the specified sixty-day time frame, which makes the limitation substantive and jurisdictional. In addition, the legal authority of a municipality to make water assessments is a statutory creation that did not exist at the common law prior to the enactment of authorizing legislation. Similarly, the mechanism and time limitation for the appeal for the valuation of a water assessments did not predate the enactment of § 7-137c and did not exist under the common law. Accordingly, the court finds that the time period to appeal the valuation of a water assessment provided in § 7-137 is substantive and jurisdictional rather than personal and procedural.

For the foregoing reasons, the court finds that it does not have jurisdiction to hear an appeal for the valuation of the assessment because such an appeal is limited to the time period provided in § 7-137, which has expired.

II. Jurisdiction based on the invalidity of the assessment
The second basis upon which this court may exercise subject matter jurisdiction is based on the argument that the assessment by Waterford exceeded the authority granted by § 7-137c. Secchiaroli Sons argue that Waterford failed to defer the assessment of the property at issues CT Page 15690 and did not adopt ordinances describing the time and rules by which assessments would be made, which are both required under the express language of § 7-137. In response, Waterford argues the assessment is valid because Waterford has adopted ordinances relating to water assessments and § 7-137c does not specify what type of ordinances the town must enact.

“It is the general rule, with reference to special assessments of benefits, that an assessment legally made cannot be attacked in a collateral proceeding but requires pursuit of the statutory remedy for review, unless the assessment is void.” Vaill v. Sewer Commission, 168 Conn. 514, 518, 362 A.2d 885 (1975); see also Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 419 n. 14, 797 A.2d 494 (2002); DeCaro v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 4013485 (April 30, 2009, Tierney, J.T.R.).

As discussed above, the court does not have jurisdiction to hear this action pursuant to § 7-137c because the statutorily prescribed time period for appealing the valuation of a water assessment has passed. Nevertherless, if the assessment has not been “legally made” and is therefore “void” then Secchiaroli Sons has stated a distinct and valid basis upon which the court may exercise jurisdiction that falls entirely outside the bounds of the restrictive period for appeals provided in §7-137c.

Our ancient case law provides an example, strikingly similar to the present action, wherein a challenge is raised to the validity of an assessment on the ground that the court’s lack of jurisdiction to hear the claim. In New Haven v. Fair Haven W.R. Co., 38 Conn. 422 (1871), the court discussed the issue of whether a defendant could collaterally attack an invalid assessment or whether the only avenue for relief was to appeal from the assessment. The court identified the precise legal question before it as follows: “A preliminary question is made by the plaintiff, and that is whether the defendant is not now precluded from making this defense, on the ground that it can only be made on an appeal from the assessment, as provided in the charter. The charter provides in substance, that if any person shall be aggrieved by any such assessment, he may apply for relief to the Superior Court for the county of New Haven, and prescribes the time and manner of making the application. If the defendant has any defense, we think it is not precluded from making it in this action. [The action] is not [raised] on the ground that the assessment is disproportionate. If it was, it is quite clear that the defendant’s only remedy would be by application for relief to the Superior Court. But the defense is more radical — it denies the right of the city to make any assessment. In this proceeding the city exercised CT Page 15691 limited and special powers. The extent of the jurisdiction is defined and limited by the charter. If [the city] acted within its jurisdiction, the assessment is valid and binding unless appealed from. If [the city] acted outside of its jurisdiction, the act is unauthorized and void, and confers no rights upon the city, and imposes no obligation upon the party assessed. It being a jurisdictional question, and relating to the proceedings of a tribunal with special and limited powers, we are clearly of the opinion that it is an open question in this action.” New Haven v. Fair Haven W.R. Co., supra, 38 Conn. 429-30.

Similar to New Haven v. Fair Haven W.R. Co., Secchiaroli Sons alleges in its amended complaint that Waterford exceeded the “limited and special powers” granted under § 7-137c. The alleged failures of Waterford to abide by the requirements of the statute included that it neglected to defer the assessment on the property at issue here and that it failed to set forth any ordinances relating to the time and rules by which property owners shall reimburse the costs of an assessment to the municipality. The court need not decide here whether the ordinances promulgated by Waterford meet the requirements of § 7-137c in order to determine the question of its own subject matter jurisdiction to hear these claims. Accordingly, construing the pleadings in favor of nonmovant and in favor of the court exercising jurisdiction, the court finds that Secchiaroli Sons have set forth allegations sufficient to state a cause of action over which this court may exercise subject matter jurisdiction.

ORDER
For the foregoing reasons set forth above, the plaintiff’s motion to dismiss is hereby denied.

CT Page 15692