2004 Ct. Sup. 16237, 38 CLR 147
No. 562692Connecticut Superior Court, Judicial District of New London at New London
October 21, 2004
MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT #127
HURLEY, JUDGE TRIAL REFEREE.
On June 27, 2002, the plaintiff, Rand-Whitney Containerboard, filed an appeal from the Board of Assessment Appeals (BAA) of the town of Montville, Connecticut, pursuant to General Statutes § 12-117a.[1] In its appeal, the plaintiff claims that after it appeared before the BAA to appeal the October 1, 2001, revaluation assessment of its real estate, the BAA increased the assessment without fist providing notice to the plaintiff to show cause why the increase should not be made, as set forth in General Statutes § 12-111. Subsequently, the plaintiff, on April 5, 2004, moved for summary judgment on the ground that in failing to first provide this notice to the plaintiff before it increased its assessment, the BAA violated § 12-111.
The BAA filed a memorandum of law in opposition to the motion for summary judgment, arguing that § 12-111 does not require that the BAA issue a separate notice and an opportunity to be heard when the aggrieved taxpayer has already appeared before it. The BAA argues that the initial appeal brought by the plaintiff allowed for the BAA to retain its authority to increase the assessment of the plaintiff’s property.
Practice Book § 17-49 “provides that summary 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). CT Page 16238
The parties have not put into dispute any of the material facts relating to the motion currently before the court. What is in dispute is whether § 12-111 required the BAA to issue a notice and an opportunity to be heard to the plaintiff before it increased the assessment of the plaintiff’s property, even though the plaintiff had already been heard on its appeal of the defendant’s initial assessment.
Section 12-111 states that before a municipal board of assessment appeals proceeds “to increase the assessment of any person . . . it shall mail to him . . . at least one week before making such increase . . . a written or printed notice . . . to appear before such board and show cause why such increase . . . should not be made.” The plaintiff argues that this provision required the BAA to notify the plaintiff before it increased the tax assessment of its property. The defendant, however, counters that § 12-111 only required the BAA to notify the plaintiff provided that the plaintiff had not already taken the opportunity to appear before the BAA and plead its case. The defendant argues further that upon taking its initial appeal, the plaintiff had an opportunity to present its case before the BAA, and nothing in § 12-111 dictates that the BAA had leave to only decrease or leave the assessment unchanged. The defendant asserts that it would not make sense for the BAA, after hearing a taxpayer’s appeal, to call back the taxpayer and allow him the opportunity to plead his case a second time. Thus, only absent the opportunity to be heard on an appeal should the BAA have to notify the plaintiff before it increases its tax assessment.
This court agrees with the defendant. No courts have yet considered this question, but a plain reading of § 12-111 suggests that the purpose of the statute is to provide a taxpayer with an opportunity to be heard before the BAA regarding the levy of a tax assessment. The statutory section contemplates that a taxpayer should seasonably ascertain whether the valuation placed on his property was correct, and, if it was considered erroneous, resort to appeal. Pitt v. City of Stamford, 117 Conn. 388, 393-94, 167 A. 919 (1933). The plaintiff had taken issue with the defendant’s assessment of its property, and subsequently filed an appeal with the BAA. It had the opportunity to present evidence as to its opinion of the proper assessment of its property, and left the BAA to its decision. The BAA then proceeded to take action as it saw fit. A municipal board of tax review has the unilateral power to equalize and adjust valuations and assessment lists submitted by assessors. Albert Bros., Inc. v. Waterbury, 195 Conn. 48, 50, 485 A.2d 1289 (1985).
Subsequent to the decision of the BAA, the plaintiff then had the option of a subsequent appeal to the superior court, pursuant to § 12-117a. CT Page 16239 The plaintiff has already commenced this appeal. This court, however, in considering the appeal of the plaintiff cannot render judgment in favor of the plaintiff based on its claim that § 12-111 required the BAA to notify the plaintiff before it made its decision to increase the tax assessment. The plaintiff had an opportunity to be heard before the BAA, and the BAA adjusted the plaintiff’s tax assessment accordingly. The only remedy currently available to the plaintiff is for it to present its evidence to the superior court, which conducts a de novo review, and if the court were to find the taxpayer aggrieved, it is free to exercise its independent judgment to arrive at a just valuation of the taxpayer’s property. Ireland v. Wethersfield, 242 Conn. 550, 558-59, 698 A.2d 888
(1997). Accordingly, the motion for summary judgment is denied.
D. Michael Hurley, JTR
CT Page 16240