NF v. Branford (2009)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

PROCEDURAL AND FACTUAL BACKGROUND

On April 22, 2009, the plaintiffs, NF & W Cooke Limited Partnership and Cooke/Harrison Family Partnership, filed a two-count application for relief from excessive taxation against the defendants, the town of Branford (the town), the town of Branford office of tax assessor (tax assessor) and the town of Branford board of assessment appeals (board of assessment appeals).¹  In their application, the plaintiffs allege the following facts.   The plaintiffs own property located at 573 East Main Street in Branford.   This parcel of land is identified as block 002 and lot 0001 on the town assessor's map J04. The plaintiffs contend that the tax assessor's determination of the value of the tax on the subject property is “manifestly excessive, disproportionate, and unlawful and could not have been arrived at except by disregarding the statutes for determining the valuation of said properties.”   As a result, the plaintiffs appealed this valuation to the board of assessment appeals, which declined to hear the appeal pursuant to General Statutes § 12-111.   Accordingly, in count one, the plaintiffs appeal this ruling by the board of assessment appeals and request that the valuation of their property be reduced to 70 percent of its true and actual value.

In count two, the plaintiffs allege that on February 3, 2009, the tax assessor removed the farm land classification from the plaintiffs' property.   At all times prior to this date, the subject property was classified and taxed as farm land.   The plaintiffs contend that this declassification was wrongful and without merit, and, as a result, an excessive tax was levied on their property.   Consequently, the plaintiffs appealed this valuation to the board of assessment appeals, which declined to hear the appeal on February 25, 2009.   As such, the plaintiffs request that their land be reclassified as farm land and the court order a corresponding reduction in the amount of tax owed.

On May 27, 2009, the defendants filed a motion to dismiss and memorandum of law in support.   As grounds, the defendants move to dismiss this action because the court lacks subject matter jurisdiction.   Specifically, the defendants argue that the plaintiffs' citation and recognizance is insufficient according to General Statutes § 12-117a and that count two fails to comply with the requirements of General Statutes § 12-107c.   In support of their motion, the defendants attach the sworn affidavit of Barbara Neal, who is the Branford tax assessor.   On June 1, 2009, the plaintiffs filed an amended citation and recognizance.   The defendants filed an objection to the plaintiffs' amended citation and recognizance on June 4, 2009, to which the plaintiffs filed a reply memorandum on June 8, 2009.   The plaintiffs filed a memorandum of law in opposition to the defendants' motion to dismiss on June 29, 2009, which attaches the sworn affidavit of Wayne Cooke.   On July 7, 2009, the defendants filed a reply memorandum, which attaches the sworn supplemental affidavit of Barbara Neal, a copy of a document titled “application to the assessor for classification of land as farm land” dated December 30, 2002 and an uncompleted copy of the same form.   The court heard this matter at short calendar on November 16, 2009.

DISCUSSION

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)   Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)   Schaghticoke Tribal Nation v. Harrision, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).

I

CITATION AND RECOGNIZANCE

The defendants' first argument is that the court lacks subject matter jurisdiction over this action because the complaint's citation and recognizance fails to comply with the requirements of General Statutes § 12-117a.   Specifically, the defendants contend that the plaintiffs failed to satisfy § 12-117a because they did not obtain a surety.   Once this defect came to their attention, the plaintiffs filed an amended citation and recognizance on June 1, 2009, which states that the plaintiffs had a surety.   The defendants object to this amendment, and argue that pursuant to Practice Book § 10-60, the plaintiffs needed to file a request for leave to amend their citation and recognizance.   In their reply memorandum, the plaintiffs argue that General Statutes § 52-128 and Practice Book § 10-59 allow a plaintiff to amend as of right within the first thirty days after the return day.   As the return date in the present case is May 12, 2009, the plaintiffs argue that they have cured any defect from their original complaint.

Section 12-117a provides 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, which shall be accompanied by a citation to such town or city to appear before said court.   Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action.   The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises.”  (Emphasis added.)   Given this statutory language, § 12-117a clearly requires that the plaintiffs obtain a surety in order to commence a tax appeal.

In the citation and recognizance attached to the original complaint, there is no language indicating that the plaintiffs obtained a surety.   The plaintiffs' amended citation and recognizance, however, states that:  “THE NF & W COOKE LIMITED PARTNERSHIP and COOKE/HARRISON FAMILY PAMTNERSHIP, 612 East Main Street, Branford, CT 06405, as principal and Gabriel Cusanelli of 550 East Main Street, # 31, Branford, Connecticut as surety are hereby recognized as jointly and severally bound unto said Town of Branford in the sum of Five Hundred ($500.00) DOLLARS ․” The defendants do not contend that the amended citation and recognizance would fail to adhere to the requirements of § 12-117a had it been attached to the original complaint.   Rather, the defendants contend that the plaintiffs should have filed a request for leave to amend their complaint, as opposed to simply filing an amended citation and recognizance.   Accordingly, the defendants argue that the amended citation and recognizance should not be considered by the court.

General Statutes § 52-128 provides:  “The plaintiff may amend any defect, mistake or informality in the writ complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court;  but, after any such amendment, the defendant shall have a reasonable time to answer the same.”   See also Practice Book § 10-59.   By their plain language, both § 52-128 and § 10-59 allow a plaintiff to amend their “writ, complaint, declaration or petition” as a matter of right during the first thirty days after the return day.   As the return date in the present case is May 12, 2009 and the plaintiffs filed their amended citation and recognizance on June 1, 2009, the amendment would be operative so long as § 52-128 and § 10-59 apply.

In their objection to the plaintiffs' amended citation and recognizance, the defendants argue that § 52-128 and § 10-59 do not govern the present situation because a citation is not a writ, complaint, declaration or petition.   As such, the defendants contend that Practice Book § 10-60 applies, in which case the plaintiffs could only amend by:  (1) court order;  (2) consent of the adverse party or (3) filing a request for leave to amend.

Under Connecticut law, “[i]n administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day.”  (Internal quotation marks omitted.)  Bittle v. Commissioner of Social Services, 249 Conn. 503, 512 n.7, 734 A.2d 551 (1999).   Our Supreme Court has quoted this language in the context of a tax assessment appeal brought under § 12-117a.   See Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 394 n.2, 655 A.2d 759 (1995).   As our Supreme Court has determined that a citation in an administrative appeal is analogous to the writ of summons in an ordinary civil action, this court concludes that the plaintiffs can amend their citation and recognizance as a matter of right during the first thirty days after the return day, as provided by § 52-128 and § 10-59.

Furthermore, in a case interpreting the bond requirement in a statute regulating land use appeals, our Supreme Court has determined that the failure to provide a bond does not implicate subject matter jurisdiction, and, therefore, the plaintiffs had a right to amend their citation and recognizance.   As stated by the Supreme Court, “[a]lthough the giving of a proper bond or recognizance is an essential element in the taking of an appeal ․ a statutory provision requiring such a bond is solely for the benefit of the defendant ․ The plaintiffs' failure to provide a proper bond or recognizance was a serious irregularity, but it did not destroy the jurisdiction of the court over the subject matter of the action ․ Since the omission was not fatal to the appeal, it could have been waived by the defendant ․ and could have been cured by the plaintiffs by filing a timely amendment.”  (Citations omitted.)  Sheehan v. Zoning Commission, 173 Conn. 408, 410-11, 378 A.2d 519 (1977).²  “Section 52-128 of the General Statutes and Practice Book § [10-59] allow a plaintiff to amend as of right any defect, mistake or informality in the writ within the first thirty days after the return day.   In the instant case, the plaintiffs' right to amend the citation in order to remedy their defective bond was likewise authorized by the above provisions.”  Id., 412.   Following the reasoning set forth in Sheehan, the plaintiffs in the present case had a right to amend their citation and recognizance to correct the lack of a surety within thirty days of the return day.   With the amended citation and recognizance, the defendants' argument for dismissing the complaint becomes moot.   Accordingly, the defendants' motion to dismiss this ground is denied.

II

FARM LAND CLASSIFICATION

Next, the defendants move to dismiss count two, where the plaintiffs appeal the removal of the farm land classification from their property.   In their memorandum of law in support of their motion to dismiss, the defendants argue that the plaintiffs failed to comply with the requirements of General Statutes § 12-107c because the plaintiffs:  (1) filed an untimely application, and, therefore, waived any right to farm land classification and (2) failed to list the proper owners of the land on their application.   The plaintiffs respond by arguing that the court has jurisdiction to hear this case because the plaintiffs did not have notice of the pending assessment and it is in the public interest to encourage the preservation of farm land.   Upon learning of the pending assessment of their land, the plaintiffs contend that they immediately filed an application to classify the subject premises as farm land.   In their reply memorandum, the defendants counter the plaintiffs' position by arguing that notice is irrelevant because General Statutes § 12-504h provides that the plaintiffs had a statutory duty to file a new application because the plaintiffs changed the use of their land.   Furthermore, the defendants contend that the plaintiffs needed to file a new application to reflect the new owners of the land.

Section 12-107c(a) provides in relevant part:  “An owner of land may apply for its classification as farm land on any grand list of a municipality by filing a written application for such classification with the assessor thereof not earlier than thirty days before or later than thirty days after the assessment date, provided in a year in which a revaluation of all real property in accordance with section 12-62 becomes effective such application may be filed not later than ninety days after such assessment date.”   A “[f]ailure to file an application for classification of land as farm land within the time limit prescribed in subsection (a) ․ shall be considered a waiver of the right to such classification on such assessment list.”  General Statutes § 12-107c(c).  Pursuant to General Statutes § 12-62(a)(b)(1) the relevant assessment date is October 1. Thus, in order to be timely, the plaintiffs were required to file their application for classification as farm land between September 1, 2008 and October 31, 2008, or alternatively, within ninety days of October 1, 2008 during a year where revaluation of property becomes effective.   In her affidavit, Barbara Neal attests that the plaintiffs filed their application on January 29, 2009, which is well after either of these statutory deadlines.   The plaintiffs do not dispute that they filed their application on this date.

“[T]here is no absolute right of appeal to the courts from a decision of an administrative agency ․ Appeals to the courts from administrative [agencies] exist only under statutory authority ․” (Internal quotation marks omitted.)   Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 315, 968 A.2d 396 (2009).   As such, “[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 815, 925 A.2d 293 (2007).  “Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal.”  (Internal quotation marks omitted.)  Melendez v. Valley Metallurgical Processing Co., 86 Conn.App. 880, 885, 863 A.2d 744 (2005).   For these reasons, “[w]hen a plaintiff fails to comply with the application requirements of General Statutes [§ ]12-107c [the] plaintiff has waived his statutory right to review by this court as to the issue of farmland classification and may only appeal as to general assessment values.”   El-Hachem v. Morris, Superior Court, judicial district of Litchfield, Docket No. CV 059620 (October 30, 1992, Pickett, J.) (7 C.S.C.R. 1307) [7 Conn. L. Rptr. 555], citing Dickau v. Glastonbury, 156 Conn. 437, 441, 242 A.2d 777 (1968) (failure to file application to classify land as farmland under § 12-107c mandates that land is assessed at its true and actual valuation).

The plaintiffs' principal argument to avoid the untimeliness of their application is that they did not receive notice of the pending assessment of their property.   This argument is unavailing, however, because the plaintiffs had an obligation to file a new application when they changed the type of farming that was conducted on the land if they intended to maintain farm land classification for the subject premises.  General Statutes § 12-504h provides in relevant part:  “Any such classification of farm land pursuant to section 12-107c ․ shall be deemed personal to the particular owner who requests and receives such classification and shall not run with the land.   Any such land which has been classified by a record owner shall remain so classified without the filing of any new application subsequent to such classification, notwithstanding the provisions of sections 12-107c [et al.] ․ until either of the following shall occur:  (1) The use of such land is changed to a use other than that described in the application for the existing classification by said record owner, or (2) such land is sold or transferred by said record owner ․ In the event that a change in use of any such property occurs, the provisions of section 12-504e, shall apply in terms of determining the date of change and the classification of such land as farm land pursuant to section 12-107c ․” ³

Morever, the application for classification of land as farm land explicitly provides that:  “You are responsible for contacting the assessor to update your application if there is a change in the use, acreage or ownership of this property after the assessor approves its classification.   If there is change of use or a sale of the classified land, the classification ceases (pursuant to § 12-504h of the Connecticut General Statutes) and you may be liable for an additional conveyance tax.” ⁴  The text of § 12-504h and the required statutory form both establish that the plaintiffs did not have a reasonable expectation that their land would continue to be classified as farm land following a change in the use of the property.

In his affidavit, Wayne Cooke attests that “[a]lthough the owners have changed the type of farming done on the properties, the properties continue to be farmed ․ The plaintiffs have never ceased farming and planted Ginseng as a replacement crop which satisfied the Plaintiffs [sic] desire to have a low maintenance farm.”   Thus, in the affidavit attached to their memorandum of law in opposition, the plaintiffs admit that there was a change in the use of their land.   Accordingly, the plaintiffs had an obligation to reapply for the classification of their land as farm land.   As the change in the use of the subject premises should have put the plaintiffs on notice that the assessment of their land might have changed on October 1, 2008, the court rejects the plaintiffs' argument that the court should overlook their untimely application.   Furthermore, because the present case is an administrative appeal wherein an appellant must strictly adhere to the requirements of the applicable statute, the court lacks subject matter jurisdiction to entertain the plaintiffs' claim in count two.   Therefore, the court grants the defendants' motion to dismiss count two for lack of subject matter juridsiction.⁵

CONCLUSION

For all of the reasons stated above, the court denies the defendants' motion to dismiss the entire complaint, but the court grants the defendants' motion to dismiss count two.

Wilson, J.

FOOTNOTES

FN1. All references to “the defendants” in this memorandum will refer to all three of the defendants..  FN1. All references to “the defendants” in this memorandum will refer to all three of the defendants.

FN2. Sheehan is interpreting an old version of the land use appeal statute, General Statutes § 8-8.   At the time the Supreme Court rendered its decision in Sheehan, a plaintiff had to obtain a surety bond in order to commence a land use appeal.   This requirement was removed from § 8-8 in 2000.   See Public Acts 2000, No. 00-108.   Although Sheehan is interpreting aversion of a statute that is no longer in existence, the Supreme Court's analysis of the bond issue is still valid because the bond requirement of § 12-117a is similar to that of the previous version of § 8-8..  FN2. Sheehan is interpreting an old version of the land use appeal statute, General Statutes § 8-8.   At the time the Supreme Court rendered its decision in Sheehan, a plaintiff had to obtain a surety bond in order to commence a land use appeal.   This requirement was removed from § 8-8 in 2000.   See Public Acts 2000, No. 00-108.   Although Sheehan is interpreting aversion of a statute that is no longer in existence, the Supreme Court's analysis of the bond issue is still valid because the bond requirement of § 12-117a is similar to that of the previous version of § 8-8.

FN3. General Statutes § 12-504e provides:  “Any land which has been classified by the owner as farm land pursuant to section 12-107c, forest land pursuant to section 12-107d, open space land pursuant to section 12-107e or maritime heritage land pursuant to section 12-107g, if changed by him, within a period of ten years of his acquisition of title, to use other than farm land, forest land, open space land or maritime heritage land, shall be subject to said conveyance tax as if there had been an actual conveyance by him, as provided in sections 12-504a and 12-504b, at the time he makes such change in use.   For the purposes of this section:  (1) The value of any such property shall be the fair market value thereof as determined by the assessor in conjunction with the most recent revaluation, and (2) the date used for purposes of determining such tax shall be the date on which the use of such property is changed, or the date on which the assessor becomes aware of a change in use of such property, whichever occurs first.”.  FN3. General Statutes § 12-504e provides:  “Any land which has been classified by the owner as farm land pursuant to section 12-107c, forest land pursuant to section 12-107d, open space land pursuant to section 12-107e or maritime heritage land pursuant to section 12-107g, if changed by him, within a period of ten years of his acquisition of title, to use other than farm land, forest land, open space land or maritime heritage land, shall be subject to said conveyance tax as if there had been an actual conveyance by him, as provided in sections 12-504a and 12-504b, at the time he makes such change in use.   For the purposes of this section:  (1) The value of any such property shall be the fair market value thereof as determined by the assessor in conjunction with the most recent revaluation, and (2) the date used for purposes of determining such tax shall be the date on which the use of such property is changed, or the date on which the assessor becomes aware of a change in use of such property, whichever occurs first.”

FN4. An applicant has a statutory obligation to file its application on the required form.  General Statutes § 12-107c(b) provides in relevant part that:  “An application for classification of land as farm land shall be made upon a form prescribed by the Commissioner of Agriculture ․ Any “[f]ailure to file an application for classification of land as farm land ․ in the manner and form prescribed in subsection (b) shall be considered a waiver of the right to such classification on such assessment list.”  General Statutes § 12-107c(c)..  FN4. An applicant has a statutory obligation to file its application on the required form.  General Statutes § 12-107c(b) provides in relevant part that:  “An application for classification of land as farm land shall be made upon a form prescribed by the Commissioner of Agriculture ․ Any “[f]ailure to file an application for classification of land as farm land ․ in the manner and form prescribed in subsection (b) shall be considered a waiver of the right to such classification on such assessment list.”  General Statutes § 12-107c(c).

FN5. Having determined that the defendants should prevail on their argument regarding the timeliness of the plaintiffs' application, it is not necessary for the court to consider the defendants' arguments that count two should be dismissed because the plaintiffs failed to identify the proper owners on their application for classification of their land as farm land, as well as the plaintiffs' failure to properly update this form..  FN5. Having determined that the defendants should prevail on their argument regarding the timeliness of the plaintiffs' application, it is not necessary for the court to consider the defendants' arguments that count two should be dismissed because the plaintiffs failed to identify the proper owners on their application for classification of their land as farm land, as well as the plaintiffs' failure to properly update this form.

Wilson, Robin L., J.