LLC v. Town of Montville (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 102)

FACTS

On April 23, 2010, the plaintiff, Village Apartments, LLC, filed this property tax appeal against the defendants, the town of Montville and the board of assessment appeals of the town of Montville (the board).   On June 2, 2010, the defendants moved to dismiss this matter on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust its administrative remedies.   The plaintiff objected thereto on July 13, 2010, and the matter was heard at short calendar on November 29, 2010.

On February 19, 2010, the plaintiff filed petitions with the board, which contested the assessed value of certain real and personal property.   Thereafter, the plaintiff received two notices from the board denying its appeal petitions due to incomplete information.   The plaintiff appealed to this court pursuant to General Statutes §§ 12-117a and 12-119.   Subsequently, the defendants moved to dismiss.   The gravamen of the motion to dismiss is that the board was entitled to deny the petitions because the plaintiff's appeal was not signed by a proper agent.

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

“In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”   Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).   “Under [the exhaustion of administrative remedies doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)  Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).   “Because the [exhaustion doctrine] implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)   Id.

“[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 the dispute ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Citations omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins. Co., supra, 294 Conn. 213-14.

The defendants move to dismiss the first and third counts of the complaint, which are brought pursuant to § 12-117a.¹  The defendants argue that the plaintiff failed to submit petitions to the defendants “in the proper form” as required by General Statutes § 12-111 and, therefore, the defendants were not required to provide a notice of public hearing on the plaintiff's appeals.   In particular, the defendants argue that the plaintiff failed to fill out the portion of the petitions requiring the name of an appellant or agent and, furthermore, failed to complete an attached agent's authorization form.   The defendants also contend that the plaintiff's failure to satisfy the prerequisites of § 12-111 forecloses its ability to appeal to this court the denial of its allegedly incomplete petition to the board pursuant to § 12-117a.

In support of their motion to dismiss, the defendants submit the affidavit of Lucy Beit, Montville's tax assessor.   Beit states that the assessor's office received the plaintiff's petitions on February 19, 2009.   Affidavit in Support of Motion to Dismiss, ¶ 4. Beit avers that the petitions were not in the proper form, as they provided no information with regard to any agent of the property owner.   Affidavit in Support of Motion to Dismiss, ¶ 5. Based on her determination that the applications were not in a proper form, Beit states that she did not schedule a board hearing on the appeals.   Affidavit in Support of Motion to Dismiss, ¶ 6. Beit's affidavit makes no mention of whether she sent any notices to the plaintiff.

The plaintiff responds that it received undated notices from the defendants denying its assessment appeals and instructing that appeals from the defendants' action should be filed with the Superior Court within two months.   The plaintiff further contends that it complied with the requirements of the defendants' application form and § 12-111 as it is the owner of the subject property and, thus, was under no obligation to complete the attached authorization form.²  Therefore, the plaintiff argues, it exhausted its administrative remedies and satisfied all conditions precedent under § 12-111 to file an appeal with this court under § 12-117a.   In support of its objection, the plaintiff has submitted two communications, written on board of assessment appeals letterhead, titled “Notice of Denial of Petition.”

Section 12-111(a) provides in relevant part:  “Any person ․ claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals ․ The written appeal shall include, but is not limited to, the property owner's name, name and position of the signer, description of the property which is the subject of the appeal, name and mailing address of the party to be sent all correspondence by the board of assessment appeals, reason for the appeal, appellant's estimate of value, signature of property owner, or duly authorized agent of the property owner, and date of signature.   The board shall notify each aggrieved taxpayer who filed a written appeal in the proper form and in a timely manner, no later than March first immediately following the assessment date, of the date, time and place of the appeal hearing.   Such notice shall be sent no later than seven calendar days preceding the hearing date except that the board may elect not to conduct an appeal hearing for any commercial, industrial, utility or apartment property with an assessed value greater than one million dollars.   The board shall, not later than March first, notify the appellant that the board has elected not to conduct an appeal hearing.   An appellant whose appeal will not be heard by the board may appeal directly to the Superior Court pursuant to Section 12-117a.”

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.”

The language of § 12-117a provides that an aggrieved taxpayer may appeal “the action” of the board to this court.   Generally, an appeal to the Superior Court would not lie in circumstances where a board of assessment appeals refuses to entertain an application that is not in the proper form or is untimely.   Thus, § 12-117a does not provide a means to appeal the inaction of the board with regard to appeals filed in an improper form or untimely manner.³  Such conclusion is supported by the language of § 12-112, which provides:  “No appeal from the doings of the assessors in any town shall be heard or entertained by the board of assessment appeals ․ unless written appeal is made on or before February twentieth in accordance with the provisions of Section 12-111.”  (Emphasis added.)

Nevertheless, under the present facts, the defendants affirmatively acted by denying the plaintiff's petitions and sending notice of such action.   The plaintiff submitted the two letters entitled “Notice of Denial of Petition.”   These documents are unsigned, but contain the notation “Rosetta Jones, Chairperson, Board of Assessment Appeals” at the bottom of each.   The notices also state:  “Appeals from the action of the Board of Assessment Appeals are to be filed with the Superior Court within two (2) months of the Board's action.”   The defendants, in their memorandum in support of the motion to dismiss, state that the board “did not hear the plaintiff's appeal, and denied the application as incomplete.”   The defendants also aver that “the plaintiff was notified that the [b]oard had denied the application because it was incomplete.”   In her affidavit, Beit does not state whether she sent notice to the plaintiff.   The court is satisfied that the defendants took affirmative action by sending the plaintiff notices.

In acting on the plaintiff's assessment appeals, the defendants opened an avenue for the plaintiff to subsequently appeal such actions via § 12-117a.   Without passing on the propriety of the defendants' actions with regard to the petitions or on the completeness of the petitions themselves, a review of an affirmative action of a board of assessment appeals denying a petition to appeal a tax assessment is within the court's subject matter jurisdiction, as provided for and triggered by § 12-117a.

CONCLUSION

Based on the foregoing, the motion to dismiss is denied.

Cosgrove, J.

FOOTNOTES

FN1. The second and fourth counts are brought pursuant to § 12-119..  FN1. The second and fourth counts are brought pursuant to § 12-119.

FN2. On both petitions, the portion of the form requesting “Property Owner's Name(s)” was filled in with the notation “Village Apartments LLC.” Below this section of the petition form was a line, left blank on the subject petitions, requesting the “Appellant/Agent's Name (if NOT the owner).”   This section of the petition form was followed by a notation, stating “Appellant or Agent must have written authorization from Owner.   See Authorization Form on back.”   The portions of the petitions requesting a mailing address to which board correspondence would be sent were filled in with the address of the plaintiff, and headed with the notations “Tomas Haendler-Village Apartments” and “Tomas Haendler, Village Apartments LLC,” respectively.   Haendler appears to have signed the portions of the petition forms requesting a “Signature of property owner or duly authorized agent (Authorization form on reverse).”.  FN2. On both petitions, the portion of the form requesting “Property Owner's Name(s)” was filled in with the notation “Village Apartments LLC.” Below this section of the petition form was a line, left blank on the subject petitions, requesting the “Appellant/Agent's Name (if NOT the owner).”   This section of the petition form was followed by a notation, stating “Appellant or Agent must have written authorization from Owner.   See Authorization Form on back.”   The portions of the petitions requesting a mailing address to which board correspondence would be sent were filled in with the address of the plaintiff, and headed with the notations “Tomas Haendler-Village Apartments” and “Tomas Haendler, Village Apartments LLC,” respectively.   Haendler appears to have signed the portions of the petition forms requesting a “Signature of property owner or duly authorized agent (Authorization form on reverse).”

FN3. This is not to say that there is no form of relief for a party who, in good faith, believes that a board of assessment appeals has failed to hear or entertain an appeal petition by erroneously classifying such petition as untimely or improper in form.   Such circumstance could be addressed through a writ of mandamus, compelling the board to entertain the appeal..  FN3. This is not to say that there is no form of relief for a party who, in good faith, believes that a board of assessment appeals has failed to hear or entertain an appeal petition by erroneously classifying such petition as untimely or improper in form.   Such circumstance could be addressed through a writ of mandamus, compelling the board to entertain the appeal.

Cosgrove, Emmet L., J.