Jesus Has Called Me Ministry, Inc. v. Town of Deep River (2014)

MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

The plaintiff, Jesus Has Called Me Ministry, Inc. (Ministry), is a non-profit corporation that provides religious services, training, and related charitable services through its ministry.   It is recognized by the Internal Revenue Code (IRC) under § 501(c)(3) as exempt from federal income taxes.

The Ministry owns real property located at 132 Union Street in the town of Deep River (town) that the Ministry claims it uses solely for religious and charitable purposes.   The town had previously granted real estate tax exempt status to the Ministry pursuant to General Statutes § 12–81(13) and (15).

The affidavit of the town's assessor, Robin O'Loughlin, recites that in the calendar year 2012, she had credible information that the plaintiff had abandoned the religious use of the subject property.   The assessor stated that she met with the plaintiff's representative to discuss the abandonment of the exemption.   In October 2012, the assessor issued a letter to the plaintiff of her intention to remove the exemption.   The assessor averred that the information given to her failed to establish a ground for the continuation of the exemption and removed the exemption.   The assessor further averred that she reduced the gross assessment for the subject property from $543,130 to $254,870 for the October 1, 2012 Grand List.

The assessor also recites that she signed the October 1, 2012 Grand List on January 30, 2013 and mailed a real estate assessment notice to the plaintiff on February 1, 2013 relating the information that the exemption had been removed and that the assessment had been reduced.   Although the assessor thought that the envelope was properly addressed to the plaintiff, the assessor averred that the notice to the plaintiff was returned by the U.S. Post Office because the postal code of 06423 was incorrect.   The assessor corrected the postal code to 06426 and mailed the plaintiff a new notice on February 11, 2013.   The assessor notes that the plaintiff appealed the removal of the exemption to the board of assessment appeals (BAA) on February 13, 2013.   The BAA held a hearing on the plaintiff's application on March 9, 2013.¹

On July 22, 2013, the Ministry filed a four-count amended complaint challenging the assessor's removal of the property tax exemption from the October 1, 2012 Grand List. The Ministry subsequently withdrew the first three counts ² of the amended complaint leaving count four as the only remaining viable part of the complaint.

Count four of the amended complaint recites that the assessor failed to give timely notice to the Ministry that she was terminating the property tax exemption on the subject property and, therefore, pursuant to General Statutes § 12–55(c), the assessor must provide prior written notice before the new valuation becomes effective.  General Statutes § 12–55(a) recites in relevant part, as follows:

“On or before the thirty-first day of January of each year ․ the assessors ․ shall publish the grand list for their respective towns.   Each such grand list shall contain the assessed values of all property in the town, reflecting the statutory exemption or exemptions to which each property or property owner is entitled ․”

Section 12–55(b) requires that “the assessor ․ shall mail a written notice of assessment increase to ․ the owner of the property the valuation of which has increased.   All such notices shall be subject to the provisions of subsection (c) of this section.”

Section 12–55(c) provides as follows:  “Each such notice shall be mailed not earlier than the assessment date and not later than the tenth calendar day immediately following the date on which the assessor ․ signs and attests to the grand list.   If any such assessment increase notice is sent later than the time period prescribed in this subsection, such increase shall become effective on the next succeeding grand list.”

The Ministry claims that because the town failed to give timely notice of the removal of the tax exemption pursuant to § 12–55(c), the effect of the delayed notice is to postpone the effectiveness of the removal of the exemption until the next succeeding grand list on October 1, 2013.   The Ministry relies on the court holding in Wee Burn Country Club, Inc. v. Norwalk, Superior Court, judicial district of Stamford, Docket No. CV 03 0195964 (April 26, 2004) (36 Conn. L. Rptr. 887), in which the court held that the effect of the assessor failing to comply with the notice provision in § 12–55(c) was not to render the assessment ineffective, but postpone its effectiveness until the next succeeding grand list.

According to the Ministry, the issue here is whether the removal of the tax exemption by the assessor becomes effective on the October 1, 2012 Grand List, as claimed by the assessor, or on the October 1, 2013 Grand List, as claimed by the Ministry.

The plaintiff's count four of its amended complaint does not contest the right of the assessor to remove the tax exemption previously granted.   The plaintiff, however, seeks to preserve the exemption for at least one calendar year based upon its complaint that the assessor failed to give timely notice to the plaintiff pursuant to § 12–55(c).

It is clear from the assessor's affidavit that she notified the plaintiff in October 2012 that she was removing the religious exemption for the October 1, 2012 Grand List md gave the plaintiff an opportunity to prove otherwise.   The fact that the plaintiff has withdrawn counts one, two and three is a recognition that the plaintiff does not contest the assessor's grounds for the removal of the exemption.   In addition, the notice sent to the plaintiff on February 1, 2013, following the assessor signing the 2012 Grand List on January 30, 2013 (with the corrected notice sent on February 11, 2013), effectively complied with § 12–55(c).³

Apart from the issue of notice, § 12–55 centers around the assessor increasing the real estate assessment of the property owner, not decreasing the assessment as the assessor did in this case.   There is no requirement in § 12–55 for an assessor to give notice to a property owner where the assessor decreases the assessment.⁴

In summary, the assessor gave notice to the plaintiff of the removal of the exemption in October 2012.   Although it was not necessary for the assessor to notify the plaintiff of the removal of the exemption from the October 1, 2012 Grand List, the assessor's issuance of a courtesy letter and the fact that there may have been a postal deficiency, does not defeat the effectiveness of the removal.

For the above reason, the plaintiff's motion for summary judgment is denied and the defendant's motion for summary judgment is granted.

Accordingly, summary judgment may enter in favor of the defendant.   No costs are awarded to either party.

Arnold W. Aronson

Judge Trial Referee

FOOTNOTES

FN1. See, e.g., Quinebaug Reservoir Co. v. Union, 73 Conn 294, 299, 47 A. 328 (1900) (appeal to board of tax review waives lack of notice)..  FN1. See, e.g., Quinebaug Reservoir Co. v. Union, 73 Conn 294, 299, 47 A. 328 (1900) (appeal to board of tax review waives lack of notice).

FN2. Count one:  appeal of denial of exemption.Count two:  claim of illegal tax (§ 12–119).Count three:  claim of excessive assessment (§ 12–117a)..  FN2. Count one:  appeal of denial of exemption.Count two:  claim of illegal tax (§ 12–119).Count three:  claim of excessive assessment (§ 12–117a).

FN3. See Cadlerock Properties Joint Venture, L.P. v. Ashford, 98 Conn.App. 556, 562, 909 A.2d 964 (2006):  “Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant ․ Actual notice is superior to constructive notice.”  (Citation omitted;  internal quotation marks omitted.).  FN3. See Cadlerock Properties Joint Venture, L.P. v. Ashford, 98 Conn.App. 556, 562, 909 A.2d 964 (2006):  “Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant ․ Actual notice is superior to constructive notice.”  (Citation omitted;  internal quotation marks omitted.)

FN4. See, e.g., Norwich v. Rose City Community Land, Superior Court, judicial district of New London, Docket No. 08 5007230 (Apr. 14, 2010) (49 Conn L. Rptr. 625)..  FN4. See, e.g., Norwich v. Rose City Community Land, Superior Court, judicial district of New London, Docket No. 08 5007230 (Apr. 14, 2010) (49 Conn L. Rptr. 625).

Aronson, Arnold W., J.T.R.