Mettler Realty Co. v. North Haven Bd., Tax, No. 33 33 48 (Oct. 30, 1992)
Opinion of the Court
On July 9, 1992, the defendant filed a motion to dismiss on the ground that General Statutes
The plaintiff argues that the appeal was timely, that the defendant is estopped from asserting untimeliness because the plaintiff was induced to and did rely on the date of the notice, and that dismissal would violate the plaintiff's due process right to a fair hearing because the notice was inadequate and misleading in that it was dated April 1, 1992 but failed to state the date on which the tax board reached its decision. The plaintiff filed the appeal within two months of April 1, 1992, the date of the notice, but more than two months after March 26, 1992, which was the date of the decision of the defendant.
The motion to dismiss shall be used to assert lack of jurisdiction over the subject matter. Practice Book 143. Appeals to courts from administrative agencies exist only under statutory authority. Killingly v. Connecticut Siting Council,
Conn. General Statutes
"(A)ny person . . . claiming to be aggrieved by the doings of the assessor of such town may appeal therefrom to the board of tax review, which shall determine all such appeals and report in writing the final determination of such appeals to each such person within one week after such determination has been made."
Conn. General Statutes
"(A)ny person . . . claiming to be aggrieved by the action of the board of tax review . . . may, within two months from the time of such action, make application, in the nature of an appeal therefrom to the superior court. . . ."
The parties are in dispute as to when the two month appeal period begins to run. The defendant claims that it commences on the day the board makes its decision, while it is the plaintiff's position that it commences on the day that notice of the decision is mailed or on the day the notice is received by the taxpayer.
The court is satisfied, based on a reading of the statute and the holdings of most of the decisions on this point, that the appeal period commences on the day the board makes its decision, provided that the board complies with the statutory requirement of giving proper notice to the taxpayer. In this case the board did not give proper notice.
The court agrees with the reasoning of the court (Wagner, J.) in Johnson v. Town of Bloomfield, 5 Conn. L. Rptr. No. 10, 247 (December 16, 1991). In that case the court was faced with the same issue, whether the appeal had been filed timely, when the notice of the decision sent by the board did not advise the date of the decision and the notice itself was undated. In the case at bar the notice was dated but the reasoning of the court in Johnson is appropriate.
". . . [T]he statutory scheme makes sense only if the landowner knows the date of CT Page 9889 `such action', i.e. the determination by the board of tax review. That is why Section
12-111 requires `a report in writing' of such determination `within one week after such determination has been made.' The undated report with no indication of the date on which the determination was made, or when it was mailed, was insufficient within the statutory scheme."
Johnson, id, p. 247.
The defendant argues that the plaintiff could have determined the effective date of the decision by the board by inquiring at the town clerk's office or the assessor's office. The law is to the contrary. ". . . (T)he relevant statutes at issue do not impose on an aggrieved property owner any inquiry requirement." Trap Falls Realty Holding Limited Partnership v. Board of Tax Review,
Proper notice under
It is of no consequence whether one concludes that the appeal period commenced in this case on April 1, 1992, which was the date of the notice, or has not yet commenced. In either event, the appeal in this case was taken in a timely manner.
The motion to dismiss is denied.
Hadden, J.
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