Wallingford Center Associates v. Board of Tax Review

• Decision Date: 26 March 2002
• Docket Number: (AC 20377)
• Citation: 68 Conn. App. 803,793 A.2d 260
• Court: Connecticut Court of Appeals
• Parties: WALLINGFORD CENTER ASSOCIATES v. BOARD OF TAX REVIEW OF THE TOWN OF WALLINGFORD

68 Conn. App. 803

793 A.2d 260

WALLINGFORD CENTER ASSOCIATES v. BOARD OF TAX REVIEW OF THE TOWN OF WALLINGFORD

(AC 20377)

Appellate Court of Connecticut.

Argued October 29, 2001.

Officially released March 26, 2002.

Lavery, C. J., and Schaller and Flynn, JS. Jeffrey W. Keim, with whom, on the brief, was Bernard Green, for the appellant (Captiva Realty Company).

Janis M. Small, town attorney, for the appellee (defendant).

Opinion

LAVERY, C. J.

This appeal relates to an appeal taken to the trial court from a property revaluation. The issue is whether a person who takes title to a parcel of land while an appeal from the revaluation of the property is pending in the trial court may intervene into the appeal that was taken by the previous owner, in order to contest a new assessment that is based on the same valuation. A threshold issue is whether, pursuant to Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977), this appeal has been rendered moot by the fact that the administrative appeal into which the new owner sought to intervene no longer is pending. We hold that the appeal is not moot¹ and that the new owner should have been allowed to intervene into the previous owner's appeal. Accordingly, we reverse the judgment of the trial court insofar as the court failed to extend it to the years that the new owner owned the property, and we direct the court to amend the judgment to apply to those years.

The present action began when the plaintiff, Wallingford Center Associates (Wallingford Center), appealed to the defendant board of tax review of the town of Wallingford (board), challenging the valuation of its property on the grand list of 1991. The board upheld the tax assessor's valuation, and Wallingford Center appealed from the board's decision to the Superior Court. Subsequently, Wallingford Center amended its appeal to include the assessments for the 1992, 1993 and 1994 tax years.² On December 2, 1994, while the matter was pending before the Superior Court, title to the subject property passed to Captiva Realty Company (Captiva). On June 13, 1997, Captiva filed a motion to be joined as a party plaintiff in Wallingford Center's appeal so that it could amend the complaint filed by Wallingford Center to include challenges to the assessments for the years 1995 and thereafter. The court denied Captiva's motion, apparently agreeing with the board's argument that Captiva had to exhaust its administrative remedies by taking its own appeal to the board, and that Captiva could not bypass the administrative process by intervening in Wallingford Center's appeal and challenging tax assessments on the property for the years that it, and not Wallingford Center, owned the property. On December 6, 1999, the court sustained Wallingford Center's appeal, concluding that the valuation of $2,104,700 placed by the tax assessor on the property was not congruent with the fair market value of the property, which the court found to be $1.5 million. The court therefore ordered corrections to be made to the valuations for the years 1991, 1992, 1993 and 1994. After the court rendered judgment, Captiva filed this appeal, challenging the court's denial of its motion to be joined as a party.³

Before reaching the merits of the appeal, we must first address the threshold issue of whether this appeal is rendered moot by the fact that there no longer is a pending action into which Captiva can intervene. In Jones v. Ricker, supra, 172 Conn. 573, the plaintiffs sought a writ of mandamus to order a town planning and zoning commission to issue a certificate of approval for a subdivision plan. Several owners of nearby property filed a motion to intervene as party defendants, and their motion was denied. Id., 574. Subsequently, the trial court rendered judgment ordering that the certificate be issued and, after judgment was rendered, the would-be intervenors appealed from the denial of their motion to intervene. The Supreme Court dismissed that appeal as moot. Id., 577. The court held that the appeal was moot because the mandamus action was no longer pending, and the only relief sought by the plaintiff in the action had been granted and executed. Id., 576. The Supreme Court held that under those circumstances, no practical relief could be afforded the would-be intervenors who had opposed the issuance of the certificate. Id., 577.

We believe the present situation is distinguishable from that presented in Jones. It is well established that an appeal is considered moot if there is no possible relief that the appeals court can grant to the appealing party, even if the court were to be persuaded that the appellant's arguments are correct. Hilton v. New Haven, 233 Conn. 701, 726, 661 A.2d 973 (1995). Here, we believe there is relief that can be granted to Captiva, if it should prevail on its argument, even though there no longer is a proceeding into which it could intervene. Captiva's argument is that the $1.5 million valuation of the property established in Wallingford Center's appeal became the valuation of the property until the next mandated decennial revaluation in the year 2000. For that reason, Captiva maintains that it is entitled to a tax refund from the town of Wallingford (town), which, during the years of Captiva's ownership, assessed the property in question based on the $2,400,700 valuation that was held to be excessive in Wallingford Center's appeal. Captiva argues that if it had been allowed to intervene, it could have asserted its right to a refund for overpayment of taxes for the years 1995 through 1999.

Assuming that Captiva's argument is persuasive, as we find that it is, there is relief that can be granted to Captiva without the need for any further trial court proceedings. As we will discuss in more detail, Captiva should have been allowed to intervene so that the judgment would have applied not only to the years Wallingford Center owned the property, but to the years that it was owned by Captiva. Once Captiva had been made a party, it would have been entitled to the same relief that Wallingford Center obtained on appeal. The relief that Captiva should have received can be given to it simply by directing the trial court to open the judgment, grant Captiva's motion to intervene and to amend the judgment to cover the years of Captiva's ownership. Such an amendment would be a simple ministerial act. Because that relief is available to Captiva despite the fact that there no longer is a pending trial court proceeding, this appeal is not moot.

Turning to the merits of Captiva's argument, Captiva contends that it should have been joined as a party plaintiff so that its claims that it was overassessed for the years 1995 and thereafter could be joined with Wallingford Center's claims that it was overassessed for the years 1991 through 1994. The board argues that Captiva had no statutory right to intervene in Wallingford Center's appeal and that Captiva's sole remedy for its alleged overassessment was to bring its own appeal to the board, and, if unsuccessful there, to bring its own appeal to the trial court.

Captiva filed a motion for permission to be made a party plaintiff in Wallingford Center's appeal; it did not seek intervention as a matter of right. "The denial of a motion ... for permissive intervention is reviewed with an abuse of discretion standard." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000). We agree with Captiva that the court abused its discretion when it held that Captiva lacked standing to intervene because it had not exhausted its administrative remedies before coming to the trial court.

"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.... The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions.... The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.... In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary....

"The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.... [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes ... such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed." (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 11-13, 756 A.2d 262 (2000). For example, a mere conclusory assertion that the administrative agency will not reconsider its decision does not mean that resort to the agency would be futile; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); nor does the fact that the fact finder previously indicated how it would decide the claim. Housing Authority v. Papandrea, 222 Conn. 414, 428-30, 610 A.2d 637 (1992). Futility is more than mere allegation that the administrative agency might not grant the relief requested. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 559-60, 529 A.2d 666 (1987).

Here, the allegation of futility is much more than conclusory, and we believe that had Captiva appealed to the board seeking a lower valuation, it would have been a futile act. At the time that the board claims that Captiva should have filed an appeal with the board, the board was engaged in vigorously defending, in Wallingford Center's appeal, the very same valuation that Captiva would have been attacking. It...