Chestnut Point Realty, LLC v. Town of E. Windsor

• Decision Date: 24 January 2017
• Docket Number: SC 19554
• Citation: 153 A.3d 636,324 Conn. 528
• Court: Connecticut Supreme Court
• Parties: CHESTNUT POINT REALTY, LLC v. TOWN OF EAST WINDSOR

324 Conn. 528

153 A.3d 636

CHESTNUT POINT REALTY, LLC

v.TOWN OF EAST WINDSOR

SC 19554

Supreme Court of Connecticut.

Argued October 18, 2016

Officially released January 24, 2017

Daniel J. Klau, with whom, on the brief, was Jonathan M. Starble, for the appellant (plaintiff).

Richard C. Robinson, with whom were Laura A. Cardillo and, on the brief, Joshua A. Hawks–Ladds, for the appellee (defendant).

Rogers, C.J., and Palmer, Eveleigh, Robinson and Mullins, Js.^*

ROGERS, C.J.

The statutory right to appeal from an assessment of real property by a municipal board of assessment appeals is conditioned on the property owner "mak[ing] application" to the Superior Court within two months of the date the board mails notice of its action. See General Statutes § 12–117a. The question presented by this case is whether, for purposes of this limitation period, such application is made upon the filing of the required appeal documents in the Superior Court, or rather, when those appeal documents have been served upon the taxing municipality. The plaintiff, Chestnut Point Realty, LLC, appeals from the judgment of the Appellate Court affirming the trial court's dismissal of its municipal tax appeal due to untimeliness.¹

Chestnut Point Realty, LLC v. East Windsor , 158 Conn.App. 565, 575, 119 A.3d 1229 (2015). The plaintiff claims that, under the plain language of § 12–117a, its appeal was timely commenced upon the filing of its appeal documents in the Superior Court, even though the appeal was not served on the defendant, the town of East Windsor (town), until a date beyond the expiration of the two month appeal period. We disagree and, accordingly, affirm the judgment of the Appellate Court.²

The following procedural history is relevant. The plaintiff owns real property in the town. After the property was assessed for purposes of the October 1, 2012 grand list, the plaintiff appealed to the Board of Assessment Appeals of the Town of East Windsor (board) to request a reduction in the property's assessed value. On April 29, 2013, the board denied that request and, on May 1, 2013, the town's assessor mailed notice of the board's decision to the plaintiff.

On June 28, 2013, the plaintiff filed a complaint in the Superior Court alleging that the property had been overvalued. The complaint was accompanied by a citation and recognizance and bore a return date of July 23, 2013. On July 10, 2013, a marshal served the complaint, citation and recognizance on the town. On July 17, 2013, the marshal filed the return of service with the court. On August 14, 2013, the town filed a motion to dismiss the appeal, arguing that the trial court lacked subject matter jurisdiction because the plaintiff did not serve the appeal papers on the town within the two month period allotted by § 12–117a. After a hearing, the court granted the town's motion and dismissed the appeal.

The plaintiff thereafter appealed from the dismissal of its appeal to the Appellate Court. The Appellate Court agreed with the trial court that the appeal was untimely pursuant to § 12–117a because the plaintiff did not serve the town within two months of the date that the board had mailed notice of its decision denying a change to the assessment of the plaintiff's property. Id. In support of its decision, the Appellate Court relied on the plain language of § 12–117a, case law governing the commencement of a civil action, public policy considerations and a number of consistent holdings of the Superior Court to which, the Appellate Court reasoned, the legislature presumably had acquiesced. Id., 569–74. This appeal followed.

The plaintiff claims that the Appellate Court improperly interpreted § 12–117a to require the dismissal of its appeal as untimely. In the plaintiff's view, § 12–117a clearly and unambiguously provides that an appeal that is filed with the Superior Court within the two month appeal period is timely, even if service of the appeal on the town occurs after the two month period has run. The town, in response, contends that the statute clearly and unambiguously provides that the appeal, to be timely, must be served within two months of the board's notice. We disagree with the parties that the text of § 12–117a clearly and unambiguously answers the question before us. We conclude, after a thorough examination of the relevant interpretive sources, that the town's construction of the statute is the correct one. Accordingly, the Appellate Court properly upheld the dismissal of the plaintiff's appeal as untimely.

We begin with the standard of review and well established general principles. This case presents a question of statutory construction, an issue of law over which we exercise plenary review. Cales v. Office of Victim Services , 319 Conn. 697, 701, 127 A.3d 154 (2015). In determining the meaning of a statute, we look first to the text of the statute and its relationship to other statutes. General Statutes § 1–2z. If the text of the statute is not plain and unambiguous, we may consider extratextual sources of information such as the statute's "legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter ...." (Internal quotation marks omitted.) Doe v. Boy Scouts of America Corp. , 323 Conn. 303, 332, 147 A.3d 104 (2016). Our fundamental objective is to ascertain the legislature's intent. Id.

The right to appeal a municipal property tax assessment, like other administrative appeals, derives from statute. Atchison v. Newtown , 2 Conn.Supp. 142, 144 (1935) ("[t]he entire subject of appeals from assessment of property for purposes of taxation is statutory in origin"). "[A] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created ... including the time periods prescribed in which to appeal." (Citation omitted; internal quotation marks omitted.) Reardon v. Zoning Board of Appeals , 311 Conn. 356, 366, 87 A.3d 1070 (2014). "Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Internal quotation marks omitted.)

Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Coun cil , 217 Conn. 143, 152, 584 A.2d 1183 (1991). Consequently, a property owner who wishes to challenge an assessment must follow the required procedures within the time period allotted and, if he fails to do so, he forfeits the right to pursue the available statutory remedies.

Danbury v. Dana Investment Corp. , 249 Conn. 1, 12–15, 730 A.2d 1128 (1999).

We begin by examining the statutory text. 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...." (Emphasis added.) In the plaintiff's view, the phrase "make application" is synonymous with the word "file," and, therefore, the statute clearly and unambiguously provides that, to meet the statutory deadline, an aggrieved taxpayer is required only to file its appeal papers with the Superior Court within the two month period. To the town, the statute, by requiring service and return in the same manner as for civil actions, is equally clear and provides, instead, that service on the town must be effected within the two month period. After close examination of the statutory language, we are unable to agree with either party that it is clear and unambiguous.

Simply put, the statute does not provide that an aggrieved party must "file" its application with the court within two months, as it easily could have, and it is not otherwise apparent that the terminology used instead, "make application," is equivalent. Compare, e.g., General Statutes § 4–183 (providing, in subsection [a] that person aggrieved by final decision of administrative agency "may appeal to the Superior Court," and, in subsection [c], that, "within forty-five days" of one of various triggering events, "a person appealing as provided in this section shall ... [among other requirements] file the appeal with the clerk of the superior court " [emphasis added] ). Moreover, although § 12–117a indicates that service and return of the appeal should proceed in accordance with the service and return requirements governing civil actions generally, it is silent as to when, in relation to the challenged board decision, the service of process must occur. Compare, e.g., General Statutes (Supp. 2016) § 8–8 (b) (providing that person aggrieved by decision of zoning entity "may take an appeal to the superior court" and that "[t]he appeal shall be commenced by service of process ... within fifteen days from the date that notice of the decision was published as [statutorily] required" [emphasis added] ). Finally, although § 12–117a requires a property owner to "make application" to the court within two months, it does not state explicitly what, exactly, that phrase contemplates. Compare General Statutes § 12–242kk (a) (providing that, "within one hundred eighty days" after receiving condemnation notice and damages assessment, property owner "may make application to the superior court" for review, and that "[s]uch application shall be made by serving a condemnation appeal consisting of [various documents] ... upon the [Secretary of the Office of Policy and Management] within the...