Crystal Lake Clean Water Preservation Assn. v. Ellington

• Decision Date: 04 May 1999
• Docket Number: (AC 17577)
• Citation: Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 728 A.2d 1145 (Conn. App. 1999)
• Parties: CRYSTAL LAKE CLEAN WATER PRESERVATION ASSOCIATION v. TOWN OF ELLINGTON
• Court: Connecticut Court of Appeals

53 Conn. App. 142

728 A.2d 1145

CRYSTAL LAKE CLEAN WATER PRESERVATION ASSOCIATION v. TOWN OF ELLINGTON

(AC 17577)

Appellate Court of Connecticut.

Argued December 3, 1998.

Officially released May 4, 1999.

Schaller, Hennessy and Sullivan, Js.

Robert C. DuBeau, for the appellant (defendant).

James W. Sherman, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant town of Ellington appeals from the judgment of the trial court granting injunctive relief in favor of the plaintiff Crystal Lake Clean Water Preservation Association. On appeal, the defendant claims that the trial court improperly rendered summary judgment and granted injunctive relief restraining the defendant from collecting property taxes on flowage rights that were assessed for the tax years 1987 through 1993. We reverse the judgment of the trial court.

The following facts are not in dispute. On May 18, 1995, the plaintiff purchased flowage rights located in the town of Ellington. The flowage rights allow the plaintiff to raise and lower a body of water known as Crystal Lake to a fixed level by the operation of a dam that the plaintiff operates located downstream in the town of Stafford. The dam is owned by the plaintiff and is not operated by water power. The plaintiff is not the fee owner of the land that the flowage rights encumber, but holds instead an easement on the land. From October 1, 1987, through October 1, 1996, the defendant assessed and levied taxes on those flowage rights.

On July 17, 1995, the plaintiff brought this action, consisting of three counts, to challenge the assessment of taxes on the flowage rights for the 1994 tax year. In count one, the plaintiff alleged excessive valuation.¹ In count two, the plaintiff alleged excessive valuation and also alleged that the flowage rights are not taxable in the town of Ellington under General Statutes § 12-119.² In count three, the plaintiff claimed a wrongful taking of property in violation of General Statutes §§ 48-6 (a)³ and 48-12⁴. On February 12, 1997, the plaintiff moved for summary judgment on counts one and two. On April 3, 1997, the defendant moved for summary judgment on counts one, two and three, and opposed the plaintiffs motion for summary judgment on counts one and two. On May 16, 1997, the plaintiff amended its complaint to include the 1995 and 1996 tax years. The plaintiff also added a fourth count, challenging the assessment of tax from October 1, 1987, through October 1, 1993.⁵ On June 20, 1997, the trial court, by written memorandum,⁶ determined on the first and second counts that the plaintiff was the owner of nontaxable flowage rights and granted its motion for summary judgment, ordering injunctive relief. As to count three, the trial court determined that there was no taking of the plaintiffs property pursuant to §§ 48-6 and 48-12 and granted the defendant's motion for summary judgment.

Thereafter, the plaintiff moved for summary judgment and injunctive relief on the fourth count of the amended complaint. At the hearing on the plaintiffs motion for summary judgment, the defendant relied on its special defense that the plaintiff did not appeal the assessment within the one year limitation period prescribed in § 12-119. On August 18, 1997, the trial court, by oral decision, granted the plaintiffs motion for summary judgment and ordered injunctive relief in favor of the plaintiff with respect to count four. The court ordered the assessments removed from the tax lists for the years 1987 through 1993. Referring to its prior decision on counts one and two that the plaintiff was an owner of nontaxable flowage rights, the trial court concluded that § 12-119, in particular the one year statute of limitations, was not applicable to the plaintiff because it did not apply to the owners or lessees of flowage rights.⁷ This appeal followed. The defendant does not challenge the determination that the flowage rights are nontaxable. Instead, the defendant claims that the plaintiff did not properly challenge the tax assessments pursuant to § 12-119. The defendant argues that because the plaintiff did not appeal from the assessment of taxes on the flowage rights in a timely manner, the trial court improperly rendered summary judgment and granted injunctive relief in favor of the plaintiff. We agree.

Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d 505 (1998). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 50 Conn. App. 701, 707, 719 A.2d 77 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999). "On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the plaintiff as a matter of law, our review is plenary and "we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988). "On appeal, however, the burden is on the opposing party to demonstrate that the trial court's decision to grant the movant's summary judgment motion was clearly erroneous." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

We are satisfied that no genuine issue of material fact exists and the defendant makes no claim to the contrary. In its affidavit, the plaintiff asserts that it is the owner of the flowage rights and that it is not the fee owner of the land over which the water flowed. The defendant, in its affidavit, asserts only that it has assessed taxes on the plaintiff's interest, but does not assert that the plaintiff is the fee owner of land. Furthermore, the trial court, with regard to counts one and two, found that the plaintiff is the owner of flowage rights only. The defendant contends on appeal that § 12-119 bars the plaintiff's claim because it was not brought "within one year from the date as of which the property was last evaluated for the purposes of taxation...." General Statutes § 12-119. The plaintiff argues that the trial court properly determined that § 12-119 applies only to the owners of land, and, therefore, the statute and its one year statute of limitations does not apply in this case.

Section 12-119 provides owners and lessees of property with a remedy to challenge a municipality's wrongful assessment of tax. Wilson v. Kelley, 224 Conn. 110, 118-19, 617 A.2d 433 (1992). Section 12-119 "embraces situations where a tax has been laid on property not taxable in the municipality where it is situated...." (Internal quotation marks omitted.) Id., 119.⁸ The pertinent question, therefore, is whether the statute's use of the term "property" includes the plaintiffs flowage rights.

In the present case, the assessed interest consists of the plaintiffs flowage rights. "The right of flowage is, after all, only an easement." Great Hill Lake, Inc. v. Caswell, 126 Conn. 364, 367, 11 A.2d 396 (1940). Therefore, the plaintiff is the owner of an easement that "merely authorizes the flooding, by an owner of a riparian dominant tenement, of land of the servient tenement which he does not himself own and therefore would otherwise have no right to overflow." Gager v. Carlson, 146 Conn. 288, 295, 150 A.2d 302 (1959).

We are not persuaded by the plaintiffs principal contention that § 12-119 pertains only to owners of land and, therefore, does not apply to the owner of an easement. It is clear that § 12-119 is the correct procedure for an aggrieved taxpayer to challenge the improper assessment of an easement. See Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 213 n.1, 332 A.2d 83 (1973); Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 389, 126 A. 1 (1924). In Hartford Electric Light Co., our Supreme Court allowed a § 12-119 claim challenging the taxability of an easement that allowed the plaintiff to erect and maintain electrical power lines. In response to the defendant's abandoned claim that the trial court had no jurisdiction to entertain the action under § 12-119, the court stated that the statute is "decidedly the correct procedure for an aggrieved taxpayer to invoke where the questioned assessment is claimed to be illegal." Hartford Electric Light Co. v. Wethersfield, supra, 213 n.1. Furthermore, in Connecticut Light & Power Co., our Supreme Court allowed a § 12-119 action to challenge the assessment of tax on an easement that was employed by the plaintiff to transport electricity over land via electric cables. In discussing the applicability of § 12-119, the court stated that the statute is to be "applied to any existing, unpaid tax...." Connecticut Light & Power Co. v. Oxford, supra, 390. In light of the above cases, it is clear that the remedy provided by § 12-119 is not limited to owners of land, but is...