Vaill v. Sewer Commission of Town of Salisbury

• Decision Date: 27 May 1975
• Citation: 168 Conn. 514,362 A.2d 885
• Court: Connecticut Supreme Court
• Parties: James E. VAILL v. SEWER COMMISSION OF the TOWN OF SALISBURY.

Page 885

362 A.2d 885

168 Conn. 514

James E. VAILL v. SEWER COMMISSION OF the TOWN OF SALISBURY.

Supreme Court of Connecticut.

May 27, 1975.

Catherine G. Roraback, Canaan, for appellant (plaintiff).

David M. Cusick, Winsted, with whom, on the brief, was Carmine R. Lavieri, Winsted, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LONGO, Associate Justice.

The plaintiff, James E. Vaill, is the owner of certain land in the town of Salisbury. On August 9, 1971, the defendant, the sewer commission of the town of Salisbury, laid an assessment on the plaintiff's property pursuant to § 7-249 ¹ of the General Statutes.

On August 7, 1972, one day short of a year from the date of the assessment, the plaintiff brought this action to the Court of Common Pleas in Litchfield County, claiming a judgment rescinding the assessment or, in the alternative, a judgment reducing the amount of the assessment. The defendant pleaded in abatement on the grounds that (1) the court did not have jurisdiction of the action because the claims raised by the complaint can be properly brought to the Court of Common Pleas only by an appeal under General Statutes § 7-250, and (2) the twenty-one day period for filing such appeal had elapsed. The court, in its memorandum of decision, held that § 7-250 provides the right of appeal from the imposition of a sewer assessment, sustained the plea on the ground of the failure to appeal within the statutory period of twenty-one days, and rendered judgment for the defendant from which the plaintiff has appealed.

The plaintiff argues that his action is not an appeal from the assessment of his property but is an action for equitable relief from an assessment which is discriminatory, is manifestly excessive, is in disregard of the provisions of the statutes for assessing sewer benefits, and is a taking of the plaintiff's property without due process of law. The sole issue with which we are concerned is whether the action is an appeal governed by the provisions of § 7-250 ² of the General Statutes and is, therefore, barred by the Statute of Limitations provided therein or whether it is an action for judicial review under the provisions of § 12-119 ³ of the General Statutes.

Chapter 203 of the General Statutes entitled 'Property Tax Assessment' deals entirely with general taxes and does not relate in any of its sections to assessments for special benefits. Section 12-119, found in chapter 203, relates to the available remedy when real or personal property is wrongfully assessed. On the other hand, chapter 103 of the General Statutes is entitled 'Municipal Sewerage Systems,' and § 7-249 of that chapter relates specifically to the assessment of benefits to be levied for the construction of municipal sewerage systems, while § 7-250 provides the remedy of appeal to the Court of Common Pleas for any person aggrieved by any assessment. Clearly, the words 'any assessment' as used in this chapter apply to any sewerage system assessment.

An assessment for benefits is not ordinarily included in the term 'taxes.' Cortigiano v. Waterbury, 133 Conn. 1, 4, 47 A.2d 413; Whitmore v. Hartford, 96 Conn. 511, 523, 114 A. 686; New London v. Miller, 60 Conn. 112, 116-17, 22 A. 499. '(W)hile an assessment of benefits is an exercise of the taxing power of the State, 'it is never spoken of in charters of cities and boroughs, or in the general law, or in popular . . . (usage), as a tax.' While it is 'in a general sense a tax, it is one of a peculiar nature. It is a local assessment imposed occasionally, as required, upon a limited class of persons interested in a Local improvement; who are assumed to be benefited by the improvement to the extent of the assessment.' Bridgeport v New York & N.H.R. Co., 36 Conn. 255, 262. They stand apart from the general burdens imposed for State and municipal purposes, and are governed by principles that do not apply to the general levy of taxes. In addition to the common taxation, special assessments demand that special contribution, in consideration of a special benefit, shall be made by the persons who receive it. The demand for the special contribution is justified by the fact that those who are to make it, while they are made to bear the cost of the public work, are supposed to suffer no pecuniary loss thereby, because their property is increased in value to an amount at least equal to the sum they are required to pay. 2 Cooley on Taxation (3d Ed.) 1153; 1 Page & Jones, Taxation by Assessment, §§ 35, 39.' Whitmore v. Hartford, supra, 96 Conn. 523, 114 A. at 691; see footnote 1, supra.

In Peck v. Bridgeport, 75 Conn. 417, 422, 53 A. 893, where the plaintiffs sought to remove a lien as a cloud upon title which arose from an unpaid street assessment, the court sustained the demurrer to the complaint which alleged (1) that the board adopted a wrong rule of assessment and (2) that the plaintiff's land was not benefited by the improvement, as alleged in the present case. This court held that those matters could only avail the plaintiffs upon an appeal from the assessment and could not avail them in the proceedings for the removal of the lien. See Meriden v. Camp, 46 Conn. 284, 290. Section 7-249 authorizes the sewer authority to levy assessments for sewerage systems upon property which, in its judgment, is especially benefited thereby, subject to the right of appeal as provided for by § 7-250.

It is the general rule, with reference to special assessments of benefits, that an assessment legally made cannot be attacked a in a collateral proceeding but requires pursuit of the statutory remedy for review, unless the assessment is void. 14 McQuillin, Municipal Corporations (3d Ed. Rev.) § 38-188; see Country Lands, Inc. v. Swinnerton, 151...