Wilton Campus 1691, LLC v. Town of Wilton Wilton River Park 1688, LLC

• Decision Date: 13 August 2019
• Docket Number: AC 40697
• Citation: 216 A.3d 653,191 Conn.App. 712
• Court: Connecticut Court of Appeals
• Parties: WILTON CAMPUS 1691, LLC v. TOWN OF WILTON Wilton River Park 1688, LLC v. Town of Wilton Wilton River Park North, LLC v. Town of Wilton

191 Conn.App. 712

216 A.3d 653

WILTON CAMPUS 1691, LLC

v.TOWN OF WILTON

Wilton River Park 1688, LLC

v.Town of Wilton

Wilton River Park North, LLC

v.Town of Wilton

AC 40697

Appellate Court of Connecticut.

Argued October 15, 2018

Officially released August 13, 2019

Matthew T. Wax-Krell, with whom were Marci Silverman and, on the brief, Denise P. Lucchio, Hartford, for the appellants (plaintiffs).

Barbara M. Schellenberg, Orange, with whom were Jonathan S. Bowman, Bridgeport, and, on the brief, Joseph D. Szerejko, Hartford, for the appellees (defendants).

DiPentima, C.J., and Moll and Bishop, Js.

MOLL, J.

The principal issue in this real estate joint tax appeal is whether the trial court properly rendered judgments in favor of the defendant, the town of Wilton, despite having concluded that the defendant's tax assessor (assessor) violated General Statutes § 12-55 (b) when he added late filing penalties pursuant to General Statutes § 12-63c (d)¹ against the plaintiff property owners² three months after taking and subscribing to the oath on the 2014 grand list. The plaintiffs appeal from the judgments of the trial court rendered in favor of the defendant. In their joint appeal, the plaintiffs claim that the trial court erred by rendering judgments in favor of the defendant despite having properly concluded that the assessor acted without statutory authority when he added the late filing penalties to the 2014 grand list after taking and subscribing to the oath. We agree. Accordingly, we reverse the judgments of the trial court.

The record and the parties' stipulations of fact³ reflect the following facts and procedural background. On or before April 15, 2014, pursuant to § 12-63c (a), the assessor requested from the plaintiffs annual income and expense reports for the year 2013 for their respective subject properties and provided them with the requisite forms. At all times from April 15, 2014 through October 26, 2016,⁴ including October 1, 2014, the date of the grand list at issue, the plaintiffs owned their respective subject properties. Pursuant to § 12-63c (a), the plaintiffs were required to submit their 2013 income and expense reports to the assessor on or before June 1, 2014. On June 2, 2014, the plaintiffs sent, by Federal Express overnight mail, their 2013 income and expense reports, along with a cover letter dated May 30, 2014, to the assessor, who received them on June 3, 2014.

On or before January 31, 2015, the assessor took the oath on the 2014 grand list,⁵ at which time he (1) knew that he had received the plaintiffs' income and expense reports after the June 1, 2014 deadline, and (2) did not add any late filing penalties to the 2014 grand list with respect to the subject properties. The assessor's practice has been to assess, pursuant to General Statutes § 12-60,⁶ any late filing penalties under § 12-63c (d) retroactively, after signing the grand list for a given year.⁷

On April 29, 2015, the assessor issued certificates of change for the subject properties in connection with the 2014 grand list and sent them, respectively, to the plaintiffs' last known addresses. The certificates of change each contain the following prefatory language: "By authority of [§] 12-60 of the Connecticut General Statutes, the Assessor hereby adjusts the assessment list of 2014." Each certificate of change identifies, among other things, the "original" assessment amount, the "adjustment" amount reflecting the late filing penalty (i.e., approximately 10 percent of the original assessment),⁸ and the "current" assessment amount (i.e., the original assessment amount plus the adjustment amount). The certificates of change reflect no exemptions.

Pursuant to General Statutes § 12-119, to the extent that it was necessary to do so, the plaintiffs timely filed respective appeals from the assessor's actions to the Superior Court.⁹ See Wilton River Park 1688, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-15-6030507-S; Wilton Campus 1691, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-15-6030508-S; Wilton River Park North, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-15-6030509-S. Pursuant to General Statutes § 12-111,¹⁰ the plaintiffs also timely filed appeals to the Wilton Board of Assessment Appeals (board), which, subsequent to a hearing on April 5, 2016, denied their appeals, making no changes to the certificates of change. Pursuant to General Statutes § 12-117a,¹¹ the plaintiffs filed timely appeals from the actions of the board to the Superior Court. See Wilton River Park 1688, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-16-6034627-S; Wilton Campus 1691, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-16-6034566-S; Wilton River Park North, LLC v. Wilton , Superior Court, judicial district of New Britain, Docket No. CV-16-6034565-S.

The six appeals filed in the Superior Court were consolidated and adjudicated together. The parties submitted memoranda of law regarding the legal issues, as well as the stipulations of fact, accompanied by stipulated exhibits with numerous appended exhibits, which furnish the entire factual basis for the judgments of the trial court.

On July 12, 2017, the court issued its memorandum of decision, ruling in favor of the defendant. As an initial matter, the court rejected the defendant's argument that the assessor had the authority to impose the late filing penalties after signing the 2014 grand list pursuant to § 12-60, which provides in relevant part: "Any clerical omission or mistake in the assessment of taxes may be corrected according to the fact by the assessors or board of assessment appeals, not later than three years following the tax due date relative to which such omission or mistake occurred, and the tax shall be levied and collected according to such corrected assessment." (Emphasis added.) Citing National CSS, Inc. v. Stamford , 195 Conn. 587, 595–96, 489 A.2d 1034 (1985), the court reasoned that § 12-60 applies only to clerical errors, and not to errors of substance, and that, because the omission of the late filing penalties from the 2014 grand list at the time the assessor signed it was intentional, the assessor's delayed imposition of the late filing penalties "was by no means a clerical error."

The court went on to consider § 12-55 (b), which provides in relevant part: "Prior to taking and subscribing to the oath upon the grand list, the assessor or board of assessors shall equalize the assessments of property in the town, if necessary, and make any assessment omitted by mistake or required by law...." The court emphasized the requirement in § 12-55 (b) that the assessor make any assessment "required by law" prior to signing the grand list. Because § 12-63c (d) provides that a property owner who fails to submit timely income and expense reports, as required under § 12-63c (a), "shall be subject to a penalty equal to a ten per cent increase in the assessed value of such property for such assessment year," the court concluded that "[t]he act of imposing the 10% penalty was not discretionary on the part of the assessor; it was mandatory." Thus, applying § 12-55 (b) to the present case, the court concluded that "[i]t is clear that the penalty should have been imposed prior to the assessor signing the completion of the grand list" on or before January 31, 2015.

The court opined that "[c]ompliance with § 12-55 (b) is imperative because a late filing of the grand list by the assessor reduces the time given to the property owner to appeal to the Board of Assessment Appeals for relief from the action of the assessor. See Wysocki v. Ellington , 109 Conn. App. 287, 299, 951 A.2d 598 ( [I]n the context of statutes relating to property tax assessment, when the statutory provision is for the benefit and protection of the individual taxpayer ... the provision is mandatory.... If the provision is mandatory it must be followed or the assessment will be invalid.... All provisions designed to give [the taxpayer] an opportunity of a review of the assessment, whether by the assessors themselves or on appeal from their conclusions, are exclusively in his interest. [Internal quotation marks omitted.] ), cert. denied, 289 Conn. 934, 958 A.2d 1248 (2008)." The court found that the assessor's delay in imposing the late filing penalties deprived the plaintiffs of the opportunity to appeal for a period of three months following the assessor's signing of the grand list. Specifically, the court opined that, "[a]s noted in General Statutes § 12-111, the plaintiffs are required to challenge the action of the assessor by filing an appeal to the [board] ‘in writing, on or before February twentieth.’ The imposition of the penalty by the assessor on January 31, 2015,¹² left the plaintiffs with twenty days to take their appeals instead of three months." (Footnote added.)

Notwithstanding the foregoing conclusions, the court rendered judgments in favor of the defendant, reasoning that "[a]lthough the plaintiffs seek to avoid the 10 [percent] penalty for failure to comply with § 12-55 (b), the only redress for the assessor's failure to comply with the provisions of § 12-55 (b) is to postpone the right of the plaintiffs to appeal the action of the assessor until the succeeding grand list. See § 12-55 (c) :

" ‘If any such assessment increase notice is sent later than the time period prescribed in this subsection, such increase shall become effective on the next succeeding grand list.’ The penalty prescribed for in § 12-63c (d) makes no provision for the removal of the 10 [percent] penalty imposed by the legislature, regardless of the action taken by the assessor." This joint appeal followed.

On appeal, the plaintiffs claim that the trial court erred by rendering judgments in favor of the defendant despite having correctly concluded that, pursuant to § 12-55 (b),...