Opinion
No. DBD CV05-4002803 S
August 15, 2007
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The plaintiffs Chappaqua Realty, LLC and Chappaqua Realty Corporation (Chappaqua) have filed an appeal of the town of New Milford's ("town") tax assessments on properties owned by Chappaqua Realty, LLC located at 548 Danbury Road, New Milford, Connecticut. The operative complaint for purposes of this appeal is plaintiffs' five-count, seventh amended complaint wherein they specifically object to the defendant's complete removal of the classification of the property as farm land on the 2003 grand list and the partial removal thereof on the 2004, 2005 and 2006 grand lists. For each of the grand list years complained of, the town removed the farm land classification and replaced it with an industrial classification significantly raising the assessed value of the property. The plaintiffs' first four counts refer to General Statutes § 12-119 as the basis for their appeal, and to General Statutes § 12-60 for the fifth count.
"When it is claimed that a tax has been paid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . . In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court." General Statutes § 12-119.
The defendant has filed an answer denying the allegations of the complaint as well as seven special defenses alleging that the claims are barred by either time or statute, are unauthorized by statute, or waived. They also state the plaintiffs are not statutorily aggrieved, have failed to exhaust their administrative remedies, or have no legally cognizable interest to pursue to the claims.
The matter was heard before the court on May 1-2, 2007 at which time both parties appeared to present testimony and evidence.
II FACTS
Based on the testimony and exhibits presented at trial, the court finds the following facts. The property which is the subject of this appeal, 548 Danbury Rd., New Milford, Connecticut, is designated on the assessor's records for the town and is made up of two parcels, assessor's map 4, Lot 26, list no. 1702 ("1702") and assessor's map 7, Lot 87, list no. 1703 ("1703"). The property is bisected by what is commonly known as Route 7 with approximately 64 acres on the east side of Route 7 and 91 acres on the west side. (Pl. Ex. 2.) Chappaqua Realty, LLC had acquired an interest in the two parcels by virtue of a quit claim deed dated May 15, 2002 from Chappaqua Realty Corp. to Chappaqua Realty, LLC and recorded June 5, 2002 in volume 706, page 1091 of the New Milford land records. (Pl. Ex. 1.) The deed reflected that no money changed hands between the parties.
The acreage referenced is that as of the filing of the complaint. The acreage is now slightly less due to the recent widening of Route 7.
List no. 1703 constitutes the property on the east side of Route 7 and list no. 1702 constitutes the property on the west side.
The deed recited that the transfer was made "in consideration of NO CONSIDERATION." (Pl. Ex. 1.)
Prior to the 2003 grand list, the town had classified the property as farm land for assessment purposes. On February 12, 2004 the town issued two separate notices that it had removed the farm land classification and increased the assessments on 1702 and 1703. At the time the notices were issued, Chappaqua Realty, LLC's address as recited in the quit claim deed (47 Highview Road, Monsey, New York) was completely different from that of Chappaqua Realty Corp. (2-14 Prince St., Brooklyn, New York), its predecessor in title. The 1703 notice was addressed to Chappaqua Realty Corp. and sent to the Brooklyn, New York address despite the fact the property transfer to Chappaqua Realty, LLC had taken place close to two years before that. The 1702 notice was sent to the correct address but was incorrectly addressed to the predecessor in title (Chappaqua Realty Corp.) rather than the current owner.
For purposes of property tax assessments, General Statutes § 12-107b(l) states: "The term `farm land' means any tract or tracts of land, including woodland and wasteland, constituting a farm unit." Of note also is the expansive definition of `farming" contained in General Statutes § 1-1(q) which states in part: "Except as otherwise specifically defined, the words `agriculture and `farming' shall include cultivation of the soil, dairying, forestry, raising or harvesting of any agricultural or horticultural commodity . . ." For a through analysis of the meaning and definition of "farm land" under § 12-107b and § 1-1 see Johnson v. Board of Tax Review, 160 Conn. 71, 73-76, 273 A.2d 706 (1970).
On February 17, 2005, the plaintiffs filed separate appeals for both properties with the town's board of assessment appeals. The appeals filed with the board were on forms promulgated by the town which were clearly identified as being applicable to the October 1, 2004 grand list. (Def. Exs. J and K.) At the hearing before the board, the plaintiffs claimed that "they were appealing the 2003 tax assessment where the farming assessment was revoked by the Assessor." (Emphasis added; see minutes of board of assessment appeals meeting, Def. Ex. L.) The appeals were denied by the board on March 15, 2005 with the minutes from the meeting noting the board found that "no mistake was made by the assessor and that the board cannot go back to previous years, and therefore [no change] on List #1702 and 1703." (Def. Exs. L and M.) Following the denial by the board, the plaintiff filed this appeal on April 26, 2005 alleging that the change in the classification of the properties for the October 1, 2003 grand list resulted in a tax assessment that was manifestly excessive and erroneous in light of the fact that the properties had always been used as farm land and continued to be so used.
Separate appeals were filed for the two parcels because although plaintiff's counsel and plaintiff had attempted to inform the assessor that it needed to make corrections to the name of the addressee and/or mailing address relative to the properties, he refused to do so.
At trial, the plaintiff presented the testimony of Mr. Jeremy Schulz who has been involved with farming on the property since 1994. He credibly testified that since 1996 he has been a tenant farmer on the site, has raised crops there continuously since that time, and has conducted retail sales of crops from the east side of the property. He described in detail the nature of the crops grown, the mechanics of farming the property as well as the topography of the land. Specifically he indicated that he has grown hay, corn, garden vegetables, pumpkins, strawberries and other fruits and vegetables at times. As part of his farming he uses tractors, tobacco setters, road tillers, plows, planters, etc. to prepare and maintain the land. The east side of the property (1703) has a flat topography and virtually all of the area is tillable and conducive to growing crops. The west side of the property (1702) contains some flat terrain, but also has wet areas near a soil conservation ditch, some forested area and area that is simply rocky ledge. He estimated the land on the west side as being approximately one-third farmable, one-third wooded/wetland, and one-third ledge. While the flat terrain is usable as farm land or pasture, and is so used, the other area is not as conducive to farming. Previously, there were barns and a silo on the property but they were demolished sometime before 2006. Those areas that are capable of being farmed are used to grow the same crops as on the east side (except for hay). Mr. Schulz made clear that the east side property has been used consistently in the same manner since 2001 and the west side since 2002. There has been no industrial activity on the site during this period. As part of his farming operation he was also required to have it inspected annually by the United States Department of Agriculture. (Def. Ex. HH.)
This would include areas that at times are simply left fallow to allow the soil to replenish its nutrients. It has been noted that "Connecticut farm units traditionally include some land which is not tillable and that it is a recognized principle of good farming to allow portions of tillable land to remain unused for one or more years." Marshall v. Newington, 156 Conn. 107, 111, 239 A.2d 478 (1968).
The town presented the testimony of its assessor Mr. Ron Parks who has held that position for the past 31 years. He acknowledged that up until the 2003 grand list, the property had been classified as farm land and that wood land areas could be considered as part of a farm. After driving past the site on Route 7 some 30-40 times in the span of a year, Mr. Parks elected to do a formal inspection of the property by himself in the late fall of 2003. From that inspection he found no farm equipment or other direct evidence to indicate to him that the property was being used as a farm. He also spoke to a Mr. Rob Stack who formerly lived on an old homestead on the property who stated that he (Stack) did not farm the property. Based on this observation and conversation, the assessor changed the classification of the property from farm land to industrial for the 2003 grand list. (Def. Exs. B and C.) Approximately one year later, on or about November 22, 2004, the assessor conducted another inspection of the property, this time in the presence of Mr. Schulz. Following that inspection, which lasted about 15 minutes and which was done on foot and by vehicle, the assessor gave a section of the western side of the property a wood land classification and partially restored a farm land classification for the remaining property for the 2004 grand list as well as the subsequent grand lists of 2005 and 2006.
The testimony and documentary evidence provided by both parties established that the assessments relative to the change in classification on the grand lists were as follows:
2003: $219,850 (prior to change in assessment/classification) (Pl. Ex. 9.)
2003: $6,857,200 (after the change in assessment/classification) (Pl. Ex. 10.)
2004: $1,834,210 (reflecting the partial restoration of the farm land classification and the designation of wood land) (Pl. Ex. 11.)
2005: $2,770,320 (change due to statutorily mandated statistical revaluation) (Pl. Ex. 12.)
2006: $2,770,320 (Pl. Ex. 13.)
Additional facts will be referenced as necessary.
III DISCUSSION A General Statutes § 12-119
Plaintiffs contend in their first four counts, covering the respective assessments for each of the grand list years 2003, 2004, 2005 and 2006, that the town's removal of the farm land classification as it existed on October 1, 2003 constituted an appropriate basis for an appeal under General Statutes § 12-119. Their fundamental argument in support of their position is that there had been no change in the manner, nature, extent or usage of the property prior to, or during, those grand list years. That is, the property has been consistently used as a farm at all times in question up through the present date. Therefore, the increased assessments on the 2003 to 2006 grand list years were manifestly excessive and made in disregard of the statutes for determining property valuation. They also argue that the February 12, 2004 notices regarding the change in assessments were defective in that they were issued to the wrong entity or to the wrong address. Therefore, although the appeals to the town's board of assessment appeals were not filed until February 17, 2005, the plaintiffs argue that they were timely filed as to the October 1, 2003 grand list because any untimely/improperly noticed assessment increases do not become effective until the subsequent grand list (in this case, October 1, 2004).
While the appeal has been taken on the grounds of a manifestly excessive increase in the assessment in disregard of the statutes for determining property valuation, it is noteworthy that appeals are also allowed for persons aggrieved by the denial of any application for the classification of land as farm land under General Statutes § 12-107c(d). Any person so aggrieved "shall have the same rights and remedies for appeal and relief as are provided in general statutes for taxpayers claiming to be aggrieved by the doings of assessors or boards of assessment appeals."
Sec. 12-55. Publication of grand list. Changes in valuation. Notice of assessment increase.
(a) On or before the thirty-first day of January of each year, except as otherwise specifically provided by law, the assessors or board of assessors shall publish the grand list for their respective towns. Each such grand list shall contain the assessed values of all property in the town, reflecting the statutory exemption or exemptions to which each property or property owner is entitled, and including, where applicable, any assessment penalty added in accordance with section 12-41 or 12-57a for the assessment year commencing on the October first immediately preceding. The assessor or board of assessors shall lodge the grand list for public inspection, in the office of the assessor on or before said thirty-first day of January, or on or before the day otherwise specifically provided by law for the completion of such grand list . . .
(b) 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 assessor or board of assessors may increase or decrease the valuation of any property as reflected in the last-preceding grand list, or the valuation as stated in any personal property declaration or report received pursuant to this chapter. In each case of any increase in valuation of a property above the valuation of such property in the last-preceding grand list, or the valuation, if any, stated by the person filing such declaration or report, the assessor or board of assessors shall mail a written notice of assessment increase to the last-known address of the owner of the property the valuation of which has increased. All such notices shall be subject to the provisions of subsection (c) of this section . . .
(c) Each notice of assessment increase sent pursuant to this section shall include: (1) The valuation prior to and after such increase; and (2) information describing the manner in which an appeal may be filed with the board of assessment appeals . . . Each such notice shall be mailed not earlier than the assessment date and not later than the tenth calendar day immediately following the date on which the assessor or board of assessor's signs and attests to the grand list. 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."
Reference is made to § 12-55(c) in footnote 9 above. Under General Statutes § 12-55(a), the grand list is to be published and certified by the assessor or board of assessors on or before January 31st of a given year unless an extension is requested of, and granted by, the chief executive officer of the town. Such an extension may be granted pursuant to General Statutes § 12-117(a). The notices issued by the town on February 12, 2004 relative to the valuation of the properties were issued under General Statutes § 12-55(c). See Pl. Exs. 3 and 4.
The defendant contends that there was a factual basis for the increased assessments based on the inspections by the assessor. In addition, the defendant contends that the appeal of the 2003 assessment was not filed within one year from the date of the assessment as required by § 12-119.
As to the usage of the property the court finds credible the testimony of the plaintiffs' witnesses which clearly establish that the property was used for farming during the assessment years 2003 to 2006. Moreover, that usage was consistent in the manner, nature and extent of the farming done. There was sufficient evidence to also show that it was farmed from at least 1994 to the present date. The usage of the property clearly falls within the statutory definitions of farming set forth in General Statutes § 1-1(q) and § 12-107b(1). While respecting the experience of the defendant's assessor and his service to the community, the court finds unpersuasive that portion of his testimony that there was no farming activity on the property in 2003 and that for 2004, 2005 and 2006 only a portion of the property should be classified as farm land. As to the assessor's on-site visit which was conducted in the late fall of 2003, there was testimony from the plaintiffs' witness, Mr. Schulz, that almost all of the crops are harvested by October 1st each year. Therefore, at the time of the assessor's visit there would have been few, if any, crops growing or left on the land for him to see. Moreover, there was no evidence of any machinery (e.g., tractors, tillers, etc.) on the farm for the reason that Mr. Schulz stored the equipment at an off site location. Finally, while the assessor's information that Mr. Stack did not farm the property may have been factually accurate, it did not mean that the plaintiffs' tenant (Mr. Schulz) was not actively farming the property between 2003 and 2006.
It appears that the decision of the assessor to change the classification of the property with the resulting change in assessment was predicated not on the actual use of the site, but rather that the highest and best use would be for industrial purposes. Such motivation for a change is improper. Marshall v. Newington, 156 Conn. 107, 113, 239 A.2d 478 (1968).
Based on the credible evidence presented, the court finds by a fair preponderance of the evidence that, for tax assessment purposes, the property at issue was farm land for the grand list years of 2003-2006 and that the tax assessment was manifestly excessive and made in disregard of the statutes for determining property valuation. However, this alone is not dispositive of the claims of the plaintiffs as there remains the issue of whether the appeals were timely filed. The court finds that appeals of 2004, 2005 and 2006 were timely filed by the plaintiffs. The plaintiffs amended their original appeal of the 2003 assessment to include appeals for the subsequent grand list years as authorized by § 12-117a. That statute allows that "[i]f during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals, as the case may be, to make such amendment effective." The plaintiffs properly did so in this case.
The statutory framework for an assessor's classification of farm land is distinct from the framework for other designations of property such as forest land and open space land. Farm land is dealt with under General Statutes § 12-107c, forest land under § 12-107d and open space laud under § 12-107e. For a case detailing the differences between forest land and open space land designations, and thereby seeing how they are different from farm land designations, see Carmel Hollow Associations, Ltd. Partnership v. Town of Bethlehem, 269 Conn. 120, 848 A.2d 451 (2004).
There remains however, the question of whether the appeal for the 2003 grand list was untimely and should be denied. To address this issue it is necessary to review the framework for an appeal of this nature and to do so the court first looks to General Statutes § 12-107a which declares the state's policy as to tax treatment of farm land. The statute states: "Declaration of policy. It is hereby declared (1) that it is in the public interest to encourage the preservation of farm land, forest land and open space land in order to maintain a readily available source of food and farm products close to the metropolitan areas of the state, to conserve the state's natural resources and to provide for the welfare and happiness of the inhabitants of the state, (2) that it is in the public interest to prevent the forced conversion of farm land, forest land and open space land to more intensive uses as the result of economic pressures caused by the assessment thereof for purposes of property taxation at values incompatible with their preservation as such farm land, forest land and open space land, and (3) that the necessity in the public interest of the enactment of the provisions of sections 12-107b to 12-107e, inclusive, and section 12-504f, is a matter of legislative determination." This policy, first enacted by the legislature in 1963 under P.A. 490, has long been held to prevent the forced conversion of such land to more intensive uses and to aid conservation efforts. Marshall v. Newington, supra, 156 Conn. 107; Johnson v. Board of Tax Review, 160 Conn. 71, 273 A.2d 706 ([970).
It is undisputed that at the time of the filing of the quitclaim deed from Chappaqua Realty Corp. to Chappaqua Realty, LLC in 2002, the property was classified by the town as farm land. However, while keeping in mind the state's policy as to the tax treatment of such land, the court notes that there are other statutes such as General Statutes § 12-504h and § 12-107c which authorize a town to change such a classification under certain circumstances. For example, under the version of § 12-504h in effect at the time of the filing of the quit-claim deed between the plaintiffs and the subsequent change in the classification and assessment by the defendant, it stated that "[a]ny land which has been classified by the record owner as farm land pursuant to section 12-107c . . . shall remain so classified without the filing of any new application subsequent to such classification . . . until either of the following shall occur: (1) The use of such land is changed to a use other than that described in the application for the existing classification by said record owner, or (2) such land is sold by said record owner." Accordingly, either of these two scenarios could have led the defendant to make such a change in classification.
The other engine of change, § 12-107c, provides the assessor with the discretion to change an assessment of a property upon application by an owner of land.
General Statutes § 12-107c(a) states in part: "(a) An owner of land may apply for its classification as farm land on any grand list of a municipality by filing a written application for such classification with the assessor thereof not earlier than thirty days before or later than thirty days after the assessment date . . . The assessor shall determine whether such land is farm land and, if such assessor determines that it is farm land, he or she shall classify and include it as such on the grand list. In determining whether such land is farm land, such assessor shall take into account, among other things, the acreage of such land, the portion thereof in actual use for farming or agricultural operations, the productivity of such land, the gross income derived therefrom, the nature and value of the equipment used in conjunction therewith, and the extent to which the tracts comprising such land are contiguous."
General Statutes § 12-107c(b) states in part: "An application for classification of land as farm land shall be made upon a form prescribed by the Commissioner of Agriculture . . ."
From the testimony presented at trial by the town's assessor, it is clear the change in the classification by the town was not triggered by § 12-504h. First, as found above, the use of the land was not changed from the classification in effect at the time of the filing of the quit-claim deed. Therefore, there was nothing which would have led to a change in the classification under the first prong of § 12-504h. Second, the filing of the quitclaim deed did not constitute a "sale" of the property as contemplated by the statute. In Timber Trails Associates v. New Fairfield, 226 Conn. 407, 627 A.2d 932 (1993), a case highly analogous to the instant matter, the Supreme Court considered a corporation's transfer of property for no consideration under § 12-504h which was classified as forest land. The court noted that there would be no change in the classification of the property partly because the use of the land had not changed, but also "because the land was not sold by the corporation to the plaintiff. In this context, sold means more than conveyed. A sale of the property is a transfer of the absolute title therein for a price . . . Because the corporation transferred the forest land to the plaintiff for no consideration, the trial court properly concluded that the property had not been sold by [the] record owner as required by 12-504h." (Citations omitted; internal quotation marks omitted.) Id., 414. Because forest land and farm land are treated identically under § 12-504h, the plaintiffs' quitclaim deed, which was transferred for no consideration, clearly meets the standard under Timber Trails Associates to avoid a reclassification of the property.
The language of General Statutes § 12-504h was amended by Public Act 05-190 which made several changes. It added that the classification of farm land was deemed to be personal to the owner who requests and receives such classification and that it was not to run with the land. Notably, this additional language was already part of the conveyance tax framework at the time of plaintiffs' transfer under § 12-504f. However, the amendment of § 12-504h also added that upon any sale or transfer applicable to transfers of the property, the classification was to cease as of the date of the sale or transfer. This language was not part of § 12-504f. The amendment to § 12-504h was effective July 1, 2005 and was applicable to transfers on or after that date. Because the changes were not effective until well after the quitclaim transfer made by the plaintiffs on June 5, 2002, they do not impact the plaintiffs' claims in this matter. Had the change regarding the "sale or transfer" language been in effect as of the date of the quitclaim, they would likely have required a declassification of the farm land because the addition of the term "transfer" would encompass conveyances where there was no consideration as was the case in this instance. The grantee (Chappaqua Realty, LLC) would then have been required to seek a new application for classification as farm land under § 12-107c.
More specifically, the amended version of the statute states: "Any such classification of farm land pursuant to section 12-107c . . . shall be deemed personal to the particular owner who requests and receives such classification and shall not run with the land. Any such land which has been classified by a record owner shall remain so classified without the filing of any new application subsequent to such classification . . . until either of the following shall occur: (1) The use of such land is changed to a use other than that described in the application for the existing classification by said record owner, or (2) such land is sold or transferred by said record owner. Upon the sale or transfer of any such property, the classification of such land as farm land pursuant to section 12-107c . . . shall cease as of the date of sale or transfer."
In Timber Trails Associates, the court specifically held that where there had been a change in the classification of a property by the town's assessor, and the plaintiff claimed the resultant assessment was manifestly excessive and arrived at by disregarding the provision of the statutes for determining the valuation of the property, then a direct appeal to the superior court was authorized by § 12-119. Timber Trails Associates v. New Fairfield, supra, 226 Conn. 413.
Also, for a case where the farm land classification remains unaffected by reason of a transfer due to a death or devise, (prior to the amendment of § 12-504h), see, Ramsey v. Southington, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 960473690 (August 13, 1996, Fineberg, J.) (17 Conn. L. Rprt. 455).
It is also noteworthy that the assessor specifically testified that he did not consider the quit-claim deed to constitute a legal transfer of the property for his purposes and that Chappaqua Realty Corp. (rather than Chappaqua Realty, LLC) remained the owner of the two parcels. Hence, he considered § 12-504h inapplicable for his purposes. Moreover, the motivation for the unilateral action of the assessor to change the classification came not from any application of § 12-504h but rather from his election to do a personal inspection of the property because he had frequently driven past it in 2003.
Beyond the issue of the applicability of § 12-504h, the town had already considered the property as farm land as of October 1, 2003. The declassification of the property by the assessor and the issuance of the new assessment on February 12, 2004 were untimely to make it effective for the October 1, 2003 grand list. Under § 12-55(c) the assessor was required to issue such notice within ten days of the certification of the grand list by the assessor or board of assessors. Such certification was required to be made on or before January 31, 2004 for the October 1, 2003 grand list. The statute specifically states that "[e]ach such notice shall be mailed not earlier than the assessment date and not later than the tenth calendar day immediately following the date on which the assessor or board of assessors signs and attests to the grand list. 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." (Emphasis added.) While there was no testimony provided at trial as to the date of the certification, the court may reasonably infer that it was provided no later than January 31, 2004. Accordingly, the notice regarding the change in assessment issued pursuant to § 12-55(c) was sent outside the ten-day period required and therefore the change in assessment was not effective until the October 1, 2004 grand list.
There was no evidence presented at trial to establish, or to allow the court to infer, that an extension of the certification of the October 1, 2003 grand list was sought or granted pursuant to § 12-117(a). The court's inference that the certification was made on or before January 31, 2003 is based in part on the statutory obligation of the assessor or board of assessors to complete the grand list certification by that date. There is no statutory obligation to seek an extension.
The purpose or rationale for a short time period for the filing of an appeal under § 12-119 is "the need of on the part of the government for fiscal certainty. A municipality, like any government entity, needs to know with reasonable certainty what its tax base is for each fiscal year, so that it responsibly can prepare a budget for that year . . . Public policy requires, therefore, that taxes that have not been challenged timely cannot be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer . . ." (Citations omitted; internal quotation marks omitted.) City of Danbury v. Dana Investment Corp., 249 Conn. 1, 15, 730 A.2d 1128 (1999). Evidence of the embodiment of this public policy is found in § 12-55(c) which moves the assessment of the property over to the next grand list year when the notice is not issued within ten days of the certification by the assessor or board of assessors. The time limit for challenge is therefore not indefinite, but instead remains limited to one year from the date of the following grand list year by virtue of the legislature's adoption of the language of § 12-55(c).
While the assessor had the discretion under § 12-55 to change the original assessment (through the declassification of the property), the court cannot find a factual basis to justify the change. The notice issued pursuant to § 12-55 allowed the plaintiffs to take an appeal under § 12-119. That statute allows an appeal within one year of the valuation of the property where an owner claims the assessment is "manifestly excessive" and was arrived at by "disregarding the provisions of the statutes for determining the valuation of such property." The statute further empowers the court to provide "relief upon such terms and in such manner and form as to justice and equity appertains . . ." It is clear from § 12-55(c) that when the notice is not issued within ten days of the date of the certification by the assessor or board of assessors, the date of valuation becomes October 1st of the next grand list year; in this instance, October 1, 2004. Because the plaintiffs filed their appeal of the assessor's action with the town's board of assessment appeals on February 17, 2005, and then subsequently filed their appeal of the board's decision with the superior court on April 28, 2005, the appeal allowed by § 12-119 was timely done within one year of the effective date of the valuation of the property.
See footnote 14 above.
For a discussion of the issue of the time limitation for an appeal and the applicability of § 12-119, see Interlude v. Skurat, 253 Conn. 531, 754 A.2d 153 (2000).
Moreover, because incorrect information was provided on the notices issued under § 12-55 relative to both properties, the court is unpersuaded that notice to the plaintiffs, under the facts and circumstances of this case, should be presumed to have been received in the normal course of affairs shortly after their issuance by the assessor. The first affirmative evidence of the plaintiffs' actual knowledge of the change in assessment and classification is when a new application for farm land classification was filed by the plaintiffs on October 24, 2004. The trial court, as a finder of fact, is free to apply its common knowledge and experience to make inferences from facts proven. In the case now before it, it can reasonably infer from the facts found that the notice of change in assessment (and classification) from the assessor was received and/or learned of by the plaintiffs sometime prior to that date. Vasques v. Superior Court, 102 Conn.App. 394, 411, 925 A.2d 1112 (2007); State v. Greene, 81 Conn.App. 492, 498, 839 A.2d 1284, cert. denied 268 Conn. 923, 848 A.2d 472 (2004); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 702, 651 A.2d 1286 (1995). This would have allowed the plaintiffs time to discuss with their attorney their next step including the filing of new farm land classification applications. Accordingly, such inference further leads to the conclusion that the filing of the appeal of the assessor's action with the board of assessment appeals on February 17, 2005 and the subsequent April 28, 2005 appeal of the board's denial to superior court was done within one year of the effective date of the valuation as well as within one year of the date notice was given to the plaintiffs. To hold otherwise under the circumstances of this case would lead to a consequence thoroughly unintended by the language of § 12-119. "It is . . . a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results." Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 30-31, 717 A.2d 77 (1998).
Ultimately, the assessor granted a partial change in classification from industrial land back to farm land. Based on the applications submitted, the assessor approved a farm land classification for 49.0 acres (9 acres of corn and 40acres of wood land) out of 86.82 acres on the west side (1702), and 60.0 acres (20 acres of pumpkin, corn and tomatoes and 40 acres of hay) out of 61.56 acres on the east side (1703). Def. Exs. D and E.
The court could even go so far as to infer that notice was constructively given to the plaintiffs at the time the regular semi-annual tax bill was issued sometime prior to July of 2004 as the plaintiffs were likely knowledgeable of the timing of the issuance of such bills and could have made an inquiry regarding the same. In such an instance the superior court appeal still would have been within the one-year time frame.
Here the court finds that whether it be from the effective date of valuation (October 1, 2004) or the effective date of notice to the plaintiffs, the filing of the appeal pursuant to § 12-119 was both timely and appropriate relative to their claim for the October 1, 2003 grand list.
B General Statutes § 12-60
The plaintiffs have also contended in the fifth count of their seventh amended complaint that they are entitled to relief under General Statutes § 12-60 which allows for an appeal of the doings of an assessor to the board of assessment appeals where there is alleged a clerical error or mistake in the assessment of taxes. The plaintiff contends that because the 2003 grand list assessment was over 30 times greater than the 2002 grand list assessment, such a tremendous change could not have been the result of a deliberate act but rather have only occurred through a clerical mistake. To this end it points to the February 12, 2004 assessment notices issued under § 12-55 which contained the wrong address and/or addressee information. Defendant contends that § 12-60 does not authorize a right of judicial appeal, or in the alternative, that a claim cannot be brought by a taxpayer under that statute unless a certificate of correction has first been issued by the assessor.
General Statutes § 12-60 states in 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. In the event that the issuance of a certificate of correction results in an increase to the assessment list of any person, written notice of such increase shall be sent to such person's last-known address by the assessor or board of assessment appeals within ten days immediately following the date such correction is made . . ."
In support of its position, the plaintiffs cite National CSS, Inc. v. Stamford, 195 Conn. 587, 489 A.2d 1034 (1985) which allows a claim for relief provided "that a mistake is `clerical' and was made `in the assessment of taxes.'" Id., 595-96. The factual basis of this case does not support the plaintiffs' claim in this regard. The town's assessor specifically testified that his assessment of the property which led to the issuance of the February 12, 2004 notices was based on his personal inspection of the property. While his conclusion as to the nature and usage of the property for assessment purposes may have been incorrect, it cannot be said to have been a clerical error as his assessment in this regard was based on his judgment and discretion exercised pursuant to § 12-55. A clerical error, for example, would be something more in the nature of the transposing of a number when recording the value of the property on the grand list. Plaintiffs' effort to classify the assessor's exercise of judgment as a clerical error is unfounded. They have failed to establish their claim under this count by a fair preponderance of the evidence.
IV DEFENDANT SPECIAL DEFENSES A First Special Defense
Defendant has alleged the plaintiffs' action under § 12-119 is time barred. For the reasons cited in section IIIA above, the court finds that the defendant has failed to establish this defense by a preponderance of the evidence.
B Second Special Defense
Defendant has alleged that § 12-60 regarding clerical errors does not authorize or establish a right of judicial appeal. Even if the court were to assume that a right of action does exist pursuant to the statute (though it does not so specifically find), the plaintiff has failed to establish that a clerical error in the assessment of the property was made by the defendant. Accordingly, the court need not address this special defense.
C Third Special Defense
Defendant has alleged that claims under § 12-60 are barred, in whole or in part, by the fact that no certificate of correction had been issued by the defendant in connection with the grand list assessments. The court need not address this special defense in light of its finding that the plaintiff has failed to establish that a clerical error in the assessment of the property was made by the defendant.
D Fourth Special Defense
Defendant has alleged that the plaintiffs' claims that the property should have been treated as farm land have been waived in that they did not apply for farm land classification pursuant to § 12-107c during one or more of the grand list years in issue. The defendant has failed to prove this by a preponderance of the evidence. In fact, contrary to its assertion, defendant itself presented evidence at trial that the plaintiffs did file such applications on October 26, 2004. See Def. Exs. D and E.
E Fifth Special Defense
Defendant has alleged that the plaintiffs are not statutorily aggrieved in that they did not apply for farm land classification pursuant to § 12-107c during one or more of the grand list years in issue and therefore were not denied any such application which in turn would have led to their right of appeal pursuant to § 12-107c(d). The defendant has failed to prove this by a preponderance of the evidence. As noted above, the defendant itself presented evidence at trial that the plaintiffs did file such applications on October 26, 2004. See Def. Exs. D and E.
F Sixth Special Defense
Defendant has alleged that plaintiffs have failed to exhaust available administrative remedies in that they failed to apply for farm land classification and failed to file appeals pursuant to General Statutes §§ 12-111 and/or 12-117a. For the reasons cited in sections IIIA and IVD above, the court finds the defendant has failed to prove this by a preponderance of the evidence.
G Seventh Special Defense
Defendant has alleged the plaintiff Chappaqua Realty Corp. has no legally cognizable interest at stake in this case and therefore has no standing in the matter. The court finds that such claim should properly have been made part of a motion to strike or motion to dismiss rather than as a special defense. Moreover, the defendant made no objection to the testimony of the witnesses who testified on behalf of both plaintiffs, particularly attorney Neil Marcus who acted as counsel to Chappaqua Realty Corp. and Chappaqua Realty, LLC both prior to and after the attempt by the defendant to change the classification and assessment of the property. The evidence supports Chappaqua Realty Corp.'s claim of an interest in this matter by virtue of the February 12, 2004 notice issued to it by the defendant relative to property 1702. (Pl. Ex. 3.) That plaintiff claims an imposition of taxes upon it for that property and that such taxes were manifestly excessive. Also, the town's assessor specifically testified that it considered Chappaqua Realty Corp. to be the owner of both parcels (1702 and 1703) despite the filing of the quitclaim deed. Accordingly the court finds that even if this claim was properly raised as a special defense, the defendant has failed to prove it by a preponderance of the evidence.
V CONCLUSION
The court finds that under the unique circumstances of this case that it would be inequitable to dismiss the appeal of the plaintiffs as to counts one through four. With the exception of the October 1, 2003 grand list, all or most of the property has been treated as farm land by the defendant for tax assessment purposes for the grand list years in issue (2003-2006). Justice mandates that the property, which has consistently been used as farm land over the periods in issue, be so treated for classification and assessment purposes. Therefore, the plaintiffs' appeal is sustained as to counts one through four. Their appeal is dismissed as to count five.
During the trial the assessor testified that he considered the plaintiffs' appeal for the 2004-2006 grand list years to be timely. While the court did not need to consider such testimony in that theme was an otherwise sufficient factual basis for the conclusion reached by the court, it is nonetheless noteworthy the defendant's own witness made such a statement in light of the special defenses that were raised.
In light of the above, the following relief is ordered: those portions of the two parcels identified as 1702 and 1703 which were assessed as industrial land for the grand lists of October 1, 2003, 2004, 2005 and 2006 shall instead be assessed as farm land and be so classified. Pursuant to § 12-119, the amount of tax levied against the properties for those periods shall be reduced accordingly. The plaintiffs shall be reimbursed by the defendant for any overpayment of taxes in accordance with this judgment.