Kettle Brook Realty, LLC v. Town of E. Windsor

KETTLE BROOK REALTY, LLC v. TOWN OF EAST WINDSOR

AC 36817

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 8, 2015

July 21, 2015

Lavine, Beach and Prescott, Js.

(Appeal from Superior Court, judicial district of New Britain, Hon. Arnold W. Aronson, judge trial referee.)

Jonathan M. Starble, for the appellant (plaintiff).

Laura A. Cardillo, with whom, on the brief, was Tiffany K. Spinella, for the appellee (defendant).

Opinion

LAVINE, J. The plaintiff, Kettle Brook Realty, LLC, appeals from the judgment of the trial court dismissing its real estate tax appeal.¹ On appeal, the plaintiff claims that the trial court improperly concluded that, pursuant to General Statutes § 12-117a,² it was required to serve the defendant, the Town of East Windsor (town), within two months of the date notice of a decision by its Board of Assessment Appeals (board) was mailed. More particularly, the plaintiff claims that (1) it met the filing and service requirements of § 12-177a and (2) the court failed to distinguish properly the procedural differences between § 12-117a and common-law civil actions. We affirm the judgment of the trial court.

There is no dispute with regard to the following underlying facts. The plaintiff is the owner of real property located at 96 Prospect Hill Road in the town. With regard to the town's Grand List as of October 1, 2012, the town's tax assessor valued the plaintiff's property at $4,089,130. The plaintiff appealed the assessment of the property to the board and appeared before the board to request a reduction in the assessment. On April 29, 2013, the board denied the plaintiff's request for a change of the assessment. The assessor mailed the board's decision to the plaintiff on May 1, 2013.

On June 28, 2013, the plaintiff filed an application in the Superior Court. The application was titled "Complaint" and bore a return date of July 23, 2013. On July 10, 2013, a marshal served the application, citation, and recognizance on the town and on July 17, 2013, filed the return of service in court. On August 14, 2013, the town filed a motion to dismiss the appeal on the ground that the court lacked subject matter jurisdiction because the plaintiff had failed to serve the appeal within two months of the date notice of the board's decision was mailed. The plaintiff opposed the motion to dismiss contending that there is § 12-117a does not require a tax appeal to be served within two months of the board's decision and that §12-117a "clearly requires a tax appeal be commenced by filing an application with the court within two months after the town's action." (Emphasis in original.) The parties appeared before the court to argue the town's motion to dismiss. The court issued a memorandum of decision on April 14, 2014, in which it granted the motion.

In adjudicating the motion to dismiss, the court stated that the present case is a companion case to Chestnut Point Realty, LLC v. East Windsor, in which the same issue was considered and decided by the court. The court found that the pertinent facts in the Chestnut Point Realty case are the same as the facts in the present case. The trial court stated that the key issue in both cases "is whether § 12-117a requires the filing of an application of appeal to the court within two monthsfollowing the date of the notice from the [board] or whether § 12-117a requires service of process upon the town in order to effect a proper appeal." The court concluded that service of process is necessary to commence an appeal pursuant to § 12-117a.

In its memorandum of decision, the trial court referred to its analysis in its memorandum of decision in adjudicating the motion to dismiss filed in the Chestnut Point Realty, LLC, case. The court noted that the plaintiff had isolated one term in the statute and taken it out of context, as did...