Town of Suffield v. Carrington, No. Cv 94 0543279 (Dec. 30, 1998) , 46 Conn. Supp. 228 ( 1998 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION Cross-Plaintiff Town of Suffield Water Pollution Control Authority (hereinafter WPCA) moves for summary judgment on its cross-complaint seeking foreclosures of its sewer assessment and user liens. CT Page 15335

The facts are as follows: This action was started by the Town of Suffield to foreclose on its tax liens recorded against the property of defendants Franklin H. and Carolyn R. Carrington (hereinafter Carringtons). WPCA was made a defendant by virtue of its sewer assessment and user liens recorded against the Carringtons. When the Town and the Carringtons agreed to settle their tax dispute, WPCA cross-complained to foreclosure on its liens. The Town's tax foreclosure action has been withdrawn, but WPCA's cross-complaint remains to be resolved.

The Carrington's acquired title to property at 827 North Street, Suffield in November 1978. On the property are a main house, cabana and guest house.

In July 1991 WPCA assessed the property of the Carringtons the sum of $10,000 for acquisition and construction of a sewer system, pursuant to C.G.S. § 7-249, duly published and notified the Carringtons of the assessment, and caused a certificate of liens to be recorded on the Suffield Land Records. The annual installments on this assessment from 1991 to 1998 total $8,332.97, and with accrued interests, penalties and lien fees total $15,608.33. Starting in 1992 WPCA assessed the property of the Carringtons annually for sewer use fees, pursuant to § 7-255 and caused certificates of liens to be recorded on the Suffield Land Records. These sewer use fees from 1992 to 1998 total $2,480 which with accrued interest, penalties and lien fees total $4704.44. The Carringtons have never paid these annual installments and fees, nor appealed these assessment.

After the sewer line was built, the Carringtons connected the cabana and guest house on their property to the line which runs roughly parallel with their property's northern boundary. When the Carringtons attempted to connect their main house to the line, they discovered neighbors, named Len and Mary Javnik claimed ownership of a strip of land between the Carrington's property and the sewer line and have prevented the connection. The Carringtons can, however, connect the main house to the sewer line over their land at a point further distant than the spot they hoped to. The boundary between the Carringtons and the Janiks is the subject of a quiet title action presently pending in this court.

The Carringtons conceded at the argument of this motion that WPCA have a right to prevail on the foreclosure of the lien for CT Page 15336 unpaid sewer user charges but contest WPCA's right to foreclose the sewer construction assessment liens.

Section 7-250 provides that any person aggrieved by an assessment may appeal it within twenty-one days after publication and mailing to the property owner of the assessment. This appeal is the land owner's sole remedy. As stated by our Supreme Court in Connecticut Light Power Co. v. Norwich, 179 Conn. 111, 117 (1979), "The failure to follow the route of direct appeal, no matter how inadvertently, forecloses collateral inquiry into the fact-finding by the administrative agency"

The Carringtons assert they did not learn of the opposition by the Janiks to their connecting to the sewer line at the point they wished until after the time to appeal the assessment had elapsed. The clear, undisputed facts are they had access to the sewer over their land. They connected two structures on their property to the sewer. The fact they have to go a longer distance over their property to make the connection from the main house does not excuse their appealing within the statutory period.

Section 7-249 provides:

At any time after a municipality, by its water pollution control authority, has acquired or constructed a sewerage system. . . ., the water pollution control authority may levy benefit assessments upon the land and buildings in the municipality, which, in its judgment, are especially benefited thereby, whether they abut on such sewerage system or not, and upon the owners of such land and building, . . . subject to the right of appeal as hereinafter provided. . . . No assessment shall be made against any property in excess of the special benefit to accrue to such property.

The Carringtons in their answer deny their property has received benefits from the sewer system and dispute their liability for the assessment. In their affidavit opposing this motion they assert that another land owner blocks their access to the sewer line. However, what the Carringtons mean is that they cannot connect their main house to the sewer line by the shortest route over their land.

Moreover, connection is not the criterion. As stated inShoreline Care Ltd. Partnership v. North Branford, 231 Conn. 344, 351-2 (1994), "Indeed, a property need not be connected to the CT Page 15337 system in order for it to receive a special benefit."

Rather, the special benefit referred to in § 7-249 is an increase in market value of the property as a consequence of the sewer. As stated in Shoreline. id, "If the property has increased in market value merely by virtue of its access to town sewers, it has received a benefit for which an assessment may be levied."

Our law recognizes a presumption as to the "regularity, validity and correctness" of a special benefit assessment that "imposes on one challenging the assessment the burden of proof".Tower Bus. Park Assoc. No. 1 Ltd. Partnership v. Water PollutionControl Authority, 213 Conn. 112, 117 (1989).

"An appellant may overcome this presumption by introducing competent evidence that the assessment is greater than the increase in the market value of the property due to the improvement." Katz v. West Hartford, 191 Conn. 594, 602-03 (1983).

Here the Carringtons have proffered no evidence on that issue. Thus they have failed to show the lack of a special benefit.

In Shoreline Care Ltd Partnership v. North Branford, supra where the land owner offered evidence that the town incurred no cost for a sewer line, but no evidence that its property had not appreciated as a result of the sewer lines, the court held the land owner failed "to rebut the presumption of validity that attaches to municipal benefit assessments." p. 354. To the same effect is Tower Bus. Park Assoc., No. 1 Ltd Partnership v. WaterPollution Control Auth., supra, p. 120.

Cross-plaintiff WPCA has established there is no material issue of fact and that it is entitled to prevail as a matter of law. As a consequence the motion for summary judgment is granted as to liability only.

Robert Satter State Judge Referee