Fundamental Fairness Limits § 12-63c Penalties When the Assessor’s Notice Is Not Reasonably Calculated to Reach the Owner

1. Introduction

In Greenwich Retail, LLC v. Greenwich (Concurrence & Dissent), DANNEHY, J., agreed with the court’s construction of the word “provided” in General Statutes (Rev. to 2019) § 12-63c (a), but dissented from the majority’s conclusion that the Town of Greenwich gave adequate notice to justify a $23,000 penalty for late submission of income-and-expense information.

The dispute arose after the Greenwich assessor mailed a § 12-63c (a) demand and form in April 2020 to Empire State Realty Trust (Empire), the plaintiff’s property manager, at an outdated (though “last known”) address. The core issue in the dissent is not statutory wording alone, but whether the town employed a notice method “reasonably calculated” to reach the nonresident owner before penalizing noncompliance with a discretionary information demand.

2. Summary of the Opinion (Concurrence & Dissent)

Justice Dannehy concurred in the holding that “provided” in § 12-63c (a) means the assessor must make the form available for completion, not prove actual receipt by the owner.

He dissented, however, from the majority’s approval of the town’s April 15, 2020 mailing to an outdated address as sufficient notice. In his view, fundamental fairness required notice reasonably calculated to reach the intended recipient when sent. Because (1) no law required the plaintiff to keep a current mailing address on file with the assessor for § 12-63c purposes, (2) the town had not shown a reasonable basis to rely on the outdated address, and (3) later events underscored that the mailing method was failing (including a high nonresponse rate and the assessor’s later awareness of the correct address), the penalty should not stand. He would reverse the Appellate Court.

3. Analysis

3.1. Precedents Cited

  • Grimes v. Conservation Commission, 243 Conn. 266, 273-74 and n.11, 703 A.2d 101 (1997)
    The dissent draws from Grimes the administrative-law principle that “fundamental fairness” encompasses adequate notice. Dannehy, J., uses this Connecticut authority to frame § 12-63c notice as a fairness constraint on municipal administration, even where the statute is silent on the method of notice.
  • Jones v. Flowers, 547 U.S. 220, 226, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006)
    The dissent relies on Jones for the constitutional benchmark: notice is sufficient if “reasonably calculated to reach the intended recipient when sent.” Dannehy, J., deploys this standard to evaluate the town’s choice to mail to an outdated address absent any owner duty to keep that address current for § 12-63c demands.
  • 1 Restatement (Second), Judgments § 2 (1) (b), p. 34 (1982)
    The Restatement passage is cited for the proposition that notice is adequate if transmitted in a manner that actually notifies the person (or a representative) or has “reasonable certainty” of resulting in notice. This functions as a doctrinal bridge between “actual notice” and the legal sufficiency of procedures designed to achieve notice.
  • Brzozowski v. Singh, Docket No. 08 C 677, 2008 WL 4890161, *3 (N.D. Ill. November 12, 2008)
    The dissent uses Brzozowski as a contrasting illustration: mailing was reasonably calculated where the address had been provided by the recipient’s wife less than a week earlier. The comparison underscores Dannehy, J.’s point that recency and reliability of an address matter to the “reasonably calculated” inquiry.

3.2. Legal Reasoning

The dissent’s reasoning proceeds in three steps:

  1. § 12-63c creates a nonrecurring duty triggered by a discretionary demand.
    Because the assessor “may require” an annual submission, owners are not under a standing obligation absent an affirmative demand. Dannehy, J., stresses that this differs from routine tax-payment obligations that owners can anticipate without individualized prompting.
  2. Fundamental fairness requires notice reasonably calculated to reach the owner.
    Even though § 12-63c does not specify a notice method, the dissent reads it against a background principle: administrative action imposing a significant penalty must be preceded by procedures that are fair—chiefly, notice that is reasonably calculated to inform.
  3. Mailing to an outdated address was not reasonably calculated under these circumstances.
    Dannehy, J., emphasizes what is missing: no statute, ordinance, regulation, or municipal directive required nonresident owners to keep a current mailing address on file for § 12-63c requests; nor did the town show reasonable reliance on treating the outdated address as current for this purpose. He notes that the analysis might differ if such a duty existed and the owner failed to comply.

    He further points to post-mailing indicators that the method was failing: an extraordinary nonresponse rate (465 nonresponses, about 60.4%), and the assessor’s actual knowledge by June 29, 2020 (via Empire’s email) that the plaintiff’s notice had been misdirected. Despite that, the town did not send the form after learning of the error, sending only a reminder on August 3, 2020. The dissent treats these facts as reinforcing that the town’s approach lacked reasonable assurance of reaching the intended recipient before penalizing late submission.

3.3. Impact

Although a concurrence and dissent does not itself establish binding law, it articulates a clear limiting principle for § 12-63c penalties that may influence future litigation and municipal practice:

  • Heightened scrutiny of notice in discretionary-demand regimes: Courts may be more receptive to challenges where penalties flow from a demand the owner could not anticipate without individualized notice.
  • Municipal process adjustments: Assessors may be encouraged to adopt procedures that improve the likelihood of actual delivery (e.g., confirming addresses, using multiple channels, and re-sending forms upon learning of misdirection), particularly for nonresident owners.
  • Policy pressure for clear “address maintenance” rules: The dissent flags the legal significance of an explicit obligation on nonresident owners to keep contact information current (citing by analogy General Statutes (Supp. 2020) § 47a-6a (b)). Municipalities may seek ordinances or standardized notices that put owners on clear notice that the address on file will be used for § 12-63c demands.
  • Penalty defensibility: Where the town becomes aware that notice did not reach the owner (or that the chosen method is broadly failing), the dissent suggests fairness may require additional steps before imposing the statute’s penalty.

4. Complex Concepts Simplified

  • “Fundamental fairness” (administrative law): A common-law baseline requiring government decision-making processes to be fair, especially when imposing significant consequences. It often includes meaningful notice and an opportunity to comply or be heard.
  • “Notice reasonably calculated”: Notice is legally sufficient not because it was actually received in every case, but because the method chosen was reasonably likely to inform the person at the time it was used, given what the government knew (or should have known).
  • Discretionary demand vs. recurring obligation: A recurring obligation (like annual property taxes) is predictable; a discretionary demand (like an assessor’s optional request for income/expense data) is not. The dissent treats this distinction as critical to how much individualized notice fairness requires before penalties attach.

5. Conclusion

Justice Dannehy’s concurrence/dissent accepts the majority’s statutory reading that § 12-63c (a) requires the assessor to make the income-and-expense form available, not prove receipt. But he would bar a substantial penalty where the town’s method of giving notice—mailing to an outdated address without any owner duty to keep that address current for § 12-63c purposes—was not reasonably calculated to reach the nonresident owner, especially once the town had reason to know the mailing had failed. The opinion’s significance lies in its fairness-based framework: § 12-63c enforcement, in his view, must be anchored in reliable notice practices before punitive consequences follow.