Greenwich Retail, LLC v. Greenwich (Concurrence & Dissent)

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DANNEHY, J., concurring in part and dissenting in part. I agree with the majority that the term "provided"

in General Statutes (Rev. to 2019) § 12-63c (a)¹requires only that a municipal tax assessor make an income and expense form available to owners of income producing real property for completion and does not require proof that the owners actually received the form. Accord- ingly, I concur in that portion of the majority opinion. I respectfully part ways with the majority, however, insofar as it concludes that the April 2020 mailing by the defendant, the town of Greenwich, to the outdated, but last known address, of Empire State Realty Trust (Empire) provided the nonresident plaintiff, Greenwich Retail, LLC, with adequate notice of the demand for information made by the defendant's assessor and the availability of the required form sufficient to justify the imposition of the $23,000 tax penalty in this case.²In my view, under the circumstances of this case, that mail- ing did not satisfy the notice required by the principle of fundamental fairness. I therefore would reverse the judgment of the Appellate Court.

Section 12-63c (a) plainly requires the assessor to pro- vide the property owner with the income and expense form that must be completed and returned by the statu- tory deadline. As I explained, I agree with the majority that the term "provided," as used in § 12-63c (a), sim- ply means that the assessor must make the prescribed form available for use by the property owner but does not require proof that the owner actually received it.

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The plaintiff's appeal, however, presents an additional question—whether the defendant employed a method of notice reasonably calculated to apprise the plaintiff of the assessor's demand for information and the avail- ability of the prescribed form.

Section 12-63c (a) confers discretionary authority on an assessor to require owners of property used primarily for purposes of producing rental income to submit income and expense information. The statute does not impose a recurring obligation on such property owners to furnish that information in the absence of an affirmative demand by the assessor. Consequently, a property owner who has not been afforded adequate notice of both that demand and the availability of the form on which the informa- tion must be provided cannot reasonably be expected to comply with the statutory submission deadline.³ Although § 12-63c does not prescribe the manner in which an assessor must communicate such a demand, I agree with the majority that the statute must be read in the context of the common-law right to fundamental fairness in administrative proceedings. Under the facts of this case, however, I disagree with the majority that mailing the demand and form to Empire's outdated, but last known, address satisfied the notice requirements of fundamental fairness. Consistent with the principle of fundamental fairness is the concept that notice must be reasonably calculated to reach the intended recipient when sent. See, e.g., Grimes v. Conservation Commis- sion, 243 Conn. 266, 273-74 and n.11, 703 A.2d 101 (1997); see also 1 Restatement (Second), Judgments § 2 (1) (b), p. 34 (1982) (notice is adequate if it "is trans- mitted in a manner that actually notifies the person being addressed or someone who can adequately represent him,

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or has a reasonable certainty of resulting in such notice"); cf. Jones v. Flowers, 547 U.S. 220, 226, 126 S. Ct. 1708,

164 L. Ed. 2d 415 (2006) ("[the] [c]ourt has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent"). Applying that principle, I cannot conclude that the defendant's April 15, 2020 mailing to Empire's outdated, but last known, address constituted notice reasonably calculated to apprise Empire of the assessor's demand. Neither § 12-63c nor any other provision of law of which I am aware required the plaintiff to maintain a cur- rent mailing address with the assessor for purposes of receiving requests under § 12-63c. Nor does the record reflect that the defendant ever requested the nonresident plaintiff to maintain updated contact information for that purpose or otherwise informed the plaintiff that the address on file would be treated as its current address for purposes of satisfying the statutory notice requirement regarding the assessor's demand and the availability of the required form. Cf. General Statutes (Supp. 2020) § 47a-6a (b) (municipalities may require nonresident owner to maintain on file current residential address of nonresident owner). The analysis might well be different if the plaintiff had been obligated, whether by statute, regulation, or notice from the defendant, to keep its mail- ing address current and had nevertheless failed to do so. In those circumstances, a mailing to Empire's last known address likely would have been reasonably calculated to provide notice. But those are not the facts before us. Accordingly, in the absence of any statute, ordinance, or other municipal requirement obligating nonresident property owners to keep their mailing addresses cur- rent with the assessor, and in the absence of evidence in the record that the defendant reasonably relied on an outdated address under the circumstances, I con- clude that the April 15, 2020 mailing not only failed to provide Empire with actual notice but also was not reasonably calculated, under the circumstances, to apprise the nonresident plaintiff of the assessor's demand

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for information and the availability of the required form.⁴ Cf. Brzozowski v. Singh, Docket No. 08 C 677, 2008 WL 4890161, *3 (N.D. Ill. November 12, 2008) (notice was reasonably calculated to reach intended recipient when it was mailed to address that plaintiff's wife had provided for him less than one week earlier). Because the April 15, 2020 mailing did not satisfy the notice required by the principle of fundamental fairness, I would reverse the judgment of the Appellate Court.

I respectfully concur in part and dissent in part.

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