690 A.2d 412
(16196)Appellate Court of Connecticut
Landau, Schaller and Spear, Js.
The plaintiff condominium association appealed to the trial court from a decision by the defendant board of tax review denying their claims for a reduction in their tax assessments. The trial court rendered judgment in favor of the plaintiff on two of the four counts of its complaint, from which the defendants appealed and the plaintiff cross appealed to this court. Held:
1. The trial court abused its discretion in ordering a reduction of the fair market value of the plaintiff’s property; that court’s conclusion, reached without making any findings with regard to the value of the land, that the fair market value of each unit had to be reduced was logically inconsistent with that court’s finding that the fair market value estimated by the town on each property was less than comparable sales prices. 2. The plaintiff could not prevail on its claim that the trial court improperly determined that the assessment was not manifestly excessive within the meaning of the applicable statute (§ 12-119); that court properly determined that the plaintiff failed to meet its burden of proof on that issue. 3. The trial court’s findings of fact with regard to the plaintiff’s claims that property values were improperly apportioned among the condominium units and that the board had assigned values to all property in Middlebury prior to the revaluation were supported by the evidence and were not clearly erroneous.
Argued December 2, 1996
Officially released March 18, 1997
Appeal from the decision by the board of tax review of the defendant town denying the plaintiff’s appeal from the tax assessment on certain of its real property, brought to the Superior Court in the judicial district of Waterbury and tried to the court, W. Sullivan, J.; judgment, in part, for the plaintiff, from which the defendants appealed and the plaintiff cross appealed to this court. Reversed in part; judgment directed.
Robert W. Smith, for the appellant-appellee (defendants).
James E. Hartley, Jr., with whom, on the brief, was Kathleen A. St. Onge, for the appellees-appellants (plaintiff).
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LANDAU, J.
The defendants appeal and the plaintiff cross appeals from the judgment of the trial court rendered in favor of the plaintiff on its complaint seeking a reduction in the amount of the assessment and tax on a parcel of real property. On appeal, the defendants claim that the trial court improperly (1) ordered a reduction in the assessed fair market value of the condominium units, (2) admitted into evidence the plaintiff’s expert witness’ appraisal, and (3) found the subject parcel overvalued. On cross appeal, the plaintiff claims that the trial court improperly (1) found that the tax on the subject parcel was not manifestly excessive, (2) failed to find that the assessor failed to apportion the value of the land among the respective condominium units, and (3) found that the board and the assessor did not predetermine the assessed land value. We affirm the judgment of the trial court in part and reverse the judgment in part.
The trial court found the following facts. The plaintiff, Tyler’s Cove Association, Inc., consists of thirty-eight owners of individual cottages situated on approximately 16.5 acres of land located in the town of Middlebury.[1] Prior to 1987, the individual unit owners did not own the land on which each unit was situated, but leased it on a year to year basis from the owner. In 1987, the unit owners formed a corporation, Tyler’s Cove, Inc., and purchased the 16.5 acre parcel of land for $1.926 million. In 1989, Tyler’s Cove, Inc., conveyed the 16.5 acres to Tyler’s Cove Association, Inc., the plaintiff in this matter. Each unit owner now owns one thirty-eighth of the common elements, which includes the land. Following the recording of the condominium declaration in 1989, the town, through the board of tax
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review, assessed each unit with a land assessment of approximately $18,000.
Sometime prior to October 1, 1992, the defendant Edmund Corapinski, the tax assessor of the town of Middlebury, undertook the process of revaluation of all real property in the town. The defendant town of Middlebury hired a revaluation company, Lesher-Glendinning Municipal Services, Inc., whose president is John J. Valente, to assist with the revaluation. Corapinski and Valente used the comparable sales method approach to establish the fair market value of all real estate in Middlebury, including the thirty-eight condominium units at Tyler’s Cove. In valuing the land, they used the residual value approach method, which involved subtracting the cost of the building from the fair market value; the residual value was the “condominium interest value,” which included the land value. During the Tyler’s Cove revaluation, Corapinski and Valente used field cards to gather information and to determine the fair market value. The field cards included a section for the building value and also a section for the land value, which Corapinski claimed was used solely for informational purposes. The resulting tax assessment figures were placed on the grand list as the final step in the revaluation process.
The total fair market value on the October 1, 1992 grand list, of the thirty-eight Tyler’s Cove units and the 16.5 acres on which they are located, was $4,545,600. The plaintiff appealed the October 1, 1992 grand list to the board of tax review and the board reduced the value of each unit at Tyler’s Cove by $5000. For the subsequent grand lists of October 1, 1993 and 1994, the town assessed taxes on Tyler’s Cove units in accordance with the board’s modified value. The plaintiff appealed from both grand lists, but the board refused to make any further reductions. The October 1, 1993 and October 1, 1994 grand lists are the subject of this appeal.
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The plaintiff filed an appeal in the trial court pursuant to General Statutes §§ 12-117a[2] and 12-119[3] from the
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decision of the board refusing to reduce the assessment of its property in 1993. The plaintiff amended its complaint to include the October 1, 1994 grand list. In its complaint, the plaintiff alleged in counts two and four, for 1993 and 1994 respectively, brought pursuant to §12-117a, that it was aggrieved by the decision of the board and in counts one and three, for 1993 and 1994 respectively, brought pursuant to § 12-119, that the assessment was manifestly excessive. In the demand for relief, the plaintiff sought a reduction of the assessed values.
The trial court found for the plaintiff on counts two and four, the § 12-117a counts, and for the defendants on counts one and three, the § 12-119 counts. This appeal and cross appeal followed.
I
The defendants first claim that the trial court improperly ordered a reduction in the fair market value of the Tyler’s Cove units. We agree.
In an appeal from a board of tax review pursuant to §12-117a, “[t]he function of the trial court is to determine the true and actual value of the plaintiff’s property. Dickau v Glastonbury, 156 Conn. 437, 441, 444, 242 A.2d 777 [1968] Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 [1959]. . . . Executive Square Ltd. Partnership v Board of Tax Review, 11 Conn. App. 566, 570, 528 A.2d 409
(1987).” (Internal quotation marks omitted.) Heather Lyn Ltd. Partnership v. Griswold, 38 Conn. App. 158, 164, 659 A.2d 740
(1995). The law contemplates, however, “that a wide discretion is to be accorded to assessors, and unless their action is discriminatory or so unreasonable that property is substantially overvalued and thus injustice and illegality result, their opinion and judgment should control in the determination of value for taxation
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purposes.” Stamford Apartments Co. v. Stamford, 203 Conn. 586, 589, 525 A.2d 1327 (1987).
In a tax appeal, the trial court hears the case de novo and makes an independent valuation of the subject property. Id., 588. “`The conclusions reached by the trial court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.'” Reynaud v. Winchester, 35 Conn. App. 269, 274, 644 A.2d 976
(1994), quoting Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993).
“In an appeal . . . from a board of tax review, the court performs a double function. The court must first determine whether the plaintiff has met his burden of establishing that he is, in fact, aggrieved by the action of the board. Only when the court finds that the action of the board will result in the payment of an unjust and, therefore, illegal tax, can the court proceed to exercise its broad discretionary power to grant such relief as is appropriate.” Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979); Grossomanides v. Wethersfield, 33 Conn. App. 511, 515, 636 A.2d 867 (1994).
Some additional facts are necessary for the resolution of this issue on appeal. As a result of the revaluation conducted during 1991-1992, the total value of the assessment for all thirty-eight condominiums and amenities relative thereto as valued by the town on October 1, 1993, was $4,545,600.[4] Corapinski and Valente used regular residential field cards, which allow for 200
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entries or items, as opposed to standard condominium field cards, which provide for only thirty entries or items, because the Tyler Cove units were more like individual houses or cottages than condominiums. On the field cards there are, inter alia, values entered for fair market value of the unit and the amenities, assessed value (70 percent of fair market value), building value and land value. The plaintiff’s main disagreement with the revaluation is that a substantial portion of each condominium’s value is listed under the entry of “land value.” Of the thirty-eight units, the thirty lakefront units had a “land” value of $85,000 for each such unit, and the eight units that did not border the lake had a “land” value of $65,000.[5] The plaintiff contends that the town has valued the land on which the condominiums are located at a fair market value of $3,070,000.
The plaintiff’s expert witness, Robert Nocera, conducted an appraisal of only the land on which the condominiums are situated. He testified that he could not find land in Middlebury that was approved for condominiums so he used comparable land approved for condominiums in other towns in the state. He further testified that he used land sales other than condominiums in Middlebury. Nocera concluded that the fair market value of the land was $660,000.
The plaintiff argues that the defendants failed to assess their real property as prescribed by General Statutes § 47-79 (a) of the Condominium Act of 1976.[6] Section 47-79 (a) provides in part that “[n]either the building, the property nor any of the common areas and the facilities shall be deemed to be a parcel, but each unit shall be deemed to have an undivided interest therein and assessments against any such unit shall include such proportionate undivided interest. . . .”
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Corapinski and Valente testified that the “land value” entry on the field card represented the “amenity” or “condominium interest value,” which included the value of the land. They both contend, however, that the “land value” figure, calculated by using the residual value method, was solely for informational purposes. Valente further testified that he was never told to put a value on any of the land.
In its memorandum of decision, the trial court reviewed the testimony of Corapinski, Valente, and Nocera. The trial court noted that, as a result of the town’s revaluation, the assessment of the plaintiff’s units increased “tremendously.” The trial court also noted, however, that, a review of eight recent sales, five between 1989 and 1992 and three after 1992, confirmed that the fair market value estimated by the town on each property was less than the sales price. The trial court found that the plaintiff had sustained its burden of proof as to counts two and four of the amended complaint, which sought reduced assessments pursuant to §12-117a. Accordingly, the trial court ordered that the fair market value of each condominium unit be reduced by $10,000 on the October 1, 1993 and October 1, 1994 grand lists.
Although the trial court concluded that the plaintiff had met its burden of proof in establishing that it was aggrieved by the action of the board, the trial court stated no basis for that conclusion. Corapinski and Valente testified that they calculated the fair market value of the units and amenities by using the comparable sales method and that they did not separately calculate the value of the land. Nocera’s appraisal was the only evidence before the trial court of the value of the land. Without making any findings with regard to the value of the land, the trial court ordered that the fair market value of each unit be reduced by $10,000. This conclusion is logically inconsistent with the facts found. The trial court did not find that the assessor had overvalued
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the property. The trial court did find, however, after reviewing eight contemporaneous sales, that the fair market value estimated by the town on each property was less than the sales price. The plaintiff failed to overcome this persuasive evidence. As a result, the trial court improperly exercised its broad discretionary power in granting the reduction in the units’ fair market value. See Gorin’s Inc. v. Board of Tax Review, supra, 178 Conn. 608. Therefore, the judgment must be reversed.[7]
II
In its cross appeal, the plaintiff claims that the trial court improperly found that the tax on the subject parcel was not manifestly excessive under General Statutes § 12-119.[8] We disagree.[9]
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“The principles that govern a complaint filed pursuant to §12-119 are not in dispute. In contrast to § 12-117a [see footnote 1], which allows a taxpayer to challenge the assessor’s valuation of his property, § 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . . Our case law makes clear that a claim that an assessment is `excessive’ is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991); accord Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924).” (Internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 339, 654 A.2d 1233
(1995).
The first category in § 12-119 “embraces situations where a tax has been laid on a property not taxable in the municipality where it is situated.” E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1959). This category is not applicable to the facts of this case and, thus, will not be addressed.
“The second category consists of claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property. E. Ingraham Co. v Bristol, [supra, 146 Conn. 409]. Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . . . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was
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arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part. Mead v Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of §12-119 is whether the assessment is illegal. Cohn v. Hartford, 130 Conn. 699, 703, 37 A.2d 237 (1944) . . . . The statute applies only to an assessment that establishes a disregard of duty by the assessors. L. G. DeFelice Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975).” (Citations omitted; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v Bridgeport, supra, 220 Conn. 341-42.
The plaintiff filed an amended complaint, pursuant to §12-119, alleging that the defendants had grossly overvalued the taxpayers’ property. The record fails to reveal any claim by the plaintiff beyond the mere allegation that the assessor overvalued the land on which the Tyler’s Cove condominiums are situated. Further, the plaintiff’s claims of misfeasance by the assessor; see part III; are unpersuasive, and no claims of nonfeasance exist. Finally, the plaintiff’s claim that the assessment was arbitrary is unsupported by the record. The trial court properly concluded that the plaintiff failed to meet its burden of proof under § 12-119.
III
The plaintiff’s final claims on cross appeal are that the trial court improperly failed to find that the assessor failed to apportion the value of the land among the condominium units and found that the board and the assessor did not predetermine the assessed land value. We address these claims in turn.
We apply the following standard of review to both claims. “The trial court’s findings are binding upon this
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court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).” (Citations omitted; internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).
A
The plaintiff first claims that the trial court improperly failed to find that the assessor failed to apportion the value of the land among the condominium units. The plaintiff argues that the defendants were required to apportion the value of the real property and common areas as an undivided interest among the individual condominium owners. See General Statutes § 47-79. As proof, the plaintiff notes the different values on the field cards for lakefront and nonlakefront units, as indicated under “land value” on the assessor’s field cards. The defendants argue that the “land value” calculation was solely for informational purposes and, thus, they did not violate § 47-79. Our review of the record leads us to conclude that the trial court’s factual findings are not clearly erroneous.
B
The plaintiff finally claims that the trial court improperly found that the board and the assessor did not predetermine the assessed land value. The plaintiff argues that the board assigned values to all property in
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Middlebury prior to the revaluation and that such action was outside the scope of its statutory powers. See General Statutes § 12-111. The defendants contend that the plaintiff failed to establish any collusion between the assessor and the board. Our review of the record does not leave us with the definite and firm conviction that a mistake has been committed. See United Components, Inc. v. Wdowiak, supra, 239 Conn. 263. We conclude that the trial court’s findings were supported by the evidence and the pleadings and, thus, were not clearly erroneous.
On the defendants’ appeal, the judgment ordering the reduction of the fair market value of the Tyler’s Cove property is reversed and the case is remanded with direction to render judgment for the defendants.
In this opinion the other judges concurred.