Opinion
No. CV 08-4031856
June 7, 2011
MEMORANDUM OF DECISION
I. PROCEDURAL BACKGROUND
The Plaintiff in this contested appeal, Jane Spencer, (plaintiff) is the owner of property located at 29 Latham Road, Guilford, Connecticut, as described on the assessor's map as Unique ID#: 060-W-472 Map 3, Lot 20. (The property.)
The Guilford Tax Assessor determined the fair market value of the property, as of October 1, 2007 at $1,072,614.00. The Plaintiff appealed to the Board of Assessment Appeals which denied the appeal and made no change in the Assessment.
The Plaintiff commenced this appeal by Summons and Application of Appeal, dated June 13, 2008, in two counts under both Connecticut General Statutes § 12-117a and § 2-119. An Amendment of Appeal was filed on October 7, 2009 and, in effect, incorporated the previous counts to include the Grand List of October 1, 2008.
After preliminary pleading, in due course, a hearing was held in this court on March 3, 2011, at which both parties were well represented by counsel, presented evidence and advanced argument in connection with their respective claims. Both parties submitted appraisals in support of their valuations of the property.
II. FACTUAL FINDINGS
The property is a single-family dwelling located within the Joshua's Cove area of the Sachem's Head section of the Town of Guilford, Connecticut. There are about .53 acres of land. The property is improved by a one bedroom, one bath cottage. There is a loft area with access by use of a ladder. The cottage is mainly used for summer weekend guests. The land is near the water, but there is a shared beach access which separates the property from the water. There are no documented utility easements, but the land owner also owns the adjoining property and uses electrical wires from her barn to power the cottage.
The highest and best use of the property is its existing residential use.
The assessor valued the property as of October 1, 2007, at $1,072,614.00. For the assessment year October 1, 2008, the town also valued the property at $1,072,614.00
Mr. Nadeau, the plaintiff's appraiser, appraised the property at $710,000.00 as of October 1, 2007.
Mr. Franke, the defendant's appraiser, appraised the property at $1,200,000 as of October 1, 2007.
The evidence included a map of the parcel (Plaintiff's Exhibit #5).
Both appraisers who testified in this case are qualified to give opinions as to the value of land in the Town of Guilford, Connecticut. Their testimony and reports indicate to the court that they are both knowledgeable as to the property, the neighborhood and the Town of Guilford.
Mr. Nadeau prepared an appraisal dated September 25, 2009, which is Plaintiff's Exhibit 3.
Mr. Nadeau testified that he considered three methods of appraisal of residential property. He rejected the income approach but he used the cost approach and the comparable sale approach.
In using the cost approach, he determined that the property was worth $706,387.00.
Mr. Nadeau explained the three comparable sales he utilized and the various adjustments made to their sales prices to make them comparable to the property.
The Nadeau report contained photographs of each of his comparable sales with a map demonstrating their location in relation to the property. Using the comparable sales approach, he determined the property's value as of October 1, 2007 to be $710,000.00
Mr. Franke prepared an appraisal dated November 8, 2010, which is Defendant's Exhibit A.
Mr. Franke testified that he also considered three methods of appraisal of residential property. He also rejected the income approach but he used the cost approach and the comparable sale approach.
In using the cost approach, he determined that the property was worth $1,255,000.00.
Mr. Franke explained the three comparable sales he utilized and the various adjustments made to their sales prices to make them comparable to the property.
The Franke report contained photographs of each of his comparable sales with a map demonstrating their location in relation to the property. Using the comparable sales approach, he determined the property's value as of October 1, 2007 to be $1,200,000.00
This is not the first time the parties have disagreed about the market value of the property. However, in Judgment In Accordance With Stipulation dated March 26, 2007, the parties stipulated that the market value of the property as of the Grand List of October 1, 2002 and subsequent Grand Lists through 2006 would be $912,500.00. (Defendant's Exhibits J K.)
III. LAW
C.G.S. § 12-117a "In [General Statutes] § 12-117a tax appeals, the trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer's] property." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 22, 807 A.2d 955 (2002). "The law contemplates 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 purposes . . . [Nevertheless, the court has] never characterized such deference as a presumption in favor of the validity of the assessment which it is the plaintiff's burden to rebut." (Citations omitted; internal quotation marks omitted.) Stamford Apartments Co. v. Stamford, 203 Conn. 586, 589, 525 A.2d 1327 (1987). Furthermore, "no deference to the assessor's valuation [is] warranted when neither the assessor nor the appraiser who valued the property during the revaluation testifies at trial." (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 36, 633 A.2d 1368 (1993). "In actions requiring . . . a valuation of property, the trial court is charged with the duty of making an independent valuation of the property involved . . . [N]o one method of valuation is controlling and . . . the [court] may select the one most appropriate in the case before [it] . . . Moreover, a variety of factors may be considered by the trial court in assessing the value of such property . . . [T]he trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation." (Internal quotation marks omitted.) Sheridan v. Killingly, 278 Conn. 252, 259, 897 A.2d 90 (2006).
"[T]he taxpayer . . . bears the burden of establishing an overassessment and of persuading the trial court of the true and actual value of his property for assessment purposes . . . If the trial court finds that the taxpayer has failed to meet his burden, because, for example, the court finds unpersuasive the method of valuation espoused by the taxpayer's appraiser, the trial court may render judgment for the town on that basis alone . . ."If, however, the trial court finds that the taxpayer, in light of the persuasiveness, for example, of his appraiser, has demonstrated an overvaluation of his property, the trial court must then undertake a further inquiry to determine the amount of the reassessment that would be just . . . It is in the context of such cases, namely, cases in which the taxpayer has met his initial burden of proving overvaluation, that [the Supreme Court has] noted the trial court's discretionary authority to find value and [has] declined to assign presumptive validity to the town's assessment figure." (Citations omitted, emphasis in original.) Ireland v. Wethersfield, 242 Conn. 550, 557-58, 698 A.2d 888 (1997); see also Cecarelli v. Board of Assessment Appeals, 272 Conn. 485, 488 n. 5, 863 A.2d 677 (2005) (burden on taxpayer to establish property was overassessed).
"The trial court has broad discretion in reaching [its] conclusion, and [its] determination is reviewable only if [it] misapplies or gives an improper effect to any test or consideration which it was [its] duty to regard." (Internal quotation marks omitted.) Sheridan v. Killingly, supra, 278 Conn. 259. "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." (Internal quotation marks omitted.) Newbury Commons Limited Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993). Under the clearly erroneous standard of review, the Appellate Court does "not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached." (Internal quotation marks omitted.) Bay Hill Construction, Inc. v. Waterbury, 75 Conn.App. 832, 836, 818 A.2d 83 (2003).
C. Costs
Although § 12-17a authorizes a trial court to award costs in tax appeals, "the legislature did not intend that a fee incurred for an appraisal report be included as a taxable cost under § 12-117a." M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996).
C.G.S. § 12-119 (Claim of Wrongful Tax Assessment)
General Statutes § 12-119 provides: "When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court."
Section 12-119 "does not act in any way as . . . an appeal [from the board of tax review]. It provides another and different method of attacking the validity of an assessment upon two different grounds included in its provisions, and upon those only." (Internal quotation marks omitted.) E. Ingraham Co. v. Bristol, 146 Conn. 403, 407, 151 A.2d 700 (1959), cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1960).
"In contrast to § 12-117a, 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 . . . [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." (Emphasis in original; internal quotation marks omitted.) Pauker v. Roig, 232 Conn. 335, 339-41, 654 A.2d 1233 (1995); accord Interlude, Inc. v. Skurat, 253 Conn. 531, 538, 754 A.2d 153 (2000); Carol Management Corp. v. Board of Tax Review, supra, 228 Conn. 30-31. "[T]he taxpayer bears a heavier burden under § 12-119 than under § 12-117a and must establish something more egregious than mere overvaluation in order to prevail under § 12-119." Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 762, 699 A.2d 81 (1997). "It is this element that distinguishes § 12-119 from its more frequently invoked companion, § 12-118 [now § 12-117a]." (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, supra, 228 Conn. 31. "Claims under § 12-119 must fall into one of . . . two categories . . . The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . This category includes claims alleging that the municipality has exceeded the scope of its taxing power. Cases that fit in this category include Fenwick v. Old Saybrook, 133 Conn. 22, 24, 47 A.2d 849 (1946) (municipality cannot tax a public park established by a borough of the municipality), and First National Bank Trust Co. v. West Haven, 135 Conn. 191, 194, 62 A.2d 671 (1948) (municipality has no authority to tax the property of a national bank). See also Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 332 A.2d 83 (1973) (utility right-of-way generally not taxable separate from freehold to which attached) . . ."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 . . . 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 arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part . . . 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 . . . [S]ee E. Ingraham Co. v. Bristol, supra, [ 146 Conn.] 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value); Stratford Arms Co. v. Stratford, 7 Conn.App. 496, 500, 508 A.2d 842 (1986) (property could not be taxed as condominiums when still legally an apartment building at date of assessment). The statute applies only to an assessment that establishes a disregard of duty by the assessors." (Citations omitted; emphasis in original; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 325, 340-42, 597 A.2d 326 (1991); see also Timber Trails Associates v. New Fairfield, 226 Conn. 407, 418, 627 A.2d 932 (1993) (upholding trial court's decision to affirm appeal pursuant to § 12-119 because reassessments of property, based upon improper declassification of forest land, were manifestly excessive); NSA Properties, Inc. v. Stamford, 100 Conn.App. 262, 917 A.2d 1034 (2007) (upholding trial court's decision to affirm appeal pursuant to § 12-119 because denial of tax exemption is not an illegal assessment).
IV. CONCLUSION
Giving consideration to the requirements of the law as set forth above and the claims of the parties, in light of all the circumstances in evidence bearing on value, weighing the opinions of the appraisers, and the court's own knowledge of the elements going to establish value, the court is more persuaded by the appraisal of Mr. Franke and finds that the plaintiff has not sustained her burden of establishing by a preponderance of the evidence that the town's evaluation was excessive.
Accordingly, the court is unable to find that the plaintiff is aggrieved based upon the evidence presented at trial. As a result, the plaintiff's appeal is denied. No costs are awarded to the parties.