O'Brien v. Board of Tax Review

• Citation: 362 A.2d 914,169 Conn. 129
• Court: Supreme Court of Connecticut
• Decision Date: 15 July 1975
• Parties: Edmund W. O'BRIEN, Trustee v. BOARD OF TAX REVIEW.

Page 914

362 A.2d 914

169 Conn. 129

Edmund W. O'BRIEN, Trustee v. BOARD OF TAX REVIEW.

Supreme Court of Connecticut.

July 15, 1975.

James T. Haviland II, Town Atty., Groton, for appellant (defendant).

Donald O'Brien, New London, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The plaintiff trustee, Edmund W. O'Brien, appealed from the refusal of the board of tax review of the town of Groton to reduce the valuation on buildings located on the trust's real estate in Groton. By way of a special defense to the appeal the defendant admitted that the building assessment was high but that 'the land assessment was proportionately low,' and requested that the court consider the overall assessment and deny relief to the plaintiff. The matter was referred to a referee who, acting as the court pursuant to its powers under General Statutes § 12-118, reduced the valuation of the buildings but increased the valuation of the land so that the overall assessment of the plaintiff's property was reduced. The town of Groton has appealed.

General Statutes § 12-118, under which this appeal is taken from the decision of a board of tax review, states that '(t)he court shall have power to grant such relief as to justice and equity appertains.' Mere overvaluation is sufficient to justify redress under § 12-118, and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation. Hutensky v. Avon, 163 Conn. 433, 436, 311 A.2d 92; E. Ingraham Co. v. Bristol, 146 Conn. 403, 409, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352. The court must first determine whether the plaintiff has been aggrieved by the action of the board of tax review and, if so found, it then proceeds to exercise a broad discretionary power to grant relief. National Folding Box Co. v. New Haven, 146 Conn. 578, 585, 153 A.2d 420; Sibley v. Middlefield, 143 Conn. 100 105, 120 A.2d 77. If a taxpayer is found to be aggrieved by the decision of the board of tax review, the court tries the matter do novo and the ultimate question is the ascertainment of the true and actual value of the applicant's property. Dickau v. Glastonbury, 156 Conn. 437, 441-44, 242 A.2d 777; Sibley v. Middlefield, supra, 143 Conn. 106, 120 A.2d 77.

This appeal relates to the assessment of taxes based on valuation on the first day of September for the years 1967, 1968, 1969 and 1970 on the plaintiff's tract of land containing about 43.52 acres in the town of Groton. The court's finding is as follows: The rear half section of the property is undeveloped rough land, and on the front half were remnants of temporary housing units built in 1941. By 1967, the structures were physically and functionally depreciated to a very great extent; 146 units of housing were vacant and only 54 occupied, and in 1968, 153 units were vacant. Parts of the structures were damaged by fire and many windows were broken. The housing units were ramshackle and dilapidated, and the majority were uninhabitable. The gross rentals for 1967 were $46,255.57, and the net income was $26,480.57. For each year in question, the plaintiff's assessment upon which taxes were laid was based upon a valuation as follows: Land-$61,010, buildings-$239,600, making a total of $300,610. On October 29, 1970, the plaintiff's land was sold to developers for a price reported to be about $600,000 and, after purchase and prior to the hearing in this case, all the old buildings on the land were demolished and 220 units of apartment housing were erected. The last periodic revaluation in Groton was effective as of September 1, 1959. Assessments of property in the town of Groton are determined by the appropriate board's first establishing the present true and actual value of the property and then as value for taxation computing a uniform percentage thereof; this percentage in the town of Groton is and has been 70 percent.

The court considered that the land value as fixed by the assessor was too low and the building value for the years in question was much too high. None of these findings has been attacked by the defendant. The court concluded ¹ that the plaintiff was aggrieved and that the fair, just and equitable value of the plaintiff's land and buildings for the years 1967, 1968, 1969 and 1970 was $100,000 for the buildings and $129,000 for the land, to which would be applied the uniform 70 percent valuation used in the town of Groton.

The defendant has attacked the court's conclusions as to the assessment value of the land on grounds that those conclusions are unsupported by the evidence and that they are inconsistent with the principles of equity and justice under General Statutes § 12-118, in view of the fact that the premises were sold for over $600,000 only fifty-nine days after the September 1, 1970 assessment. The conclusions reached by the trier 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. Esposito v. Commissioner of Transportation, 167 Conn. 439, 443, 356 A.2d 175; Textron, Inc. v. Wood, Commissioner of Transportation, 167 Conn. 334, 345, 355 A.2d 307. To this point, the defendant has assigned error in the court refusing to include in its finding nine paragraphs of the draft finding. To secure these additions of facts the defendant has accordingly referred in its brief to parts of the appendix. ² See Walsh v. Turlick,164 Conn. 75, 76, 316 A.2d 759; Maltbie, Conn.App.Proc. § 158. The appendices to the briefs of both parties, however, are such that resort to the transcript of the proceeding is needed to reconcile and explain the apparent discrepancies and conflicts in the disparate portions of the narrative of the testimony referred to. Practice Book § 721; Independant Methodist Episcopal Church v. Davis, 137 Conn. 1, 11-12, 74 A.2d 203; see Baton v. Potvin,141 Conn. 198, 104 A.2d 768. This is especially necessary where the only two witnesses are the appraiser for the plaintiff and the assessor for the defendant town, and where, in an appeal taken under § 12-118 of the General Statutes, the court is not only governed by principles of equity and justice, but is also required to act within the mandate of the assessment statute that 'property . . . shall be liable to taxation at a uniform percentage of its present true and actual valuation.' General Statutes § 12-64; see E. Ingraham Co. v. Bristol, 144 Conn. 374, 377, 132 A.2d 563.

The plaintiff's appraiser used the income approach in determining his valuation for the land and buildings of $178,000 and, at a later appearance, arrived at the same valuation for the land alone based on his estimate of the number of units which could be built on the land. The assessor, the first time he appeared, relied solely on the October, 1970 sale of the premises for a price reported to be about $600,000, as established by the documentary stamps on the deed, although he admitted that after he heard of the sale he did not increase the land valuation which had been on the premises for the years in question. He also stated that he should have assessed the land on his opinion of the number of apartments which could have been placed on the land at the rate of $1000 a unit. His opinion as to the number of units is unknown. On a subsequent trial day the plaintiff requested the assessor to bring in assessment cards relating to land in the area of the property in question. This was not done. From memory the assessor testified that in 1967 a golf course containing 124.8 acres located across the street from the property was sold to the town for $960,000 when its assessment was $300,000. He further testified that when land is sold, the assessment on the land is not changed, no matter what the price paid, unless and until there is a change of use or a change of zone. He then gave illustrations of the change of assessment in apartment complexes after they were built: A parcel of land was assessed at $24,000. At some time after its sale but only after eighty-seven buildings were constructed was the land assessed at $242,600. In another complex the land was assessed at $3200. Only after twelve apartments were built was the land value reassessed at $8400. In still another area in the immediate vicinity the land value was $6300. This land was sold to a developer and only after forty apartments were built was the land reassessed to $28,000. It may be noted that these figures are inconsistent with the assessor's opinion that the land value should be set at the rate of $1000 per unit.

After an examination of the evidence presented by the plaintiff's appraiser and of the assessor's opinion in the appendices as clarified and more fully explained in the transcript, it is clear that the referee, who had particular personal knowledge of the whole area and of the land transactions in that area covering a considerable period of time, took into consideration the disproportionate assessment of other properties and in fact found that 'assessments of property in the town of Groton are determined by the board first establishing the present true and actual value of the property.' It is true that a plaintiff may not have relief in a proceeding such as this on the ground that the property of other taxpayers is assessed at too low a rate. White v. Portland, 63 Conn. 18, 22, 26 A. 342. Evidence of disproportionate assessments of other properties, however, may be considered in an action such as this in relation to the true and actual value of the plaintiff's property. Thaw v. Fairfield, 132 Conn. 173, 180, 43 A.2d 65.

At first blush, it might be argued that the great disparity between the sale price so recent to the assessment date and the assessment found by the court would nevertheless demand a reconsideration by the court. The sale price of...