Konover v. Town of West Hartford, 15504

• Citation: 242 Conn. 727,699 A.2d 158
• Decision Date: 26 August 1997
• Docket Number: No. 15504,15504
• Court: Supreme Court of Connecticut
• Parties: Simon KONOVER v. TOWN OF WEST HARTFORD.

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699 A.2d 158 242 Conn. 727 Simon KONOVER
v.
TOWN OF WEST HARTFORD. No. 15504. Supreme Court of Connecticut. Argued May 29, 1997.
Decided Aug. 26, 1997.

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Beth Critton, Assistant Corporation Counsel, West Hartford, for appellant (defendant).

Elliott B. Pollack, with whom was Marci J. Silverman, Bridgeport, for appellee (plaintiff).

Before CALLAHAN, C.J., and BORDEN, NORCOTT, KATZ and PETERS, JJ.

CALLAHAN, Chief Justice.

The defendant, the town of West Hartford (town), appeals from the judgment of the trial court reducing the tax assessments levied upon the real property of the plaintiff, Simon Konover, on the grand lists of 1993, 1994 and 1995. The dispositive issue in this appeal is whether the trial court properly refused to include, in its determination of the fair market value of the plaintiff's property, the value of a portion of the property that the town's assessor mistakenly had failed to include in her valuation during the decennial revaluation of 1989. We conclude that, to determine whether the plaintiff's property had been overassessed, the trial court should have considered the value of the omitted [242 Conn. 729] portion of the property in its calculation of the total fair market value of the property. We therefore reverse the judgment of the trial court and remand the case for a new trial.

The record reveals the following facts. The plaintiff is the fee owner of an improved parcel of land located at 2410 Albany Avenue in the town of West Hartford. The property consists of land and an office building. The plaintiff purchased the property in 1972, and uses it as the headquarters for his real estate development business. When the plaintiff purchased the property, its southwest corner extended to a public highway known as Shawmet Road. At that time, Shawmet Road was a dead end road that extended from Albany Avenue into the plaintiff's property and the adjoining property to the west of the plaintiff's property, which is currently owned by an entity known as Colonial Health Care Limited Partnership (Colonial). Shawmet Road served as an access road to the property of both the plaintiff and Colonial. The

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paved portion of the road was approximately twenty feet wide and 270 feet long. Shawmet Road had existed as a public highway since it was accepted by the town in 1928.

Following the 1989 decennial revaluation, the assessor determined the total area of the plaintiff's property to be 49,121 square feet and its fair market value to be $1,497,000. On the October 1, 1993 grand list, the assessor assessed the property in accordance with the 1989 valuation. The plaintiff, pursuant to General Statutes (Rev. to 1993) § 12-111, ¹ appealed the assessment to the [242 Conn. 730] board of tax review for the town of West Hartford (board), which declined to reduce the assessment. Thereafter, the plaintiff appealed to the trial court pursuant to General Statutes § 12-117a. ²

The case was tried to the court. During the trial, both the plaintiff and the town presented the testimony of [242 Conn. 731] experts who had appraised the property. It was the opinion of the town's expert, Edgar B. French, that, at the time of the 1989 decennial revaluation, the fair market value of the plaintiff's property was $1,550,000. The principal reason for the disparity between French's valuation and the assessor's 1989 valuation was that, during the course of his appraisal, French had discovered that in 1984, at the request of the plaintiff and Colonial's predecessor, the town council of West Hartford

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had passed a resolution, pursuant to General Statutes § 13a-49, ³ discontinuing Shawmet Road as a public highway. As a result of the town's discontinuance of Shawmet Road, approximately 8987 square feet of land owned [242 Conn. 732] by the plaintiff, and occupied by one half of Shawmet Road, had been discharged of the easement that had existed for a public highway since 1928. In addition, French discovered that the town's discontinuance of Shawmet Road had freed of the public easement the portion of the land occupied by Shawmet Road that was owned by Colonial's predecessor.

Shortly after the town's discontinuance of Shawmet Road, the plaintiff and Colonial's predecessor deeded each other cross easements over their respective portions of the land formerly occupied by Shawmet Road. Pursuant to the easement agreement, the plaintiff granted Colonial's predecessor a private easement over the 8987 square feet of land owned by the plaintiff that had been discontinued as a public highway. Similarly, Colonial's predecessor granted the plaintiff a private easement over the area of land owned by Colonial's predecessor that had been freed of the public easement. In the easement agreement, the portion of the land formerly occupied by Shawmet Road that was owned by the plaintiff was referred to as easement area B, and the portion that was owned by Colonial's predecessor was referred to as easement area A. For purposes of clarity, hereinafter, we will refer to these respective areas as either easement area B or easement area A. The plaintiff and Colonial currently use the two areas as a driveway and parking lot. Easement area B comprises approximately 15 percent of the total land area of the plaintiff's property.

When the assessor valued the plaintiff's property at the time of the 1989 revaluation, the assessor was not aware of the town's 1984 discontinuance of Shawmet Road, or of the easement agreement between the plaintiff and Colonial's predecessor. As a result, the assessor valued the plaintiff's property on the basis of the configuration of the property prior to the discontinuance of Shawmet Road. In other words, in valuing the property [242 Conn. 733] at $1,497,000, the assessor did not include any value for easement area B, although in 1989 that area belonged to the plaintiff free of the public easement, the reason being that the assessment map and property record cards used by the assessor for purposes of the 1989 valuation failed to disclose the town's 1984 discontinuance of Shawmet Road as a public highway. According to the assessment map and the property record cards extant in 1989, the total land area of the plaintiff's property amounted to only 49,121 square feet. Indeed, the assessor became aware of the discontinuance of Shawmet Road only during the course of this litigation.

In determining the total fair market value of the plaintiff's property, French included an estimate of the value of easement area B. ⁴ French arrived at that value by multiplying the square footage of the land by what he determined to be the fair market value per square foot of land in the area of West Hartford in which the property was located. He determined that value to be $15.11 per square foot. He then concluded that the

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value of the 8987 square feet of land comprising easement area B was $135,794 (8987 square feet X $15.11 per square foot = $135,794.57). He testified that the total land area of the plaintiff's property, including the 8987 square feet of the discontinued highway, was 58,108 square feet.

The plaintiff's expert, Edward F. Heberger, testified that in his opinion the fair market value of the plaintiff's property at the time of the 1989 decennial revaluation was $1,200,000. In making this determination, Heberger operated on the belief that the total land area of the property in 1989 amounted to 49,121 square feet. Thus, in valuing the property, Heberger, like the assessor in 1989, did not include any value for easement area B.

[242 Conn. 734] The trial court, after hearing all the evidence, rendered judgment in favor of the plaintiff. The court determined that the fair market value of the plaintiff's property was $1,300,000, and ordered the assessor to reduce the plaintiff's assessments accordingly. In determining the fair market value of the plaintiff's property, the court refused to consider any value for easement area B. The town appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The principal issue presented is a question of first impression, the resolution of which requires us first to clarify the function of the trial court in a § 12-117a appeal. Section 12-117a, which allows taxpayers to appeal the decisions of municipal boards of tax review to the Superior Court, " 'provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property....' " Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339, 597 A.2d 326 (1991); Northeast Datacom, Inc. v. Wallingford, 212 Conn. 639, 650, 563 A.2d 688 (1989); see also E. Ingraham Co. v. Town and City of Bristol, 146 Conn. 403, 408-409, 151 A.2d 700 (1959), cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1960); Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 166, 148 A.2d 327 (1959). In a § 12-117a appeal, the trial court performs a two step function. "The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed." Gorin's, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979); O'Brien v. Board of Tax Review, 169 Conn. 129, 131, 362 A.2d 914 (1975). In this regard, " '[m]ere overvaluation is sufficient to justify redress under [§ 12-117a], and the court is not limited to a review of whether an assessment has been unreasonable[242 Conn. 735] or discriminatory or has resulted in substantial overvaluation.' " Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 104, 626 A.2d 1292 (1993); O'Brien v. Board of Tax Review, supra at 130-31, 362 A.2d 914; see also Hutensky v. Avon, 163 Conn. 433, 436-37, 311 A.2d 92 (1972). "Whether a property has been overvalued for tax assessment purposes is a...