Lerner Shops of Conn., Inc. v. Town of Waterbury

• Decision Date: 25 July 1963
• Citation: 193 A.2d 472,151 Conn. 79
• Court: Connecticut Supreme Court
• Parties: LERNER SHOPS OF CONNECTICUT, INC., et al. v. TOWN OF WATERBURY. Supreme Court of Errors of Connecticut

Page 472

193 A.2d 472

151 Conn. 79

LERNER SHOPS OF CONNECTICUT, INC., et al. v. TOWN OF WATERBURY.

Supreme Court of Errors of Connecticut.

July 25, 1963.

John D. Mahaney, Asst. Corp. Counsel, with whom was Harry F. Spellman, Corp. Counsel, for appellant-appellee (defendant).

Fred B. Rosnick, Waterbury, with whom were Andrew D. Dawson, Waterbury, and, on the brief, H. John Weisman, Waterbury, for appellees-appellants (plaintiffs).

Before KING, MURPHY, SHEA, ALCORN and COMLEY, JJ.

KING, Associate Justice.

The complaint in this action was in two counts. The first count was an appeal to the Court of Common Pleas, under General Statutes § 12-118, ¹ taken by Lerner Shops of Connecticut, Inc., hereinafter referred to as Lerner, and Louis M. Cohen, Trustee, hereinafter referred to as Cohen, from the refusal of the board of tax review of Waterbury to reduce the assessment, as of May 1, 1960, on a parcel of land and the building thereon, owned by Cohen in his capacity as trustee. Lerner rented and occupied, for retail mercantile purposes, the land and building which Cohen owned. By the terms of the lease, Lerner agreed to pay all taxes levied on the premises.

The second count, which, when taken in connection with the claims for relief, is confusingly drawn, seems to have been treated, at least by the plaintiffs, as (a) an application under § 12-119 ² for relief from a wrongful assessment of the property, and (b) a complaint seeking a declaratory judgment that all taxes based on the May 1, 1960 grand list of Waterbury are illegal, and, as ancillary relief, an injunction against the collection of any tax based on the May 1, 1960 assessment of the property in question.

I

We first consider the issues properly raised in the first count. In that count, the plaintiffs alleged that the valuation of the land and building, as determined by the town assessor, was neither the fair market value thereof on May 1, 1960, nor a value arrived at by the application of a uniform percent to the fair market value, but was grossly excessive, disproportionate and unlawful. A reduction in the valuation of the property to its proper assessment value on May 1, 1960, was sought.

The court, apparently acting under the first count, did reduce the assessed value of the property in question. The judgment does not indicate that any action was taken under the second count. In a cross appeal in this court, the plaintiffs claim, among other things, that the assessed value of the property should be lower than the value fixed by the trial court. The defendant, in its appeal, claims that (1) neither plaintiff is entitled to seek relief under the first count because neither is an aggrieved person within the requirements of General Statutes § 12-118 and (2) even if it is assumed that each plaintiff was so aggrieved, neither has established that the assessments of real property in Waterbury, as of May 1, 1960, actually were on a basis of 51 percent--the percentage used by the court--of the then fair value of the property.

We now consider the question of aggrievement. Anyone claiming to be aggrieved by the doings of assessors in assessing his property may appeal to the board of tax review, which may correct the assessment to conform to the law. § 12-111. In the complaint, Cohen alleged, inter alia, that he had appeared before the board of tax review by his attorney who offered to be sworn, was sworn and answered all questions dealing with the trustee's taxable property. Since there was no question as to Cohen's ownership of the property, this allegation, which was admitted by the defendant in its answer, adequately set up the facts essential for aggrievement within § 12-111 and § 12-113 as amended by Public Acts 1959, No. 436. As Cohen was properly before the board of tax review, and received an adverse decision from it, he was aggrieved by its action and could properly appeal under § 12-118 to the Court of Common Pleas. The defendant's further claim that in fact Cohen did not take the appeal to the Court of Common Pleas is disposed of by the unattacked findings to the contrary and by the appeal process itself. The defendant's claim that Cohen, as trustee, was not an aggrieved person and not entitled to take this appeal is groundless.

The defendant's contention that Lerner is not an aggrieved person within the meaning of § 12-118 has merit. The defendant correctly claims that real property taxes are assessed against the owner; that he is the one obliged to pay the tax; and that, since no tax is imposed on a lessee, there is nothing in the complaint from which it could be concluded that Lerner was aggrieved within the terms of §§ 12-111 and 12-113 by any assessment of the property. Montgomery v. Branford, 107 Conn. 697, 701, 142 A. 574; see also §§ 12-66(a), (c). Since this proceeding was properly brought and prosecuted by Cohen, it can be disposed of without regard to Lerner, in the same manner as if Cohen had been the sole plaintiff. The technical error of the trial court in rendering judgment for Lerner, as well as for Cohen, instead of for Cohen alone, was actually harmless.

This determination leaves for consideration the defendant's second claim, that is, that the assessment value, as fixed by the court below, was erroneous. Aldro Jenks, who has been the sole assessor for Waterbury since 1945, prepared the grand list of May 1, 1960. He fixed the assessment value of the land and building in question, as of May 1, 1960, at $310,000. The court, however, concluded that the assessment value of the property should be $226,440.

Prior to the enactment, in 1957, of certain amendatory legislation, all property was required to be assessed at 100 percent of its fair value as of the assessment date. E. Ingraham Co. v. Bristol, 144 Conn. 374, 377, 132 A.2d 563. Following the decision of that case, what is now § 12-64 was amended so as to provide that all property should be 'liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuation, to be determined by the assessors.' See E. Ingraham Co. v. Bristol, 146 Conn. 403, 405 n., 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352. In order properly to carry out the mandate of § 12-64 in its present form, three steps are required. (a) The fair value of property as of the assessment date must be determined. ³ (b) A percent, not exceeding 100 percent, of the fair value, must be determined by the assessing authority for uniform application to all property within the town. ⁴ (c) The assessment value, i. e the value for the purpose of taxation, for any given piece of property in the town, must be ascertained by applying the determined uniform percent to its fair value as of the assessment date. Admittedly, Waterbury wholly failed to carry out this statutory mandate and, indeed, ignored it. Principally because of this failure to comply with the terms of the statute, we have this case.

According to an unchallenged finding, Jenks determined and established assessments of real property subject to taxation on the grand list of May 1, 1960, at 100 percent of the 1945 fair market value of the property. Although it appears to have been undisputed that the building in question was constructed in 1949, the court found as a fact that the assessment as of May 1, 1960, of the plaintiff's total property was based on 100 percent of its 1945 fair market value. We construe that finding to mean, as far as the building is concerned, 100 percent of the fair value the building would have had had it been in existence in its 1960 condition on the 1945 assessment date.

Cohen would be entitled to relief under § 12-118 if he could prove that his property was bearing a disproportionately high tax burden because of the defendant's failure to comply with § 12-64. White v. Portland, 63 Conn. 18, 21, 26 A. 342; Sibley v. Middlefield, 143 Conn. 100, 105, 120 A.2d 77; see also Greenwoods Co. v. New Hartford, 65 Conn. 461, 463, 32 A. 933. In effect, he claims to have sustained his burden by proof that the assessment ratio properly to be applied was 51 percent and that application of this ratio to the actual fair value of the property as of May 1, 1960, would result in a lower assessment.

If the assessor had taken a uniform percentage of the fair value of the property on the assessment date as the assessment value, as required by § 12-64, and if that percentage amounted to 51 percent of the fair value, the resolution of the issues in this case would present little difficulty. White v. Portland, supra, 63 Conn. 22, 26 A. 344. But Jenks, when called as a witness, disclaimed any conscious use of a uniform percent other than the remarkable one of 100 percent of the 1945 values for all property both old and new, including, in this case, Cohen's building which was not constructed until 1949. In view of this testimony, the defendant maintains that the assessments of real property in Waterbury on the May 1, 1960 grand list were not made on a basis of 51 percent or any other uniform percent of their fair value as of May 1, 1960. From this claim, the defendant argues that no such ratio could properly have been applied by the court below and that in consequence its judgment was erroneous. Even if it be conceded, as claimed by the defendant, that in 1945 100 percent of the then fair value was uniformly used as the assessment value, it is obvious that such an assessment value would not be the equivalent of any uniform percentage of the 1960 fair values of property, as required by the statute for a legal assessment. The fact is that no uniform percentage of the fair value on May 1, 1960, as is required and envisioned by § 12-64, was consciously used. 'The city in substance argues that the picture is too chaotic to permit any relief. It would be a sad reflection upon the judiciary and indeed upon all government if the rights of a taxpayer were to be...