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

CourtSupreme Court of Connecticut
Writing for the CourtKING
Citation193 A.2d 472,151 Conn. 79
PartiesLERNER SHOPS OF CONNECTICUT, INC., et al. v. TOWN OF WATERBURY. Supreme Court of Errors of Connecticut
Decision Date25 July 1963

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.

[151 Conn. 81]

Page 474

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 [151 Conn. 79] KING, MURPHY, SHEA, ALCORN and COMLEY, JJ.

[151 Conn. 81] 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, [151 Conn. 82] 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 [151 Conn. 83] 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.

Page 475

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 [151 Conn. 84] 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 [151 Conn. 85] 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.,

Page 476

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.

[151 Conn. 86] 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[151 Conn. 87] 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...

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32 practice notes
  • Tregor v. Board of Assessors of City of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 23, 1979
    ...particularly appropriate when there is no apparent pattern in the disproportionate assessments. Lerner Shops of Conn., Inc. v. Waterbury, 151 Conn. 79, 87-89, 193 A.2d 472 (1963). Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So.2d 4, 10 (Fla.1973). Grainger Bros. v. Board of Equaliz......
  • Redding Life Care, LLC v. Town of Redding, No. 18921.
    • United States
    • Supreme Court of Connecticut
    • March 12, 2013
    ...omitted.) Sibley v. Middlefield, 143 Conn. 100, 106–107, 120 A.2d 77 (1956); see also Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 85 n. 3, 193 A.2d 472 (1963) (explaining that “the term fair value is the preferable one to use, since it emphasizes the result to be achieved ......
  • Town of Stratford v. Jacobelli, Nos. SC 19332
    • United States
    • Supreme Court of Connecticut
    • August 18, 2015
    ...this state that real property taxes are normally assessed against the owner. 317 Conn. 880Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 82–84, 193 A.2d 472 (1963) ; Montgomery v. Branford, 107 Conn. 697, 701, 142 A. 574 (1928). Leased property is assessed against the lessor ......
  • DeSena v. Waterbury, (SC 15980)
    • United States
    • Supreme Court of Connecticut
    • June 1, 1999
    ...is relevant at times of decennial revaluation but not during the interim years. See Lerner Shops of Connecticut, Inc. [v. Waterbury, 151 Conn. 79, 87-88, 193 A.2d 472 (1963)] (applying average ratio of evidence to reduce plaintiff's assessment in view of failure to properly conduct general ......
  • Request a trial to view additional results
32 cases
  • Tregor v. Board of Assessors of City of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 23, 1979
    ...particularly appropriate when there is no apparent pattern in the disproportionate assessments. Lerner Shops of Conn., Inc. v. Waterbury, 151 Conn. 79, 87-89, 193 A.2d 472 (1963). Southern Bell Tel. & Tel. Co. v. County of Dade, 275 So.2d 4, 10 (Fla.1973). Grainger Bros. v. Board of Equaliz......
  • Redding Life Care, LLC v. Town of Redding, No. 18921.
    • United States
    • Supreme Court of Connecticut
    • March 12, 2013
    ...omitted.) Sibley v. Middlefield, 143 Conn. 100, 106–107, 120 A.2d 77 (1956); see also Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 85 n. 3, 193 A.2d 472 (1963) (explaining that “the term fair value is the preferable one to use, since it emphasizes the result to be achieved ......
  • Town of Stratford v. Jacobelli, Nos. SC 19332
    • United States
    • Supreme Court of Connecticut
    • August 18, 2015
    ...this state that real property taxes are normally assessed against the owner. 317 Conn. 880Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 82–84, 193 A.2d 472 (1963) ; Montgomery v. Branford, 107 Conn. 697, 701, 142 A. 574 (1928). Leased property is assessed against the lessor ......
  • DeSena v. Waterbury, (SC 15980)
    • United States
    • Supreme Court of Connecticut
    • June 1, 1999
    ...is relevant at times of decennial revaluation but not during the interim years. See Lerner Shops of Connecticut, Inc. [v. Waterbury, 151 Conn. 79, 87-88, 193 A.2d 472 (1963)] (applying average ratio of evidence to reduce plaintiff's assessment in view of failure to properly conduct general ......
  • Request a trial to view additional results

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