National Amusements v. TOWN OF EAST WINDSOR

Citation854 A.2d 58,84 Conn.App. 473
Decision Date17 August 2004
Docket NumberNo. 23987.,23987.
CourtAppellate Court of Connecticut
PartiesNATIONAL AMUSEMENTS, INC. v. TOWN OF EAST WINDSOR.

Marjorie S. Wilder, with whom was Julie A. Morgan, Hartford, for the appellant (plaintiff).

William P. O'Brien, for the appellee (defendant).

SCHALLER, FLYNN and MCLACHLAN, Js.

MCLACHLAN, J.

The plaintiff, National Amusements, Inc., appeals from the judgment of the trial court sustaining its tax appeal. The plaintiff claims that (1) in an appeal pursuant to General Statutes § 12-117a, a plaintiff may limit the parameters of the court's valuation determination by challenging in its pleadings only one portion of the tax assessment, (2) the court improperly valued the land and site improvements at issue because the defendant town of East Windsor failed to put at issue their value, (3) the defendant's concession that only the value of the building was at issue constituted a judicial admission that precluded the court's consideration of the proper valuation of the land and site improvements, (4) it was denied due process because "the court decided to value the land and site improvements only in its written decision on the merits of the case, long after the plaintiff presented its evidence," and (5) the court's decision will limit the rights of certain aggrieved taxpayers to appeal from the valuation of their property.1 We affirm the judgment of the trial court.

The court's memorandum of decision and the record reveal the following relevant facts. The plaintiff owns and operates a twelve screen multiplex theater (building) on property in East Windsor (property). The property contains twenty-seven acres on the southwest corner of Bridge Street and Prospect Hill Road in a B-1 zone visible from Interstate 91.

The plaintiff purchased the land on which the building was constructed on January 18, 1994, for $4,825,000. The building was constructed that year with a reinforced concrete foundation, masonry concrete block walls, poured concrete floors, a flat metal deck roof with insulation and a fireproofed steel frame. The building was air conditioned and featured a sprinkler system and elevator. The total cost of constructing the building was $5,239,819. The building contains 59,262 square feet on the first floor and 14,741 square feet on the mezzanine area. A certificate of occupancy was issued for the building on November 16, 1994, and the property was placed on the East Windsor tax rolls for the revaluation year of October 1, 1995.

On the October 1, 1995 grand list, the East Windsor assessor determined that the fair market value of the property was as follows:

Land $ 2,622,1302 Outbuilding 299,650 Main building 9,094,560 ___________________________________________________________ Total $12,016,340

The plaintiff challenged that valuation before the East Windsor board of assessment appeals (board). In an inventive move, the plaintiff challenged only the valuation of the building. After the board declined to reduce the assessment, the plaintiff filed an appeal pursuant to § 12-117a.3 On appeal, the plaintiff again challenged only the valuation of the building, not the value of the land and site improvements.4 As the court noted, the plaintiff carefully framed its complaint in an attempt to limit the appeal to only the valuation of the building.5 At trial, the plaintiff claimed that the court could decide only the valuation of the property at issue in the pleadings. The court rejected that argument. After considering the valuation of the property as a whole, the court found the total fair market value of the property to be $11,064,819, $951,521 less than the valuation on the October 1, 1995 grand list, and thereby sustained the plaintiff's appeal. From that judgment, the plaintiff appeals.

I

The central issue in this appeal is whether a plaintiff in a § 12-117a appeal may limit the parameters of the court's valuation determination by challenging in its pleadings only one portion of the assessment. We hold that it may not.

A determination of the court's authority under § 12-117a is a question of law. Our review, therefore, is plenary. See Davis v. Westport, 61 Conn.App. 834, 840, 767 A.2d 1237 (2001).

"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...."6 (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 734, 699 A.2d 158 (1997). "In § 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.... At the de novo proceeding, the taxpayer bears the burden of establishing that the assessor has overassessed its property.... Once the taxpayer has demonstrated aggrievement by proving that its property was overassessed, the trial court [will] then undertake a further inquiry to determine the amount of the reassessment that would be just." (Citations omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 22-23, 807 A.2d 955 (2002); Sibley v. Middlefield, 143 Conn. 100, 105-106, 120 A.2d 77 (1956).

The plaintiff was well aware when it appealed to the trial court pursuant to § 12-117a that the proceeding would be de novo. "In a de novo proceeding, the trier of fact makes an independent determination ... without regard for the action or decision of the lower tribunal." Konover v. West Hartford, supra, 242 Conn. at 741, 699 A.2d 158. The ultimate question is the ascertainment of the true and actual value of the taxpayer's property. See Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 104, 626 A.2d 1292 (1993). The scope of the court's subject matter jurisdiction "must encompass the power to consider any facts that are relevant to determining whether a taxpayer actually has been overassessed." Konover v. West Hartford, supra, at 741, 699 A.2d 158. Furthermore, the court "must arrive at [its] own conclusions as to the value of [the taxpayer's property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value."7 (Internal quotation marks omitted.) Ireland v. Wethersfield, 242 Conn. 550, 556-57, 698 A.2d 888 (1997). The court's judgment, however, "cannot result in an increase in the plaintiff's assessment." Konover v. West Hartford, supra, at 743, 699 A.2d 158.

The plaintiff claims that, because it challenged only one portion of the assessment in its pleadings, the court was permitted to determine the value of that portion only. Such a limitation on the court's independent determination of the value of the taxpayer's assessed property would require the court to afford presumptive validity to the assessor's valuation of the uncontested portions. That is improper. No judicial presumption exists as to the validity of the assessor's conclusions. Davis v. Westport, supra, 61 Conn.App. at 844, 767 A.2d 1237. In a § 12-117a tax appeal, the court must reach an independent determination without regard for prior determinations. See Konover v. West Hartford, supra, 242 Conn. at 741, 699 A.2d 158.

Moreover, our Supreme Court has expressly indicated that it has "never held that a trial court in a de novo appeal pursuant to § 12-117a may determine the value of only a portion of a taxpayer's property." Id., at 737, 699 A.2d 158. "All fixed and permanent building and other improvements on land are a part of it for the purposes of assessment and must be included in its appraised value for taxation." 72 Am.Jur.2d 115-16, State and Local Taxation § 679 (2001); see also 16 E. McQuillin, Municipal Corporations (3d Ed. Rev.2003) § 44.45, p. 202 (term real property as applied to taxation includes buildings, structures permanently affixed to land). Accordingly, we conclude that a § 12-117a tax appeal provides a taxpayer a forum to contest the assessment of its property, not portions of that assessment.8

II

The plaintiff next claims that the court improperly valued the land and site improvements because the defendant failed to put at issue their valuation. Citing O'Brien v. Board of Tax Review, 169 Conn. 129, 362 A.2d 914 (1975), the plaintiff argues that it was incumbent on the defendant to raise the issue of the valuation of the land and site improvements in the pleadings. In O'Brien, the defendant, by way of special defense, "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." Id., at 130, 362 A.2d 914. Although we agree that it is preferable for a defendant in such a situation to file a similar special defense, neither O'Brien nor any other Connecticut appellate decision we can uncover has held that in a § 12-117a tax appeal, it is mandatory. It is the function of the court in a § 12-117a tax appeal to make an independent determination as to the value of the taxpayer's assessed property. See Konover v. West Hartford, supra, 242 Conn. at 741, 699 A.2d 158. Moreover, § 12-117a specifically provides that the court "shall have power to grant such relief as to justice and equity appertains...." The court may thus reach its independent determination with principles of equity in mind, i.e., that the land portion of the property initially was valued at more than $2 million less than its purchase price one year earlier, as long as the court's determination does not result in an increase in the plaintiff's assessment. See Konover v. West Hartford, supra, 242 Conn. at 743, 699 A.2d 158.

III

The plaintiff claims the defendant's concession that only the value of the building was at issue...

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