October 27, 2016
from Superior Court, judicial district of Stamford-Norwalk,
Hon. Arnold W. Aronson, judge trial referee.
R. Fogarty, with whom, on the brief, were Frank W. Murphy and
Kara A. Murphy, for the appellants (plaintiff et al.).
Carolyn M. Colangelo, assistant corporation counsel, with
whom were Mario F. Coppola, corporation counsel, and, on the
brief, Robert F. Maslan, Jr., former corporation counsel, for
the appellees (defendants).
Alvord, Sheldon and Harper, Js.
real estate tax appeal, the defendant city of
Norwalk appeals from the judgment of the trial
court sustaining the appeal of the plaintiff, Fairfield
Merrittview SPE, LLC,  pursuant to General Statutes §
12-117a,  and ordering the reduction of the
defendant's tax assessment levied against the
plaintiff's real property. The defendant raises two
arguments in support of its claim that the court erred when
it reduced the subject property's assessed fair market
value, as of October 1, 2008, from $49, 036, 800 to $34, 059,
First, the defendant claims that the court improperly relied
upon a 2006 ‘‘annual income and expense
report'' to calculate the property's net rentable
area, when instead it should have used the plaintiff's
December 2008 rent roll for that purpose, because the 2008
rent roll assertedly reflected the subject property's net
rentable area as of October 1, 2008, more accurately than the
2006 report. Second, the defendant argues that the court
improperly excluded $190, 000 of ‘‘other
income'' attributable to the subject property from
its calculations and, therefore, the court's calculation
regarding the property's potential gross income was
clearly erroneous. We affirm the judgment of the trial court.
record reveals the following facts. The subject property, an
eight story, class A multitenant office building that was
constructed in 1985, sits on a 4.3 acre parcel located at 383
Main Avenue in Norwalk. The ground floor of the property
consists of a lobby, a cafeteria, a fitness center and a
conference room, which are all maintained for the benefit of
the building's tenants. These amenities account for
approximately 6400 square feet of space. Additionally, there
is a three level parking garage underneath the building which
provides 743 parking spaces on a total surface area of 150,
227 square feet. The area surrounding 383 Main Street
consists of high density commercial developments, as well as
retail and corporate offices. The subject property's
location provides quick access to: the Merritt Parkway; the
Route 7 connector highway, which provides access to
Interstate 95; and the Metro-North passenger train station,
which operates between New Haven and New York City.
October 1, 2008, as part of a citywide revaluation, the
defendant's assessor determined that the subject property
had a fair market value of $49, 036, 800. Thereafter, the
plaintiff appealed to the Board of Assessment Appeals of the
City of Norwalk (board), pursuant to General Statutes §
12-111,  claiming that the property's assessed
value grossly exceeded its actual value. The board
dismissed the appeal and upheld the property's assessed
value and corresponding tax assessment. On July 21, 2009, the
plaintiff appealed, pursuant to § 12-117a, to the
Superior Court for the judicial district of Stamford-Norwalk.
There, the plaintiff renewed its claim that the
defendant's assessment of the subject property was
grossly excessive, and therefore warranted reduction. A two
day trial was then held on December 14 and 15, 2011.
the trial, each party called an appraiser to testify as to
the subject property's October 2008 fair market value.
Eric Michel testified on behalf of the plaintiff; Michael
Fazio testified on behalf of the defendant. Both witnesses
stated that they employed the sales approach and the income
capitalization approach to determine the property's fair
market value. Ultimately, each appraiser testified that the
income capitalization approach was the most appropriate
method for determining the property's fair market value
as of October 1, 2008 because a prospective purchaser would
most likely use that method when attempting to purchase the
property. Using the income capitalization
approach, Michel concluded that the property had a fair
market value of $30, 500, 000 as of October 1, 2008, whereas
Fazio concluded that the property then had a fair market
value of $49, 400, 000.
their different conclusions, both appraisers agreed on
several factors relevant to the trial court's decision.
Both appraisers agreed: that the property's highest and
best use,  as improved, was its continued use as a
multitenant office building; that, in applying the income
capitalization approach, the direct capitalization
method was the preferred method for determining
the property's fair market value; that, pursuant to the
direct capitalization method, the applicable vacancy and
collection rate was 10 percent; and that the property's
market rental value, pursuant to General Statutes §
12-63b,  should be valued at $25 per square foot.
They disagreed, however, on several figures included in the
direct capitalization formula. Specifically, they disagreed
as to: (1) the property's net rentable area; (2) the
property's potential gross income; and (3) the overall
capitalization rate that should be applied under the direct
capitalization formula. Their differences, more particularly,
were as follows.
the property's net rentable area, Michel testified that
his calculation was based upon the tax assessor's field
assessment card, which reported that the property had a net
rentable area of 238, 879 square feet. Fazio's
calculation, on the other hand, was based on an oral
representation by Tara Deluca, an agent of the plaintiff,
that the property had a net rentable area of 256, 974 square
the property's potential gross income (PGI), Michel
testified that he multiplied the market rental value of $25
per square foot, on a ‘‘gross electric basis,
''by 238, 879 square feet of net rentable
area to arrive at a PGI of $5, 971, 975. Fazio's
calculation, by contrast, resulted in a PGI of $7, 847, 825.
Although Fazio agreed that the market rental value was $25
per square foot, he included two additional reimbursements
which he found to increase the property's value by $4.80
per square foot. Additionally, Fazio's formula
included $190, 000 in ‘‘other income''
that he believed to be attributable to the property, which
included ‘‘conference room income, tenant other
income, and . . . interest income.''
the overall capitalization rate, both appraisers agreed that
as of October 1, 2008, the capitalization rate was 7.5
percent. They disagreed, however, as to what effective tax
rate should be added to that figure to arrive at the overall
capitalization rate; Michel testified that 1.35 percent
should be added, resulting in an overall capitalization rate
of 8.85 percent, while Fazio testified that 1.39 percent
should be added, resulting in an overall capitalization rate
of 8.89 percent.
August 6, 2012, the trial court, Hon. Arnold W.
Aronson, judge trial referee, issued its memorandum of
decision. With regard to the property's net rentable
area, the court noted that several documents admitted into
evidence reflected dramatically different figures and that,
depending on which exhibit it relied upon, the property's
net rentable area varied by approximately 15, 000 square
feet. After reviewing the evidence presented, the court
concluded that it was ‘‘ more credible to turn to
the 2006 annual income and expense report filed by [the
plaintiff] with the city's assessor, as required by
General Statutes § 12-63c, showing the subject's
gross square footage at 249, 986 [square feet] and [net
rentable area] at 243, 586 [square
feet].'' With regard to the property's PGI,
the court rejected Michel's proposal of $25 per square
foot on a gross electric basis as well as Fazio's
inclusion of reimbursements and ‘‘other
income.'' Instead, the court compared the subject
property's market rent to its contract rent and concluded
that a value of $26 per square foot was ‘‘a fair
resolution of the subject's potential gross income, as of
October 1, 2008.'' Accordingly, the court multiplied
the market value of $26 per square foot by the net rentable
area of 243, 586 square feet, resulting in a PGI of $6, 333,
236, as of October 1, 2008. Finally, with regard to the
overall capitalization rate, the court adopted Fazio's
proposed overall capitalization rate of 8.89 percent.
Applying these figures to the direct capitalization formula,
the court concluded that the subject property's fair
market value, as of October 1, 2008, was $34, 059, 753.
Because this figure was less than the defendant's
assessment of $49, 036, 800, the court ordered a reduction in
the assessment to reflect the difference in the
property's fair market value. Thereafter, the defendant
filed its appeal.
facts will be set forth as necessary.
defendant first claims that the court's factual finding
regarding the property's net rentable area was clearly
erroneous. Specifically, the defendant argues that, in
determining the net rentable area of the property, the trial
court improperly relied on a 2006 annual income and expense
report to determine the building's gross square footage.
See footnote 17 of this opinion. The defendant argues that
the information in that report as to the property's net
rentable area was outdated, and thus that the court should
have used the plaintiff's 2008 rent roll to determine
that area instead. The defendant contends that, by relying on
such outdated information, the court failed to account for
14, 687 square feet of net rentable area, thereby erroneously
reducing the property's fair market value by $3, 865,
870. We find no error.
review of the court's determination in a tax appeal is
limited. [W]e do not examine the record to determine whether
the trier of fact could have reached a conclusion other than
the one reached. Rather, we focus on the conclusion of the
trial court, as well as the method by which it arrived at
that conclusion, to determine [if] it is legally correct and
factually supported. . . . We will reverse the decision only
if it is clearly erroneous.'' (Citation omitted;
internal quotation marks omitted.)Pilot's Point
Marina, Inc. v. Westbrook, 119 Conn.App. 600,
602, 988 A.2d 897 (2010). ‘‘A finding of fact is
clearly erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. . . . In making this determination, every
reasonable presumption must be given in favor of the trial
court's ruling.'' (Internal quotation marks
omitted.) Albemarle Weston Street, LLC v.
Hartford, 104 Conn.App. 701, 706, 936 A.2d 656
an appeal pursuant to § 12-117a, 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.'' (Footnote omitted;
internal quotation marks omitted.) Xerox Corp. v.
Board of Tax Review, 240 Conn. 192, 204, 690 A.2d
389 (1997). ‘‘Whether a property has been
overvalued for tax assessment purposes is a question of fact
for the trier.'' (Internal quotation marks omitted.)
Konover v. West Hartford, 242 Conn. 727,
735, 699 A.2d 158 (1997); New-bury Commons Ltd.
Partnership v. Stamford, 226 Conn. 92, 103, 626
A.2d 1292 (1993). ‘‘The trier arrives at his own
conclusions as to the value of land by weighing the opinion
of the appraisers, the claims of the parties in light of all
the circumstances in evidence bearing on value, and his own
general knowledge of the elements going to establish value
including his own view of the property.''
O'Brien v. Board of Tax Review, 169
Conn. 129, 136, 362 A.2d 914 (1975). ‘‘Because a
tax appeal is heard de novo, a trial court judge is
privileged to adopt whatever testimony [it] reasonably
believes to be credible.'' (Emphasis omitted;
internal quotation marks omitted.) Aetna Life Ins. Co.
v. Middle-town, 77 Conn.App. 21, 28, 822 A.2d
330, cert. denied, 265 Conn. 901, 829 A.2d 419 (2003).
‘‘The court has wide discretion in the admission
of evidence and in determining what weight to give any such
evidence.'' Nolan v. Milford, 92
Conn.App. 607, 609, 886 A.2d 493 (2005).
defendant claims that the court erroneously relied upon the
plaintiff's 2006 annual income and expense
report. We disagree. The evidence regarding the
property's net rentable area consisted of exhibits and
trial testimony; we address each in turn.
the course of the two day trial, the court received several
pieces of documentary evidence regarding the property's
net rentable area, including: the plaintiff's 2006, 2007,
and 2008 rent rolls; the city assessor's field card; and
the plaintiff's 2006 annual income and expense report. A
review of these documents reveals that the plaintiff's
December 2006 rent roll, January 2007 rent roll, and 2006
annual income and expense report consistently stated that the
subject property had a gross building area of 249, 986 square
feet. The plaintiff's December 2007 rent roll, however,
reported a gross building area of 260, 147 square feet,
reflecting an increase of approximately 10, 200 square feet.
Similarly, the plaintiff's December 2008 rent roll
reflected an additional increase of approximately 4500 square
feet, resulting in a gross building area of 264, 673 square
addition to these documents, the court heard testimony from
both appraisers regarding the property's net rentable
area. On direct examination, Michel testified that when he
calculated the property's fair market value, he relied on
the 2008 tax assessor's information, which reported that
the property had 238, 879 square feet in rentable area.
Michel explained that, by using this figure, he was able to
compare his appraisal to the tax assessor's appraisal
using identical information. Michel testified on
cross-examination that, before he performed his appraisal, he
reviewed twelve years' worth of information on the
subject property and noted that its net rentable area ranged
from 230, 000 to 260, 000 square feet throughout that period.
Michel testified that this was an indication that the net
rentable area of the property varied depending on the market.
Michel also testified that the city assessor's field
cards often reflected the assessor's personal opinion as
to the property's net rentable area and that, often
times, such information was incorrect. Michel ...