WALGREEN EASTERN COMPANY, INC.
TOWN OF WEST HARTFORD
October 19, 2017
from the decision of the defendant's board of assessment
appeals upholding the town assessor's valuation of
certain of the plaintiff's real property, brought to the
Superior Court in the judicial district of Hartford and
transferred to the judicial district of New Britain, where
the case was tried to the court, Schuman, J.;
judgment for the defendant in part and for the plaintiff in
part, from which the plaintiff appealed. Affirmed.
Elliott B. Pollack, with whom, on the brief, was Tiffany K.
Spinella, for the appellant (plaintiff).
Patrick G. Alair, corporation counsel, for the appellee
L. Olson and Proloy K. Das filed a brief for the Connecticut
Conference of Municipalities as amicus curiae.
Palmer, Robinson, D'Auria, Prescott and Mullins, Js.
plaintiff, Walgreen Eastern Company, Inc., appeals from the
judgment of the trial court denying, in part, its appeal from
the decision of the Board of Assessment Appeals (board) of
the defendant, the town of West Hartford (town). The trial
court concluded that the plaintiff had established
aggrievement under General Statutes §
12-117a because the town overvalued its property.
The court then found a new valuation for the subject property
and ordered the town to provide the plaintiff with the
appropriate reimbursement or credit for any overpayment plus
interest. In addition, the trial court also determined that
the town's assessment was not manifestly excessive under
General Statutes § 12-119.
present appeal, the plaintiff claims that, although the trial
court correctly determined that the plaintiff had established
aggrievement by showing that the town's valuation of the
property was excessive, it incorrectly (1) determined the
true and actual value of the subject property, and (2)
concluded that the town's valuation of the subject
property was not manifestly excessive. We disagree and,
accordingly, affirm the judgment of the trial court.
following relevant facts and procedural history are set forth
in the trial court's memorandum of decision.
‘‘The subject property is a 1.45 acre improved
parcel located [at] 940 South Quaker Lane in the town. The
property abuts another parcel to the south, with which it was
once merged, near the intersection of South Quaker Lane,
which is to the west, and New Britain Avenue, which is to the
south, in the Elmwood section of the town.
improvement on the subject property is a 12, 805 square foot
building originally constructed in 1949 as a movie theater.
In 2003, a developer, Nixon Plainville, LLC, purchased the
subject property and the adjoining property to the south for
$2, 500, 000, formally subdivided them, and began to convert
the building on the subject property into a Walgreens
pharmacy. In appraisal terms, the property was of the
‘build to suit' type.
developer entered into a ‘triple net' or
‘NNN' lease with the plaintiff under which the
plaintiff was responsible for the payment of all insurance,
maintenance, and property tax expenses. The lease commenced
in December, 2004, but the pharmacy did not open until 2006.
The lease runs for seventy-five years, but the plaintiff can
terminate it after twenty-five years and every five years
thereafter. The rent is fixed at $430, 000 per year for the
term of the lease plus a small percentage of the gross sales.
This rate converts to $33.58 per square foot.
2006, the developer sold the subject property to Maple West
Hartford, LLC, which has been described as an investor, for
$6, 718, 750. There have been no further sales of the
pharmacy now has parking space for approximately
[seventy-five] cars. Some of the parking space is shared with
Webster Bank, which occupies the property to the south. There
is no drive-up service window for the pharmacy. Although the
pharmacy is not on the exact corner of South Quaker Lane and
New Britain Avenue, it is near the corner. There is a full,
two-way auto[mobile] access from and to South Quaker Lane.
From New Britain Avenue, cars going westbound can make a
right turn into a driveway, marked by a Wal-greens sign, that
goes behind the bank on the corner and into the
[plaintiff's] parking lot.
pharmacy is visible from the road from all directions except
westbound. The westbound view from New Britain Avenue is
blocked by the bank and a tree. The intersection of South
Quaker Lane and New Britain Avenue has high traffic volume
and has a traffic light.''
accordance with the town's statutory obligation; see
General Statutes § 12-62 (b) (1); the assessor
conducted a town wide revaluation of all real estate for the
grand list of October 1, 2011, and determined that the
subject property had a fair market value of $5, 020, 000 and
an assessment value of $3, 514, 000. The plaintiff challenged
the valuation and appealed to the board pursuant to General
Statutes § 12-111 (a). The board upheld the
assessor's valuation, and the plaintiff appealed to the
Superior Court pursuant to §§ 12-117a and 12-119.
appeal to the Superior Court, the plaintiff's complaint
contained two separate counts. In count one, the plaintiff
alleged, pursuant to § 12-117a, that it was aggrieved by
the actions of the board because the assessor's valuation
of the property exceeded 70 percent of its true and actual
value on the assessment date. In count two, the plaintiff
alleged, pursuant to § 12-119, that the valuation was
‘‘manifestly excessive and could not have been
arrived at except by disregarding the provisions of the
statutes for determining the valuation of the
property.'' The plaintiff thus sought a reduction in
the amount of the tax and the valuation on which it had been
trial, the plaintiff presented the testimony of two
appraisers, Anthony Barna and Richard Michaud, who both
valued the property at $3 million. The town presented the
testimony of two appraisers: John Leary, who performed the
revaluation for the town, and Christopher Kerin, who valued
the property at $4, 900, 000. The trial court credited
Kerin's testimony and determined that the true and actual
value of the property was $4, 900, 000. As a result, the
court concluded that the assessor had overvalued the property
by assigning it a true and actual value of $5, 020, 000.
Accordingly, because the true and actual value was less than
the value assigned by the assessor, the court found that the
plaintiff had satisfied its burden of proving aggrievement,
and, therefore, the court found in favor of the plaintiff on
count one. Addressing count two, the trial court found that
the plaintiff had not met its burden of establishing that the
assessment was manifestly excessive under § 12-119. The
court then rendered judgment in favor of the plaintiff on its
§ 12-117a count and in favor of the town on the
plaintiff's § 12-119 count. The plaintiff
appeal from the § 12-117a count, the plaintiff claims
that, although the trial court correctly concluded that it
had established aggrievement by proving that the assessor had
overvalued its property, the relief awarded was insufficient
because the trial court improperly determined the true and
actual value of the subject property. Specifically, the
plaintiff alleges that the trial court improperly (1) applied
General Statutes § 12-63b (b), (2) valued the leased fee
interest, rather than the fee simple interest, and (3)
selected too narrow a highest and best use for the
property. We disagree.
begin with the principles governing municipal tax appeals.
‘‘Section 12-117a, which allows taxpayers to
appeal the decisions of municipal boards of [assessment
appeals] 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. . . . 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. . . . 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 or discriminatory or has resulted in
substantial overvaluation. . . . Whether a property has been
overvalued for tax assessment purposes is a question of fact
for the trier. . . . 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. . . .
after the court determines that the taxpayer has met his
burden of proving that the assessor's valuation was
excessive and that the refusal of the board of [assessment
appeals] to alter the assessment was improper, however, may
the court then proceed to the second step in a § 12-117a
appeal and exercise its equitable power to grant such relief
as to justice and equity appertains . . . . If a taxpayer is
found to be aggrieved by the decision of the board of
[assessment appeals], the court tries the matter de novo and
the ultimate question is the ascertainment of the true and
actual value of the applicant's property.''
(Citations omitted; internal quotation marks omitted.)
Konover v. West Hartford, 242 Conn. 727, 734-35, 699
A.2d 158 (1997).
present case, the trial court found that the plaintiff met
its burden of proving that the assessor's valuation was
excessive and that the board's refusal to alter the
assessment was improper. The court then proceeded to the
second step in the § 12-117a claim, namely, determining
the appropriate relief based on the true and actual value of
the applicant's property. The plaintiff now challenges
the trial court's judgment on the ground that the trial
court's finding regarding the true and actual value of
the subject property was excessive.
a tax appeal taken from the trial court to the Appellate
Court or to this court, the question of overvaluation usually
is a factual one subject to the clearly erroneous standard of
review. . . . Under this deferential standard, [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 whether it is legally correct and factually
supported. . . . Additionally, [i]t is well established that
[i]n a case tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight to
be given specific testimony. . . . The credibility and the
weight of expert testimony is judged by the same standard,
and the trial court is privileged to adopt whatever testimony
[it] reasonably believes to be credible. . . . On appeal, we
do not retry the facts or pass on the credibility of
witnesses. . . . Simply put, a trial court is afforded wide
discretion in making factual findings and may properly render
judgment for a town based solely upon its finding that the
method of valuation espoused by a taxpayer's appraiser is
unpersuasive. . . .
we review de novo a trial court's decision of law. [W]hen
a tax appeal . . . raises a claim that challenges the
propriety of a particular appraisal method in light of a
generally applicable rule of law, our review of the trial
court's determination whether to apply the rule is
plenary. . . . To be sure, if the trial court rejects a
method of appraisal because it determined that the
appraiser's calculations were incorrect or based on a
flawed formula in that case, or because it determined that an
appraisal method was inappropriate for the particular piece
of property, that decision is reviewed under the abuse of
discretion standard. . . . Only when the trial court rejects
a method of appraisal as a matter of law will we exercise
plenary review. . . .
the starting point in any tax appeal taken from the Superior
Court, including the present appeal, is a determination as to
whether the trial court reached its decision through (1) the
exercise of its discretion in crediting evidence and expert
witness testimony, or (2) as a matter of law.''
(Citations omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Redding Life Care, LLC
v. Redding, 308 Conn. 87, 100-102, 61 A.3d 461 (2013).
plaintiff first claims that the trial court did not properly
apply § 12-63b (b) in valuing the subject property because
the court considered the actual rental income under the lease
(contract rent) in calculating the true and actual value of
the property. Specifically, the plaintiff argues that the
trial court improperly rejected the appraisals submitted by
the plaintiff's appraisers because they did not include
consideration of the contract rent. The plaintiff asserts
that the language of§ 12-63b (b) does not mandate that
the assessor consider contract rents, and that contract rent
in the present case was not relevant to establish the true
and actual value of the subject property in 2011 because the
lease had been negotiated in 2003. Furthermore, the plaintiff
asserts that the trial court's reliance on First
Bethel Associates v. Bethel, 231 Conn. 731, 651 A.2d
1279 (1995), is misplaced because the holding of First
Bethel Associates subsequently was modified or
overturned. We reject the plaintiff's claim regarding the
application of § 12-63b (b).
a tax appeal, like the present one, raises a claim that
challenges the propriety of a particular appraisal method in
light of a generally applicable rule of law, our review of
the trial court's determination whether to apply the rule
is plenary. See Sheridan v. Killingly, 278 Conn.
252, 260, 897 A.2d 90 (2006) (applying plenary review to
claim that trial court improperly rejected assessor's
attribution of value of leasehold interest to lessor's
property); see also Torres v. Waterbury, 249 Conn.
110, 118, 733 A.2d 817 (1999) (legal ...