Fairfield Merrittview Ltd. Partnership v. Norwalk , 172 Conn. App. 160 ( 2017 )

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FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP
v. CITY OF NORWALK ET AL
(AC 34950)
Alvord, Sheldon and Harper, Js.
Argued October 27, 2016—officially released April 11, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Arnold W. Aronson, judge
trial referee)
James R. Fogarty, with whom, on the brief, were
Frank W. Murphy and Kara A. Murphy, for the appel-
lants (plaintiff et al.).
Carolyn M. Colangelo, assistant corporation counsel,
with whom were Mario F. Coppola, corporation coun-
sel, and, on the brief, Robert F. Maslan, Jr., former
corporation counsel, for the appellees (defendants).
Opinion
SHELDON, J. In this real estate tax appeal, the defen-
dant city of Norwalk1 appeals from the judgment of the
trial court sustaining the appeal of the plaintiff, Fairfield
Merrittview SPE, LLC,2 pursuant to General Statutes
§ 12-117a,3 and ordering the reduction of the defendant’s
tax assessment levied against the plaintiff’s real prop-
erty. 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 $34,059,753.4 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 assert-
edly 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’’ attrib-
utable to the subject property from its calculations and,
therefore, the court’s calculation regarding the proper-
ty’s potential gross income was clearly erroneous. We
affirm the judgment of the trial court.
The record reveals the following facts. The subject
property, an eight story, class A multitenant office build-
ing 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 cafe-
teria, 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 sta-
tion, which operates between New Haven and New
York City.
On October 1, 2008, as part of a citywide revaluation,
the defendant’s assessor determined that the subject
property had a fair market value5 of $49,036,800. There-
after, the plaintiff appealed to the Board of Assessment
Appeals of the City of Norwalk (board), pursuant to
General Statutes § 12-111,6 claiming that the property’s
assessed value grossly exceeded its actual value.7 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 war-
ranted reduction. A two day trial was then held on
December 14 and 15, 2011.
During 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 defen-
dant. Both witnesses stated that they employed the
sales approach8 and the income capitalization
approach9 to determine the property’s fair market value.
Ultimately, each appraiser testified that the income cap-
italization 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 pur-
chase the property.10 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.
Despite 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,11 as improved, was its continued
use as a multitenant office building; that, in applying
the income capitalization approach, the direct capital-
ization method12 was the preferred method for
determining the property’s fair market value; that, pur-
suant 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,13 should be valued at $25 per square
foot. They disagreed, however, on several figures
included in the direct capitalization formula. Specifi-
cally, they disagreed as to: (1) the property’s net rent-
able area; (2) the property’s potential gross income;
and (3) the overall capitalization rate14 that should be
applied under the direct capitalization formula. Their
differences, more particularly, were as follows.
Regarding 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 feet.
As for 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,’’15
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.16 Additionally, Fazio’s formula included
$190,000 in ‘‘other income’’ that he believed to be attrib-
utable to the property, which included ‘‘conference
room income, tenant other income, and . . . interest
income.’’
Concerning the overall capitalization rate, both
appraisers agreed that as of October 1, 2008, the capital-
ization 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.
On 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 pre-
sented, 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 sub-
ject’s gross square footage at 249,986 [square feet] and
[net rentable area] at 243,586 [square feet].’’17 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, 2008.18 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 capital-
ization 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. There-
after, the defendant filed its appeal.
Additional facts will be set forth as necessary.
I
The 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 prop-
erty, 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 defen-
dant contends that, by relying on such outdated infor-
mation, 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.
‘‘Our 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 sup-
ported. . . . 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 convic-
tion 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 (2007).
‘‘[I]n 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 quo-
tation 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 assess-
ment purposes is a question of fact for the trier.’’ (Inter-
nal 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 privi-
leged 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).
The defendant claims that the court erroneously
relied upon the plaintiff’s 2006 annual income and
expense report.19 We disagree. The evidence regarding
the property’s net rentable area consisted of exhibits
and trial testimony; we address each in turn.
Throughout 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 docu-
ments 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 feet.
In addition to these documents, the court heard testi-
mony 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 prop-
erty’s net rentable area and that, often times, such infor-
mation was incorrect. Michel explained, however, that
he had no reason to believe that the tax assessor’s
information in this case was incorrect. Michel also
stated that he reviewed the plaintiff’s rent rolls between
2006 and 2008 and that the discrepancies reflected in
those exhibits did not alter his conclusion.
The following day, the defendant’s appraiser, Fazio,
testified as to his appraisal of the property. On direct
examination, Fazio stated that ‘‘there [are] several
square footages that are delineated for the subject prop-
erty depending on what document you look at.’’ Fazio
also testified that he disagreed with Michel’s reliance
on the assessor’s records, and instead that he relied on
an oral representation by Tara Deluca, an agent of the
plaintiff, who stated that the property’s size was 256,974
square feet. Cross-examination revealed, however, that
this oral representation was made during a later on-
site inspection of the property in 2011. Fazio admitted
that he did not make any notes regarding his conversa-
tion with Deluca and that he was unsure whether the
figure she gave him included nonrentable areas of the
property as well. Finally, Fazio testified that his net
rentable area calculation included the 6400 square feet
in common areas because he believed that the tenants
owned an equal share of these spaces and, as such,
their rent per square foot included a percentage of the
common areas.
On the basis of Michel’s and Fazio’s conflicting testi-
mony, we conclude that the trial court reasonably could
have discredited both witnesses’ testimony as it related
to the property’s net rentable area. As discussed in the
preceding paragraphs, ‘‘the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . [T]he trial court is privi-
leged to adopt whatever testimony [it] reasonably
believes to be credible.’’ (Internal quotation marks omit-
ted.) United Technologies Corp. v. East Windsor, 262
Conn. 11, 26, 807 A.2d 955 (2002). In this case, Michel
stated that net rentable area is calculated by subtracting
the common area from the gross building area and that
the assessor’s information reflected a net rentable area
of 238,874 square feet. A closer inspection of the asses-
sor’s information, however, reveals that this figure of
238,874 square feet included the 6400 square feet of
common space area. As such, it was reasonable for the
court to discredit Michel’s testimony as to the property’s
net rentable area. Likewise, the court reasonably could
have discredited Fazio’s testimony regarding the prop-
erty’s net rentable area of 256,974 square feet on the
grounds that he relied solely on an oral representation
made three years after the revaluation date and that he
was unsure whether this figure included nonrentable
areas.
With regards to the documentary evidence admitted
at trial, we conclude that the court reasonably could
have found that the net rentable area of the property
was 243,586 square feet. In its memorandum of decision,
the court recognized the different net rentable area
figures contained in the plaintiff’s 2006, 2007, and 2008
rent rolls. The trial court considered these documents
and ultimately determined that it was more appropriate
to rely on the 2006 annual income and expense report.
We have consistently held that ‘‘[t]he court has wide
discretion in the admission of evidence and in determin-
ing what weight to give any such evidence.’’ Nolan v.
Milford, supra, 92 Conn. App. 609. In this case, ‘‘[t]he
court was required . . . to consider the evidence it
admitted. . . . It did so and determined what weight
to give to the evidence . . . .’’ (Citation omitted.) Id.,610–11. The court’s factual finding that the property
had a net rentable area of 243,586 square feet was ade-
quately supported by the evidence admitted and was
not based upon an erroneous rule of law. O’Brien v.
Board of Tax Review, supra, 169 Conn. 135–37. Accord-
ingly, we conclude that the court’s finding, as it relates
to the net rentable area, was not clearly erroneous.
II
The defendant’s final claim is that the trial court
improperly excluded $190,000 in ‘‘other income’’ attrib-
utable to the property when it calculated the property’s
potential gross income. We disagree. As a preliminary
matter, we note that the defendant’s proposed addition
of $190,000 in ‘‘other income’’ is derived from a 2007
audit report that was admitted at trial. This $190,000
figure is comprised of three separate items: $165,637
of interest earned on a money market account; $14,264
of conference room income; and $10,300 of ‘‘tenant
other income.’’ Each will be addressed in turn.
A
Tenant Other Income
We quickly dispose of the defendant’s claim that the
trial court’s potential gross income calculation should
have included $10,300 attributable to ‘‘tenant other
income.’’ Although Fazio testified that he included this
figure in his calculation of the property’s potential gross
income, he admitted that he did not know what this
figure actually represented. The defendant failed to pro-
duce additional testimony or other evidence clarifying
what was contained within this figure. Accordingly, the
court was well within its province, as the trier of fact,
to conclude that this figure should not be added to the
property’s potential gross income.
B
Interest Income
We now address whether the court improperly
excluded $165,637 of interest income derived from the
plaintiff’s money market account. In its memorandum
of decision, the trial court excluded this income from
its computation of the property’s potential gross income
and concluded that ‘‘$26 [per square foot] is a fair resolu-
tion of the subject’s potential gross income, as of Octo-
ber 1, 2008.’’ The defendant argues that the court’s
failure to include this income was clearly erroneous,
and that our decision in Pilot’s Point Marina, Inc.,
requires us to conclude that the court committed revers-
ible error. We disagree.
In Pilot’s Point Marina, Inc., the plaintiff owned one
of the largest marinas in New England. Pilot’s Point
Marina, Inc. v. Westbrook, supra, 119 Conn. App. 601.
On October 1, 2006, the defendant town assessed the
property at a value of $19 million. Id. The plaintiff
appealed that assessment, pursuant to § 12-117a, and
argued that the property’s fair market value as of that
date was $15,700,000. Pilot’s Point Marina, Inc. v. West-
brook, Superior Court, judicial district of Middlesex,
Docket No. CV-07-4007441-S, 2008 WL 4926930, *1
(November 6, 2008), rev’d, 119 Conn. App. 600, 988
A.2d 897 (2010). The trial court reviewed the town’s
assessment de novo and found, in part, that the marina
generated $1,611,042 from slip rentals as well as winter
and summer storage fees. Id., *3. The court, however,
‘‘failed to include $102,192 of summer storage income
in its final EGI [effective gross income] calculation [pur-
suant to the income capitalization method]. The court
articulated its omission by explaining that it was aware
of the income generated through summer storage but
chose to disregard it because most marinas do not offer
summer storage, and, therefore, the summer storage
income realized by the plaintiff was not representative
of the market.’’ Pilot’s Point Marina, Inc. v. Westbrook,
supra, 119 Conn. App. 603. Ultimately, the trial court
concluded that the property had been overvalued, and
so it reduced the town’s assessment by approximately
$2 million. Id., 602.
On appeal in Pilot’s Point Marina, Inc., we agreed
with the defendant that the court’s failure to include
the summer boat storage income was clearly erroneous.
Id., 603–604. In doing so, we held that ‘‘[p]ursuant to
§ 12-63b (b), the court is required to consider both mar-
ket rent and actual rent when determining fair market
value using the income capitalization method. . . .
Moreover, if the property is devoted to the use for which
it is best adapted and is in a condition to produce or
is producing its maximum income, the actual rental is
a very important element in ascertaining its value. . . .
Consequently, in light of the actual income generated by
the property through summer boat storage, the court’s
failure to include any summer storage income in its
final EGI calculation was improper.’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
Id.
The defendant argues that the interest income
derived from a money market account is ‘‘no more or
less attributable to the land’’ than the summer boat
storage income in Pilot’s Point Marina, Inc. We are
unpersuaded.
As a preliminary matter, we note that in Pilot’s Point
Marina, Inc., both the plaintiff’s and the defendant
town’s appraisers agreed that the income derived from
summer boat storage was income attributable to the
property; they merely disagreed as to how much income
was derived from those rentals for the revaluation year
of 2006. See Pilot’s Point Marina, Inc. v. Westbrook,
supra, Superior Court, Docket No. CV-07-4007441-S,
2008 WL 4926930, *2–4. Nonetheless, the trial court
excluded this income from its calculations on the
ground that the plaintiff ‘‘basically establishes its own
market,’’ in that it was the only local marina that had
the ability to earn income from summer boat storage.
Id., *3. Thus, although the parties agreed that the income
from summer boat storage was, in fact, attributable to
the property, the court excluded such income from its
calculations because it did not believe that it accurately
reflected the earning capacity of similarly situated mari-
nas. See id.
In the present case, however, the parties’ appraisers
disagreed as to whether this ‘‘interest income’’ was
attributable to the property itself. Specifically, Fazio
opined that the interest income derived from the plain-
tiff’s money market account should be included in the
property’s potential gross income because ‘‘the interest
is . . . from the income derived from the building’’ and
was thus, in his judgment, ‘‘income to the building.’’
Michel, however, disagreed, testifying that interest and
dividends should not be included as income under the
direct capitalization method because, in his opinion,
this income is unrelated to the property. Instead, he
stated, ‘‘It’s relative to the ownership and how they
handle their . . . money.’’ Michel also testified that,
in his twenty-five years of experience, he had never
included interest income when calculating a property’s
fair market value pursuant to the income capitalization
approach. Thus, unlike the court in Pilot’s Point
Marina, Inc., the trial court in this case had to resolve
the threshold issue of whether this income was attribut-
able to the property and thus should be included in the
court’s computation of the property’s potential gross
income.
We have long dichotomized between income attribut-
able to the plaintiff’s real estate and income attributable
to the plaintiff’s business for purposes of tax assess-
ments. Whitney Center, Inc. v. Hamden, 4 Conn. App.
426, 427, 494 A.2d 624 (1985). In Whitney Center, Inc.,
the trial court reduced the defendant town’s assess-
ments for the plaintiff’s life care center during the tax-
able years of 1981 and 1982. Id. Although the appraisers
agreed as to ‘‘the correct method for valuation, the
appraisers disagreed on which components of the plain-
tiff’s total income should be attributed to the real prop-
erty rather than to the business, and on the valuation
of those components.’’ Id., 428–29. On appeal, the defen-
dant claimed that the trial court ‘‘erred in relying upon
an appraisal that did not include a calculation of maxi-
mum income’’; id., 427; which the defendant argued
should have included ‘‘a lump sum entrance endowment
and a monthly service fee thereafter for the rights and
services provided by the plaintiff.’’ Id. We affirmed the
judgment of the trial court and held that ‘‘[f]or assess-
ment purposes, the value of the plaintiff’s real estate
must be distinguished from the value of its business
since it is the realty itself which is subject to the prop-
erty tax assessment.’’ Id.
In light of the conflicting testimony presented in this
case, the trial court reasonably could have found that
the plaintiff’s interest income was not attributable to
the property. We are again reminded that ‘‘the trial judge
is the sole arbiter of the credibility of the witnesses
and the weight to be given specific testimony. . . .
[T]he trial court is privileged to adopt whatever testi-
mony he reasonably believes to be credible.’’ (Internal
quotation marks omitted.) United Technologies Corp.
v. East Windsor, supra, 262 Conn. 26. The court there-
fore was within its province to credit the testimony of
Michel, an appraiser with twenty-five years of experi-
ence, and exclude this figure from its computations.
Under our deferential standard of review, the court’s
findings ‘‘must stand unless there was an error of law
or a legal or logical inconsistency with the facts found.’’
(Internal quotation marks omitted.) Whitney Center,
Inc. v. Hamden, supra, 4 Conn. App. 429–30. The court’s
decision to exclude this ‘‘interest income’’ was consis-
tent with Michel’s testimony and was adequately sup-
ported by the record. We have found no law for the
proposition either that the trial court must consider an
interest bearing account in performing such calcula-
tions or that its failure to do so constitutes reversible
error. See Redding Life Care, LLC v. Redding, 308
Conn. 87, 106–11, 61 A.3d 461 (2013) (permitting—but
not requiring—the trial court to consider a hypothetical
entry fee escrow account in its valuation of the subject
property). Accordingly, we conclude that the court’s
finding, as it relates to the ‘‘interest income,’’ was not
clearly erroneous.
C
Conference Room Rental Income
Lastly, we address the defendant’s argument concern-
ing $14,264 in conference room income. At trial, the
plaintiff presented the testimony of Jeffrey Newman,
the executive vice president of Malkin Properties,
which is the company that managed the marketing and
leasing of the subject property. Newman testified that
the conference room, fitness center, and dining area
were for tenants only, and that these areas ‘‘are not
leased to tenants, but they’re available for use by ten-
ants.’’ With respect to the conference room, Newman
testified that tenants were able to ‘‘call us up and reserve
it.’’20 Later that day, Michel was asked a series of ques-
tions regarding the property’s ‘‘other income.’’ Michel
stated that the conference room was ‘‘an amenity pro-
vided to the tenants, and you can’t achieve rent on that.’’
This testimony was consistent with the plaintiff’s 2006,
2007, and 2008 rent rolls, which consistently stated that
the conference room has a rent potential of zero dollars.
The following day, Fazio testified as to the conference
room income. On cross-examination, Fazio conceded
that the references within the plaintiff’s 2006, 2007, and
2008 rent rolls stated that the ‘‘rent potential’’ and ‘‘rent
actual’’ from the conference room was zero dollars. He
maintained, however, that he believed that the tenants
were required to pay a fee to use the conference center,
it was not part of the tenant’s monthly rent, and, there-
fore, it was considered ‘‘income to the building.’’ This
opinion was consistent with the plaintiff’s 2006 annual
income and expense report, which reported a year-to-
date income of $6450 from the conference room in 2006,
as well as a 2007 audit statement, which reported a
year-to-date income of $14,264 in 2007. The defendant
failed, however, to elicit any information from either
Fazio or Newman as to the regularity of these rentals,
the rate charged by the plaintiff, or the costs incurred
by the plaintiff in renting this space.
In the absence of such additional facts, we cannot
conclude that it was clearly erroneous for the court
to exclude this figure from its potential gross income
calculation. In Pilot’s Point Marina, Inc., the trial court
received comprehensive testimony from both apprais-
ers as to the regularity of summer boat storage rentals;
the average length of such rentals and the correspond-
ing effect on the income generated by such rentals; and
the income earned over the course of several years of
storage rentals. Pilot’s Point Marina, Inc. v. Westbrook,
supra, Superior Court, Docket No. CV-07-4007441-S,
2008 WL 4926930. The record in this case, by contrast,
lacks comparable information as to the conference
room rentals. At most, the court was presented with
conflicting testimony and evidence as to whether the
conference room could be considered income attribut-
able to the property, whether the conference room was
able to achieve a regular and consistent income stream
and, even if that was established, which figure most
accurately represented that income stream on a yearly
basis. We are reminded once again that ‘‘[t]he process
of estimating the value of property for taxation is, at
best, one of approximation and judgment, and there is a
margin for a difference of opinion.’’ (Internal quotation
marks omitted.) Carol Management Corp. v. Board of
Tax Review, 228 Conn. 23, 39–40, 633 A.2d 1368 (1993).
Here, the court was presented with sufficient evidence
to reasonably conclude that the property did not receive
income from the conference room. Alternatively, the
court reasonably could have found that it lacked suffi-
cient evidence as to the consistency of its use for
income-generating purposes. In either case, we con-
clude that it was not clearly erroneous for the court to
exclude this amount from its calculation and instead
to reach a compromise figure of $26 per square foot.21
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the appeal to the Superior Court, the Board of Assessment Appeals
of the City of Norwalk and the city’s tax assessor, Michael J. Stewart, were
also named as defendants. We refer hereinafter to these parties individually
by name as necessary and to the city of Norwalk as the defendant.
2
We refer to Fairfield Merritview SPE, LLC, as the plaintiff throughout
this opinion. The named plaintiff, Fairfield Merritview Limited Partnership,
is a related entity. See Fairfield Merrittview Ltd. Partnership v. Norwalk,
320 Conn. 535, 539, 133 A.3d 140 (2016).
3
General Statutes § 12-117a provides in relevant part: ‘‘Any person . . .
claiming to be aggrieved by the action of the board of tax review or the
board of assessment appeals, as the case may be, in any town or city may,
within two months from the date of the mailing of notice of such action,
make application . . . to the superior court for the judicial district in which
such town or city is situated . . . . The court shall have power to grant
such relief as to justice and equity appertains, upon such terms and in such
manner and form as appear equitable . . . . If the assessment made by the
board of tax review or board of assessment appeals, as the case may be,
is reduced by said court, the applicant shall be reimbursed by the town or
city for any overpayment of taxes . . . .’’
4
This court, in Fairfield Merrittview Ltd. Partnership v. Norwalk, 149
Conn. App. 468, 89 A.3d 417 (2014), rev’d, 320 Conn. 535, 133 A.3d 140(2016), concluded that the trial court lacked subject matter jurisdiction over
the plaintiff’s appeal. Id., 477–78. Our decision rested on the fact that, prior
to the assessment, the plaintiff restructured its business from a limited
partnership to a limited liability company. ‘‘On the date of the valuation,
October 1, 2008, the limited liability company was the sole owner of the
property. Nevertheless, Fairfield Merrittview Limited Partnership, the lim-
ited partnership, was the entity that challenged the assessor’s valuation
before the board even though it had conveyed its interest in the property
more than a year prior to the valuation date. The actual owner of the
property, the limited liability company, did not participate in that appeal.’’
Id., 474. We concluded that this was fatal to the plaintiff’s appeal and, as
such, we reversed the judgment of the trial court. Our Supreme Court,
however, reversed that decision and held that the plaintiff’s ‘‘prompt amend-
ment of the complaint to add the LLC as a party plaintiff was effective to
confer jurisdiction on the trial court, regardless of whether the action was
instituted by an improper party, the partnership.’’ Fairfield Merrittview Ltd.
Partnership v. Norwalk, 320 Conn. 535, 547, 133 A.3d 140 (2016).
5
‘‘[F]air market value is defined as the price that a willing buyer would
pay a willing seller based on the highest and best possible use of the land
assuming, of course, that a market exists for such optimum use.’’ (Internal
quotation marks omitted.) United Technologies Corp. v. East Windsor, 262
Conn. 11, 25, 807 A.2d 955 (2002); see also Aetna Life Ins. Co. v. Middletown,
77 Conn. App. 21, 35, 822 A.2d 330 (defining fair market value as ‘‘the price
that would result from the fair negotiations of a willing seller and a desirous
buyer’’), cert. denied, 265 Conn. 901, 829 A.2d 419 (2003).
6
General Statutes § 12-111 (a) provides in relevant part: ‘‘Any person . . .
claiming to be aggrieved by the doings of the assessors of such town may
appeal therefrom to the board of assessment appeals. . . . Such board may
equalize and adjust the grand list of such town and may increase or decrease
the assessment of any taxable property or interest therein and may add an
assessment for property omitted by the assessors which should be added
thereto. . . .’’
7
‘‘‘The expressions ‘‘actual valuation,’’ ‘‘actual value,’’ ‘‘market value,’’
‘‘market price’’ and . . . ’’fair value’’ are synonymous.’ ’’ O’Brien v. Board
of Tax Review, 169 Conn. 129, 137–38, 362 A.2d 914 (1975) (Bogdanski,
J., dissenting).
8
‘‘The comparable sales approach is also known as the market data
approach or sales comparison approach. . . . It is a process of analyzing
sales of similar recently sold properties in order to derive an indication of
the most probable sales price of the property being appraised. . . . After
identifying comparable sales, the appraiser makes adjustments to the sales
prices based on elements of comparison.’’ (Internal quotation marks omit-
ted.) Abington, LLC v. Avon, 101 Conn. App. 709, 711–12 n.4, 922 A.2d
1148 (2007).
9
‘‘The income capitalization approach consists of the following seven
steps: (1) estimate gross income; (2) estimate vacancy and collection loss;
(3) calculate effective gross income (i.e., deduct vacancy and collection loss
from estimated gross income); (4) estimate fixed and operating expenses
and reserves for replacement of short-lived items; (5) estimate net income
(i.e., deduct expenses from effective gross income); (6) select an applicable
capitalization rate; and (7) apply the capitalization rate to net income to
arrive at an indication of the market value of the property being appraised.
. . . The process is based on the principle that the amount of net income
a property can produce is related to its market value.’’ (Internal quotation
marks omitted.) Abington, LLC v. Avon, 101 Conn. App. 709, 712 n.4, 922
A.2d 1148 (2007).
10
The court agreed with both appraisers that the income capitalization
approach was the most desirable method of determining the property’s fair
market value. The defendant has not challenged this finding.
11
‘‘A property’s highest and best use is commonly defined as the use that
will most likely produce the highest market value, greatest financial return,
or the most profit from the use of a particular piece of real estate.’’ (Emphasis
omitted; internal quotation marks omitted.) United Technologies Corp. v.
East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002).
12
‘‘Direct Capitalization is a method used in the income capitalization
approach to convert a single year’s income expectancy into a value indica-
tion. This conversion is accomplished in one step, either by dividing the
income estimate by an appropriate income rate or by multiplying it by an
appropriate income factor.’’ The Appraisal of Real Estate (12th Ed. 2001),
p. 529.
13
Pursuant to General Statutes § 12-63b (b), ‘‘the term ‘market rent’ means
the rental income that such property would most probably command on
the open market as indicated by present rentals being paid for comparable
space. In determining market rent the assessor shall consider the actual
rental income applicable with respect to such real property under the terms
of an existing contract of lease at the time of such determination.’’
14
The capitalization rate is considered ‘‘the rate a reasonable investor
would seek on his capital or equity . . . .’’ New Haven Savings Bank v.
West Haven Sound Development, 190 Conn. 60, 65–66, 459 A.2d 999 (1983).
In other words, the capitalization rate is a projection of the buyer’s return
on investment based upon a comparison of the property’s income producing
capacity to its purchase price. Here, both appraisers calculated the applica-
ble capitalization rate by dividing the property’s net operating income (NOI)
by its sale price. ‘‘By dividing the annual net rental figure by the capitalization
rate, market value is ascertained.’’ Id., 66.
15
During the first day of trial, Michel testified that ‘‘gross electric basis’’
means that ‘‘the tenant pays a gross rent plus he pays an additional charge
for tenant electric directly. And then from that you subtract a vacancy factor,
which we discussed, to come up with your potential gross income.’’
16
These additional reimbursements included a utility reimbursement of
$2.15 per square foot; and an expense reimbursement of $2.65 per square
foot.
17
In arriving at a net rentable area of 243,586 square feet, the court sub-
tracted 6400 square feet from the building’s gross square footage of 249,986
square feet. The 6400 square feet deducted represents the common areas
located on the first floor, including the lobby, cafeteria, fitness center, and
conference room. Both parties agree that this is the proper method of
calculating net rentable area.
18
The defendant has not challenged the courts factual finding as to the
market rental value of the subject property. Instead, the defendant claims
that the court should have added $190,000 in ‘‘other income’’ to the property’s
PGI of $6,333,236 before proceeding to the next step in the direct capitaliza-
tion formula.
19
At oral argument before this court, the defendant asserted for the first
time that the court’s credibility determination resulted from an erroneous
interpretation of General Statutes § 12-63c. This argument, however, was
not raised in the defendant’s briefs. ‘‘[I]t is well settled that claims on appeal
must be adequately briefed . . . and cannot be raised for the first time
at oral argument before the reviewing court.’’ (Internal quotation marks
omitted.) JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn. App.
630, 638 n.8, 90 A.3d 249, cert. denied, 312 Conn. 915, 93 A.3d 598 (2014);
see Practice Book § 61-10. Accordingly, we decline to address this argument.
20
The following exchange occurred between counsel for the plaintiff
and Newman:
‘‘Q. All right. And are there building amenities that are specifically leased
to tenants?
‘‘A. Well, yes. For instance, the cafeteria, the fitness, the fitness center,
the conference center are not leased to tenants, but they’re available for
use by tenants.
‘‘Q. Okay. And when you said they are available for use, you mean on
a—if somebody wants to use the conference room on a particular day,
they just—
‘‘A. (Overlapping) Call us up and reserve it.
‘‘Q. —rent it for—’’
‘‘A. Right.
‘‘Q. —or for an hour or whatever it may be?
‘‘A. Correct.’’
21
We note that, had the trial court included this $14,264 in conference
room fees in its calculations, the resulting increase in the property’s fair
market value would be equal to less than one-half of one percent.