Wheelabrator Bridgeport, L.P. v. Bridgeport

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WHEELABRATOR BRIDGEPORT, L.P. v. BRIDGEPORT—CONCURRENCE
ROBINSON, J., with whom ESPINOSA, J., joins, con-
curring. I agree with the result and most of the reasoning
in the majority’s opinion, which reverses the judgment
of the trial court dismissing the 2009 tax appeal filed
by the named plaintiff, Wheelabrator Bridgeport, L.P.
(Wheelabrator),1 and a portion of the trial court’s judg-
ment assigning a new valuation in Wheelabrator’s 2011
tax appeal, both of which challenge the assessment of
its real property by the defendant, the city of Bridgeport
(city). I respectfully disagree, however, with part II of
the majority’s opinion, which, in considering the valua-
tion of Wheelabrator’s property on the city’s grand lists
of 2010 and the years following, concludes that the trial
court improperly ‘‘rejected the discounted cash flow
[income] approach to valuation for property tax assess-
ment purposes—at least as applied to properties that
do not have a rental market—as a matter of law.’’2
Guided largely by this court’s recent decision in Redd-
ing Life Care, LLC v. Redding, 308 Conn. 87, 61 A.3d
461 (2013), I read the trial court’s memorandum of deci-
sion as a proper exercise of its discretion to consider
and reject the discounted cash flow method in the pres-
ent case, before applying the reproduction cost
approach to valuing Wheelabrator’s real property. In
my view, the majority’s conclusion to the contrary is a
significant departure from the considerable discretion
that our case law has long afforded to trial courts with
respect to electing the proper appraisal method by
which to engage in the factual determination of property
valuation. I do, however, agree with Wheelabrator’s
claim that the trial court’s valuation of Wheelabrator’s
real property under the reproduction cost approach
was clearly erroneous because it appears not to have
accounted for the value of Wheelabrator’s personal
property. See footnote 13 of this concurring opinion.
Accordingly, I concur in the decision of the majority
to reverse in part the judgments of the trial court and
order a new trial with respect to the valuation of
Wheelabrator’s real property.
I
I agree with the background facts and procedural
history set forth in the majority opinion. I part company
from the majority, however, with respect to its decision
to engage in plenary review of the trial court’s decision
not to utilize the discounted cash flow income approach
to valuation in this case. ‘‘[W]hen a tax appeal . . .
raises a claim that challenges the propriety of a particu-
lar 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.’’3 (Internal quota-
tion marks omitted.) Redding Life Care, LLC v. Redd-
ing, supra, 308 Conn. 101; see also, e.g., Sheridan v.
Killingly, 278 Conn. 252, 260, 897 A.2d 90 (2006)
(applying plenary review to trial court’s unequivocal
determination that ‘‘as a generally applicable rule of
law, the value of a leasehold interest cannot be attrib-
uted to the lessor when valuing the lessor’s property
interest for assessment purposes’’). When, however,
‘‘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.’’ (Citation omitted; emphasis altered.)
Redding Life Care, LLC v. Redding, supra, 102.
I respectfully disagree with the majority’s conclusion
to apply plenary review, insofar as it agrees with
Wheelabrator’s claim that the trial court improperly
rejected the discounted cash flow income approach as
a matter of law, in the process dismissing the views of
‘‘both [parties’] litigation appraisers [that] it was the
most appropriate method to value the property at
issue.’’ In my view, this conclusion conflicts with our
recent decision in Redding Life Care, LLC v. Redding,
supra, 308 Conn. 87, which squarely controls our deter-
mination of the scope of the discounted cash flow issues
resolved in the trial court’s memorandum of decision.
In Redding Life Care, LLC, we rejected the claim of a
continuing care facility that the trial court had improp-
erly concluded that the going concern income capital-
ization4 approach applied by its appraiser ‘‘is not
recognized or permitted under Connecticut law and
thus may not be used to determine the fair market value
of real estate and whether the plaintiff is aggrieved
under [General Statutes] § 12-117a.’’ Id., 94. We con-
cluded that the plaintiff’s claim could be resolved on
the basis of an articulation issued in that case ‘‘alone,’’
in which ‘‘the trial court stated that it had rejected [the
appraiser’s] testimony because it found him not to be
credible, and not because his use of the going concern
approach as a method for the valuation of real property
was improper as a matter of law.’’ (Emphasis added.)
Id., 102–103. We also observed that the memorandum
of decision ‘‘illustrate[s] that the trial court rejected
the formula and calculations on which [the plaintiff’s
appraiser] relied to arrive at the valuation of the intangi-
ble business. In other words, the trial court’s disagree-
ment with the plaintiff’s valuation turned on the flaws
in [the appraiser’s] calculations and formula, not on the
method itself. For example, the trial court concluded
that [the appraiser’s] valuation omitted or distorted sev-
eral essential aspects of [the care facility’s] value as a
going concern.’’5 Id., 103. We concluded, therefore, that
‘‘the trial court did not summarily dismiss the method
as a matter of law.’’ Id., 104.
As this court did in Redding Life Care, LLC, my
analysis of the record in the present case6 begins with
the trial court’s May 7, 2014 articulation, which
expressly stated that the court ‘‘did not reject the [dis-
counted cash flow] approach as a method for valuing
the subject property as a matter of law. The trial court
rejected the testimony of the parties’ experts because
it found this testimony not to be credible with respect
to this approach.’’7 (Emphasis added.) As in Redding
Life Care, LLC, this articulation ‘‘alone’’ disposes of
Wheelabrator’s claim that the trial court improperly
rejected the discounted cash flow income approach as
a matter of law. Redding Life Care, LLC v. Redding,
supra, 308 Conn. 103. Nevertheless, like the majority
and this court in Redding Life Care, LLC, I go on to
review the trial court’s memorandum of decision in this
case to determine whether it is consistent with the
articulation. See id., 103–104. My review of the trial
court’s comprehensive analysis therein reveals abso-
lutely nothing stating that discounted cash flow is not
an approach acknowledged under existing case or statu-
tory law for valuing real property like that of Wheela-
brator, or holding accordingly as a matter of first
impression.8 Indeed, the trial court’s analysis is a thor-
ough consideration of the opinions of the parties’
appraisers, Joseph Kettell, for Wheelabrator, and Mark
Pomykacz, for the city. The trial court noted that both
appraisers ‘‘relied primarily on the [discounted cash
flow] income approach [because] the subject facility is
a special purpose type property in which there is no
market from which to develop comparables.’’ After
reviewing their reports and testimony, however, the
trial court became ‘‘convince[d] . . . that . . . the
reproduction cost approach is the only credible
approach to use in this case in order to arrive at a [fair
market value] of the subject property’’ because ‘‘[i]t
takes the facility as it existed on October 1, 2008.’’9
The trial court then determined that the value of the
property under that approach was $314,017,430. See
also part II of this concurring opinion.
In electing to use the reproduction cost approach,
the trial court acknowledged that both appraisers had
relied ‘‘primarily’’ on the discounted cash flow approach
because they recognized that the property’s unique and
specialized use rendered it ‘‘difficult to adapt the classic
concept of market value’’ for income producing prop-
erty, namely, market rent. The trial court rejected both
appraisers’ opinions, concluding that the ‘‘process used
in the [discounted cash flow] income approach lacks
credibility’’ for multiple reasons that it discussed at
great length, including: (1) ‘‘two experienced and
knowledgable appraisers who are given the same basic
facts and who use the same income approach would
not be over [$2 million] apart in their valuation of the
subject property’’; (2) Kettell’s opinion, using a thirty
year holding period and fifty year life expectancy of
the facility, lacked credibility insofar as it called for
large plant maintenance and capital expenditures right
up to the point of the property becoming worthless at
the end of that period in 2038; (3) the estimate was not
a ‘‘[direct]’’ valuation of ‘‘the real and personal property
which are the subject of these [tax] appeals’’; (4) Ket-
tell’s approach utilized C corporation income tax con-
siderations that appeared inapplicable to the appraisal
of real estate generally, and to the property specifically,
which is owned by a limited partnership; and (5) Kettell
deducted only $2.3 million in ‘‘working capital’’ from
the intangible items that are part of Wheelabrator’s
overall business value, despite the fact that ‘‘[w]orking
capital, as recognized by both appraisers, represents
only a portion of the intangibles of a going concern,’’
while Pomykacz found nearly $15.5 million in intangi-
bles, including working capital, its workforce, its com-
puter software, and its operational manuals. Ultimately,
the trial court found that, ‘‘although [both appraisers]
used the [discounted cash flow] income approach as
their primary method to arrive at the value of [Wheela-
brator’s] real and personal property, their contrasting
conclusions leave a lot to the imagination.’’ In my view,
this detailed analysis, grounded in the record of this
case, demonstrates that the trial court properly exer-
cised its considerable discretion to consider, but not
utilize, the discounted cash flow approach, rather than
to reject its use outright as a matter of law.
I, therefore, respectfully disagree with the majority’s
conclusion that this determination by the trial court
amounts to an improper failure to consider discounted
cash flow—as a matter of law or otherwise—that pro-
vides a basis for reversal. In holding that the trial court
rejected the discounted cash flow method as a matter
of law, the majority focuses on aspects of the trial
court’s decision positing that ‘‘problems with the use
of the approach itself’’ caused it to lack credibility,
rather than the implementation of the approach by
expert witnesses whom the trial court acknowledged to
be ‘‘experienced and knowledgable . . . .’’ (Emphasis
omitted.) This, however, is a distinction without a differ-
ence when it comes to reviewing the trial court’s deci-
sion not to utilize the discounted cash flow method of
property valuation, insofar as that determination was
squarely grounded in the trial court’s assessment of the
evidence in this case. The trial court’s obligation here
was to consider the evidence introduced by the parties
through their expert appraisers, including their prof-
fered approaches to property valuation, and make a
reasoned determination about which approach to apply
given the facts of this case. See Gebrian v. Bristol
Redevelopment Agency, 171 Conn. 565, 571, 370 A.2d
1055 (1976) (‘‘[t]he value placed on the land by the court
is a matter of fact and cannot be changed on appeal
unless it is clear that the court failed to weigh an ele-
ment of value which properly should have been consid-
ered’’); Aetna Life Ins. Co. v. Middletown, 77 Conn.
App. 21, 33, 822 A.2d 330 (The court noted that General
Statutes § 12-63b ‘‘only requires . . . that the court give
consideration to the enumerated methods to the extent
applicable with respect to [rental income real] property.
It does not mandate that a particular method must be
utilized or otherwise serve to limit the court’s discretion
to choose the method that it believes will result in the
fairest approximation of the subject property’s value.’’
[Emphasis omitted.]), cert. denied, 265 Conn. 901, 829
A.2d 419 (2003); Grossomanides v. Wethersfield, 33
Conn. App. 511, 513–16, 636 A.2d 867 (1994) (reversing
decision of trial court because it improperly deemed
report of plaintiff’s appraiser to be ‘‘irrelevant’’ insofar
as ‘‘there is no difference between the definition of
‘lease fee title’ as used in the report and defined therein
and the definition of a fee simple estate,’’ and that its
decision to ‘‘[discount] the testimony of the plaintiff’s
appraiser [was] for the same improper reason it deemed
his appraisal report irrelevant’’). Although the dis-
counted cash flow income approach is a recognized
method for the valuation of real property in appropriate
cases; see footnote 2 of this concurring opinion; neither
Wheelabrator nor the majority cites any authority ren-
dering its use mandatory with respect to properties
like that of Wheelabrator. Indeed, the majority’s own
instructions for remand specifically emphasize that the
trial court is not required to use the discounted cash
flow approach at the new trial. Thus, I respectfully
disagree with the majority’s conclusion that the trial
court’s decision not to employ the discounted cash flow
approach by itself warrants a new trial.
More globally, the majority’s decision to reverse the
judgment of the trial court, despite its detailed consider-
ation and rejection of the discounted cash flow
approach on the record of this case, appears to under-
mine our state’s long established body of case law pro-
viding that, in ‘‘actions requiring . . . a valuation of
property, the trial court is charged with the duty of
making an independent valuation of the property
involved. . . . [N]o one method of valuation is control-
ling and . . . the [court] may select the one most
appropriate in the case before [it]. . . . Moreover, a
variety of factors may be considered by the trial court
in assessing the value of such property. . . . [T]he
trier arrives at his own conclusions by weighing the
opinions of the appraisers, the claims of the parties,
and his own general knowledge of the elements going to
establish value, and then employs the most appropriate
method of determining valuation. . . . The trial court
has broad discretion in reaching such conclusion, and
[its] determination is reviewable only if [it] misapplies
or gives an improper effect to any test or consideration
which it was [its] duty to regard.’’10 (Emphasis added;
internal quotation marks omitted.) Sheridan v. Kill-
ingly, supra, 278 Conn. 259. Further, the trial court has
the discretion to accept or reject the experts’ testimony
in this regard in whole or in part. See, e.g., First Bethel
Associates v. Bethel, 231 Conn. 731, 741, 651 A.2d 1279
(1995); Stamford Apartments Co. v. Stamford, 203
Conn. 586, 593–94, 525 A.2d 1327 (1987). Put differently,
‘‘[t]he trial court has the right to accept so much of the
testimony of the experts and the recognized appraisal
methods which they employed as [it] finds applicable
. . . .’’ Greenfield Development Co. of Fairfield v.
Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977). Ulti-
mately, ‘‘[o]n appeal, the scope of our review is limited
because it is a question of fact for the trier as to whether
the method used for valuation appears in reason and
logic to accomplish a just result.’’ First Bethel Associ-
ates v. Bethel, supra, 738.
Thus, I view the trial court’s election not to apply
the discounted cash flow approach as a matter firmly
within its discretion, which has long been settled to
extend to its choice of the method of valuing the prop-
erty unless cabined by a ‘‘generally applicable rule of
law . . . .’’ Breezy Knoll Assn., Inc. v. Morris, 286
Conn. 766, 776, 946 A.2d 215 (2008); accord Sheridan
v. Killingly, supra, 278 Conn. 260 (The court applied
plenary review because, ‘‘contrary to the plaintiff’s
claim, the trial court did not simply conclude that a
comparable sales approach to valuing the leasehold
interest for purposes of assessing that value against the
plaintiff was inappropriate for this particular property.
Rather, the court stated unequivocally that, as a gener-
ally applicable rule of law, the value of a leasehold
interest cannot be attributed to the lessor when valuing
the lessor’s property interest for assessment pur-
poses.’’). For example, in Stamford Apartments Co. v.
Stamford, supra, 203 Conn. 593–94, this court rejected
a claim that the trial court improperly found that ‘‘the
comparable sales method of evaluation, offered by the
defendant’s appraiser, was inappropriate’’ because ‘‘the
trial court had the right to accept so much of the testi-
mony of the experts and the recognized appraisal meth-
ods which they employed as [it] finds applicable’’ and
it ‘‘specifically found that the most appropriate method
of valuation was the capitalization of actual net income
method, and explained why it rejected the testimony of
the defendant’s appraiser.’’ (Emphasis omitted; internal
quotation marks omitted.)
Similarly, in Schnier v. Ives, 162 Conn. 171, 177, 293
A.2d 1 (1972), this court rejected the Highway Commis-
sioner’s claim that a state referee had adopted an
improper method of valuing a property by refusing to
consider the price at which the plaintiff had purchased
it six months prior to the taking as ‘‘the best evidence
of its value on the day of taking and in completely
disregarding and overlooking the significance of this
sale which preceded the condemnation date by six
months.’’ This court observed that, although the referee
had properly admitted the recent purchase price into
evidence, ‘‘[h]e did not, however, employ it in any
method used by him to determine valuation. He was
not required to do this, since the trier arrives at his
own conclusion as to the value of land by weighing the
opinion of the appraisers, the claims of the parties in
the light of all the circumstances in evidence bearing
on value and his own general knowledge of the elements
going to establish value . . . .’’11 Id., 177–78. In my view,
the majority’s decision to reverse the decision of the
trial court on the ground that it declined to apply the
discounted cash flow income approach—despite giving
ample reasons grounded in the record of the present
case for that decision—is a major sea change in our
state’s case law affording our trial courts the discretion
to select the appropriate valuation method when mak-
ing the intensely factual determination of a proper-
ty’s value.
II
The trial court’s discretion in property valuation mat-
ters is, however, not absolute. Although I conclude that
the trial court did not abuse its discretion in declining
to apply the discounted cash flow approach in valuing
Wheelabrator’s property, I still must consider whether
the record factually supports the trial court’s valuation
of Wheelabrator’s property under the reproduction cost
approach that it adopted. See footnote 13 of this concur-
ring opinion. ‘‘Valuation is a matter of fact to be deter-
mined by the trier’s independent judgment.’’ (Internal
quotation marks omitted.) Abington, LLC v. Avon, 101
Conn. App. 709, 715, 922 A.2d 1148 (2007). In 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. . . . 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. . . . Addition-
ally, [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.’’ (Citations omitted; internal quotation
marks omitted.) Redding Life Care, LLC v. Redding,
supra, 308 Conn. 100–101.
Having reviewed the record, I agree with Wheela-
brator’s claim that the trial court improperly included
Wheelabrator’s personal property in its valuation of
the real property. As stated previously, the trial court
elected to apply the reproduction cost approach to
value Wheelabrator’s property, and followed many of
the calculations utilized by Pomykacz, the city’s
appraiser, to arrive at that valuation. Specifically, in
crediting the reproduction cost value calculated by
Pomykacz, the trial court accepted the historical costs
of construction of $241,949,000, declined to credit his
proffered developer’s profit of 15 percent, and applied
his suggested trend factor of 2.08 percent in accordance
with the Handy-Whitman index12 to arrive at a ‘‘repro-
duction cost new’’ valuation of $503,253,920. The trial
court then decreased that value by 38 percent for depre-
ciation in accordance with Pomykacz’ estimation to
arrive at a present value, as of October 1, 2008, of
$312,017,430, and added back the stipulated land value
of $2 million to arrive at a total real property value of
$314,017,430. The trial court stated in a footnote that
this value did not ‘‘include personal property since the
cost valuation is not based upon the valuation of a
going concern.’’
Notwithstanding this footnote in the memorandum
of decision, I am left with a ‘‘definite and firm convic-
tion’’ that the trial court committed a mistake in its
reproduction cost calculations. See Redding Life Care,
LLC v. Redding, supra, 308 Conn. 101. As the trial court
stated in its memorandum of decision, with respect to
the 2011 tax appeal, it is undisputed that the value
of Wheelabrator’s personal property was $56,873,060.
Although the cost approach, as described in Pomykacz’
report, requires an adjustment for the value of personal
property, his report does not indicate where that adjust-
ment was made, and the trial court’s memorandum of
decision follows suit, insofar as the sole basis stated by
the trial court for discounting Pomykacz’ reproduction
cost value was the exclusion of a developer’s profit.
Indeed, consistent with his report, Pomykacz testified
that his overall valuation of the entire property of
$357,500,000 did not distinguish between real and per-
sonal property. This failure to account for more than
$56 million in personal property, in accordance with
Pomykacz’ own stated approach, leads me to conclude
that the trial court’s calculation of the real property’s
value was clearly erroneous. Accordingly, I agree with
the majority that a new trial is required, at which the
trial court ‘‘must determine whether the experts’
appraisals of the property include the value of the per-
sonal property and allocate the taxes on the real and
personal property accordingly.’’13
I, therefore, concur in the judgment.
1
Consistent with the majority opinion, all references to Wheelabrator
within this opinion include the other plaintiffs in the present case, namely,
United States Bank National Association, James E. Mogavero, and Waste
To Energy I, LLC. See footnote 2 of the majority opinion.
2
By way of background, I note that discounted cash flow ‘‘is an accepted
method for determining the present value of real property’’ under the income
capitalization approach to valuation. (Internal quotation marks omitted.)
Heather Lyn Ltd. Partnership v. Griswold, 38 Conn. App. 158, 162, 659
A.2d 740 (1995); see also Newbury Commons Ltd. Partnership v. Stamford,
226 Conn. 92, 100, 626 A.2d 1292 (1993); Appraisal Institute, The Appraisal
of Real Estate (10th Ed. 1992) pp. 420–21; Dictionary of Real Estate Appraisal
(1984) p. 94. ‘‘ ‘The income capitalization approach to value consists of
methods, techniques, and mathematical procedures that an appraiser uses to
analyze a property’s capacity to generate benefits (i.e., usually the monetary
benefits of income and reversion) and convert these benefits into an indica-
tion of present value.’ Appraisal Institute, [supra] p. 409.’’ Heather Lyn Ltd.
Partnership v. Griswold, supra, 162–63.
3
Although not dispositive to my analysis, I respectfully disagree with the
majority’s reliance on principles governing the interpretation of judgments
as written instruments. See, e.g., Ottiano v. Shetucket Plumbing Supply
Co., 61 Conn. App. 648, 652, 767 A.2d 128 (2001). In my view, these principles
are inapplicable because this is not a case wherein we are trying to determine
whether a trial court properly enforced or implemented the terms of a
previously rendered court order. See, e.g., Sosin v. Sosin, 300 Conn. 205,
217–20, 14 A.3d 307 (2011) (whether trial court’s order was improper modifi-
cation of prior judgment of dissolution); State v. Denya, 294 Conn. 516,
531–34, 986 A.2d 260 (2010) (whether trial court’s probation order gave
office of adult probation discretion to discontinue electronic monitoring of
defendant). In my view, what matters, as in any direct appeal challenging
the decision of a lower court, is the nature of the ruling under review, not
the subjective intent of the tribunal.
4
In contrast to an income capitalization approach that ‘‘values property on
the basis of the property’s income producing potential,’’ the ‘‘going concern
approach, by comparison, is not a method of valuing real estate, but a
method of valuing a going concern, which may include real estate as one
of its components. . . . [T]he value of a going concern is comprised of (1)
real property, (2) tangible personal property (furniture, fixtures, equipment
and inventory), and (3) intangible personal property, which includes residual
intangibles. . . . Simply put, the calculation necessarily involve[s] an alloca-
tion among the component parts of real property and tangible and intangible
[personal property]. . . . Included in the residual intangible category is
capitalized economic profit, or business enterprise value, which is defined
as the present worth of an entrepreneur’s economic (pure) profit expecta-
tion. . . . In determining the value of a going concern, an acceptable method
of calculation is to apply an income capitalization approach to the income
stream of the business. . . . In the income capitalization approach [for
valuing a going concern], because the capitalized income stream will most
likely reflect income to [the going concern], all components of net operating
income not attributable to the real estate must be removed. The difficulty
of these assignments does not relieve the appraiser of the responsibility to
treat the tangible and intangible [personal] property. Not to do so produces
either use value or the value of [the going concern]; neither is the market
value of the fee simple estate in real property. . . . Thus, although both
real property and going concerns can be valued on the basis of their income
producing potential, the method for doing so, and the resulting valuations,
are not equivalent. Specifically, when a going concern is valued under the
income approach, that value pertains to the market value of the total assets
of the business, of which real property is but one component. In order to
determine the value of the real estate associated with that going concern,
the values of the other components of the total assets of the business must
be subtracted from the overall value.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Redding Life Care, LLC v. Redding,
supra, 308 Conn. 95–96 n.9, citing Appraisal Institute, The Appraisal of Real
Estate (12th Ed. 2001) pp. 641–44.
5
In particular, we noted that the trial court ‘‘specifically questioned the
percentage by which [the appraiser] depreciated [the care facility’s] furni-
ture, fixtures and equipment, the simplistic formula [he] used to calculate
business value, and [his] failure to recognize [the care facility’s] state of
operation when it first opened. The trial court also rejected [the appraiser’s]
unsupported valuation of intangibles. Any one of these flaws would have
constituted sufficient grounds for the trial court to have rejected [the apprais-
er’s] appraisal method as unpersuasive. Simply put, the trial court rejected
[the appraiser’s] appraisal as not credible because it was premised on formu-
las and calculations that failed to value [the care facility] accurately.’’ (Foot-
note omitted.) Redding Life Care, LLC v. Redding, supra, 308 Conn. 103–104.
6
To this end, I disagree with Wheelabrator’s reliance on numerous deci-
sions in other tax appeals demonstrating that the trial court in the present
case, Hon. Arnold W. Aronson, judge trial referee, ‘‘has repeatedly and
consistently rejected the [discounted cash flow] income approach as a
method of valuing real estate,’’ including when ‘‘both [parties’] litigation
appraisers testified it was the most appropriate method to value the property
at issue.’’ See, e.g., Dominion Nuclear v. Waterford, Superior Court, judicial
district of New London, Docket No. CV-03-0566126-S (November 8, 2007)
(valuation of nuclear power plant). Because we are solely concerned with
the trial court’s decision in the present case, I decline Wheelabrator’s invita-
tion to use these other decisions as, in essence, habit evidence of some
kind of generalized antipathy, harbored by the trial court, toward the dis-
counted cash flow approach.
7
The trial court issued this articulation in response to an order from this
court granting in part the city’s motion for review of the trial court’s denial
of the city’s motion for an articulation on this point. See Practice Book
§§ 66-5 and 66-7.
8
I acknowledge that, in footnote 22 of its memorandum of decision, the
trial court quoted a New Jersey Tax Court case for the colorfully stated
proposition that ‘‘the courts have not always discussed the discounted cash
flow analysis . . . as a method for arriving at true market value for real
estate in the most positive terms,’’ and had described the discounted cash
flow ‘‘method, as applied to tax valuation proceedings, [as] an amalgam of
interdependent, attenuated assumptions of limited probative value. What-
ever may be its utility in other contexts, its use in this case can only be
described as an exercise in financial haruspication.’’ (Emphasis added;
internal quotation marks omitted.) Tamburelli Properties Assn. v. Cresskill,
15 N.J. Tax 629, 643 (1996), aff’d, 308 N.J. Super. 326, 705 A.2d 1270 (App.
Div. 1998), citing University Plaza Realty Corp. v. Hackensack, 12 N.J. Tax
354, 368 (1992), aff’d, 264 N.J. Super. 353, 624 A.2d 1000 (App. Div. 1993).
I do not view these quotations from trial level courts in a sister state as
warranting a conclusion that the trial court in the present case rejected the
discounted cash flow method as a matter of law. Instead, I view this footnote
as nothing more than a tangent that must be considered in the context of
the trial court’s thorough analysis of the reports and testimony of the apprais-
ers in the present case. Indeed, had the trial court intended to bar the use
of discounted cash flow as a matter of law, it surely would not have cited
Tamburelli Properties Assn., which went on to state that ‘‘the reservations
of the court in using the [discounted cash flow] method in prior cases are
not warranted in this instance. [The trial court’s] decision in University
Plaza Realty Corp. was based on specific facts and circumstances that do
not exist here.’’ Tamburelli Properties Assn. v. Cresskill, supra, 643.
9
The trial court rejected the use of the replacement cost approach because
it deemed the reproduction cost approach to be more reflective of the
property as it actually existed on the valuation date, rather than ‘‘that of a
newly constructed modern facility which did not exist’’ and that reflects a
‘‘purchaser’s potential future use,’’ rather than ‘‘the current use of the subject
property . . . .’’
10
For early statements of this venerable rule, see, for example, Moss v.
New Haven Redevelopment Agency, 146 Conn. 421, 425–26, 151 A.2d 693
(1959), and Appeal of Cohen, 117 Conn. 75, 85–86, 166 A. 747 (1933).
11
Other examples of the trial court’s discretion in this regard abound.
See, e.g., Aetna Life Ins. Co. v. Middletown, supra, 77 Conn. App. 33–34
(concluding that trial court properly gave ‘‘serious consideration’’ to ‘‘several
methods’’ of rental property valuation enumerated in § 12-63b, before choos-
ing ‘‘the cost approach as the best method for valuing the subject property’’
and noting that trial court ‘‘gave ample consideration to the replacement
cost approach but, ultimately, given the particular circumstances presented
. . . chose to adopt reproduction cost as the fairest and most accurate
method of determining the subject property’s value under the cost
approach’’); see also Greenfield Development Co. of Fairfield v. Wood, supra,
172 Conn. 450–51 (trial court did not abuse discretion by valuing entire
property at its highest and best use, rather than following appraisal that
broke land into differently valued parcels based on their ‘‘degrees of wetness,
elevation and terrain’’); Connecticut Printers, Inc. v. Redevelopment Agency,
159 Conn. 407, 413–14, 270 A.2d 549 (1970) (rejecting property owner’s
claims that trial court improperly rejected ‘‘appropriate’’ reproduction cost
approach for valuing its building ‘‘because of a failure to understand the
method’’ and that trial court ‘‘was required, as a matter of law, to apply the
reproduction less depreciation method of valuation to property devoted to
a special commercial use,’’ given his own expert’s testimony that ‘‘ ‘the
income approach is the reflection of the value of the property’ ’’).
12
Pomykacz’ report states that the Handy-Whitman trend index is ‘‘[t]he
most commonly accepted and widely acknowledged trend index within the
electric utility industry’’ for estimation of the reproduction cost new. The
Handy-Whitman index provides ‘‘index numbers for various construction,
material, and labor costs of building, electric utility, and gas utility construc-
tion for six different regions in the [United States] from 1912 to present,’’
accounting for factors such as changes in material costs and the value of
the dollar. These indices are applied ‘‘[to trend] forward the original historical
cost to calculate the [r]eproduction [c]ost [n]ew . . . .’’
13
I note that, in part III of its opinion, the majority acknowledges, but
need not decide this issue given that it ordered a new trial in accordance
with part II of its opinion. I further note that I agree with the majority’s
thoughtful resolution of the issues in parts IV, VI, and VII of its opinion
with respect to guidance for issues that may arise on remand.