Digital 60 & 80 Merritt, LLC v. Board of Assessment Appeals

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DIGITAL 60 & 80 MERRITT, LLC v. BOARD OF
ASSESSMENT APPEALS OF THE
TOWN OF TRUMBULL ET AL.
(AC 44296)
Alvord, Prescott and DiPentima, Js.
Syllabus
The defendant town of Trumbull and its Board of Assessment Appeals
appealed to this court from the judgment of the trial court sustaining
the plaintiff’s appeals from the decisions of the board, which upheld
the town’s tax assessments levied against the plaintiff’s real property.
In 2010, the plaintiff purchased the real property with the intent of
leasing it out as a data center, a location to house and secure electronic
data. It organized the building into colocation suites, each of which
were occupied by multiple users. The plaintiff provided the space, the
raised floors, power, cooling, Internet connectivity, security, and the
redundancy required to store the electronic data, and the colocation
customers either provided their own computers or leased them from
the plaintiff. In 2011, the plaintiff decided to remediate and expand the
property to, inter alia, build two additional data suites, Suite 210 and
Suite 220. The plaintiff intended each suite to be occupied by a single
wholesale customer, who would supply its own computers and racks.
The plaintiff, however, was unable to find wholesale customers for the
new suites and, by mid-2013, it was leasing space within Suite 210 to
colocation customers. The construction on Suite 220 was never com-
pleted. By the time of trial, it remained raw space with only an unfinished
concrete floor, walls, and a ceiling in place. As a result, the plaintiff
claimed that the suite was unfit to be leased even as powered base
building (PBB) space, which would require the plaintiff to supply a
space with completed exterior construction, power, and connectivity,
while the customer would build out the interior to its own specifications.
The town assessed the property as part of its revaluation for its 2011
grand list. It then conducted interim reassessments of the property in
2013 and 2014, pursuant to the applicable statute (§ 12-53a), to take into
account the new construction. Following these reassessments, the town
assessor determined that the fair market value of the property, based
on its physical condition as of October 1, 2013, and October 1, 2014,
respectively, and market conditions as of October 1, 2011, was approxi-
mately $145,446,000. The plaintiff appealed the assessor’s 2013 and 2014
valuations to the board, which denied its appeals. The plaintiff then
appealed to the trial court, which found that the fair market value of
the property, based on its physical condition as of October 1, 2013, and
October 1, 2014, and market conditions as of October 1, 2011, was
$109,000,000, and, accordingly, it sustained the plaintiff’s appeals with
respect to its claims of excessive valuation. On the defendants’ joint
appeal to this court, held:
1. The trial court’s determination that Suite 220 had no income and no
income potential in 2011 was not clearly erroneous:
a. Contrary to the defendants’ claim, there was evidence in the record
to support the trial court’s factual finding that there was no market for
Suite 220 in Trumbull in 2011, namely, the testimony of L, the appraiser
serving as the plaintiff’s trial expert, and D, one of the plaintiff’s execu-
tives, which the court found to be credible.
b. The defendant’s argument that Suite 220 clearly added value to the
property, as allegedly confirmed by L’s cost approach analysis, rested
on a faulty premise: the trial court found that the income capitalization
approach, rather than the cost approach, was the most reliable and
appropriate valuation method for the property, and the defendants con-
ceded that, under such an approach, the income producing potential of
the suite was determinative of its value; accordingly, because there was
evidence in the record that there was no actual or market rent for Suite
220, this court could not conclude that the trial court’s finding that no
income potential existed was erroneous.
c. Despite the defendants’ request, this court declined to usurp the role
of the trial court and reweigh the evidence relating to the market for
Suite 220 in Trumbull in 2011 in their favor, as such evidence was before
the trial court and carefully considered by it, and it was the role of the
trial court to determine the credibility of such evidence.
d. Contrary to the defendants’ claim, it was not improper for the trial
court to consider evidence of the Trumbull data center market in 2013
or 2014 in determining that there was no market for Suite 220 in Trumbull
in 2011: that evidence was relevant because S, the appraiser serving as
the defendants’ trial expert, considered information regarding market
rent and market conditions through October 1, 2014, in his analysis;
moreover, although the trial court referenced the plaintiff’s argument
concerning the lack of success in renting the suite within the years
immediately prior to trial, it made clear that such argument was not
material to its decision and that it instead relied on evidence of the data
market in Trumbull in 2011, 2013 and 2014 in determining that there was
no market for Suite 220 as of the revaluation date; furthermore, the
defendants failed to provide this court with any legal support for their
argument that the trial court’s consideration of the market through S’s
2014 cutoff date was improper; accordingly, the trial court did not err in
concluding that none of the evidence credibly supported the defendants’
claim that Suite 220 was marketable as PBB space in 2011, 2013 and 2014.
e. Contrary to the defendants’ assertion, the trial court’s finding that
there was no market for Suite 220 was not inconsistent with its market
rent analysis: evidence in the record, namely, the plaintiff’s investment
committee memoranda and D’s testimony, supported the trial court’s
conclusion that any market for the property would lie exclusively with
Connecticut based customers; moreover, although the court found that
the Trumbull market was comparable to the Boston market with respect
to the size of potential tenants, it determined that demand in Trumbull
was limited by the inherent characteristics of the Connecticut market,
which finding was not unfounded or contrary to the trial court’s market
rent analysis.
f. Despite the defendants’ claim, there was evidence in the record indicat-
ing that Suite 220’s square footage made it unmarketable as PBB space,
including D’s and L’s testimony, which the trial court found to be credible,
and the plaintiff’s form 10-K annual reports, filed with the Securities and
Exchange Commission in 2011 and 2013, which included information
regarding the average number of total square footage of the plaintiff’s
new and renewal PBB leases.
2. There was sufficient evidence in the record to support the trial court’s
determination that the highest and best use of Suite 210 was as wholesale
space: although the trial court credited S’s testimony that colocation
was becoming more popular, it determined that such testimony did not
preclude it from agreeing with L’s conclusion that the highest and best
use of the suite was as wholesale space, especially in light of D’s testi-
mony regarding the various factors that made colocation rentals less
desirable than wholesale rentals; moreover, contrary to the defendants’
assertion, the trial court properly considered Suite 210’s actual rent in
determining its fair market value, however, because the existing leases
were for colocation customers, the court applied market rental rates to
determine the suite’s fair market value as wholesale space; furthermore,
the court’s conclusion that the highest and best use of Suite 210 was
as wholesale space did not contradict its conclusion that there was no
market for PBB space in Trumbull in 2011, as such conclusion did
not preclude the court from also finding that there was demand for a
wholesale lease of a fully built out suite, like Suite 210.
3. The trial court’s application of a capitalization rate of 8 percent to the
property’s net income in determining its market value was supported
by evidence in the record: the trial court determined that the capitaliza-
tion rate proposed by L was essentially correct; moreover, in making its
determination, the trial court properly gave credence to one appraiser’s
method of calculating the capitalization rate over the other’s and deter-
mined an appropriate capitalization rate based on the evidence in the
record, which included information regarding capitalization rates for
various other transactions throughout the country that were detailed in
industry newsletters and reports; accordingly, to arrive at its capitaliza-
tion rate, the trial court adjusted the rate proposed by L to ensure
that sufficient consideration was given to the effect of the electrical
infrastructure installed on the property during its remediation and expan-
sion.
4. Contrary to the defendants’ assertions, the trial court’s alleged failure to
consider the plaintiff’s internal property valuations did not make its
determination of the fair market value of the property clearly erroneous:
the trial court determined that the plaintiff’s 10-K annual reports for
2013 and 2014 reflected the book value of the property, rather than the
fair market value, and, as a result, such statements were not relevant
to its calculations; moreover, the trial court determined that the valuation
set forth in the plaintiff’s 2014 impairment analysis of the property,
which was based on optimistic assumptions and a best case scenario
and included the value of various items of personal property located
on the property, was consistent with its own valuation; accordingly, the
trial court considered, but did not place weight on, the plaintiff’s internal
valuations.
Argued December 1, 2021—officially released April 5, 2022
Procedural History
Appeals from the decisions of the named defendant
upholding the valuations made by the assessor of the
defendant town of Trumbull of certain of the plaintiff’s
real property, brought to the Superior Court in the judi-
cial district of Fairfield and transferred to the judicial
district of New Britain, where the appeals were consoli-
dated and tried to the court, Hon. Stephen F. Frazzini,
judge trial referee; judgments sustaining the appeals,
from which the defendants filed a joint appeal with this
court. Affirmed.
Mario F. Coppola, with whom were Matthew L.
Studer and, on the brief, Gregory S. Kimmel, for the
defendants (appellants).
Charles D. Ray, with whom were Shawn S. Smith
and, on the brief, Angela M. Healey, for the plaintiff
(appellee).
Opinion
DiPENTIMA, J. In this joint real estate tax appeal,
the defendants, the Board of Assessment Appeals of
the Town of Trumbull (board) and the town of Trumbull
(town), appeal from the judgments of the trial court
sustaining the appeals1 brought by the plaintiff, Digital
60 & 80 Merritt, LLC,2 and ordering the reduction of the
defendants’ tax assessment levied against the plaintiff’s
property located at 60 Merritt Boulevard in Trumbull
(property). On appeal, the defendants challenge the
court’s determination of the fair market value of the
property, which they claim is based on certain clearly
erroneous factual findings made by the court. Specifi-
cally, the defendants claim that the court erred in (1)
failing to impute income to Suite 220 of the property, (2)
valuing Suite 210 of the property at the suite’s wholesale
rate, (3) applying a capitalization rate of 8 percent, and
(4) disregarding the plaintiff’s internal valuations. We
affirm the judgments of the trial court.
We begin by setting forth the following relevant facts,
as found by the trial court, in addition to the relevant
procedural history.3 The property includes five acres of
land on which a building of approximately 200,000
square feet4 sits (building). The building is connected
to a building on another property, located at 80 Merritt
Boulevard in Trumbull, which is a separate tax parcel
not subject to this appeal. The buildings share a com-
mon entrance, security station, and parking lot.
The property was originally the site of a printing
company facility, developed in the late 1960s. NASDAQ
Stock Market, Inc. (NASDAQ), bought the property in
1996, demolished the printing facility, and, in 1997, con-
structed the building, a corporate data center, on the
site. NASDAQ connected the building to the building
located at 80 Merritt Boulevard, which it also owned
at the time. In August, 2006, NASDAQ sold both the
property and 80 Merritt Boulevard to Sentinel Proper-
ties-Trumbull, LLC (Sentinel). Sentinel then began con-
verting the property into a multi-tenant data center facil-
ity. In 2010, the plaintiff bought both the property and
80 Merritt Boulevard. The plaintiff undertook an expan-
sion of the property, constructing a 70,000 square foot
addition to the building, which was completed in late
2012 or early 2013.
A ‘‘data center’’ is a building, or a portion thereof,
that various organizations use to house and secure elec-
tronic data. Data is stored on computers, often stacked
several shelves high in storage racks. These racks sit
on a ‘‘ ‘raised floor’ ’’ that is constructed of perforated
tile, sitting approximately three feet above the actual
floor. Between the raised floor and the actual floor,
power and cooling is installed to supply the computers.
Cooling is a vital feature of a data center, as it prevents
overheating, which can be caused by the large amount
of power supplied to the computers. Another imperative
characteristic of a data center is ‘‘ ‘redundancy.’ ’’
Redundancy refers to the inclusion of a second source
of power, or backup power, to run the computers and
cooling systems in the event that the primary source
of power fails. In other words, components of the elec-
trical system are duplicated to prevent the computers
from going off-line.
A data center can be designed with individual rooms
referred to as data suites. The data center located at
the property is organized into individual data center
suites. An individual data suite within a data center
may have different occupancy arrangements, such as
‘‘wholesale’’ or ‘‘colocation.’’ A wholesale suite is occu-
pied by a single user that provides its own computers
and racks, while the building owner supplies the space,
raised floor, power, cooling, internet connectivity, secu-
rity, and redundancy. A colocation suite, on the other
hand, is occupied by multiple users. Colocation custom-
ers may provide their own computers and racks, or
lease them from the building owner. Like wholesale
customers, colocation customers rely on the building
owner to supply the space, raised floor, power, cooling,
internet connectivity, security, and redundancy.
Space within a data center can also be leased as
‘‘powered shell space,’’ which is a data suite that is not
fully ‘‘built out.’’ Rather, the space is a data suite ‘‘ ‘with
exterior construction completed, available power and
connectivity, but with the interior left as raw space to
be finished by the customer.’ ’’ The plaintiff has trade-
marked this type of space as ‘‘powered base building’’
(PBB) space. When a customer leases PBB space, it
builds out the space to its own specifications while the
building owner provides internet connectivity, power,
security, and redundancy.
Sometime before 2010, the plaintiff privately
approached Sentinel about purchasing its New England
operations, despite the fact that none of Sentinel’s prop-
erties was for sale on the open market at the time. In
2010, the plaintiff and Sentinel entered into a contract
whereby the plaintiff agreed to pay Sentinel $375 million
for two data center properties in Massachusetts in addi-
tion to both the property and 80 Merritt Boulevard in
Trumbull. The sales price included the plaintiff’s pur-
chase of the leases at each property, the workforce in
place, rights of expansion, a time limited noncompete
agreement with Sentinel, and goodwill.
Although the plaintiff believed at the time of purchase
that the property had full redundancy—the capacity to
continue to provide power and cooling if there was a
power outage impairing the primary source of power—
an off-site explosion in early 2010 revealed that this
belief was misguided. The redundancy system did not
perform as anticipated, leaving the property without
power for a short time. The plaintiff hired a third party
to evaluate its electrical system, at which point the
plaintiff learned that the system was undersized and
was incapable of providing the amount of power that
the plaintiff was contractually obligated to provide to
existing customers and that was necessary to operate
the facility safely. Following the third-party evaluation,
the plaintiff learned that the system did not offer any
redundancy. This posed a serious problem for the plain-
tiff. The lack of redundancy violated lease commitments
and subjected the plaintiff to rent credits, reputational
harm, and the possibility of lost customers.5 The plain-
tiff decided to replace the existing electrical system
with its own system, referred to as a Turnkey Data
system. The plaintiff originally estimated that the proj-
ect would cost approximately $20,250,000. The budget
was subsequently increased to $33,521,442 to account
for higher than expected engineering and construction
costs and for costs paid to the utility company to com-
plete off-site work.
In 2011, the plaintiff also decided to build a 70,000
square foot expansion to the property that would con-
tain three data suites—one on the first floor (Suite 110)
and two on the second floor (Suites 210 and 220). The
original budget for the expansion was $27,687,500. An
internal memorandum describing the expansion stated
that the new space would ‘‘ ‘be positioned to attract
financial tenants from Fairfield County’ ’’ and noted that
a current tenant in the original building was considering
moving into the expansion space once it was built and
occupying two suites therein. The memorandum also
provided that the plaintiff projected ‘‘ ‘an average return
on incremental cost of approximately 20 percent’ ’’ from
the expansion, which would ‘‘ ‘[help] increase the over-
all building returns which [would] be diluted by 18
percent because of the [electrical] remediation project.
By building the expansion, [the plaintiff] [would] strive
to increase the building [return on investment] over
time to what it is today, roughly 10 percent.’ ’’ The
expansion budget was also later increased to
$52,962,157. The electrical remediation and the building
expansion were completed by late 2012 or early 2013.
The plaintiff projected that one data suite in the
expansion space would be occupied in the first year
after construction was completed and would produce
additional annual net operating income of more than
$2 million annually. The plaintiff also projected that two
other data suites in the expansion would be occupied
by the end of the second year after construction was
completed, resulting in additional annual net operating
income of $6 million beyond that received from the
original building. As the trial court noted, ‘‘[t]hese rosy
projections, however, proved unfounded.’’ One tenant
did move from the original building to the first suite in
the expansion space, Suite 110, in 2013 but did not
occupy two suites as the plaintiff had hoped. Addition-
ally, the plaintiff was unable to find a wholesale tenant
to lease the second built out suite in the expansion
space, Suite 210. By mid-2013, the plaintiff began leasing
Suite 210 to colocation tenants. The third data suite
within the expansion space was never completely built
out, having only unfinished concrete floors, walls, and
a ceiling in place.
The court explained: ‘‘These disappointed expecta-
tions, including the need to rent the second expansion
suite as colocation space to gain tenants, led [the plain-
tiff] to include [the] property in a 2014 review of ‘poten-
tially underperforming’ properties in its portfolio.’’ As
part of this internal review, the plaintiff completed a
‘‘ ‘dynamic valuation’ ’’ of both the property and 80 Mer-
ritt Boulevard by completing a ten year cash flow analy-
sis based on certain optimistic assumptions. The review
resulted in a valuation of $120 million for the two prop-
erties. The plaintiff’s dynamic valuation process then
required the property to be classified into one of three
categories—hold, further analysis, or sell. The two
properties were placed into the hold category.
The town typically conducts town wide revaluations
of real property in the town every five years, as such
revaluations are required by state law. See General Stat-
utes § 12-62 (b) (1). A revaluation establishes ‘‘the pres-
ent true and actual value’’ of property as of a specific
assessment date. General Statutes § 12-62 (a) (5).
Towns use that information for the purpose of levying
property taxes for the tax assessment year of the revalu-
ation and also for each subsequent tax assessment year
that follows, until the next revaluation. General Statutes
§ 12-62 (b) (1). The town conducted a town wide revalu-
ation effective for the October 1, 2011 grand list.6 The
2011 revaluation assessment, therefore, was applicable
to the 2013 and 2014 tax years, the years at issue in
this tax appeal.7
Pursuant to General Statutes § 12-53a, however, the
town was permitted to conduct an interim reassessment
and change its 2011 assessment to take into account
the new construction on the property—the electrical
remediation and the construction of the expansion—
which occurred after the revaluation date. See General
Statutes § 12-53a (a) (1) (‘‘[c]ompleted new construc-
tion of real estate completed after any assessment date
shall be liable for the payment of municipal taxes based
on the assessed value of such completed new construc-
tion from the date the certificate of occupancy is issued
or the date on which such new construction is first used
for the purpose for which [the] same was constructed,
whichever is the earlier, prorated for the assessment
year in which the new construction is completed’’); see
also ZML 301 Tresser Ltd. Partnership v. Stamford,
67 Conn. App. 697, 699–700, 789 A.2d 538 (‘‘§ 12-53a
. . . authorizes an interim reassessment if a taxpayer
has made physical improvements to the property’’ (foot-
note omitted)), cert. denied, 260 Conn. 902, 793 A.2d
1091 (2002).
For the 2013 and 2014 tax years, the assessor of the
town (assessor) was thus tasked with determining the
fair market value8 of the property based on physical
conditions of the property as of October 1, 2013, and
October 1, 2014, but based on market conditions as of
October 1, 2011. The assessor concluded that the fair
market value of the property as of October 1, 2013, and
October 1, 2014, was approximately $145,446,000.9 The
assessor also concluded that the fair market value of
80 Merritt Boulevard was $18,038,429 as of October 1,
2013, and $18,137,429 as of October 1, 2014. The plaintiff
appealed all four of these valuations and assessments
to the board. The appeals were denied.
The plaintiff then filed two separate appeals from
the decisions of the board in the Superior Court; see
footnote 1 of this opinion; contesting the valuations of
both the property and 80 Merritt Boulevard on the
town’s 2013 and 2014 grand lists and the board’s refusal
to reduce the corresponding tax assessments. In the
first appeal, the plaintiff contested the valuations of the
property and 80 Merritt Boulevard on the town’s 2013
grand list and, in the second appeal, the plaintiff con-
tested the valuations of the property and 80 Merritt
Boulevard on the town’s 2014 grand list. The plaintiff’s
complaints sounded in six counts: (1) excessive valua-
tion of the property, (2) disproportionate tax burden
of the property, (3) wrongful assessment of the prop-
erty, (4) excessive valuation of 80 Merritt Boulevard,
(5) disproportionate tax burden of 80 Merritt Boulevard,
and (6) wrongful assessment of 80 Merritt Boulevard.
The parties subsequently stipulated that, for the pur-
poses of the assessment of 80 Merritt Boulevard on the
town’s 2013 and 2014 grand lists, that tax parcel had a
fair market value of $10,650,000. The plaintiff accord-
ingly withdrew counts four, five, and six of its tax
appeals, which related to the 80 Merritt Boulevard prop-
erty.
Prior to trial, both the plaintiff and the defendants
hired tax appraisers to complete appraisal reports of
the property. The plaintiff hired John Leary of Advisra
Consulting, LLC. The defendants hired Russell Sterling
of Sterling, DiSanto, and Associates. These appraisals
were ‘‘retrospective’’ appraisals, meaning the appraisals
determined the property’s value as of a date in the past.
Appraisal Institute, The Appraisal of Real Estate (12th
Ed. 2001) p. 54. The appraisers sought to determine the
property’s fair market value based on physical condi-
tions of the property as of October 1, 2013, and October
1, 2014, but market conditions as of October 1, 2011. In
completing their reports, the appraisers used different
cutoff dates.10 The court explained the reason for the
differing cutoff dates: ‘‘Sterling maintained that there
was ‘no significant difference’ between market condi-
tions for the property on the revaluation date than on
October 1, 2013, and 2014. . . . He thus used informa-
tion about the building’s tenants, income, and expenses
for 2013 and 2014 and also considered information
about market rents and conditions through October 1,
2014. Leary testified, on the other hand, that market
conditions after 2012 were too different to be consid-
ered for an appraisal based on market conditions
existing in 2011.’’ (Citation omitted; footnote omitted.)
Leary thus established a cutoff date of December 31,
2012.
The appeals from the town’s valuation and assess-
ment of the property on the 2013 and 2014 grand lists
were tried before the court over the course of twenty-
three days between October, 2018, and March, 2019.
The issues presented at trial were whether the property
had been overvalued and, if so, what was the fair market
value of the fee simple interest11 in the property, based
on physical conditions of the property as of October
1, 2013, and October 1, 2014, and based on market
conditions as of October 1, 2011. At trial, the court heard
testimony from Mark DeVestern, the town’s assessor;
Sterling, an appraiser serving as the town’s expert;
Leary, an appraiser serving as the plaintiff’s expert;
David Lucey, the plaintiff’s Vice President Portfolio
Manager for the East Region; and William Eaton, a
Senior Data Center Manager for the plaintiff. On Decem-
ber 19, 2018, the court conducted a site visit to the
property.
In a memorandum of decision dated August 4, 2020,
the court concluded that the ‘‘plaintiff [had] proven
that the property was overvalued for tax assessment
purposes and [was] therefore aggrieved. The court fur-
ther [found] that the fair market value of the fee simple
interest in [the property], reflecting the physical condi-
tion of that property as of October 1, 2013, and October
1, 2014, and based on market conditions as of October
1, 2011, was $109,000,000.’’ In accordance with this con-
clusion, the court sustained the first count of each of
the plaintiff’s appeals.12 The court deemed both the sec-
ond and third counts abandoned for inadequate brief-
ing. The defendants then filed a motion to reargue,
reopen, and set aside the judgments of the trial court.
The court denied the motion and this joint appeal fol-
lowed. Additional facts will be set forth as necessary.
We begin by setting forth the well settled legal princi-
ples underlying a tax appeal brought pursuant to Gen-
eral Statutes § 12-117a, as well as our standard of
review. ‘‘Section 12-117a, which allows taxpayers to
appeal the decisions of municipal boards of tax review
to the Superior Court, provide[s] a method by which
an owner of property may directly call in question the
valuation placed by assessors upon his property . . . .’’
(Internal quotation marks omitted.) Ress v. Suffield, 80
Conn. App. 630, 631–32, 836 A.2d 475 (2003), cert.
denied, 267 Conn. 920, 841 A.2d 1191 (2004). ‘‘In § 12-
117a tax appeals, the trial court tries the matter de novo
and the ultimate question is the ascertainment of the
true and actual value of the [taxpayer’s] property. . . .
At the de novo proceeding, the taxpayer bears the bur-
den of establishing that the assessor has overassessed
its property. . . . Once the taxpayer has demonstrated
aggrievement by proving that its property was overas-
sessed, the trial court [will] then undertake a further
inquiry to determine the amount of the reassessment
that would be just. . . . The trier of fact must arrive
at [its] own conclusions as to the value of [the taxpayer’s
property] by weighing the opinion of the appraisers,
the claims of the parties in light of all the circumstances
in evidence bearing on value, and his own general
knowledge of the elements going to establish value
. . . .’’ (Internal quotation marks omitted.) Aetna Life
Ins. Co. v. Middletown, 77 Conn. App. 21, 26, 822 A.2d
330, cert. denied, 265 Conn. 901, 829 A.2d 419 (2003),
and cert. denied, 265 Conn. 901, 829 A.2d 419 (2003).
‘‘The goal of property valuation is to determine the
present true and actual value of the subject property.
. . . The process of valuation at best is a matter of
approximation.’’ (Citations omitted; internal quotation
marks omitted.) First Bethel Associates v. Bethel, 231
Conn. 731, 738, 651 A.2d 1279 (1995). General Statutes
§ 12-63 provides in relevant part that ‘‘[t]he present true
and actual value . . . shall be deemed by all assessors
and boards of assessment appeals to be the fair market
value thereof . . . .’’
General Statutes § 12-63b governs the valuation of
rental income real property and provides guidance in
producing a valuation that best approximates the true
and actual value of a property. Section 12-63b (a) pro-
vides in relevant part: ‘‘The assessor or board of asses-
sors in any town, at any time, when determining the
present true and actual value of real property as pro-
vided in section 12-63, which property is used primarily
for the purpose of producing rental income . . . shall
determine such value on the basis of an appraisal
. . . .’’ Section 12-63b (a) specifies three different meth-
ods of valuation to determine the true and actual value
of real property: (1) the comparable sales approach,
(2) the income capitalization approach, and (3) the cost
approach. See Walgreen Eastern Co. v. West Hartford,
329 Conn. 484, 497, 187 A.3d 388 (2018); see also Sun
Valley Camping Cooperative, Inc. v. Stafford, 94 Conn.
App. 696, 702, 894 A.2d 349 (2006).
‘‘A property’s highest and best use is commonly
accepted by real estate appraisers as the starting point
for the analysis of its true and actual value. . . .
[U]nder the general rule of property valuation, fair [mar-
ket] value, of necessity, regardless of the method of
valuation, takes into account the highest and best value
of the land. . . . A property’s highest and best use is
commonly defined as the use that will most likely pro-
duce the highest market value, greatest financial return,
or the most profit from the use of a particular piece of
real estate. . . . The highest and best use determina-
tion is inextricably intertwined with the marketplace
because fair 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. . . .
The highest and best use conclusion necessarily affects
the rest of the valuation process because, as the major
factor in determining the scope of the market for the
property, it dictates which methods of valuation are
applicable. Finally, a trier’s determination of a proper-
ty’s highest and best use is a question of fact that we will
not disturb unless it is clearly erroneous.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted.) United Technologies Corp.
v. East Windsor, 262 Conn. 11, 25–26, 807 A.2d 955(2002). Here, both appraisers agreed that the highest
and best use of the property was as a data center.
Both appraisers likewise agreed that, in the present
case, the only appropriate appraisal methods were the
cost approach and the income capitalization approach.
‘‘[N]o one method of valuation is controlling and . . .
the [court] may select the one most appropriate in the
case before [it].’’ (Internal quotation marks omitted.)
Sakon v. Glastonbury, 111 Conn. App. 242, 248–49, 958
A.2d 801 (2008), cert. denied, 290 Conn. 916, 965 A.2d
554 (2009). The court determined, and the defendants
do not challenge on appeal, that the proper method for
assessing the property in this specific case was the
income capitalization approach.
‘‘In the income capitalization approach, an appraiser
analyzes a property’s capacity to generate future bene-
fits and capitalizes the income into an indication of
present value.’’ Appraisal Institute, supra, p. 471. Under
this approach, appraisers ‘‘develop an indication of mar-
ket value by applying a rate or factor to the anticipated
net income from a property. . . . Appraisers arrive at
the anticipated net income by considering the proper-
ty’s actual rental income, as well as the rental income
for comparable properties in the vicinity, property
expenses, and allowances for vacancy and collection
losses.’’ (Citation omitted; internal quotation marks
omitted.) United Technologies Corp. v. East Windsor,
supra, 262 Conn. 17 n.9. The income capitalization
approach produces a valuation using ‘‘capitalization of
net income based on market rent for similar property
. . . .’’ General Statutes § 12-63b (a) (2).
‘‘Section 12-63b (b) explains the meaning of market
rent as it is used in the income capitalization approach.
Specifically, § 12-63b (b) provides: For purposes of sub-
division (2) of subsection (a) of this section and, gener-
ally, in its use as a factor in any appraisal with respect
to real property used primarily for the purpose of pro-
ducing rental income, 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.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Walgreen Eastern Co. v.
West Hartford, supra, 329 Conn. 497. Section 12-63b
(b) ‘‘requires that, in determining a property’s market
rent, the assessor and, therefore, the court, in determin-
ing the fair market value of the property, must consider
both (1) net rent for comparable properties, and (2)
the net rent derived from any existing leases on the
property.’’ (Emphasis omitted; internal quotation marks
omitted.) First Bethel Associates v. Bethel, supra, 231
Conn. 740. This approach ‘‘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.) Fairfield Merrittview Ltd. Partnership v.
Norwalk, 172 Conn. App. 160, 165 n.9, 159 A.3d 684,
cert. denied, 326 Conn. 901, 162 A.3d 724 (2017).
‘‘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 collec-
tion loss from estimated gross income); (4) estimate
fixed and operating expenses and reserves for replace-
ment 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.’’ Sun Valley Camping Cooperative, Inc. v.
Stafford, supra, 94 Conn. App. 702 n.9.
Having set forth the underlying facts and governing
legal principles, we turn to our standard of review on
appeal. ‘‘We review a court’s determination in a tax
appeal pursuant 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 conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Grolier, Inc. v. Danbury, 82 Conn. App.
77, 78, 842 A.2d 621 (2004). ‘‘In making this determina-
tion, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Fairfield Merrittview Ltd. Partner-
ship v. Norwalk, supra, 172 Conn. App. 170.
‘‘We afford wide discretion to the court’s determina-
tion of the value of property in a property tax appeal.
. . . When the court acts as the fact finder, it may
accept or reject evidence regarding valuation as it
deems appropriate.’’ (Citation omitted.) Grolier, Inc. v.
Danbury, supra, 82 Conn. App. 80. ‘‘Because a tax
appeal is heard de novo, a trial court judge is privileged
to adopt whatever testimony he reasonably believes to
be credible.’’ (Internal quotation marks omitted.) Id.,
79. Thus, ‘‘credibility determinations are within the
exclusive province of the court.’’ Ress v. Suffield, supra,
80 Conn. App. 633.
‘‘Conversely, we review de novo a trial court’s deci-
sion 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 deter-
mined 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.’’13
(Internal quotation marks omitted.) Walgreen Eastern
Co. v. West Hartford, supra, 329 Conn. 493–94. Keeping
these well established principles in mind, we turn to
our resolution of the defendants’ claims.
I
The defendants first claim that the court erred in
failing to impute income to Suite 220 of the property.
Specifically, the defendants claim that the court’s fac-
tual finding that Suite 220 had no income potential is
clearly erroneous because (1) Suite 220 adds value to
the property, (2) the record is devoid of testimony that
there was no market for Suite 220 in Trumbull in 2011,
(3) Leary’s assertion that there was no market for Suite
220 was not credible and was contradicted by the fact
that the plaintiff invested millions of dollars into the
suite and actually marketed the suite for lease, (4) the
court considered post hoc information, (5) the court’s
finding that there was no market for Suite 220 is incon-
sistent with its market rent analysis, and (6) the record
is devoid of any evidence indicating that the suite’s
square footage made it unmarketable.14 The plaintiff
contends that the court’s decision not to impute any
income to Suite 220 is not clearly erroneous because
there was evidence in the record that there was no
market for Suite 220 in Trumbull in 2011—namely,
Leary’s testimony, which the court found credible. We
agree with the plaintiff.
The following additional facts are relevant to the
resolution of this claim. Suite 220 is located in the
expansion space of the property. As the suite existed
in 2013 and 2014, it had no raised floor and no sidewalls.
At trial, the parties’ experts disagreed as to the nature
of Suite 220. Leary opined that the suite was not PBB
space because ‘‘ ‘the raised floor and at least the side-
walls would be in place in a [PBB] scenario and not
the unfinished state of Suite 220 . . . as it existed in
2013 and 2014 . . . . Money would have to be spent
to bring the power and fiber connectivity, the raised
floor and the sidewalls to that space in order to lease
it as PBB space.’ ’’ Sterling, the defendants’ expert
appraiser, categorized the suite as PBB space. The court
ultimately concluded that ‘‘nothing in the evidence
rule[d] out Sterling’s characterization of the unbuilt
suite as PBB space.’’
There was also differing testimony at trial about
whether Suite 220 was marketable. As previously noted,
both appraisers determined that the highest and best
use of the property was its continued use as a data
center. Because the highest and best use of the property
was determined to be a data center, Leary testified that
using Suite 220 for general storage would be impractical
considering the security concerns associated with the
operation of a data center.15 At trial, Leary testified that
he did not attribute any potential income to Suite 220
for the 2013 and 2014 tax years because there was
no demand for the suite in Trumbull in 2011. Sterling,
however, imputed potential income in the amount of
$838,450 per year to Suite 220 for the 2013 and 2014
tax years.
In its memorandum of decision, the court ultimately
credited Leary’s assertion that there was no market for
Suite 220 in Trumbull in 2011 and concluded that ‘‘[t]he
evidence showed that there was no income or potential
income from [Suite 220] in 2011 but rather an antici-
pated 100 percent vacancy rate.’’ We address each of
the defendants’ claims attacking this factual finding
in turn.
A
The defendants contend that there is no evidence in
the record to support the court’s factual finding that,
under the market conditions of 2011, Suite 220 had no
income potential. We reject this contention.
At trial, during the following exchange between the
defendants’ counsel and Leary, Leary explained that he
did not allocate any income to Suite 220 based on mar-
ket rental rates in his appraisal report:
‘‘Q. —with regard to Suite 220, is it correct that you
did not attribute any income in your appraisal for Suite
220 as of the ‘13 and ‘14 grand list dates?
‘‘A. That is correct.’’
The defendants’ counsel asked Leary to explain the
market rental rates in his appraisal report:
‘‘Q. So, Mr. Leary, just to clarify for the record and
also help for, for my understanding as well. Gross leasa-
ble area, as referenced in your appraisal, is similar to
finished leasable area. Correct?
‘‘A. No. Huh, okay? The rental rate that I used—90
to 95 dollars per square foot—is a rental rate per square
foot of gross leasable area. When multiplying it times
the area available in the subject building, I am using—
I am multiplying it by the finished leasable area, because
that’s all that’s finished at this point in time. So it’s a—
it’s a unit price per square foot of gross leasable area.
If the other portion of the space were already fit out,
it would be a higher number that I was multiplying it
by. That’s all. It’s, it’s the same unit of comparison:
price per square foot of gross leasable area. . . .
‘‘Q. So, Mr. Leary, we’re looking at the first page on
the board, and after the expansion there was a new
addition at the subject property. The gross leasable area
is 182,766 square feet. Correct?
‘‘A. Will be 182,766 square feet because that includes
the space that’s not yet fit out.
‘‘Q. I understand that you made a distinction between
finished leasable area and unfinished leasable area.
However, the 17,598 square feet in Suite 220 is area
that [the plaintiff] could lease today. Correct?
‘‘A. I doubt it.’’
The court then sought the following clarification
from Leary:
‘‘Q. So . . . your . . . direct capitalization
approach didn’t assign a value to the unfinished space?
‘‘A. Correct. I considered it. Frankly, if you look at
the space, there is only one potential use for that space.
If you see Photo I-12, which will be at this point some
kind of dead storage. As a matter of fact, it looks like
they’re using it partially for that. There’s some old furni-
ture and stuff in there.
‘‘So the question was, do I apply a dead storage rental
to that space? But then, you have to think of the con-
text—within a data center, with all this security and
everything else like that and with raised floor going
into the hallway that leads to this space, would the
other tenants and would the owner want somebody
trucking in and out of here with, you know, old furniture
or whatever would go into a dead storage unit? The
answer to me was absolutely not.
‘‘You, you—[the plaintiff] could not rent to anybody
using it for dead storage and, therefore, I assigned no
rent to it at this point in time.’’
At another point during trial, Leary stated that ‘‘[b]y
2013, 2014, [the plaintiff] discovered that [it] couldn’t
rent [Suite 210, which it] had built out as a wholesale
data center. So [it] reverted to colocation rentals, and
[it] held off on building [Suite 220], because there was
no demand for that data center.’’ The following colloquy
then occurred between the defendants’ counsel and
Leary:
‘‘Q. Mr. Leary, you’ve now, in your last few responses,
talked about market demand for data center—data cen-
ter space in 2013 and ‘14. Correct?
‘‘A. Yes.
‘‘Q. Okay. But you didn’t consider the market for
data center space in 2013 and 2014 in your appraisal.
Correct?
‘‘A. I considered the market demand in 2011. Correct.’’
Counsel for the defendants then indicated that the
average rate per square foot of net rentable area for
new leases rented in 2011 for other properties owned
by the plaintiff was approximately $39 and asked Leary
why he did not impute a market rental rate of this
amount to Suite 220. Leary explained that he had no
idea where the plaintiff’s other leased properties were
located or what the market conditions were in those
locations. Leary testified that he would need to know
the location, size of the space, and the demand in the
marketplace for each leased property to determine
whether the rental rates were an appropriate indicator
of a market rental rate for the purposes of imputing
income to Suite 220. Without further information, Leary
stated that he could not determine if the $39 per square
foot rate was an appropriate indicator of market value
for Suite 220. Leary testified, ‘‘I do know that in Trum-
bull, Connecticut, there’s no market for this space.’’
Lucey also testified regarding the demand for data
center space in the Trumbull market. When asked if
there was ‘‘demand in the market in ‘13 and ‘14 for
another half [suite] of data center space in Trumbull,’’
Lucey responded, ‘‘[n]o.’’
Thus, Leary’s and Lucey’s testimony regarding the
lack of a market for Suite 220 contradicts the defen-
dants’ claim that there is no evidence to support the
court’s finding that there was no market for Suite 220
in Trumbull in 2011. See United Technologies Corp. v.
East Windsor, supra, 262 Conn. 23 (‘‘[a] finding of fact
is clearly erroneous when there is no evidence in the
record to support it’’ (internal quotation marks omit-
ted)). Leary’s and Lucey’s testimony plainly supports
the court’s finding.
B
The defendants next argue that the court’s decision
not to impute income to Suite 220 is clearly erroneous
because ‘‘Suite 220 clearly adds value to the property.’’
The defendants contend that ‘‘Leary’s own cost
approach analysis confirms that Suite 220 contributes
value to the property.’’
The defendants’ argument rests on a faulty premise.
As previously explained, the court found the income
capitalization approach most reliable. Under the
income capitalization approach, the value of the prop-
erty is based on the property’s income producing poten-
tial, considering both actual rent and market rent. See
United Technologies Corp. v. East Windsor, supra, 262
Conn. 17 n.9. Had the court concluded that another
valuation method, such as the cost approach, was most
appropriate, then the value of the suite could have been
determined by its cost. The defendants conceded at
oral argument that the income producing potential of
the suite is determinative of the value of the suite under
the income capitalization approach. Because there was
evidence in the record that there was no actual or mar-
ket rent for Suite 220, we cannot conclude that the
court’s finding that no income potential existed was
clearly erroneous.
C
Despite arguing that there was no evidence in the
record to support the court’s finding that there was no
market for Suite 220 in Trumbull in 2011, the defendants
also argue that the court erred in crediting Leary’s testi-
mony to that effect. Specifically, the defendants argue
that the court erred in crediting Leary’s testimony
because it was contradicted by two pieces of evidence
at trial—the undisputed facts that the plaintiff invested
millions of dollars in the construction of Suite 220 and
actually marketed Suite 220 as leasable space. We
decline to usurp the role of the trial judge.
‘‘The trier of fact must arrive at [its] own conclusions
as to the value of [the taxpayer’s property] by weighing
the opinion of the appraisers . . . .’’ (Internal quotation
marks omitted.) Aetna Life Ins. Co. v. Middletown,
supra, 77 Conn. App. 26. ‘‘It 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 [judge] is privileged to
adopt whatever testimony he reasonably believes to be
credible. . . . On appeal, we do not retry the facts or
pass on the credibility of witnesses.’’ (Internal quotation
marks omitted.) Sakon v. Glastonbury, supra, 111 Conn.
App. 252. ‘‘Because a tax appeal is heard de novo, a trial
court judge is privileged to adopt whatever testimony he
reasonably believes to be credible.’’ (Internal quotation
marks omitted.) Grolier, Inc. v. Danbury, supra, 82
Conn. App. 79. Thus, ‘‘credibility determinations are
within the exclusive province of the court.’’ Ress v.
Suffield, supra, 80 Conn. App. 633.
Evidence that the plaintiff invested money in the con-
struction of the suite and that it marketed the suite was
presented to the court at trial. There was also, however,
testimony from Leary that there was no market for PBB
space in Trumbull in 2011. In concluding that Suite 220
had no income potential, the court carefully considered
all of the evidence before it and clearly credited Leary’s
testimony that there was no market for PBB space in
Trumbull in 2011. Although the defendants essentially
invite this court to reweigh the evidence in its favor
and credit Sterling’s testimony that Suite 220 was rent-
able and capable of generating income based on 2011
market conditions, we decline to do so.16 See Abington,
LLC v. Avon, 101 Conn. App. 709, 719, 922 A.2d 1148(2007) (‘‘[T]he determination of the credibility of expert
witnesses and the weight to be accorded their testimony
is within the province of the trier of facts, who is privi-
leged to adopt whatever testimony he reasonably
believes to be credible. . . . [I]t is the proper function
of the court to give credence to one expert over the
other.’’ (Internal quotation marks omitted.)).
D
The defendants argue that the court’s determination
that there was no market for Suite 220 in Trumbull in
2011 is clearly erroneous because the court relied on
post hoc information in making this determination. We
reject this claim.
After concluding that Suite 220 constituted PBB
space, the court stated that ‘‘[t]he more difficult ques-
tion is whether the space was marketable. The fact that
it was vacant does not resolve this question, for, as
the town correctly points out, potential gross income
comprises . . . market rent for vacant . . . space.
. . . Leary testified credibly, however, that in 2011
there was no market for PBB space in Trumbull. Lucey
testified, also credibly, that such space is usually rented
on a building wide basis. That testimony and the eco-
nomics of PBB space cast substantial doubt on whether
PBB space with 16,000 rentable square feet would be
marketable in the Trumbull area. In its briefs, [the
plaintiff] asserts that the lack of success the last few
years in renting the space or even attracting potential
customers to consider it shows it to be the poster child
for the poor state of the data center market in Trumbull.
. . . None of the evidence about the Trumbull data
center market in 2011, 2013 or 2014 credibly supports
the town’s claim that Suite 220 was marketable as PBB
space then.’’ (Citations omitted; emphasis added; foot-
note omitted; internal quotation marks omitted.)
Although the court referenced ‘‘[the plaintiff’s] asser-
t[ion] that the lack of success the last few years in
renting the space or even attracting potential customers
to consider it shows it to be the poster child for the poor
state of the data center market in Trumbull’’; (emphasis
added; internal quotation marks omitted); the court
went on to conclude that ‘‘[n]one of the evidence about
the Trumbull data center market in 2011, 2013 or 2014
credibly supports the [defendants’] claim that Suite 220
was marketable as PBB space then.’’ (Emphasis added.)
The defendants argue that the suite’s marketability as
of October 1, 2013, and October 1, 2014, is not relevant
to the determination of the suite’s marketability as of
the revaluation date. The suite’s marketability as of
October 1, 2013, and October 1, 2014, was relevant,
however, because Sterling considered information
about market conditions through October 1, 2014.
Because Sterling used a cutoff date of 2014, considering
information about market rent and market conditions
through October 1, 2014, it was not improper for the
court to consider evidence of the Trumbull data center
market in 2013 or 2014.17
The defendants also argue that the court erred in
considering evidence of the suite’s marketability as of
the trial date and ‘‘ ‘the last few years’ ’’ prior to trial.
Although the court refers to the plaintiff’s argument
concerning ‘‘the lack of success the last few years in
renting the space,’’ the court’s acknowledgement of this
argument was not material to its decision. The court
makes clear in the subsequent sentence that it specifi-
cally found that ‘‘[n]one of the evidence about the Trum-
bull data center market in 2011, 2013 or 2014 credibly
supports the town’s claim that Suite 220 was marketable
as PBB space then.’’ (Emphasis added.) Thus, the court
clearly relied on evidence of the data market in Trum-
bull in 2011, 2013, and 2014 to make its finding that there
was no market for Suite 220 as of the revaluation date.
Our case law makes clear that, ‘‘[i]n a tax appeal,
the court may consider any facts that are relevant to
determining whether a taxpayer actually has been over-
assessed.’’ (Internal quotation marks omitted.) Ress v.
Suffield, supra, 80 Conn. App. 634. The court here did
just that. Although the defendants take exception to
the court’s consideration of the market through the
cutoff date, they have not provided this court with any
legal support that this was improper. We therefore con-
clude that the court did not err in concluding that none
of the evidence credibly supported the defendants’
claim that Suite 220 was marketable as PBB space in
2011, 2013, and 2014.18
E
The defendants argue that the court’s finding that
there was no market for Suite 220 is inconsistent with
its market rent analysis. Specifically, the defendants
argue that the court’s conclusion that the demand for
PBB space was limited by the inherent characteristics
of the Connecticut data center market is unfounded
and contrary to its own market rent analysis. We find
no inconsistency.
In completing his market rent analysis, Leary indi-
cated that there was no specific market rent information
available in the Connecticut market. Therefore, to deter-
mine what market rental rate to apply to the property,
Leary applied market rental rates from the Boston data
center market, finding that the Boston market was most
comparable to the market in Trumbull. Leary examined
five recent leases of wholesale data center spaces in
the Boston area. Leary used this data, along with the
data of the contract rents at the property for 2011, to
determine the income potential of the property as of
October 1, 2011. Leary, however, did not impute the
Boston market rate to Suite 220 because he found that
there was no market for that space in Trumbull in 2011.
The court found that ‘‘[t]he evidence supports and
confirms Leary’s conclusion that the Trumbull data cen-
ter market was comparable to the Boston one in 2011
and that comparable properties in the Boston market
in the relevant time period showed a range in market
rate rents from $90 to $105 per square foot of rentable
space.’’ The court used this market rate in calculating
the income potential of the property. The court, how-
ever, did not apply this rate to Suite 220. The court
found that, although there was a national market and
national demand for PBB space in 2011, there was no
market for PBB space in Trumbull in 2011. The court
explained that ‘‘the evidence showed that the market
for this facility would lie exclusively in Connecticut
based customers, and [the plaintiff] was aware of that
limitation in its potential customer base. Leary’s asser-
tion that there was no market for such space in Trum-
bull in 2011 is therefore found to be credible.’’
In explaining its conclusion that the market for data
center space in Connecticut was limited to Connecticut
based customers, the court stated that ‘‘[t]he high cost
of electricity in Connecticut and the greater ‘latency’19—
the delay in the amount of time it takes to send and
receive electronic information between Connecticut
and New York City, as compared to [that] between
suburban New Jersey and New York City—limit the
appeal of data centers in this state to Connecticut based
customers.’’ (Footnote in original.)
The defendants argue that ‘‘[t]he suggestion that
demand for PBB space was limited by the inherent
characteristics of the Connecticut data center market
is unfounded . . . .’’ We disagree. The court cited to
evidence in the record—specifically, the plaintiff’s
Investment Committee Memoranda20 and Lucey’s testi-
mony21—that supported its conclusion. Therefore, we
conclude that the court’s conclusion that the market
for the property would lie exclusively in Connecticut
based customers was supported by evidence in the
record.
The defendants also contend that the court’s conclu-
sion that the demand for PBB space was limited by the
inherent characteristics of the Connecticut market is
contrary to its market rent analysis. The defendants
claim that the court should have imputed income to
Suite 220 on the basis of a lease of PBB space in Somer-
ville, Massachusetts, signed in May, 2011, because the
lease was a relevant indicator of market demand and
rent for PBB space in Trumbull. We disagree.
The court’s conclusion that the demand for the prop-
erty was limited by the inherent characteristics of the
Connecticut market is not contrary to its market rent
analysis. Leary explained at trial that the size of the
potential tenants in both the Boston and Trumbull data
center markets was what made them similar. Although
the court found that the Trumbull market was compara-
ble to the Boston market in that respect, the court
concluded that the demand for the property was limited
by the inherent characteristics of the Connecticut mar-
ket, which, as previously noted, was supported by the
plaintiff’s Investment Committee Memoranda and
Lucey’s testimony. We therefore conclude that the
court’s conclusion that the demand for PBB space was
limited by the inherent characteristics of the Connecti-
cut market is not contrary to its market rent analysis.
F
The defendants argue that the record is devoid of
any evidence indicating that Suite 220’s square footage
made it unmarketable as PBB space. The record reveals
the contrary.
At trial, Leary testified that, ‘‘normally, this PBB . . .
applies to a whole building. There are cases in which,
you know, a subset of a building might be leased on a
PBB basis, but, normally, you’re looking at the whole
building, and it’s kind of a . . . situation where, basi-
cally, the main building [has] infrastructures in place,
and then the tenant goes in and . . . does their custo-
mized finish afterward. So just, you know, the size of
these things implies that, you know, it’s whole buildings.
. . . [A]nd one of the things I had pointed out in my
summary here was of all these large facilities, only one
of them was in New England, and that was the 90,000
square foot facility . . . in Boston. Most of this occurs
in other places in the market.’’
At trial, Lucey also testified to the marketability of
the suite based on its square footage. The following
exchange occurred between the plaintiff’s counsel
and Lucey:
‘‘Q. [D]oes [the plaintiff] have [PBB space] that it
rents in the northeast?
‘‘A. Yes.
‘‘Q. Give us an idea of what the typical size is of what
[the plaintiff] has in the northeast?
‘‘A. Let’s see, in the northeast, probably the smallest
one . . . it’s probably 50 to 60,000 square feet. The
largest being [between 230,000 and] 240,000 square feet.
‘‘Q. Okay. And the, the unbuilt space in the expansion
at . . . [the property], would you classify that as
[PBB] space?
‘‘A. The way it’s built right now, the power is brought
. . . to the shell, or we could bring the power to the
shell. So . . . the short answer is, we could certainly
turn that into a [PBB] shell for that 17,000 square feet.
Yeah, we could do that.
‘‘Q. Do you think it’s rentable on that basis?
‘‘A. Highly unlikely.
‘‘Q. Why?
‘‘A. I, I won’t say it’s impossible, but highly unlikely.
Typically, when customers rent PBB [space] . . .
they’re looking for a much larger footprint. The reason
for that is, because we don’t operate the data center—
I mean we—we bring power to the exterior, and then
the rest of it is yours. You have to staff up. You have
to have people there to operate that data center. And
it would be very cost ineffective for someone to have
a 17,000 square foot [PBB] shell and have to have all
the staffing you need to operate a data center for—
there’s not enough square footage to spread the cost.’’
The defendants also introduced the plaintiff’s 2011
and 2013 Form 10-K Annual Reports, filed with the
Securities and Exchange Commission (SEC), into evi-
dence. Both documents contain the number and square
footage of new and renewable PBB leases signed in
those years.
In its memorandum of decision, although the court
acknowledged that, theoretically, PBB space could be
as small as 5000 square feet, the court found that the
‘‘testimony and the economics of PBB space cast sub-
stantial doubt on whether PBB space with 16,000 rent-
able square feet would be marketable in the Trumbull
area.’’ The court therefore concluded that none of the
evidence supported the defendants’ claim that Suite 220
was marketable in Trumbull in 2011. In making this
conclusion, the court found both Lucey’s and Leary’s
testimony credible. The court also relied on the plain-
tiff’s 10-K financial statements for 2011 and 2013. The
court explained that the average number of total square
footage of new and renewal PBB leases signed sup-
ported Leary’s and Lucey’s testimony that tenants typi-
cally want larger space when renting PBB space. We
conclude that, because the trial court set forth its care-
ful consideration of the expert testimony and reports
and its findings are amply supported by the record, its
determination that Suite 220 had no income and no
income potential in 2011 is not clearly erroneous.
II
The defendants next claim that the court’s determina-
tion that the highest and best use of Suite 210 was as
wholesale space was clearly erroneous. Specifically,
the defendants argue that the court’s determination of
the suite’s highest and best use (1) is not supported
by the evidence, (2) is inconsistent with the court’s
determination that there was no market for PBB space
in Trumbull in 2011 due to the inherent limitations of
the Connecticut based data center market, and (3) fails
to take into account the plaintiff’s existing leases and
actual rent generated by those leases in its market rent
analysis. We disagree.
Suite 210 is located in the expansion of the property
and is a fully built out data center suite. After the expan-
sion was completed, the plaintiff was unable to find a
wholesale tenant to lease Suite 210 as it had hoped. As a
result, the plaintiff began leasing the suite to colocation
tenants in mid-2013. By 2014, 41 percent of Suite 210’s
raised floor space was leased to seven colocation ten-
ants. The average rent paid by these tenants in 2014
was $404 per square foot.
In their appraisal reports and at trial, Sterling and
Leary disagreed on the highest and best use of Suite
210 and, therefore, on what market rental rate to apply
to calculate the suite’s income potential. Sterling was
of the opinion that, as of the date of valuation, the
highest and best use of Suite 210 was as colocation
space. Leary, on the other hand, concluded that the
highest and best use of Suite 210 was as wholesale
space.
In its memorandum of decision, the court concluded
that the highest and best use of Suite 2010 in 2011 was
as wholesale space and, accordingly, determined that
market rent for Suite 210 properly should be regarded
as based on wholesale data rates in 2011. In reaching
this conclusion, the court first noted that the fact that
the plaintiff was not leasing Suite 210 as colocation
space in 2011 and the plaintiff’s intention to lease the
suite for wholesale use was not conclusive of the suite’s
highest and best use: ‘‘The fact that [the plaintiff] itself
did not begin marketing colocation space until 2012
does not preclude colocation from being the highest
and best use of Suite 210 in 2011.’’ The court did not
find credible Leary’s opinion that there was no market
for colocation space in Trumbull in 2011. Rather, the
court found credible Sterling’s description of the colo-
cation space as an evolving ‘‘ ‘sweet spot’ ’’ of the data
center market. The court credited Sterling’s testimony
that colocation was becoming more popular. The court
determined, however, that Sterling’s testimony did not
preclude the court from agreeing with Leary’s conclu-
sion that the highest and best use of the suite was as
wholesale space, especially in light of Lucey’s testi-
mony. The court found Lucey’s testimony to be credible,
particularly with regard to his ‘‘catalogue of reasons
that colocation rentals are less desirable than wholesale
rentals . . . .’’ This catalogue, according to the court,
included the fact that colocation leases tend to involve
(1) a shorter duration, (2) smaller amounts of power,
(3) tenants who occupy less space, (4) increased risk
due to tenants who are typically less creditworthy, (5)
greater periods of time between leases, (6) higher trans-
actional costs due to higher turnover rates, and (7) flat
rates based on the amount of kilowatts provided to
tenants rather than both such flat rates and the pro rata
add-ons paid by wholesale customers for their share
of certain building and common area expenses and
electricity. The court found that the plaintiff’s seven
colocation leases in 2013 and 2014 shared some of these
characteristics. The court also credited Lucey’s testi-
mony that the difference in rental market rates between
colocation and wholesale customers is ‘‘ ‘not as great
as people think.’ ’’
On the basis of our review of the record, we have
little difficulty concluding that the court’s finding was
supported by evidence in the record. On direct examina-
tion, Lucey explained why colocation leases were less
desirable to the plaintiff than wholesale leases: ‘‘[T]hey
were unable to lease [Suite 210] for wholesale. So they
had to go into a [colocation] leasing arrangement where
you have multiple tenants, which . . . it’s typically a
longer lease-up process. It also tends to be much more
hands-on and, and resource demanding just because
. . . people are leasing very small bits of power and
space. You also have the transactional cost and the
transactional volume increases. You have to do many,
many more leases, and your lease-up time tends to be
extended, and you don’t typically get long terms.’’
During cross-examination, Lucey explained that,
despite the perceived price difference between coloca-
tion and wholesale leases, the actual difference is not
very significant: ‘‘Generally speaking, I would say . . .
that a [colocation] customer would pay . . . a pre-
mium to . . . a wholesale customer. . . . The reasons
are . . . [colocation] customers tend to . . . lease [a]
smaller amount . . . . [Colocation] leases typically are
shorter. So you charge a premium, because you’re not
getting the term. You also tend to not get the same
credit quality. So you try to charge a premium for that.
In addition to that, they’re just leasing much less. So
you would tend to try to charge a premium for that.
Now, what’s offset in the [colocation] world is your
transaction costs are much higher because you’re turn-
ing over the space far more often. So you’ve got more
downtime baked into it. In addition to that you’re paying
more brokerage commissions. . . . [W]hen you lease
[colocation] space, it’s typically done on an all-in basis.
. . . [Y]ou’re not going to see another bill from us for
electricity or anything else. . . . Wholesale is . . .
typically priced differently. . . . [O]n wholesale . . .
you pay a base rate. So maybe you’re paying 140 a
kilowatt versus the [colocation] customers [who are]
paying 200 a kilowatt. But as the wholesale customer,
you’re also being charged a pro rata share of a building’s
expenses, common area expenses, like . . . janitorial,
plowing, all of that stuff. You pay a pro rata share of
that. In addition to that, you also pay a separate charge
for any electricity you use in your space above and
beyond the contracted-for power. . . . Light bulbs.
You run computers. People have offices, command cen-
ters. . . . [T]here are a number of additional add-ons
to the . . . wholesale person that don’t apply to [colo-
cation]. . . . [S]o there is a price difference. It’s not as
great as people think. . . . Yes . . . you definitely
charge a premium, but when you . . . strip it all back,
the . . . differences aren’t that great . . . .’’
This evidence was sufficient to support the court’s
finding. Nevertheless, the defendants argue that the
court erred by failing to consider the plaintiff’s existing
leases and the actual rent from those leases in its market
rent analysis. The defendants contend that Suite 210
was devoted to the use for which it was best adapted—
colocation—and, therefore, the court erred by not
applying the actual rent from the plaintiff’s 2013 and
2014 colocation leases to determine the suite’s income
potential.
As previously explained, ‘‘[p]ursuant to § 12-63b (b),
the court is required to consider both market rent and
actual rent when determining fair market value using
the income capitalization method. . . . [I]f the prop-
erty 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.’’ (Citation omitted;
footnotes omitted; internal quotation marks omitted.)
Pilot’s Point Marina, Inc. v. Westbrook, 119 Conn. App.
600, 603–604, 988 A.2d 897 (2010). Here, on the basis
of the evidence in the record, the court concluded that
the suite was not devoted to the use for which it was
best adapted. Although the suite was being leased as
colocation space in 2013 and 2014, the court concluded
that the suite’s highest and best use was to be leased as
wholesale space. Contrary to the defendants’ assertion,
the court did consider the plaintiff’s existing leases and
actual rent from those leases. Because those leases
were for colocation customers, however, the court did
not use the actual rent from those leases to determine
the suite’s fair market value. Rather, the court properly
applied market rental rates to determine the suite’s fair
market value as wholesale space. We therefore con-
clude that the court properly considered both the suite’s
actual rent and market rent. See id.The defendants also contend that the court’s determi-
nation of the highest and best use of Suite 210 is incon-
sistent with its determination that there was no market
for PBB space due to the inherent limitations of the
Connecticut based data center market. In concluding
that there was no market for PBB space in Trumbull
in 2011, the court found that the demand for such space
would lie exclusively with Connecticut based custom-
ers because these customers often had more localized
demand. The court also noted that the customers were
often smaller users. The court found Lucey’s testimony
that PBB space is usually rented on a building wide
basis credible. Although the court found that Connecti-
cut based customers tend to be smaller users with more
localized demand, the court nevertheless concluded
that 16,000 rentable square feet of PBB space was not
marketable to those customers. The court’s conclusion
that there was no market for PBB space in Trumbull
in 2011 does not contradict its conclusion that the high-
est and best use of Suite 210, a fully built out suite,
would be wholesale space. The court’s conclusion that
there was no demand for PBB space in Trumbull in
2011 does not preclude it from also finding that there
was demand for a wholesale lease of a fully built out
suite. We therefore conclude that the court’s determina-
tions are not contradictory.
On the basis of the evidence in the record, we con-
clude that the court’s determination that wholesale use
was the highest and best use of Suite 210 in 2011 was
not clearly erroneous.
III
The defendants next argue that the court erred in
applying a capitalization rate of 8 percent. Specifically,
the defendants contend that the court applied an
‘‘unsubstantiated’’ capitalization rate.22
The last two steps in the income capitalization
approach include selecting an applicable capitalization
rate and applying that capitalization rate to the proper-
ty’s net income to arrive at an indication of the market
value of the property being assessed. See Sun Valley
Camping Cooperative, Inc. v. Stafford, supra, 94 Conn.
App. 702 n.9. ‘‘The capitalization rate is considered the
rate a reasonable investor would seek on his capital or
equity . . . . 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.’’ (Citation omitted; inter-
nal quotation marks omitted.) Fairfield Merrittview
Ltd. Partnership v. Norwalk, supra, 172 Conn. App. 166n.14. ‘‘It is generally recognized that the most difficult
element to determine, and so far as results are con-
cerned the most important, in any computation of value
based on earning power is the rate at which the earnings
are to be capitalized.’’ Burritt Mutual Savings Bank of
New Britain v. New Britain, 146 Conn. 669, 676, 154
A.2d 608 (1959). ‘‘Determination of the capitalization
rate is both critical and highly subjective.’’ 1 Powell on
Real Property (M. Wolf ed., 2017) § 10B.06 [4] [c] [v],
p. 10B-111.
The two appraisers, Sterling and Leary, used different
methodologies for selecting an applicable capitalization
rate. Sterling used the band of investment technique.23
The band of investment technique recognizes the pres-
ence of both the debt and equity components of com-
mercial real estate. See Appraisal Institute, supra, p.
535 (explaining that band of investment technique is ‘‘[a]
technique in which the capitalization rates attributed
to components of a capital investment are weighted
and combined to derive a weighted-average rate attrib-
utable to the total investment’’). Using this technique,
Sterling applied a capitalization rate of 6.91 percent.24
Leary reached his capitalization rate by analyzing
sales of like properties and reviewing recognized mar-
ket surveys of investors in such properties. See
Appraisal Institute, supra, p. 530 (‘‘[o]verall capitaliza-
tion rates can be estimated with various techniques’’);
id., p. 530 n.2 (‘‘[s]urveys of overall capitalization rates
based on the market expectations of lenders and own-
ers are available, but such data should be rigorously
scrutinized’’). Leary analyzed information on capitaliza-
tion rates of like properties in the United States with
similar types of income streams. Specifically, he
reviewed certain newsletters from professional real
estate organizations that focused on data centers, which
included published capitalization rates from the sale of
seven data centers across the United States. Using this
information, Leary concluded that an appropriate capi-
talization rate for the property was between 8.25 and
8.5 percent.25
The court noted that, although both techniques were
commonly used methods for determining an appro-
priate capitalization rate, ‘‘[t]here [were] some concerns
about each appraiser’s methodology.’’ The court ulti-
mately concluded that the appropriate capitalization
rate was 8 percent, finding that Leary’s capitalization
rate was ‘‘essentially correct, although it [did] not give
enough consideration to the effect of the brand new
electrical infrastructure installed with the remediation
and the expansion.’’
The defendants contend that the court’s finding that
8 percent represented an appropriate capitalization rate
was clearly erroneous. The defendants take issue with
the court’s capitalization rate because, in their view,
the newsletters and surveys Leary relied on and, there-
fore, on which the court relied in finding Leary’s capital-
ization rate ‘‘ ‘essentially correct,’ ’’ rely on ‘‘unsubstan-
tiated and unverified market data.’’ Specifically, the
defendants argue that Leary could not verify certain
information about the seven data centers in the market
newsletters, including (1) their square footage, (2) the
square footage of their raised floor area, (3) their electri-
cal capacity, (4) their age, (5) their condition, and (6)
their income and expenses. Thus, the defendants argue
that Leary could not confirm whether the data centers
referenced in the newsletters were comparable to the
property, and it was clearly erroneous for the court
to rely on such newsletters in determining a proper
capitalization rate for the property. We disagree.
Where ‘‘the trial court is confronted with conflicting
accounting methods . . . giving credence to one over
the other is a proper exercise of its function as a trier
of fact.’’ Connecticut Coke Co. v. New Haven, 169 Conn.
663, 666, 364 A.2d 178 (1975). ‘‘In arriving at the value
of property, no one method is controlling, and there is
no rule of law that any particular method of valuation
must be followed. It is a matter of opinion based on all
the evidence and, at best, is one of approximation.’’
(Internal quotation marks omitted.) Housing Authority
v. CB Alexander Real Estate, LLC, 107 Conn. App. 167,
180, 944 A.2d 1010 (2008). ‘‘In reviewing valuations, we
must bear in mind that the process of estimating the
value of property for taxation is, at best, one of approxi-
mation and judgment, and that there is a margin for a
difference of opinion.’’ (Internal quotation marks omit-
ted.) Connecticut Coke Co. v. New Haven, supra, 668.
‘‘We will disturb the trial court’s determination of valua-
tion, therefore, only when it appears on the record
before us that the court misapplied or overlooked, or
gave a wrong or improper effect to, any test or consider-
ation which it was [its] duty to regard.’’ (Internal quota-
tion marks omitted.) New Haven Savings Bank v. West
Haven Sound Development, 190 Conn. 60, 70, 459 A.2d
999 (1983).
Here, the court properly gave credence to one
appraiser’s method of calculating the capitalization rate
over the other and determined an appropriate capital-
ization rate based on evidence in the record. The record
includes excerpts from the Avision Young Data Center
Practice newsletter, which reported seven transactions
referencing capitalization rates for those sales.26 The
newsletter reported an overall capitalization rate range
from 6.2 percent to 10.2 percent. Leary testified that
the two lowest rates involved one purchaser who
bought two properties in California and Virginia ‘‘at the
same time . . . in very active markets.’’ Leary testified
that he believed the investor ‘‘clearly had some invest-
ment criteria that were different than the majority of
the transactions’’ and those transactions ‘‘appear to be
below market based on the remaining five transac-
tions.’’ The remaining five transactions reported in the
newsletter had capitalization rates ranging from 8.1 per-
cent to 10.2 percent. Leary testified that the two lowest
capitalization rates from these five transactions were
located in Georgia, which has lower utility costs than
Connecticut and less risk, resulting in a lower capitaliza-
tion rate. The transaction with the highest capitalization
rate was located in Michigan, which Leary testified has
higher utility costs.
The record also included a Real Estate Research Cor-
poration Quarterly Real Estate Report (RERC report).
Both Leary and Sterling referenced the RERC report
in their appraisal reports.27 The RERC report includes
capitalization rates for different types of properties in
the eastern United States within different categories
including, inter alia, ‘‘[o]ffice,’’ ‘‘[w]arehouse,’’ and
research and development.28 The capitalization rate
ranges for first tier29 properties were 5.5 percent to 10
percent with an average of 7.9 percent for suburban
offices and 5 percent to 12 percent with an average of
8.2 percent for research and development properties.30
The capitalization rate for second tier research and
development properties ranged from 6 percent to 10.5
percent with an average of 8.6 percent.
In reaching its conclusion that 8 percent was an
appropriate capitalization rate, the court stated that the
property had characteristics of both a first tier and
a second tier property. The court explained that the
expansion and electrical remediation were characteris-
tics of a first tier property, while the location in Trum-
bull was a characteristic of a second tier property. The
court found that Sterling too easily dismissed the threat
of obsolescence in the data center industry, while
Leary’s classification of the property as a second tier
property recognized the potential for obsolescence. The
court concluded that Leary’s capitalization rate was
essentially correct, although his capitalization rate did
not give enough consideration to the effect of the brand
new electrical infrastructure installed with the remedia-
tion and the expansion. The court thus concluded that
the appropriate capitalization rate, properly taking the
new electrical infrastructure into consideration, was 8
percent, slightly lower than Leary’s range of 8.25 per-
cent to 8.5 percent.
Because the court’s capitalization rate was supported
by evidence in the record, we conclude that its finding
was not clearly erroneous.
IV
The defendants’ final claim is that the court’s determi-
nation of the fair market value of the property is clearly
erroneous because the court disregarded the plaintiff’s
internal valuations, which clearly undermine the court’s
valuation of the property. The defendants point to the
plaintiff’s 10-K Forms for the 2013 and 2014 years, in
which the plaintiff reported the property and 80 Merritt
Boulevard as having a combined book value of
$163,486,000 and $165,596,000 for 2013 and 2014,
respectively. The defendant also relies on an asset
‘‘impairment analysis’’ completed by the plaintiff in
2014, which the defendant argues shows that the value
of the property was $180,293,972 as of 2014, based on
market conditions as of 2011.
In its Form 10-K Annual Reports submitted to the
SEC, the plaintiff reported that the combined book
value of the property and 80 Merritt Boulevard was
$163,486,000 in 2013 and $165,596,000 in 2014. The
defendants contend that the court erred in disregarding
these book values in determining the property’s fair
market value. Lucey, however, testified that the values
reported to the SEC in the 10-K Forms represented the
book value, rather than the fair market value, of the
property.31 As the trial court explained in its memoran-
dum of decision, the plaintiff’s 10-K filings show ‘‘ ‘book
value’, not fair market value, and have little relation to
the issues here.’’
The defendants also contend that the asset ‘‘impair-
ment analysis’’ completed by the plaintiff in 2014 shows
that the value of the property was $180,293,972 as of
2014, based on market conditions as of 2011, undermin-
ing the court’s valuation of the property. The defendants
rely on a document created by the plaintiff as part of
this analysis, which states that, on the basis of the ten
year cash flow of the property and 80 Merritt Boulevard,
the properties were valued at $198,200,119 in 2014 and
$212,744,378 in 2015.
As previously described, the plaintiff’s projected
returns on its investment into the property did not come
to fruition. The property was included in a 2014 review
of potentially underperforming properties. The plain-
tiff’s accounting group then undertook an ‘‘ ‘impairment
analysis.’ ’’ As part of the impairment analysis, the plain-
tiff completed a recoverability test. This test involved a
‘‘dynamic valuation’’ of both the property and 80 Merritt
Boulevard and included a ten year cash flow analysis
based on certain optimistic assumptions. The plaintiff’s
internal documents show that the ten year dynamic
valuation of cash flow of the property and 80 Merritt
Boulevard was $198,200,119 in 2014 and $212,744,378 in
2015. The defendants argue that subtracting the parties’
stipulated value for 80 Merritt Boulevard results in a
value of $186,371,800 for the property for 2014. After
applying the 3 percent discount factor used by Leary,
the defendants contend that the value of the property
was $180,293,972.
At trial, however, Lucey described the ten year
dynamic valuation of cash flow analysis as a ‘‘best case
scenario . . . .’’ The plaintiff describes the process as
an ‘‘optimistic projection, establishing the upper limit
of [return on invested capital].’’ The analysis did not
take into account variables such as leasing pace, struc-
tural vacancy, structural free rent, carrying costs, new
development capital, or portfolio changes during lease-
up of vacant space. The analysis also assumed 95 per-
cent occupancy by 2017.
Also as part of this analysis, the plaintiff estimated
the combined fair market value of the property and 80
Merritt Boulevard to be $120,000,000. At trial, Lucey
explained that this fair market value included not only
both properties but also personal property, such as
equipment on site.
In its memorandum of decision, the trial court stated
that the ‘‘$120 million estimation of fair market value
used during the 2014 Return on Invested Capital analy-
sis was placed on the combined properties and person-
alty within and, together with the parties’ stipulations
about the fair market value of 80 Merritt Boulevard, is
consistent with this court’s valuation for [the prop-
erty].’’ The court reasoned that the ten year dynamic
valuation of cash flow was based on optimistic assump-
tions and a best case scenario. Thus, the court clearly
considered but did not place weight on the plaintiff’s
internal valuations.
After reviewing the record, including the thorough
and well reasoned memorandum of decision, we con-
clude that the court’s determination of the fair market
value of the property was not clearly erroneous.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The plaintiff filed two separate appeals with the Superior Court in the
judicial district of Fairfield pursuant to General Statutes § 12-117a. In the
first appeal, Docket No. CV-XX-XXXXXXX-S, the plaintiff appealed from the
2013 valuation of the board, which valued 60 and 80 Merritt Boulevard at
a true and actual value of $145,446,143. In the second appeal, Docket No.
CV-XX-XXXXXXX-S, the plaintiff appealed from the 2014 valuation of the board,
which valued 60 and 80 Merritt Boulevard at a true and actual value of
$145,446,145. The appeals were consolidated on May 9, 2014, and transferred
to the judicial district of New Britain.
2
The plaintiff is a subsidiary of Digital Realty Trust, Inc., which is a
publicly traded company. Digital Realty Trust, Inc., as its name suggests, is
a real estate investment trust, formed in 2004.
3
The court issued its memorandum of decision on August 4, 2020. The
plaintiff subsequently filed a motion to correct the memorandum of decision
to correct ‘‘five minor errors.’’ The defendants objected to the second of the
five requested corrections. The plaintiff then withdrew the second requested
correction. The court granted the first, third, and fifth requested corrections
and granted the fourth in part. On February 16, 2021, the court issued its
corrected memorandum of decision, correcting the scrivener’s errors in the
original decision.
4
At trial, the parties’ experts disagreed as to the precise square footage
of the building. The plaintiff’s expert, John Leary, concluded that the square
footage of the building was 204,024 square feet while the defendants’ expert,
Russell Sterling, reached a conclusion of 193,650 square feet. The court
determined that Leary’s conclusion was more reliable and credible. The
property’s square footage is not an issue on appeal.
5
For example, as a result of the power outage, one tenant was given a
20 percent monthly rent abatement of $22,869.
6
A grand list is a listing of all taxable property located within a town as
of the relevant tax year. See General Statutes § 12-55 (a).
7
The town had conducted the previous town wide revaluation in 2005,
meaning the next town wide revaluation was to occur in 2010. That revalua-
tion, however, was delayed one year from 2010 to 2011. In its 2011 town
wide revaluation, the assessor of the town concluded that the fair market
value of the property was $66,124,600. The plaintiff appealed this assessment,
and the parties subsequently stipulated to a fair market value of $62,450,000.
The next revaluation occurred in 2015, in accordance with the regular five
year schedule.
8
Market value is ‘‘[t]he most probable price, as of a specified date, in
cash, or in terms equivalent to cash, or in other precisely revealed terms,
for which the specified property rights should sell after reasonable exposure
in a competitive market under all conditions requisite to a fair sale, with
the buyer and seller each acting prudently, knowledgeably, and for self-
interest, and assuming that neither is under undue duress.’’ Appraisal Insti-
tute, The Appraisal of Real Estate (12th Ed. 2001) p. 22.
9
The assessor concluded that the assessed value was $101,812,300. Pursu-
ant to General Statutes § 12-62a, the assessed value of a property is 70
percent of the appraised/fair market value.
10
The Appraisal Standards Board’s Advisory Opinion 34 states: ‘‘A retro-
spective appraisal is complicated by the fact that the appraiser already
knows what occurred in the market after the effective date of the appraisal.
Data subsequent to the effective date may be considered in developing a
retrospective value as a confirmation of trends that would reasonably be
considered by a buyer or seller as of that date. The appraiser should deter-
mine a logical cut-off for the data to be used in the analysis because at
some point distant from the effective date, the subsequent data will no
longer provide an accurate representation of market conditions as of the
effective date. This is a difficult determination to make. Studying the market
conditions as of the date of the appraisal assists the appraiser in judging
where he or she should make this cut-off. With market evidence that data
subsequent to the effective date was consistent with market expectations
as of the effective date, the subsequent data should be used. In the absence
of such evidence, the effective date should be used as the cut-off date for
data considered by the appraiser.’’ Appraisal Standards Board, Appraisal
Foundation, 2016–2017 Uniform Standards of Professional Appraisal Prac-
tice (2016) p. 194.
11
A fee simple interest means ‘‘absolute ownership unencumbered by any
other interest or estate . . . .’’ Appraisal Institute, supra, p. 68; see also
Frank Towers Corp. v. Laviana, 140 Conn. 45, 52, 97 A.2d 567 (1953) (fee
simple interest means ‘‘whole or unlimited estate’’).
12
The court exercised its discretion not to award interest to the plaintiff,
explaining that ‘‘this is a complex property presenting many issues affecting
valuation.’’
13
At oral argument, the defendants stated that the only claim for which
plenary review would be appropriate is its claim that the court violated
Advisory Opinion 34, in that it considered evidence after the established
cutoff date. See Appraisal Standards Board, Appraisal Foundation, 2016–
2017 Uniform Standards of Professional Appraisal Practice (2016), p. 194.
This claim challenges the implementation of a particular appraisal method—
the income capitalization approach—rather than the propriety of the
appraisal method and, thus, does not ‘‘[reject] a method of appraisal as a
matter of law . . . .’’ (Emphasis added; internal quotation marks omitted.)
Walgreen Eastern Co. v. West Hartford, supra, 329 Conn. 494. Therefore,
we decline to apply plenary review to this claim.
14
For the sake of clarity and ease of discussion, we address the defendants’
arguments in a different order from which they were briefed.
15
Specifically, Leary testified that the use of Suite 220 as storage space
‘‘would violate all the conditions associated with the confidentiality of all
the data center tenants . . . .’’
16
The defendants also argue that Leary did not provide any support for
his assertion that there was no market for Suite 220 in Trumbull in 2011.
The defendants have not preserved this claim for appellate review. The
defendants did not object to Leary’s testimony that there was no market
for Suite 220 in Trumbull in 2011 at trial. See State v. Crocker, 83 Conn.
App. 615, 653, 852 A.2d 762 (when ‘‘defendant never objected to the court’s
admitting [the witness’] testimony into evidence,’’ defendant’s claim that it
was improper for court to admit witness’ testimony was unpreserved), cert.
denied, 271 Conn. 910, 859 A.2d 571 (2004). Accordingly, we decline to
review the defendants’ unpreserved claim.
17
See footnote 10 of this opinion.
18
The defendants also contend that Leary impermissibly relied on post
hoc information by testifying that, ‘‘had there [been] a market . . . then
Suite 220 might well have been rented by now.’’ According to the defendants,
Leary’s reliance on what occurred between 2013 and 2019 was antithetical
to the Appraisal Standards Board’s Advisory Opinion 34; see Appraisal Stan-
dards Board, Appraisal Foundation, 2016–2017 Uniform Standards of Profes-
sional Appraisal Practice (2016), p. 194; see also footnote 10 of this opinion;
and his cutoff date of December 31, 2012. We conclude that the defendants
have not preserved this claim for appellate review, as the defendants did
not object to Leary’s testimony at trial. See State v. Crocker, 83 Conn. App.
615, 653, 852 A.2d 762 (when ‘‘defendant never objected to the court’s
admitting [the witness’] testimony into evidence,’’ defendant’s claim that it
was improper for court to admit witness’ testimony was unpreserved), cert.
denied, 271 Conn. 910, 859 A.2d 571 (2004). Accordingly, we decline to
review the defendants’ unpreserved claim.
19
‘‘Sterling’s appraisal explained the importance of latency for data center
operations: The highest percentage of users of data center space are entities
that . . . require transaction processing and eCommerce. Transaction pro-
cessing includes financial services firms using high speed trading that require
low latency so trades can be processed in milliseconds. Latency, simply
defined, is the delay in the amount of time it takes to send and receive
electronic information. For capital markets speed is essential since markets
are volatile. In addition, traders want to be able to execute trades faster
than their competitors. Physical distance from the servers as well as other
factors such as bandwidth through the internet connections affect the speed
of a transmission. So, the closer the brokerage offices are to the financial
exchanges, the lower the latency.’’ (Internal quotation marks omitted.)
20
The plaintiff’s Investment Committee Memoranda provide in relevant
part: ‘‘This facility will be positioned to attract financial tenants from Fair-
field County. . . . Sales report demand of approximately 2.0 MW from other
financial investment companies who have future requirements commencing
in the next 24 months in the Trumbull area.’’
‘‘The Connecticut sect of the Metro-NY market . . . operates outside the
parameters of the NJ datacenter market, which provides low latency relief
for businesses operating in the high rent and utility districts of Manhattan.
Businesses that choose to locate their critical infrastructure in Connecticut
have an implicit desire to be there, and in many instances cannot locate
their infrastructure in NJ either because of application latency issues or
tariff issues.
‘‘The Connecticut data center market is characterized by uncertainties
surrounding utility infrastructure and the high cost of power. This is evi-
denced by the limited number of datacenter providers within the state.
***
‘‘Market research and customer sentiment regarding the Trumbull, CT
area indicates that a leasing strategy targeting local businesses will yield
better results when compared to offering this facility as an alternative to
NY/NJ market offerings. The high total cost of occupancy in the CT market
creates a demand profile that requires customers to locate there.’’
21
The court stated that it found the following testimony from Lucey to
be credible: ‘‘[T]he size of the market in the greater Trumbull, Connecticut
area and the size of the Boston market is very similar. New Jersey is very
different. It’s got a different customer base. It’s got a different—a much
different size market. The New Jersey market is probably three times the
size of either the Boston or the Trumbull markets, and it has a very different
user profile. There are financial service firms that, that do contract with us
as, as, of course, you know. Those firms, though, tend to be, um—frankly,
they don’t tend to do it much anymore—but those that do, they tend to
be—and this is the same— the same is true in Boston. The financial service
firms—and, and our customers generally in both the Trumbull and Boston
markets are typically local. They’re people that are in the Boston market
or within a certain—you know, probably a relatively narrow radius of either
the Boston data center or the Trumbull data center.’’
22
To the extent the defendants challenge Leary’s appraisal report or his
testimony regarding the appropriate capitalization rate, we decline to review
this claim. The defendants failed to object to the admission of Leary’s
appraisal report containing calculations of his capitalization rate and like-
wise failed to object to his testimony concerning these calculations. See
State v. Crocker, 83 Conn. App. 615, 653, 852 A.2d 762 (when ‘‘defendant never
objected to the court’s admitting [the witness’] testimony into evidence,’’
defendant’s claim that it was improper for court to admit witness’ testimony
was unpreserved), cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). Accord-
ingly, we decline to review the defendants’ unpreserved claim.
23
The defendants argue that, ‘‘[g]iven the lack of information available
on data center sales, the appropriate technique for calculating the property’s
capitalization rate was the band of investment technique utilized by the
[defendants’] appraiser [Sterling].’’ At oral argument, when asked to which
claims plenary review applies, the defendants did not refer to this claim.
We conclude that plenary review does not apply to this claim. The court
did not reject either appraiser’s approach to calculating the appropriate
capitalization rate as a generally applicable rule of law. See Walgreen East-
ern Co. v. West Hartford, supra, 329 Conn. 493–94. We also conclude that
the abuse of discretion standard does not apply to this claim because the
court did not conclude that either ‘‘appraiser’s calculations were incorrect
or based on a flawed formula in [the] case, or because it determined that
an appraisal method was inappropriate’’ for the property. Id. Rather, the
court was confronted with conflicting methods and calculations of the appro-
priate capitalization rate and properly gave credence to one over the other
as the trier of fact. See Connecticut Coke Co. v. New Haven, 169 Conn. 663,
666, 364 A.2d 178 (1975); see also Abington, LLC v. Avon, supra, 101 Conn.
App. 719. Thus, we apply the clearly erroneous standard of review in
reviewing this claim.
24
The court explained how Sterling employed the band of investment
technique to reach a capitalization rate of 6.91 percent: ‘‘He described his
first step as determin[ing] . . . an appropriate rate . . . for the mortgage
component of that overall capitalization rate. . . . To do so, he examined
investment bulletins and surveys from the life insurance industry, RERC,
Price Waterhouse Coopers Korpacz (PwC), and the mortgage lending indus-
try, along with yield on the monthly average for ten year treasury bills.
Using this data, he determined that there is support for a mortgage with an
interest of 5.25 percent as of October 1, 2011, which he mathematically
converted to a mortgage constant of 7.19 percent. . . . For the return on
equity component, he again focused on his conclusion that the space can
be marketed to the highest quality tenants increasing the quantity, quality
and durability of the future income . . . and considered short-term treasury
bills, corporate bonds, and extrapolated equity dividend rates from the life
insurance tables he used. . . . He had previously opined in his 2011
appraisal that a return on equity rate of 8 percent was appropriate for the
property. . . . For the current appraisal, he said that he decided that an
equity dividend rate of 6.5 percent is appropriate because of the installation
of new electrical infrastructure for the remediation, the construction of a
new 70,000 square foot addition, and [the plaintiff’s] decision to begin mar-
keting to colocation tenants. . . . Blending these two components, he
arrived at a capitalization rate of 6.91 percent, which he determined was
appropriate after comparing reported capitalization rates for the highest
value properties, such as large offices and large industrial investments.’’
(Citations omitted; emphasis omitted; footnotes omitted; internal quotation
marks omitted.)
25
The court explained how Leary determined that a capitalization rate
between 8.25 and 8.5 percent was appropriate: ‘‘Leary began by examining
excerpts from certain newsletters from professional organizations in the
real estate business that focused on data center information. . . . Those
newsletters reported sales of seven data centers in the United States during
2011 and 2012 that displayed an overall capitalization rate . . . range of
6.2 percent to 10.2 percent. . . . The two lowest rates involved one pur-
chaser who bought two properties in California and Virginia at the same
time . . . in very active markets. . . . Leary said he believed this investor
clearly had some investment criteria that were different than the majority
of the transactions . . . and that those purchases, in Leary’s opinion, appear
to be below market based on the remaining five transactions. . . . The
remaining five transactions display cap rates that range from 8.1 percent
to 10.2 percent and average 8.8 percent. . . . The next two lowest capitaliza-
tion rates were in Georgia, which he said has lower utility costs than Connect-
icut, and, thus, less risk, [and] a lower cap rate . . . and the highest was
in Michigan, which has higher costs. He also considered investor reports
from the Real Estate Research Corporation (RERC) Quarterly Real Estate
Report. Although the RERC information did not contain data about data
centers, he decided the industrial/R&D category, industrial/research and
development was the closest of these categories to what might being consid-
ered a data center. . . . So I used that category, and I looked at the eastern
U.S. market for the third quarter of 2011, and it showed a range of 6 percent
to 10.5 percent in the market, which, ironically, was pretty close to the
range of the data from the sales, and it showed an average of 8.6 percent.
. . . He then testified: Well, I used both sets of data to conclude that the
appropriate capitalization rate for this property, given the fact a third of
the building is new, would be slightly below that average or 8.25 to 8.5
percent as the basis for converting that income into value.’’ (Citations omit-
ted; internal quotation marks omitted.)
26
Leary summarized the data on these seven sales in the following table:
Location Building Square Date Capitalization
Footage Rate
Rancho Cordova, CA 69,000 2011 9.0%
Atlanta, GA 338,000 2011 8.2%
Norcross, GA 33,000 2012 8.1%
Southfield, MI 53,000 2012 10.2%
Austin, TX 62,000 2012 8.5%
Vienna, VA 225,038 2012 6.2%
San Diego, CA 166,892 2012 7.5%
27
Notably, the RERC report was admitted into evidence as part of Sterling’s
appraisal report.
28
Leary testified that he concluded the research and development category
to be the most applicable to the property.
29
The court explained the difference between first tier and second tier
properties: ‘‘[F]irst tier refers to new or newer quality construction in prime
to good locations; second tier refers to aging, formerly first tier properties
in good to average locations.’’ (Internal quotation marks omitted.)
30
Leary summarized the capitalization rates reported in the RERC report
for first tier properties in the eastern United States:
Regional - Eastern: Suburban Office Research and
1st Tier Development
Range 5.5%–10% 5%–12%
Average 7.9% 8.2%
31
When asked to explain what the $165,596,000 value reported in the
SEC form 10-K for 2014 represented, Lucey testified, ‘‘[F]or our reporting
purposes to the SEC, we report on book value of our assets, which essentially
means what we’ve invested in the asset.’’ Lucey testified that the $165,596,000
did not represent the fair market value of the property because the plaintiff
‘‘report[s] on book value. So this is just based on what we’ve invested in
the property, not what the property would sell for. . . . The value of that
property—the fair market value, what someone would pay, could be dramati-
cally higher or dramatically lower than that number. It depends on a whole
host of conditions that have very little to do with what we’ve invested in
the property.’’