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FAIRFIELD MERRITTVIEW LIMITED PARTNERSHIP

v. CITY OF NORWALK ET AL

(AC 34950)

Alvord, Sheldon and Harper, Js.

Argued October 27, 2016—officially released April 11, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Arnold W. Aronson, judge

trial referee)

James R. Fogarty, with whom, on the brief, were

Frank W. Murphy and Kara A. Murphy, for the appellants (plaintiff et al.).

Carolyn M. Colangelo, assistant corporation counsel,

with whom were Mario F. Coppola, corporation counsel, and, on the brief, Robert F. Maslan, Jr., former

corporation counsel, for the appellees (defendants).
Opinion

SHELDON, J. In this real estate tax appeal, the defendant city of Norwalk1 appeals from the judgment of the

trial court sustaining the appeal of the plaintiff, Fairfield

Merrittview SPE, LLC,2 pursuant to General Statutes

§ 12-117a,3 and ordering the reduction ofthe defendant’s

tax assessment levied against the plaintiff’s real property. The defendant raises two arguments in support

of its claim that the court erred when it reduced the

subject property’s assessed fair market value, as of

October 1, 2008, from $49,036,800 to $34,059,753.4 First,

the defendant claims that the court improperly relied

upon a 2006 ‘‘annual income and expense report’’ to

calculate the property’s net rentable area, when instead

it should have used the plaintiff’s December 2008 rent

roll for that purpose, because the 2008 rent roll assertedly reflected the subject property’s net rentable area

as of October 1, 2008, more accurately than the 2006

report. Second, the defendant argues that the court

improperly excluded $190,000 of ‘‘other income’’ attributable to the subject property from its calculations and,

therefore, the court’s calculation regarding the property’s potential gross income was clearly erroneous. We

affirm the judgment of the trial court.

The record reveals the following facts. The subject

property, an eight story, class A multitenant office building that was constructed in 1985, sits on a 4.3 acre

parcel located at 383 Main Avenue in Norwalk. The

ground floor of the property consists of a lobby, a cafeteria, a fitness center and a conference room, which are

all maintained for the benefit of the building’s tenants.

These amenities account for approximately 6400 square

feet of space. Additionally, there is a three level parking

garage underneath the building which provides 743

parking spaces on a total surface area of 150,227 square

feet. The area surrounding 383 Main Street consists of

high density commercial developments, as well as retail

and corporate offices. The subject property’s location

provides quick access to: the Merritt Parkway; the

Route 7 connector highway, which provides access to

Interstate 95; and the Metro-North passenger train station, which operates between New Haven and New

York City.

On October 1, 2008, as part of a citywide revaluation,

the defendant’s assessor determined that the subject

property had a fair market value5 of $49,036,800. Thereafter, the plaintiff appealed to the Board of Assessment

Appeals of the City of Norwalk (board), pursuant to

General Statutes § 12-111,6 claiming that the property’s

assessed value grossly exceeded its actual value.7 The

board dismissed the appeal and upheld the property’s

assessed value and corresponding tax assessment. On

July 21, 2009, the plaintiff appealed, pursuant to § 12-

117a, to the Superior Court for the judicial district of

Stamford-Norwalk. There, the plaintiff renewed its
claim that the defendant’s assessment of the subject

property was grossly excessive, and therefore warranted reduction. A two day trial was then held on

December 14 and 15, 2011.

During the trial, each party called an appraiser to

testify as to the subject property’s October 2008 fair

market value. Eric Michel testified on behalf of the

plaintiff; Michael Fazio testified on behalf of the defendant. Both witnesses stated that they employed the

sales approach8 and the income capitalization

approach9

to determine the property’s fair market value.

Ultimately, each appraisertestified that the income capitalization approach was the most appropriate method

for determining the property’s fair market value as of

October 1, 2008 because a prospective purchaser would

most likely use that method when attempting to purchase the property.10 Using the income capitalization

approach, Michel concluded that the property had a

fair market value of $30,500,000 as of October 1, 2008,

whereas Fazio concluded that the property then had a

fair market value of $49,400,000.

Despite their different conclusions, both appraisers

agreed on several factors relevant to the trial court’s

decision. Both appraisers agreed: that the property’s

highest and best use,11 as improved, was its continued

use as a multitenant office building; that, in applying

the income capitalization approach, the direct capitalization method12 was the preferred method for

determining the property’s fair market value; that, pursuant to the direct capitalization method, the applicable

vacancy and collection rate was 10 percent; and that

the property’s market rental value, pursuant to General

Statutes § 12-63b,13 should be valued at $25 per square

foot. They disagreed, however, on several figures

included in the direct capitalization formula. Specifically, they disagreed as to: (1) the property’s net rentable area; (2) the property’s potential gross income;

and (3) the overall capitalization rate14 that should be

applied under the direct capitalization formula. Their

differences, more particularly, were as follows.

Regarding the property’s net rentable area, Michel

testified that his calculation was based upon the tax

assessor’s field assessment card, which reported that

the property had a net rentable area of 238,879 square

feet. Fazio’s calculation, on the other hand, was based

on an oral representation by Tara Deluca, an agent of

the plaintiff, that the property had a net rentable area

of 256,974 square feet.

As for the property’s potential gross income (PGI),

Michel testified that he multiplied the market rental

value of $25 per square foot, on a ‘‘gross electric basis,’’15

by 238,879 square feet of net rentable area to arrive at

a PGI of $5,971,975. Fazio’s calculation, by contrast,

resulted in a PGI of $7,847,825. Although Fazio agreed

that the market rental value was $25 per square foot,
he included two additional reimbursements which he

found to increase the property’s value by $4.80 per

square foot.16 Additionally, Fazio’s formula included

$190,000 in ‘‘other income’’ that he believed to be attributable to the property, which included ‘‘conference

room income, tenant other income, and . . . interest

income.’’

Concerning the overall capitalization rate, both

appraisers agreed that as of October 1, 2008, the capitalization rate was 7.5 percent. They disagreed, however,

as to what effective tax rate should be added to that

figure to arrive at the overall capitalization rate; Michel

testified that 1.35 percent should be added, resulting

in an overall capitalization rate of 8.85 percent, while

Fazio testified that 1.39 percent should be added,

resulting in an overall capitalization rate of 8.89

percent.

On August 6, 2012, the trial court, Hon. Arnold W.

Aronson, judge trial referee, issued its memorandum

of decision. With regard to the property’s net rentable

area, the court noted that several documents admitted

into evidence reflected dramatically different figures

and that, depending on which exhibit it relied upon,

the property’s netrentable area varied by approximately

15,000 square feet. After reviewing the evidence presented, the court concluded that it was ‘‘ more credible

to turn to the 2006 annual income and expense report

filed by [the plaintiff] with the city’s assessor, as

required by General Statutes § 12-63c, showing the subject’s gross square footage at 249,986 [square feet] and

[net rentable area] at 243,586 [square feet].’’17 With

regard to the property’s PGI, the court rejected Michel’s

proposal of $25 per square foot on a gross electric

basis as well as Fazio’s inclusion of reimbursements

and ‘‘other income.’’ Instead, the court compared the

subject property’s market rent to its contract rent and

concluded that a value of $26 per square foot was ‘‘a

fair resolution of the subject’s potential gross income,

as of October 1, 2008.’’ Accordingly, the court multiplied

the market value of $26 per square foot by the net

rentable area of 243,586 square feet, resulting in a PGI

of $6,333,236, as of October 1, 2008.18 Finally, with

regard to the overall capitalization rate, the court

adopted Fazio’s proposed overall capitalization rate of

8.89 percent. Applying these figures to the direct capitalization formula, the court concluded that the subject

property’s fair market value, as of October 1, 2008,

was $34,059,753. Because this figure was less than the

defendant’s assessment of $49,036,800, the court

ordered a reduction in the assessment to reflect the

difference in the property’s fair market value. Thereafter, the defendant filed its appeal.

Additional facts will be set forth as necessary.

I
The defendant first claims that the court’s factual

finding regarding the property’s net rentable area was

clearly erroneous. Specifically, the defendant argues

that, in determining the net rentable area of the property, the trial court improperly relied on a 2006 annual

income and expense report to determine the building’s

gross square footage. See footnote 17 of this opinion.

The defendant argues that the information in thatreport

as to the property’s net rentable area was outdated,

and thus that the court should have used the plaintiff’s

2008 rent roll to determine that area instead. The defendant contends that, by relying on such outdated information, the court failed to account for 14,687 square

feet of net rentable area, thereby erroneously reducing

the property’s fair market value by $3,865,870. We find

no error.

‘‘Our review of the court’s determination in a tax

appeal is limited. [W]e do not examine the record to

determine whether the trier of fact could have reached

a conclusion other than the one reached. Rather, we

focus on the conclusion of the trial court, as well as

the method by which it arrived at that conclusion, to

determine [if] it is legally correct and factually supported. . . . We will reverse the decision only if it is

clearly erroneous.’’(Citation omitted; internal quotation

marks omitted.) Pilot’s Point Marina,Inc. v. Westbrook,

119 Conn. App. 600, 602, 988 A.2d 897 (2010). ‘‘A finding

of fact is clearly erroneous when there is no evidence

in the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . In making

this determination, every reasonable presumption must

be given in favor of the trial court’s ruling.’’ (Internal

quotation marks omitted.) Albemarle Weston Street,

LLC v. Hartford, 104 Conn. App. 701, 706, 936 A.2d

656 (2007).

‘‘[I]n an appeal pursuant to § 12-117a, the trial court

tries the matter de novo and the ultimate question is

the ascertainment of the true and actual value of the

[taxpayer’s] property.’’ (Footnote omitted; internal quotation marks omitted.) Xerox Corp. v. Board of Tax

Review, 240 Conn. 192, 204, 690 A.2d 389 (1997).

‘‘Whether a property has been overvalued fortax assessment purposes is a question of fact for the trier.’’ (Internal quotation marks omitted.) Konover v. West

Hartford, 242 Conn. 727, 735, 699 A.2d 158 (1997); Newbury Commons Ltd. Partnership v. Stamford, 226

Conn. 92, 103, 626 A.2d 1292 (1993). ‘‘The trier arrives

at his own conclusions as to the value of land by

weighing the opinion of the appraisers, the claims of

the parties in light of all the circumstances in evidence

bearing on value, and his own general knowledge of

the elements going to establish value including his own

view of the property.’’ O’Brien v. Board of Tax Review,
169 Conn. 129, 136, 362 A.2d 914 (1975). ‘‘Because a

tax appeal is heard de novo, a trial court judge is privileged to adopt whatever testimony [it] reasonably

believes to be credible.’’ (Emphasis omitted; internal

quotation marks omitted.) Aetna Life Ins. Co. v. Middletown, 77 Conn. App. 21, 28, 822 A.2d 330, cert. denied,

265 Conn. 901, 829 A.2d 419 (2003). ‘‘The court has

wide discretion in the admission of evidence and in

determining what weight to give any such evidence.’’

Nolan v. Milford, 92 Conn. App. 607, 609, 886 A.2d

493 (2005).

The defendant claims that the court erroneously

relied upon the plaintiff’s 2006 annual income and

expense report.19 We disagree. The evidence regarding

the property’s net rentable area consisted of exhibits

and trial testimony; we address each in turn.

Throughout the course of the two day trial, the court

received several pieces of documentary evidence

regarding the property’s net rentable area, including:

the plaintiff’s 2006, 2007, and 2008 rent rolls; the city

assessor’s field card; and the plaintiff’s 2006 annual

income and expense report. A review of these documents reveals that the plaintiff’s December 2006 rent

roll, January 2007 rent roll, and 2006 annual income

and expense report consistently stated that the subject

property had a gross building area of 249,986 square

feet. The plaintiff’s December 2007 rent roll, however,

reported a gross building area of 260,147 square feet,

reflecting an increase of approximately 10,200 square

feet. Similarly, the plaintiff’s December 2008 rent roll

reflected an additional increase of approximately 4500

square feet, resulting in a gross building area of 264,673

square feet.

In addition to these documents, the court heard testimony from both appraisers regarding the property’s net

rentable area. On direct examination, Michel testified

that when he calculated the property’s fair market

value, he relied on the 2008 tax assessor’s information,

which reported that the property had 238,879 square

feet in rentable area. Michel explained that, by using

this figure, he was able to compare his appraisal to

the tax assessor’s appraisal using identical information.

Michel testified on cross-examination that, before he

performed his appraisal, he reviewed twelve years’

worth of information on the subject property and noted

that its net rentable area ranged from 230,000 to 260,000

square feet throughout that period. Michel testified that

this was an indication that the net rentable area of the

property varied depending on the market. Michel also

testified that the city assessor’s field cards often

reflected the assessor’s personal opinion as to the property’s net rentable area and that, often times, such information was incorrect. Michel explained, however, that

he had no reason to believe that the tax assessor’s

information in this case was incorrect. Michel also
stated that he reviewed the plaintiff’s rent rolls between

2006 and 2008 and that the discrepancies reflected in

those exhibits did not alter his conclusion.

The following day, the defendant’s appraiser, Fazio,

testified as to his appraisal of the property. On direct

examination, Fazio stated that ‘‘there [are] several

square footages that are delineated forthe subject property depending on what document you look at.’’ Fazio

also testified that he disagreed with Michel’s reliance

on the assessor’s records, and instead that he relied on

an oral representation by Tara Deluca, an agent of the

plaintiff, who stated that the property’s size was 256,974

square feet. Cross-examination revealed, however, that

this oral representation was made during a later onsite inspection of the property in 2011. Fazio admitted

that he did not make any notes regarding his conversation with Deluca and that he was unsure whether the

figure she gave him included nonrentable areas of the

property as well. Finally, Fazio testified that his net

rentable area calculation included the 6400 square feet

in common areas because he believed that the tenants

owned an equal share of these spaces and, as such,

their rent per square foot included a percentage of the

common areas.

On the basis of Michel’s and Fazio’s conflicting testimony, we conclude that the trial courtreasonably could

have discredited both witnesses’ testimony as it related

to the property’s net rentable area. As discussed in the

preceding paragraphs, ‘‘the trial judge is the sole arbiter

of the credibility of the witnesses and the weight to be

given specific testimony. . . . [T]he trial court is privileged to adopt whatever testimony [it] reasonably

believes to be credible.’’(Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262

Conn. 11, 26, 807 A.2d 955 (2002). In this case, Michel

stated that netrentable area is calculated by subtracting

the common area from the gross building area and that

the assessor’s information reflected a net rentable area

of 238,874 square feet. A closer inspection of the assessor’s information, however, reveals that this figure of

238,874 square feet included the 6400 square feet of

common space area. As such, it was reasonable for the

courtto discredit Michel’s testimony as to the property’s

net rentable area. Likewise, the court reasonably could

have discredited Fazio’s testimony regarding the property’s net rentable area of 256,974 square feet on the

grounds that he relied solely on an oral representation

made three years after the revaluation date and that he

was unsure whether this figure included nonrentable

areas.

With regards to the documentary evidence admitted

at trial, we conclude that the court reasonably could

have found that the net rentable area of the property

was 243,586 square feet. In its memorandum of decision,

the court recognized the different net rentable area
figures contained in the plaintiff’s 2006, 2007, and 2008

rent rolls. The trial court considered these documents

and ultimately determined that it was more appropriate

to rely on the 2006 annual income and expense report.

We have consistently held that ‘‘[t]he court has wide

discretion in the admission of evidence and in determining what weight to give any such evidence.’’ Nolan v.

Milford, supra, 92 Conn. App. 609. In this case, ‘‘[t]he

court was required . . . to consider the evidence it

admitted. . . . It did so and determined what weight

to give to the evidence . . . .’’ (Citation omitted.) Id.,

610–11. The court’s factual finding that the property

had a net rentable area of 243,586 square feet was adequately supported by the evidence admitted and was

not based upon an erroneous rule of law. O’Brien v.

Board of Tax Review, supra, 169 Conn. 135–37. Accordingly, we conclude that the court’s finding, as it relates

to the net rentable area, was not clearly erroneous.

II

The defendant’s final claim is that the trial court

improperly excluded $190,000 in ‘‘other income’’ attributable to the property when it calculated the property’s

potential gross income. We disagree. As a preliminary

matter, we note that the defendant’s proposed addition

of $190,000 in ‘‘other income’’ is derived from a 2007

audit report that was admitted at trial. This $190,000

figure is comprised of three separate items: $165,637

of interest earned on a money market account; $14,264

of conference room income; and $10,300 of ‘‘tenant

other income.’’ Each will be addressed in turn.

A

Tenant Other Income

We quickly dispose of the defendant’s claim that the

trial court’s potential gross income calculation should

have included $10,300 attributable to ‘‘tenant other

income.’’ Although Fazio testified that he included this

figure in his calculation of the property’s potential gross

income, he admitted that he did not know what this

figure actually represented. The defendant failed to produce additional testimony or other evidence clarifying

what was contained within this figure. Accordingly, the

court was well within its province, as the trier of fact,

to conclude that this figure should not be added to the

property’s potential gross income.

B

Interest Income

We now address whether the court improperly

excluded $165,637 of interest income derived from the

plaintiff’s money market account. In its memorandum

of decision, the trial court excluded this income from

its computation of the property’s potential gross income

and concluded that ‘‘$26 [per square foot]is a fairresolution of the subject’s potential gross income, as of Octo-
ber 1, 2008.’’ The defendant argues that the court’s

failure to include this income was clearly erroneous,

and that our decision in Pilot’s Point Marina, Inc.,

requires us to conclude that the court committed reversible error. We disagree.

In Pilot’s Point Marina, Inc., the plaintiff owned one

of the largest marinas in New England. Pilot’s Point

Marina, Inc. v. Westbrook, supra, 119 Conn. App. 601.

On October 1, 2006, the defendant town assessed the

property at a value of $19 million. Id. The plaintiff

appealed that assessment, pursuant to § 12-117a, and

argued that the property’s fair market value as of that

date was $15,700,000. Pilot’s Point Marina,Inc. v. Westbrook, Superior Court, judicial district of Middlesex,

Docket No. CV-07-4007441-S, 2008 WL 4926930, *1

(November 6, 2008), rev’d, 119 Conn. App. 600, 988

A.2d 897 (2010). The trial court reviewed the town’s

assessment de novo and found, in part, that the marina

generated $1,611,042 from slip rentals as well as winter

and summer storage fees. Id., *3. The court, however,

‘‘failed to include $102,192 of summer storage income

in its final EGI [effective gross income] calculation [pursuant to the income capitalization method]. The court

articulated its omission by explaining that it was aware

of the income generated through summer storage but

chose to disregard it because most marinas do not offer

summer storage, and, therefore, the summer storage

income realized by the plaintiff was not representative

of the market.’’ Pilot’s Point Marina, Inc. v. Westbrook,

supra, 119 Conn. App. 603. Ultimately, the trial court

concluded that the property had been overvalued, and

so it reduced the town’s assessment by approximately

$2 million. Id., 602.

On appeal in Pilot’s Point Marina, Inc., we agreed

with the defendant that the court’s failure to include

the summer boat storage income was clearly erroneous.

Id., 603–604. In doing so, we held that ‘‘[p]ursuant to

§ 12-63b (b), the court is required to consider both market rent and actual rent when determining fair market

value using the income capitalization method. . . .

Moreover, if the property is devoted to the use for which

it is best adapted and is in a condition to produce or

is producing its maximum income, the actual rental is

a very important element in ascertaining its value. . . .

Consequently, in light of the actual income generated by

the property through summer boat storage, the court’s

failure to include any summer storage income in its

final EGI calculation was improper.’’(Citations omitted;

footnotes omitted; internal quotation marks omitted.)

Id.

The defendant argues that the interest income

derived from a money market account is ‘‘no more or

less attributable to the land’’ than the summer boat

storage income in Pilot’s Point Marina, Inc. We are

unpersuaded.
As a preliminary matter, we note that in Pilot’s Point

Marina, Inc., both the plaintiff’s and the defendant

town’s appraisers agreed that the income derived from

summer boat storage was income attributable to the

property; they merely disagreed as to how much income

was derived from those rentals for the revaluation year

of 2006. See Pilot’s Point Marina, Inc. v. Westbrook,

supra, Superior Court, Docket No. CV-07-4007441-S,

2008 WL 4926930, *2–4. Nonetheless, the trial court

excluded this income from its calculations on the

ground that the plaintiff ‘‘basically establishes its own

market,’’ in that it was the only local marina that had

the ability to earn income from summer boat storage.

Id., *3. Thus, although the parties agreed that the income

from summer boat storage was, in fact, attributable to

the property, the court excluded such income from its

calculations because it did not believe that it accurately

reflected the earning capacity of similarly situated marinas. See id.

In the present case, however, the parties’ appraisers

disagreed as to whether this ‘‘interest income’’ was

attributable to the property itself. Specifically, Fazio

opined that the interest income derived from the plaintiff’s money market account should be included in the

property’s potential gross income because ‘‘the interest

is . . . from the income derived from the building’’ and

was thus, in his judgment, ‘‘income to the building.’’

Michel, however, disagreed, testifying that interest and

dividends should not be included as income under the

direct capitalization method because, in his opinion,

this income is unrelated to the property. Instead, he

stated, ‘‘It’s relative to the ownership and how they

handle their . . . money.’’ Michel also testified that,

in his twenty-five years of experience, he had never

included interest income when calculating a property’s

fair market value pursuant to the income capitalization

approach. Thus, unlike the court in Pilot’s Point

Marina, Inc., the trial court in this case had to resolve

the threshold issue of whether this income was attributable to the property and thus should be included in the

court’s computation of the property’s potential gross

income.

We have long dichotomized between income attributable to the plaintiff’s real estate and income attributable

to the plaintiff’s business for purposes of tax assessments. Whitney Center, Inc. v. Hamden, 4 Conn. App.

426, 427, 494 A.2d 624 (1985). In Whitney Center, Inc.,

the trial court reduced the defendant town’s assessments for the plaintiff’s life care center during the taxable years of 1981 and 1982. Id. Although the appraisers

agreed as to ‘‘the correct method for valuation, the

appraisers disagreed on which components of the plaintiff’s total income should be attributed to the real property rather than to the business, and on the valuation

of those components.’’ Id., 428–29. On appeal, the defen-
dant claimed that the trial court ‘‘erred in relying upon

an appraisal that did not include a calculation of maximum income’’; id., 427; which the defendant argued

should have included ‘‘a lump sum entrance endowment

and a monthly service fee thereafter for the rights and

services provided by the plaintiff.’’ Id. We affirmed the

judgment of the trial court and held that ‘‘[f]or assessment purposes, the value of the plaintiff’s real estate

must be distinguished from the value of its business

since it is the realty itself which is subject to the property tax assessment.’’ Id.

In light of the conflicting testimony presented in this

case, the trial court reasonably could have found that

the plaintiff’s interest income was not attributable to

the property. We are again reminded that ‘‘the trial judge

is the sole arbiter of the credibility of the witnesses

and the weight to be given specific testimony. . . .

[T]he trial court is privileged to adopt whatever testimony he reasonably believes to be credible.’’ (Internal

quotation marks omitted.) United Technologies Corp.

v. East Windsor, supra, 262 Conn. 26. The court therefore was within its province to credit the testimony of

Michel, an appraiser with twenty-five years of experience, and exclude this figure from its computations.

Under our deferential standard of review, the court’s

findings ‘‘must stand unless there was an error of law

or a legal or logical inconsistency with the facts found.’’

(Internal quotation marks omitted.) Whitney Center,

Inc. v. Hamden, supra, 4 Conn. App. 429–30. The court’s

decision to exclude this ‘‘interest income’’ was consistent with Michel’s testimony and was adequately supported by the record. We have found no law for the

proposition either that the trial court must consider an

interest bearing account in performing such calculations or that its failure to do so constitutes reversible

error. See Redding Life Care, LLC v. Redding, 308

Conn. 87, 106–11, 61 A.3d 461 (2013) (permitting—but

not requiring—the trial court to consider a hypothetical

entry fee escrow account in its valuation of the subject

property). Accordingly, we conclude that the court’s

finding, as it relates to the ‘‘interest income,’’ was not

clearly erroneous.

C

Conference Room Rental Income

Lastly, we address the defendant’s argument concerning $14,264 in conference room income. At trial, the

plaintiff presented the testimony of Jeffrey Newman,

the executive vice president of Malkin Properties,

which is the company that managed the marketing and

leasing of the subject property. Newman testified that

the conference room, fitness center, and dining area

were for tenants only, and that these areas ‘‘are not

leased to tenants, but they’re available for use by tenants.’’ With respect to the conference room, Newman

testified that tenants were able to ‘‘call us up and reserve
it.’’20 Later that day, Michel was asked a series of questions regarding the property’s ‘‘other income.’’ Michel

stated that the conference room was ‘‘an amenity provided to the tenants, and you can’t achieve rent on that.’’

This testimony was consistent with the plaintiff’s 2006,

2007, and 2008 rent rolls, which consistently stated that

the conference room has a rent potential of zero dollars.

The following day, Fazio testified as to the conference

room income. On cross-examination, Fazio conceded

that the references within the plaintiff’s 2006, 2007, and

2008 rent rolls stated that the ‘‘rent potential’’ and ‘‘rent

actual’’ from the conference room was zero dollars. He

maintained, however, that he believed that the tenants

were required to pay a fee to use the conference center,

it was not part of the tenant’s monthly rent, and, therefore, it was considered ‘‘income to the building.’’ This

opinion was consistent with the plaintiff’s 2006 annual

income and expense report, which reported a year-todate income of $6450 from the conference room in 2006,

as well as a 2007 audit statement, which reported a

year-to-date income of $14,264 in 2007. The defendant

failed, however, to elicit any information from either

Fazio or Newman as to the regularity of these rentals,

the rate charged by the plaintiff, or the costs incurred

by the plaintiff in renting this space.

In the absence of such additional facts, we cannot

conclude that it was clearly erroneous for the court

to exclude this figure from its potential gross income

calculation. In Pilot’s Point Marina, Inc., the trial court

received comprehensive testimony from both appraisers as to the regularity of summer boat storage rentals;

the average length of such rentals and the corresponding effect on the income generated by such rentals; and

the income earned over the course of several years of

storage rentals. Pilot’s Point Marina, Inc. v. Westbrook,

supra, Superior Court, Docket No. CV-07-4007441-S,

2008 WL 4926930. The record in this case, by contrast,

lacks comparable information as to the conference

room rentals. At most, the court was presented with

conflicting testimony and evidence as to whether the

conference room could be considered income attributable to the property, whether the conference room was

able to achieve a regular and consistent income stream

and, even if that was established, which figure most

accurately represented that income stream on a yearly

basis. We are reminded once again that ‘‘[t]he process

of estimating the value of property for taxation is, at

best, one of approximation and judgment, and there is a

margin for a difference of opinion.’’ (Internal quotation

marks omitted.) Carol Management Corp. v. Board of

Tax Review, 228 Conn. 23, 39–40, 633 A.2d 1368 (1993).

Here, the court was presented with sufficient evidence

to reasonably conclude that the property did notreceive

income from the conference room. Alternatively, the

court reasonably could have found that it lacked sufficient evidence as to the consistency of its use for
income-generating purposes. In either case, we conclude that it was not clearly erroneous for the court to

exclude this amount from its calculation and instead

to reach a compromise figure of $26 per square foot.21

The judgment is affirmed.

In this opinion the other judges concurred.

1

In the appeal to the Superior Court, the Board of Assessment Appeals

of the City of Norwalk and the city’s tax assessor, Michael J. Stewart, were

also named as defendants. We refer hereinafter to these parties individually

by name as necessary and to the city of Norwalk as the defendant.

2 We refer to Fairfield Merritview SPE, LLC, as the plaintiff throughout

this opinion. The named plaintiff, Fairfield Merritview Limited Partnership,

is a related entity. See Fairfield Merrittview Ltd. Partnership v. Norwalk,

320 Conn. 535, 539, 133 A.3d 140 (2016).

3 General Statutes § 12-117a provides in relevant part: ‘‘Any person . . .

claiming to be aggrieved by the action of the board of tax review or the

board of assessment appeals, as the case may be, in any town or city may,

within two months from the date of the mailing of notice of such action,

make application . . . to the superior court for the judicial district in which

such town or city is situated . . . . The court shall have power to grant

such relief as to justice and equity appertains, upon such terms and in such

manner and form as appear equitable . . . . If the assessment made by the

board of tax review or board of assessment appeals, as the case may be,

is reduced by said court, the applicant shall be reimbursed by the town or

city for any overpayment of taxes . . . .’’

4 This court, in Fairfield Merrittview Ltd. Partnership v. Norwalk, 149

Conn. App. 468, 89 A.3d 417 (2014), rev’d, 320 Conn. 535, 133 A.3d 140

(2016), concluded that the trial court lacked subject matter jurisdiction over

the plaintiff’s appeal. Id., 477–78. Our decision rested on the fact that, prior

to the assessment, the plaintiff restructured its business from a limited

partnership to a limited liability company. ‘‘On the date of the valuation,

October 1, 2008, the limited liability company was the sole owner of the

property. Nevertheless, Fairfield Merrittview Limited Partnership, the limited partnership, was the entity that challenged the assessor’s valuation

before the board even though it had conveyed its interest in the property

more than a year prior to the valuation date. The actual owner of the

property, the limited liability company, did not participate in that appeal.’’

Id., 474. We concluded that this was fatal to the plaintiff’s appeal and, as

such, we reversed the judgment of the trial court. Our Supreme Court,

however, reversed that decision and held that the plaintiff’s ‘‘prompt amendment of the complaint to add the LLC as a party plaintiff was effective to

confer jurisdiction on the trial court, regardless of whether the action was

instituted by an improper party, the partnership.’’ Fairfield Merrittview Ltd.

Partnership v. Norwalk, 320 Conn. 535, 547, 133 A.3d 140 (2016).

5

‘‘[F]air market value is defined as the price that a willing buyer would

pay a willing seller based on the highest and best possible use of the land

assuming, of course, that a market exists for such optimum use.’’ (Internal

quotation marks omitted.) United Technologies Corp. v. East Windsor, 262

Conn. 11, 25, 807 A.2d 955 (2002); see also Aetna Life Ins. Co. v. Middletown,

77 Conn. App. 21, 35, 822 A.2d 330 (defining fair market value as ‘‘the price

that would result from the fair negotiations of a willing seller and a desirous

buyer’’), cert. denied, 265 Conn. 901, 829 A.2d 419 (2003).

6 General Statutes § 12-111 (a) provides in relevant part: ‘‘Any person . . .

claiming to be aggrieved by the doings of the assessors of such town may

appeal therefrom to the board of assessment appeals. . . . Such board may

equalize and adjust the grand list of such town and may increase or decrease

the assessment of any taxable property or interest therein and may add an

assessment for property omitted by the assessors which should be added

thereto. . . .’’

7

‘‘‘The expressions ‘‘actual valuation,’’ ‘‘actual value,’’ ‘‘market value,’’

‘‘market price’’ and . . . ’’fair value’’ are synonymous.’ ’’ O’Brien v. Board

of Tax Review, 169 Conn. 129, 137–38, 362 A.2d 914 (1975) (Bogdanski,

J., dissenting).

8

‘‘The comparable sales approach is also known as the market data

approach or sales comparison approach. . . . It is a process of analyzing

sales of similar recently sold properties in order to derive an indication of

the most probable sales price of the property being appraised. . . . After

identifying comparable sales, the appraiser makes adjustments to the sales
prices based on elements of comparison.’’ (Internal quotation marks omitted.) Abington, LLC v. Avon, 101 Conn. App. 709, 711–12 n.4, 922 A.2d

1148 (2007).

9

‘‘The income capitalization approach consists of the following seven

steps: (1) estimate gross income; (2) estimate vacancy and collection loss;

(3) calculate effective gross income (i.e., deduct vacancy and collection loss

from estimated gross income); (4) estimate fixed and operating expenses

and reserves for replacement of short-lived items; (5) estimate net income

(i.e., deduct expenses from effective gross income); (6) select an applicable

capitalization rate; and (7) apply the capitalization rate to net income to

arrive at an indication of the market value of the property being appraised.

. . . The process is based on the principle that the amount of net income

a property can produce is related to its market value.’’ (Internal quotation

marks omitted.) Abington, LLC v. Avon, 101 Conn. App. 709, 712 n.4, 922

A.2d 1148 (2007).

10 The court agreed with both appraisers that the income capitalization

approach was the most desirable method of determining the property’s fair

market value. The defendant has not challenged this finding.

11 ‘‘A property’s highest and best use is commonly defined as the use that

will most likely produce the highest market value, greatest financial return,

orthe most profit from the use of a particular piece ofreal estate.’’(Emphasis

omitted; internal quotation marks omitted.) United Technologies Corp. v.

East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002).

12 ‘‘Direct Capitalization is a method used in the income capitalization

approach to convert a single year’s income expectancy into a value indication. This conversion is accomplished in one step, either by dividing the

income estimate by an appropriate income rate or by multiplying it by an

appropriate income factor.’’ The Appraisal of Real Estate (12th Ed. 2001),

p. 529.

13 Pursuant to General Statutes § 12-63b (b), ‘‘the term ‘market rent’ means

the rental income that such property would most probably command on

the open market as indicated by present rentals being paid for comparable

space. In determining market rent the assessor shall consider the actual

rental income applicable with respect to such real property under the terms

of an existing contract of lease at the time of such determination.’’

14 The capitalization rate is considered ‘‘the rate a reasonable investor

would seek on his capital or equity . . . .’’ New Haven Savings Bank v.

West Haven Sound Development, 190 Conn. 60, 65–66, 459 A.2d 999 (1983).

In other words, the capitalization rate is a projection of the buyer’s return

on investment based upon a comparison of the property’s income producing

capacity to its purchase price. Here, both appraisers calculated the applicable capitalization rate by dividing the property’s net operating income (NOI)

by its sale price. ‘‘By dividing the annual netrental figure by the capitalization

rate, market value is ascertained.’’ Id., 66.

15 During the first day of trial, Michel testified that ‘‘gross electric basis’’

means that ‘‘the tenant pays a gross rent plus he pays an additional charge

for tenant electric directly. And then from that you subtract a vacancy factor,

which we discussed, to come up with your potential gross income.’’

16 These additional reimbursements included a utility reimbursement of

$2.15 per square foot; and an expense reimbursement of $2.65 per square

foot.

17 In arriving at a net rentable area of 243,586 square feet, the court subtracted 6400 square feet from the building’s gross square footage of 249,986

square feet. The 6400 square feet deducted represents the common areas

located on the first floor, including the lobby, cafeteria, fitness center, and

conference room. Both parties agree that this is the proper method of

calculating net rentable area.

18 The defendant has not challenged the courts factual finding as to the

market rental value of the subject property. Instead, the defendant claims

that the court should have added $190,000 in ‘‘otherincome’’ to the property’s

PGI of $6,333,236 before proceeding to the next step in the direct capitalization formula.

19 At oral argument before this court, the defendant asserted for the first

time that the court’s credibility determination resulted from an erroneous

interpretation of General Statutes § 12-63c. This argument, however, was

not raised in the defendant’s briefs. ‘‘[I]t is well settled that claims on appeal

must be adequately briefed . . . and cannot be raised for the first time

at oral argument before the reviewing court.’’ (Internal quotation marks

omitted.) JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn. App.

630, 638 n.8, 90 A.3d 249, cert. denied, 312 Conn. 915, 93 A.3d 598 (2014);
see Practice Book § 61-10. Accordingly, we decline to address this argument.

20 The following exchange occurred between counsel for the plaintiff

and Newman:

‘‘Q. All right. And are there building amenities that are specifically leased

to tenants?

‘‘A. Well, yes. For instance, the cafeteria, the fitness, the fitness center,

the conference center are not leased to tenants, but they’re available for

use by tenants.

‘‘Q. Okay. And when you said they are available for use, you mean on

a—if somebody wants to use the conference room on a particular day,

they just—

‘‘A. (Overlapping) Call us up and reserve it.

‘‘Q. —rent it for—’’

‘‘A. Right.

‘‘Q. —or for an hour or whatever it may be?

‘‘A. Correct.’’

21 We note that, had the trial court included this $14,264 in conference

room fees in its calculations, the resulting increase in the property’s fair

market value would be equal to less than one-half of one percent.