Kohl's Dept. Stores, Inc. v. Rocky Hill ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KOHL’S DEPARTMENT STORES, INC. v.
TOWN OF ROCKY HILL
(AC 42021)
DiPentima, C. J., and Moll and Bishop, Js.
Syllabus
The plaintiff, K Co., appealed to the Superior Court from an assessment by
the Board of Assessment Appeals for the defendant town in connection
with certain of K Co.’s personal property declarations. The trial court
sustained K Co.’s appeal, finding that K Co. was aggrieved by the tax
assessment. The court stated that pursuant to statute (§ 12-63 (b) (2)),
the depreciation schedule set forth in § 12-63 (b) (6) can be used by an
assessor only if the municipality has, by ordinance, adopted the provi-
sions of that section, and that the defendant had not adopted any such
ordinance. On appeal to this court, the defendant claimed that the court’s
refusal to consider its assessor’s use of the statutory depreciation sched-
ule in § 12-63 (b) (6) was incorrect and that this legal determination
likely influenced the court’s finding of aggrievement and its ultimate
determination of valuation. Held:
1. The use of the statutory depreciation schedule set forth in § 12-63 (b) (6)
by the defendant’s assessor was legally correct; the legislature intended
that the depreciation schedule set forth in § 12-63 (b) (6) was to be used
by municipal assessors for purposes of standardization and uniformity,
and, given the intent of the assessor in this matter to use the statutory
depreciation schedule in order to achieve town wide consistency and
uniformity in the valuation of business personal property, this court
could not conclude that the assessor was legally barred from utilizing
the statutory schedule.
2. The trial court’s misinterpretation of § 12-63 (b) (2) was harmful and
influenced the outcome of the case; the court’s too narrow interpretation
of § 12-63 (b) (2), foreclosed its consideration of the defendant’s evi-
dence bearing on value solely because that evidence was based on the
statutory depreciation schedule set forth in § 12-63 (b) (6); moreover,
the defendant was not required to offer an expert appraiser to counter
K Co.’s opinion of value because § 12-63 (b) (2) permitted the assessor
to rely solely on the depreciation schedule contained in § 12-63 (b) (6),
and, accordingly, the case was remanded for a new trial.
Argued October 21, 2019—officially released February 18, 2020
Procedural History
Appeal from the decision of the defendant’s Board
of Assessment Appeals rejecting the valuation of certain
of the plaintiff’s personal property declarations,
brought to the Superior Court in the judicial district of
New Britain, Tax Session, where the appeal was tried to
the court, Hon. Arnold W. Aronson, judge trial referee;
judgment for the plaintiff, from which the defendant
appealed to this court. Reversed; new trial.
Daniel J. Krisch, with whom were Morris R. Borea,
and, on the brief, Robbie T. Gerrick, for the appellant
(defendant).
Gregory F. Servodidio, with whom was Michael J.
Marafito, for the appellee (plaintiff).
Opinion
BISHOP, J. In this tax appeal, we are required to
determine whether a municipal tax assessor is permit-
ted to utilize the depreciation schedule set forth in
General Statutes § 12-63 (b) (6)1 to assess the personal
property of a taxpayer when the municipality has not
adopted by ordinance the statutory depreciation sched-
ule as provided in § 12-63 (b) (2).2 We answer that ques-
tion in the affirmative. The defendant, the town of
Rocky Hill (town), appeals from the judgment of the
trial court sustaining the appeal of the plaintiff, Kohl’s
Department Stores, Inc., from the town’s assessment of
personal property located at 1899 Silas Deane Highway,
Rocky Hill (store). On appeal, the town claims that the
court erred in determining that the town’s tax assessor
(assessor) could not utilize the depreciation schedule
set forth in § 12-63 (b) (6) because the town had not
adopted the statutory schedule by ordinance, which
likely influenced the court’s conclusion that the town
had overassessed the plaintiff’s personal property.3 We
agree and, accordingly, reverse the judgment of the
trial court.
The following factual and procedural background is
relevant to our resolution of this appeal. As required by
law,4 the plaintiff prepared and filed personal property
declarations with the town as of October 1, 2014, Octo-
ber 1, 2015, October 1, 2016, and October 1, 2017, in
which it declared the value of its retail fixtures, equip-
ment, furniture, signage, and other items of personal
property located in the store. Its declarations varied
from the town’s declarations with regard to the depreci-
ation schedules used by each party to assess the value
of the plaintiff’s personal property.5 The assessor
rejected the plaintiff’s valuation, as did the Rocky Hill
Board of Assessment Appeals (board).6 After the plain-
tiff’s unsuccessful appeal to the board, it filed a com-
plaint with the trial court, appealing from the assess-
ment made by the assessor and the subsequent action
of the board, pursuant to General Statutes §§ 12-117a
and 12-119.7 In its complaint, the plaintiff asserted that
the assessor improperly had overvalued and overas-
sessed the true and actual value of its personal property
located in its store. The dispute centered on the differ-
ent depreciation schedules employed by the parties,
which resulted in dissimilar values for each year in
question.
The personal property in dispute consisted of show-
cases used by the plaintiff in its store to display mer-
chandise. To value the showcases, the assessor utilized
the depreciation schedule set forth in § 12-63 (b) (6).
The plaintiff, however, retained an outside appraisal
company, Valcon Partners, Ltd. (Valcon). Douglas R.
Krieser was an appraiser for Valcon. Krieser developed
a depreciation schedule based on a study he conducted
that related to the value of used retail showcases with-
out regard to whether the plaintiff’s showcases had
been designed specifically for their approach to retail
presentation.
The matter was tried to the court, Hon. Arnold W.
Aronson, judge trial referee, on November 29 and 30,
2017. At trial, Krieser testified about his approach to
the valuation of the showcases, in which he considered
three components to be essential in the depreciation
calculation: physical deterioration, functional obsoles-
cence, and economic obsolescence. Krieser relied on
information he had received from out-of-state fixture
furniture dealers in the business of reselling used show-
cases. He provided these dealers with a sample of the
fixtures used in one of the plaintiff’s typical stores and
instructed them to use their experience and sales his-
tory and to consider relevant economic factors to esti-
mate what the fixtures would sell for in a transaction
between a typical buyer and seller. Although he
acknowledged that he had learned that there was, in
fact, no market for used custom showcases, he used
the information on the market for generic showcases
as a factor in determining the value of the plaintiff’s
showcases.
In response, the town offered no evidence as to the
value of the showcases; rather, the assessor testified
that he took the historic costs of the showcases, a
calculation not in dispute, and applied to that cost the
depreciation schedule set forth in § 12-63 (b) (6).
Although he acknowledged that he was not aware if the
town had enacted an ordinance adopting the statutory
schedule, the assessor testified that, as a matter of fact,
he assesses all personal property in the town in the
same way, by taking the original cost of an asset and
applying a uniform depreciation schedule to that asset.
Following trial, the court issued its memorandum of
decision sustaining the plaintiff’s appeal. At the outset
of its analysis, the court stated that, pursuant to § 12-
63 (b) (2), the depreciation schedule set forth in § 12-
63 (b) (6) can be used by a municipal assessor only if
the municipality has, by ordinance, adopted the provi-
sions of that section. The court found that the town
had not adopted any such ordinance. The court further
observed: ‘‘The town did not offer an expert appraiser
to counter Valcon’s opinion of value. The only credible
evidence related to fair market value that was intro-
duced at the time of trial was that made by Valcon’s
appraiser and its appraisal report. Valcon’s appraisal
report was based on a study of factors dealing with
the depreciation of in-store personal property.’’ On the
basis of the Valcon evidence and the lack of any
appraisal from the town, the court found that the plain-
tiff was aggrieved by the tax assessment. The court’s
findings make clear that it did not give any weight to the
assessor’s evidence based on the statutory depreciation
schedule solely because it concluded that the assessor
was not legally permitted to utilize the statutory depre-
ciation schedule. On appeal, the town argues that the
court’s refusal to consider the assessor’s use of the
statutory depreciation schedule was incorrect and that
this legal determination likely influenced the court’s
finding of aggrievement and its ultimate determination
of valuation.
We begin our analysis with the applicable standard
of review and a discussion of the legal principles that
guide our decision. ‘‘A trial court hears tax appeals
pursuant to § 12-117a de novo and must arrive at [its]
own conclusions as to the value of [the taxpayer’s prop-
erty] by weighing the opinion of the appraisers, the
claims of the parties in light of all the circumstances
in evidence bearing on value, and [its] own general
knowledge of the elements going to establish value
. . . . We are bound by the trial court’s findings of
facts unless those findings are clearly erroneous, but
we invoke a plenary review of any legal conclusions.
We must, therefore, decide whether the conclusions
are legally and logically correct, and find support in
the record.’’ (Citation omitted; internal quotation marks
omitted.) Davis v. Westport, 61 Conn. App. 834, 840,
767 A.2d 1237 (2001).
‘‘[A]n aggrieved taxpayer may appeal to the Superior
Court. In a § 12-117a appeal, the court potentially per-
forms two functions. Initially, the court determines
whether the board’s action aggrieved the taxpayer. . . .
A taxpayer satisfactorily demonstrates aggrievement
where the board’s action will require the payment of
an unjust and, therefore, illegal tax. . . . An affirmative
finding of aggrievement is an absolute condition prece-
dent to the second function, which involves the court’s
broad discretionary power to grant appropriate relief.
. . . In exercising its discretion, the court should cor-
rect the valuation. . . . The issue of aggrievement
involves a two part analysis, which entails both factual
determinations and a question of law. Whether a spe-
cific action that the assessor takes in his valuation has
aggrieved a taxpayer is a question of law. . . . Whether
a property has been overvalued for tax assessment pur-
poses is a question of fact for the trier.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 842. ‘‘[T]he trial court first must determine
whether the plaintiff has offered sufficient, credible
evidence that the subject property has been overvalued.
If the trial court concludes that the plaintiff has not
met [this] burden, the trial proceeds no further, and the
town’s assessment stands. . . . If the trial court finds
that the taxpayer has failed to meet his burden because,
for example, the court finds unpersuasive the method
of valuation espoused by the taxpayer’s appraiser, the
court may render judgment for the town on that basis
alone. . . . With respect to appeals by taxpayers, we
have regularly affirmed such judgments without a show-
ing that the town adduced affirmative evidence suffi-
cient to demonstrate that the assessor’s determination
of market value was not unjust.’’ (Citations omitted;
internal quotation marks omitted.) Nutmeg Housing
Development Corp. v. Colchester, 324 Conn. 1, 9, 151
A.3d 358 (2016).
Having set forth the principles that guide our review,
we now turn to the issue of whether a municipal tax
assessor may use the depreciation schedule provided
in § 12-63 (b) (6) for purposes of assessing personal
property when the municipality has not adopted it by
ordinance. The court, in its memorandum of decision,
concluded that, ‘‘before § 12-63 (b) (6) can come into
play, § 12-63 (b) (2) requires that a municipality must,
by ordinance, adopt the provisions’’ thereof. (Emphasis
added.) Thus, in order to determine whether the court’s
conclusion regarding the provision was correct, we
must carefully construe the language of § 12-63 (b) (2).
‘‘The principles that govern statutory construction
are well established. When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Mickey v.
Mickey, 292 Conn. 597, 613–14, 974 A.2d 641 (2009).
Furthermore, ‘‘[t]he words of a statute are to be given
their commonly approved meaning, unless a contrary
intent is expressed.’’ State v. S & R Sanitation Services,
Inc., 202 Conn. 300, 308, 521 A.2d 1017 (1987). Finally,
we note that, if the otherwise plain and unambiguous
language of a statute reveals a latent ambiguity when
the statute is sought to be applied to a particular situa-
tion, the court may turn for guidance to the purpose
of the statute and its legislative history to resolve that
ambiguity. See Conway v. Wilton, 238 Conn. 653, 665,
680 A.2d 242 (1996).
Under § 12-63 (b) (2), a municipality is vested with
discretion in determining whether to adopt the depreci-
ation schedule. The statute provides in relevant part
that ‘‘[a]ny municipality may, by ordinance, adopt the
provisions of this subsection to be applicable for the
assessment year . . . .’’ (Emphasis added.) The plain
language unmistakably gives to the municipality the
authority to adopt the depreciation schedule to assess
the personal property of taxpayers. We note, however,
that the statute does not explicitly limit the use of the
statutory depreciation schedules only to those munici-
palities which have adopted them by ordinance. Thus,
the statute does not answer our central question of
whether the depreciation schedules devised by the leg-
islature may be used by individual tax assessors in
municipalities that have not adopted the schedules by
ordinance. Because that question raises an ambiguity
not apparent from the clear language of the statute, we
turn to the purposes of the statute as revealed by its
legislative history.
Although the legislative history does not directly
answer our question, it clearly reveals that the statute’s
overarching purpose is to equip municipalities with the
ability to adopt standardized assessment criteria. This
history reflects an interest in regulating the approach
to personal property assessment. During the 1999 ses-
sion of the legislature when subsection (b) was first
added to § 12-63, Representative Belden remarked that
the bill ‘‘will start on a process of hopefully having more
standardized assessment criteria for municipalities to
use.’’ 42 H.R. Proc., Pt. 17, 1999 Sess., p. 6107, remarks
of Representative Richard Belden. Additionally, during
discussion of the bill that would become Public Act 99-
290, Representative McDonald remarked that the ‘‘bill
provide[d] for uniform depreciation schedules’’ and that
it was ‘‘not mandatory that [anyone] follow these sched-
ules.’’ Id., p. 6104, remarks of Representative Anne
McDonald. This history supports a conclusion that the
legislature intended that the depreciation schedules set
forth in § 12-63 (b) were to be used by municipal asses-
sors for purposes of standardization and uniformity,
and that, although adoption of the schedules by munici-
palities was not being mandated, the creation of a vehi-
cle for a standardized approach to personal property
assessment was a core purpose of the legislation. Given
that purpose and the intent of the assessor in this matter
to use the statutory depreciation schedule in § 12-63
(b) (6) in order to achieve town wide consistency and
uniformity in the valuation of business personal prop-
erty, we cannot conclude that the assessor was legally
barred from utilizing the statutory schedule. Indeed, it
would appear that his use of the schedule is entirely
consistent with the core purpose of the statute.
On this basis, we conclude that the assessor’s use of
the statutory depreciation schedule was legally correct.
Whether the values set forth in the statute can fairly
be applied to the property in question was a question
of fact not reached by the trial court.
We next turn to the question of whether the court’s
legal determination of aggrievement and its refusal to
consider the statutory depreciation schedule as prof-
fered by the town in response to the plaintiff’s valuation
claims likely influenced the outcome of this case. ‘‘The
trial court’s legal conclusions are subject to plenary
review. [W]here the legal conclusions of the court are
challenged, we must determine whether they are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision . . . .’’
(Internal quotation marks omitted.) Amica Mutual Ins.
Co. v. Muldowney, 166 Conn. App. 831, 837, 142 A.3d
439 (2016), aff’d, 328 Conn. 428, 180 A.3d 950 (2018).
In the present case, the court’s legal conclusion
regarding the town’s appraisal directly affected the out-
come. As stated previously in this opinion, when
determining a tax appeal under § 12-117a, the trial court
performs two functions. See Nutmeg Housing Develop-
ment Corp. v. Colchester, supra, 324 Conn. 9. First, the
burden is on the taxpayer to demonstrate to the court
that it has been aggrieved by the decision of the board
in that its property has been overassessed. When
determining whether the taxpayer has been aggrieved,
the court considers the reports of the parties, including
evidence bearing on value. If the taxpayer fails to show
that it has been aggrieved, the court may enter judgment
for the municipality solely on that basis. In its second
function, the court, on the basis of its finding of
aggrievement, has the discretion to grant appropriate
relief to the aggrieved party. See Davis v. Westport,
supra, 61 Conn. App. 842.
Here, the court precluded itself from properly per-
forming these functions. First, by too narrowly interpre-
ting § 12-63 (b) (2), the court foreclosed consideration
of the town’s evidence bearing on value, namely, its
appraisal report, solely because it was based on the
statutory depreciation schedule set forth in § 12-63 (b)
(6).8 Additionally, when considering the evidence bear-
ing on value, the court noted that the town did not offer
an expert appraiser to counter the plaintiff’s opinion
of value. Thus, from the court’s optic, it confronted a
situation in which the taxpayer offered credible evi-
dence of valuation and the town, in turn, offered no
evidence. In our view, however, the town was not
required to offer an expert appraiser because § 12-63
(b) (2) permitted the assessor to rely solely on the
depreciation schedule contained in § 12-63 (b) (6).
Whether, in fact, those values reflect the true value of
the property in question is a question the court, on
remand, must determine.
Accordingly, we conclude that the court’s misinter-
pretation of § 12-63 (b) (2) was harmful and it influ-
enced the outcome of this case.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
General Statutes § 12-63 (b) (6) provides: ‘‘The following schedule of
depreciation shall be applicable with respect to all tangible personal property
other than that described in subdivisions (3) to (5), inclusive, of this subsec-
tion:
‘‘Depreciated Value
As Percentage
‘‘Assessment Year Of Acquisition
Following Acquisition Cost Basis
‘‘First year Ninety-five per cent
‘‘Second year Ninety per cent
‘‘Third year Eighty per cent
‘‘Fourth year Seventy per cent
‘‘Fifth year Sixty per cent
‘‘Sixth year Fifty per cent
‘‘Seventh year Forty per cent
‘‘Eighth year and thereafter Thirty per cent’’
2
General Statutes § 12-63 (b) (2) provides in relevant part: ‘‘Any municipal-
ity may, by ordinance, adopt the provisions of this subsection to be applicable
for the assessment year commencing October first of the assessment year
in which a revaluation of all real property required pursuant to section 12-62
is performed in such municipality, and for each assessment year thereafter.
If so adopted, the present true and actual value of tangible personal property,
other than motor vehicles, shall be determined in accordance with the
provisions of this subsection. If such property is purchased, its true and
actual value shall be established in relation to the cost of its acquisition,
including transportation and installation, and shall reflect depreciation in
accordance with the schedules set forth in subdivisions (3) to (6), inclusive,
of this subsection. If such property is developed and produced by the owner
of such property for a purpose other than wholesale or retail sale or lease,
its true and actual value shall be established in relation to its cost of develop-
ment, production and installation and shall reflect depreciation in accor-
dance with the schedules provided in subdivisions (3) to (6), inclusive, of
this subsection. . . .’’
3
We note that the town argues, in the alternative, that the court’s reliance
on the plaintiff’s expert appraiser was improper because his assessment
was based on market values of property for which there was no actual
market and, thus, was unreliable. We do not reach this argument at this
junction because its resolution is fact laden and better addressed by the
court on remand.
4
See General Statutes §§ 12-43, 12-57a, and 12-71.
5
The plaintiff and the town calculated the following depreciated valuations
of the plaintiff’s business personal property:
Town’s Value Plaintiff’s Amended Value
October 1, 2014 $632,457 $546,300
October 1, 2015 $856,629 $678,700
October 1, 2016 $911,345 $589,600
October 1, 2017 $847,500 $512,400
6
Pursuant to General Statutes § 12-111, a taxpayer claiming to be aggrieved
by the assessor of the municipality may file an appeal with the municipal
board of assessment appeals for relief. Here, the plaintiff filed its appeal
with the board.
7
While the complaint was brought pursuant to both §§ 12-117a and 12-
119, the plaintiff made no argument at trial and makes none on appeal
relating to § 12-119. Thus, we conclude that the plaintiff, having, relied solely
on § 12-117a as the basis of its complaint and in this appeal, has abandoned
any claim premised on the provisions of § 12-119. See De La Concha of
Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 426 n.2, 849 A.2d 382(2004) (plaintiff’s failure to address claims in posttrial brief resulted in
abandonment of those claims); Nation Electrical Contracting, LLC v. St.
Dimitrie Romanian Orthodox Church, 144 Conn. App. 808, 814 n.6, 74 A.3d
474 (2013); Peck v. Milford Hunt Homeowners Assn., Inc., 110 Conn. App.
88, 91 n.5, 953 A.2d 951 (2008).
8
We have stated that it is harmful for a court to discount evidence bearing
on value. See Grossomanides v. Wethersfield, 33 Conn. App. 511, 515–17,
636 A.2d 867 (1994).