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WHEELABRATOR BRIDGEPORT, L.P. v. CITY
OF BRIDGEPORT
WHEELABRATOR BRIDGEPORT, L.P., ET
AL. v. CITY OF BRIDGEPORT
(SC 19288)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa,
Robinson and Vertefeuille, Js.
Argued September 17, 2015—officially released February 2, 2016
John B. Daukas, pro hac vice, with whom were Barry
C. Hawkins and Michael K. Murray, for the appellants-
appellees (plaintiffs).
Elliott B. Pollack, with whom was Tiffany K. Spi-
nella, for the appellee-appellant (defendant).
Opinion
ZARELLA, J. The named plaintiff, Wheelabrator
Bridgeport, L.P. (Wheelabrator), operates a waste to
energy facility (facility) located on property in the city
of Bridgeport (property).1 In 2009, Wheelabrator
appealed from the tax assessment of the defendant, the
city of Bridgeport (city), pursuant to General Statutes
§§ 12-117a, 12-119 and 22a-270, claiming that the city
had overvalued the property, as well as personal prop-
erty located on the property, on the city’s 2007 and 2008
grand lists for purposes of assessing property taxes. In
2011, Wheelabrator, the United States Bank National
Association, as corporate owner trustee of the facility,
James E. Mogavero, as individual owner trustee of the
facility, and Waste To Energy I, LLC (Waste To Energy),2
as equitable owner of the facility, filed a second appeal
from the city’s tax assessment, alleging that the city
had overvalued the property on the 2010 grand list.
Thereafter, the two appeals were consolidated for pur-
poses of trial. The city moved to dismiss both appeals
for lack of standing, and the trial court granted the
motion to dismiss the first appeal but denied the motion
to dismiss the second appeal. The trial court then ren-
dered partial judgment in favor of Wheelabrator in the
second appeal and reduced the valuation of the property
on the 2010 grand list. Wheelabrator filed the present
appeal3 from the judgments of the trial court, claiming,
among other things, that the trial court improperly (1)
granted the city’s motion to dismiss the first appeal,
(2) improperly valued the property in the second appeal,
and (3) failed to consider evidence of the city’s wrongful
conduct in the second appeal. The city cross appealed,
claiming that, in the second appeal, the trial court
improperly (1) denied its motion to dismiss, (2) admit-
ted the appraisal testimony of Wheelabrator’s two
expert witnesses, and (3) excluded developer’s profit
from its valuation of the property based on the cost to
construct the facility. We conclude that the trial court
improperly dismissed the first appeal. We also agree
with Wheelabrator’s two claims regarding the second
appeal and reject the city’s claims on cross appeal.
Accordingly, we reverse the judgment of the trial court
dismissing the first appeal, reverse the trial court’s valu-
ation of the property in the second appeal, and remand
for further proceedings in the first appeal and a new
trial in the second appeal.
The record reveals the following procedural history
and facts, some of which were found by the trial court
and some of which are undisputed. The facility was built
in the 1980s as a collaboration between the Connecticut
Resources Recovery Authority (CRRA) and Wheela-
brator. The facility burns municipal solid waste to gen-
erate electricity, which Wheelabrator sells to United
Illuminating Company. In addition to income derived
from the sale of electricity, Wheelabrator receives tip-
ping fees from municipalities in exchange for receiving
municipal solid waste.
In order to take advantage of certain tax and bond
opportunities that would not have been available if the
facility had been owned by a private entity, CRRA took
nominal title to the facility and leased it back to Wheela-
brator. Pursuant to § 22a-270 (a),4 the property was
exempt from municipal property taxes until January 1,
2009. The property became taxable on that date pursu-
ant to § 22a-270 (b). On the city’s 2007 grand list, the
city listed the fair market value of the property as
$365,624,993 and the value of Wheelabrator’s personal
property as $17,253,570. These amounts reflected the
value of the real and personal property as of October
1, 2003, the date of the last citywide property valuation.
The city conducted a citywide revaluation on October
1, 2008. As the result of this revaluation, the city listed
the value of the property on the 2008 grand list as
$401,624,570 and the value of Wheelabrator’s per-
sonal property as $10,559,534. Wheelabrator appealed
from the 2007 and 2008 valuations to the Board of
Assessment Appeals of the City of Bridgeport (board),
claiming that the valuations were excessive.5 The board
denied the appeal. Wheelabrator then appealed from
this denial to the trial court pursuant to §§ 12-117a,6 12-
1197 and 22a-270 (b). In its complaint, Wheelabrator
alleged that, as of December 31, 2008, Waste To Energy
was the owner of the property and that Wheelabrator
was a lessee that was responsible for paying all prop-
erty taxes.
Thereafter, the city filed a motion to dismiss the
appeal for lack of subject matter jurisdiction on the
ground that Wheelabrator lacked standing. Specifically,
the city contended, among other things, that Wheela-
brator had alleged that Waste To Energy was the owner
of the property that Wheelabrator leased when, in fact,
CRRA was the owner of the land. Accordingly, the city
argued, Wheelabrator ‘‘does not have a legally cogniza-
ble interest in the subject property from Waste [To
Energy]’’ for purposes of §§ 12-117a and 12-119. See
General Statutes § 12-117a (‘‘any lessee of real property
whose lease has been recorded as provided in section
47-19 and who is bound under the terms of his lease
to pay real property taxes’’ has right to appeal from
board’s ruling); General Statutes § 12-119 (‘‘any lessee
[of the property] whose lease has been recorded as
provided in section 47-19 and who is bound under the
terms of his lease to pay real property taxes’’ has right
to appeal from board’s ruling). In addition, the city
claimed that Wheelabrator lacked standing because a
lessee of personal property cannot file an appeal pursu-
ant to §§ 12-117a and 12-119. Wheelabrator filed an
opposition to the motion, in which it claimed that, as
of January 3, 2009, CRRA held record title to the land
on which the facility was located, CRRA leased the land
to Wheelabrator, which subleased it to the United States
Bank National Association and Mogavero, the owner
trustees, who, in turn, subleased it back to Wheela-
brator. In addition, Wheelabrator alleged that the United
States Bank National Association and Mogavero, as
owner trustees, had record title to the facility and, on
behalf of Waste To Energy, which was the trust benefi-
ciary and equitable owner of the facility, leased the
facility to Wheelabrator. Wheelabrator also claimed that
its standing to appeal pursuant to § 22a-270 did not
depend in any way on the nature of Waste To Energy’s
interest in the land. Rather, that statute was intended
to allow lessees such as Wheelabrator to appeal from
the city’s tax assessments. Finally, Wheelabrator con-
tended that it had standing under §§ 12-117a and 12-
119 because it was a lessee of real property whose lease
had been recorded in the land records and who was
required to pay property taxes, and the statutes were
not limited to appeals from real property assessments.
The trial court concluded that the issue of Wheela-
brator’s standing involved factual questions that would
be better addressed at the time of trial and denied the
city’s motion to dismiss.
On its 2010 grand list, the city again listed the value
of the real property as $401,624,570, but it reassessed
the value of Wheelabrator’s personal property at
$56,873,060. Wheelabrator appealed from this valuation
to the board. At a hearing in this second appeal, the
chairman of the board asked Wheelabrator if it had
an appraisal report for the property. Wheelabrator had
prepared a draft appraisal report for use in the first
appeal, but, because the report was not yet subject
to disclosure in that litigation under the trial court’s
discovery schedule, and because Wheelabrator believed
that the report was privileged and confidential attorney
work product, Wheelabrator declined to produce it.
The board ultimately denied the second appeal, and
Wheelabrator appealed from the board’s denial to the
trial court pursuant to §§ 12-117a, 12-119 and 22a-270
(b). The trial court consolidated the two appeals for
trial.
At the trial of the consolidated appeals, the city con-
tended that the second appeal should be dismissed for
lack of standing because (1) Wheelabrator failed to
establish either that CRRA owned the land and that
Wheelabrator was its lessee or that the United States
Bank National Association and Mogavero, the owner
trustees, owned the facility and that Wheelabrator was
their lessee, (2) a lessee of personal property is not
authorized to appeal pursuant to §§ 12-117a and 12-119,
and (3) Wheelabrator failed to exhaust its administra-
tive remedies because it had refused to provide the
draft appraisal report to the board at the hearing on
the assessment relating to the 2010 grand list. After
trial, the trial court granted the city’s motion to dismiss
the first appeal on the ground that CRRA, not Waste To
Energy, was the owner of the property, and, therefore,
Wheelabrator’s complaint, ‘‘alleging that [Waste To
Energy] was the owner and lessor of the subject prop-
erty, failed to comply with §§ 12-117a and 12-119 [which
allow] only an owner of property or a lessee of the
owner who has agreed to pay the property tax and
whose lease or notice of lease has been recorded [in]
the city’s land records to appeal from an assessor’s
valuation.’’8 The court further concluded that § 22a-270
did not provide ‘‘an alternative path for taking a tax
appeal in order to avoid the restrictions contained in
§§ 12-117a and 12-119’’ because § 22a-270 ‘‘requires the
lessee to comply with chapter 203 of the General Stat-
utes . . . which incorporates §§ 12-117a and 12-119
. . . .’’ The court implicitly denied the city’s motion to
dismiss the second appeal.9
Turning to Wheelabrator’s claim in the second appeal
that the city had overvalued the property on the 2010
grand list, the trial court concluded that the proper
appraisal method was the reproduction cost approach.
The court further concluded that, under that approach,
the value of the property for purposes of the 2010 grand
list and subsequent years was $314,017,430. In addition,
the court found that Wheelabrator had presented no
evidence that the city had improperly valued Wheela-
brator’s personal property at $56,873,060 on the 2010
grand list. The court also noted that ‘‘the value of the
facility under the cost approach does not include per-
sonal property since the cost valuation is not based
[on] the valuation of a going concern.’’ Thus, the trial
court concluded that the city could impose a separate
tax on the personal property. This appeal and cross
appeal followed. We address each of the parties’ claims
in turn. Additional facts and procedural history will be
set forth as necessary.
I
We first address Wheelabrator’s claim that the trial
court improperly granted the city’s motion to dismiss
the first appeal. We agree with Wheelabrator.
The following facts and procedural history are rele-
vant to our resolution of this issue. As we indicated,
the trial court concluded that Wheelabrator lacked
standing to bring the first appeal because it alleged in
its complaint that Waste To Energy owned the property
as of December 31, 2008, and Wheelabrator was its
lessee with responsibility to pay all property taxes
when, in fact, CRRA was the owner of the land. Accord-
ingly, the trial court concluded that Wheelabrator
lacked standing to appeal pursuant to §§ 12-117a and
12-119 because it had failed to plead or to establish that
the requirements of those statutes relating to lessees
of property had been met. The court further concluded
that § 22a-270 (b) did not provide an independent route
for Wheelabrator to establish standing because that
statute required Wheelabrator to comply with chapter
203 of the General Statutes, including the requirements
of §§ 12-117a and 12-119 relating to lessees. Wheela-
brator contends, to the contrary, that § 22a-270 (b),
standing alone, confers standing on it to appeal from
the city’s tax assessment. In addition, Wheelabrator
contends that, because it was CRRA’s lessee, because
its leases with CRRA were recorded in the land records,
and because it was required under the terms of its leases
to pay all property taxes, it had independent standing
to appeal pursuant to §§ 12-117a and 12-119.
We begin our analysis with the standard of review.
‘‘If a party is found to lack standing, the court is without
subject matter jurisdiction to determine the cause. . . .
A determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Burton v. Dominion Nuclear Connecticut, Inc.,
300 Conn. 542, 550, 23 A.3d 1176 (2011).
Because it is dispositive, we first address Wheela-
brator’s claim that it had standing to appeal pursuant
to § 22a-270 (b). That statute provides in relevant part:
‘‘Notwithstanding the provisions of subsection (a) of
this section, real and personal property owned by the
authority may be assessed and taxed against a lessee
pursuant to chapter 203 by the municipality in which
such property is located if such property is leased as
of July 1, 2007, to a lessee or operator by the authority
pursuant to an initial site lease entered into between
the authority and a lessee on or before December 31,
1985. . . . The lessee shall be liable for taxes assessed
pursuant to this subsection and shall have the right to
appeal the amount it is assessed in the tax year such
property first becomes taxable hereunder in the same
manner as a purchaser of formerly tax-exempt property
under section 12-81a,10 with the same effect as if a con-
veyance to a nonexempt purchaser had been placed on
the land records on the date the property first ceases
to be exempt pursuant to this section. . . .’’ (Footnote
added.) General Statutes § 22a-270 (b).
We conclude that this language clearly and unambigu-
ously confers standing on Wheelabrator to appeal from
a property tax assessment. First, the city does not dis-
pute that Wheelabrator is a ‘‘lessee’’ as that term is used
in § 22a-270 (b). Rather, the city’s primary argument is
that, contrary to the allegation in Wheelabrator’s com-
plaint in the first appeal, Waste To Energy never was
the record title holder or record lessor of the property.
Nothing in the language of § 22a-270 (b), however, sug-
gests that an entity that indisputably is a ‘‘lessee’’ under
the statute cannot appeal from a tax assessment unless
it pleads and establishes the identity of the lessor of
the property. To the contrary, the statute provides that
a ‘‘lessee’’ has a right to appeal ‘‘in the same manner
as a purchaser of formerly tax-exempt property under
section 12-81a, with the same effect as if a conveyance
to a nonexempt purchaser had been placed on the land
records on the date the property first ceases to be
exempt pursuant to this section.’’ General Statutes
§ 22a-270 (b). Thus, for purposes of an appeal pursuant
to § 22a-270 (b), a lessee is deemed to be the owner of
the subject property, and property owners clearly have
standing to appeal from property tax assessments.
Accordingly, we cannot perceive why an entity that is
admitted to be a lessee for purposes of § 22a-270 (b)
should be required to plead or prove any additional
element to establish standing to appeal from a property
tax assessment pursuant to that statute.11
We also reject the city’s claim that a lessee of personal
property does not have standing to appeal from the tax
assessment of that property pursuant to § 22a-270 (b).
Section 22a-270 (b) expressly provides that ‘‘real and
personal property owned by the authority may be
assessed and taxed against a lessee’’ and that the lessee
‘‘shall have the right to appeal the amount it is assessed
. . . in the same manner as a purchaser of formerly
tax-exempt property under section 12-81a . . . .’’12
Thus, for purposes of an appeal from a tax assessment
on personal property pursuant to § 22a-270 (b), the les-
see of the property is deemed to be its owner. Accord-
ingly, we conclude that Wheelabrator had standing to
bring the first appeal pursuant to § 22a-270 (b), and,
therefore, the trial court improperly granted the city’s
motion to dismiss that appeal.13
II
We next address Wheelabrator’s claim that the trial
court improperly determined the value of the property
in the second appeal. Specifically, Wheelabrator con-
tends that the trial court improperly rejected the dis-
counted cash flow approach to valuing the property as
a matter of law. We agree with Wheelabrator.
The record reveals the following additional facts and
procedural history that are relevant to our resolution
of this claim. At trial, one of Wheelabrator’s expert
witnesses, Alexander L. Hazen, testified that there are
three primary methods of appraising property, namely,
‘‘the cost approach, [the] income approach, and [the]
sales comparison approach, also known as the market
data approach.’’ When asked what was the most appro-
priate approach for waste energy facilities, Hazen
responded that ‘‘[t]he primary reliance would be on
the income approach to value.’’ Hazen explained that
a purchaser’s ‘‘willingness to pay more or less for a
facility is going to be based on the income flow that
he anticipates into the future.’’ Hazen also explained
that, in applying the income approach to the appraisal
of the property at issue in the present case, he had
reviewed Wheelabrator’s financial information and had
projected income streams from sales of electricity and
tipping fees for the useful life of the facility. Hazen then
converted the value of that future income stream to
present value to arrive at the value of the facility, a
methodology that is known as the discounted cash flow
approach. Hazen concluded that, under this approach,
the fair market value of the property as of October 1,
2008, was $199,300,000.
Although Hazen and Joseph Kettell, another expert
who testified for Wheelabrator, believed that the dis-
counted cash flow approach was the best approach for
appraising the property, they also made calculations
pursuant to the replacement cost approach. Hazen testi-
fied that they applied this approach ‘‘as a check against
other approaches to make sure that you’re not way off
in left field someplace.’’ Hazen and Kettell opined that
the replacement cost of the facility as of the revaluation
date of October 1, 2008, was $211,300,000. Reconciling
this value with the $199,300,000 value based on the
discounted cash flow approach, Wheelabrator’s experts
ultimately concluded that, as of October 1, 2008, the
fair market value of the property was $201,700,000.
Excluding tax exempt pollution control equipment val-
ued at $10,857,310, the taxable value was $190,842,690.
The city’s expert witness, Mark Pomykacz, also testi-
fied that he had relied primarily on the income approach
to appraising the property and that he had relied on
the cost approach only ‘‘[i]n a secondary fashion.’’
Pomykacz testified on cross-examination that he had
relied primarily on the income approach because that
‘‘is the method that the market participants put the
most weight on.’’ Similarly, in his written opinion, he
stated that ‘‘in a deregulated market, the income
approach should be utilized and given the greatest
weight among the three approaches to value for electric
generation facilities,’’ and that ‘‘the income approach
provides the strongest indication of market value for
the [f]acility, as of the valuation dates.’’ He explained
that there are two main income approaches, namely,
direct capitalization14 and the discounted cash flow
analysis, and that he had used both of them to determine
the value of the property. Pomykacz concluded that, as
of October 1, 2008, the value of the property under the
direct capitalization approach was $398,456,411 and its
value under the discounted cash flow approach was
$376,184,993, rounded down to $376,180,000.
Pomykacz also testified, however, that the cost
approach to property appraisal is ‘‘especially informa-
tive’’ for special purpose properties and highly engi-
neered facilities, such as the subject property. He
testified that there are two distinct cost approaches,
namely, the replacement cost approach and the repro-
duction cost approach.15 He further testified that he had
been able to find market data that allowed him to apply
both cost approaches to the subject property ‘‘meaning-
fully and reliably’’ but that ‘‘these conclusions were
given less weight than the income approach conclu-
sions.’’ Pomykacz concluded that, as of October 1, 2008,
the value of the property under the reproduction cost
approach was $362,027,000 and the value under the
replacement cost approach was $402,753,000. After rec-
onciling the various approaches, giving special weight
to the discounted cash flow approach and subtracting
the value of exempt pollution control equipment and
nontaxable and tax exempt property, Pomykacz ulti-
mately concluded that the taxable value of the property
as of October 1, 2008, was $357,500,000.
The trial court ultimately concluded that ‘‘the repro-
duction cost approach is the only credible approach to
use in this case in order to arrive at a [fair market value]
of the subject property as of October 1, 2008.’’ Although
the court acknowledged that both Wheelabrator’s
experts and Pomykacz had testified that the discounted
cash flow approach was an appropriate method to value
the property, the court concluded that this approach
‘‘lack[ed] credibility’’ because, among other reasons,
(1) ‘‘if the [discounted cash flow]/going concern income
approach16 process were credible, then two experi-
enced and knowledgable appraisers who are given the
same basic facts and who use the same income
approach would not be over $200,000,000 apart in their
valuation of the subject property’’;17 (footnote added);
(2) ‘‘[t]he appraisers employed the going concern
approach rather than directly valuing the real and per-
sonal property [that] are the subject of the [two]
appeals,’’18 and (3) the appraisers’ respective valuations
of the nontaxable intangible assets were far apart.19 In
addition, the trial court took note of the court’s observa-
tion in Tamburelli Properties Assn. v. Cresskill, 15 N.J.
Tax 629 (1996), aff’d, 308 N.J. Super. 326, 705 A.2d
1270 (App. Div. 1998), that ‘‘the courts have not always
discussed the discounted cash flow analysis . . . as a
method for arriving at true market value for real estate
in the most positive terms. . . . The [discounted cash
flow] method, as applied to tax valuation proceedings,
is an amalgam of interdependent, attenuated assump-
tions of limited probative value. Whatever may be its
utility in other contexts, its use in [this context] can
only be described as an exercise in financial haruspica-
tion.’’20 (Internal quotation marks omitted.) Id., 643.
After rejecting the other valuation approaches for
various reasons,21 the trial court concluded that ‘‘[t]he
reproduction cost approach has credibility for purposes
of valuing the subject.’’ The trial court then used Pomy-
kacz’ historical cost figure of $241,949,000, which
excluded developer’s profit of 15 percent that Pomy-
kacz had included in his calculations, multiplied this
figure by Pomykacz’ ‘‘trend factor’’ of 2.08 percent, and
applied Pomykacz’ 38 percent depreciation factor to
arrive at a value of $312,017,430. Because the reproduc-
tion cost approach did not include the value of the
land, the court then added the stipulated land value of
$2,000,000, for a total taxable value of $314,017,430 as of
October 1, 2008.22 Accordingly, the trial court concluded
that, to the extent that the second appeal challenged
the city’s valuation of the real property on the 2010
grand list as $401,624,570, the appeal was sustained.
Because Wheelabrator had presented no credible evi-
dence that the city had improperly determined that the
value of its personal property was $56,873,060, however,
the trial court denied Wheelabrator’s appeal from that
valuation. The court rendered judgment in the second
appeal for Wheelabrator accordingly.
After Wheelabrator filed the present appeal from the
judgments of the trial court, this court ordered the trial
court to articulate whether it had rejected the dis-
counted cash flow approach as a method for valuing
the subject property as a matter of law, or because it
found the testimony of the parties’ experts not credible
with respect to that approach. The trial court stated that
it ‘‘did not reject the [discounted cash flow] approach as
a method for valuing the subject property as a matter
of law’’ but had ‘‘rejected the testimony of the parties’
experts because it found this testimony not to be credi-
ble with respect to this approach.’’
Wheelabrator claims on appeal that, notwithstanding
the trial court’s contention to the contrary in its articula-
tion, the court improperly rejected the discounted cash
flow approach to valuing the property as a matter of
law. We agree.
Resolving the issue of whether the trial court improp-
erly rejected the discounted cash flow approach to valu-
ing the property as a matter of law requires us to answer
two questions. First, we must determine whether the
trial court, in fact, rejected the approach as a matter
of law. See, e.g., Redding Life Care, LLC v. Redding,
308 Conn. 87, 102, 61 A.3d 461 (2013) (‘‘the starting
point in any tax appeal taken from the Superior Court
. . . is a determination as to whether the trial court
reached its decision through [1] the exercise of its dis-
cretion in crediting evidence and expert witness testi-
mony, or [2] as a matter of law’’). Second, if we conclude
that the trial court reached its determination as a matter
of law, we must decide whether that determination was
proper. The first question requires us to interpret the
judgment of the trial court, which, itself, is a question
of law. See Ottiano v. Shetucket Plumbing Supply Co.,
61 Conn. App. 648, 651–52, 767 A.2d 128 (2001). ‘‘As an
issue of law, [t]he interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . The determinative factor is the
intention of the court as gathered from all parts of the
judgment . . . . Effect must be given to that which is
clearly implied as well as to that which is expressed.
. . . The construction of a judgment is a question of
law for the court. . . . As a general rule, judgments
are to be construed in the same fashion as other written
instruments. . . . The determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The judgment should admit of a consistent
construction as a whole. . . . To determine the mean-
ing of a judgment, we must ascertain the intent of the
court from the language used and, if necessary, the
surrounding circumstances.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 652.
We conclude for the following reasons that the trial
court rejected the discounted cash flow approach23 to
the valuation of the property as a matter of law. First,
the court strongly suggested that it believed that prob-
lems with the use of the approach itself, rather than
flaws in the experts’ specific calculations, were respon-
sible for the disparate valuations. Indeed, the court
characterized both Kettell and Pomykacz as ‘‘two expe-
rienced and knowledgable appraisers . . . .’’ Second,
and more to the point, the court’s statement that the
appraisers had employed a ‘‘going concern approach
rather than directly valuing the real and personal prop-
erty’’ clearly suggests that the court believed that a
going concern approach, which the court believed was
synonymous with a discounted cash flow approach, was
inherently improper and fundamentally incompatible
with a property valuation for tax assessment purposes,
at least for a property, such as a waste to energy facility,
that had no rental market. See footnote 18 of this opin-
ion. Third, the court noted with approval another court’s
disparagement of the discounted cash flow method as
haruspication. See text accompanying footnote 20 of
this opinion. Fourth, the trial court never explained
why it concluded that the testimony of both Kettell and
Pomykacz that the discounted cash flow approach was
the best approach to the property valuation at issue in
the present case was not credible. In other words, the
court never explained what it was about the property
that led the court to conclude that it was particularly
unsuited to valuation under the discounted cash flow
approach, despite the testimony by the parties’ expert
witnesses that it was the most appropriate method for
valuing this property.24 Cf. Redding Life Care, LLC v.
Redding, supra, 308 Conn. 103 (concluding that trial
court had not rejected going concern approach as
method for valuation as matter of law when ‘‘the trial
court’s disagreement with the plaintiff’s valuation
turned on the flaws in [the appraiser’s] calculations and
formula, not on the method itself’’). In the absence of
any such explanation, we can conclude only that the
court determined that the approach was inappropriate
in the present case because it believed that it is generally
an inappropriate method for valuing property for tax
assessment purposes, at least when the property does
not have a rental market. Finally, it is significant that,
during trial, the trial court had expressed doubts about
the general propriety of employing the discounted cash
flow approach to valuing property for property tax
assessment purposes. See footnote 18 of this opinion.
The court’s reference at that time to the pending appeal
from its decision in Redding Life Care, LLC, supports
the conclusion that the court was not concerned with
specific flaws in the appraisers’ calculations but with
the method itself.25
We are mindful that the trial court stated in its articu-
lation that it had found the testimony of the parties’
experts ‘‘not to be credible with respect to this
approach.’’ It is clear to us, however, that the trial court
rejected the credibility of their testimony that the dis-
counted cash flow approach was a proper method for
valuing the property for tax assessment purposes, not
that it had rejected the credibility of their actual calcula-
tions pursuant to that approach. To be sure, the trial
court in its memorandum of decision did criticize sev-
eral of Kettell’s specific calculations. For the reasons
that we have explained, however, we cannot conclude
that those perceived flaws formed the basis of the trial
court’s rejection of the discounted cash flow approach.
Indeed, although the trial court found that some of
Pomykacz’ calculations under the reproduction cost
approach lacked credibility, the court ultimately based
its valuation on that approach. We conclude, therefore,
that the trial court rejected the discounted cash flow
approach to valuation for property tax assessment pur-
poses—at least as applied to properties that do not
have a rental market—as a matter of law.26
We next consider whether this determination was
proper. ‘‘[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.’’ (Internal quotation marks
omitted.) Redding Life Care, LLC v. Redding, supra,
308 Conn. 101.
In Redding Life Care, LLC, we concluded that
‘‘[t]here may be cases in which it is proper to value real
estate by first valuing the going concern associated
with the property, based on an income capitalization
approach, and other cases in which it is not.’’ Id., 96
n.9. Although we did not directly address the issues of
whether the specific discounted cash flow approach to
valuing a going concern could be employed for property
tax assessment purposes in an appropriate case or
whether the general income approach may be employed
to appraise property that does not have a rental market,
we can perceive no reason why those approaches
should be categorically barred. Indeed, in the present
case, expert witnesses for both sides, whom the trial
court characterized as ‘‘experienced and knowledg-
able,’’ testified that the income approach, and, more
specifically, the discounted cash flow approach, was
the best method for valuing the property, because that
is the method that market participants would use to
determine the price that they would pay for the prop-
erty. We conclude, therefore, that the trial court improp-
erly rejected the discounted cash flow approach to
valuing the property for tax assessment purposes as a
matter of law.
Wheelabrator contends that, if we find that the trial
court improperly rejected the discounted cash flow
approach to the valuation of the property for tax assess-
ment purposes as a matter of law, this court should
adopt the value that Wheelabrator’s expert witnesses
placed on the property, or, alternatively, we should
remand the case to the trial court and direct that court
to apply the discounted cash flow approach to the valua-
tion of the property. We conclude that neither of these
remedies is appropriate. Specifically, we cannot adopt
the valuation of Wheelabrator’s experts because doing
so would require us to find facts and make credibility
determinations, which are not within the province of an
appellate court. Similarly, because we have concluded
only that the trial court improperly determined that the
discounted cash flow approach cannot be employed in
the present case as a matter of law, not that it must be
employed as a matter of law, it would be inappropriate
for us to direct the trial court to apply the discounted
cash flow approach on remand.27 Accordingly, we con-
clude that the case must be remanded to the trial court
for a new trial at which the court may exercise its
discretion to determine the credibility of the expert
witnesses regarding the appropriate valuation method,
as well as the credibility of their specific calculations.
We note, however, that the city does not challenge on
appeal the trial court’s determination that the property
was overvalued on the 2010 grand list. See Sibley v.
Middlefield, 143 Conn. 100, 105, 120 A.2d 77 (1956)
(‘‘The court performs a double function on an appeal
from a board of tax review. First, it must determine the
judicial question [of] whether the appellant has been
aggrieved by such action on the part of the board as
will result in the payment of an unjust and, therefore,
a practically illegal tax. [Second], if that question is
answered in the affirmative, the court must proceed to
exercise its broad discretionary power to grant relief.’’).
Accordingly, although we conclude that the trial court
improperly valued the property, to the extent that the
trial court concluded that Wheelabrator was subjected
to an unlawful tax as a result of the valuation on the
2010 grand list, we uphold that conclusion and affirm
that portion of the judgment of the trial court in the
second appeal.
III
We next address Wheelabrator’s claim that the trial
court’s valuation of the real and personal property on
appeal effectively permitted the city to impose a double
tax on the value of the personal property.28 Specifically,
Wheelabrator contends that the trial court incorrectly
determined that Pomykacz’ appraisal pursuant to the
reproduction cost approach—on which the trial court
had based its valuation—did not include the value of
the personal property and, therefore, that the city could
impose a separate tax on the assessed value of the
personal property. We conclude that, in light of our
remand for a new trial, there is no need for this court
to decide whether the trial court’s valuation based on
Pomykacz’ appraisal included the personal property,
but the trial court on remand must determine whether
the experts’ appraisals of the property include the value
of the personal property and allocate the taxes on the
real and personal property accordingly.
The following facts and procedural history are rele-
vant to our resolution of this claim. At trial, Wheela-
brator contended that, because the personal property
and the real property were subject to the same tax rate,
it could combine the two types of property into a single
asset for appraisal purposes. It further contended that,
if the court disagreed with this contention, the court
could subtract its experts’ valuation of the personal
property at $54,546,583 from the total combined value
of $201,700,000 to reach a real property value of
$147,153,417.
Pomykacz testified that he believed that the total
value of Wheelabrator’s taxable property as of October
1, 2008, was $357,500,000 and that he was not asked
to value the real and personal property separately. In
addition, he stated in his written report that ‘‘[t]he over-
all value . . . considering the three general appraisal
approaches [i.e., the cost approach, income approach
and comparable sales approach] includes real property,
personal property, intangibles, and taxable and nontax-
able property.’’ Although it appears that Pomykacz
deducted the value of working capital and business
intangibles from the overall value to determine the total
taxable value of the property in his written report, it
does not appear that he deducted the value of per-
sonal property.
The trial court concluded that Pomykacz’ valuation
pursuant to the reproduction cost approach did not
include the value of personal property because ‘‘the
cost valuation is not based [on] the valuation of a going
concern.’’ The court further concluded that Wheela-
brator had not presented any evidence that would
undermine the city’s valuation of the personal property
at $56,873,060 on the 2010 grand list. Accordingly, the
court concluded that the city could impose a separate
tax on the personal property based on that value and
rejected Wheelabrator’s appeal from that valuation.
Whether the city’s valuation of the real property on
the 2010 grand list included the value of the personal
property is a question of fact subject to review for clear
error. See, e.g., Newbury Commons Ltd. Partnership
v. Stamford, 226 Conn. 92, 103, 626 A.2d 1292 (1993)
(‘‘[w]hether a property has been overvalued for tax
assessment purposes is a question of fact for the trier’’).
‘‘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.) State v. Maurice
M., 303 Conn. 18, 51, 31 A.3d 1063 (2011).
We cannot conclude that the trial court’s finding in
the present case that the valuation of the personal prop-
erty on the 2010 grand list at $56,873,060 was not exces-
sive was clearly erroneous. Indeed, Wheelabrator does
not seriously contend that it was. The fact that the city
properly valued the personal property on the 2010 grand
list does not mean, however, that Pomykacz’ appraisal
of the property pursuant to the reproduction cost
approach did not include the value of that personal
property, and the city has pointed to no evidence that
would support the trial court’s finding to that effect.
Nevertheless, because we have concluded that this case
must be remanded to the trial court for a new trial on
the value of the property, there is no need for us to
decide whether the trial court’s finding that Pomykacz’
appraisal pursuant to the reproduction cost approach
did not include the value of personal property was
clearly erroneous.29 Rather, we conclude that the court
on remand must carefully consider whether the apprais-
ers’ valuations pursuant to the various approaches
include the value of personal property, and, if it finds
that they do, the court either should deduct the value
of the personal property from the overall value and
order the city to tax the real and personal property
separately, or should limit the city to taxing the overall
value of the property.
IV
Because it is likely to arise on remand, we next
address Wheelabrator’s claim that the trial court
improperly excluded evidence of the city’s wrongful
conduct and discounted evidence of wrongful conduct
that Wheelabrator did present. Wheelabrator contends
that the trial court should have considered evidence
that the city wrongfully (1) fabricated its valuation of
the property, (2) assessed taxes on tax exempt pollution
control equipment, (3) imposed an interest penalty, (4)
imposed a double tax on personal property, and (5)
punished Wheelabrator for refusing to produce its
experts’ appraisal report at the hearing before the board
in the administrative appeal from the assessment on
the 2010 grand list. We conclude that, on remand, the
trial court may properly consider evidence that the city
engaged in wrongdoing for the purpose of determining
whether Wheelabrator is entitled to interest on overpay-
ments to the city.
The following additional facts are relevant to our
resolution of this issue. In support of Wheelabrator’s
claim that the city fabricated its valuation of the prop-
erty, Wheelabrator’s plant manager, Vincent P. Langone,
Jr., testified at trial that, after the legislature enacted
§ 22a-270 (b) in 2007; see Public Acts 2007, No. 07-255,
§ 3; he met with city officials to discuss Wheelabrator’s
potential property tax liability. John M. Fabrizi, the then
mayor of Bridgeport, initially indicated that he believed
that the figure would be between $10 and $13 million.
At a later meeting, the city’s comptroller, Michael
Feeney, told Langone that he could not provide a pre-
cise figure because the city’s fiscal budgets were not
yet established but that he believed that the annual
property tax would be in the range of $7 to $10 million.
Langone told Feeney that, on the basis of third-party
appraisals that Wheelabrator had obtained, he believed
that annual property taxes would be less than $5 million.
Wheelabrator also attempted to present evidence
that, when the city revalued the property in 2008, the
city’s tax assessor, William O’Brien, was aware that
CRRA had obtained an appraisal that put the value of
the property at $225 million. The trial court sustained
the city’s objection to the admission of the appraisal
on relevance grounds, but it allowed O’Brien to testify
as to whether he was aware of the appraisal at the time
of the revaluation. O’Brien testified that he did not know
whether he was aware of the appraisal.
In addition, Wheelabrator attempted to present evi-
dence regarding the city’s normal procedure for valuing
commercial property for tax assessment purposes. That
evidence would have shown that the city had hired an
appraiser, Vision Government Solutions, Inc. (Vision),
to value the city’s taxable properties for purposes of
the 2008 revaluation. The city provided Vision with field
cards for each property. At that point, a Vision employee
would go into the field, inspect the property and make
any necessary changes on the card. Normally, the vari-
ous values shown on the card will add up to the total
appraised value. The city objected to this evidence on
the ground that it was irrelevant with respect to how
the revaluation was conducted and contended that the
sole issue was whether Wheelabrator could establish
that the fair market value of the property was less than
the city’s valuation. Wheelabrator contended that it was
entitled to put on evidence that the city had wrongfully
failed to assess the property based on its ‘‘true and
present value.’’ The trial court sustained the city’s objec-
tions, stating that ‘‘[t]he assessor is really not on trial.
This whole issue that the court sees is the question of
what’s the fair market value of the subject property on
the date of valuation.’’ Although the trial court allowed
Wheelabrator to submit evidence that the numbers on
the field card for the subject property for the 2008
revaluation did not add up to the total appraised parcel
value of $401,624,570,30 it sustained the city’s objection
to the admission of evidence showing that the city had
told Vision that it would handle the valuation of the
property and that the reason the figures on the field
card for the property did not add up was because some-
one had overridden the computer system that generated
the various amounts shown on the field cards. Wheela-
brator contends that all of this evidence was relevant
to show that the city fabricated the $401,624,570 valua-
tion so that it could charge Wheelabrator $13 million per
year in taxes and thereby cover its annual budget deficit.
In support of its claim that the city improperly had
denied Wheelabrator’s claim for an exemption for pollu-
tion control equipment valued at $10,559,534, Wheela-
brator presented evidence that, in October, 2008, it filed
a form seeking a tax exemption for certain pollution
control equipment. The city denied the exemption and
taxed Wheelabrator for the equipment for two years.
Although the city ultimately acknowledged that the pol-
lution control equipment was not taxable, it refused to
refund the taxes that it already had collected.
In support of its claim that the city wrongfully had
subjected the facility’s personal property to double tax-
ation on the 2010 grand list, Wheelabrator presented
evidence that it had sent a letter to the city on October
30, 2009, stating that the value of the personal property
should be deducted from the $401,624,570 property
value shown on the assessor’s field card. In response,
the city continued to value the real property at
$401,624,570 on the 2009 grand list and imposed a sepa-
rate tax on the personal property listed in Wheela-
brator’s declaration, which it valued at $55,333,667. On
the 2010 grand list, the city valued the real property at
$401,624,670 and valued the personal property at
$56,873,060.
In support of its claim that the city wrongfully had
imposed an interest penalty, Wheelabrator presented
evidence that the city sent the first property tax bill to
CRRA on January 1, 2009. After Wheelabrator requested
a copy of the bill, the city sent it a copy on February 4,
2009. Although Wheelabrator paid the bill within thirty
days, as permitted under General Statutes § 12-81a (e),31
the city imposed a late fee.
In support of its claim that the city wrongfully had
punished Wheelabrator for declining to produce its
appraiser’s report at the hearing before the board in
Wheelabrator’s administrative appeal from the assess-
ment based on the 2010 grand list,32 Wheelabrator pre-
sented evidence that it declined to produce the report
at that hearing because it believed that it was privileged
work product. On April 26, 2011, the city sent a letter
to Wheelabrator stating that, ‘‘[i]n accordance with
[General Statutes §] 12-111 . . . and your failure to
cooperate with the [b]oard by not giving us a copy of
the appraisal you had done, you are hereby notified
that [the] new assessment on the 2010 [g]rand [l]ist has
been changed [from $281,137,210] to $282,229,170.’’33
Approximately two weeks later, the city sent Wheela-
brator a second, similar letter directing it to disregard
the first letter and indicating that the assessment was
now $282,453,910. On July 5, 2011, Wheelabrator
received a property tax bill showing that the assessed
value of the property was now $285,278,449 and that the
total tax due for 2011 was $11,308,437.72. In December,
2011, Wheelabrator received another bill showing that
the assessed value of the property had been reduced
to the original amount of $281,137,210, but the total tax
due for 2011 was still $11,308,437.72.
We begin our analysis of Wheelabrator’s claim with
the standard of review. Whether the wrongfulness of
the city’s conduct is a proper consideration in a property
tax appeal pursuant to §§ 12-117a and 12-119 is a matter
of statutory interpretation over which our review is
plenary. See, e.g., Carmel Hollow Associates Ltd. Part-
nership v. Bethlehem, 269 Conn. 120, 129, 848 A.2d 451
(2004). ‘‘The meaning of a statute shall, in the first
instance, be ascertained from 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, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.) Id.;
see also General Statutes § 1-2z.
Pursuant to § 12-117a, a trial 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, and, if the application appears to have been
made without probable cause, may tax double or triple
costs, as the case appears to demand; and, upon all
such applications, costs may be taxed at the discretion
of the court.’’ In addition, the court ‘‘shall, in event of
[finding] overpayment, enter judgment in favor of [the]
applicant and against [the] city . . . together with
interest and any costs awarded by the court.’’ General
Statutes § 12-117a. Pursuant to § 12-119, when the trial
court determines that a property tax ‘‘laid on property
was computed on an assessment which, under all the
circumstances, was manifestly excessive and could not
have been arrived at except by disregarding the provi-
sions of the statutes for determining the valuation of
such property,’’34 the court ‘‘shall have power to grant
such relief upon such terms and in such manner and
form as to justice and equity appertains, and costs may
be taxed at the discretion of the court.’’
In addition to relying on these statutes, Wheelabrator
contends that, as a general rule, the trial court should
award interest to a plaintiff when the defendant has
wrongfully withheld money. Cf. Loomis Institute v.
Windsor, 234 Conn. 169, 181, 661 A.2d 1001 (1995)
(‘‘[w]e have construed [General Statutes § 37-3a] to
make the allowance of interest depend [on] whether
the detention of money is or is not wrongful under
the circumstances’’ [internal quotation marks omitted]);
see also DiLieto v. County Obstetrics & Gynecology
Group, P.C., 310 Conn. 38, 52, 74 A.3d 1212 (2013) (‘‘the
wrongful detention standard of § 37-3a is satisfied by
proof of the underlying legal claim, a requirement that
is met once the plaintiff obtains a judgment in his favor
on that claim’’). Accordingly, Wheelabrator argues, the
trial court improperly excluded and failed to consider
evidence of the city’s wrongdoing on the ground that
the only issue before the court was the fair market
value of the property, not whether the city had wrong-
fully arrived at its valuation or charged Wheelabrator
for improper amounts. Specifically, Wheelabrator con-
tends that the city’s wrongdoing was relevant because,
if wrongdoing had been found, it could have justified
an award of interest and costs.
We agree with Wheelabrator that the issue of the
city’s wrongdoing is a proper consideration in a prop-
erty tax appeal pursuant to §§ 12-117a and 12-119. In
Loomis Institute v. Windsor, supra, 234 Conn. 169, this
court held that an award of statutory interest pursuant
to § 37-3a35 in a tax appeal pursuant to § 12-119 was
‘‘primarily an equitable determination and a matter lying
within the discretion of the trial court.’’ Id., 181. In
support of our conclusion that the trial court in that
case had not abused its discretion when it denied an
award of interest, we observed that there was ‘‘no evi-
dence that the town acted maliciously or in bad faith
toward the taxpayer.’’ Id. Thus, we implicitly recognized
that malicious or bad faith conduct could support an
award of interest.
In Sears, Roebuck & Co. v. Board of Tax Review, 241
Conn. 749, 766, 699 A.2d 81 (1997), this court held that,
in a property tax appeal pursuant to § 12-117a, the trial
court has discretion to award interest pursuant to § 37-
3a, which establishes the maximum interest rate that
the trial court may award. We stated that ‘‘[a] trial court
acting pursuant to § 12-117a has broad discretion to
award interest up to [the] maximum rate’’ and that, ‘‘[i]n
exercising this equitable authority, a trial court may
consider all relevant information . . . .’’ Id. We can
perceive no reason why the city’s wrongdoing should
not be a consideration in making this determination.36
Indeed, we have held that the detention of money may
be deemed wrongful for purposes of awarding interest
pursuant to § 37-3a even if the liable party had a good
faith basis for nonpayment. See Sosin v. Sosin, 300
Conn. 205, 229, 14 A.3d 307 (2011). Thus, when a defen-
dant’s conduct was in bad faith, as Wheelabrator con-
tends, an award of interest may be justified. Accord-
ingly, we conclude that, on remand, Wheelabrator
should be entitled to present evidence that the city’s
overvaluation of the property was the result of wrong-
doing. We emphasize, however, that we express no
opinion as to the admissibility of the specific evidence
on this issue that the trial court excluded at the first
trial, which may be inadmissible on relevancy or other
grounds, or as to the relevance of the specific admitted
evidence that, according to Wheelabrator, supported a
finding of wrongdoing. We conclude only that evidence
of wrongdoing is not irrelevant as a matter of law as
to the issue of an award of interest.
V
We next address the city’s claim on cross appeal that
the trial court improperly denied its motion to dismiss
the second appeal because Wheelabrator declined to
provide the board with its draft appraisal at the April
4, 2011 hearing before the board on Wheelabrator’s
administrative appeal. The city notes that, pursuant to
General Statutes § 12-113,37 ‘‘[a] board of assessment
appeals shall not reduce the valuation or assessment
of property on the grand list belonging to any person
who does not appear at a hearing before the board of
assessment appeals, either in person or by such per-
son’s attorney or agent, and offer or consent to be
sworn before it and answer all questions touching such
person’s taxable property situated in the town.’’ The
city contends that Wheelabrator’s refusal to comply
with the board’s request for a copy of the draft appraisal
was the effective equivalent of failing to appear before
the board and to answer its questions. Accordingly, the
city argues, it could not sustain Wheelabrator’s appeal
and reduce the valuation of the property, and, therefore,
Wheelabrator could not be aggrieved by the board’s
decision. Because Wheelabrator was not aggrieved, the
city further argues, the trial court lacked jurisdiction
over Wheelabrator’s appeal from that decision. We
disagree.
The following facts and procedural history are rele-
vant to our resolution of this claim. The board con-
ducted a hearing on Wheelabrator’s appeal from the
city’s valuation of the property on the 2010 grand list
on April 4, 2011. At the beginning of the hearing, the
chairman of the board, Richard DeParle, asked Wheela-
brator’s attorney to ‘‘furnish [it] . . . with all documen-
tation which you believe supports your position that
the real and personal property [at issue] . . . should
be valued at the market value you state in your appeal.
You can also furnish testimony to supplement this docu-
mentation.’’ Wheelabrator’s attorney indicated that,
among other documentation, he had a sworn affidavit
from Robert H. Pedersen, Wheelabrator’s regional
comptroller, regarding the total value of the property.
He also indicated that Pedersen, who was present,
would be willing to testify as to his opinion of the value
of the property and to answer the board’s questions.
DeParle then asked whether Wheelabrator’s attorney
ever had had the property appraised. When counsel
indicated that he had obtained a draft appraisal of the
property for use in the first appeal, DeParle asked
whether he was prepared to provide the board a copy
of the appraisal. Counsel responded that the appraisal
report was subject to a discovery order in the pending
first appeal, and that Wheelabrator did not want to
produce it because it contained confidential informa-
tion and it had not yet entered into a confidentiality
agreement with the city. DeParle then stated that,
‘‘[w]ithout an outside appraisal done for us, there’s not a
lot more we can do with it,’’ and concluded the hearing.
We begin with the standard of review. As we pre-
viously indicated, ‘‘[i]f a party is found to lack standing,
the court is without subject matter jurisdiction to deter-
mine the cause. . . . A determination regarding a trial
court’s subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Burton v. Dominion Nuclear
Connecticut, Inc., supra, 300 Conn. 550.
This court previously has rejected a claim that was
identical to the city’s claim in all relevant respects. In
Morris v. New Haven, 77 Conn. 108, 58 A. 748 (1904),
the plaintiff brought an action against the defendant,
claiming that its assessment of her property was illegal.
The defendant demurred to the plaintiff’s claim on the
ground that, after the plaintiff appealed to the ‘‘board
of relief,’’ she had failed to appear before that board
as required by the predecessor to § 12-113, and the trial
court sustained the demurrer. Id., 109. On appeal, this
court held that, ‘‘[w]aiving the question as to what effect
a failure to pursue an appeal before the board of relief
may have [on] the relief [that] the Superior Court may
properly grant, the mere failure to appear cannot . . .
deprive the applicant of her right to be heard [on] the
claimed illegality of this assessment. The appeal pre-
sented to the board of relief primarily a question of
law, viz. does the statute directing the assessors, when
a taxpayer refuses to return a list to them as required
by law, to make out a list for him and to add to that
list an amount equal to [10 percent] of their valuation,
authorize them to make such an addition to the list of
the applicant under the circumstances of this case?
[On] that question the applicant is entitled to a decision
of the Superior Court, after the action of the board of
relief has made the alleged[ly] illegal assessment bind-
ing [on] her, and it is immaterial, as affecting this right,
what reason may have induced the board to take the
action it did.’’ Id. But cf. Wilcox v. Madison, 103 Conn.
149, 156, 130 A. 84 (1925) (board of relief properly
declined to consider reducing valuation of plaintiff’s
property when plaintiff failed to appear before board
and to answer its questions, and trial court’s conclusion
that board of assessors had properly considered value
of property as house lots in determining its value for
tax purposes was supported by evidence).38 Thus, in
the present case, even if we were to agree with the city
that Wheelabrator’s refusal to provide the board with
a copy of its draft appraisal report was the effective
equivalent of a failure to appear before the board and
to answer its questions—an issue on which we express
no opinion—under Morris and Wilcox, that failure
would go, at most, to the merits of the trial court’s
decision sustaining Wheelabrator’s appeal and would
not deprive the trial court of jurisdiction to hear the
appeal.39 Accordingly, we reject this claim.
VI
Because it is likely to arise on remand, we next
address the city’s claim on cross appeal that the trial
court improperly admitted the appraisal testimony of
Wheelabrator’s expert witnesses on the ground that
they were not licensed real estate appraisers in this
state. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this issue. Before trial,
the city filed two motions in limine to preclude the
admission of Kettell’s and Hazen’s testimony and any
appraisal report prepared by them. The city contended
that Kettell and Hazen, by preparing an appraisal report
for the property, had violated General Statutes (Rev.
to 2011) §§ 20-501 (a)40 and 20-523,41 and any opinion
testimony about the value of the property at trial also
would violate those statutes. The trial court apparently
did not rule on those motions. After trial, the city filed
a motion to strike Kettell’s and Hazen’s testimony and
their report for the same reasons. The trial court con-
cluded that, as long as Hazen and Kettell qualified as
experts in the appraisal of real estate, no other qualifica-
tion to testify in court was required. Accordingly, it
denied the city’s motion to strike. The city now chal-
lenges that ruling.
We begin our analysis with the standard of review.
‘‘The trial court has wide discretion in ruling on the
qualification of expert witnesses and the admissibility
of their opinions. . . . The court’s decision is not to
be disturbed unless [its] discretion has been abused or
the error is clear and involves a misconception of the
law. . . . Generally, expert testimony is admissible if
(1) the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury
in considering the issues.’’ (Citations omitted; internal
quotation marks omitted.) State v. Kemp, 199 Conn.
473, 476, 507 A.2d 1387 (1986), overruled in part on
other grounds by State v. Guilbert, 306 Conn. 218, 49
A.3d 705 (2012).
The Appellate Court repeatedly has rejected the claim
that the city has raised. One of the relevant cases, Taylor
v. King, 121 Conn. App. 105, 109, 994 A.2d 330 (2010),
involved a construction contract dispute between the
plaintiff homeowner and the defendant contractor. The
plaintiff indicated that he intended to call a realtor as
an expert witness to testify about the value that his
residence would have had if it had been properly con-
structed and the value that it had as it was actually
constructed. Id., 118–19. The defendant moved to pre-
clude the realtor’s testimony on the ground that he was
not a licensed real estate appraiser. See id. The trial
court denied the motion. Id., 119. On appeal, the Appel-
late Court concluded that the fact that the realtor was
prohibited from engaging in real estate appraisal pursu-
ant to General Statutes (Rev. to 2007) § 20-501 did not
mean that he was precluded ‘‘from testifying as to his
opinion of the diminution in value of the plaintiff’s prop-
erty, where the trial court found that the witness’ educa-
tion, training and experience qualified him to testify as
an expert . . . .’’ (Internal quotation marks omitted.)
Id., 120. The court further concluded that testifying as
to the value of property did not constitute ‘‘ ‘engaging
in the real estate appraisal business’ ’’ for purposes of
General Statutes (Rev. to 2007) § 20-500 (5).42 Id.; see
also Hutchinson v. Andover, 49 Conn. App. 781, 788–89,
715 A.2d 831 (1998) (General Statutes [Rev. to 1997]
§ 20-501 did not preclude witness from testifying as to
his opinion of value of property when trial court had
determined that he was qualified as expert);43 Conway
v. American Excavating, Inc., 41 Conn. App. 437, 448–
49, 676 A.2d 881 (1996) (‘‘[e]xcept in malpractice cases,
it is not essential that an expert witness possess any
particular credential, such as a license, in order to be
qualified to testify, so long as his education or experi-
ence indicate[s] that he has knowledge on a relevant
subject significantly greater than that of persons lacking
such education or experience’’); Lance v. Luzerne
County Manufacturers Assn., 366 Pa. 398, 403, 77 A.2d
386 (1951) (‘‘[A]n expert is one who qualifies as such
by reason of special knowledge and experience, and it is
quite obvious that an individual may possess knowledge
and experience of a special nature whether or not he
is authorized to practice in his special field by virtue
of any restriction or licensing requirement imposed by
law. The inquiry by the trial judge . . . as to qualifica-
tions, therefore, should be whether . . . the witness
possesses the special knowledge and experience. As a
result of this inquiry, usually conducted as examination
and cross-examination by the respective counsel, the
. . . trial judge may reach the conclusion that the wit-
ness does not possess the requisite qualifications enti-
tling him to be classed as an expert, but the test must
be as to the alleged expert’s possession of knowledge
and experience and not of a piece of paper [that] autho-
rizes him to practice a profession.’’ [Internal quotation
marks omitted.]).
We agree that a person who otherwise would be
qualified as an expert witness to testify regarding the
value of real property is not disqualified merely because
the person is not a licensed real estate appraiser in
this state. As we have explained, whether a person is
qualified to testify as an expert witness in a judicial
proceeding turns on whether the person has special
skills and knowledge that will shed light on an issue
that is beyond the ken of the ordinary juror or trial
judge. See State v. Kemp, supra, 199 Conn. 476. The
trial court is presumed to have the skills and experience
to make this determination, as with any other expert
witness, with the assistance of the parties in an advers-
arial process. See Blanchard v. Bridgeport, 190 Conn.
798, 808, 463 A.2d 553 (1983) (‘‘[t]he qualifications of
an expert presents a preliminary question for the trial
judge’’). Moreover, once the trial court has made that
determination, the expert witness will be required to
testify under oath to ensure that he or she testifies
truthfully.
In contrast to the evidentiary and procedural rules
governing expert testimony, the purpose of the statu-
tory scheme governing the licensure of real estate
appraisers is to protect members of the general public—
who do not have the skills and experience of a trial
judge to assess a person’s competence to determine
the value of real estate, and who do not have access
to the tools of discovery and cross-examination under
oath to assist them in making that assessment or in
assessing the person’s honesty—by requiring persons
who wish to engage in the business of real estate
appraisal first to establish their competence and hon-
esty. See General Statutes (Rev. to 2011) § 20-509 (a)
(‘‘[c]ertifications, licenses, limited licenses and provi-
sional licenses under sections 20-500 to 20-528, inclu-
sive, shall be granted only to persons who bear a good
reputation for honesty, truthfulness and fair dealing and
who are competent to transact the business of a real
estate appraiser in such manner as to safeguard the
interests of the public’’); General Statutes (Rev. to 2011)
§ 20-510 (‘‘[i]n order to determine the competency of
any applicant for a real estate appraiser’s certification
or license, the [Connecticut Real Estate Appraisal]
[C]ommission shall, and, in the case of an applicant for
a provisional license, may subject such applicant to
personal written examination as to the applicant’s com-
petency to act as a real estate appraiser’’). In our view,
nothing would be gained by barring a person who is
qualified to assist the finder of fact in a judicial proceed-
ing in its determination of the true and actual value of
real property from doing so merely because the person
is not licensed. Doing so would advance neither the
truth-finding function of the judicial process nor the
consumer protection purpose of the statutory licens-
ing scheme.
The city claims, however, that a person who does
not have a license to appraise real estate cannot testify
in court as an expert witness as to the valuation of
real property because such conduct would subject the
person to fines and imprisonment pursuant to § 20-523.
We disagree. We see no evidence that the legislature
had any intention of interfering with the judicial fact-
finding function by authorizing the prosecution of such
conduct, which, as we have explained, would in no
way undermine the primary purpose of the statutory
licensing scheme—to protect members of the public
from unscrupulous and incompetent real estate apprais-
ers. We further note that an interpretation of § 20-523
that would allow the prosecution of a person who has
assisted the fact finder in judicial proceedings by testi-
fying as an expert witness as to the value of real prop-
erty would raise serious constitutional questions under
the separation of powers doctrine.44 See State v. Cle-
mente, 166 Conn. 501, 514, 353 A.2d 723 (1974) (‘‘courts
have an inherent power, independent of statutory
authorization, to prescribe rules to regulate their pro-
ceedings and [to] facilitate the administration of justice
as they deem necessary’’); see also State v. Cook, 287
Conn. 237, 245, 947 A.2d 307 (‘‘[i]t is well established
that this court has a duty to construe statutes, whenever
possible, to avoid constitutional infirmities’’ [internal
quotation marks omitted]), cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). Accordingly,
we agree with the Appellate Court that, for purposes
of General Statutes (Rev. to 2011) § 20-500 et seq., testi-
fying in court regarding the value of real property does
not constitute ‘‘engaging in the real estate appraisal
business’’ for purposes of the statutory scheme. (Inter-
nal quotation marks omitted.) Taylor v. King, supra,
121 Conn. App. 120, quoting General Statutes (Rev. to
2007) § 20-500 (5). Rather, such conduct constitutes the
provision of forensic services by an expert witness. We
therefore reject this claim.
VII
Finally, because it may arise on remand, we address
the city’s claim that the trial court abused its discretion
when it excluded developer’s profit from its reproduc-
tion cost calculations in determining the value of the
property. We disagree.
The following facts and procedural history are rele-
vant to our resolution of this claim. In his appraisal
report, Pomykacz explained that he was ‘‘provided with
a copy of [an] [a]mendment . . . to the Solid Waste
Disposal Agreement dated May 1, 1988. On page 7 of
the [a]mendment, it can be seen that the aggregate
historical cost basis of the [f]acility is $241,949,000. We
then added 15 percent of the historical cost basis for
developer’s profit. Developer’s profit is the profit that
a developer expects to earn from the development of
the project. Even a developer/owner who intends to
continue to own and manage the property after con-
struction has an expectation of some profit on the devel-
opment of the property; otherwise [the] owner would
simply purchase an existing property instead of going
through the effort and risk of building a new one.’’
The trial court concluded that ‘‘Pomykacz’ inclusion
of a developer’s profit of 15 [percent] of the historical
cost lacks credibility. It is logical to assume that when
the original facility was constructed, all costs, including
a developer’s profit, would have been included in the
historical costs.’’ Accordingly, the trial court excluded
the 15 percent developer’s profit from its calculation of
the value of the property using Pomykacz’ reproduction
cost approach.
The trial court’s valuation of a property in a property
tax appeal is subject to review for abuse of discretion.
See, e.g., Davis v. Westport, 61 Conn. App. 834, 842,
767 A.2d 1237 (2001) (once trial court has found that
taxpayer is aggrieved, court has ‘‘broad discretionary
power to grant appropriate relief’’). Although the city
has cited authority for the proposition that developer’s
profit is a proper element of cost when valuing real
property, it has cited no evidence that would support
a finding that the property’s historical cost of
$241,949,000, on which Pomykacz based his reproduc-
tion cost figures, did not include developer’s profit.
Thus, although the city contends that the trial court
improperly assumed that the figure included develop-
er’s profit, the trial court reasonably could have con-
cluded, on the basis of the record before it, that
Pomykacz simply had assumed that it did not. Accord-
ingly, we conclude that the trial court did not abuse its
discretion when it deducted developer’s profit of 15
percent from its reproduction cost approach calcula-
tions. We emphasize, however, that the city is not pre-
cluded from presenting evidence on remand that the
historical cost did not include developer’s profit, and
the court is not precluded from crediting that evidence.
The judgment in the first appeal filed in 2009 is
reversed and the case is remanded with direction to
deny the city’s motion to dismiss and for further pro-
ceedings in connection with that appeal; the portion of
the judgment in the second appeal filed in 2011 sus-
taining that appeal on the ground that Wheelabrator
was subject to an unlawful tax is affirmed; the portion
of the judgment in the second appeal denying the appeal
from the valuation of the personal property is affirmed;
the portion of the judgment in the second appeal
assigning a new valuation to the property is reversed,
and the case is remanded for a new trial in the second
appeal with respect to that valuation.
In this opinion ROGERS, C. J., and PALMER, EVE-
LEIGH and VERTEFEUILLE, Js., concurred.
1
All references to the property throughout this opinion are to both the
land on which the facility is located and the facility itself.
2
The complaint in the second appeal refers to Waste To Energy I, LLC.
Elsewhere in the record, this entity is referred to as Waste Energy I, LLC.
For consistency, we refer to this entity as Waste To Energy.
In the interest of simplicity, we refer to Wheelabrator, the United States
Bank National Association, Mogavero and Waste To Energy collectively
as Wheelabrator.
3
Wheelabrator appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
4
General Statutes § 22a-270 provides in relevant part: ‘‘(a) The exercise
of the powers granted by this chapter constitute the performance of an
essential governmental function and the authority shall not be required to
pay any taxes or assessments upon or in respect of a project, or any property
or moneys of the authority, levied by any municipality or political subdivision
or special district having taxing powers of the state, nor shall the authority
be required to pay state taxes of any kind, and the authority, its projects,
property and money and any bonds and notes issued under the provisions
of this chapter, their transfer and the income therefrom, including revenues
derived from the sale thereof, shall at all times be free from taxation of
every kind by the state except for estate or succession taxes and by the
municipalities and all other political subdivisions or special districts having
taxing powers of the state; provided nothing herein shall prevent the author-
ity from entering into agreements to make payments in lieu of taxes with
respect to property acquired by it or by any person leasing a project from
the authority or operating or managing a project on behalf of the authority
and neither the authority nor its projects, properties, money or bonds and
notes shall be obligated, liable or subject to lien of any kind for the enforce-
ment, collection or payment thereof. . . .
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, real
and personal property owned by the authority may be assessed and taxed
against a lessee pursuant to chapter 203 by the municipality in which such
property is located if such property is leased as of July 1, 2007, to a lessee
or operator by the authority pursuant to an initial site lease entered into
between the authority and a lessee on or before December 31, 1985. This
subsection shall not apply to property which is: (1) The security for any
bonds issued by the authority and outstanding on July 1, 2007, until the
indebtedness evidenced by such bonds has been paid in full, (2) leased by
the authority pursuant to a lease in effect on January 1, 2007, until after
the expiration of the lease term in effect on said date, whether by execution
of a new lease, by amendment of the lease or by renewal or extension of the
term of such lease pursuant to an option stated therein if such amendment is
entered into or such option is exercised after said date, or (3) the subject
of an agreement for payments in lieu of taxes between the municipality and
the authority or its lessee during any municipal fiscal year covered by such
agreement. The lessee shall be liable for taxes assessed pursuant to this
subsection and shall have the right to appeal the amount it is assessed in
the tax year such property first becomes taxable hereunder in the same
manner as a purchaser of formerly tax-exempt property under section 12-
81a, with the same effect as if a conveyance to a nonexempt purchaser had
been placed on the land records on the date the property first ceases to be
exempt pursuant to this section. The assessor and collector of the municipal-
ity shall proceed with respect to such property in the same manner as is
provided in said section 12-81a with respect to adding the property to the
grand list, giving notice of the assessment to the lessee and billing the taxes
due thereon to the lessee.’’
Although § 22a-270 was the subject of technical changes in 2010; see
Public Acts 2010, No. 10-32, § 87; those changes have no bearing on the
merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
5
The trial court ultimately determined that Wheelabrator’s appeal from
the city’s valuations on the 2007 and 2008 grand lists encompassed all
valuations up to the date of trial because the 2008 valuation would apply
to succeeding years until the property was revalued. Accordingly, the appeal
also encompassed the valuation on the city’s 2009 grand list even though
the complaint did not refer to that valuation.
6
General Statutes § 12-117a provides in relevant part: ‘‘Any person, includ-
ing any lessee of real property whose lease has been recorded as provided
in section 47-19 and who is bound under the terms of his lease to pay real
property taxes, 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, in the nature of an appeal therefrom, with
respect to the assessment list for the assessment year commencing October
1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993,
October 1, 1994, or October 1, 1995, and with respect to the assessment list
for assessment years thereafter, to the superior court for the judicial district
in which such town or city is situated, which shall be accompanied by a
citation to such town or city to appear before said court. . . . 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, and, if
the application appears to have been made without probable cause, may
tax double or triple costs, as the case appears to demand; and, upon all
such applications, costs may be taxed at the discretion of the court. 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, together with interest
and any costs awarded by the court, or, at the applicant’s option, shall be
granted a tax credit for such overpayment, interest and any costs awarded
by the court. Upon motion, said court shall, in event of such overpayment,
enter judgment in favor of such applicant and against such city or town for
the whole amount of such overpayment, less any lien recording fees incurred
under sections 7-34a and 12-176, together with interest and any costs
awarded by the court. The amount to which the assessment is so reduced
shall be the assessed value of such property on the grand lists for succeeding
years until the tax assessor finds that the value of the applicant’s property
has increased or decreased.’’
Although § 12-117a was the subject of an amendment in 2013; see Public
Acts 2013, No. 13-276, § 5; that amendment has no bearing on the merits of
this appeal. In the interest of simplicity, we refer to the current revision of
§ 12-117a.
7
General Statutes § 12-119 provides: ‘‘When it is claimed that a tax has
been laid on property not taxable in the town or city in whose tax list
such property was set, or that a tax laid on property was computed on an
assessment which, under all the circumstances, was manifestly excessive
and could not have been arrived at except by disregarding the provisions
of the statutes for determining the valuation of such property, the owner
thereof or any lessee thereof whose lease has been recorded as provided
in section 47-19 and who is bound under the terms of his lease to pay real
property taxes, prior to the payment of such tax, may, in addition to the
other remedies provided by law, make application for relief to the superior
court for the judicial district in which such town or city is situated. Such
application may be made within one year from the date as of which the
property was last evaluated for purposes of taxation and shall be served
and returned in the same manner as is required in the case of a summons
in a civil action, and the pendency of such application shall not suspend
action upon the tax against the applicant. In all such actions, the Superior
Court shall have power to grant such relief upon such terms and in such
manner and form as to justice and equity appertains, and costs may be
taxed at the discretion of the court. If such assessment is reduced by said
court, the applicant shall be reimbursed by the town or city for any overpay-
ment of taxes in accordance with the judgment of said court.’’
8
The trial court found that CRRA owned the land and leased it to Wheela-
brator and that the lease from CRRA to Wheelabrator, Wheelabrator’s sub-
lease to the United States Bank National Association and Mogavero, and
their sublease back to Wheelabrator had been recorded in the land records.
The court apparently concluded, however, that, because Wheelabrator had
named Waste To Energy as the owner of the property in the complaint, and
because no lease naming Waste To Energy as the owner and Wheelabrator
as the lessee had been recorded in the land records, Wheelabrator had failed
to plead or to establish that the requirements of §§ 12-117a and 12-119 had
been satisfied.
9
The trial court did not expressly address in its memorandum of decision
the issue of Wheelabrator’s standing to bring the second appeal. After
Wheelabrator filed its appeal to this court from the judgments of the trial
court, and the city filed its cross appeal, the city filed a motion for articulation
in which it requested, among other things, that the trial court articulate the
reason for its denial of the city’s motion to dismiss the second appeal. The
trial court sustained Wheelabrator’s objection to that motion. The city then
filed a motion for review with this court in which it requested that this
court order an articulation on several issues. This court granted the motion
for review in part but denied the motion to the extent that it requested
articulation of the trial court’s reasons for denying the motion to dismiss
the second appeal.
10
General Statutes § 12-81a (d) provides in relevant part: ‘‘The purchaser
[of formerly tax-exempt property] may appeal the doings of the assessor to
the board of assessment appeals and the Superior Court as otherwise pro-
vided in this chapter . . . .’’
11
It is clear, therefore, that § 22a-270 (b) does not incorporate the require-
ments of §§ 12-117a and 12-119 relating to lessees of property. If the legisla-
ture did not intend that an entity that is a lessee for purposes of § 22a-270
(b) would be deemed to be an owner of the subject property for purposes
of appealing from a tax assessment pursuant to §§ 12-117a and 12-119, we
cannot fathom under what circumstances or in what sense it could have
intended to authorize a lessee ‘‘to appeal the amount it is assessed . . . in
the same manner as a purchaser of formerly tax-exempt property . . . .’’
General Statutes § 22a-270 (b).
12
We note that General Statutes § 12-81 includes tax exemptions for per-
sonal property. See, e.g., General Statutes § 12-81 (12) (exempting ‘‘[p]er-
sonal property within the state owned by, or held in trust for, a Connecticut
religious organization’’).
13
Because we conclude that Wheelabrator had standing to appeal pursuant
to § 22a-270 (b), we need not address the issue of whether it has independent
standing to appeal pursuant to §§ 12-117a and 12-119 as a ‘‘lessee of real
property whose lease has been recorded as provided in section 47-19 and
who is bound under the terms of [the] lease to pay real property taxes . . . .’’
General Statutes § 12-117a; see also General Statutes § 12-119 (referring to
‘‘any lessee thereof whose lease has been recorded as provided in section
47-19 and who is bound under the terms of [the] lease to pay real prop-
erty taxes’’).
14
In his written appraisal report, Pomykacz explained that, under the direct
capitalization approach, ‘‘[o]ne year’s income expectancy [is] capitalized at
a market derived capitalization rate or at a capitalization rate that reflects
a specified income pattern, return on investment, and change in the value
of the investment.’’
15
Pomykacz explained that, under the reproduction cost approach, an
appraiser determines the cost to construct ‘‘an exact replica of the facility
as it exists with all its quirkiness . . . .’’ Under the replacement cost
approach, the appraiser estimates the cost to build a replacement that would
have the ‘‘same functionality but . . . a different design.’’
16
The trial court appears to have used the phrases ‘‘discounted cash
flow approach’’ and ‘‘going concern income approach’’ interchangeably. For
example, the court referred to the ‘‘[discounted cash flow]/going concern
income approach’’ and concluded that the discounted cash flow approach
lacked credibility in part because the experts had ‘‘employed the going
concern approach rather than directly valuing the real and personal property
. . . .’’ Although the concepts are not identical, they are related. See Redding
Life Care, LLC v. Redding, 308 Conn. 87, 95–96 n.9, 61 A.3d 461 (2013)
(explaining going concern approach to valuing real estate). Specifically, the
discounted cash flow approach is one method of valuing a going concern.
See footnote 23 of this opinion.
17
As we indicated, Wheelabrator’s experts’ appraised value of the property
based on the discounted cash flow approach was $199,300,000, and Pomy-
kacz’ appraised value was $376,180,000, a difference of $176,880,000. It is
unclear why the trial court found that the difference between their appraisals
was greater than $200,000,000.
18
The trial court explained that, in its view, the problem with the use of
the discounted cash flow approach for this particular property was, as
Pomykacz explained in his appraisal report, that ‘‘[t]raditionally, at commer-
cial properties, such as offices, apartments, malls . . . income is prescribed
by leases or the market potential to be leased. There is no such rental
market for power generation plants and [waste to energy] facilities. Thus,
we were not able to find income that was strictly attributable to the taxable
real and personal property, or just the taxable real property. Similar market
conditions exist at many properties where the business activities are inter-
twined with the personal and real property. . . . Appraisers in all of these
cases will find it difficult or impossible to find adequate data on the income
to the business that is strictly attributable to the real property or the real
and personal property.’’ (Internal quotation marks omitted.) We also note
that, during trial, the trial court indicated that the use of the income approach
to the valuation of the property was ‘‘troubling to the court . . . .’’ The
court appeared to suggest that its concern was that it was difficult to
distinguish the value of the business, which was not subject to property
taxes, from the value of the real property, which was. The court noted that
an appeal from its decision in another case was pending in this court; see
Redding Life Care, LLC v. Redding, 308 Conn. 87, 61 A.3d 461 (2013); and
that the decision in that case ‘‘would be a big help to the [trial] court in
how the court looks at [the issue of] the use of the income approach . . . .’’
See footnote 25 of this opinion.
19
Kettell concluded that the only nontaxable, intangible asset was working
capital valued at $2,300,000, whereas Pomykacz concluded that the value
of the nontaxable, intangible property—which included computer software,
operational and procedural manuals, work force in place and working capital
accounts—was $15,498,000.
20
An haruspex is ‘‘a diviner in ancient Rome basing his predictions on
inspection of the entrails of sacrificial animals . . . .’’ Webster’s Collegiate
Dictionary (11th Ed. 2003); see also The Free Dictionary, available at http://
www.thefreedictionary.com/haruspication (last visited January 15, 2016)
(defining haruspication as ‘‘a form of divination from lightning and other
natural phenomena, but especially from inspection of the entrails of ani-
mal sacrifices’’).
21
Specifically, the trial court rejected the direct capitalization approach
because ‘‘both appraisers considered [it] to have little merit.’’ The court
rejected the replacement cost approach because ‘‘the valuation of the subject
facility should not be that of a newly constructed modern facility [that] did
not exist as of October 1, 2008.’’
22
The trial court used October 1, 2008, as the date of valuation because
that was the date of the last citywide revaluation.
23
As we indicated, the trial court used the phrase ‘‘going concern’’ and
‘‘discounted cash flow’’ more or less interchangeably in its memorandum
of decision. See footnote 16 of this opinion. The income approach is one
specific approach to valuing going concerns; see Redding Life Care, LLC
v. Redding, supra, 308 Conn. 95–96 n.9; and, as the experts in the present
case explained, the discounted cash flow approach is one specific form of
the income approach. The general tenor of the trial court’s memorandum
of decision in the present case suggests that the court was troubled generally
by the income approach to valuing the property, not by the specific dis-
counted cash flow approach, per se. See footnote 18 of this opinion. Never-
theless, because the trial court referred repeatedly to the discounted cash
flow approach in its memorandum of decision, we use that terminology.
24
Although the trial court relied on Pomykacz’ written report for the
proposition that it was difficult to apply the income approach to value real
estate that does not have a rental market; see footnote 18 of this opinion;
the court did not explain why it rejected Pomykacz’ statement, in the very
next paragraph of his report, that, after using the income approach to
determine the overall business value for the property, he had been able to
employ ‘‘various appropriate appraisal procedures to discover the value of
the taxable real and personal property at the facility. . . . [He had] esti-
mated the value of the nontaxable items and deducted them from the overall
business value. Again, this is a standard practice in the valuation of power
plants and for waste to energy power plants specifically, and [the] procedures
[he employed] are credible.’’
25
In Redding Life Care, LLC, the trial court, Aronson, J., denied the
plaintiff’s appeal from the defendant’s property tax assessment. See Redding
Life Care, LLC v. Redding, supra, 308 Conn. 93. On appeal to this court,
the plaintiff claimed that Judge Aronson improperly had determined that
the ‘‘going concern income capitalization approach . . . is not recognized
or permitted under Connecticut law and thus may not be used to determine
the fair market value of real estate . . . .’’ Id., 94. We concluded, as a matter
of law, that ‘‘[t]here may be cases in which it is proper to value real estate
by first valuing the going concern associated with the property, based on
an income capitalization approach, and other cases in which it is not.’’ Id.,
96 n.9. We further concluded that Judge Aronson had not rejected the
approach as a matter of law but had rejected ‘‘the formula and calculations
on which [the plaintiff’s appraiser] relied to arrive at the valuation of the
intangible business.’’ Id., 103. We ultimately affirmed the judgment in that
case. Id., 115. In the present case, Judge Aronson referred to our decision
in Redding Life Care, LLC, in his memorandum of decision, but he never
acknowledged this court’s statement that the going concern approach may
be an appropriate method for valuing property for property tax assess-
ment purposes.
26
The concurrence states that our conclusion constitutes ‘‘a significant
departure from the considerable discretion that our case law has long
afforded to trial courts with respect to electing the proper appraisal method
[to use] in the factual determination of property valuation.’’ We have no
quarrel with the proposition, however, that the trial court has broad discre-
tion to choose the proper appraisal method for valuing a particular property,
and nothing in this opinion is to the contrary. Indeed, as the concurrence
acknowledges, we certainly have not concluded that the trial court was
required to use the discounted cash flow approach. We have concluded
only that the trial court improperly determined that it could not apply the
discounted cash flow approach to properties that do not have a rental market
as a matter of law.
The concurrence contends, to the contrary, that the trial court concluded
only that the discounted cash flow approach ‘‘ ‘lacks credibility’ ’’ for this
particular property. Although the concurrence cites several reasons that the
trial court gave for rejecting the specific calculations of the appraisers, the
concurrence has not provided any explanation for the trial court’s conclusion
that the approach itself was inappropriate for this specific property. As we
have indicated, the only explanation that we can discern is that the trial
court believed that the discounted cash flow approach is inappropriate, as
a matter of law, for properties that do not have a rental market. Indeed,
one of the reasons that the trial court gave for its rejection of the approach
on which the concurrence relies is that the appraisers’ estimates pursuant
to the discounted cash flow approach were not ‘‘a [direct] valuation of the
real and personal property [that] are the subject of [the two] appeals . . . .’’
(Internal quotation marks omitted.) In other words, the trial court concluded
that ‘‘direct’’ valuation is the only appropriate appraisal method for proper-
ties of this type. The concurrence also notes that the trial court criticized
several of Kettell’s specific calculations pursuant to the discounted cash
flow approach. As we have indicated, however, even if the trial court had
legitimate concerns about certain specific calculations, those concerns were
peripheral to the trial court’s central conclusion that the approach itself
was categorically inappropriate—indeed, that it amounted to nothing more
than ‘‘haruspication’’—for this type of property. Put another way, even if
we were to assume that the concurrence is correct that any one of these
specific concerns standing alone could have provided sufficient reason for
the trial court to reject Kettell’s calculations, a careful reading of the trial
court’s memorandum of decision leads us to conclude that these concerns
did not provide the actual basis for the court’s rejection of the discounted
cash flow approach. At the very least, it is impossible for us to determine
at this juncture whether any of the trial court’s specific concerns with
Kettell’s discounted cash flow calculations, standing alone or in combination,
would have led the trial court to adopt the reproduction cost approach if
it had not categorically rejected the discounted cash flow approach. To the
extent that the concurrence contends that this question is answered by the
trial court’s articulation, in which the court stated that it ‘‘did not reject the
[discounted cash flow] approach as a method for valuing the subject property
as a matter of law,’’ for the reasons stated in this opinion, we find the
concurrence’s interpretation of this statement to be inconsistent with the
reasoning of the trial court’s original memorandum of decision, and we
must presume that the trial court may not change the basis for its original
decision in an articulation. See Standish v. Standish, 40 Conn. App. 298,
301, 670 A.2d 1330 (1996) (‘‘[a] motion for articulation is not an opportunity
for a trial court to substitute a new decision . . . [for] a prior decision’’
[internal quotation marks omitted]). We emphasize that we are not conclud-
ing that the trial court in fact changed the basis for its decision in the
articulation. Rather, we are concluding that the concurrence’s interpretation
of the articulation, namely, that the trial court accepted the general validity
of the discounted cash flow approach as applied to the valuation of this
type of property but concluded that it was not supported by the evidence
in this case, would be inconsistent with the clear meaning of the trial court’s
original decision. Under our interpretation of the articulation as indicating
that the trial court did not believe the experts’ testimony that the discounted
cash flow approach was appropriate for this type of property, the articulation
and the original decision are consistent.
27
We are mindful, however, that the expert witnesses for both sides in
the present case testified that the discounted cash flow approach was the
best method for valuing the property. If the experts present the same testi-
mony on remand, and the trial court disagrees with that testimony, it should
explain why it believes that another approach is preferable.
28
We address Wheelabrator’s claim that the city had unlawfully imposed
a double tax on the value of the personal property on the 2010 grand list
in part IV of this opinion.
29
The concurrence concludes that the trial court’s conclusion that Pomy-
kacz’ calculations did not include personal property was clearly erroneous.
It further concludes that a new trial is required at which the trial court
should determine whether the appraisal includes the value of the personal
property. It is unclear to us why the concurrence, having determined that
the trial court properly exercised its discretion to reject the discounted cash
flow approach and to value the property pursuant to the reproduction cost
approach, and having reached the ‘‘ ‘definite and firm conviction’ that the
trial court committed a mistake’’ when it concluded that Pomykacz’ calcula-
tions, on which it based its own valuation, did not include personal property,
believes that a remand is necessary. Unless the concurrence has other,
unstated concerns about the trial court’s calculations, it would appear that
the concurrence simply could deduct the undisputed value of the personal
property from the trial court’s valuation to determine the taxable value of
the property.
30
The field card for the property for the 2008 revaluation listed an
‘‘Appraised [Building] Value (Card)’’ of $6,062,840, an ‘‘Appraised XF (B)
Value [Building]’’ of $126,360, an ‘‘Appraised OB (L) Value [Building]’’ of
$172,320, and an ‘‘Appraised Land Value [Building]’’ of $1,254,000. The total
appraised parcel value was $401,624,570. The appraisal report of Wheela-
brator’s expert witnesses showed that this value was five to ten times the
assessed fair market value of Connecticut’s five other waste to energy
facilities and five times the value that the city had assigned to another
electric generating plant located in Bridgeport on the 2008 grand list.
31
General Statutes § 12-81a (e) provides in relevant part: ‘‘[Taxes] shall
be due and payable . . . not sooner than thirty days after the date such
bill is mailed or handed to the purchaser . . . .’’
32
The city contends that this claim is subject to a separate legal proceeding.
Even if that is the case, however, that does not necessarily mean that this
evidence was irrelevant to Wheelabrator’s general claim in the present case
that it is entitled to interest on amounts that it overpaid because the city
engaged in a pattern of wrongdoing.
33
The assessed value of property for tax purposes in Bridgeport is 70
percent of the true and actual value.
34
General Statutes § 12-62 (b) (2) provides: ‘‘When conducting a revalua-
tion, an assessor shall use generally accepted mass appraisal methods which
may include, but need not be limited to, the market sales comparison
approach to value, the cost approach to value and the income approach to
value. Prior to the completion of each revaluation, the assessor shall conduct
a field review. Except in a town that has a single assessor, the members
of the board of assessors shall approve, by majority vote, all valuations
established for a revaluation.’’
35
General Statutes § 37-3a (a) provides in relevant part: ‘‘Except as pro-
vided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent
a year, and no more, may be recovered and allowed in civil actions . . . .’’
36
It is well established that, unlike appeals pursuant to § 12-117a, appeals
pursuant to § 12-119 ‘‘must [involve] allegations beyond the mere claim that
the assessor overvalued the property. [The] plaintiff . . . must satisfy the
trier that [a] far more exacting test has been met: either there was misfea-
sance or nonfeasance by the taxing authorities, or the assessment was
arbitrary or so excessive or discriminatory as in itself to show a disregard
of duty on their part.’’ (Internal quotation marks omitted.) Wilson v. Kelley,
224 Conn. 110, 119, 617 A.2d 433 (1992). It does not follow from the fact
that a plaintiff is required to establish some degree of wrongdoing to bring
a claim pursuant to § 12-119, however, that wrongdoing is irrelevant to
claims brought pursuant to § 12-117a.
37
General Statutes § 12-113 provides: ‘‘The board of assessment appeals
may reduce the assessment of any person as reflected on the grand list by
reducing the valuation, number, quantity or amount of any item of estate
therein, or by deleting any item which ought not to be retained in it, provided
any such reduction or deletion shall be recorded in the minutes of the
meeting of said board. The board of assessment appeals shall not reduce
the valuation or assessment of property on the grand list belonging to any
person who does not appear at a hearing before the board of assessment
appeals, either in person or by such person’s attorney or agent, and offer
or consent to be sworn before it and answer all questions touching such
person’s taxable property situated in the town.’’
38
This court in Wilcox stated that ‘‘[t]he conclusion of the [trial] court
that the applicant has not been aggrieved by any action of the board of
relief was legally and logically drawn from the subordinate facts.’’ (Emphasis
added.) Wilcox v. Madison, supra, 103 Conn. 156. It is clear to us, however,
that, by using this language, the court was merely stating that the trial court
properly had found that the action of the board of relief was not unlawful,
not that the trial court lacked jurisdiction over the plaintiff’s claim. See
Sibley v. Middlefield, supra, 143 Conn. 105 (‘‘The court performs a double
function on an appeal from a board of tax review. First, it must determine
the judicial question [of] whether the appellant has been aggrieved by such
action on the part of the board as will result in the payment of an unjust
and, therefore, a practically illegal tax. [Second], if that question is answered
in the affirmative, the court must proceed to exercise its broad discretionary
power to grant relief.’’ [Emphasis added.]).
39
Because the issues of whether the trial court in a tax appeal pursuant
to §§ 12-117a and 12-119 is bound by the decision of a board of assessment
appeals when the property owner has failed to appear before the board and
to answer its questions and, if so, whether the trial court in the present
case was bound by the board’s decision because Wheelabrator refused to
produce the draft appraisal report were not raised or briefed in this appeal,
we express no opinions on those issues. We note, however, that ‘‘we have
stated on numerous occasions [that], in a § 12-117a appeal, the trial court
tries the matter de novo. . . . In a de novo proceeding, the trier of fact
makes an independent determination of the matters on which the appeal
was taken without regard for the action or decision of the lower tribunal.’’
(Citation omitted.) Konover v. West Hartford, 242 Conn. 727, 741, 699 A.2d
158 (1997).
40
General Statutes (Rev. to 2011) § 20-501 (a) provides: ‘‘No person shall
act as a real estate appraiser or provisional appraiser or engage in the
real estate appraisal business without the appropriate certification, license,
limited license or provisional license issued by the [Connecticut Real Estate
Appraisal] [C]ommission, unless exempted by the provisions of sections 20-
500 to 20-528, inclusive.’’
Hereinafter, all references to § 20-501 are to the 2011 revision unless
otherwise noted.
41
General Statutes (Rev. to 2011) § 20-523 provides: ‘‘(a) Any person who
engages in the real estate appraisal business without obtaining a certification,
license, limited license or provisional license, as the case may be, as provided
in sections 20-500 to 20-528, inclusive, shall be fined not more than one
thousand dollars or imprisoned not more than six months or both, and shall
be ineligible to obtain a certification, license, limited license or provisional
license for one year from the date of conviction of such offense, except the
[Connecticut Real Estate Appraisal] [C]ommission, in its discretion, may
grant a certification, license, limited license or provisional license, as the
case may be, to such person within such one-year period upon application
and after a hearing on such application.
‘‘(b) No person who is not certified, licensed, limited licensed or provision-
ally licensed, as appropriate, by the commission as a real estate appraiser
shall represent himself or herself as being so certified, licensed, limited
licensed or provisionally licensed or use in connection with such person’s
name or place of business the term ‘real estate appraiser’, ‘real estate
appraisal’, ‘certified appraiser’, ‘certified appraisal’, ‘residential appraiser’,
‘residential appraisal’, ‘limited licensed appraiser’, ‘provisional appraiser’
or ‘provisional appraisal’ or any words, letters, abbreviations or insignia
indicating or implying that such person is a certified, licensed, limited
licensed or provisionally licensed, as appropriate, real estate appraiser in
this state. Any person who violates the provisions of this subsection shall
be fined not more than one thousand dollars or imprisoned not more than
six months, or both.’’
Hereinafter, all references to § 20-523 are to the 2011 revision unless
otherwise noted.
42
General Statutes (Rev. to 2007) § 20-500 (5) provides: ‘‘ ‘Engaging in the
real estate appraisal business’ means the act or process of estimating the
value of real estate for a fee or other valuable consideration.’’
General Statutes (Rev. to 2007) § 20-500 (5) is now codified at General
Statutes § 20-500 (11).
43
The city contends that Taylor and Hutchinson are distinguishable
because in neither case did the expert witness claim to be a real estate
appraiser. We are not persuaded. If a person who does not claim to be a
real estate appraiser may testify as an expert witness regarding the value
of real estate, we cannot perceive why a person who claims to have special
skills and knowledge in the appraisal of real estate should be barred from
testifying merely because the person is not licensed.
44
We also note that, although the city has acknowledged that there are
cases in which persons who are not licensed to appraise real estate have
testified as expert witnesses regarding the value of real property, it has
referred to no case in which the state has prosecuted such persons.