Albert Gosselin et al. v. Lisbon Board of Assessment Appeals (2011)

MEMORANDUM OF DECISION

I.

Statement of the Proceedings

This is an appeal, taken under the provisions of Connecticut General Statutes (CGS) § 12–117a, by Albert G. Gosselin, Jr., and Nancy R. Gosselin (hereinafter plaintiffs), the owners of real property in the Town of Lisbon, from the valuation of real property by the tax assessor of the Town of Lisbon on the grand list of October 1, 2008.   Plaintiffs have amended the appeal to include the assessment periods beginning October 1, 2009 and 2010 as provided by CGS § 117a.

The real property, which is the subject of this appeal, is a portion of the property owned by plaintiffs at 40 Lee Road and is 13.83 acres in area.   The property is described on Map 15, Lot 5, in the records of the tax assessor.

The assessor determined the fair market value of this subject property to be $56,500 and set forth the value of the property at 70% of this value of the grand list of October 1, 2008.   Claiming that the property had been overvalued, plaintiffs appealed to the Board of Assessment Appeals and offered to be sworn and answer all questions concerning the property.   The board denied plaintiffs' appeal and made no change in the amount of the assessment.

Claiming to be aggrieved by the determination of the assessor and the board, plaintiffs filed the present appeal on July 14, 2009.   An answer was filed denying the essential allegations of the complaint on September 11, 2009.

The issues having been joined, the case came before the court for trial on June 29, 2011.   Briefs were filed on October 11, 2011.   The court is not bound to consider any claim not properly briefed.  Connecticut Coalition Against Millstone v. Connecticut Sitting Council, 286 Conn. 57, 85 (2008).

II.

Scope of Review

This appeal is taken under the provisions of CGS § 12–117a.

“Section 12–117a, which allows taxpayers to appeal the decisions of municipal boards of [assessment appeals] to the Superior Court, provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property ․ In a Section 12–117a appeal, the trial court performs a two-step function.   The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been over assessed ․ In this regard, [m]ere overvaluation is sufficient to justify redress under [Section 12–117a], and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation ․ Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier ․ The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property ․

“Only after the court determines that the taxpayer has met his burden of proving that the assessor's valuation was excessive and that the refusal of the board of [assessment appeals] to alter the assessment was improper, however, may the court then proceed to the second step in a Section 12–117a appeal and exercise its equitable power to grant such relief as to justice and equity appertains ․ If a taxpayer is found to be aggrieved by the decision of the board [assessment appeals], the court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the applicant's property ․ If the court finds that the property has been in fact overvalued, it has the power to, and should, correct the valuation.”  (Citations omitted;  internal quotation marks omitted.)  Konover v. West Hartford, 242 Conn. 727, 734–36 (1997).

The first step which the court must take in deciding this appeal, therefore, is to determine whether the plaintiffs have proven that they have been aggrieved by the decision of the board on the grounds that their real property has been over assessed and that the Board of Assessment Appeals improperly refused to reduce the assessment to a correct value.

III.

Factual Background

Plaintiffs acquired title to the property in question in the early 1970s from Mr. Gosselin's father.   At the time of acquisition, plaintiffs were under the impression that the property had been classified as farm land under the provisions of P.A. 490.  (CGS § 12–107a et seq.) ¹  The property was then overgrown with cedar and multiflora roses.   Plaintiff then cleared and plowed the fields removing the cedar and roses.   Trellises were erected and plaintiffs began to use the property to grow grapes.

In 1989 plaintiffs made application to the tax assessor requesting that the property be classified as farm land under the provisions of P.A. 490.   The classification was based upon the use of the property as a vineyard.   The request was granted and the property was classified as farm land under the Act.

The vineyard operation was not successful and plaintiffs stopped growing grapes on the property.   The property has not been used as a vineyard since 1989.

After terminating the vineyard use, the property was inactive for a number of years.   Plaintiffs then removed the trellises, post, wire and other apparatus incidental to the vineyard operation.   Plaintiff, Albert Gosslin, testified that they then commenced mowing the property with the intent of converting it to hayfields.   However, the plaintiffs did not then file with the tax assessor a request to reclassify the property to any new agricultural use.

In connection with the cultivation of hay, plaintiffs regularly mowed the fields and applied pesticides.   After mowing, the hay was not removed from the fields but was left in place to reseed and improve the fields.   Plaintiffs maintained a farm tractor, a rotary mower, harrow, sprayer and rake for maintenance of the hayfields.

In 2008, the tax assessor received complaints from persons questioning the classification of properties in the town as farm land.²  As a consequence, the assessor sent out inquiries to the owners of such properties and proceeded to update the farm land classifications.   One result of this procedure was a determination that plaintiffs' property no longer merited a farm land classification.   On the grand list of October 1, 2008, the 13.83 acre parcel in question was removed from the farm land classification and reclassified as excess acreage.

Plaintiffs appealed the reclassification to the Board of Appeals which upheld the action of the assessor.

In October 2009, plaintiffs filed a new application for farm land classification.   This application was denied based upon the current usage of the property.   They also applied in October 2010.   This appeal was also denied.

Additional facts will be stated as required.

IV.

Analysis

The first determination which the court must make is to ascertain if plaintiffs are aggrieved by the action of the assessor and the board.   Mere overvaluation of the property is sufficient to establish aggrievement.   Konover v. West Hartford, supra, 242 Conn. 734.   On the grand list of October 1, 2008, the property was reclassified from farm land under the provisions of P.A. 490 to excess acreage.   This reclassification resulted in an increase in the valuation of plaintiffs' property on the grand list and a higher tax.   It follows then that if the classification was in error, plaintiffs have established aggrievement and are entitled to relief.   The burden of proof to establish this aggrievement is on the plaintiffs.   Marshall v. Newington, 156 Conn. 104, 114 (1968).

It is important to note that plaintiffs are not challenging the underlying valuations placed on the property by the tax assessor.   No evidence has been introduced concerning the value of the property as farm land or as excess acreage.   The sole question before the court involves the reclassification from farm land to excess acreage.

CGS § 12–107a declares that it is in the public interest to encourage the preservation of farm land in order to maintain a readily available source of food and farm products and to provide for the welfare and happiness of the inhabitants of the state.   The statutes also provides in part:

(2) that it is in the public interest to prevent the forced conversion of farm land, ․ to more intensive uses as the result of economic pressures caused by the assessment thereof for purposes of property taxation at values incompatible with their preservation as such farm land ․

Section 12–107b defines farmland:

(1) “Farmland” means any tract or tracts of land, including woodland and wasteland, constituting a farm unit.

CGS § 12–107c sets forth the procedure by which an owner of land may request that their property be classified as farm land.

CGS § 12–63 requires municipal tax assessors to consider the true and actual value of property placed in the grand list to be the fair market value of such property.   In determining fair market value, the highest and best use of the property is the commonly accepted starting point.  Commissioner of Transportation v. Bakery Place, 83 Conn.App. 343, 350 (2004).

Section 12–63 also provides that the present true and actual value of land certified as farm land under CGS § 12–107c shall be based on current use without regard to neighboring land of a more intense nature.   The statutory requirement mandating that property classified as farm land be valued based on current use rather than a more intense use or its highest and best use results in a lower land value and a reduced tax for the property owner.

Plaintiffs claim to be aggrieved by the removal of the 18.83 acre tract from the classification as farm land resulting in the property being over assessed.   This claim raises two issues which the court must address:

(1) Have plaintiffs waived their right to farm land classification?

(2) Was the reclassification proper considering the current use of the property?

1.

It is undisputed that in 1989 plaintiffs applied to have the property classified as farm land based upon its use as a vineyard.   The application was granted and the tax assessor classified the property as farm land under the provisions of CGS § 12–107c.

CGS § 12–504h provides in part that any land classified as farm land under CGS § 12–107c shall remain so classified without filing any new application until:

․ (1) The use of such land is changed to a use other than that described in the application for the existing classification by said record owner, ․

The property was used as a vineyard for only a short time.   When the vineyard operation was discontinued, no particular use was made of the property until plaintiffs began to clear the land for development as hayfields.   When the vineyard use was discontinued, it constituted a change in use as stated in Section 504h.   Plaintiff therefore had a duty to file a new application reflecting the change in use if they wished the property to retain its farm land classification.   This was not done.

Section 12–107c(a) states that an owner of land may apply for classification as farm land by filing a written application with the assessor not earlier than 30 days before or later than 30 days after the assessment date.   For the grand list of October 1, 2008, an application would have to have been filed by an applicant not earlier than September 1 or later than October 30 of that year.   Subsection (c) of Section 12–107c provides that “[f]ailure to file an application for classification of land as farm land within the time limit prescribed in subsection (a) and in the manner in informed prescribed in subsection (b) shall be considered a waiver of the right of such classification on such assessment list.”   Where a landowner has failed to properly file for land to be classified as farm land or the right to file has been waived the assessor is obligated to value the land at its true and actual value.   Dickau v. Glastonbury, 156 Conn. 437, 441 (1968).

CGS § 12–107c clearly states that the failure to file an application for classification as farm land within the time prescribed by statute shall be considered a waiver of such classification.   Under the provisions of CGS § 12–504(1), plaintiff's farmland classification had been terminated by the change in use resulting from the abandonment of the vineyard use.   The fact that the tax assessor made no actual change in the classification until 2008, is irrelevant.   It was to plaintiff's financial benefit that the classification remained as farm land from 1989 to 2008.   They should not be further rewarded for failure to follow the law.

Since plaintiffs did not file an application for classification as farm land within the time allowed for the 2008 grand list, it must be found that they have waived the right to such classification of the 13.83 acres for the 2008 grand list.

2.

Plaintiffs filed an application for classification of the 13.83 acres as farm land on the grand list of October 2009.   The tax assessor denied the application and continued the classification of the property as excess acreage.   Although denial by the assessor was not appealed to the Board of Assessment Appeals, the action of the assessor is properly before the court under the provisions of CGS § 12–117a.

The application for the 2009 grand list stated that the type of farming operation by plaintiffs was “hay cultivation.”   The tax assessor denied the classification as “not a farming operation.”   The application was amended by attaching a letter dated June 15, 2009, from Ronald Olsen of the Connecticut Department of Agriculture.   In the letter, Mr. Olsen stated that he walked the land in question and gave his opinion that land could be classified as farm land.

Plaintiffs also applied for farm land classification on the grand list of October 2010.   The type of farming was stated as “hay cultivation, fish and apples.” ³  The application was again rejected by the assessor stating as her reason “failure to complete—29 (backside).   Based on the information submitted, the property does not qualify for P.A. 490 designation.”   Submitted with this application were two letters dated August 20, 2010, addressed to the assessor.   One letter from Nicholas J. Anderson stated:

Dear Ms. Rainville:

I am writing to inform you that I have entered into an agreement with Albert G. Gosselin, Jr. and Nancy R. Gosselin to hay their fields located at the above address.   The hay will be cut and removed by me for use in conjunction with my agricultural activities.

The second letter was from plaintiffs advising the assessor of the agreement with Mr. Anderson.

CGS § 12–107c provides, that upon receipt of an application for farm land classification the assessor must determine whether such land is actually farm land.   The statute further provides, in pertinent part, that:

In determining whether such land is farm land, such assessor shall take into account, among other things, the acreage of such land, the portion thereof in actual use for farming or agricultural operations, the productivity of such land, the gross income derived therefrom, the nature and value of the equipment used in connection therewith, and the extent to which the tracts comprising such land are contiguous.

It is clear that the statute requires the assessor to consider the land in actual use “for farming.”  Marshall v. Newington, supra, 156 Conn. 113.

In reclassifying the property on the 2008 grand list and rejecting the farm land requests filed for 2009 and 2010, the assessor determined that the property was not in actual use as farm land.

Plaintiffs dispute the tax assessor's conclusion and claim that the 13.83 acres in question have been used and continue to be used as farm land for the cultivation of hay.   The term “farming” is defined by CGS § 1–1(q) to “include cultivation of the soil ․ raising or harvesting any agricultural or horticultural commodity ․” Considering the public interest involved, it is reasonable to conclude that the cultivation of the soil in raising and harvesting hay as an agricultural commodity should be considered farming.   Johnson v. Board of Tax Appeals, 160 Conn. 71 (1970).

The issue here, is whether or not plaintiffs have been engaged in such farming as claimed.

The determination must be based on the actual use of the property for farming or agricultural operations.   Factors which must be considered under § 12–107c include the productivity of the land, the gross income derived from the use and the nature and value of the equipment used.   The acreage involved here is not an issue.

It is plaintiffs' position that the land in question has been continuously used for the cultivation of hay from some unstated time after the abandonment of the vineyard operation to the present.   Plaintiffs' claim, however, raises issues of credibility.

There was testimony that plaintiffs thought that the property was classified as farm land at the time they acquired title.   What agricultural use merited this classification is unclear.   When the agricultural use was changed to a vineyard use, plaintiffs applied for reclassification of the new use.   When the vineyard use was abandoned, plaintiffs made no attempt to reclassify to any new use until after the property was formerly declassified by the assessor on the 2008 grand list.

Plaintiffs claim that the property has been, and is being used, for the cultivation of hay, yet in twenty years, no hay has ever been harvested, and no income has been derived from the claimed use of the land.

Equipment was utilized by plaintiffs for what would be considered normal maintenance of the property, but no effort was made to have these implements classified as farm equipment prior to 2010.

The mere designation by plaintiffs of their operation as “hay cultivation” does not convert the use to which the land was being put into a farming operation.  Holloway Bros. v. Avon, 26 Conn.Sup. 160, 162 (1965).

In connection with the application for the 2009 grand list, plaintiffs included a letter from Ronald H. Olsen of the Connecticut Department of Agricultural.   Mr. Olsen opined that the property could be classified as farm land.   He also stated that “it is unfortunate that there is no end user of the hay and that the owner just cuts it.”   He further stated that “the fields are being maintained for the future use ․” The general import of Mr. Olsen's letter is that the property could be classified as farm land, but that it would be better to place it in an open space classification.

Mr. Olsen's letter addressed to “Whom it May Concern” was not binding on the tax assessor.   The assessor had a statutory duty to classify the property according to its actual use. it cannot be found that in determining that plaintiffs' use of the property was “not a farming operation” was an error.

In his letter, Mr. Olsen advised that “there should be a continuing effort by Mr. Gosslin to search for a farmer to harvest and use the hay lots for production purposes.”   In connection with the 2010 applications, plaintiffs submitted the letter from Nicolas J. Anderson indicating that he had entered into an agreement to hay plaintiffs' field and use the product in connection with his agricultural activities.

There was no evidence as to what the agreement consisted of:  whether it was in writing, binding on the parties, involved compensation, or when the harvesting should be commenced.   Under the circumstances where the assessor was required to make her classification based on actual use of the property, it cannot be found that her determination that the property should not be classified as farm land was improper.

No doubt, if in connection with future applications, or the assessor determined that the hay on the property was being harvested for agricultural purposes, it would be a strong indication that the property might be classified as farm land.

V.

Conclusion

It is found that plaintiffs waived the right to farm land classification on the grand list of 2008.   It is further found that plaintiffs have failed to prove that the property in question had been actually used as farm land since the abandonment of the vineyard use in 1989.   The tax assessor's denial of the applications for farm land classification on the grand list of 2009 and 2010 were not in error based upon the actual use of the property.

It cannot be found that the property has been overvalued as alleged.   Plaintiffs have failed to prove that they are aggrieved.

Accordingly, this appeal is dismissed.

Joseph J. Purtill, JTR

FOOTNOTES

FN1. If the property had been so classified, the classification would have been terminated by the change in title under the provisions of CGS § 12–504h..  FN1. If the property had been so classified, the classification would have been terminated by the change in title under the provisions of CGS § 12–504h.

FN2. The laudable public interest of the state in preserving farm land under the provisions of P.A. 490 has the secondary effect of shifting the tax burden to others.  United Church of Christ v. West Hartford, 206 Conn. 711, 718 (1988).   No doubt this was the cause of the complaints..  FN2. The laudable public interest of the state in preserving farm land under the provisions of P.A. 490 has the secondary effect of shifting the tax burden to others.  United Church of Christ v. West Hartford, 206 Conn. 711, 718 (1988).   No doubt this was the cause of the complaints.

FN3. Although the application stated a fish and apple use, there does not appear to be any claim that the 13.83 acres in question were used for anything but hay cultivation..  FN3. Although the application stated a fish and apple use, there does not appear to be any claim that the 13.83 acres in question were used for anything but hay cultivation.

Purtill, Joseph J., J.T.R.