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June 5, 2019

In this SPRING 2019 Issue:

Pullman & Comley’s First Massachusetts office is open

Pullman & Comley’s Property Tax and Valuation Department has been prosecuting property tax assessment appeals in the Commonwealth of Massachusetts for several years. Partner Laura B. Cardillo is a member of the Massachusetts Bar and other attorneys are in the process of achieving Massachusetts Bar membership. Given the expansion of our work in Massachusetts in the property tax practice and across our other practice areas, we felt it was high time to acquire a strong physical presence in the Bay State. As a result, we are proud to announce that the firm opened our first Massachusetts office on May 1, 2019 at 1500 Main Street in Springfield. Our telephone number is 413-314-6160. We look forward to welcoming friends and clients in Springfield and to growing our representation of Massachusetts property owners.


Tidbit on NNN lease property valuation

A sort of a humdrum ruling on the assessment appeal of a garden variety industrial building nevertheless offers a valuable insight as to proper use of the income valuation methodology. 

The parcel in question was valued at $2.8 million for the four tax years in which its assessment was called into question before the Massachusetts Appellate Tax Board. While both parties’ appraisers employed the income capitalization approach, the rubber hit the road with their capitalization rate development. 

Both experts “agreed that the typical lease structure for industrial properties in the relevant market during the time periods at issue was NNN”. Nevertheless, the property owner’s appraiser concluded that the landlord should be responsible for the payment of real estate taxes and loaded a tax factor into his capitalization rate. Understandably, the assessor’s appraiser omitted a tax factor in his capitalization rate. The ATB roundly criticized the property owner’s appraiser for his approach while ratifying the assessor’s expert’s value. 

Your editors observe that nothing undercuts the credibility of an appraiser more than relying on an unsupportable approach and irrelevant data. Of course, the appeal was lost. 

Powerscourt Realty Trust v. Assessors of Woburn, 2018 WL 6450023 (September 3, 2018). 

Laura B. Cardillo is familiar with the ruling and can be reached at lcardillo@pullcom.com or 413-314-6166.


Chance to establish condemnation valuation rule lost

In an unanimous opinion sustaining an almost $3 million increased condemnation award for the taking of property near a baseball stadium to be constructed in Hartford, the opportunity to establish an important principle limiting eminent domain compensation (sometimes called the “project rule”) was refused by the Connecticut Supreme Court because the issue was not properly presented in the appeal.

Although the Supreme Court agreed that the lower court’s decision “appears to support the (property owner’s) view that the lion’s share of the (increased award) arises . . . from the effect on surrounding property values of the City’s plan to construct a ballpark,” for some reason the City did not press this argument on appeal and focused on other aspects of the lower court’s opinion.

“Accordingly,” Associate Justice Andrew McDonald ruled, “we have no occasion in this opinion to consider whether a principle articulated by some . . . jurisdictions, namely, that the fair market value of property taken shall not include any increase (or decrease) in the value attributable to a redevelopment project for which the property is taken” is applicable here.

Associate Justice McDonald was referring, somewhat delphically, to a number of state and federal decisions, including two rulings by the United State Supreme Court that “the (government) as condemner may not be required to compensate a condemnee for elements of value that the (g)overnment has created . . . .” Put another way, “(w)here multiple properties . . . are condemned for a particular public project, the (g)overnment must pay pre-existing market value for each. Neither the (g)overnment nor the condemnee may take advantage of an alteration in market value attributable to the project itself.”

As a result, it will be left to future litigation to establish a sound principle in Connecticut eminent domain proceedings that is accepted elsewhere.

City of Hartford v. CBV Parking Hartford, LLC, Docket No. SC 20044 (September 11, 2018).

Elliott B. Pollack can respond to questions about Connecticut eminent domain rules at ebpollack@pullcom.com or 860-424-4340.  


Government abutter purchase is a market sale

An industrial property owner filed tax appeals claiming that the assessor’s market value approaching $5 million for 2000-2013 was excessive. 

While the appeals were pending, the owner sold the land to a governmental entity for about 20% more than value placed on it by the assessor; a classic good news/bad news story. 

The Indiana Board of Assessment Appeals relied heavily on the sale to support the assessor’s values: it concluded that the deal met its definition of a “market” transaction and that the 2014 sale was relevant because the market had been relatively stable over the prior assessment years which were at issue. 

“Not so fast,” the property owner said. The sale cannot be given credence as a market sale because the governmental buyer already owned the “vast majority of the land in that area” and was unquestionably motivated to acquire it and to add to its holdings. Was the government entity “a typically motivated” buyer? 

After ruling that the sale was relevant to the valuation of the subject property on the earlier dates, the Indiana Tax Court (which reviewed the Board’s decision) sustained the owner’s tax appeal finding that the contested sale had limited bearing on the tax years in questions. 

While the case was decided on different grounds, it is worthwhile reflecting on the Tax Court’s reasoning. The fact that the property had been marketed at a price based on an independent appraisal and was sold after having been on the market for almost a year, together with other issues, undergirded the court’s decision thus leaving us with a helpful discussion of an abutter transaction’s impact on a pending assessment appeal. 

Nova Tube Indiana II, LLC v. Clark County Assessor, Indiana Tax Court, 101 N.E. 3rd 887 (2018). 

Michael J. Marafito is familiar with the ruling and can be reached at mmarafito@pullcom.com or 860-424-4360.  


Hospitality market values on the uptake

There is an old expression to the effect that the hospitality industry’s relationship to the overall economy is similar to the canary’s relationship to the coal mine: as soon as there is a problem, it is in trouble. On the other hand, given the non-destination resort industry’s dependence on business travel, when the economy is cooking, hotels and motels tend to do very well.

This is the gist of Joe Cooper’s article in the December 3, 2018 issue of Hartford Business Journal, which notes that Connecticut room tax revenue increased 11.5% from 2014-2018 and that hospitality jobs have gone up during the same approximate period to about 11,000 - 12,000.

Revenue per available room (Revpar) in the Greater Hartford area has jumped from almost $56 in 2012 to more than $72 through August 2018 according to Smith Travel Research, the well-known monitor of hospitality industry health.

Hospitality property owners seeking to manage local ad valorem property taxes will need to grapple with these data and should generally be cautious in challenging current property values, inasmuch as property assessments tend to lag behind another economic indicators.

The members of Pullman & Comley’s Property Tax and Valuation Department are familiar with valuing hospitality properties.


Interesting inverse condemnation case

The North Carolina Supreme Court recently considered a novel issue. Edward and Debra Wilkie, together with other individuals owning property adjacent to Spring Lake in the City of Boiling Spring Lakes, requested work by the City which would raise the level of Spring Lake to the level reached a number of years earlier when the City lowered the level. Acting on the petition, the City took appropriate action. Interestingly, after the level was raised,  the Wilkies claimed that portions of their property “were covered by the lake.” While the City tried to take action to limit the problem, the Wilkies brought an inverse condemnation law suit asserting that they had “lost approximately 15%-18%” of their land.

A trial court agreed that the Wilkies had a proper claim and scheduled a hearing to determine damages to their property which, understandably, was met by an appeal from the City. It asserted that having acted on the residents’ request to raise the lake level, the Wilkies should not be heard to complain, especially since they had co-signed the petition! The City also argued that since the level had not been increased for a general public purpose, an inverse condemnation claim was inappropriate.         

The Supreme Court disagreed observing that requirement of a statutory taking for a public purpose is for a property owner’s protection: it is not a “sword” to be wielded against the owner by the State. It eloquently observed: “although a condemning entity must establish that a proposed taking will further a public purpose before a condemnation be authorized, we can see no reason why a reciprocal burden to establish the existence of a public purpose should be imposed upon a property owner who had been deprived of his or her property by governmental action taken for a non-public purpose.”

The gist of the Court’s insight is that while the property owners did ask the lake level to be raised, they did not also authorize substantial damage to their property. They were entitled to be compensated for their loss.

Wilkie v. City of Boiling Spring Lakes, North Carolina Supreme Court, 809 S.E. 2nd 853 (March 2, 2018).

Elliott B. Pollack can respond to questions about inverse condemnation at ebpollack@pullcom.com or 860-424-4340.


“Apartment arm’s race”

In previous issues of Topics, we have written about the growth of apartments in the Hartford Central Business District and in its suburbs, including primarily those aligned with the expanded New Haven to Springfield railroad capacity.

Another issue that presents itself in evaluating the apartment market is growth of ancillary facilities or amenities. Once upon a time, the only amenity an apartment dweller could expect to receive was a clean hallway and a laundry room in the basement – or perhaps on the same floor as her apartment. The garden apartment movement in the 1960s brought the swimming pool and the occasional tennis court. However, in what has become a very competitive apartment market, “developers have been engaging in an arm’s race for new amenities” notes Patrick Sisson in the October 10, 2018 issue of the IAAO newsletter. “Fancy gyms and rooftop access don’t cut it anymore,” Mr. Sisson rumbles. Current apartment developments bring “movie theaters, dog runs, communal gardens and access to co-working space.” In fact, your editors have observed half-court basketball gyms and common dining facilities in new Connecticut projects.

At some point, the service and amenity package developers feel compelled to provide may start turning multi-family properties into assisted living facilities for millennials; municipal assessors may then have to start thinking about measuring and excluding business value from their assessments!

Laura Cardillo and Gregory F. Servodidio are knowledgeable about current apartment market developments. Laura can be reached at 860-424-4309 or lcardillo@pullcom.com. Greg is available at 860-424-4332 or gservodidio@pullcom.com.


Attorneys and “appraisals”

Clients of Pullman & Comley’s Property Tax and Valuation Department know that its attorneys frequently sketch out potential values or ranges of values of the properties they are asked to challenge in order to determine whether there is probable cause to pursue a case.

In 2017, the Illinois Department of Financial and Professional Regulation went after two Illinois attorneys claiming they had engaged in the unlicensed practice of appraisal because they submitted opinions of value in assessment appeals. The Illinois Bar Association, not surprisingly, asserted that the professional regulators were off base in trying to stop the attorneys from advocating for their property tax clients and that the attorneys were functioning as attorneys, not as unlicensed appraisers.

A Cook County, Illinois Circuit Court ruled that the Illinois legislature did not intend to keep attorneys from carrying on the “traditional practice of law in the property tax context.” It went on to say that “(a)n attorney’s reference to comparable valuations in a property tax proceeding constitutes the practice of law which is regulated exclusively by the courts.”

Your editors believe that a similar result would be reached by the Connecticut courts should the issue be raised here.


Attorney Notes

One of our Pullman & Comley LLC partners paid for his street metered parking in front of a New Haven office building with his credit card but left the credit card in the meter. Shortly after returning to his office, a woman called him – she apparently looked up his office telephone number – and offered to mail the credit card back to him. He asked if she might be willing to drop off the card at his wife’s New Haven office, to which she willingly agreed. While not a note about Pullman & Comley’s attorneys’ accomplishments, it is heartwarming to hear about honest people who are willing to put themselves out, if only for a little bit, to help their fellow human beings!

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