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Home My WebLink About03-4921 Fc\FILES\[)ATAFILE\Generw\Docurnents\I0773-1,cumberlandcountyappew SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA :CIVIL ACTION - LAW v. :NO. 03 - I./qN CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee :REAL ESTATE TAX ASSESSMENT APPEAL NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717)232-7536 MAR;r~~r\~ORFF WILLIAMS & OTTO By: ~\Jj! Carl C. Risch, Esquire I.D. No. 75901 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneysfor Appellants Date: September 18, 2003 SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA Appellants :CIVIL ACTION - LAW v. :NO. 03 - '-Ie;.1./ CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee :REAL ESTATE TAX ASSESSMENT APPEAL PETITION OF APPEAL FROM DETERMINATION OF REAL ESTATE TAX ASSESSMENT RE: SHENANDOAH MOBILE COMPANY AND SHENANDOAH PERSONAL COMMUNICATIONS COMPANY AND NOW, come the Appellants, SHENANDOAH MOBILE COMPANY and SHEHANDOAH PERSONAL COMMUNICATIONS COMPANY, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and appeal as follows: ] . Appellant Shenandoah Mobile Company, 124 South Main Street, Edinburg, Virginia, is the owner of a telecommunications tower (the "Tower") located at 102 Market Street, New Cumberland Borough, Cumberland County, Pennsylvania. 2. Appellant Shenandoah Personal Communications Company, 124 South Main Street, Edinburg, Virginia, is the owner of an antenna and other equipment located on and around the above described telecommunications tower. 3. Both the Tower and the equipment are located on real property owned by Darwin D. Kell and Doris 1. Kelllocated at 102 Market Street, New Cumberland Borough, Cumberland County. Appellant Shenandoah Mobile Company leases approximately 256 square feet of space from the Kells (successors in title to Metropolitan Medical, Inc., the original lessor) under a PCS Site Agreement dated August 23, 1999. This Agreement was subsequently assigned by the original lessee, Sprint Spectrum, L.P., to Appellant Shenandoah Mobile Company. A copy of this Agreement is attached hereto as Exhibit "A." 4. Under Paragraph 7 of the PCS Site Agreement, and Exhibit E attached thereto, the parties agree that the tower shall remain the property of Appellant Shenandoah Mobile Company and that Appellant may remove the tower upon termination ofthe lease. 5. The Tower is 70 feet tall and is a "monopole" type tower. It is attached to a concrete pad by bolts, is surrounded on three sides by an eight foot fence, and can be removed without damaging the tower or the real estate upon which it sits. Most ofthe equipment associated with the site is located inside an adjacent building owned by the Kells. This is in compliance with the PCS Site Agreement. 6. On November 4, 2002, the Cumberland County Office of Tax Assessment sent a document titled "Change of Assessment Notice" ("Notice") to Appellant Shenandoah Mobile Company at 124 South Main Street, P.O. Box 459, Edinburg, Virginia 22824, assessing improvements at 102 Market Street, New Cumberland, at $202,860.00. A copy of this Notice is attached hereto as Exhibit "B." 7. This Notice was for Tax Parcel Number 25-25-0006-351. -LL and the reason for the "change" was listed as "improvement" even though the Tower in question was constructed over 3 years prior to receiving the Notice. 8. The owners of the real estate upon which the tower sits, the Kells, are assessed separately by the Cumberland County Office of Tax Assessment at $307,330.00. The Notice received by Appellant was only for the Tower, not for the land or other preexisting improvements owned by the Kells. 9. As required by the Notice, Appellants appealed this Change of Assessment Notice to the Cumberland County Board of Assessment Appeals (the "Board") in December 2002. 10. A hearing was held before the Board on August 19, 2003, at which the Board decided to reduce the assessment ofthe Tower to $95,000.00; however, the Board decided that the tower was taxable real estate and not personalty. A copy of this decision is attached hereto as Exhibit "c." I I. Appellants now appeal this adverse decision to this Court seeking de novo review of the assessment of the Tower. THE TOWER IS NOT "REALTY" UNDER PENNSYLVANIA LAW AND CANNOT BE LEGALLY ASSESSED 12. Paragraphs I through I I are incorporated herein as if fully set forth. 13. The Tower is not realty under Pennsylvania law. Instead, the Tower is personalty and is not taxable under Pennsylvania law, including under 72 P.S. Sections 5020.201 and 5453.201. 14. The Appellants and the owners of the real estate intend for the Tower to be located temporarily on the land, it is not permanently affixed to the land, and it can be moved at any time by Appellants without damaging the Tower or the land upon which it sits. 15. Additionally, the Tower constitutes equipment located at an industrial establishment under Pennsylvania law which cannot be made subject to a tax assessment. WHEREFORE, Appellants request that this Court reverse the decision of the Board, declare that the assessment of the Tower violated Pennsylvania law because the Tower is personalty and/or removable machinery at an industrial establishment, and not realty, and order a refund, if due, of any tax paid by Appellants. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO lCmD By Carl C. Risch, Esquire I.D. No. 75901 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys/or Appellants Date: September 18, 2003 VERIFICATION The foregoing is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of I 8 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ~-,"\,-o-:s ~~ l )( William L. Pirtle, ViCil President CERTIFICATE OF SERVICE I hereby certifY that a copy of the foregoing was served this date by as follows: VIA HAND DELIVERY Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, P A 17013 VIA HAND DELIVERY Cumberland County Board of Assessment Appeals Old Court House One Courthouse Square Carlisle, P A 17013 MART SON DEARDORFF WILLIAMS & OTTO By l(l:QD Dated: September 18, 2003 /'I///. , 1'- f-.:.7 244- . . PCS SITE AGREEMENT Site Name Newcumbertand 102 Marllet Stree~ New Cumberland PA 1. Premises and Use, OWner leases to Sprint Spectrum L.P.. a Delaware limited partnership ("SSLP"), the s~e described as follows: Land consisting of approximately 256 (16' x 16) squate feet of exteriot space, and additional interior space. in and upon which SSLP will construct its equipment base station and antenna structure; building exterior space for attachment of antennas as needed: together with space required for cable runs to connect PCS equipment and antennas. in the Iocation(s} ("Sfte") shown on Exhibit A, together with a non-exclusive easement for reasonable access t~ereto and to the appropriate. in the discretion of SSLP, source of electric and telephone facilities. The Site will be used by SSLP for the purpose of instalfing. removing, replacing, modifying, maintaining and operating, at its expense, a personal communications service system facility rpCS-), including. without limitation, antenna equipment, cable wiring, backup power sources (including generators and fuel storage tanks), related fixtures and, if applicable to the Site, an antenna structure. SSLP will use the Site in a manner which will not unreasonably disturb the occupancy of Owner's other tenants. SSLP will have access to the Site twenty-four (24) hours per day. seven (7) days per week. 2. Term. The term of this Agreement (the "Initial Termj is fIVe years, commencing on the date rCommencement Date") both SSLP and OWner have executed this Agreement. This Agreement will be automatically renewed for four (4) additional terms (each a "Renewal Term") of five years each, unless SSLP provides OWner notice of intention not to renew not less than 90 days prior to the expiration of the Initial Term or any Renewal Term. 3. Rent Until the earlier of (a) that date which is 30 days after the issuance of a building permi~ or (b) twelve full calendar months follOWing the date tI1is Agreement is fully executed, the earlier of (a) or (b) hereinafter referred to as the .Occupancy Date," the rent will be a one-time aggregate payment of $100.00, the receipt of which OWner acknowfedges. Thereafter, rent will be paid in equal monthly installments of $900.00 (until increased as set forth herein), partial months to be prorated, in advance. See Exhibit 0 far rent escalation provision. 4. Title and Quiet Possession. Owner represents and agrees (a) that it is the Owner of the Site: (b) that it has the right to enter into this Agreement; (c) that the person signing this Agreement has the authority to sign; (d) that SSLP is entitled to access to the Site at all times and to the quiet possession of the Site throughout the Initial Term and each Renewal Term so long as SSLP is not in default beyond the expiration of any cure period; and (e) that Owner will not have unsupervised access to the Site or to the PCS equipment. 5. AssignmenUSubletting. SSLP may assign or transfer this Agreement or sublet all or any portion of the Site without the prior written consent of Owner. See Exhibit E. 6. Notices. All notices must be in writing and are effective only when deposited in the U.S. mail, certified and postage prepaid, or when sent via overnight delivery, to the address set forth below, or as otherwise required bylaw. 7. Improvements. SSLP may, at its expense, make such improvements on the Site as it deems necessary from time to time for the operation of the PCS system. Owner agrees to cooperate with SSLP with respect to obtaining any required zoning approvals for the Site and such improvements. Upon termination or expiration of this Agreement, SSLP may remove its equipment and improvements and will restore the Site to substantially the condition existing on the Commencement Date, except for ordinary wear and tear and casualty loss, See Exhibit E. 8. Compliance with Laws. Owner represents that Owner's property (including the Site), and all improvements located thereon, are in substantial compliance with building, life/safety, disability and other laws, codes and regulations of applicable governmental authorities. SSLP will substantially comply with all applicable laws relating to its possession and use of the Site, including without limitation the posting requirements of the Federal Communications Commission. 9. Interference. SSLP wlll resolve technical interference problems with other equipment located at the Site on the Commencement Date or any equipment that becomes attached to the Site at any future date when SSLP desires to add additional equipment to the Site. Likewise, Owner will not permit or suffer the installation of any future equipment which (a) results in technical interference problems with SSLP's then eXisting equipment or (b) encroaches onto the Site. Site I. D. 3CUPL33XC604 10. Utilities. Owner represents that utilities adequate for SSLP's use of the S~e are available. SSLP wiil pay for all util~ies used by it at the Sfte. Owner will cooperate with SSLP in SSLP's efforts to obtain utiiilles from any location provided by Owner or the servicing utility, including signing any easement or other instrument reasonably required by the utility company. See Exhibft E. 11. Termination. SSLP may terminate this Agreement at any time by nolice 10 Owner without further liability if SSLP does not obtain all permits or other approvals (collectively, Mapprovalj required from any governmental authority or any easements required from any third party to operate the pes system, or if any such approval is canceled, expires or is withdrawn or terminated, or if Owner fails to have proper ownership of the Site or authority to enter into this Agreement, or if SSL?, for any other reason, in its sole discretion, determines that it will be unable to use the Site. Upon termination, all prepaid rent will be retained by Owner unless such termination is due to Owner's failure of proper ownership or authority, or s.l..lch termination is a result of Owner's default. 12. Default If either party is in default under this Agreement for a period of (a) 10 days following receipt of notice from the non-defaulting party with resped to a default which may be cured solely by the payment of money, or (b) 30 days following receipt of notice from the non-defaultlng party with respect to a default ~hich may not be cured solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it against the defaulting party under applicable law, induding, but not limited to, the right to terminate this Agreement. If the non- monetary default may not reasonably be cured within a 30 day period, this Agreement may not be terminated if the defaulting party commences action to cure the default within such 30 day period and proceeds with due diligence to fully cure the default. 13. Indemnity. Owner and SSLP each indemnifies the other against and holds the other harmless from any and all costs (including reasonable attorneys' fees) and claims of liability or loss which arise out of the ownership, use and/or occupancy of the Site by the indemnifying party. This indemnity does not apply to any claims arising from the sole negligence or intentional misconduct of the indemnified party. The indemnity obligations under this Paragraph will sUlVive termination of this Agreement. 14. Hazardous Substances. Owner represents that it has no knowledge of any substance, chemical or waste (collectively, .substance1 on the Site that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. SSLP will not introduce or use any such substance on the Site in violation of any applicable law. 15. Subordination and Non-Disturbance. This Agreement is subordinate to any mortgage or deed of trust now of record against the Site. However, promptly after the Agreement is fully executed, Owner will use diligent efforts to obtain a non-disturbance agreement reasonably acceptable to SSLP from the holder of eny such mortgage or deed of trust. 16. Taxes, SSLP will be responsible for payment of all personal property taxes assessed directly upon and arising solely from its use of the communications facility on the Site. SSLP will pay to OWner any increase in real property taxes attributable solely to any improvements to the Site made by SSLP within sixty (60) days after receipt of satisfactory documentation indicating calculation of SSLP's share of such real estate taxes and payment of the real estate taxes by Owner. Owner will pay when due all other real estate taxes and assessments attributable to the property of Owner of which the Site is a part. 17. Insurance. SSLP will procure and maintain commercial general liability insurance, with limits of not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage liability, with a certificate of insurance to be furnished to OWner within 30 days of written request. Such policy will provide that cancellation will not occur without at least 15 days prior written notice to Owner. Each party hereby waives its right of recovery against the other for any loss or damage covered by any insurance policies maintained by the waiving party. Each party will cause each insurance policy obtained by it to provide that the insurance company waives all rights of recovery against the other party in connection with any damage covered by such policy. See Exhibit E. 18. Maintenance. SSLP will be responsible for repairing and maintaining the PCS system and any other improvements installed by SSLP at the Site in a proper operating and reasonably safe condition; provided. hoWever W any such repair or maintenance is required due fa the acts of Owner, its agents or employees, Owner shall reimburse SSLP for the reasonable costs incurred by SSLP to restore the damaged areas to the condKion which existed immediately prior thereto. Owner will maintain and repair all other portions of the property of which the SKe is a part in a proper operating and reasonably safe condition. 19. Miscellaneous. (a) This Agreement applies to and binds the heirs. successors, executors, administrators and assigns of the parties to this Agreement; (b) This Agreement is governed by the laws of the State in which the Sne is located; (c) If requested by SSLP, Owner agrees promptly to execute and deliver to SSLP a recordable Memorandum of this Agreement in the fonn of exhibit B; (d) This Agreement (Induding the Exhibits) constitutes the entire agreement between the parties and supersedes all prior written and verbal agreements, representations, promises or understandings between the parties. Any amendments to this Agreement must be in writing and executed by both parties; (e) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whor:n it is held invalid or unenforceable, will not be affected and each provision of this Agreement will be valid and enforceable to the fullest extent pennilted by law; (I) Promptly upon request by SSlP. Owner shall provide SSLP with any keys, pass cards or other access control devices, as may be necessary to give SSLP access to the Site." and (g) The prevailing party in any action or proceeding in court or mutually agreed upon arbitration proceeding to enforce the terms of this Agreement is entitled to receive its reasonable attorneys' fees and other reasonable enforcement costs and expenses from the non-prevailing party. The following Exhibits are attached to and made a part of this Agreement: Exhibit A , B, C, 0 and E. Al, iNC. By: Name: Darwi'l D. Kel!J' sident ~ 5 S.S.lTax No. R ~ - 17 ~ IlJ ~ Address: ~2 Market Sl., New Cumberland PA 17070 Date: ~ '\ Ai~rJS r .1999 SPRINT SPECTRUM loP., a Delaware limited partnership ~~~e:t~lIh~' y.crj;f Its: Director, Site Development - East Region Address:1 International Blvd., Mahwah, NJ 07495 Date: .1999 Attach Exhibit A - Site Description and Exhibit B - Memorandum of pes Site Agreement Version 3 EXHIBIT A March 97 Site Name Newcumberland Site Description Site I. O. 3CUPL33XC604 Site situaled in Bora of New Cumberland, Cumberland County, State of Pennsylvania. commonly described as follows: Legal Description: Tax Parcel: Map 25-25-0006-350/351 Latitude: 40-13-24 Longitude: 76-51-38 Sketch of Site: See attached Owner Initials II SSLP Initials Note: Owner and SSlP , SSlP's option, replace this Exhibit with an exhibit setting forth the legal description of the property on which the Site is located and/or an as-built drawing depicting the Site. . I f- ~ . <! g ~o sf TAX PAR ;El 25-06-351 Q:; 102 M'MKET STRECT 1S'RO'N -........ "i.( ~~ ~~ ~t z,q Q: l'; 8 i5 '" Ii 5i w ~ '6! U a- \. '- Jo.. "0 ~,,{ ~(jJ:\-i (I v ~.;. 5?v rJ\ ~C> L-:E:: ~ ~ClolN~t:iklNG.INC. ~oe WHITt ~ PlICE. SVtTE 12 etwlll'nNGTOH. NJ 050QT (SO'i) ,7J-P7t7 rAX (eat) S17-9J.+Q ~fC"' elf'"" 1 Exhibit A page 1 of 2 ._-~ L____ PP&L POLL 619880 ;>.t.A~7 s.i26'6r<__ . 50' RIGHT -or -.....y . .- ~1" FXlsnNC 1 1/;1 sn)/i'Y BU/LOINC P~Sf.X) SPfIIHT fQUlPfll(Nl' l..IJQrtD - - - _ _ __ ...... tlUIUlI>OC -~._-'.- PROPOSED 70" MONOPOlE PROPOSED !PRINT LEASE PlEA 1S'lCl&' 251 50. n. 27,600 SF ~ '0 --~ ~I- MARkET STREET ~:r:1 45' WIDE MACADAM ~ S S"DS'OO' E 18-4.00 . =1 - - 10' FRONT Y'A!ill.. L1N~__._~~:,~:~ ~7f I M(TROPOUTAN MEDICAL, INC. .., 09 17J. PO 977 ~ ~ T^,( PARefl. 25-06,-350 o 209 de 211 fRONT STREET '" ;! , o' REAR YARD LINE N ~'00:..:!....18-4.00 .-.----. ALLEy 13' Wloe l.IACADAM 4>.. ~.> LEASE AREA PLAN 1m LEASE EXHIBIT PROPOSED SPRINT SITE AT NEW CUMBERLAND NEW CUMBERLAND, PA SITE # 3CUPL3JXC604-1 iiI !! ril ~i "'1:, 1'1 PPJel 1'01 I: 1101412 '484G SJ2~08 . +Sprint Spectrum LP SPMIf PCS t~"""""1II..\oD.SUfTiIt>> r.wtWN(.HlOt'4C f"HOH/!",,'Jir,z..{/Dll! FAX QIH)!D4tf ANTENNA CONFIGURATION SECTOR RAD CENTER {FT} ANTENNA AZMUITH --.- ,----.- ALPHA 67-6" DAP4ll210 280 -.-.-.- -'_._~ .---.... BeTA 87-6" DAP49210 140 .--.,-,--.- --- GAMMA 67-6" DAP49210 210 Exhibi t A page 2 of 2 ~n 1/~)s_r T T--------~=t=ii I ' '" . " PROPOSED 70' '- CAlVANlzm STtEl "0H0P0l.I: 15 . 2i ~, ~I I:;; PROf>OS(D EDU'''''''Nr I -'-'~~-~ ","",J~r.-"~" ....-{"-i 1.I.l"I~.11 . iW., .... 1" .1 011" r"'_ :_l!!L .1:: --. O' I, J ~j!: ~~?'~I/ 01'v~' WI ~~~~~. 208 WH4U: HORSE; pll((. SlJI~ 12 aARRlNt;1'ON. NJ 0&007 (6Qf) ~73-'7117 rAX (*00) 504'1-9;}.4.0 / CX1STINl; nutLOt"'c PAOl'OSl:D '~ ~/~( 9M'eED WIRE 11 -1 I ELEVATION -1ITa -.- LEASE EXHIBIT PROPOSED SPRINT SITE AT . NEW CUMBERLAND NEW CUMBERLAND, PA SITE # 3CUPL33XC604-1 +Sprint spt!ctrum LP SI'IIINT PCS f~'rJclH-.t...'o'D..tfM'EMlt'l -"''''''' PHCWE Q6f)1lfj..f7r1lf FAX 1J(h)lf~ Version 3 EXHIBIT B March 97 Site Name: Newcumberland PCS Site Agreement Site I. D. 3CUPL33XC604 Memorandum of PCS Site Agreement (form) This memo'9(!dum ~vid\IPces that A ~ase was made and entered into by written PCS Sne Agreement dated ~ 'S #'IV S(~T .,1 , 1999, .between Metropolitan Medical, Inc. ("Owner") and Sprint Spectrum L.P., a Delaware limited partnership ("SSLP'), the terms and conditions of which are incorporated herein by reference. Such Agreement provides in part that Owner leases to SSLP a certain site ('Site') located at 102 Market Street, New Cumberland, PA 17070 within the property of Owner which is described in Exhibit A attached hereto, with grant of easement for unrestricted rights of access thereto and to electric and telephone facilities for a term of five (5) years commencing on . 1999 which term is subject to four (4) additional five (5) year extension periods by SSLP. IN WITNESS WHEREOF, the parlies have execute&this Memorandum as of the day and year first above written. Owner Initial: ~ SSLP Inilial~ I/J Attach Exhibit A - Site Description OWNER NOTARY BLOCK: STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND . .I } ThMoregoingjostrument was acknowledged before me this ~ay of /<{U(;tt-::T" , 1999 by Darwin D, Kell, an individual known to me, and who certified to me under oath that he is the President of Metropolitan Medical, Inc., a Pennsylvania Corporation, validity existing and in good standing, and that he executed the foregoinl/ instrument wnh all requisite knowledge and authority, as the legal, valid and binding obiigallon of Metropolitan Medical, Inc. . (AFFIX NOTARiAL SEAL) NOTARY PUBLIC STATE OF PENNSYLVANIA ;~~, MICHAEt'OTARIAL SEAl earn HIDCo, ~NlIlc My ~IIVIJIssI~ ExpIres June 1~ SPRINT SPECTRUM LP, NOTARY BLOCK: STATE OF NEW JERSEY COUNTY OF BERGEN 'It ~e r . I ~strument was acknowiedged before me this J Y day of 4'''' , 1999 b~n l\Iudlu, DiroBI., ..If Site Developme~for Sprint Spectrum, .., e aware limited partnershi who executed the foregoing instrument 0 behalf of such limite partnership. ~,. bfL-' (AFFIX NOTARIAL SEAL) ~ NOTARY PUBLIC STATE OF NEW JERSEY HELEN AliCIA GRANT NOTARY PUBLIC OF NEW JERSEY My Commission Expires Sept. 2, 2003 Versicn 3 EXHIBIT C Site Name: Newcumberland PCS Site Agreement Site Access Information Kev Data Tower Build Site Address: Owner/Site Manager: Site/Building Contact Name: Phone: Fax: Emergency Contact: Name: Phone: Fax: Latitude: 40-13-24 Longitude: 76-51-38 Entry Procedures Access is available 24 hours per day, 7 days per week. Owner Initials SSLP Initials e+ - 1;5 ./ March 97 Site I. D. 3CUPL33XC604 Darwin D. Kell 717-774-5899 117774 2750 7/7-77!;' ~/S I /fi /15"(., 'h- /4 I""~ ~ Darwin D. Kell 717-774-5899 717-774-~ Darwin D. Kell 717-774-5899 717-774~ g: Version 3 EXHIBIT 0 Site Name: Newcumberland PCS Site Agreement Site (, O. 3CUPL33XC60 Rental Increases Anythinll set forth in Section 3 of the foregoing Agreement to the contrary notwithstanding, following the termination of the penod covered by the $100.00 rental payment, the rent due hereunder will be increased starting on the first anniversary of the Commencement Date, and thereafter on each succeeding anniversary of the Commencement Date, by an amount equal to three percent (3%). Owner Initials -rt (III SSLP initials Version 3 EXHIBIT E Site Name: Newcumberfand PCS Site Agreement Site I. D. 3CUPL33XC60, Additional Provisions The provisions of the standard form lease to which this Exhibit is attached, are modified as set forth below: ObliQations of AssiQnees. Section 5 of the foregoing lease is modified to add the following provision: All assignees of this Agreement shall be responsible for all terms and conditions of this Agreement. In aadition, SSLP will not assign or transfer this Agreement or sublet all or any portion of the Site without the prior written consent of Owner, wl1ich shall not be unreasonably withheld, delayed or conditioned; providedj however, SSLP may assign or sublet without Owner's prior written consent to any SUbSidiaryhaffi iate, party controlling, controlled by or under common control with SSLP or to any party whic acquires all or substantially all of SSlP's assets. Imor~lVements. The 1 st line of section 7 is modified to add after the word 'expense" 'and with Owner's consent, which consent will not be unreasonably withheld, conditioned or deiayed." Utjli\ies. Section 10 of the foregoing lease is modified to delete any representation by Owner that utlltJeS at the Site are adequate. Termina i n. Section 11 of the foregoingJease is modified to add after". . . withdrawn or terminate .. .', "through no fault of'SSCP. . .' Owner As AdditiQnalinSured: Section 17 is modified to add the following provision: "Owner shall be named as an additional insured on all policies of insurance required under this Section 17.' Owner acknowledges that SSLP has leased the Site to construct thereon an antenna structure ("Towe"'), which will be approximately 70 feet in height, as part of its PCS system. Owner covenants and agrees that no part of the improvements Installed, constructed or erected or placed by SSLP on the Site will be or become, or be considered as being, affixed to or a part of Owner's real property of which the Site is a part ("Owner's Property'). Any provisions and principles of law to the contrary notwithstanding, it is the specific inlention of Owner and SSLP that all of such improvements, including without limitation, the Tower, will be and remain the property of SSLP despite any default or termination of this Agreement and may be removed by SSLP at any time in SSLP's discretion provided that SSLP, at its expense, restores the Site, as near as practicable, to its condition prior to such improvements (save and except utilities and fences installed, access areas improved, removal of vegetation for construction purposes, concrete pads, foundations, footings and guy anchors installed, items constructed or changed by any person(s) or entity(ies) other than SSLP, normal wear and tear, and acts beyond SSLP's control). During the Initial Term and each Renewal Term, SSLP may install and maintain a fence around the Site and/or the Tower or other parts of the PCS system as SSLP determines is reasonable for the proper and efficient operation and protection of the PCS system. SSLP also may improve the Site by grading, graveling or paving as SSLP determines is reasonable for the proper and efficient construction of the Tower and PCS system. SSLP shall have the exclusive right, without Owner's consent, to enter into subleases or license a~reements (collectively, "Subleases"), on terms which are acceptable to SSLP in its sole discretion, which Will permit other parties to use space on Ihe Tower and portions of the Site for base station equipment, and to gain access to the Site through the Owner's property in the same manner permitted to SSLP under this Agreement. SSLP's entry into any such Sublease will not relieve SSLP from its responsibilities hereunder. Upon request from the Owner from time to time, SSLP shall provide Owner with copies, certified by SSLP to be true and correct, of all Subleases entered by SSLP and any renewals thereof. ).wner Inilials ~. / (~"''< , f SLP Initials \~ ~ \SSDA T A \WPDAT A \SS2\DLS\SPRINT\PHILL Y\LEASES\604\3ROD604. LSE ., ., Memorandum of pes Site Agreement PL33XC604 This memorandum dated as of R~AIJGoSr 1999 evidences that a leJ5~W~ mjlde and 'Wtered into by written PCS Site Agreement dated )11..11 ,/Af,lj)Uj rXZ ,1999, between Metropolitan Medical, Inc. ("Owner") and Sprint Spectrum L.P., a Delaware limited partnership ("SSLP"), the terms and conditions of which are incorporated herein by reference, Such Agreement provides in part that Owner leases to SSLP a certain site ("Site") located at 102 Market Street, New Cumberland PA, 17070 within the property of Owner which is described in Exhibit A attached hereto, with grant of easement for unrestricted rights of access thereto and to electric and telephone facilities for a term of five (5)years commencing on ~j IfV(;~ r , 1999 which term is subject to four (4) additional five (5) year extension periods by SSLP. IN WITNESS WHEREOF, the parties have executed this Memorandum as of the day a yearfirst above written, By: Name: Darw D. Kelt, esident Address: 102 Market Street, New Cumberland PA 17070 Date: '2" AI1'-U ~ (, 1999 SPRINT SPECTRUM L.P" a Delaware limited partnership By: t.~ :L-AiC. ~/..;[/ r} Name: Don Mueller )' ;ru I Its: Director, Site Development - East Region Address: 1 International Blvd., Mahwah, NJ 07495 Date: , 1999 OWNER NOTARY BLOCK: STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND The f9fegoing instrument was acknowledged before me this ~ay of r-fel6(/1.~ ,1999 by Darwin D. Kell, an individual known to me, and who certified to me under oath that he is the President of Metropolitan Medical, Inc., a Pennsylvania Corporation, validity existing and in good standing, and that he executed the foregoing instrument with all requisite knowledge and authority, as the legal, valid and binding obligation of Metropolitan Medical, Inc. , (AFFIX NOTARIAL SEAL) ~ f'-otary Publio NOTARIAL SEAL MICHAEl. R. CARAHCI, = Public Camo HIli Boro, Curb CounIy My Commission ExpIres June 15. 2002 NOTARY PUBLIC STATE OF PENNSYLVANIA SPRINT SPECTRUM L.P. NOTARY BLOCK: STATE OF NEW JERSEY COUNTY OF BERGEN -t! The f~90i ;J..initr~ment was acknowledged before me this r1. q day of MYtI\ , 1999 by ')0'\ MuclloF, Director of-Site Develo en\ for Sprint Spectrum, L.P., a Delaware limited partnership, who executec the foregoing instrumer t of} behalf of such limited p'rt"e"hIP~J-- ~ (4f1t/J (AFFIX NOTARIAL SEAL) NOTARY PUBLIC STATE OF NEW JERSEY NOTARY PUBLIC OF NEW J RSEY My Commission Expires Sept. 2, 2003 D:ISSDA T A IWPDA T A ISS210LSISPRINT\PHILL Y\LEASESI604IMEMOF. LSE HELEN ALICIA GRANT NOTARY PUBLIC OF NEW JERSEY My Commission Expires Sept. 2, 2003 >-1- ~ ~I ~1 " s 51'05'OO~ l~ ,iii Exhibi t A page 1 of 2 _.__.~ L_.._ MARkET STREET 45' WIDE MACADAM 10' FRONT "',A.!!Q._L:!NE .~_~:.-:'~'~ 1\! ~ c.. :EL 25-05-J51 FX1STlNC I I/:J STORy o 102 MNtI(ET STREeT SUlLOING D:: PlOPOSED SPRtNT / fQUtPWt:NT LOCA11JJ - - _ _ ___ 1S';WW I.-~ L? _~ i1UIUllNC ~ q PAQPOSfD 70' "'ONOPOlE : 3 I h4(TROPOUTAN MEDleN... INC. o l.l.l 08 173 PC 877 t~ a. 5 '- TMC P^RCfl 25-06 ,J~ S ;:t ~ .209 &: 211 fRONT STREET ~ ~:, ~~ %' 0 Ct. PROPOSED !PRINT u. g' -<. \LASE ....... 1.'.,.' o _ ~ 25& 50. n. w ;!; 0 ... '" w ~ ~l_ .' c ~.. "~ rfJ'1$ ~'<,Q. . W ~ ct;S' ~~ik;~~. 2011 WHlrE ~ P1Kf;. SUFT( 12 SNIf~. ..,.. oea07 (6(9) :I7J-i717 ,~ (eOt) '41-9J-tO 27,600 SF 10' R(AR YARD LINE: N ~.!.:ll"OO:.L'll'.oo . -'---- All.Cr ,)'0.> 13' WIOe. UACAlJAM P~&L POLL "9880 7<4-R+7 s.J2ti"15"1'__ -50' R1CIlT-Or-....v ~ .-- -=1 PPdcL f'lOI f "01+12 '484G 5J2~08 ~ "0 -~ 5i! !i 10. il 2. 110& I'l . -10" LEASE AREA PLAN NT8 LEASE EXHIBIT PROPOSED SPRINT SITE AT NEW CUMBERLAND NEW CUMBERLAND, PA SITE # 3CUPL33XC604-1 +Sprint Spectrum LP SPRNT PCS fI'flBNlTJON4la.KI.SU'J't1Otl MYft4W(NJ01M f'tfOHI! ~1J~ltoflDf f,u aM)'Q.4fD, ANTENNA CONFIGURATION SECTOR RAD CENTER (FT) ANTENNA AZMUITH --"-"--- ,----.- ALPHA 67'.4). DAP49210 2SO -'-'-'- -"---- --- BETA ~7' -6" DAP49210 140 ---'--'-'--- -"- GAMMA 67'-6" DAP49210 210 Exhibi t A page 2 0 f 2 PROPOSED OOU~E,IfT tOCAC.\TEO IN BUIlDING -\ - ~- j e, e,.' ~_ ...r.-:1r-- I -...,.-, 1.,.,.,1..11 ..:\1 I ~... , ..I .1 .,1.. , 0' 1.1.' r",,= ., . 'I '11' " J ~;; ~~ ffJ\11 tJ~~ ~. ~ Vjtf ~ ':= s_r (m' Or 'J T T-----~--H= I I " I , I ~I ~I ~I ~I I ~ I I- I , '" "- PROPOSED 70' CALVN<<ZfD STtEl 1ol0HQPOl.l: / D:ISTINC; RiJILOtl\lC -/ PllOl'OStO . 'f: ~/~~C( 9'Aee:D WIRE ~I -1 I ELEVATION - N1'ir"" -. - 206 'ftHt1[ ~ Pll((. SlJIT!: 1;J 1WtRINCTO... NJ C8007 '6(8) )7~-,7.7 "AX (.of) s.'7-';y.o LEASE EXHIBIT PROPOSED SPRINT SITE AT NEW CUMBERLAND NEW CUMBERLAND, PA SITE # 3CUPL3JXC604-1 +Sprint Spectrum LP SPlIlIlTPCS 1~7JQlW."1.1).JfJJTCI<<J _Hl""*' P'tOe ~JIr~70. fAX (101) If,.., \r3.~~~.~. t:>'" ""F:..., Cumberl'and County Assessment Office Old'Courthouse, First Floor One Courthouse Square Cl1tlisle, PA'17013 TuJI",<.Vf-+ (717) 240-6350 (717) 240-6354 (fax) Board of Assessment Appeals Uoyd W. Bucher R. Fred Hefelfinger. Sareh Hughes 0DlV-"'l A,:t.c. BONNIE M. MAHONEY Chief Assessor STEVEN D. TILEY Assistant Solicitor SHENANDOAH MOBILE -Smc COMMUNICATIONS 1245 MAIN STREET PO BOX 459 EDINBURG VA 22824 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL MA'ILING OATH: NOVEMBBR 4, 2002 Districts 25 - NBN CUMBBRLAHD 1ST we School..: WHST SHORB SD Parcel Identifier: 25-25-oif06-35l.-LL Locat.ion: 102 MAllKBT STRBB"l' N~ Assessed value indicated below will 2002 County/Library/Municipal 2002-2003 School Old Assessed Value take effect for New Assessed Value Land Buildings TOTAL o o o o 202,860 202,860 'Clean ilriiJ I1mii VIilti8i NOT APPLICABLB Total Change of Assessmem o 202,860 202,860 'l'UABliB Land Size....: .00 acres property Type: C Commercial - General Land Buildings TOTAL NOT APPLICABLB NO~ APPLICABLI REASON I'OR CHANGII. D1PROVBIIBNT Interim Assessed Value: 202,860 2002 Cnty/Twp/Boro...... 6 montbs 2002 Sahool.............12 months Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing ccpa.net. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 p.m. Cumberland County Board of Ass~s.sment Appeals Old Courthouse One Courthouse Square Carlisle, PA 17013 (717) 240-6350 (717) 240-6354 (fax) Board of Assessment Appeals Lloyd W. Bucher R. Fred Hefelfinger Sarah Hughes BONNIE M. MAHONEY Chief Assessor STEPHEN D. TILEY Assistant Solicitor DECISION ORDER MAILING DATE: August 25, 2003 PARCEL NUMBER: 25-25-0006-351.-LL SHENANDOAH MOBILE C/O CARL RISCH TEN EAST HIGH STREET CARLISLE PA 17013 Dear Property Owner: This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals regarding the above-referenced parcel. DATE OF APPEAL HEARING: 08/19/2003 DATE DECISION RENDERED: 08/21/2003 EFFECTIVE FOR TAX YEAR: 2002 DECISION RENDERED: [] Withdrawn By Applicant [ ] Abandoned For Failure To Appear [ ] Denied - No Change [ ] Approved Review Appraiser's Changes [X] Revised Assessment Based on Hearing [] Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: New Assessed Value: 202,860 95,000 NOT APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Prothonotary's office on or before September 23, 2003. (-' ~ >L ~ Jt , ~ --- t;'" , (\ ~ .L. - v\ }-' }-' ~\ lA r ,.\ ...0 0 0 C' ~ \ SHENANDOAH MOBILE COMPANY, : IN THE COURT OF COMMON PLEAS OF and SHENANDOAH PERSONAL : CUMBERLAND COUNTY, PENNSYLVANIA COMMUNICATIONS COMPANY, Appellants . : CIVIL ACTION - LAW V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee . : NO. 2003-4921 : REAL ESTATE TAX ASSESSMENT APPEAL ANSWER AND NOW, comes the Appellee, Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor, and files this Answer to the Petition of Appeal from Determination of Real Estate Tax Assessment, of which the following is a statement: I. Admitted. 2. Admitted in part. Denied in part, The averments of this paragraph are admitted except to the extent that they indicate that certain property is "equipment" any inference that such equipment is personal property rather than real estate is denied as a conclusion of law to which no responsive pleading is required. 3. Admitted in part. Denied in part. The averments of this paragraph are admitted except to the extent that they indicate that certain property is "equipment" any inference that such equipment is personal property rather than real estate is denied as a conclusion of law to which no responsive pleading is required. 4. Admitted in part, Denied in part. The averments of this paragraph are admitted except any inference that the retention of ownership of the tower by the Appellant, or Appellant's right to remove the tower upon termination of lease, infers that the tower is personal property rather than real estate is denied as a conclusion of law to which no responsive pleading is required. 5. Admitted in part. Denied in part. It is admitted lhat a tower exists, however the details of the size and construction of the tower, whether the tower can be removed, and whether removal of the tower will result in any damage, are unknown to Appellee and are within the exclusive knowledge and control of the Appellant. Strict proof at trial is demanded. No. 2003.4921 . Answer Page 1 013 6. Admitted. 7, Admitted in part, Denied in part, The averments of this paragraph are admitted except that Assessment Office records indicate that the land development plan received final approval in April of year 2000, making it highly unlikely that th.e tower "was constructed over 3 years prior to receiving" the November 4, 2002 notice. 8. Admitted in part, Denied in part. The averments of this paragraph are admitted, however, the assessment may have included not only the "Tower" as defined by the Appellant, but other property as well, 9. Admitted, 10. Admitted. 11. Admitted. 12. The answers set forth in paragraphs I through 11 of this Answer are incorporated herein as if fully set forth. 13. Denied. The averments. in this paragraph set forth conclusions of law to which no responsive pleading is required. 14. Denied. The averments of this paragraph set forth facts which are outside the knowledge of the Appellee, within the exclusive knowledge of th.e Appellant. Strict proof at trial is demanded. By way of further Answer, the averments of this paragraph may set forth conclusions of law to which no responsive pleading is required, 15. Denied. The averments of this paragraph may set forth conclusions of law to which no responsive pleading is required, WHEREFORE, Appellee, Cumberland County Board of Assessment Appeals, Prays Your Honorable Court for an Order denying the appeal and fixing the value of the property at $202,860.00, or such other amount as the Court may deem just and proper, No. 2003-4921 - Answer Page20f3 . Respectfully submitted, Dated: t?&~~ --<, ~""<?;7 , By-i{~ ;& -? ~ phen ,Tiley, Esquire Attorney for Cumberland County Board of Assessment Appeals and Cumberland County 5 South Hanover Street Carlisle, P A 17013 (717) 2430-5838 Supreme Court I.D.#32318 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Dated: /,J&-h,1~ ..:2,. 02G>t:'J..? B~:.'dl~ No. 2003-4921 - Answer Page3of3 , SHENANDOAH MOBILE COMPANY, : IN THE COURT OF COMMON PLEAS OF and SHENANDOAH PERSONAL : CUMBERLAND COUNTY, PENNSYLVANIA COMMUNICATIONS COMPANY, Appellants . : CIVIL ACTION - LAW V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee . : NO. 2003-4921 . : REAL EST A TE TAX ASSESSMENT APPEAL CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer by placing a certified true and correct copy of the same in the United States mail, postage pre-paid, addressed to: Carl C. Risch, Esquire MARTSON, DEARDORFF, WILLIAMS & OTIO 10 East High Street Carlisle, PA 17013 Attorneys for Appellants Joanne D. Sommer, Esquire EASTBURN & GRAY, PC 60 East Court Street P.O. Box 1389 Doylestown, PA 18901 Solicitor for West Shore School District Andrew C. Sheely, Esquire P,O. Box 95 Mechanicsburg, PA 17055 Solicitor for New Cumberland Borough Date: ?7?-~k..... <2,02003 ~ --:;f} , ? ~L--7 S ephen . Tiley, Esquire Assistant Cumbo Co. Solicitor 5 S. Hanover Street Carlisle, P A 17013 (717) 243-5838 Attorney I.D.#32318 (") S :s,~ -Uf).~ ,nil 2:1:1 zr.: (f}..':: _<.,C:: C:::C. ~(~: :;J>") C Z ::(I C <-0 o (, -i I ") n "h ::::1 .~ :'f] 'j-'" "n[Q '-,".--' , ' <~ C) -'-I ".';?G .c.:- ,~n ""I" ;.:! 5) -< ::.,-...... -,',,, ,:.,) ,..., PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the fOllowing case: . (CheCk one) for JURY trial at the next term of civil court. x for trial without a jury. . ~-----_.._._------_.__..__.- CAPTION OF CASE (entire caption must be stated in full) (check one) Shenandoah Mobile Company and Shenandoah Personal Comnunications Company Assumpsit Trespass Trespass (Motor Vehicle) (Plaintiff) X) '"PriX A~~p!=:.gf11l':::ont- ApppFll (other) vs. Cumberland County Board of Assessment Appeals The trial list will be called on and Trials commence on (Defendant) Pretrials will be held on (Briefs are due 5 days before pretrials,) vs. (The cany listing this case for trial shall provide forthwith a copy of the praecipe to all counsel. pursuant to local Rule 214.1.) No. Civil 03-4921 lQJ _~003 Indicate the attorney who Will try case for the party who files thiS praecipe: Carl C. Risch, Esquire, Ten East High Street, Carlisle, PA 17013 Indicate trial counsel for otner parties If known: ------.---.------ -- Stephen D. Tiley, Esquire, 5 South Hanover Street, Carlisle, PA .1701L___ This case IS reaov for trral. Signed: t\~-----_._- ;Orin! Name: Carl C. Risch C} <;" "",-'0"" -Dt:l !~i.E~ g;\_-;~:, ..- '........,.c ~.- ,..., = ~ <- "'" :;;<: I -' ~.""c' >"'"C,: ~~,. :::;.~ -<.: ~ ~ ~:n ..",h1 6~ _1_,- -C:l:l QC) :~lrn .~ :'P '-< 9 c.n OJ SHENANDOAH MOBILE: COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant NO. 03-4921 CIVIL TERM ORDER OF COURT AND NOW, this 9th day of January, 2004, a pretrial conference in the above matter is scheduled for Monday, March 29, 2004, at 1:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania, Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference, A NONmRY TRIAL in the above matter is scheduled for Monday, April 12, 2004, at 9:30 a,m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, v6arl C. Risch, Esq, Ten East High Street Carlisle, PA 17013 Attorney for Plaintiff "7 ^ " ''',,':~'..f\n8 \II) :~ ,"'\d s- l'I"l(' ~&~~ \\i",,;""'fl'-\IQtlC 3'..\1. =.0 I','~l" :-'.)\ ,....' t' r-.-i\ ~ :;':)\-\:\Q-\.I:\ \0 V-Stephen D. Tiley, Esq. 5 South Hanover Street Carlisle,PA 17013 Attorney for Defendant :rc SHENANDOAH MOBILE: COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COlJ]'-.fTY, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant NO. 03-4921 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of March, 2004, upon agreement of counsel, the pretrial conference previously scheduled for March 29, 2004, is rescheduled to Thursday, April 8, 2004, at 11 :30 p.m" in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania, Pretrial memoranda shall be submitted by counsel in accordance with C.C.R,P, 212-4, at least five days prior to the pretrial conference. BY THE COURT, w~ Wesley 01 (t VCarl C. Risch, Esq, Ten East High Street Carlisle, PA 17013 Attorney for Plaintiff /' vStephen D. Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Defendant :rc (~'!1 :r:.: "I i,/. , , ,;,; !:!Vil'10DZ ..'i~\ -,',-I () SHENANDOAH MOBILE COMPANY, ~dSHENANDOAHPERSONAL COMMUNICA TIONS COMPANY, Appell~ts : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 03 - 4921 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee : REAL ESTATE TAX ASSESSMENT APPEAL PETITION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY COMMISSIONERS ASSOCIATION OF PENNSYLVANIA, IN SUPPORT OF APPELLEE, CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS '!~ (t~ MARK A. MATE A, ESQUIRE ATTORNEY ID NO. 78931 P.O. Box 127 Boiling Springs, Pa 17007 (717) 241-6500 March 30, 2004 INTEREST OF AMICI CURIAE The County Commissioners Association of Pennsylvania (hereinafter CCAP) is a state- wide, non-profit, bi-partisan association representing the Commissioners, Chief Clerks, and Solicitors of Pennsylvania's sixty-seven (67) counties. The general theme of the Association's Legislative and Regulatory Policy is to seek greater flexibility :md autonomy for county government, in the context of the broader inter-governmental system. CCAP's interest in the case at hand flows naturally from the member counties' interest in this issue. Similar or identical issues have already arisen in Adams, Center, Crawford, Fayette, Fulton, Greene, Mercer, Montgomery, Schuylkill, Venango and York counties. It is believed that similar or identical issues are likely to arise in most ifnot all of Pennsylvania's sixty-seven (67) counties. Statement of authority to file the Amicus Curiae brief The County Commissioners Association of Pennsylvania Executive Director, Doug E. Hill, has given Mark A. Mateya, Esquire, authority to file an Amicus Curiae Brief. PRELIMINARY STATEMENT AND REASON TO PRESENT ARGUMENT The question presented in the case sub judice is one of law. Cell towers, in their various permutations, are a part of our modern-day landscape. Many of the laws and regulations with which we determine questions of taxation were crafted long before present day cell towers were even a consideration. This case will address the question of whether or not cell towers should be taxable as real property. It is CCAP's position that cell towers are real property. CCAP looks after the operational and financial interests of the counties of Pennsylvania. CCAP has a unique point of view, in that it considers the far-re:aching results oflocal decisions, with a view to assisting the court with its review of the public policy ramifications of its decisions. The result of a finding that cell towers are personal rather than real property could produce inapposite results of those intended by either this court or the original statutes and regulations governing taxation. It is for these reasons that CCAP requests permission from this Honorable Court to file an amicus brief in support of Appellee, Cumberland County Board of Assessment Appeals. Finally, counsel for Shenandoah Mobile Company and Shenandoah Personal Communications Company, Carl C. Risch, has agreed to permit CCAP's involvement as an amicus party in support of Appellee, Cumberland County Board of Assessment Appeals, LEGAL ARGUMENT No legal argument regarding the issue at hand will be presented unless this Honorable Court grants leave to CCAP so to file, at which time our Amicus Curiae Brief in Support of Appellee, Cumberland County Board of Assessment Appeals will be filed. CONCLUSION For the reasons stated above, I request this Honorable Court grant our Petition for Leave to File an Amicus Brief in Support of Appellee, Cumberland County Board of Assessment Appeals. Respectfully submitted, ~A~~"ire Post Office Box 127 Boiling Springs, Pa 17007 (717) 241-6500 Assistant Counsel for County Commissioners Association of Pennsylvania CERTIFICATE OF SERVICE I, hereby certify that I have served a copy of the foregoing Petition for Leave to File Amicus Curiae Brief on the following person( s) by depositing a. true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Dauphin County, Pennsylvania addressed to: Carl C, Risch, Esq. Ten East High Street Carlisle, Pa 17013 ~u~. Mark A. Ma:eya, Esq re Attorney ID No. 78931 Post Office Box 127 Boiling Springs, PAl 7007 (717) 241-6500 Date: 0i{2( O~ C:\MARK\MARK\MCLIENTS\CCAP\Cell Tower\PETITION. wpd ~ '" 0 = c;~ ""TJ "'- :D. :c v "r! ;;0 rn p' I -orn ::-:JD Ul C).! -":fl.,::) --0 ~1: :ft ~ ';2(~ h '-. ~-'-:::r-q '<_..1 '::i-^' "'~I ~,"":i '''-. ,,"0 ~"D -< N ....:;.+ SHENANDOAH MOBILE: COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant NO. 03-4921 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of March, 2004, upon agreement of counsel, the pretrial conference previously scheduled for April 8, 2004, is rescheduled to Wednesday, June 9, 2004, at 2:30 p.m" in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania, Pretrial memoranda shall be submitted by counsel in accordance with C.C,R.P, 212-4, at least five days prior to the pretrial conference. THE NONJURY TRIAL previously scheduled in this matter for April 12, 2004, is rescheduled to Thursday, June 24, 2004, and Monday, June 28, 2004, commencing at 9:30 a.m, each day, in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J., ! vCarl C. Risch, Esq. Ten East High Street Carlisle, P A 17013 /' Attorney for Plaintiff 1\ 04-05 .()'-I . \':1\>//\,-; /\t~~ryy': . ;Nr{) Slg:2 Hd S- tid\f'IGOl Ab'\~lCI'~OH.LOfJd 3Hl .:iO j;:'!:l:!Q--Cl:nu /Stephen D. Tiley, Esq, 5 South Hanover Street Carlisle, PA 17013 Attorney for Defendant :rc Robert L. Knupp, Esquire Knupp, Kodak & Imblum, P.C. 407 N. Front Street P.O. Box 11848 Harrisburg, P A 17108 PT: #175332 vi (3R@COl!.DOC) Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, P A 17013 ~ CULOlJ 1<~ 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. SPECTRASITE COMMUNICATIONS, Appellant, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, Ys. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties. PI: #175332 vl (JR@COl!.DOC) CNIL DIVISION Nos. 03-4921 04-920 04-921 04-922 04-949 04-950 MOTION TO CONSOLIDATE Filed on Behalf of Spectrasite Communications Counsel of Record for This Party: Dusty Elias Kirk, Esquire P A LD. No. 30702 Sharon F. DiPaolo, Esquire PALD. No. 74520 PEPPER HAMILTON LLP Firm LD. No. 143 One Mellon Center 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 SPECTRASITE COMMUNICATIONS, Appellant, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, Ys. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP and BIG SPRINGS SCHOOL DISTRICT, Interested Parties. SPECTRASITE COMMUNICATIONS, Appellant, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, Ys. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties. PT: #175332 vl (3R@COILOOC) SBA TOWERS, INC., Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties. SBA TOWERS, INC., Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP and BIG SPRINGS SCHOOL DISTRICT, Interested Parties. PT: #175332 vi (3R@COt!.DOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. ET AL. ) CIVIL DIVISION ) ) Nos. 03-4921 ) 04-920 ) 04-921 ) 04-922 ) 04-949 ) 04-950 ) ) ) ) ) ) MOTION TO CONSOLIDATE AND NOW, comes Spectrasite Communications ("Spectrasite"), by and through its attorneys, Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Motion to Consolidate, and in support thereof states as follows: 1. Spectrasite is a telecommunication tower company, and the owner of commercial real estate and taxable property situate in Cumberland County, Peunsylvania, and identified as Parcel Numbers 40-l0-0632-0l6-LL, 43-06-003l-0l2-LL and 39-l2-0324-004-LL in the Cumberland County assessment records (the "Spectrasite Properties"). 2. Spectrasite placed upon the Spectrasite Properties telecommunication towers and other structures and related equipment, which, in each instance, the Board of Assessment Appeals of Cumberland County (the "Board") assessed as real property. 3. On or about March 4, 2004, Spectrasite filed Petitions for Appeal with this Court for the Spectrasite Properties docketed at Nos. 04-920, 04-921 and 04-922, challenging the PT: #175332 vI (3R@COl!.DOC) Board's assessment of the telecommunication towers as real property for purposes of real estate taxation, 4. SBA Towers, Inc. ("SBA") is a telecommunication tower company, and also owns properties in Cumberland County upon which it placed telecommunication towers (the "SBA Properties"). The SBA Properties are identified as Parcel Numbers 09-22-0533-001-LL and 41-II-0304-019-LL in the Cumberland County assessment records. 5. On or about March 5, 2004, SBA filed Petitions for Appeal for the SBA Properties, docketed at Numbers 04-949 and 04-950, raising the same issues as Spectrasite's appeals. 6, Spectrasite and SBA are represented by the same counsel with respect to the above-referenced real estate tax assessment appeals. 7. On September 18, 2003, Shenandoah Mobile Company and Shenandoah Personal Communications Company (collectively, "Shenandoah"), by and through its attorney, Carl C, Risch, Esquire, filed a Petition for Appeal at Docket Number 03-4921 for its property identified as Parcel Number 25-25-0006-315-LL (the "Shenandoah Property"), raising the same issues as Spectrasite's and SBA's appeals. 8. Counsel for Spectrasite and SBA contacted counsel for Shenandoah to discuss a consolidation of real estate tax assessment appeals pending for the Spectrasite Properties, the SBA Properties and the Shenandoah Property, and counsel for Shenandoah has consented to a consolidation of these appeals. 9. Counsel for Spectrasite and SBA has contacted the respective taxing bodies having an interest in these appeals, through their respective solicitors, to discuss a consolidation. Upon information and belief, Stephen D. Tiley, solicitor for the Cumberland PT: #175332 vI (3R@COl!.DOC) 2 County Board of Assessment Appeals and Cumberland County, also attempted to contact each of the solicitors to discuss a consolidation of these appeals. The respective taxing bodies consent to a consolidation as follows: a. Cumberland County and the Cumberland County Board of Assessment Appeals, through their solicitor, Stephen D. Tiley, Esquire, consented in writing to a consolidation. A copy ofthe written consent is attached hereto as Exhibit "A"; b. Big Spring School District and South Middleton School District, through their solicitor, Philip H. Spare, Esquire, consented in writing to a consolidation. A copy of the written consent is attached hereto as Exhibit "B"; c, East Pennsboro Area School District, through its solicitor, Donna S. Weldon, Esquire, consented in writing to a consolidation. A copy of the written consent is attached hereto as Exhibit "C"; d. Southampden Township, through its solicitor, Richard L. Webber, Jr., Esquire, consented in writing to a consolidation. A copy of the written consent is attached hereto as Exhibit "D"; e. Shippensburg Area School District, through its solicitor, Jerry A. Weigle, Esquire, consented in writing to a consolidation. A copy of the written consent is attached hereto as Exhibit "E". f. Upper Frankford Township, through its solicitor, Steven Fishman, Esquire, consented in writing to a consolidation. A copy of the written consent is attached hereto as Exhibit "F". g. South Middleton Township, East Pennsboro Township and South Newton Township have not yet provided a response with respect to a consolidation. PT: #175332 vI (3R@C01!.DOC) 3 10. Spectrasite,jointly with SBA and Shenandoah, requests that the appeals described hereinabove be consolidated for the following reasons: a. Consolidation of the appeals will (i) promote judicial economy by avoiding the multiplicity of trials and (ii) eliminate an unnecessary duplication of effort and reduce the expense to the parties, because the appeals involve a common question oflaw that can be resolved with one trial. b. Consolidation ofthe appeals will result in judicial consistency, because Spectrasite, SBA and Shenandoah, seek to establish uniform law in the Commonwealth of Pennsylvania with respect to the treatment of telecommunication towers for purposes of real estate taxation. c. Consolidation of the appeals will not prejudice any party. 11. Rule 213(a) of the Pennsylvania Rules of Civil Procedures provides that when actions in a county involve a common question of law or fact, or which arise from the same transaction or occurrence, the court may upon motion of any party or sua sponte order all such actions consolidated and triable jointly as a single action. PT: #175332 vi (3R@C01!.DOC) 4 WHEREFORE, Spectrasite Communications, jointly with SBA Towers, Inc. and Shenandoah Mobile Company and Shenandoah Personal Communications Company, respectfully requests that this Honorable Court enter an order consolidating the appeals docketed at Numbers 03-4921, 04-920, 04-921, 04-922, 04-949 and 04-950 at Number 03-4921. Respectfully submitted, Q,~'c1w l(vJc Dusty EJ" s . rk P ALD. o. 30702 Sharon F. DiPaolo PALD. No. 74520 Pepper Hamilton LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, P A 15219-2502 Dated: A-~ l Attorneys for Spectrasite Communications ,2004 PT: #175332 vI (3R@COILOGC) 5 I" I\..~ ! :"<'IYJ n~ ~I '''I (,1e, :Uj .; d [I !Jd'J 1DDl '\Li/LC,'--.;'Oi-f,.cJb',d :]11 :.10 3J:.:.:!Ct-.CJ:J 1!.:J FREY & TILEY ATTORNEYS-AT-LAW 5 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013-3385 Telephone: (717) 243-5838 Facsimile: (717) 243-6441 Of Counsel: ROBERT M. FREY STEPHEN D. TILEY ROBERT G. FREY MEMORANDUM TO: Sharon F. DiPaolo, Esquire Via email only FROM: Steve Tiley DATE: April 2, 2004 RE: Cell Tower Appeals Dear Sharon: In response to your transmission of March 30th, on behalf of the County and Board, I concur in the motions. I have sent a fax to the counsel for the other taxing bodies asking that they give their concurrence to you as soon as possible. I spoke with Attorney Carl Risch this morning and he continues to concur, so long as trial is not delayed beyond May (I indicated June 15th and he was agreeable to that). Do you plan to file a separate motion for each case? I would think that at least we will need an order entered in each case or that the final order should reference all case numbers. I have not reviewed the procedure. I note that I have never been served with filed copies of the original appeals, giving file numbers. For that reason, I have not yet filed Answers. (Although Answers are not required, I customarily do so.) No need to serve filed copies now, I will go the courthouse and get the file numbers and I will assume that what was filed is identical to the copies I received. EXHIBIT I "A" Frey & Tiley Sharon F, DiPaolo, Esquire Re: Cell Tower Cases April 2, 2004 Page 2 of2 I am not sure that we need consent, and I am not sure that we can get consent within the timeframe required. Some solicitors will be away, Others will feel the need to consult with their client before making a decision, Your cases were assigned to President Judge Hoffer, About two weeks ago his chambers called to schedule the hearings. I advised that Judge Oler had the Shenandoah case and that there had been some talk of consolidation and CCAP intervention. He asked me to report back to him in a couple of weeks, The Shenandoah case is presently scheduled for pre-trial next Thursday and trial a week from Monday. I believe that Carl Rish and I need to advise Judge Oler that a motion for consolidation is likely. At the same time I believe that I, or Carl Rish and I, should advise Judge Hoffer. I recommend that, after my conversation with Judge Oler, that I deliver to Judge Hoffer a letter indicating where we are, and that I suggest that the Court may want to simply order consolidation on its own motion. We may find that this results in consolidation of the cases before all of the taxing body solicitors have had the opportunity to respond. I am not yet sure who will be attending the tower removal. Sincerely yours, Steve Stephen D. Tiley cc: Carl C. Rich, Esquire Via email only I.L,VCIIIIUO'.L ...n~""""""0B6""''''' &01'.......,.,__..... _a .-. !If""""""" ,.. SNELBAKER, BRENNEMAN & SPARE, P. C. ,-- AttO'lIeylllt Law 1'.. O. jBrJ>:: :H 'J 44 We'JI. Main Streflt Mec!wlir,s"blu'g, fA 170:35 (717) 697-8528 Richard C. Snelbaker Fax No. (717) 697-7681 Keith 0, Brenneman Philip H, Spare FACSIMILE COVER LETTER PLEASE DELIVER THE FOLLOWING PAGES: DATE: April 6, 2004 TO: SharolJ F. DiPaolo, Esquire Pepper Hamilton LLP FAX #: (4U) 454.5005 FROM: Phil Spare NO. OF PAGES INCLUDING COVER LETrER: 1 COMMENTS: Re: Spectrasite Communications and SBA Tower Cases CCP Cumberland County, PA Dear Sharon: As we discussed this morning, our finn represents Big Spring School District and South Middleton School District in the above referenced tax assessment appeals, Last evening, both school Boards adopted resolutions approving of the consolidation of these cases with the other similar cases pending in Cumberland County. Please let me know if you require any thing else from me at this time, Thank you. ~ Cc: Dr. Patricia B. Sanker, Superintendent South Middleton School District Dr. William K, Cowden, Superintendent Big Spring School District Stephen D. Tiley, Esquire (7J 7) 243-6441 EXHIBIT I "B" RECEIVED TIME APR. 6. NT TIME APR, 6, 9:00AM '''4/\:::1::l/104 J. (; J..L tiiATH L. ALLEN N. DAVID """AL C"'AIltL!tA w. IIIUBIt...OAL\,. It ROBERT L. WELOO'" S:...OC,NE C. P'EPIN..Y. ",fit "'OHN H ENO. m GARY I: f"AENe" CONNA S wELDON BRAorORO DO"III:ANCE- ",r.,nllEY $ STOtC.lE. llIo.r;IIT II. CHUIltCH 5TEPI"lEN L. aflOat fl, SCOTT SHCAIIIC" ILV.C Co "OOI"a CIII:AIO A. LONG.,IA" DONAL.O'" LEWlsm .,,'DOET M. WHITLEY JOHN A, F'EtCHTCL f:I..IZABItTH ..1. GOLO.Ti:1N eAAIAR... A. GALL 5TEPHANIE KLElN,.[LTEIlI r..1:.c.rr:.r;, wuuu ML-L.L.I' Qc l'nll~1 ....1-1 ~ "'T"'~""'~""""" KEEFER WOOD AL.L.EN & RAHAL. ATTORNEYS AT LAW 210 WAU.UT STREET P. O. !!lOX 11863 HARRISBURG, PA 1710B-1863 PHOHE 1717) 21511-1.000 LLP ..TABLlliH'O IN ,.7. 0' COUMaE'L: &AJIlIU(l:L c. HA,UIY WE liT ....OAE O"ICI: ...e F ALLOWflELD AOAO CAI"", HILL.."A 17011 '7171112..'00 II,.. NO. 23.0"813. WWW.IcHflrwoocl.com ."ITIE". CONT ACT WORM... TtoN: April 5, 2004 (717) 255.8049 Email Address: dwek:tonlilkesfef'Wood.com VI. F.c.lmlle #412-2.1-0l11 Sharon F, DIPaolo, Esquire Pe~per Hamilton LLP 50' Floor 500 Grant Street Pittsburgh, PA 15219-2502 RE: Motion to Consolidate Dear Ms. DiPaolo: I am the solicitor of East Pennsboro Area School District ("District"), You have asked for my concurrence with regard to a Motion to Consolidate, The assessment appeal related to the District Is entitled SBA Towers, Inc, vs. Cumberland County Board of Assessment Appeals, Parcel No. 09-22-0533-OO1-LL. On Friday, I received a fax from Steve Tiley asking for my consent to the consolidation motion, This is to notify you that I do consent on behalf of East Pennsboro Area School District. Very truly yours, KEEFER WOOD ALLEN & RAHAL, LLP ~;<I /f2kJ Donna S, Weldon DSW/drw cc: Stephen D. Tiley, Esquire (VI. Fu .717-243.6441) Linda J. Bigos, D,Ed., Superintendent EXHIBIT I lie" ~T TIME APR, 5, 4:07PM RECEIVED TIME APR. 5, WEIGLE & ASSOCIATES, P.C. Attorneys-at-Law 126 EAST KING STREET SHIPPENSBURG, PENNSYLVANIA 17257-1397 JERRY A, WEtGLE Associates JOSEPH P. RUANE RICHARD L. WEBBER, JR. Of Counsel THOMAS L. BRIGHT TELEPHONE (717) 532-7388 or (71 7) 776-4295 FAX (71 7) 532-5289 weil!leassociates(/i)earthlink,net April 2, 2004 VIA FACSIMILE TO (412) 281-0717 AND V,S. MAIL Sharon F. DiPaolo, Esquire PEPPER HAMILTON, LLP 50th Floor 500 Grant Street Pittsburgh, P A 15219-2502 RE: 2004 Real Estate Tax Assessment appeals Cumberland County, Pennsylvania Spectrasite Communications Docket Numbers 04-920, 04-921 and 04-922 SBA Towers, Inc, Docket Numbers 04-949 and 04-950 Shenandoah Mobile Company and Shenandoah Personal Communications Company Docket Number 03-4921 Dear Ms. DiPaolo: I represent Southampton Township, Cumberland County, Pennsylvania. I hereby consent to your proposed Motion to Consolidate as well as the Motion to Continue. Thank you for your attention to this matter. Very truly yours, WEIGLE & ASSOCIATES, P.C. t~ ?vv.dL Richard L. Webber, Jr., Esquire RLW/paf cc: Stephen D. Tiley, Esquire (via facsimile to 243-6441) Southampton Township Board of Supervisors EXHIBIT I SliD" WEIGLE & ASSOCIATES, P,C. Attorneys-at-Law 126 EAST KiNG STREET SIllPPENSBURG, PENNSYLVANIA 17257-1397 JERRY A. WEIGLE Associates JOSEPH P. RUANE RICHARD L. WEBBER, JR. or Counsel THOMAS L. BRIGHT TELEPHONE (717) 532-7388 or (717) 776-4295 FAX (717) 532-5289 weil!leassociateslalearth Iink.net VIA FACSIMILE TO (412) 281-0717 AND D.S, MAIL Sharon F. DiPaolo, Esquire PEPPER HAMILTON, LLP 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 RE: 2004 Real Estate Tax Assessment appeals Cumberland County, Pennsylvania Spectrasite Communications Docket Numbers 04-920, 04-921 and 04-922 SBA Towers, Inc. Docket Numbers 04-949 and 04-950 Shenandoah Mobile Company and Shenandoah Personal Communications Company Docket Number 03-4921 Dear Attorney DiPaolo: On behalf of the Shippensburg Area School District, the District hereby consents to your proposed Motion to Consolidate as well as the Motion to Continue in the above captioned matter. Thank you for your attention to this matter. Very truly yours, ~ Je So GLE & ASSOCIATES, P.C. 14S2' 'tor for Slllppensburg Area Schoo istrict JA W/paf cc: Stephen D. Tiley, Esquire (via facsimile to 243-6441) Dr. David R. Landis, Superintendent SASD EXHIBIT .Ii j liE" 1 '''''''''' n'" 'JALZ~~NN 71 72497334 I ........L... U.&. HUGHES &FISHMAN P.C. G. Bn.r\N SAI..2.MANN. 'E'~IIiQ, JAM!.CJ, n. HUGH:t~. [.SQ. STtVtl< J. F1SIDoI^", ~~Q. .'.!IN'. DEP....UW. EsQ. NOR>4....J.ll~1<l1<O. DQ." W1LL1A.\IJ: w. T!ioMJlSON, E.,o... MIUSSA 1\.. DJWL1. E-~Q. RUEC'.CA R, HUc.tu:S, EsQ. . ,kUO ADMI1"TEO"t"O hlARVV'ND aAJ, P.'JlA.LEGA.!.': PAM\lUo R. llOUJI'lGU. Bf38<\\l'J. MOSIOR lAU1lltJ.poKTEll 1'KIctt\ ~ BhJLEY I.AM 5. COJU04^-"'ll ANG"'-^ p. UNt>FJl RtPl.YTO: gSA-J.tlW'OEllSl'!lII<<' RoAD' Surn:5' CA.llL1!u. PA 170\3 (7171l148-61lSS ,,,,,al7li49.78S4 455PHOVllXOIU'lI' Surn:A' CH.\)<1>UIBURG.PA17201 (117) 2'lll.212 1 F"" (717) 2l!3.0663 107 Notm< FIlO1<TSnr.tT ,sum: 115' FJ.A.ltlllSBUl\G. PA \710\ (7\71232,9420 F~ (717)202.1970 April 2, 2004 Sharon F. DiPaolo, Esq, Pe~per Hamilton, L.L.P. 50 Floor 500 Grant Street Pittsburgh, PA 15219-2502 Re: Spectracite Communications Assessment VIA FAX AND 1ST CLASS MAn.. Dear Ms. PiPaolo, This office serves as Solicitor to Upper Frankford Township, Cumberland County, Pennsylvania. The Township has authorized us to Concur in the proposed Order of Consolidation as well as the proposed Motion to Continue. Please advise ifthere is anything further required of the Township at this time. V ery truly yours, ~,:-~ ~ Solicitor EXHIBIT CONCE:'>TRATlNG IN EN'-lRONMENTAL. LAND USE, I RECEIVED TIME APR. 2, 10:2' s "Fn MUNIClPALAl'O E.STATEADMIr<ISTMTTON LAw ME APR. 2. 10: 22AM :::~...' -c C) c: 6 (.) I.t;) "-> ('::." c~ ..c- c) -" ;:~ --j -~ fi'i2J r-"- ~Drn _.]~:J ()(L i__J (-;~ =Tj ::~ra :.-":'1 --0 :::t:J w :-... _h -:~ -< '. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. SPECTRASITE COMMUNICATIONS, Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties. PT: #178263 vI (3TJROl !.DOC) CIVIL DIVISION Nos. 03-4921 04-920 04-921 04-922 04-949 04-950 MOTION TO CONTINUE Filed on Behalf of Spectrasite Communications Counsel of Record for This Party: Dusty Elias Kirk, Esquire PA LD. No. 30702 Sharon F. DiPaolo, Esquire PA LD. No. 74520 PEPPER HAMILTON LLP Firm LD. No. 143 One Mellon Center 50th Floor 500 Grant Street Pittsburgh, P A 15219-2502 (412) 454-5000 SPECTRASITE COMMUNICATIONS, Appellant, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. Ys. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP and BIG SPRINGS SCHOOL DISTRICT, Interested Parties. SPECTRASITE COMMUNICATIONS, Appellant, Ys. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. Ys. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties. PT: #178263 vI (3TJROI LODe) SBA TOWERS, INC., Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties. SBA TOWERS, INC., Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP and BIG SPRINGS SCHOOL DISTRICT, Interested Parties. PT: #178263 vI (3TJROl!.DQC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. ET AL. ) CNIL DIVISION ) ) Nos. 03-4921 ) 04-920 ) 04-921 ) 04-922 ) 04-949 ) 04-950 ) ) ) ) ) ) MOTION TO CONTINUE AND NOW, comes Spectrasite Communications ("Spectrasite"), by and through its attorneys, Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Motion to Continue, and in support thereof states as follows: I. Spectrasite is a telecommunication tower company, and the owner of commercial real estate and taxable property situate in Cumberland County, Pennsylvania, and identified as Parcel Numbers 40-1O-0632-0l6-LL, 43-06-0031-012-LL and 39-12-0324-004-LL in the Cumberland County assessment records (the "Spectrasite Properties"). 2. On or about March 4, 2004, Spectrasite filed Petitions for Appeal with this Court for the Spectrasite Properties challenging the Board's assessment of the telecommunication towers as real property for purposes of real estate taxation. 3. SBA Towers, Inc. ("SBA") is a telecommunication tower company, and also owns properties in Cumberland County upon which it placed telecommunication towers (the PT: #178263 vI (3TJROl!.DOC) "SBA Properties"). The SBA Properties are identified as Parcel Nwnbers 09-22-0533-001-LL and 41-11-0304-019-LL in the Cwnberland County assessment records. 4. On or about March 5, 2004, SBA filed Petitions for Appeal for the SBA Properties with this Court raising the same issues as Spectrasite's appeals. 5. Spectrasite and SBA are represented by the same counsel with respect to the above-referenced real estate tax assessment appeals. 6. On September 18, 2003, Shenandoah Mobile Company and Shenandoah Personal Communications Company (collectively, "Shenandoah"), by and through its attorney, Carl C. Risch, Esquire, filed a Petition for Appeal for its property identified as Parcel Number 25-25-0006-315-LL (the "Shenandoah Property"), raising the same issues as Spectrasite's and SBA's appeals. 7. This Court scheduled Shenandoah's appeal for trial on April 12, 2004. 8. Concurrent with filing this Motion to Continue, Spectrasite, jointly with SBA and Shenandoah, filed a motion to consolidate their appeals, as all of the appeals involve a common issue oflaw. 9. In the event this Court grants the consolidation, in light of the number of parties having an interest in the outcome of these appeals, Spectrasite, jointly with SBA and Shenandoah, requests that this Court continue the April 12, 2004 trial date to provide the parties adequate time for the exchange of discovery and preparation for trial. 10. Counsel for Spectrasite and SBA has contacted the respective taxing bodies having an interest in these appeals, through their respective solicitors, to discuss a continuance of the April 12, 2004 trial. Upon information and belief, Stephen D. Tiley, solicitor for the Cwnberland County Board of Assessment Appeals and Cumberland County, also PT: #178263 vI (3TJROI !.DOC) 2 attempted to contact each ofthe solicitors to discuss a continuance ofthis trial. The respective taxing bodies consent to a continuance as follows: a. Cumberland County and the Cumberland County Board of Assessment Appeals, through their solicitor, Stephen D. Tiley, Esquire, consented in writing to a continuance. A copy of the written consent is attached hereto as Exhibit "A"; b. Big Spring School District and South Middleton School District, through their solicitor, Philip H. Spare, Esquire, consented in writing to a continuance. A copy of the written consent is attached hereto as Exhibit "B"; c. Southampden Township, through its solicitor, Richard L. Webber, Jr., Esquire, consented in writing to a continuance. A copy of the written consent is attached hereto as Exhibit "C"; d. Shippensburg Area School District, through its solicitor, Jerry A. Weigle, Esquire, consented in writing to a continuance. A copy ofthe written consent is attached hereto as Exhibit "D". e. Upper Frankford Township, through its solicitor, Steven Fishman, Esquire, consented in writing to a continuance. A copy of the written consent is attached hereto as Exhibit "E". f. South Middleton Township, East Pennsboro Township, East Pennsboro Area School District and South Newton Township have not yet provided a response with respect to a continuance. PI: #178263 vi (3TJROl !.DOC) 3 WHEREFORE, Spectrasite Communications, jointly with SBA Towers, Inc. and Shenandoah Mobile Company and Shenandoah Personal Communications Company, respectfully requests that this Honorable Court enter an order continuing the April 12, 2004 trial to a later date. Respectfully submitted, ~ 'u.wA ~cM; Dusty as Kirk P A I.D. 0, 30702 Sharon F. DiPaolo PA I.D. No. 74520 Pepper Hamilton LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 Dated:~, 2004 Attorneys for Spectrasite Communications PI: #178263 vI (3TJROl !.DOC) 4 I '.. f ,'. ,~ !\Lf\l ;'_ '\ Oh -'" "" I 'Li ;".;; i'\nJ ),iJ\iLC:CiIUY:'d 3l-il :JO '3CLUO-'89~~i:d "I \I..If! 'tn7 c. \.".} t "1j"l1J(., FREY & TILEY ATTORNEYS-AT-LAW 5 SOUTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013-3385 Of Counsel: ROBERT M. FREY Telephone: (717) 243-5838 Facsimile: (717) 243-6441 STEPHEN D. TILEY ROBERT G. FREY MEMORANDUM TO: Sharon F. DiPaolo, Esquire Via email only FROM: Steve Tiley DATE: April 2, 2004 RE: Cell Tower Appeals Dear Sharon: In response to your transmission of March 30th, on behalf of the County and Board, I concur in the motions. I have sent a fax to the counsel for the other taxing bodies asking that they give their concurrence to you as soon as possible. I spoke with Attorney Carl Risch this morning and he continues to concur, so long as trial is not delayed beyond May (I indicated June 15th and he was agreeable to that), Do you plan to file a separate motion for each case? I would think that at least we will need an order entered in each case or that the final order should reference all case numbers. I have not reviewed the procedure. I note that I have never been served with filed copies of the original appeals, giving file numbers. For that reason, I have not yet filed Answers. (Although Answers are not required, I customarily do so.) No need to serve filed copies now, I will go the courthouse and get the file numbers and I will assume that what was filed is identical to the copies I received. EXHIBIT ~ j nAil Frey & Tiley Sharon F. DiPaolo, Esquire Re: Cell Tower Cases April 2, 2004 Page 2 of2 I am not sure that we need consent, and I am not sure that we can get consent within the timeframe required. Some solicitors will be away. Others will feel the need to consult with their client before making a decision. Your cases were assigned to President Judge Hoffer. About two weeks ago his chambers called to schedule the hearings, I advised that Judge Oler had the Shenandoah case and that there had been some talk of consolidation and CCAP intervention. He asked me to report back to him in a couple of weeks. The Shenandoah case is presently scheduled for pre-trial next Thursday and trial a week from Monday, I believe that Carl Rish and I need to advise Judge Oler that a motion for consolidation is likely. At the same time I believe that I, or Carl Rish and I, should advise Judge Hoffer. I recommend that, after my conversation with Judge Oler, that I deliver to Judge Hoffer a letter indicating where we are, and that I suggest that the Court may want to simply order consolidation on its own motion. We may find that this results in consolidation of the cases before all of the taxing body solicitors have had the opportunity to respond. I am not yet sure who will be attending the tower removal. Sincerely yours, Steve cc: Carl C. Rich, Esquire Via email only Stephen D. Tiley ~.'".,.... ..... ... '.&.I UCI'I I UO.L oJ,.....44.lora.o.~... ............,___" _a._. SNELBAKER, BRENNEMAN & SPARE, p, C. ,-- Attorneys lit Law lP'. O. IBQ,~ :H:~ 44 We~ Main Sl.i~t Medl&lCli~,sb1I1'~,"'i'A 17055 (717) 697-8528 Richard C. Snelbakcr Fax No, (717) 697-7681 Kcith 0, Brenneman Philip H, Spare FACSIMILE COVER LETTER PLEASE DELIVER THE FOLLOWING PAGES: DATE: April 6, 1004 TO: Sharon F. DiPaolo, Esquire Pepper Hamilton LLP FAX #: (4U) 454-5005 FROM: Phil Spare NO. OF PAGES INCLUDING COVER LETTER: 1 COMMENTS: Re: Spectrasite Communications and SBA Tower Cases CCP Cwnberland County, PA Dear Sharon: As we discussed this morning, our finn represents Big Spring School District and South Middleton School District in the above referenced tax assessmcnt appeals. Last evening, both school Boards adopted resolutions approving of the consolidation of these cases with the other similar cases pending in Cumberland County. Plcase let me know if you require any thing else from me at this time. Thank you. Cc: Dr. Patricia B. Sanker, Superintendent South Middleton School District ~ Dr. William K, Cowden., Superintendent Big Spring School District Stephen D. Tiley, Esquire (717) 243-6441 EXHIBIT RECEIVED TIME APR. 6. j "R" TIME APR, 6, 9:00AM WEIGLE & ASSOCIATES, P.C. Attorneys-at-Law t26 EAST KING STREET SHIPPENSBURG, PENNSYLVANIA 17257.1397 JERRY A, WEIGLE Associates JOSEPH P. RUANE RICHARD L. WEBBER, JR. Of Counsel THOMAS L. BRIGHT TELEPHONE (717) 532-7388 or (717) 776-4295 FAX (717) 532-5289 wehzleassociateSla!earthlink,net April 2, 2004 VIA FACSIMILE TO (412) 281-0717 AND U.S. MAIL Sharon F. DiPaolo, Esquire PEPPER HAMIL TON, LLP 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 RE: 2004 Real Estate Tax Assessment appeals Cumberland County, Pennsylvania Spectrasite Communications Docket Numbers 04-920, 04-921 and 04-922 SBA Towers, Inc. Docket Numbers 04-949 and 04-950 Shenandoah Mobile Company and Shenandoah Personal Communications Company Docket Number 03-4921 Dear Ms. DiPaolo: I represent Southampton Township, Cumberland County, Pennsylvania. I hereby consent to your proposed Motion to Consolidate as well as the Motion to Continue. Thank you for your attention to this matter. Very truly yours, WEIGLE & ASSOCIATES, P.C. t:.LA n,..\/.dL- Richard L. Webber, Jr., Esquire RLW/paf cc: Stephen D. Tiley, Esquire (via facsimile to 243-6441) Southampton Township Board of Supervisors EXHIBIT j j "e" WEIGLE & ASSOCIATES, p,c. Attorneys-at-Law 126 EAST KING STREET SIllPPENSBURG, PENNSYLVANIA 17257-1397 JERRY A. WEIGLE Associates JOSEPHP.RUANE RICHARD L. WEBBER, JR, Of Counsel THOMAS L. BRIGHT TELEPHONE (717) 532-7388 or (717) 776-4295 FAX (717) 532-5289 weie:leassociates@,earthlink.net VIA FACSIMILE TO (412) 281-0717 AND V,S. MAIL Sharon F. DiPaolo, Esquire PEPPER HAMILTON, LLP 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 RE: 2004 Real Estate Tax Assessment appeals Cumberland County, Pennsylvania Spectrasite Communications Docket Numbers 04-920, 04-921 and 04-922 SBA Towers, Inc. Docket Numbers 04-949 and 04-950 Shenandoah Mobile Company and Shenandoah Personal Communications Company Docket Number 03-4921 Dear Attorney DiPaolo: On behalf of the Shippensburg Area School District, the District hereby consents to your proposed Motion to Consolidate as well as the Motion to Continue in the above captioned matter, Thank you for your attention to this matter. Very truly yours, V Je So ;t/} 0 / (!ei~!f., Esquire 'tor for SIllppensburg Area Schoo / GLE & ASSOCIATES, P.C. ,.. JAW/paf cc: Stephen D, Tiley, Esquire (via facsimile to 243-6441) Dr. David R. Landis, Superintendent SASD EXHIBIT I 3 "D" ffl~~/~ ~ """"" ""'---""""" dALZMANN, HUGHES &FISHMAN, P.C, PAGE ell G. BRYl\f'Il SAI.2.MANN'. E.~Q. J AMr.~ 1), HUGHES..EsQ. ,).J....VE:< J. FlSIlMAN. E.'Q, .>./IN f. DJ:I'A.UW. E.>Q. NORMA.), BA TcrKO, EsQ.' WU.LT.r\M W. niOMPSON, E.1Q. . MWSSA K. DJVEI..l'. E."Q, REBECCA l{. HUGHE$. EsQ. 'A,LlO^~~'t'O~NDa.u P.'JV.l.E(;.Wl: PMtEIA R. BOWNGER BAlIIl<\\l.'J. MOSIOR L\.URItJ, pOI<IU TRrCM l. BAIIZY ~S.Co"'M^N ANGEL\. F. UNC.... Rl:PLYTO: g5ALEXAl<DERSMUNl.' RoAD' surn;~' CAlU.l!1L PA 17013 (II 71 :l49oliS3S FAX (7m :149,7354 455I'HOE>IIXOIU'IE 'SumA 'CHAM1>ER!BUI<G, PA 17201 11I71 tGa-212J F"" (7m 203-0663 107 NOIm< FRONI"S= . Sum: 115' Il.AIlRlSBUR(', PA 17101 11I712S2,B420 FAX (17) 232-1970 Sharon F. DiPaolo, Esq, Pe~per Hamilton, L.L.P. 50 Floor 500 Grant Street Pittsburgh, PA 15219-2502 April 2, 2004 Re: Spectracite Communications Assessment VIA FAX AND 1ST CLASS MAn. Dear Ms. DiPaolo, This office serves as Solicitor to Upper Frankford Township, Cumberland County, Pennsylvania, The Township has authorized us to Concur in the proposed Order of Consolidation as well as the proposed Motion to Continue, Please advise if there is anything further required of the Township at this time. Very truly yours, ~~~~; -, Solicitor EXHIBIT ~ ~ "E" CONCE:-O"TRATING IN EN'-lRONMENTAL, LAND USE, CoRPOIlAn.. REAL EsTA'n, MUNICIPAL AND EsTAnADMINIS'TIIATTON LAw RECEIVED TIME APR 2 10"21RM '., PRINT TIME RPR, 2. 10: 22RM ,...., r.;.:-:;;;, 0 c;:,;. Tj ~ ~ .-., ..U -,- r'll ""!' :':<0 ;~~ , -'-:;1 , :)J y <.., ,~ :!r c-:) ""T, 0'--.' C-~ ;~: :K :_-> (I ':? ., .. .r- .., C, -< " APR 062004 ~ U.b SIII;~\"[)O;\II \IOBILE COMPANY, "'ldSIII:'\,\'\llO.\II PERSONAL ('11\1 \:t'-:I(".-\"[IONS COMPANY, .\l'l'clbnts : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW \. : NO. 03 - 4921 l.t '\\HI'RI.A:'\D COUNTY BOARD OF .\SSLSS'vlFNT APPEALS, Appellee : REAL ESTATE TAX ASSESSMENT APPEAL \\ ORDER \:'\1) :'\OW this ~ day of ,\pril. 2004. upon consideration ofthe Petition of the County I "'''''''.,,,iollcr, ,\ssociation of Pennsylvania to flle an Amicus Curiae Brief in the above- ::!j'1 il \L'.~'d matter. II. IS IIUU:BY ORDERED AND DECREED that the Petition to File an Amicus ( "III;!,' Brit.f (1I1 bdwlf of the County COllllllissioners Association of Pennsylvania is hereby (;IU:'\TED. BY THE COURT: , ~RoIl J. tl~i jjr \ ~~~ : . s ~ . '''~J i:n,.' ....,. I 9 S : II H~ f: I IJdlt ~aDl AUVW.'00HlOdd JHl :10 :lOU.:iO-031i:l SHENANDOAH MOBILE: COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant NO. 03-4921 CIVIL TERM / SPECTRASITE COMMUNICATIONS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUJ\lTY, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties NO. 04-920 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of April, 2004, upon due consideration of the Motion To Consolidate filed by Spectrasite Communications jointly with SBA Towers, Inc., and Shenandoah Mobile Company and Shenandoah Personal Communications Company, it is hereby ORDERED, ADJUDGED and DECREED that the Motion To Consolidate is , .. ;\JJ-\Ci',-, ~:\'1'\C:':) 51 .i' 'U \ld , , " "1 LnO? .' I i~l r\ rll'l"~' ,.j <<,..1 " ~... ;).,~\\ .\" , ,;.:,\('1'.-\.A "':11_\1,' -\0 ,~ ~" "l"" I ;.\..........."-..,.;\ .... ;cy:\::l,O-o:rYd \ \ hereby GRANTED; and it is further ORDERED that the Prothonotary of Cumberland County shall consolidate the actions docketed at Numbers 03-4921, 04-920, 04-921, 04- 922,04-949 and 04-050 at Number 03-4921. Stephen D, Tiley, Esq, 5 South Hanover Street Carlisle, P A 17013 Cumberland County Board of Assessment Appeals Edward L. Schorpp, Esq, Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Solicitor, Cumberland County Carl Risch, Esq, Ten East High Street Carlisle, P A 17013 Attorney for Shenandoah Mobile Company Dusty Elias Kirk, Esq. Sharon F, DiPaolo, Esq. Pepper Hamilton LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 Attorneys for Spectrasite Communications Philip H. Spare, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055 Solicitor, South Middleton School District BY THE COURT, i~ AI;I- ~ ~~ J?td .v... ~. I1J ()~~ ~ ~.r. " ~~~. Richard P. Mislitsky, Esq. 1 West High Street P.O. Box 1290 Carlisle, PA 17013 Solicitor, South Middleton Township SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW 03- tf9,~1 c-,-::t I * * * * * * * * Ed .f' .,~ \,\\ /" : ~,' H/.,r\('7 01 (,y,J' IUJ", /,.d~ 'JuUI<<)\"~.lO'(:~d "?.lAl ::\0 ?',j\,.j~O-C:nH v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRINGS : SCHOOL DISTRlCT, Interested Parties SPECTRASITE COMMUNICA TrONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRlCT, Interested Parties SBA TOWERS, INC., Plaintiff * * * * * * * * v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLANDCOUNT~ EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO TOWNSHIP SCHOOL DISTRICT, Interested Parties * * * * SBA TOWERS, INC. Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLANDCOUNT~ SOUTH NEWTON TOWNSHIP : and BIG SPRINGS SCHOOL DISTRICT, Interested Parties 03-4921 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of April, 2004, the preheaning conference in the above matters is scheduled for Wednesday, June 9, 2004, at 2:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Prehearing memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the prehearing conference. THE HEARING on the tax assessment appeal is scheduled for Thursday, June 24, 2004, and Monday, June 28, 2004, commencing at 9:30 a.m, each day, in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. ~r1 C. Risch, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Shenandoah Mobile Company BY THE COURT, ^ / , ! /' l~ 'c- ~':> oAt J. Wesley Oler, Jr., J. c' vDusty Elias Kirk, Esq. Sharon F, DiPaolo, Esq. Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2505 Attorneys for Spectrasite Communications > ~.d. ~ (j~ .~W -0 Y ';stephen D, Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Cumberland County Board of Assessment Appeals ^ ~dward L. Schorpp, Esq. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Solicitor, Cumberland County /Philip H. Spare, Esq. 44 West Main Street P.O. Box318 Mechanicsburg, PA 17055 Solicitor, South Middleton School District and Solicitor, Big Springs School District Aichard P. Mislitsky, Esq. I West High Street P.O, Box 1290 Carlisle, P A 17013 Solicitor, South Middleton Township /Steven Fishman, Esq. 95 Alexander Spring Road Carlisle, PA 17013 Solicitor, Upper Frankford Township v.J'erry A. Weigle, Esq. 126 East King Street Shippensburg, P A 17257 Solicitor, Shippensburg Area School District /Richard L. Webber, Ir" Esq. 126 East King Street Shipp ens burg, P A 17257 Solicitor, Southampden Township /Marcus A. McKnight, III, Esq, 60 West Pomfret Street Carlisle, PA 17013 Solicitor, South Newton Township flonna S, Weldon, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Solicitor, East Pennsboro School District -1Ienry F. Coyne, Esq. 3901 Market Street Camp Hill, PA 17011 Solicitor, East Pennsboro Township :rc SPECTRASITE COMMUNICA nONS, IN THE COURT O]~ COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellant V. CIVIL DIVISION NO, 2004-921 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS Appellee CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP and BIG SPRING SCHOOL DISTRICT Interested Parties NOW BY CONSOLIDA nON SHENANDOAH MOBILE COMPANY,ET AL. Plaintiffs, V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS Defendants, NO, 2003-4921 - CIVIL TERM ,/' ANSWER AND NOW, comes Cumberland County Board of Assessment Appeals and County of Cumberland by Stephen D. Tiley, Esquire, Assistant County Solicitor for tax matters, and files this Answer to the Petition for Appeal, of which the following is a statement. 1. Admitted. 2. Admitted. 3. Admitted in part. Denied in part. The averments of this paragraph are admitted, however, the Board is created under Section 301 of The Fourth to Eighth Class County Assessment Law (72 P.S. ~5453.301) and not the assessment law applicable to Second Class "A" and Third Class County's as referenced by the Petitioner. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied. The averments of this paragraph, and each of its sub-lettered paragraphs are denied as conclusions of law to which no responsive pleading is required. WHEREFORE, Cumberland County Board of Assessment Appeals and County of Cumberland pray Your Honorable Court for an Order denying Petitioner's appeal and fixing the value of the real estate in such amount as to the Court may seem proper. Dated: r)~..P /' Respectfully submitted, By ~~ ~, Step en . Tiley, Esquire Assistant Cumbo Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court 1.D#32318 ~~'7 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Dated: \ Ivwvt N, lOO'! If n.~ fh. /Y/a L/Yl~ ~. Mahoney, Chief Asses CERTIFICATE OF SERVICl8; I hereby certify that I served a true and correct copy of the foregoing Answer by placing a certified true and correct copy of the same in the United States mail, postage pre-paid, addressed to: Dusty Elias Kirk, Esquire PEPPER HAMILTON LLP Counsel for Appellant 50th Floor, One Mellon Center 500 Grant Street Pittsburgh,PA 15219-2502 Philip H. Spare, Esquire SNELBAKER, BRNNEMAN & SPARE Counsel for South Middleton School Dist. 1',0, Box 318, 44 W. Main Street Mechanicsburg, PA 17055 Carl C. Risch, Esquire MARTS ON DEARDORFF WILLIAMS & OTIO Counsel for Appellant 10 East High Street Carlisle,PA 17013 Date: 0~o tflt' /?j/~-f, 7_~ Stephen D. Tiley, Esquire Assistant Cumbo Co. Solicitor For Tax Matters 5 S. Hanover Street Carlisle, l' A 170 ]13 (717) 243-5838 Attorney I.D.#32318 (") -~~; 9>Cf t~i rO;';c__ ~~"- ) {{t_~1 c- ;;? :::! ,,-, ,~ ~ o -n ::;:1 r-i'i:r:1 r-' :fJrT1 _00 C).l i~~~B ~~q ;"IJ --< s: --: \.0 :c;? ';~ +- o:r yq;J.\ SPECTRASITE COMMUNICATIONS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO, 20Cl4-920 CIVIL TERM CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ***************************** SPECTRASITE COMMUNICATIONS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVI S ION v NO, 2004-921 CIVIL TERM CUMBERLAND COUNTY, UPPER FRANK FORD TOWNSHIP and BIG SPRING SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL **************************** SPECTRASITE COMMUNICATIONS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-922 CIVIL TERM CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ******************************* , SBA TOWERS, INC" Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-950 CIVIL TERM CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL If:NWi1ASNN3d AlNnC.n ri'J'!"1'-!38V'lnO SF.: :8 Wd 0 I Nor ~DDZ ,\H1i.LONOHIOod 3Hl :10 301:1:!(\-{)311:l SBA TOWERS, INC., Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO, 2004-949 CIVIL TERM CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP and BIG SPRING SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ********************************* SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee : ;nVIL ]l,CTION - LAW :./NO, 03-4921 CIVIL TERM : REAL EST]l,TE TAX ASSESSMENT APPEAL IN RE: PRE-HEARING CONFERENCE A pre-hearing conference in the above-captioned cases was held in the chambers of Judge Oler on Wednesday, June 9, 2004. In the case of Spectrasite Communications versus Cumberland County Board of Assessment Appeals versus Cumberland County, South Middleton Township and South Middleton School District, at No, 2004-920 Civil Term, Appellant, Spectrasite Communications, was represented by Dusty Elias Kirk, Esquire, and Sharon F, DiPaolo, Esquire; Appellee, Curr~erland County Board of Assessment Appeals, was represented by Stephen D. Tiley, Esquire; Interested Party Cumberland County was represented by Stephen D. Tiley, Esquire; Interested Party South Middleton School District was represented by Philip H. Spare, Esquire, and Interested Party South Middleton Township was unrepresented, In the case of Spectrasite Communications versus Cumberland County Board of Assessment Appeals versus Cumberland County, Upper Frankford Township and Big Spring school District at No, 2004-921 Civil Term, present on behalf of Appellant, Spectrasite Communications, were Dusty Elias Kirk, Esquire, and Sharon F, DiPaolo, Esquire, Appellee, Cunilierland County Board of Assessment Appeals, was represented by Stephen D, Tiley, Esquire; Interested Party Cumberland County was represented by Stephen D, Tiley, Esquire; Interested Party Big Spring School District was represented by Philip H, Spare, Esquire; and Interested Party Upper Frankford Township was not represented. In the case of Spectrasite Communications, Appellant, versus Cumberland County Board of Assessment Appeals versus Cumberland County, South Hampden Township and Shippensburg Area School District at No, 2004-922 Civil Term, Appellant, Spectrasite Communications, was represented by Dusty Elias Kirk, Esquire, and Sharon F, DiPaolo, Esquire; l\ppellee, Cumberland County Board of Assessment Appeals, was represented by Stephen D, Tiley, Esquire; Interested Party Cumberland County was represented by Stephen D, Tiley, Esquire; and Interested Parties South Hampden Township and Shippensburg A:~ea School District were not represented. In the case of SBA Towers, Inc" Appellant, versus Cumberland County Board of Assessment Appeals versus Cumberland County, East Pennsboro Township and East Pennsboro School District at No, 2004-950 Civil Term, Appellant, SBA Towers, Inc., was represented by Dusty Elias Kirk, Esquire, and Sharon F. DiPaolo, Esquire; Appellee, Cu~)erland County Board of Assessment Appeals, was represented by Stephen D, Tiley, Esquire; Interested Party Cumberland County was represented by Stephen D, Tiley, Esquire; and Interested Parties East Pennsboro Township and East Pennsboro School District were not represented, In the case of SBA Towers, Inc., versus Cumberland County Board of Assessment Appeals versus Interested Parties Cumberland County, South Newton Township and Big Spring School District at No. 2004-949 Civil Term, Appellant, SBA Towers, Inc., was represented by Dusty Elias Kirk, Esquire, and Sharon F, DiPaolo, Esquire; Appellee, Cumberland County Board of Assessment Appeals, was represented by Stephen D, Tiley, Esquire; Interested Party Cumberland County was represented by Stephen D. Tiley, Esquire; Interested Party Big Spring School District was represented by Philip H. Spare, Esquire, and Interested Party South Newton Township was not represented, In the case of Shenandoah Mobile Company and Shenandoah Personal Communications Company, Appellants, versus Cumberland County Board of Assessment Appeals at No. 03-4921 Civil Term, Appellants were represented by Carl C. Risch, Esquire, and Appellee was represented by Stephen D, Tiley, Esquire, It is noted further that in all of these cases Robert L, Knupp, Esquire, was present in the capacity of an amicus curiae, on behalf of the Pennsylvania County Commissioners Association, This case involves tax assessment appeals with a common issue: Whether telecommunication towers are realty or personalty for purposes of Pennsylvania real estate taxation, Counsel have indicated that they believe they will be able to stipulate as to the value of the improvements in question so that that valuation will not be an issue for the Court. Counsel have all agreed that the aforesaid issue regarding realty/personalty is the only issue being pursued for a disposition by the Court in these cases. By separate Order of Court, the hearing in these cases, which have been consolidated at Nur~er 03-4921 Civil Term, will be held on Thursday, June 24, 2004, commencing at 9:30 a,m., and Monday, June 28, 2004, commencing at 9:30 a,m, With respect to settlement negotiations, it does not appear to the Court that these cases will be resolved amicably, By the Court, . vCarl C. Risch, Esquire 10 East High Street Carlisle, PA 17013 For Shenandoah 7 ~usty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 For Spectrasite Communications vRobert L, Knupp, Esquire 407 North Front Street Box 11848 Harrisburg, PA 17108-1848 For County Commissioners Association of Pennsylvania and SBA Towers, lnc, ~tephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 For Cumberland County Board of Assessment Appeals ~ilip H. Spare, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 For Big Spring and South Middleton School Districts :mae SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 03 - 49211 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee : REAL ESTATE TAX ASSESSMENT APPEAL SUPPLEMENTAL PETITION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY COMMISSIONERS ASSOCIATION OF PENNSYLVANIA, IN SUPPORT OF APPELLEE, CUMBERLAND COUNTY BOARD 01' ASSESSMENT APPEALS ~[,A:~' ESQUIRE ATTORJ~EY ID NO, 78931 P,O, Box 127 Boiling Springs, Pa 17007 (717) 24]l-6500 March 30, 2004 INTEREST OF AMICI CURIAE The County Commissioners Association of Pennsylvania (hereinafter CCAP) is a state- wide, non-profit, bi-partisan association representing the Commissioners, Chief Clerks, and Solicitors of Pennsylvania's sixty-seven (67) counties. The general theme of the Association's Legislative and Regulatory Policy is to seek greater flexibility and autonomy for county government, in the context of the broader inter-governmental system. CCAP's interest in the case at hand flows naturally from the member counties' interest in this issue. Similar or identical issues have already arisen in Adams, Center, Crawford, Fayette, Fulton, Greene, Mercer, Montgomery, Schuylkill, Venango and York counties. It is believed that similar or identical issues are likely to arise in most ifnot all of Pennsylvania's sixty-seven (67) counties. Statement of authority to file the Amicus Curiae brief The County Commissioners Association of Pennsylvania Executive Director, Doug E. Hill, has given Mark A. Mateya, Esquire, authority to file an Amicus Curiae Brief. PRELIMINARY STATEMENT AND REASON TO PRESENT ARGUMENT The question presented in the case sub judice is one of law. Cell towers, in their various permutations, are a part of our modern-day landscape. Many of the laws and regulations with which we determine questions of taxation were crafted long before present day cell towers were even a consideration. This case will address the question ofwh,ether or not cell towers should be taxable as real estate. It is CCAP's position that cell towers are to be taxed as real estate. CCAP looks after the operational and financial interests of the counties of Pennsylvania. CCAP has a unique point of view, in that it considers the far-reaching results oflocal decisions, with a view to assisting the court with its review of the public policy ramifications of its decisions. The result of a finding that cell towers are personal rather than real property could produce inapposite results of those intended by either this court or the original statutes and regulations governing taxation. It is for these reasons that CCAP requests permission from this Honorable Court to file an amicus brief in support of Appellee" Cwnberland County Board of Assessment Appeals. REASON TO PRESENT SUPPLEMENTAL PETITION FOR LEAVE TO FILE AMICUS CURIAE BRIEF This Honorable Court granted additional Defendants, Spectrasite Communications, Motion to Consolidate their case with the case sub judice, Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 03-4921. Counsel for Spectrasite Communications, Dusty Elias Kirk, Esq. , have agreed to pemlit CCAP's involvement as an amicus party in support of Appellee, Cwnberland County Board of Assessment Appeals. Counsel for Shenandoah Mobile Company, and Shenandoah Personal Communications Company, Carl C. Risch, Esquire, has previously agreed to perrnit CCAP's involvement as an amicus party in support of Appellee, Cumberland County Board of Assessment Appeals. LEGAL ARGUMENT No legal argument regarding the issue at hand will be presented unless this Honorable COUli grants leave to CCAP so to file, at which time our Amicus Curiae Brief in Support of Appellee, Cumberland County Board of Assessment Appeals will be filed. CCAP has supported the Cumberland County Board of Assessment Solicitor throughout this case and wishes to continue to do so in this capacity. CONCLUSION For the reasons stated above, I request this Honorable Court grant our Petition for Leave to File an Amicus Brief in Support of Appellee, Cumberland County Board of Assessment Appeals. Respectfully submitted, \~G , ~~ Mark A. Mateya, Es Post Officl~ Box 127 Boiling Springs, Pa 17007 (717) 241-6500 Assistant Counsel for County Commissioners Association of Pennsylvania CERTIFICATE OF SERVICE I, hereby certify that I have served a copy of the foregoing Supplemental Petition for Leave to File Amicus Curiae Brief on the following person(s) by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Dauphin County. Pennsylvania addressed to: Carl C. Risch, Esq. Ten East High Street Carlisle, Pa 17013 Dusty Elias Kirk, Esq. Pepper Hamilton, LLP One Mellon Center, 50'h Floor 500 Grant Street Pittsburgh, Pa 15219-2505 ~.~~~ Attorney JD No. 78931 Post Office Box 127 Boiling Springs, P A 17007 (717) 241-6500 Date: (O(~/6t.t SPECTRASITE COMMUNICATIONS, Appellant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-920 CIVIL TERM CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ***************************** SPECTRASITE COMMUNICATIONS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-921 CIVIL TERM CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP and BIG SPRING SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL **************************** SPECTRASITE COMMUNICATIONS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-922 CIVIL TERM CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ******************************* SBA TOWERS, INC" Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO, 2004-950 CIVIL TERM CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ... '0 r f f t ~ t, Q : J~ ~ \ :-t. ~. ~ r SBA TOWERS, INC., Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL DIVISION v NO. 2004-949 CIVIL TERM CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP and BIG SPRING SCHOOL DISTRICT, Interested Parties PETITION FOR APPEAL ********************************* SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBER,~AND COUNTY, PENNSYLVANIA v CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee CIVIL ACTION - LAW ,li0. 03--4921 CIVIL TERM :REAL ESTATE TAX ASSESSMENT APPEAL IN RE: NON JURY TRIAL ORDER OF COURT AND NOW, this 24th day 0,: June, 2004, upon consideration of the tax assessment appeals in the above-captioned cases, and following an initial day of hearing, the record shall remain open, and it is noted that a second full day of hearing is scheduled for Monday, ;rune 28, 2004, commencing at 9:30 a.m. It is noted further that at the time of adjournment on today's date Patrick Doyle was being subjected to cross examination by Stephen D. Tiley, Esquire, counsel for the Cumberland County Board of Assessment Appeals. It is noted further that at the time of adjournment Cumberland County Board of Assessment Appeals Exhibit 1 had been identified and admitted and Taxpayer's Exhibit 2 (sub items 1 through 34, 36 through 37, and 41) had been identified and admitted as had Taxpayer's Exhibits 35, 53, and 3. By the Court, Carl C. Risch, Esquire 10 East High Street Carlisle, PA 17013 For Shenandoah Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 For Spectrasite Communications and SBA Towers, t.~ ~<l {,-)Jj.o'f Inc. Yf,.".,. Mark A. Mateya, Esquire 407 North Front Street Box 11848 Harrisburg, PA 17108-1848 For County Commissioners Association of Pennsylvania Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 For Cumberland County Board of Assessment Appeals Philip H. Spare, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 For Big Spring and South Middleton School Districts :mae SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Appellants : IN THE COURT OF COMMON PLEAS OF :CUMBERLANI) COUNTY, PENNSYLVANIA D : CIVIL ACTIOK - LAW JUN 2 4 ZOO~ v. : NO. 03 - 4921 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee : REAL ESTATE TAX ASSESSMENT APPEAL ORDER AND NOW this 3.Jtay of June, 2004, upon consideration of the Petition of the County Commissioners Association of Pennsylvania to file an Amicus Curiae Brief in the above- captioned matter, IT IS HEREBY ORDERED AND DECREED that the Supplemental Petition to File an Amicus Curiae Brief on behalf of the County Commissioners Association of Pennsylvania is hereby GRANTED. BY THE COURT: /~iol[. J. C) ("' " .:> r r If fJ ~ fl S~~ Alf\ir1('",," ". ,..~./~:'"";,~ 12 :'1 1,IJ 0 , / S Nnr 'iDOl A~}/LC!\'O;-U(\)': I jl I ::),\'.J.' ..c v"G'~ "';"1.1 -In -,\.JI ':: I-~ ,31!:.! . ,-' r--' c:> co .rc- (..-~. s:~'. N w ( c :2. :x. o ""1 ..., :3:-:-~ -r, fl' f;;:; -rj IT' ~.-,C) /-)1 '::"::l L~' -,..- "", .-;~ :~,.! <C) n r. N ,.1;"' ~.~} SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION-LAW NO. 03-4921 CIVIL TERM ~ * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-920 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , "'~H,:\'J I';:::'>'\~')"<': S::\l.\ . <. .' _,F'~~\"'''''''f'\ t \\~.r"',r<-' " ;:\\ \.,J t'\.)..J;;'-- \1S : \ I.'J C) \ t~.S \j~~(. , . CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRING SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP, and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties SBA TOWERS, INC., Plaintiff v. CUMBERLAND COUNTY CIVIL ACTION-LAW NO. 04-921 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION-LAW NO. 04-922 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP, : and BIG SPRING SCHOOL DISTRICT, Interested Parties NO. 04-949 CIVIL TERM * * * * SBA TOWERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties NO. 04-950 CIVIL TERM IN RE: TAX ASSESSMENT APPEALS BEFORE OLER, J. ORDER OF COURT AND NOW, this 15th day of September, 2004, after careful consideration of the tax assessment appeals filed herein, following a hearing, and for the reasons stated in the accompanying opinion, it is ordered as follows: With respect to parcel number 25-25-0006-351 LL: THE MARKET VALUE as of January I, 2004 (and for succeeding years until revised), for the parcel owned by Shenandoah MobiJ,e Company, situated in New Cumberland Borough, Cumberland County, Pennsylvania, is fixed at $95,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $95,000.00 as of January I, 2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 43-06-0031-012 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Upper Frankford Township, Cumberland County, Pennsylvania, is fixed at $142,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $142,000.00 as of January 1,2004, for county and municipal taxes, and July 1,2004, for school real estate taxes. With respect to parcel number 39-12-0324-004 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Southampton Township, Cumberland County, Pennsylvania, is fixed at $136,530.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 1100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530.00 as of January 1,2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 40-10-0632-016 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in South Middleton Township, Cumberland County, Pennsylvania, is fixed at $136,530.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530.00 as of January 1,2004, for c:ounty and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 09-22-0533-001 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by SBA Towers, Inc., situated in East Pennsboro Township, Cumberland County, Pennsylvania, is fixed at $70,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $70,000.00 as of January I, 2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 41-11-0304-019 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by SBA Towers, Inc., situated in South Newton Township, Cumberland County, Pennsylvania, is fixed at $100,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 9~.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $100,000.00 as of January 1,2004, for county and municipal taxes, and July 1,2004, for school real estate taxes. BY THE COURT, ~rl C. Risch, Esq. 10 East High Street Carlisle, P A 17013 Attorney for Shenandoah Mobile Company and Shenandoah Personal Communications Company ~sty Elias Kirk, Esq. Sharon F. DiPaolo, Esq. Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219 Attorneys for Spectrasite Communications and SBA Towers, Inc. ) cfil101 1\ ~ark A. Mateya, Esq. 407 North Front Street Box 11848 Harrisburg,PA 17108 Attorney for County Commissioners Association of Pennsylvania Stephen D. Tiley, Esq. ~ P 5 South Hanover Street . .~~ Se.t~ Carlisle, PA 17013 . I q -{~-Ol h ,S~ Wa,({€<r Attorney for Cumberland County Board of Assessment Appeals ~p H. Spare, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055 Attorney for Big Spring and South Middleton School Districts SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 03-4921 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION-LAW NO. 04-920 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRING SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP, and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties SBA TOWERS, INC., Plaintiff v. CUMBERLAND COUNTY CIVIL ACTION-LAW NO. 04-921 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION-LAW NO. 04-922 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2 BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP, : and BIG SPRING SCHOOL DISTRICT, Interested Parties NO. 04-949 CIVIL TERM * * * * SBA TOWERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties NO. 04-950 CIVIL TERM IN RE: TAX ASSESSMENT APPEALS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., September 15,2004. In these six cases, which have been consolidated by agreement of counsel because of a common question of law, Plaintiffs are appealing from real estate tax assessments by 3 Defendant of Plaintiffs' telecommunication tower facilitks.1 At issue on the appeals is the correctness of Defendant's underlying classification of Plaintiffs' telecommunication towers as realty as opposed to personalty for real estate tax purposes.2 The procedural history ofthe cases may be summarized as follows. On September 18, 2003, Plaintiffs Shenandoah Mobile Company and Shenandoah Personal Communications Company filed a petition for appeal from Defendant's tax assessment of their telecommunication towers.3 Defendant filed an answer to Plaintiffs' petition on October 2, 2003,4 and the case was listed for trial on Jlmuary 7, 2004.5 On March 4, 2004, Plaintiff Spectrasite Communications filed three petitions for appeal, each listing the Cumberland County Board of Assessment Appeals as Defendant, as well as Cumberland County and the local townships and school districts in which the towers were located as interested parties.6 On March 5, 2004, Plaintiff SBA Towers filed two petitions for appeal, each listing the Cumberland County Board of Assessment Appeals 1 The following cases have been consolidated at Number 03-4921 Civil Term: Numbers 03-4921 Civil Term, 04-920 Civil Term, 04-921 Civil Term, 04-922 Civil Term, 04-949 Civil Term, and 04-950 Civil Term. See Order ofCt., Apr. 16,2004. 2 See Pet. of Appeal from Determination of Real Estate Tax Assessment, filed Sept. 18, 2003 (hereinafter Shenandoah's Pet. of Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/South Middleton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter SpectrasitelUpper Frankford Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/Southampden Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5, 2004 (hereinafter SBA Towers/South Newton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5, 2004 (hereinafter SBA Towers/East Pennsboro Township Pet. for Appeal). 3 Shenandoah's Pet. of Appeal. 4 Answer, filed Oct. 2, 2003 (hereinafter Def.'s Answer to Shenandoah's Pet.). 5 Praecipe for Listing Case for Trial, filed Jan. 7,2004. 6 See Spectrasite/South Middleton Township Pet. for Appeal (listing Cumberland County, South Middleton Township and South Middleton School District as interested parties); SpectrasitelUpper Frankford Township Pet. for Appeal (listing Cumberland County, Upper Frankford Township, and Big Spring School District as interested parties); Spectrasite/Southampden Township Pet. for Appeal (listing Cumberland County, Southampden Township, and Shippensburg Area School District as interested parties). 4 as Defendant, as well as Cumberland County and the local townships and school districts in which the towers were located as interested parties.7 On April 13, 2004, Plaintiff Spectrasite Communications filed a motion to consolidate the six cases pending against Defendant.8 On April 16, 2004, pursuant to an agreement of counsel, the court ordered the cases consolidated, with filings to be made at Number 03-4921 Civil Term.9 A pre-hearing conference was held on June 9, 2004,10 and a two-day hearing was conducted on June 24, 2004, and June 28, 2004.11 For the reasons stated in this opinion, Defendant's treatment of Plaintiffs' telecommunication towers as realty for purposes of the county's tax on real property will be sustained. STATEMENT OF FACTS Plaintiffs are Shenandoah Mobile Company, Shenandoah Personal Communications Company, Spectrasite Communications, and SBA Towers, Inc.12 Shenandoah, Spectrasite, and SBA Towers are all telecommunication tower companies which own towers throughout Pennsylvania.13 Spectrasite and SBA Towers are also part of an industry group, along with Crown Communkations and American Tower Company, I 14 appea s. which is cooperating in the coordination of real estate tax assessment Defendant is the Cumberland County Board of Assessment Appeals.ls The 7 See SBA Towers/South Newton Township Pet. for Appeal (listing Cumberland County, South Newton Township, and Big Spring School District as interested parties); SBA Towers/East Pennsboro Township Pet. for Appeal (listing Cumberland County, East Pennsboro Township, and East Pennsboro School District as interested parties). 8 Mot. to Consolidate, filed Apr. 13,2004 (hereinafter Spectrasite's 'Mot. To Consolidate). 9 Order ofCt., Apr. 16,2004. 10 In Re: Pre-Hearing Conference, June 9, 2004. 11 Notes of Testimony 2, Hr'g., June 24, 2004, and June 28, 2004 (hereinafter N.T.-.J. 12N.T.I_2. 13 Stipulations of Pact '112, Pis.' Ex. 13, Hr'g., June 24, 2004, and June 28, 2004 (hereinafter Stipulations of Pact 'II-.J. 14 Stipulations of Pact '113. 5 Interested Parties of record are Cumberland County, South Middleton Township, Upper Frankford Township, Southampden Township, East Pennsboro Township, South Newton Township, South Middleton School District, Big Spring School District, Shippensburg Area School District, and East Pennsboro School District. I 6 For the sake of clarity, the word "tower" will be used when referencing the actual telecommunication towers, and the term "tower facility" will be used when referencing the tower, fence, concrete foundation and equipment building on each site. With respect to the types of towers, a monopole tower will be defim:d as a self-supporting, tubular tower which ranges 50-200 feet in height.17 A lattice tower will be defined as a self- supporting, three- or four-legged tower which is widest at the bottom and tapers as it rises.18 Lattice towers can reach heights of up to 1,000 feet.19 Finally, it should be noted that Plaintiffs' lease the underlying land on which their tower facilities are located.20 The assessments at issue in these cases were made only on Plaintiffs' tower facilities; assessments on the leased land were separately issued to the landowners.21 These cases involve six telecommunication towers located in Cumberland County (identified as Towers "A_F"}.22 Tower "A," parcel number 25-25-0006-351 LL, is owned by Shenandoah Mobile Company.23 It is a 70-foot monopole tower located at 102 Market Street, New Cumberland Borough, Cumberland County, Pennsylvania.24 The lease for Tower "A's" facility commenced on August 23, 1999, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through 15 NT 1-2. 16 NT 1-2. 17 Stipulations ofFact~4. 18 Stipulations of Fact ~4. 19 Stipulations of Fact ~4. 20 Stipulations of Fact ~IO. 21 Stipulations ofFact~12. 22 Stipulations of Fact ~~5, 7. 23 Stipulations of Fact ~7. 24 Stipulations of Fact ~7. 6 four more five-year periods.25 The original assessment issued for the improvements at Tower "A's" facility specified an assessed value of $202,860.00, which was modified by the Board of Assessment Appeals to $95,000.00.26 Tower "B," parcel number 43-06-0031-012 LL, is owned by Spectrasite Communications.27 It is a ISO-foot lattice tower locatl:d at 200 Center Road, Upper Frankford Township, Cumberland County, Pennsylvania28 The lease for Tower "B's" facility commenced on June 3, 1998, and is a four-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods.29 The original assessment issued for the improvements at Tower "B' s" facility specified an assessed value of $217,560.00, which was modified by the Board of Assessment Appeals to $142,000.00.30 Tower "C," parcel number 39-12-0324-004 LL, is owned by Spectrasite Communications.3! It is a 180-foot lattice tower located at 44 Kline Road, Southampton Township, Cumberland County, Pennsylvania.32 The lease for Tower "C's" facility commenced on March 6, 1998, and is a five-year leas,e, which will automatically be renewed, unless terminated by the tower company, through five more five-year periods.33 The original assessment issued for the improvements at Tower "C's" facility specified an assessed value of $244,860.00, which was modified by the Board of Assessment Appeals to $136,530.00.34 25 Stipulations of Fact '11. 26 Stipulations of Fact '13. 2J Stipulations ofFact'7. 28 Stipulations ofFact'7. 29 Stipulations of Fact '11. 30 Stipulations of Fact '13. 31 Stipulations ofFact'7. 32 Stipulations of Fact '7. 33 Stipulations of Fact '11. 34 Stipulations of Fact '13. 7 Tower "D," parcel number 40-10-0632-016 LL, is owned by Spectrasite Communications.35 It is a 160-foot lattice tower located at 1500 Holly Pike, South Middleton Township, Cumberland County, Pennsylvania.36 The lease for Tower "D's" facility commenced on August 22, 1998, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods.3? The original assessment issued for the improvements at Tower "D's" facility specified an assessed value of $221,060.00, which was modified by the Board of Assessment Appeals to $136,530.00?8 Tower "E," parcel number 09-22-0533-001 LL, is owned by SBA Towers.39 It is a 120-foot monopole tower located at 4404 Industrial Park Road, East Pennsboro Township, Cumberland County, Pennsylvania.4o The lease for Tower "E's" facility commenced on January I, 2001, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods and one period of four years and eleven months.41 The original assessment issued for the improvements at Tower "E's" facility specified an assessed value of $244,860.00, which was modified by the Board of Assessment Appeals to $70,000.00.42 Tower "F," parcel number 41-11-0304-019 LL, is owned by SBA Towers.43 It is a 195-foot lattice tower located at 212 Hammond Road, South Newton Township, Cumberland County, Pennsylvania.44 The lease for Tower "F's" facility commenced on November 21,1997, and is a five-year lease, which will automatically be renewed, unless 35 Stipulations of Fact ~7. 36 Stipulations of Fact ~7. 37 Stipulations of Fact ~ll. 38 Stipulations ofFact~13. 39 Stipulations ofFact~7. 40 Stipulations of Fact ~7. 41 Stipulations of Fact ~ll. 42 Stipulations of Fact ~13. 43 Stipulations of Fact ~7. 44 Stipulations of Fact ~7. 8 terminated by the tower company, through four more five..year periods and one period of four years and eleven months.45 The original assessment issued for the improvements at Tower "F's" facility specified an assessed value of $244,860.00, which was modified by the Board of Assessment Appeals to $100,000.00.46 Cumberland County is a fourth class county.47 The predetermined assessment ratio for real estate in Cumberland County is 100 percent.48 The above assessment values which were determined by the Cumberland County Board of Assessment Appeals represent the fair market value of each of the tower facilities.49 The common level ratio, which is set at 95.4 percent for Cumberland County, is not implicated as a factor in these cases because it does not vary by more than 15 percent from the predetermined ratio.50 Much of the testimony at the hearing focused on the question of whether Plaintiffs' towers were, or were at least intended to be, permanent fixtures at the tower facilities. This testimony included explanations about the erection and disassembly of telecommunication towers, reasons for removing or replacing towers, and general trends in the tower industry pertaining to the erection and removal' of towers. The process of erecting a tower begins with the submission of bids.5! The bid forms are broken down by the tasks which need to be performed. 52 These tasks include, but are not limited to, foundation work, tower erection, electrical work, fencing, and landscaping. 53 After bids have been submitted and jobs awarded, preparation of the tower facility site begins, including erecting a fence, clearing the trees and vegetation, 45 Stipulations of Fact 'If I I. 46 Stipulations of Fact 'lf13. 47 See Act of Aug. 9,1955, P.L. 323, S21O, as amended 16 P.S. S210. 48 Stipulations ofFact'lf15. 49 Stipulations ofFact'lf15. 50 Stipulations of Fact 'If I 5. 51 NT. 146. " See PIs.' Ex. 3, Hr'g., June 24, 2004 and June 28, 2004 (hereinafter Pls.'lDef.'s Ex. _); Pis.' Ex. 5; PIs.' Ex. 6. 53 N.T. 145-48; Pis.' Ex. 3; PIs.' Ex. 5; PIs.' Ex. 6. 9 grading, stoning, and matting. 54 Sometimes it is also ne,cessary to have an access road constructed from the highway or roadway to the tower facility site.55 The first step in the actual erection of either a monopole or a lattice tower is the laying of the concrete mat and pier foundation.56 Leonard Greisz, a Director of Internal Controls Compliance with Shenandoah, and Patrick Doyle, an employee of Crown Castle, testified as to this procedure. 57 Their testimony was corroborated by Patrick O'Reilly, a Director of Field Operations for Spectrasit(:, and Andrew Getsy, a Field Operations Manager for SBA.58 First, engineers conduct a geotechnical analysis to determine whether they will be drilling in soft dirt, hard dirt, or bedrock.59 The softer or looser the ground is, the deeper the concrete foundation must be.60 After the needed depth of the foundation is determined, the ground is drilled, and rebar cages are placed in the ground.61 Bolts are then placed inside the rebar cages, and the cement is poured.62 Additionally, Mr. O'Reilly testified that instead of a mat and pier foundation, lattice towers may have a straight caisson under each leg of the tower.63 A straight caisson is simply an individual concrete foundation under each leg ofthe tower which is about eight feet in diameter, and anywhere from twenty to thirty feet deep.64 Otherwise, a straight caisson is created in the same manner as the mat and pier foundation.65 54 N.T. 146-47. 55 N.T. 147. 56 N.T. 140. 57 N.T. 27-28, 99. 58 N.T. 204-05, 221. 59 N.T. 48. 60 N.T. 48. 61 N.T. 140. 62 N.T. 140. 63N.T.213. 64N.T. 213. 65 See N.T. 213. 10 Mr. Greisz and Mr. Doyle next testified about the erection of towers. While the cement is curing, the next stage of erecting the tower proceeds.66 Usually workers will begin constructing the individual sections of the tower during this time.67 After the cement has cured, a crane lifts the first section of the tower over the bolts and onto the mat and pier foundation.68 A lock washer is then placed over the bolts, and, finally, a large nut is used to securely fasten the tower to its foundation.69 After the first segment of the tower has been securely fastened to its foundation, the remaining segments of the tower are moved into place by crane and attached to the previous segments of the tower until the entire tower has been erected.70 After the tower has been erected, lights will be attached to it and electricity will be run to it, making the tower ready to host antennas.71 During the hearing, Mr. Doyle also gave extensivt~ testimony on the disassembly process for telecommunication towers as he narratt:d a videotape showing the disassembly of a tower in West Virginia.72 The West Virginia tower was a 180-foot lattice tower which was composed of nine sections and over 100 parts.73 Before any disassembly could begin, the lights were taken off the tower, and the tower facility site was de-energized.74 Additionally, any antennas or co-axle: cables which would have been attached to the tower would also have had to have been taken down or disconnected before disassembly could begin.75 66 N.T. 140-41. 67 NT 140. 68 NT. 42,141. 69 N.T. 42,141-42. 70 See N.T. 42-43, 114; see also Def.'s Ex. 1. 71 See N.T. 147, 156-57. 72 NT 110, 114; PIs.' Ex. 35. 73 N.T. 114-15. 74 N.T. 156-57. 75 See NT. 157-58. 11 Once these preliminary matters had been addressl:d, riggers ascended the tower and securely attached the strapping from the crane to the top section of the tower. 76 The riggers then began unfastening the bolts which held the top section of the tower in place, and, once the section was loose, the crane lowered the section to the ground.77 The riggers then moved down to the next section of the tower, attached the crane's strapping, unfastened the bolts, and lowered the section to the ground.78 The tower sections were not disassembled before they were taken away from the site unless they were too large to transport.79 Once the sections became too large to transport, the sections were disassembled and the parts were categorized before being taken away.80 Eventually, the riggers unbolted the final section of the tower, which was the section attached to the concrete foundation.8l After the last section had been unbolted from the foundation and disassembled, the riggers cleaned up the site, the last of the tower pieces were taken away, and the tower disassembly was complete.82 The entire disassembly process for the West Virginia tower lasted about twelve hours.83 Mr. Doyle testified that the time period which was required to disassemble the West Virginia tower was longer than the time normally needed to disassemble a lattice tower because the access to the site was poor, and there was little room at the site for the cranes and trucks to move around.84 Additionally, Mr. Doyle testified that disassembling a monopole tower would be a much simpler process than disassembling a lattice tower.85 After the antennas and power cables have been removed, disassembling a monopole 76 NT. 116-17. "N.T.117-18. "N.T. 118-19. "N.T. 119. ,oN.T. 119. 81 N.T. 131. '2 N.T. 131,35. 8J See N.T. 126, 135. 84 N.T. 126-27. 85 N.T. 150-51,170-71. 12 tower requires loosening the foundation bolts, using a crane to pick the tower up and lay it on its side, and disassembling the tower segments once the tower has been laid on the ground. 86 Once a tower has been disassembled, only the cement foundation, equipment building, and fence are left at the site.87 These parts of the facility are not damaged during disassembly, and could be used if another tower were later erected at the site.88 In fact, the fencing and cement foundation are removed from the site only if their removal is a specified condition in the lease.89 The towers themselves are also reusable after disassembly.90 The only parts of the towers which must be replaced after disassembly are the bolts which hold the pieces and sections of the tower together.91 Additionally, any pieces of the tower which are damaged during disassembly also must be replaced before the tower can be reassembled.92 Otherwise, the towers can either be transported to a new site and erected, or put in a storage facility until they are needed for another site.93 During the hearing, the witnesses testified to a number of reasons that towers might be disassembled and moved to another location. The major reason cited for tower removal was a change in business circumstances.94 For example, if there were a population shift and a tower were no longer needed in one area, but instead needed in a more densely populated area, then the tower would be moved into the more densely 86N.T. 150-51, 170-71. 87 N.T. 55. 88 See N.T. 55, 144-45,207. The lack of any damage to parts of the tower facility during disassembly is evidenced by the tower industry's occasional "drop and swap" practic,~, in which one tower is taken down at a site, only to be replaced at the site by another-usually taller-tower. N.T. 144-45. 89 N.T. 55. 90 N.T. 139. 91 N.T. 138. 92N.T. 120, 156. 93 N.T. 120, 139. 94 N.T. 60-62, 196. 13 populated area.95 Additionally, there might be times when a tower would no longer be a sufficient height; therefore, the original tower would be disassembled and a taller tower would be erected in its place.96 This procedure is referre:d to in the industry as a "drop and swap.'097 Finally, sometimes a company will build a spec site, which is a tower facility that is built in anticipation that companies will eventually want to attach antennas to it.98 If the tower were to become financially unviable because companies did not attach antennas to it, or if zoning requirements mandated that the tower be taken down because of non-use, then the tower would have to be taken down.99 Notwithstanding the availability of technology to disassemble a tower, the process IS highly laborious, expensive, and demanding in terms of expertise, courage, and equipment. Furthermore, notwithstanding the theoretical reasons recounted above for taking down or moving towers, the practice in the telecommunication tower industry is that these towers are not being taken down or moved on a frequent basis. 100 Mr. Greisz testified that, during the almost ten years in which he has worked for Shenandoah, he could not remember a tower that was built where the lease was terminated and the tower was taken down.lol Mr. Doyle testified that, of the well over 400 towers which his company owns in Pennsylvania, his company is considering moving or taking down only 30 of the sites.102 Mr. 0 'Reilly testified that, of the 2,200 towers which Spectrasite owns in the northeastern United States, only ten have been or are in the process of being moved or swapped, none of which is located in "N.T.64. 96 N.T. 144. 97 N.T. 144-45. 98 N.T. 159. 99 N.T. 196-97. 100 See N.T. 27-28, 74,103,109-10,215,226. 101 N.T. 27-28, 74. 102 N.T. 103, 109-10. 14 Pennsylvania. 103 Mr. Getsy testified that, of the over 400 towers which SBA Towers owns in Pennsylvania, he was not aware of any being removed. 104 Finally, Plaintiffs called Brian Kostel, a senior tax accountant for Crown Castle. 105 Mr. Kostel testified that, according to an advisory letter issued by the Pennsylvania Department of Revenue, telecommunication towers which are bolted to their foundations, instead of being sunk into their foundations, are considered personal property, thus subjecting the rental space on the towers to sales tax. 106 DISCUSSION Statement of Law Assessability of Real Estate. Section 201 of the Fourth to Eighth Class County Assessment Law provides for the assessment of all real estate in the county: The following subjects and property shall as hereinafter provided be valued and assessed and subject to taxation for all county, borough, town, township, school, (except in cities), poor and county institution district purposes, at the annual rate, (a) All real estate to wit: Houses, house trailers and mobile homes permanently attached to land or connected with water, gas, electric or sewage facilities, buildings, lands, lots of ground :md ground rents, trailer parks and parking lots, mills and manufactories of all kinds, all office type construction of whatever kind, that portion of a steel, lead, aluminum or like melting and continuous casting structures which enclose, provide shelter or protection from the elements for the various machinery, tools, appliances, equipment, materials or products involved in the mill, mine manufactory or industrial process, and all other real estate not exempt by law from taxation. . . . Act of May 21, 1943, P.L. 571, ~201, as amended, 72 P.S. ~5453.201. Assessment of Chattels as Real Property for Real Estate Taxation. As a general proposition in real property law, there are three classifications for chattels that are used in connection with real estate: IOJ NT 215. 104 N.T. 226. 105 N.T. 230. 106N.T. 234-35; Pis.' Ex. 9. 15 First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, t:ven in the face of an expressed intention that they should be considered personalty . . .. Third, those which, although physically connected with the real estate, are so affixed as to be remov[able] without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of the annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable. Clayton v. Lienhard, 312 Pa. 433, 436-37,167 A. 321, 322 (1933) (citations omitted). The court in In Re Sheetz, Inc., 657 A.2d 1011 (Pa. Commw. Ct. 1995), elaborated on the third classification of chattels, setting out a test for determining whether a chattel has become a fixture of real property for purposes of real estate taxation. Id. at 1013. The considerations which must be taken into account when making this determination are "(1) the manner in which [the chattel] is physically attached or installed, (2) the extent to which it is essential to the permanent use of the building or other improvement, and (3) the intention of the parties who attached or installed it." Id. The intention of the parties is the most important consideration to examine, with the first two considerations acting as "objective manifestations that aid in determining the intention of the parties." Id. at 1014. Furthermore, permanence is not to be equated with perpetuity, but rather with the intention to "'remain where affixed until worn out, until the purpose to which the realty is devoted is accomplished or until the item is superseded by another item more suitable for the purpose.'" Id. (quoting Mich. Nat'l Bank v. City of Lansing, 293 N.W.2d 626, 627 (Mich. Ct. App. 1980)). In Sheetz, the Commonwealth Court held that canopies which cover gas pumps at gas stations are fixtures ofreal property, and hence are taxable as such similar facilities. Id. The Court held that the canopies were affixed to a poured concrete foundation by bolts, which were then covered by concrete. Id. Next, the court held that the canopies were essential to the permanent use of the gas pumps bec:ause stations with canopies had 16 . . a higher sales volume. Id. Additionally, the canopies essential nature was demonstrated through Sheetz's seeking variances of zoning requirements in a number of cases to allow for the erection of canopies at their stations. Id. These facts led the court to conclude that Sheetz intended the canopies to be a permanent fixture of its gas stations which would remain until they were worn out, or Sheetz no long(~r occupied the premises. Id. Finally, the Court of Common Pleas of Dauphin County, Bratton, J., has in a recent decision addressed the specific issue of real estate taxation of telecommunication towers. In holding that the tower was real property for purposes of real estate taxation, Judge Bratton noted that although the tower itself could h~ removed without injury to the tower, the concrete foundation to which the tower was attached could not be removed without causing injury to the real estate. See, e.g., Shenandoah Mobile Co. v. Dauphin County Bd. of Assessment Appeals, docketed at 2003 CV 3196 TX, Dauphin County, 2004. Application of Law to Facts In the court's view, Plaintiffs' telecommunication towers are properly classified as realty for purposes of Pennsylvania's real property taxation scheme. An analysis of the considerations set forth in Sheetz leads to this conclusion. First, the towers are firmly affixed to the ground, and, although their removal is not a practical impossibility, the process involves a high degree of expense, manpower, equipment, and skill. Second, the towers are essential to the use of the rest of the facility, which is clearly real estate. Third, and perhaps most important, the intent of the parties that the towers be features of the real estate as opposed to transient items of personalty is manifest in the extended terms of the leases and the practice of the industry, whereby dismantling of towers is almost exclusively a theoretical matter. ORDER OF COURT AND NOW, this 15th day of September, 2004, after careful consideration of the tax assessment appeals filed herein, following a hearing, and for the reasons stated in the accompanying opinion, it is ordered as follows: 17 . . With respect to parcel number 25-25-0006-351 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Shenandoah Mobile Company, situated in New Cumberland Borough, Cumberland County, Pennsylvania, is fixed at $95,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $95,000.00 as of January 1,2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 43-06-0031-012 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Upper Frankford Township, Cumberland County, Pennsylvania, is fixed at $142,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 1100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $142,000.00 as of January 1,2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 39-12-0324-004 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Southampton Township, Cumberland County, Pennsylvania, is fixed at $136,530.00. THE PERTINENT COMMON LEVEL RATIO ~Dr Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. 18 . . THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530.00 as of January 1,2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 40-10-0632-016 LL: THE MARKET VALUE as of January I, 2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in South Middleton Township, Cumberland County, Pennsylvania, is fixed at $136,530.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530.00 as of January 1,2004, for county and municipal taxes, and July 1,2004, for school real estate taxes. With respect to parcel number 09-22-0533-001 LL: THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by SBA Towers, Inc:., situated in East Pennsboro Township, Cumberland County, Pennsylvania, is fixed at $70,000.00. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $70,000.00 as of January I, 2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. With respect to parcel number 41-11-0304-019 LL: 19 . . . . THE MARKET VALUE as of January 1,2004 (and for succeeding years until revised), for the parcel owned by SBA Towers, Inc., situat,ed in South Newton Township, Cumberland County, Pennsylvania, is fixed at $100,000.001. THE PERTINENT COMMON LEVEL RATIO for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent. THERE BEING A DIFFERENCE of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $100,000.00 as of January I, 2004, for county and municipal taxes, and July I, 2004, for school real estate taxes. BY THE COURT, sf J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Carl C. Risch, Esq. 10 East High Street Carlisle, P A 17013 Attorney for Shenandoah Mobile Company and Shenandoah Personal Communications Company Dusty Elias Kirk, Esq. Sharon F. DiPaolo, Esq. Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219 Attorneys for Spectrasite Communications and SBA Towers, Inc. Mark A. Mateya, Esq. 407 North Front Street Box 11848 Harrisburg, P A 17108 Attorney for County Commissioners Association of Pennsylvania 20 . . Stephen D. Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Cumberland County Board of Assessment Appeals Philip H. Spare, Esq. 44 West Main Street P.O. Box318 Mechanicsburg, P A 17055 Attorney for Big Spring and South Middleton School Districts 21 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY et aI., CIVIL DIVISION Appellants, No. 03-4921 No. 04-920 No. 04-921 No. 04-922 No. 04-949 No. 04-950 (Consolidated at No. 03-4921) vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. APPELLANTS' NOTICE OF APPEAL ET AI.,. Filed on Behalf of Appellants Counsel of Record for These Parties: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Counsel for Spectrasite Communications and SBA Towers, Inc. and Carl C. Risch, Esquire PA I.D. No. 75901 Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, Pi\. 17013 (717) 243-3341 Counsel for Shenandoah Mobile Company and Shenandoah Personal Communications Company PI: #196466 vl (47L#Ol LDOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY et aI., ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION Appellants, No. 03-4921 No. 04-920 No. 04-921 No. 04-922 No. 04-949 No. 04-950 (Consolidated at No. 03-4921) vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. ET AL. NOTICE OF APPEAL hereby appeal to the Commonwealth Court of Pennsylvania from the Order entered in this matter Notice is hereby given that Spectrasite communications and SBA Towers, Inc., on the 15th day of September, 2004. This order has been entered in the docket as evidenced by the attached copy of the docket entry. All relevant transcripts concerning this appeal have been filed of record. There are no further transcripts to be requested. Respectfully submitted, ~ .~~ Dusty lai~Kirk PA J.D. 0.30702 Sharon F. DiPaolo PA J.D. No. 74520 PEPPER HAMILTON LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Counsel for Spectrasite Communications and SBA Towers, Inc. PT: #196466 vi (47L#Ol1.DOC) and Carl C. Risch PA l.D. No. 75901 MARTSON, DEARDORFF, WILLIAMS & OTTO Ten East High Street Carlisle. PA 17013 (717) 243-3341 Counsel for Shenandoah Mobile Company and Shenandoah Personal Communications Company PT: #196466 vI (47L#Ol LDGe) PYS511 Cumberland County prothonotary's Office Civil Case Print Page 1 2003-04921 SHENADOAH MOBILE CO ET AL (vs) Reference No. . : Case Type.....: APPEAL - ASSESSMENT Judgment......: .00 Judge ASsigned: OLER J WESLEY JR Disposed Desc. : ____________ Case Comments ------------- ***************************************************.,**************************** General Index Attorney Info SHENANDOAH MOBILE CO APPELLANT RISCH CARL C 124 SOUTH MAIN STREET EDINBURG VA 22824 SHENANDOAH PERSONAL APPELLANT RISCH CARL C COMMUNICATIONS COMPANY 124 SOUTH MAIN STREET EDINBURG VA 22824 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS CUMBERLAND COUNTY BOARD OF Filed........: Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 9/18/2003 9: 25 0/00/0000 0/00/0000 APPELLEE **************************************************.,***************************** * Date Entries * **************************************************"***************************** 4/13/2004 4/13/2004 _ _ _ _ _ _ _ _ _ _ _ _ _ FIRST ENTRY - - - - - - - - - - - - - - PETITION OF APPEAL FROM DETERMINATION OF REAL ESTATE TAX ASSESSMENT ------------------------------------------------------------------- ANSWER - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY CARL C RISCH ESQ ------------------------------------------------------------------- ORDER OF COURT _ DATED 1/9/04 - PRETRIAL CONFERENCE IS SCHEDULED FOR 3/29/04 1:30 PM IN cHAMBERS OF THE: UNDERSIGNED JUDGE - PRETRIAL MEMORANDA SHALL BE SUBMITTED BY COUNSEL AT LEAST 5 DAYS PRIOR TO THE PRETRIAL CONFERENCE - A NONJURY TRIAL IS SCHEDULED FOR 4/12/04 9:30 AM CR 1 - BY J WESLEY OLER JR J - COPIES MAILED 1/9/04 -------------------------------------'------------------------------ ORDER OF COURT 4/24/04 - UPON AGREEMENT OF COUNSEL THE PRETRIAL CONFERENCE PREVIOUSLy SCHEDULED FOR 3j129/04 IS RESCHEDULED TO 4/8/04 AT 11;30 IN CHAMBERS OF THE UNJERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA PRETRIA:~ MEMORANDA SHALL BE SUBMITTED BY COUNSEL IN ACCORDANCE WITH CCRP 212-4 AT LEAST 5 DAYS PRIOR TO THE PRETIAL CONFERENCE - BY THE COURT J WESLEY OLER JR J COPIES MAILED 3/24/04 ------------------------------------------------------------------- ORDER OF COURT _ DATED 3/24/04 - IN RE AGREEMENT OF COUNSEL THE PRETRIlliCONFERED PREVIOUSLY SCHEDULED FOR 4/8/04 IS RESCHEDULED TO 6/9 04 AT 2;30 PM IN CHAMBERS OF THE UNDERSIGNED JUDGE CUMBER D COUNTY COURTHOUSE CARLISLE- THZiNONJURY TRIAL P~V,OUSLY SCHEDULED IN THIS MATTER FOR 4 12/04 IS RESCHEDULED TO 6 24 04 ON 6/28/04 COMMENCING AT 9:30 AM CH DAY IN CR 1 C B RLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES MAILED -------------------------------------------------------------------- PETITION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY COMMISSIONERS ASSOCIATION OF J?A IN SUPPORT OF APPELLEE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS - BY MARK A MATEYA ESQ ------------------------------------------------------------------- ORDER _ DATED 4/12/04 - IN RE PETITION OF COUNTY COMMISSIONERS ASSOCIATION OF FA TO FILE AN AMICUS CURIAE BRIEF - IT IS HEREBY ORDERED AND DECRED THAT PETITION TO FILE AN AMICUS CURAE BRIEF ON BEHALF OF THE COUNTY COMMISSIONERS ASSOCIATION OF PA IS HEREBY GRANTED ------------------------------------------------------------------- MOTION TO CONTINUE BY DUSTY ELIAS KIRK ESQ FOR PLFF ------------------------------------------------------------------- MOTION TO CONSOLIDATE BY DUSTY ELIAS KIRK ESQ FOR PLFF -------------------------------------------------------------------- 9/18/2003 10/02/2003 1/07/2004 1/09/2004 3/24/2004 4/05/2004 4/05/2004 4/13/2004 PYS511 cumberland County prothonotary's Office Civil Case Print Page 2 ~003-04921 SHENADOAH MOBILE CO ET AL (vs) CUMBERLAND COUNTY BOARD OF Reference No..: Filed........: Case Type.....: APPEAL - ASSESSMENT Time... ......: Judgment......: .00 Execution Date Judge ASsigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. ____________ Case Comments _____________ Higher Crt 1.: Higher Crt 2.: 4/19/2004 ORDER OF COURT _ DATED 4/16/04 - INRE MOTION TO CONSOLIDATE FILED BY SPECTRASITE COMMUNICATIONS JOINTLY WITH SBA TOWERS INC NAD SHENANDOAH MOBILE COMPANY AND SHENANDOAH PERSONAL COMMUNICATIONS COMPANY IT IS HEREBY ORDERED AND ADJUDGED AND DECREED THAT THE MOTION TO CONSOLIDATE IS HEREBY GRANTED AND IT IS FURTHER ORDERED THAT THE PROTHONOTARY OF CUMBERLAND SHAI.L CONSOLIDATE THE ACTIONS DOCKETED AT 03-4921 _ 04-920 - 04-921 - 04-922 - 04-949 - 04-950 AT NUMBER 04-4921 _ BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- 4/20/2004 ORDER OF COURT _ DATED 4/19/04 - THE PREHEARING CONFERENCE IN THE ABOVE MATTERS IS SCHEDULEb FOR 6/9/04 ~r 2:30 PM IN CHAMBERS OF THE UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARtmLSE PA THE HEARING ON TAX ASSESSMENT APPEAL IS SCHEDULED FOR 6/24 04 NAD 6/28/04 COMMENCING AT 9:30 AM EACH DAY IN CR 1 CUMBER COUNTY COURTHOUSE ~ARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES MAILED 4/20/04 ------------------------------------------------------------------- ANSWER - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRE-HEARING CONFERENCE - BY THE COURT ~r WESLEY OLER JR J COPIES MAILED ---------------------------------------'---------------------------- 6/23/2004 SUPPLEMENTAL PETITIONF OR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY COMMISSIONERS ASSOCIATION OF PA IN SUPPORT OF APPELLE CUMBERLAND COUNTY BOARD OF ASS]~SSMENT APPEALS - BY MARK A MATEYA ESQ ------------------------------------------------------------------- 6/29/2004 ORDER OF COURT _ DATED 6/24/04 - IN RE NONJURY TRIAL - DATED 6/24/04 _ IN RE ASSESSMENT APPEALS FOLLOWING AN INITIAL DAY OF HEARLNG THE RECORD SHALL REMAIN OPEN AND IT IS NOTED THAT A SECOND FULL DAY OF HEARING IS SCHEDULED FOR 6/28/04 COMMENCING AT 9:30 AM- BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- 6/30/2004 ORDER _ DATED 6/30/04 - IN RE PETITION OF THE COUNTY COMMISSIONERS ASSOCIATION OF PA TO FILE AN AMICUS CtffiIAE BRIEF - IT IS HEREBY ORDERED AND DECREED THAT THE SUPPLEMENTAL PETITION TO FILE AN AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY COMMISIONERS ASSOCIATION OF PA IS HEREBY GRANTED - BY THE COURT J WESLEY OLER JR J COPIES MAILED -------------------------------------------------------------------- 7/21/2004 ORDER OF COURT _ DATED 6/28/04 - IN RE TAX ASSESSMENT APPEALS - THE RECORD IS DECLARED CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT _ BY THE COURT J WESLEY OLER JR J COPIES MAILED ", 9/18/2003 9:25 0/00/0000 0/00/0000 5/19/2004 6/10/2004 ------------------------------------------------------------------- 9/16/2004 TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ORIGINAL PAPER TRANS PLACED WITH NO 04-920 CIVIL ------------------------------------------------------------------- OPINION AND ORDER _ DATED 9/15/04 - IN RE TAX ASSESSMENT APPEALS - BY J WESLEY OLER JR J - COPLES MAILED 9/17/04 _ _ _ _ _ _ _ _ _ _ _ _ _ - LAST ENT~~ - - - - - - - - - - - - - - 8/31/2004 ************************************************"'******************************* * Escrow Information * * Fees & Debits Beq Bal pvmts/Ad'i End Bal * *****************************************~******;f******************************* APPEAL ZONING TAX ON APPEAL SETTLEMENT AUTOMATION FEE JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 10.00 10.00 .00 ------------------------ ------------ 55.50 55.50 .00 ******************************************************************************** * End of Case Information * ***********************************************"******************************** CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Notice of Appeal was served upon the following parties by first class mail, postage prepaid, on this ~ay of October, 2004: Stephen D. Tiley, Esquire Solicitor, cumberland County and Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Mark A. Mateya, Esquire P.O. Box 127 Boiling Springs, PA 17007 Philip H. Spare, Esquire Solicitor, Big Springs School District Solicitor, South Middleton School District Snelbaker, Brenneman & Spare, PC 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Taryn Dixon, Court Administrator Cumberland County Courthouse Court Administrator's Office One Courthouse Square Carlisle, PA 17013 PT: #196466 vI (47L#Ol LDOC) Robert L. Knupp, Esquire Knupp, Kodak & Imblum, P.C. 407 N. Front Street P.O. Box 11848 Harrisburg, PA 17108 The Honorable J. Wesley 01er Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Michele Eline, Official Court Reporter Cumberland County Courthouse Court Reporter's Office One Courthouse Square Carlisle,I'A 17013 ~~ 'i' P.lJA ~"Ji. (")-3 r~ 2. op g re ~~ ~ ~o ./Q V ~ ~ ..2 ~.'..~ 0 (b C"\ ~ s-<; ;; 2: r) r- D ~ (:~ ~-'; I=E "'T"I '1t-~ 6 -+i- ..... d, ~~ (::: ~ D 6\ i,; ~) ;.;~~ ~ (D'-J W ~ .r:- ::.~ 90 :g - ",..;; ............ ("tl ~ ;v - .....l.-. P 3 -+- a. ~ ~ SHENANDOAH MOBILE COMPANY and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASlTE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW . .', L.o5i1 .I '-" Ii' * * * * * * * * (', c: .f) V\l .., \ \~)Cl \o,UU7, ./ ~., .~; ", c.. v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRINGS : SCHOOL DISTRICT, Interested Parties SPECTRA SITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDENTOWNSHIP and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties SBA TOWERS, INC., Plaintiff * * * * * * * * v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO TOWNSHIP SCHOOL DISTRICT, Interested Parties * * * * SBA TOWERS, INC. Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP : and BIG SPRINGS SCHOOL DISTRICT, Interested Parties 03-4921 CIVIL TERM ORDER OF COURT AND NOW, this II th day of October, 2004, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellants are DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. ~arl C. Risch, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Shenandoah Mobile Company vOusty Elias Kirk, Esq. Sharon F. DiPaolo, Esq. Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2505 Attorneys for Spectrasite Communications ~tephen D. Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Cumberland County Board of Assessment Appeals BY THE COURT, ! ;> ~ ,~ ~o4 \0,(1} ^^ ~dward L. Schorpp, Esq. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Solicitor, Cumberland County ..P1lilip H. Spare, Esq. 44 West Main Street P.O. Box318 Mechanicsburg, PA 17055 Solicitor, South Middleton School District and Solicitor, Big Springs School District vRfchard P. Mislitsky, Esq. 1 West High Street P.O. Box 1290 Carlisle, PA 17013 Solicitor, South Middleton Township ~even Fishman, Esq. 95 Alexander Spring Road Carlisle, PA 17013 Solicitor, Upper Frankford Township ~ A. Weigle, Esq. 126 East King Street Shippensburg, P A 17257 Solicitor, Shippensburg Area School District \,Rrchard L. Webber, Jr., Esq. 126 East King Street Shippensburg, P A 17257 Solicitor, Southampden Township vMarcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Solicitor, South Newton Township vf50nna S. Weldon, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Solicitor, East Pennsboro School District .)oIenry F. Coyne, Esq. 3901 Market Street Camp Hill, PA 17011 Solicitor, East Pennsboro Township :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHENANDOAH MOBILE COMPANY et aI., CIVIL DIVISION Appellants, No. 03-4921 / No. 04-920 ;; No. 04-921./ No. 04-922:./ No. 04-949'; No. 04-950 ./ (Consolidated at No. 03-4921) vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL ET AL. Filed on Behalf of Appellants Counsel of Record for These Parties: Dusty Elias Kirk, Esquire P A J.D. No. 30702 Sharon F. DiPaolo, Esquire PA J.D. No. 74520 PEPPER HNvIIL TON LLP Firm J.D. No. 143 One Mellon Center, 50th Floor 500 Grant Str,eet Pittsburgh, P A 15219-2502 (412) 454-5000 Counsel for Spectrasite Communications and SEA Towers. Inc. and Carl C. Risch, Esquire PA J.D. No. 75901 Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 (717) 243-3341 Counsel for Shenandoah Mobile Company and Shenandoah Personal Communications Company PT:#198111 vI (48V30l1.DOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellee. ) CIVIL DIVISION ) ) No. 03-4921 ) No. 04-920 ) No. 04-921 ) No. 04-922 ) No. 04-949 ) No. 04-950 ) (Consolidat,ed at No. 03-4921) ) ) ) SHENANDOAH MOBILE COMPANY et aI., Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, ET AL. CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL 1. This Concise Statement of Matters Complained of on Appeal is filed purusent to the order of this Court dated October 11, 2004 and Rule 1925(b) ofthe Pennsylvania Rules of Appellate Procedure. 2. The matters complained of by appellants on appeal are as follows: a. the Court committed an error oflaw in ruling that telecommunication towers are classified as realty as opposed to personalty for real estate assessment purposes, pursuant to 72 P.S. S 5020-201; b. the Court committed an error of law in ruling that the telecommunication towers "although their removal is not a practical impossibility" are firmly affixed to the ground, given that the manner in how the towers are affixed to the ground is designed for removability; c. the Court committed an error oflaw in ruling that the telecommunication towers are essential to the use of the rest ofthe facility; PT:#198111 vl (48V301!.DOC) d. the Court committed an error oflaw in ruling that the intention of the parties at the time of annexation was for the telecommunication towers to become part of the realty; and e. the Court committed an error of law in ruling that telecommunication towers are classified as realty for the purpOSt:s of real estate assessment purposes, given that telecommunication towers are classified as personalty for purposes of sales and use tax, and where the determination ofthe classification ofthe towers for the respective taxes is made by applying the same legal test to the same towers using the same legal analysis. Respectfully submitted, Dated: October ;:)d-" 2004 ~~ ~~ -KvJv Dusty Eli~rk PA J.D. No. 30702 Sharon F. DiPaolo PA J.D. No. 74520 PEPPER HAMILTON LLP Firm J.D. No. 143 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Counsel for Spectrasite Communications and SBA Towers, Inc. and Carl C. Risch PA J.D. No. 75901 MARTS ON, DE.ARDORFF, WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Counsel for Shenandoah Mobile Company and Shenandoah Personal Communications Company -2- PT:#1981l1 vi (48V301!.DOC) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Concise Statement of Matters Complained of on Appeal was served upon the following parties by first class mail, postage prepaid, on this ~~llII'\iay of October, 2004: Stephen D. Tiley, Esquire Solicitor, Cumberland County and Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 Steven Fishman, Esquire Solicitor, Upper Frankford Township 95 Alexander Spring Road Carlisle, P A 17013 Richard P. Mislitsky, Esquire Solicitor, South Middleton Township 1 West High Street P.O. Box 1290 Carlisle, PA 17013 Richard L. Webber, Jr., Esquire Solicitor, Southampden Township Weigle & Associates 126 East King Street Shippensburg, P A 17257 Henry F. Coyne, Esquire Solicitor, East Pennsboro Township 3901 Market Street Camp Hill, PA 17011 Mark A. Mateya, Esquire P.O. Box 127 Boiling Springs, P A 17007 PT: #198111 vi (48V301!.DOC) Robert L. Knupp, Esquire Knupp, Kodak & Imblum, P.C. 407 N. Front Street P.O. Box 11848 Harrisburg, PA 17108 Philip H. Spare, Esquire Solicitor, Big Springs School District Solicitor, South Middleton School District Snelbaker, Brenneman & Spare, PC 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055 Jerry A. Weigle, Esquire Solicitor, Shippensburg Area School District Weigle & Associates 126 East King Street Shippensburg, P A 17257 Donna S. Weldon, Esquire Solicitor, East Pennsboro School District Keefer Wood Allen & Rahal LLP 210 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Marcus A. McKnight, III, Esquire Solicitor, South Newton Township 60 West Pomfret Street Carlisle, PA 17013 ~~3~~Wv '~ "" f.../; ;::-- , '"~ t.::) IN THE COURT OF COMMON PlLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shenandoah Mobile Company and Shenandoah Personal Communications Company, CIVIL DIVISION Appellant, No. 03-4921 No. 04-920 No. 04-921 No. 04-922 No. 04-949 No. 04-950 v. Cumberland County Board of Assessment Appeals, (Consolidated at No. 03-4921) ~ Appellee. Appeal of: Spectrasite Communications and SBA Towers, Inc. SUPPLEMENT TO CONCISE STATE~MENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW, come Appellants Spectrasite Communications and SBA Towers, Inc., by and through their undersigned counsel, and hereby supplement their Concise Statement of Matters Complained of on Appeal, to include the following additional issue: f. In this case of first impression, the Court erroneously refused to consider Appellants' evidence and arguments regarding other states' classification oftelecommunications towers, under substantially similar legal standards to those employed by the Commonwealth of Pennsylvania, as personalty rather than realty, while at the same time permitting appellees and amicus curiae in support of appellees' position to submit countelvailing evidence and arguments on that issue. Respectfully Submitted, Dated: November~, 2004 Pepper Hamilton LLP By: ~~~~tik- Dusty Ell rk, EsqUIre Pa. I.D. No. 30702 Sharon F. DiPaolo, Esquire Pa. I.D. No. 74520 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 Counsel for Spectrasite Communications and SBA Towers, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the foregoing Supplement to Concise Statement of Matters Complained of on Appeal: Service bv first class mail addressed as follows: Carl C. Risch, Esquire Martson, Deardorff, Williams & Otto 10 E. High Street Carlisle, P A 17013 Counsel for Shenandoah Mobile Company Mark A. Mateya, Esquire P.O. Box 127 Boiling Springs, P A 17007 Counsel for County Commissioners Association of Pennsylvania Robert L. Knupp, Esquire Knupp, Kodak & Imblum, P.c. 407 North Front Street Harrisburg, PAl 71 08 Counsel for Shenandoah Personal Communications Company Stephen Douglas Tiley, Esquinl Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 Solicitor for Cumberland County Board of Assessment Appeals and Solicitor for Cumberland County Philip Haring Spare, Esquire Snelbaker, Brenneman & Spare, P.c. 44 W. Main Street Mechanicsburg, PA 17055 Counsel for Big Spring and South Middleton School Districts Dated: November t/, 2004 ~. v? Q.& t ~ '~': ,I '"..:i, .. o (.~..... " -.',.. ......'. ---I -:;: '-1:) /"o..j C:-<~:'J <:":':,) ..::;- C, >Of) :~J ill ::._; r-- ~'i_;FJ t~'~; (:J .) :.f..:! tji'r; ;-.:.... \-:.) ""l4:.~: , C,r~ ":i~ ........ C':l SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRlCT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. * * * * * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 03-4921 CIVIL TERM / IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LA W NO. 04-920 CIVIL TERM V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :. !;; ,.'-..!-" 1 '~....' ~ ......,.....i / ..r ~' '...,/ /\'j " ' ~ '_J .---" , 1: :J). - ~ '--'" "..... i.j s. ,\~<l trr~7 ....... _,..l l"''''~ . :._\ :'0;11 1.'--] -~..' _. ,.. -- CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRING SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP, and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties SBA TOWERS, INC., Plaintiff v. CUMBERLAND COUNTY * * * * * * * * CIVIL ACTION-LAW NO. 04-921 CIVIL TERM v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-922 CIVIL TERM I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP, : and BIG SPRING SCHOOL DISTRICT, Interested Parties NO. 04-949 CIVIL TERM l * * * * SBA TOWERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties NO. 04-950 CIVIL TERM" IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, J., December 16,2004. In these six cases, Plaintiffs appealed Defendant's real estate tax assessments of Plaintiffs' telecommunication tower facilities. I At issue on the appeals was the correctness of Defendant's underlying classification of Plaintiffs' telecommunication towers as realty as opposed to personalty for real estate tax purposes? A two-day hearing was conducted on this issue on June 24, 2004, and June 28, 2004.3 On September 15, 2004, this court issued an order, accompanied by an opinion, classifying Plaintiffs' telecommunication towers as realty and upholding the Defendant's assessments of Plaintiffs' telecommunication tower facilities.4 Plaintiffs have filed an appeal to the Pennsylvania Superior Court from the September 15,2004, order.5 Plaintiffs have expressed the issues being pursued on appeal as follows: a. [T]he Court committed an error of law in ruling that telecommunication towers are classified as realty as opposed to personalty for real estate assessment purposes, pursuant to 72 P.S. ~ 5020-201; b. the Court committed an error of law in ruling that the telecommunication towers "although their removal is not a practical 1 The following cases have been consolidated at Number 03-4921 Civil Term: Numbers 03-4921 Civil Term, 04-920 Civil Term, 04-921 Civil Term, 04-922 Civil Term, 04-949 Civil Term, and 04-950 Civil Term. See Order ofCt., Apr. 16,2004. 2 See Pet. of Appeal from Determination of Real Estate Tax Assessment, filed Sept. 18,2003 (hereinafter Shenandoah's Pet. of Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/South Middleton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/Upper Frankford Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/Southampton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5, 2004 (hereinafter SBA Towers/South Newton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5, 2004 (hereinafter SBA Towers/East Pennsboro Township Pet. for Appeal). 3 Notes of Testimony 2, Hr'g., June 24, 2004, and June 28,2004 (hereinafter N.T.->. 4 Shenandoah Mobile CO. V. Cumberland County Bd. of Assessment Appeals, Civ. No. 03-4921, (CoP. Cumberland County, Sept. 15,2004). 5 Concise Statement of Matters Complained of on Appeal, filed Oct. 25, 2004; Supplement to Concise Statement of Matters Complained of on Appeal, filed Nov. 8,2004. 2 impossibility" are firmly affixed to the ground, given that the manner in how the towers are affixed to the ground is designed for removability; c. the Court committed an error of law in ruling that the telecommunication towers are essential to the use of the rest of the facility; d. the Court committed an error of law in ruling that the intention of the parties at the time of annexation was for the telecommunication towers to become part of the realty; and e. the Court committed an error of law in ruling that telecommunication towers are classified as realty for the purposes of real estate assessment purposes, given that telecommunication towers are classified as personalty for purposes of sales and use tax, and where the determination of the classification of the towers for the respective taxes is made by applyinf the same legal test to the same towers using the same legal analysis. f. In this case of first impression, the Court erroneously refused to consider Appellants' evidence and arguments regarding other states' classification of telecommunications towers, under substantially similar legal standards to those employed by the Commonwealth of Pennsylvania, as personalty rather than realty, while at the same time permitting appellees and amicus curiae in support of appellees' position to submit countervailing evidence and arguments on that issue.7 The basic rationale for the court's order classifying Plaintiffs' telecommunication towers as real property for purposes of Pennsylvania's real estate property tax was expressed in the court's opinion which accompanied the order, dated September 15, 2004. The present opinion, written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), is intended (a) to elaborate briefly upon the purported import of the position of the Pennsylvania Department of Revenue on sales and use taxes in relation to telecommunication towers and (b) to address the evidentiary issue raised in Plaintiffs' statement of matters complained of on appeal. 6 Concise Statement of Matters Complained of on Appeal, filed Oct. 25, 2004. 7 Supplement to Concise Statement of Matters Complained of on Appeal, filed Nov. 8, 2004. 3 STATEMENT OF FACTS Plaintiffs are Shenandoah Mobile Company, Shenandoah Personal Communications Company, Spectrasite Communications, and SBA Towers, Inc.8 Shenandoah, Spectrasite, and SBA Towers are all telecommunication tower companies which own towers throughout Pennsylvania.9 Spectrasite and SBA Towers are also part of an industry group, along with Crown Communications and American Tower Company, which is cooperating in the coordination of real estate tax assessment appeals.1O Defendant is the Cumberland County Board of Assessment Appeals. I I The Interested Parties of record are Cumberland County, South Middleton Township, Upper Frankford Township, Southampton Township, East Pennsboro Township, South Newton Township, South Middleton School District, Big Spring School District, Shippensburg Area School District, and East Pennsboro School District.12 During the hearing, Plaintiffs called Brian Kostel, a senior tax accountant for a company called Crown Castle USA, who presented himself as knowledgeable in the area of Pennsylvania sales and use taxes in connection with telecommunication towers. 13 Through Mr. Kostel, Plaintiffs introduced copies of four letters to taxpayers or their representatives from the Pennsylvania Department of Revenue (none of which was binding upon any of Plaintiffs in the present caseI4), regarding sales and use taxation. 15 Plaintiffs' Exhibit 7 was a 1997 letter addressing the question of "[w]hether the taxpayer's construction of a communications tower, as well as the installation and repair of antennas and transmission lines located on said tower, are subject to Pennsylvania 8 NoT. 1-2. 9 Stipulations of Fact ~2, PIs.' Ex. 13, Hr'g., June 24, 2004, and June 28, 2004 (hereinafter Stipulations of Fact ~.-J. 10 Stipulations of Fact ~3. II NoT. 1-2. 12 N.T. 1-2. 13 NoT. 230-32. 14 NoT. 236-37. 15 N. T. 232; PIs.' Ex. 7-10. 4 sales tax?" Plaintiffs Exhibit 8 was a 2003 letter addressing the question of "[ w ]hether the Taxpayer's erection and installation of a communications tower, where the owner of the tower provides the component parts of the tower, and the Taxpayer's sale and installation of property on the tower where the Taxpayer supplies the property are subject to Pennsylvania sales tax?" Plaintiffs Exhibit 9 was a 2003 letter "respond[ing] to [a] June 17,2003, letter requesting an opinion as to the taxability of the lease of space on telecommunications towers." Plaintiffs Exhibit 10 was a 2004 letter addressing the issue of whether "the leasing of space on telecommunication towers [is] subject to sales and use tax." Although in certain of these letters the Department took the position that the applicability of sales and use taxes to the construction of a telecommunication tower and to the rental of space on such a tower was dependent upon whether the tower was bolted in place or embedded, it is quite clear from the most recent of the letters that the Department does not equate the real property/tangible personal property test for applicability of sales and use taxes with the test applied to a determination of the applicability of property taxes. This is demonstrated in the following excerpt from the letter: The resolution of this issue [of the applicability of sales and use taxes to rental of space on telecommunication towers] depends on whether the telecommunication towers constitute real estate or tangible personal property. The Department of Revenue has historically held that items attached by bolts remain tangible personal property after installation. The goal of the Department is to fashion understandable rules of taxation. The rule that if the telecommunication tower is bolted to a foundation [it] is tangible personal property and if the telecommunication tower is embedded in the ground it is a part of the real estate is a very easy rule for taxpayers to follow and for the Department to administer. Citing several local property tax cases in your letter [on behalf of the taxpayer J, you contend that the Department is ignoring "the intention of the parties" test in making the determination whether the telecommunication towers are personalty or realty. The intention of 5 the parties is not a factor in making this determination in the sales tax statute, regulations, or case law, nor should it be. 16 As was noted in the opinion which accompanied the order appealed from in this case, the intention of the parties is the most important factor to be considered in a determination of whether an item is personalty or realty for purposes of Pennsylvania's property tax on realty. It is also clear from the correspondence that any subjection to sales or use tax of leases of space on telecommunication towers to cellular telecommunications services has now been precluded by the legislature as of June 30, 2004.17 Also during the hearing, Plaintiffs proposed to present the telephonic testimony from Texas of Ted Clark, national director of property tax services in the communications industry for Ernst & Young.18 Mr. Clark had, apparently, prepared a "50-state survey" concerning the tax treatment of telecommunication towers throughout the country.19 The relevance of his proposed testimony was supported by Plaintiffs' counsel as follows: . . . Mr. [Clark] is the National Director of Property Tax Services for Ernst & Young, and his exclusive job is primarily representing telecommunication companies, and he is familiar with how all 50 states are treating telecommunication towers for real estate purposes. . . . [T]his would be just as an aid to the Court to understand how other jurisdictions are treating these in light of the fact that there is no appellate case law in Pennsylvania. So we are offering this testimony because it's certainly relevant as to how telecommunication towers are taxed, whether as real estate or as personal property. And then the Court could determine what weight to be given to it, and it's being offered as precedential. That is the extent of it.2o 16 Taxpayer's Ex. 10 (emphasis added). 17 Taxpayer's Ex. 10. 18 NoT. 245-46. 19 N.T. 246. 20 N.T. 241-42.r 6 Counsel for Defendant responded with the following objection, which the court found persuasive in part: . . . I have no objection to the Taxpayers including in their memorandum as they did, case law from throughout the country. I would have no objection to them citing statutes from throughout the country. I don't know-either this witness is going to testify as to the law, which is not something that the witness should be permitted to do, we can argue about the law. If not, is this witness just going to testify that they got a bill or they didn't get a bill from state A? Well, whether they got or didn't get a bill from state A, doesn't mean that's what the law was because maybe the law wasn't being implemented correctly in their favor or in our favor. I don't think how they got and why they got the bills is relevant. Therefore, you're left with legal positions, which I think should be left to lawyers and briefs.21 Counsel for several of the municipal taxpayers joined in this position, adding that "other states taxation schemes and their interpretations of their own rules and regulations are not at issue here today and should not be a part of the evidence.,,22 The court responded to the positions of the parties as follows: THE COURT: ... I'm impressed with [the] argument that what other states do really depends on how their statutes read, and I think we would be [here] for quite a while if he was going to go through each of the fifty states and talk about the statute and how it's applied. If you want to have him testify as to Pennsylvania's practice, I'll permit that. PLAINTIFFS' COUNSEL: Well, Your Honor, what he was going to do is to testify as to Pennsylvania's practice. He wasn't going to testify as to the law in all other states. He was going to testify through as to how Pennsylvania's practice may differ from the other states. THE COURT: Well, it really doesn't matter whether it differs [ from] or is the same as the other states, but I would permit him to testify as to the practice in Pennsylvania. PLAINTIFFS' COUNSEL: OkayY 21 N.T. 242-43.f22 NoT. 243. 7 The witness was, accordingly, permitted to testify with respect to his knowledge of Pennsylvania practice. However, he was not permitted to testify with reference to his 50- state survey.24 Finally, the court has not been able to find in the record any support for Plaintiffs' suggestion, in their supplemental statement of matters complained of on appeal, of disparate treatment of the parties by the court with respect to this issue, and certainly none was intended.25 DISCUSSION Classification of Plaintiffs' telecommunication towers as realty for purposes of Pennsylvania's real estate property tax. The court's basic rationale in classifying the telecommunication towers of Plaintiffs in the present case as real rather than personal property for purposes of Pennsylvania's real estate property tax was set forth in the opinion which accompanied this court's order dated September 15, 2004. In this regard, it may be reiterated that the intention of the parties is the most important criterion on the issue;26 the mere fact that property may be bolted in place, that it may be capable of being removed and transferred to another location, and that on occasion such an event may occur does not preclude the item's being considered realty for purposes of Pennsylvania's real property tax. See In re Sheetz, Inc. 657 A.2d 1011 (Pa. Commw. Ct. 1995) (canopy at self-service gasoline station). With specific reference to the import of Plaintiffs' evidence of the position of the Pennsylvania Department of Revenue on the subject of the application of sales and use 23 N.T. 243-44. 24 N.T. 246-48. 25 The indication in Plaintiffs' supplemental statement of matters complained of on appeal that the court granted some right to one side in this case which it did not grant to the other with respect to presentation of evidence or argument on the issue of the practice of other states relating to taxation of telecommunication towers is somewhat mysterious. The court does not control the contents of briefs, and in any event briefs are not part of the evidentiary record in Cumberland County. See Cumulus Broadcasting, Inc. v. Bond, 52 Cumberland L.J 108 (2003). Nor has the court been able to find an instance during the hearing when it permitted Defendant, the amicus curiae or any of the interested municipal parties to present evidence of a type which it refused to permit Plaintiffs to present. 26 In re Sheetz, Inc., 657 A.2d 1011 (Pa. Commw. Ct. 1995)(canopy at self-service gasoline station). 8 taxes to the construction of, and lease of space on, such towers, the court's earlier opinion may benefit from a brief amplication. First, it may be noted that, with respect to local property taxes, enabling legislation in Pennsylvania permits taxation of both real and personal property. Act of May 22, 1933, P.L. 853, ~201(a), as amended, 72 P.S. S5020-201(a) (2004 Supp.); Act of June 17, 1913, P.L. 507, as amended, 72 P.S. ~~4821 et seq. (2004 Supp.). Telecommunication towers are not among the enumerated types of personal property which may be subjected to a property tax,27 and in that sense the subjection of such property to the real estate property tax does not create an inconsistency of the proportions suggested by the taxpayers. Second, it may be observed (1) that the test employed by the Department of Revenue in classifying some telecommunication towers as personalty for purposes of sales and use taxes is quite different from that which the courts are expected to employ for purposes of property taxes, (2) that the opinions of the Department which were entered into evidence, while certainly of interest, were not determinative of the issue which was before the court, either in terms of binding precedent or identity of context, and (3) that appellate case law does not support the proposition that the Department's subjection of a certain item to sales and use tax precludes its subjection to real property tax. See, e.g., In re Sheetz, Inc., 657 A.2d 1011 (Pa. Commw. Ct. 1995) (canopy at self-service gasoline station). Admission of evidence. The admission or exclusion of evidence is within the sound discretion of the trial court. Odato v. Fullen, 2004 PA Super 123, 848 A.2d 964 (2004). A court may take judicial notice of the laws of other states. See, e.g., Commonwealth v. Seip, 385 Pa. 545, 124 A.2d 110 (1956). It is within the province of a trial court to exclude evidence ( a) which is not relevant,28 or (b) if its probative value is outweighed "by considerations of undue delay, waste of time, or needless presentation of cumulative evidence,,,29 or (c) is not consistent with the best evidence rule.30 27 See Act ofJune 17, 1913, P.L. 507, as amended, 72 P.S. ss4821 et seq. (2004 Supp.). 28 Pa. R.E. 402. 29 Pa. R.E. 403. 9 In the present case, with respect to the proposed testimony of a non-attorney as to how Pennsylvania's practice varied from that of 49 other states in the area of taxation of telecommunication towers, the testimony would, in the court's view, (a) not have been relevant to the proper interpretation of Pennsylvania's statute relating to taxation of real property, (b) have caused unnecessary delay in light of the court's ability to take judicial notice of the statutory schemes of other states, and (c) not have represented the best source of information as to the tax legislation of other states. However interesting the practices of other states might have been in this area, such testimony did not offer the guidance which a judicial opinion from a sister jurisdiction interpreting a statute highly similar to Pennsylvania's could provide and would, in the court's view, have significantly extended the duration of the hearing to no useful purpose. For the reasons expressed in the court's opinion dated September 15, 2004, as amplified in the present opinion, the court entered the order from which the taxpayers have appealed to the Pennsylvania Commonwealth Court. BY THE COURT, t~gqgl Carl C. Risch, Esq. Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, P A 17013 Attorney for Shenandoah Mobile Company /0 (~~ tel -- Il-oct Mark A. Mateya, Esq. 407 North Front Street Box 11848 ) Harrisburg, PA 17108 Attorney for County Commissioners Association of Pennsylvania 30 See Pa. R.E. 1002. 10 '.,. '''') c ("-,.I ", .\ ,. LI I , '. ~I._"': , -" \,;) ; : : , , C.,) - U " ! -- _I_ ~:"-:,) -. ,--- ~L l.~"l ..1 Cj c :__1 (.""......,. -.. Robert L. Knupp, Esq. Knupp, Kodak & Imblum, P.C. 407 North Front Street Harrisburg, P A 17108 Attorney for Shenandoah Personal Commu ications Company Stephen Douglas Tiley, Esq. ;f 5 South Hanover Street Carlisle, P A 17013 Attorney for Cumberland County Board of Assessment Appeals > /1/ 1 ' C~~L I J-- Il-of Philip Haring Spare, Esq. Snelbaker, Brenneman & Spare, P .C. 44 West Main Street Mechanicsburg, P A 17055 Attorney for Big Spring and South Miqdleton School Districts ! Sharon F. DiPaolo, Esq. Pepper Hamilton, LLP One Mellon Center, 50th Floor 500 Grant Street " Pittsburgh, P A 15219 \ Attorney for Spectrasite Communicationsl and SBA Towers, Inc. ) 11 SHENANDOAH MOBILE COMPANY, and SHENANDOAH PERSONAL COMMUNICATIONS COMPANY, Plaintiffs v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTH MIDDLETON TOWNSHIP, and SOUTH MIDDLETON SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. * * * * * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 03-4921 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LA W NO. 04-920 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA '; <, ),1,/.\.:('.......;r-' J:j /-, r (; (': ,~ . ,....:~J i';:_~C~ CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, UPPER FRANKFORD TOWNSHIP, and BIG SPRING SCHOOL DISTRICT, Interested Parties SPECTRASITE COMMUNICATIONS, Plaintiff v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CUMBERLAND COUNTY, SOUTHAMPDEN TOWNSHIP, and SHIPPENSBURG AREA SCHOOL DISTRICT, Interested Parties SBA TOWERS, INC., Plaintiff v. CUMBERLAND COUNTY * * * * * * * * CIVIL ACTION-LAW NO. 04-921 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-922 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, SOUTH NEWTON TOWNSHIP, : and BIG SPRING SCHOOL DISTRICT, Interested Parties NO. 04-949 CIVIL TERM * * * * SBA TOWERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Defendant v. CIVIL ACTION-LAW CUMBERLAND COUNTY, EAST PENNSBORO TOWNSHIP, and EAST PENNSBORO SCHOOL DISTRICT, Interested Parties NO. 04-950 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of December, 2004, the Opinion Pursuant to Pa. R.A.P. 1925 dated December 16, 2004, is amended by the substitution of the attached page for page 2. The purpose ofthe amendment is to reflect that thl~ appeal in these cases is to the Pennsylvania Commonwealth Court. BY THE COURT, Carl C. Risch, Esq. Martson, Deardorff, Williams & Otto '\ 10 East High Street \\ Carlisle, P A 17013 Attorney for Shenandoah Mobile Company ) Mark A. Mateya, Esq. 407 North Front Street / Box 11848 ' Harrisburg, PA 17108 / Attorney for County Commissioners AssJiation of Pennsylvania Robert L. Knupp, Esq. (C!~ ~ Knupp, Kodak & Imblum, P.C. \ ,) J 407 North Front Street ". , t' cJ.- 'd- 1 -0 I Harrisburg, PA 17108 / Attorney for Shenandoah Personal Commul)1cations Company / ?d4-. . d~ ('/- Wesley Oler4r., 1. Stephen Douglas Tiley, Esq. 5 South Hanover Street Carlisle, P A 17013 , Attorney for Cumberland County Boar~ of Assessment Appeals I /. 2 Philip Haring Spare, Esq. Sne1baker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, P A 17055 , Attorney for Big Spring and South Middleton School Districts \ i i \ Sharon F. DiPaolo, Esq. \, .>- Pepper Hamilton, LLP / One Mellon Center, 50th Floor \, 500 Grant Street \ Pittsburgh, PA 15219 \ Attorney for Spectrasite Communicati~s and SBA Towers, Inc. f ! / c~/~ Id- J-l-O~ l / / IN RE: OPINION PURSUANT TO P A" R.A.P. 1925 OLER, J., December 16,2004. In these six cases, Plaintiffs appealed Defendant's real estate tax assessments of Plaintiffs' telecommunication tower facilities. I At issue on the appeals was the correctness of Defendant's underlying classification of Plaintiffs' telecommunication towers as realty as opposed to personalty for real estate tax purposes? A two-day hearing was conducted on this issue on June 24, 2004, and June 28, 2004.3 On September 15, 2004, this court issued an order, accompanied by an opinion, classifying Plaintiffs' telecommunication towers as realty and upholding the Defendant's assessments of Plaintiffs' telecommunication tower facilities.4 Plaintiffs have filed an appeal to the Pennsylvania Commonwealth Court from the September 15, 2004, order.5 Plaintiff" have expressed the issues being pursued on appeal as follows: a. [T]he Court committed an error of law in ruling that telecommunication towers are classified as realty as opposed to pl~rsonalty for real estate assessment purposes, pursuant to 72 P.S. ~ 5020..201; b. the Court committed an error of law in ruling that the telecommunication towers "although their removal is not a practical I The following cases have been consolidated at Number 03-4921 Civil Term: Numbers 03-4921 Civil Term, 04-920 Civil Term, 04-921 Civil Term, 04-922 Civil Term, 04-949 Civil Term, and 04-950 Civil Term. See Order ofCt., Apr. 16,2004. 2 See Pet. of Appeal from Determination of Real Estate Tax Assessment, filed Sept. 18, 2003 (hereinafter Shenandoah's Pet. of Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/South Middleton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/Upper Frankford Township Pet. for Appeal); Pet. for Appeal, filed Mar. 4, 2004 (hereinafter Spectrasite/Southampton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5,2004 (hereinafter SBA Towers/South Newton Township Pet. for Appeal); Pet. for Appeal, filed Mar. 5, 2004 (hereinafter SBA Towers/East Pennsboro Township Pet. for Appeal). 3 Notes of Testimony 2, Hr'g., June 24,2004, and June 28, 2004 (herdnafter NoT. _). 4 Shenandoah Mobile Co. v. Cumberland County Bd. of Assessment Appeals, Civ. No. 03-4921, (CoP. Cumberland County, Sept. 15, 2004). 5 Concise Statement of Matters Complained of on Appeal, filed Oct. 25, 2004; Supplement to Concise Statement of Matters Complained of on Appeal, filed Nov. 8,2004. 2 Commonwealth Court of Pennsylvania Charles R. Hostutler Deputy Prothonotary/Chief Clerk August 12, 2005 Notice of Discontinuance of Action RE: Shenandoah Mobile et al. v. Cumberland Cnty Bd Appeal of: Type of Action: Notice of Appeal No. 2173 CD 2004 Cumberland County Court of Common Pleas Agency Docket Number: 03-4921 04-920 04-921 04-922 04-949 04-950 Irvis Office Buildin~. Room 624 Harrisbure. PA 17120 717,255.1650 CerlIfied from the ReconI IlJG 1 2 Z005 and 0n:Jer ExIt The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Party Name Jeffrey S. Blum, Esq. Joseph Anthony Cortese, Esq. Kristi Akins Davidson, Esq. Robert L. Knupp Spectrasite Communications Verizon Wireless Spectrasite Communications County Commissioners Association of Pennsylvania Spectrasite Communications Shenandoah Mobile Company Big Springs School District Cumberland County Board of Assessment Appeals Stanley Joel Parker, Esq. Carl C. Risch, Esq. Philip Haring Spare, Esq. Stephen Dougias Tiley, Esq. Party Type Appellant Amicus Curiae Appellant Amicus Curiae Appellant Appellant Appellee Appellee g ~ '""f) (J1 ~.7;: z_. (,{J..,,':., ~c "':c ~C~l >c :z: :< ~ = c.n ",. C G"'> ~ ~~ VI ~~ ~:d ~ ;-:::~ o ~ ;;:- :-< ;;:- Commonwealth Court of Pennsylvania Charles R. Hostutler Deputy Prothonotary ;Chicf Clerk August 12, 2005 Notice of Discontinuance of Action RE: Shenandoah Mobile et al. v. Cumberland Cnty Bd Appeal of: Type of Action: Notice of Appeal No. 2173 CD 2004 Cumberland County Court of Common Pleas /' Agency Docket Number: 03-4921 04-920 04-921 04-922 04-949 04-950 lrvis Office Buildine:. Room 624 Harrisbur.\!. FA 17120 717,255.1650 CerIified from the AeoonI HJ6 1 2 2005 and 0n:Ier ExIt The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Party Name Jeffrey S. Blum, Esq. Joseph Anthony Cortese, Esq. Kristi Akins Davidson, Esq. Robert L. Knupp Spectrasite Communications Verizon Wireless Spectrasite Communications County Commissioners Association of Pennsylvania Spectrasite Communications Shenandoah Mobile Company Big Springs School District Cumberland County Board of Assessment Appeals Stanley Joel Parker, Esq. Carl C. Risch, Esq. Philip Haring Spare, Esq. Stephen Douglas Tiley, Esq. Party Type Appellant Amicus Curiae Appellant Amicus Curiae Appellant Appellant Appellee Appellee g ,;:. ""OCG ~~! ~-, ,""- 'Z,c ~~~ ~l..' :E.("" f;:::C> :PC ~ ~ ~:D. -oh1 :0 \:( - QC> c..n ::?:;:\ ~ %~ - :::-\ .' ~ :;:- 0<. :;:- ~ ~ ~ G"'l