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Home My WebLink About08-6269 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, Appellant, CIVIL DIVISION NO. 0 6,Z- 6,? C.,-uf / vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, PETITION FOR APPEAL Appellee, VS. CUMBERLAND COUNTY, CARLISLE Filed on behalf of Appellant, BOROUGH and CARLISLE AREA SCHOOL Kimco Carlisle LP DISTRICT, Interested Parties. Counsel of Record for this Party: 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 50'' Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 #10171029 vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, Appellant, CIVIL DIVISION NO. m, 4 24q CA;,?j /z4-^, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISLE AREA SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL AND NOW, comes Kimco Carlisle LP ("Appellant"), by and through its attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Petition for Appeal, and in support thereof states as follows: 1. Kimco Carlisle LP is the record owner of commercial property situate at 235 South Spring Garden Street, Carlisle Borough, Cumberland County, Pennsylvania (the "Property"). The Property is identified as Parcel No. 03-22-0485-127 in the Cumberland County assessment records. 2. Cumberland County, Carlisle Borough and Carlisle Area School District are the taxing bodies interested in the taxable status of the Property. #10171029 vl 3. The Board of Assessment Appeals of Cumberland County, Pennsylvania (the "Board") is a Board created under the Act 254 of 1943, P.L. 571; 72 P.S. § 5453.101, et sue, and is authorized to assess and value real property for the purpose of taxation in counties of the Fourth to Eighth class and to hear appeals from said assessments by aggrieved parties. 4. As of September 1, 2008, the Property was described for the 2009 tax year on the official records of Cumberland County as follows: Land $546,000 Building $10,460,000 Total $11,006,000 5. On August 31, 2008, Appellant duly appealed the 2009 assessment to the Board for regress and reduction of said assessment. A copy of said Appeal Form is attached hereto as Exhibit A. 6. Following a hearing on October 7, 2008, the Board reduced the assessment for the 2009 tax year on the Property to Ten Million Three Hundred Eighty Eight Thousand Three Hundred Dollars ($10,388,300) by issuing a Decision Order ("Decision") dated October 8, 2008. A copy of the Decision is attached hereto as Exhibit B. 7. This Petition is herewith presented within thirty (30) days from the mailing date of the Decision. 8. Appellant is aggrieved by the Board's adjudication. Specifically, Appellant avers, on information and belief, that the assessment remains unfair, unreasonable and excessive. Appellant further avers as follows: a. The assessment is not equal or uniform with other properties similarly located in Cumberland County. -2- #10171029 vl b. There is a complete lack of uniformity in the assessment of real estate within Cumberland County which makes the Property assessment unjust, unreasonable and discriminatory. C. The fair market value upon which the assessment is based is in excess of the actual fair market value of the Property. d. The ratio of assessed value to market value is in excess of the ratio commonly prevailing in Cumberland County. e. Other such reasons as will be developed at the time of hearing. WHEREFORE, Appellant, being aggrieved by the assessment of the Board, files this Petition for Appeal and requests that this Honorable Court herein determine its appeal and decrease the assessment of the Property to such amount as may be right and proper. Respectfully submitted, DU Elias Kirk Pty I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: October C?l , 2008 -3- #10171029 v1 CUMBERLAND COUNTY ASSESSMENT APPEAL - COMMERCIAL / INDUSTRIAL Under the provisions of law any pswon' aggrieved by any assessment desiring to appeal shall fib a statement. in writing, with the Board of Assessment Appeals on or before September I at. Such statement shall designate the assessment appealed from and the address to which the Board shall mall notice of when and where to appear for a hearing. No appeal shalt be heard by the board unless appeftnt shall first •fe filed the appeal and required documents on or before September 1st, as set forth by law. (') includes taxing districts necord Owner(s) Name Kimco Carlisle LP Address c/o Dusty Elias Kirk, Esquire Pepper Hamilton LLP, 500 Grant Street, 50th Floor, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 235 Spring Garden Street Carlisle Number Assessors Tax Map Identification ff: 03-22-0485-127 o Assessment Appealed $11,006,00 Date Purchased 11111112005 Street Boro/Township Opinion of Market Value of this Property To be determined Purchase Price $13,100,000 Amount of Fire Insurance Not reflective of market value State reasons for filing this appeal: The fair market value upon which the assessment is based is in excess of the property's value. The assessment is not uniform with the assessments of other property In the County. The ratio of assessed value to market value is in excess of the ratio commonly prevailing in Cumberland County. Property Type: Check and Complete Proper Classification: Q Commercial: Use Retail shopping center Gross Square Ft.. 90,289 Owner Occupied N/A If Leased: Annual Rent To be provided. ? Office: Gross Square Ft. Owner Occupied If Leased: Annual Rent ? Industrial: Total Square Ft. Square Ft. Plant Area Tenant Occupied Lease Type: Net Gross ? Other: Use Square Ft. Rentable Area 90,289 Tennant Occupied X Date Constructed To be provided. Square Ft. Rentable Area Tennant Occupied Date Constructed Square Ft. Rentable Area Owner Occupied If Leased: Annual Rent Combination Date Constructed Gross Square Ft. Owner Occupied If Leased: Annual Rent Date Constructed Tenant Occupied "ATTACH LAST 3 YEARS INCOME A EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE FORM" Certificate of Appeal UMre hereby declare my/our intention to appeal from the assessed valuation of the property described above and do hereby verify that the statements made in this appeal are true and correct. I understand that false statements herein are made subject to the penalties of IS Pa. C.S. Section 4904, r to m fa tion to authorities. Y 40 Signed: Date: /A /OS Phone #: (Home) (412) 454-5000 Owneq" (Day/Office) (412) 454-5000 notices of these proceedings shall be mailed to: Name: Dusty Elias Kirk, Esquire offi onl ce use Fee Address: Pepper Hamilton LLP EXHIBIT Grant Street, 50th Floor, Pittsburgh, PA 15219 GROSS ANNUAL INCOMES FOR 3 PRIOR YEARS To be provided. Projected Income 100% occupied Including value of rent-free units Actual income received Vacancy Actual other income List by Type: Total Actual Income Received Gam Anmal Ewe we 20 20 - - $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ GROSS ANNUAL EXPENSES FOR 3 PRIOR YEARS 20 20 20 20 $ $ $ $ $ Items Indcluded In Rent Real Estate Taxes $ $ $ O Heating FIXED Insurance O Air. Cond. EXPENSES Land Rent O Electricity Other D TV Cable O Water Electricity $ $ $ O Carpet Telephone 0 Drapes Gas O Range Water S Sewer Q Refrig. Trash Removal O Dishwasher Heating O Garbage Manager's Salary Disposal OPEPJUIONAL Fees D Parking EXPENSES Legal & Aooounting O Pool Payroll Taxes ? Rec. Facility Gawp Insurance Advertising ? OTHER: Wages & Salaries O Supplies 0 Maint. & Repair O Replace. Reserve O Furniture Other _ * of Furnished Units: - - FurNlure in Urals TOTAL EXPENSES $ $ $ Owned - D Bldg. Omer O Renal Co. Please use additional pages for any other remarks relative to the property. 0 Other Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square Carlisle, PA 17013 - Board of Assessment Appeals Lloyd W. Bucher R. Fred Hefelfinger Sarah Hughes II 1,17) 240-6350 (717) 240-6354 (fax) BONNIE M. MAHONEY Chief Assessor STEPHEN D. TILEY Assistant Solicitor DECISION ORDER MAILING DATE: October 8, 2008 PARCEL NUMBER: 03-22-0485-127. KIMCO CARLISLE LP DUSTY ELIAS KIRK, ESQUIRE PEPPER HAMILTON LLP 500 GRANT STREET, 50TH PITTSBURGH PA 15219 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: 10/07/2008 DATE DECISION RENDERED: 10/08/2008 EFFECTIVE FOR TAX YEAR: 2009 DECISION RENDERED: [ ] Withdrawn By Applicant [ ] Abandoned For Failure To Appear [ ] Denied - No Change [ J 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: 11,006,000 NOT New Assessed Value: 10,388,300 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 November 7, 2008. EXHIBIT VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Kimco Carlisle LP, record owner of the property on appeal to make this verification of the foregoing Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unworn falsification to authorities. Executed this -?P?day of October, 2008. #10171029 vl CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Petition for Appeal has been served upon the following parties by first class mail, postage prepaid on this day of October 2008. Edward L. Schorpp, Esquire Solicitor, Cumberland County and Carlisle Borough Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 James D. Flower, Jr., Esquire Solicitor, Carlisle Area School District Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013-2922 #10171029 vl ??,) 'f .? ?' -c> ?.? _; ""?- --C ?"> ",,,?`. d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, Appellant, CIVIL DIVISION NO. 08-6269 vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, AMENDED PETITION FOR APPEAL Appellee, vs. CUMBERLAND COUNTY, CARLISLE Filed on behalf of Appellant, BOROUGH and CARLISLE AREA SCHOOL Kimco Carlisle LP DISTRICT, Interested Parties. Counsel of Record for this Party: 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 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 #10171029 Q IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, CIVIL DIVISION Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISLE AREA SCHOOL DISTRICT, Interested Parties. NO. 08-6269 AMENDED PETITION FOR APPEAL AND NOW, comes Kimco Carlisle LP ("Appellant"), by and through its attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Amended Petition for Appeal, and in support thereof states as follows: Kimco Carlisle LP is the record owner of commercial property situate at 235 South Spring Garden Street, Carlisle Borough, Cumberland County, Pennsylvania (the "Property"). The Property is identified as Parcel No. 03-22-0485-127 in the Cumberland County assessment records. 2. Cumberland County, Carlisle Borough and Carlisle Area School District are the taxing bodies interested in the taxable status of the Property. #10171029 Q 3. The Board of Assessment Appeals of Cumberland County, Pennsylvania (the "Board") is a Board created under the Act 254 of 1943, P.L. 571; 72 P.S. § 5453.101, et sec, and is authorized to assess and value real property for the purpose of taxation in counties of the Fourth to Eighth class and to hear appeals from said assessments by aggrieved parties. 4. As of September 1, 2008, the Property was described for the 2009 tax year on the official records of Cumberland County as follows: Land $546,000 Building $10,460,000 Total $11,006,000 5. On August 31, 2008, Appellant duly appealed the 2009 assessment to the Board for regress and reduction of said assessment. A copy of said Appeal Form is attached hereto as Exhibit A. 6. Following a hearing on October 7, 2008, the Board reduced the assessment for the 2009 tax year on the Property to Ten Million Three Hundred Eighty Eight Thousand Three Hundred Dollars ($10,388,300) by issuing a Decision Order ("Decision") dated October 8, 2008. A copy of the Decision is attached hereto as Exhibit B. 7. This Petition is herewith presented within thirty (30) days from the mailing date of the Decision. 8. Appellant is aggrieved by the Board's adjudication. Specifically, Appellant avers, on information and belief, that the assessment remains unfair, unreasonable and excessive. Appellant further avers as follows: a. The assessment is not equal or uniform with other properties similarly located in Cumberland County. -2- 410171029 Q b. There is a complete lack of uniformity in the assessment of real estate within Cumberland County which makes the Property assessment unjust, unreasonable and discriminatory. The fair market value upon which the assessment is based is in excess of the actual fair market value of the Property. d. The ratio of assessed value to market value is in excess of the ratio commonly prevailing in Cumberland County. e. Other such reasons as will be developed at the time of hearing. 9. Pursuant to Rules 208.3(a)(2), Appellant avers that this matter has not been ruled upon by a Judge, because this is an appeal from a decision of the Board. 10. Pursuant to Rule 208.3(a)(9), Appellant avers that because this petition is an appeal from a decision of the Board, it has not sought concurrence of any opposing party regarding this petition. WHEREFORE, Appellant, being aggrieved by the assessment of the Board, files this Amended Petition for Appeal and requests that this Honorable Court herein determine its appeal and decrease the assessment of the Property to such amount as may be right and proper. Respect lly submitted sty Elias Kirk PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: November, 2008 -3- #10171o29 Q VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Kimco Carlisle LP, record owner of the property on appeal to make this verification of the foregoing Amended Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unswom falsification to authorities. November Executed this day of PSOM, 2008. #10171029 Q CUMBERLAND COUNTY ASSESSMENT APPEAL- COMMERCIAL /INDUSTRIAL Under tits provisions of law any pw m' ag riered by any assessment dnWV to appeal shall M a statement, in wnifing, wilh the board of Assessment Appeals on or before September lot. Such statement shall deso" the assessment appealed horn and us address to which the board shah mail notice d when and where to appear for a hearing. No appeal shell be heard by the board unless appellant ekes first Ned the appeal and required documents on or before September 1sf, as set forth by low. (•) includes taxing districts neco d Owner(s) Name Kimco Carlisle LP Address c/o Dusty Elias Kirk, Esquire Pepper Hamilton LLP, 500 Grant Street, 50th Floor, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 235 Spring Garden Street Carlisle Number Street aoroff wnsho Assessors Tax Map Identification 8: 03.22-0485.127 Assessment Appealed $11-W6,000 Opinion of Market Value of this property To be deter irod Date Purchased 10131/2005 Purchase Price $13,100,000 Amount of Fire Insurance Np1 """""' a -*A, "'- State reasons for filing this appeal' The fair market value upon which the assessm r4 is based is in excess of the property's value. The assessment is not uniform with the assessments of other property in the County. The rata of assessed value to market value is in excess of the ratb cornmonly prevailing in Cumberland County. PropertyType: Check and Compiete Proper ClsssNication: Collin rdah Uee Retail shopping center dross Square Ft.. 90,259 Square FL Rentable Area 90,289 ? Office: Owner Occupied wA It Leased: Annual Rent To be provided, Tennant Occupied X ? Industrial: ? Other. Gross Square FL Square Ft. Rentable Area Owner Occupied Tennant Occupied If Leased: Annual Rent Date ConetWed Total Square Ft. Square Ft RentabN Area Square FL Plasm Area Owner Occupied Tenant Occupied 8 Leased: Annual Rent Lease Type: Net Gross Combination Date Constructed Use Gross Square Ft. Owner Occupied Tenant Occupied M Leased: Annual Rent Date Constnxftd "ATTACH LAST a YEARS INCOME E EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME S EXPENSE FORM" Cerdflcate of Appeal t/rre hereby declare my/our intention 10 appeal horn the assessed valuation of the property described above art do hereby verlty that the statements made in this appeal an true and corred. I understand that false statements hersht an mods subject to the penalties of 18 Pa. C.S. Section 4904, r to m to to suMwrllies, u / Signed: _ Date: O 1A 0 k78 Moe ow& Phone il: (Home) (412) 454-5000 Owner ? (Day/Office) (412) 454-5000 notices of these proceedings shelf be mailed to: Name: Dusty Elias Kirk, Esquire Office Use On Fee Address. Pepper Hamilton LLP 500 Grant Street, 50th Floor, Pittsburgh, PA 15219 EXHIBff Date Constructed To be M_" • GROSS ANNUAL INCOMES FOR 3 PRIOR YEARS To be provided. 2U _ 20 r 20 Projected Immne too%occupied Induding value of rout-free units S. $ S - - Actual Income received $ s s vacancy s s S Actual other income List by Type: s s $ $ s s s s s s s s s s s $ s s s s Total Actual Income Received $ $ $ GROSS ANNUAL EXPENSES FOR 3 PRIOR YEARS !tams Inatduded Grose Ammai_Expenees 20 20 20 In Rent Real Estate Tan $ $ $ O Hating Few Insuranco O Att. Cond. EX"B"EB Land Rent O Electd* Other O TV Cable O Water Electricity $ $ s O Carpet Telephone 0 Drapes Gas p Range Water & Sewer O 9911019. Trash Removal O Dishwasher Hem" O Gairbap Managerls Salary Disposal OPRRATIONAL Fees O Pau" Legal S Accounting O Pod Payroll TUN U Rec. Facility Group Insurance Adartlsing _ O OTHER: Wages S Salaries p Supplies p Maint. dr Repair Replace. Reserve O Furniture Other _ s of Furnished units: FurrWUn in Urrat TOTAL EXPENSES i $ = omw or. p Bldg. Owner Please use additional pages for any other remarks relative to the property. O Rental Co. D Other Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square Carlisle, PA 17013 Hoed of Assessment Appeds Lloyd W. Bucher R. Fred Hete"kVW Sarah Hughn I. x,'17) 240-6350 (717) 240-6354 (fax) BONNIE M. MAHONEY ~Assessor STEPHEN D. TILEY AsslsduN SoNcltor DECISION ORDER MAILING DATE: October 8, 2008 PARCEL NUMBER: 03-22-0485-127. KIMCO CARLISLE LP DUSTY ELIAS KIRK, ESQUIRE PEPPER HAMILTON LLP 500 GRANT STREET, 50TH PITTSBURGH PA 15219 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: 10107/2008 DATE DECISION RENDERED: 10/08/2008 EFFECTIVE FOR TAX YEAR: 2009 DECISION RENDERED: [ j Withdrawn By Applicant () Abandoned For Failure To Appear [ J Denied - No Change [ ] Approved Review Appraiser's Changes [XJ Revised Assessment Based on Hearing [ J Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: 11,006,000 NOT New Assessed Value: 10,388,300 APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common '!eas by filing a petition in the Prothonotary's office on or before November 7, 2008. EXHIBIT 'i-A-1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Amended Petition for Appe?al_ has been served upon the following parties by first class mail, postage prepaid on this ` day of November 2008. Edward L. Schorpp, Esquire Solicitor, Cumberland County and Carlisle Borough Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 James D. Flower, Jr., Esquire Solicitor, Carlisle Area School District Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013-2922 010171029 v2 NO. 08-6269- DISTRIBUTION LEGEND Edward L. Schorpp, Esquire Solicitor, Cumberland County and Carlisle Borough Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 James D. Flower, Jr., Esquire Solicitor, Carlisle Area School District Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013-2922 #10171029 Q -2 ,. ?, _:: a ?_:LL -_a KIMCO CARLISLE LP, Appellant V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee V. CUMBERLAND COUNTY, CARLISLE BOROUGH, and CARLISLE AREA SCHOOL DISTRICT, Interested Parties IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-6269 CIVIL TERM ORDER OF COURT AND NOW, this 13'h day of November, 2008, upon consideration of Appellant's Petition for Appeal and Amended Petition for Appeal, a hearing is scheduled for Thursday, February 19, 2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Dusty Elias Kirk, Esq. Aaron F. DiPaolo, Esq. PEPPER HAMILTON LLP One Mellon Center, 50'b Floor 500 Grant Street Pittsburgh, PA 15219-2502 Attorneys for Appellee BY THE COURT, Ovesley Oler, `k:, /ephen D. Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Cumberland County Board of Assessment Appeals /dward L. Schorpp, Esq. 35 South Thrush Drive Carlisle, PA 17013 Solicitor for Cumberland County and Borough of Carlisle /tames D. Flower, Jr., Esq. //111-0a26 West High Street Carlisle, PA 17013-2922 Attorney for Carlisle Area School District :rc Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle, Pennsylvania 17013 Fax: 717-243-6441 KIMCO CARLISLE LP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Appellant PENNSYLVANIA VS. CIVIL DIVISION CUMBERLAND COUNTY BOARD OF NO. 2008-6269 ASSESSMENT APPEALS, Appellee VS. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISE AREA SCHOOL DISTRICT, Interested Parties ANSWER AND NOW, comes the Cumberland County Board of Assessment Appeals, by and through Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters, and files this Answer to Appellant's Amended Petition for Appeal, of which the following is statement: 1- 4. Admitted. 5. Admitted in part, denied in part. The averments of this paragraph are admitted except that the Appellant filed its appeal to the Board on August 28, 2008, not August 31, 2008 as set forth in the Petition. It is noted that August 31, 2008 was a Sunday. 6. Admitted. By way of further explanation, the Board in fact found that the fair market value of the property was $13,100,000, the amount paid by the taxpayer for r the property in year 2005. As a result of the current common level ratio for Cumberland County of 79.3%, this Board decision resulted in an assessment of $10,388,300. 7. Admitted. (It is admitted that the original Petition was filed within 30 days of the mailing date of the Board's Decision.) 8. Denied. The averments of this paragraph and each of its sub-lettered paragraphs, set forth conclusions of law to which no responsive pleading is required. Strict proof at trial is demanded. Furthermore, sub-lettered paragraph "e" sets forth an averment of additional reasons to be developed at the time of Hearing, to which no responsive pleading can be made. 9 - 10. Admitted, if relevant to this proceeding. WHEREFORE, Appellee, Cumberland County Board of Assessment Appeals, prays Your Honorable Court for an Order denying Appellant's appeal or fixing the fair market value, and assessment, of the property, in such amount as the Court may seem just and proper. Dated: /I?v. Respectfully submitted, aQ . 7---'? By Stephen D. Tiley, Esquire Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 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: onnie M. Mahoney, Chief Ass ssor ////J 161 Stephen D. Tiley, Esquire Supreme Court No. 32318 Attorney for Appellant Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle. Pennsvlvania 17013 Fax : 717-243-6441 KIMCO CARLISLE LP, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, Appellant . PENNSYLVANIA VS. : CIVIL DIVISION CUMBERLAND COUNTY BOARD OF NO. ASSESSMENT APPEALS, Appellee VS. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISE AREA SCHOOL DISTRICT, Interested Parties 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: Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Attorney's for Appellant Pepper Hamilton, LLP 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Edward L. Schorpp, Esquire Solicitor for Cumberland County and Carlisle Borough Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 James D. Flower, Jr., Esquire Solicitor for Carlisle Area School District Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 Date:p -- S ephen D. Tiley, Esquire Assistant Cumb. Co. Solicitor 5 S. Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D.#32318 ? r? ? -, ? " ?? ?.? -- ra ?e ?`? c:? KIMCO CARLISLE LP, Appellant V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee V. CUMBERLAND COUNTY, CARLISLE BOROUGH, and CARLISLE AREA SCHOOL DISTRICT, Interested Parties IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 08-6269 CIVIL TERM ORDER OF COURT AND NOW, this 26th day of January, 2009, upon agreement of counsel, the hearing previously scheduled for February 19, 2009, is rescheduled to a prehearing conference scheduled for Wednesday, May 13, 2009, at 9:30 a.m., in chambers of the undersigned judge. BY THE COURT, ?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 Appellee J esley Ol r, r., J. d -1 . w .-' /Stephen D. Tiley, Esq. 5 South Hanover Street Carlisle, PA 17013 Attorney for Cumberland County /Board of Assessment Appeals ./ Edward L. Schorpp, Esq. 35 South Thrush Drive Carlisle, PA 17013 Solicitor for Cumberland County and Borough of Carlisle ,XJames D. Flower, Jr., Esq. 26 West High Street Carlisle, PA 17013-2922 Attorney for Carlisle Area School District :rc ?a ;)4 C,S rYt.a I f ? oq l KIMCO CARLISLE LP, Appellant v . CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISLE AREA SCHOOL DISTRICT, Interested Parties NO. 08-6269 CIVIL TERM IN RE: PRE-HEARING CONFERENCE A pre-hearing conference was held in the chambers of Judge Oler in the above-captioned case on Wednesday, May 13, 2009. Present on behalf of the Appellant was Sean P. Delaney, Esquire; present on behalf of the Cumberland County Board of Assessment Appeals and Cumberland County was Stephen D. Tiley, Esquire, and present on behalf of the Carlisle Area School District and the Borough of Carlisle was James D. Flower, Jr., Esquire. This is an assessment appeal in which the issue for disposition by the Court is the proper assessment for a certain strip mall in the Borough of Carlisle on Spring Garden Street as of August 28, 2008. The hearing in this case will be scheduled by separate Order of Court upon request of any counsel. The estimated duration of the hearing is 2 days. Counsel are in agreement that the primary statutory section to be consulted in this case is 72 P.S. Section 5453.704. In addition, Plaintiff's counsel has indicated that notwithstanding the indication in Item 4, Section 2 of Plaintiff's pretrial, a broad uniformity challenge is not being pursued in this case. Pretrial memorandum have been submitted by Plaintiff's counsel and counsel for the Carlisle Area School District and the Borough of Carlisle; counsel for the Cumberland County Board of Assessment Appeals and Cumberland County has joined in the pretrial memorandum of the Carlisle Area School District and Borough of Carlisle. With respect to settlement negotiations, counsel have indicated that there is a strong prospect of settlement in the case. In the event that settlement is reached, counsel are requested to notify the Court of that fact. an P. Delaney, Esquire 100 Market Street Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 For Plaintiff tephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 For Cumberland County Board of Assessment Appeals Ames D. Flower, Jr., Esquire 26 West High Street ` Carlisle, PA 17013-2922 V For Carlisle Area School District mae By the Court, I" .. rl- a YA`? L7 ?V 66]7 ?tJk 'f _,, i Jk 2010 JUN 25 Pty 1: 5O PEr,NSYLVAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, CIVIL DIVISION Appellant, NO. 08-6269 vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, SUBSTITUTION OF COUNSEL Appellee, vs. CUMBERLAND COUNTY, CARLISLE Filed on behalf of Appellant, BOROUGH and CARLISLE AREA SCHOOL Kimco Carlisle LP DISTRICT, Interested Parties. Counsel of Record for this Party: Dusty Elias Kirk, Esquire PA ID No. 30702 Sharon F. DiPaolo, Esquire PA ID No. 74520 Jeffrey G. Wilhelm, Esquire PA ID No. 201935 Sean P. Delaney, Esquire PA ID No. 85996 Reed Smith LLP Firm No. 234 Reed Smith Centre, 225 Fifth Avenue Pittsburgh, PA 15222-2716 Telephone: +1 412 288 3131 US-ACTIVE-1 03942450.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KIMCO CARLISLE LP, Appellant, CIVIL DIVISION NO. 08-6269 VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISLE AREA SCHOOL DISTRICT, Interested Parties. SUBSTITUTION OF COUNSEL Pursuant to Pa. R. Civ. P. 1012(b)(2), please withdraw the law firm of Pepper Hamilton LLP as counsel of record for Appellant and substitute the law firm of Reed Smith LLP as counsel of record for Appellant. US-ACTIVE-1 03942450.1 Counsel of record below hereby certify that this change is not intended to, nor will it, delay this proceeding to the best of our knowledge, information, and belief. DATED this a'+3 day of June, 2010. usty Elias Kirk PA ID No. 30702 Sharon F. DiPaolo PA ID No. 74520 Jeffrey G. Wilhelm PA ID No. 201935 Sean P. Delaney PA ID No. 85996 Reed Smith LLP Firm No. 234 Reed Smith Centre, 225 Fifth Avenue Pittsburgh, PA 15222-2716 Telephone:+1 412 288 3131 Counsel for Appellant, Kimco Carlisle LP US-ACTIVE-1 03942450.1 CERTIFICATE OF SERVICE I hereby certify that I caused to be served a true and correct copy of the foregoing Substitution of Counsel and all accompanying papers thisg1-3A-1a`y of June 2010 by mailing same via First Class U.S. Mail, postage prepaid, upon the following counsel of record: Edward L. Schorpp, Esquire Solicitor, Cumberland County and Carlisle Borough Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 James D. Flower, Jr., Esquire Solicitor, Carlisle Area School District Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013-2922 REED SMITH LLP By: orney for Appellant US-ACTIVE-1 03942450.1 Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle, Pennsylvania 17013 Fax: 717-243-6441 KIMCO CARLISLE LP, IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, Appellant : PENNSYLVANIA VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, CIVIL DIVISION NO. 2008-6269 7 _. - n, ,.z Appellee VS. CUMBERLAND COUNTY, CARLISLE BOROUGH and CARLISE AREA SCHOOL DISTRICT, Interested Parties STIPULATION AND JOINT MOTION FOR AGREED ORDER AND NOW, this 70- day of 2010, it is hereby Agreed and Stipulated by and between the Petitioner, Kimco Carlisle, LP, by its attorneys, Reed Smith, LLP; and Appellee, Cumberland County Board of Assessment Appeals, and Interested Party Cumberland County, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters; and Interested Party, Borough of Carlisle, by its solicitor, Edward L. Schorpp, Esquire; and Interested Party, Carlisle Area School District by its solicitor, James D. Flower, Jr., Esquire; as follows: 1. Appellant filed a "Petition for Appeal " on October 22, 2008 on November 7, 2008. Appellant filed an "Amended Petition for Appeal." On November 13, 2008 the Appellee, Cumberland County Board of Assessment Appeals, filed an Answer. By Order of Court dated November 13, 2008 the Court set a hearing date of February 19, 2009. By Order of Court dated January 26, 2009, that hearing was rescheduled to a pre-hearing conference scheduled for May 13, 2009. The Court entered a Pre-Hearing Conference Order on May 13, 2009 directing that the Stipulation & Joint Motion for Agreed Order- Kimco Carlisle, LLP Page 1 of 5 parties contact the Court to schedule a Hearing as settlement negotiations were not successful. The parties have now settled this case. 2. This assessment appeal relates to market value as of August 28, 2008, the date the appeal was originally filed before the Board of Assessment Appeals, and market value for the succeeding two years, to wit: August 28, 2009 and August 28, 2010. Market value established as of August 28, 2008 relates to taxes imposed in calendar year 2009. Market value established as of August 28, 2009, relates to taxes imposed in calendar year 2010. Market value established August 28, 2010, relates to the Countywide reassessment undertaken in year 2010, and real estate taxes imposed in calendar year 2011, and thereafter. The valuation date for the year 2010 Countywide reassessment was January 1, 2010. The parties stipulate that this appeal is effective for the year 2010 Countywide reassessment valuation, and that the value as of January 1, 2010 is the same as the value on August 28, 2010, and fixes the assessment of the property for the Countywide revaluation, beginning with tax year 2011. 3. The property which is the subject of this appeal is known as the "Carlisle Marketplace" situate at 230 South Spring Garden Street, in the Borough of Carlisle, Cumberland County, Pennsylvania. The property is a shopping center of approximately 92,578 square feet of building size. The anchor tenant is a Giant Foods grocery store. The property is further identified as Cumberland County Tax Parcel No. 03-22-0485-127. 4. The parties stipulate that the total fair market value of the property as of August 28, 2008 is $9,750,000; as of August 28, 2009 is $10,250,000, and as of August 28, 2010 and the Cumberland County reassessment year is $10,500,000. 5. (a) As a result of the year 2004 Cumberland Countywide reassessment, the predetermined ratio for tax year 2009 is 100% of year 2004 market value. The common level ratio published in June of 2008, applicable to the 2009 assessment, is 79.3%. Since the common level ratio varies by more than 15% from the predetermined ratio, the common level ratio is used to arrive at the assessment of the property for tax year 2009. The parties stipulate that the assessment of the property for tax year 2009 shall be $7,731,800, rounded to the nearest $100.00. Stipulation & Joint Motion for Agreed Order- Kimco Carlisle, LLP Page 2 of 5 1? (b) The Fourth to Eighth Class County Assessment Law makes subsequent years assessments automatically at issue so long as an appeal remains before the Court. As a result of the year 2004 Cumberland Countywide reassessment, the predetermined ratio for tax year 2010 is 100% of year 2004 market value. The common level ratio published in June of 2009 applicable to the year 2010 assessment is 79.1%. Since the common level ration varies by more than 15% from the predetermined ratio, the common level ratio that is used to arrive at the assessment of the property for tax year 2010. The parties stipulate that the assessment of the property for tax year 2010 shall be $8,107,800, rounded to the nearest $100.00. (c) The parties stipulate that the year 2010 Countywide reassessment value, effective for tax years beginning calendar year 2011, is at issue in the subject appeal. The predetermined ratio for the year 2010 Countywide reassessment value is 100% of year 2010 value. There is no common level ratio applicable to the year 2010 Countywide reassessment value. The parties stipulate that for the year 2010 Countywide reassessment, first applicable for taxes beginning in year 2011, the fair market value of the property is $10,500,000 and the assessment shall be $10,500,000. 6. The Cumberland County Assessment Office shall allocate the total assessment between land and improvements as provided by law and the procedures of the Cumberland County Assessment Office. 7. The assessment applicable to the 2009 tax year, to wit: $7,731,800, shall be implemented beginning with year 2009 County and municipal taxes, and ending with 2009/10 School real estate taxes. The assessment applicable to the 2010 tax year, to wit: $8,107,800, shall be implemented beginning with year 2010 County and Municipal taxes, and ending with 2010/11 school real estate taxes. The year 2010 Countywide reassessment value of $10,500,000, and the assessment in that amount, shall be implemented beginning with year 2011 County and municipal taxes, and beginning with 2011/12 school real estate taxes. The year 2010 Countywide reassessment value of $10,500,000 shall be effective for tax years beginning on and after January 1, 2011, and shall continue thereafter unless and until changed as otherwise provided by law. In the event of new construction, or demolition, effecting an assessment after the date hereof, but on Stipulation & Joint Motion for Agreed Order- Kimco Carlisle, LLP Page 3 of 5 s or before December 31, 2010, this Stipulation shall establish the value of the property before such new construction or demolition, and only the value of the new construction or demolition shall be added to, or deducted from, the assessment. The Cumberland County Assessment Office shall promptly notify the appropriate taxing bodies of the change in assessment, and instruct the taxing bodies to make appropriate refunds. The taxing bodies shall make appropriate refunds within ninety (90) days. 9. Each party to this appeal shall bear its own costs. 10. The Court is requested to enter the proposed Order attached hereto. 11. The undersigned Attorneys each hereby warrant to the other, and to the parties, and to the Court, that he/she has reviewed this Settlement Stipulation with his/her client or clients and that he/she has specifically been authorized to enter into this Settlement Stipulation by his/her client or clients. Dated: 121l ,1af( Respectfully submitted, KIMCO CARLISLE, LP BY (,WGOXWL. Dusty Elias?Mrk, Esquire PA ID No. 30702 Sharon F. DiPaolo, Esquire PA ID No. 74520 Jeffrey G. Wilhelm, Esquire PA ID No. 201935 Sean P. Delaney, Esquire PA ID No. 85996 REED SMITH, LLP Firm No. 234 Reed Smith Centre, 225 Fifth Avenue Pittsburgh, PA 15222-2716 Tel. No. 1-412-288-3131 Counsel for Appellant Stipulation & Joint Motion for Agreed Order- Kimco Carlisle, LLP Page 4 of 5 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS and COUNTY OF CUMBERLAND By Stephen D. iley, Esquire Assistant Cumb. Cty. Solicitor for Tax Matters Attorney for Cumberland County Board of Assessment Appeals Frey and Tiley 5 South Hanover Street Carlisle, PA 17013 Tel. No. (717) 243-5838 Supreme Court ID# 32318 BOROUGH OF CARLISLE i Edward L. Schorpp, Esquire Solicitor for Borough of Carlisle 35 S. Thrush Drive Carlisle, PA 17013 CARLISLE AREA SCHOOL DISTRICT Flo'er Law, LLC 10 West High Street Carlisle, PA 17013 Stipulation & Joint Motion for Agreed Order- Kimco Carlisle, LLP Page 5 of 5