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Home My WebLink About12-3049JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. , 2012 PENN TOWNSHIP, : /; , ,wq PENN TOWNSHIP BOARD: / l• OF SUPERVISORS, BIG SPRING SCHOOL DISTRICT, BIG SPRING SCHOOL,DISTRICT BOARD OFSCHOOL DIRECTORS, : DECLARATORY JUDGMENT ACTIOfi? M _- C Defendants: NOTICE TO DEFEND 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 to Defend are served, by entering a written appearance personally or by an 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 Plaintiff. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING ALAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.. CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 U,11 336 KT- 27si96 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. , 2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD: OF SUPERVISORS, BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, BIG SPRING : SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS, Defendants: COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff John McCrea brings this Complaint for Declaratory Judgment and alleges the following: STATUTORY AUTHORITY 1. Plaintiff brings this Complaint for Declaratory Judgment pursuant to the "Declaratory Judgment Act" 42 Pa.C.S. § 7531 et seq. and the Pennsylvania Rules of Civil Procedure, Rule 1600 et seq. PARTIES 2. Plaintiff is John McCrea, an adult individual and taxpayer residing in the Big Spring School District. Plaintiff's residence address is 221 Doubling Gap Road, Newville, Cumberland County, North Newton Township, Pennsylvania 17241. 3. Defendant Penn Township Board of Supervisors is the duly elected governing body of Defendant Penn Township, a municipal corporation and township of the second class, with offices located at 1301 Centerville Road, Newville, Pennsylvania 17241. 4. Defendant Big Spring School District Board of School Directors is the duly elected governing body of Defendant Big Spring School District, a local taxing authority having authority to levy real property taxes, with offices located at 45 Mt. Rock Road, Newville, Pennsylvania. FACTS 5. Defendant Penn Township is a political subdivision of the Commonwealth of Pennsylvania and a municipal governing body as that term is defined in the LERTA Act (42 Pa.C.S. § 4721 et seq.)... 6. On March 1, 2012, Defendant Penn Township enacted Ordinance No. 2012- 01 ("LERTA Ordinance") containing the caption "AN ORDINANCE OF PENN TOWNSHIP, CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA, TO AFFIX THE BOUNDARIES OF A DETERIORATED AREA IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED." A copy of the LERTA Ordinance is attached as Exhibit "A" and incorporated by reference. 7. Section One of the LERTA Ordinance states that the purpose of this Ordinance is to affix the boundaries of a deteriorated area located within the Township for the purpose of exempting from real estate taxes, for specified periods, improvements of industrial, commercial or other business property. 8. Section Two of the LERTA Ordinance designates as a deteriorated area a tract consisting of 116.8192 acres lying and being situate inside a roughly rectangular with the following perimeter: on the east Pa, Route 233 Centerville Road, on the south Pa. Route 174 Walnut Bottom Road, on the west Township Road No. 343 Farm Road, and on the north Interstate Route 81. A metes and bounds description of this tract is contained in Section two of the LERTA Ordinance. 9. The Unilever warehouse tract, at all times relevant to this proceeding, was open and empty farmland containing no improvements. An aerial photograph containing the tract, on which the perimeter of the Unilever warehouse tract is highlighted, taken from the files of the Cumberland County Mapping Department, is attached as Exhibit "B" and incorporated by reference. 10. Defendant Big Spring School District is a political subdivision of the Commonwealth of Pennsylvania and a local taxing authority as that term is defined in the LERTA Act, 42 Pa. C.S. § 4721 et seq. 2 11. On May 7, 2012, Defendant Big Spring School District adopted Resolution No. 20 ("LERTA Resolution") containing the caption "A RESOLUTION OF THE BIG SPRING SCHOOL DISTRICT TO EXEMPT FROM REAL PROPERTY TAXATION THE ASSESSED VALUATION OF IMPROVEMENTS TO DETERIORATED PROPERTIES AND THE ASSESSED VALUATION OF IMPROVEMENTS WITHIN PENN TOWNSHIP'S DETERIORATED AREAS IN THE AMOUNTS AND IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED." A copy of the LERTA Resolution is attached as Exhibit "B". 12. Section two of the LERTA Resolution exempts from school district real property taxes the improvements to be constructed in the deteriorated area designated by Penn Township in its LERTA Ordinance according to an exemption schedule established in Section three of the LERTA Resolution, upon application by the property owner of the specified improvements. 13. Plaintiff believes, and therefore avers, that the property owner of the Unilever warehouse tract either has applied, or shortly will apply, for real estate tax exemption under the terms of the LERTA Resolution. 14. Section three of the LERTA Resolution establishes an exemption schedule exempting sixty-five percent (65%) of the eligible assessment for improvements per year for five years, or until July 1, 2018, whichever earlier occurs. 15. The estimated total value of the real estate tax exemption given under the LERTA Resolution is in excess of $800,000 16. The real estate tax exemption given under the LERTA Resolution is expected to go into effect for the 2013-14 school tax year which begins on July 1, 2013. 17. Plaintiff will be adversely impacted by having the Big Spring School District lose more than $800,000 in real estate tax revenue over the five years exemption period, in that Plaintiff will be required to make up a percentage of the $800,000 in lost tax revenues by increased real property taxes on real estate owned by him... COUNT I: Violation of 42 Pa.C.S. & 4725 18. Plaintiff incorporates paragraphs 1 through 17 by reference as if fully set forth. 19.42 Pa.C.S. § 4725 defines a deteriorated area as that portion of a municipal governing body so designated after taking into account the criteria set forth in the "Urban Development Law" for the determination of "blighted areas" and the criteria set forth in the "Neighborhood Assistance Act" for the determination of "impoverished neighborhoods," and the following criteria: unsafe, unsanitary and overcrowded buildings; vacant, overgrown and unsightly lots of ground; a disproportionate number of tax delinquent properties, excessive land coverage, defective design or arrangement of buildings, street or lot layouts; economically and socially undesirable land uses. 20. Aside from the warehouse building currently under construction, there have been no buildings within the so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 21. The so-called "deteriorated area" designated by the LERTA Ordinance has never been a blighted area because of any unsafe, unsanitary, inadequate or overcrowded conditions of buildings thereon, or because of inadequate planning of the area, because of excessive coverage of buildings thereon, or because of the lack of oroper light and air and open space, or because of the defective design and arrangement of buildings thereon, or faulty street or lot layouts. These are some of the criteria specified in the Urban Redevelopment Law (35 Pa. C.S. §4725 (a)) to determine a blighted area subject to urban redevelopment. 22. There has never been any undesirable land use within so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 23. The so-called "deteriorated area" designated by the LERTA Ordinance has never been a blighted area because of any undesirable land use. This is 4 30. The so-called "deteriorated area" designated by the LERTA Ordinance haxs never satisfied or fulfilled the criteria of economically and socially undesirable land uses within it. These are additional criteria specified in the LERTA Act (72 Pa. C.S. §4725 (a)) to be applied by the municipal governing body in designating deteriorated areas of economically depressed communities within its borders. 31. Penn Township's LERTA Ordinance designates as a "deteriorated area" a portion of the township which does not satisfy or fulfill any of the criteria listed in 42 Pa.C.S. §4725 or listed in the Urban Redevelopment Law. 32. Penn Township's LERTA Ordinance violates the provisions of the LERTA Act set out in 42 Pa.C.S. §4725. 33. Penn Township's LERTA Ordinance is illegal and invalid. 34. Penn Township's LERTA Ordinance is null and void. 35. The legality and validity of Big Spring School District's LERTA Resolution, which attempts to exempt from real estate taxes property which was designated as a "deteriorated area" in the LERTA Ordinance depends upon the legality and validity of that Penn Town ship LERTA Ordinance. 36. Since the Penn Township LERTA Ordinance itself is illegal and invalid, null and void, the Big Spring School District LERTA Resolution is likewise illegal, invalid, null and void.. (balance of this page intentionally left blank) 6 WHEREFORE, Plaintiff John McCrea prays that this Court grant the following relief: (a) Declare Penn Township Ordinance No. 2012-01 illegal and invalid, null and void. (b) Declare Big Spring School District Resolution No. 20 illegal and invalid, null and void. (c) Grant such other relief as it may deem just and proper under the circumstances. Respectfully submitted, Ak? 114 o McCrea 2 1 Doubling Gap Road PO Box 341 Newville, PA 17241 Telephone: (717) 776-6656 VERIFICATION The facts set forth in the foregoing Complaint for Declaratory Judgment are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Dated: May `? . 2012 ' ^,.r 1 C ??l? t( Jo cCrea 7 May 01 ?C` -- =ax err Tow^ctip 7174$6?522 rage ORDINANCE NO. 2012-1 AN ORDINANCE OF PENN TOWNSHIP, CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA TO AFFIX THE BOUNDARIES OF A DETERIORATED AREA IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED WHEREAS, pursuant to Pennsylvania General Assembly Act No. 76 of 1977, as amended, 72 P.S. § 4722 et seq., the Local Economic Revitalization Tax Assistance Act, otherwise known as "LERTA', authorizes local taxing authorities to exempt from real estate taxation, for specified periods, improvements to certain deteriorated industrial, commercial and other business property; and WHEREAS, notice of the public hearing on March 1 % 2012, and a brief summary of this proposed Ordinance was published, on February 15* and 22d, 2012, in the Valley Times Star, a newspaper circulating in Penn Township; and WHEREAS, on March 1', 2012, the Board of Supervisors of Penn Township (the "Board») held a public hearing to inform and obtain public comment and determine the geographic boundaries of deteriorated areas as well as to study the feasibility of enacting a temporary property tax exemption program under LERTA for improvements to certain deteriorated property located within Penn Township; and WHEREAS, at the public hearing it was recommended that the boundaries of the designated deteriorated area consist of the plot consisting of 116.8192 acres more particularly bounded and described below in Section 2 of this Ordinance. Now, therefore: BE IT ORDAINED by the BOARD OF SUPERVISORS OF PENN TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA as follows: Section 1: Title; authority; purpose. This Ordinance shall be known and may be cited as the "Penn Township Local Economic Revitalization Tax Assistance Ordinance." This Ordinance is enacted under authority of the SLt 1127432x4 106990.00001 ,?Fv, g I r? tT -" A/' May of 20 7-"5 -"- =ax?enn -gw^stirp 71748E3522 cage 3 Local Economic Revitalization Tax Assistance Act, Act No. 1977, as amended, 72 P.S. § 4725 et seq., otherwise known as "LERTA."- The purpose of this Ordinance is to affix the boundaries of a deteriorated area located within the Township for the purpose of exempting from real estate taxation, for specified periods, improvements of industrial, commercial or other business property. Section 2: Deteriorated Area. The boundaries of the designated deteriorated area qualifying for temporary tax abatement from Penn Township under LERTA shall consist of the condominium plot consisting of 116.8192 acres on Unit AB of the Key Logistics Park Condominium, more particularly bounded and described as set forth below-. LAND DESCRIPTION Unit AB ALL THAT CERTAIN tract of parcel of land situate in Penn Township, Cumberland County, Pennsylvania, comprising Unit AB (Units A and B of the "Condominium Plat for Key Logistics Park Condominium," prepared by Herbert, Rowland, and Grubic, Inc., dated May 1, 2008, last revised October 28, 2011) and tract being more particularly bounded and described as follows: BEGINNING at a rebar at the northwest corner of an emergency vehicle access, said point being the following two (2) courses and distances from a rebar (found) at the northwest corner of lands of Melvin S. & Marion IL Sensenig (Tax Map Parcel 31-11-0298-016B); (1) North 24 degrees 55 minutes 33 seconds West, a distance of 941.28 feet to a rebar; (2) THENCE South 65 degrees 04 minutes 27 seconds West, a distance of 100.00 feet to the POINT OF BEGINNING; THENCE by lands of Daniel C. & Shay P. Farwell, South 69 degrees 41 minutes 36 seconds West, a distance of 1297.88 feet to a rebar at lands of Victor G. & Phyllis J. Barrick; THENCE by said lands North 20 degrees 18 minutes 24 seconds West, a distance of 1738.76 feet to a stone at lands of David L. & Mary C. Hurst; THENCE by said lands North 19 degrees 42 minutes 14 seconds West, a distance of 208.43 feet to a point; THENCE by Common Elements of Key Logistics Park the following seven (7) courses and distances: (1) North 69 degrees 42 minutes 04 seconds East, a distance of 1043.41 feet to a point; (2) THENCE North 69 degrees 13 minutes 58 seconds East, a distance of 529.66 feet to a point; (3) THENCE North 69 degrees 42 minutes 04 seconds East, a distance of 562.92 feet to a point; (4) THENCE by a line on a curve to the right SL 1 1 l Z7432v4 106890.00001 May 01 2012 8:15 NA ?-axPenn "owns)wp 7174858522 having a radius of 99.33 feet, on are length of 21.30 feet, and a chord bearing of North 75 degrees 50 minutes 38 seconds East, a distance of 21-26 feet to a point; (5) THENCE North 81 degrees 59 minutes 12 seconds East, a distance of 161.51 feet to a point; (6) THENCE North 08 degrees 00 minutes 48 seconds West, a distance of 220.29 feet to a point; (7) THENCE North 76 degrees 32 minutes 47 seconds East, a distance of 93.11 feet to a rebarr at lands of David E. & Lolonhi L. Gettle, THENCE by said lands the following three (3) courses and distances: (1) South 28 degrees 24 minutes 53 seconds East, a distance of 879.09 feet to a rebar; (2) THENCE South 32 degrees 48 minutes 21 seconds East, a distance of 1122.00 feet to a rebar; (3) THENCE South 24 degrees 48 minutes 21 seconds East, a distance of 29.63 feet to a rebar at lands of Melvin S. & Marion H. Sensenig; THENCE by said lands South 65 degrees 04 minutes 27 minutes 27 seconds West, a distance of 1532.68 feet tD the POINT OF BEGINNING. Containing 116.8192 Acres Being Unit AB of the Condominium Plat for Key Logistics Park Condominium dated May 1, 2008 and last revised October 28, 2011 and recorded January 12. 2012 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, Instrument No. 201201169. (the "Deteriorated Area"). Section 3: Effective Date. This Ordinance and Penn Township's designation of the Deteriorated Area as a Deteriorated Property as defined in 72 P.S. § 4724 et seq., of LERTA shall be take effect and be in force immediately upon enactment. The provisions of this Ordinance shall apply to all applications filed from and after the effective date hereof. Section 4: Repealer. All ordinances or parts of ordinances inconsistent with the provisions of this Ordinance are hereby repealed to the extent of such inconsistency. Section 5: Severabitity. If any section or claw of this Ordinance shall be adjudged invalid, such adjudication shall not affect the validity of the remaining provisions which shall be deemed severable therefrom. 5L1 1127432v4 106890.00001 May 01 2012 8,15 HP FaxPenn Towns'-ep 7174F53522 DagP F DULY ENACTED AND ORDAINED this 1" day of March, 2012, by the BOARD OF SUPERVISORS OF PENN TOWNSHIP, Pennsylvania, in lawful session duly assembled. PENN TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA VICKI KNEPP, Secretary GARY TIN, Chairman SHEAFFER, Vice -Chair®aa AMOS SEIDERS, Supervisor ?,'? ,,: ? , ?: ?? ? ?. 4 ?..3, BIG SPRING SCHOOL DISTRICT RESOLUTION NO. 20 A RESOLUTION OF THE BIG SPRING SCHOOL DISTRICT TO EXEMPT FROM REAL PROPERTY TAXATION THE ASSESSED VALUATION OF IMPROVEMENTS TO DETERIORATED PROPERTIES AND THE ASSESSED VALUATION OF NEW CONSTRUCTION WITHIN PENN TOWNSHIPS DESIGNATED DETERIORATED AREAS IN THE AMOUNTS AND IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED WHEREAS, the Board of School Directors of the Big Spring School District (the "Board") finds that the implementation of a temporary tax exemption in a designated area of Penn Township would contribute to the general welfare of the community by spurring economic activity and promoting improvement in the area's business and commercial property; and WHEREAS, the Board of Supervisors of Penn Township has (by Ordinance No. 2012-1 adopted March 1, 2012) established the boundaries of a Deteriorated Area. NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS by the Board that: Section 1: Definitions. As used in this Resolution, the following words and phrases shall have the meanings set forth below: (a) "Assessed Valuation." The value of a parcel of real property as established by the Board of Assessment Appeals of Cumberland County (the `Board of Assessment Appeals'), for the purpose of the assessment and levy of taxes upon real property and the improvements which may have been erected thereon. (b) "Deteriorated Property." Any industrial, commercial or other business property owned by an individual, association or corporation, and located in the Deteriorated Area set forth in Penn Township Ordinance No. 2012-1. (c) "Exemption" Defined in Section 2 of this Resolution. (d) "Improvement." Repair, construction or reconstruction, including alterations and additions, having the effect of rehabilitating a Deteriorated Property so that it becomes habitable or attains higher standards of safety, health, economic use or amenity, or is brought into compliance with laws, ordinances or regulations governing such standards. Ordinary upkeep and maintenance shall not be deemed an Improvement. (e) "Local Taxing Authority." Penn Township, Cumberland County or the Big Spring School District. (f) "School District." Big Spring School District. SL I 1129589v4106890.00001 {= ?C 1.11 R 1 `r ' r- ?/ Section 2: Exemption. Any property owner undertaking Improvements within a Deteriorated Area may apply for and receive from the School District an exemption from School District real property taxes due to the increased or additional assessed valuation attributable to those Improvements, in the amounts and in accordance with the limitations set forth in this Resolution ("Exemption„). The Exemption from School District real property taxes shall be specifically limited to the additional assessed valuation attributable to the actual costs of Improvements to Deteriorated Property. Appeals from the amount of increased assessed valuation attributable to the actual costs of Improvements of the property in the Deteriorated Property (as established by the County Board of Assessment) may be taken by the taxpayer or any Local Taxing Authority as provided by law. Nothing herein shall preclude a taxpayer or any Local Taxing Authority from appealing the Assessed Valuation of the Deteriorated Property or any increases in Assessed Valuation not attributable to Improvements in accordance with applicable law or ordinance. Section 3: Exemption Schedule. (a) The Exemption for the Deteriorated Area shall be limited to a period of five (5) years, beginning in the tax year of the Local Tax Authority first following the date on which the initial re-assessment due to Improvements on Deteriorated Property shall be assessed in accordance with Pennsylvania General Assembly Act No. 76 of 1977, as amended, 72 P.S. § 4727 et seq., the Local Economic Revitalization Tax Assistance Act, otherwise known as "I.ERTA." (b) The Exemption Schedule for the Deteriorated Area shall be as follows: 1. For the first five years immediately following the date upon which improvements constructed upon the Deteriorated Area shall have first resulted in increased assessment, sixty-five percent (65%) of the eligible assessment shall be exempted 2. After the fifth year the Exemption shall terminate. 3. In no event shall the Exemption Schedule extend beyond July 1, 2018. Section 4: Procedure for Obtaining Exemption. (a) At the time that a property owner secures a building permit for Improvements under this Resolution; the property owner desiring the temporary Exemption pursuant to this Resolution shall file a request in writing for Exemption on a form proscribed by the School District (the "Exemption Request"). The property owner shall file the form with the School District, and shall deliver a copy to the Cumberland County Board of Assessment Appeals. (b) The property owner must provide and certify on the Exemption Request the following information: 1. Name and address of property owner. SLI 1129589v4 1()f"A MI 2. County tax parcel number for the property. 3. The Assessed Valuation of the property prior to the initiation of any Improvements and without regard to any preferential assessment. 4. The date the building permit was issued for Improvement. (c) The Exemption Request shall be filed by the property owner with the School District and the Board of Assessment Appeals no later than ninety (90) days after the building permit `is issued. (d) Within 30 days after the date on which the Improvement has been completed (being the date which a Use and Occupancy permit for the Improvement is issued or the Improvement is otherwise put into use or service), the property owner shall notify the School District and the Board of Assessment Appeals in writing. The notice shall include the following: 1. Name and address of the property owner. 2. County tax parcel number for the property. 3. The date that the Improvement was completed (e) Appeals from the reassessment and the amounts eligible for Exemption may be taken by the property owner or any Local Taxing Authority as provided by applicable laws or ordinances. Sectkm S. Term. This Resolution shall become effective immediately following its adoption. The provisions of this Resolution shall apply to all applications filed from and after the effective date hereof. PRESENTED AND ADOPTED by the Board of School Directors of Big Spring School District in its public meeting this 7 th day of May . 2012. ATTEST: BOARD OF SCHOOL DIRECTORS BIG SPRING SCHOOL DISTRICT ? JC By.',-? 6??& Secretary Wilbur Wolf , Jr., President (SEAL) SL I 1129589v4106890.00001 i t 'j !2 KAY 30 Pf, I: :r PENNSYLVANIA JOHN MCC,'REA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. 3049, 2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD OF SUPERVISORS, BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, BIG SPRING SCHOOL , DISTRICT BOARD OF SCHOOL DIRECTORS, Defendants ACCEPTANCE OF SERVICE I hereby accept service of the Complaint for Declaratory Judgment on behalf of Defendant, Big Spring School District and certify that I am authorized to do so. Dated: May &, 2012 wa--4t' Philip . Spare, Esquire Stock and Leader, LLP Attorneys for Defendant Big Spring School District 221 W. Philadelphia St., Suite E600 York, PA 17401-2924 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. :NO. ' j b q q , 2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD: r. OF SUPERVISORS, BIG SPRING SCHOOL : DECLARATORY JUDGMEN T AC DISTRICT, BIG SPRING = ;- SCHOOL DISTRICT (BOARD OF SCHOOL ? -? DIRECTORS, Defendants: ' ACCEPTANCE OF SERVICE I hereby accept service of the Complaint for Declaratory Judgment on behalf of Defendants, Penn Township and Penn Township Board of Supervisors and certify that I am authorized to do so. ? ?.? -?, Dated: May s , 2012 Marcus ?k. McKnight, III, A aw Irwin & McKm? evs at Law Authorized Agent for Defendants, Penn Township and Penn Township Board of Supervisors 60 West Pomfret Street Carlisle, PA 17013 JOHN MCCREA, Plaintiff V. PENN TOWNSHIP, PENN TOWNSHIP BC OF SUPERVISORS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 3049-- 2012 IARD: BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION BIG SPRING DISTRICT r. , te SCHOOL DISTRICT ^ BOARD OF SCHOOL - ri Y ' DIRECTORS, c Defendants: ?-- , PRAECIPE FOR DISCONTINUANCE r „ TO THE PROTHONOTARY: Please mark the within Declaratory Judgment Action discontinued as to Defendant, Penn Township Board of Supervisors, and as to Defendant, Big Spring School District Board of School Directors. Attached to this Praecipe are the Consents to Discontinuance of Attorney Marcus A. McKnight, III, for Penn Township and Penn Township Board of Supervisors, and Attorney Philip H. Spare, Stock and Leader, for Big Spring School District. Also attached is a Certificate of Service of the Praecipe for Discontinuance. 11-2-012- V4--M tMcCrea Box 341 P Newville, PA 17241 Telephone 717.776.6656 A .1 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. 3049-- 2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD: OF SUPERVISORS, . BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, BIG SPRING : SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS, . Defendants: CONSENT TO DISCONTINUANCE The undersigned, being attorney for Defendant, Big Spring School District, in this Declaratory Judgment Action, consent to the Discontinuance, by Plaintiff John McCrea, from the case, of Defendants Penn Township Board of Supervisors and Big Spring School District Board of School Directors, Dated: MAi( '31, 2012 Philip H. Spare, Attorney at Law Stock and Leader, Attorneys at Law Attorney for Defendant, Big Spring School District 221 W. Philadelphia St. - Suite 600 York PA 17401-2994 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. 3049--2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD: OF SUPERVISORS, BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, BIG SPRING : SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS, Defendants: CONSENT TO DISCONTINUANCE The undersigned, being attorney for Defendants, Penn Township, and Penn Township Board of Supervisors, in this Declaratory Judgment Action, consents to the discontinuance, by Plaintiff John McCrea, from the case of Defendants, Penn Township Board of Supervisors, and Big Spring School District Board of School Directors. 4 '14 . Dated: ??2012 Marf . us?McKnight, III, ?orney At Law Irwin & McKnight, Attorneys at Law Attorney for Defendants, Penn Township and Penn Township Board of Supervisors 60 West Pomfret Street Carlisle, PA 17013 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. 3049-- 2012 PENN TOWNSHIP, PENN TOWNSHIP BOARD: OF SUPERVISORS, BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, BIG SPRING : SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS, Defendants: CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Praecipe for Discontinuance upon the following persons and in the manner specified next to their names and addresses: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 first class mail postage prepaid) For Penn Township and Penn Township Board of Supervisors Philip H. Spare, Esquire Stock and Leader 231 Philadelphia Street. Suite 600 York, PA 17401-2994 For Big Spring School District June 12,, 2012 (first class mail postage prepaid) mL - ?zrev"'?' J cCrea P ox 341 Newville, PA 17241 Telephone 717.776.6656 2011 JUL 24 AM 11: 16 CUMIERLAND CUUNTY PENNSYLY§ JOHN McCREA, E COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 3049-2012 PENN TOWNSHIP, BIG SPRING SCHOOL DECLARATORY JUDGMENT ACTION DISTRICT, Defendants CONSENT TO FILE AMENDED COMPLAINT I, Marcus A. McKnight, III, Esquire, Solicitor for Penn Township, consent to the filing an Amended Complaint by Plaintiff, John McCrea, to join any necessary parties. This Cony will also confirm that Defendant, Penn Township, does not need to respond to the origi Complaint and will respond to the Amended Complaint when it is served upon counsel for Pi Township as required by the Pa Rules of Civil Procedure. Dated: July 13, 2012 IRWIN & McKNIGHT, P.C. ( 7 By: MA . McKNIGHT, II , sqt 60 Wes fret Street Carlisle, PA 1701 - Solicitor for Penn Township of JOHN MCCREA, Plaintiff V. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 3049--2012 : DECLARATORY JUDGMENT Defendants: c? -O:, ACT -max' 3r CONSENT TO FILE AMENDED COMPLAINT The undersigned, being attorneys for Defendant Big Spring School r- N ss -, District in this Declaratory Judgment Action, consents to the filing of an Amended Complaint by Plaintiff John McCrea to join any necessary parties. This document will also confirm that: 1) no response needs to be filed regarding the original Compliant; and, 2) no response will be due from Big Spring School District regarding the Amended Complaint until at least August 1, 2012. Dated: June 22, 2012 STOCK AND LEADER, LLP By: - 4-.-S Philip re, Esquire 221 W. Philadelphia St., Ste.E600 York, PA 17401-2924 Attorneys for Defendant, Big Spring School District r. `7' i JOHN MCCREA, Plaintiff v. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 3049-- 2012 : DECLARATORY JUDGMENT Defendants: NOTICE TO DEFEND n ACTI® rn -I c.? ?u 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 Amended Complaint and Notice to Defend are served, by entering a written appearance personally or by an 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 Amended Complaint or for any other claim or relief requested by the Plaintiff. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING ALAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.. CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET t•- c:? ca 24, I - 14r } CARLISLE, PA 17013 (717) 249-3166 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. : NO. , 2012 PENN TOWNSHIP, BIG SPRING SCHOOL : DECLARATORY JUDGMENT ACTION DISTRICT, PANCAL 954 : CENTERVILLE (UNIT B), : LLC, Defendants: AMENDED COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff John McCrea brings this Amended Complaint for Declaratory Judgment and alleges the following: STATUTORY AUTHORITY 1. Plaintiff brings this Amended Complaint for Declaratory Judgment pursuant to the "Declaratory Judgment Act" 42 Pa.C.S. § 7531 et seq. and the Pennsylvania Rules of Civil Procedure, Rule 1600 et seq. PARTIES 2. Plaintiff is John McCrea, an adult individual and taxpayer residing in the Big Spring School District. Plaintiff's residence address is 221 Doubling Gap Road, Newville, Cumberland County, North Newton Township, Pennsylvania 17241. 3. Defendant Penn Township is a municipal corporation and township of the second class, with offices located at 1301 Centerville Road, Newville, Pennsylvania 17241. 4. Defendant Big Spring School District is a political subdivision of the Commonwealth of Pennsylvania and a local taxing authority having authority to levy real property taxes, with offices located at 45 Mt. Rock Road, Newvi lle, Pennsylvania. 5. Defendant PanCal 954 Centerville (Unit B) LLC is a Delaware limited liability company, and the legal owner by virtue of a deed dated December 20, 2011, recorded in the Cumberland County Recorder of Deeds Office as Instrument No. 201136424, of the 116.82 acres tract of land situate in Penn Township, Cumberland County, Pennsylvania, the status of which will be affected by the decision in this action for declaratory judgment. 6. The Pennsylvania registered agent of defendant PanCal 954 Centerville (Unit B) LLC, is Registered Agent Solutions, Inc., having an office and mailing address at 125 Locust Street, Harrisburg, PA 17101. FACTS 7. Defendant Penn Township is a political subdivision of the Commonwealth of Pennsylvania and a municipal governing body as that germ is defined in the LERTA Act (42 Pa.C.S. § 4721 et seq.)... 8. On March 1, 2012, Defendant Penn Township enacted Ordinance No. 2012- 01 ("LERTA Ordinance") containing the caption "AN ORDINANCE OF PENN TOWNSHIP, CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA, TO AFFIX THE BOUNDARIES OF A DETERIORATED AREA IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED." A copy of the LERTA Ordinance is attached as Exhibit "A" and incorporated by reference. 9. Section One of the LERTA Ordinance states that the purpose of this Ordinance is to affix the boundaries of a deteriorated area located within the Township for the purpose of exempting from real estate taxes, for specified periods, improvements of industrial, commercial or other business property. 10. Section Two of the LERTA Ordinance designates as a deteriorated area a tract consisting of 116.8192 acres lying and being situate inside a roughly rectangular area with the following perimeter: on the east Pa, Route 233 Centerville Road, on the south Pa. Route 174 Walnut Bottom Road, on the west Township Road No. 343 Farm Road, and on the north Interstate Route 81. A metes and bounds description of this tract is contained in Section two of the LERTA Ordinance. 11. The Unilever warehouse tract, at all times relevant to this proceeding, was open and empty farmland containing no improvements. An aerial photograph 2 containing the tract, on which the perimeter of the Unilever warehouse tract is highlighted, taken from the files of the Cumberland County Mapping Department, is attached as Exhibit "B" and incorporated by reference. 12. Defendant Big Spring School District is a political subdivision of the Commonwealth of Pennsylvania and a local taxing authority as that term is defined in the LERTA Act, 42 Pa. C.S. § 4721 et seq. 13. On May 7, 2012, Defendant Big Spring School District adopted Resolution No. 20 ("LERTA Resolution") containing the caption "A RESOLUTION OF THE BIG SPRING SCHOOL DISTRICT TO EXEMPT FROM REAL PROPERTY TAXATION THE ASSESSED VALUATION OF IMPROVEMENTS TO DETERIORATED PROPERTIES AND THE ASSESSED VALUATION OF IMPROVEMENTS WITHIN PENN TOWNSHIP'S DETERIORATED AREAS IN THE AMOUNTS AND IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1977, AS AMENDED." A copy of the LERTA Resolution is attached as Exhibit "C". 14. Section two of the LERTA Resolution exempts from school district real property taxes the improvements to be constructed in the deteriorated area designated by Penn Township in its LERTA Ordinance according to an exemption schedule established in Section three of the LERTA Resolution, upon application by the property owner of the specified improvements. 15. Plaintiff believes, and therefore avers, that the property owner of the Unilever warehouse tract has applied for real estate tax exemption under the terms of the LERTA Resolution. 16. Section three of the LERTA Resolution establishes an exemption schedule exempting sixty-five percent (65%) of the eligible assessment for improvements per year for five years, or until July 1, 2018, whichever earlier occurs. 17. The estimated total value of the real estate tax exemption given under the LERTA Resolution is in excess of $800,000 18. The real estate tax exemption given under the LERTA Resolution is expected to go into effect for the 2013-14 school tax year which begins on July 1, 2013. 19. Plaintiff will be adversely impacted by having the Big Spring School District lose more than $800,000 in real estate tax revenue over the five years exemption period, in that Plaintiff will be required to make up a percentage of the $800,000 in lost tax revenues by increased real property taxes on real estate owned by him... COUNT I: Violation of 42 Pa.C.S. & 4725 20. Plaintiff incorporates paragraphs 1 through 19 by reference as if fully set forth. 21.42 Pa.C.S. § 4725 defines a deteriorated area as that portion of a municipal governing body so designated after taking into account the criteria set forth in the "Urban Development Law" for the determination of "blighted areas" and the criteria set forth in the "Neighborhood Assistance Act" for the determination of "impoverished neighborhoods," and the following criteria:: unsafe, unsanitary and overcrowded buildings; vacant, overgrown and unsightly lots of ground; a disproportionate number of tax delinquent properties, excessive land coverage, defective design or arrangement of buildings, street or lot layouts; economically and socially undesirable land uses. 22. Aside from the warehouse building currently under construction, there have been no buildings within the so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 23. The so-called "deteriorated area" designated by the LERTA Ordinance has never been a blighted area because of any unsafe, unsanitary, inadequate or overcrowded conditions of buildings thereon, or because of inadequate planning of the area, because of excessive coverage of buildings thereon, or because of the lack of proper light and air and open space, or because of the defective design and arrangement of buildings thereon, or faulty street or lot layouts. These are some of the criteria specified in the Urban Redevelopment 4 Law (35 Pa. C.S. §4725 (a)) to determine a blighted area subject to urban redevelopment. 24. There has never been any undesirable land use within so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 25. The so-called "deteriorated area" designated by the LERTA Ordinance has never been a blighted area because of any undesirable land use. This is another criterion specified in the Urban Redevelopment Law (35 Pa. C.S. §1702 (a)) to determine a blighted area subject to urban redevelopment. 26. The so-called "deteriorated area" designated by the LERTA Ordinance has never satisfied or fulfilled the criterion of unsafe, unsanitary and overcrowded buildings, or the criterion of defective design or arrangement of buildings, street or lot layouts. These are the criteria related to buildings specified in the LERTA Act (72 Pa. C.S. §4725 (a)) to be applied by the municipal governing body in designating deteriorated areas of economically depressed communities within its borders. 27. There have never been a disproportionate number of tax delinquent properties within the so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 28. The so-called "deteriorated area" designated by the LERTA Ordinance has never satisfied or fulfilled the criterion of having a disproportionate number of tax delinquent properties within it. This is another criterion specified in the LERTA Act (72 Pa. C.S. §4725 (a)) to be applied by the municipal governing body in designating deteriorated areas of economically depressed communities within its borders. 29. There have never been any vacant, unsightly, or overgrown lots of ground within the so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 30. The so-called "deteriorated area" designated by the LERTA Ordinance has never satisfied or fulfilled the criteria of vacant, unsightly or overgrown lots of ground within it. These are additional criteria specified in the LERTA Act 5 (72 Pa. C.S. §4725(a)) to be applied by the municipal governing body in designating deteriorated areas of economically depressed communities within its borders. 31. There have never been any economically and socially undesirable land uses within the so-called "deteriorated area" designated by the LERTA Ordinance at any time relevant to this proceeding. 32. The so-called "deteriorated area" designated by the LERTA Ordinance has never satisfied or fulfilled the criteria of economically and socially undesirable land uses within it. These are additional criteria specified in the LERTA Act (72 Pa. C.S. §4725 (a)) to be applied by the municipal governing body in designating deteriorated areas of economically depressed communities within its borders. 33. Penn Township's LERTA Ordinance designates as a "deteriorated area" a portion of the township which does not satisfy or fulfill any of the criteria listed in 42 Pa.C.S. §4725 or listed in the Urban Redevelopment Law. 34. Penn Township's LERTA Ordinance violates the provisions of the LERTA Act set out in 42 Pa.C.S. §4725. 35. Penn Township's LERTA Ordinance is illegal and invalid. 36. Penn Township's LERTA Ordinance is null and void. 37. The legality and validity of Big Spring School District's LERTA Resolution, which attempts to exempt from real estate taxes property which was designated as a "deteriorated area" in the LERTA Ordinance depends upon the legality and validity of that Penn Town ship LERTA Ordinance. 38. Since the Penn Township LERTA Ordinance itself is illegal and invalid, null and void, the Big Spring School District LERTA Resolution is likewise illegal, invalid, null and void. . (balance of this page intentionally left blank) 6 WHEREFORE, Plaintiff John McCrea prays that this Court grant the following relief: (a) Declare Penn Township Ordinance No. 2012-01 illegal and invalid, null and void. (b) Declare Big Spring School District Resolution No. 20 illegal and invalid, null and void. (c) Grant such other relief as it may deem just and proper under the circumstances. Respectfully submitted, McCrea 221 Doubling Gap Road PO Box 341 Newville, PA 17241 Telephone: (717) 776-6656 VERIFICATION The facts set forth in the foregoing Amended Complaint for Declaratory Judgment are true and correct to the best of my knowledge, information, and belief I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: July )MI, 2012 g l- G:?_ McCrea 7 May 01 2012 8115 HP FaxPenn Township 7174863522 ,a ORDINANCE NO. 2012-1 AN ORDINANCE OF PENN TOWNSHIP, CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA TO AFFIX THE BOUNDARIES OF A DETERIORATED AREA IN ACCORDANCE WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 19779 AS AMENDED WHEREAS, pursuant to Pennsylvania Gcneral Assembly Act No. 76 of 1977, as amended, 72 P. S. § 4722 et seq., the Local Economic Revitalization Tax Assistant Act, otherwise known as "LERTA", authorizes local taxing authorities to exempt from real estate taxation, for specified periods, improves to certain deteriorated industrial, commercial and other business property; and WHEREAS, notice of the public hearing on March 1 a , 2012, and a brief summary of this proposed Ordinance was published, on February 15th and 22"d, 2012, in the Valley Times Star, a newspaper circulating in Perm Township; and WHEREAS, on March 1', 2012, the Board of Supervisors of Penn Township (the "Board") held a public hearing to inform and obtain public comment and determine the geographic boundaries of deteriorated areas as well as to study the feasibility of enacting a temporary property tax exemption program under LERTA for improvements to certain deteriorated property located within Penn Township; and WHEREAS, at the public hearing it was recommended that the boundaries of the designated deteriorated area consist of the plot consisting of 116.8192 acres more particularly bounded and described below in Section 2 of this Ordinance. Now, therefore: BE IT ORDAINED by the BOARD OF SUPERVISORS OF PENN TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA as follows: Section 1: Title; authority; purpose. This Ordinance shall be known and may be cited as the "Penn Township Local Economic Revitalization Tax Assistance Ordinance." This Ordinance is enacted under authority of the SL 11127432v4106890.00001 ?Ij I fj/T ,.A// 7174863522 aa9e 3 May 01 2012 8:15 HP FaxPenn Town4iP Local Economic Revkaliza don Tax Assistance Act, Act No. 1977, as amended, 72 P.S. § 4725 et seq., otherwise known as ` LERTA." The purpose of this (hdkw= is to affix the boundaries of a deteriorated area located within the Township for the purpose of exempting from rest estate taxation, for specified periods, improvements of industrial, commercial or other business property. Section 2: Deteriorated Areal. The boundaries of the designated deteriorated area qualifying for temporary tax abatement from Penn Township under LERTA shall consist of the condominium plot consisting of 116.8192 acres on Unit AB of the Key Logistics Pads Condominium, more particularly bounded and described as set forth below: LAND DESCREM-ON Unit AB ALL THAT CERTAIN tract of parcel of land situate in Penn Township, Cumberland County, Pennsylvania. comprising Unit AB (Units A and B of the "Condominium Plat for Key Logistics Park Condominium," prepared by Herbert, Rowland, and Grubic, Inc., dated May 1, 2008, last revised October 28, 2011) and tract being more particularly bounded and described as follows: BEGINNING at a rebar at the northwest corner of an emergency vehicle access, said point being the following two (2) courses and distances from a reber (found) at the northwest corner of lands of Melvin S. & Marion H. Sensenig (Tax Map Parcel 31-11-0298-016B); (1) North 24 degrees 55 minutes 33 seconds West, a distance of 941.28 The to a rebar; (2) THENCE South 65 degrees 04 minutes 27 seconds West, a distance of 100.00 fee to the POINT OF BEGINNING, THENCE by lands of Daniel C. & Shay P. Farwell, South 69 degrees 41 minutes 36 seconds West, a distance of 1297.88 feet to a reber at lands of Victor G. & Phyllis J. Barrick; THENCE by said lands North 20 degrees 18 minutes 24 seconds West, a distance of 1738.76 feet to a stone at lands of David L. & Mary C. Hurst; THENCE by said lands North 19 degrees 42 minutes 14 seconds West, a distance of 208.43 feet to a point; THENCE by Common Elements of Key Logistics Park the following seven (7) courses and distances: (1) North 69 degrees 42 minutes 04 seconds East, a distance of 1043.41 feet to a point; (2) THENCE North 69 degrees 13 minutes 58 seconds East, a distance of 529.66 feet to a point; (3) THENCE North 69 degrees 42 minutes 04 seconds East, a distance of 562.92 feet to a point; (4) THENCE by a line on a curve to the right 3L1 1127432Y4 106890.0000t 7174863522 gage /• May 01 2012 8;15 HP FaxPenn Township having a radius of 99.33 feet, on arc length of 21.30 feet, and a chord bearing of North 75 degrees 50 minutes 38 seconds East, a distance of 21.26 feet to a point; (5) THENCE North 81 degrees 59 minutes 12 seconds East, a distance of 16131 feet to a point; (6) THENCE North 08 degrees 00 minutes 48 seconds West. a distance of 220.29 feet to a point; (7) THENCE North 76 degrees 32 minutes 47 seconds Fast, a distance of 93.11 feet to a rebar at lands of David E. & Lolonhi L. Gettle; THENCE by said lands the following three (3) courses and distances: (1) South 28 degrees 24 minutes m53 inutes East, a distance of 879.09 feet to a wbar; (2) THENCE South 32 degoos 8 seconds East, a distance of 1122.00 feet to a reboc (3) THENCE South 24 degrees 48 minutes 21 seconds East, a distance of 29.63 feet to a rebar at lands of Melvin S. & Marion H. Senseli,g; THENCE by said lands South 65 degrees 04 minutes 27 minutes 27 seconds West, a distance of 1532.68 feet to the POINT OF BEGINNING. Containing 116.8192 Acres Being Unit AB of the Condominium Plat for Key Logistics Park Condominium dated May 1, 2008 and last revised October 28, 2011 and recorded January 12. 2012 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, Iasument No. 201201169. (the "Deteriorated Area"). Section 3: Effective Date. This Ordinance and Penn Township's designation of the Deteriorated Area as a Deteriorated Property as defined in 72 P.S. § 4724 et seq., of LERTA shall be take effect and be in force immediately upon enactment. The provisions of this Ordinance shall apply to all applications Sled from and after the effective date hereof. Sectles 4: Repealer. All ordinances or parts of oa inattces inconsistent with the provisions of this Ordinance are hereby repealed to the extent of such inconsistency. Section S: Severabiiity. If any section or clause of this Ordinance shall be adjudged invalid, such adjudication shall not affect the validity of the remaining provisions which shall be deemed severable therefrom. SL I 1127432x4 106690.00001 ? r a ri I I 12x?l If t r "T3 0-1 i6,- 'Itt4l I I BIG SPRING SCHOOL DISTRICT RESOLUTION NO. 20 A RESOLUTION OF THE BIG SPRING SCHOOL DISTRICT TO EXEMPT FROM REAL PROPERTY TAXATION THE ASSESSED VALUA OF IMP'ROVENUUM TO DETERIORATED PROPERTIES AND THE ASSES VALUATION OF NEW CONSTRUCTION WITHIN PENN TOWNSHIP'S DESIGNATED DETERIORATED AREAS IN THE AMOUNTS AND IN ACCORI WITH PENNSYLVANIA GENERAL ASSEMBLY ACT NO. 76 OF 1971, AS AME WHEREAS, the Board of School Directors of the Big Spring School District (the `Board') finds that the implementation of a temporary tax exemption in a designated area of Penn Township would contribute to the general welfare of the community by spurring economic activity and promoting improvement in the area's business and commercial property; and WHEREAS, the Board of Supervisors of Penn Township has (by Ordinance No. 2012-1 adopted March 1, 2012) established the boundaries of a Deteriorated Area NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS by the Board that. Section l: Defieilions. As used in this Resolution, the following words and phrases shall have the meanings forth below: (a) "Assessed Valuation." The value of a parcel of real property as established b the Board of Assessment Appeals of Cumberland County (the `Board of Assessment Appeals'), or the purpose of the assessment and levy of taxes upon real property and the improvements which may have been erected thereon (b) "Deteriorated Property." Any industrial, commercial or other business prope owned by an individual, association or corporation, and located in the Deteriorated Area set in Penn Township Ordinance No. 2012-1. (c) "Eicemption" Defined in Section 2 of this Resolution. (d) "Improvement." Repair, construction or reconstruction, including alterations additions, having the effect of rehabilitating a Deteriorated Property so that it becomes habits or attains higher standards of safety, health, economic use or amenity, or is brought into compliance with laws, ordinances or regulations governing such standards. Ordinary upkeer maintenance shall not be deemed an Improvement. (e) "Local Taxing Authority." Pena Township, Cumberland County or the Big Spring School District. (f) "School District." Big Spring School District. SLI 11295Wv4106M.0=1 and N x 14 1 Rrr /]C // Section 2: Exemption. Any property owner undertaking Improvements within a Deteriorated Area may a ly for and receive from the School District an exemption from School District real property taxes ue to the increased or additional assessed valuation attributable to those Improvements, in the amounts and in accordance with the limitations set forth in this Resolution ("Exemption"). The Exemption from School District real property taxes shall be specifically limited to the additional assessed valuation attributable to the actual costs of Improvements to Deteriorated Property. Appeals from the amount of increased assessed valuation attributable to the actual costs of Improvements of the property in the Deteriorated Property (as established by the County Board of Assessment) may be taken by the taxpayer or any Local Taxing Authority as provided b law. Nothing herein shall preclude a taxpayer or any Local Taxing Authority from appealing the Assessed Valuation of the Deteriorated Property or any increases in Assessed Valuation no attributable to Improvements in accordance with applicable law or ordinance. Section 3: Exemption Sdkdule. (a) The Exemption for the Deteriorated Area shall be limited to a period of five (5) years, beginning in the tax year of the Local Tax Authority fast following the date on w the initial re-assessment due to Improvements on Deteriorated Property shall be assessed in accordance with Pennsylvania General Assembly Act No. 76 of 1977, as amended, 72 P.S. § 4727 et seq., the Local Economic Revitalization Tax Assistance Act, otherwise known as "LERTA." (b) The Exemption Schedule for the Deteriorated Area shall be as follows: 1. For the first five years immediately following the date upon which Improvements constructed upon the Deteriorated Area shall have first resulted in increased assessment, sixty-five percent (65%) of the eligit assessment shall be exempted 2. After the fifth year the Exemption shall terminate. 3. In no event shall the Exemption Schedule extend beyond July 1, 2018.'. Section 4: Procedure for Obtaining Exemption. (a) At the time that a property owner secures a building permit for Improvement under this Resolution; the property owner-desiring the temporary Exemption pursuant to thi Resolution shall file a request in writing for Exemption on a form proscribed by the School District (the "Exemption Request"). The property owner shall file the form with the School District, and shall deliver a copy to the Cumberland County Board of Assessment Appeals. (b) The property owner must provide and certify on the Exemption Request the following information: 1. Name and address of property owner. SL I 1129589v4 10(R90_(10(Nli 2. County tax parcel number for the property. 3. The Assessed Valuation of the property prior to the initiation of any Improvements and without regard to any preferential assessment. 4. The date the building permit was issued for Improvement. (c) The Exemption Request shall be filed by the property owner with the School District and the Board of Assessment Appeals no later than ninety (90) days after the builds permit `is issued. (d) Within 30 days after the date on which the Improvement has been completed (being the date which a Use and Occupancy permit for the Improvement is issued or the Improvement is otherwise put into use or service), the property owner shall notify the Schoc District and the Board of Assessment Appeals in writing. The notice shall include the folloi 1. Name and address of the property owner. 2. County tax parcel number for the property. 3. The date that the Improvement was completed (e) Appeals from the reassessment and the amounts eligible for Exemption may taken by the property owner or any Local Taxing Authority as provided by applicable laws ordinances. Section 5. Terns. This Resolution shall become effective immediately following its adoption. The provisions of this Resolution shall apply to all applications filed from and after the effective hereof. PRESENTED AND ADOPTED by the Board of School Directors of Big Spring School District in its public meeting this 7 th day of may .2012. ATTEST: BOARD OF SCHOOL DIRECTORS BIG SPRING SCHOOL DISTRICT Secretary Wilbur Wolf , Jr., President (SEAL) SL I 1129589x4106890.00001 9 e ..~~ ' ~:' ~ ~ ~?~ ~ 13 F~1 I ~ ~ v ~; r tE } ''y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN MCCREA, Plaintiff CIVIL ACTION -LAW N0.3049-2012 DECLARATORY JUDGMENT ACTION v. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC Defendants TO: John McCrea 221 Doubling Gap Road P. O. Box 341 Newville, PA 17241 NOTICE TO PLEAD YOU ARE HEREBY notified to file a written response to the enclosed Preliminary within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, -/ 3 -/Z- Date STOCK AND LEADER Y P ~ ip H. Spare, Esq ire Supreme Court I.D. #65200 Gareth D. Pahowka, Esquire Supreme Court I.D. #309184 Susquehanna Commerce Center East 221 West Philadelphia Street, Suite 600 York, PA 17401-2994 Telephone: (717) 846-9800 Facsimile: (717) 843-6134 gpahowka(u? stockandleader.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN MCCREA, v. Plaintiff PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC Defendants CIVIL ACTION -LAW N0.3049-2012 DECLARATORY JUDGMENT ACTION PRELIMINARY OBJECTION OF BIG SPRING SCHOOL DISTRICT FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION AND NOW, this 13th day of August, 2012, comes defendant Big Spring School by and through its attorneys, the law firm of Stock and Leader, to preliminarily object to the Complaint filed by the Plaintiff, John McCrea, of which the following is a statement. On May 7, 2012, the Board of School Directors of the Big Spring School approved a resolution implementing a temporary tax exemption for an area in Penn Township which the Township previously designated by ordinance as a Deteriorated Area under the Economic Revitalization Tax Assistance Act ("LERTA") 2. Pursuant to LERTA, a property owner undertaking improvements within a Deteriorated Area may apply for and receive from the School District an exemption from 1 District real property taxes on the increased or additional assessed valuation attributable to improvements in the amounts and in accordance with an exemption schedule established by Board of School Directors. Pursuant to the School Board Resolution, the Board of School Directors established afive-year exemption schedule. The exemption schedule does not begin until the first school tax year following the date of initial re-assessment due to improvements on the Deteriorated Property. 4. The School Board Resolution establishes a procedure and timeline for obtaini an exemption. Within thirty (30) days after the improvements are completed and either a use occupancy permit is issued or the improvements are otherwise put into use or service, the property owner must notify the School District and Board of Assessment Appeals in writing certifying the date the improvement was completed. Plaintiff seeks a declaration that the School Board Resolution is illegal and invalid. 6. Plaintiff s asserted harm is the estimated loss of approximately $800,000 in School District real tax revenue over the five year exemption period. Plaintiff asserts he will required to ``make up" some unnamed percentage of this lost tax revenue in the future by way increased real property taxes owed by him. Amended Complaint, para. 19. 7. Pennsylvania Rule of Civil Procedure provides that preliminary objections may ~be filed based on "lack of jurisdiction over the subject matter of the action." Pa. R.C.P. 1028(a)(1 2 8. Defendant preliminary objects to the instant action because it lacks an actual c or controversy which is ripe for review and, therefore, this Court lacks jurisdiction to hear it. 9. Declaratory judgments are not obtainable as a matter of right. Ronald H. Clark, Inc. v. Txp. of Hamilton, 562 A.2d 965, 969 (Pa. Cmwlth. 1989). 10. A substantial limitation on the Court's ability to issue a declaratory judgment is the principle that the issues involved must be ripe for judicial determination. Ripeness has defined as the presence of an actual controversy. American Council of Life Ins. v. Foster, 580 A.2d 448, 451 (Pa. Cmwlth. 1990). 1 l . A party seeking declaratory judgment must allege a present interest which is harmed or threatened by the existence of an actual case or controversy. See Waslow v. Pa. of Educ., 2009 WL 3400990, *4 (Pa. Cmwlth. Oct. 23, 2009), citing Bowen v. Mt. Joy Twp., A.2d 818 (Pa. Cmwlth. 1994). 12. A declaratory judgment is not appropriate to determine rights in anticipation of events that may never occur. See Waslow at *4. 13. A declaratory judgment action is not ripe for review where the asserted deprivation of rights is hypothetical and contingent upon uncertain future events. City Council Philadelphia v. Com., 806 A.2d 975 (Pa. Cmwlth. 2002). 14. In Mazur v. Washington County Redevelopment Authority, Commonwealth held that the taxpayers' declaratory judgment suit against a township and county authority challenging a tax increment financing plan for a commercial development project wa not ripe for review. 954 A.2d 50 (Pa. Cmwlth. 2008). The Court found that no actual 3 controversy existed because the taxpayers' asserted harm was speculative and based on future events, including the completion of construction and a reassessment of real estate taxes. Id. at 56. 15. Here, as in Mazur, Plaintiff s asserted harm is hypothetical and contingent series of uncertain future events which. may never occur, including: a. Improvements on the Deteriorated Property are completed. b. A use and occupancy permit is issued or the improvements are otherwi put into use or service. c. The property owner notifies the School District in writing. d. The property owner notifies the Board of Assessment Appeals in writi e. There is an initial reassessment due to the completed improvements and such reassessment results in increased value or assessment attributable t~ the improvements. f. This five-year exemption begins to take effect in the first school tax following the increased valuation. g. The exemption results in lost tax revenues to the School District. h. The School District increases real estate property taxes to recoup the revenue. i. Plaintiff pays additional real estate property taxes. 16. In short, the School Board Resolution clearly outlines a series of steps which m occur before any exemption is granted. It is believed and therefore averred that those steps ha not yet occurred and may never occur. 17. Even if the property owner does obtain the exemption in the future, that does mean Plaintiff will be harmed in the manner he asserts for Plaintiff assumes without support or a 4 citation that the amount of the exemption will result in adollar-for-dollar increase in School District real property taxes. 18. Plaintiff presently suffers no actual or imminent hardship. His real property have not increased due to the Resolution. 19. Plaintiff has failed to state an actual case or controversy which is ripe for 20. Accordingly, this Court lacks subject matter jurisdiction over this action. WHEREFORE, pursuant to Pa.R.C.P. 1028(a)(1), it is respectfully requested that this Honorable Court sustain the within Preliminary Objection and dismiss Plaintiff's Complaint lack of jurisdiction. ~-~3 ~ ~~- Date Respectfully submitted, STOCK AND LEADER By: ~~/ Phi~f H. Spare, Esqui3~ Supreme Court I.D. #65200 Gareth D. Pahowka, Esquire Supreme Court I.D. #309184 Susquehanna Commerce Center East 221 West Philadelphia Street, Suite 600 York, PA 17401-2994 Telephone: (717) 846-9800 VERIFICATION On behalf of Defendant Big Spring School District, I, Richard W. Fry, Superintendent, hereby verify that the factual information set forth in the foregoing Preliminary Objections is true and correct to the best of my knowledge, information, and/or belief. I hereby acknowledge that the averments of fact set forth in these Preliminary Objections are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. BIG SPRI~dG SCH~6L D Date: ~=~?y - ~ a- By: W. Fry, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN MCCREA, Plaintiff v. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC Defendants CIVIL ACTION -LAW N0.3049-2012 DECLARATORY JUDGMENT ACTION CERTIFICATE OF SERVICE ~~ AND NOW, this ~ day of August, 2012, I, Gareth D. Pahowka, Esquire, of the firm of Stock and Leader, attorneys for Defendant, Big Spring School District, hereby cE that I served the within Preliminary Objection of Defendant, Big Spring School District of day by depositing the same in the United States mail, postage prepaid, in York, Pennsylv addressed to: John McCrea 221 Doubling Gap Road P. O. Box 341 Newville, PA 17241 PAN CAL 954 Centerville (Unit B), LLC 125 Locust St. Harrisburg, PA 17101 Penn Township c/o Marcus A. McKnight, III, Esquire 60 W. Pomfret St. Carlisle, PA 17013 STOCK AND LEADER ~`'~~ By: areth D. Pahowka, Esquire Attorney for Defendant, Big Spring School District I.D. #309184 Susquehanna Commerce Center East 221 West Philadelphia Street York, PA 17401-2994 Telephone: (717) 846-9800 Facsimile: (717) 843-6134 Email: gpahowka[ stockandleader com 6 a, JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3049- 2012 PENN TOWNSHIP, BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC, Defendants: RESPONSE OF PLAINTIFF JOHN MCCREA TO PRELIMINARY OBJECTION OF DEFENDANT BIG SPRING SCHOOL DISTRICT Plaintiff John McCrea files the following Response to the Preliminary Objection of Defendant Big Spring School District: ~~~ '~ 3 1. Admitted. ~ ~ --~ -~- ~ ~~ 2. Admitted. ~ ~ N ~--- ~ ~ 3. Admitted. ~ ~-, ~~ 4. Admitted. ~ ~ ~, ~ ~-il 4 5. Admitted. ==+ rv ~' ~~ 6. Admitted, with the proviso that Plaintiff s averments in the Amended -. Complaint were that the loss of talc revenue would be "in excess of $800,000, and that the school district would "lose more than $800,000 in real estate tax revenue over the five years exemption period." 7. Admitted, 8. Denied. Paragraph 8 of the Preliminary Objection avers only conclusions of law, which Plaintiff is not legally required to either admit or deny. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied. The holding and other findings in the Mazur case speak for themselves, and Plaintiff is not required to accept Defendant Big Spring School District's characterizations of them. 15. Denied. On the contrary Plaintiff avers that the harm asserted by him is real and is contingent only upon the happening of a few ministerial actions which, under the present circumstances, are inevitable. There is no Deteriorated Property involved in this case. Upon personal observation, improvements in the so-called "deteriorated area" appear to be well on their way to completion; what remains to be completed is interior finishing. The events listed Paragraph 15.b. through 15.g. have a high degree of certainty to happen on or before 3uly 1, 2013. The events listed in Paragraph 15.h. and 15.i. do not necessarily have to happen to validate Plaintiff s right to a declaratory judgment declaring the LERTA Ordinance and the LETA Resolution null and void, illegal, and invalid. A substantial loss of real estate tax revenue is enough to constitute real harm to the Plaintiff as a citizen, taxpayer, elected member of Defendant Big Spring School District, and as the parent of a high school student in the school district. 16. Denied. To the contrary, Plaintiff avers that the developer of the LERTA tract has already applied for and been granted a real estate tax exemption. A Request for Exemption in writing as set forth in the LERTA Resolution, Section 4: Procedure for Obtaining Exemption, has been filed with the school board and the Cumberland County Boazd of Assessment Appeals. A copy of the Request far Exemption is attached as Exhibit "A" and incorporated by reference. Only the amount of the exemption has yet to be determined. 17. Denied. To the contrary, Plaintiff avers that the developer has already been granted an exemption. Furthermore, there exists no legal requirement to aver or prove that the loss of tax revenue caused by the illegal and invalid tax exemption will result in a dollaz for dollar increase in the real property taxes to be paid by all taxpayers. 2 1 S. Denied. To the contrary, Plaintiff avers that imminent hardship exists as a result of the inevitable loss of tax revenues to the school district by the application of the LERTA Resolution. It is admitted that Plaintiff s taxes have not now increased due to the LERTA5 Resolution. 19. Denied. Paragraph 19 avers only a conclusion of law, which Plaintiff is not legally required either to admit or deny. 20. Denied. Paragraph 20 avers only a conclusion of law, which Plaintiff is not legally required to either admit or deny. WHEREFORE, Plaintiff John McCrea requests this Court deny the Preliminary Objection of Defendant Big Spring School District and direct said Defendant to file a responsive pleading to the Amended Complaint within 20 days after the Order denying the Preliminary Objection. Dated: August 20, 2012 ~~~ t V ~ _ ~_ Jo cCrea, Plaintiff 2 cabling Gap Road PO Box 341 Newville, PA 17241 Telephone: 717.776.665 6 3 • JUN 4 2012 L1 PANATTO N I® BY: June 1, 2012 Big Sp~g School District Cumberland County Board of Assessment Appeals Attn: Richard Fry, Superintendent Cumberland County Tax Assessment Office 4S Mt. Rock Road One Courthouse Square Newville, PA 17241 Carlisle, PA 17013 RE: Local Economic Revitaliudon Ta: Assbtance Act (~LERTA"~ 72 P.S. X4722 et scq. E=empdon' Regaaant NMlfieatlon Dear. Mr. Fry and Board Members: The following property, bei~ designated a Deteriorated Area pursuant to Penn Township Ordinance No. 2012 1 as set fath in LERTA, is hereby submitted and certified by me for tax abatement parrsuant to Big Spring School District Resohrtion No. 20 as follows: 1. Property owner and addrr,as: PanCal 9S4 Centt+rvWe (Unit B), LLC, c% Paaai Development Compa,y, Attn: D. Rdi Townaread, 729 E. Pratt Stt+eet, 3nite Baltimore, NID 21202. 2. ~r~y county tax n~r+cel number: 31-11-029a-037-UAB 3. Asaes9ed valuation of the pJ,gp~y nruor to the initiation of the mmrovemen±s: S17,SZ3,000. 4. Date building permit was issued: Apri19, 2012. A copy of Penn Township Ordinmce No. 2012-land Big Spring School District Resolution No. 20 is inchtided herein. As this is a notification letter, ~ formal action is needed for this request. I am not aware of say form required to be compktod for the tax abatement; however, if one exists, please forward it to me and I witil compl it to supplement this letter. If yea have any quastiona regarding the foregoing, please coznact Reid Townsend at (410) 685-0000 or via ema~l at rtoarnsend(+~ansttorri.com. Sincerely, PaaCa19S4 Centerville (Unit B) LLC, a Delaware limier liability company By: PanCal Oppordmity LLC, a Debware limited 1utbilit company, its sole member By: Pamttoni PanCal Opportunity, LLC, a Delaware limi liability company, its Administrator By: Panattoni PanCal Manager LLC, a Delaware limited liability ~~y. its Name: William Buller Its: Vice Punt c: Charles M. Suter, Esq. PANATTONI DEVELOPMENT COMPANY, INC. 7zg E. Pratt Street, Suite qoi ^ Baltimore, Maryland ztsoz ~ Tel qto/685-0000 Fax 4to/685-5860 Ex~l~r'r `AI~ (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ---> ~., CAPTION OF CASE (entire caption must be stated in full) JOHN MCCREA, Plaintiff vs. PENN TOWNSHIP, et al, Defendants No. 3049 r~ ~ ~ ; ~- c~ a ~~ ~-; ~ ~ ca 2012 :.~err~ 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendants demurrer to complaint, etc.): r~rn.ry ogeaion or oeee eq sax,o Sawa o~ia 2. Identify aA counsel who will argue cases: (a) for plaintiffs: John McCrea, pro se (Name and Address} P.O. Box 341, Newville, PA 17241 (b} for defendants: Philip Spare,Esq. Stock and Leader (Name ark Address} 221 W. Philadelphia St. Suite 600, York, PA 17401 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: ~.~,z ~: August 20, 2012 Print your name John McCrea, pro se Attorney for INSTRUC'r10NS: 1.Oriflinal and two copies of alt briefs must be filed with the Cot~rr ADMINIflTRATOR (not the Prothonotary) beforo argwnerrt. 2. The moving party shall fMe and serve their brief 14 days prior to argument. 3. The responding party shall fie their brief 7 days prior ~ argwnerrt. 4. ff uyunrerH Is c~ntlnued nsw brNfs mu~at bs filed with tfie COt~T ADMINI8TRAT~ (not the Protlanotary) alter the case is robed. ~+~ /oz ~ ~~ ~SsS% JOHN McCREA, Plaintiff v. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVII.LE (UNIT B) LLC Defendants IN THE COURT OF COMMON PLEAS OF CIVIL ACTION -LAW N0.3049-2012 DECLARATORY JUDGMENT ~TIQ~T c -~ ~ N c~- u~ NOTICE TO PLEAD ~ ~ o TO: JOHN McCREA 221 DOUBLING GAP ROAD P. O. BOX 341 NEWVILLE, PA 17241 ;:y:a m -~' ('t, r.~ ~~~ ~w-J .ln ` ~~ ., r- -~ ~~ T Y =i YOU ARE HEREBY NOTIFIED that you must responsively plead to the wi Preliminary Objections, pursuant to Pa. R.C.P. 2252(d) within twenty (20) days after service, c~r a default judgment may be entered against you. IRWIN & McIKNIGHT By: Marcus ~. fight, III, Esc 60 West Po fret Street Carlisle, Penn is 17013-3 (717) 249-2353 Supreme Court ID. No. 25476 Attorney for Defendant Penn Township Date: August 20, 2012 JOHN McCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff CIVIL ACTION -LAW v. PENN TOWNSHIP, N0.3049-2012 BIG SPRING SCHOOL DISTRICT, PAN CAL 954 DECLARATORY JUDGMENT ACTION CENTERVILLE (UNIT B) LLC Defendants PRELIMINARY OBJECTIONS OF PENN TOWNSHIP FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION AND NOW, this 20th day of August, 2012, comes the Defendant, PENN TOWNSHIP, by and through its attorneys, Irwin & McKnight, P.C., and makes the following Objections to Complaint filed by the Plaintiff, JOHN McCREA, as follows: 1. On March 1, 2012, Defendant, Penn Township passed an Ordinance numbered 2012-O1 which established the boundaries of area pursuant to the Local Economic Revitalization Act (LERTA) designed to encourage industrial/commercial development within the zone. 2. The Plaintiff, John McCrea, did not attend the public hearing held on March 1, 2012, express any opposition to the Ordinance enacted by Penn Township following the Public Hearing. 3. The Plaintiff, John McCrea, is not a resident of Penn Township, Cumberland County, Pennsylvania, nor was he a resident of Penn Township when the Ordinance 2012-01 was Penn Township. 4. Defendant, Penn Township, files this Preliminary Objection against the Amended Complaint for Declaratory Judgment in that the Plaintiff lacks standing to challenge the Ordinance 2012-01 and this Court lacks the jurisdiction to decide this case. 2 5. The Complaint of the Plaintiff anticipates a controversy which has not yet occurred. 6. A warehouse is under construction within the Penn Township LERTA zone. It is not complete nor has any application been made to Defendant, Penn Township, seeking to reduce property real estate taxes. 7. Even assuming that the Plaintiff has standing to challenge the action of Defendant, Big Spring School District, the Plaintiff has no standing to challenge an Ordinance enacted by Penr Township in which the Plaintiff does not reside and to which he made no appearance or objecti when the Ordinance was enacted. The Court has no basis or jurisdiction to decide this case since no action has taken which could actually harm the Plaintiff or his interest including: a. The warehouse and associated improvements are not completed. b. The necessary permits have not been issued in order to place the warehouse use or service. The property owner has not notified Penn Township in writing of its interest to implement the LERTA Ordinance. d. The property owner has not notified the Cumberland County Assessment e. There has been no initial reassessment due to the completed improvements and such reassessment results in increased value or assessment attributable to the improvements. f. This five-year exemption has not taken effect following the increased g. The exemption has not resulted in lost tax revenues to either Big Spring School District or Penn Township. h. No Township or School District increases real estate property taxes to recoup lost revenue have been enacted. i. The Plaintiff has not paid any additional real estate property taxes as a consequence of the Ordinance enacted by Penn Township. 9. Even if the warehouse developer does seek the LERTA exemption in the future, that not mean Plaintiff will be harmed. 10. The Plaintiff presently suffers no actual or imminent hardship. His school real taxes have not increased due to the action of Penn Township, nor does he have standing to to the tax base of Penn Township. 11. The Plaintiff has failed to state an actual case or controversy which is ripe for the Cour~ to review. 12. This Court lacks subject matter jurisdiction over this action. WHEREFORE, pursuant to Pa. R.C.P. 1028(a)(1), it is respectfully requested that ~ Honorable Court sustain the within Preliminary Objection and dismiss the Plaintiff s for lack of jurisdiction and lack of standing of the Plaintiff who is not a resident of Township. Respectfully submitted, IRWIN & McKNIGHT, P.C. By: Marcus A cKnight, III, Esq Supreme urt I.D. #25476 60 West fret Street Carlisle, PA 17 (717) 249-2353 Attorney for the Defendant Penn Township Date: August 20, 2012 4 JOHN McCREA, Plaintiff v. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, PAN CAL 954 CENTERVILLE (UNIT B) LLC Defendants IN THE COURT OF COMMON PLEAS OF CIVIL ACTION -LAW N0.3049-2012 DECLARATORY JUDGMENT ACTION CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document v served upon the following by depositing a true and correct copy of the same in the United Stat mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: John McCrea 221 Doubling Gap Road P. O. Box 341 Newville, PA 17241 PAN CAL 954 Centerville (Unit B), LLC 125 Locust Street Harrisburg, PA 17101 Philip H. Spare, Esq. Gareth D. Pahowka, Esq. Stock & Leader Susquehanna Commerce East 221 W. Philadelphia St., Ste. 6 York, PA 17401-2994 IRWIN & McKNIGHT, P.C. '///~~`~ By: Marc McKnight, III, squire 60 est mfret Street arlisle, PA 17013 717) 249-2353 S eme Court LD. No. 76 Date: August 20, 2012 5 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF j , Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION -LAW v. : NO. 3049-- 2012 DISTRICT, PAN CAL 954: CENTERVILLE (UNIT B) " s `-~ ~ o , y ~a ~ ~ ~ ~r~ " r'~' STIMULATION AND AGREEMENT ' -< N AND NOW, this~~ ~ay of August, 2012, Plaintiff John McCrea and Defendant PENN TOWNSHIP, BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION , ~ -~-,' Big Spring School District, by and through its counsel, Philip H. Spare, of the law firm of Stock and Leader, stipulate and agree as follows: 1. Plaintiff John McCrea has previously listed the Preliminary Objection of Defendant Big Spring School District for argument on September 7, 2012. 2. Defendant Penn Township filed its Preliminary Objection on August 20, 2012, too late for Plaintiff John McCrea to list that Preliminary Objection for argument on September 7, 2012. 3. The Preliminary Objections of Defendant Penn Township and Defendant Big Spring School District raise similar issues regarding lack of jurisdiction over the subject matter of the lawsuit. 4. The next regularly scheduled Argument Court after September 7, 2012, is October 5, 2012. 5. For reasons of judicial economy, it would be better to have both Preliminary Objections heard and argued together. 6. Plaintiff John McCrea and Defendant Big Spring School District stipulate and agree that the Preliminary Objection of Defendant Big Spring School District should be continued to the Argument Court of October 5, 2012. ~~~ EXECUTED thisa day of August, 2012. ~,~ /~/1 ~C~,, o McCrea, Plaintiff Box 341 Newville, PA 1'7241 Phi ip .Spare, Esquire Stock and Leader Attorneys for Defendant Big Spring School District 221 W, Philadelphia St Ste 600 York PA 17401-2994 2 JOHN MCCREA, : I1V THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3849- 2012 PENN TOWNSHIP, BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION DISTRICT, PAN CAL 954: CENTERVII.LE (UNIT B) LLC, . Defendants: r r- PRAECIPE TO REINSTATE AMENDED COMPLAIN TO: CUMBERLAND COUNTY PROTHONOTARY ~°' ~ --- -< Please reinstate Amended Complaint previously filed in the above- captioned action on July 24, 2012 Dated: September , 2012 ~ ~~ ~ t.P-f,~ o McCrea, Plaintiff Box 341 Nevwille, PA 17241 Telephone 717.776.6656 ryn -a r -„ 3 ~_ ~~ ,,y `~'r-= ~. ~~ G~rkt °~ !. ~S dad ~iFr ~~ god?g JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3049- 2012 PENN TOWNSHIP, BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION DISTRICT, PAN CAL 954: h ,,, CENTERVILLE (UNIT B) c ~°' LLC, Defendants: rn c~ ~ i r ~ '~>~ -o RESPONSE OF PLAINTIFF JOHN MCCREA TO ~~~',, 3 PRELIMINARY OBJECTION OF ~-~ ^' DEFENDANT PENN TOWNSHIP ~ ~ Plaintiff John McCrea files the following Response to the Preliminary Objection of Defendant Penn Township.: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted that Defendant Penn Township has filed the specified Preliminary Objections. Denied that said Preliminary Object5ions have any merit whatsoever. . 5. Denied. To the contrary, Plaintiff avers that a suitable case or controversy to support the instant declaratory judgment actions has arisen by virtue of Defendant Penn Township enacting an illegal and invalid, null and void, LERTAS Ordinance with absolutely no factual or statutory support., and, by means of said illegal and invalid LERTA OrSdinance, affixing the boundaries of a so-called "deteriorated area" when it had no authority to do so under LERTA. 6. Admitted. For fiuther answer to this paragraph, Plaintiff avers that neither the LERTA Ordinance nor the LERTA Resolution contain any provisions which require the warehouse developer to make any application to Penn Township for anything. The warehouse developer applied to Penn Township for a building permit for the warehouse ca improvements. Pen Township is not giving any tax exemption to the warehouse developer. 7. Denied. On the contrary, Plaittitiff avers that as a residmnt aad taxpayer of than Big Spring School District, and as an elected member of the Big Spring Board of School Directors, he has standing to challenge illegal and invalid legislative actions of Perm Township and the Big Spring School District which will ta~gether bring about a loss of tax revenues to the Big Spring School District in excess of X800,000. 8. Denied. To the contrary, Plaintiff avers that this Court has subject matter jurisdiction of this declaratory judgment action, for the following reasons: a. The warehouse improvements are nearing completion; it appears as though only interior finishing remains to be done. b. The issuance of an appropriate occupancy permit is, under the circum.4tances, inevitable. c. The property owner has no duty to notify Penn Township in order to obtain the schmol real estate tax exemption d. The property owner has properly notified the Cumberland County Board of Aseessmem Appeals of its intention to claim the property tax exemption. e. The assessment of the improvements when completed is inevitable, and the increase in assessed value because of the improvements is inevitable. f. The real estate tax exemption will take effect for the 2013-2014 school tax fiscal year. g. The implementation of the tax exemption will bring about a loss of tax revenue to the Sclmol District in excess of X800,000. Penn Township has no intention to grant any tax exemption to the property owner. 2 h. It is the inevitable loss of tax revenue which harms the school district. This halm is real, whether or not the school district increases its tax rate to rECOUp those lost revenues. i. It is the school district's loss of significant tax revenue which cause harm to Plaintiffbecause ofthe inevitable consequence of a curtailed public education program because of reduced tax revenues. 9. Denied. To the c:ontracy, the warehouse developer has aheady applied for the LERTA exemption It is the loss of more than $800,000 in real estate tax revenue which caaases harm to PlaintitFand allows him to pursue the instant declaratory judgrnent action. 10. Denied To the contrary, Plaintiff avers that imminent hardship exists as a result of the inevitable loss of tax revenue to the school district by tl~ applit~tion of the LERTA Resolution Admitted that Plaintiff s taxes have not rmw increased doe to the LERTA Resolution. It is further averred that Plaintiffhas made no objection to the tax base of Penn Township. 11. Denied. Paragraph 11 avers only a conclusion of law, which Plaintiff is aot legally required to admit or deny. 12. Denied Paragraph 12 avers only a conclusion of law, which Plaintiff is not legally required to admit or deny... WHEREFORE, PlsintiffJohn McCrea r this Court ~y the Preliminary Objection of Defendant Penn Township and direct said Defendant to file a responsive pleading to the Amendod Complaint within 20 days after the Order denying the Preliminary Objection. Dated: August 30, 2012 ~ f'''"`' ~ c'~~-~''1 McCrea, Plaintiff oubliag Gap Road PO Box 341 Newville, PA 17241 Telephone: 7l 7.774.6656 3 VERIFICATION `fhe facts set forth in dx foregoing R~esponsc are trove and correct to die best of my lmowlalge, infornrstion, and belicf, aad I un~rstand that false statenzent4 herein are made subject to the penalties of 1$ Pa.C.S. Section 4904 relating to unsworn falsificsrtion to authorities. Dated: August 30, 2012 L C Jo McCrea JOHN MCCREA, PLAINTIFF V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, AND PAN CAL 954 CENTERVILLE (UNIT B) LLC, DEFENDANTS 12-3049 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS PENN TOWNSHIP AND BIG SPRING SCHOOL DISTRICT TO THE AMENDED COMPLAINT OF PLAINTIFF BEFORE HESS, P.J.. MASLAND, J. AND PLACEY, J. ORDER OF COURT AND NOW, this __y~~ day of November, 2012, upon consideration of the Defendants' Preliminary Objections, Plaintiff's response thereto, briefing by the parties, and argument en banc, the Objections are SUSTAINED and the Amended Complaint is DISMISSED. By the Court, ,, ~~ f Albert H. Masland, J. Y John McCrea, Pro se P.O. Box 341 Newville, PA 17241 / Marcus A. McKnight, III, Esquire For Penn Township / Philip H. Spare, Esquire For Big Spring School District / PAN CAL 954 Centerville (Unit B), LLC 125 Locust Street Harrisburg, PA 17101 ~a;CS ~ . /~ I t l 4~~~ c-> c ~~ =, c-, -' -p3 r,, --~ ~~ ' ~ -'' - rn r-- a C? ~~ r-z ~ p z° ~ ~ o Q ~ c ~ e=z ° rT-a ~ x,., sal JOHN MCCREA, IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. PENN TOWNSHIP, BIG SPRING SCHOOL DISTRICT, AND PAN CAL 954 CENTERVILLE (UNIT B) LLC, DEFENDANTS 12-3049 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS PENN TOWNSHIP AND BIG SPRING SCHOOL DISTRICT TO THE AMENDED COMPLAINT OF PLAINTIFF BEFORE HESS, P.J., MASLAND, J. AND PLACEY, J. OPINION AND ORDER OF COURT Masland, J., November 9, 2012:-- Before the court are the Preliminary Objections filed by Defendants Penn Township and Big Spring School District to the Amended Complaint filed by Plaintiff, John McCrea.' After briefing by the parties and argument en banc, we will sustain the Defendants' objections and dismiss the Amended Complaint for lack of standing. I. Background At issue in this Declaratory Judgment action is a tax incentive ordinance passed by Penn Township under Pennsylvania's Local Economic Revitalization Tax Assistance Act (LERTA). 72 P.S. §4722-26. In short, LERTA allows local taxing authorities to grant tax exemptions to new construction projects in In the Amended Complaint, Plaintiff named an additional Defendant PanCal 954 Centerville (Unit B) LLC. Plaintiff contends this Defendant will be the primary beneficiary of the tax incentives to which he objects. PanCal has not filed Preliminary Objections at this time. 12-3049 CIVIL TERM deteriorated areas of economically depressed communities. 72 P.S. § 4723. Penn Township, a largely rural township, decided to try to encourage warehouse development in the portion of its territory in the vicinity of Interstate 81. To do so, the Township devised a LERTA Ordinance that attached the "deteriorated" label to certain property that was eligible for warehouse projects. After advertisement and a public meeting, the Ordinance was passed. Following the passage of the Ordinance, Big Spring School District adopted a resolution exempting from real property taxation the value of improvements made within Penn Township's deteriorated zone. According to Plaintiff, these measures would afford developers a real estate tax exemption in excess of $800,000. Plaintiff brought this Declaratory Judgment action seeking to have the Ordinance declared illegal and invalid, null and void. The Township and the School District each filed Preliminary objections to the Amended Complaint. The Township raises the following arguments: Should the Plaintiff be barred from challenging the validity of a township ordinance based on a case in which he did not make an appearance at the Public Hearing, and where he is not a resident of Penn Township? Is the Court without subject [matter] jurisdiction in order to render a decision in a case in which no action has been taken which causes harm to the Plaintiff? The School District raises the following objection: Whether Plaintiff has failed to state an actual case or controversy which is ripe for review such that this Court lacks subject matter jurisdiction over this action? -2- 12-3049 CIVIL TERM Ultimately, we need not address all three objections, as we will dismiss Plaintiff s Amended Complaint on the grounds that he lacks standing to bring this Declaratory Action. II. Discussion To have standing to challenge a municipal ordinance, a plaintiff must demonstrate that he is "aggrieved by the ordinance." William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975). Our Supreme Court has described that status as follows: The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved' thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law. Id. at 280-81 (emphasis added). Here, Plaintiff avers the following in his Amended Complaint: Plaintiff will be adversely impacted by having the Big Spring School District lose more than $800,000 in real estate tax revenue over the five years exemption period, in that Plaintiff will be required to make up a percentage of the $800,000 in lost tax revenues by increased real property taxes on real estate owned by him... Am. Compl. ¶19. Plaintiff identifies no other way he is aggrieved other than potentially increased tax liability that he will share pro rata with all the other taxpayers in the School District. In his brief in opposition to the Preliminary Objections, Plaintiff further demonstrates that the harm he complains of is not unique to him. Ironically, in -3- 12-3049 CIVIL TERM combating the argument that he does not reside in Penn Township, Plaintiff confirms that (if there is any harm at all) all taxpayers are similarly situated. Both Penn Township and Big Spring School District appear to have lost sight of the fact that the action of Penn Township in enacting its LERTA Ordinance will have a deleterious financial impact on taxpavers of the entire Big Spring School District, not just on those taxpayers who reside in Penn Township. Br. at 4 (emphasis added). Plaintiff has failed to aver any facts sufficient to demonstrated any harm unique to him that would confer on him aggrieved status and standing to seek a declaratory judgment. Ultimately, Plaintiff has a tax policy disagreement with Penn Township and the Big Spring School District. His remedy is in the political process, not the courts. To paraphrase Chief Justice Roberts of the Supreme Court of the United States, where a tax exemption is lawful, it is not our role to forbid it, or to pass upon its wisdom or fairness.2 III. Conclusion In conclusion, Plaintiff was not aggrieved by the passage of the LERTA Ordinance and therefore lacks standing to challenge it via the instant Declaratory Judgment Action. Accordingly, his Amended Complaint is dismissed. ORDER OF COURT AND NOW, this ---y~~~ day of November, 2012, upon consideration of the Defendants' Preliminary Objections, Plaintiffs response thereto, briefing by 2 "Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness." National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2600 (2012). -4- 12-3049 CIVIL TERM the parties, and argument en banc, the Objections are SUSTAINED and the Amended Complaint is DISMISSED. John McCrea, Pro se P.O. Box 341 Newville, PA 17241 Marcus A. McKnight, III, Esquire For Penn Township Philip H. Spare, Esquire For Big Spring School District PAN CAL 954 Centerville (Unit B), LLC 125 Locust Street Harrisburg, PA 17101 By the Court, Albe H. Madan , J. sal -5- JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3049-- 2012 PENN TOWNSHIP, . BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION DISTRICT, PANCAL 954 CENTERVILLE (UNIT B), LLC, . Defendants: NOTICE OF APPEAL Notice is hereby given that John McCrea, plaintiff above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 9~' day of November, 2012. This Ordee has been entered in the docket, as evidenced by the attached copy of the docket entry Dated November 3 ~ , 2012 " "'"" ~ " ~G ~~ Jo cCrea, Plaintiff, Pro Se PO 341 Newville, PA 17241 Telephone 717.776.6656 c -a c ~„ ~ ', ~~~ -~ a ~ --, cx~ v- - ' ~~ ~ _ '~ ~`_ r- yz a +~ mac' -c " ~ ~ ~- ~, -~ z -'' W` ~Y ~ ` Y . `~ ~ , ~ : ~_n .p: ,~" .., ~ 5y ao ers~ ios j/ ~~'~83~45 PYS511 Cumberland County Prothonotary~s Office Page 1 Civil Case Print 2012-03049 MCCREA JOHN (vs} PENN TOWNSHIP ET AL Reference No... Filed......... 5/15/2012 Case TTyy~pe...... MISCELLANEOUS - DECLAR Time. 10.36 Judgmen'f.. .. .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info MCCREA JOHN 221 DOUBLING GAP ROAD NEWVILLE PA 17241 PENN TOWNSHIP 1301 CENTERVILLE ROAD NEWVILLE PA 17241 PENN TOWNSHIP BOARD OF SUPERVISORS 1301 CENTERVILLE ROAD NEWVILLE PA 17241 BIG SPRING SCHOOL DISTRICT 45 MT ROCK ROAD NEWVILLE PA BIG SPRING SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS 45 MT ROCK ROAD NEWVILLE PA PLAINTIFF PRO SE DEFENDANT DEFENDANT DEFENDANT DEFENDANT Judgment Index Amount Date Desc PENN TOWNSHIP BOARD OF SUPERVISORS BIG SPRING SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS PENN TOWNSHIP BOARD OF SUPERVISORS BIG SPRING SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS 6/12/2012 DISCONTINUED 6/12/2012 DISCONTINUED 6/12/2012 DISCONTINUANCE 6/12/2012 DISCONTINUANCE * Date Entries - FIRST ENTRY - - - - - - - - - - 5/15/2012 COMPLAINT - DECLARATORY JUDGMENT - BY PLFF/PRO SE 5/30/2012 ACCEPTANCE OF SERVICE - COMP INT FOR DECLARATORY JUDGMENT - BY PHILIP H SPARE ATTY FOR DEFT~IG SPRING SCHOOL DIST ------------------------------------------------------------------- 5/30/2012 ACCEPTANCE OF SERVICE 5//15//12 - COMPLAINT FOR DECLARATORY JUDGMENT BY MARCUS A MCKNIGHT III ATTY FOR DEFTS/PENN TWP AND PENN TWP BOARD OF SUPERVISORS ------------------------------------------------------------------- 6/T2/2012 PRAECIPE FOR DISCONTINUANCE - DEFT PENN TOWNSHIP BOARD AND DEFT BIG SPRING SCHOOL - BY JOHN MCCREA PLFF ------------------------------------------------------------------- 7/24/2012 CONSENT TO FILE AMENDED COMPLAINT - BY PHILIP H SPARE ATTY FOR DEFT BIG SPRING ------------------------------------------------------------------- 7/24/2012 CONSENT TO FILE AMENDED COMPLAINT - BY MARCUS A MCKNIGHT III ATTY FOR PENN TOWNSHIP ------------------------------------------------------------------- 7/24/2012 AMENDED COMPLAINT FOR DECLARATORY JUDGMENT - BY JOHN MCCREA PLFF ------------------------------------------------------------------- 8/13/2012 PRELIMINARY OBJECTION OF BIG SPRING SCHOOL DIST FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION - BY GARETH D PAHOWKA ATTY FOR DEFT ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary's Office Civil Case Print -03049 MCCREA JOHN (vs) PENN TOWNSHIP ET AL erence No... e e.....: MISCELLANEOUS - DECLAR gmen ..... .00 ge Assigned: HESS KEVIN A posed Desc.: --------- Case Comments ------------- 0/2012 0/2012 0/2012 4/2012 4/2012 4/2012 7/2012 4/2012 9/2012 Page 2 Filed......... 5/15/2012 Time. .... 10.36 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: RESPONSE OF PLAINTIFF JOHN MCCREA TO PRELIMINARY OBJECTION OF DEFENDANT BIG SPRING SCHOOL DISTRICT - BY PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTION OF DEFT - BY PLFF ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF PENN TOWNSHIP FOR LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THIS ACTION - WITH NOTICE TO PLEAD - BY MARCUS A MCKNIGHT III ATTY FOR DEFT -------------------------------------------------------------------- DEFTULATION AND AGREEMENT - BY PLFF AND PHILIP H SPARE ATTY FOR PRAECIPE TO REINSTATE AMENDED COMPLAINT - BY JOHN MCREA/PLFF ------------------------------------------------------------------- RESPONSE OF PLFF JOHN MCCREA TO PRELIMINARY OBJECTION OF DEFT PENN TWP - BY PLFF/PRO SE ------------------------------------------------------------------- ORDER OF COURT - 9 6/12 - IN RE: STIPULATION AND AGREEMENT - ORDERED AND DIRECT D: 1 - ARGUMENT ON THE PRELIMINARY OBJECTION OF DEFT BIG SP ING SCHOOL IS CONTINUED FROM ITS PRESENTLY SCHEDULED DATE OF 9/712 TO NEXT REGULARLY SCHEDULED ARGUMENT COURT OF 10/5/12 2 - ***PROTHONOTARY IS DIRECTED TO RELIST PRELIMINARY ARGUMENTNCOURTESCHBDULEDRFOR 10/5%12DISBYITHEFCOURTGKEVE N ATHESS PJ COPIES MAILED 97/12 ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT PENN TWP PRELIMINARY OBJECTION - BY JOHN MCCREA/PLFF PRO SE ------------------------------------------------------------------- ORDER OF COURT DATED 11-9-12 IN RE PRELIMINARY OBJECTIONS OF DBFENDANTS PENN TOWNSHIP AND BIG SPRING SCHOOL DISTRICT TO THE AMENDED COMPLAINT OF PLAINTIFF BEFORE HESS PJ MASLAND J AND PLACEY J - OBJECTIONS ARE *SUSTAINED* AND THE AMENDED COMPLAINT IS *DISMISSED* - BY THE COURT ALBERT H MASLA~ID J- COPIES MAILED 11-9-12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - **************************************************************************** Escrow Info ation es & Debits Bed Bal P~ntts~Ad~ End Bal **************************** ******** ****** ******************************* MPLAINT 65.25 65.25 .00 X ON CMPLT .50 .50 .00 TTLEMENT 9.50 9.50 .00 TOMATION 5.00 5.00 .00 P FEE 23.50 23.50 .00 TTLEMENT 9.50 9.50 .00 INSTATE COMPL 11.75 11.75 .00 EACIPE ARGUME 19.75 19.75 .00 EACIPE ARGUME 19.75 ------------ 19.75 .00 -- 164.50 ---------- --- 164.50 --------- .00 **************************************************************************** End of Case Information **************************************************************************** JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3049-- 2012 PENN TOWNSHIP, BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACTION DISTRICT, PANCAL 954 CENTERVILLE (UNIT B), LLC, Defendants: PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.A.P.121.: Service by first class mail addressed as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 For Penn Township Philip H. Spare, Esquire Stock and Leader 231 Philadelphia Street. Suite 600 York, PA 17401-2994 For Big Spring School District Registered Agent Solutions 125 Locust Street Harrisburg, PA 17101 Registered Agent for PANCAL 954 Centerville (Unit B) LLC Dated: ~ ~ 3 U , 2012 Jo cCrea, Plaintiff, Pro Se PO x 341 Newville, PA 17241 Telephone 717.776.6656 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF P1ainNff :CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW v. : NO. 3049-- 2012 j ~,.a • PENN TOWNSHIP, -y ~ ~ ~:,> BIG SPRING SCHOOL :DECLARATORY JUDGMENT ACT DISTRICT, PAN CAL 954: ~ ~ o CENTERVILLE (UNIT B) `- - LLC, ' ~; a ~ Defendants: :~- '~= ~. "'~ .~; 4n . - ~.,~ RETURN OF SERVICE Raymond R. Heckman, Jr. verifies that he is a "competent adult" as that term is defined in Rule 76, Pa. R.C.P., and states that he did serve a true and correct copy of the Amended Complaint and Notice to Defend in the within- captioned action upon Defendant, PANCAL 954 Centerville (Unit B) LLC, on September 13, 2012, at approximately 9:00 a.m. prevailing time, by making known to Anthony DiSanto, an employee of Registered Agent Solutions, the registered agent for said Defendant, at 125 Locust Street, Harrisburg, Dauphin County PA 17101, the contents of the Amended Complaint and Notice to Defend and, at the same time, handing to him said true and correct copy of the Amended Complaint and Notice to Defend. -fi- _~-, ;-r~ _.~ F` ..~r.• L. _.-~ ,- ~= ;~ -T. }' "1 ,~;, r Dated: October ~, 2012 Raymo d R. Heckman, Jr. r VERIFICATION The facts set forth in the foregoing Return of Service are true and correct based upon my personal knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: October ~ , 2012 /~ C-e~-~- Raymond R. Heckman, Jr. IN THE COMMONWEALTH COURT OF PENNSYLVANIA John McCrea, Appellant V. No. 2206 C.D. 2012 Submitted: June 7, 2013 Penn Township, Big Spring School : Lowe- ��r�" 1�ocKz�'# �Oqq District, PANCAL 954 Centerville (Unit B), LLC BEFORE: HONORABLE DAN PELLEGRI I, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge { c-. OPINION NOT REPORTED z� MEMORANDUM OPINION BY _ PRESIDENT JUDGE PELLEGRINI FILED: July 10, 2013 ' ` %I John McCrea (McCrea) appeals, pro se, the order of the Court of Common Pleas of Cumberland County (trial court) granting the preliminary objections of Penn Township (Township), Big Spring School District (District), and PANCAL 954 Centerville (Unit B), LLC (Landowner) and dismissing McCrea's Amended Complaint for Declaratory Judgment. We affirm. Landowner owns a 116.82-acre parcel of unimproved land in the Township that is also within the District. On March 1, 2012, the Township enacted Ordinance No. 2012-01 designating an area within the Township, including Landowner's parcel, as "deteriorated" and, therefore, eligible for a tax exemption for five-years under the Local Economic Revitalization Tax Assistance Act (LERTA).' (Exhibit A to Amended Complaint, Reproduced Record (R.R.) at R-33 1 Act of December 1, 1977, P.L. 237, as amended, 72 P.S. §§4722-4727. Section 2 of LERTA, 72 P.S. §4723, states that the act authorizes local taxing authorities to exempt new construction in deteriorated areas of economically depressed communities and improvements to deteriorated industrial, commercial and other business properties thereby implementing Article 8, Section 2(b)(iii) of the Pennsylvania Constitution. With respect to the designation of "deteriorated areas;" Section 4(a) of LERTA states, in pertinent part: (a) Each local taxing authority may by ordinance or resolution exempt from real property taxation the assessed valuation of improvements to deteriorated properties and the assessed valuation of new construction within the respective municipal governing bodies designated deteriorated areas of economically depressed communities in the amounts and in accordance with the provisions and limitations hereinafter set forth. Prior to the adoption of the ordinance or resolution authorizing the granting of tax exemptions, the municipal governing body shall affix the boundaries of a deteriorated area or areas, wholly or partially located within its jurisdiction, if any. At least one public hearing shall be held by the municipal governing body for the purpose of determining said boundaries. At the public hearing the local taxing authorities, planning commission or redevelopment authority and other public and private agencies and individuals, knowledgeable and interested in the improvement of deteriorated areas, shall present their recommendations concerning the location of boundaries of a deteriorated area or areas for the guidance of the municipal governing bodies, such recommendations taking into account the criteria set forth in the ["Urban Redevelopment Law," Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§1701-1719.2,] for the determination of"blighted areas," and the criteria set forth in the [former "Neighborhood Assistance Act," Act of November 29, 1967, P.L. 636, repealed by the Act of June 16, 1994, P.L. 279,] for the determination of "impoverished areas," and the following criteria: unsafe, unsanitary and overcrowded buildings; vacant, overgrown and unsightly lots of ground; a disproportionate number of tax delinquent properties, excessive land coverage, defective design or arrangement of buildings, street or lot layouts; economically and socially undesirable land uses.... The ordinance (Footnote continued on next page...) 2 V - R-36.)2 On May 7, 2012, the District adopted Resolution No. 20 which granted Landowner an exemption for 65% of the real estate taxes that would be levied on warehouse improvements on its parcel for a period of five years from the date on which the completed improvements first resulted in an increased tax assessment up to July 1, 2018. (Exhibit C to Amended Complaint, R.R. at R-38 - R-40.)3 On July 24, 2012, McCrea, a resident and taxpayer of the District and an elected School Director of the District, filed the Amended Complaint' in the (continued...) or resolution shall specify a description of each such area as determined by the municipal governing body, as well as the cost of improvements per unit to be exempted, and the schedule of taxes exempted as hereinafter provided. 72 P.S. §4725(a). 2 McCrea has failed to comply with Pa. R.A.P. 2173 requiring that the pages in the Reproduced Record be numbered separately in Arabic figures followed by a small a. 3 Specifically, Section 3 of the Resolution sets forth the exemption schedule stating that the exemption is limited to a period of five years beginning in the tax year first following the date on which Landowner's property is initially reassessed due to the improvements, and that 65% of the eligible assessment shall be exempted for five years up to July 1, 2018. (Exhibit C to Amended Complaint, R.R. at R-39.) Section 4 of the Resolution sets forth the procedure Landowner must follow for obtaining the exemption, including: securing a building permit to improve the property; filing a written exemption request with the District and the County Board of Assessment Appeals (Board); completing the improvement to the property as evidenced by either the issuance of a Use and Occupancy permit or the use of the improvement; and notifying the District and Board of the completed improvement in writing. (Id. at R-39 - R-40.) 4 McCrea had filed an initial complaint in which he named the Township's Board of Supervisors and the District's Board of School Directors as parties. McCrea's Amended Complaint removed both of those parties and added Landowner as a party to the suit. 3 trial court pursuant to the Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541, and Pa. R.C.P. No. 1601. In the Amended Complaint, McCrea alleged that the Township violated Section 4 of LERTA, 72 P.S. §4725, in designating Landowner's parcel as "deteriorated" in the Ordinance because it did not meet the statutory criteria, and that the District's Resolution was likewise infirm because it was based upon the invalid Ordinance. (R.R. at R-29 - R-31.) The Amended Complaint also alleged that the tax exemption was expected to go into effect for the 2013-2014 school tax year, and that McCrea will be adversely impacted by the District's lost tax revenue in that it will result in increased taxes on his property. (Id. at R-29.) Accordingly, McCrea asked the trial court to declare both the Ordinance and the Resolution as illegal and invalid, null and void, and to grant any other relief that it deems just and proper. (Id.) The District and the Township filed preliminary objections alleging that the trial court lacked subject matter jurisdiction because there was no case or controversy ripe for review because the contingencies triggering a LERTA exemption under the Resolution had not occurred, and McCrea has not and may never suffer the alleged harm of increased property taxes. The Township also preliminarily objected because McCrea does not have standing to challenge the Ordinance because he is not a resident of the Township and he did not appear and object to its enactment. The trial court sustained the preliminary objection that McCrea does not have standing and dismissed the Amended Complaint and McCrea filed the instant appeals,6 5 This Court's review of a trial court's order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court committed legal error or (Footnote continued on next page...) 4 The sole claim McCrea raises in this appeal is that the trial court erred in finding that he lacked standing to contest the legality and validity of the Ordinance and the Resolution. Specifically, McCrea alleges that he satisfies the five elements for the taxpayer exception to the traditional standing requirements: (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained-of matter are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better situated to assert the claim. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 207, 888 A.2d 655, 662 (2005) (citations omitted). While McCrea is correct that he possesses taxpayer standing to challenge the exemption under the standard enunciated above, see Mazur v. Washington County Redevelopment Authority, 954 A.2d 50, 55-56 (Pa. Cmwlth. 2008) (Mazur 1), the trial court properly sustained the preliminary objections because McCrea's allegations in the Amended Complaint fail to set forth a cause (continued...) abused its discretion. Szoko v. Township of Wilkins, 974 A.2d 1216, 1219 n.7 (Pa. Cmwlth. 2009) (citation omitted). In reviewing preliminary objections, all well pleaded relevant and material facts are considered as true and preliminary objections shall only be sustained when they are free and clear from doubt. Id. Such review raises a question of law so our standard of review is de novo and our scope of review is plenary. Id. 6 By order dated April 29, 2013, this Court has precluded Landowner from filing a brief or appearing at oral argument, if scheduled, based on its failure to file a brief within 14 days of the order. 5 0 of action' that the District or the Township erred in approving the tax exemption by acting arbitrarily, in bad faith, contrary to the statutory procedures, or in violation of constitutional safeguards in designating the property as a "deteriorated area" under LERTA. See Mazur v. Trinity Area School District, 599 Pa. 232, 246-47, 961 A.2d 96, 105-06 (2008) (Mazur fl). Rather, the Amended Complaint merely makes bald conclusory assertions that the property does not meet the statutory criteria under LERTA or the Urban Redevelopment Law' without pleading any facts that the property was not, in fact, a deteriorated area. (See R.R. at R-29 - R- 31). Such bald assertions are not sufficient to make out a cause of action that the Township or the District acted arbitrarily,9 and the trial court did not err in sustaining the instant preliminary objections with respect to claims regarding the Ordinance or the Resolution. ' As the Pennsylvania Supreme Court has noted, "[s]everal discrete doctrines — including standing, ripeness and mootness — have evolved to give body to the general notions of case or controversy and justiciability." Rendell v. Pennsylvania State Ethics Commission, 603 Pa. 292, 307, 983 A.2d 708, 717 (2009). While this Court may not sua sponte raise issues of standing or justiciability, id., we may affirm the trial court's order on any basis raised below. Boro Construction, Inc. v. Ridley School District, 992 A.2d 208, 214 n.9 (Pa. Cmwlth. 2010). 'Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§1701-1719.2. 9 See. e.g., Commonwealth v. Boczkowski, 577 Pa. 421, 467, 846 A.2d 75, 102 (2004) ("An action or factor is arbitrary if it is not cabined by law or principle. See, e.g., Black's Law Dictionary 100 (Seventh Ed. 1999) (defining arbitrary as, inter alia: `1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact....'); Merriam—Webster's Collegiate Dictionary 59 (10th Ed. 2002) (defining arbitrary as, inter alia: 'l: depending on individual discretion (as of a judge) and not fixed by law ... 2a: not restrained or limited in the exercise of power: ruling by absolute authority ... 3a: based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something....')...."). 6 i i Accordingly, the trial court's order is affirmed. AN PELLEGRINI, Pres' ent Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John McCrea, Appellant V. No. 2206 C.D. 2012 Penn Township, Big.Spring School District, PANCAL 954 Centerville (Unit B), LLC C -7 2 ?T ti• �C r� ORDER AND NOW, this 10" day of Jam, 2013, the- order of the Court of Common Pleas of Cumberland County dated November 9, 2012, is affirmed. AN PELLEGRINI, Presi nt Judge Certified from the Record JUL 10 2013 and Order Exit CommonWeaftb Court of Vennoplbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-91 SS September 23, 2013 www.Pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: McCrea v. Penn Twp et al 2206 CD 2012 Trial Court: C-timberland-Gounty C.o.urt-of-Gomm_on-P_le_as__ Trial Court Docket No: 3049=201-2 — - Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description f Remand/Remittal Date: ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Res ectf Ily, Commonwealth Court Filing Office c r -0 MOD cn -; Cn z C:l CD } C: 3 1 GJ Cn Mc6rea v. Penn Twp et al September 23, 2013 2206 CD 2012 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record(to be returned): Signature Date Printed Name