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HomeMy WebLinkAbout06-1433IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), NO. L4 33 G[ u O(o - ? Appellant, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, PETITION FOR APPEAL Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Filed on behalf of Appellant, Sanndrel of Pennsylvania (Kimco Realty Corporation) Interested Parties. Counsel of Record for this Party: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 50"' Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 PT: #252544 v1 (5#V401!.DOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), Appellant, CIVIL DIVISION NO. OL - 143,3 Cd r u ? C ?Z?iz I-11 VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL AND NOW, comes Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) ("Appellant'), by and through its attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Petition for Appeal, and in support thereof states as follows: Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) is the record owner of commercial property situate at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania (the "Property"). The Property is identified as Parcel No. 10- 22-0531-020 in the Cumberland County assessment records. 2. This appeal concerns the tax years 2005 and forward. At this time, the Property was comprised of a multi-tenant shopping center which includes, inter alia, a cinema. Cumberland County, Hampden Township and Cumberland Valley School District are the taxing bodies interested in the taxable status of the Property. 4. The Board of Assessment Appeals of Cumberland County, Pennsylvania (the "Board") is a Board created under the Act of May 21, 1943, P.L. 571, 72 P.S. § 5453.101 et sue, and is authorized to assess and value real property for the purpose of taxation in counties of the Fourth Class and to hear appeals from said assessments by aggrieved parties. 5. As of September 1, 2006, the Property was described for the 2006 tax year on the official records of Cumberland County as follows: Land $890,630 Building $5,109,370 Total $6,000,000 6. On August 31, 2005, Appellant duly appealed the 2006 assessment to the Board for regress and reduction of said assessment. A copy of said Appeal Form is attached hereto as Exhibit A. 7. On September 8, 2005, the Board issued an interim assessment for the Property effective September 1, 2005 due to the demolition and construction of a building performed by Cinema Supply, a tenant in the shopping center. The assessment for the Property which included the cinema was increased as follows: Land $1,800,890 Building $4,899,110 Total $6,700,000 A copy of the Change of Assessment Notice is attached hereto as Exhibit B. 8. On October 12, 2005, Appellant duly appealed the interim assessment to the Board for regress and reduction of said assessment. A copy of said Interim Appeal Form is attached hereto as Exhibit C. -2- PT: 6252544 vl (W401 LDOC) 9. The Board held a hearing concerning both the 2005 interim assessment and 2006 assessment appeals on February 8, 2006. 10. At the hearing, Appellant introduced into evidence an appraisal of the Property prepared by Scott Cole valuing the property at a fair market value $5,350,000. The appraisal included the value of the shopping center, including the cinema building. 11. The County argued that the Cinema Supply building was under a ground lease and should have its own parcel and assessment on it. The County offered a value of $5,000,000 just for the cinema building. 12. After a hearing, the Board reduced the assessment on the Property for the tax year 20051 to Five Million Three Hundred Fifty Thousand Dollars ($5,350,000) by issuing a Decision Order ("Decision") dated February 17, 2006. A copy of the Decision is attached hereto as Exhibit D. 13. Following the hearing, the Board created a new parcel for the Cinema Supply building at parcel number 10-22-0531-020.-LL001. 14. On March 2, 2006, the Board issued a Notice of Assessment Change for the Cinema Supply building (parcel number 10-22-0531-020.-LL001) setting forth an assessed value of $3,000,000 for the building only. A copy of said Notice is attached hereto as Exhibit E. 15. Appellant originally filed this appeal challenging the original $6,000,0000 assessment and the interim $6,700,0000 assessment that the Board placed on the Property which was comprised of the shopping center, including the cinema. Now, notwithstanding, the The decision references the tax year 2005 only, even though the appeals and hearing were for both the 2005 and 2006 tax years. We have contacted the Board to see if a separate decision will be issued for 2006, however, we preserve our 2006 appeal by filing this petition. -3- PT: #252544 vt (5#V401!.DOC) reduction on parcel 10-22-0531-020, the combined assessment of parcel 10-22-0531-020 and the new parcel is $8,350,000. 16. This Petition is herewith presented within thirty (30) days from the mailing date of the Decision. 17. Appellant is aggrieved by the Board's adjudication. Specifically, Appellant avers, on information and belief, that the assessment remains unfair, unreasonable and excessive. Appellant further avers as follows: a. The assessment is not equal or uniform with other properties similarly located in Cumberland County. b. There is a complete lack of uniformity in the assessment of real estate within Cumberland County which makes the Property assessment unjust, unreasonable and discriminatory. C. The fair market value upon which the assessment is based is in excess of the actual fair market value of the Property. d. The Cinema Supply building is being assessed twice. C. Other such reasons as will be developed at the time of hearing. -4- PT: #252544 vl (5#V4011.D0Q WHEREFORE, Appellant, being aggrieved by the assessment of the Board, files this Petition for Appeal and requests that this Honorable Court herein determine its appeal and decrease the assessment of the Property to such amount as may be right and proper. Respectfully submitted, k Dusty El s 'r PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: March 13 , 2006 -5- PT! #252544 vi (5#V401!.DOC) CUMBERLAND COUNTY ASSESSMENT APPEAL • COMMERCIAL / INDUSTRIAL Under the provisions of lsw any Person' 997iered by any assessment desiring to appeal shall fie a staterrol, In wdlkg, with the Dowd of 41hpanumar1 Appeals on or beers September tel. Such statement alel desl7wte to assessment appealed from and the address to which W board atwl mail notice of wthen and where to appear bra hearing. No appeal shat be heard by the board urge" appepam snap find R filed the appeal and required documents on or before September tst, as set forth by taw. (7 includes texkg districts neoord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk. Esauire . Penner Hamihnn. 11 p 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Hampden Township Number Strart soroll"NON0 Assessors Tax Map Identification C 10-22-0531-020 Assessment Appealed $6,000,000 Opinion of Markel Value of this Property To be Provided Date Purchased 12/31/72 Purchase Price Not available Amount of Fire insurance Not reflective of market value Slate reasons for filing this appeal: The fair market value Ullon which the acwssment is based is in exness of the Pn1x9)ds_ value. The assessment is not uniform with assessments of other property in the County. ds Property Type: Cheek and Complete Proper Classification: X Commercial: Use Retail Gross Square Ft_ 121,672 Square Ft. Rentable Area 121,672 Owneroccupied No Tennant Occupied If Leased: Annual Rent To be provided Data Constructed Office: Industrial: Gross Square Ft. Owner Occupied If Leased: Annual Rent Total Square Ft. Square FL Plant Area Tenant Occupied Yes 1972 Square Ft Rentable Area Tennant Occupied Date Constructed Square Ft Rentable Area Owner Oocupied M Leased: Annual Rent Lease Type: Not _ Gross _ Combination _ Date Constructed Other. Use Gross Square Ft. If leased: Annual Rent Date Constructed Tenant Occupied "ATTACH LAST 3 YEARS INCOME a EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME t EXPENSE FORM" Certificate of Appeal Vas thereby declsre my/our inlsrdion b appeal from the assessed valuation of the properly described above and do hereby "* that the stawmerts made in th's appeal are "And correct I understand that Was statements sereirt are made subjed to the perales of 18 Pa. C.S. Section V`-? ?1 ? befit o u ?frt falsification to autuorities. / Signed: Date: ?(Z y ? o J Phone t: (None) owneris) of Record ; notices of these proceedings shall be malled to: O-- Use On Fw Name: Dusty Elias Kirk, Esquire Owner Occupied (Day/Office) EXHIBIT i -? Address: P r Hamilton LLP 50th Floor, One Mellon Center, 500 rant Street, Pittsburgh, A GROSS ANNUAL INCOMES FOR 3 PRIOR YEARS To m provided. %Jww 1a_. 1e_ 19_ troore100%occupisd ' indud4p value.of rent4ree units S S s Actual Inc om received s s i vacancy s S s Actual other koone List bylype: It S s S $ s s s s s s s s s s s s s s s Total Actual Income Received s $ i GROSS ANNUAL EXPENSES FOR 3 PRIORYEARS Items Indoluded Gross Annual Expenses 19_ 19 _ 19` In Real Real Estate Taxes S i $ d Healing Fww Insurance d Air. Cond. IFxPENSEB tend peal d Electricity Other d TV Came D Water IP Electricity Telephone Gas Water & Sewer Trash Removal Heating Manager's Salary OPERATIONAL Fees EXPENSES Legal & Ac rg Psyroa Taxes Group Irsruraroa Advertising Wages & Salaries Supplies Maint. 6 Repair Replace. Reserve Other s S d Carpet d Drapes d Range d Rmg. d Dishwasher d Garbage Disposal d Paddrp D Pool d Rec. Faditty d OTHER: O d C3 O Furniture t of FuMWW Units: ® TOTAL EXPENSES wm to l;rft i i i oierd 9lc III Skip. Owner Pkaat: use additional pages for any other remarks relative to the Property. O Rental Co. O Otter Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square Carlisle, PA 17013 Board of Assessment APPeah: Lloyd W. Bucher P- Fred Helelflngar. Sarah Hughes SANNDREL OF PENNSYLVANIA INC CIO KIMCO DEVELOPMENT CORP 3333 NEW HYDE PARK ROAD #100 PO BOX 5020 NEW HYDE PARK NY 11042 0 0 oCsv? 7 (717) 240.6350 (717) 240-6354 (fax) BONNIE M. MAHONEY Chief Assessor STEPHEN D. 77LEY Assistant Solicitor CHANGE OF ASSESSMENT NOTICE THIS IS NOT A TAX BILL NAILING D=Xs 80pterber e, 2065'' Parcel identifiers 10-22-0531-020. District, 10 - SANPDSH TOWNSHIP school.., CONBYRLAND VALLEY 8D New Assessed Value indicated baler will take affect for 2006 County/Library/Nuoicipal 2006-2007 School Location, 3431 SIWPSON PARRY ROAD LOT 2 PH 35 PG 98 TARAWA UNIT/LOT ID..! L-0002 Land Size...., 11.67 acres Property Type, C Couaaareial - Osaeral REASON FOR CBANGEr . ADDITION To'CObD=CIAL/TNDSTRL BLDG Old - Now Total Assessed Value Assessed Value Change of Assessment Land 890,630 1,800,890 910,260 Buildings 5,109,370 4,899,110 -210,260 L TOTAL 61000,000 6,700,000 700,000 Chan and Green Values Land NOT NOT NOT Buildings APPLICABLE APPLICABLE I APPLICABLE TOTAL leah erJd eePt lWY ' n values 6eoDrna effe6l ohly lAr+ l x ePA Ca 110. F40** ust be eaeiveD ny q3H s s ple S Ki A 40, [o4 j i•T,4 •. ' ir ' e ..v. InterimAssessed Value, 700, 000'• - 2005 Cary/Try/eoro...... 4 months 2005 School ............. 10 months QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 p.m. Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing ccoa.net. CUMBERLAND COUNTY ASSESSMENT APPEAL- COMMERCIAL! INDUSTRIAL Under the Wovfslons of law any parson' aggrieved by any assessment desiring to appeal shall Me a staterratt, in wrNitg, with the Board of Assessment Appeals on or before September ist. Such slatemerd shall designate the assessment appealed Iron and the address to which Board shelf mail notice of when and where to appear fa a hearing. No appeal shelf be heard by the board unless appellant shelf first *.w tiled the appeal and required doeumsms on or before September 1 sk as set forth by law. . () Includes taxing d aricls neoord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk Esquire Penuer Hamilton i P 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Hampden Townshin Assessors Tax Map Identification s: Number Street Swortown" 10-22-0531-020 Assessment Appealed $6,700,000 Opinion of Market Value of this Property To be provided Date Purchased 12/31/72 Purchase Price Not available Amount of Fire Insurance Not reflective of market value which the asceccment is based is in evicess of the nm? r.r?'s State reasons for filing this appeal: The fair market value on value. The assessment is not uniform with assessments of other property in the County. PropectyType: Cheek and Complete Proper Classification: x Commercial: Use Retail Gross Square Ft.. 121.672 Owner Occupied No 0 Leased: Annual Rem To be provided Office: Gross Square Ft. • Owner Occupied If Leased: Annual Rent Industrial: Total Square Ft. Square Ft Plant Area Tenets Occupied Square Ft Rentable Area 121,672 Tennant Occupied Yes Date Constructed 1972 Square FL Rentable Area Tennant Occupied Date Constructed Square Ft Rentable Area Owner Occupied If Leased: Annual Rent Lease Type: Net _ Gross _ Combination _ Date Constructed Other. Use Gross Square Fl. Owner Occupied Tenant Occupied If Leased: Annual Rent Date Constructed -ATTACH LAST 3 YEARS INCOME A EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE ARM' Certificate of Appeal t/se hereby declare my/our innlerdion to appeal from the assessed valuation of the property dewribed above and do herebyVi*tha-ithe statements made in this appeal are true anal correct I understand that false statements herein are mrde sub)ecl to ft pen eftlis of 1S Pa. C.S. Shim 4 "to m tolsifkation to authorities. Signed: Date: October 10, 2? 1 11 ?nn5 t?(v O(](]L fEY Phones: (Hone) /d (Day/Offlee) 412-454-5000 notices of these proceedings shall be rnalled to Name, Dusty Elias Kirk, Esquire Office Use /M ' Address: Pepper Hamilton LLP 50th F oor, One Mel on C GROSS ANNUAL INCOMES FOR 3 PRIOR YEARS To be provided. ied 100% occu d 4 19_ t9_ 19 p ncorre Jscta Including value of rent-tree units s $ $ Actual hwme received S S $ Vacancy s s s Actual other inooma List by Type* S S s S $ s s $ s $ s s s s s s s s s $ Total Actual Ineoms Received $ $ $ GROSS ANNUAL EXPENSES FOR 3 PRIOR YEARS Gross Annual Expanses 19 19 name hrdduded 19` In Pont Real Estate Taxes $ ! s d Heaft FOLD Insurance D Air. Cond. EXPENSES Land Rent 0 Electrichty Other 0 TV Cable d Water Electricity s $ S 0 Carpet Telephone 0 Drapes Gas 0 Range Water & Sewer 0 Ratrig. Trash Removal 0 Dishwasher Healing 0 Garbage Manager's Salary Disposal OPERATIONAL Fes O Parking Legal a Accounting 0 Pool Payroll Tama 0 Rec. Rs cility Grout Insurance Adv+rfisiri9 0 OTHER: Wages 6 Salaries 0 Supplies 0 Maht. a Repair 0 Replace. Reserve 0 Furniture Other _ M of Furnished tlrft: FwnWa in IlYi4 TOTAL EXPENSES S f i 0" W. 0 SMg. Owns Please use addttlooal paw for any other remarks reMyo to the property. 0 Rental Co. 0 Otlw Cumberland County Old Courthouse One Courthouse Square Carlisle, PA 17013 Board of Assessment Appeals (717) 240-6350 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE M. MAHONEY Lloyd W. Bucher Chief Assessor R. Fred Hefetfinger Sarah Hughes STEPHEN D. TILEY Assistant Solicitor DECISION ORDER MAILING DATE: February 17, 2006 PARCEL NUMBER: 10-22-0531-020. SANNDREL OF PENNSYLVANIA INC C/O DUSTY ELIAS KIRK, ESQUIRE 50TH FLOOR ONE MELLON CENTER 500 GRANT STREET PITTSBURGH PA 15219 Dear Property Owner: This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals regarding the above-referenced parcel. DATE OF APPEAL HEARING: 02/08/2006 DATE DECISION RENDERED: 02117/2006 EFFECTIVE FOR TAX YEAR: 2005 DECISION RENDERED: [ ] Withdrawn By Applicant [ ] Abandoned For Failure To Appear [ ] Denied - No Change [ ] Approved Review Appraiser's Changes [X] Revised Assessment Based on Hearing [ ] Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: 6,700,000 New Assessed Value: 5,350,000 NOT APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Prothonotary's office on or before March 20, 2006. f Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square Carlisle, PA 17013 Board of Assessment Appeals LloydW Bucher R. Fred HefeEnger. Sarah Hughes CINEMA SUPPLY, INC 502 SOUTH MARKET STREET MILLERSVILLE PA 17061 (717) 240-6350 (717) 240-6354 (fax) BONNIE M. MAHONEY Chef Assessor STEPHEND. TILEY Assistant Sogeitor CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL NAILING DATE, March 2. 2006 Parcel Identifiers 10-22-0531-020.-LLo01 District, 10 - RAMPDEM TOWNSHIP School.., CUMBERLAND VALLEY SD New Assessed Value indicated below will take effect for 2007 County/Library/Municipal 2006-2007 School Locations 3431 SIMP90N FERRY ROAD LAND LEASE PS 89 PO 20 TAXABLE Land Size..... .00 acres Property Type, C Cormercial - General REASON FOR CHANGE, NEW PARCEL Old New Total Assessed Value Assessed Value Change of Assessment Land 0 0 0 Buildings 0 3,000,000 3,000,000 TOTAL 0 3,000,000 3,000,000 Chan and Green Values Land NOT NOT NOT Buildings APPLICABLE APPLICABLE APPLICABLE TOTAL ?d nwaiDestn?rt '?b?`?latia>ipWlaact?n.ansia?ere?var t...-, BAk??cA? ?sar?cfiafSe s.¢DUSi er?aCamedd?E e!?bY ?'?p^t Z?ntutYe lof'gdRfi; aXect?a%alldv<iuq???,,}?Cdt/atyalrpre?adfnr?'J?ar+tat? ; i0f.P?1 ire D;et?adfaAS Interim Assessed Values 3,000.000 2006 Cnty/Twp/Soro ...... 12 months 2005 School ............. 10 months RILaF! t(3 FQ$if77t1,I'R,Ii41 " #€.yi0 ?lfi8a7tt t4he appualstaltl4itr31pBt t)I tffi 1nf1Fclt 1835. than it lLferk t a7r?? i f rfh?r fitd§`a 11aE;appeal +I,tlti lb# , bmw n A peals. The appaal test e 'ad en wrkling'xs1 WAWW.48y? tfam [Its ifi 371it[ ?ITf sti B r?e?itf f fie. aotice.r appea) naiist sp@Cf#lcettyrJtstgre? fibs rCet'fiWrttbOr(i4 u1 ? ? €IW?difi3ss so tkrat1h n?ti ty('tt rf, 3Mti lacat"rdn Of the lpp rhaerlr iYt y bt dr?1 pRsel ft?rrraIS and appeel 641 n,tles and reguldtkans Trlay be fund at a +e+ b site 6slegt 8f4 ttr.2'.t alt fiend County ?saessr a ni dffic8, pttl I aurthoUSe l;rrat krc2r, bne G` -,rtMtm2 . l fa, Carlisle; PA 17013. Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing qcpa.net. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. t0 4:00 p.m. EXHIBIT 9 VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), record owner of the property on appeal to make this verification of the foregoing Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unworn falsification to authorities. Executed this ICIday of March, 2006. ??l CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Petition for Appeal has been served upon the following parties by first class mail, postage prepaid on this 1' +k day of March, 2006. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Jerry R. Duffle, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 bca. 7J ;- 1 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), Appellant, Vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CIVIL DIVISION NO. O to - l u L ! E/LY>q ORDER OF COURT AND NOW, this 17 fay of 2006, it is hereby ORDERED, ADJUDGED and DECREED, that a hearing for the above-captioned real estate tax assessment appeal ?is scheduled for 2006 at ?7 4_.m. et n ? L6?t?-v? ?-u•vti?- ? S ? ?- Lti.?...0,-ti.Qs,.d- i-o • ?a1.?.-{7fe?CC-- ,[, ?C+-?.+•"QP' , t• 1a "\-,\ J1. ?3?\ J. L? % S I :G H N RW )Jul r.r_ Wiiui1ie Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Appellee Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle. Pennsylvania 17013 Fax 717-243-6441 SANNDREL OF PENNSYLVANIA, INC. : IN THE COURT OF COMMON PLEAS (KIMCO REALTY CORPORATION) OF CUMBERLAND COUNTY PENNSYLVANIA Appellant VS. THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS CIVIL DIVISION NO. 2006-1433 CIVIL TERM Appellee Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties PRELIMINARY OBJECTIONS AND NOW, comes Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters, and files these Preliminary Objections to the Petition for Appeal, of which the following is a statement: 1. These Preliminary Objections are filed to the Petition for Appeal of Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), "Appellant." These Preliminary Objections are filed by the Cumberland County Board of Assessment Appeals, "Appellee." 2. The within action is a statutory appeal pursuant to 72 P.S. §5453.704. As such, the Pennsylvania Rules of Civil Procedure are not applicable unless adopted by local rule of Court. In re Appeal of the Borough of Churchill, 575 A.2d 550 (Pa. 1990) There is no such Cumberland County Rule adopting the Pennsylvania Rules of Civil Procedure. These Preliminary Objections are filed, however, by analogy to Pa.R.C.P. 1028 in order to ensure that Sanndrel of Pennsylvania, Inc, Page I of 3 (Kimco Realty Corporation) - Preliminary Obyections to Petition the objections raised herein are preserved. An Answer is being filed contemporaneously herewith. The averments of the Answer filed contemporaneously herewith by the Appellee are incorporated herein by reference thereto. 4. Appellant is not the owner of the real estate which is the subject of parcel 10-22- 0531-020.-LL001, which is a cinema building built on land leased under a long-term ground lease from Appellant. Appellant has no standing to bring an appeal of the assessment of parcel #10-22- 0531-020.-LL001. The owner of parcel #10-22-0531-020.-LL001 is not a party to this appeal and has not exhausted its administrative remedies by appealing the change of assessment notice dated March 2, 2006, attached to the Appellant's Petition for Appeal as Exhibit "E," and which established the assessment for that tax parcel. WHEREFORE, Appellee Cumberland County Board of Assessment Appeals, prays Your Honorable Court for an Order dismissing Appellant's appeal so far as parcel 10-22-0531- 020.-LL001 is concerned. Dated: ?Ya?oo? Respectfully submitted, By Lsqui;:I?' Stephe n D. Tiley, Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 Sanndrel of Pennsylvania, Inc. Page 2 of 3 (Kimco Realty Corporation) - Preliminary Objections to Petition VERIFICATION I verify that the statements made in the foregoing Preliminary Objections are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. rx c.c0 \Dated- Bonnie M. Mahoney, Chief Assessor Zook Sanndrel ofPennsylnania, Inc. Page 3 of 3 (Kimco Realty Corporation) - Preliminary Objections to Petition p r?? a m? - N t7 C7 L ,_ Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Appellee Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle PennsyIvania 17013 Fax: 717-243-6441 SANNDREL OF PENNSYLVANIA, INC. : IN THE COURT OF COMMON PLEAS (KIMCO REALTY CORPORATION) OF CUMBERLAND COUNTY . PENNSYLVANIA Appellant VS. CIVIL DIVISION THE CUMBERLAND COUNTY BOARD NO. 2006-1433 CIVIL TERM OF ASSESSMENT APPEALS Appellee VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties ANSWER AND NOW, comes Cumberland County Board of Assessment Appeals, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters, and files this Answer, of which the following is a statement: Admitted. 2. Admitted in part. Denied in part. The appeal concerns an annual assessment as of January 1, 2006, and an interim assessment as of September 8, 2005. It is admitted that the property consists of a multi-tenant shopping center which also includes a multiplex cinema. Admittted. 4. Admitted. Sanndrel of'Pennsylvania, Inc. Page l of 5 (Kimco Realty Corporation) - Answer with New Matter 5. Admitted in part. Denied in part. The averments of this paragraph are admitted except that there is a typographical error in the Petition which should refer to September 1, 2005, not September 1, 2006, and except that the property was originally assessed at a total amount of $6,000,000 as of September 1, 2005 which would have been the assessment effective January 1, 2006 but for a change of assessment notice dated September 8, 2005, which was effective as of September 1, 2005. That change of assessment notice dated September 8, 2005 resulted from demolition and construction on the property, and increased the assessment to $6,700,000 (as described in paragraph 7 of the Petition). Therefore the assessment effective as of January 1, 2006, for the 2006 tax year, was $6,700,000. 6. Admitted. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part. Denied in part. It is admitted that the Appellant submitted an appraisal to the Board at a value of $5,350,000. It is denied that that appraisal included the cinema building, as the recollection of the Assessment Office personnel is that the testimony was to the contrary. In any event, it is denied that the averments of this paragraph are relevant as the appeal to Court is de novo, making the evidence at the Board hearing irrelevant. 11. Admitted in part. Denied in part. It is admitted that at the Board Hearing the Cumberland County Assessment Office first learned that the cinema building was owned by an entity unrelated to the owner of the land and remainder of the shopping center (Appellant herein), and that the cinema building was built on land leased from the Appellant under a long- term ground lease. The Cumberland County Assessment Office then offered to have the cinema building separately assessed to its owner. Before the Board of Assessment Appeals, the Appellant accepted that offer and the parties entered into an agreement for the separate Sanndrel of Pennsylvania, Inc, Page 2 of 5 (Konco Realty Corporation) - Answer with New Matter assessment of the cinema building to its owner. During the course of those discussions, the Cumberland County Assessment Office did indicate that the value of the shopping center, and cinema land only, would be in the range of $5,350,000. After the agreement to separately assess the cinema building, the valuation hearing on the shopping center building and total amount of land continued. The Cumberland County Assessment Office testified to a market value of $5,350,000. The Board of Assessment Appeals thereafter concluded to a market value of $5,350,000 for all of the land and the shopping center building. (All property on the original tax parcel except the cinema building.) 12. Admitted 13. Admitted. 14. Admitted in part. Denied in part. The averments of paragraph 14 of the Petition are admitted factually, but it is denied that they are relevant as Appellant has no interest in tax parcel 10-22-0531-020.-LL001, and has no standing to appeal that assessment. 15. Admitted in part. Denied in part. The averments of paragraph 14 of the Petition are admitted factually, but it is denied that they are relevant as Appellant has no interest in tax parcel 10-22-0531-020.-LL001, and has no standing to appeal that assessment. 16. Admitted. 17. Denied. The averments of this paragraph and each of its sub-lettered paragraphs are denied as conclusions of law to which no responsive pleading is required. Strict proof at trial is demanded. Sub-paragraph "d." is further specifically denied as the cinema building is not being assessed twice, is not assessed as part of parcel 10-22-0531-020, which is the only subject of this appeal, and as Appellant herein has no interest in the assessment of the cinema building and parcel 10-22-0531-020.-LL001, and therefore lacks standing to appeal that assessment. Sanndrel of Pennsylvania, Inc. Page 3 of 5 (Kimco Realty Corporation) - Answer with New Matter NEW MATTER 18. The averments of paragraphs 1 through 17 of the foregoing Answer are incorporated herein by reference thereto. 19. Appellant is not the owner of the real estate which is the subject of parcel 10-22- 0531-020.-LL001, which is a cinema building built on land leased under a long-term ground lease from Appellant. 20. Appellant has no standing to bring an appeal of the assessment of parcel #10-22- 0531-020.-LL00 ] . See preliminary objections filed prior to this Answer with New Matter. 21. The owner of parcel #10-22-0531-020.-LL001 is not a party to this appeal and has not exhausted its administrative remedies by appealing the change of assessment notice dated March 2, 2006, attached to the Petition as Exhibit "E," and which established the assessment for that tax parcel. See preliminary objections filed prior to this Answer with New Matter. WHEREFORE, Appellee Cumberland County Board of Assessment Appeals, prays Your Honorable Court for an Order denying the appeal of Appellant, or, in the alternative, for an Order fixing the fair market value of the land of Appellant, consisting of the land and building of the shopping center, and the land only under the cinema, which now constitutes Cumberland County Tax Parcel 10-22-0531-020, or for such other and further relief as to the Court may seem just and proper. Dated: /?'?y Z// -.4:9.OK Respectfully submitted, By - Z Stephen D. Tiley, Esquire Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 Sanndrel ojPennsyhvania, Inc. - Page 4 of 5 (Kimco Realty Corporation) - Answer with New Matter VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) - Answer with New Matter Z'?? & Bonnie M. Mahoney, Chief, ssessor Page 5 of 5 C N • ?YI .. u 7 q =r, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), Appellant, NO. 06-1433 Civil Term VS. Assigned Judge: M.L. Ebert CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CONCURRED IN MOTION TO CONTINUE HEARING DATE AND NOW, comes Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) ("Kimco'), by and through its attorneys, Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Concurred in Motion to Continue Hearing Date, and in support thereof states as follows: 1. The Court scheduled a hearing for the above-captioned real estate assessment appeal before the Honorable M.L. Ebert on July 12, 2006 at 1:30 p.m. 2. Kimco is the record owner of commercial property situate at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania, identified as Parcel No. 10-22-0531-020 (the "Property") 3. The Property is comprised of a multi-tenant shopping center situate on 11.67 acres, containing 121,672 leasable square feet. One of the tenants in the shopping center is a cinema. PT: #260948 v3 (5LCK03!.D0Q r 4. Kimco filed an appeal challenging the real estate tax assessment for the Property for tax year 2006. 5. At the time that Kimco filed the appeal, the County records designated the entire Property as Parcel Number 10-22-0531-020. 6. On February 8, 2006, the Board held a hearing concerning the Property Appeal. 7. On February 17, 2006, the Board issued a Decision Order reducing the assessment of the Property to $5,350,000, the opinion of value set forth by Kimco's appraiser. The Decision Order notes the Parcel Number for the Property as 10-22-0531-020. 8. On March 12, 2006, the Office of Property Assessment carved out a new parcel from the Property for the cinema building only (the "Cinema Building Parcel"). The Office of Property Assessment issued a Notice of Assessment Change setting forth an assessed value of $3,000,000 for the Cinema Building Parcel and designated the Cinema Building Parcel as Parcel Number 10-22-0531-020.-LL001. 9. Kimco timely filed an appeal from the Board's Decision Order to this Court at the within number on March 14, 2006. 10. Kimco also filed an appeal from the Notice of Assessment Change for the Cinema Building Parcel to the Board on March 31, 2006. 11. Counsel for Kimco was informed by the Board that a hearing for the Cinema Building Parcel will be scheduled before the Board in August 2006. 12. Kimco seeks a continuance of the July 12, 2006 hearing on the above- captioned appeal until the Cinema Building Parcel assessment appeal, currently before the Board, has been disposed of by the Board and a Petition for Appeal for the Cinema Building -2- PT: #260948 v3 (5LCK03!.DOC) Parcel has been filed in the Court of Common Pleas of Cumberland County because the disposition of the appeals for the Property and the Cinema Building Parcel will affect each other. 13. Neither the Board nor any of the Interested Parties will be prejudiced by a continuance, as the Kimco is currently paying the 2006 taxes as billed on the current assessment. 14. Pursuant to Local Rule 208.2, Kimco sought concurrence from Counsel for Cumberland County, Hampden Township and Cumberland Valley School District and all Counsel concurred to the relief requested in this Motion. WHEREFORE, Kimco respectfully requests that this Honorable Court enter an Order continuing the July 12, 2006 hearing until the Cinema Building Parcel assessment appeal, currently before the Board, has been disposed of by the Board and a Petition for Appeal for the Cinema Building Parcel has been filed in the Court of Common Pleas of Cumberland County. Respectfully submitted, ill tm"!?Wk, Dusty E(@ Kirk PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: June -1 2006 -3- PT: 11260948 v3 (5LCK03!.D0C) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Concurred in Motion to Continue Hearing Date has been served upon the following parties by first class mail, postage prepaid on this % in day of June, 2006. Stephen D. Tiley, Esquire Solicitor, Cumberland County and Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Jerry R. Duffle, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 PT: #260948 v3 (5LCKORDOC) C) - i 7 _. 1 SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Appellant Vs. THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS CIVIL DIVISION NO. 2006-1433 Appellee Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Answer with New Matter filed on May 25, 2006 by placing a certified true and correct copy of the same in the United States mail, postage pre-paid, addressed to: Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Counsel for Appellant PEPPER HAMILTON, LLP 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Keith O. Brenneman, Esquire Counsel for Interested Party Hampden Township SNELBAKER & BRENNEMAN 44 West Main Street Mechanicsburg, PA 17055 Jerry R. Duffie, Esquire Counsel for Interested Party Cumberland Valley School District JOHNSON, DUFFLE, STEWART & WEIDNER 301 Market Street Lemoyne, PA 17043 Date: r sw ?? ??G Stephen D. Tiley, Esquire Assistant Cumb. Co. Solicitor for Tax Matters 5 S. Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D.#32318 ?? C t o-• -, ` : n, r ? F ? ' '4? > , .<„ "1;? _ ?.... , = f"iY t ? ?? r " -? ? ? SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION) Appellant Vs. THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS Appellee Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL DIVISION NO. 2006-1433 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Preliminary Objections filed on May 25, 2006 by placing a certified true and correct copy of the same in the United States mail on May 26, 2006, postage pre-paid, addressed to: Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Counsel for Appellant PEPPER HAMILTON, LLP 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Keith O. Brenneman, Esquire Counsel for Interested Party Hampden Township SNELBAKER & BRENNEMAN 44 West Main Street Mechanicsburg, PA 17055 Jerry R. Duffle, Esquire Counsel for Interested Party Cumberland Valley School District JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street Lemoyne, PA 17043 Date :?i - '&k96 / - 7 St phen D. Tiley, Esquire Assistant Cumb. Co. Solicitor for Tax Matters 5 S. Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D.#32318 cs r ? .? _= ` -r -x,?,, - ? m nom, ?? ' - "' r . - ; ? cs5 ; , ? G-` .. ?. ? C = _,?, : _ ; n , y. n ?: ? °- ..? ? ca .= JUN Y ? 2Q(?6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENN - - - SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION) NO. 06-1433 Civil Term Appellant, Assigned Judge: M.L. Ebert VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. ORDER OF COURT AND NOW, this 1y day of June, 2006, upon consideration of the foregoing Concurred in Motion to Continue Hearing Date, it is hereby ORDERED, ADJUDGED, and DECREED that the hearing scheduled for July 12, 2006 at 1:30 p.m. shall be continued until the assessment appeal for Parcel Number 10-22-0531-020.-LL001, currently before the Board of Assessment Appeals of Cumberland County, has been disposed of by the Board of Assessment Appeals of Cumberland County and a Petition for Appeal, if any, for Parcel Number 10-22- 0531-020.-LL001 has been filed in the Court of Common Pleas of Cumberland County. It is FURTHER ORDERED that Appellant shall notify this Court once the Petition for Appeal, if any, for Parcel Number 10-22-0531-020.-LL001 has been filed with the Court of Common Pleas of Cumberland County so that the Court may schedule a new hearing date. PT: #260948 v3 (51ck03!.D0Q BY THE COURT: J. UV 1"I IT# ii r'+?ii11? Copies to be sent to: - Dusty Elias Kirk, Esquire, Pepper Hamilton LLP, 500 Grant Street, 50th Floor, Pittsburgh, PA 15219 - Stephen D. Tiley, Esquire, Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013 - Keith Brenneman, Esquire, 44 West Main Street, Mecanicsburg, PA 17055 - Jerry R. Duffle, Esquire, 301 Market Street, Lemoyne, PA 17043 PT: #260948 v3 (51ck03!.DOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC., CIVIL DIVISION No. 2006-1433 2006-5361 Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CONCURRED IN MOTION TO CONSOLIDATE REAL ESTATE TAX ASSESSMENT APPEALS Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc., by their undersigned attorneys, submit this Concurred In Motion to Consolidate Real Estate Tax Assessment Appeals, and in support thereof state as follows: 1. With the presentation of the Motion, Appellants seek to consolidate two related real estate tax assessment appeals that are pending in this Court. 2. Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) ("Sanndrel") is the record owner of commercial property situate at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania. The Harrisburg West Shopping Center (the "Shopping Center") is located at this address. 10 3. The Shopping Center is a multi-tenant shopping center comprised of eight (8) rooms. 4. In Cumberland County's current assessment records, the Shopping Center is comprised of two parcels, Parcel No. 10-22-0531-020 and Parcel No. 10-22-0531-020.LL001. 5. Sanndrel is the record owner of both parcels. 6. Cinema Supply, Inc. ("Cinema Supply") leases one of the rooms in the Shopping Center. 7. On September 8, 2005, the Cumberland County Board of Assessment Appeals (the "Board") issued an interim assessment for the Shopping Center effective September 1, 2005, which increased the assessment of the Shopping Center by $700,000 to $6,700,000. 8. At that time, the Shopping Center was comprised solely of Parcel No. 10- 22-0531-020. 9. Sanndrel also filed a tax assessment appeal for the entire Shopping Center for the tax year 2006. 10. Sanndrel timely filed an appeal from both the interim assessment and the 2006 assessment for the Shopping Center to the Board for regress and reduction of assessment of Parcel No. 10-22-0531-020. 11. On February 8, 2006, the Board held a hearing concerning both the interim and 2006 assessment. At the time of the hearing, the Shopping Center was comprised only of Parcel No. 10-22-0531-020. -2- 12. After the hearing, the Board reduced the assessment on the Shopping Center at Parcel No. 10-22-0531-020 for the tax year 2005 to Five Million Three Hundred Fifty Thousand Dollars ($5,350,000) by issuing a Decision Order dated February 17, 2006. 13. Following the hearing, the Board issued a Notice of Assessment Change, which: (a) created a new parcel at Parcel No. 10-22-0531-020.-LL001 for the room leased by Cinema Supply; (b) listed Cinema Supply as the record owner; and (c) assigned this new parcel a value of Three Million Dollars ($3,000,000). 14. On March 14, 2006, Sanndrel timely appealed from the Decision Order regarding Parcel No. 10-22-0531-020 to the Court of Common Pleas of Cumberland County ("Court"). The Petition for Appeal for Parcel No. 10-22-0531-020 is currently pending before this Court and is docketed at No. 2006-1433. A true and correct copy of the Petition for Appeal for Parcel No. 10-22-0531-020 is attached hereto as Exhibit A. 15. On June 14, 2006, Judge Ebert of this Court entered an order that continued the appeal at No 2006-1433 until the assessment appeal for Parcel No. 10-22-0531- 020.LL001 was disposed of by the Board and a Petition for Appeal, if any, was filed with this Court. 16. On March 31, 2006, Cinema Supply timely filed an appeal from the Change Notice on Parcel No. 10-22-0531-020.-LL001 to the Board for regress and reduction of assessment. 17. On August 7, 2006, the Board held a hearing concerning the assessment of Parcel No. 10-22-0531-020.-LL001. -3- 18. As a result of the hearing, the Board issued a Decision Order dated August 14, 2006, denying a change to the assessed value of the Parcel No. 10-22-0531-020.-LL001. The assessment of Parcel No. 10-22-0531-020.-LL001 remains $3,000,000. 19. On September 13, 2006, Appellants appealed the decision of the Board for Parcel No. 10-22-0531-020.-LL001 to this Court. The Petition for Appeal for Parcel No. 10-22- 0531-020.-LL001 is docketed at 2006-5361. A true and correct copy of the Petition for Appeal for Parcel No. 10-22-0531-020.-LL001 is attached hereto as Exhibit B. 20. Appellants request that the appeals at Case Nos. 2006-1433 and 2006- 5361 described above be consolidated for all purposes for the following reasons: a. Consolidation of the appeals will eliminate an unnecessary duplication of effort and promote judicial economy, as such appeals involve the same property and identical issues. b. Consolidation of the appeals will not prejudice any party. C. Pennsylvania Rule of Civil Procedure 213(a) provides that when actions in a county involve a common question of law or fact, or which arise from the same transaction or occurrence, the court may upon motion or sua sponte order all such actions consolidated and triable jointly as a single action. 21. Appellants suggest that the appeals at Case Nos. 2006-1433 and 2006- 5361 be docketed at the Docket Number of the earlier-filed action, which is No. 2006-1433. 22. Pursuant to Local Rule 208.3(a)(9), Appellants sought concurrence from Counsel for Cumberland County, Hampden Township and Cumberland Valley School District and all Counsel concurred to the relief requested in this Motion. -4- WHEREFORE, Appellants request that this Court enter an order consolidating the tax assessment appeals docketed at Nos. 2006-1433 and 2006-5361 at the consolidated Docket No. 2006-1433 for all purposes. Respectfully submitted, ('?' A - - D ty Elias Kirk PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP One Mellon Center, 50th Floor Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: September --27, 2006 Attorneys for Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. -5- „rr't -.`?VED MAR 15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), NO. L GUL Appellant, VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL Cr• ?=; r' j _7I Filed on behalf of Appellant, -?_ Sanndrel of Pennsylvania (Kimco Realty Corporation) Counsel of Record for this Party: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 PT: #252544 v] (5#V401 !.Doc) IBff EA H • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), Appellant, CIVIL DIVISION NO. VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL AND NOW, comes Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) ("Appellant"), by and through its attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and files the within Petition for Appeal, and in support thereof states as follows: 1. Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) is the record owner of commercial property situate at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania (the "Property"). The Property is identified as Parcel No. 10- 22-0531-020 in the Cumberland County assessment records. 2. This appeal concerns the tax years 2005 and forward. At this time, the Property was comprised of a multi-tenant shopping center which includes, inter alia, a cinema. 0 0 3. Cumberland County, Hampden Township and Cumberland Valley School District are the taxing bodies interested in the taxable status of the Property. 4. The Board of Assessment Appeals of Cumberland County, Pennsylvania (the "Board') is a Board created under the Act of May 21, 1943, P.L. 571, 72 P.S. § 5453.101 et seq.' and is authorized to assess and value real property for the purpose of taxation in counties of the Fourth Class and to hear appeals from said assessments by aggrieved parties. 5. As of September 1, 2006, the Property was described for the 2006 tax year on the official records of Cumberland County as follows: Land $890,630 Building $5,109,370 Total $6,000,000 6. On August 31, 2005, Appellant duly appealed the 2006 assessment to the Board for regress and reduction of said assessment. A copy of said Appeal Form is attached hereto as Exhibit A. 7. On September 8, 2005, the Board issued an interim assessment for the Property effective September 1, 2005 due to the demolition and construction of a building performed by Cinema Supply, a tenant in the shopping center. The assessment for the Property which included the cinema was increased as follows: Land $1,800,890 Building $4,899,110 Total $6,700,000 A copy of the Change of Assessment Notice is attached hereto as Exhibit B. 8. On October 12, 2005, Appellant duly appealed the interim assessment to the Board for regress and reduction of said assessment. A copy of said Interim Appeal Form is attached hereto as Exhibit C. -2- PT: #252544 vi (5#V401 !.DDC) • 9. The Board held a hearing concerning both the 2005 interim assessment and 2006 assessment appeals on February 8, 2006. 10. At the hearing, Appellant introduced into evidence an appraisal of the Property prepared by Scott Cole valuing the property at a fair market value $5,350,000. The appraisal included the value of the shopping center, including the cinema building. 11. The County argued that the Cinema Supply building was under a ground lease and should have its own parcel and assessment on it. The County offered a value of $5,000,000 just for the cinema building. 12. After a hearing, the Board reduced the assessment on the Property for the tax year 20051 to Five Million Three Hundred Fifty Thousand Dollars ($5,350,000) by issuing a Decision Order ("Decision') dated February 17, 2006. A copy of the Decision is attached hereto as Exhibit D. 13. Following the hearing, the Board created a new parcel for the Cinema Supply building at parcel number 10-22-0531-020.-LL001. 14. On March 2, 2006, the Board issued a Notice of Assessment Change for the Cinema Supply building (parcel number 10-22-0531-020.-LL001) setting forth an assessed value of $3,000,000 for the building only. A copy of said Notice is attached hereto as Exhibit E. 15. Appellant originally filed this appeal challenging the original $6,000,0000 assessment and the interim $6,700,0000 assessment that the Board placed on the Property which was comprised of the shopping center, including the cinema. Now, notwithstanding, the 1 The decision references the tax year 2005 only, even though the appeals and hearing were for both the 2005 and 2006 tax years. We have contacted the Board to see if a separate decision will be issued for 2006, however, we preserve our 2006 appeal by filing this petition. -3- PT: #252544 A (5#V401 !.DDC) 0 0 reduction on parcel 10-22-0531-020, the combined assessment of parcel 10-22-0531-020 and the new parcel is $8,350,000. 16. This Petition is herewith presented within thirty (30) days from the mailing date of the Decision. 17. Appellant is aggrieved by the Board's adjudication. Specifically, Appellant avers, on information and belief, that the assessment remains unfair, unreasonable and excessive. Appellant further avers as follows: a. The assessment is not equal or uniform with other properties similarly located in Cumberland County. b. There is a complete lack of uniformity in the assessment of real estate within Cumberland County which makes the Property assessment unjust, unreasonable and discriminatory. C. The fair market value upon which the assessment is based is in excess of the actual fair market value of the Property. d. The Cinema Supply building is being assessed twice. e. Other such reasons as will be developed at the time of hearing. -4- PT: #252544 vl (5#V401!.DOC) 0 0 WHEREFORE, Appellant, being aggrieved by the assessment of the Board, files this Petition for Appeal and requests that this Honorable Court herein determine its appeal and decrease the assessment of the Property to such amount as may be right and proper. Respectfully submitted, Dusty E ' k PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454=5000 Dated: March 1, 2006 -5- PT; #252544 vl (5#V401 LDOC) Y 1 i CUMBERLAND COUNTY ASSESSMENT APPEAL •COMMERCIAL /INWUSTRIAL Under the provisions d law any psrW &WWMed by any assessmerd desiring lo appeal shat fie a statVement,1nwrfgns, wbh 11r board of r„erp /appeals on or Wore September tsL Such sale no t shall desigrals to assessment appealed from and 1he address to whlad Board shell mall notice d when and whore b appear for a hearing. No appeal shell be heard by the board unless appellant shall Wd -a Md the appeal and raqukW dowments at or bebre September lot as sat forth by law. • C) tndudes tmxft dstrlcls necord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. Tt- mco Realty Corporation) Address c/o Dusty Elias Kirk E01in P Hamilto HIP - 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject d Appeai: 3431' Simpson Ferry Road Number S"d raonanownwrrp Assessors Tax Map Identification S: 10-22-0531-020 Ai d Appealed $6.- 000 Opinion of Market Value d fhb Property To be provided . Date Purchased 12/31/72 Purchase Price Not available Amount of Fire Insurarvos Not reflective of market value State reasons for fikV this appeal: The fair market value Moon which the jimM meet is h aed is in PYnrea nf th-t.- , value. The assessment is not uniform with assessments of other property in the County. ? L propwty'1')IPe: Chock and Complete Proper ClassMicatka., X Cornmenn t t? Retail IV Gross Square F„ 121,672 Square Ft. Rentable Area 121,672 Owner Oom pied No M Leased: Annual Pont To be provided Gross Square Ft. Owner Occupied If Leased: Annual Rent Total Square Ft. Square FL Plard Area Tenant O=4"d Tenrwnt Ooeupled Yea Date Constructed 1972 Square FL Rentable Area Tennant Occupied Date Constructed Square FL Rentable Area Ownwr Occupied I Leased: Annual Rent Lease Typo: Net Gross _ Combination - Pate ConaVuded Odor. Use Gross Square ft owner Oooupied Tarrant Occupied N Leased: Annual Rent Date Constructed 'ATTACH LAST 3 YEARS INCOME & EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME & EXPENSE FOAM" Certttieate of Appeal pm hereby declare myiour intention to appeal born the assessed valuation of we property described avow and do hereby ve* Mat the statwwrits made in this appeal am wW cared, t understand that false statements herein are made subject to the pena des d 18 Pa. as. Sedim talc kstim to auvwxwlss. red; Date: (Z 4 J Srp Phone e: (t` WW) Owrwgs) of Record (Day/iOtrwe) ; notices of these proceedings shall be malted to: Otflce Use On Fee Name; Dusty Elias Kirk, Esquire EXHIBIT a Address: Pepper Hamilton LLP 50th Floor, One Mellon Center, 00 rant Str-eet, Pittsburgh, A 15219 R? Tu be IORYSA FOR 3 PR 1v. NCp?As w._.- GROSS .?------- WOW PAW Uetri TWO s ?-- "Pon* Is optttsf s Wed* O What --'" WOW* p GAP* Land Pot C) acap" O .Q a s o - o?y p uwto* Go Tr??' ?°" ----'`?'_? o Pod $, y C3 Cl - ovc+' pftqo -folio 0 cuov o C3 FwT^" WOO s a SLOW vW. CW a*w s ?qs to tbt PrOPY jaVALOPO&SES oar for any vu ??ti°oa1 ??? Y? A Offi ce ssessment Cumberland County Old Courthouse, First Floor One Courthouse Square (117) 240.6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE M. MAHONEY Uoyd W. Buc/rar R Fred Heli?Uinper ? ?? Y Sarah Hugh" Assistant Sonow SANNDREL OF PENNSYLVANIA INC C/O KIMCO DEVELOPMENT CORP 3333 NEW HYDE PARK ROAD 0100 PO BOX 5020 NEW HYDE PARK NY 11042 • CHANGE OF ASSESSMENT NOTICE THIS. IS NOT A TAX BILL ta?=L=w Di1Tli'-8evtam"r•8, 3oos' parcel Identifier: 10-22-0531-020. Districts 10 - NAKPM TOW"" school..3 C1AWWaim v1LLtY 81) Now Assessed Value indicated balcw will take affect for 3006 County/L1brsr7/N=Lc1pal ww! wwA.l A?L??1 Locations 3431 OWBON MW ROM LCYT 3 FN 35 PO 98 TAXAMA am/Los =D. .: L-0003 Land 8isa....s 11.67 acres property Types C commercial - General ---- --- Old --- New TOW Assessed Value Assessed Value Change at Assessment Lend 890,630 11800,890 910,260 Buildings 5,109, 370 4,899,110 -210,260 TOTAL 6,000,000 6,700,000 700,000 Clean and Green Values Land NOT NOT NOT SuNdkW APPLICABLZ APPLICABLE APPLICABLE TOTAL 1 .e • ? m""* tl tte •- ; i1 ' 5-914es•bi ? ?.n *1 •?he fdlowi . ?." P lr? . ?'?l?,?O!''?` .••..'..•. • > ' RZASON FOR CRAMZs I • . ADDITION •TO-'C0ji90RCIAL•/114DSTRL ZW6` Xnterin'Aisoisid Value:'700,000'. 2005 Cat?/Tsvp/Dcro....•• 4 months 2005 school .............10 swaths QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 p.m. 11 - EXHIBIT Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing cc a.net. • CUMBERLAND COUNTY ASSESSMENT APPEAL - CAERCIAL / INDUSTRIAL • Under to Provisions of law any person' aggrWM by anti arsessment desiring to appeal Ma tie a statiernsnt, in writing, with the Board of Apeearrrarnt Appeals on or before September 1sL Such stalanwo shah designate the assessment appealed from and the address 10 which Board shall mall no** of when and where to appear for a hearing. No appeal shall be heard by the board unless appellant W" Aat 'W-» filed the appeal and requMsd docunw is on or before September 1st, as set forth bylaw. • (q inCuden taxing d otricia neoord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk Esquire Pepper Hamilton- Tjp 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Hampden Township . Mrrrrber Street BordTownehip Assessors Tax Map Identification is 10-22-0531-020 Assessment Appealed 56,700,000 Opinion of Market Value of this Property To be provided Date Purchased 12/31x72 Purchase Price Not available Amount of Fire Insurance Not reflective of market value State reasons for filing this appeal: The fair market value upon which the agcPCSment is hated is in eYCE!cc of the -- value. The assessment is not uniform with assessments of other property in the County. Property Type: Check and Complete Proper Classification: X _ Commerdah Use Retail Gross Square Ft.. 121,672 Square FL Rentable AM 121,672 Owner Occupied No Tennant Occupied Yes h Leased: Annual Rent To be provided Date Constructed 1972 Off: Gross Square Ft. Square Ft. Rentable Area Owner Occupied Tennant Occupied • K Leased: Annual Rent Date Constricted Industrial: Total Square Ft. Square Ft. Rentable Area Square FL Plant Area Owner Oocupied Tenant Ck= pW q Leased: Annual Rent Lease Type: Net Gross Combination Date Constructed Other. Use Grass Square Ft. Owner Occupied Tenant Occupied 0 Leased: Annual Rent Date Constructed "ATTACH LAST a YEARS INCOME A EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE POfiM" Certlfleate of Appeal Ihw hereby declare trnylour intention to appeal from tt?s assessed valuation of the property deacribsd abovrlnd ft-- ho nit?,LftiTthe statements node In this appeal are We and sorest. I understand that talcs statements herein ari'i W* 4:6 ubj.cf to fhie. peftl ies of 16 oc C.S. Sedion 4 tlnp to taisiilation to authoftw Signed: wJA 7 Date: October =10 , 23 1 2005 cat y BEY Phone t1: (Nome) (Day/Office) 412-454-50010 notices of these proceedings shall be mailed to: Dusty Elias Kirk, Esquire Office Use Only Name: Address: Pepper Hamilton LLP 50th Floor, One Mellon Center, 500 rant Street, Pittsburgh, A 15219 EXHIBIT EARS To be rovile foN 3 PR?Q'RY ?9... s_---- GRosS A ism- sue-' log% co U10 VOW*, d vow Woof WO COW s s 0030 A UAL- E s OR I..... - Q VWPW* Tam ko GROG Ae Q Ny-• . isy.- s a Ewa6r-w o -?? cato* C3 W&W C3 Fug' R,t 000 Q Ate' s Q PAW- C3 C3 G*0410 TatePt'?° °t?cyat?? wow & sevw Q P• sawy ?* ' Q 01 06f: C3 C40W 'N 01 SuPP?as Ar -- J"'? 1Jt?• ?` • rya, _ -?"? s ? O"t Q ? G Q s Q p?Q,r,?cY• to the ?d[???- ??5? T ?em,? ??, io;' saaY '? ?aalt?o? use .'Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square Carlisle, PA 17013 • (717) 240-6350 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE M. MAHONEY Lloyd W. Bucher cblef Assessor R. Fred Wolfinger Sarah Hughes STEPHEN D. TILEY Assistant Solkitor DECISION ORDER MAILING DATE: February 17, 2006 PARCEL NUMBER: 10-22-0531-020. SANNDREL OF PENNSYLVANIA INC C/O DUSTY ELIAS KIRK, ESQUIRE 50TH FLOOR ONE MELLON CENTER 500 GRANT STREET PITTSBURGH PA 15219 Dear Property Owner: This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals regarding the above-referenced parcel. DATE OF APPEAL HEARING: 02/0812006 DATE DECISION RENDERED: 02117/2006 EFFECTIVE FOR TAX YEAR: 2005 DECISION RENDERED: [ j Withdrawn By Applicant [ j Abandoned For Failure To Appear [ j Denied - No Change [ j Approved Review Appraiser's Changes [Xj Revised Assessment Based on Hearing [ j Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS. Old Assessed Value: 6,700,000 New Assessed Value: 5,350,000 NOT APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Prothonotary's office on or before March 20, 2006. EXHIBIT D Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE N. MAHONEY Lloyd W. Bucher Chlef Assessor R. Fred Hefelfinger. STEPHEN D. T ILEY Sarah Hughes Assistant Soffelfor CINEMA SUPPLY, INC 502 SOUTH MARKET STREET MILLERSVILLE PA 17061 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL MZLING DAM March 2, 2006 Parcel Identifiers 10-32-0531-020 . -LLOOI W strict t 10 - IL MPDEN TOWSHIP sebool .. i CUMBICREANA VALLSY 8D Now Assessed Value indicated below will take effect for 2007 County./Library/Municipal 2006-2007 SaAebl Location: 3431. SIMPSON FERRY ROAD LAND GEA88 PS 89 PG 20 TA3MLS Land Size...-e .00 acres property Types C Cot[snercial - General REASON FOR CEANGSt NZW PARCEL Old New Total Assessed Value Assessed Value Change of Assessment Land 0 0 0 Buedings 0 3,000,000 3,000,000 TOTAL 0 3,000,000 3,000,000 Clean and Green Values Land NOT NOT NOT Buildings APPLICABLE APPLICABLE APPLICABLE TOTAL ?/?Yp?pQ ?.. ,..?? .!'r'Y .` • ?131R«_ •R- .•... ?y . 1? r1' .? .'.lS'..`•? ?- y Q ?.?J? ? r ppp ?? ?y LLF q •: :_t?`D`?l?$ c?ejl?st,. B??IQ_ i??lldd??h•-: -, ?? ?,/y?4?? .?.j?..??` .c ..t.• ' ' t ,L • . . . . : ?,•? r- ' :^?S ? 1?' :T? ? •: L•1: Y « +y, M y? a , :. ??? ? i , , - ??,.,., "?,?? yy ? •?...• ???r?: fem.: _ '*•• _ Interim Assessed Values 3.000,000 2006 CntT/Trp/Boro...... 12 months 2005 School .............10 montbs k#`i" TK3.,$14?.. 9pii1S#...•: Its}?"?{%.?f': _.- 11 an alr? > 3/;? s a y:= ,ap sal 00*61 A- 1p%1p: ri.;tpi:-. ?ft?•r __ ??:. _ a2 «:Ly. _? :r. •i,. --j+4•:_a+::?SG.i':i.:.::. - _ tl.. - = orb `r ;='» aPp :.' . ' _ 6.. 7?y il?+>!I'. I?els? sp nlie fi -c F the rr? . i #i_? .9 -W niles nr+e8u1 4 r> Bey a viand 0# ? web she I?st :: cf~ =? - ? of + A4seSSrn ntie, `#Y!Gaurthbtrs?;'Farstr? (7ne 0lalttl?rne PA1:'..: Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing ccpa.net. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 p.m. EXHIBIT a t • VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), record owner of the property on appeal to make this verification of the foregoing Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unswom falsification to authorities. Executed this /Dday of March, 2006. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Petition for Appeal has been served upon the following parties by first class mail, postage prepaid on this rte- k day of March, 2006. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Jerry R. Duffie, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 .?, ?w f?, Kam, _ _ Sri 1 1-7 tl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. NO. ?l U l Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PT: x273710 N1 (5V720I I DOC) PETITION FOR APPEAL Filed on behalf of Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. Counsel of Record for these Parties: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 50`h Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 1 52 1 9-2502 (412) 454-5000 EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. CIVIL DIVISION NO. Appellant, VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL AND NOW, come Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), and Cinema Supply, Inc. (collectively, "Appellants"), by and through their attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and file the within Petition for Appeal, and in support thereof state as follows: 1. Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) ("Sanndrel") is the record owner of commercial property situate at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania. The Harrisburg West Shopping Center (the "Shopping Center") is located at this address. 0 0 2. In Cumberland County's current assessment records, the Shopping Center is comprised of two parcels - Parcel No. 10-22-0531-020 and Parcel No. 10-22-0531- 020.LL001. 3. Sanndrel is the record owner of both parcels. 4. Parcel No. 10-22-0531-020 is the subject of a real estate tax assessment appeal currently pending at the Court of Common Pleas of Cumberland County ("Court") at No 06-1433. 5. Sanndrel hereby appeals the assessment of Parcel No. 10-22-0531- 020.LL001. FACTUAL BACKGROUND 6. The Shopping Center is a multi-tenant shopping center comprised of eight (8) rooms. 7. Cinema Supply, Inc. ("Cinema Supply") leases one of the rooms in the Shopping Center. 8. For tax year 2006, Sanndrel, filed a tax assessment appeal for the entire Shopping Center, which at that time, was comprised solely of Parcel No. 10-22-0531-020. 9. Cumberland County, Hampden Township and Cumberland Valley School District are the taxing bodies interested in the taxable status of the Shopping Center. 10. The Board of Assessment Appeals of Cumberland County, Pennsylvania (the "Board") is a Board created under the Act of May 21, 1943, P.L. 571, 72 P.S. § 5453.101 et sec,, and is authorized to assess and value real property for the purpose of taxation in counties of the Fourth Class and to hear appeals from said assessments by aggrieved parties. 1 1. The County originally assessed the Shopping Center at $6,000,000 for 2006. -2- PT 273710 0 (5V72011 DOC) • • 12. On September 8, 2005, the County issued a Change of Assessment Notice ("Change Notice") for the Shopping Center effective September 1, 2005, increasing the assessment of Parcel No. 10-22-0531-020 of the Shopping Center by $700,000 to $6,700,000 as follows: Land $1,800,890 Building $4,899,110 Total $6,700,000 A copy of the Change of Assessment Notice is attached hereto as Exhibit A. 13. Upon information and belief, the Change Notice for Parcel No. 10-22- 0531-020 was issued due to the demolition of part of the Shopping Center and the construction of the Cinema Supply room. As such, the new 2006 assessment for Parcel No. 10-22-0531-020 included the room leased by Cinema Supply. A true and correct copy of the site plan of the Shopping Center is attached hereto as Exhibit B. 14. Sanndrel timely filed an appeal from the Change Notice to the Board for regress and reduction of assessment of Parcel No. 10-22-0531-020. A copy of this Appeal Form is attached hereto as Exhibit C. 15. On February 8, 2006, the Board held a hearing concerning both the 2005 interim assessment and 2006 assessment appeals. At the time of the hearing, the Shopping Center was comprised only of Parcel No. 10-22-0531-020. 16. At the hearing, Sanndrel introduced into evidence an appraisal of the Shopping Center prepared by Scott Cole valuing the Shopping Center, comprised of Parcel No. 10-22-0531-020, at a fair market value $5,350,000. The appraisal incorporated the value of the entire Shopping Center, including the room leased by Cinema Supply. -J- PT: ~273710 0 (5V7201'.DOC) 17. At the hearing, the County argued that the room leased by Cinema Supply should be assigned its own parcel and assessment. The County suggested a value of $5,000,000 just for this room. 18. After the hearing, the Board reduced the assessment on the Shopping Center at Parcel No. 10-22-0531-020 for the tax year 2005 to Five Million Three Hundred Fifty Thousand Dollars ($5,350,000) by issuing a Decision Order ("Decision") dated February 17, 2006. A copy of the Decision is attached hereto as Exhibit D. However, following the hearing, the Board issued a Notice of Assessment Change creating a new parcel at Parcel No. 10-22- 0531-020.-LL001 for the room leased by Cinema Supply, listing Cinema Supply as the record owner, and assigning this new parcel a value of Three Million Dollars ($3,000,000). A copy of the Notice of Assessment Change for this room leased by Cinema Supply is attached hereto as Exhibit E. 19. Accordingly, the combined assessed value of the two tax parcels that now comprise the Shopping Center is $8,350,000, which is more than the original $6,000,000 assessment of the Shopping Center that Sanndrel originally appealed. 20. On March 14, 2006, Sanndrel timely appealed from the Decision regarding Parcel No. 10-22-0531-020 to Court. 21. On March 31, 2006, Cinema Supply timely filed an appeal from the Change Notice on Parcel 10-22-0531-020.-LL001 to the Board for regress and reduction of assessment. A copy of this Appeal Form is attached hereto as Exhibit F. 22. On August 7, 2006, the Board held a hearing concerning the assessment of Parcel No. l 0-22-0531-020.-LL001. -4- PT 273710 v1 (5V7201'.DOC) C - ? • 23. As a result of the hearing, the Board issued a Decision Order ("Decision") dated August 14, 2006, denying a change to the assessed value of the Cinema Supply room. The assessment of the room leased by Cinema Supply remains $3,000,000. A copy of the Decision is attached hereto as Exhibit G. 24. This Petition is herewith presented within thirty (30) days from the mailing date of the Decision. 25. Appellants file this Petition jointly. 26. Appellants are aggrieved by the Board's adjudication. Specifically, Appellants aver as follows: a. The lease governing the room leased by Cinema Supply is not a ground lease; _ b. The room is owned and maintained by Sanndrel and leased to Cinema Supply under a conventional shopping center lease; C. The room is part of Sanndrel's real estate and should not have been assigned a separate parcel number; and d. The room should not be separately assessed. 27. If it is deemed that the room leased by Cinema Supply should maintain a separate Parcel Number and be separately assessed, then Appellants aver that the assessment remains unfair, unreasonable and excessive. Appellants further aver as follows: a. The assessment is not equal or uniform with other properties similarly located in Cumberland County; -5- PT: X273710 v] (5V7201!.DOC) C7 • b. There is a complete lack of uniformity in the assessment of real estate within Cumberland County which makes the assessment of Parcel No. 10-22-0531-020.- LL001 unjust, unreasonable and discriminatory; C. The fair market value upon which the assessment is based is in excess of the actual fair market value of Parcel No. 10-22-0531-020.-LL001; d. The room leased by Cinema Supply is being assessed twice - once on Parcel No. 10-22-0531-020 and once on Parcel No. 10-22-0531-020.-LL001; and e. Other such reasons as will be developed at the time of hearing. WHEREFORE, Appellants, being aggrieved by the assessment of the Board, file this Petition for Appeal and request that this Honorable Court determine their appeal and decrease the assessment of the Shopping Center to such amount as may be right and proper. Respectfully submitted, Dusty Eli ' k Dated: September ! a , 2006 PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 -6- PT:,'273710 v1 (5V7201'.DOC) h Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE M. MAHONEy ChlsfAssessor Loyd W. BuChser R Fred HeislWW. STEPHEN D. TILEy SwM Hughes Assistant Solicitor SANNDREL OF PENNSYLVANIA INC CIO KIMCO DEVELOPMENT CORP 3333 NEW HYDE PARK ROAD #100 PO BOX 5020 NEW HYDE PARK NY 11042 CHANGE OF ASSESSMENT NOTICE THIS- IS NOT A TAX BILL lsASLINO Di?TS?' Sevtes"r• a, '1005• parcel Identifiers 10-22-0531-020. District: 10 - RAIPDRN TOWNBHIP School..s cumzRLSND VALLSS SD New Assessed value indicated below will take effect for 1006 County/Library/Municipal Locations 3431 SXXPDON TSRRY ROAD LOT 2 PS 35 Phi 90 TAXAWA ti=/Lor tD..s L-0001 Land also....s 11.67 acres property Types C Co®ercial - General RkASON FOR C=ANSS= ADDITION T0•'CW9=CIAL/INDSTRL SLUG' Xnteria'Assessid values '700, 000'- 1005 Cnty/Twp/Mono...... 4 months 2005 School....... ...10 months QQU rai3ed.ai?? . fir. r; a a ^1c1, A?P •.i.. xy:?•?" .'' Ss '' .+,??? r' ?i TU Yi:' t: af• %,'? N¢ ' ;?y?•` ttQ`3` °` l` i?alrre, vote mat'):f?te°: ;: t, pb: +vit i` thei =fir aT?.r a ;ft din Writing With call. 'des d:•# "a? t. :.bey S iri ue "?' ? s- i•'tfi t,. d., :, UPS `f' ; Ir ,anrJ IoEatio460.t (. ! :9. may b 1., . s rna be fairi b:s:'e'°lisfi:d b_eliaw` oTa aat3isilnd -Qt ri l.. " ' '}7(t _1110h may d=4., ..,t't. _ - f`i , ,... t ?r, 'T .??.. Courthoue a06 , {3rtd .Courthau` ^ oia nib Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing cc a.net. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7286, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 .m. EXHIBIT iJ L A Old New Total Assessed Vales Assessed Value Change of Assessment Land 890,630 1,800,890 910,260 Buildings 5,109, 370 4,899,110 -210,260 TOTAL 6,000,000 6,700,000 700,000 Clean and Green Values Land NOT NOT NOT Buildings APPLICABLS APPLICABLS APPLICABLE TOTAL hl 'gar d ..ri dues beosm `iafifs . -' ;e r , r pjpUc _ iapRtiosr?l?: . r?`ist•beaebelveil:bi#l4sY .:I:Fk f1n Jte; 3}t • N a a -n ca 0 ?I °o II i„ ?- woo g e?v.+? ? V fl. i i t 0 °o 0 RTMTO-ll w ? PaY tQ ? ` - t 1 t? 1 8?er 1 ty 1 yN? ? t N all to --? i j 1 1 1 1 1 ? + 1 + XV41131*T 7a v N t`` a ? B !a CUMBERLAND COUNTY ASSESSMENT APPEAL. ERCIAL/INDUSTRIAL Under to provfsbrts of par cry person' egg wod by any assessment damning to appeal shall 60 a statert?erA In wrift with the Board of Asesssrrwd Appeals on or before September tat Such stalwnsrd Ad designate the asesssment sgxwled irnm and the address b which the Board shall mall notice of when and where b appear br a hearing. No appeal shall be heard by the board untas appellant shalt *d •re Bled tin. appeal and requped docmrenta on or bebm September 1st. as od forth by law. C) inducts taxing ddd is necord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk Esquire Pepper Hamilton, LLP 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road H111112den Township Number Street BororTowrnhip Assessors Tax Map Identiticatlon #: 10-22-0531-020 Assessment Appealed S6,700,000 Opinion of Market Value of this property To be provided Date Purchased 12/31/72 Purchase Price Not available Arnount of Fire Insurance Not reflective of market value State reasons for fiNng this appeal: The fair market value upon which the aggerg ent is haled is in exC=g of the : "r=_ value. The assessment is not uniform with assessments of other property in the County. Property Type: Check and Complete Proper Classification: X %AR141 AfCISI6 U se Retail Owner Occupied N Leased: Annual Rent Industrial: Total Square Ft. Square Ft. Plant Area Tenant Occupied Square Ft. Rentable Area Tennant Occupied Date Constructed Square Ft. Rentable Area O*mr Occupied N Leased: Annual Rent Lease Type: Net Gross - Combination Date Constructed Other Use Grow Square Ft. Owner Occupied Tenant Occupied If Leased: Annual Rend Date Constructed "ATTACH LAST a YEARS INCOME a EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE FORM" Ceruncate or Appeal Ihw hereby declare my/our intention to appeal from the assessed valuation of the property described a - ..and "dg_ =t P 149i6 ?._. ; statements made in this appeal an true and cored. I understand that false statements heroin are mid+It subjr+d t iffs ' of 18 pa C.S. Section 4 elating to falsification to authorities. Signed: Date: October -i 0 , 2 A Q,p? ?nn5 _ LL C DQ01 Y Phone it: (Horne) dG l d (Day/Office) 412 X54-5nnn notices of these proceedings shall be mailed to: Office Us* Only Foe Gross Square Ft., 121,672 Square Ft. Rentable Area 121,672 Owner Occupied No Tennant Occupied Yes N Leased: Annual Rent To be provided Date Constructed 1972 Gross Square Ft. Name: Dusty Elias Kirk, Esquire Address: Pepper Hamilton LLP 50th Floor, One Mellon Center, 00 rant Street, Pittsburgh, PA 15219 EXHIBIT C Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board'ofAssessment Appeals BONNIE M. MAHONEY Lloyd W. Bucher Chief Assessor R. Fred Hefelfinger Sarah Hughes STEPHEN D. TILEY Assistant Solicitor DECISION ORDER MAILING DATE: February 17, 2006 PARCEL NUMBER: 10-22-0531-020. SANNDREL OF PENNSYLVANIA INC C/O DUSTY ELIAS KIRK, ESQUIRE 50TH FLOOR ONE MELLON CENTER 500 GRANT STREET PITTSBURGH PA 15219 Dear Property Owner: This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals regarding the above-referenced parcel. DATE OF APPEAL HEARING: 02/08/2006 DATE DECISION RENDERED: 02/17/2006 EFFECTIVE FOR TAX YEAR: 2005 DECISION RENDERED: [ ] Withdrawn By Applicant [ ] Abandoned For Failure To Appear [ ] Denied - No Change [ ] Approved Review Appraiser's Changes [X] Revised Assessment Based on Hearing [ ] Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: 6,700,000 New Assessed Value: 5,350,000 NOT APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Prothonotary's office on or before March 20, 2006. E ;EEXHIBIT YI D ` Mare 02 2 006 10: 44AM HP ON ERJ'ET 3200 P.2 ?- r Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board of Assessment APPeals BONNIE M. MAHONEY uoyd.W. Bucher Chief Assessor R. Fred Hefr9lfinger. STEPHEN D. TILEY Sarah Hvghea Assistant Sofkllbr CINEMA SUPPLY, INC 502 SOUTH MARKET STREET MILLERSVILLE PA 17061 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL MAILING DAM March 2. 2006 parcel Identifiers 10-22-0531-620 . -LLOOI Distriate 10 - 3Amr1DSN TONNNNIP school.. C'NSIMLAND VALLXY aD Now Assessed Value indicated belaw will take effect for 2007 County./Librarp/Municipal 1006-2007 6eheel Locations 3431 sxmpwn r=RY ROAD LAND LBA88 RD 89 PO 70 TAXABLE Land Size....1 .00 acres property Types C Couvorcial - General REASON FOR CBANGS: NZW PARCRL _ Old New TOW Assessed Value Assessed Value Change of Assessment Land 0 0 0 Buldings 0 3,000,000 3,000,000 TOTAL 0 31000,000 3, 000,000 Chan and Green Values Land NOT NOT NOT Buildings APPLICABLE APPLICABLS APPLICABLE TOTAL ,.4.; ,.. _,I.y ?c ? .... 1..`.'-._ _ ..?? •.Ly?yp ..yy1 yam! ?y / •?. xv. ° e ?? a ' ' '` ??? . _ ? r ? • II ?!? ? ( ?+`Ile sfq?i'?>l?_ ?.' ' f!•?p?!k? wYY'? _•.. .yw '1V.' + •• •i.:..:.i: ?i?..?i??$y tom.. f ;.: s_. ?: it..M ?, W Ys' Interim Assessed V4i1•aas 3,000.000 2006 Cniy/TMp/Borc...... 12 months 2005 School .............10 months Y_rsi +?:"?'SC+i!. 7''f• ri'.7?i'..^='?:?,'.?':.. 1. •u_ .:.?'•• f '.1#3t';;' rd:< .1B:r?e"3 al.?yb?= _ I11.. jpp W .?:. T- ¢ ±?:{?j.{j??_r?:a.. :.ate%{.? '?"'••°p:^.rl?::`'7i'c?' . ©??.jyp :• 'aloi//• _?R7• ::L , Si3:_G[? •:?'i1Y'1:17UG1'.?i13?.,?- 1 ?,Y: il?.'• .. yj am... C 135 SO h 'TKliiJS S W in 04 =r ilea ?ra? re drys r»: # alb -16 1.-' she Us>1T AeseSSrfi?idr±auft$ta;`rst, C3rie Coe??.?rsfl3;,PA fil`3:: Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing ccpa.net. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7266, or (717) 697-0371. Calls will be taken from :00 a.m. to 4:00 D. M. EXHIBIT ? E ReCelved Time Mar, 2, 0: 1 • CUMBERLAND COUNTY ASSESSMENT APPEAL-CO MERCIAL/INDUSTRIAL Under the provisions of law any person' aggrWM by any nerd during to appeal shall Ne a staterrtertt. In writing, 1011111 ttte Board d Assessment Appeals on or before September 1st Such staternert shall designate the assessment appealed from and the address to whloh she Board shat mug notice of when and where to appear for a hearing. No appeal shag be heard by the board unless appellant altaq am -.e Ded the appeal and required documents on or before September 1st, asset forth bylaw. (') irtdudes taxing 6*kfs record Owner(s) Name Cinema Supply, Inc. Address c% Dusty Elias Kirk, Esquire Pepper Hamilton, LLP 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 -tL Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Hampden Township Number Street Boroliownehip Assessors Tax Map Identification #: 10"22-0531-020-LL001 Assessment Appealed $3,000,000 Opinion of Market Value d this Property To be provided Date Purchased NIA Purchase Price NIA Amount of Fire Insurance Not reflective of market value State reasons for filing this appeal: The fair market value upon which the assessment is based is in excess of the property's value. The assessment is not uniform with assessments of other property in the County. The property is submit to a building and land lease and is already assessed on Tax Map Identification # 10-22-0531-020; therefore the property is being assessed twice. Property Type: Check and Complete Proper Ciassificatlon: X Corninerclal: Use Cinema Gross Square Ft.. 51,425 Square FL Rentable Area 51,425 Owner Occupied No Tennant Occupied Yes If Leased: Annual Rent $183,000 Date Constructed 2005 Office: Gross Square Ft. Square FL Rentable Area Owner Occupied Tennant Occupied If Leased: Annuai Rent Date Constructed industrial: Total Square Ft. Square FL Rentable Area Square FL Plant Area Owner Occupied Tenant Occupied It Leased: Annual Rent Lease Type: Net Gross Combination Date Constructed Other. Use Gross Square Ft. Owner Occupied Tenant Occupied If Leased: Annual Rent Date Constructed 'ATTACH LAST a YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME fi< EXPENSE FORM" Certificate of Appeal IMrs hereby declare my/our inlention to appeal from the assessed valuation of the property described above and do hereby verily that the statements made in this appeal are true and correct. I understand that false statements herein are made subject to the peraMies of 18 Pa. C.S. Section 4644, relating to unswom talsif Pion to es. Ear- Signed: Date: Phone #: (Home) 412 454-5000 L'I "Z?i ? Owner(s) of Record (Day/ oce) 412 454-5000 NiAK :, I 6 notices of these proceedings shall be mailed to: Name; Dusty Elias Kirk, Esquire Office Use Ont Fes Address: P_ epper H 50th Floo EXHIBIT ?t Street, Pittsburgh, PA 15219 w ii .t F i-' W jE r v? F? T:- APR 0 5 2006 Cumberland County Boa rd of Assessment Appeals Old Courthouse One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Board of Assessment Appeals BONNIE M. MAHONEY Lloyd W. Bucher Chief Assessor R. Fred Hefelfinger Sarah Hughes STEPHEN D. TILEY Assistant Solicitor DECISION ORDER MAILING DATE: August 14, 2006 PARCEL NUMBER: 10-22-0531-020.-LL001 CINEMA SUPPLY, INC DUSTY ELIAS KIRK, ESQUIRE PEPPER HAMILTON LLP 500 GRANT STREET PITTSBURGH ?A 15219 Dear Property Owner: This letter is to officially notify you of the decision of the Cumberland County Board of Assessment Appeals regarding the above-referenced parcel DATE OF APPEAL HEARING: 08/07/2006 DATE DECISION RENDERED: 08/14/2006 EFFECTIVE FOR TAX YEAR: DECISION RENDERED: [ ] Withdrawn By Applicant (J Abandoned For Failure To Appear [X] Denied - No Change [ ] Approved Review Appraiser's Changes [ ] Revised Assessment Based on Hearing [ J Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: 3,000,000 New Assessed Value: 3,000,000 NOT APPLICABLE Any person aggrieved by the order of the Board of Assessment may appeal to the Court of Common Pleas by filing a petition in the Proth fore September 13, 2006. EXHIBIT F C 0 0 VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), record owner of the Property on appeal to make this verification of the foregoing Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. Executed this( P'41 day of September, 2006. 0 0 VERIFICATION I. Van S. Troutman, declare under penalty of perjury that I am authorized by Cinema Supply, Inc., lessee of the Cinema Storeroom on appeal to make this verification of the foregoing Petition for Appeal; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. -4? Executed this 6_ day of September, 2006. Gt? , 0 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. CIVIL DIVISION NO. Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. ORDER OF COURT AND NOW, this day of 2006, it is hereby ORDERED, ADJUDGED and DECREED, that a hearing for the above-captioned real estate tax assessment appeal is scheduled for , 2006 at m. at J. • • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Petition for Appeal has been served upon the following parties by first class mail, postage prepaid on this /9`g day of September, 2006. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Jerry R. Duffie, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Concurred In Motion to Consolidate Real Estate Tax Assessment Appeals has been served upon the following parties by first class mail, postage prepaid on this a'7'$1' day of September, 2006. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Jerry R. Duffle, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 r._y r - -, ? .; . .. - ,.. .? ?" - f :?_ ' -r ? i'7 -?a ?e? ' 3 -.... : : ..t . _ . • :; "1 . _ ?. , .mil l OCT 0 3 2006?1? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC., CIVIL DIVISION No. 2006-1433 t-'' 2006-5361 Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. ORDER OF COURT AND NOW this 1h day of Ocat o10LC , 2006, upon consideration of Appellant's Concurred In Motion to Consolidate Real Estate Tax Assessment Appeals, it is hereby ORDERED that the tax assessment appeals currently docketed at Docket Nos. 2006-1433 and 2006-5361 are hereby consolidated for all purposes at Docket No. 2006-1433. All filings in these appeals from this date forward shall be filed at Docket No. 2006-1433, and the caption of these consolidated actions shall reference only Docket No. 2006-1433. BY THE COURT: tl; I . ? ? ? ,.nn ;t i•? L ? .7, N!d 9 - i-, 9on, A b V1, 0, Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Appellee Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle, Pennsylvania 17013 Fax: 717-243-6441 SANNDREL OF PENNSYLVANIA, INC. : IN THE COURT OF COMMON PLEAS (KIMCO REALTY CORPORATION) OF CUMBERLAND COUNTY and CINEMA SUPPLY, INC PENNSYLVANIA Appellant VS. CIVIL DIVISION THE CUMBERLAND COUNTY BOARD NO. 2006-1433 CIVIL TERM OF ASSESSMENT APPEALS Appellee VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties ANSWER TO CINEMA SUPPLY, INC. PETITION AND NOW, comes Cumberland County Board of Assessment Appeals, and County of Cumberland, by Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters, and files this Answer to the Petition for Appeal, filed by Cinema Supply, Inc., originally to No. 2006-5361, which case was consolidated with a pre-existing case filed to No. 2006-1433 by Order of Court dated October 6, 2006, providing for all further pleadings to be filed to Case No. 2006-1433; and it is noted that from this point forward this Answer is identical to that filed on October 10, 2006 to No. 2006-5361, (except for the footer on each of the pages, and the dates and signatures at the end), but has hereby been re filed to Case No. 2006-1433, in light of the Court's Order of October 6, 2006, as follows: 1. Admitted in part. Denied in part. The averments of this paragraph are admitted except to the extent that a portion of the real estate described by Appellant as the "Shopping Center" is a multiplex theater structure, owned in whole or in part by Cinema Supply, Inc. Answer to Cinema Supply, Inc., Petition Page I of 6 2. Admitted. 3. Denied. Pennsylvania, Inc. ("Sanndrel") is not the record owner of Tax Parcel # 10-22-0531-020.-LL001. The parcel ending in 020.-LL001 is a leasehold parcel which was created upon representation by representatives of Sanndrel at a prior Board of Assessment Hearing for the original parcel, ending 020.-LL001 that there was either a ground lease, or otherwise that Sanndrel did not own the Cinema structure which was constructed on the property. Therefore, the land lease parcel was created and the record owner for that parcel is Cinema Supply, Inc. 4. Admitted. 5. Admitted in part. Denied in part. It is admitted that Sanndrel purports to appeal the assessment of Parcel No. 10-22-0531-020.-LL001, however, Sanndrel is not the owner of that parcel, and did not appeal that parcel of real estate to the Board of Assessment Appeals, which is a prerequisite to this Court appeal. Attached to the Petition as Exhibit "F," is a copy of the appeal form filed by Cinema Supply, Inc., appealing the assessment of the parcel number ending 020.-LL001. Nowhere on that appeal form does Sanndrel appear, and it would not properly appear as the property is owned and assessed solely in the name of Cinema Supply, Inc. It is admitted that Cinema Supply, Inc., one of the Appellants in this action, does have the right to make this appeal, however, the averment that Sanndrel makes this appeal is denied. FACTUAL BACKGROUND 6. Admitted in part. Denied in part. It is admitted that there is a shopping center located at 3431 Simpson Ferry Road, Hampden Township, Cumberland County, Pennsylvania. It is denied that the within appeal concerns the entire shopping center. The within appeal only concerns the leased parcel ending in 020.-LL001 which consists of a multiplex theater, containing approximately 51,425 square feet. The entire shopping center does not consist of "8 rooms" but rather of commercial space leased to tenants. The subject of this appeal is a portion of the real estate which consists of a multiplex theater structure. Answer to Cinema Supply, Inc., Petition Page 2 of 6 7. Admitted in part. Denied in part. Upon information supplied by Sanndrel at a Board Hearing for parcel ending 020, Cinema Supply, Inc., does not lease a "room" but leases an area approximately 51,425 square feet in size upon which it constructed a multiplex theater. 8. Admitted. By way of further Answer, it was the Board Hearing for this appeal at which Sanndrel maintained that the theater building was not owned by it. As a result, a separate parcel was created for the theater building, which ends in 020.-LL001, and which is the subject of this appeal. 9. Admitted. 10. Admitted. 11. Admitted in part. Denied in part. It is admitted that the assessment of parcel ending in 020, pursuant to the year 2004 Countywide reassessment, was originally $6 million, however that was before the multiplex theater was constructed. As it appears that Appellant's definition of "Shopping Center" includes the multiplex theater, the averments of paragraph 11 of Appellant's Petition are incorrect. 12. Admitted. 13. Admitted. By way of further Answer, the Change of Assessment Notice was the result of a demolition permit being issued for a portion of the shopping center, and then a building permit being issued for the cinema structure in the amount of $1,919,000, a new value/assessment for the shopping center being arrived at, and then the new assessment being allocated between land and buildings. 14. Admitted. By way of further Answer, the appeal filed for parcel ending 020 is the subject of litigation filed to Cumberland County No. 2006-1433. Answer to Cinema Supply, Inc., Petition Page 3 of 6 15. Admitted in part. Denied in part. It is admitted that there was Hearing on February 8, 2006 concerning the assessment of parcel ending 020, which ultimately resulted in the litigation filed to Cumberland County No. 2006-1483. As can be seen from the change of assessment notice attached as Exhibit "A" to the Petition, that change of assessment notice was effective as of September 1, 2005. Any change in assessment pursuant to that appeal would then be effective as of September 1, 2005, and continue into 2006, although there were not, as a technical matter, separate appeals filed as described in the Petition. 16. Admitted in part. Denied in part. At the February 8, 2006 Board Hearing Sanndrel submitted an appraisal at a value of $5,350,000, stating specifically that it did not include the value of the multiplex theater, and that Sanndrel did not own the multiplex theater structure. 17. Denied. At the request of the taxpayer Sanndrel the County agreed to create a separate land lease parcel for the multiplex theater structure. To the recollection of staff present at the February 8, 2006 Hearing on parcel 020, no suggested value of the multiplex theater structure was given and the representatives of Sanndrel indicated that they had no interest in the amount of that value. 18. Admitted in part. Denied in part. The averments of this paragraph are admitted except parcel ending 020.-LL001 is not "the room" leased by Cinema Supply, Inc., but rather the multiplex theater structure. As represented to the Board of Assessment Appeals by Sanndrel the multiplex theater structure was a separately owned piece of real estate constructed on a ground lease. Furthermore, such structure, which consists of a multiplex theater having approximately 51,425 square feet, does not meet with any reasonable definition of a "room." 19. Admitted in part. Denied in part. It is admitted that the combined assessed value of the parcel is $8,350,000 and that that figure is more than the assessment of $6,700,000 which is the first assessment which would have included all of the real estate included in the figure $8,350,000. The assessment of $6,000,000 does not compare to the figure $8,350,000 because it did not include the demolition and construction of the multiplex cinema structure. Answer to Cinema Supply, Inc., Petition Page 4 of 6 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted in part. Denied in part. The averments of this paragraph are admitted except that parcel ending 020.-LL001 is not a "room" but rather a 51,425 square foot multiplex theater structure constructed by Cinema Supply, Inc. 24. Admitted. 25. Admitted in part. Denied in part. It is admitted that both Sanndrel and Cinema Supply, Inc., have filed this Petition. It is denied that Sanndrel has an interest in parcel 020.- LL001 which is the subject of this appeal based upon the information previously provided by Sanndrel. However, Appellee, Cumberland County Board of Assessment Appeals has no objection to Sanndrel joining in this Petition. 26. Denied. The averments of this paragraph in part set forth information which is solely in the possession of the Appellant, and therefore denied. Strict proof at trial is demanded. The averments of this paragraph, and each of its sub-lettered paragraphs, are further denied in that one of the Appellants, Sanndrel, specifically represented to the Cumberland County Board of Assessment Appeals that the multiplex theater structure was constructed on ground leased from Sanndrel, that the multiplex theater was not owned by Sanndrel, but rather was owned by Cinema Supply, Inc., and as Sanndrel itself specifically asked that the multiplex theater be separately assessed as a leased parcel to the tenant, Cinema Supply, Inc. By way of further Answer, the subject parcel is not a "room" but an approximately 51,425 square foot multiplex theater structure. By way of further Answer, the theater structure is not owned, or entirely owned, by Sanndrel, but rather is owned by Cinema Supply, Inc., and is not maintained by Answer to Cinema Supply, Inc., Petition Page 5 of 6 Sanndrel. Furthermore, the averments of this paragraph, and each of its sub-lettered paragraphs, also set forth conclusions of law to which no responsive pleading is required. 27. Denied. The averments of this paragraph, and each of its sub-lettered paragraphs, set forth conclusions of law to which no responsive pleading is required. WHEREFORE, Appellee Cumberland County Board of Assessment Appeals, prays Your Honorable Court for an Order denying the Appellant's Appeal, or, in the alternative, for an Order fixing the fair market value of Cumberland County Tax Parcel 10-22-0531-020.-LL001, consisting of the multiplex cinema structure, or for such other and further relief as to the Court may seem just and proper. Dated: Q, / .Zeo 6 Respectfully submitted, By. Stephen D. iley, Esquire Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: /0//(,/,& Bonnie M. Mahoney, Chief Assessor Answer to Cinema Supply, Inc., Petition Page 6 of 6 ?? ? ' c" ? r ?• -? . , -r .n.1 ??:__ C`'? -.-y _ r - .. j'+.? ?.-??? .....3 ?i ? v ?.? :?' Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Appellee Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle. Pennsylvania 17013 Fax: 717-243-6441 SANNDREL OF PENNSYLVANIA, INC. IN THE COURT OF COMMON PLEAS (KIMCO REALTY CORPORATION) OF CUMBERLAND COUNTY PENNSYLVANIA Appellant VS. CIVIL DIVISION THE CUMBERLAND COUNTY BOARD NO. 2006-1433 CIVIL TERM OF ASSESSMENT APPEALS Appellee VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties PRAECIPE TO THE PROTHONOTARY: Please withdraw the Preliminary Objections filed by the Appellee on May 25, 2006. Dated: Respectfully submitted, By - 1;7 Stephen D. Tiley, Esquire Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. CIVIL DIVISION No. 2006-1433 Appellants, VS. REPLY TO NEW MATTER CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Filed on Behalf of Appellants, Appellee, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. Counsel of Record for This Party: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 One Mellon Center, 501h Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 #3131994 Q . , W L .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. CIVIL DIVISION No. 2006-1433 Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. REPLY TO NEW MATTER AND NOW, come Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), (hereinafter "Sanndrel") and Cinema Supply, Inc. ("Cinema Supply") (collectively, the "Appellants"), by and through their attorneys Pepper Hamilton LLP and Dusty Elias Kirk, Esquire, and file the within Reply to New Matter, and in support thereof state as follows: 18. Appellants hereby incorporate by reference the averments set forth in Paragraphs 1 through 17 of its Petition for Appeal as if the same were fully set forth at length herein. 19. Appellants deny the averments set forth in Paragraph 19 of the Board's New Matter. To the contrary, Appellants specifically aver that, at the time of the appeal, #3131994 Q Sanndrel was the owner of the real estate, including the cinema leased to Cinema Supply, which is the subject of Parcel No. 10-22-0531 020.-LL001. By way of further reply, the averments set forth in Paragraph 19 reference the contents of a lease (the "Lease") between Sanndrel and Cinema Supply, the terms of which speak for itself. Appellants specifically deny that the cinema is built on land leased under a long-term ground lease. To the contrary, Appellants specifically aver that the Lease between Sanndrel and Cinema Supply is a land and building lease. Appellants deny each and every allegation set forth in Paragraph 19 that is in any way inconsistent with the terms of the Lease. 20. The averments set forth in Paragraph 20 of the Board's New Matter constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. To the extent a response is required, the averments in Paragraph 20 are denied. Appellants specifically aver that, as the owner of the real estate when the appeal was filed for Parcel No. 10-22-0531-020.-LL001, Sanndrel has standing to bring a tax assessment appeal of Parcel No. 10-22-0531-020.-LL001. 21. Appellants deny the averments set forth in Paragraph 21 of the Board's New Matter. To the contrary, Appellants specifically aver that Sanndrel is a party to the appeal and has exhausted its administrative remedies for the reasons set forth hereinabove. Sanndrel and Cinema Supply appealed the change of assessment notice dated March 2 for Parcel No. 10- 22-0531-010.LL001 and the appeal is now before the Court of Common Pleas of Cumberland County at Docket No. 2006-5361 (which has been consolidated with the instant action). At the time of the filing of the appeal, Sanndrel was the record owner of Parcel No. 10-22-0531-010.- LL001 and therefore is the real party in interest in this appeal. By way of further reply, -2- #3131994 Q Paragraph 21 of the Board's New Matter incorporates the Board's preliminary objections which have been subsequently withdrawn. WHEREFORE, Appellants hereby request judgment in their favor as prayed for in their Petition for Appeal. Respectfully submitted, D sty Elias Kirk PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP Firm No. 143 One Mellon Center, 50th Floor 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 Dated: May A , 2007 Attorneys for Appellants Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. -3- #3131994 v2 l * r 1 . 7 VERIFICATION I, Paul C. Dooley, declare under penalty of perjury that I am authorized by Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) to make this verification of the foregoing Reply to New Matter; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unworn falsification to authorities. Executed this I?' day of 12007. Mari ;9.- 2007 10:29AM pepper h a m i I t o n No.5213 6 VERIFICATION J l ! ?v declare under penalty of perjury that I am authorized by I, C + Cinema Supply, Inc. to make this verification of the foregoing Reply to New Matter; that I know the contents thereof as to all matters of fact therein stated and the same are true; and as to all matters therein stated on information and belief, I believe them to be true. I understand that false statements herein are subject to the penalties 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to autho 'ties, tl` Executed this u day of V G , 2007. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Reply to New Matter has been served upon the following parties by first class mail, postage prepaid on this ??''" day of May, 2007. Edward L. Schorpp, Esquire Stephen D. Tiley, Esquire Solicitor, Cumberland County Solicitor, Cumberland County Board of Cumberland County Courthouse Assessment Appeals One Courthouse Square 5 South Hanover Street Carlisle, PA 17013 Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mecanicsburg, PA 17055 Jerry R. Duffle, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 #3131994 Q C'7 P13 Q i L - t CD _ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. X for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ? Civil Action - Law ? Appeal from arbitration X Assessment ADOeal Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), and Cinema Supply, Inc., (other) (Plaintiff) vs. Cumberland County Board of Assessment Appeals, (Defendant) vs. Cumberland County, Hampden Township, and Cumberland Valley School District The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pr ttrials a60lo-1433 a00V53('J No. 2005 1433--2%2 `^ Consolidated at: 204&443r3 , Term (Interested Parties) oZAo(o -1433 Indicated the attorney who will try case for the party who files the Praecipe: Dusty Elias Kirk and Sharon F DiPaolo Indicate trial counsel for other parties if known: This case is ready for trial. Date: January 17, 2008 Signed: Print Nat fie: Sharon F. DiPaolo Attorney for: Sanndrel of Pennsylvania Inc (Kimco Realty Corporation), and Cinema Supply Inc.) #8791535 v1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the attached Praecipe For Listing Case for Trial has been served upon the following parties by first class mail, postage prepaid on this d h of January, 2008. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Frey & Tiley Attorneys-At-Law 5 South Hanover Street Carlisle, PA 17013 Jerry R. Duffle, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 kAt #8791535 0 C? ^-a 00 ? va o . W U' v w v _ . SANNDREL OF PENNSYLVANIA, INC.: IN THE COURT OF COMMON PLEAS (Kimco Realty Corporation), and CUMBERLAND COUNTY, PENNSYLVANIA CINEMA SUPPLY INC., PLAINTIFFS V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, DEFENDANT V. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT INTERESTED PARTIES : 06-1433 CIVIL ORDER OF COURT AND NOW, this 1St day of February, 2008, the non jury trial in the above referenced case has been assigned to this Court. Prior to setting an actual trial date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum with the Court on or before February 29, 2008, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. By the Court, Nv? M. L. Ebert, Jr., J. Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Attorney for Plaintiff Michael S. Ferguson, Esquire Attorney for Defendant bas { ?Zcl 1- 933 OQDZ odd 3KI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. No. 2006-1433 2006-5361 Appellants, Consolidated at 2006-1433 ` VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, PRAECIPE FOR APPEARANCE Appellee. VS. CUMBERLAND COUNTY, HAMPDEN Filed on behalf of Appellants, TOWNSHIP and CUMBERLAND VALLEY Sanndrel of Pennsylvania, Inc. SCHOOL DISTRICT, (Kimco Realty Corporation) and Cinema Supply, Inc. Interested Parties. Counsel of Record for these Parties: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 #9381673 vi IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC., CIVIL DIVISION No. 2006-1433 2006-5361 Appellants, Consolidated at 2006-1433 vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PRAECIPE FOR APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearances of Dusty Elias Kirk, Esquire and Sharon F. DiPaolo, Esquire on behalf of Sim Zim Associates LP, new owner of the property that is the subject of the above-captioned matter. Dated: February 28, 2008 Respectfully suub%mitted, *Juz?v "_ 4??' Dusty Eli irk PA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP One Mellon Center, 50th Floor Pittsburgh, PA 15219-2502 (412) 454-5000 Attorneys for Sim Zim Associates, LP CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Praecipe for Appearance has been served upon the following parties by first class mail, postage prepaid on this 28th day of February, 2008. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Frey & Tiley Attorneys-At-Law 5 South Hanover Street Carlisle, PA 17013 Jerry R. Duffie, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 f ?- c: x ?? i=" ?:'? X".M c ? ,.;.y Cs?? C-. ? ,, .... ?> ti? .. ':;_ ?' ? Stephen D. Tiley, Esquire Supreme Court I.D. No. 32318 Attorney for Appellee Cumberland County Board of Assessment Appeals 5 South Hanover Street Tel: 717-243-5838 Carlisle. Pennsylvania 17013 Fax 717-243-6441 SANNDREL OF PENNSYLVANIA, INC. : IN THE COURT OF COMMON PLEAS (KIMCO REALTY CORPORATION) OF CUMBERLAND COUNTY and CINEMA SUPPLY, INC PENNSYLVANIA Appellant VS. THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS CIVIL DIVISION NO. 2006-1433 CIVIL TERM Appellee VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties MOTION TO DISMISS OBJECTIONS TO DISCOVERY AND TO COMPEL DISCOVERY Appellant, Cumberland County Board of Assessment Appeals, through its undersigned counsel, moves this Court for a Special Order for discovery to compel the Plaintiffs to provide certain documents, of which the following is a statement: BACKGROUND The Rules of Civil Procedure do not apply to the within proceeding because it is a statutory appeal pursuant to The Fourth to Eighth Class County Assessment Law (72 P.S. §5453.101, et. seg.). Appeal of the Borough of Churchhilll, 575 A2d. 550 (Pa. 1990) Sanndrel of Pennsylvania, Inc. Page 1 of 4 (Kimco Realty Corporation) - Motion to Dismiss Objections to Discover and Compel Discovery 2. The Rules of Civil Procedure are only applicable to this proceeding if there is a local Rule adopting the Rules of Civil Procedure for assessment appeals. No such local rule exists in Cumberland County. The Court, therefore, has discretion to fashion discovery procedures as it deems proper. Tangoewood Lakes Community Association v. Pike County Board of Assessment & Revision of Taxes, 642 A2d. 581 (Pa. Cmwlth. 1994) FACTUAL BACKGROUND 4. The within appeal concerns a single parcel of real estate and improvements which are partially owned by the underlying fee simple title owner, and partly owned by a land lease tenant. The underlying fee owner was Sanndrel of Pennsylvania Trust (incorrectly referred to as Sanndrel of Pennsylvania, Inc., on the original assessment appeal) but is now Sim Zin Associates, L.P., pursuant to a deed dated December 14, 2006 and recorded December 27, 2006 in Cumberland County Book 278, Page 642. (Referred to herein as "Sanndrel.") 5. The tenant, Cinema Supply, Inc., took possession of a portion of the property, demolished a portion of the pre-existing structure, and constructed a new multi-plex theater. This case turns on the valuation of those tenant-constructed improvements. The Plaintiffs contend that only the underlying fee holder (Sanndrel now Sim Zin) owns real estate, as opposed to the position of the Board of Assessment Appeals that Cinema Supply Inc., in what amounts to a ground lease transaction, owns real estate which should also be valued for assessment purposes. It is the averment of the Board of Assessment Appeals that the rental payments made by Cinema Supply, Inc. to Sanndrel do not reflect any value of the newly constructed theater. 6. In support of its factual argument, the Board of Assessment Appeals (hereinafter "Board") notes that Cinema Supply, Inc., gave an "Open-End Leasehold Mortgage and Security Agreement " dated March 19, 2004, and recorded on that date in Cumberland County Mortgage Book 1857, Page 3408. The mortgage is in the amount of $5,3000.00, and is in favor of Community Banks. Sanndrel of Pennsylvania, Inc. Page 2 of 4 (Kimco Realty Corporation) - Motion to Dismiss Objections to Discover and Compel Discovery 7. Notwithstanding having this, and other facts, before it, taxpayer's have continued to maintain that only fee owner, Sanndrel, has any assessable real estate, and that the rent payments reflect the value of all of the real estate. DISCOVERY REQUESTS AND RESPONSES 8. In order to establish the facts concerning this real estate, the Board made certain informal requests for discovery by letter to counsel dated October 10, 2006. A copy of the relevant portion of that letter of October 10, 2006 is attached hereto, marked Exhibit "A," and is incorporated herein by reference thereto as if fully set forth herein. 9. Appellants responded to the discovery requests by letter dated May 2, 2007. A copy of the relevant portion of that letter, together with its attachments, is attached hereto as Exhibit "B," and is incorporated herein by reference thereto as if fully set forth herein. 10. Appellants refused and failed to fully answer the discovery requests, as is apparent from Exhibits "A" and Exhibit "B." 11. It is noted that while request No. 1 asks for copies of all leases, only rent rolls were provided. Request No. 2 asked for income and expenses statements. No income and expenses statements were provided for either entity. Some sort of reconstituted revenue and operating expenses statements for, evidently, Sanndrel were created and provided. No income and expense statement were provided for Cinema Supply, Inc. 12. Appellants improperly objected to request 3, 4, 6 and 7. 13. Request No. 5 asked for all plans, however, only a rough sketch plan was provided. Obviously, Cinema Supply, Inc., did not demolish and then build a 51,425 square foot theater complex without full and complete land development plans. Sanndrel of Pennsylvania, Inc. Page 3 of 4 (Kimco Realty Corporation) - Motion to Dismiss Objections to Discover and Compel Discovery 14. It is noted that the instructions accompanying the letter of October 10, 2006 specifically stated that the request for documents applied to each entity separately, as well as related entities. 15. Appellants objections to the request for production of documents are insufficient and without basis in law, as all of the information requested relates directly to the fundamental dispute between the parties. 16. Request for production of documents set forth in Exhibit "A" attached hereto are proper and Appellants should be directed to produce the requested documents. WHEREFORE, the Cumberland County Board of Assessment Appeals, requests Your Honorable Court to determine that Appellants objections, and partial responses to discovery are insufficient and Order that Appellants produce the documents described in Exhibit "A" within as much time as the Court may direct, of suffer appropriate sanctions upon application to the Court. Dated: V 4wv Respectfully submitted, By Stephen . Tiley, Esquire Assistant Cumb. Cty. Solicitor For Tax Matters 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 Sanndrel of Pennsylvania, Inc. Page 4 of 4 (Kimco Realty Corporation) - Motion to Dismiss Objections to Discover and Compel Discovery SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION) Appellant VS. THE CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS Appellee VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . PENNSYLVANIA CIVIL DIVISION NO. 2006-1433 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Motion to Dismiss Objections to Discovery and to Compel Discovery filed on March 4, 2008 by placing a certified true and correct copy of the same in the United States mail on March 4, 2008, postage pre-paid, addressed to: Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Paul Didomenico, Esquire Counsel for Appellant PEPPER HAMILTON, LLP 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Keith O. Brenneman, Esquire Counsel for Interested Party Hampden Township SNELBAKER & BRENNEMAN 44 West Main Street Mechanicsburg, PA 17055 Jerry R. Duffle, Esquire Counsel for Interested Party Cumberland Valley School District JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street Lemoyne, PA 17043 Date: 1,V41141W Jdxe, p 7? i Stephen D. Tiley, Esquire Assistant Cumb. Co. Solicitor for Tax Matters 5 S. Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D.#32318 Frey & Tiley Attorneys-At-Law Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Paul Didomenico, Esquire Re: _ Sanndrel (Kimco) Assessment Appeal No. 2006-1433 Cinema Supply, Inc., Assessment Appeal No. 2006-5361 October 10, 2006 Page 2 } C 4j 'a ; i. f fT 5 . Ly ... .p F .1 Y We should probably proceed on the assumption that we are going to litigate this case, Therefore, I request informal discovery as follows: 1. A copy of all leases, together with all amendments and explanatory letters related thereto, for all portions of the property. Please include all leases under which a tenant occupied any portion of the property at any time during the past three years, even if that lease is no longer in effect as the tenant no longer occupies that space. 2. Income and expense statements for the last three years.. 3. Tax returns filed by the entities for the last three years. 4. A copy of all demolition or construction contracts; or materials, components or equipment, purchase or lease, contracts; entered into within the last three years. Included should be contracts or leases for all equipment which is attached in any way to the property. If you believe that any particular item of property is not assessable for real ?n EXHW"A7 p Frey & Tiley Attorneys-At-Law Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Paul Didomenico, Esquire Re: Sanndrel (Kimco) Assessment Appeal No. 2006-1433 Cinema Supply, Inc., Assessment Appeal No. 2006-5361 October 10, 2006 Page 3 estate taxes, please provide the information but note your objection. 5. A copy of all plans for all. portions of the property, and a current site plan. 6. A copy of the commitment letter (or similar document), Note, Loan and Security Agreement, and any other agreements entered into between Cinema Supply, Inc., and Community Banks, related to the $5,300,000 leasehold mortgage recorded in Cumberland County Mortgage Book 1857, Page 3408, a copy of which was provided under cover of my letter of July 19th. 7. A copy of any and all attorney's certificates of title, title insurance commitments or policies or other title certificates issued in connection with the mortgage recorded in Cumberland County Mortgage Book 1857, Page 3408. t 8. Any other documentary evidence you intend to either admit, or otherwise use, at trial. Note that these requests relate to both cases, whether they are separate or consolidated, and, therefore, they relate independently to each entity. If either of the entities contracted through affiliated or separate entities, all information regarding those entities is also requested. Please accept this as a request for continuing discovery, thereby including any new leases or agreements or subsequent financial statements. Recognizing that it will take some time to assemble this information, please advise as soon as possible if you do not intend to voluntarily provide the request of discovery, so that I will know if I need to request the same from the Court. Please also understand that this request for discovery may be supplemented in the future, particularly if an appraiser we retain for-trial purposes requires or requests additional information. Also, that appraiser, and possibly Assessment Office personnel, will, of course, need access to the property at some point in the future. "WW WW Pepper Hamilton LLP Aaomrya ac La.. Stephen D. Tiley, Esquire Page 2 May 2, 2007 Discovery Issues In accordance with our receipt of the fully executed Confidentiality Agreement, the following is our response to your discovery request. We are responding to your discovery request by corresponding each response to the paragraph number referenced in your letter. 1. Attached hereto are the rent rolls for the tenants to the Property for the last three (3) years. 2. Attached hereto is an operating income and expense statement for the Property for the years 2003, 2004 and 2005. 3. We object to your request for the discovery of tax returns filed by Sanndrel of Pennsylvania, Inc. or Cinema Supply Inc. on the grounds that tax returns are not relevant to the determination of the actual market value of real estate, nor are they reasonably calculated to lead to the discovery of admissible evidence. 4. We object to your request for the discovery of copies of all demolition or construction contracts, materials, components or equipment, or purchase or lease contracts on the grounds that the request is overly broad, unduly burdensome and not relevant to the determination of the actual market value of the Property. 5. Attached hereto is a current site plan of the Property. 6. We object to your request for the discovery of a commitment letter, Note, Loan Agreement, Security Agreement and Mortgage on the basis that the requested information is not relevant to the determination of the actual market value of real estate, nor is the information reasonably calculated to lead to the discovery of admissible evidence. 7. We object to your request for the discovery of any and all attorney's certificates of title, title insurance commitments or policies or other title certificates issued in connection with the mortgage recorded in Cumberland County Mortgage Book 1857, page 3408 on the basis that #8065539 v3 IMI • "W Pepper Hamilton up Stephen D. Tiley, Esquire Page 3 May 2, 2007 attorney's certificates of title and title insurance commitments and policies are not relevant to the determination of the actual market value of real estate, nor are they reasonably calculated to lead to the discovery of admissible evidence. 8. We intend to either admit or otherwise use at trial the rent rolls, income and expense statements, site plan, and appraisal report, all of which have been provided to you. We have not yet determined if we will be submitting other documentary evidence at trial. Documentary evidence that we intend to admit at trial will be set forth in our Pre-Trial Statement. Reply to New Matter As a housekeeping matter, enclosed please find a copy of the Reply to New Matter that we prepared in response to the New Matter set forth in your Answer. The original Reply to New Matter is concurrently being sent for filing with the Court of Common Pleas of Cumberland County. Very truly yours, haron F. DiPaolo Enclosures cc: Dusty Elias Kirk, Esquire (without enclosures) Paul Didomenico, Esquire (without enclosures) #8065539 0 IWIW air ¦ C+-y ?O W co CL N N V N N m .Q L L T? i L d N C m La C xa CL :LL N N M 'VO f0 ink fO r N N b V 1t N c0 ? M r N 0 02E2ed?2e34 E:8888088 ;LL C OOOG'ics C b q &9 t 40 cg a?ul ppNpppOpoHpS q S m} N N H cl C r r ?. q Ia N N N KIM p Oy N y? G H ?rpp 7 c 'O'), pO O coo It p8 C.yp/?pHi9 N d"Z ?y m R?bU?UUUU ?ycaxaaaa Boo m? 8g88? wo d'O rrrrr,,, c y OP } } a? Lo O ' cC r ?., €rrrOOVco N O O^? h W cp r gN ?.N-???tA Nm e7 NNr y _C C7 y ? p U r Y co"fgmc E ? ~ m 41Q m a E c o 8 cCaCL0. n x . a ? ? v H a O c O Wx U X U Z a? 0 0 0 0 0 0 0 m L V a Q ? N H i i N i ? N pp r I N N N ? I K ? y P. a I In m a C .5 S J c 8 1? O a N t in I OI r 0 r I co KIM/28-0005 CONFIDENTIAL 0 ti Q t C C m a c A N 0 c 0 w 'm y it O 00 _O O H 4-c 0 0 to ce a N N d N d a LL I co to .Q N N .m a I o = w L V = O m CL a N E? p CO ,, P GS LL C U) Q p o ? H a C ? G N IQ ,,, N V m m 2 m Q -0. > L a` can el) T 0 T L 0) 7 O w T c C C a c w TL M O KIM/28-0006 CONFIDENTIAL c EXHW uW 01 M 4 V O 00 C C o dVM ^' l V d M a O bA d ar d U. ? ? '? to d a ? o ?th i0 N J m 0 M ? 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N N .•r O v d V O 0 ~ O > a y c n KINV28-0010 EMMT 'go" CONFIDENTIAL 10-4 (4-f O a?0 c? a ti N N v U) i+ N .Q -L L 2 L 40- ? 2 0 o a m ? C c ? C m .c ° m C9 M h N a?a U. C9 N Ch N n In M O r L N r M 44 I LL +' m oC 3° 3? oe 3? o`E aE M1"'OSSSOSO S ' OOCOCIt p i 3 Qo W 0m o o .? Q? a R 'v H a O I M N Lo W N W 3 of co O M yO O N O N cZ'O?j??NS tq ? M ? In ; Q V N H on ? W N I H 1lJ pp6p p p N}} G 0 O O r pNj O O S 4 N V M A i N`MO<ONto tC A W m M ? ??pp pp?? N CfLLlJ?t1?c??oD? tOA. ! M W c? c; y , N ? H ?yaaasaa z I mr°_opmoapo.- m y 0 0 S O S O ryypO ? N ?V N N 0 ? N CMS iT+) MM a AAAM offf ! -to 1AM I €oa,.-oov co tD 0p to N O ?Op NSOI.?-SCCmpp S H N N AN. O A N t0 M M M N N t'7 tV N O! MN N r M N r C C Q C EQ co i0 cv t3 to z E C g ? ? m c Q m` E cA:d O U m a m C? NU U oooo2 c c a J ? .QI N ? v1 > Fo N .J 8 O n o M ° KINV28-0007 CONFIDENTIAL A O A .C 'O O w e w m e CL a c J!MW YQN . p y Q 0 V O .Yi h O O N ii .C '1 J Site # 227 Harrisburg West S.C. Harrisburg, PA Statement of Operations For The Year Ended December 31, 2003 Revenue from Rental Property Minimum Rent $ 541,834 CAM Reimbursement 152,155 Real Estate Tax Reimbursement 48,727 Total Revenue $ 742,716 Operating Expenses Common Area Maintenance, Repairs & Utillities 126,783 Insurance 8,183 Real Estate Taxes 82,970 Management Fees 36,161 Professional Fees 4,334 Travel & Entertainment ? 96 •.? General & Administrative 20,086 Replacement Reserves @ $0.20 psf 30,979 Total Operating Expenses 309,592 Operating Income Before Debt Service $ 433,124 KIM/28-0008 .-IN CONFIDENTIAL ''1 C Site #227 Harrisburg West SC Harrisburg, PA Statement of Operations For The Year Ended December 31, 2004 Revenue from Rental Property Minimum Rent $ 61,557- Percentage Rent 28,697 CAM Reimbursement 22,414 Real Estate Tax Reimbursement 23,770 Total Revenue $ 136,438 Operating Expenses Common Area Maintenance, Repairs & Utilities $ 92,555 Insurance 13,096 Real Estate Taxes 74,994 Management Fees 7,560 Professional Fees 833 Travel and Entertainment 388 General and Administrative 3,242 Replacement Reserves @ $0.20 psf 24,334 Total Operating Expenses 217,002 Operating Income Before Debt Service $ (80,564) KIM/28-0011iBfT MB« CONFIDENTIAL T Site #227 Harrisburg West SC Harrisburg, PA Statement of Operations For The Year Ended December 31, 2005 Revenue from Rental Property Minimum Rent CAM Reimbursement Real Estate Tax Reimbursement Total Revenue Operating Expenses Common Area Maintenance, Repairs & Utilities Insurance Real Estate Taxes Management Fees Professional Fees Replacement Reserves @ $0.20 psf Total Operating Expenses Operating Income Before Debt Service $ 440,652 60,796 48,674 $ 550,122 $ 65,801 7,470 76,092 15,535 30 24,334 189,262 $ 360,860 KIW28-0012 CONFIDENTIAL (000, ? 4J 3 0 0 0. >? A co) 3 -0 N O -n CD O A) Q. v 0 0 N 0 0 o, 111111 IMP I I + 1 i 1 1 KIW28-0013 E aw l "6" CONFIDENTIAL 1 m `° ¦ Q IIIIIIIIIIII-FUHM w 1 1 1 I 1 1 I 1 1 - _±11111 C. ?i 'v 'y n a N N J ? ,?; ? ?? •i i 'M _ t, _..,. ...... .. W: f. SANNDREL OF PENNSYLVANIA, INC.: IN THE COURT OF COMMON PLEAS (Kimco Realty Corporation), and CUMBERLAND COUNTY, PENNSYLVANIA CINEMA SUPPLY INC., Appellants V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee V. CUMBERLAND COUNTY, : HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT : Interested Parties 06-1433 CIVIL ORDER OF COURT AND NOW, this 5th day of March, 2008, upon consideration of the Cumberland County Board of Assessment Appeals' Motion to Dismiss Objections to Discovery and to Compel Discovery, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule shall issue upon Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. to show cause why the Appellee's Motion should not be granted. 2. An Answer to the Motion shall be filed on or before March 28, 2008. 3. Said Answer shall be forwarded to this Court. 4. After review of the Answer, the Court will determine the necessity for a status conference, argument, and/or hearing. By the Court, M. L. Ebert, Jr., J. VINV'AIA NN3d ZO :I add S- 8vw 6002 A8ViO3?, U"' i;a-jd 3RL ?f} 1, r ? Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Attorney for Appellants .?Stephen Tiley, Esquire Attorney for Appellee ?Jerry Duffie, Esquire Counsel for Cumberland Valley School District ?Keith Brenneman, Esquire Counsel for Hampden Township bas 010 I'" Md.t&4L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. CIVIL DIVISION No. 2006-1433 2006-5361 Appellants, Consolidated at 2006-1433 ? VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. RESPONSE TO MOTION TO DISMISS OBJECTIONS TO DISCOVERY AND TO COMPEL DISCOVERY vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. Filed on behalf of Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), Cinema Supply, Inc., and Sim Zim Associates LP Counsel of Record for these Parties: Dusty Elias Kirk, Esquire PA I.D. No. 30702 Sharon F. DiPaolo, Esquire PA I.D. No. 74520 PEPPER HAMILTON LLP Firm I.D. No. 143 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 #9463689 v2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC., CIVIL DIVISION No. 2006-1433 2006-5361 Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee, vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties Consolidated at 2006-1433 RESPONSE TO MOTION TO DISMISS OBJECTIONS TO DISCOVERY AND TO COMPEL DISCOVERY Former property owner Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), tenant Cinema Supply, Inc. and current property owner Sim Zim Associates LP (collectively, "Taxpayers") by and through their undersigned counsel, Pepper and Hamilton LLP, file this Response to Cumberland County Board of Assessment Appeals' (the "Board's") Motion to Dismiss Objections to Discovery and to Compel Discovery: 1. INTRODUCTION The Board files this Motion more than ten (10) months after Taxpayers responded to the Board's discovery request and produced documents. Taxpayers agree to provide updated information to the Board and will produce certain leases. Certain of the Board's remaining requests remain overly broad, unduly burdensome, and irrelevant as described below. In J addition, the Board's requests for information specific to Cinema Supply, Inc. are completely irrelevant and further demonstrate the Board's confusion regarding the ownership of the property at issue in this case. Cinema Supply is a tenant, not the owner of any land or buildings involved in this case, as proven by information already produced to the Board. Accordingly, this Court should not grant the Board's request for further information specific to Cinema Supply. II. BACKGROUND Sanndrel of Pennsylvania, Inc., a subsidiary of Kimco Realty Corporation ("Sanndrel") owned commercial real estate property located at 3421 Simpson Ferry Road in Hampden Township, Cumberland County, Pennsylvania (the "Property") until selling it to Sim Zim Associates LP (Sim Zim) on December 14, 2006. The Property consists of a multi-tenant Shopping Center situate on approximately 11.67 acres of land. In 2005, a vacant 89,599 square foot store was demolished and a 51,425 square foot building housing a movie theater was constructed in its place, which is leased to Cinema Supply. The movie theater is not freestanding, but remains attached to the "strip-style" Shopping Center. This construction triggered an interim assessment of $6,700,000 for the Property in tax year 2005. Taxpayers appealed the 2005 interim assessment of $6,700,000 to the Board of Assessment Appeals of Cumberland County (the "Board").' At that time, the Property was identified as Parcel No. 10-222-0531-020, which included all land and buildings comprising the Shopping Center. Taxpayers engaged an appraiser, who reviewed the Property and determined ' In 2005, Sanndrel filed an appeal for tax year 2006 challenging the assessment of the Property, which was then $6,000,000. While that appeal was pending, Sanndrel received the 2005 interim assessment raising the assessment from $6,000,000 to $6,700,000. Sanndrel timely appealed that interim assessment. These matters have been consolidated. 2 that the fair market value of the entire Property (all land and buildings, including the new construction) was $5,350,000. After a hearing, the Board reduced the assessment of the Property from $6,700,000 to $5,350,000 for tax year 2005. However, the County then created a new, separate parcel, Parcel No. 10-22-0531-020.-LL001, assessing the newly constructed building at $3,000,000. Accordingly, the reduction issued by the Board was nullified because the assessment for the entire Shopping Center was increased to $8,350,000. This assessment was also appealed and consolidated with this action. The County erroneously listed the new parcel under the name Cinema Supply, Inc. Cinema Supply is merely a tenant in the newly constructed building and leases the land and building like other tenants in the Shopping Center. The Property was transferred from Sanndrel to Sim Zim by deed dated December 14, 2006 and recorded on December 27, 2006 at Deed Book Volume 278, page 642. Sim Zim paid $5,705,000 for the entire Property, including the land and buildings for both Parcel No. 10- 222-0531-020 and newly-created Parcel No. 10-22-0531-020.-LL001. III. ARGUMENT A. The Board Is Not Entitled to Discovery Specific to Cinema Supply. The Board appears to believe that Cinema Supply has some ownership interest in the land and/or building that it leases from the property owner. Taxpayers provided the Board with information demonstrating that this misconception is not true. First, Taxpayers' appraisal valued the entire property including the movie theater at $5,350,000. Second, Sim Zim paid $5,705,000 for the entire Property, including the movie theater. Third, through various letters and phone conversations, counsel for Taxpayers explained that the creation of the new parcel essentially assessed the movie theater twice and overvalues the total shopping center by more than $3 million. Finally, by letter dated June 8, 2006, Taxpayers produced to the Board the lease 3 between the owners (then Sanndrel, now Sim Zim) and tenant Cinema Supply. Section 10.E of the Lease further demonstrates that the ownership interest remains in the owner/landlord: All installations, alterations, additions and improvements, whether by Landlord, Tenant or any other person (except only sign panels and trade fixtures, seats, concession stands and screens installed at Tenant's Cost) shall become, when made, apart of Landlord's real estate, and on termination of the Lease Term shall be surrendered with the Leased Premises in good condition. Taxpayers have produced information proving that Cinema Supply is a tenant like every other tenant in the shopping center. The Board should not be permitted to proceed with unnecessary, irrelevant, and burdensome discovery of Cinema Supply, a mere tenant, because the Board does not understand the transaction or the terms of the lease. Moreover, to the extent that the Board seeks information on the income and expenses of Cinema Supply, this is completely inappropriate. The Board is entitled to income and expenses from a landlord for the operation of real estate, like the property owners because the income from the leasing of the real estate is accepted as indicative of the property's value. Cinema Supply has no real estate interest in the property. The income and expenses of a business, in this case the operation of a movie theater, are not relevant to the value of a given property. The Pennsylvania Supreme Court has held that the value in use of a property, i. e. the value of a business, cannot be used to value the property. F&M Schaeffer Brewing v. Cty. of Lehigh Bd of Assessment Appeals, 610 A.2d 1 (Pa. 1992) ("Use value or value-in-use represents the value to a specific user and, hence, does not represent fair market value."). Accordingly, such information is not properly the subject of discovery. B. The Board's Discovery Requests. For the convenience of the Court, Taxpayers will respond to each of the Board's discovery requests individually. 4 Request 1. A copy of all leases, together with all amendments and explanatory letters related thereto, for all portions of the property. Please include all leases under which a tenant occupied any portion of the property at any time during the past three years even if that lease is no longer in effect as the tenant no longer occupies the space. By letter dated June 8, 2006, Taxpayers produced to the Board the lease between the owners (then Sanndrel, now Sim Zim) and tenant Cinema Supply. By letter dated May 2, 2007, Taxpayers produced to the Board the rent rolls demonstrating the lease amounts for all businesses leasing space in the shopping mall. Because the Board now states ten (10) months after production that this is not sufficient, Taxpayers will produce the underlying leases concurrently with filing this response. In addition, Taxpayers will produce updated rent rolls concurrently with filing this response. Request 2. Income and expense statements for the last three years. Taxpayers produced the income and expense statements for Sanndrel. Although the Board questions whether the format of the income and expense statement was "created" for production, this is not true. The income and expense statements were provided in the format in which they are kept by Sanndrel and were provided to Taxpayers' counsel. See Affidavit of Paul C. Dooley, attached hereto as Exhibit "A." In addition, taxpayers will produce updated income and expense statements for the property owners concurrently with filing this response. Moreover, as described above in Section III.A, income and expense statements related to the business of a tenant in the plaza are irrelevant and not reasonably calculated to lead to the discovery of relevant evidence. Accordingly, Taxpayers will not produce Cinema Supply's income and expense statements, as they relate to the operation of a movie theater business and are neither relevant to real estate value nor calculated to lead to the discovery of relevant evidence. 5 Request 3. Tax returns filed by the entities for the last three years. Taxpayers refuse to produce tax returns for the owners or for any tenants. Pennsylvania law is clear that tax returns are irrelevant in tax assessment proceedings. In re Ames Shopping Plaza, 476 A.2d 1001 (Pa. Commw. Ct. 1984). In Ames, the Commonwealth Court held in a real estate assessment appeal that information contained in federal tax returns, including that on depreciated value, are not admissible as credible evidence of the fair market value of the property in questions. Id. at 1003-04; see also Bert M. Goodman, Assessment Law & Procedure in Pennsylvania, 2005 ed., at 152-53. Accordingly, this request is irrelevant as to the determination of fair market value and is not reasonably calculated to lead to the discovery of admissible evidence. Moreover, as described above in Section III.A, information related to the business of a tenant in the plaza is irrelevant and not reasonably calculated to lead to the discovery of relevant evidence. Request 4. A copy of all demolition or construction contracts; or materials components or equipment, purchase or lease, contracts; entered into within the last three years Included should be contracts or leases for all equipment which is attached in anyway to the property. If you believe that any particular item of property is not assessable for real estate taxes please provide the information but note your objection. Taxpayers object to this request because it is overly broad, unduly burdensome, and not reasonably related to the determination of the actual market value of the property nor likely to lead to the discovery of admissible evidence. Taxpayers have already produced information related to the purchase price of the property. However, in the spirit of cooperation, Taxpayers will produce the building permit for the construction of the Cinema Supply building concurrently with filing this response. In addition, Taxpayers are searching for additional documents detailing the construction costs and will produce that information when located. 6 Taxpayers will not produce contracts or leases for equipment. The Pennsylvania Supreme Court has specifically held that "not only are machinery and equipment to be excluded from the value of real estate but they are not even to be considered in determining the fair market value." F&M Schaeffer Brewing, 610 A.2d 1. Accordingly, the Board's request, as it relates to contract or leases for equipment, is neither relevant nor calculated to lead to the discovery of admissible evidence. In addition, the request for such information is overbroad and extremely burdensome. Request 5 A copy of all plans for all portions of the property, and a current site plan As acknowledged by the Board, Taxpayers produced a site plan. Appellants are producing concurrently additional site plans for the property. In addition, the Board should note that certain leases produced in response to Request 1, include building plans. To the extent that the Board seeks land development plans for the movie theater, which is mentioned for the first time in its motion to compel, that information is irrelevant. Moreover, such land development plans were filed with the relevant municipal authority and are publicly available to the Board. Request 6. A copy of the commitment letter (or similar document) Note Loan and Security Agreement, and any other agreements entered into between Cinema Supply Inc and Community ge s4uZS, a copy of which was provided under cover of my letter of July 19`° See Section III.A, above. The Board is not entitled to specific information about individual tenants or their business operation or business loans. This information is not relevant to the valuation of the property and not reasonably likely to lead to the discovery of relevant information. Specifically, financing information is not relevant to the determination of fair market value because it is derived from the creditworthiness of the individual business entity, which improperly invokes value in use. 7 Request 7. A copy of any and all attorney's certificates of title title insurance commitments or policies or other title certificates issued in connection with the mortgage recorded in Cumberland County Mortgage Book 1857, Page 3408 See Section III.A, above. The Board is not entitled to specific information about individual tenants or their business operation. Moreover, this information is not relevant to the valuation of the property and not reasonably likely to lead to the discovery of relevant information. Financing information is not relevant to the determination of fair market value because it is derived from the creditworthiness of the individual business entity, which improperly invokes value in use. IV. CONCLUSION For the reasons set forth above, Appellants respectfully ask that Cumberland County Board of Assessment Appeals' Motion to Dismiss Objections to Discovery and to Compel Discovery be denied. Dated: April 10, 2008 Respectfully submitted, sty Elias Kirk -SPA I.D. No. 30702 Sharon F. DiPaolo PA I.D. No. 74520 PEPPER HAMILTON LLP One Mellon Center, 50th Floor Pittsburgh, PA 15219-2502 (412) 454-5000 Attorneys for Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Motion to Dismiss Objections to Discovery and to Compel Discovery has been served upon the following parties by first class mail, postage prepaid on this 10th day of April, 2008. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Frey & Tiley Attorneys-At-Law 5 South Hanover Street Carlisle, PA 17013 Jerry R. Duffie, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 9 ,?-? ?-y ?"? '-?; --rt r- :;? --i _ ?.-??! _ _. ?';t f ? _. ? .. ` I' i't C,>7 _. `,J ?-? ("..] w SANNDREL OF PENNSYLVANIA, INC.: IN THE COURT OF COMMON PLEAS (Kimco Realty Corporation), and CUMBERLAND COUNTY, PENNSYLVANIA CINEMA SUPPLY INC., Appellants V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee V. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY SCHOOL DISTRICT Interested Parties 06-1433 CIVIL ORDER OF COURT AND NOW, this 5th day of May, 2008, upon consideration of Cumberland County Board of Assessment Appeals' Motion to Dismiss Objections and Compel Discovery and the Appellants' Response thereto, IT IS HEREBY ORDERED AND DIRECTED that the Cumberland County Board of Assessment Appeals shall file a written response to the Appellants' Argument A regarding discovery specific to Cinema Supply and requests 1 through 7 in part B of Appellants' Argument relating to the specific discovery requests. This response with appropriate supporting citations shall be filed on or before May 23, 2008. IT IS FURTHER ORDERED AND DIRECTED that a status conference on this matter will be held with counsel on Thursday, June 5, 2008 at 3:30 p.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., J fi t „ 17?? L i `.s ..i.,. ?.... .. .. ?\?i + ... Ifs ' . ? + ? .,;'?.t Itt i 1 /Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Attorney for Appellants ? Stephen Tiley, Esquire Attorney for Appellee bas 12T OF S /-nut (5x7 ( - SANNDREL OF PENNSYLVANIA, INC.: IN THE COURT OF COMMON PLEAS (Kimco Realty Corporation), and CUMBERLAND COUNTY, PENNSYLVANIA CINEMA SUPPLY INC., PLAINTIFFS V. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, DEFENDANT V. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP, and CUMBERLAND VALLEY : SCHOOL DISTRICT INTERESTED PARTIES : 06-1433 CIVIL ORDER OF COURT AND NOW, this 10th day of June, 2008, after the status conference in this case, it appearing that the case is still pending non jury trial, the non jury trial will be held on Friday, October 10, 2008, at 9:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum or an updated pre-trial memorandum with the Court on or before Wednesday, October 1, 2008, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. .- , -.. V. An estimate of the anticipated time needed for the party to present its case. By the Court, -L ?A4 / S\ M. L. Ebert, Jr., 6 J. 1111-Dusty Elias Kirk, Esquire Sharon F. DiPaolo, Esquire Attorney for Plaintiff Stephen Tiley, Esquire Attorney for Defendant bas Cvwr^•' -10'J'IrK (24 f E-S w121 1CCL &? o f o9 V NVAIASNN3d Z Z *£ WJ 01 Nnr oooz M11QNQ"' i- C)lSd 3a ?O 3011 SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CIVIL DIVISION No. 2006-1433 2006-5361 Consolidated at 2006-1433 ORDER AND NOW, this 7 day of October, 2008, upon representation by Stephen D. Tiley, Esquire, that counsel have reached a tentative settlement agreement, contingent upon formal client approval, it is hereby Ordered that the hearing scheduled for October 10, 2008 is cancelled, and the matter is CONTINUED GENERALLY, at the call of any party. By the Court, ? Dusty Elias Kirk. Esquire v" haron F. DiPaolo, Esquire Attorneys for Appellants *A UA k M. L. Ebert, Jr., J. tephen D. Tiley, Esquire Attorney for Appellee ,/Jerry R. Duffle, Esquire, Solicitor for Cumberland Valley School District /Keith Brenneman, Esquire, Solicitor for Hampden Township e,gfleS ,,,2.tLvg. ?a f z?o8 ?r''1 { a Stephen D. Tiley, Esquire PA I.D. No. 32318 Attorney for Cumberland County Board of Assessment Appeals 5 South Hanover Street Carlisle, Pennsylvania 17013 Tel: 717-243-5838 Fax: 717-243-644 Dusty Elias Kirk, Esquire PA I.D. No. 30702 PEPPER HAMILTON LLP 50'h Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Tel: 412454-5000 Fax: 412-281-0717 SANNllF,EL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CIVIL DIVISION No. 2006-1433 2006-5361 Consolidated at 2006-1433,,, STIPULATION AND JOINT MOTION FOR AGREED ORDER 4veo-'?? AND NOW, this /3 day of Qat:eher, 2008, it is hereby Agreed and Stipulated by and between Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), SimZim Associates, LP, and Cinema Supply, Inc., by their attorney, Dusty Elias Kirk, Esquire; Appellee, Cumberland County Board of Assessment Appeals, by its attorney, Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters; and by Intervenors Hampden Township, by its attorney, Keith O. Brenneman, Esquire, and Cumberland Valley School District, by its attorney, Jerry R. Duffie, Esquire, as follows: 410150538 k1 1. Appellants filed a "Petition for Appeal from the Decision of the Cumberland County Board of Assessment Appeals" on March 14, 2006, related to Cumberland County tax parcel number 10-222-0531-020. Appellants filed a "Petition for Appeal from the Decision of the Cumberland County Board of Assessment Appeals" on September 13, 2006, related to Cumberland County tax parcel number 10-22-0531-020.-LL001. On October 6, 2006, the Court consolidated these two assessment appeals for trial at Case No. 06-1433. After a Status Conference on June 5, 2008, the Court scheduled the trial of these assessment appeals on October 10, 2008. The parties have now settled these assessment appeals. 2. (a) This assessment appeal relates to the market value applicable as of August 31, 2005, the date the appeal was originally filed before the Board of Assessment Appeals, effective for assessments beginning on and after January 1, 2006, and also market value as of October 10, 2005, the date of appeal of a 40 day change in assessment notice which increased the assessment of the property beginning on September 1, 2005, as a result of the construction of a new Cinema structure. An appeal was also filed on March 31, 2006 concerning the leased parcel that was created after the first Board of Assessment Appeals hearing in this case. That March 31, 2006 appeal concerned a 40 day change of assessment notice effective September 1, 2005 for School real estate taxes, and effective January 1, 2006 for County and municipal real estate taxes. (b) For convenience, the parties stipulate and agree that the valuation date is August 24, 2005, and August 24th of each succeeding year, for all assessments beginning with the part year September 1, 2005 through December 31, 2005, and for assessments beginning January 1, 2006, and for each succeeding year thereafter. 3. The properties which are the subject of these consolidated assessment appeals consist of Cumberland County tax parcel numbers 10-222-0531-020, and 10-22-0531-020.- LL001 and are described as follows: (a) The properties are situate at 3421 Simpson Ferry Road in Hampden Township, Cumberland Valley School District, Cumberland County, Pennsylvania. (b) Collectively, the properties consists of a multi-tenant Shopping Center situate on approximately 11.67 acres of land: #10150538 vl (i) In 2005, the entire Shopping Center (including all land and buildings) was identified as Parcel No. 10-222-0531-020. (ii) On March 2, 2006, the County created Parcel No. 10-22-0531- 020.-LL001 for the newly built movie theater, which is physically attached to the Shopping Center, and assessed that building separately from the Shopping Center. (c) Appellant SimZim Associates LP, succeeded to the interest of Appellant Sanndrel of Pennsylvania, Inc., a subsidiary of Kimco Realty Corporation, having purchased that interest on December 14, 2006 for $5,705,000. Appellant Cinema Supply Inc. is the tenant which operates the movie theater. 4. The parties stipulate that the total fair market value of the properties as of the date of the original appeal to the Board of Assessment Appeals, August 24, 2005, and for each valuation date thereafter, and for each effective year, together with the resulting assessment, is as follows: Common Level Ratio Valuation Date Year Applicable Fair Market Value Assessment 100% 8/24/05 9/1/05-12/31/05 $6,000,000 $6,000,000 100% 8/24/05 2006 $6,500,000 $6,500,000 100% 8/24/06 2007 $6,500,000 $6,500,000 82.0% 8/24/07 2008 $6,500,000 $5,330,000 79.3% 8/24/08 2009 $6,500,000 $5,154,500 5. As a result of the year 2004 Cumberland Countywide reassessment, the predetermined ratio for all times applicable to this appeal is 100% of market value. The common level ratio did not vary by more than 15% from the predetermined ratio until the common level ratio published in June of 2007, effective for tax year 2008, which was 82%. The common level ratio published in June of 2008, effective for the tax year 2009, is 79.3%. For the partial tax year September 1, 2005 through December 31, 2005, and for tax years 2006 through 2007, the assessment shall equal the market value, by application of the 100% predetermined ratio. For tax year 2008, the assessment equals 82% of the fair market value on the valuation date. For year 2009, the assessment equals 79.3% of the market value on the valuation date. The parties stipulate that the assessments shall be as set forth on the table at paragraph six (6) of this stipulation. #10150538 v] 6. The Cumberland County Assessment Office shall allocate the total assessment between the land and improvements, as provided by law and the procedures of the Cumberland County Assessment Office. The Cumberland County Assessment Office shall allocate the total assessment between the two parcels as follows: Cumberland County Tax Parcel Number 10-222-0531-020: Common Level Ratio Valuation Date Year Applicable Fair Market Value Assessment 100% 8/24/05 9/1/05-12/31/05 $5,350,000 $5,350,000 100% 8/24/05 2006 $5,350,000 $5,350,000 100% 8/24/06 2007 $5,350,000 $5,350,000 82.0% 8/24/07 2008 $5,350,000 $4,387,000 79.3% 8/24/08 2009 $5,350,000 $4,242,550 Cumberland County Tax Parcel Number 10-22-0531-020.-LL001: Common Level Ratio Valuation Date Year Applicable Fair Market Value Assessment 100% 8/24/05 9/1/05-12/31/05 $650,000 $650,000 100% 8/24/05 2006 $1,150,000 $1,150,000 100% 8/24/06 2007 $1,150,000 $1,150,000 82.0% 8/24/07 2008 $1,150,000 $943,000 79.3% 8/24/08 2009 $1,150,000 $911,950 7. The said assessment shall be effective for the partial tax year September 1, 2005 through December 31, 2005, and for tax years beginning on and after January 1, 2006, and shall be as set forth in paragraph six (6) of this Stipulation, and shall continue thereafter unless and until changed as otherwise provided by law. The said assessments shall be implemented beginning with the last four months of the 2005 County and municipal taxes, and beginning with the last 10 months of the 2005/06 school real estate taxes. This Stipulation, and the assessments agreed upon herein, shall not be relevant to any subsequent countywide reassessment effective on or after January 1, 2010, or assessment after that date for new construction or demolition. In the event of new construction, or demolition, affecting an assessment after the date hereof but on or before December 31, 2009, this Stipulation shall establish the value of the property before such new construction or demolition, and only the value of the new construction or demolition shall be added to, or deducted from, the assessment. The taxpayers are aware that Cumberland Nloisosas,.i County is currently undertaking a Countywide reassessment, which is anticipated to be implemented as of January 1, 2010. This stipulation shall not have any effect or relevance with regard to that Countywide reassessment. 8. The Cumberland County Assessment Office shall promptly notify the appropriate taxing bodies of the change in assessment, and instruct the taxing bodies to make appropriate refunds as follows: (a) Within sixty (60) days of the date of the entry of the Agreed Order by the Court, Cumberland County, Hampden Township, and Cumberland Valley School District shall: (i) Issue refunds for tax overpayments made on the properties, based upon the settlement set forth in Paragraphs 4 and 6 herein; and (ii) In the event that such refunds are not paid within sixty (60) days of the date of the entry of the Agreed Order by the Court, apply simple interest on the refunds due at the rate of 7%, calculated to the day, beginning with the sixty-first day (61S) after the date of the entry of the Agreed Order by the Court, until such refunds are paid in full. (b) Cumberland County, Hampden Township, and Cumberland Valley School District shall make all refunds for all tax years payable to "Pepper Hamilton LLP" and shall forward those refunds to the following address: Pepper Hamilton LLP c/o Dusty Elias Kirk 500 Grant Street, 50th Floor Pittsburgh, PA 15219 (c) Pepper Hamilton LLP shall be responsible for forwarding the refunds on to the appropriate property owners for distribution. 9. Each party to this appeal shall bear its own costs. 10. The Court is requested to enter the proposed Order attached hereto. 11. The undersigned Attorneys each hereby warrant to the other, and to the parties, and to the Court, that he/she has reviewed this Settlement Stipulation with his/her client or #10150538 v1 clients and that he/she has specifically been authorized to enter into this Settlement Stipulation by his/her client or clients. 12. This Settlement Stipulation may be executed in counterparts. Respectfully Submitted, APPELLANTS, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation), SimZim Associates, LP, and Cinema Supply, Inc., By .a Dusty Eli i Attorney pellants PEPPER HAMILTON LLP 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 Tel: 412-454-5000 PA I.D. No. 30702 APPELLEE, CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS BY ?- SteAnD. ey Assistant Cumb. Cty. Solicitor for Tax Matters Attorney for Appellee Frey and Tiley 5 South Hanover Street Carlisle, PA 17013 Tel: 717-243-5838 PA I.D. No. 32318 #10150538 v1 INTERVENOR, CUMBERLAND VALLEY SCHOOL DISTRICT BY: G---- Je . Duffie S citor for Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 INTERVENOR, HAMPDEN TOWNSHIP Keith O. Brenneman Solicitor for Hampden Township Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 #10150538 vi CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Stipulation and Joint Motion for Agreed Order has been served upon the following parties by first class mail, postage prepaid on this %-day of 12008. Edward L. Schorpp, Esquire Solicitor, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Keith Brenneman, Esquire Solicitor, Hampden Township Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Stephen D. Tiley, Esquire Solicitor, Cumberland County Board of Assessment Appeals Frey & Tiley Attorneys-At-Law 5 South Hanover Street Carlisle, PA 17013 Jerry R. Duffie, Esquire Solicitor, Cumberland Valley School District 301 Market Street Lemoyne, PA 17043 #10150538 v I s? V• NOV 13 2008 (7l SANNDREL OF PENNSYLVANIA, INC. (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. CIVIL DIVISION No. 2006-1433 2006-5361 Consolidated at 2006-1433 / ORDER ,X-ND NOW, this 13ih day of N ON. , 2008, upon consideration of the within Stipulation and Joint Motion for Agreed Order, it is DECREED and ORDERED that the total fair market value of the subject properties identified as Cumberland County tax parcel numbers 10-222-0531-020, and 10-22-0531-020.-LL001 shall be assessed as described in the Stipulation and Joint Motion for Agreed Order, summarized as follows: Common Valuation Year Applicable Fair Market Assessment Level Ratio Date Value 100% 8/24/05 9/1/05-12/31/05 $6 000 000 $6 000 000 , , , , 100% 8/24/05 2006 $6,500,000 $6,500,000 I 100% 8/24/06 2007 $6,500,000 $6,500,000 82.0% 8/24/07 2008 $6,500,000 $5,330,000 L 79.3% , 8/24/08 2009 $6,500,000 $5,154,500 #10150538 vi ?31_'L, •s lft ti ---a JA " r''tf u ?l • vV 81 SOH gooz The Cumberland County predetermined ratio is 100%. Pursuant to the applicable Common Level Ratios set for Cumberland County, the assessment equals 82% of the fair market value on the valuation date for tax year 2008 and the assessment equals 79.3% of the market value on the valuation date for tax year 2009. The said assessment shall continue thereafter until changed as provided by law. It is further ORDERED that the Cumberland County Assessment Office shall allocate the total assessment between the land and improvements, as provided by law and the procedures of the Cumberland County Assessment Office. The Cumberland County Assessment Office shall allocate the total assessment between the two parcels as follows: Cumberland County Tax Parcel Number 10-222-0531-020: Common Level Ratio Valuation Date Year Applicable Fair Market Value Assessment 100% 8/24/05 9/1/05-12/31/05 $5,350,000 $5,350,000 100% 8/24/05 2006 $5,350,000 $5,350,000 100% 8/24/06 2007 $5,350,000 $5,350,000 82.0% 8/24/07 2008 $5,350,000 $4,387,000 79.3% 8/24/08 2009 $5,350,000 $4,242,550 Cumberland County Tax Parcel Number 10-22-0531-020.-LL001: Common Level Ratio Valuation Date Year Applicable Fair Market Value Assessment 100% 8/24/05 9/1/05-12/31/05 $650,000 $650,000 100% 8/24/05 2006 $1,150,000 $1,150,000 100% 8/24/06 2007 $1,150,000 $1,150,000 82.0% 8/24/07 2008 $1,150,000 $943,000 79.3% 8/24/08 2009 $1,150,000 $911,950 It is further ORDERED that Cumberland County, Hampden Township, and Cumberland Valley School District shall make all refunds for all tax years payable to "Pepper Hamilton LLP" and shall forward those refunds to the following address: Pepper Hamilton LLP c/o Dusty Elias Kirk 500 Grant Street, 50th Floor Pittsburgh, PA 15219 # 10150538 v i Pepper Hamilton LLP shall be responsible for forwarding the refunds on to the appropriate property owners for distribution. BY THE COURT By: M.L. Ebert, Jr., J. #10150538 vl