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HomeMy WebLinkAbout06-5361IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. NO. b(? - nQ l.. l C t C. ?? fZ Appellants, vs. PETITION FOR APPEAL CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. Vs. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. 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 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 PT. 4273710 v1 (5V7201'.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. OLP S.3`j &>11-C A?'`'1, 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: 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. 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. 11. The County originally assessed the Shopping Center at $6,000,000 for 2006. PT: #273710 vl (5V7201!.DOC) -2- 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. -3- PT: #273710 vl (5V7201!.D0Q 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 Fxhihit F 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. 10-22-0531-020.-LL001. -4- PT. 4273710 vi (5V7201!.D0Q 11 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. 9273710 v1 (5V7201!.DOC) 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.-I.L001; 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, b ?Vk t? Dusty Eli 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: September la , 2006 -6- PT: 4273710 v1 (5V7201!.DOC) 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. Busher Chef Assessor R Fred Hokffinger, STEPHEN D. TIIFY Sarah Hughes Assistant SoNdtor SANNDREL OF PENNSYLVANIA INC C10 KIMCO DEVELOPMENT CORP 3333 NEW HYDE PARK ROAD 0100 PO BOX 5020 NEW HYDE PARK NY 11042 CHANGE OF ASSESSMENT NOTICE TH-IS IS NOT A TAX BILL NLU NG D,Tii' eept»s"r' 8, 2oc5 Partial Identifier: 10-22-0531-020. Districts 10 - N711D?M TOWN88IP School.., COMBULAND VALLZr 8D Now Assessed value indicated below will take affect for 3006 Countr/Library/Nnniaipal Inns-Innq n,ht l Locations 3431 SIMMON TZRAT R= LOT 2 Ps 35 PG 98 TAZAWA UNIT/LOT ID..: L-0002 Land Sise....s 11.67 acres Property Types C Cossaercial - General RkASON YoR CSANO$: . . ADDITION TO'•COWRCIAL/INDSTRL DWO' Interior Assessed Values '700,000'- 2005 Cnty/Tvp/soro...... 4 swags 2005 School .............10 months i.'f7 fie •4i /#F r•. ',:.'.. ?,.?? r..,.J Y• -'rte'{r ? x. tit ittte, you ciily Iitfir tt?a x pl= "^`.:z 'II#ft.:in viiritin: v)t ` id tfa.i?ws+x: r(s) in q'. Z x +:W:W .y -. ? ri' ;mod loatiarj:afi d7a•. be .,' f' `=i ?•. m f! s ragay . tae t.. )is -Ul e': fed t e rtd- 06*19 e Ofd CGurtht3u tti6 Courttx? s: Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing c a t. 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 Old New Total Assessed Value Assessed Value Change of Assessment Land 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 Buldings APPLICASLR APPLICASL$ APPLICASL$ TOTAL y . .,; s".dilues'bec0r?er.. • .;' ? .., ... ,. ya. 1?.•}?''r•r .. r 't:be re,meiv.9tl.:?` , °F;?:tfr? y!!.?$'?3l! . ', , A r r "t \ ? 0 1 3 T O CL. O' 0 0 ? r t9 ¦ .0 f? 7 I 1 1 0 °o a -rctrm?r'an. t TOO" a n iD N rr+ G/] roll 1 1 { i 1 1 1 i 1 I t 1 ?I 1 ? ? 1 I ' - EXHIBIT 'v N N CUMBERLAND COUNTY ASSESSMENT APPEAL - C1111iIERCIAL / INDUSTRIAL Undo to poWdom of law any parson' aypriared by ary aaeesartent desiring lo appeal shall tale a stalamwd, In wnitbtg, wilh to Board d Asseemm t Appeals on or bek n September 1st. Such statmwit shall deeignab the aasessntent appeded lrortt and the addrema IS which lira Board shall mail notice dwttan arm) w1we to appear for a hearing. No appeal shall be heard by the board urden appellant shall *d •s ftNd the appeal and required docra rw to on or before September 1 s% as ad forth by law. . (h hrdudes t" V dhtrids necord Owner(a) Na" Sanndrel of Pennsylvania Inc. c/o Kimeo Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk Esquire Penner Hamilton L LP 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site LoCalion of Property Subject of Appeal: 3431 Simpson Ferry Road Hamnden Township Number Stmt Bor&b ndgp Assessors Tax Map Identification si: 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 State reasons for filing this appeal: The fair market value upon which h gseneement is haled iR in excess of the pMPcj v',q value. The assessment is not uniform with assessments of other property in the County. Propwty7ype: Check and Complete Proper Classification: X Commercial: Use Retail Gross Square B„ 121,672 Square FL Rentable Area 121,672 No Owner Occupied Tennant Occupied Yes 0 Leased: Annual Rent To be provided Date Constructed 1972 Office: Gross Square Ft. Square Ft. Rentable Area Owner Occupied Tennant Occupied If Leased: Annual Rent Date Constructed Industrial: Total Square Ft. Square Ft. Rentable Area Square FL Plant Area Owrwr Occupied Tenant Occupied S Leased: Annual Rent Lease Type: Net Gross Com bination Date Constructed Olher. Use Gre" Square Ft. Owner Occupied Tonant Occupied It Leased: Annual Rent Date Constructed 4 'ATTACH LAST s YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME! A EXPENSE FORM" Certificate of Appeal da Vm tweby declare my four irdendon lo appeal from the assessed miuation of the property r the stabnwNs made in this appeal an true and correct. I trndsrstand that tales statements herein ari d f±a C.S. Section to 7 faleilbation to authorbieL Signed: Date: Octobet.'--I0, 2R(W 9 9M5 i k PAUA 6- OW EY Phone d: (Home) t o (DayllOllice) 412 -Sono notices of these proceedings shall be mailed to: Dusty Elias Kirk, Esquire office use Only Name; Fee Address: Pepper Hamilton LLP 50th Floor, One eon enter, 500 rant Street, Pitts bur A EXHIBIT 11 C 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 Lloyd W. Bucher R. Fred Hefelfinger Sarah Hughes BONNIE M. MAHONEY Chief Assessor 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 [ J 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. EEXHIBIT jar-, 02 2 006 10: 44AM HP i ERJ?ET 3200 p.2 Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 240.6350 Carlisle, PA 17013 (717) 240-6354 (fax) 8oand of Assessment Appeals SOMME M.1AAHONEY Lloyd W. Sucher ChWAsessear R. Fred Hefelflnger. STEPHEN D. TREY Sarah Hughes AsalsbM Soncunr CINEMA SUPPLY, INC 502 SOUTH MARKET STREET MILLERSVILLE PA 17061 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL MAILZMG DATE+ march 2, 2006 parcel Identifiers 10-22-0531-020.-LL001 Di strict s 10 - HAMPDnQ TOWEXXV Sebool..i CUMBERLAND VALLST 8D New Assessed Value indicated below will take effect for 2007 County/Library/Mvaicipal 2006-2007 enAml Locations i 3431 simpam rERRY ROAD LAND LEASE FS 89 PG 20 TAZASLE Land Size .... a .00 acres Property Type. C Cos rcial - General REASON FOR CR"GZ s NZW PARCEL Old Now Total Assessed Value Assessed Value Change of Assessment Land 0 O 0 Buldings 0 3,000,000 3,000,000 TOTAL 0 3,000,000 3,000,000 Chan and Green Values Land NOT NOT NOT sun" APPLICABLE APPLICABLE APPLICABLE TOTAL " - .. r'. : fq a -s .- ? ,. r.....;s. t!?' ?•?. ? ? p pp ? = • ' ' sTt..--rte: ??t3'?s ''^'• .i??'.L3' . ?•i••Y??1'.dF?.+ N..,•Y•.:: :.?.:... interim Assessed Valuie 31000.000 2006 Cnty/Tup/eoro...... 12 months 2005 school .............10 months QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7266, or (717) 697-0371. Calls will be taken from a_00 a.m. to 4:00 p.m. EXHIBIT E Received Time Mar. 2, 10: 1 .1 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 C Under the provlsons of law any person' aggrieved by any assessment desiring to apped slid tie a statement. In wri ft w1h the Board of Assesernent Appeals on or before September 1st. Such etatemerd shall designate the assessment appealed from and the address to which the Board shall mail notice of when and where to appear for a towing. No appeal shall be heard by the board urdeas appellant shall AM -a God the appeal and required documents on or before September 1st, as ad forth by law. (') includes WAV districts record Owner(s) Name Cinema Supply, Inc. 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 Hampden Township Number sbw 80r0/iphYlghip Assessors Tax Map identification 1f: 10-22-0531-020-LL001 Assessment Appealed $3,000,000 Opinion of Market Value d this Property To be provided Date Purchased N/A Purchase Price N/A Amount of Frye 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 pro perty is subject 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 Classification: X Comrrlerdal: use Cinema Gross Square Ft. 51,425 Square Ft Rentable Area 51,425 Owner Occupied No Office: Industrial: Other. Phone fi: (Horne) 412 454-5000 (Day/Office) 412 454-5000 IQL MAR : i 6 Gross Square R. Owner Oooupled Tenant Ooaupiod If Leased: Annual Rent Date Constructed 'ATTACH LAST 3 YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME & EXPENSE FORM" Certificate of Appeal t/We hereby declare my/our intention to appeal from the assessed valuation of the property deseribed above and do hereby vw y that the statements made in this appeal are true and correct. 1 undersand that false statements herein are made subject to the pwapiea of 18 Pa. C.S. Section 4904 relating to unswoom fakilication to Signed: ?? - :P, Date: Owner(s) of Record ; nolices of these proceedings shall be mailed to: Office Use On Fea_ 11 Leased: Annual Rent $183,000 Date Constructed 2005 Gross Square Ft. Square Ft. Rentable Area Owner Occupied N Leased: Anwar Pont Total Square Ft. Square Ft Plant Area Tenant Occupied Lease Type: Net use Tennant Occupied Yes Tennant Occupied Date Constructed Square Ft Rentable Area CXW*r Occupied N Leased: Annual Rent Gross Combination Date Constructed Nafr18; Dusty Elias Kirk, Esquire Address: EXHIBIT RE CE Ft" E r- APR 0 5 2006 ¦ , Cumberland County Boa rd of Assessment Appeals T I, Old Courthouse 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 Hefelfinger Sarah Hughes STEPHEN D. TILEY Assistant Solkitor 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 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: 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 [ ] Other: TOTAL VALUE FAIR MARKET CLEAN AND GREEN CLEAN AND GREEN STATUS Old Assessed Value: 3,000,000 NOT New Assessed Value: 3,000,000 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 Prothonotarv's office on orb -fore September 13, 2006. EXHIBIT 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 4,44 day of September, 2006. 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. Executed this day of September, 2006. h CL, ° MOMS SEP I I ANION! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 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. ORDER OF COURT AND NOW, this day of CIVIL DIVISION NO. 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 01.4 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 4? Vz 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. 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- f 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, f'?' 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 A7, 2006 Attorneys for Appellants, Sanndrel of Pennsylvania, Inc. (Kimco Realty Corporation) and Cinema Supply, Inc. -5- r i R C'71 V ED MAR 15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), NO. O L - )2/13 'C Appellant, VS. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. PETITION FOR APPEAL -1 Filed on behalf of Appellant, Sanndrel of Pennsylvania (Kimco Realty Corporation) 7 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!.D0Q EXHIBR A 0 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. XIMCO REALTY CORPORATION), 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, 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 sea., 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 vl (5#V401 !.D0Q 0 0 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 vl (5av401!.D0,Q 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!.D0Q a, 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, V 'rk Dusty Elias Dated: March 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) 4545000 -5- PT: #252544 vl (5#V401 !.D0Q r • i CUMBERLAND COUNTY pssessMENrnrPEat. - COMMERCIAL I INDUSTRIAL Under the prwisione d law any pKW &97Wied by any assessment decking loappeal shallfie a sUbment, h wrNirg, w1h lute board of ale Appeals an or before September 1st Such statenwd shat dedgnefe the aseem na t appealed from and we address b which Board ehd mail no** of when and when to appear for a towing. No appeal able be Maud by the board wiess appellant Mal -a filed the appeal and required documents on or before September let, as at torlh by tarty includes toot dlttrlbe Corporation) r,eoord Owner(s) Nettle Sanndrel of Pennsylvania Inc. c% Kimco Dev. Corp. T,.m= Realty Address c/o Dusty Elias Kirk. Esouire Pepper Hamilton, i i.P -- 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subs ct d Appeak 3431• Simpson Ferry Road Hampden Township Assessors Tax map Identification #: NrrnrOer Street ??? 10-22-0531-020 Au sssmerd Appealed 56,000,000 Opinion of Market Value of thin Property To be provided Date Purchased ' 12/31/72 Purchase Price Not available Amount of Fire Insurance Not reflective of market value State reasons for Ming this appeah, The fair market value anon which he -assessment jr, based is in e-rcumm of the- value. The assessment is not unifo.nm with assessments of other property in the County. V a. i. L.. ? property Type: Check and Complete Proper Classification: X -a-& r r? Retail V Gross Square FL 121,672 Owner Occupied No h Leased: Annual Rent To be provided Gross Square Ft. Owner Occupied It Leased: Annual Rent Total Square Ft. Square FL Plant Area Tenant Owupled Square FL Rentable Area 121,672 Tennant Occupied Yes Date Constructed 1972 Square Ft. Rentable Area Tennant Occupied Date Constructed Square FL Rentable Area Owner Occupied M Leased: Annual Rent Lease Type: Net Grm ,._ Cornbinatlon - Pate Constructed _ Other: Use Gross Square Ft.., Owner Occupied Tenant Occupied K Leased: Annual Rent Date Constructed -ATTACH LAST 3 YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE FOF r Cedificate of Appeal Lhwe hereby declare my/our Noortion to appeal horn the assessed valuation of the property described above and do hereby Verily that the statements made in this appeal are -and correct 1 understand that false statements herein are made subject to the pw6allln d 18 Pa. C.S. Sedion fakillcation to authonTes. Date: 9112- y Signed: Phone s: (Home) Owner(s) of Record (Day/ONice) notices of these proceedings shall be mailed to: Office Use On Name. Foo Address: Dusty Elias Kirk, Esquire EXHIBIT A P r Hamilton LLP 50th Floor, One Mellon Center, 00 rant Street, Pittsburgh, A 15219 Tobe -0? P?t1OR??? 1NC0 ? GROSS ?a...- s..._-- Wood US% of PAAA IFOW3 ?s?s io 0 ?avowed -tow k+jCO GROG 1q $ 0 p1R•C AO- 0 o s C3 V coo* Drop's po F.i ?..? C3 CAM*% 0 Of*" C) PANVO 0awr s 0 RO •: ?°'" O T,?° pOd v fW rp sOU0 c Moro" ° 0 ?, 00 O"r s a PAI*O s C) O*W TdT?„ EXPO oar re??' P for Sul oye 80"Paso - TWO Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 2404350 Carlisle, PA 17013 (717) 240-6354 (fax) Bosrd of Assessment Appeals BONNIE M. M4h%NY Y _ W. Bucher Chief Asseasar Pt Fred W- STEPHEN a TXEY affeftr F arah MOW O Asslsfant S S SANNDREL OF PENNSYLVANIA INC C/O 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 w? mm Dimi--9eptex"r' s, parcel Identities: 10-22-0531-020. District: 10 - Sh3EPDSSi ?OMNSIM school..: Ccv,.®ssLana VALUM sn New assessed value indicated below will take effect for 2006 County/Library/Na"cipal wow.. w-t..7 • Looation• 3411 SIMPSON ?SRS= ROAD LOT 2 Ps 35 90 98 TAXAM s =,,=/U* =D..e L-0002 Land Sise••••s 11.67 acres Property 'pet C coemercial - General t.? APp.:?/??c¦?r... ]i7yy?Pm15? M - t.. e? ?/©.L •[1'1' Jy: :,•';; fi :• _y??•r,lyVIthlt?8 r '?f+'? '• `*_ .? 4 t7 :T, l I` ire Wiritin_ vittai;jje: riiai*1'p • PURR' .. ?.1? ?:Ily es a, r ? ,h;' j> Qr ? its q i?ss ?.? ' . 4 r t # i s ; ,iN ?•? • .? 'jam. f. % F ..•.. .i:l•• .t '}}' ` •., ' ?$r?# riot?>d loaticlj q t)r'e?l-`. t?9. trlay b6 s PIP -r ••?, , • ?. 1% REP ML?* 'S•:1 'troFlS may be fAin?a'#?bs:e'is3ed tieliawt'a:.?. r*litti?td i3ti: Hiles a 'sip -.•,;.:, -.,r.; :Y::._.`11... .max. ?=z:: - ?r :3I: C3td .Courthou CoUrth:4u:s `.Iza IF ?ss°se'hiie, _,? 'qty. , ..: :_?• t::: is JaZMON FOR CRAM, = . AVb=l ?'o'C RCiAL'/ZNDSTRL 9I:DO` tnteria' aisesxid Value w '.700, 000' 9000 Caty/tvp/soro...... 4 months 2005 School .............20 months ---- -- - Old -- New Total Assessed Value Assessed Value Change of Assessment Land 890,630 118000890 910,260 Bupolnps 5,109, 370 41899,110 -210,260 TOTAL 6,000,000 6,700,000 700,000 Clean and Green Values Land NOT NOT NOT Buie APPLICABLE A?PLICARL3 "PLICABLa TOTAL gip ust be ietvAlved bi@ ;" n s ,. ..,...? I 1 r . fi j'Mti A. •' ?ti , h j 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 p.m. EXHIBIT - • • CUMBERLAND COUNTY ASSESSMENT APPEAL - CAERCIAL / INDUSTRIAL. • : Under the provisions d low any pWW aggrieved by any asumnent delft to appeal Md 50 a staun>ent, In wetting, w1h ft Raid of Ameart,snt AW@Wa on or bebre SW nttber tsL such etatsmwtt sew desigte the ssseesntent appeared Ir m and the address b whim Board shall mail nubs d when and where to appear fa a hearing, No appeal shall be heard by the hoard unl.ss appellant ehafll twat W,sste Oed the appeal and required documents on or bebre September 1st, as set Wh by.ber. k clods tatdrtp dWrk is tr ecord Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimco Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk Esquire Peg= Hamilton LLP 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appear; 3431 Simpson Ferry Road Number Sbig. Rol sap Assessors Tax Map Identification fr 10-22-0531-020 Assessrrwnt Appealed 56,700,000 Opinion of Market Value of this property To be provided Data Purchased iwim Purchase Price Not available Amount of Fire insurance Not reflective of market value State reasons for filing this appeal: The fair market value nnnn which he ace .cement is heed is in eYeece of the ;mpgq? value. The assessment is not uniform with assessments of other property in the County. Property Type: Check and Complete Proper Classification: - Commetdtl: Use Retail Office: Industrial: Other. Gross Square FL. 1219672 Owner Occupied No 0 Leased: Annual Rent To be Provided Gross Square Ft. Owner Ooctood If Leased: Annual Rent Total Square Ft. Square FL Plant Area Square Ft. Rentable Area 121,672 Tennant Occupied Yes Date Constructed 1972 Square FL Rentable Ana Tennant Occupied Date Constructed Square FL Rentable Area Owner Occupied Tens" Occupied V Leased: Annual Rent Lease Type: Net Gross Combination Oats Constructed Use Gross Square FL Owner Occupied Tenant Occupied If Leased: Annual Rent Date Constructed `ATTACH LAST a YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME i EXPENSE FORM- C"Ilcate of Appeal Uwe hereby declare my/ow interdion b appeal from the assessed valuation of the property deaeribsd atavvr'.artd &.hem1* W-Ihffths statements made in this appeal are true and coffees. I understand that false statements herein are'e d6:•"s'iOeo to tlis_pertisllies d t Pa C.S. Section 4 , Wt0 to falsification to authorities. Signed: 7M Date: 0c tob er r b , 21 ? 905 VA11 6 LEY Phone ff: (Ham) (DayA) ice) 412-4V4-:Soon notices of these proceedings shall be mailed to: -+ Office Use Only Marne., Dusty Elias Kirk, Esquire Address: Pepper Hamilton LLP 50th Floor, One Mellon Center, 500 rant Street, Pittsburgh, A 152 19 Ad N% EXHIBIT ? j' Tubevvilm Amok FOR3 pR10RY RS ' pRNVp1.1NCO?F.S GROSS ??..._ s_..--- s. vow mowed dWvoolw PAO Tam ,ROSS 19. s 0 Ay- Cond. 19 fl ,sy C3 - CAtw G ?'T . s Wes` .00 sow" (3 con* Larowo oo.w s C3 PAlvP s E QOWh t C3 Gs*o" -t,sh ' o PQd C3 W.Fad" a+ C3 Low 8, o vc G,-"P o 'SWOU6 ?,,...- .oa s dam o"r Q PO C4. ES i e to the protwxq• t7 ?? ?pEJ? ??? stir t1 psi for ?Y °thtr Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fax) Bowd of AssessmWO Appesfs BONNIE M. MAHONEY Lloyd W. Budw ChhfAssessor R. Fred Hetelfinger STEPHEN D. TILEY Sarah Fluphss AsslsbW SoNeNw 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. EXHIBIT :I • Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 240-6350 Carlisle, PA 17013 (717) 240-6354 (fox) Board of Assessment Appeals BONNIE M. MAHONEY Uoyd W. Sucher Chief Assessor TXEY STEPHEN D R. Fred Hefefflnger. Sarah Hughes . Assistant Soft star CINEMA SUPPLY, INC 502 SOUTH MARKET STREET MILLERSVILLE PA 17061 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL teAILING DATE+ March 2, 2006 Parcel Identifiers 10-12-0531-020 . -LLOOI pi strict o 10 - MWDW TOWN88IP School.. I CUMBIcRLAND VALS.sX SD Now Assessed Value indicated below will take effect for 1007 Count?/Library/Kunicipal Locations $431 SIMPSON FERRY ROAD Lh= ta"Z PH 89 PO 20 TKZABL8 Land Size....: .00 acres Property Types C Commercial - General RBABON FOR CHMGE t NSIP PARCRL Old New . Total Assessed Value Assessed Value Change of A+ssesament Land 0 0 0 &,lchngs 0 3,000,000 3,000,000 TOTAL 0 3,000,000 3,000,000 Clean and Green Values Land NOT NOT NOT BuhckW APPLICABLE APPLICA33LX APPLICABLE TOTAL ,_ - ; ' ..._... .. .. •T-'[ .._.. :.., t%IIYj j.S.?S .? .. ?q 1 ? ? y . . 5 S I . `•Y • , ? •._:. •...._ ? Z 1.»lr+?Yt ? mo. - - .... w.? 3 ` *.. ?j?{ y? y ? ? s w ?p??? .??? 71vs. rruf?.' y ,?• -..... oi% •II.-i6L i?.r" I ?4:-?: fir'.. .. .r...? ?.... .t.:..: ^:• ? '"` 1:w 4 .4: }Jii+nj!"rL'.ii: :J;.` interim Assessed Values 3.000,000 2006 Cnty/TMp/Boro...... 12 months 2005 School ............. 10 months `??, d r K3, A' 'f=A , ; -:: ; Oki Vnj 00 .?. ;s. `. YE..1:`^•.!2u_iV^'.-i'LL3i.s^_. .:Gr. 1'.. + _ Y• •{?.;• 4_1 0,111.104 ` =FQ 4 40 tot =r_.:. 't; _ 'r•.: :7 . _...a„•.:a . ..:.,. - - 'e=j;.•r:`r,?A:= ' *•'?s.:•_:?'t ••r, '•? i ' M - t d: nr?fi?c«. I. cr ?L1.1^??i?? _?!..... #i vi=a caret Us* v n,le an> re ta101 r s t unto et 6.4r?±?e`';sfe l dill Old essrrlenfii ?.td Cio?urtouse first r; One`s©tearle;'PA .: 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. QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7266, or (717) 697-0371. Calls will be taken from 8:00 a.m. to 4:00 p.m. EXHIBIT • 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 unsworn falsification to authorities. Executed this /Dday of March, 2006. 0 0 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 r?'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 ?5wn, 4.G? K? 0 0 C"? - O -n rn - r' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. CIVIL DIVISION (KIMCO REALTY CORPORATION), and CINEMA SUPPLY, INC. NO. Appellants, vs. CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS, Appellee. VS. CUMBERLAND COUNTY, HAMPDEN TOWNSHIP and CUMBERLAND VALLEY SCHOOL DISTRICT, Interested Parties. 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 50th Floor, One Mellon Center 500 Grant Street Pittsburgh, PA 15219-2502 (412) 454-5000 PT: 9273710 % 1 (5v7201' DOC) E EXHIBIT B 0 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SANNDREL OF PENNSYLVANIA, INC. ) CIVIL DIVISION (KIMCO REALTY CORPORATION), and ) CINEMA SUPPLY, INC. ) 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 se__c .., 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. 11. The County originally assessed the Shopping Center at $6,000.000 for 2006. -2- PT: 273710 v1 (5V7201!.DOQ • • 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. -3- PT: 9273710 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. 10-22-0531-020.-LL001. -4- PT: 9273710 v1 (5V7201'.DOC) • • 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: 9273710 0 (5V7201!.DOC) 0 0 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, j, Kvit Dusty Eli ' 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: September 19 , 2006 -6- PT 9273710 vl (5V77011 DOC) 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 Lloyd W Bucher ChiefAsseaw a Fred Hel reUx W. STEPHEN D. TILEY Sarah Hughes Assbunt Soadw SANNDREL OF PENNSYLVANIA INC C/O 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 mKILXM DWM3`-8entex"r-a, -2005_'• Parcel Identifier: 10-22-0531-020. Districts 10 - RAMPOW TaMOM School.. s C1A093;R AND VZLLE? 8D Hew Assessed Value indicated below will take effect for 2006 County/Library/municipal enne_ennl awhww7 Locations 3431 SIMBON FsRRT ROAD LOT 2 PH 35 PG 98 TAZAWA UNXT/LOT ID..s L-0002 Land also....s 11.67 acres Property Types C C=Mercial - General REASON FOR CHAIM s ADDITION V0-' C0W=CIAL/INDSTRL SIMG ` Interim' Ass"sa* d Values '700,000' - 7005 Caty/Tarp/Horn...... 4 months 7005 8chool............. 10 menthe APP: ..:. p.prais d :' a?,a y_ 0jj 'CITE-yl lte•; ;: 1• T'y - '':YY•?t,' ???.: }.1 n i 0_._?'_'?' [?n itl''?..`=e•itiia..i T T#e?'>eio_t__#r3 a IP K . • R,., .i7. . r ?.k } ^.••j_.d:.e t . ? ', cV?.Irv ?.. ::t•i,•;`J? gall. des ber) iri q - 0=' ttif :tit,ri, appiq film. rio :'.. :anti IoEatioljaL:}.Q??, hg may b s`ir)1°#oas atn?#i17. {? r, .r•::.+' Sf. "c: s'''tile' - •: r ,•. j e ]?itltaFlS ma be fatnf?l:s:s lisfed tieliavir _:,. ,t3ird:Q _- riffs g y - - = - ? ??• - -1 ' .... ``<-:1' , t ' :?7".' '+?' « _. ...yam-: ;: •ra;; r• {3Fd .Courthau tl<- `o?ra :Cat Courth4i= P:3:?` ?- rt.. 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. MON EXHIBIT a s A ---- ---- -------- Old New 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 TOTAL 6,000,000 6,700,000 700,000 Clean and Green Values Land NOT NOT HM BulldMps APPLICABLE APPLICABLE APPLICABLZ TOTAL AW ' iJes teosrnN aefiEe .: •_r''.? :.; a. _J.. .Pt { .,?tybyhe?Ce(,b??eyiv.'ejt:',bj'ks` r-IM - . ??N1f ????JQtRi?ejJ`? yp• . " ' 7` ° J) {?M • y+Y r ;? - jti . a / `: ? : ?i? ;t` • •; = 7;: 4.• y:??i ?C` r. :{ f.t l : •(a ?5' " : 4 .` . Si . . sip 0 -n z ,2 I _ _ m' ? man 11 ?o 4 0 0 0 Q Q C/1 1 r ? v ' I ; I I wa? _ . + 1 ? ? i XVilalT Wr n ?a 0 N C`` a r ? B ? f A = CUMBERLAND COUNTY ASSESSMENT APPEAL. ERCIAL/INDUSTRLAL Under go provWww 01 tow airy pw*W &W *M by arry assesurmtt desiring to appeal shall file . statsrrtett, In wrtling, wilh the sand a Assesanwtt Appals on or bNom Septwriber 1st. Such dateawd OW designate the aseessrnw appealed horn and the address b which the Board shd mall notice d when and where to appear for a hearing. No appeal chap be hard by the board urtlae q*dknt dW drat -w Ned the appeal and required doctrmwtts on or bsbm September 1161, 80 ad forth by kw- • (h kokades tatting deltfi e tiro Owner(s) Name Sanndrel of Pennsylvania Inc. c/o Kimeo Dev. Corp. (Kimco Realty Corporation) Address c/o Dusty Elias Kirk. Esquire Pepper Hamilton, LL P 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Number sum BordTowrnhip Assessors Tax Map Identiflcation is 10-22-0531-020 Assessment Appealed $6,700,000 Opinion of Market Value of this Property To be provided Date Purchased 12/31172 Purchase Prins Not available Aunt of Fue insurance Not reflective of market value State re&Wft for filing this appeal: The fair market value upon which the assessment is h sed is in exc c of by pm ?a_ value. The assessment is not uniform with assessments of other property in the County. Property Type: Cheek and Complete Proper Clmfficatlon: X Commenclal: Use Retail Gross Square FL. 121,672 Square FL Rentable Area 121,672 Owner Occupied No If Leased: Annual Rent To be provided Office: Gross Squam Ft. Owner Occupied It Leased: Annual Rent - Industrial: Total Square Ft. Square FL Plant Area Term" Occupied Tennant Occupied Yes Date Constructed 1972 Square FL Rentable Area Tennant Occupied Date Constructed Square FL Rentable Area Oti mr Oocupled If Leased: Annual Rent Lease Type: W Gross Combination Date Constructed Other: Use Gross Square Ft. ` Owner Occupied Tarrant Occupied 0 Leased: Annual Rent Date Constructed "ATTACH LAST 3 YEARS INCOME & EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME & EXPENSE FORM' CarUBcati of Appeal _ Vwe hereby dwbre my/our intention a appeal bom the assessed valuation of to property d"a"d abov.autd 46 " r-- staWawnts made in this appeal an true and cared, I understand that false statements herein and"midi ?._:ubjscateilhfepersMiesof isi?a C.S. Section 4 tkg to falsification to authorities. Signed: Date: _ October-1b, 21RQ& ' moo -- 9 I A rk-XV E Y Phone ff: (karne) (Day/Ofrice) 412=454-5nnn notices of these proceedings shelf be mailed to: Offios Use Only Marne; Dusty Elias Kirk, Esquire Ff Address: Pepper Hamilton LLP 50th Moor, One Mellon Center, 00 rant Street, Pittsburgh, A 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'of Assessment Appeals BONNIE M. MAHONEY Chief Assessor Lloyd W. Bucher 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: [ J 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. EXHIBIT D ` Mar 02 2 006 10: 44AM HP ER JET 3200 t. oo N, Cumberland County Assessment Office Old Courthouse, First Floor One Courthouse Square (717) 2406350 Carlisle, PA 17013 (717) 240-6354 (fax) 9oard of Assessment Appeals BONNIE M. MAHONEY Chief Assessor uoyd.w Bucher it Fred Fish Anger. STEPHEN D. TKEY Sarah Hughes Assistant SoAcltor F.2 CINEMA SUPPLY, INC 302 SOUTH MARKET STREET MILLERSVILLE PA 17051 CHANGE OF ASSESSMENT NOTICE - THIS IS NOT A TAX BILL NAILINa DA2E1 March 2. 2006 Parcel Identifiers 10-22-0531-020 . -LL001 District) 10 - gAKPDZK TONN81MP scbcol.. g CUMZRLA= VALUM ED now Assessed Value indicated below will take effect for 2007 County./Library/Kunicipal nnne_,jnnv a..w....i Locations: 3431 slKPaon rzsmY P=w LAND UWE Ps 89 PO 20 TAXABLE Land 91se....+ .00 acres Property 2WOS C Counercial - General RLASON FOR CEANGS: NZN PARCEL Old _ New Total Assessed Value Assessed Value Change of Assesament Lem 0 0 0 Buldings 0 3,000,000 3,000,000 TOTAL 0 3,000,000 3,000,000 Chan and Green Values Land NOT NOT NM Buildings APPLICABLE APPLICAELE APPLICAEL8 TOTAL "y pin ' ; CS: .y_e, .. '-' rTe a?sr.fsY . r?r.r ?: ???'' ' .• ,? ig. :te???^:?!e•94py ? w•f• . - r . { = . 4: ; .:r,l.' .i?+?t•?t'sria'l'?f!?nr? •i'. .!•? Interim Assessed Valsu*a 3.000.000' 1006 Cnty/TNy/Boro...... 12 =Mtha 1005 School .............10 months WME .3 s.. ?.• :: r_.'`.§:?.: •-i..: •. :4.r.,.. ...-r.y _ _ ?a.::-? ::ri.i7Y C ?..? ?? .• ••.• t • .:. i?}?.'?•sjja?'?-•% > .. .tea °.r.;,`', -? ;f.:U={aifl?;ll; , _:'C • . _ - 1? : r:tc 3`•.k•?::- - ?'y, w+ry?..a•L•sx. ?••' •. _s,..•_ 'r. `' :?:. •• - .::t:... r a. T:i'=}?r^..?:•:. iis;.,t};sw.= .r- {..-?i.j,`l:';??• Cwt).. ,. `'re> € I.: >i°5" ? l3 EiF1`1 r:$=. :, Sao, . Ift I MT .'A I ?!'1> - f1E l t _1 $T{ ' 1?S1 ?. ITa'S f ' "09 . . IN, 10 u16:r?s'?t? •#???fir? ??? A -9 ?s?ie lisiletl;??`T`". ??.4???I ??#?i?ti? - Internet Access/Review: If you would like to review this property's assessment records, you may do so at no cost by accessing cc_,aa_•_net- QUESTIONS? Property owners may call an assessor at (717) 240-6350, or (717) 532-7266, or (717) 697-03T1. Calls will be taken from ' 0 a.m. to 44:0000 .m. EXHIBIT iR V N E ReCeIved Time Mar, 2, I?: r CUMBERLAND COUNTY ASSESSMENT APPEAL-CO MERCIALIINDUSTRIAL Under the p u4sions of law any person' aggrieved by any assessnnerd desiring to appeal shat Be a st Unot, In writing, wih to Board of Assessment Appeals on or before September 1st Such statement shall designate the assessment appealed Uom and the address b which the Board shall mall notice of when and where to appear for a hearing. No appeal shalt be heard by the board unless appellant aw first -R Ned the appeal and required documents on or before September 1s% as set forth by law. C1 Includes taxin8 duets neeord Owner(s) Name Cinema Supply, Inc. Address c/o Dusty Elias Kirk, Esquire , Pepper Hamilton, LLP 50th Floor, One Mellon Center, 500 Grant Street, Pittsburgh, PA 15219 -tC Site Location of Property Subject of Appeal: 3431 Simpson Ferry Road Hampden Township Nunber StreN 8ordiom trip Assessor; Tax Map Identification 10-22-0531-020-LLOO i Assessment Appealed $3,000,000 Opinion of MarW Value of this Property To be provided Date Purchased NSA 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 subject 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 Classification: X Commercial: Use Cinema Gross Square FL. 51,425 Square FL Rentable Area 51,425 Owner Occupied No Tennant Oocup'ted Yes 0 Leased: Annual Rent ---S 183,000 - Date- Constructed 2005 Office: Industrial: Other: Gross Square Ft. Square Ft. Rentable Area Owner Occupied Tennant Occupied If Leased: Annual Rent Date Constructed Total Square Ft. Square Ft Rentable Area Square Ft Plant Area Tenant Occupied Lease Type: Net Owner Occupied N Leased: Annual Rent Gross Combination Date Constructed Use Gross Square Ft. Owner Occupied Tenant Oocupiod If Leased: A-w ual Rent Date Constructed 'ATTACH LAST a YEARS INCOME i EXPENSE STATEMENTS OR COMPLETE THE ATTACHED INCOME aE EXPENSE FORM" Certificate of Appeal Vwe hereby declare my/our intention to appeal from the assessed valuation of the property described above and do hereby verify that the statements made in this appeal are true and coral I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4804 relating to urrawom fakNicason to ' 'es. Signed: 4eWr Date: .?"?2- 4 Phone #: fHome 412 454-5000 LF Owner(s) of Record (Day/O m) 412 454-5000 notices of these proceedings shall be mailed to: rIAK 6 Name: Dusty Elias Kirk, Esquire Office Use On F00 Address: Pepper H 50th Floo EXHIBIT t Street, Pittsburgh, A 15219 ,4 1" r v t 17 -_-. APR 0 5 200.6 Cumberland County Board of Assessment Appeals Old Courthouse One Courthouse Square Carlisle, PA 17013 ?iy-??.ag pr (717) 240-6350 (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 -P-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 [ ] Abandoned For Failure To Appear [x] Denied - No Change [ ] Approved Review Appraiser's Changes [ ] Revised Assessment Based on Hearing [ ] 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 R G 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 04 day of September, 2006. (11"" Z' V V 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 unworn falsification to authorities. L4 ? Executed this day of September, 2006. GL. • • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 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. 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 /o*-'"-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 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 a7 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 ?' ?' s . ? . _-t t . _? -? ,,??; ?`? _--4 :'G. ?- ? -- OCT 0 3 2006YA 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 2006-536 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 o , 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: S ? , J. 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. 2006-5361 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, 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 in the above captioned matter, 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. 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 Sanndrel ofPennsylvania, Inc. Page I of6 (Kimco Realty Corporation) - Answer 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. 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. Sanndrel of Pennsylvania, Inc. Page 2 of6 (Kimco Realty Corporation) - Answer 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. 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 Sanndrel of Pennsylvania, Inc. Page 3 of 6 (Kimco Realty Corporation) - Answer 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. 20. Admitted. 21. Admitted. Sanndrel of Pennsylvania, Inc. Page 4 of 6 (Kimco Realty Corporation) - Answer 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 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. Sanndrel of Pennsylvania, Inc. Page 5 of 6 (Kimco Realty Corporation) - Answer 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: 4a;-lAae-4, - ® 6 i Respectfully submitted, Stephen D. Tilley, 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: , Bonnie M. Mahoney, Chief Assessor Sanndrel of Pennsylvania, Inc. Page 6 of 6 (Kimco Realty Corporation) - Answer Y^-3 C_.7 1 C? :'T ? R ?' J: ? -T v _- ??. ? ?? ? ?' =.? ? - : ? .-? ? 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 ?-? ("..]