HomeMy WebLinkAbout95-06692
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Inherent power of this court. AODeal of the Borouah of Churchill, 525 Pa. 80, 525 A.2 550 (1990).
Were the Rules applicable, RC.P, 2330(a) provides: After the entity of an order allowing
intervention, the intervenor shall have all the rights and liabilities of a party to the action."
3. As an appeal is heard de novo by the court and any "party" may assert a value,
Intervenors by Intervention have obtained the right to assert the inadequacy of the value set by the
Board of Assessment which right would be denied by granting the Petition to Discontinue.
4. Two cases involving intervention and the intervencrs being allowed to continue are
most instructive. Aooeal of Gatewav School District, 556 A.2d 924, 926 Ipa Cmwlth 1989] Aooeal
of Municloalitv of Penn Hills, 546 A.2d 50 (pa 1988). While involving local rules, the logic and
decisions are guidance for this court's discretion. In both cases the intervenors were permitted
to continue as if the original appellants.
5. As late as March 25, 1996, College Park counsel advised that she had no authority
to withdraw the appeal. This was in Answer to a query by counsel for the Board of Assessment
Appeals.
6. The Court order of November 30, 1995 set May 2, 1996 as the date for hearing on
the appeal.
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7. On AprilS, 1996 Intervenor employed an evaluation expert with extensive knowledge
of H.U.D. supported projects such as College Park, which appraisal was completed prior to May
2, 1996, and demonstrates the substantial inadequacy of the value set by the Board of Appeals.
8. At the request of Petitioners, not opposed by either counsel for the county or that
of Intervenors, a continuance was granted by court order dated April 30, 1996.
9. By court order of May 9, 1996 another date was set for the hearing, July 10, 1996.
10. On the 9th day of July, counsel for Intervenors and counsel for the county met with
the evaluation expert who had arrived from Philadelphia, to review anticipated testimony in
preparation for trial. At the end of 3 hours, between 4:30 and 5:00 p.m., counsel for College Park
called to say he had obtained another continuance of the case which was scheduled to be heard
only 16 hours later.
11. Considerable expense and time was incurred with respect to counsel and the out.of.
town expert in preparation for trial, as aforesaid.
12. The new court order of July 10, 1996, setting August 21, 1996 as the date for the
continued hearing also required the parties to exchange appraisals, College Park to make the first
delivery no later than July 31, 1996.
13. Six days before it was required to comply with the court order to produce its
appraisal, College Park submitted its petition to discontinue.
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Assessment Appeals did file New Matter which set forth a prayer for relief asking "Your
Honorable Court to deny Petitioner's appeal and establish the fair market value of the
subject premises at $4,500,000, or such other higher figure as the Court may deem
proper, and for such other and further relief as Your Honorable Court may deem just
and proper,"
11. Denied. The averments of this paragraph of Petitioner's Petition to
Discontinue the tax appeal of College Park Associates Pursuant to Pennsylvania Rule
of Civil Procedure 229 are a prayer for relief to which no responsive pleading is
required. Respondent Cumberland County Board of Assessment Appeals requests
that Petitioner's request be denied,
WHEREFORE, the County of Cumberland and the Cumberland County Board
of Assessment Appeals respectfully requests Your Honorable Court to deny
Petitioner's request to discontinue this assessment appeal and asks Your Honorable
Court to establish the fair market value of the subject premises at such higher figure
than $4,500,000 as the Court may deem proper, and for such other and further relief
as Your Honorable Court may deem just and proper.
NEW MATTEB
12, The averments of paragraphs one through eleven of this Answer With New
Matter are incorporated herein by reference thereto.
13. The Pennsylvania Rules of Civil Procedure do not govern assessment
hearings in Cumberland County, Pennsylvania, as such appeals are statutory in
College Park Assessmenl Appeal
County Answer wilh New Maner
Page 3 of 7
nature and Cumberland Count Courts have not adopted the Rules of Civil Procedure
by local Rule, Whether a discontinuance is or should be granted or denied is
governed by the general inherent power of this Court to make a rule applicable to this
case, Appeal of the Borough of Churchill, 525 Pa, 80, 575 A.2d 550 (1990), Were the
Rules applicable, R.C,P. 2330(a) provides: "After the entry of an order allowing
Intervention, the intervenor shall have all the rights and liabilities of a party to the
action."
14. As the appeal Is heard de novo and as the Board of Assessment Appeals
filed a Reply with New Matter requesting the Court to enter an Order fixing the value of
the property at, possibly, in excess of the Board Hearing market value of $4,500,000,
the Board's right to have the Court set the value at such greater value would be
denied by granting the Petition to Discontinue. As an appeal is heard de novo by the
Court and any "party" may assert a value, Intervenors by intervention have obtained
the right to assert the inadequacy of the value set by the Board of Assessment which
right would be denied by granting the Petition to Discontinue.
15. Two cases involving intervention and the intervenors being allowed to
continue are most instructive. Appeal of Gateway School District, 556 A.2d 924, 926
[Pa Cmwlth 1989] and Appeal of Municipality of Penn Hills, 546 A.2d 50 (Pa 1988),
While involving local rules, the logic and decisions are guidance for this Court's
discretion, In both cases the intervenors were permitted to continue as if the original
appellants.
16. As late as March 25, 1996, College Park counsel advised that she had no
authority to withdraw the appeal. This was in Answer to a query by counsel for the
College Park Assessment Appeel
County An5wer with New Maller
Page 4 01 7
Board of Assessment Appeals.
17. The Court Order of November 30, 1995 set May 2, 1996 as the date for
Hearing on the appeal.
18. On April 5, 1996 Intervenors employed an valuation expert with extensive
knowledge of H.U.D. supported projects such as College Park, which appraisal was
completed prior to May 2, 1996, and demonstrates the substantial inadequacy of the
value set by the Board of Appeals due to the lack of accurate valuation information at
that time. The said valuation expert is Allan P. Baumholtz, SRPA, SRA, CAE, and
indicates a market value of at least $5,800,000.
19. At the request of Petitioners, not opposed by either counsel for the County
or that of Intervenors, a continuance was granted by Court Order dated April 30, 1996.
20, By Court Order of May 9,1996 the Hearing was again continued to July 10,
1996.
21. On the 9th of July, 1996, counsel for Intervenors and counsel for the
County met with the valuation expert who had arrived from Philadelphia, to review
anticipated testimony in preparation for the Hearing. At the end of two and one half to
three hours, between 4:30 and 5:00 p.m., counsel for College Park called to say he
had obtained another continuance of the case which was scheduled to be heard only
16 hours later,
22. Considerable expense and time was incurred with respect to counsel and
College Park Assessmenl Appeal
County Answer wilh Now Maller
Page 5 01 7
the out-of-town expert In preparation for trial, as aforesaid. Allached as Exhibit "A" is
the statement dated July 11, 1996 of Allan P. Baumholtz, the valuation expert retained
by the Intervenors, This statement Is for the services and costs wasted as the July 10,
1996 Hearing was canceled at such a late date and time.
23. The new Court Order of July 10, 1996, selling August 21,1996 as the date
for the continued Hearing also required the parties to exchange appraisals, College
Park to make the first delivery no later than July 31, 1996.
24. Six days before it was required to comply with the Court Order to produce
its appraisal, College Park sub milled its Petition to Discontinue.
25, The reasons given to obtain the continuance on July 9, 1996 did not
remotely suggest a desire for a discontinuance.
26, Even in cases under the Pennsylvania Rules of Civil Procedure,
discontinuances have been denied, as having been asked after unreasonable delay,
where, as here, a case was listed for trial/hearing and the other party had prepared for
the trial/hearing. 43 D&C 2d 225, see also Goodrich Amram 2d, Vol. 1, Page 413.
WHEREFORE, the County of Cumberland and the Cumberland County Board
of Assessment Appeals respectfully requests Your Honorable Court to (I) deny
Petitioner's request to discontinue this assessment appeal, (Ii) hold the Hearing now
scheduled for August 21, 1996, (Iii) Order the Petitioner to reimburse the County for its
costs incurred In having Its valuation expert come to Carlisle on July 9, 1996 for the
July 10, 1996 Hearing, (Iv) establish the fair market value of the subject premises at
College Park Assessment Appeal
County Answer with New Maller
Page 6 017
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3. On October 24, 1995, the Board entered an Order setting the
assessment at Three Hundred Twenty Eight Thousand Five
Hundred Dollars ($328,500.00) based upon an assumed Fair
Market Value of the Property at Four Million Five Hundred
Thousand Dollars ($4,500,000.00).
4. College Park filed an Appeal to this Court on November 22,
1995.
5. Cumberland County Board of Assessment Appeals filed an
Answer with New Matter to the Petition for Appeal.
6. On April 16, 1996, the Carlisle Area School District filed a
praecipe to Intervene in the action.
7. Rule 229 of the Pennsylvania Rules of civil Procedure
provides for the voluntary termination of an action by the
Plaintiff prior to commencement of trial.
8. The exclusive method of voluntary termination of an action,
in whole or in part, is a discontinuance by the Plaintiff,
before commencement of trial. Pa.R.C.P. 229(a).
9. The Rules of Court of the Ninth Judicial District of
Cumberland County do not provide for an alternative method
of discontinuance of a tax appeal.
10. No cross appeals have been filed by the respondents or
intervenors in this action.
11. Petitioners request leave to discontinue the instant action
as to all parties and intervenors.
2
party with respect to the property subject to appeal or to the
Petitioner.
Rule 229 of the Pennsylvania Rules of civil Procedure
provides as follows:
(a) A discontinuance shall be the exclusive method of
voluntary termination of an action, in whole or in
part, by the plaintiff before commencement or the
trial.
(b) A discontinuance may not be entered as to less than all
defendants except upon the written consent of all
parties or leave of court after notice to all parties.
(c) The court, upon petition and after notice, may strike
off a discontinuance in order to protect the rights of
any party from unreasonable inconvenience, vexation,
harassment, expense, or prejudice.
The Cumberland County Local Rules are silent on procedures
governing tax appeals and discontinuance of actions. The Fourth
to Eighth Class County Assessment Law 72 Pa.C.S.A. ~5453.101 et
seq. and the General County Assessment Law 72 Pa.C.S.A. ~5020-101
et seq. do not contain any process for discontinuance of a tax
appeal.
Accordingly, Rule 229 would appear to be the only procedural
rule providing guidance for the discontinuance of an Appeal.
College Park filed the instant appeal to obtain a reduction
of the assessment made at the Board level. At this time, College
Park wishes to discontinue the action, or in essence, withdraw
the appeal as against all parties and intervenors.
Because there are no local rules concerning either the
discontinuance or withdraw of a tax appeal, this court must defer
to the Pennsylvania Rules of civil Procedure whereby it
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IN RE:
COLLEGE PARK ASSOCIATES
LIMITED,
IN THE COURT 01' COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Tux Parcel No.: 6.19.1645.060
NO. 95.6692
CIVIL ACTION. LAW
J{EPLY WITH NEW MATTER
AND NOW, comes Stephen D. Tiley, Assistant Cumberland County Solicitor. and files
this Reply to the Petitioner's Pelition for Appeal from the Assessment of the Cumberland County
Board of Assessment and Revision of Taxes. of which the following is a statement:
I. Admitted in part, Denied in parI. Respondent. Cumberland County Board of
Assessment Appeals believes, and thcrefore avers. thatthc truc and accurate name of the owncr of
the propcny. and thc Petitioner in this case, is Collegc Park Apartmcnts. a limited partnership with
address, as discloscd by the Cumberland County propcrty record card. of clo NHP Management
Company. 8606 Allisonvillc Road, P. O. Box 50422. Indianapolis. Indiana 46250-3588. By
way of furthcr reply, propcrty which is thc subjecl of this appeal is known as Cumberland Counly
Parccl Numbcr 06-19-1645-060. containing the property in thc Borough of Carlisle known as
Collegc Park Apartments situate on 13.67 acres. more or Icss. and containing 208 apartments.
2. Admitted in part. Denied in parI. Petitioner timely filcd an appeal on or before
September I. 1995 which appeal is applicable for the 1996 not 1995 tax ycar. Any changc in
assessment for thc subjcct property will be effective as of January I. 1996. This property was
subjcct to a prior assessmcnt appeal filed to Number 94-6579 Civil Term. to which a Stipulation
and Joint Motion for Agreed Order was filed on March 29. 1995. with its Ordcr bcing entcred on
March 30. 1995. fixing thc assessment for the propcny for the current tax year and subsequent tax
ycars until changcd as provided by law.
3. Admitted in part. Denicd in parI. Upon thc filing of a new asscssmcnt appeal for this
propeny thc Board was required to find the fair market value of the property as of the dale thc
appeal was filed. The Board denied taxpayer's request for a rcduction in value. The pre-existing
stipulatcd and agrccd to assessment of $307.500 indicatcd, by application of the current common
,
Icvel ratio. a markct valuc of $4,212.329. The Board found lhatthe property was actually worth
more than that umount and sct the fair market value at $4,500.000.
4. Denicd. The avermcnts of this paragraph arc conclusions of law to which no
responsive plcading is rcquired. By way of further Rcply, Pctitionerincorrectly statcs that the
Cumberland County common level ratio is 13.7% forthc 1995 tax year. Thc Cumberland County
common Icvel ratio publishcd on or bcforc July I. 1995 for application for tax years beginning
January \, 1996 is 7.3%. Thc 1995 common level ratio factor, for application in tax years
beginning January 1. 1996, is 13.7. (Thc common levcl ratio factor is the reciprocal of the
common level ratio and is not a percentage.)
WHEREFORE. thc Cumbcrland County Board of Assessmcnt Appcals respectfully
request Your Honorable Court to deny Pctitioner's appeal and cstablish the fair market value of thc
subject premiscs at $4.500.000, or such othcr higher figure as the Court may deem proper, and for
such othcr and furthcr relief as Your Honorable Court may deem just and propcr.
r-/EW MATTER
5, The avcrments of paragraphs one through four of this Reply With New Mattcr are
incorporated hcrein by refercncc thereto.
6, The Rcspondcnt is lhe Cumberland County Board of Assessment Appeals of I
Counhouse Square. Carlisle. Pcnnsylvania 17013.
7. This appeal is properly under The Fourth to Eighth Class County Assessment Law.
72 P.S. ~5453.101 el sic. The rcference to 72 P.S. *5348 containcd in paragraph I of Petitioner's
Praycr for Relief is crroncous as that provision is a portion of thc law applicable to assessmcnts in
counties of the Sccond Class A and Third Class.
8. Thc income capitalization method of estimaling markcl valuc is correctly to be
considcred. along with the cost and salcs comparison approach. in the valuation of real eslate in
assessment appcals. Paragraph 4(b) of Pctitioncr's Petition correctly states that the income
approach is to be "taken into account" however thc fact lhal the projcct is federally subsidized is
irrelevant to that rcquiremcnt. Paragruph 2 of Pctitioncr's Prayer for Rclief is incorrect whcn it
implies that the income capitaliz:llion approach is lhc only mcthod to bc applied in valuing thc
subject premises.
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3. That following a nearing before the Board, the Board
caused to be issued a notice denying the request of the
Appellant and fixing the assessment for the subject
premises at Four Million Five Hundred Thousand Dollars
($4,500,000.00). (See attached Exhibit "A")
4. The Appellant contends that the assessment as set forth
herein above is unlawful in that:
(a) The market value of the property as found by the
Board is not the actual market value of the
property as based upon the costs and income
analysis to the actual market value considered in
conjunction with one another and mandated by
statute;
(b) The application of any analysis without taking
into account the income capitalization rate is
contrary to the laws of this state because the
subject property is federally subsidized;
(c) The application of the incorrect market value
creates a resulting assessment that is higher than
the 13.7% Cumberland County Common Level Ratio for
the 1995 tax year;
(d) The assessment lacks uniformity;
(e) The assessment is discriminatory;
(f) The assessment is unjust and inequitable;
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OCT 2 1 t99(ftf'
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IN RE:
COLLEGE PARK ASSOCIATES
LIMITED,
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
NO. 95-6692
Tax Parcel No.: 6-19-1645-060
CIVIL ACTION - LAW
~TIPULATION AND JOINT MOTION FOR AGREED ORDER
ti fie I~.AI-
AND NOW, this /:7 day of Gsptember , 1996, it is hereby agreed and
stipulated between Petitioner, College Park Apartments, a limited partnership, also
known as College Park Associates Limited, by its attorney, K. Kirk Karagelian,
Esquire; and Respondents, County of Cumberland and Cumberland County Board of
Assessment Appeals, by their attorney, Stephen D. Tiley, Esquire; and Respondents,
Carlisle Area School District and Borough of Carlisle, by their attorney, James D.
Flower, Esquire, as follows:
1. Petitioner filed a petition for assessment appeal from the assessment fixed
by the Cumberland County Board of Assessment Appeals by "Petition for Appeal from
the Assessment of the Cumberland County Board of Assessment and Revision of
Taxes" dated November 21, 1995 and filed November 22, 1995, to which an Order
fixing a date and place for a hearing was entered on November 30, 1995. The
hearing was originally scheduled for May 2, 1996. That hearing was continued
generally by Order dated April 30, 1996. By Order dated May 9,1996 the hearing was
rescheduled for July 10, 1996. By Order dated July 10, 1996 the hearing was
rescheduled for August 21, 1996. Finally, upon agreement of the parties, the August
21,1996 hearing was canceled and continued generally by Order dated August 27,
1996. The parties have now settled this case.
Stipulation and Joint Motion for Agreed Order
Page 1 of 3
"
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2. The applicable year for which the above captioned assessment appeal
was flied Is the calender year 1996.
3. The property which Is the subject of this appeal Is Cumberland County
Assessment Parcel No, 6-19-1645-060 and Is known as College Park Apartments,
The property Is situate In the Borough of Carlisle, Cumberland County, Pennsylvania.
4, The parties stipulate that the total market value of the subject property as of
the date the original petition to the Cumberland County Board of Assessment Appeals
was flied shall be fixed at $5,600,000.
5. The common level ratio applicable to this appeal for the 1996 tax year, as
certified by the State Tax Equalization Board on or before July 1, 1995, is 7.3%,
Applying the common level ratio to the total market value of the subject property
results in Its lawful total assessment being $408,800. The common level ratio varies
by more than 15% from the Cumberland County predetermined ratio, which Is 25%,
and therefore the common level ratio is applicable to this appeal and the assessment
shall be fixed at the said $408,800.
6, The Cumberland County Assessor's Office shall allocate the total
assessment between land and improvements as provided by law and the procedures
of the Cumberland County Assessment Office,
7, The Cumberland County Assessment Office shall promptly notify the
appropriate taxing bodies of the change in assessment, effective retroactively to
January 1, 1996, and instruct the taxing bodies to make any appropriate re-billings,
8. The new assessment shall be effective January 1, 1996 and shall remain
unchanged unless and until changed as otherwise provided by law.
9. Each party to this appeal shall bear its own costs.
10, The Court is requested to enter the proposed Order attached hereto.
11. The undersigned Attorneys each hereby warrants to the other and to the
parties and to the Court that he has reviewed this Settlement Stipulation with his client
Stipulation and Joint Motion for Agreed Order
Page 2 013