Ackerman v. Carbon County
| Decision Date | 03 November 1997 |
| Parties | Howard ACKERMAN, Michele Ackerman, Lee G. Al Becker, John P. Bellis, Catherine M. Bellis, Joseph C. Daniels, Melissa A. Daniels, Paul J. Feather, Josephine S. Feather, Glenn Frederick, Mildred Frederick, Alphonsus Gregaitis, Helen Gregaitis, Thomas S. Haberman, Denise V. Shoemaker, David A. Kern, Della L. Kern, Mark K. McCool, Jacqulynne A. McCool, Dwight D. Meckel, Deborah J. Meckel, Stephen A. Moore, Joanne M. Moore, Ronald N. Trumbauer, Doris J. Trumbauer, William Adams, Evelyn B. Adams, Charlotte A. Battersby, Linda P. Thompson, Randy Catlin, Joseph Caruvana, Carlos Chiesa, Myrna Chiesa, Louis S. Colasurdo, Elizabeth K. Colasurdo, Richard A. Cooper, Myra Cooper, Robert E. Devito, Janet M. Devito, Jack E. Eldred, Mary K. Eldred, Carole T. Elkin, Larsen Franchino, Franca Franchino, Richard W. Freese, Charlene M. Freese, Rose Marie Good, Howard J. Gronendahl, Margaret A. Gronendahl, Edmund Haring, David Haus, Margaret Haus, Linda M. Heller, Doris M. Sontagh, Fredinand N. Latch, Nancy D. Latch, Anthony Lewandowski, Elizabeth C. Lewandowski, Daniel McDonald, Jayne McDonald, Raymond Motto, Barbara Motto, John O'Donnell, Barbara O'Donnell, William Parkes, Sally Parkes, Ralph Preuster, Audrey Preuster, Joseph J. Rink, Frances M. Rink, Harold Schell, Antoinette Schell, George F. Shipman, Lorraine Shipman, Frank Squillace, Dennis Stewart, Roseanne Stewart, Raymond Verbrugghe, Anna Marie Verbrugghe, Richard Walsh, Barbara Walsh, Marguerite Wisch, David Wolfinger, Carol Wolfinger, James Zisa, Denise Zisa, Gerard F. Altemus, Mary Beth Altemus, John E. Augustine, Joan Bailey, Morton A. Ballin, Mary J. Ballin, Alfred Biserta, Judity Biserta, Kelly Bollinger, Carl J. Buchola, Theresa M. Fiandaca, William E. Campbell, Lynn E. Campbell, v. CARBON COUNTY and Carbon County Board Of Assessment, Appellants. |
| Court | Pennsylvania Commonwealth Court |
Alfred K. Hettinger, Allentown, for Appellants.
George W. Westervelt, Jr., Stroudsburg, for Appellees.
Before COLINS, President Judge, and DOYLE, McGINLEY, SMITH, FRIEDMAN and FLAHERTY, JJ.
Carbon County and Carbon County Board of Assessments (together, Appellants) appeal from two orders of the Court of Common Pleas of Carbon County (trial court); a September 9, 1996 order concluding that Appellants' assessment of properties is defective because of a lack of uniformity, and a January 10, 1997 order directing Appellants to conduct a county-wide reassessment of all properties within Carbon County within two years of the date of the order.
On appeal to this court, 1 Appellants first contend that the trial court erred or abused its discretion in concluding that Appellants' assessment of properties is constitutionally defective because it violates Article VIII, section I of the Pennsylvania Constitution requiring that all taxes be uniform. We find neither an error of law nor an abuse of discretion and affirm the trial court's September 9, 1996 order, adopting the well-reasoned opinion of Senior Judge Michael V. Franciosa in Ackerman, et. al v. Carbon County Board of Assessment, Court of Common Pleas of Carbon County, No. 94-2505, filed September 9, 1996.
Next, Appellants challenge the trial court's authority to order a reassessment in this case. Once again, this issue was raised before the trial court and ably disposed of in the supplemental opinion of Senior Judge Michael V. Franciosa. As a result, we affirm the trial court's January 10, 1997 order and adopt the supplemental opinion, Ackerman et. al v. Carbon County and Carbon County Board of Assessment, Court of Common Pleas of Carbon County, No. 94-2505, filed January 10, 1997.
ORDERAND NOW, this 3rd day of November, 1997, the orders of the Court of Common Pleas of Carbon County, dated September 9, 1996 and January 10, 1997, are hereby affirmed.
CARBON COUNTY AND CARBON COUNTY BOARD OF ASSESSMENT, Respondents.
Appellants 1 are a group of Carbon County property owners who are appealing real estate assessments on their individual properties. In addition to their individual appeals from the Board Assessment, the appellants are seeking a declaration that Carbon County's current method of determining real property assessments violates the uniformity of taxation requirement found in Article VIII, Section 1 of the Pennsylvania Constitution.
A hearing on the "uniformity" issue was held on August 3, 1995. At that time, the Board of Assessment met its initial burden of proof by introducing the assessment rolls for the properties in question; by testimony of the Chief Assessor which established that the valuation of the subject properties were continuous both from the period of time of the appeal through the time of the hearing; and, by documenting the common level ratio published by the State Tax Equalization Board for Carbon County for the relevant period of time in which the appeal is filed and also the year in which the appeal is heard. Because the assessment must be considered prima facie valid where the assessment record is admitted into in the evidence, the taxpayer has the burden to rebut the assessment's validity. Fosko v. Board of Assess. App., Luzerne Co., 646 A.2d 1275, 166 Pa.Cmwlth. 393 (1994).
In this case, the evidence produced by the appellants to satisfy their burden shows the following: The last county-wide reassessment was done in 1969. Thus, it has been twenty-seven years since the last county-wide reassessment. Moreover, Carbon County uses the cost approach. Under the cost approach, the value of a property is determined by estimating the construction cost, subtracting accrued depreciation, and adding the estimated land value. A factor which tends to complicate the use of the cost approach is the County's need to utilize 1969 construction costs to value properties built since that time. There is another problem with depreciation procedures. Properties that were in existence in 1969 got a depreciation credit of 35%. Thereafter, all properties received a periodic depreciation credit, but the original gap in favor of the older properties has never been equalized. In addition, significant changes in market values of properties have occurred since 1969. Route 80 was constructed through the county; and, large subdivisions were opened adding many newly constructed types of properties to the tax rolls.
Three witnesses were offered by appellants on the subject of uniformity. The testimony of Scott Dotterer shows a disparity in sales assessment ratios in the Borough of Jim Thorpe. He made an analysis of actual sales prices to assessment ratios for seven properties. On average these seven homes were assessed at 2.6% of the sales price as compared to the 9.6% assessment for his own property. When he did an analysis on 1994 sales, Dotterer found he was paying real estate taxes at a rate almost three times greater than the owners of similarly valued properties.
The difficulty encountered in arriving at assessments of newly constructed properties is demonstrated by evidence regarding the Towamensing Trails Community. Such evidence discloses that the use of 1969 cost data to assess newer properties produced the following results:
There were 65 transactions in the Towamensing Trails Community from October 1, 1993 to September 30, 1994; in 53 of them the property was over assessed and in 12, the properties were under assessed; 2 in total, 79% of the sales at Towamensing It is asserted by the County that appellants have not met the burden of proof required to establish a lack of uniformity in assessments. In support of its argument, the County cites the case of Albarano v. Board of Assessment and Revision, 90 Pa.Cmwlth.Ct. 89, 494 A.2d 47 (1985). We believe the County's reliance on Albarano, supra, is misplaced. In that case, the Commonwealth Court found the evidence insufficient because the taxpayer offered evidence of assessments of comparable properties, but failed to present proof of market value. Here, the taxpayers presented credible evidence consisting of the analyses of actual sales prices to assessment ratios for seven properties in the Borough of Jim Thorpe and sixty-five transactions in the Towamensing Trails Community.
Trails showed an assessment more than 15% greater than the common level ratio; as a whole, Penn Forest Township had a 1994 common level ratio of 9.8% compared with a common level ratio of approximately 5% in the Borough of Jim Thorpe; 3 this means that Penn Forest Township taxpayers were assessed at rates almost double those applied to property owners in the Borough of Jim Thorpe
Although the witnesses called by the appellants were not qualified as real estate appraisers, this does not, as the County contends, render their information inadmissible in considering lack of uniformity. As our Supreme Court stated in McKnight Shopping Center, Inc. v. Board of Property Assessment, 417 Pa. 234, 209 A.2d 389 (1965):
"In considering whether or not a particular assessment is lacking in uniformity, however, a property owner, the taxing authority and the courts may rely on any relevant evidence.... It would be easily satisfactory to produce, if possible, evidence regarding the ratios of assessed values to market values as the latter are reflected in actual sales of any other real estate in the taxing district for a reasonable period prior to the assessment date. Thus, for example, if competent evidence of an overall current ratio based on sales within the taxing district is available, it may be introduced.
Whatever the procedure, the taxing authority always has the right to rebut the owner's evidence, and the weight to be given all the evidence is always for the court...
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