525 Lancaster Ave Apts, LP v. Berks County Board of Assessment Appeals

DISSENTING OPINION BY

President Judge PELLEGRINI.

I respectfully dissent because the majority allows an appeal from an assessment made under the Consolidated County Assessment Law1 to determine fair market value to act as an appeal from an assessment made under the Local Economic Revitalization Tax Assistance Act (LERTA)2 *1237for different purposes and involving different calculations.

In September 2012, 525 Lancaster Ave Apts, LP (Taxpayer) received a $4,536,700 real property tax assessment for a 71-unit apartment building (property) in the City of Reading (City) that Taxpayer rehabbed. Taxpayer appealed the assessment to the Berks County Board of Assessment Appeals (Board) and, following a hearing, the Board issued a final notice on November 28, 2012, upholding the assessed value of $4,536,700. f Taxpayer appealed the Board’s decision to the Court of Common Pleas of Berks County (trial court) arguing that the assessment is not commensurate with the property’s fair market value. Normally, such an appeal would act to appeal all subsequent assessments made in future years from a determination of fair market value under Section 8854(a)(5) of the Consolidated County Assessment Law.3

While all this was going on, the City was processing Taxpayer’s LERTA application for a tax exemption on its property. On January 29, 2013, the Board notified Taxpayer that its property was accepted into the City’s LERTA program, thereby reducing the property’s assessment from $4,536,700 to $870,000 effective October 1, 2012. Section 6(a) of LERTA provides that “[a]ppeals from the reassessment and the amounts eligible for the exemption may be taken by the taxpayer or the local taxing authorities as provided by law.” 72 P.S. § 4727(a). Taxpayer did not appeal the Board’s January 29, 2013 LERTA assessment.

The Board filed a motion to dismiss Taxpayer’s appeal of the initial assessment on the basis that the appeal was moot due to the January 29, 2013 reassessment which the trial court granted and cogently explained:

As is clear from Section [6 of LERTA], the abatement action calls for a, separate assessment and is considered a reassessment. As the Board urges, the October 2012 ... assessment was superseded by the January 29, 2013 reassessment. Taxpayer’s property is no longer being taxed in accordance with the 2012 interim assessment. The within appeal, therefore, no longer has any practical significance_ Taxpayer’s proper recourse would have been to file an appeal from the reassessment of January 29, [2013].

(Trial Court’s November 21, 2013 Decision at 4).

The majority finds that the appeal is not moot because the Board’s LERTA assessment is based on a percentage or derivative of the underlying assessed value, and that value is “not set in stone during the exemption period” so, of course, an appeal from the underlying assessment remains in place because it is a component of the LERTA assessment, and if it is reduced, so is the LERTA assessment. As support for that proposition that it is “not set in stone,” it relies on § 24-727 of the City’s LERTA Ordinance (RLO) which provides:

In the event that the taxpayer shall received [sic] by whatever means, a reduced assessment with regard to part or *1238all of his, her or its property which is currently the subject of the tax exemption provided in this Part, such reduced assessment shall be applied proportionately to the portion of the assessed value which is subject to a tax exemption and the portion of the assessed value which is not subject to a tax exemption, and shall result in a reduction of tax exemption which was originally granted for purposes of the number of exemption years still remaining on the exemption schedule.

I disagree with the majority because the LERTA assessment is made under LER-TA, not the Consolidated County Assessment Law, which is calculated differently than the fair market value assessment under the General County Assessment Law4 in that that assessment involves many factors and different calculations than just fair market value. It is so different that the General Assembly requires a taxpayer who disagrees with the LERTA assessment to take a separate appeal and it is so different that automatic appeal provisions do not apply. Let me explain.

The LERTA ordinance requires the Board “to assess the new construction or assess the improvement separately and calculate the amount of the assessment eligible for tax exemption.” RLO § 24-726-8. Under Section 6(a) of LERTA, that calculation does not take out of the fair market value attributable to those improvements but only the “actual cost” of the improvement or “maximum amount” allowed for exemption. 72 P.S. § 4727(a). Moreover, once the LERTA assessment, either after an appeal or failure to appeal the LERTA assessment, the cost of construction and the amount of exemption is fixed. While the underlying fair market value can be reduced in future years under RLO § 24-727-1, there is a proportionate reduction in the tax exemption so for all intents and purposes such an appeal will not be taken.

The LERTA assessment simply supplanted the fair market value assessment made under the Consolidated County Assessment Law. Section 6(a) of LERTA requires that “[ajppeals from the reassessment and the amounts eligible for the exemption may be taken by the taxpayer ...” 72 P.S. § 4727(a). As the Board notes, while the January 29, 2013 reassessment may have been derived from the initial fair market value made under the Consolidated County Assessment Law, the LERTA schedule of assessments is “set” unless the taxpayer appeals following receipt of the first LER-TA notice. It correctly notes that even if a taxpayer’s appeal of the initial assessment is permitted to proceed and that assessment is ultimately reduced, it would have no effect on the LERTA assessment because the tax exemption would be proportionately reduced.

However, the majority finds that even if the LERTA assessment is a new assessment, it is automatically appealed under Section 8854(a)(5) of the Consolidated County Assessment Law because Taxpayer has an outstanding appeal under that statute which remains pending. Taxpayer’s appeal to the Board only challenged whether the property was assessed in accordance with its fair market value. While fair market value is a component in the LERTA valuation, as pointed out, a LER-TA assessment is based on a combination of factors that must be taken into consideration which results in an assessment that has nothing to do with fair market value. That is why the General Assembly provided in Section 6(a) of LERTA that a separate appeal must be taken from the LER-TA assessment because it was made for a different purpose than the fair market as*1239sessment made under the Consolidated County Assessment Law.

Because the automatic appeal provisions applicable to subsequent tax years of a single assessment do not apply to LERTA assessments, I would affirm the trial court’s motion to dismiss the appeal of fair market value taken under the Consolidated County Assessment Law because Taxpayer was required to file a separate appeal of the LERTA assessment.

. 53 Pa.C.S. §§ 8801-8868.

. Act of December 1, 1977, P.L. 237, as amended, 72 P.S. §§ 4722-4727. Section 4(a) of LERTA provides, in relevant part:

Each local taxing authority may by ordinance or resolution exempt from real property taxation the assessed valuation of improvements to deteriorated properties and the assessed valuation of new construction within the respective municipal governing bodies designated deteriorated areas of economically depressed communities in the amounts and in accordance with the provisions and limitations hereinafter set forth.

*123772 P.S. § 4725(a).

. 53 Pa.C.S. § 8854(a)(5). Section 8854(a)(5) provides:

If a taxpayer or taxing district has filed an appeal from an assessment, so long as the appeal is pending before the board or before a court on appeal from the determination of the board, as provided by statute, the appeal will also be taken as an appeal by the appellant on the subject property for any valuation for any assessment subsequent to the filing of an appeal with the board and'prior to the determination of the appeal by the board or the court. This provision shall be applicable to all pending appeals as well as future appeals.

. Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§ 5020-1-5020-602.