Lake Naomi Club, Inc. v. Monroe County Board of Assessment Appeals

SMITH, Judge,

Dissenting.

I dissent from the Majority’s decision to affirm the order of the Court of Common Pleas of Monroe County, which required the Monroe County Board of Assessment Appeals and the Tax Assessor of Monroe County to comply with the explicit provisions of Section 5105(b)(1) of the Uniform Planned Community Act (Act), 68 Pa.C.S. § 5105(b)(1).1 The order resulted in the striking of the separate real estate tax assessment by Monroe County for the 2000 tax year on the Timber Trails golf course and related common amenities and facilities within the Timber Trails subdivision, a planned community.2

The question presented in this appeal is whether Section 5105(b)(1) of the Act applies retroactively to planned communities created in the Commonwealth prior to the effective date of the Act on February 2, 1997. Appellants correctly note that this case involves the continued real estate tax assessment treatment of the Timber Trails golf course and that the question of the taxability of the Owners’ golf course was decided prior to enactment of the Act in Timber Trails Community Ass’n v. County of Monroe, 150 Pa.Cmwlth. 29, 614 A.2d 842 (1992).3 The Majority does not cite *1126Timber Trails Community Ass’n nor the case relied upon by the trial court, E.L.C.A Development Corp. v. Lackawanna County Board of Assessment Appeals, 752 A.2d 466 (Pa.Cmwlth.2000).

The parties stipulated that Count I of the Owners’ assessment appeal raised a legal issue of whether the Act applies retroactively to subdivisions in existence before the effective date of the Act. They also stipulated that the Timber Trails subdivision is a planned community; that the Owners and the golf course existed before the effective date of the Act; that the golf course was assessed annually before and after the effective date of the Act; that the property represents both common facilities and controlled facilities; and that the property is neither convertible nor withdrawal real estate pursuant to Section 5105(b)(2). Based on the parties’ stipulation, the trial court concluded that this matter was controlled by the Court’s decision in E.L.C.A. Development Corp. and reasoned that the tax assessment against the Owners’ golf course violated the Act’s prohibition against taxation of common or controlled facilities.

I agree with Appellants’ initial argument that the Act should not apply retroactively to the tax assessment against the Owners’ property in this case because the assessment represents an event that occurred prior to the effective date of the Act. The Act requires an event or occurrence that occurs after the effective date of the Act, which represents some thing or happening as distinguished from something that already exists.4 I agree as well that the trial court erred in relying on E.L.C.A. Development Corp. because the issue of retroactivity of the Act was not directly addressed in that case. The issue before the trial court and before this Court on appeal by taxpayers from real estate tax assessments for 1998 and thereafter was whether the assessed property was convertible and/or withdrawable real estate.5

Appellants are correct that the Court must interpret the retroactivity provision of Section 5105 of the Act consistently with the rules of statutory construction, principally the rules that the Legislature does *1127not intend an absurd or unreasonable result or a violation of the constitution and favors the public interest against any private interest. Section 1922(1), (3) and (5) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1), (3) and (5). For this Court to logically apply the retroactivity provisions of the Act there must be some event or occurrence, which did not exist or occur on a routine or regular basis before and after the effective date of the Act. The County’s regular assessment and taxation of real property is not such an event or occurrence.

I therefore agree with Appellants that the only logical construction of Section 5102(b) of the Act would be the requirement of a countywide reassessment, an event or occurrence after the effective date of the Act. At that time Monroe County could delete the Timber Trails golf course from the tax rolls and add value to the individual owners’ units. The Act provides that each unit in a planned community constitutes a separate parcel of real estate, including rights to any common facilities, and the unit’s value shall include the value of the unit’s interest in common facilities. See 68 Pa.C.S. §§ 5105(a), 5105(b). Because the trial court erred in ruling that the County’s tax assessment for the year 2000 violated the Act’s prohibition against the taxation of common or of controlled facilities in planned communities, the court’s order should be reversed and the decision of the Board reinstated.

. Section 5105(b)(1) prohibits the imposition of real estate taxes on common facilities or on controlled facilities in a planned community, and the Act applies retroactively to a planned community created in the Commonwealth prior to the effective date of the Act so long as the events and circumstances affecting the planned community occurred after the effective date of the Act. See Section 5102(b) of the Act, as amended, 68 Pa.C.S. § 5102(b).

. Section 5103 of the Act, as amended 68 Pa.C.S. § 5103, defines a “planned community” as real estate with respect to which persons holding an ownership interest in any portion of the real estate are or may become liable by covenant, easement or agreement to pay an amount for taxes and other expenses for parts of the property other than those parts solely owned by the persons. The Act defines "common facilities” as any real estate within a planned community, which is either owned or leased by the association, and does not include a unit designated for separate ownership or occupancy. Id. "Controlled facilities” are defined as any real estate in a planned community which is not a common facility but is maintained, improved, repaired, replaced, regulated or otherwise controlled by an association. A controlled facility may or may not be part of a unit. Id.

.The Court, sitting en banc, held in Timber Trails Community Ass’n that the Owners’ golf course had value for tax assessment purposes for the 1989 and 1990 tax years because the property owners had non-exclusive easement *1126rights to the common area golf course, which extended golf membership to individuals who were not lot owners. The golf course was assessed a market value of $51,210, and Appellants were assessed taxes against the golf course before and after the effective date of the Act. The assessment resulted from a countywide assessment of all properties effective for the 1989 tax year.

. See Black’s Law Dictionary (4th Ed. 1968) (“event” connotes something that comes to pass and an "occurrence” connotes an incident or event that happens without design or expectation).

. Convertible real estate refers to that portion of a flexible community which is not within a building containing a unit, within which additional units, limited common or controlled facilities or any combination thereof may be created, and withdrawable real estate refers to real estate which may be withdrawn from a flexible planned community. See 68 Pa.C.S. § 5103. Convertible or withdrawable property is separately assessed and taxed until it is no longer convertible or withdrawable. 68 Pa.C.S. § 5105(b)(2).

In E.L.C.A. Development Corp. the Court reversed the trial court’s determination that the six subject parcels of land were not exempt from separate assessment and taxation because the properties were convertible and/or withdrawable real estate. The Court ruled that the parcels were not convertible or withdrawable real estate merely because members of the association could at some future time vote to sell common area real estate, but they were instead common or controlled areas not separately assessable or taxable under the Act. If any parcels were sold or developed with additional units or limited common or controlled facilities, then at that time they could be separately assessed and taxed.