IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Downingtown Area School District : CASES CONSOLIDATED
:
v. : No. 92 C.D. 2022
:
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.3 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
Downingtown Area School District :
:
v. : No. 93 C.D. 2022
: Argued: March 7, 2023
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.2 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: October 6, 2023
Marchwood Apartments Owners LLC (Taxpayer) appeals an order of
the Court of Common Pleas of Chester County (trial court), granting the tax
assessment appeal filed by Downingtown Area School District (School District).1 In
1
The cases were consolidated by the trial court.
doing so, the trial court rejected Taxpayer’s constitutional challenges to the School
District’s appeal of its assessment. Taxpayer argues that the trial court erred,
asserting that the School District’s tax assessment appeal policy, both on its face and
as applied, violates the Equal Protection Clause of the United States Constitution2
and the Uniformity Clause of the Pennsylvania Constitution.3 Likewise, Section
8855 of the Consolidated County Assessment Law, 53 Pa. C.S. §8855,4 violates the
Equal Protection Clause and the Uniformity Clause because it does not require
taxing authority assessment appeals to be countywide. Taxpayer contends that the
School District’s unconstitutional assessment appeal has left the Marchwood
apartment complex overassessed when compared to other apartment complexes in
Chester County, with which it must compete for tenants. For the reasons to follow,
we reverse the trial court.
Background
Taxpayer owns the Marchwood apartment complex, which consists of
two separate tax parcels located in Uwchlan Township, Chester County,
2
U.S. CONST. amend. XIV. The Equal Protection Clause provides, in relevant part: “No State
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Id.
3
PA. CONST. art. VIII, §1. It states: “All taxes shall be uniform, upon the same class of subjects,
within the territorial limits of the authority levying the tax, and shall be levied and collected under
general laws.” Id.
4
It states:
A taxing district shall have the right to appeal any assessment within its jurisdiction
in the same manner, subject to the same procedure and with like effect as if the
appeal were taken by a taxable person with respect to the assessment, and, in
addition, may take an appeal from any decision of the board or court of common
pleas as though it had been a party to the proceedings before the board or court even
though it was not a party in fact. A taxing district authority may intervene in any
appeal by a taxable person under section 8854 (relating to appeals to court) as a
matter of right.
53 Pa. C.S. §8855.
2
Pennsylvania. One parcel is 6.1 acres, and the other parcel is 37.5 acres. On the 2
parcels are 40 detached buildings with 504 residential apartment units, a leasing
office/clubhouse, a maintenance shop, and a vacant building.
In 2012, the School District established a policy to appeal any real
property assessment that “may potentially result in total annual additional tax
revenue of $10,000 or more[.]” Reproduced Record at 263a (R.R. __). As adopted,
the policy did not limit the number of appeals the School District may file in a tax
year.
In 2019, the School District hired Valbridge Property Associates
(Valbridge) to “identify up to 15 properties” that were “likely to be under[]assessed
by an amount sufficient to meet the district’s selection criteria.” R.R. 261a. It took
Valbridge “approximately one week” to identify 15 underassessed properties that
met the policy’s $10,000 monetary threshold for an assessment appeal. Id. The
School District appealed 15 property tax assessments identified by Valbridge and
then added another, i.e., the Marchwood apartment complex. The Chester County
Board of Assessment Appeals denied the School District’s appeal of the Marchwood
apartment complex, and the School District appealed.
The trial court conducted a de novo hearing on the School District’s
appeal. Notably, the parties stipulated to the fair market value of the Marchwood
apartment complex for tax years 2019, 2020, and 2021. As a consequence, the
evidence concerned Taxpayer’s constitutional challenge to the School District’s
assessment appeal policy and implementation thereof.
Taxpayer presented the testimony of Reaves Lukens, an employee of
Valbridge, as on cross-examination. Lukens explained that he was tasked with
reviewing property assessments in the School District and choosing 15 assessments
3
to appeal, i.e., a “manageable” number, considering manpower and resources. Notes
of Testimony, 11/17/2021, at 16 (N.T. __); R.R. 39a. Lukens began the assignment
by downloading the current tax assessments of both commercial and residential
properties. However, Lukens excluded residential properties less than 3,500 square
feet in size. He did not look at “the very small houses” because they would not meet
the School District’s monetary threshold of $10,000 even “if they had an assessment
of zero.” N.T. 30; R.R. 53a. As for commercial properties, he separated them into
categories (e.g., retail or industrial) and looked at their average assessments.
Lukens testified that he “did not have a hard and fast rule with respect
to the methodology [he] used” to identify properties. N.T. 31; R.R. 54a. He
considered the potential net return in order “to maximize the return to the School
District.” N.T. 26, 32; R.R. 49a, 55a. Once he identified 15 assessments, Lukens
stopped his review and gave his list to the School District.5 Lukens confirmed that
many other property assessments met the School District’s monetary threshold.6 He
5
Initially, the Marchwood apartment complex was not on the list. N.T. 26; R.R. 49a.
6
At the hearing, Lukens testified as follows:
Q. Now, you would agree with me that there are many more than 15 properties
that satisfy the $10,000 threshold set forth in the [] School District policy, correct?
[Lukens]. I would suspect that there are.
Q. And indeed do you recall testifying at your deposition that you believed it
could be more than 100?
[Lukens]. It could be.
Q. And do you agree with that statement?
[Lukens]. It could be.
****
Q. And isn’t it correct that among those properties that you considered that are
in the district, that there were likely residences that would satisfy the $10,000
threshold set forth in the [] School District policy?
[Lukens]. It’s possible.
Q. Well, you say it’s possible. Do you believe that it’s likely?
4
also acknowledged that there was a range in the amount of “pickup” in fair market
value needed to meet the $10,000 threshold, depending on the municipality. For
example, in Downingtown Borough, a pickup of $497,262 in the fair market value
was needed to hit the $10,000 threshold, but a pickup of $617,831 was needed in
Bradford Township. N.T. 34-35; R.R. 57a-58a.
Taxpayer presented its expert, Peter A. Angelides, Ph.D.,7 who testified
about his analysis of the School District’s assessment appeals for the 2019 and 2020
tax years. He testified that owner-occupied residential properties constituted 84.2%
of the properties in the School District. N.T. 77; R.R. 100a. He further noted that
the School District’s $10,000 monetary threshold has “a larger exclusionary effect
on single[-]family properties than it does on apartments, commercial or industrial
properties.” N.T. 83; R.R. 106a. Nevertheless, Angelides believed “a decent or
large number of single[-]family properties” were underassessed and could generate
an additional $10,000 in annual tax revenue. N.T. 84-85; R.R. 107a-08a. He
identified five residential properties that were “worthy of further investigation” to
determine whether they would meet the policy’s threshold amount but were not
appealed. N.T. 91; R.R. 114a.
On cross-examination, Angelides explained that he looked at recent
sales prices to find properties that may meet the School District’s monetary
threshold. He acknowledged that some of the five residential properties that he
[Lukens]. I would assume there are some.
N.T. 25-26; R.R. 48a-49a.
7
Angelides is the President of Econsult, an urban economics environment public policy consulting
firm located in Philadelphia, Pennsylania. N.T. 64; R.R. 87a. Angelides holds a master’s degree
in city planning and a Ph.D. in economics. He also holds a certification from the American
Institute of Certified Planning, the proficiency in his profession. N.T. 65; R.R. 88a.
5
identified as potentially underassessed were subject to Act 319, 8 which meant they
were enrolled in programs that lowered their taxes. The Clean and Green program9
“provides a lower tax rate appropriate for land devoted to farming and forest reserve
purposes” by enabling landowners to apply for preferential assessments that base
property taxes on use rather than fair market value. Feick v. Berks County Board of
Assessment Appeals, 720 A.2d 504, 505 (Pa. Cmwlth. 1998).
The trial court did not allow Taxpayer to present expert evidence that
other apartment complexes in Chester County were assessed at a lower percentage
of fair market value under the State Tax Equalization Board10 common level ratio.
On average, other apartment complexes were assessed at 34.23% of their fair market
value. By contrast, the Marchwood apartment complex was assessed at 49.3% or
47% of its fair market value, depending on the year. The trial court also denied
Taxpayer the opportunity to introduce a stipulation regarding the range of
assessment appeal policies adopted by school districts in the county.
The depositions of David Matyas, the School District’s Business
Manager; David Kring, School Board Director; Alicia Krebs, the School District’s
Accounting Supervisor; and Jane Bertone, President of the School Board, were
admitted into evidence. Therein, these School District personnel testified that they
did not know how Lukens chose the 15 properties for appeal. Matyas Dep. at 16;
R.R. 380a; see also Krebs Dep. at 18; R.R. 452a. The Marchwood apartment
complex was added to the initial list of 15 appeals by decision of Valbridge and the
8
Act 319 refers to the Pennsylvania Farmland and Forest Land Assessment Act of 1974,
commonly known as the Clean and Green Law, Act of December 19, 1974, P.L. 973, as amended,
72 P.S. §§5490.1-5490.13.
9
Section 3 of the Clean and Green Law, 72 P.S. §5490.3.
10
See Act of June 27, 1996, P.L. 403, as amended, added by the Act of April 18, 2013, P.L. 4, 71
P.S. §§1709.1507-1709.1508.
6
School District’s solicitor. Matyas Dep. at 18; R.R. 382a; see also Krebs Dep. at 28;
R.R. 462a. The School District rejected one commercial property for a tax
assessment appeal for the stated reason that the owner was represented by a “very
aggressive” attorney. N.T. 41-42; R.R. 64a-65a.11 Bertone recollected that the
School District has appealed one residential property assessment, explaining she was
“surprised the house could generate that much more revenue.” Bertone Dep. at 20;
R.R. 490a.
Trial Court Decision
The trial court found that the School District’s policy did not instruct
the School District “to consider the type or nature of a property” when deciding
whether to appeal a property’s assessment and did not limit the number of appeals
that can be taken in a given year. Trial Court Op. at 2. Since the implementation of
its policy in 2012, the School District has filed an assessment appeal of one
residential property, in addition to its commercial property assessment appeals.
The trial court characterized Section 8855 of the Consolidated County
Assessment Law as granting a school district the right to appeal assessments, and it
“does not restrict the methodology” it uses to choose properties to appeal, so long as
the school district exercises its discretion within constitutional boundaries. Trial
Court Op. at 5. The trial court rejected Taxpayer’s argument that there must be a
countywide tax assessment appeal to avoid placing its apartment complex at a
competitive disadvantage. In any case, school districts in the same county are free
to adopt very different assessment appeal policies.
11
Lukens’ list included a parcel owned by Lowes but incorrectly identified the owner as P-Patch.
In conversation with the School District, Lukens recommended that they “skip the Lowes” parcel
because its attorney “is very aggressive.” R.R. 269a. Lukens recommended that the School
District proceed with appealing the assessment of the parcel that was actually owned by P-Patch.
Id.
7
The trial court rejected Taxpayer’s as-applied constitutional challenge
to the School District’s appeal of its assessment, concluding that allowing the
Marchwood apartment complex to remain underassessed would be discriminatory.
It reasoned that the ‘“intentional systematic undervaluation by state officials of other
taxable property in the same class contravenes the constitutional right of one taxed
upon the full value of his property.”’ Trial Court Op. at 6 (quoting Allegheny
Pittsburgh Coal Company v. County Commissioners of Webster County, 488 U.S.
336 (1989)). Further, the ‘“equal protection clause . . . protects the individual from
state action which selects him out for discriminatory treatment by subjecting him to
taxes not imposed on others of the same class’” Id. at 6 (quoting Hillsborough v.
Cromwell, 326 U.S. 620 (1946)). The trial court concluded that the School District’s
appeal policy corrects this “very wrong” because if the School District allowed
Taxpayer’s underassessment to continue, the rights of other taxpayers would be
violated. Id. at 7. Accordingly, the trial court held the School District’s tax
assessment appeals policy complied with the Equal Protection Clause.
The trial court next rejected Taxpayer’s contention that the School
District’s policy violated the Uniformity Clause, noting that “absolute equality and
perfect uniformity in taxation are not required.” Trial Court Op. at 7. The $10,000
threshold was facially neutral and did not, as Taxpayer argued, effectively eliminate
appeals of residential properties, thereby creating unconstitutional property sub-
classifications. The trial court found Taxpayer’s evidence irrelevant to the extent it
showed different treatment on the basis of property sub-classification because the
School District had appealed at least one residential property. It further opined that
a monetary threshold is permitted under precedent, citing Valley Forge Towers
Apartments N, LP v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017);
8
GM Berkshire Hills LLC v. Berks County Board of Assessment, 257 A.3d 822 (Pa.
Cmwlth. 2021) (GM Berkshire Hills I), aff’d by evenly divided court, 290 A.3d 238
(Pa. 2023) (GM Berkshire Hills II); and Punxsutawney Area School District v.
Broadwing Timber, LLC (Pa. Cmwlth., No. 1209 C.D. 2018, filed October 29, 2019)
(unreported).
Having rejected Taxpayer’s constitutional challenges, the trial court
ordered that the assessment of the Marchwood apartment complex be increased to
comport with its new fair market value, which value was established in the parties’
stipulation.
Appeal
On appeal,12 Taxpayer raises three issues. First, Taxpayer argues that
the School District’s tax assessment appeal policy violated the Equal Protection
Clause and the Uniformity Clause. Second, Taxpayer argues that Section 8855 of
the Consolidated County Assessment Law13 is unconstitutional, facially or as
applied, because it does not require taxing authority appeals to be uniform within the
entire county, and it does not state a standard for the initiation of assessment appeals.
Taxpayer contends that the appropriate solution to underassessed properties is for
12
This Court reviews a trial court’s decision in a property tax assessment appeal to determine
whether the trial court abused its discretion, committed an error of law, or made findings of fact
not supported by substantial evidence. GM Berkshire Hills I, 257 A.3d at 828 n.8.
13
It states:
A taxing district shall have the right to appeal any assessment within its jurisdiction
in the same manner, subject to the same procedure and with like effect as if the
appeal were taken by a taxable person with respect to the assessment, and, in
addition, may take an appeal from any decision of the board or court of common
pleas as though it had been a party to the proceedings before the board or court even
though it was not a party in fact. A taxing district authority may intervene in any
appeal by a taxable person under section 8854 (relating to appeals to court) as a
matter of right.
53 Pa. C.S. §8855.
9
the legislature to mandate countywide reassessments.14 Third, Taxpayer argues that
the Marchwood apartment complex must be assessed at the same common level ratio
as other apartment complexes in the county in order to comply with the Uniformity
Clause.
Analysis
We begin with a review of the law.
The Uniformity Clause of the Pennsylvania Constitution states as
follows:
All taxes shall be uniform, upon the same class of subjects,
within the territorial limits of the authority levying the tax,
and shall be levied and collected under general laws.
PA. CONST. art. VIII, §1. The Uniformity Clause ensures that “a taxpayer should
pay no more or no less than his proportionate share of the cost of government.” In
re Sullivan, 37 A.3d 1250, 1254-55 (Pa. Cmwlth. 2012) (quoting Deitch Company
v. Board of Property Assessment, Appeals and Review of Allegheny County, 209
A.2d 397, 401 (Pa. 1965)). The value of the Uniformity Clause has been
summarized as follows:
While every tax is a burden, it is more cheerfully borne when the
citizen feels that he is only required to bear his proportionate
share of that burden measured by the value of his property to that
of his neighbor. This is not an idle thought in the mind of the
taxpayer, nor is it a mere speculative theory advocated by learned
writers on the subject; but it is a fundamental principle written
into the Constitutions and statutes of almost every state in this
country.
Delaware, L. & W. Railway Company’s Tax Assessment, 73 A. 429, 430 (Pa. 1909).
14
Taxpayer asserts that Pennsylvania is one of seven states that do not require a “broad-based”
periodic assessment. Taxpayer Brief at 35. Instead, Pennsylvania uses a base year system, which
leads to the problem of underassessed properties.
10
Within a taxing district, all real property “is a single class.” Valley
Forge, 163 A.3d at 975. For this reason, “the Uniformity Clause does not permit the
government, including taxing authorities, to treat different property sub-
classifications in a disparate manner.” Id. In Clifton v. Allegheny County, 969 A.2d
1197, 1212 (Pa. 2009), our Supreme Court established that real property is “[a]
classification” and that the Uniformity Clause requires “all real estate [be] treated as
a single class entitled to uniform treatment.”
The General County Assessment Law15 authorizes any taxing authority
to appeal a real property assessment. Section 520 states as follows:
The corporate authorities of any county, city, borough, town,
township, school district or poor district, which may feel
aggrieved by any assessment of any property or other subject of
taxation for its corporate purposes, shall have the right to appeal
therefrom in the same manner, subject to the same procedure,
and with like effect, as if such appeal were taken by a taxable
with respect to his property.
72 P.S. §5020-520. It is axiomatic that when a taxing authority, such as a school
district, exercises its discretion to appeal a real property assessment, it must do so
within “constitutional boundaries.” Valley Forge, 163 A.3d at 980. Where a taxing
authority appeals only “the assessments of one sub-classification of properties,
where that sub-classification is drawn according to property type,” it acts outside
applicable constitutional boundaries. Id. at 978.
In Valley Forge, 163 A.3d 962, several taxpayers challenged the school
district’s program of appealing commercial property tax assessments but not
residential property assessments. The taxpayers sought to enjoin the school district’s
tax assessment appeal policy as violative of the Uniformity Clause. The common
15
Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§5020-1-5020-602.
11
pleas court dismissed the complaint as not stating a claim, and this Court affirmed.
The Supreme Court reversed, holding as follows:
[A] taxing authority is not permitted to implement a program of
only appealing the assessments of one sub-classification of
properties, where that sub-classification is drawn according to
property type – that is, its use as commercial, apartment complex,
single-family residential, industrial, or the like.
Id. at 978. The Supreme Court further explained that “systematic disparate
enforcement of the tax laws based on property sub-classification, is constitutionally
precluded[.]” Id. The Supreme Court cautioned, however, that its holding should
not be construed as an absolute prohibition of a neutral selection criterion, such as a
monetary threshold, so long as it was “implemented without regard to the type of
property in question or the residency status of its owner.” Id. at 979. The Supreme
Court held that because the taxpayers’ complaint alleged that only commercial
property assessments were appealed, it stated a valid claim under the Uniformity
Clause.
Following Valley Forge, this Court decided GM Berkshire Hills I.
There, the school district’s tax assessment appeals program used monthly reports
generated by the State Tax Equalization Board to identify properties for appeal.
These reports listed recent property sales in each county along with the sales prices
and current assessed values. Beginning with recently sold properties, the school
district applied the county’s applicable common level ratio16 of 68.5% to each recent
sale price. If the difference between the recent sale price and the assessment was
greater than $150,000, the school district pursued a tax assessment appeal. The
16
Section 102 of The General County Assessment Law, defines the “common level ratio” as “the
ratio of assessed value to current market value used generally in the county as last determined by
the State Tax Equalization Board pursuant to the act of June 27, 1947 (P.L. 1046, No. 447), referred
to as the State Tax Equalization Board Law.” 72 P.S. §5020-102.
12
$150,000 figure represented the threshold at which the revenue from a successful
appeal would justify the cost of the legal and appraisal fees necessary for the school
district to undertake the appeal.
GM Berkshire Hills LLC challenged the school district’s use of recently
sold properties as a basis for selecting properties for tax appeal. It argued that
challenging the assessment of properties under new ownership violates both the
federal Equal Protection Clause and Pennsylvania’s Uniformity Clause. This Court
rejected this claim. We concluded that using the recent sale of an assessed property
did not create an improper classification, reasoning that such sales are used to
establish market value in any assessment appeal. Further, the school district’s use
of recent property sales did not differentiate on the basis of property type. As such,
the school district’s method did not violate either the Equal Protection Clause or the
Uniformity Clause. On further appeal, an equally divided Supreme Court affirmed
this Court’s decision that the school district’s assessment appeal policy did not
violate the Uniformity Clause. GM Berkshire Hills II, 290 A.3d at 240.
Then, in Duffield House Associates, L.P. v. City of Philadelphia, 260
A.3d 329 (Pa. Cmwlth. 2021), appeal denied, 279 A.3d 1185 (Pa. 2022), this Court
affirmed an order of the Court of Common Pleas of Philadelphia County that
enjoined the City of Philadelphia’s reassessment of 41,730 commercial properties.
We held that the City’s decision to target certain sub-classifications of property for
reassessment, while leaving other sub-classifications of property alone, violated the
Uniformity Clause.
In Duffield, we distinguished Kennett Consolidated School District v.
Chester County Board of Assessment Appeals, 228 A.3d 29 (Pa. Cmwlth. 2020),
appeal granted, 240 A.3d 611, appeal dismissed as improvidently granted, 259 A.3d
13
890 (Pa. 2021). In Kennett, a taxpayer challenged a school district’s tax assessment
appeal of its property on the grounds that it violated the Uniformity Clause. In that
case, the school district set a monetary threshold of a $1 million underassessment,
which affected only commercial property assessments. We concluded that the
appeal program was constitutional because it was not based on type of property but
on the amount of the underassessment. The fact that the program’s implementation
resulted in an assessment appeal of only commercial properties did not establish a
per se violation of the Uniformity Clause.
With these principles in mind, we turn to Taxpayer’s first claim of error.
Taxpayer argues that the School District’s monetary threshold is inherently
discriminatory and, thus, violates the Uniformity Clause. The $10,000 monetary
threshold excludes most properties in the district, and since 2012, the School District
has appealed the assessment of only a single residential property. Taxpayer argues
that by arbitrarily limiting the number of tax assessment appeals to 15, even though
there were many more properties that satisfied the monetary threshold, the School
District has violated the Uniformity Clause. Finally, the School District’s decision
not to appeal an underassessed commercial property that met the monetary threshold
for the stated reason that its attorney was “very aggressive” created an intentional
discrimination in favor of one taxpayer to the expense of others. Taxpayer Brief at
26.
The School District responds that the law does not limit the selection
process for implementing a neutral monetary threshold for assessment appeals, and
it is not discrimination to appeal an incorrect assessment. In support, the School
District cites Weissenberger v. Chester County Board of Assessment Appeals, 62
A.3d 501(Pa. Cmwlth. 2013). There, a group of school districts “hired a consultant
14
to evaluate a different class each year, one year looking at shopping centers, then
apartment complexes, with other evaluations expected each year in the future.” Id.
at 507. This Court held that the school district’s piecemeal approach to assessment
appeals did not “demonstrate deliberate, purposeful discrimination.” School District
Brief at 17 (quoting Weissenberger, 62 A.3d at 508-09). The School District also
cites East Stroudsburg Area School District v. Meadow Lake Plaza, LLC (Pa.
Cmwlth., No. 371 C.D. 2018, filed October 17, 2019) (unreported), and East Area
School District v. Dallan Acquisitions, LLC (Pa. Cmwlth., No. 529 C.D. 2018, filed
October 17, 2019) (unreported) (holding that implementation of a neutral monetary
threshold for assessment appeals by cost-benefit analysis did not offend the
Uniformity Clause).
Our Supreme Court has held that under the Uniformity Clause,
“similarly situated taxpayers should not be deliberately treated differently by taxing
authorities.” Downingtown Area School District v. Chester County Board of
Assessment Appeals, 913 A.2d 194, 201 (Pa. 2006). Thereafter, in Valley Forge,
163 A.3d at 979, the Supreme Court suggested that a monetary formula for filing
assessment appeals did not offend the Uniformity Clause, but that was not the
holding. See GM Berkshire Hills II, 290 A.3d at 253 (Donohue, J., opinion in
support of reversal) (clarifying that the comment in Valley Forge about the potential
propriety of a monetary threshold was dicta). In short, the Pennsylvania Supreme
Court has not decided that a purely monetary threshold is constitutional under the
Uniformity Clause, as assumed by the trial court. Nevertheless, this Court has held
that a school district assessment appeal policy that uses a monetary threshold
together with recent property sales to choose its assessment appeals passes
constitutional muster. See GM Berkshire Hills I, 257 A.3d 822.
15
Here, the School District policy uses a monetary threshold for
identifying properties for tax assessment appeal, which may be constitutional.
However, the School District has implemented its policy in an arbitrary fashion.
First, it chose to appeal the assessments of 16 properties even though it knew that
there were many more properties in the School District that satisfied the monetary
threshold. Second, Lukens testified that he “did not have a hard and fast rule with
respect to the methodology [he] used” to identify properties, and he could not
elucidate these flexible “rules” that he used. N.T. 31; R.R. 54a. He could only state
that he was “trying to maximize the return to the School District.” N.T. 26, 32; R.R.
49a, 55a. Third, the Marchwood apartment complex was not on Lukens’ list of
properties identified for an assessment appeal, and the School District offered no
explanation for the later selection of the Marchwood apartment complex for an
assessment appeal. Fourth, the School District rejected a commercial property that
met the monetary threshold for the sole reason that its counsel was aggressive. This
selection criterion is discriminatory on its face and unacceptable as a matter of sound
public policy.
The School District’s reliance on East Stroudsburg and East Area
School District is misplaced. The implementation of the tax assessment appeal
policy was not at issue in these cases but, rather, the stated terms of the policy.
Additionally, Valley Forge disapproved a taxing authority appeal policy based on
property classification such as the one adopted in Weissenberger, where the school
district chose its assessment appeals by property classification, e.g., shopping centers
one year, then apartment complexes the next year. Rather, the Supreme Court has
established that “a taxing authority is not permitted to implement a program of only
appealing the assessments of one sub-classification of properties, where that sub-
16
classification is drawn according to property type—that is, its use as commercial,
apartment complex, single-family residential, industrial, or the like.” Valley Forge,
163 A.3d at 978.
The School District’s monetary formula based upon a $10,000 increase
in tax revenue may be facially neutral and may be constitutional, as suggested in
Valley Forge, 163 A.3d 962. That remains to be determined. See Berkshire Hills II,
290 A.3d at 253 (Donohue, J., opinion in support of reversal). However, the School
District’s decision to undertake a piecemeal implementation of this policy,
deliberately leaving many other underassessed properties alone, has created
disparate treatment that is anathema to the Uniformity Clause. This random
application of a monetary threshold created a lack of uniformity in violation of the
Pennsylvania Constitution.
Conclusion
The purpose of any assessment appeal, whether by the taxpayer or the
taxing authority, is to correct mistakes in the most recent countywide assessment. It
is not intended to function as a substitute for the countywide assessment required by
law. In GM Berkshire Hills I, 257 A.3d 822, this Court upheld an assessment policy
that was triggered by a change in circumstance, i.e., a sale that showed the most
recent countywide assessment amount for that particular property to be in error.
Further, the policy was uniformly applied to all properties meeting the monetary
threshold. Even so, our holding received divided support from our Supreme Court.
Taxing authority appeals yield more revenue for the taxing authority.
However, the purpose of a countywide reassessment is to correct all mistakes,
including those that fall upon overassessed properties. When the taxing authority
attempts an ersatz and piecemeal correction of underassessments, it is the sole
17
beneficiary. Under the Uniformity Clause, however, some of that correction should
inure to the benefit of the overassessed taxpayer.17
Here, the School District’s stated policy was to appeal assessments that
could potentially generate more than $10,000 in tax revenue. This will garner for
the School District the entire benefit and leave overassessed property owners bearing
an unfair share of the tax burden. Even so, the School District did not even attempt
to capture each and every assessment that would meet the monetary threshold. Cf.
Kennett, 228 A.3d 29. The monetary threshold may have been neutral, but the
implementation, perhaps too limited in scope, created a systematic and disparate
treatment of taxpayers, both the overassessed and the underassessed.
Accordingly, we reverse the decision of the trial court.18
MARY HANNAH LEAVITT, President Judge Emerita
17
See School District of Philadelphia v. Board of Revision of Taxes, __ A.3d __ (Pa. Cmwlth.,
Nos. 195-224, 226-229, 252-266, 268-270, 272-288, 419 C.D. 2021, filed October 6, 2023).
There, the school district adopted an assessment policy to appeal where the undertaking would
yield an additional $7,500 in annual tax revenue. For tax year 2017, the school district selected
138 properties to appeal out of 520,000 properties, and all were commercial.
We held that the school district’s idiosyncratic and subjective selection of underassessed
properties was arbitrary and deliberately exempted from review numerous properties that could
have yielded an additional $7,500 in annual tax revenue. We held that the “systematic disparate
enforcement of the tax laws” created the violation of the Uniformity Clause. Id. at ___, slip op. at
15 (citing Valley Forge, 163 A.3d at 978).
18
Because we have determined that the School District’s implementation of its tax assessment
appeals policy has violated the Uniformity Clause, we need not address Taxpayer’s remaining
constitutional challenges.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Downingtown Area School District : CASES CONSOLIDATED
:
v. : No. 92 C.D. 2022
:
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.3 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
Downingtown Area School District :
:
v. :
: No. 93 C.D. 2022
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.2 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
ORDER
AND NOW, this 6th day of October, 2023, the January 14, 2022, order
of the Court of Common Pleas of Chester County is REVERSED.
MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Downingtown Area School District : CASES CONSOLIDATED
:
v. : No. 92 C.D. 2022
: Argued: March 7, 2023
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.3 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
:
Downingtown Area School District :
:
v. : No. 93 C.D. 2022
:
Chester County Board of Assessment :
Appeals :
:
Tax Parcel No.: 33-5-43.2 :
:
Appeal of: Marchwood Apartments :
Owners LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
DISSENTING OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: October 6, 2023
The Policy of the Downingtown Area School District (School District) for
determining which property assessments to appeal was based on a specific monetary
threshold and was implemented without regard for a real property’s classification,
sub-classification, or ownership, and therefore, respectfully, I do not believe it was
implemented arbitrarily or discriminatorily, as the majority finds. For this reason, I
would hold that the Policy does not violate the Uniformity Clause of the
Pennsylvania Constitution, PA. CONST. art. VIII, § 1,1 or the Equal Protection Clause
of the United States Constitution, U.S. CONST. amend. XIV,2 and is not inconsistent
with the Pennsylvania Supreme Court’s holding in Valley Forge Towers Apartments
N, LP v. Upper Merion Area School District, 163 A.3d 962 (Pa. 2017) (Valley
Forge), and its progeny. Therefore, I must respectfully dissent.
In Valley Forge, the Pennsylvania Supreme Court held that the school
district’s preliminary objections should not have been sustained because the
appellant’s complaint had “set[] forth a valid claim that the [s]chool [d]istrict’s
appeal policy violate[d] the Uniformity Clause.” 163 A.3d at 980. Upon noting that
a salient aspect of the parties’ dispute involved the manner in which this Court had
understood the Supreme Court’s pronouncements regarding the comparative tax-
fairness requirements of the Uniformity Clause and the federal Equal Protection
Clause, the Valley Forge Court summarized two precepts it had previously
articulated and found relevant to its analysis therein as follows:
First, all property in a taxing district is a single class, and, as a
consequence, the Uniformity Clause does not permit the government,
including taxing authorities, to treat different property sub-
classifications in a disparate manner. Second, this prohibition applies
1
The Uniformity Clause of the Pennsylvania Constitution provides that “[a]ll taxes shall
be uniform, upon the same class of subjects, within the territorial limits of the authority levying
the tax, and shall be levied and collected under general laws.” PA. CONST. art. VIII, § 1. This
Court has held that the Uniformity Clause ensures that “a taxpayer should pay no more or no less
than [the taxpayer’s] proportionate share of the cost of government.” In re Sullivan, 37 A.3d 1250,
1254-55 (Pa. Cmwlth. 2012) (quoting Deitch Co. v. Bd. of Prop. Assessment, Appeals & Rev. of
Allegheny Cnty., 209 A.2d 397, 401 (Pa. 1965)).
2
The Equal Protection Clause states, in pertinent part, that “No State shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.
RCJ – 2
to any intentional or systematic enforcement of the tax laws, and is not
limited solely to wrongful conduct.
Id. at 975 (citations omitted). The Supreme Court held that these principles lead to
a conclusion “that a taxing authority is not permitted to implement a program of only
appealing the assessments of one sub-classification of properties, where that sub-
classification is drawn according to property type—that is, its use as commercial,
apartment complex, single-family residential, industrial, or the like.” Id. at 978.
The Supreme Court explained that it did not disagree with the result this Court
reached in In re Springfield School District, 101 A.3d 835 (Pa. Cmwlth. 2014),
wherein property owners had challenged a school district’s policy of utilizing a
monetary threshold to determine which properties to appeal and “did not allege a
scheme involving disparate treatment of property sub-classifications drawn
according to property type or the status of its owner as a resident or non-resident of
the taxing district.” Valley Forge, 163 A.3d at 975 n.13. The Supreme Court noted
that, instead, the school district appealed only “properties for which a recent sales
price was at least $500,000 greater than its implied market value, defined as the
assessed value divided by the” county’s Common Level Ratio (CLR). Id. at 979
n.19. The Supreme Court stressed:
We pause at this juncture to clarify that nothing in this opinion should
be construed as suggesting that the use of a monetary threshold—
such as the one challenged in Springfield—or some other selection
criteria would violate uniformity if it were implemented without
regard to the type of property in question or the residency status of
its owner. Such methodologies are not presently before the Court.
Id. at 979 (footnote omitted) (emphasis added).
In addition, Section 8855 of the Consolidated County Assessment Law (Law)
provides in relevant part that “[a] taxing district shall have the right to appeal any
RCJ – 3
assessment within its jurisdiction in the same manner, subject to the same procedure
and with like effect as if the appeal were taken by a taxable person with respect to
the assessment[.]” 53 Pa.C.S. § 8855. However, when a taxing authority exercises
this discretionary power, it must do so within “constitutional boundaries.” Valley
Forge, 163 A.3d at 980. Those constitutional boundaries are violated if a taxing
authority has a policy to appeal only “the assessments of one sub-classification of
properties, where that sub-classification is drawn according to property type[.]” Id.
at 978.
Most recently this Court discussed Valley Forge and our previous decision in
Kennett Consolidated School District v. Chester County Board of Assessment
Appeals, 228 A.3d 29 (Pa. Cmwlth.) (Kennett), appeal granted, 240 A.3d 611 (Pa.
2020), appeal dismissed as improvidently granted, 259 A.3d 890 (Pa. 2021), as
follows:
In Kennett, we considered a taxpayer’s challenge to a trial court’s denial
of its motion to quash the school district’s assessment appeal of its
property. 228 A.3d at 31. Relying on the Supreme Court’s analysis in
Valley Forge, the taxpayer argued that the school district violated the
Uniformity Clause by: (1) appealing the assessments of only
commercial properties; and (2) setting a monetary threshold targeting
properties underassessed by $1 million. Id. at 34.
On appeal, this Court affirmed the trial court’s ruling, holding:
We conclude that [the school district’s] appeal practices
did not violate the Uniformity Clause. Under Valley
Forge, [the school district’s] actions were constitutionally
firm. The record reflects that [the school district]
intentionally disregarded the type of property and, thus, it
cannot be said that [its] actions in appealing the
assessments of commercial properties were intentional.
Where, as here, a taxing authority intentionally disregards
the type of property when deciding what property
assessments to appeal, its conduct is inherently not
RCJ – 4
deliberate. Moreover, [the school district’s] actions did
not systematically target commercial properties, but,
rather, only focused on properties that would be worth the
cost and expense of an appeal. Valley Forge makes it
abundantly clear that there is a balance to be struck
between a school district’s ability to appeal an assessment
and the Uniformity Clause. Thus, a school district’s policy
that attempts to be fiscally responsible by only appealing
assessments that would generate enough revenue to justify
the cost of the appeal does not violate the Uniformity
Clause.
Id. at 37 (emphasis added). We further clarified that “[t]he mere fact
that all appealed properties were commercial does not per se create
a violation of the Uniformity Clause. This is especially so in light of
[the school district’s] intentional disregard for the nature of the
property.” Id. at 39 (emphasis added). Thus, Kennett reiterates the
principle that selection of properties for assessment based solely on
property type violates the Uniformity Clause, whereas selection
based on financial reasons, without regard to property type, does
not.
Duffield House Assocs., L.P. v. City of Philadelphia, 260 A.3d 329, 343-44 (Pa.
Cmwlth. 2021) (Duffield House) (italics in original, boldface type added).
A few weeks before our Duffield House decision, this Court decided GM
Berkshire Hills LLC v. Berks County Board of Assessment, 257 A.3d 822 (Pa.
Cmwlth. 2021) (GM Berkshire I), affirmed by an equally divided court, 290 A.3d
238 (Pa. 2023) (GM Berkshire II).3 In GM Berkshire I, GM Berkshire challenged
the school district’s use of recently sold properties as a basis for selecting properties
for tax appeal and maintained that a consideration of only a subclass of properties
that were under new ownership violates both the federal Equal Protection Clause and
Pennsylvania’s Uniformity Clause. This Court concluded that
3
Where our Supreme Court is equally divided, the effect of the split is affirmance of the
intermediate appellate court decision. Borkey v. Township of Centre, 847 A.2d 807, 814 (Pa.
Cmwlth. 2004).
RCJ – 5
the [d]istrict’s method of selecting properties for assessment appeals
comports with the Commonwealth’s present jurisprudence on the
subject of property assessment uniformity. Using recent sales prices as
part of the selection of properties for appeals is a quantitative method
of reasonably ascertaining a property owner’s fair share of the tax
burden, because such figures represent the kind of evidence of market
value that a school district must show when it appeals an assessment.
See Aetna Life Ins. Co. v. Montgomery Cnty. Bd. of Assessment
Appeals, 111 A.3d 267, 283 (Pa. Cmwlth. 2015) (“evidence of private
sales is admissible to determine fair market value”).
Further, as applied by the [d]istrict, this method employs a purely
economic approach that is practical for the [d]istrict yet does not
improperly differentiate based on property type, which is the type
of approach our Supreme Court condoned in Valley Forge [] and
which this Court subsequently accepted in Punxsutawney [Area
School District v. Broadwing Timber, LLC (Pa. Cmwlth., No. 1209
C.D. 2018, filed October 29, 2019),] and East Stroudsburg [Area
School District v. Meadow Lake Plaza, LLC (Pa. Cmwlth., No. 371
C.D. 2018, filed October 17, 2019)]. As such, we agree with the trial
court that the [d]istrict’s method did not violate either the Equal
Protection Clause of the [United States] Constitution or the Uniformity
Clause of the Pennsylvania Constitution.
GM Berkshire I, 257 A.3d at 835 (emphasis added). We also explained that we had
affirmed the trial court in Kennett based upon Valley Forge, Springfield Township,
and Punxsutawney,4
[b]ecause the evidence established that the school district used a
purely monetary approach and had not intentionally selected
property assessments to appeal based on property type (commercial
vis-à-vis residential), we held [in Kennett] no constitutional violation
occurred, reasoning that the school district’s “disregard of property type
cannot logically equate to unlawful treatment based upon property
type.” [228 A.3d] at 39. We also rejected [commercial property
owner’s] as-applied or disparate impact claim: “The mere fact that all
4
In Punxsutawney, this Court stated that even though the school district’s practice had not
resulted in any appeals of residential properties, the monetary threshold employed was facially
neutral and did not foreclose the possibility of that occurrence in the future. Id., slip op. at 9.
RCJ – 6
appealed properties were commercial does not per se create a
violation of the Uniformity Clause.” Id.
GM Berkshire I, 257 A.3d at 832. As previously stated, an equally divided
Pennsylvania Supreme Court recently affirmed this Court’s decision in GM
Berkshire I that the school district’s method of selecting properties for appeal did
not violate the Uniformity Clause. See GM Berkshire II, 290 A.3d at 238.
Herein, the School District appealed the assessment of two separate tax
parcels (Property) owned by Marchwood Apartments Owners LLC (Taxpayer),
which consist of, respectively, 6.1 and 37.5 acres, to the Chester County (County)
Board of Assessment Appeals (Board), which upheld the assessment. The School
District appealed that determination to the Court of Common Pleas of Chester
County (common pleas), and, prior to the de novo hearing, the parties stipulated that
the Fair Market Value (FMV) of the Property for the relevant years was: for the 6.1
acre parcel, $11,035,500 as of January 1, 2020, and $11,445,000 as of January 1,
2021, and January 1, 2022; and for the 37.5 acre parcel, $67,789,500 as of January
1, 2020, and $70,305,000 as of January 1, 2021, and January 1, 2022.5 (Reproduced
Record (R.R.) at 28a-30a.) The parties further stipulated that the CLR for the County
set by the State Tax Equalization Board was 49.3% for 2020, 47% for 2021, and
45% for 2022, although they did not stipulate that this was the ratio that should be
applied to the FMV due to Taxpayer’s argument that a rate comparable to that of
other apartment complexes, which were also claimed to be underassessed, rather
than the CLR, should apply. (Id. at 29a-30a.) This left the issue of the School
District’s authority to initiate the assessment appeals and if it did so constitutionally.
5
The dates for these stipulations vary throughout the record, common pleas’ Order, and
the parties’ briefs. These dates are derived from the transcript during the de novo hearing.
(Reproduced Record at 28a-30a.)
RCJ – 7
The School District presented its assessment record for the Property to establish its
prima facie case. Taxpayer then presented evidence in an attempt to rebut the
assessment record and to establish the Policy, and Section 8855 of the Law, violated
the federal Equal Protection Clause and the Uniformity Clause.
The School District initiated the assessment appeals in this matter through the
Policy, which states, relevantly:
1. The Chief Financial Officer shall annually review recent real
estate transactions and/or work with a third[-]party firm to
identify properties that may be under[]assessed.
2. The administration shall provide to the Board a list of tax parcels
which have been identified for consideration for a district-initiated
real estate tax assessment appeal for the current year. Subject to
review and approval of the Board, only property that may
potentially result in total annual additional tax revenue of
$10,000 or more to be collected in the aggregate by the taxing
districts within the . . . School District as a result of an appeal
will be included on this list.
(R.R. at 263a (emphasis added).) Per the deposition testimony of School District
employees and School District School Board Directors:6 the $10,000 threshold
related to the amount of revenue increase that would be needed to offset the costs of
an appeal; properties were chosen to appeal based on sales and independent
appraisals; and between 2012, when the Policy became effective, and 2019, when
the present assessment appeal was filed, the School District had appealed the
assessments of a variety of properties, including commercial properties, apartment
complexes, and one residential property. (Id. at 413a-15a, 419a, 421a, 482a, 488a-
90a.)
This testimony was derived from designated portions of these witnesses’ depositions that
6
Taxpayer moved into the record.
RCJ – 8
The School District’s Business Manager described the process of choosing
what properties to present to the Board for recommendation, which included
calculating the estimated costs of prosecuting the appeals and the potential increase
in annual revenue if successful. (Id. at 377a-89a, 393a-97a.) Business Manager
indicated the Property was added because “it came to the attention of Valbridge
[Property Advisors (Valbridge)] and [the School District’s] solicitors that the
[Property] met the threshold.” (Id. at 382a.) The School District’s Accounting
Supervisor, who worked for the District for almost 20 years at the time of her
deposition, explained the School District’s historic practice of utilizing recent sales
data to identify properties whose assessments it would appeal. (Id. at 446a-52a.)
Accounting Supervisor indicated that the Property was not identified by Valbridge,
but was added to the list by Business Manager due to its recent sale at a value that
would meet the Policy’s threshold, which Accounting Supervisor confirmed through
her review of property sales records. (Id. at 456a, 458a, 461a-62a, 464a-65a.)
In 2019, the School District hired Valbridge to review properties within the
School District. (Id. at 38a-39a.) Valbridge identified 15 properties believed to be
underassessed and that would meet the Policy’s $10,000 threshold. Taxpayer called
Reaves C. Lukens, III (Mr. Lukens), who works for Valbridge, to testify about the
process of selecting properties for the School District to appeal. Mr. Lukens
testified: he limited his review of residential properties to those having more than
3,500 square feet because anything smaller would be unlikely to meet the Policy’s
threshold; the choice of appealing 15 properties was based on the belief that this was
a manageable number and a concern if a change in law occurred it would reduce the
School District’s “exposure” or “risk”; and he suspected there may be more than 15
properties that could be considered underassessed but he stopped when he reached
RCJ – 9
15 properties. (Id. at 38a-42a, 44a-45a, 48a-49a, 53a-54a, 56a-57a, 61a-62a.) Mr.
Lukens agreed it was “possible” “that there were likely residences that would satisfy
the . . . threshold,” and that one commercial property was not considered because the
attorney representing the property owner was “very aggressive” on a particular tax
theory, which he considered credible in that case, that could result in the School
District losing revenue if it filed an appeal and lost. (Id. at 48a-49a, 63a-67a.)
Mr. Lukens agreed there was not a “hard and fast rule with respect to the
methodology [he] used,” but disagreed with the description of his review of the data
as being “rough justice.” (Id. at 54a.) Mr. Lukens described the process to identify
properties to appeal, which involves downloading a list of commercial properties
and residential properties over 3,500 square feet in the School District, breaking
down the commercial properties into different types, identifying average
assessments per square footage or per unit based on sales prices as to the different
types of properties, determining whether any appear, preliminarily, to be sufficiently
underassessed to warrant appeal, and, if so, reviewing the properties on an individual
basis. (Id. at 49a-54a.) Mr. Lukens uses the County’s assessment records, Multiple
Listing Service, ChescoViews, ChescoPon, CoStar, apartments.com, and general
“Googling” to identify properties. (Id. at 52a-53a.) Mr. Lukens agreed an accurate
description of the process was that Valbridge “would look at each property . . . [and]
bring them [sic] up and kind of review each property on a case[-]by[-]case basis” to
determine “the relative merits or concerns about the potential” to generate the
additional $10,000 set forth in the Policy. (Id. at 54a-55a.) Mr. Lukens
acknowledged the Property was not on his list, but was added by the School District.
(Id. at 49a.)
RCJ – 10
Taxpayer also offered the expert testimony of Peter A. Angelides, Ph.D. (Dr.
Angelides), who testified about his analysis relating to the School District’s
assessment appeals for the 2020 tax year. Dr. Angelides explained due to the
differing municipalities and tax rates, there were different amounts of increase in
value that would be needed to meet the Policy’s threshold. (Id. at 101a-02a.)
Although Dr. Angelides testified the $10,000 threshold has an exclusionary effect
on single-family properties, he nevertheless found numerous residential single-
family properties that were possibly underassessed at a level that warranted “further
investigation” as to whether they would meet the Policy’s threshold amount, but
were not appealed. (Id. at 106a-07a, 111a-13a, 119a.) On cross-examination, Dr.
Angelides acknowledged, among other deficiencies, that the majority of the single-
family properties he identified as being potentially underassessed were subject to
“Act 319” or “Act 515”7 which meant that the properties were enrolled in programs
that lowered their assessments, facts that Dr. Angelides did not take into account.
(Id. at 127a-34a, 137a-39a; Supplemental Reproduced Record (S.R.R.) at 697a,
701a.8)
Following the de novo hearing, common pleas found that the Policy was
“simply stated,” did not instruct the School District to consider the type of property
in deciding whether a property is underassessed and should be appealed, and did not
7
Act 319 refers to the Pennsylvania Farmland and Forest Land Assessment Act of 1974,
commonly known as the Clean and Green Law, Act of December 19, 1974, P.L. 973, as amended,
72 P.S. §§ 5490.1-5490.13, which is a preferential tax assessment program that bases property
taxes on use rather than fair market value. Act 515 refers to the Act of January 13, 1966, P.L.
(1965) 1292, as amended, 16 P.S. §§ 11941-11948, and also provides preferential tax assessment
treatment for enrolled properties. Both Act 319 and 515 encourage the preservation of lands for,
inter alia, agricultural, forestry, and open space uses.
8
We observe that the Supplemental Reproduced Record uses “a” following the page
number rather than “b” as required by Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P.
2173.
RCJ – 11
limit the number of appeals that can be taken in a given tax year. (Common pleas
Op. at 2.) Since the effective date of the Policy in 2012, the School District had filed
an assessment appeal of one residential property, which was supported by
Taxpayer’s own evidence. (Id. at 2-3.) Common pleas rejected Taxpayer’s
arguments that the Policy and Section 8855 of the Law violated, both facially and as
applied, the Uniformity Clause and the Equal Protection Clause. (Id. at 5-7.) It
observed that, for the purposes of the Uniformity Clause, “absolute equality and
perfect uniformity [are] not required,” all property in a taxing district is a single
class, and a taxing authority cannot treat different property sub-classifications in a
different manner. (Id.)
Common pleas further explained that the $10,000 threshold, which was
facially neutral and not dependent on classifications by property, did not, as
Taxpayer argued, effectively eliminate appeals of residential properties, as at least
one residential property had been appealed. (Id. at 7-8.) Common pleas held the
use of a monetary threshold or cost-benefit analysis is permitted under precedent,
including Valley Forge, GM Berkshire I, and Punxsutawney. (Id. at 8-10.) Common
pleas concluded there could be no as-applied violation because the School District
had, in fact, appealed a residential property’s assessment, and, even if only
commercial properties had been appealed thus far, this would not mean the property-
type neutral Policy was unconstitutional. (Id. at 9 (citing Kennett, 228 A.3d 29).)
Thus, common pleas held that Taxpayer had not met its burden of proving the
unconstitutionality of the Policy itself or its application and that Section 8855
authorized the appeal, and it accepted the stipulation of the parties regarding the
Property’s FMV.
RCJ – 12
The majority reverses common pleas’ determination despite acknowledging
that the “[P]olicy uses a monetary threshold for identifying properties for tax
assessment, which may be constitutional,” Downingtown Area School District v.
Chester County Board of Assessment Appeals, __ A.3d __, __ (Pa. Cmwlth., Nos.
92-93 C.D. 2022, filed October 6, 2023), slip op. at 16-17. Under the current state
of the law, as discussed supra, including Valley Forge and GM Berkshire I, there is
no dispute the Policy, which is based on a monetary threshold and is neutral with
regard to property classification, sub-classification, and ownership, falls within the
constitutional boundaries expected of taxing authorities in creating and using such
policies. Bethlehem Area Sch. Dist. v. Bd. of Revenue Appeals of Northampton
Cnty., 225 A.3d 212, 219 (Pa. Cmwlth. 2020).
The majority nevertheless concludes
[h]owever, [that] the School District has implemented its [P]olicy in an
arbitrary fashion. First, it chose to appeal the assessments of 16
properties even though it knew that there were many more properties in
the School District that satisfied the monetary threshold. Second, [Mr.]
Lukens testified that he “did not have a hard and fast rule with respect
to the methodology [he] used” to identify properties, and he could not
elucidate these flexible “rules” that he used. . . . R.R. 54[a]. He could
only state that he was “trying to maximize the return to the School
District.” . . . R.R. 49a, 55a. Third, [the Property] was not on [Mr.]
Lukens[’] list of properties whose assessments to appeal, and the
School District offered no explanation for the later selection of the
[Property] for an assessment appeal. Fourth, the School District
rejected a commercial property that met the monetary standard for the
sole reason that its counsel was aggressive. This selection criterion is
discriminatory on its face and unacceptable as a matter of sound public
policy.
Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 16.
Respectfully, these conclusions are not supported by the record, which reflects
that the School District’s choice to appeal 16 properties for 2019 was neither
RCJ – 13
arbitrary, discriminatory, nor a violation “of sound public policy.” Id. Rather, it is
the majority’s conclusions that are inconsistent with the well-settled legal principles
regarding the Uniformity Clause and the standard set forth by the Supreme Court in
Valley Forge.
First, it is unclear whether the School District “knew that there were many
more properties in the School District that satisfied the monetary threshold.”
Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 16. While Mr. Lukens
testified he suspected there were other underassessed properties and it was
“possible” there were single-family residences that “likely” were underassessed, he
gave no indication that he advised the School District of these facts. (R.R. at 48a-
49a.)
Second, the majority’s proposition that seemingly all (or at least more than
the 16) underassessed properties in the School District had to be appealed in a given
tax year to avoid a violation of the Uniformity Clause is inconsistent with the well-
settled principle that “[t]axation [] is not a matter of exact science” and “absolute
equality and perfect uniformity are not required to satisfy the constitutional
uniformity requirement.” Clifton v. Allegheny County, 969 A.2d 1197, 1212 (Pa.
2009) (citing Leonard v. Thornburgh, 489 A.2d 1349, 1352 (Pa. 1985)).9 “Indeed,
some practical inequalities are anticipated, and rough uniformity with a limited
9
See also City of Harrisburg v. Sch. Dist. of Harrisburg, 710 A.2d 49, 53 (Pa. 1998);
Sablosky v. Messner, 92 A.2d 411, 416 (Pa. 1952) (“[T]axation is a practical matter” and the
Uniformity Clause “requires merely substantial uniformity of taxation; absolute equality is
impractical.”); Commonwealth v. S. Pa. Bus Co., 15 A.2d 375 (Pa. 1940) (“We have frequently
pointed out that absolute equality is impracticable in taxation, and that the constitutional provision
requires merely substantial uniformity.”); Wilson v. City of Philadelphia, 198 A. 893, 895 (Pa.
1938) (“There is no such thing as perfect uniformity and equality in taxation. The best that can be
done, and all that is required, is that it should approximate uniformity and equality as nearly as
possible.”).
RCJ – 14
amount of variation is permitted so long as the taxing scheme does not impose
substantially unequal tax burdens.” Beattie v. Allegheny County, 907 A.2d 519, 530
(Pa. 2006) (citing Leonard, 489 A.2d at 1352; Sablosky v. Messner, 92 A.2d 411,
416 (Pa. 1952)) (emphasis added). One practical thing that must be considered is
the number of appeals a taxing authority, like School District, and its representatives
can reasonably handle in a given year. “Rough uniformity,” not “absolute equality
and perfect uniformity” is what is mandated by the Pennsylvania Constitution,
Clifton, 969 A.2d at 1210. Yet, perfection and absolute equality appears to be what
the majority demands.
Third, the majority’s reliance on Mr. Lukens’ statement there was “no hard
and fast rule,” Downingtown Area School District, __ A.3d at __, slip op. at 16,
disregards the remainder of Mr. Lukens’ testimony. In that testimony, Mr. Lukens
describes the process undertaken to find potential properties and perform a case-by-
case assessment of properties, regardless of type, to determine if they would meet
the threshold. (R.R. at 49a-54a.) Further, while the majority is correct that the
Property was not on Mr. Lukens’ list, the record contradicts the majority’s statement
that “School District offered no explanation for the later selection of the [Property]
for an assessment appeal.” Downingtown Area Sch. Dist., __ A.3d at __, slip op. at
16. It is apparent from the deposition testimony of Accounting Supervisor that the
Property was added to the list, with Business Manager’s approval, because it was
recently sold and a review of the sale reflected that a successful assessment appeal
would meet the Policy’s threshold. (R.R. at 456a, 458a, 461a-62a, 464a-65a.) The
selection of the Property based on its status of being recently sold is consistent with
both the Policy, which expressly authorizes the use of “recent real estate transactions
. . . to identify properties that may be under[]assessed,” (id. at 260a), and, more
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importantly, GM Berkshire I, which specifically approved the use of recent real
estate transactions as a constitutional means of choosing what properties’
assessments to appeal, 257 A.3d at 835. Thus, even if Mr. Lukens’ process was
flawed, the means by which the School District chose to appeal the Property’s
assessment was constitutionally sound. When Mr. Lukens’ entire testimony and the
constitutionally sound explanation for why the Property was added to the list of
assessments to appeal is considered, I cannot agree with the majority’s
characterization of the School District’s actions as “a piecemeal implementation of
this [P]olicy.” Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 17.
Fourth, the majority’s citation to evidence that an appeal of another
commercial property was not filed due to counsel for that taxpayer being
“aggressive” oversimplifies the School District’s decision. Downingtown Area Sch.
Dist., __ A.3d at __, slip op. at 16. It was not merely that the taxpayer’s counsel was
“aggressive,” id., but the fact that there was “a high risk of blowing up [in the School
District’s] face on appeal because [the taxpayer] could argue [the property was] over
assessed based on the dark store theory,” and it could cost the School District money
if it lost. (R.R. at 63a-65a.) Indeed, Mr. Lukens described the taxpayer’s position
as “credible.” (Id. at 66a.) It was decided that an appeal of this commercial property
“was not meritorious because of the high risk,” meaning that if the School District
lost, it would “create a further under[ ]assessment of the property and that was not a
risk worth taking.” (Id. at 65a.) It is not sound public policy or practical for a taxing
authority to appeal a high risk property and risk defeating the very purpose of the
appeal, increasing revenue.
Moreover, the majority’s rationale is inconsistent with the standard set forth
in Valley Forge and applied in other cases. Valley Forge requires that the “other
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selection criteria” used by a taxing authority, whether a monetary threshold or some
other methodology, be implemented in a neutral manner without regard for
property sub-classification. 163 A.3d at 979. In deeming the School District’s
“selection criterion [] discriminatory on its face” and a violation of the Uniformity
Clause, Downingtown Area School District, __ A.3d at __, slip op. at 16, the majority
interprets the term “implemented” without consideration of the entire context of the
Supreme Court’s holding in Valley Forge, and effectively creates new criteria that
must be met for a policy to be deemed constitutionally sound. Under the majority’s
criteria, in order for a taxing authority’s actions to be constitutional, it must establish
that it: has a neutral policy as to sub-classification of properties; used rigid
methodology for identifying properties to appeal; attempted to find all properties
that are underassessed; appealed all of those properties’ assessments without regard
to the risks of such appeals and even if it could cost the taxing authority revenue;
and relied only on a third party’s identification of properties to appeal, if such party
is hired, even if there are other neutral bases to that support the conclusion that a
property is underassessed. This is not the standard of Valley Forge or our precedent,
which recognizes that taxing authorities have discretion to choose what properties’
assessments to appeal, so long as that discretion is exercised “within constitutional
boundaries.” Bethlehem Area Sch. Dist., 225 A.3d at 219 (citing Valley Forge).
The School District here did not treat property sub-classifications in a
disparate manner as proscribed by Valley Forge, but acted in a fiscally responsible
manner by appealing tax assessments that would generate sufficient revenue to
justify the cost of an appeal, appealing the number of assessments that could
reasonably be handled in a given tax year, and avoiding appealing property
assessments that could, ultimately, result in a loss of revenue. The practice here is
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permitted by Springfield Township and found to be constitutional under Valley
Forge so long as the School District did not systematically target commercial
properties or rely on other sub-classifications, which the evidence reflects it did not.
When the standards set forth in Valley Forge and our precedent are applied to the
record as a whole, both the record and law support common pleas’ determination
that both the Policy and its implementation pass constitutional muster.
The majority further concludes that
the School District’s stated [P]olicy was to appeal assessments that
would generate more than $10,000 in tax revenue. This will garner for
the School District the entire benefit and leave over[ ]assessed property
owners bearing an unfair share of the tax burden. Even so, the School
District did not even attempt to capture each and every assessment that
would meet the monetary threshold. The monetary threshold may have
been neutral, but the implementation, perhaps too limited in scope,
created a systematic and disparate treatment of taxpayers, both the
over[ ]assessed and the under[ ]assessed.
Downingtown Area Sch. Dist., __ A.3d at __, slip op. at 18. Respectfully, I believe
the majority’s conclusions miss the mark.
Of course, the School District, as would any taxing authority, sought to benefit
itself when it appealed the Property’s assessment as being too low in order to
increase that assessment to raise revenue. That is the very purpose of that provision.
The majority cites the unfair share of the tax burden placed on over assessed property
owners, but those property owners have their own appeal rights under the Law
through which they can challenge their properties’ assessments and seek a reduction.
Sections 8844, 8854 of the Law, 53 Pa.C.S. §§ 8844 (allowing for appeals to a
county board of assessment appeals by property owners of valuations and
assessments), 8854 (authorizing further appeals by both property owners and taxing
authorities to county courts of common pleas and to the state’s appellate courts). To
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hold that a taxing authority’s appeal of a property’s tax assessment violates the
Uniformity Clause and Equal Protection Clause because it does not also somehow
act to reduce the tax burden on over assessed property owners, who have their own
appeal rights, effectively renders the relief afforded to taxing authorities illusory.
And, as discussed supra, the Uniformity Clause does not require “absolute equality
and perfect uniformity.” Clifton, 969 A.2d at 1212. Thus, contrary to the majority’s
position, the School District was not required to “attempt to capture each and every
assessment that would meet the monetary threshold,” Downingtown Area School
District, __ A.3d at __, slip op. at 18, as requiring it to do so would demand absolute
and perfect equality.
Finally, the majority’s statement relating to the alleged disparate treatment of
underassessed properties could be viewed as meaning that the Uniformity Clause is
violated because the Property is unfairly being treated differently than other
underassessed properties. Id. at __, slip op. at 2 (citing Taxpayer’s argument that
the reassessment “has left the [Property] over assessed when compared to other
apartment complexes in Chester County”), 18 (stating that the implementation of the
Policy “created a systematic and disparate treatment of taxpayers, both the over
assessed and the under assessed”). Even if there was some disparate treatment, it is
well-settled law that “a property owner is not entitled to have his assessment reduced
to the lowest ratio of assessed value to market value to which he could point” where
the property owner “has, in fact, not been assessed at more than the common level
in the district.” Deitch Co. v. Bd. of Prop. Assessment, Appeals, & Rev. of Allegheny
Cnty., 209 A.2d 397, 401 (Pa. 1965). Thus, the relief in such cases is the application
of the CLR, not some lesser value, to the property at issue. Id.; Downingtown Area
Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals (LTK Assocs., LP), 131 A.3d
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152, 157 (Pa. Cmwlth. 2015); Appeal of Sullivan, 37 A.3d 1250, 1256 (Pa. Cmwlth.
2012); Smith v. Carbon Cnty. Bd. of Assessment Appeals, 10 A.3d 393, 402 (Pa.
Cmwlth. 2010). Common pleas here applied the County’s CLR to the stipulated
FMVs of the Property, which is consistent with our jurisprudence.
I do not disagree that “a countywide reassessment corrects all mistakes,”
Downingtown Area School District, __ A.3d at __, slip op. at 17, but until such time
as the General Assembly requires those reassessments be performed at set intervals,
taxing authorities are authorized to appeal the assessments of properties they believe
are bearing too little of the tax burden so long as they do so within the established
constitutional boundaries. Because I would conclude that the Policy and the School
District’s implementation thereof stand on firm constitutional ground and believe
that the majority sets the constitutional bar so high that it nullifies, for all practical
purposes, the ability of taxing authorities to utilize Section 8855 of the Law, I must
respectfully dissent.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
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