*1 my Dissenting Opinion Gray, man and
would reverse the trial court’s’ decision
granting summary judgement.
Accordingly I dissent. CLUB,
THE LAKE NAOMI INC.
Association, Inc.,
v.
MONROE COUNTY BOARD OF
ASSESSMENT APPEALS and County, Appellants. Pennsylvania.
Commonwealth Court of
Argued April Aug.
Decided Tannersville, Love, appel-
Mark S. lants. Catina, Stroudsburg, appel-
Janet K. lees. McGINLEY, SMITH, Judge,
Before JIULIANTE, Judge. Judge, and Senior McGINLEY, Judge. County of Assess-
The Monroe (Board) and Monroe (County) (collectively, Appellant) from an order of the Court Common (common pleas Pleas of Monroe court) Board’s order and that reversed the the Tax Assessor directed the Board and comply pro- with the of Monroe *2 5105(b)(1) except visions of of the Uni- Trails subdivisions approximately (Act), Community twenty-five property form the Planned owners outside 5105(b)(1).1 Lake Naomi and Timber Trails subdivi- memberships sions who have held since Club, Appellant and the Lake Naomi the the of beginning development (Club) Inc. and Timber Trails Further, employ- Communities in 1963. (Association) Association, (collectively, Inc. the the ees of are allowed to use Club Appellee) following: to the Property amenities of on the appeals 2. Count I of the assessment compensation; their a small number raises a issue whether legal regarding in a people community who serve the the ... applicable is to subdivi- [Act] as members of capacity, volunteer such prior sions existence to its effective fire, al- police ambulance crews are and or only prospectively to new subdi- Prop- to lowed use the amenities on the visions. al- erty; guests of members are 3. are [Club] [Association] by play golf, accompanied lowed to when nonprofit and ex- corporations organized member, more than times not ten isting laws of under the the Common- year being with to the a fee Pennsylvania. wealth of time the accompanying members each 4. Both the Association and the Club is privilege extended. 2, February came into existence 2, Prior subsequent 9. 1997, [the which is the effective date of 1997, the as- Property annually was Act]. by taxes sessed ... Monroe imposed.... were There was annually change year for the assessment Stipulation Fact And Law 2000. 10. The filed with ... [the] Club property 7. Association owns (the Appeals of Assessment subdivision, including the Timber “Appeal”) from those assessments property Property Identification with hearing Appeal the A on the 2000. (the “Property”)2, Number 19/119136 Board of Assessment by was held rights exclusive easement 1999. Subse- Appeals October rights have been to use quently, by dated letter October conveyed. 1999,3the Appeal denied.... Property 8. The is for exclusive use is a fee-paying members of the Associ- Timber Trails subdivision Club, live
ation and the all of which within definition [Act], within the Lake Naomi and Timber stated in 5103.4 Pa.C.S.A. reassigned opinion year.” 1. This Letter of October case was to Lake at July writer on Thomas J. Hill Naomi Club 1; (R.R.) Reproduced at 4a. Record 2. The is a and was as- "planned 4.Section of the Act defines $51,210. sessed market value of community” as: person, As- 3. The Letter stated that Board of Real “[t]he meeting ownership open in an has virtue sessment estate, become your decided that assessment is in order” covenant, "[t]herefore, obligated agree- your property easement or unchanged for the on the owner’s interest will remain from that set to the effective date 12. The is both ‘controlled munities created fa- asserts that if the cilities’ and ‘common of the Act. facilities’ iyi [Act], retroactively existing applied stated 68 Act definitions Pa.aS.A. common areas will be removed from the *3 Appellant will be denied a tax rolls 13. The is not ‘convertible valid assessment.6 estate’ or real ‘withdrawable real estate within the stated in the definitions 5105(b) Section [Act], § (emphasis Pa.C.S.A. 5105(b) provides: added). there is Taxation and assessment. —If Club, Stipulation Lake Naomi between declarant, a unit owner other than a Inc., Associa- separately each unit must be taxed and tion, Board of Assessment assessed. The value the unit shall County, May and Monroe appurte- that include the value unit’s 1-4; Paragraphs 2-4 and 7-13 at facilities, nant common R.R. at 13a-16a. excluding convertible or withdrawable pleas
The common
court
sustained
following
apply
real estate.
shall
Club’s and the Association’s
(1)
provided
as
Except
paragraph
that
prohibited
concluded
(2),
value shall
no
of common or controlled facilities and
be attributed to and no
therefore the
could not be as-
shall be
common fa-
sessed and taxed separately.
cilities or controlled facilities.
(2)
appeal5 Appellant
On
contends
or withdrawable real
Convertible
separately
Section
of the Act should not
estate shall be
taxed and
applied retroactively
planned
expiration
be
to all
corn-
assessed until
taxes,
pay any
amount for real
should decide this case on a case stated
insurance, maintenance,
repair,
improve-
Appellee contends that
this Court
basis.”
ment, management,
regu-
administration or
jurisdiction
does not have
to address the mer-
any part
lation of
of the real estate other
argument
present
mat-
its of this
because
solely by
than the
or interest owned
pleas
ter was submitted to the common
court
person.
coopera-
The term excludes a
basis,
on a "case stated”
condominium,
a
tive and
but a condomini-
Appellee sought
pleas
to have the common
cooperative may
planned
um or
of a
judgment
and final
in the
court enter
full
community.
purposes
For
of this defini-
matter.
tion, 'ownership'
holding
includes
a lease-
provides that the "[c]om-
Pa.RX.P. 1038.2
years,
hold interest of more than 20
includ-
abol-
procedure
mon law
of a case stated is
ing
options,
renewal
in real estate. The
pro-
Note to Pa.R.C.P. 1038.2
ished.” The
campground
term includes nonresidential
procedure
common law
of a
”[t]he
vides
communities.
required
longer
in view of
case stated
practice
submitting
a case on
5. This Court’s review in a tax assessment case
by judge
jury.
without a
facts for decision
is limited to a determination of whether the
See Rule 1038.1.” Section 705
pleas
supported
court’s decision is
evidence,
Eighth
"Fourth to
Class
Assessment
by substantial
whether the common
Law,
May
P.L.
as
pleas
Act of
court erred as a matter of law or abused
amended,
Holiday Inn v.
72 P.S.
5453.705
its discretion. Wilkes-Barre
board,
ap-
Appeals,
any person party to the
Board Assessment
”[t]he
Luzerne
(Pa.Cmwlth.1996).
pleas, may ap-
wealth before the effective Any facilities.” real es- “Controlled only subpart; but those sections planned community, tate within a wheth- respect events and circum- to unit, er or a not a not a of that is the date occurring stances after effective maintained, im- facility is but do invalidate this and not subpart of proved, repaired, replaced, regulated, existing provisions specific contained managed, the insured declaration, bylaws or provisions the of association. planned those com- plats and plans of added). (emphasis munities.
Appellant Appellee stipulated and the a “con Property qualifies that as both 5102(b) un- of Act is Again, the Section facility]” trolled facility]” “common date of ambiguous. Firstly, the effective Act, as defined in Section 5103 of the 68 (the 2, 1997, Act the Act was § Para Stipulation, Pa.C.S. 5103. See 1996, 19, law became on December Also, graph Appellant Appellee later). forty-five days became effective that is neither Secondly, stipu- Appellee “convertible real estate” nor “withdrawa a planned lated that is communi- Here, language of ble estate.” of the prior created to the effective date unambiguous. Section 5105 of Thirdly, Stipulation, Paragraph Act. See Appellant “shall” not attribute events, namely ques- all relevant separate to a impose value was tax 1999 and tioned assessment definition, Property. “By tax year took to calendar applied [and][a]ecordingly, mandatory ‘shall’is subsequent date of place to effective statute’s there is room to overlook the Lastly, Act. annual each plain language to reach a different result.” sepa- a a imposition each annual tax is Computer Corp., 548 v. Link Oberneder 5102(b) Therefore, event. Section rate 201, 205, (1997), citing A.2d Pa. 696 148 1921 the Stat- the Act controls. Section Commissioners, Pa. Coretsky v. 520 Bd. Of Act, utory Construction (1989). A.2d the words of stat- “[w]hen ambiguity, ute are clear and free However, Appellant asserts disregarded not to the letter it is be ap Act of the must not be Section 5105 pretext law.” pursuing under the retroactively planned to plied communities of the created effective date Next, Appellant the term contends that rejects argument. Act. This this “only with and circum- events after the occurring 68 Pa.C.S. stances effective Section 5102 5102(b) subpart”, found Section provides: County of Assessment require must construed to the Monroe assessment, Appeals and the Tax Assessor of Monroe countywide at which time the comply explicit provi- with the in- comply shall with the Act “to 5105(b)(1) of the Uniform sions of Section appurtenant clude the value of that unit’s (Act), Planned in the common so that facilities” 5105(b)(1).1 The order in the resulted each unit is accurately “separately striking real estate taxed and assessed.” See Section of the Act. 2000 tax on the Timber Appellant’s interpretation of Section course and related common amenities 5102(b) is upon flawed based the clear the Timber Trails subdivi- 5105(b)(1) language of Section of the Act. sion, planned community.2
Appellant may not attribute question presented in this facility. value to a common 5105(b)(1) ap- whether of the Act Accordingly, we affirm.7 plies retroactively communities created the Commonwealth ORDER *5 effective date of the Act on NOW, AND day August, this 23rd correctly this Appellants note that 2001, the order of the Court of Common case involves the continued real estate tax Pleas of Monroe in the above- treatment of the Timber Trails captioned matter is affirmed. golf question course and that of the taxability golf of the Owners’ course was SMITH, Judge, Dissenting. decided to enactment of the Act Community to Timber I Trails Ass’n v. Coun- Majority’s dissent from the decision Monroe, affirm the order of the Common 150 Pa.Cmwlth. 614 A.2d (1992).3 Pleas of County, required Majority does not cite they ty” per- contends that are entitled to as real estate with to which counsel fees. holding ownership any Pa.R.A.P. 2744 sons appellate may "an court award ... reason- may of the real estate are or become covenant, able counsel fees if it determines that an agreement by liable easement or solely delay is frivolous or taken for or pay expenses an amount for taxes and other participant against that the conduct of the parts property for other than those dilatory, whom costs are to be parts persons. solely owned The Act obdurate or vexatious.” Our review of any defines "common facilities” as real estate any record and the briefs fail to establish such planned community, within a which is either part Appellant, deny conduct on the and we association, by the and does owned or leased Appellee's request. designated a unit not include ownership occupancy. or Id. fa- "Controlled 5105(b)(1) prohibits imposition 1. Section defined real estate in a cilities” are as of real estate taxes on or common facilities planned community which is not a common planned community, controlled facilities in a maintained, repaired, facility improved, but is applies retroactively and the Act to a replaced, regulated or otherwise controlled community created in the Commonwealth facility may an association. A controlled long to the effective date of the Act so as Id. not be of a unit. affecting the events and circumstances after the effec- occurred Court, banc, sitting 3.The en held in Timber tive date of the Act. See Section Community golf Ass’n that the Owners’ Act, amended, 5102(b). as purposes value tax assessment course had years 1990 tax because the amended for the 1989 and as property easement “planned communi- owners had non-exclusive defines of common or prohibition against nor the Ass’n facilities. court, upon by the trial case relied Development Corp. v. Lackawan E.L.C.A agree Appellants’ argument I initial Appeals, na Board Assessment apply retroactively Act should not that the (Pa.Cmwlth.2000). 752 A.2d the Owners’ property in this case because the assess- I parties stipulated that Count represents an event that occurred appeal raised a the Owners’ assessment effective date of the Act. The prior to the applies ret- legal issue of whether or occurrence that requires an event in existence roactively to subdivisions be- date of the occurs after the effective They date of the Act. fore the effective thing happening represents some Trails sub- also that the Timber that al- distinguished something planned community; is a that the division as well that ready agree exists.4 existed golf Owners and the before relying on E.L.C.A. trial court erred Act; date of the that the the effective the issue of Development Corp. because annually course was assessed before directly was not retroactivity of the Act Act; that the after the effective date of The issue before addressed that case. property represents both common trial court and before this Court facilities; and that estate tax appeal by taxpayers and controlled from real for 1998 and thereafter was convertible nor with- assessments property neither con- whether the assessed pursuant to Section drawal real estate real estate.5 vertible withdrawable 5105(b)(2). and/or parties’ stipula- Based on the tion, the trial court concluded the Court Appellants are correct *6 by the deci- matter was controlled Court’s provision interpret retroactivity must Corp. and Development sion in E.L.C.A. consistently Act with of Section 5105 of the construction, against statutory princi- that the tax assessment reasoned the rules of Legislature that the does pally violated the Act’s the rules golf the Owners’ course course, community. golf See 68 Pa.C.S. rights which flexible to the common area proper- golf membership to individuals who Convertible or withdrawable extended golf separately assessed and taxed until it is were not lot owners. The course $51,210, Ap- longer a market value of assessed convertible or withdrawable. golf 5105(b)(2). pellants against were assessed taxes Pa.C.S. before and after the effective date of course Development Corp. the Court In E.L.C.A. from a coun- the Act. The assessment resulted trial court’s determination that reversed the properties tywide of all effective ex- subject parcels of land were not the six year. the 1989 tax taxation empt from assessment and properties were convertible because the 1968) (4th Dictionary Ed. 4. See Black’s Law estate. The Court withdrawable real and/or (“event” something that comes to connotes parcels convertible or that the were not ruled an inci- pass an "occurrence” connotes merely because withdrawable real design happens or dent or event that without could at some members of the association expectation). common area real future time vote to sell estate, they common or con- but were instead real estate refers to that 5. Convertible separately assessable or tax- trolled areas not community is not within a of a flexible which any parcels or unit, the Act. If were sold able under building containing which addi- units, developed additional units or limited with limited common or controlled tional facilities, at that then common or controlled any may be facilities or combination thereof created, separately they time could withdrawable real estate refers taxed. be withdrawn from to real estate not intend an absurd or re- unreasonable Thomas W. WHITEFORD a violation of
sult or the constitution public any pri- favors interest v. (3) (5) 1922(1), vate interest. Section Statutory Construction Act Pennsylvania, COMMONWEALTH (3) (5). 1922(1), For DEPARTMENT OF TRANSPORTA- logically retroactivity TION, LI- BUREAU OF DRIVER provisions of the Act there must be some CENSING, Appellant. occurrence,
event not exist or did of Pennsylvania. Commonwealth Court regular occur a routine or before basis and after the effective Act. date of the July Submitted Briefs County’s regular assessment and Aug. Decided of real is not such an event or occurrence. agree therefore Appellants only logical construction
5102(b) of the Act require- would be the reassessment, countywide of a
event occurrence after the effective date Act. At that time Monroe delete
could
from the tax rolls and add value to the
individual owners’ units. each community unit in a planned estate, parcel
constitutes of real
including rights facilities,
and the unit’s value shall include the value unit’s common facilities. 5105(b). 5105(a), §§
See 68 Pa.C.S. Be- *7 ruling
cause the trial court erred County’s assessment for
2000 violated the prohibition Act’s
the taxation of common or of communities, in planned order should
court’s be reversed of the Board
decision reinstated.