Harley-Davidson Motor Co. v. Springettsbury Township
Harley-Davidson Motor Co. v. Springettsbury Township
Opinion of the Court
OPINION
This appeal by allowance involves the proper determination of the fair market value of a commercial/industrial property for purposes of property tax assessment, including consideration of environmental contamination, remediation, and stigma, as well as the potential for future subdivision of the property. For the reasons that follow, we affirm in part, and reverse in part, the order of the Commonwealth Court and remand the matter to that court, for remand to the Court of Common Pleas of York County, for further proceedings consistent with this Opinion.
The factual and procedural background of this appeal is as follows. This matter concerns a 229.24 acre parcel of commercial/industrial property situated at 1425 Eden Road, Sprin-gettsbury Township, York, Pennsylvania, which is currently owned by Appellee Harley-Davidson Motor Company (“Harley-Davidson”). Approximately 110 acres of the parcel contain buildings and other improvements, and the remaining 119 acres are considered “excess” land. Previously, the United States Navy, from 1941 until 1964, and, later, a private firm, American Machinery and Foundry Company (“AMF”), with whom Harley-Davidson merged in 1969, used the parcel to operate a weapons manufacturing plant and, in the course of
Subsequently, in 1995, in the course of extant environmental litigation, the United States, the United States Department of Defense, and the United States Department of the Navy (collectively, the “United States government”) and Harley-Davidson executed a settlement agreement.
In 2003, the Assessment Office of York County (“Assessment Office”) notified Harley-Davidson that it intended to increase the parcel’s property tax assessment. Harley-Davidson filed an appeal with the York County Board of Assessment Appeals (“Board”), which affirmed. Harley-Davidson then filed a de novo appeal in the trial court. Appellant Central York School District (“School District”) intervened, and the parties proceeded to a three-day bench trial to determine the parcel’s assessments for tax years 2004 through 2010, pursuant to the Second Class A and Third Class County Assessment Law.
The case proceeded to a bench trial before Judge Stephen P. Linebaugh. At trial, both parties offered experts in support of their positions regarding valuation of the property. The experts considered the three traditional approaches to valuation, discussed below in greater detail: the cost approach, the comparable sales approach, and the income approach. As the trial court concluded, and the parties agreed, the cost approach, which considered reproduction or replacement costs of the property, less depreciation and obsolescence, was not applicable to the property. The testimony before the trial court focused on the comparison approach, which compares sales of property of similar size, type, and location of the property, and the income capitalization valuation approach, which considers fair market value by dividing the subject property’s annual net rental income by an investment rate of return. Jackson v. Bd. of Assessment Appeals of Cumberland Co., 950 A.2d 1081, 1084 n. 1 (Pa.Cmwlth. 2008).
The School District relied largely upon the testimony of Stephen Fulton, an expert in environmental contamination, and, particularly relevant for this matter, Bernard Camins, an expert witness in real estate appraisal. Camins testified that,
Tax Year Market Value
2004-07 $24,500,000
2008 $26,500,000
2009 $24,500,000
2010 $18,000,000
See Letter from Camins Associates to Philip H. Spare, Esq., 1/14/2011, at 4 (R.R. at 562a). In providing his valuation, Camins repeated numerous times that he had made his conclusions based on an evaluation of the property in its current state, and not as if it were already subdivided or developed.
Camins further testified that he considered the parcel’s environmental contamination in arriving at his valuation. Specifically, Camins indicated that, since the 1995 agreement made the United States government and Harley-Davidson jointly responsible for remediation, and since the environmental degradation of the property itself would not preclude the type of development he contemplated, his appraisal was not changed as a result of the contamination. However, Camins noted that, regardless of whether environmental damage to the property would give rise to expense, the associated stigma reduced its market price, and, thus, he applied an across-the-board 5% reduction to his appraisal. Consequently, Camins’ final determinations of market value were as follows:
*147 Tax Year Market Value
2004-07 $23,000,000
2008 $25,000,000
2009 $23,000,000
2010 $17,000,000
See id.; N.T., 1/24/2011, at 329.
Harley-Davidson offered the expert testimony of Elliott Weinstein. Weinstein concluded that owner-occupied industrial uses were the highest and best use of the property, employed a “cost-to-cure” approach to environmental remediation, discussed below, which was not based upon the 1995 settlement agreement, and ultimately opined that the market value of the property was as follows:
Tax Year Market Value
2003 $7,800,000
2004 $7,800,000
2005 $7,500,000
2006 $7,300,000
2007 $7,800,000
2008 $8,800,000
2009 $9,100,000
2010 $6,600,000
See N.T., 1/24/2011 at 110,149,152-53.
The trial court rejected Weinstein’s expert testimony as not credible. Specifically, the court found, inter alia, that his estimates of a lower fair market value of the property were without support; his comparisons to similar properties were not based on owner-occupied industrial users; he changed his opinion of the highest and best use of the property throughout his report; and his treatment of the environmental conditions on the property and valuation approaches were inconsistent.
Ultimately, the trial court found for the Board and the School District, crediting Camins’ testimony, and specifically finding the highest and best use of the property was for warehouse and office use with excess land being suitable for development, and, importantly for purposes of this matter, that the fair market value conclusions of Camins were based on the present condition of the property, and not as if the property had been subdivided. However, without explanation,
Assessed Value Tax Year
2004-07 $24,500,000
2008 $26,500,000
2009 $24,500,000
2010 $18,000,000
Trial Court Opinion, Findings of Fact and Conclusions of Law, 1/8/2013 at 12.
Harley-Davidson timely appealed to the Commonwealth Court, claiming, inter alia, that: (1) the trial court erred in relying on Camins’ report because, contrary to the Commonwealth Court’s decisions in Air Products and Chemicals, Inc. v. Board of Assessment Appeals of Lehigh County, 720 A.2d 790 (Pa.Cmwlth. 1998), and Craftmaster Mfg., Inc. v. Bradford County Board of Assessment Appeals, 903 A.2d 620 (Pa. Cmwlth. 2006), Camins had valued the property not in its current condition, accounting for prospects of subdivision and development, but, rather, as if it were already subdivided and developed; and (2) the trial court erred in relying on Camins’ report because Camins did not properly account for the effect of the parcel’s environmental contamination upon market price and, also, applied an arbitrary stigma reduction.
In a published opinion, a divided Commonwealth Court affirmed in part, and vacated and remanded in part. In re: Appeal of Harley-Davidson Motor, 80 A.3d 506 (Pa.Cmwlth. 2013). Regarding Harley-Davidson’s initial claim, the Court observed that, pursuant to, inter alia, Air Products and Craftmaster, an appraisal must be based on the property in its current state, considering its potential for development, but that valuation of the property may not be made as if it were already subdivided and developed. The court noted that, in Craftmaster, it reviewed a trial court’s acceptance of an expert’s appraisal of market value wherein the expert had “viewed the Property as three separate tax parcels and assigned separate values” to each parcel, and rejected that appraisal because, inter alia, it found that the method evaluated the property as if it had already been subdivided and developed. In re: Harley-Davidson, 80 A.3d at 520 (quoting
With respect to Harley-Davidson’s second claim, the Commonwealth Court observed that, notwithstanding the 1995 settlement agreement, Harley-Davidson’s participation in federal and state remediation programs required, inter alia, that it not sell the parcel for any non-commercial, non-industrial purposes, and that it require any purchaser to continue maintenance of engineering controls to monitor environmental conditions at the site. Reasoning that these restrictions would certainly affect the parcel’s market value, the Commonwealth Court rejected Camins’ and the trial court’s conclusions to the contrary as unsupported by substantial evidence. Moreover, the Commonwealth Court agreed that Camins’ and the trial court’s application of a 5% stigma reduction was essentially arbitrary, in that there was no evidence of record detailing how Camins’ arrived at that number, and, thus, found the same was likewise unsupported by substantial evidence. Accordingly, the court vacated the trial court’s order and remanded to the trial court with instructions to properly calculate the assessed value, with due consideration of Harley-Davidson’s environmental obligations, using a discernable evaluation of environmental stigma, and without impermissibly evaluating the property as subdivided.
Then-Judge, now-President Judge, Pellegrini filed a concurring and dissenting opinion. President Judge Pellegrini opined that the majority had usurped the factfinder’s function in rejecting Camins’ professional judgment with respect to the stigma’s effect on market price, which he reasoned was itself substantial evidence, as an expert “guess.” In re: Harley-Davidson, 80 A.3d at 523 (Pellegrini, P.J., concurring and dissenting). The dissent noted that there was no allegation that Camins’ opinion in this regard was based upon facts outside of the record, on assumptions contrary to established fact, or on other impermissible factors. Thus, according to the dissent, the matter of environmental stigma went to the
The School District filed a petition for allowance of appeal with this Court, which we granted as to the following two issues:
(1) Whether the trial court properly considered reasonably foreseeable hypothetical ways in which the property could be used by potential buyers to determine what a willing buyer would pay for the property consistent with the holdings in Craftmaster Mfg., Inc. v. Bradford County Board of Assessment Appeals, 903 A.2d 620 (Pa.Cmwlth. 2006) and Air Products and Chemicals, Inc. v. Board of Assessment Appeals of Lehigh County, 720 A.2d 790 (Pa.Cmwlth. 1998)?
(2) Whether the trial court followed Commonwealth Court precedent and properly considered the impact of environmental conditions by reviewing the settlement agreement, interpreting Pennsylvania’s Land Recycling and Remediation Standards Act (Act 2), accepting the opinion of an expert appraiser, and applying a five percent reduction in value for stigma?
Harley-Davidson Motor Co. v. Springettsbury Twp., 626 Pa. 408, 97 A.3d 729 (2014) (order). In reviewing a tax appeal, the appellate court must determine whether the trial court abused its discretion, committed an error of law, or rendered a decision unsupported by the evidence. Safe Harbor Water Power Corp. v. Fajt, 583 Pa. 234, 876 A.2d 954, 966 n. 12 (2005): Appeal of Marple Springfield Ctr., Inc., 530 Pa. 122, 607 A.2d 708, 709-10 (1992).
In its first issue raised on appeal, the School District initially offers that the starting point for an appraisal is to determine the “highest and best use” of the property. The School District points out that the lower tribunals determined, consistent with Camins’ testimony, that the highest and best use of the property is not as a single user manufacturing
Further, the School District maintains that the substantial evidence supports the conclusion that the property was not valued as if already subdivided. Specifically, the School District offers Camins’ negative response to the question of
The School District also points to eminent domain cases as an analogy to the proper approach in determining fair market value, as such cases involve highest and best use determinations, as well as the use of hypothetical subdivision to show the best value of property. Stressing the appropriate standard of review, the School District urges that the trial court did not abuse its discretion, committed no error of law, and based its decision on the substantial evidence of record, and, thus, that the Commonwealth Court’s order vacating the trial court’s determination should be reversed.
Harley-Davidson rejects the School District’s claim that Camins did not value the property as if it were already subdivided, but that he only addressed the highest and best
Finally, Harley-Davidson dismisses the School District’s analogy to eminent domain valuation, noting that fair market value is more broadly defined under the Eminent Domain Code as the price agreed to by a willing and informed seller and buyer, and contemplates factors such as the present use of the property and its value for that use, the highest and best reasonably available use of the property and its value for that use, the machinery, equipment, and fixtures forming part of the real estate, as well as other factors.
The General Assembly and this Court have set forth the foundational principles for the determination of the fair market value of property for tax assessment purposes. A property is to be assessed at its actual value. 53 Pa.C.S. § 8842 (previously 72 P.S. § 5020-402(a)).
In Air Products, supra, the Commonwealth Court applied the foregoing principles to conclude that, although a property’s market value must incorporate its potential for subdivision and development, an appraiser must value the property as it stands, and not assume that potential has already been realized:
*156 In other words, hypothetical ways in which the property could be used by potential buyers should be considered in determining what a willing buyer would pay for the property. That is not to say, however, that the property should be valued as though it were already in that hypothetical condition. For instance, a large farm may have greater potential value if the land were subdivided into one acre lots for single family homes, but while that potential must be considered, the property may not be taxed as though it were currently subdivided and developed.
Air Products, 720 A.2d at 793-94. Therein, the court referenced F & M Schaeffer's fair market value analysis, and its distinction between “value-in-exchange” versus “value-in-use,” and explained that reasonably foreseeable prospects for a property which exist at the time of valuation may be considered in analyzing a property’s fair market value (value-in-exchange). The Commonwealth Court found that a parcel’s fair market value incorporates its potential for sale for future uses, but this potential is distinct from the property’s actual value to a specific user (value-in-use), which, as noted above, the court considered not a reflection of fair market value and not relevant in tax assessment determinations.
Eighteen years later, in Craftmaster, the Commonwealth Court similarly rejected an analysis that embraced a comparable sale analysis and assigned a separate value to various structures, hypothetically, as though they were already in the subdivided condition. Craftmaster, 903 A.2d at 631-32. In so doing, the court opined that hypothetical, but reasonably foreseeable, uses of the property for valuation are permissible in the valuation calculus, but subject to limitations:
This Court does not agree that [the appraiser’s] opinion represented a reasonably foreseeable prospect for the Property which existed at the time of his assessment. Although he couched his opinion in terms of the probable market value, there was no evidence that Craftmaster had any present (or future) intention of selling those structures as residences. In fact, the evidence indicated that the reason that the owners sold their homes in the first place was*157 because of their undesirable location next to the plant. There was also no indication that the Property, which was located in an industrial zoning district, would or could be subdivided and rezoned residential. [The appraiser’s] opinion was purely speculative and the precise type of valuation testimony proscribed by [inter alia, Air Products ]. [The appraiser] should have based his value on the Property as is, rather than its value when configured into its hypothetical highest and best use.
Id. at 682 (internal citations and quotations omitted; footnote omitted). The Commonwealth Court’s approach in Air Products and Craftmaster is in accord with this Court’s teachings in F & M Schaeffer: that ways in which a property hypothetically could be used by potential buyers are properly considered by an expert in evaluating what a willing buyer would pay for a property; however, the subject property should not be valued as though it were already in that hypothetical condition. The parties have offered no reason, and we discern none, to depart from this standard.
As noted supra, the Commonwealth Court determined that Camins valued the subject property as if it had already been subdivided, and developed, in contravention of Air Products and Craftmaster, the view proffered by Harley-Davidson. Review of the entire record, however, including Camins’ credited testimony and the trial court’s opinion, demonstrates that this was not the case. As emphasized by President Judge Pellegrini in his concurring and dissenting opinion, the record establishes that Camins’ purpose in referring to a hypothetical subdivision was merely to show the use to which the land was best adapted and the property’s highest and best use. Specifically, as noted by the School District, Camins determined the highest and best use of the property was as a warehouse and office space, with excess land suitable for development, and, in doing so, made clear that he did not assume the property was currently subdivided. See, e.g., N.T. 1/25/2011, at 847-48. Indeed, Camins testified that he considered what amount a developer would pay—in the current market and in the property’s current condition—to obtain and develop the parcel,
Pursuant to F & M Schaeffer, Air Products, and Craftmaster, such an approach was not only appropriate, but necessary: a parcel’s fair market value is the amount buyers will pay for it, which depends, at least in the realm of commercial/industrial property, on the amount buyers must put into improving the parcel, and what they can expect to receive from such purchase. Indeed, akin to the farm analogy used by the Commonwealth Court in Air Products, Camins considered the property’s potential for future subdivision, but did not value the property as if already subdivided and developed.
Further, while both parties cite Camins’ testimony regarding the hypothetical ways in which the property could be used by potential buyers, “Complete Appraisal Self-Contained Report” (“Appraisal”), 7/26/2006, at 49, 60, 63, and Exhibit A-4, we are persuaded, as was the trial court, that Camins’ consideration of the hypothetical ways in which the property could be used to determine the highest and best use was appropriate. Specifically, Camins testified in this regard: “[t]he large size of the site suggests subdivision of the land could occur;” “[t]he buildings could be sold in bulk or subdivided and sold to various users;” due to a “significant amount of excess land, east and south of the main buildings that have the potential for subdivision;” and area “north and east of [the plant] could be subdivided into smaller parcels, which would be suitable for warehouse, and distribution type uses.” Id. at 49-50 (emphasis added). These statements demonstrate that Camins determined the highest and best use of the property by considering hypothetical ways in which the property could be used by potential buyers, and not by valuing the property as if it were already subdivided.
Thus, we are constrained to hold that, under these facts, the Commonwealth Court misapplied its prior decisions
The School District offers that fair market value determination becomes more complex when the property presents environmental issues, and asserts that Pennsylvania law, while requiring that environmental contamination be considered as part of the determination of fair market value, mandates no specific approach for valuation of contaminated property. It argues that the trial court’s findings were based upon the substantial evidence of record, including Camins’ fair market value determination. According to the School District, the trial court properly considered a number of factors with respect to environmental degradation, including a settlement agreement under which 100% of the environmental remediation costs were to be paid by the United States government or Harley-Davidson; the fact a remediation fund has been established; and the fact that, under the Pennsylvania Department of Environmental Protection’s model buyer-seller agreement under Pennsylvania’s Act 2 Program—used to facilitate the purchase of property while remediation of property contamination is ongoing—a buyer may purchase contaminated property and obtain protection from potential environmental liability. Thus, the School District maintains that the Commonwealth Court erred in concluding that the trial court erroneously credited Camins’ testimony on the ground that his
Related thereto, the School District further rejects Harley Davidson’s suggested cost-to-cure approach which, the School District avers, is inapt, as, again, any prospective purchaser would not be responsible for the cost of environmental remediation. While possibly appropriate where there are no binding and enforceable agreements for remediation in place, the School District claims that the cost-to-cure approach is divorced from the unique reality of the property sub judice.
In response, Harley-Davidson disputes the School District’s claim that the settlement agreement and the model buyer-seller agreement insulate the buyer from responsibility for the environmental degradation of the property, and, thus, that only environmental stigma is at issue. According to Harley-Davidson, the agreement does not limit existing or future claims of any environmental regulator; the parties reserve the right to seek redress from those not a party to the agreement; any expenditure is subject to the availability of appropriated funds; the agreement is binding upon Harley-Davidson and its successors and assigns; and there is no provision for what would occur if Harley-Davidson went out of business or filed for bankruptcy, which might lead to a buyer of the property being responsible for environmental remediation. Similarly, Harley-Davidson challenges the School District’s reliance on the model buyer-seller agreement as releasing any prospective purchaser from environmental liability, noting that such an agreement in some circumstances provides protection to a property buyer, but that there is no evidence the site will meet all of the program’s criteria. Further, Harley-Davidson offers that a buyer would be responsible for maintaining engineering controls on the property and, if there was damage to a contaminated area, the buyer would be responsible for repair and remediation. For these reasons, Harley-Davidson favors a cost-to-cure valuation approach, which includes consideration of all costs directly related to the site cleanup. According to Harley-Davidson, this approach is the same approach advocat
As noted above, a property tax assessment must be predicated on fair market value, and, thus, must include all relevant factors having a bearing on that value. F & M Schaeffer, supra. Furthermore, and unremarkably, “[ejnvi-ronmental contamination is relevant to determining the fair market value of real estate for tax purposes.” B.P. Oil Co., Inc. v. Bd. of Assessment Appeals of Jefferson Cnty., 159 Pa.Cmwlth. 414, 633 A.2d 1241, 1243 (1993). The Commonwealth Court, in B.P. Oil, Co., suggested a cost-to-cure approach to considering the effect of environmental contamination on property value, explaining: “[u]nder the cost approach, the fair market value of the property is calculated by subtracting the cost to cure the contamination from the value the property would have if it were not contaminated.” Id.
Preliminarily, we note that our Court has not spoken to the question of whether a cost-to-cure approach to valuation should be embraced in this Commonwealth. We reserve the answer to that question for another day, however, due to the unique status of the environmental contamination regarding the subject property and the inapplicability of a cost-to-cure approach in these circumstances.
As noted above, the property is subject to an undisputed settlement agreement between Harley-Davidson and the United States government, pursuant to which all environmental remediation costs will be fully paid by those two parties. Thus, with 100% of the environmental contamination remediation costs covered, any purchaser of the property has a certain degree of comfort that it will not be exposed to environmental remediation costs. Yet, as noted by Harley-Davidson, there is at least the possibility, however remote, of the imposition of some remediation liability upon a prospective buyer.
As all relevant factors having a bearing on the value of a property, including environmental contamination, must be considered in a fair market value determination, we hold that the potential impact of a settlement agreement regarding environmental remediation and ongoing limitations and maintenance as a by-product thereof, through a buyer-seller agreement, are relevant factors that must be taken into account. Accord F & M Schaeffer; B.P. Oil Co. Thus, we find that the Commonwealth Court properly remanded the matter to the trial court to determine the effect of possible remediation liability and environmental restrictions and maintenance responsibilities upon a potential purchaser of the property upon its fair market value.
Finally, with respect to the Commonwealth Court’s rejection of Camins’ across-the-board 5% environmental stigma devaluation, the School District maintains that the application of a 5% stigma factor is a sound approach, consistent with the law and unique circumstances of this property. According to the School District, in Craftmaster, the Commonwealth Court specifically offered the possibility of “negative stigma” impacting the valuation of contaminated property, 903 A.2d at 633, and other states have recognized a stigma deduction even though the prospective buyer would not be responsible for cleanup costs. The School District proffers that Camins based his conclusion on his expertise and 40 years of experience in appraisal work, and the School District asserts the Commonwealth Court usurped the role of the trial court by ignoring the trial court’s findings of fact and credibility determination on this issue. As support for its claim, the School District references President Judge Pellegrini’s conclusion, in his concurring and dissenting opinion, that “Camins was merely using
Harley-Davidson counters that the School District’s appraiser “guessed” at the impact of the environmental contamination on the value of the property. Specifically, Harley-Davidson notes that our courts have not approved a 5% stigma factor, and that the trial court improperly accepted such devaluation factor even though the appraiser admitted there was no support for such estimation of stigma. Harley-Davidson offers that, when asked how he could place a value on a stigma deduction, the School District’s expert responded, “You don’t.” N.T. 2/1/2011 at 59. Harley-Davidson further highlights Camins’ explanation that stigma was really only a rough perception and that “[a]s a matter of fact, there [is] almost no data available dealing with stigma.” Id. at 60. Related thereto, Harley-Davidson argues that Camins’ testimony is contrary to Pennsylvania Rule of Evidence 705, which requires support for the facts or data upon which an expert opinion or inference is based.
Harley-Davidson further challenges the School District’s support for a 5% environmental stigma devaluation, based on Camins’ testimony that his estimate relied upon the environmental report of the School District’s environmental consultant, Stephen Fulton. Harley-Davidson offers that Fulton included in his 2008 report a statement that, based on standard industry practice, the final property valuation should be based on the unencumbered value of the property, less the present value of the estimated environmental liabilities, which, according to Harley-Davidson, does not include environmental stigma. Indeed, Harley-Davidson, citing New Jersey intermediate court decisions, suggests that the value of
Consistent with the broad scope of factors that may be considered in assessing a property’s value, including environmental contamination, we find that environmental stigma, although an inherently imprecise concept, may be relevant to determining fair market value of real estate for tax purposes. See Craftmaster, 903 A.2d at 633 (referring to possibility of “negative stigma” impacting valuation of contaminated property); see also Dealers Mfg., Co. v. Cnty. of Anoka, 615 N.W.2d 76, 79 (Minn. 2000) (finding an environmental stigma is a “factor [which] may be associated with a property, whether contaminants are present, are threatened, or are totally absent.”). That said, “[a]n expert cannot base his [or her] opinion upon facts which are not warranted by the record. No matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture.” Collins v. Hand, 431 Pa. 378, 246 A.2d 398, 404 (1968). Thus, while consideration of an environmental stigma may be examined when determining fair market value,
While a close call, we conclude that, considering the inherently imprecise nature of environmental stigma, Camins’ 5% devaluation in the instant case was not based upon pure conjecture. Rather, Camins’ testimony suggests that it is standard practice in the appraisal community to apply a 5% reduction in the context of commercial/industrial property (and a higher reduction for residential property):
What stigma is really—is really kind of a very rough perception that some people have. Say, well if I buy a site that didn’t have any problems in the past, even if it’s not going to cost me any money compared to a site that has had them, even though—or a site that hasn’t had them, I’ll try to negotiate and pay less and that 5 percent adjustment was an adjustment made to reflect that intangible perception from a market perspective.
N.T., 2/1/2011 at 59-60. Camins’ testimony reflected his appraisal experience and professional judgment, which a court is entitled to accept. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971) (opining, that if credited, fact-finder may find, as fact, what the expert gave as an opinion). While an expert’s opinion may not be based upon pure conjecture, we conclude that an appraisal expert’s best efforts to quantify a reduction in property valuation as a result of a subjective and intangible stigma is permissible. As Camins’ opinion regarding the environmental stigma associated with the property was not based upon improper factors, erroneous assumptions, or facts outside of the record, the trial court’s crediting of this testimony was proper, and the Commonwealth Court’s rejection of this expert testimony as unsupported was in error.
In conclusion, we reiterate: (1) hypothetical ways in which a property could be used by potential buyers are properly considered by an expert in evaluating what a willing buyer would pay for a property; however, the Commonwealth Court erred in concluding that the School District’s expert valued the subject property as already subdivided, and, thus, its
Accordingly, the decision of the Commonwealth Court is affirmed in part and reversed in part, and the matter is remanded to the Commonwealth Court for remand to the Court of Common Pleas of York County for proceedings consistent with our Opinion.
Jurisdiction relinquished.
Justices BAER and STEVENS join the opinion.
Chief Justice SAYLOR files a concurring opinion in which Justice EAKIN joins.
. Pursuant to the settlement agreement, the parties resolved ongoing litigation pending in federal court regarding responsibility for remediation, and ongoing investigation and monitoring, of the property. Harley-Davidson pledged to remediate the property and the United States government agreed to pay $2.3 million to Harley-Davidson for past response costs. Further, the parties agreed to set up a "York Facility Remediation Trust Fund," and to split future remediation expenses, with the United States government paying 53% and Harley Davidson paying 47%.
. The parties dispute the effect of the 1995 settlement agreement, and related environmental remediation costs and obligations, with respect to the proper assessment of the fair market value of the property.
. The Second Class A and Third Class County Assessment Law, 72 P.S. §§ 5342-5350k, was subsequently repealed and reenacted within the Consolidated County Assessment Law, 53 Pa.C.S. §§ 8801-8868, effective January 1, 2011.
. The “highest and best use” is a tool in assessing the value of property that contemplates the reasonable and probable use of property that supports the highest present value on the date of the appraisal. See Krohn v. Snyder Co., 62 A.3d 476, 477 (Pa.Cmwlth. 2013).
. See supra note 2.
. In our nonprecedential plurality decision in F & M Schaeffer Brewing Co., we noted that a property’s current use value should not be considered for assessment purposes. Id. Subsequent Commonwealth Court decisions, have consistently embraced the position that "value-in-use” is not to be considered in assessing the fair market value of property for tax assessment purposes. See, e.g., BET Lehigh Real Estate, LLC v. Schuylkill Co. Bd. of Assessment Appeals, 67 A.3d 845, 860 (Pa.Cmwlth. 2013); 1198 Butler Street Assoc. v. Bd. of Assessment Appeals, 946 A.2d 1131, 1138 (Pa.Cmwlth. 2008). However, other states and scholarship have suggested that, if no market value exists, viewing contaminated properties as special purpose properties and considering value-in-use or value-in-exchange when assessing the value of a property may be proper. See Bonnie H. Keen, Tax Assessment of Contaminated Properly: Tax Breaks for Polluters?, 19 B.C. Envtl. Aff. L.Rev. 885, 906 (Summer 1992). Similarly, certain Commonwealth Court decisions have eschewed a value-in-use approach, but have employed the phrase "continued use”—as distinguished from value-in-use—to mean the value of a property to an arms-length buyer where such a purchaser would likely continue the parcel’s current use. See, e.g., Craftmaster Mfg., 903 A.2d at 633-35; McGraw-Edison Co. v. Wash. Cnty. Bd. of Assessment Appeals, 132 Pa.Cmwlth. 437, 573 A.2d 248, 251 (1990). In the instant case, however, the parties do not present advocacy regarding whether and how the present use of a property should be considered in a highest and best use assessment, and, thus, we leave any definitive statement by our Court regarding consideration of the value of the property in its present state for future controversies in which the issue is raised.
. With respect to the dissent, in a tax assessment appeal, the findings of the trial court have “great force and will not be set aside by this Court unless clear error is made to appear.” Thomas Wynne, Inc. v. Bd. for the Assessment and Revision of Taxes of Montgomery Co., 434 Pa. 59, 253 A.2d 632, 635 (1969). Further, a reviewing court is to affirm the court of common pleas unless, inter alia, its decision is not supported by the substantial evidence of record. Westinghouse Elec. Corp. v. Bd. of Property Assessment, 758 A.2d 1178, 1187 (Pa. 2000). While the dissent suggests that the substantial evidence does not support the trial court’s determination that the property was not viewed as if it had been subdivided, and would remand for additional fact-finding and consideration, there is ample evidence in the record, both in Camins’ Appraisal and his testimony, to substantially support the trial court’s conclusions.
Specifically, as noted above, Camins’ Appraisal is replete with explanation as to valuation based upon permissible hypothetical subdivision. The Appraisal begins with "Consideration has been given to the uses for which the property could be employed, location, condition, size, zoning, functional utility, sales of comparable properties, pertinent data, and applicable valuation analysis.” Introduction to Appraisal, 7/26/2006, at 2. Camins properly set forth the definition of "market value,” noting it "tak[es] into consideration all uses to which the property is adapted and might in reason be applied.” Appraisal, 7/26/2006, at 2. As set forth above, the Appraisal goes on to list numerous hypothetical possibilities for use, and the "potential for subdivision.” Id. at 49-50. Importantly, Camins recognized the costs for conversion, demolition and renovation of the buildings, id. at 51-52, and, specifically, the cost of demolition of certain buildings and space renovation, employing the services of Claflen and Associates to identify such components and costs, which were deducted from the assessment calculations. Id. at 95-100. While valuing certain portions of the properly separately, hypothetical improvements were considered in the final value estimate. See, e.g., id. at 101 ("We have valued the excess land separately by means of the sales comparison approach, attributing a higher unit rate for the frontage land because its development potential would include some commercial uses.” (emphasis added)). Camins’ final opinion contains one value determination for each year, and not the assignment of separate taxable values for hypothetical parcels.
Camins’ testimony at trial is entirely consistent with this view. When asked if he performed his analysis for the property assuming the property was already subdivided, Camins responded that he did not. See N.T., 7/24/2011, at 347, Camins' explanation did not suggest he had already subdivided the property in his assessment, but merely that the property did not necessarily have to be subdivided, as an investor could buy the entirety and just utilize and develop portions of the property in the future. Id, at 347-48. With respect to the excess lands, Camins was likewise clear that he did not consider the property to
. Harley-Davidson raises the specter of the agreement binding Harley-Davidson's successors and assigns, the parties to the agreement reserving the right to pursue anyone not a party to the agreement, and the lack of a provision for what occurs if Harley-Davidson files for bankruptcy or goes out of business. Harley-Davidson Brief, at 23-24.
. Before the Commonwealth Court, Harley-Davidson challenged another aspect of the trial court’s valuation of the property. The primary-issue before the trial court was a determination of the market value of the property for the relevant years. Once the court arrived at the market value of the property for these time periods, the court was required by law to apply a common level ratio (the ratio of assessed value to current market value) for each year to arrive at the assessed value for the property for each year in question pursuant to 72 P.S. § 5350 (now 53 Pa.C.S. § 8854). The trial court did not apply the common level ratio to the fair market value, but rather equated the market value and the assessed value of the property. The Commonwealth Court explained that, pursuant to 72 P.S. § 5350, a court determining a parcel's assessed value must demonstrate on the record that it has determined the parcel’s market value and, then, multiply that value by the applicable common level ratio to arrive at its assessed value. In the instant case, the Commonwealth Court observed that the trial court did not demonstrate its calculation on the record and, in any event, appeared to simply adopt Camins’ pre-reduction values as the parcel’s market value; thus, the Commonwealth Court agreed with Harley-Davidson that the trial court had erred in its calculation. Before us, the parties discuss and appear to be in agreement, as the
Concurring Opinion
concurring.
I agree with the following conclusions reached by the majority: a cost-to-cure approach is inapposite in the present circumstances; the trial court erred in failing to multiply the market value by the common-level ratio; a potential buyer’s environmental-remediation responsibilities and limitations on use should be taken into account when calculating the property’s market value; and the five-percent stigma reduction is adequately supported in the record.
With that said, I have difficulty with the majority’s analysis concerning whether Mr. Camins reached his valuation figures by assuming the property was already in a proposed, hypothetical state—a practice disapproved by Air Products & Chemicals, Inc. v. Lehigh County Board of Assessment Appeals, 720 A.2d 790 (Pa.Cmwlth. 1998), and Craftmaster Manufacturing, Inc. v. Bradford County Board of Assessment Appeals, 908 A.2d 620 (Pa.Cmwlth. 2006). On this question, the present focus is mainly on whether the expert assumed the land had already been subdivided. The majority quotes four sentences from Mr. Camins’ 2006 appraisal report suggesting that there is a “potential” for subdivision, or that subdivision “could” occur, and concludes from such statements that the
These are shown elsewhere in the report. They reflect that each portion of the property was valued separately and the values were simply added together to arrive at the aggregate market value of the property as a whole. See Appraisal Report at 87 (2006), R.R. 423a; see also Appraisal Report at 100 (2010), R.R. 551a (reflecting similar calculations involving a simple addition of the estimated valuation of separate portions of the parcel). Although Mr. Camins denied that he assumed the land was already subdivided for valuation purposes, see N.T., Jan. 24, 2011, at 354, R.R. 182a, his explanation was that he thought subdivision would be unnecessary to make the varying uses of the property as contemplated. See N.T., Feb. 1, 2011, at 24, R.R. 266a; accord id. at 26, R.R. 267a. I am unable to see how this amounted to anything more than speculation on his part, however, as he never explained the basis for his conclusion or stated that he investigated whether subdivision might be required. He also disclaimed any legal expertise in this arena. See N.T., Feb. 1, 2011, at 61, R.R. 284a (reflecting his statement, “I am not a legal expert”).
Notably, as well, the trial court stated in a eonclusory fashion that “the property was viewed as a whole, and not as if it had been subdivided,” Harley-Davidson Motor Co. v. Springettsbury Twp., No. 2004-SU-1832-Y09, slip op. at 8, 2013 WL 10256171 (C.P. York Jan. 8, 2013) (finding of fact 45), but it made no findings on whether the use as envisioned was feasible absent subdivision of the property. See generally St. Margaret Seneca Place v. Allegheny Cnty. Bd. of Prop. Assessment Appeals & Review, 536 Pa. 478, 483-84, 640 A.2d 380, 383 (1994) (recognizing that a trial court’s findings of fact are binding, but only if supported by substantial evidence). This is relevant because the highest and best use of a property
In light of the foregoing, I would include in the remand order a directive to consider whether the fair-market valuation reached by Mr. Camins can be achieved absent subdivision in view of the uses that he contemplated for the excess land— and, if necessary, to undertake further factual development sufficient to resolve the question.
Justice EAKIN joins this concurring opinion.
. As I read the record, requiring separate reductions for stigma and remediation costs is consistent with the expert’s representation as reflected in his report. See Appraisal Report at 55 (2010), R.R. 528a (explaining that any stigma “has an additional impact upon real estate above and beyond the cost of [environmental] cleanup or remediation”).
. In a responsive footnote, the majority repeats the essential aspects of Mr. Camins’ testimony mentioned above, namely, that he: gave a single valuation for the property; stated the property "could” be subdivided or there was a "potential” for subdivision; and did not assume, contrary to Air Products and Craftmaster, that subdivision had already taken place. See Majority Opinion, at 159-60 n. 7, 124 A.3d at 281-82 n. 7. Respectfully, however, the majority's response does not address the substantive points articulated above. In particular, and as noted, the single valuation consists of a mathematical sum of the values of the component parts, and Mr. Camins—a non-lawyer—supplied no basis to support his apparent assumption that the hypothetical multiple and varying uses of the property could all be realized simultaneously absent subdivision. Ascertaining whether such occurrence is reasonably possible appears, to me at least, as a logical prerequisite to any finding concerning the property's fair market value based on a simple arithmetic sum of Mr. Camins' component figures.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.