Appeal from the Order of the Court of Common Pleas of Lycoming County in the case of City of Williamsport, Pennsylvania v. S.O.L. Club, Inc., No. 78-9128.
Ambrose R. Campana, Campana & Campana, for appellant.
Ronald C. Travis, Assistant City Solicitor, for appellee.
Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
[ 65 Pa. Commw. Page 352]
The appellant, S.O.L. Club, Inc., the owner of real estate in the City of Williamsport, has appealed from a judgment entered against it on a jury verdict for the amount of benefits assessed to its property by the city pursuant to the Business Improvement District Act of 1967, Act of November 30, 1967, P.L. 658, as amended, 53 P.S. § 1551 et seq.
The Business Improvement District Act of 1967 empowers municipalities to establish business improvement districts, and to expend monies for needed improvements within such districts including but not limited to sidewalks, trees, shrubbery, pedestrian walks, water lines and similar amenities. The municipalities are empowered to assess the costs of the improvements upon properties benefited by several methods, one of which is by multiplying the total improvement cost by the ratio of the assessed value of the benefited property to the total assessed valuation of all benefited properties in the district. The City of Williamsport used the method just described in assessing the $1.7 million cost of making the improvements upon properties within its business improvement district.
[ 65 Pa. Commw. Page 353]
At the trial, after the admission by stipulation of copies of pertinent ordinances, the city put in evidence a map showing the boundaries of the improvement district, evidence concerning the location of the appellant's property within the district, an exposition of the planning done or caused to be done by the city council prior to the making of the improvements, a description of the nature of the work done in the business improvement district and evidence that an assessment was made to appellant's property. The appellant adduced evidence at the trial tending to show that although certain amenities were constructed adjacent to or near its property, neither its property nor indeed any other in the business improvement district was enhanced in value or otherwise benefited by the improvements and that therefore its property was not benefited.
The trial judge at the close of evidence instructed the jury that the law presumes that a property which is the subject of a legal and properly adopted assessment ordinance has been benefited by the public improvement which was the occasion for the assessment; and that a property owner may contest the assessment, but in doing so has the burden to establish by a fair preponderance of the evidence that in fact no benefit has been conferred upon his property.
The appellant agrees that the judge's instruction would be correct if this was a case involving sewers or sidewalks but argues there should be no presumption of benefit where the assessment is for improvements made under the Business Improvement District Act of 1967 because the latter are made for aesthetic purposes. The appellant cites no authority for this proposition or indeed any fundamental rationale supporting it. Of course purely aesthetic public improvements may enhance the value of and otherwise benefit properties within their influence. Assuming, however, that the appellant's complaint is that since the improvements
[ 65 Pa. Commw. Page 354]
of business districts under the Act are purposed to make the areas more attractive, rather than more healthful and safe, they promote interests not included within the police powers given municipalities and that therefore their costs cannot be recovered from property owners. In the case of Berman v. Parker, 348 U.S. 26 (1954), the Supreme Court upheld the power of Congress to condemn properties in the District of Columbia in order to develop a "better balanced and more attractive community" against the contention that such purpose was not embraced within public health, safety, morals and the general welfare. Mr. Justice Douglas' now familiar response bears repeating here:
The concept of the public welfare is broad and inclusive. . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.
The appellant next argues that the method of assessing the properties used by Williamsport violates the uniformity clause of the Pennsylvania Constitution. However, the uniformity clause applies only to taxes and we are not here concerned with a tax to pay the ongoing expenses of government but a one-time charge for the costs ...