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MATTER HARRISBURG PARK APARTMENTS v. HARRISBURG PARK APARTMENTS (03/27/85)

decided: March 27, 1985.

IN THE MATTER OF HARRISBURG PARK APARTMENTS, INC.
v.
HARRISBURG PARK APARTMENTS, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of In the Matter of Harrisburg Park Apartments, Inc., No. 3665 S 1981.

COUNSEL

Jordon D. Cunningham, Fox, Farr & Cunningham, P.C., for appellant.

F. R. Martsolf, Connelly, Martsolf & Reid, for appellee.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr., did not participate in the decision in this case.

Author: Macphail

[ 88 Pa. Commw. Page 411]

Harrisburg Park Apartments, Inc. (Harrisburg Park) appeals here two orders which the Court of Common Pleas of Dauphin County entered in Harrisburg Park's appeal to that court: the first order denied and dismissed Harrisburg Park's property assessment appeal, and the second dismissed Harrisburg Park's exceptions to the earlier order. We vacate and remand.*fn1

The Harrisburg Park complex is a 163-unit apartment building which was subsidized through the Department of Housing and Urban Development (HUD) under a Section 221(d)(3) program (12 U.S.C. ยง 1715 1). Harrisburg Park obtained a mortgage at the flat rate of three percent (3%). Rents for the apartments are fixed by HUD which limits the annual return on investment to six percent (6%). All rental increases and other non-rental charges must be approved by HUD.

The Board of Assessment Appeals (Board) determined the fair market value to be $1,322,460.00. Harrisburg Park exercised its right of de novo review and appealed this value determination to the court of common pleas. At trial, both Harrisburg Park and Dauphin County (County) presented expert testimony on the value of the apartment complex. The trial court affirmed the Board's assessment. The instant appeal followed.

[ 88 Pa. Commw. Page 412]

Our scope of review in a tax assessment appeal is restricted to a determination of whether the trial court committed an error of law or abused its discretion in deciding the property's fair market value. Mellon Page 412} Bank, N.A. Appeal, 78 Pa. Commonwealth Ct. 463, 467 A.2d 1201 (1983). In a tax assessment appeal, the trial court is the finder of fact. Kriebel Tax Assessment Case, 79 Pa. Commonwealth Ct. 466, 470 A.2d 649 (1984). Where both the taxpayer and the Board have presented evidence of current fair market value, the trial court determines the credibility and evidentiary weight of the testimony. Appeal of Chartiers Valley School District, 67 Pa. Commonwealth Ct. 121, 447 A.2d 317 (1982), appeal dismissed, 500 Pa. 341, 456 A.2d 986 (1983). The trial court's findings "must be given great force and will not be disturbed unless clear error appears." Mellon Bank, N.A. Appeal, 78 Pa. Commonwealth Ct. at 466, 467 A.2d at 1202.

Harrisburg Park contends that the trial court erred when it failed to independently determine the fair market value of the property. We agree.

The trial court here stated that:

Procedurally, the County has the initial burden of establishing the validity of the assessment; in the present case, that burden was met by introducing a copy of the tax assessment on the petitioner's property. It then shifted to the petitioner "to show by the fair weight of the evidence that the assessment was unfair." ...


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