decided: June 10, 1985.
IN RE: APPEAL OF EXTON DEVELOPMENT, LTD. WEST CHESTER AREA SCHOOL DISTRICT, APPELLANT. IN RE: APPEAL OF EXTON DEVELOPMENT, LTD. CHESTER COUNTY BOARD OF ASSESSMENT APPEALS, APPELLANT
Appeals from the Order of the Court of Common Pleas of Chester County in the case of In Re: Appeal of Exton Development Ltd., No. 256-P, Miscellaneous Term, 1982.
Janet M. Colliton, with her, John S. Halsted, and Ross A. Unruh and Mary Ann Rossi, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for appellants, West Chester Area School District and Chester County Board of Assessment Appeals.
John C. Snyder, with him, Robert W. Lentz, Lentz, Cantor, Kilgore & Massey, Ltd., for appellee, Exton Development, Ltd.
Randy L. Sebastian, for intervenor.
Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.
[ 90 Pa. Commw. Page 72]
The Chester County Board of Assessment Appeals (Board) and the West Chester Area School District (School District)*fn1 appeal from a decision of the Court of Common Pleas of Chester County which overruled the Board's assessment of rollback taxes and determined that Exton Development, Ltd. (Exton) was not in breach of a covenant entered into between Exton and Chester County (County) pursuant to the Act of January 13, 1966, P.L. (1965) 1292, as amended, 16 P.S. §§ 11941-11947 (Act 515).*fn2 We will affirm.
The land in question in the instant matter is a three acre tract which was subdivided from a 271 acre tract consisting of three parcels owned by Exton. Exton applied to covenant with the County pursuant to the terms of Act 515 in regard to the 271 acre tract.
[ 90 Pa. Commw. Page 73]
The three parcels were separately maintained on the tax rolls but the Act 515 covenant was as to the entire tract. The three acres now at issue were part of a parcel totaling approximately 98.5 acres. Four acres from that parcel were taxed separately because of the presence of various structures on the four acres. The instant three acres were subdivided from that four acres.
Exton conveyed the three acres by deed dated December 23, 1981, to Duling-Kurtz House. Subsequently, Exton applied for and received a variance and/or special exception to operate two of the structures existing on the land as a restaurant and a sixteen unit motel, received a building permit for this purpose and commenced work on the structures.*fn3
The Assessment Office determined that these actions were in breach of the Act 515 covenant and so notified Exton. On appeal the Board affirmed the breach and the assessment of rollback taxes upon the entire 271 acres. Exton appealed to the common pleas court which determined that the acres occupied by the structures had never received preferential tax treatment, that the acres were not covered by the Act 515 covenant, that Exton had not breached the covenant
[ 90 Pa. Commw. Page 74]
and that, therefore, Exton was not liable for damages in the form of rollback taxes upon the property. We agree with the trial court's legal determination.
As the trial court observed, an applicant for an Act 515 covenant could exclude portions of its property from the covenant. Exton did not seek such an exclusion by means of specifically describing upon the application the four acres upon which the structures were located; nevertheless, the trial court held that the County could not accept those four acres into the covenant.
This Court has stated that Act 515 "provides that a county may covenant that a tax assessment will reflect the fair market value of the land as restricted by the covenant. . . . [A] covenant binding on the landowner under Act 515 would have some effect upon fair market value." Bensalem Township School District v. Bucks County Commissioners, 8 Pa. Commonwealth Ct. 411, 416-17, 303 A.2d 258, 262 (1973). The County in the case sub judice has a Plan for Implementation of Act 515 (Plan), adopted by the County Planning Commission on May 9, 1974. This Plan provides, inter alia, that "[l]ands used in a manner inconsistent with Act 515 and the purpose of this plan are defined as follows: . . . B. Land under or within 100 feet of any structure, parking area, paved area or free-standing sign located on the same tract." Plan, Article III. B. The four acres which the County determined to fall within the proscription of Article III. B. of the Plan did not receive any preferential tax treatment. The record shows and the parties agreed, that the four acres were assessed the same before and after the covenant was entered into. The remainder of the 271 acres was assessed at a substantially lower value after the covenant was entered into.
[ 90 Pa. Commw. Page 75]
We, therefore, affirm the trial court's decision that the acres here at issue were not subject to the terms of the Act 515 covenant and the conveyance of the acres*fn4 and the change in use of the structures located upon those acres was not a breach of the covenant.*fn5
The order of the Court of Common Pleas of Chester County dated September 30, 1983, No. 256-P Misc. Term, 1982, is hereby affirmed.