October 20, 2010
HANITH, L.L.C., APPELLANT
TAX CLAIM BUREAU OF MIFFLIN COUNTY, AND COMMISSIONERS OF MIFFLIN COUNTY
The opinion of the court was delivered by: Senior Judge Friedman
Argued: September 14, 2010
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Hanith, L.L.C. (Hanith) appeals from the October 30, 2009, order of the Court of Common Pleas of Mifflin County (trial court) denying Hanith's petition, filed under section 613(a) of the Real Estate Tax Sale Law (RETSL),*fn1 objecting to the proposed private sale of real property to the Commonwealth of Pennsylvania, Department of Conservation and Natural Resources (DCNR). We affirm.
The subject property is a rural, 206-acre parcel located in Bratton Township, Mifflin County. The property is surrounded by the Tuscarora State Forest, and a state forest road runs through the property. The property has been owned by the Commissioners of Mifflin County (Commissioners) as trustees for the Tax Claim Bureau of Mifflin County (Bureau) since the 1920s. As of September 2009, the total amount of tax delinquency, including interest, was $44,712.51, and the property was valued at $139,200.00.
On May 4, 2009, the Bureau published in the local newspaper a notice of a proposed private sale of the property to DCNR for the sum of $120,000.00.*fn2 The Bureau published a second notice of the sale in the same newspaper on May 15, 2009.
On June 25, 2009, Hanith filed a petition objecting to the tax sale. On July 28, 2009, Hanith offered an option payment of $132,000.00 for the property and, in a letter to the Bureau, stated that it would bid that amount or more if the current sale were disapproved by the trial court. The Bureau rejected Hanith's offer. Hanith also presented its offer to the trial court by way of certified check in the amount of $132,000.00.
The trial court held an evidentiary hearing on Hanith's petition on September 29, 2009. At the hearing, David A. Whitesel, president of Hanith, testified that the property was formerly owned by his great-grandfather, Henry Whitesel,*fn3 and that his intent in purchasing the property was to use it for recreational purposes and as an investment property. (N.T., 9/29/09, at 22-23, 27-28.) Gene Odato, a DCNR representative, testified that DCNR intended to manage the property as part of the State Forest Resource Plan. (Id. at 50.) He also testified that DCNR would sell timber and use the proceeds to maintain the property, develop trails, and preserve forest land. DCNR would leave the property open to the public for hunting, fishing, and horseback riding. (Id. at 50-52.) Merry Bratton, Chief Assessor for Mifflin County, testified that the property, if privately owned, would be eligible for the Clean and Green program, which would reduce the amount of taxes Hanith would have to pay on the property. (Id. at 44-45.)
By order dated October 30, 2009, the trial court denied Hanith's petition and confirmed the proposed sale, concluding that the proposed sale to DCNR was just and proper*fn4 under the circumstances. The primary basis for the trial court's decision was the fact that DCNR's intended use of the property would benefit the public and the State Forest Resource Plan. (See 10/30/09 Order at 2-3; Pa. R.A.P. 1925(a) Stmt. at 1-2.) Hanith timely appealed from this decision.*fn5
On appeal, Hanith asserts that the trial court abused its discretion in concluding that the proposed sale to DCNR was just and proper. Hanith claims that the trial court misapplied the holding in Fieg v. Somerset County Tax Claim Bureau, 658 A.2d 476 (Pa. Cmwlth. 1995), in reaching its conclusion. We disagree.
In Fieg, William Cicciarelli was the proposed purchaser of property at a private tax sale. His bid of $9,853.96 was equal to the amount of taxes due on the property. Fieg Brothers Coal Company, as a person interested in purchasing the property, filed a petition to disapprove the sale and submitted a bid of $15,000.00. Id. at 476-77. The trial court disapproved the proposed sale to Cicciarelli, holding that "where an interested purchaser has submitted a significantly higher bona fide and irrevocable bid, the sale [will] not be approved absent circumstances which would lead the court to approve the original sale." Id. at 477. On appeal, Cicciarelli argued that a bid equaling the amount of the tax delinquency is "sufficient" under section 613(a)*fn6 of the RETSL and, thus, precludes the trial court from disapproving the proposed sale, even where there has been a subsequent higher bid. Id. at 477-78.
This court disagreed. We noted that the RETSL allows the trial court "great latitude" in determining whether a proposed sale is just and proper under the circumstances. Id. at 478. The trial court must consider "all the circumstances to determine whether to approve or disapprove the sale as it deems just and proper." Id. at 479 (emphasis in original). The trial court in Fieg found that Cicciarelli presented no reasons that would lead the court to approve the prior offer. Therefore, we found no abuse of discretion and affirmed the disapproval of the sale to Cicciarelli.
Applying Fieg to the facts of this case, we conclude that the trial court did not abuse its discretion in denying Hanith's petition. The trial court determined that Hanith's higher bid would not offer a significantly greater benefit to the taxing authorities than DCNR's bid. Unlike the initial bid in Fieg, both of the bids in this case well exceeded the amount of the tax delinquency and were more in line with the property's fair market value. Thus, either bid, once accepted, would make the interested taxing authorities whole.*fn7
Moreover, the trial court considered the unique nature of this particular parcel of land, which consists of undeveloped woodlands and is completely surrounded by a state forest. The trial court found that DCNR's proposed use would provide a greater benefit to the public and the county than Hanith's proposed use. Additionally, any profits DCNR would realize from timbering would be used to maintain and preserve the property. Thus, we are satisfied that the trial court properly considered all circumstances of the proposed sale in reaching its conclusion.
Hanith further claims that the trial court erroneously relied on Mehalic v. Westmoreland County Tax Claim Bureau, 534 A.2d 157 (Pa. Cmwlth. 1987),*fn8 because the petition for disapproval in that case pre-dated the effective date of the 1986 amendments to the RETSL.*fn9 However, the trial court cited Mehalic only for the proposition that the court must determine whether the terms of the proposed sale indicate that the bargain is proper and benefits the interested taxing authorities. Neither the 1986 amendments nor subsequent case law have invalidated this proposition. In fact, as the trial court points out, Hanith cited Mehalic for this same proposition in its brief in support of its petition. (See Brief in Support of Petition for Disapproval at 6.) Therefore, this claim lacks merit.
Finally, Hanith asserts that the trial court improperly considered the Clean and Green Act's*fn10 tax advantages if Hanith were to purchase the property. Again, that was only one factor the trial court considered. The trial court explained that "the benefits the DCNR could bring to the public were the most significant factors," and Hanith's higher bid did not outweigh those benefits. (Pa. R.A.P. 1925(a) Stmt. at 2.) As this court recognized in Fieg, the trial court has "great latitude" to determine what is just and proper in a private tax sale. Here, the trial court had ample reasons for rejecting Hanith's higher bid and clearly explained those reasons in its opinions.
Accordingly, because we conclude that the trial court did not abuse its discretion in denying Hanith's petition, we affirm.*fn11
AND NOW, this 20th day of October, 2010, we hereby affirm the October 30, 2009, order of the Court of Common Pleas of Mifflin County.
ROCHELLE S. FRIEDMAN, Senior Judge