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Robert C. Cryan (Ea Media v. Snyder County Board of Assessment Appeals

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


October 13, 2011

ROBERT C. CRYAN (EA MEDIA), APPELLANTS
v.
SNYDER COUNTY BOARD OF ASSESSMENT APPEALS, SNYDER COUNTY, SPRING TOWNSHIP AND MIDD-WEST SCHOOL DISTRICT

The opinion of the court was delivered by: James R. Kelley, Senior Judge

Argued: September 13, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

Robert C. Cryan (EA Media) (hereinafter collectively referred to as "Cryan/EA Media") appeals from an order of the Court of Common Pleas of the Seventeenth Judicial District, Snyder County Branch (trial court) granting in part and denying in part Cryan/EA Media's motion for post-trial relief. *fn1 We affirm in part and vacate in part.

The following two issues presented in this appeal are ones of first impression:

1. Whether the trial court erred in affirming the decision of the Snyder County Board of Assessment Appeals (Board) that does not allow an exemption from taxation for EA Media's wind energy generating tower and equipment as provided for pursuant to Section 201(a.1) of The Fourth to Eighth County Assessment Law (Assessment Law), Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §5453.201(a.1); *fn2 and

2. Whether the trial court erred in holding that the Board may charge a fee for an assessment appeal.

The parties stipulated to the following facts. Cryan owns agricultural real property situated on Shade Mountain Road, Beaver Springs, Pennsylvania 17842, which is also known as 643 Mount Pisgah Alter Road, Beaver Springs, Pennsylvania 17842 (Property). Cryan had owned the Property with his wife, Doris Cryan, who is now deceased. Cryan and his wife entered into a lease agreement with EA Media which constructed a 190 foot internet providing tower on the Property. A wind generation device is affixed to the internet tower.

The wind generation device supplies electricity for the operation of the tower's internet provider service. There is no connection to the electrical power grid from the tower and no electricity is sold on the electrical power grid as a result of the wind generation device or tower. Cryan/EA Media paid approximately $8,400 for the materials involved in the construction of the tower. Cryan/EA Media paid approximately $495 for the wind generation device installed on the tower.

On June 20, 2007, the Board issued a notice of assessment change to Cryan as record owner of the Property. On August 28, 2009, Cryan and EA Media, as lessee, filed an appeal of the Board's assessment. The Board charges a processing fee of $75 for commercial property assessment appeals and $10 for residential property assessment appeals. EA Media paid a $75 fee for the appeal.

On October 8, 2009, a hearing was held on the appeal and by decision of October 12, 2009, the Board reduced the assessment amount and notified Cryan/EA Media via mail. On November 4, 2009, Cryan/EA Media filed a petition for appeal with the trial court to which the Board filed a response on December 3, 2009.

After discovery, the parties filed a stipulation of facts with the trial court on November 1, 2010. A hearing was held before the trial court on November 4, 2010, and the parties submitted briefs. The parties agree that the proper assessed value of the improved portion of the Property is $2,130.

By order of December 22, 2010, the trial court affirmed the Board's assessment of the Property; however, the trial court mistakenly stated that the agreed upon assessed value of the Property was $2,300. In affirming the Board's assessment, the trial court found that "[t]he sole purpose of the tower located on the Property in question is as a communications device -- to provide internet service -- and not as a wind energy generation device." Trial Court Op. at 6.

With respect to the Board's authority to charge a fee for an assessment appeal, the trial court concluded that the general authority granted in Section 508 of The Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. §3508, *fn3 permitted the Snyder County Board of Commissioners to implement a fee for the processing of assessment appeals. The trial court found that the Commissioners approved a fee schedule that included the fee for the processing of assessment appeals, which fee is received and collected by the County Chief Tax Assessor and deposited into the Snyder County Treasury pursuant to Section 1601 of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §1601. Section 1601 specifies that all fees received by a county officer legally authorized to charge or receive the fee belong to the county. The trial court concluded that the assessment and taxation of real property are certainly affairs of the county. Accordingly, the trial court approved the $75 assessment appeal fee charged to EA Media as lawfully imposed.

On January 4, 2011, after consideration of Cryan/EA Media's motion for post-trial relief, the trial court entered an order correcting the assessed value of the Property and denying the motion in all other respects. This appeal followed. *fn4

In support of the first issue raised herein, Cryan/EA Media argues that there is no question that it erected a tower with a wind energy turbine, tower and tower foundations. Cryan/EA Media contends that there is no provision in Section 201 of the Assessment Law, 72 P.S. §5453.201, that states that the tower or equipment must be used exclusively for wind energy generation. Cryan/EA Media contend further that the Assessment Law also does not require that the energy generated must be connected to and feed power back into the energy grid. Cryan/EA Media argues that the tower at issue herein serves a dual purpose -- to provide energy to the batteries and equipment and to power the internet communications service. The latter would not be possible without the former. Thus, if the tower is considered assessable real property, it is serving the legislative purpose of generating electricity through wind power. Cryan/EA Media argues that this Court is bound by the plain language of the statute.

In response, the Board argues that Cryan/EA Media's tower is not a wind turbine generation device within the meaning of the statute as its purpose is not to generate wind energy. The Board asserts that Cryan/EA Media should not be able to avoid a tax assessment because a small turbine has been attached to the internet tower on the real property that it rents. It is clear that the statutory language was only meant for structures whose function is to generate wind power.

The Board points out further that Cryan/EA Media's assertion that the internet tower serves a dual purpose "to power and provide energy to the batteries and equipment and to power the internet communication service" is not supported by the record. The Board contends that Cryan/EA Media stipulated to the facts, particularly number 7, which states: "The wind generation device supplies electricity for the operation of the tower's internet provider service." See Stipulation of Facts, Reproduced Record (R..R.) at R19. The Board argues that no mention was made of any batteries or power generation beyond what is required to operate the internet tower. The Board contends therefore that the primary purpose of the internet tower is not to generate wind energy.

Section 1921(b) of the Statutory Construction Act of 1972 provides that "when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b); Department of Transportation, Bureau of Driver Licensing v. Empfield, 526 Pa. 220, 224, 585 A.2d 442, 444 (1991). "When the language of a statute is clear and unambiguous, the Judiciary must read its provisions in accordance with their plain meaning and common usage." Id. at 225, 585 A.2d at 444 (citing Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a); Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1988); In re: Estate of Baker, 496 Pa. 577, 437 A.2d 1191 (1981); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); In Re: Stegmaier Estate, 424 Pa. 4, 225 A.2d 566 (1967); Commonwealth v. Rieck Investment Corporation, 419 Pa. 52, 213 A.2d 277 (1965); Southwest Delaware County Municipal Authority v. Aston Township, 413 Pa. 526, 198 A.2d 867 (1964)). The statute must be given its plain and obvious meaning. Wilderness Industries of Maryland, Inc. v. State Board of Vehicle Manufacturers, Dealers and Salesmen, 427 A.2d 1235 (Pa. Cmwlth. 1981).

Section 201(a.1) of the Assessment Law applicable herein provides, in pertinent part, as follows:

(a.1) . . . No wind turbine generated generators or related wind energy appliances and equipment, including towers and tower foundations, shall be considered or included as part of the real property in determining the fair market value and assessment of real property used for the purpose of wind energy generation. . . . 72 P.S. §5453.201(a.1). Applying the foregoing principles of statutory construction to Section 201(a.1), this Court concludes that the language of the statute is clear and unambiguous. The plain and obvious meaning of the statutory language is that if real property is used for the purpose of wind energy generation then a wind turbine generated generator or related wind energy appliances and equipment, including towers and tower foundations, shall not be considered or included as part of that real property in determining the assessed value.

Herein, the trial court specifically found that "[t]he sole purpose of the tower located on the Property in question is as a communications device -- to provide internet service -- and not as a wind energy generation device." *fn5 Trial Court Op. at 6. The trial court pointed out that "[t]he wind turbine associated with the tower is designed to provide electricity limited to the operation of the tower as an internet service provider. It has no connection to the power grid, and its generation of electricity is confined to the single tower to which it is attached." Id.

We can discern no error in the trial court's findings and conclusions based on the stipulated facts. See R.R. at R18-R19. No ordinary person would consider that the Property at issue in this matter is being used for the purpose of wind energy generation. *fn6 EA Media's tower is admittedly used for the sole purpose of providing internet service and that the wind generation device attached thereto supplies electricity solely for the operation of the tower's internet provider service. Id. at R19.

Next, Cryan/EA Media argues that there is no authority for the Board to charge a fee for an assessment appeal. Cryan/EA Media contends that because there is no authority, the charging of a fee is illegal and therefore a violation of due process.

In response, the Board contends that the assessment appeal fee is proper because no prohibition exists which would invalidate the practice of charging a processing fee for tax assessment appeals. The Board argues that all other county agencies charge fees for filing, that the fee was approved by the Snyder County Board of Commissioners, and that the fee is not excessive nor does it deprive EA Media of its due process rights.

Upon review, we conclude that the trial court lacked jurisdiction to consider whether the imposition of the $75 assessment appeal fee was lawful. *fn7 The right to appeal a tax assessment of personal or real property to either the county tax assessment board or the court of common pleas is by virtue of an express statutory grant. *fn8 Section 701 of the Assessment Law *fn9 provides persons aggrieved by a personal or property assessment with the right to appeal to the county board of assessment. Section 704 of the Assessment Law *fn10 bestows jurisdiction upon the courts of common pleas over appeals from the determinations of county tax assessment boards. *fn11

Therefore, the relief sought comes, if at all, as a matter of right. Thus, a hearing by a court of common pleas on such an appeal must be one within the contemplation of the statute.

The assessment appeal fee at issue herein was established by the Snyder County Board of Commissioners at a public meeting, wherein the Commissioners approved a general fee schedule, which included a fee for the processing of tax assessment appeals. *fn12 A review of the Assessment Law reveals that the statute does not authorize the Board or the trial court to determine whether an assessment appeal fee established by the municipality's governing body is lawful. The Assessment Law limits both the Board and the trial court to determining whether a property's tax assessment is proper and in accordance with the law. See Sections 702 and 704 of the Assessment Law, 72 P.S. §§5453.702, 5453.704.

Accordingly, the trial court in this matter was limited to determining whether the Property at issue herein was subject to a tax assessment pursuant to Section 201(a.1) of the Assessment Law. As such, the trial court lacked jurisdiction to determine whether the $75 assessment appeal fee authorized and imposed by the Snyder County Board of Commissioners is lawful.

The trial court's order in this matter is affirmed with respect to the court's determination that the Property is subject to taxation pursuant to Section 201(a.1) of the Assessment Law and vacated with respect to the court's determination that the appeal fee imposed by the Snyder County Board of Commissioners is lawful.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert C. Cryan (EA Media), Appellants : v. Snyder County Board : of Assessment Appeals, : Snyder County, Spring Township : and Midd-West School District :

No. 73 C.D. 2011

ORDER

AND NOW, this 13th day of October, 2011, the order of the Court of Common Pleas of the Seventeenth Judicial District, Snyder County Branch entered in the above-captioned matter is affirmed in part and vacated in part in accordance with the foregoing opinion.

JAMES R. KELLEY, Senior Judge


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