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Duke Energy Fayette II, LLC v. Fayette County Bd. of Assessment Appeals

Commonwealth Court of Pennsylvania

May 28, 2015

Duke Energy Fayette II, LLC
v.
Fayette County Board of Assessment Appeals
v.
Fayette County, German Township and Albert Gallatin Area School District. Appeal of: Duke Energy Fayette II, LLC

Argued April 14, 2015

Appealed from No. 2516 of 2011, G.D. State Agency Common Pleas Court of the County of Fayette. Vernon, J.

Francis J. Hoegen, Wilkes-Barre, for appellant.

Anthony Giglio, Pittsburgh, for appellee Albert Gallatin Area School District.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 1177

ANNE E. COVEY, JUDGE

Duke Energy Fayette II, LLC (Duke Energy) appeals from the Fayette County Common Pleas Court's (trial court) July 14, 2014 order denying Duke Energy's appeal from the Fayette County Board of Assessment Appeals (Board) on the issue of spot assessment. The issues before the Court as directed by this Court's September 5, 2014 Memorandum and Order are as follows:

[whether] the trial court err[ed] by determining that it was 'reasonable to reassess' the premises in 2011 after the expiration of the premises' status as a Keystone Opportunity Zone [(KOZ)], that the 2011 reassessment did not constitute 'spot assessment,' and that the 2011 reassessment was not barred by any applicable statute of limitations.

Id. at 4. After review, we reverse.

Duke Energy is the owner of a land parcel designated as Fayette County Assessment Parcel Number 15-30-0076-02 (Property), located in German Township, Fayette County. Fayette County last completed a countywide reassessment in 2001. In 2001 and 2002, Duke Energy

Page 1178

acquired 400 acres of property, from which a subdivision was completed and a separate tract of 60 acres was created on which Duke Energy proposed to operate a gas-fired electric-generating station. Duke Energy applied for certification and enrollment in the KOZ for those 60 acres and on January 22, 2002, was notified the certification was granted. By virtue of KOZ approval, a real estate tax abatement ran on the 60 acres from 2001 through 2011.[1]

In the fall of 2003, the gas-fired electric-generating station construction was complete and the plant was fully operational. Fayette County was properly notified and made aware of the improvements to the property in 2003. " [B]ecause it was estimated to be anywhere from $25,000.00 to $50,000.00 to have an appraisal of the facility done, [Fayette County decided to] wait until the property became taxable" before conducting its assessment. Trial Court Hearing Ex. 12 at 67.[2] Thus, Fayette County chose to wait until the Property's KOZ status was set to expire before appraising the Property because " the [a]ssessment [o]ffice did not want to expend funds until they could see a return on [its] investment[.]" Id. Accordingly, on or about December 15, 2003, Fayette County issued an initial $1,800,000 Property assessment. From December 15, 2003 through January 1, 2011, the Property's assessment remained at $1,800,000.

On July 1, 2011, the Board issued an assessment change notice to Duke Energy, wherein, it advised of the increased assessment on the Property's land portion from $1,800,000 to $27,000,000 and the Property's improvement portion from zero dollars to $8,181,260. The total reassessment, effective 2011 was $35,181,260. On August 3, 2011, Duke Energy filed an assessment appeal with the Board. Following a hearing, the Board issued its decision on October 11, 2011, denying any change to the new assessment. Duke Energy appealed from the Board's decision to the trial court. The trial court bifurcated the issues, addressing only the alleged spot reassessment. On July 14, 2014, the trial court denied Duke Energy's appeal. Duke Energy petitioned this Court for permission to appeal from the trial court's order. On September 5, 2014, this Court granted Duke Energy's petition.[3]

Duke Energy first argues that the trial court erred, abused its discretion and rendered a decision unsupported by the evidence by finding that it was reasonable to reassess the Property in 2011 after the Property's KOZ status expired. Specifically, Duke Energy contends that the expiration of a property's KOZ status is not a ...


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