GM Berkshire Hills, Aplts. v. Berks Co. Bd.

[J-52-2022] [OISA: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GM BERKSHIRE HILLS LLC AND GM : No. 16 MAP 2022
OBERLIN BERKSHIRE HILLS LLC, :
: Appeal from the Order of the
Appellants : Commonwealth Court at No. 930 CD
: 2020 dated July 8, 2021 Affirming
: the Order dated August 18, 2020 by
v. : the Berks County Court of Common
: Pleas, Civil Division, at No. 18-
: 18627
BERKS COUNTY BOARD OF :
ASSESSMENT AND WILSON SCHOOL : ARGUED: September 15, 2022
DISTRICT, :
:
Appellees :
OPINION IN SUPPORT OF REVERSAL
JUSTICE DONOHUE DECIDED: February 28, 2023
I would reverse the Commonwealth Court’s order.
One hundred and twenty-three years ago, this Court described the Uniformity
Clause of our Charter1 in simple and elegant words:
While every tax is a burden, it is more cheerfully borne when
the citizen feels that he is only required to bear his
proportionate share of that burden measured by the value of
his property to that of his neighbor. This is not an idle thought
in the mind of the taxpayer, nor is it a mere speculative theory
advocated by learned writers on the subject; but it is a
1 Uniformity Clause, Article VIII, Section 1 provides:
All taxes shall be uniform, upon the same class of subjects,
within the territorial limits of the authority levying the tax, and
shall be levied and collected under general laws.
Pa. CONST. art. VIII, § 1.
fundamental principle written into the Constitutions and
statues of almost every state in this country. In Pennsylvania
the framers of the new Constitution embodied this principle in
our organic law in terms so plain that no one should
misunderstand its meaning or doubt its application, and the
people by the adoption of that instrument placed the seal of
their approval upon a system of taxation which has for its
corner stone uniformity in the value, levy, and collection of all
taxes.
Delaware, L. & W.R. Co.’s Tax Assessment, 73 A. 429, 430 (Pa. 1909).
Today, the Opinion in Support of Affirmance (“OISA”) disregards the cornerstone
of the Uniformity Clause by placing its imprimatur on a blatant subclassification of
property for tax assessment appeal purposes. As a result, a citizen has no reason to
feel that he is bearing his proportionate share of the tax burden measured by the value
of his property to that of his neighbor, and the promise of the Uniformity Clause has
been broken.
The Wilson School District (the “School District”), located in Berks County, passed
a resolution in 2018 to establish a method for selecting property assessments to appeal,
implementing a policy under which a property’s assessment would be appealed if it was
both recently sold and appeared to be underassessed by at least $150,000. The OISA
explains that these are two reasonable grounds for selecting which properties to appeal,
highlighting, inter alia, the School District’s “consideration [of] the real-world costs” and
“the practical limitations on the information available to it[.]” OISA at 10. However, the
question we are asked to answer today is not whether the motivations for the School
District’s property selection policy are sound or reasonable, but whether the policy is
constitutional. To the best of my knowledge, there is no reasonableness exception to the
Uniformity Clause.
[J-52-2022] [OISA: Mundy, J.] - 2
As the OISA explains, under the Consolidated County Assessment Law (the
“Assessment Law”), 2 taxing districts, including school districts, are authorized to appeal
the assessment of properties within their boundaries if they believe the assessment is too
low. 53 Pa.C.S. § 8802 (defining “taxing districts” to include school districts); id. § 8855
(authorizing such appeals by taxing districts). Although taxing districts have discretion to
decide which assessments to appeal, the manner in which that discretion may be
exercised is limited by the Uniformity Clause of the Pennsylvania Constitution.
With regard to property taxation, we have explained:
First, all property in a taxing district is a single class, and, as
a consequence, the Uniformity Clause does not permit the
government, including taxing authorities, to treat different
property sub-classifications in a disparate manner. Second,
this prohibition applies to any intentional or systematic
enforcement of the tax laws, and is not limited solely to
wrongful conduct.
Valley Forge Towers Apartments N, LP v. Upper Merion Area Sch. Dist., 163 A.3d 962,
975 (Pa. 2017) (citations omitted). As such, this Court has invalidated assessment appeal
policies that rely upon the creation of such subclassifications. For example, in Valley
Forge Towers, we explained that “a taxing authority is not permitted to implement a
program of only appealing the assessments of one subclassification of properties, where
that subclassification is drawn according to property type—that is, its use as commercial,
apartment complex, single-family residential, industrial, or the like.” Id. at 978. In regard
to the allegation that the school district in Valley Forge Towers targeted commercial
properties with out-of-district owners to avoid political accountability from local residential
property owners, we also reiterated that “the Uniformity Clause prohibits disparate
treatment of subclassifications of property in order to avoid political accountability.” Id. at
979 (citing Downingtown Area Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals,
2 Act of Oct. 27, 2010, P.L. 895, No. 93, § 2 (as amended 53 Pa.C.S. §§ 8801-8868).
[J-52-2022] [OISA: Mundy, J.] - 3
913 A.2d 194, 201 (Pa. 2006) (recognizing the potential for “discrimination by local
officials among similarly situated property owners who are underrepresented in the
general population”)). Further, in Clifton v. Allegheny County, 969 A.2d 1197 (Pa. 2009),
this Court rejected a policy that had the effect of discriminating based upon the
neighborhood in which the property was located.
As noted above, the School District policy requires that a property be selected for
assessment appeal if: (1) it was recently sold as shown by data provided by the State
Taxation Equalization Board (the “STEB”), 3 and (2) it appeared to be underassessed by
at least $150,000, i.e., if the recent sales price times the common-level ratio (the “CLR”)
(here, 0.685) minus the current assessed value was at least $150,000. Put differently,
the School District first categorizes those properties targeted for assessment appeal
based upon their newly-purchased status. The School District then further subdivides
this class of properties based upon their sale price, appealing the assessments of such
properties if they appear to be underassessed by at least $150,000. This requirement for
a rigid $150,000 minimum difference necessarily targets properties based on their sale
price. Accordingly, I fail to see how the School District’s policy does not create an
unconstitutional subclass of properties, which can be described as “properties recently
purchased at a price exceeding an established threshold.”
In my view, neither of the above categorizations employed by the School District
passes constitutional muster, either when considered individually or in tandem. In this
regard, the Commonwealth Court found that the selection process here materially differed
from that which we rejected in Valley Forge Towers, explaining:
3 The STEB, which was established by the State Tax Equalization Board Law, see 71
P.S. §§ 1709.1500-1709.1521, compiles data showing the prices at which real property
in each school district has been sold. See 71 P.S. § 1709.1508.
[J-52-2022] [OISA: Mundy, J.] - 4
There is a difference, however, between selection based on
property type, a qualitative approach that Valley Forge
Towers bars, and selection based on recent sales prices,
which are quantitative and reflective of a property’s accurate
present value regardless of its type. Because the [School]
District’s method is purely quantitative in nature, beginning
with type-neutral listings of recent sales transactions in the
monthly STEB reports, we find it does not present the type of
constitutional infirmities present in Valley Forge Towers.
GM Berkshire Hills LLC v. Berks Cnty. Bd. of Assessment, 257 A.3d 822, (Pa. Commw.
2021). The OISA appears to endorse this reasoning, stating:
What the Uniformity Clause does prohibit is the systemic
differential treatment of a subclass of property defined, for
example, by property type or residency status of the owner
(Valley Forge Towers), or by neighborhood (Clifton). These
types of factors are prohibited because their use creates
property subclasses. Use of monetary figures and recent
sales data is qualitatively different. Every property in a given
taxing district can be bought and sold, and when that occurs
a sales price is associated with the property. A sales price
thus has two features making its use consistent with
uniformity: it is not unique to one subset of property within the
district; and as long as the transaction is undertaken at arm’s
length, it reflects the property’s fair market value, an important
piece of evidence in determining whether the property’s
assessment ratio varies widely from the norm.
OISA at 10 (footnote omitted). Apparently recognizing that what it has explained (and
endorsed) is a subclassification of properties, the OISA goes on to explain that the School
District is “seek[ing] to take into consideration the real-world costs of lodging an
assessment appeal, together with the practical limitations on the information available to
it concerning the fair market values of the properties within its borders[,]” and notes that
“[t]here is nothing in our decisional law that prohibits this type of methodology, and Valley
Forge Towers strongly suggested the Uniformity Clause would permit it.” Id. In other
words, even if it looks like a subclassification and sounds like a subclassification, it isn’t
one if we say it isn’t.
[J-52-2022] [OISA: Mundy, J.] - 5
However, in Valley Forge Towers, we neither created nor employed any such
“qualitative vs. quantitative” distinction. It is true that we, in unfortunate dicta, commented
on the potential propriety of a purely monetary threshold in Valley Forge Towers.
However, we have never decided whether such thresholds are permissible under the
Uniformity Clause. In Valley Forge Towers, we tempered the nonjudicious comment by
stating that our decision was limited to the issue before us:
We pause at this juncture to clarify that nothing in this opinion
should be construed as suggesting that the use of a monetary
threshold—such as the one challenged in Springfield[4]—or
some other selection criteria would violate uniformity if it were
implemented without regard to the type of property in question
or the residency status of its owner. Such methodologies are
not presently before the Court.
Valley Forge Towers, 163 A.3d at 979 (footnote omitted). Any implication drawn from the
discussion is non-binding dicta. See, e.g., Castellani v. Scranton Times, L.P., 124 A.3d
1229, 1243 n.11 (Pa. 2015) (explaining that dicta is an opinion by a court “that is not
essential to the decision,” which “has no precedential value” even when it relates to “a
question that is directly involved, briefed, and argued by counsel, and even passed on by
the court”). Valley Forge Towers, consistent with our prior precedent, barred the
systematic differential treatment of a subclass of property based upon the avoidance of
4 In Springfield, the school district employed a methodology similar to that at issue here,
only appealing properties for which a recent sales price was at least $500,000 greater
than its implied market value (defined as the assessed value divided by the CLR). In re
Springfield Sch. Dist., 101 A.3d 835 (Pa. Commw. 2014). We explained in Valley Forge
Towers that our disapproval of Springfield was based on, inter alia, the Springfield court’s
improperly requiring that the challengers prove wrongful conduct on the part of the school
district. Valley Forge Towers, 163 A.3d at 975. In this regard, we twice indicated in Valley
Forge Towers that our opinion did not reflect disapproval of the monetary method
employed by the school district in Springfield. Id. at 975 n.13 & 979. However, we have
also never approved of such methodology, and the Commonwealth Court’s precedent in
this regard (i.e., Springfield) is not binding on this Court. Not disapproving the
methodology is not the equivalent of giving approval.
[J-52-2022] [OISA: Mundy, J.] - 6
political accountability, the “type” or use of the property and/or “the residency status of
[the property’s] owners.” Valley Forge Towers, 163 A.3d at 980.
It is patent that selecting only newly purchased properties for an assessment
appeal creates a subclassification of properties because this subclassification excludes
the vast majority of properties in the school district. 5 A newly purchased townhouse,
identical to the townhouse of a neighbor in a contemporaneously built development will
be subject to an assessment appeal and the neighboring townhouse will not. The owner
of the recently purchased townhouse bears a disproportionate share of the tax burden in
contravention of the Uniformity Clause.
Other than saying it is so, the OISA cannot explain in a principled way why such a
“newly-purchased” subclassification is materially different from impermissible
subclassifications such as property type, use or location in a certain neighborhood. For
example, the fact that a property is recently sold is not a neutral factor simply because,
as the OISA states, “[e]very property in a given taxing district can be bought and sold.”
OISA at 10. As indicated above, when addressing a Uniformity Clause challenge such
5 Moreover, I am skeptical as to whether a purely monetary threshold based on a rigid
figure (i.e., the $150,000 threshold employed by the School District) can comport with our
Uniformity Clause jurisprudence. Such thresholds could easily serve as methods of
circumventing our holdings in cases such as Clifton and Valley Forge Towers, as they
could be set at amounts that would largely target only certain neighborhoods (i.e., those
known to contain more expensive homes), property uses (large apartment buildings vs.
small single-family homes), or types (commercial vs. residential). Under both Clifton and
Valley Forge Towers, such pretextual thresholds would run afoul of the Uniformity Clause,
regardless of whether they were intentionally created. See Clifton, 969 A.2d at 1227-29
(holding that although appeal policy did not expressly discriminate based on
neighborhood, application of it led to pervasive disparities that violated Uniformity
Clause); Valley Forge Towers, 163 A.3d at 975 (barring discriminatory policies based on
property use and/or type). As such, blanket allowance of rigid monetary thresholds could
violate uniformity, while general allowance would require courts to constantly draw lines
based upon whether the record demonstrates that the monetary threshold is a mere
pretext, either by design or in its impact.
[J-52-2022] [OISA: Mundy, J.] - 7
as the present one, we are not concerned with the intention of a selection criteria, but with
its impact. See Clifton, 969 A.2d at 1227-29 (invalidating appeal policy based on the
pervasive disparities across neighborhoods in the policy’s application).
The School District maintains that “sales price is a criteria that applies universally
to all property types, and is the best, most objective evidence a taxing body can rely upon
when identifying underassessed parcels.” School District’s Brief at 8-9. However, a sales
price does not apply “universally” to all property in the district. See Valley Forge Towers,
163 A.3d at 974 (“[A]ll property in a taxing district is a single class, and, as a consequence,
the Uniformity Clause does not permit the government, including taxing authorities, to
treat different property subclassifications in a disparate manner.”). Rather, only properties
that have been recently sold will have a sale price. Further, a sale price is not only reliable
“objective evidence” related to the property sold; it also serves as an indicator of the
market value of all similar properties in the taxing district. However, in identifying
properties to appeal, the School District only employs this “objective evidence” to target
the newly-sold property itself and makes no effort to extrapolate from that sale price what
common sense dictates regarding the value of comparable neighboring properties.
The School District further maintains that such properties are the only ones
appropriate for assessment appeal due to the nature of such appeals. The School District
notes that “a taxing body such as a school district has no legal right to demand access to
a property or request financial records available to property owners to determine a
property’s value.” School District’s Brief at 9. The School District essentially argues that
as such, it cannot bring assessment appeals in a manner that does not depend on newly-
purchased status, relying on the following summary of the testimony of Attorney John
Miravich, solicitor for the School District:
[Attorney Miravich] explained that a school district – and the
attorney filing an assessment appeal on a school district’s
[J-52-2022] [OISA: Mundy, J.] - 8
behalf – must have a good faith basis for doing so: “[A]s an
officer of the court, I can’t reasonably feel like I can file an
assessment appeal and take a matter to the assessment
board for them to make a decision, unless I have some factual
basis for that.” As a result, the [School] District is limited to
the STEB reports, which constitute a compilation of
information tied to the Recorder of Deeds, and any other
public information that may be available, such as internet
postings regarding the recently sold property.
Id. at 3 (internal citations omitted).
These concerns are self-serving. A taxing authority is given substantial leeway
and power in initiating assessment appeals, power that the School District readily relies
upon later in its brief to support the appeal policy at issue here. See id. at 12-13 (citing,
inter alia, Springfield, 879 A.2d at 341 (observing that the Assessment Law “contains no
limits on the process by which school districts decide to appeal”)). Further, the above
testimony of Attorney Miravich implicitly concedes that a host of other publicly available
information is available to the School District. However, as explained above, the School
District defaults to the sales price of newly-purchased properties, only appealing the
assessments of such properties if, essentially, the sales price is high enough and without
regard for what that sales price implies about surrounding properties. Targeting such
recently-sold properties for disparate treatment simply because the School District has
received this single new data point of information regarding those properties is precisely
the type of policy that our jurisprudence, such as Valley Forge Towers and Clifton, has
prohibited under the Uniformity Clause.
As an additional matter, in regard to the overall fairness of the School District’s
policy, the OISA suggests that application of the CLR mitigates any unfairness to
Taxpayers and actually increases uniformity. Specifically, the OISA states:
We reiterate, though, that the subject property’s valuation has
been raised so that its assessment ratio conforms with the
CLR. It has not been raised to the purchase price of the
property, which was $54 million. Unless there is a systemic
[J-52-2022] [OISA: Mundy, J.] - 9
deficiency where the CLR does not in fact represent the
average assessment ratio of the properties in the district, the
subject property’s assessment has been adjusted to become
as uniform as possible with the properties in the district as a
whole.
OISA at 13.
However, we rejected this position in Valley Forge Towers:
Although the aim of every such appeal is to conform the
property’s assessment with the CLR, the members of the sub-
class are aware that they alone have been targeted for
scrutiny solely due to their membership in the sub-class;
moreover, they alone must bear the costs of defending
against the appeal and of any follow-up litigation in court—
costs which the [s]chool [d]istrict and its amici take pains to
emphasize are quite substantial.
Valley Forge Towers, 163 A.3d at 979. Put simply, although application of the CLR may
be intended to bring a certain property’s valuation into line with the rest of the taxing
district, application of the CLR is not the saving grace that the OISA finds it to be, as it
cannot mitigate the constitutional infirmity of a taxing district’s policy if that policy relies
on impermissible subclassification(s) to select properties for appeal. 6
As a final matter, it was suggested at oral argument that if the School District’s
current property-selection method is unconstitutional, then no method is constitutional.
Understandably, the School District takes a narrow view of the assessment appeal
process, focusing on the revenue-raising potential of each individual appeal. 7 To be clear,
6 In addition, application of the CLR is simply not relevant to the type of Uniformity Clause
challenge raised by Taxpayers, which is based on the existence of an impermissible
subclassification in the School District’s property-selection process. As the OISA
recognizes at the outset, see OISA at 7-8, Taxpayers have not raised any challenge
based on the amount of their property valuation, which would implicate the CLR.
7 Regarding the issue of revenue generation, we have said:
Where there is a conflict between maximizing revenue and
ensuring that the taxing system is implemented in a non-
discriminatory way, the Uniformity Clause requires that the
(continued…)
[J-52-2022] [OISA: Mundy, J.] - 10
all of our assessment appeal jurisprudence has its genesis in a taxing authority’s need to
generate revenue to pay for the many kinds of services they are required to provide,
including for school districts, funding public education. The reason for devising methods
to selectively appeal property assessments is to avoid the politically undesirable
alternative of raising the millage for all property owners. Ultimately, the decision by county
government not to conduct regular reassessments drives the need to selectively target
properties for tax appeals. Under the Uniformity Clause, the lack of political will to address
under-assessment of properties and the concomitant shortfall in tax revenue does not
permit non-uniform treatment of properties and the resultant disproportionate taxation.
The property assessment scheme employed by the School District creates a
subclassification of property in violation of the Uniformity Clause. Thus, I would reverse
the Commonwealth Court’s order.
Chief Justice Todd and Justice Dougherty join this opinion in support of reversal.
latter goal be given primacy. Cf. Clifton, 600 Pa. at 713, 969
A.2d at 1228 (indicating that rough uniformity in property
assessment may not be submerged to the “legitimate
governmental interest in creating and preserving a stable and
predictable local real estate tax assessment system”).
Valley Forge Towers, 163 A.3d at 980.
[J-52-2022] [OISA: Mundy, J.] - 11