[J-102-2014][M.O. – Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

HARLEY-DAVIDSON MOTOR COMPANY

v.

SPRINGETTSBURY TOWNSHIP, CENTRAL YORK SCHOOL DISTRICT AND YORK COUNTY BOARD OF TAX ASSESSMENT APPEALS

APPEAL OF: CENTRAL YORK SCHOOL DISTRICT : : : : : : : : : : : : : No. 82 MAP 2014 Appeal from the Order of the Commonwealth Court dated 10/30/13, reconsideration denied 12/27/13, at No. 159 CD 2013 which affirmed/vacated/remanded the order of the York County Court of Common Pleas, Civil Division, dated 1/8/13 at No. 2004-SU-1832-Y08

ARGUED: November 18, 2014

CONCURRING OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: September 29, 2015 I agree with the following conclusions reached by the ma jority: a cost-to-cure approach is inapposite in the present circumstances; the tri al court erred in failing to multiply the market value by the common-level ratio; a potential buyer’s environmentalremediation responsibilities and limitations on use shoul d be taken into account when calculating the property’s market value; and the five-p ercent stigma reduction is adequately supported in the record. 1

1 As I read the record, requiring separate reductions for stigma and remediation costs is consistent with the expert’s representation as reflected i n his report. See Appraisal Report at 55 (2010), R.R. 528a (explaining that any stigma “has an additional impact upon real estate above and beyond the cost of [enviro nmental] cleanup or remediation”).[J-102-2014][M.O. – Todd, J.] - 2

With that said, I have difficulty with the majority’s analysis concerning whether Mr. Camins reached his valuation figures by assuming the property was already in a proposed, hypothetical state – a practice disapproved by Air Products & Chemicals, Inc. v. Lehigh County Board of Assessment Appeals , 720 A.2d 790 (Pa. Cmwlth. 1998), and Craftmaster Manufacturing, Inc. v. Bradford County Bo ard of Assessment Appeals , 903 A.2d 620 (Pa. Cmwlth. 2006). On this question, the p resent focus is mainly on whether the expert assumed the land had already been subdivid ed. The majority quotes four sentences from Mr. Camins’ 2006 appraisal report suggesti ng that there is a “potential” for subdivision, or that subdivision “could” occur, and co ncludes from such statements that the expert did not value the property as if it had already been subdivided. See Majority Opinion, slip op. at 18. To my mind, these types of expressions do not sp eak directly to the contested issue of whether Mr. Camins ult imately valued the property by using figures reflecting a hypothetical subdivision. I believe that the calculations used by the expert are more probative of the question. These are shown elsewhere in the report. They reflect that each portion of the property was valued separately and the values were simp ly added together to arrive at the aggregate market value of the property as a whole

. See Appraisal Report at 87 (2006), R.R. 423a; see also Appraisal Report at 100 (2010), R.R. 551a (reflectin g similar calculations involving a simple addition of the estimated valuation of separate portions of the parcel). Although Mr. Camins denied t hat he assumed the land was already subdivided for valuation purposes, see N.T., Jan. 24, 2011, at 354, R.R. 182a, his explanation was that he thought subdivision would be unnecessary to make the varying uses of the property as contemplated. See N.T., Feb. 1, 2011, at 24, R.R. 266a; accord id. at 26, R.R. 267a. I am unable to see how this amoun ted to anything more than speculation on his part, however, as he neve r explained the basis for his[J-102-2014][M.O. – Todd, J.] - 3

conclusion or stated that he investigated whether subdivi sion might be required. He also disclaimed any legal expertise in this arena. See N.T., Feb. 1, 2011, at 61, R.R. 284a (reflecting his statement, “I am not a legal expe rt”). Notably, as well, the trial court stated in a conclusory fashion that “the property was viewed as a whole, and not as if it had been subdi vided,” Harley-Davidson Motor Co. v. Springettsbury Twp. , No. 2004-SU-1832-Y09, slip op. at 8 (C.P. York Jan. 8, 2013) (finding of fact 45), but it made no findings o n whether the use as envisioned was feasible absent subdivision of the property. See generally St. Margaret Seneca Place v. Allegheny Cnty. Bd. of Prop. Assessment, Appeals & Review , 536 Pa. 478, 483-84, 640 A.2d 380, 383 (1994) (recognizing that a trial court’ s findings of fact are binding, but only if supported by substantial evidence). This is r elevant because the highest and best use of a property is understood by appraisers as “the most probable and foreseeable use to which a property can be put consistent with its physical characteristics, legally permitted uses , and market demand.” N.T. Jan. 24, 2011, at 342; R.R. 176a (emphasis added); see Mark D. Savin, Highest and Best Use and the Challenges of the Market , SW019/SW020 ALI-CLE 1083 (Feb. 5-7, 2015) (“Highest and best use is the most profitable use the property will b ring in light of its zoning, economic, environmental, legal, practical, social and physical char acteristics[.]”); cf. Craftmaster

, 903 A.2d at 632 (criticizing an expert’s estimation of a property’s market value – which

assumed that certain structures could be sold off as residen ces – on the basis that “[t]here was . . . no indication that the [p]roperty, which was located in an industrial zoning district, would or could be subdivided and rezon ed residential”). 2

2 In a responsive footnote, the majority repeats the esse ntial aspects of Mr. Camins’ testimony mentioned above, namely, that he: gave a single valuation for the property; stated the property “could” be subdivided or there was a “potential” for subdivision; and did not assume, contrary to Air Products and Craftmaster

, that subdividion had already (continuedL)[J-102-2014][M.O. – Todd, J.] - 4

In light of the foregoing, I would include in the re mand order a directive to consider whether the fair-market valuation reached by M r. Camins can be achieved absent subdivision in view of the uses that he contempla ted for the excess land – and, if necessary, to undertake further factual development s ufficient to resolve the question.

Mr. Justice Eakin joins this concurring opinion.

(Lcontinued) taken place. See Majority Opinion, slip op. at 19 n.7. Respectfully, however, the majority’s response does not address the substantive points articulated above. In particular, and as noted, the single valuation consists of a mathematical sum of the values of the component parts, and Mr. Camins – a non-l awyer – supplied no basis to support his apparent assumption that the hypothetical mu ltiple and varying uses of the property could all be realized simulataneously absent s ubdivision. Ascertaining whether such occurrence is reasonably possible appears, to me at least , as a logical prerequisite to any finding concerning the property’s fair market va lue based on a simple arithmetic sum of Mr. Camins’ component figures.