
Subscribe for updates
Recent Posts
- Tenth Circuit Applies Statute of Limitations That Is “Closest Fit” in CERCLA Action, Overrules Earlier Precedent
- New Jersey Weighs in on State Climate Tort Claims
- First Circuit Holds that Smelling Vehicle Exhaust Constitutes Injury-in-Fact under Clean Air Act
- Ninth Circuit Upholds Vacatur of Some Oil and Gas Leases
- Court Dismisses Microplastics Consumer Protection Suit Citing Federal Preemption
Topics
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Agency Action
- Loper Bright
- Council on Environmental Quality
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Environmental Justice
- Disparate Impact
- Title VI
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Federal Insecticide, Fungicide, and Rodenticide Act
- Georgia
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Successor Liability
- Personal Jurisdiction
- Operator Liability
- Potentially Responsible Parties
- Federal Circuit
- Environmental Covenants
- National Contingency Plan
- Apportionment
- Divisibility
- Water Pollution Control Act
- Strict Liability
- Historic Resources
- Utilities
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- PFAS
- Ohio
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Tribal Lands
- Gold King Mine
- Utah
- Federal Tort Claims Act
- New Mexico
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- FERC
- National Forest Management Act
- United States Supreme Court
- Chevron Deference
- Endangered Species Act
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Building Materials
- First Circuit
- Property Damage
- PCBs
- Groundwater
- Natural Resource Damages
- Brownfield
- Innocent Party
- Brownfields
- Environmental Rights Amendment
- PHMSA
- Pipeline Hazardous Materials Safety Administration
- FOIA
- Effluents
- Sediment Sites
- EHB
- Missouri
- Pipelines
- Texas
- Coal Ash
- Injunction
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Civil Penalties
- Clean Streams Law
- Hearing Board
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Property Value
- Stigma
- Fair Market Value
- Tax assessment
- Damages
- Storage Tank
- Indemnification
- Energy
- Fifth Circuit
- Electric
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Inspection
- Freshwater Wetlands Protect Act
- Residential
- New York
- Federal Energy Regulatory Commission
- Pennsylvania Department of Environmental Protection
- Natural Gas Act
- HAPs
- D.C. Circuit
- Mercury
- Hazardous Air Pollutants
- Takings
- Condemnation
- Storage
- Natural Gas
- Fifth Amendment
- Takings Clause
- Flooding
- Causation
- Spill Act
- NEPA
- Interior
- Mineral Leasing Act
- Tenth Circuit
- California
- Zoning
- Act 13
- Insurance Coverage
- Duty to Defend
- Landfill
- Eminent Domain
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Montana
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Delay Notice
- Rulemaking
- Equity
- CISWI
- Consent Decree
- Enforcement
- EPA
- Laches
- Boiler MACT
- Declaratory Relief
- Second Circuit
- Contribution
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Legislation
- Case Update
- Dukes
- Certification
- Contamination
- Louisiana
- CLE
- Discovery
- Work Product
- Cases to Watch
- Privilege
- Decisions of Note
- Expert Witness
- Cost Recovery
- CERCLA
- Insurance
- Defense Costs
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Army Corps
- Donovan
- Rapanos
- Nuisance
- Class Actions
- Hog Barn
- Kentucky
- Trespass
- Farming
- Odors
- New Jersey
- ISRA
- Informal Agency Action
- Administrative Hearing
- RCRA
- Railroad
- Cancer
- Emissions
- Waste
- Air
- Combustion
- Speaking Engagements
- Federal Procedure
- Third Circuit
- Toxic Torts
- Removal
- Permits
- Title V
- Clean Air Act
- Statute of Limitations
- Superfund
- Cleanup
- Supreme Court
- Tolling
- Camp Lejeune
- Statute of Repose
- Multi-District Litigation
- Marcellus Shale
- Due Process
- Deeds
- Clean Water Act
- Wetlands
- Mineral Rights
- Administrative Procedures Act
- Enforcement Action
- Drilling
- Oil and Gas
- Leases
- Exploration
- Royalties
Blog editor
Blog Contributors
On Tuesday, the Pennsylvania Supreme Court in Harley-Davison Motor Co. v. Springettsbury Twp., Dkt. No J-102-2014 (Sept. 29, 2015), ruled that the presence of contamination, and the stigma that surrounds such contamination, are relevant to determining the property’s fair market value for tax assessment purposes.
Harley-Davison owns a 229-acre parcel of industrial property in York County, where it operates a motorcycle manufacturing plant. Historically, the property was owned by the U.S. Navy, which operated a weapons manufacturing plant at the site from 1941-1964, which Harley-Davidson’s affiliate then operated from the late 1960s through the 1980s. The military use of the property caused widespread environmental contamination on 110 acres of the property, including the burial of unexploded artillery on site. The remaining 119 acres of the property that were not impacted by historic operations were considered “excess” land. Under a settlement agreement with the United States, Harley-Davidson has been remediating the property under Pennsylvania’s Act 2 program, funded, in part, by the U.S. government, which paid $2.3 million for past remediation costs. Both parties also agreed to establish a remediation trust fund to split future remediation costs at the site.
In 2003, the York County Assessment Office notified Harley-Davidson that the property’s tax assessment would be increasing for 2004-2010. Harley-Davison appealed the assessment, which lead to a bench-trial in the York County Court of Common Pleas. At the trial court, Harley-Davidson, and the two taxing bodies, York County and the Central York School District, presented expert testimony to establish the value of the property, focusing on the impact of the contamination on the property’s value. Each expert determined what the “highest and best use” of the property was – the taxing authorities’ expert arguing for warehousing and office use, with the non-contaminated “excess” land used for development, while Harley-Davidson’s expert argued the entire parcel should be valued as industrial use. The experts also diverged on whether the property should be evaluated as a whole or subdivided into contaminated and non-contaminated portions, and also disagreed on how to evaluate the impact of contamination on the property’s value. Harley-Davidson’s expert used a “cost-to-cure” approach, which determines fair market value by subtracting remediation costs from the value of the property as if it were completely clean. The taxing authorities’ expert argued that the “cost-to-cure” approach was not appropriate in this case, because the property was already being remediated under Act 2, would be subject to use restrictions and institutional/engineering controls, and a standard Act 2 buyer-seller agreement would insulate a prospective purchaser from being responsible for the costs of the remediation.
In previous cases, the Commonwealth Court had suggested that a cost-to-cure approach would be appropriate for determining fair market value of a contaminated property; however, the Pennsylvania Supreme Court declined to determine whether Pennsylvania would adopt a cost-to-cure approach for determining the fair market value of contaminated property as the facts of the case, particularly the existence of the settlement agreement and the existence of a remediation fund, made it unique. Rather, the Pennsylvania Supreme Court held that “[a]ll relevant factors having a bearing on the value of a property, including environmental contamination, must be considered in a fair market value determination, [and that] the potential impact of a settlement agreement regarding environmental remediation and ongoing limitations and maintenance as a by-product thereof, through a buyer-seller agreement, are relevant factors that must be taken into account.” The Pennsylvania Supreme Court also held that “environmental stigma, although an inherently imprecise concept, may be relevant to determining fair market value of real estate for tax purposes.” Interestingly, the court ruled that the 5% stigma reduction in property value that the taxing authorities expert presented was appropriate in this case, despite the fact the expert did not provide any concrete support for the 5% figure, but rather stated that it was based on his overall professional experience in real estate appraisals.