Robert C. Cryan (EA Media) v. Snyder County Board of Assessment Appeals, Snyder County, Spring Township and Midd-West School District (COMMONWEALTH COURT OF PENNSYLVANIA, October 13, 2011).
The parties stipulated to the following facts. Cryan owns agricultural real property situated in Beaver Springs, Pennsylvania (Property). Cryan 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 challenged the assessment of property taxes on the tower on the basis of the following Pennsylvania law which provides, in pertinent part:
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 . . . .
Cryan/EA Media contended that there is no provision in the law that states that the tower or equipment must be used exclusively for wind energy generation. Cryan/EA Media contend further that the law also does not require that the energy generated must be connected to and feed power back into the energy grid. Cryan/EA Media argued that the tower at issue served 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.
In response, the Board argued 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 asserted 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.
The Appellate Court concluded 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.
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." 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." The Appellate Court could discern no error in the trial court's findings and conclusions based on the stipulated facts. The Appellate Court stated that no ordinary person would consider that the Property at issue in the matter is being used for the purpose of wind energy generation.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258