Berman v. Cuyahoga Cty. Bd. of Revision

[Cite as Berman v. Cuyahoga Cty. Bd. of Revision, 2025-Ohio-1740.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

BLAKE BERMAN, ET AL., :

Plaintiffs-Appellants, :

No. 114481

v. :

CUYAHOGA COUNTY BOARD OF :

REVISION, ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 15, 2025

Administrative Appeal from the Ohio Board of Tax Appeals

Case No. 2023-1307

Appearances:

Siegel Jennings Co., LPA, and Stephen M. Nowak, for

appellants.

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Matthew Grabenstein, Assistant Prosecuting

Attorney, for appellees.

MICHAEL JOHN RYAN, J.:

Appellants Blake Berman and Miriam Weiss (collectively

“appellants”) appeal the decision of the Ohio Board of Tax Appeals (“BTA” or

“board”) regarding the valuation for tax year 2022 of their real property located on

Severn Road in Cleveland Heights, Ohio. For the reasons that follow, we affirm.

I. Procedural History and Facts

In July 2020, appellants purchased the subject property for $450,000.

For tax year 2022, the Cuyahoga County Fiscal Officer (“fiscal officer”) assessed the

property at $450,000 based on the recent sale of the property. Appellants filed a

valuation complaint seeking a decrease in the value of the property, arguing that

their property was not valued uniformly with other properties in the neighborhood.

A hearing was held before the Cuyahoga County Board of Revision

(“BOR”); appellants appeared through counsel.1 In support of their position,

appellants submitted (1) a description of the subject property; (2) the property’s

valuation history from 1996-2022; and (3) a list of eight neighboring home values,

which it obtained from the fiscal officer’s website. The BOR asked for information

regarding the July 2020 sale, but appellants’ counsel elected not to submit anything.

The BOR determined that the evidence was insufficient to support the reduction in

value requested and issued a “no change” decision of the certified value of $450,000.

The BOR reasoned: “Neighboring property values were submitted to support the

1 The appellees in this case, the fiscal officer and the BOR, will be collectively

referred to as “county.”

requested [value], [counsel] noting the subject is not receiving equal and fair

treatment. The board asked counsel if he wanted to provide any information

regarding the [July 2020] sale . . . for $450,000. None was provided. The board

finds the county fiscal value is supported by the recent sale.”

Appellants appealed the BOR’s decision to the BTA. The BTA

scheduled the matter for a hearing. The parties exchanged discovery, submitted a

joint list of stipulated facts (“stipulated facts”), and filed merit briefs. The BTA

waived the parties’ appearances at the scheduled hearing.

After consideration, the BTA found that appellants failed to provide

credible and probative evidence of value and retained the tax value of $450,000. In

its decision, the BTA determined that appellants could not rely on the assessed value

of neighboring properties as the best evidence of value because many factors could

affect how a specific property’s value might increase or decrease including a recent

arm’s-length sale and common differences among properties (location, size,

improvements, amenities, and date of sale). The BTA observed that while appellants

relied on multiple neighboring properties, those likely differed from the subject

property and that additional evidence, which appellants did not provide, would be

needed to control for those variables. Finally, the BTA noted that it could not

adjudicate appellants’ constitutional claims.

Appellants filed the instant appeal and raised four assignments of error

for our review. We will proceed to address the first assigned error and then combine

the second, third, and fourth assignments of error (appellants’ constitutional claims)

for review.

II. Assignments of Error

I: The Ohio Board of Tax Appeals (“BTA”) erred when it unlawfully

struck self-authenticating evidence from the record in violation of

Civ.R. 36(B), Civ.R. 44(A)(1), Evid.R. 901(B)(7), Evid.R. 902(4)

certified copies of public records, Evid.R. 902(8) acknowledged

documents, and Evid.R. 1007.

II: The Cuyahoga County Fiscal Officer’s decision to value the subject

property based on a sale instead of its neighborhood-wide, uniform

triennial update violates Appellants’ right to due process of law as

guaranteed by the Ohio Constitution and the United States

Constitution.

III: The Cuyahoga County Fiscal Officer’s decision to value the subject

property based on a sale instead of its neighborhood-wide, uniform

statistical update violates the Uniform Rule set forth in Article XII,

Section 2 of the Ohio Constitution.

IV: The Cuyahoga County Fiscal Officer’s decision to value the subject

property based on a sale instead of its neighborhood-wide, uniform

triennial update violates Appellants’ right to equal protection as

guaranteed by Article I, Section 2 of the Ohio Constitution and the 14th

Amendment, Section 1 of the United States Constitution.

III. Law and Analysis

A. Real Property Tax Assessment — Background

R.C. 5713.03 describes the duty of the county auditor (known in

Cuyahoga County as the “fiscal officer”) to determine the “true value” of each parcel

located in the county. The statute provides:

The county auditor, from the best sources of information available,

shall determine, as nearly as practicable, the true value of the fee simple

estate . . . of each separate tract, lot, or parcel of real property and of

buildings, structures, and improvements located thereon . . . in every

district, according to the rules prescribed by this chapter . . . and in

accordance with the uniform rules and methods of valuing and

assessing real property as adopted, prescribed, and promulgated by the

tax commissioner . . . . In determining the true value of any tract, lot, or

parcel of real estate under this section, if such tract, lot, or parcel has

been the subject of an arm’s length sale between a willing seller and a

willing buyer within a reasonable length of time, either before or after

the tax lien date, the auditor may consider the sale price of such tract,

lot, or parcel to be the true value for taxation purposes.

Id.

True value is defined as either: (1) “the price at which property should

change hands on the open market between a willing buyer and a willing seller,

neither being under any compulsion to buy or to sell and both having a knowledge

of all the relevant facts[]” or (2) “the price at which property did change hands under

the conditions described in R.C. 5713.03, within a reasonable length of time either

before or after the tax lien date.” Adm.Code 5703-25-05(A).

Appraisals in Cuyahoga County are held on a triennial and a sexennial

basis. Most of the 500,000-plus parcels in Cuyahoga County are appraised every six

years using a mass-appraisal approach to valuation as described under R.C.

5713.012 and 5713.01. Then, every three years, the fiscal office conducts valuation

updates. According to the parties’ stipulated facts, the fiscal office works with the

Ohio Department of Taxation (“DOT”) for the triennial update to create a “sales ratio

study” using recent sale data supplied to the DOT by the county. The county and the

DOT then review all sales transactions that occurred in the county and attempt to

determine those sales that are valid arm’s-length transactions.

The triennial update analysis and sales-ratio study for the subject

property was conducted on or about January 1, 2021. The county and the DOT

determined that value of the residential properties in the subject property’s

statistical assessment neighborhood needed to be adjusted upward by 1.24 percent

to achieve true, uniform, and equalized values as of January 1, 2021. Having

determined, however, that the subject property had been recently sold, the fiscal

office used the July 2020 sale in valuing the property at $450,000 for the 2021 tax

year.

Although appellants challenge this well-settled tenet, “the best

evidence of true value is the actual sale price of a property in an arm’s-length

transaction.” Meyer v. Cuyahoga Cty. Bd. of Revision, 58 Ohio St.2d 328, 333

(1979), citing State ex rel. Park Invest. Co. v. Bd. of Tax Appeals, 175 Ohio St. 410

(1964). In this case, there is no dispute that the July 2020 sale of the subject

property for $450,000 was a valid arm’s-length transaction.

B. Standard of Review

“In reviewing the decision of the BTA, we must determine whether

the decision is ‘reasonable and lawful.’” Stag Indus. Holdings, LLC v. Cuyahoga

Cty. Bd. of Revision, 2024-Ohio-2814, ¶ 11 (8th Dist.), quoting Polaris

Amphitheater Concerts, Inc. v. Delaware Cty. Bd. of Revision, 2008-Ohio-2454,

¶ 18; see also R.C. 5717.04. “‘Under this standard, we will affirm the BTA’s

determinations of fact if the record contains reliable and probative evidence to

support the BTA’s findings’ but ‘will reverse if the record does not support, or if it

contradicts, the BTA’s findings. ’” Stag Indus. Holdings, LLC, at id., quoting Polaris

at id.

C. BTA Exhibits

In the first assignment of error, appellants argue that the BTA erred

in striking evidence appellants attached to their BTA merit brief. The exhibits

included the parties’ stipulated facts; certified copies of property records for

neighboring properties; deposition testimony of Neil Winans’s, a certified

residential appraiser with the county appraisal department; and some of the

county’s discovery responses. The county filed a motion to strike the exhibits,

arguing that they were filed outside of a hearing and, therefore, were not in

accordance with BTA rules. The BTA granted the motion in part and ordered the

property records for neighboring properties, Winans’s deposition, and the county’s

discovery responses be stricken from the record; the board determined it would

consider the stipulated facts.

The Ohio Supreme Court has held that the Ohio Rules of Evidence are

not binding on the BTA and, absent an abuse of discretion, the court will affirm its

evidentiary decisions. Bd. of Edn. for Orange City School Dist. v. Cuyahoga Cty.

Bd. of Revision, 74 Ohio St.3d 415, 416-417 (noting that the BTA has discretion in

admitting evidence, weighing it, and granting credibility to testimony).

“Evid.R. 101(A) does not mention administrative agencies as forums

to which the Rules of Evidence apply. Indeed, the constitutional authority under

which the rules were promulgated extends only to ‘rules governing practice and

procedure in all courts of the state.’” Id. at 417, quoting Ohio Const., art. IV, § 5(B).

“The rules, nevertheless, may guide the BTA in conducting its hearings.” Bd. of Edn.

for Orange City School Dist. at id.

Adm.Code 5717-1-16(A) provides that the purpose of hearings before

the BTA is to allow for the presentation of new evidence, and the Ohio Supreme

Court has held that the BTA does not act unreasonably or unlawfully by confining

itself to the statutory transcript and evidence stipulated by the parties when an

appellant waives its right to a hearing before the BTA. PI in the Sky, L.L.C. v. Testa,

2018-Ohio-4812, ¶ 24-25. Similarly, while the BTA follows the Ohio Rules of Civil

Procedure for discovery purposes pursuant to Adm.Code 5717-1-12, the Ohio Rules

of Civil Procedure are not binding on the BTA. See Sovran Self Serv. Assn. v.

Cuyahoga Cty. Bd. of Revision, 1999 Ohio App. LEXIS 5173 (8th Dist. Nov. 4, 1999)

(noting that the BTA, as an administrative agency, is not bound by the Ohio Rules

of Civil Procedure). To the extent that the BTA follows the Ohio Rules of Civil

Procedure for discovery purposes, appellate courts apply an abuse-of-discretion

standard to the BTA’s resolution of discovery disputes. PI in the Sky, L.L.C. at ¶ 11.

Adm.Code 5717-1-17(D) bars new evidence not presented at a hearing.

The BTA “will only consider evidence contained within the transcript certified to it,

submitted by joint agreement of all parties, or received at the hearing. Evidence

attached to briefs in violation of this rule will be stricken or disregarded.” (Emphasis

added.) Id.

In this case, appellants voluntarily waived their right to a hearing

before the BTA and instead filed a merit brief and attached exhibits, which, apart

from the parties’ stipulated facts, amounted to new evidence it wanted the BTA to

consider. The BTA was within its discretion to disregard those exhibits that did not

conform to Adm.Code 5717-1-17(D).

We note that the county did not object to the admission of Winan’s

deposition testimony so long as the BTA considered it “as is,” and appellants stated

they were fine with an “as is” consideration. But the BTA still retained the discretion

to determine whether to consider the testimony and decided not to do so.2 As to the

other exhibits, they were attached to the briefs and were not properly before the

board. Had the appellants wanted the board to consider the exhibits, it could have

asked for their admission at a hearing, instead of waiving the hearing. Therefore,

we will disregard any mention of these exhibits in appellants’ briefs on appeal to this

court.

The first assignment of error is overruled.

D. Appellant’s Constitutional Claims

The second, third, and fourth assignments of error contain

appellants’ constitutional claims. Appellants complain that the 2022 assessment on

their property is 3.06 times higher than its 2020 assessment while their neighbors’

assessments are only 1.24 times higher based on the triennial update factor applied

by the fiscal officer. Because of this difference, appellants contend that the county’s

2 However, even if we found that the BTA erred in not considering the deposition

testimony, any error was harmless, because appellants have not shown a reasonable

probability that it would have made a difference in the outcome of their appeal to the BTA.

valuation of their property violated their due-process and equal-protection rights,

and the “uniform rule” found in Ohio Const., art. XII, § 2.

In Meyer, 58 Ohio St.2d at 334-335, the Ohio Supreme Court held

that the county’s use of an actual sale price to set value on one property does not

violate uniformity or equal protection, even when the use of the sale price increases

its assessment out of conformity with the assessment of similar properties. Further,

an equal-protection claim will not stand unless the evidentiary record shows that

the claimant’s unequal assessment was intentional and systematic. Id. at 333, citing

S. Ry. Co. v. Watts, 260 U.S. 519 (1923).

Appellants argues that Meyer is distinguishable because there was no

evidence of systematic discrimination but, in this case, the valuation of the subject

property was the product of an intentional and systematic attempt by county

officials to discriminate against appellants. To support its position, appellants

points to the neighboring properties. We note that the exhibit containing

information regarding those allegedly comparable neighboring properties was

properly stricken from the BTA record on appeal. As for the information that is

contained in the stipulated facts regarding those properties, there is no information

regarding how they compare to the subject property (improvements, size, etc.).

Moreover, only two of the properties showed prices comparable to the subject

property. One of the properties, Parcel 683-16-009, sold in 2018 for $402,000 and

was valued at $226,000 for tax year 2021. However, there is no evidence as to the

property’s size, improvements, market conditions, property conditions or the like.

The second property, Parcel 683-16-013, was valued at $125,000 for tax year 2021.

Appellants point out that the property was valued at $489,900 for tax year 2023,

after a sale in May 2022, for $596,000 and “value added resulting from construction

permits.” Again, there is no evidence as to the property’s size or condition, other

than that there were construction permits. Moreover, neither property was subject

to a recent arm’s-length transaction for the tax year 2022. Considering this

evidence, appellants cannot show that they were subject to “intentional and

systematic” discrimination.

The Meyer Court held that the use of sale price, even one that upsets

uniformity of values, does not violate uniformity under the Ohio Constitution. Id.

at 334-335. This is because Ohio Const., art. XII, § 2 requires taxation by “uniform

rule according to value.” So long as the common level of assessment is applied to a

parcel’s true value to determine taxable value, uniformity is satisfied. Meyer at 332.

Again, the use of an actual sale price, even one that does not conform

to the assessed values of neighboring properties, does not violate uniformity so long

as the percentage of true value that is taxed is uniform and does not violate equal

protection. Meyer at 332-333.

Merely showing that two parcels of property have different values, as

appellants have attempted to do, without more, does not establish that the tax

authorities valued the properties in a different manner. WJJK Invest. v. Licking

Cty. Bd. of Revision, 76 Ohio St.3d 29, 31 (1996). Therefore, we reject as

unsubstantiated appellants’ contention that the assessment against it violates the

constitutional requirement of uniformity. Additionally, appellants have not

established through the presentation of evidence that their equal-protection or due-

process rights were violated or that they were subject to “intentional and systematic”

discriminatory acts by the fiscal officer.

The second, third, and fourth assignments of error are therefore

overruled.

IV. Conclusion

In their brief on appeal, appellants argued that the BTA “should have

determined that [appellants] failed to meet their burden of proof to provide

probative and credible evidence for the value reduction requested. Having failed to

meet their burden of proof, the county’s value would be retained.” But this is exactly

what the BTA determined (“Based on our review of the record, the Board finds that

the taxpayers failed to provide probative and credible evidence of value.”).

“The system of taxation unfortunately will always have some

inequality and nonuniformity attendant with such governmental function. It seems

that perfect equality in taxation would be utopian, but [is] yet, as a practicality,

unattainable.” Meyer, 58 Ohio St.2d at 335. The BTA did not err in upholding the

BOR’s decision to retain the county’s valuation, which was based on the July 2020

arm’s-length sale of the subject property.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Ohio Board of Tax Appeals

to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

MICHAEL JOHN RYAN, JUDGE

EILEEN A. GALLAGHER, A.J., and

DEENA R. CALABRESE, J., CONCUR