Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision

[This opinion has been published in Ohio Official Reports at 74 Ohio St.3d 415.]

BOARD OF EDUCATION FOR ORANGE CITY SCHOOL DISTRICT, APPELLEE, v.

CUYAHOGA COUNTY BOARD OF REVISION, APPELLEE; SHERWIN-WILLIAMS

COMPANY, APPELLANT.

[Cite as Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision,

1996-Ohio-282.]

Taxation—Real property valuation—Board of Tax Appeals has discretion in

admitting evidence, weighing it, and granting credibility to testimony—

Board of Tax Appeals’ decision affirmed by Supreme Court when it is

reasonable and lawful.

(No. 95-23—Submitted October 12, 1995—Decided February 7, 1996.)

APPEAL from the Board of Tax Appeals, Nos. 93-K-105 and 93-K-106.

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{¶ 1} The Sherwin-Williams Company, appellant, owns real property at

26300 Fargo Avenue in Bedford Heights. It filed a complaint with the Cuyahoga

County Board of Revision (“BOR”), appellee, which, as amended, sought to

decrease the true value of this property for tax year 1991 from $4,550,000 to

$3,540,000.

{¶ 2} The Board of Education for the Orange City School District (“BOE”),

appellee, filed a complaint in response to Sherwin-Williams’s complaint. In this

complaint, the BOE sought to preserve the value of the property as listed by the

Cuyahoga County Auditor. The BOR, nevertheless, determined the true value to

be $4,100,000. The BOE appealed this decision to the Board of Tax Appeals

(“BTA”).

{¶ 3} At the BTA, the BOE presented the expert appraisal testimony of

Richard P. Van Curen. Van Curen testified that the true value of the property was

$4,750,000. In Van Curen’s report, he certified that his assistant, David E. Walter

SUPREME COURT OF OHIO

“provided significant professional assistance” to Van Curen. Sherwin-Williams

questioned Van Curen vigorously on this point.

{¶ 4} Van Curen testified that Walter worked on market data and on

descriptions of the property and neighborhood. In these tasks, Walter verified some

of the market data information and measured distances from the property to the

freeway access. Van Curen testified that he could not distinguish Walter’s work

product from his own.

{¶ 5} Sherwin-Williams presented the expert appraisal testimony of Paul H.

Ballou. Ballou testified that the true value of the property was $3,540,000. He

offered as “an excellent comparable” sale the sale of the property at 25000 Miles

Road in Bedford Heights. The sale occurred on July 19, 1993, two and a half years

after the tax lien date. The property was approximately the size, and within a mile,

of the subject property. Ballou adjusted the sale for its difference in size and

location of the subject, but not as to time from the tax lien date.

{¶ 6} Both appraisers testified that the sale was beyond the time that they

would normally consider as closely comparable in time. Van Curen refused to

include the sale in his analysis; Ballou, on the other hand, did, though in a

supplement prepared after his initial report.

{¶ 7} After describing the property and each appraiser’s report, the BTA

selected Van Curen’s comparable property analysis as the best indication of value.

It found the properties he chose for comparison to be more like the subject and to

require less subjective adjustment. The BTA rejected Sherwin-Williams’s criticism

of Van Curen’s reliance upon office staff to perform certain tasks for the appraisal.

It accepted his testimony that he had reviewed the information provided and that

the opinion of value offered was his own. The BTA, furthermore, approved of Van

Curen’s rejection of the July 1993 sale. The BTA found that a lack of information

regarding the specific conditions of the sale rendered his decision reasonable. Thus,

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January Term, 1996

the BTA found the true value of the property to be, as of January 1, 1991,

$4,750,000.

{¶ 8} This cause is before this court upon Sherwin-Williams’s appeal as of

right.

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Kadish & Bender, Kevin M. Hinkel and David G. Lambert, for appellee

Board of Education for the Orange City School District.

Arter & Hadden and Karen Bauernschmidt; and Gerald Steltenkamp, for

appellant.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and

Gregory B. Rowinski, Assistant Prosecuting Attorney, for appellees Cuyahoga

County Auditor and the Cuyahoga County Board of Revision.

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Per Curiam.

{¶ 9} Sherwin-Williams contends that the BTA incorrectly adopted an

appraisal that relied on data collected and analyzed by an individual who did not

testify and that the evidence did not comply with Evid.R. 703. It also contends that

the BTA improperly ignored the July 1993 sale, which it claims is the most

comparable sale in the taxing district. We disagree and affirm the BTA’s decision.

{¶ 10} The BTA has discretion in admitting evidence, Ohio Turnpike

Comm. v. Ellis (1955), 164 Ohio St. 377, 58 O.O. 179, 131 N.E. 2d 397, paragraph

eight of the syllabus; Akron v. Pub. Util. Comm. (1966), 5 Ohio St. 2d 237, 242, 34

O.O. 2d 467, 470, 215 N.E. 2d 366, 371, weighing it, and granting credibility to

testimony. Witt Co. v. Hamilton Cty. Bd. of Revision (1991), 61 Ohio St. 3d 155,

573 N.E.2d 661. Unless the BTA abuses this discretion, we will affirm its decision.

Webb Corp. v. Lucas Cty. Bd. of Revision (1995), 72 Ohio St. 3d 36, 647 N.E. 2d

162.

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SUPREME COURT OF OHIO

{¶ 11} 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.” Section 5(B), Article 4, Ohio Constitution.

The rules, nevertheless, may guide the BTA in conducting its hearings. See

Castellano v. Kosydar (1975), 42 Ohio St. 2d 107, 71 O.O.2d 77, 326 N.E.2d 686.

Thus, the BTA need not comply with Evid.R. 703.

{¶ 12} Here, Van Curen set forth his assistant’s help and testified about it.

Appraisers occasionally require help from office staff. American Institute of Real

Estate Appraisers, The Appraisal of Real Estate (9 Ed. 1987) 67. Sherwin-Williams

had knowledge of this assistance in enough advance time of the hearing that it could

have subpoenaed the assistant and examined him. Furthermore, certifying that

Walters assisted Van Curen in his report satisfies the standards of the Appraisal

Foundation, Uniform Standards of Professional Appraisal Practice (1990),

Standards Rule 2-3. We find no abuse of discretion in the BTA’s accepting this

evidence and crediting it as it did.

{¶ 13} We also find that the BTA did not abuse its discretion in weighing

the evidence of the July 1993 sale. The sale was outside the time limits both

appraisers normally analyzed. Ballou did not adjust the sale for time; in fact, he

failed to record what specific adjustments he did make for this sale.

{¶ 14} Accordingly, we affirm the BTA’s decision because it is reasonable

and lawful.

Decision affirmed.

MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ.,

concur.

PFEIFER, J., dissents.

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