The opinion
[Cite as Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212,
2014-Ohio-1940.]
DUBLIN CITY SCHOOLS BOARD OF EDUCATION, APPELLEE, v. FRANKLIN
COUNTY BOARD OF REVISION ET AL., APPELLEES; EAST BANK
CONDOMINIUMS II, L.L.C., APPELLANT.
[Cite as Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision,
139 Ohio St.3d 212, 2014-Ohio-1940.]
On reconsideration—Taxation—Valuation of real property—Board of Tax
Appeals correctly rejected bulk-appraisal valuation for condominium
units—Board of Tax Appeals acted unreasonably and unlawfully in
reinstating county auditor’s valuations—Cause remanded to Board of Tax
Appeals for determination of value.
(No. 2012-1432—Submitted January 7, 2014—Decided May 15, 2014.)
APPEAL from the Board of Tax Appeals, Nos. 2009-Q-1282 through 2009-Q-1301
and 2009-Q-1408.
ON MOTION FOR RECONSIDERATION.
____________________
FRENCH, J.
{¶ 1} East Bank Condominiums II, L.L.C. (“East Bank”), appeals the
decision of the Board of Tax Appeals (“BTA”), which reinstated the county
auditor’s valuations for 21 condominium units owned by East Bank. Originally, a
majority of this court rejected the auditor’s valuations and accepted the bulk-
appraisal valuation East Bank submitted. Dublin City Schools Bd. of Edn. v.
Franklin Cty. Bd. of Revision, 139 Ohio St.3d 193, 2013-Ohio-4543, ___ N.E.3d
___ (“Dublin City Schools I”), ¶ 27. Today we grant, in part, the Dublin City
Schools Board of Education’s motion for reconsideration of our prior decision.
We conclude that the BTA was correct in rejecting East Bank’s bulk-appraisal
valuation for the units, but was incorrect in adopting the auditor’s valuations.
Accordingly, we remand this matter to the BTA for an independent determination
of value.
SUPREME COURT OF OHIO
Facts
{¶ 2} This case concerns the valuation of 21 units in East Bank’s 28-unit
condominium complex. As of tax-lien date January 1, 2008, the 21 units were
still under construction and unsold. The Franklin County Auditor valued each
unit as a separate parcel. The aggregate value of the 21 units amounted to
$8,139,300. The property-record cards do not indicate, however, whether the
auditor properly took into account the unfinished state of the units when
determining their values, as required by Ohio Adm.Code 5703-25-06(G).
{¶ 3} East Bank filed valuation complaints, challenging the auditor’s
assessments for each of the 21 units. The school board filed countercomplaints,
seeking to retain the auditor’s valuations.
{¶ 4} At the board of revision (“BOR”) hearing, East Bank presented a
report and testimony from appraiser Thomas Horner. After deducting the cost of
finishing the units, Horner opined that the condominiums would yield “gross sale
proceeds” of $6,492,294. Horner further determined that he had to value the units
in bulk, because, in his view, all 21 condominiums were a “single economic unit.”
Accordingly, Horner discounted his figure to arrive at a “net present-value” of
$3,100,000, which is less than 48 percent of the predicted gross sale proceeds.
According to Horner, this number represented what a single investor would pay
for all 21 condominiums. The BOR adopted Horner’s $3,100,000 bulk valuation.
{¶ 5} The school board appealed to the BTA. The school board argued
for adoption of the auditor’s valuations, or, in the alternative, for adoption of
Horner’s “gross sale proceeds” value of $6,492,294. At the BTA hearing, the
school board did not put on any witnesses or evidence. Instead, it focused solely
on attacking the validity of Horner’s appraisal.
{¶ 6} The BTA found that Horner’s bulk-appraisal method was
improper. Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, BTA
Nos. 2009-Q-1282 through 2009-Q-1301 and 2009-Q-1408, 2012 WL 3166815,
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January Term, 2014
*5 (July 24, 2012). It subsequently ordered reinstatement of the auditor’s
valuations, which totaled $8,139,300 for the 21 units. Id. at *6.
{¶ 7} East Bank appealed the BTA’s decision to this court. East Bank
argued in part that the BTA erred by rejecting Horner’s bulk-discount
methodology and by not valuing the condominiums as a single economic unit.
{¶ 8} On October 16, 2013, this court issued its original decision in this
matter, reversing the BTA. Dublin City Schools I, 139 Ohio St.3d 193, 2013-
Ohio-4543, ___ N.E.3d ___. We held that the BTA erred in reverting to the
auditor’s determinations of value. Id. at ¶ 27. The majority opinion then
concluded by “adopt[ing] the only evidence of valuation contained in the record
presented by East Bank through its expert, resulting in a valuation of $3,100,000.”
Id. The majority opinion did not, however, consider whether the bulk-valuation
approach, which was used by East Bank to arrive at the $3,100,000 figure, was
appropriate. Id. at ¶ 27, fn. 1.
Questions Presented
{¶ 9} The school board has moved for reconsideration. Under
S.Ct.Prac.R. 18.02, we use our reconsideration authority to “correct decisions
which, upon reflection, are deemed to have been made in error.” State ex rel.
Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339
(1995). We will not, however, grant reconsideration when a movant seeks merely
to reargue the case at hand. S.Ct.Prac.R. 18.02(B).
{¶ 10} The school board raises three grounds for reconsideration. First, it
argues that this court erred in holding that the school board had to offer additional
evidence of value in order to meet its burden of proof at the BTA hearing. This
court already thoroughly considered the burden-of-proof issue in our first
decision. Dublin City Schools I at ¶ 14-16. The issue was the subject of much
discussion and debate in this court’s competing opinions. See id. at ¶ 55-59. And
all seven justices agreed, albeit for different reasons, that the school board needed
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SUPREME COURT OF OHIO
to offer additional proof to the BTA. Id. at ¶ 16, 58-59. Therefore, the school
board’s first argument does not call our attention either to an obvious error or an
issue that this court did not consider. Accordingly, we decline to reconsider our
opinion as to the school board’s first claim.
{¶ 11} Second, the school board contends that this court erred factually in
holding that the school board did not produce any evidence of its proposed value
at the BTA hearing. Specifically, the school board claims that it produced
evidence when it made an alternative argument to the BTA in support of Horner’s
$6,492,294 “gross sale proceeds” figure. In other words, it contends that East
Bank’s appraisal evidence was the school board’s valuation evidence.
{¶ 12} We are not persuaded. Regardless of what the school board said to
the BTA, the school board specifically argued against the $6,492,294 figure in its
merit brief to this court. The school board supported only the auditor’s
valuations. The school board cannot argue against the validity of the $6,492,294
figure, and then claim that this court should have considered that figure as
evidence of value. We therefore decline reconsideration as to the school board’s
second claim.
{¶ 13} Finally, the school board argues that the majority erred when it
summarily accepted East Bank’s $3,100,000 bulk-sale valuation without
considering the validity of that valuation. The school board contends that we
should have remanded this case to the BTA for an independent determination of
value. We agree. Our prior decision erred when it adopted East Bank’s bulk
valuation without first conducting any analysis as to whether that valuation was
accurate. This court can affirmatively accept a particular valuation only if it
determines that the record supports that figure. Bedford Bd. of Edn. v. Cuyahoga
Cty. Bd. of Revision, 115 Ohio St.3d 449, 2007-Ohio-5237, 875 N.E.2d 913, ¶ 15.
{¶ 14} Similarly, this court cannot reverse the BTA without first
analyzing whether the BTA’s decision was correct. R.C. 5717.04. Our appellate
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January Term, 2014
power over the BTA is statutorily based. Id. We may reverse a decision of the
BTA only upon determining “that such decision of the board is unreasonable or
unlawful.” Id. In this case, the BTA explicitly rejected East Bank’s $3,100,000
valuation on the grounds that Horner’s bulk-sale appraisal was legally improper.
2012 WL 3166815 at *5. A majority of this court reversed the BTA and adopted
Horner’s valuation. Dublin City Schools I, 139 Ohio St.3d 193, 2013-Ohio-4543,
___ N.E.3d ___, at ¶ 27. But the majority did so without first determining that the
BTA acted unreasonably or unlawfully in rejecting the bulk-sale valuation. Id.
The majority reasoned instead that it “need not consider whether the bulk sale
approach was appropriate in this instance.” Id. at ¶ 27, fn. 1. Both statute and
precedent contradict this approach.
{¶ 15} Accordingly, we grant the school board’s motion for
reconsideration in part. We now consider whether the BTA erred in rejecting the
bulk-sale valuation and whether remand would be appropriate.
Analysis
A. Horner’s Bulk-Value Appraisal Was Inappropriate
{¶ 16} Taxing authorities must value condominium units as separate
parcels, even when those units are contained in a single complex. R.C. 5311.11
(“Each unit of a condominium property * * * is deemed a separate parcel for all
purposes of taxation and assessment of real property.”) (Emphasis added.)
Horner’s appraisal violates this legal mandate by valuing all 21 individual parcels
in bulk as if they were “a single economic unit.”
{¶ 17} In Eastcreek Corp. v. Cuyahoga Cty. Bd. of Revision, 8th Dist.
Cuyahoga Nos. 53150-53156, 1988 WL 1544 (Jan. 7, 1988), the Eighth District
Court of Appeals relied on R.C. 5311.11 in considering and invalidating a similar
bulk appraisal. In Eastcreek, the appellee owned 30 units in a condominium
complex. The owner presented evidence from an appraiser who applied “a forty
percent discount to each unit because all of them were owned by one entity.” Id.
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SUPREME COURT OF OHIO
at *1. “The rationale for this discount was that the condominiums could not be
sold individually because of market conditions” and could only be sold in bulk.
Id. The court found that this bulk-discounting method violated R.C. 5311.11. As
the court explained:
Under the plain language of [R.C. 5311.11], each
condominium unit is “deemed to be a separate parcel for all
purposes of taxation and assessment of real property.” The board’s
use of a volume discount was based on the likelihood that all of the
appellee’s condominiums would be sold to one buyer. This
method of valuation effectively treated the appellee’s
condominiums as if they all were one parcel. Consequently, the use
of this method of valuation was in conflict with R.C. 5311.11, and
was unlawful.
Id. at *2.
{¶ 18} Horner’s appraisal fails for the same reasons. Just as in Eastcreek,
Horner conducted a bulk valuation on the grounds that all of the condominiums
were owned by one owner and “that owner [could] only sell all units at one time
to one investor.” Horner admittedly treated the condominiums as “a single
economic unit.” His methodology therefore runs afoul of R.C. 5311.11, as did the
appraisal in Eastcreek.
{¶ 19} East Bank relies on this court’s plurality decision in Pingue v.
Franklin Cty. Bd. of Revision, 87 Ohio St.3d 62, 717 N.E.2d 293 (1999), to
support the notion that a bulk-condominium appraisal is permissible. Pingue,
however, is fundamentally distinguishable because it involved an actual sale of
condominiums, not an appraisal. And our decision made no mention of R.C.
5311.11. Pingue does not, therefore, support East Bank’s position.
6
January Term, 2014
{¶ 20} Pingue dealt with the valuation of 44 identical condominium units.
Id. at 62. The property owner had purchased all 44 units for $2,530,000, or
$57,500 per unit. Id. He presented uncontroverted evidence that the purchase
was an arms-length transaction and argued that the sale price of $57,500 per unit
should establish the taxable value for each parcel. Id. at 63. The BTA rejected
the sale price and instead looked to appraisal evidence to determine the value of
each parcel. Id. This court reversed the BTA. We held that under former R.C.
5713.03, we were required to use the allocated sale price to establish the true
taxable value of the properties. Id. at 64-65.
{¶ 21} Pingue does not support the notion that the BTA can accept bulk-
appraisal evidence when determining the taxable value of condominium units.
Pingue merely supports the notion that the law favors the use of a sale price over
competing appraisal evidence. In this case, there is no actual sale price to
consider. East Bank presented only an appraisal, and that appraisal violated R.C.
5311.11. Pingue is therefore inapposite.
{¶ 22} In addition to being legally impermissible, East Bank’s appraisal
was also inconsistent with the record. As we previously noted, Horner testified
that the condominiums constituted a single economic unit because East Bank
owned all the units and could only sell them in bulk to a single investor. He
further implied that the highest and best use of the condominiums was as a single
investment property, rather than individual, owner-occupied residences.
{¶ 23} The record contradicts Horner’s conclusions. First, despite his
testimony, Horner’s own appraisal report lists the highest and best use of the
properties as “[o]wner-occupied residential condominiums.” East Bank partner
George Babyak also confirmed that East Bank planned the condominium
development for individual residential use. Babyak further testified that although
a few out-of-state developers informally approached East Bank about purchasing
all 21 units, East Bank rejected these bulk-purchase offers, preferring to market
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SUPREME COURT OF OHIO
and sell the condominiums individually. By late 2011, East Bank had sold 14 of
the 21 units. No bulk sale ever occurred.
{¶ 24} Horner’s appraisal method, which “results in a bulk purchase value
and represents what the owner would sell all of the units [for] to a single
purchaser,” is inconsistent with these facts. The highest and best use of the
condominiums was as owner-occupied residential units. East Bank continuously
marketed and sold the condominiums individually. At no point did East Bank
ever list the 21 units as a bulk-sale investment property. It was therefore
inappropriate for Horner to value the condominiums in bulk as if East Bank could
sell them only to a single investor. The facts do not support the appraisal’s
“single economic unit” premise.
{¶ 25} Finally, East Bank’s appraisal is also invalid because it does not
comport with the statutory purposes of real-property taxation. County auditors
are charged with assessing the “true value” of real property. R.C. 5713.01(B).
“True value” means either the amount the property recently sold for on the open
market or the amount of an appraisal predicting what that sale price would be.
Ohio Adm.Code 5703-25-05(A); Cummins Property Servs., L.L.C. v. Franklin
Cty. Bd. of Revision, 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 23;
State ex rel. Park Invest. Co. v. Bd. of Tax Appeals, 175 Ohio St. 410, 412, 195
N.E.2d 908 (1964).
{¶ 26} East Bank’s appraisal does not assess the “true value” of the
condominium parcels for taxation purposes. Instead of predicting what the units
would sell for on the open market, the appraisal predicted the units’ “net present”
investment value. It began by valuing the condominiums “in their present
condition on a retail basis if sold to individuals.” It then deducted “sales costs”
such as commissions, legal fees, holding costs, and property taxes. Next, it
applied a 20 percent time-value-of-money discount to account for the absorption
rate of the condominiums. The appraisal’s final figure—$3,100,000—represents
8
January Term, 2014
“a 48% discount from the retail price or total anticipated sales income.”
Essentially, East Bank’s appraisal predicted actual sale prices and then discounted
those sale prices to arrive at a cash-in-hand valuation.
{¶ 27} The BTA was therefore correct in rejecting East Bank’s appraisal
on the grounds that it “arrives at an investment value, rather than real market
value.” Dublin City Schools Bd. of Edn., 2012 WL 3166815, at *4, citing M/I
Homes of Cincinnati, L.L.C. v. Warren Cty. Bd. of Revision, BTA No. 2009-V-
3796, 2010 WL 3724159 (Sept. 21, 2010). As the BTA pointed out, this
methodology may have been appropriate for a financial institution making lending
decisions, but it was not an appropriate way to appraise real property for taxation
purposes. 2012 WL 3166815 at *5 (“while it may be true that, for purposes of
appraising properties for financing purposes, it is appropriate to apply a bulk
discount, the present matter concerns appraisal for tax valuation purposes”). The
appraisal openly deviated from finding the true values, or anticipated sale prices,
of the condominiums. Rather, East Bank proffered an investment value that was
significantly less than the predicted sale prices of the units. We cannot sanction
this approach; the law mandates that we use the predicted sale prices themselves
as the true taxable value of the properties. Cummins at ¶ 23; Ohio Adm.Code
5703-25-05(A).
{¶ 28} Finally, we acknowledge Horner’s testimony that the appraisal’s
methodology comported with professional FIRREA1 and USPAP2 guidelines.
Those guidelines, however, are ultimately irrelevant in this context. Industry
standards do not establish the legal parameters of real-property assessment for
taxation purposes. See, e.g., HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 138
Ohio St.3d 223, 2014-Ohio-523, 5 N.E.3d 637, ¶ 23.
1. Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
2. Uniform Standards of Professional Appraisal Practice.
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SUPREME COURT OF OHIO
{¶ 29} For all these reasons, the BTA did not err in rejecting East Bank’s
bulk-value-appraisal methodology in this case. The methodology contradicted
R.C. 5311.11, the facts of this case, and the statutory goals of real-property
assessment.
B. Rather Than Revert to the Auditor’s Valuations, the BTA Should Have
Independently Determined the Value of the Properties
{¶ 30} After it considered and rejected East Bank’s arguments, the BTA
reinstated the auditor’s valuations for each parcel. Dublin City Schools Bd. of
Edn., 2012 WL 3166815, at *6. In this court’s prior opinion, we held that the
BTA erred in reverting to the auditor’s valuations. Dublin City Schools I, 139
Ohio St.3d 193, 2013-Ohio-4543, ___ N.E.3d ___, at ¶ 26. That portion of our
prior decision remains unchanged.
{¶ 31} Rather than adopt the auditor’s valuations, the BTA should have
conducted its own analysis and made an independent determination as to the
taxable values of the properties. See, e.g., Vandalia-Butler City Schools Bd. of
Edn. v. Montgomery Cty. Bd. of Revision, 130 Ohio St.3d 291, 2011-Ohio-5078,
958 N.E.2d 131, ¶ 26 (“When there is sufficient evidence to permit the BTA to
perform an independent valuation * * * the BTA must do so”); Colonial Village,
Ltd. v. Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641,
873 N.E.2d 298, ¶ 23-25. If necessary, the BTA may order the presentation of
additional evidence to assist with this determination. R.C. 5717.01; Columbus
City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 90 Ohio St.3d 564,
567, 740 N.E.2d 276 (2001) (remanding to the BTA for an independent
determination of value and noting that under R.C. 5717.01, the BTA “ ‘may order
the hearing of additional evidence, and may make such investigation concerning
the appeal as it deems proper’ ”). Accordingly, we remand this case to the BTA
so that it may conduct an independent valuation for the properties in question.
See Colonial Village at ¶ 1 (ordering remand for the BTA to conduct an
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January Term, 2014
independent valuation of the property after the BTA had unlawfully upheld the
auditor’s valuation); Vandalia-Butler at ¶ 27 (remanding because the BTA did not
conduct an independent analysis of value).
Conclusion
{¶ 32} Upon partial reconsideration of our prior decision, we find that the
BTA correctly rejected East Bank’s bulk-value appraisal for the 21 condominium
units and we therefore affirm that portion of the BTA’s decision. East Bank’s
appraisal violated real-property-assessment statutes and was otherwise
unsupported by the facts in the record. The BTA erred, however, in reverting to
the auditor’s determinations of value. The BTA should have independently
determined the taxable values of the 21 properties in question. We remand this
case to the BTA so that it may perform that independent valuation.
Motion for reconsideration granted in part,
decision affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur.
PFEIFER, O’DONNELL, and KENNEDY, JJ., dissent in part.
____________________
O’DONNELL, J., dissenting in part.
{¶ 33} I respectfully dissent from the majority’s decision to reconsider
whether the Board of Tax Appeals (“BTA”) erred in rejecting the bulk sale
valuation and to remand the matter to the BTA for an independent determination
of value. Here, East Bank presented expert evidence of a $3,100,000 valuation,
and the Dublin City Schools Board of Education failed to present any evidence
supporting a different valuation and thus failed to meet its burden of proof on
appeal to the BTA. Moreover, because evidence in the record negated the
auditor’s valuation of the property, the BTA acted unreasonably and unlawfully
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by reverting to that valuation instead of conducting its own independent valuation
based upon the evidence in the record. Accordingly, I would adopt East Bank’s
evidence and establish the 2008 valuation as $3,100,000.
Factual Background
{¶ 34} This case involves the property valuation of 21 condominium units
that remained unfinished to varying degrees as of the 2008 tax lien date. The
Franklin County auditor assessed the true value of each of the 21 units and
determined that the aggregate value of the units for the tax year 2008 was
$8,139,300. East Bank filed complaints with the board of revision challenging
the auditor’s valuation of the property, and the board of education filed
countercomplaints seeking retention of the auditor’s valuation.
{¶ 35} At the board of revision hearing, the only evidence regarding
valuation came from East Bank. In addition to the testimony of East Bank’s
managing partner, East Bank presented the testimony and appraisal report of
Thomas Horner, who opined that the 21 units had a “net present market value” or
“as-is value” of $3,100,000. To arrive at this value, Horner conducted a
comparable sales analysis and then deducted the estimated cost to finish the
remaining units. This analysis yielded “gross sale proceeds” of $6,492,294.
Because he considered the 21 units as a “single economic unit” due to the facts
that they are “owned by one owner” and “[t]hat owner can only sell all units at
one time to one investor,” he applied a “bulk discount” to arrive at an estimated
value of $3,100,000.
{¶ 36} Although counsel for the school board cross-examined East Bank’s
managing partner, the school board did not present any witnesses or additional
evidence regarding the value of the property at the board of revision hearing.
{¶ 37} The board of revision adopted Horner’s valuation of $3,100,000 as
the total fair market value for the 21 units, noting, “We were given no additional
information on behalf of the county complainant school board in this matter, and
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* * * we recognize Mr. Horner as being an expert in the area of real estate
appraisal.”
{¶ 38} The school board appealed the board of revision’s decision to the
BTA. At the BTA hearing, however, the school board failed to present any
witnesses or any evidence supporting its valuation or the auditor’s valuation. East
Bank presented the testimony of its managing partner and Horner, who offered
additional data from condominium sales occurring after the tax lien date and
retrospectively concluded that a revised cash flow analysis yielded a value of
$2,900,000.
{¶ 39} After its review, the BTA reversed the board of revision’s
adjustments and reinstated the auditor’s valuation of the 21 units, determining that
Horner’s use of the bulk discount was improper and concluding that East Bank
“failed to present competent and probative evidence to either this board or the
BOR in support of its requested decreases in value.” Dublin City Schools Bd. of
Edn. v. Franklin Cty. Bd. of Revision, BTA Nos. 2009-Q-1282 through 2009-Q-
1301 and 2009-Q-1408, 2012 WL 3166815, *6 (July 24, 2012).
Dublin City Schools I
{¶ 40} In our prior decision, we recognized that “[w]hen a party appeals a
board of revision’s decision to the BTA, the appellant, whether it be a taxpayer or
a board of education, has the burden to prove its right to a reduction or increase in
the board of revision’s determination of value.” Dublin City Schools Bd. of Edn.
v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 193, 2013-Ohio-4543, ___
N.E.3d ___, ¶ 15 (“Dublin City Schools I”), citing Columbus City School Dist.
Bd. of Edn. v. Franklin Cty. Bd. of Revision, 90 Ohio St.3d 564, 566, 740 N.E.2d
276 (2001). We further explained that when the board of revision adopted East
Bank’s valuation, the burden of presenting “competent and probative evidence”
supporting a different valuation shifted to the board of education on appeal to the
BTA. Id. at ¶ 16. However, we determined that the board of education failed to
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meet its burden in this case, because it did not present any evidence to support its
own valuation or the auditor’s valuation. Id.
{¶ 41} Moreover, we determined that “the BTA’s reinstatement of the
auditor’s valuation was ‘not justified, because the taxpayer had presented
evidence contrary to the auditor’s determination to the board of revision.’ ” Id. at
¶ 21, quoting Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 115 Ohio
St.3d 449, 2007-Ohio-5237, 875 N.E.2d 913, ¶ 12. Specifically, we noted that
“there is no evidence indicating that the auditor accounted for the unfinished state
of the units or the units’ depreciation in value due to market conditions, and the
historical sales evidence provided by East Bank further contradicts the auditor’s
valuation.” Id. Thus, we concluded that “[w]hen confronted with such clear
evidence negating the auditor’s valuation, the BTA acted unreasonably and
unlawfully in adopting the auditor’s valuation rather than determining the taxable
value of the property.” Id. at ¶ 26.
{¶ 42} Determining that the school board did not present any evidence
before the board of revision or the BTA, that the evidence in the record negated
the auditor’s valuation, and that the BTA acted unreasonably and unlawfully in
failing to conduct its own independent valuation despite sufficient evidence in the
record to do so, we reversed the decision of the BTA and established the 2008
valuation as $3,100,000 in accordance with the only evidence of valuation
contained in the record as presented by East Bank’s expert. Id. at ¶ 27. We
further explained, “We need not consider whether the bulk sale approach was
appropriate in this instance because we determine that the BTA acted
unreasonably and unlawfully in not conducting its own independent valuation of
the property taking into account the unfinished state of some, if not all, of the
units, the depreciation in value, and the sales history.” Id. at fn. 1.
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Reconsideration
{¶ 43} Instead of determining whether the BTA erred in rejecting the bulk
sale valuation and remanding the cause, I would reinstate the valuation of
$3,100,000 based upon East Bank’s evidence of value and the board of
education’s failure to present any evidence supporting a different valuation.
{¶ 44} In Bedford, 115 Ohio St.3d 449, 2007-Ohio-5237, 875 N.E.2d 913,
a case involving the valuation of an improved parcel of land that was one of
several parcels in a strip mall, id. at ¶ 1, we concluded that the BTA’s
reinstatement of the auditor’s valuation was not justified, because the property
owner presented evidence contradicting the auditor’s determination to the board
of revision and the school board’s evidence before the BTA “did not amount to
independent evidence of value that would undermine the BOR’s determination”
nor did it “support reinstating the auditor’s valuation.” Id. at ¶ 12-13. We further
explained that we did “not need to remand the cause to the BTA, because the
BOR’s determination comports with the evidence in the record.” Id. at ¶ 15.
{¶ 45} Similarly, in my view, we do not need to remand this matter to the
BTA, because East Bank provided expert evidence supporting the value of
$3,100,000 and the school board had the opportunity—and the burden—to present
evidence supporting a different valuation on appeal to the BTA but failed to do
so. Considering that the parties had “ample opportunity to present evidence,”
they should not be given another chance to present additional evidence on
remand. Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision,
124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d 972, ¶ 34 (vacating the BTA’s
decision and remanding for a determination whether the sale was “recent” in light
of the entire record but ordering that “the BTA shall not take additional evidence
on remand,” as “the parties have had ample opportunity to present evidence”); see
generally HealthSouth Corp. v. Levin, 121 Ohio St.3d 282, 2009-Ohio-584, 903
N.E.2d 1179, ¶ 36 (vacating the BTA’s decision and remanding the case to the
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SUPREME COURT OF OHIO
BTA for it to “complete its fact-finding” but ordering that “[b]ecause the parties
have been afforded ample opportunity to present evidence, the BTA shall not take
additional evidence on remand”).
{¶ 46} Moreover, the BTA acted unreasonably and unlawfully in
reinstating the auditor’s valuation, because the evidence in the record contradicted
that valuation and there was sufficient evidence in the record from which the BTA
could independently determine value. Dublin City Schools I, 139 Ohio St.3d 193,
2013-Ohio-4543, ___ N.E.2d ___, at ¶ 21, 26. The BTA should have conducted
an independent determination of value based on the evidence in the record in the
first instance, and for that reason I dissent from the majority’s decision to
“remand this case to the BTA so that it may conduct an independent valuation for
the properties in question.” Majority opinion at ¶ 31. A remand in this situation
prolongs even further the determination of value in a case involving a 2008 tax
lien date.
{¶ 47} Accordingly, I would reverse the determination of the BTA and, in
light of the school board’s failure to satisfy its burden and provide evidence
supporting a different valuation, I would establish the 2008 valuation at
$3,100,000 in accordance with the evidence presented in this case.
PFEIFER and KENNEDY, JJ., concur in the foregoing opinion.
____________________
Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Jeffrey A. Rich, and
Karol C. Fox, for appellee Dublin City Schools Board of Education.
Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Matthew S.
Zeiger, for appellant.
_________________________
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