Geneva Area Recreational, Educational & Athletic Trust v. Testa (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Geneva Area Recreational, Educational & Athletic Trust v. Testa, Slip Opinion No. 2016-Ohio-

2695.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-2695

GENEVA AREA RECREATIONAL, EDUCATIONAL & ATHLETIC TRUST,

APPELLANT, v. TESTA, TAX COMMR., APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Geneva Area Recreational, Educational & Athletic Trust v.

Testa, Slip Opinion No. 2016-Ohio-2695.]

Taxation—Real property—Charitable-use exemption—R.C. 5709.12(B) and

5709.121—Property owned by for-profit entity and used for leasing is not

exempt—Prospective-use doctrine does not apply.

(No. 2014-1778—Submitted February 9, 2016—Decided April 27, 2016.)

APPEAL from the Board of Tax Appeals, No. 2012-841.

_______________________

PFEIFER, J.

{¶ 1} In 2009, appellant, the Geneva Area Recreational, Educational and

Athletic Trust, a nonprofit 501(c)(3) corporation d.b.a. Spire Institute (“Spire”),

entered into an agreement to lease more than 160 acres of land in Geneva, Ohio,

from Roni Lee, L.L.C. (“Roni Lee”), a for-profit company. By 2012, Spire had

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constructed Olympic-grade athletic facilities and related improvements on about

one fourth of the property. In tax year 2010, Spire sought a real-estate-tax

exemption for the entire property under the charitable-use exemption, citing R.C.

5709.12 and 5709.121. The commissioner denied the request, and the Board of Tax

Appeals (“BTA”) affirmed.

{¶ 2} Spire appealed, arguing that the exemption applies because the

property belongs to it (not Roni Lee) and because Spire uses the property

exclusively for charitable purposes. We reject Spire’s arguments and affirm the

BTA’s decision.

FACTS

The property and its ownership

{¶ 3} Roni Lee owns the subject property, a 163.09-acre tract in Geneva.

On March 31, 2009, Roni Lee leased the property to Spire for a renewable term of

99 years. Under the lease, Spire agreed to pay Roni Lee $1 annually and assumed

responsibility for all maintenance and improvements. The record reveals a close

connection between Roni Lee and Spire. Spire’s chief executive officer, Ron

Clutter, is the primary owner and managing member of Roni Lee. Clutter owns a

95 percent interest in Roni Lee; his wife owns the remaining interest.

{¶ 4} Consistent with the lease terms, Spire has constructed Olympic-grade

athletic facilities and ancillary improvements, collectively known as the Spire

Complex, on the property. The facilities include the following:

 The Fields and Courts Building, which houses a full-size synthetic turf

field and a large multipurpose court area. All-Star Physical Therapy and

Wellness, a for-profit company, pays $4,473 monthly to lease 4,000

square feet in the building and provides Spire with trainers.

 The Aquatics Center, which includes two pools (recreational and

Olympic-sized), diving areas, a restaurant, and the Michael Johnson

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Performance Training Center (a training and fitness center). Spire pays

the center $150,000 annually to operate on the premises.

 The Indoor Track and Field Building, which accommodates football,

baseball, track-and-field events, and a 25,000-square-foot banquet area.

It also houses Spire Fit, a fitness center that offers public memberships.

 A nine-acre outdoor stadium, which accommodates football, soccer, and

track-and-field events. The stadium seats 10,000 and includes ten

enclosed luxury suites.

{¶ 5} Spire has developed only about 45 acres of the property so far, but it

has plans for future development. It has contemplated, among other things, a tennis

complex, broadcast facilities, a spa and wellness center, a hotel and conference

center, freestanding restaurants, commercial development, a retail village, and a

residential sports academy. In the meantime, Spire partners with a private school

near Mentor to operate “Spire Academy,” a residential program that allows students

to train at Spire while they live and study at Andrews Osborne Academy.

Application for exemption

{¶ 6} In tax year 2009, the county auditor valued the subject property at

$2,660,220. Spire filed an application requesting exemption for tax year 2010

under R.C. 5709.12(B) and 5709.121.

{¶ 7} Before the tax commissioner, Spire presented evidence that the Spire

Complex serves unmet community needs. For example, the local high school uses

Spire’s fields for a cost comparable to what it would pay to maintain its own fields.

Spire has also agreed to let the school retain the amount of gate revenues from

football games that it would have earned at its own facilities; Spire takes the

remainder.

{¶ 8} Spire also asserted that its services are available regardless of ability

to pay. In its exemption application, Spire explained that it would set fees at an

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affordable rate for local residents and noted that fees “may be waived in special

circumstances, especially for underprivileged youth.”

{¶ 9} As to the undeveloped property, Spire’s application stated, “In the

future, it is possible that any excess real estate in the Complex may be sold to

businesses for commercial development.”

{¶ 10} On January 23, 2012, the tax commissioner denied exemption. The

commissioner found that Roni Lee uses the property for “land development and

commercial leasing.” The commissioner found “no evidence that [Spire] is

engaged in charitable activity in any substantial way, even though it is a non-profit

entity.” Ultimately, the commissioner concluded,

the owner’s primary use of the subject property is leasing it for

development as an elite sports training facility to develop Olympic

and professional caliber athletes, together with the appreciation and

development of the surrounding property controlled by the owner

and not subject to the lease.

{¶ 11} The commissioner also denied exemption of the undeveloped

property under the prospective-use doctrine—which can exempt real property

acquired with the intention of devoting it to a use that would exempt it from taxation

but that has not yet begun—explaining that Spire’s own exemption application

stated that this land may be sold to developers for commercial use.

BTA proceedings

{¶ 12} Spire appealed to the BTA, arguing that it is a charitable institution

and that it uses the subject property exclusively for charitable purposes. In addition,

Spire argued that the property “belongs to” it—rather than to Roni Lee—for

purposes of R.C. 5709.12(B) and 5709.121.

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{¶ 13} The BTA held a hearing on July 29, 2013. Spire presented extensive

testimony from Jeffrey Orloff, Spire’s chief operating officer, about Spire’s

operations and charitable activities. Orloff testified that Ron Clutter created Spire

to give the local community access to athletic facilities that did not otherwise exist

in the region. Spire’s mission is to “unlock the full potential of the human spirit

through athletics, academics, and service.” According to Orloff, the goal of Spire

is “not to make money but to provide * * * services.” He testified that Spire

provides many services for free or at a reduced rate. Orloff emphasized that the

policy is well known to both employees and patrons.

{¶ 14} In support of this testimony, Spire introduced a copy of a board

resolution indicating that it “will offer its services at its own expense, or on a sliding

scale of cost, based on any individual’s or organization’s ability to pay” and will

“make a special effort to offer [its] services, programs and facilities” to individuals

in need of that assistance. Orloff explained that this was Spire’s intent “from day

one,” although he was uncertain when the board adopted this policy or when similar

language appeared on Spire’s website. Orloff conceded that Spire does not have a

published sliding fee scale or any written policy for reduced rates, even for tuition

at Spire Academy. Instead, Spire awards discounts on a case-by-case basis, relying

on the “honor system.”

{¶ 15} As to the undeveloped portions of the property, Orloff testified that

Spire has yet to make final plans or secure funds for future projects. He indicated

that Spire intends to build dormitories and possibly other sporting complexes.

Orloff asserted that any future uses of the property would be consistent with Spire’s

mission, but on cross-examination he conceded that “it is possible any excess real

estate in the Complex may be sold to businesses for commercial development.” In

fact, one projection for Spire in “2011 and beyond” specifically mentions a

“Commercial Development/Retail Village.” Ultimately, Orloff stated that Spire

hopes to keep a high percentage of the property, perhaps 80 percent.

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{¶ 16} At the hearing, counsel for the tax commissioner inquired about

Spire’s 2010 tax returns. Although the returns reported $15,243,518 in net income,

Orloff insisted that Spire “[broke]-even at best.” He explained that the tax figures

did not account for capital expenditures and noted that Ron Clutter donated $19

million to Spire in 2010.

{¶ 17} On September 16, 2014, the BTA issued a decision affirming the

denial of exemption. The BTA found that Roni Lee did not use the property for

charitable purposes; the only activity there was evidence that the company

undertook was leasing the property to Spire. The BTA also found that Spire does

not use the property solely for charitable purposes. It described Spire’s “main goal”

as “creat[ing] an elite athletic training facility” for professional and Olympic-

caliber athletes. The BTA concluded that most Spire patrons pay for services; it

saw no concrete evidence that Spire offers many services for a reduced rate, and it

was unconvinced that Spire has a formal policy to provide services without regard

to ability to pay. Finally, the BTA held that Spire failed to satisfy its burden with

respect to the unused portions of the property under the prospective-use doctrine.

ANALYSIS

{¶ 18} On appeal, Spire asserts six propositions of law:

PROPOSITION OF LAW NO. 1: Real property a charitable

institution leases pursuant to a 99-year renewable ground lease

agreement “belongs to” that charitable institution for purposes of

applying R.C. 5709.12 and R.C. 5709.121.

PROPOSITION OF LAW NO. 2: An institution operated

without any view to profit and exclusively for charitable purposes is

a charitable institution.

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PROPOSITION OF LAW NO. 3: Real property that is used

exclusively for charitable purposes is exempt from taxation under

R.C. 5709.12(B).

PROPOSITION OF LAW NO. 4: A charitable institution’s

real property is exempt from taxation under R.C. 5709.121(A)(2) if

it is made available under the direction or control of the charitable

institution for use in furtherance of or incidental to the charitable

institution’s charitable, educational or public purposes and not with

a view to profit.

PROPOSITION OF LAW NO. 5: R.C. 5709.12 and R.C.

5709.121 do not preclude the collection of fees for services nor do

they require a certain percentage of free or discounted services.

PROPOSITION OF LAW NO. 6: Engaging in extensive

planning to develop real property for activities consistent with a

charitable institution’s charitable purposes satisfies this court’s

“prospective use” standard.

Standard of review

{¶ 19} We review the decisions of the BTA to determine whether they are

reasonable and lawful. R.C. 5717.04. We will defer to the BTA’s factual findings

as long as they are supported by reliable and probative evidence in the record.

Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14. By

contrast, the BTA’s legal determinations are subject to de novo review. Crown

Communication, Inc. v. Testa, 136 Ohio St.3d 209, 2013-Ohio-3126, 992 N.E.2d

1135, ¶ 16.

{¶ 20} Tax exemption statutes are strictly construed under Ohio law. See

Cincinnati Community Kollel v. Testa, 135 Ohio St.3d 219, 2013-Ohio-396, 985

N.E.2d 1236, ¶ 17. Accordingly, Spire bore “the burden of proof * * * to show that

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the property is entitled to exemption.” R.C. 5715.271; see also Anderson/Maltbie

Partnership v. Levin, 127 Ohio St.3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16

(“the onus is on the taxpayer to show that the language of the statute ‘clearly

express[es] the exemption’ in relation to the facts of the claim” [brackets sic]),

quoting Ares, Inc. v. Limbach, 51 Ohio St.3d 102, 104, 554 N.E.2d 1310 (1990).

The charitable-use exemption: R.C. 5709.12(B) and 5709.121

{¶ 21} The outcome of Spire’s appeal turns on the application of two

statutory provisions—R.C. 5709.12(B) and 5709.121—that set forth aspects of

Ohio’s charitable-use exemption.

{¶ 22} R.C. 5709.12(B) states that “[r]eal * * * property belonging to

institutions that is used exclusively for charitable purposes shall be exempt from

taxation * * *.” For purposes of this section, “institutions” includes both charitable

and noncharitable organizations. First Baptist Church of Milford, Inc. v. Wilkins,

110 Ohio St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 15. If a property belongs

to a charitable institution, however, it is also necessary to look to R.C. 5709.121.

This provision “does not itself grant any exemption.” Id. at ¶ 16. Instead, it

“constitutes a refinement of R.C. 5709.12(B)” that broadens the meaning of “used

exclusively for charitable purposes” for property that belongs to a charitable

institution. See Dialysis Clinic, Inc. v. Levin, 127 Ohio St.3d 215, 2010-Ohio-5071,

938 N.E.2d 329, ¶ 22, 24.

{¶ 23} R.C. 5709.121(A) states:

Real property and tangible personal property belonging to a

charitable or educational institution * * * shall be considered as used

exclusively for charitable or public purposes by such institution * *

* if it meets one of the following requirements:

(1) It is used by such institution * * * under a lease, sublease,

or other contractual arrangement:

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January Term, 2016

(a) As a community or area center in which presentations in

music, dramatics, the arts, and related fields are made in order to

foster public interest and education therein;

(b) For other charitable, educational, or public purposes.

(2) It is made available under the direction or control of such

institution * * * for use in furtherance of or incidental to its

charitable, educational, or public purposes and not with the view to

profit.

{¶ 24} R.C. 5709.121 was enacted to address situations where ownership

and use of property do not coincide. Traditionally, the existence of a lease defeated

exemption under R.C. 5709.12; that is, exemption was not available if the property

“owner had leased the property to another, even if that lessee was using the property

for charitable purposes.” Dialysis Clinic at ¶ 23. When the General Assembly

enacted R.C. 5709.121 in 1969, Am.Sub.H.B. No. 817, 133 Ohio Laws, Part III,

2646, it “expanded the charitable-use exemption to encompass * * * the situation

in which an entity that qualifies as a ‘charitable institution’ itself leases property to

another charitable institution for charitable purposes,” Northeast Ohio Psych. Inst.

v. Levin, 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, ¶ 12.

{¶ 25} R.C. 5709.121 does not apply when exemption is sought for property

that belongs to a noncharitable institution. See First Baptist Church, 110 Ohio

St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, at ¶ 13-15, citing White Cross Hosp.

Assn. v. Bd. of Tax Appeals, 38 Ohio St.2d 199, 203, 311 N.E.2d 862 (1974) (Stern,

J., concurring). It “applies only to property ‘belonging to’ i.e., owned by, a

charitable or educational institution, or the state or a political subdivision.”

(Emphasis sic.) Highland Park Owners, Inc. v. Tracy, 71 Ohio St.3d 405, 406, 644

N.E.2d 284 (1994); see also Dialysis Clinic, 127 Ohio St.3d 215, 2010-Ohio-5071,

938 N.E.2d 329, at ¶ 22 (when the owner is a charitable or educational institution,

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R.C. 5709.121 “links certain property uses to R.C. 5709.12(B)’s exclusive-

charitable-use exemption”). Thus, to trigger this definition of exclusive charitable

use, “an entity that leases property to another must establish its charitable status

based on the range of its own activities and may not rely upon the activities of a

particular lessee.” (Emphasis sic.) Northeast Ohio Psych. Inst. at ¶ 14.

The BTA reasonably and lawfully determined that the

property belongs to Roni Lee, not Spire

{¶ 26} To analyze Spire’s exemption request, the BTA first had to

determine which entity the subject property belongs to for purposes of R.C.

5709.12(B) and 5709.121. Spire argues that the BTA erred by holding that the

property belongs to Roni Lee, the titleholder, rather than to Spire, which has a long-

term leasehold interest in the property. As a starting point, we have equated

“belonging to” with “owned by” in the charitable-exemption context. See

Humphries v. Little Sisters of the Poor, 29 Ohio St. 201, 207 (1876) (explaining

that as used throughout an earlier version of the charitable-use exemption, “[t]he

word ‘belonging’ * * * means ownership”); Episcopal Parish of Christ Church v.

Kinney, 58 Ohio St.2d 199, 201, 389 N.E.2d 847 (1979) (“ ‘The legislative

definition of exclusive charitable use found in R.C. 5709.121, however, applies

only to property ‘belonging to,’ i.e., owned by, a charitable or educational

institution’ ” [emphasis sic]), quoting White Cross, 38 Ohio St.2d at 203, 311

N.E.2d 862 (Stern, J., concurring). And recently we stated in the context of

analyzing a 30-year lease with a purchase option that “[p]ossessing a leasehold

interest, even under a long-term lease, is not ownership.” ShadoArt Prods., Inc. v.

Testa, ___ Ohio St.3d ___, 2016-Ohio-511, ___ N.E.3d ___, ¶ 5, 34. But notably,

ShadoArt did not involve a renewable 99-year lease, which arguably presents a

different question.

{¶ 27} Spire now contends that it qualifies as the entity to which the

property belongs because its renewable 99-year leasehold interest amounts to

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ownership. See Ralston Steel Car Co. v. Ralston, 112 Ohio St. 306, 309, 319, 147

N.E. 513 (1925) (holding that 99-year lease, renewable forever, amounted to a

permanent fee-simple estate for purposes of evaluating a widow’s right to dower);

Carney v. Cleveland City School Dist. Pub. Library of Cuyahoga Cty., 169 Ohio

St. 65, 69-70, 157 N.E.2d 311 (1959) (permitting public-property exemption under

R.C. 5709.08 when public library spanned two parcels, the smaller of which was

held under a long-term lease). But even assuming, without deciding, that property

can belong to the holder of a renewable 99-year lease for purposes of analyzing the

charitable-use exemption, there remains a factual question whether the lessee

qualifies as an owner in a particular case.

{¶ 28} Having reviewed the record, we cannot conclude that the BTA

abused its discretion by concluding that Roni Lee’s contract and relationship with

Spire did not effectively transfer ownership of the property to Spire. The close

relationship between the lessor and lessee—Ron Clutter is the primary owner and

managing member of Roni Lee, and he is also the president, founder, and director

of Spire—makes it unclear how much control the lease transferred to Spire. The

lease states that both parties can modify its terms by a signed writing; over time,

the president of Spire could benefit himself as principal of Roni Lee by creating

new lease terms. Finally, Spire has limited control over its use of the property; for

example, the lease permits Spire to improve the property only as specifically

contemplated by the agreement. Under these circumstances, it is not unreasonable

to conclude that the property continues to belong to Roni Lee.

{¶ 29} In short, the BTA did not err by finding that the property belongs to

Roni Lee, the titleholder, for purposes of analyzing the charitable-use exemption.

The BTA properly denied exemption under R.C. 5709.12 and 5709.121

{¶ 30} We next analyze whether the property is exempt under R.C. 5709.12

or 5709.121.

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R.C. 5709.121 does not apply because the property belongs to

Roni Lee, which is not a charitable institution

{¶ 31} As explained above, R.C. 5709.121 applies only when property

belongs to a “charitable or educational institution or to the state or a political

subdivision.” Accordingly, we may look to 5709.121 only if Roni Lee qualifies as

a charitable or educational institution.

{¶ 32} Here, the BTA concluded that Roni Lee is not a charitable or

educational institution. As the BTA explained, “[i]t is clear from the record that

Roni Lee, LLC is not a charitable institution. The only evidence of its activities

indicates that it solely leases the subject property to [Spire].” Spire does not contest

this finding on appeal; to the contrary, Spire’s own brief states that Roni Lee is a

“for-profit limited liability company” and describes it as “a non-charitable

institution.”

{¶ 33} Because the subject property does not belong to a charitable or

educational institution, we turn to R.C. 5709.12.

The BTA properly denied exemption under R.C. 5709.12 because

it reasonably and lawfully concluded that Roni Lee does not use

the property “exclusively for charitable or public purposes”

{¶ 34} The availability of exemption under R.C. 5709.12 turns on whether

Roni Lee is using the property “exclusively for charitable purposes.” For purposes

of this analysis, Spire’s use of the property is irrelevant. See Northeast Ohio Psych.

Inst., 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, at ¶ 11 (“under the

general exemption for ‘exclusive charitable use’ of property set forth at R.C.

5709.12(B), it is the owner’s use of the property, not a lessee’s use, that determines

whether the property should be exempted” [emphasis sic]).

{¶ 35} We have held that “a private profit-making venture does not use

property exclusively for charitable purposes.” Highland Park Owners, 71 Ohio

St.3d at 406-407, 644 N.E.2d 284, citing Cullitan v. Cunningham Sanitarium, 134

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Ohio 99, 16 N.E.2d 205 (1938), Cleveland Osteopathic Hosp. v. Zangerle, 153

Ohio St. 222, 91 N.E.2d 261 (1950), and Lincoln Mem. Hosp., Inc. v. Warren, 13

Ohio St.2d 109, 235 N.E.2d 129 (1968). Thus, exemption under R.C. 5709.12 is

not appropriate when an owner uses property “for leasing.” Northeast Ohio Psych.

Inst. at ¶ 11; see also Community Health Professionals v. Levin, 113 Ohio St.3d

432, 2007-Ohio-2336, 866 N.E.2d 478, ¶ 8. Indeed, the case law has long rejected

a finding of exclusive charitable use under R.C. 5709.12(B) when a for-profit entity

owns the property and allows a nonprofit to use it—and the BTA has adhered to

that authority. See Lincoln Mem. Hosp. at 110; Evans Invest. Co. v. Limbach, 51

Ohio App.3d 104, 106, 554 N.E.2d 941 (10th Dist.1988).

{¶ 36} Here, the record supports the tax commissioner’s and the BTA’s

findings that Roni Lee did not use the property exclusively for charitable purposes.

The commissioner found that Roni Lee’s “use of the property is that of land

development and commercial leasing” and that Roni Lee used the property to lease

it and also to contribute to “the appreciation and development of the surrounding

property” owned by Roni Lee that is not subject to the lease. Roni Lee does not

significantly profit from rental payments under the lease, which requires payment

of only $1 per year. See Bexley Village, Ltd. v. Limbach, 68 Ohio App.3d 306, 310,

588 N.E.2d 246 (10th Dist.1990) (“$1 per year rental does not qualify as profit”

under R.C. 5709.07). But Roni Lee stands to profit from the lease in other ways.

As the tax commissioner’s final determination explained, public records indicate

that Roni Lee owns 445 acres of property adjacent to the subject parcels whose

value is affected by Spire’s improvement of the parcels it rents. In addition, Roni

Lee will retain Spire’s improvements to the property when Spire’s interest reverts

to Roni Lee.

{¶ 37} Given these facts, the BTA did not act unlawfully or unreasonably

when it found that Roni Lee does not use the property exclusively for charitable

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purposes. Accordingly, we affirm the BTA’s denial of exemption under R.C.

5709.12.

The prospective-use doctrine does not apply

{¶ 38} Finally, Spire contends that the undeveloped portions of the property

qualify for exemption under the prospective-use doctrine.

{¶ 39} The prospective-use doctrine states:

Where an entity, which under the law is entitled to have

its property exempted from taxation, acquires real property

with the intention of devoting it to a use exempting it from

taxation, such property is entitled to be exempted from

taxation, as long as it is not devoted to nonexempt or

commercial use, even though actual physical use of the

property for the exempt purpose has not yet begun.

Carney, 169 Ohio St. 65, 157 N.E.2d 311, at paragraph one of the syllabus.

{¶ 40} To establish a right to exemption for a prospective use, a private

property owner must show that it is “actively working toward [an] actual use for

the public benefit.” Holy Trinity Protestant Episcopal Church of Kenwood v.

Bowers, 172 Ohio St. 103, 107, 173 N.E.2d 682 (1961). “Evidence that surveys

have been made and plans drawn or that active fund-raising campaigns are being

carried on is indicative that the exempting use will be made of the property within

a reasonable time.” Id. A property’s ability to satisfy this standard turns on whether

its “owner is developing the property for [an] exempt use” as of the tax-lien date of

the tax year at issue. Episcopal School of Cincinnati v. Levin, 117 Ohio St.3d 412,

2008-Ohio-939, 884 N.E.2d 561, ¶ 1, 25.

{¶ 41} The prospective-use doctrine does not apply to the undeveloped

property here for two reasons. First, the same reasoning that leads us to affirm the

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BTA’s decision that the developed property at issue is not exempt under R.C.

5709.12 or 5709.121 compels us to conclude that the undeveloped property is not

exempt. It is, after all, only the prospect of an exempting use that justifies

exemption under the prospective-use doctrine. Episcopal School at ¶ 10, citing

Carney at paragraph one of the syllabus. Second, although Spire introduced some

evidence of plans for future development, it is unclear how much of the

undeveloped property those plans account for. Indeed, Spire’s witness conceded

that some of the property might be sold to developers for commercial use, which

precludes application of the prospective-use doctrine to that land. See Carney at

paragraph one of the syllabus.

{¶ 42} We affirm the BTA’s holding that the prospective-use doctrine does

not apply.

CONCLUSION

{¶ 43} Because Spire has not established that any portion of the subject

property qualifies for a charitable-use exemption, we affirm the BTA’s decision.

Decision affirmed.

O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ.,

concur.

O’NEILL, J., not participating.

_________________

Warren & Young, P.L.L., Ryan M. Ellis, and Stuart W. Cordell; and

Thrasher, Dinsmore & Dolan, L.P.A., and Mary Jane Trapp, for appellant.

Michael DeWine, Attorney General, and David D. Ebersole, Assistant

Attorney General, for appellee.

_________________

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