City of Cleveland v. Limbach

Matia, Chief Judge,

dissenting.

I respectfully dissent from the decision as rendered by the majority. The majority’s decision constitutes a triumph of form over substance, but more important it denies the appellant-city fundamental constitutional guarantees.

The instant appeal involves an application for exemption from real property taxation for the year 1985 with regard to Permanent Parcel No. 751-02-014. This real property was previously known as the “Highlandview Hospital.”

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Historically, the property has intermittently been owned by Cuyahoga County and the city of Cleveland.

The application for a tax exemption, as originally filed by the Board of Commissioners of Cuyahoga County, was rejected twice by the Board of Tax Appeals and ultimately resulted in an appeal to this court. While the appeal from the decision of the Board of Tax Appeals was pending before this court, title to the subject real property was transferred to the city pursuant to a separate proceeding in the court of common pleas. This court, ultimately, remanded the pending appeal to the Board of Tax Appeals with specific instructions to substitute the city for the Board of Commissioners of Cuyahoga County with regard to the requested tax exemption. In so doing, this court remanded the appeal for “further proceedings.” Upon remand and without the benefit of an additional hearing, the Board of Tax Appeals merely affirmed the original denial of the tax exemption.

The Board of Tax Appeals, upon remand from this court, should have independently conducted a new hearing with regard to the requested tax exemption. By order of this court, the city was substituted as the party seeking a tax exemption with regard to the Highlandview Hospital real property for 1985. If a new hearing before the Board of Tax Appeals was not contemplated by this court, ordinary common sense dictates that the tax exemption appeal would

not

have been remanded to the Board of Tax Appeals. Instead, this court would have provided an immediate review of the original appeal as filed by the Board of Commissioners of Cuyahoga County and allowed an amendment of the filed assignments of error and briefs by the new party in interest, the city.

It should also be noted that R.C. 5717.02 provides no guidance to this court or the Board of Tax Appeals with regard to a remand which results in the substitution of an aggrieved party who is seeking a tax exemption. Accordingly, a new evidentiary hearing should have been provided by the Board of Tax Appeals to allow the presentation of new and additional arguments on the part of the city. Cf.

Superior Metal Products v. Admr. Bur. of Employment Services

(1975), 41 Ohio St.2d 143 , 70 O.O.2d 263 , 324 N.E.2d 179 ;

Gennaro Pavers v. Kosydar

(1974), 38 Ohio St.2d 174 , 67 O.O.2d 184 , 311 N.E.2d 516 .

The failure of the Board of Tax Appeals to conduct an independent hearing has also deprived the city of its constitutional guarantee of due process and equal protection. As guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, Section 2, Article I of the Ohio Constitution, Section 16, Article I of the Ohio Constitution and Section 26, Article II of the Ohio Constitution, the city was entitled to due process of law and equal

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protection.

1

In order to provide the city with due process and equal protection, the Board of Tax Appeals was required to conduct an independent hearing to allow the introduction of new and additional testimony and evidence. Such a hearing would

not

have hampered the proper administration of justice and certainly would have provided the city with the right to prosecute its claimed exemption. In addition, such an additional hearing would have better provided this court with a basis to review the correctness of the decision of the Board of Tax Appeals.

The case

sub judice

should be reversed and the matter remanded for an additional hearing which would allow the city to properly prosecute its claim of a tax exemption. Only through a new hearing will the city’s constitutional guarantees of due process and equal protection be preserved.

1

. This argument of a deprivation of constitutional guarantees of due process and equal protection does not run afoul of the recent decision as rendered by the Supreme Court of Ohio in

Avon Lake City School Dist. v. Limbach

(1988), 35 Ohio St.3d 118 , 518 N.E.2d 1190 . The Supreme Court of Ohio, in

Avon,

merely established that a political subdivision may not challenge the constitutionality of state

legislation

vis-a-vis a claim of a denial of due process or equal protection. Such is not the case herein where the city challenges the actual denial of due process and equal protection vis-a-vis a lack of a mandated hearing.