Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision

[Cite as Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 2023-Ohio-

2020.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

MARYSVILLE EXEMPTED VILLAGE

SCHOOLS BOARD OF EDUCATION

APPELLANT, CASE NO. 14-23-03

v.

UNION COUNTY BOARD OF

REVISION, ET AL., OPINION

APPELLEES.

Appeal from Ohio Board of Tax Appeals

BTA No. 2022-1552

Judgment Reversed and Cause Remanded

Date of Decision: June 20, 2023

APPEARANCES:

Mark H. Gillis and Kelley A. Gorry for Appellant

Steven L. Smiseck and Lauren M. Johnson for Appellee The

Residence at Cooks Pointe, LLC

Case No. 14-23-03

WALDICK, J.

{¶1} Appellant, Marysville Exempted Village Schools Board of Education

(“school board”), appeals the decision and order of the Ohio Board of Tax Appeals

(“BTA”), in which the BTA dismissed the school board’s appeal from a decision of

the Union County Board of Revision. For the reasons set forth below, we reverse.

Procedural History and Relevant Facts

{¶2} This case originated on February 25, 2022, when two Union County

residents, Dean Cook and Dave Cook, filed a third-party taxpayer complaint for the

2021 tax year with the Union County Board of Revision. In that complaint, the

Cooks sought an increase in the valuation of certain real property located at 1805

Mill Point Road in Marysville, Ohio. That property is owned by The Residence at

Cooks Pointe, LLC, the appellee herein.

{¶3} On May 3, 2022, the school board filed a counter-complaint with

respect to the same real property, in which the school board joined in the Cooks’

position that the valuation of the subject property should be increased by several

million dollars.

{¶4} On August 1, 2022, the Union County Board of Revision held a hearing

on the complaints. On September 5, 2022, the Board of Revision ruled that no

change would be made in the valuation of the real property for the tax year in

-2-

Case No. 14-23-03

question, finding that the complainants failed to meet the burden of proof necessary

to justify a change in value.

{¶5} On September 30, 2022, the school board filed a notice of appeal with

the Board of Tax Appeals.

{¶6} On or about December 8, 2022, the appellee owner of the property at

issue, The Residence at Cooks Pointe, LLC, filed a motion with the BTA seeking to

dismiss the appeal filed by the school board. The motion to dismiss was based upon

a recent amendment to R.C. 5717.01, which substantially restricted the right of a

board of education to appeal to the Board of Tax Appeals.

{¶7} On or about December 21, 2022, the school board filed a response

opposing the motion to dismiss its appeal.

{¶8} On December 28, 2022, the Board of Tax Appeals issued a decision and

order dismissing the school board’s appeal. In support of that dismissal, the BTA

relied upon a decision it had issued on October 31, 2022, North Ridgeville City

Schools Bd. of Edn. v. Lorain Cty. Bd. of Revision, BTA No. 2022-1152, 2022 WL

16725740. Based upon the reasoning set forth in the North Ridgeville decision, the

BTA concluded that R.C. 5717.01., as amended on July 21, 2022 by H.B. 126,

precluded the school board’s appeal in this case.

-3-

Case No. 14-23-03

{¶9} On January 6, 2023, the school board filed the instant appeal, in which

eleven assignments of error have been raised.1

First Assignment of Error

The Decision is unreasonable and unlawful because the BTA

relied solely upon its erroneous decision in North Ridgeville City

Schools Board of Education v. Lorain Cty. Bd. of Revision, et al.,

BTA No. 2022-1152, 2022 Ohio Tax LEXIS 2518 (Oct. 31, 2022)

(“North Ridgeville”) (attached hereto in Appendix) (Decision at p.

2).

Second Assignment of Error

The Decision is unreasonable and unlawful because in North

Ridgeville, the BTA ignored the plain meaning of the

unambiguous words the General Assembly used in the revisions

to R.C. 5717.01 (North Ridgeville, at *2-5).

Third Assignment of Error

The BTA committed legal error in North Ridgeville by failing to

recognize that the General Assembly’s use of the phrase “a

subdivision that files” in R.C. 5717.01 as the operative language

in present tense applies prospectively only [sic] present and future

actions and does not include past actions (North Ridgeville, at *2-

5). Carr v. United States, 130 S.Ct. 2229, 2236, 176 L.E.2d 1152

(2010); Smith v. Ohio Valley Ins. Co., 27 Ohio St.2d 268, 276, 272

N.E. 171 (1971).

Fourth Assignment of Error

The Decision is unreasonable and unlawful because the BTA

failed to apply the rules of grammar and violated the rules of

statutory construction in North Ridgeville in interpreting the

present tense language in R.C. 5717.01 as including any

1

In its merit brief, the appellant-school board sets forth the eleven assignments of error noted here but then,

without explanation, rephrases and reorders the assignments of error in the body of the brief. For the sake of

simplicity and brevity, we will not set forth the “re-phrased” assignments of error in this opinion.

-4-

Case No. 14-23-03

complaints filed prior to the effective date of the legislation (North

Ridgeville, at *2-5). R.C. 1.42; R.C. 1.43(C); R.C. 1.48; Smith, at

276.

Fifth Assignment of Error

The BTA committed legal error in North Ridgeville after correctly

determining that the revisions to R.C. 5717.01 are clear and

unambiguous but then utilizing the General Assembly’s perceived

legislative intent as support for its interpretation of the revisions

directly inconsistent with the actual words used by the General

Assembly. North Ridgeville, at *7 (“Our decision hardly offends

that intent”); Jacobsen v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-

8434, 75 N.E.3d 203, ¶ 8.

Sixth Assignment of Error

The BTA committed legal error in North Ridgeville by rewriting

the language of the revisions to R.C. 5717.01 as follows: “except

that a subdivision with respect to property the subdivision does

not own or lease may not appeal the decision of the board of

revision.” North Ridgeville, at *2 (“Therefore, we hold that boards

of education now have no appeal rights to this Board unless the

board of education owns or leases the property”); Id. At *5

(“***in order to lawfully appeal a board of revision decision to

this Board, the appellant cannot be a subdivision that does not

own or lease the property at issue in the original complaint”).

Seventh Assignment of Error

The Decision is unreasonable and unlawful as the BTA failed to

recognize in North Ridgeville that the General Assembly’s

retention of the former appeal right in R.C. 5717.01 for any

“board, legislative authority, public official” authorized to file

complaints pursuant to R.C. 5715.19 in the revisions to R.C.

5717.01 preserves the existing appeal rights of those entities for

any complaint filed prior to the effective date of the revisions

(North Ridgeville, at *10-13). See Jacobsen, at ¶ 19.

-5-

Case No. 14-23-03

Eighth Assignment of Error

The BTA committed legal error in North Ridgeville by concluding

that the revisions to R.C. 5717.01 did not incorporate the new

definitions of “subdivision” [or rather “legislative authority of a

subdivision”], “original complaint” and “counter-complaint”

from revised R.C. 5715.19, effective for tax year 2022, when the

plain meaning of the language used by the General Assembly in

the revisions to R.C. 5717.01 clearly and unambiguously

incorporates these definitions (North Ridgeville, at *10-13). See

R.C. 5717.01 (“a subdivision that files an original complaint or

counter-complaint under that section***”).

Ninth Assignment of Error

The Decision is unreasonable and unlawful because the BTA held

in North Ridgeville that the new definitions in R.C. 5715.19,

effective for tax year 2022, had no new meaning when the General

Assembly retained the terms “board”, “legislative authority”,

“public official”, and “complaints” from former R.C. 5717.01

(North Ridgeville, at *10-13).

Tenth Assignment of Error

The BTA erred in North Ridgeville in concluding that

“jurisdiction is not conferred on appeal merely because the

underlying cause of action was validly filed” when Appellant

Board of Education never argued that the right to appeal was

vested in a validly filed complaint (North Ridgeville, at *8-10).

Eleventh Assignment of Error

The BTA erred in North Ridgeville by comparing the revisions to

R.C. 5717.01 to the revisions to R.C. 5717.04 because the language

the General Assembly used in the revisions to R.C. 5717.04 is not

even remotely comparable to the words the General Assembly

used in the revisions to R.C. 5717.01 (North Ridgeville, at *9-10).

-6-

Case No. 14-23-03

{¶10} All eleven assignments of error set forth by the school board ultimately

raise the same claim, being that the Board of Tax Appeals erred in dismissing the

school board’s appeal, but for varying reasons. Because we find the related

arguments set forth in the first, second, third, and fourth assignments of error to be

dispositive of the case, we will collectively address those four assignments of error

first.

{¶11} In the first four assignments of error, the school board asserts that the

BTA’s decision dismissing the school board’s appeal was erroneous because that

dismissal, and the North Ridgeville decision upon which the dismissal was based,

resulted from a misreading of the amended statute and a misapplication of

established rules of statutory construction.

{¶12} An appellate court reviews a Board of Tax Appeals decision to

determine if it is reasonable and lawful; if it is both, the decision must be affirmed.

Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 10th Dist.

Franklin Nos. 21AP-86, 21AP-87, 21AP-88, 2022-Ohio-355, ¶ 15. However, we

review questions of law de novo. Id. at ¶ 17. Accordingly, we “‘will not hesitate to

reverse a BTA decision that is based on an incorrect legal conclusion.’” Westerville

City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 146 Ohio St.3d 412, 2016-

Ohio-1506, ¶ 26, quoting Bd. of Edn. of Gahanna-Jefferson Local School Dist. v.

Zaino, Tax Commr., 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001). In particular,

-7-

Case No. 14-23-03

statutory interpretation is a question of law that we review de novo. Rock City

Church v. Franklin Cty. Bd. Of Revision, 10th Dist. Franklin No. 22AP-372, 2023-

Ohio-1339, ¶ 5, citing Thomas v. Logue, Admr. Ohio Bur. of Workers’ Comp., 10th

Dist. Franklin No. 21AP-385, 2022-Ohio-1603, ¶ 12.

{¶13} As to the specific issue present in this appeal, we note that it is well

established that the Board of Tax Appeals is a “creature of statute” and, as such, has

only the jurisdiction, power, and duties expressly provided by the General

Assembly. Ross v. Cuyahoga Cty. Bd. of Revision, 155 Ohio St.3d 373, 2018-Ohio-

4746, ¶ 9, citing Steward v. Evatt, 143 Ohio St. 547, 56 N.E.2d 159 (1944),

paragraph one of the syllabus.

{¶14} R.C. 5717.01 is the statute that establishes the means for invoking the

Board of Tax Appeals’ jurisdiction in an appeal of a decision of a county board of

revision. Ross, supra, at ¶ 9.

{¶15} In April of 2022, while the complaint in this case was pending before

the Union County Board of Revision, the Ohio legislature enacted H.B. 126, which

became effective on July 21, 2022. Section 1 of H.B. 126 amended three statutes:

R.C. 4503.06, R.C. 5715.19, and R.C. 5717.01, while Section 2 of that legislation

repealed the existing versions of those statutes. Section 3 of the legislation

contained language delineating when certain portions of the amended version of

R.C. 5715.19 were to become operable.

-8-

Case No. 14-23-03

{¶16} R.C. 5717.01 formerly permitted decisions of a county board of

revision to be appealed to the Board of Tax Appeals “by the county auditor, the tax

commissioner, or any board, legislative authority, public official, or taxpayer

authorized by section 5715.19 of the Revised Code to file complaints against

valuations or assessments with the auditor.”

{¶17} However, H.B. 126 amended R.C. 5717.01 to limit the parties

authorized to file such appeals, with the amended version of R.C. 5717.01 reading

in relevant part as follows:

An appeal from a decision of a county board of revision may be taken

to the board of tax appeals within thirty days after notice of the

decision of the county board of revision is mailed * * *. Such an

appeal may be taken by the county auditor, the tax commissioner, or

any board, legislative authority, public official, or taxpayer authorized

by section 5715.19 of the Revised Code to file complaints against

valuations or assessments with the auditor, except that a subdivision

that files an original complaint or counter-complaint under that

section with respect to property the subdivision does not own or lease

may not appeal the decision of the board of revision with respect to

that original complaint or counter-complaint. (Emphasis added.)

{¶18} Thus, pursuant to R.C. 5717.01 as amended, in order to lawfully

appeal a county board of revision decision to the BTA, the appellant cannot be a

subdivision that does not own or lease the property at issue in the original complaint.

{¶19} The issue presented is whether that amendment, which took effect July

21, 2022, is applicable to the instant case, where the original complaint and counter-

-9-

Case No. 14-23-03

complaint were filed before July 21, 2022, but the appeal to the BTA stemming from

those pre-July 21, 2022 complaints was filed after that date.

{¶20} Because the school board does not own or lease the property at issue

in the complaints filed herein, the Board of Tax Appeals ruled that the school

board’s appeal was precluded by the recently enacted version of R.C. 5717.01. As

previously noted, the BTA’s decision dismissing the appeal in this case was based

directly on the BTA’s decision in a similarly situated case, North Ridgeville City

Schools Bd. of Edn. v. Lorain Cty. Bd. of Revision, BTA No. 2022-1152, 2022 WL

16725740 (Oct. 31, 2022).

{¶21} In North Ridgeville, the Board of Tax Appeals had its first opportunity

to address the amendment to R.C. 5717.01 effectuated by H.B. 126. At issue in

North Ridgeville, as in this case, was the question of when the amended statute’s

disallowance of such appeals became effective. The BTA ruled that the amended

version of R.C. 5717.01 was applicable to any such appeal filed by a board of

education on or after July 21, 2022, the effective date of H.B. 126.

{¶22} In its decision, the Board of Tax Appeals found that the language of

the new version of R.C. 5717.01 was unambiguous, and noted that “[a]n

unambiguous law ‘is to be applied, not interpreted.’” North Ridgeville, supra, at *3,

quoting Sears v. Weimer, 143 Ohio St. 312, 316, 55 N.E.2d 413 (1994). As July 21,

2022 was the effective date of the amended legislation at issue, the BTA stated that

-10-

Case No. 14-23-03

“[w]e have absolutely no authority to supply a different effective date for R.C.

5717.01” and “[o]ur analysis can end there, and we stress our holding is entirely

based on the straightforward application of an unambiguous law.” Id.

{¶23} Nevertheless, for “the sake of completeness”, the Board of Tax

Appeals then went on to address the arguments raised by the school board in North

Ridgeville. Id., at *3. Noting that the school board had argued that the BTA should

focus on the legislative intent and other rules of statutory construction when

determining the timing of the applicability of H.B. 126, the BTA stated, “[w]e find

that this approach is inappropriate and unnecessary, and it would lead to the same

result.” Id. The BTA noted that Section 3 of H.B. 126 specifically set an alternative

effective date for some of the other amendments included in the legislation, and the

BTA determined that, “[t]he General Assembly’s exclusion of R.C. 5717.01 from

Section 3 demonstrates the intent for the changes [to that statute] to be operational

on the effective date of the legislation.” Id.

{¶24} As to school board’s argument in North Ridgeville that applying the

July 21, 2022 effective date of the amendment to R.C. 5717.01 to appeals from

decisions on complaints in cases where the complaint had been filed prior to that

date would render the legislation inappropriately retroactive, the BTA stated that

“[t]he right to appeal to this Board is independent of the right to file a complaint or

countercomplaint with the board of revision.” North Ridgeville, supra, at *3. The

-11-

Case No. 14-23-03

Board of Tax Appeals therefore found that the board of education’s statutory appeal

right pursuant to R.C. 5717.01 “was extinguished as of the effective date and did

not apply retroactively to pending appeals before this Board.” Id.

{¶25} The Board of Tax Appeals in North Ridgeville also rejected the school

board’s argument that the amended version of R.C. 5717.01 was inapplicable to

appeals in cases where the complaint and counter-complaint had been filed prior to

July 21, 2022 in that the terms “complaint” and “counter-complaint” as used in the

new version of R.C. 5717.01 had been statutorily undefined until definitions for

those terms were established by H.B. 126. In rejecting that argument, the BTA

noted that those terms, while not previously defined by the statutes at issue, were

nonetheless common terms that had been used frequently in the past and “it would

be wrong to conclude that they have no legal meaning until an appeal emanates from

a complaint filed for tax year 2022 or later.” North Ridgeville, supra, at *4. Thus,

the BTA concluded that, “we find no reason to extend the right of a subdivision to

appeal after the General Assembly revoked that right merely because it also codified

a meaning for well-understood terms in the same legislation.” Id., at *5.

{¶26} Finally, the BTA in North Ridgeville noted that there was no dispute

in that case that the board of education had filed its counter-complaint in its capacity

as a subdivision and that the school board did not own the subject property. Id., at

*5. Accordingly, based upon the reasoning set forth above, the Board of Tax

-12-

Case No. 14-23-03

Appeals found that the appeal filed in that case on August 9, 2022 was filed by a

party not authorized to do so under the amended terms of R.C. 5717.01, and

therefore dismissed the appeal for lack of jurisdiction to consider the same. Id.

{¶27} In the present case, based upon the reasoning set forth in the North

Ridgeville decision, the BTA similarly concluded that R.C. 5717.01, as amended on

July 21, 2022 by H.B. 126, precluded the school board’s appeal.

{¶28} Upon a de novo review of the issue presented, and of that issue as

analyzed by the Board of Tax Appeals in North Ridgeville, we find the Board of

Tax Appeals’ ruling on the statute’s applicability here to be flawed. Specifically,

we find that the BTA misinterpreted the plain language of the statute and overlooked

certain principles of statutory interpretation that impact the applicability of the new

R.C. 5717.01 to the school board’s appeal in this case.

{¶29} First and foremost, we note that the statutory language at issue here is

clearly written in the present tense. R.C. 5717.01, as amended and also as it did

previously, sets forth the right of appeal to the Board of Tax Appeals from a county

board of revision decision. The amended version of R.C. 5717.01 then imposes a

new prohibition on appeals by boards of education, or other such subdivisions,

stating, “except that a subdivision that files an original complaint or counter-

complaint under [R.C. 5715.19] with respect to property the subdivision does not

-13-

Case No. 14-23-03

own or lease may not appeal the decision of the board of revision with respect to

that original complaint or counter-complaint.” (Emphasis added.)

{¶30} If the language used in the newly enacted prohibition on appeals was

phrased in the past tense, such as “filed” or “has filed”, that may have demonstrated

a legislative intent that the amended statute be applied to appeals stemming from

complaints or counter-complaints filed prior to the effective date of the statute. In

the absence of such past-tense verbiage, however, the use of the present tense “files”

indicates an intention that statute only be applied prospectively.

{¶31} It is also critical to note that the indisputably present-tense phrasing

used in the amendment (i.e. “a subdivision that files”) is specifically tied by the

terms of the statute to the filing of a complaint or counter-complaint, not to the filing

of an appeal. Had the amended statute made the filing of an appeal the operative

act upon which the new prohibition on appeals was conditioned, the BTA’s decision

might have had merit.

{¶32} We also look to established legal principles for guidance on the issue

of the statute’s applicability to the instant case. Pursuant to R.C. 1.48, “[a] statute

is presumed to be prospective in its operation unless expressly made retrospective.”

More importantly, it is well established that a statute must clearly proclaim its own

retroactivity to overcome the presumption of prospective application and

retroactivity is not to be inferred. State v. Consilio, 114 Ohio St.3d 295, 871 N.E.2d

-14-

Case No. 14-23-03

1167 (2007), ¶ 15, citing Kelley v. State, 94 Ohio St. 331, 338–339, 114 N.E. 255

(1916). “If the retroactivity of a statute is not expressly stated in plain terms, the

presumption in favor of prospective application controls.” Id., citing Bernier v.

Becker, 37 Ohio St. 72, 74, 1881 WL 63 (1881). Pursuant to this rule, the General

Assembly is presumed to know that it must include expressly retroactive language

to create that effect, and the legislature has indeed done so in the past. Id., citing

Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 522 N.E.2d 489 (1988),

State ex rel. Slaughter v. Indus. Comm., 132 Ohio St. 537, 9 N.E.2d 505 (1937).

{¶33} In sum, “‘[a] statute, employing operative language in the present

tense, does not purport to cover past events of a similar nature.’” Consilio, supra, at

¶17, quoting Smith v. Ohio Valley Ins. Co., 27 Ohio St.2d 268, 276, 272 N.E.2d 131

(1971). See, also, Carr v. United States, 560 U.S. 438, 446–50, 130 S. Ct. 2229,

2235–37, 176 L. Ed. 2d 1152 (2010).

{¶34} By way of illustration, the Supreme Court of Ohio in Smith v. Ohio

Valley Ins. Co., supra, at fn 3, cited to the following examples of legislative

language evidencing a clear intention to apply statutory provisions retrospectively:

first, the language of former G.C. 3496-3 at issue in State ex rel. Slaughter v. Indus.

Comm., 132 Ohio St. 537, 539, 9 N.E.2d 505 (1937) (“The provisions of this act

shall apply * * * whether such injury or death occurs prior to the operative date of

this act or subsequent thereto.”); second, the language of R.C. 4123.519 at issue in

-15-

Case No. 14-23-03

Hearing v. Wylie, 173 Ohio St. 221, 180 N.E.2d 921 (1962) (“[A]ny action pending

in Common Pleas Court or any other court on the effective date of this act under

Section 4129.519 of the Revised Code shall be governed by the terms of this act.”).

{¶35} In the case before us, the H.B. 126 version of R.C. 5717.01 does not

expressly mention retroactivity. Put another way, there is no plain reference

whatsoever in the amended statute to its applicability to appeals filed prior to the

effective date of the statute or, as is the case here, to appeals in pending actions. The

General Assembly’s failure to include such language means, pursuant to the

authority cited above, that the amended version of R.C. 5717.01 can only be applied

prospectively.

{¶36} Accordingly, given the use of the present tense in the statute and

absent any express evidence of intended retroactivity and/or applicability to

previously pending complaints, we find that the use of the language “a subdivision

that files an original complaint or counter-complaint” signifies a legislative intent

that the amended statute be applied prospectively to appeals stemming from

complaints filed after the July 21, 2022 effective date of the new statute, as opposed

to prohibiting appeals from complaints that were filed prior to that date.

{¶37} As a result, we hold that R.C. 5717.01 as amended by H.B. 126 is not

applicable to the appeal filed in this matter with the Board of Tax Appeals, as the

complaint and the counter-complaint challenging the valuation of the property at

-16-

Case No. 14-23-03

issue were both filed prior to the July 21, 2022 effective date of the new version of

R.C. 5717.01. We therefore sustain the first, second, third, and fourth assignments

of error. Any other arguments are moot.

{¶38} The December 28, 2022 decision of the Board of Tax Appeals is

reversed and the cause remanded for further proceedings consistent with this

opinion.

Judgment Reversed and

Cause Remanded

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

-17-