Colonial Village, Ltd. v. Washington County Board of Revision , 123 Ohio St. 3d 268 ( 2009 )

[Cite as Colonial Village, Ltd. v. Washington Cty. Bd. of Revision, 123 Ohio St. 3d 268, 2009-
Ohio-4975.]
COLONIAL VILLAGE, LTD., APPELLANT AND CROSS-APPELLEE, v.
WASHINGTON COUNTY BOARD OF REVISION ET AL.,
APPELLEES AND CROSS-APPELLANTS.
COLONIAL TERRACE APARTMENTS, APPELLANT AND CROSS-APPELLEE, v.
WASHINGTON COUNTY BOARD OF REVISION ET AL.,
APPELLEES AND CROSS-APPELLANTS.
COLONIAL TERRACE APARTMENTS II, APPELLANT AND CROSS-APPELLEE, v.
WASHINGTON COUNTY BOARD OF REVISION ET AL.,
APPELLEES AND CROSS-APPELLANTS.
[Cite as Colonial Village, Ltd. v. Washington Cty. Bd. of Revision,
123 Ohio St. 3d 268, 2009-Ohio-4975.]
Real estate taxation — Valuation of subsidized housing — BTA’s duty to make
independent valuation — Burden of proof on appeal to the BTA —
Multiple tax years and consistency — Law-of-the-case doctrine.
(Nos. 2008-0443, 2008-0559, 2008-0560, and 2008-0561 — Submitted
August 11, 2009 — Decided September 29, 2009.)
APPEALS AND CROSS APPEALS from the Board of Tax Appeals, Nos. 2004-A-574,
2005-A-987,
2005-A-992, and 2005-A-993.
____________________
Per Curiam.
{¶ 1} The appellants and cross-appellees in these consolidated appeals
are affiliated entities that own adjacent tracts of federally subsidized low-income
housing in Washington County. In Colonial Village Ltd. v. Washington Cty. Bd.
of Revision, 114 Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d 298 (“Colonial
Village I”), we reviewed the determination of value for tax year 2003 rendered by
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the Board of Tax Appeals (“BTA”) for one of the tracts at issue. In that case, the
BTA had found that the owner’s appraisal did not constitute probative evidence of
value, and as a result, it adopted the value assigned by the auditor and affirmed by
the Washington County Board of Revision (“BOR”). On appeal, we reversed and
remanded. Relying on the property record card, we concluded that the auditor
had valued the property based on a cost approach, and we held that the BTA had
contravened our precedents by using a cost valuation, given the entire record in
the case.
{¶ 2} The BTA’s decisions in the consolidated cases before us
demonstrate the influence of our holding in Colonial Village I. The first of the
consolidated cases, No. 2008-0443, addresses the BTA’s decision on remand of
Colonial Village I. The second, No. 2008-0559, concerns the very same tract but
addresses the valuation for tax year 2004. The third and fourth appeals, Nos.
2008-0560 and 2008-0561, concern the value of two separate tracts improved
with government-subsidized housing that are owned by different but affiliated
entities. The tax year at issue in Nos. 2008-0560 and 2008-0561 is 2004.
{¶ 3} For convenience, we will refer to No. 2008-0443, which addresses
the BTA’s decision after we remanded in Colonial Village I, as the “2003 tax-year
case” or more simply the “2003 case.”1 We will also refer collectively to Nos.
2008-0559, 2008-0560, and 2008-0561 as the “2004 tax-year cases” or more
1. When a case has been appealed from the BTA to a court and the court has remanded to the
BTA, we have observed that the BTA’s “order following the mandate” of the court was “not a
final determination to be appealed under R.C. 5717.04.” Columbus Bd. of Edn. v. Franklin Cty.
Bd. of Revision (1994), 70 Ohio St. 3d 344, 346, 639 N.E.2d 25, citing Rowland v. Lindley (1979),
58 Ohio St. 2d 15, 12 O.O.3d 8, 387 N.E.2d 1367 (the “journal entry which the Tax Commissioner
issues only in order to carry out the expressed mandate of this court is not a final determination
within the purview of R.C. 5717.02”). These cases cause no concern about our jurisdiction over
No. 08-443, however, because we have not hesitated to entertain an appeal from a later BTA
decision if that appeal contests additional findings and conclusions that the BTA rendered
pursuant to the remand order. See United Tel. Co. of Ohio v. Tracy (1999), 84 Ohio St. 3d 506,
705 N.E.2d 679 (noting that the case “is again before the court after having been reversed and
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simply the “2004 cases.” As for the three different but affiliated property owners,
we will use the term “Colonial” to refer to all of them collectively and each of
them individually.
The 2003 tax-year case
{¶ 4} As noted, the 2003 case – No. 2008-0443 in this court – calls upon
us to review the BTA’s decision after remand of Colonial Village I. Our
instruction to the BTA was to perform an independent valuation of the property
based on the evidentiary record that had been developed in the case. The evidence
before the BTA did not change. First, Colonial had presented to the BOR an
owner’s opinion of value consisting of an income approach, along with the
testimony of Colonial’s Randall Palmer. Second, Colonial had presented the
testimony and appraisal report of Charles Snyder to the BTA.
{¶ 5} The owner’s opinion of value notes that the improvements
constitute a Section 8 federally subsidized housing project where tenants pay 30
percent of their adjusted gross income as rent, with the federal government paying
the remainder of a specified monthly rental fee. The federal government also
specifies a utility allowance that helps pay utility bills, and the amount of these
allowances is paid to Colonial to be remitted to the tenants. At Colonial Village,
each apartment is separately metered, and tenants pay electric bills separately, but
other utilities are apparently provided by the landlord. There are a total of 45
apartments, of which 35 are two-bedroom and 10 are three-bedroom units.
{¶ 6} In Colonial Village I, we briefly summarized the valuation
methods pursued by both the owner’s opinion of value at the BOR and the
appraisal at the BTA. Colonial Village I, 114 Ohio St. 3d 493, 2007-Ohio-4641,
873 N.E.2d 298, ¶ 17, 18. As for the owner’s opinion of value, the BOR’s
technical advisors stated that (1) the capitalization rate was “too high,” and (2) the
remanded to the [BTA] in United Tel. Co. of Ohio v. Limbach (1994), 71 Ohio St. 3d 369, 643
N.E.2d 1129”).
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expenses were “not based on market” and were “not realistic.” On appeal, the
BTA impugned Snyder’s sales-comparison approach by faulting (i) the
appraiser’s limited inspection of the comparables, (ii) the disparate use of location
adjustments, and (iii) the extrapolation from five comparables, of which three
were determined to be valued at over $24,000 per unit, to a value of $22,000 per
unit for Colonial Village. With respect to the income approach, the BTA found
that both the vacancy-loss figures and the expense estimate lacked factual support.
Because of these flaws, the BTA found the appraisal unreliable, and it affirmed
the county’s valuation of the property.
{¶ 7} As noted, we reversed in Colonial Village I because, based on our
reading of the property record card, we determined that the county had used a
cost-based approach, which is inappropriate for government-subsidized
properties. Colonial Village I, 114 Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d
298, ¶ 19, 22. As we have more recently explained, our subsidized-housing case
law seeks to prevent the affirmative benefits of government subsidies from unduly
inflating the value of the property for tax purposes. Woda Ivy Glen Ltd.
Partnership v. Fayette Cty. Bd. of Revision, 121 Ohio St. 3d 175, 2009-Ohio-762,
902 N.E.2d 984, ¶ 29. Reliance on a cost approach tends to run afoul of this
precept because the subsidies allow developers to incur costs that ordinary market
rents would not support. See Oberlin Manor, Ltd. v. Lorain Cty. Bd. of Revision
(1989), 45 Ohio St. 3d 56, 57, 543 N.E.2d 768. Nor have such subsidies been
understood as pertaining directly to the value of the realty – we have excluded
consideration of the effect the subsidies have on value on the theory that they
constitute an “encumbrance” that should be disregarded, or alternatively, because
they appear to constitute separable intangible benefits accorded in connection
with the government program. Compare Alliance Towers, Ltd. v. Stark Cty. Bd.
of Revision (1988), 37 Ohio St. 3d 16, 523 N.E.2d 826, paragraph one of the
syllabus, with Woda Ivy Glen, ¶ 29, fn. 4. Additionally, we discerned in Colonial
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Village I that the record contained sufficient evidence to permit the BTA to
perform an independent valuation, thereby obviating the need to adopt a cost-
based approach. Id., ¶ 24.
{¶ 8} On February 1, 2008, the BTA issued its decision on remand in the
2003 tax-year case. In that decision, the BTA carried out this court’s instruction
by (1) marshaling evidence from the record whose validity had not previously
been impugned and (2) deriving an income approach from that evidence.
Colonial Village Ltd. v. Washington Cty. Bd. of Revision (Feb. 1, 2008), BTA No.
2004-A-574, at 11. The BTA’s income approach derives the gross potential
income, reserves for replacement, and capitalization rates from the Snyder
appraisal, and the vacancy and collection loss from the owner’s opinion of value.
Id. After computing net operating income and applying the capitalization rate and
a tax additur, the BTA derived a rounded figure of $1,171,930. The BTA then
subtracted $9,000 for furniture, fixtures, and equipment and concluded that the
value was $1,162,930. Id.
{¶ 9} Both Colonial on appeal and the county on cross-appeal
characterize the BTA’s valuation as unsupported by the evidence. We address
their objections as follows.
{¶ 10} First, Colonial states that the 40 percent expense ratio used by the
BTA lacks support. We disagree. The BTA forthrightly stated that it derived the
ratio by examining the expenses associated with properties “that appear to be
similar to the subject in size, configuration, and age, as contained in [Snyder’s
appraisal] report under the sales comparison and the capitalization rate section.”
Colonial Village (Feb. 1, 2008), BTA No. 2004-A-574, at 11, fn. 3. Snyder’s
appraisal report discloses the data to which the BTA refers and bears out the
propriety of the figures that the BTA used. In particular, two properties appear on
both the list of Snyder’s sale comparables and the capitalization-rate
determination. The expense ratios for those two are 37 percent and 42.2 percent.
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Additionally, these two parcels have expense ratios that are close to the highest
and lowest on the list of properties in the capitalization-rate section.
{¶ 11} Accordingly, the 40 percent figure that the BTA adopted is
supported by the information adduced in the very appraisal report upon which
Colonial itself would have the BTA rely. See AP Hotels of Illinois, Inc. v.
Franklin Cty. Bd. of Revision, 118 Ohio St. 3d 343, 2008-Ohio-2565, 889 N.E.2d
115, ¶ 16 (even where appraiser’s conclusion of value could not be used, his
certification of the truth of statements of fact in the appraisal report justified the
BTA in treating those statements as evidence). Indeed, as between the BTA’s
estimation and the analysis of Colonial’s appraiser (who derived what amounted
to a 51 percent expense ratio from actual expenses provided by the owner), the
BTA’s number certainly appears to be the more tenable of the two. See Colonial
Village, Ltd. v. Washington Cty. Bd. of Revision (Apr. 21, 2006), BTA No. 2004-
A-574, at 7, reversed and remanded, 114 Ohio St. 3d 493, 2007-Ohio-4641, 873
N.E.2d 298.
{¶ 12} Second, Colonial faults the BTA for not adopting Snyder’s
vacancy- and collection-loss figure. This argument is barred by the law-of-the-
case doctrine: the BTA already decided that Snyder’s 8 percent figure lacked
credibility, and we deferred to that finding on appeal. Colonial Village (Apr. 21,
2006), BTA No. 2004-A-547, at 7, reversed and remanded on other grounds, 114
Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d 298, ¶ 18, 19; see Columbus Bd. of
Edn. v. Franklin Cty. Bd. of Revision (1994), 70 Ohio St. 3d 344, 345, 639 N.E.2d
25. In carrying out the instruction of this court on remand, the BTA looked to
other evidence in the record: the owner’s opinion of value that Colonial presented
to the BOR. From that document, the BTA derived the 5 percent figure it used in
its February 1, 2008 decision. Colonial Village (Feb. 1, 2008), BTA No. 2004-A-
574, at 11, fn. 2. That action by the BTA in no way qualifies as unreasonable or
unlawful under the circumstances.
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{¶ 13} Third, Colonial similarly argues that the BTA should ignore its
previous ruling and adopt Snyder’s sales-comparison approach for 2003. Once
again, the law-of-the-case doctrine bars this argument.
{¶ 14} Fourth, Colonial in various places argues that the record and
disposition of the 2004 tax-year cases should affect the disposition of the 2003
tax-year case. In particular, Colonial compares the expense ratios for tax year
2003 and 2004 and argues that the 2003 tax-year determination must be incorrect
in light of that comparison. These objections are mistaken. Quite simply, the
record developed in the 2004 tax-year cases differs from the record in the 2003
tax year case – and the evidence adduced for one tax year may not be considered
with respect to another year if it is not made a part of the record in the case
pertaining to that other year.
{¶ 15} Indeed, we have recently had occasion to consider and reject the
argument that the BTA’s determination of value as to one tax year is subject to
legal constraints of consistency to its determination of value as to other tax years.
Olmsted Falls Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 122 Ohio St. 3d 134,
2009-Ohio-2461, 909 N.E.2d 597, ¶ 19, 23–25. Of particular importance is our
holding that “[a]s a matter of both case law and elementary principles, each tax
year should be determined based on the evidence presented to the assessor that
pertains to that year.” Id., ¶ 20. This holding of Olmsted Falls bars many of
Colonial’s contentions in its appeal from the BTA’s decision regarding the 2003
tax year.
{¶ 16} Like Colonial, the county lodges sweeping objections to the BTA’s
determination of value for the 2003 tax year. All of these objections run afoul of
the law-of-the-case doctrine: quite simply, the BTA carried out our explicit
instruction for tax year 2003, and the county’s attempt to return to the status quo
before our Colonial Village I decision has no legal basis. Moreover, to the extent
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that the county asks us to overrule Colonial Village I, we decline to do so because
the decision correctly applied the law to the record before us in that case.
{¶ 17} For the foregoing reasons, we find that the BTA acted reasonably
and lawfully in carrying out our instruction on remand. We therefore affirm the
BTA’s decision in No. 2008-0443.
The 2004 tax-year cases
A. The evidentiary record
{¶ 18} The record in the 2004 tax-year cases differs from the record in the
2003 tax-year case. Both at the BOR and at the BTA, the 2004 cases were tried
on a consolidated basis. The owners offered three appraisal reports, one for each
of the properties, along with the testimony of Charles Snyder at the BOR. After
the BOR rejected the owner’s position in each of the 2004 cases, the owners
appealed to the BTA, which held a hearing on August 14, 2006. Colonial
subpoenaed the BOR’s consultant, Fred W. Westbrook, to the hearing and
examined him as on cross-examination.
{¶ 19} Westbrook was executive vice president of Barry R. Ankney, Inc.,
and in that capacity served as the overall project manager for Washington
County’s 2004 revaluation of real property. Of greatest significance for the 2004
tax-year cases is Westbrook’s testimony that although the county’s appraisal of
Colonial’s properties is set forth as a cost approach on the property record cards,
the actual underlying approach reflects a “composite of those three approaches,”
that is, sales-comparison, income, and cost. More specifically, Westbrook
testified that the valuation of the Colonial Village tract for the 2004 tax year
constituted a mix of “market” and cost approaches, whereby the “market”
approach constitutes an income approach. As for Colonial Terrace and Colonial
Terrace II, Westbrook’s testimony establishes that an income approach
constituted the sole approach as to those tracts for tax year 2004.
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B. Because the record in the 2004 tax-year cases showed that
the county did not rely exclusively on a cost approach,
the BTA erred in regarding Colonial Village I as controlling
its disposition of the 2004 cases.
{¶ 20} In evaluating the record in the 2004 tax-year cases, the BTA
plainly accorded controlling significance to our decision in Colonial Village I. In
each case, the BTA devoted an abbreviated review to the appraisal of Charles
Snyder that Colonial presented to the BOR, identified certain deficiencies in the
appraisal, cited Colonial Village I, and proceeded to perform an independent
income-approach valuation of the tract at issue. Although the BTA in each of the
2004 cases recited the testimony of Fred Westbrook, the BTA attached no
particular significance to it.
{¶ 21} As part of its cross-appeal, the county contends that the BTA erred
in the 2004 tax-year cases because “[t]here was no ‘trigger’ as set forth in
[Colonial Village I] that would authorize or allow the BTA to create its own value
for the three properties.” By “trigger,” the county refers to our determination in
Colonial Village I that “the record in this case contains sufficient evidence to
trigger the BTA’s duty to undertake an independent valuation of the property.”
Colonial Village I, 114 Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d 298, ¶ 24.
We agree in part with this contention: unlike the situation in the 2003 tax-year
case, the BTA’s duty to perform an independent valuation was not triggered in the
2004 tax-year cases. That is so not because of the quantum of appraisal evidence
presented by Colonial, but because the record in the 2004 cases – unlike the
record in the 2003 tax-year case – establishes that the county did not rely
exclusively on a cost-based valuation.
{¶ 22} Our reasoning on this point begins with our decision in Colonial
Village I, in which we relied upon an analysis of the case law that is more fully set
forth in our contemporaneous decision in Dayton–Montgomery Cty. Port Auth. v.
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Montgomery Cty. Bd. of Revision, 113 Ohio St. 3d 281, 2007-Ohio-1948, 865
N.E.2d 22. In Dayton–Montgomery, the taxpayer contested the auditor’s cost-
based determination of value and presented actual-cost evidence that (1)
corroborated the initial figure the auditor arrived at by consulting his cost
schedules but that (2) tended to negate the auditor’s use of a 1.6 “grade factor
adjustment” that increased the valuation by 60 percent. Dayton–Montgomery, ¶
13, 14. The BTA held that the actual-cost analysis was incomplete, and because
the board of revision had not explained its decision to order a modest departure
from the auditor’s determination, the BTA adopted the auditor’s valuation that
used the 1.6 grade factor. On appeal, we reversed.
{¶ 23} In Dayton–Montgomery, we acknowledged the rules that usually
apply. The first rule is that the party challenging the board of revision’s decision
at the BTA has the burden of proof to establish its proposed value as the value of
the property. Dayton–Montgomery, ¶ 15; Columbus City School Dist. Bd. of Edn.
v. Franklin Cty. Bd. of Revision (2001), 90 Ohio St. 3d 564, 566, 740 N.E.2d 276
(“When cases are appealed from a board of revision to the BTA, the burden of
proof is on the appellant, whether it be a taxpayer or a board of education, to
prove its right to an increase or decrease from the value determined by the board
of revision”). The second rule is that the board of revision (or auditor) bears no
burden to offer proof of the accuracy of the appraisal on which the county initially
relies, with the result that the BTA is justified in retaining the county’s valuation
of the property when an appellant fails to sustain its burden of proof at the BTA.
Dayton–Montgomery, ¶ 15; Simmons v. Cuyahoga Cty. Bd. of Revision (1998), 81
Ohio St. 3d 47, 48, 689 N.E.2d 22 (failure to sustain burden of persuasion justified
approving the board of revision’s valuation of the property even though the
county offered no proof of the validity of its determination); W. Industries, Inc. v.
Hamilton Cty. Bd. of Revision (1960), 170 Ohio St. 340, 342, 10 O.O.2d 427, 164
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N.E.2d 741 (a taxpayer who appeals to the BTA “is not entitled to the deduction
claimed merely because no evidence is adduced contra his claim”).
{¶ 24} In spite of these general principles, Dayton–Montgomery came
within a narrow exception to their usual application. We discerned that exception
in Amsdell v. Cuyahoga Cty. Bd. of Revision (1994), 69 Ohio St. 3d 572, 635
N.E.2d 11, and Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision (1996), 76
Ohio St. 3d 13, 665 N.E.2d 1098. In both of those cases, as in Dayton–
Montgomery, the developed record before the BTA affirmatively negated the
validity of the county’s valuation of the property. See also AP Hotels, 118 Ohio
St.3d 343, 2008-Ohio-2565, 889 N.E.2d 115, ¶ 17, 18 (affirmative evidence of
owner’s appraiser that September 11 terrorist attacks had depressed demand for
hotel rooms negated the county’s valuation).
{¶ 25} In Colonial Village I, we confronted the same type of situation:
the property record card affirmatively indicated that the county had relied on a
cost-based approach in valuing the property, and our precedent disfavored the cost
approach in the valuation of government-subsidized properties. Colonial Village
I, 114 Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d 298, ¶ 19, 20. This conflict
triggered the legal duty of the BTA to determine whether the record as developed
by the parties contained sufficient evidence to permit an independent valuation of
the property. We concluded that it did and directed the BTA on remand to
perform such a valuation.
{¶ 26} Reciting this background allows us to articulate the BTA’s error in
deciding the 2004 tax-year cases. Because the uncontroverted testimony of Fred
Westbrook established that the county did not rely exclusively on a cost-based
approach for any of the tracts in tax year 2004, the exception that applied in
Dayton–Montgomery and Colonial Village I does not apply to the 2004 tax-year
cases. Quite simply, there was no impediment in the 2004 cases for the BTA to
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approve the BOR’s determination of value if it found that Colonial had failed to
discharge its burden to show the value of the property.
{¶ 27} Moreover, our review of the BTA’s decisions in Nos. 2008-0559,
2008-0560, and 2008-0561 leads us to conclude that the error we have just
identified pervaded the decisions and truncated the BTA’s consideration of the
appraisal evidence offered by Colonial at the BOR. Because of this, we conclude
that the proper course of action is to vacate the BTA’s decisions in Nos. 2008-
0559, 2008-0560, and 2008-0561 and remand to the BTA. Additionally, this
disposition renders moot the more specific objections raised by Colonial and the
county to the BTA’s decisions in the three cases.
C. On remand, the BTA has authority to determine the probative
value of the evidence before it for each tax year, and the
county does not have the burden to prove the accuracy of
the appraisal upon which it relies.
{¶ 28} It is important in this context to clarify that the BTA on remand
possesses plenary authority to review the decisions of the BOR and determine the
value of the property in the 2004 cases. In this regard, the first point is the one
just made: there is no legal bar to the BTA’s approving the BOR’s valuation in
those cases.
{¶ 29} Second, in the 2004 tax-year cases, the BTA is not bound by law to
arrive at the same conclusions concerning the probative value of Snyder’s
appraisal that it reached in the 2003 case. We recently rejected the contention that
a legal constraint of consistency binds the BTA as to how it evaluates evidence
from one tax year to the next. Olmsted Falls Bd. of Edn. v. Cuyahoga Cty. Bd. of
Revision, 122 Ohio St. 3d 134, 2009-Ohio-2461, 909 N.E.2d 597, ¶ 24, 25. That
principle will apply to the BTA’s consideration of the 2004 tax-year cases on
remand.
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{¶ 30} Moreover, we reiterate that the county does not have the
affirmative burden to establish as a general matter the accuracy of any appraisals
that underlie its valuation of the property. See W. Industries, Inc., 170 Ohio St.
340, 342, 10 O.O.2d 427, 164 N.E.2d 741. In Colonial Village I, the county’s
omission consisted not in failing to discharge such a burden, but merely in failing
to show that the property record card was wrong in indicating exclusive reliance
on a cost approach. See Colonial Village I, 114 Ohio St. 3d 493, 2007-Ohio-4641,
873 N.E.2d 298, ¶ 22, fn. 2. Accord Dayton–Montgomery, 113 Ohio St. 3d 281,
2007-Ohio-1948, 865 N.E.2d 22, ¶ 30 (county auditor could have prevailed by
showing the basis for using the 1.6 grade factor). In other circumstances, the
board of revision or auditor may be called upon to present evidence as a rebuttal
as to some particular factual matter. See id. at ¶ 20 (county could have presented
evidence negating the probative value of aspects of the owner’s actual-cost study
but did not); 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, ¶ 45 (county could have
developed and presented evidence of an improvement after an arm’s-length sale
but before the tax lien date but did not).
{¶ 31} But unlike a school board or a property owner that seeks to depart
from the county’s valuation of the property, the board of revision and the auditor
do not themselves acquire the burden of proving the general accuracy of the
appraisals on which they initially relied. Compare Mentor Exempted Village Bd.
of Edn. v. Lake Cty. Bd. of Revision (1988), 37 Ohio St. 3d 318, 319, 526 N.E.2d
64 (once school board presented probative evidence of value, owner had the
burden to present contrary evidence of value), with Simmons, 81 Ohio St. 3d 47,
48, 689 N.E.2d 22 (once BTA found that owner who had appealed did not
affirmatively show value, BTA properly affirmed the county’s valuation even
though the county had presented no evidence). This distinction arises because of
the settled principle that “when a county auditor acts ‘within the limits of the
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jurisdiction conferred by law,’ the auditor’s action is ‘presumed, in the absence of
proof to the contrary, to be valid and to have been done in good faith and in the
exercise of sound judgment.’ ” Dayton–Montgomery, 113 Ohio St. 3d 281, 2007-
Ohio-1948, 865 N.E.2d 22, ¶ 13, quoting Wheeling Steel Corp. v. Evatt (1944),
143 Ohio St. 71, 28 Ohio Op. 21, 54 N.E.2d 132, paragraph seven of the syllabus.
The county’s appraised value thus forms in most cases a default valuation that
must be preferred and adopted if the appellant before the BTA fails to prove a
different value of the property, and our review of the record in the 2004 tax-year
cases persuades us that this principle applies in these cases.
Conclusion
{¶ 32} For the reasons set forth, we affirm the decision of the BTA in No.
2008-0443. In Nos. 2008-0559, 2008-0560, and 2008-0561, we vacate the BTA’s
decisions and remand for further proceedings consistent with this opinion.
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ.,
concur.
O’DONNELL, J., concurs in judgment only.
PFEIFER and LANZINGER, JJ., concur in part and dissent in part.
__________________
PFEIFER, J., concurring in part and dissenting in part.
{¶ 33} In Colonial Village Ltd. v. Washington Cty. Bd. of Revision, 114
Ohio St. 3d 493, 2007-Ohio-4641, 873 N.E.2d 298 (“Colonial Village I”), at ¶ 23,
we stated, “The BTA must ‘ “independently weigh and evaluate all evidence
properly before it” ’ in order to ‘ “make an independent determination concerning
the valuation of the property at issue,” ’ ” quoting Columbus Bd. of Edn. v.
Franklin Cty. Bd. of Revision (1996), 76 Ohio St. 3d 13, 16, 665 N.E.2d 1098,
quoting Black v. Cuyahoga Cty. Bd. of Revision (1985), 16 Ohio St. 3d 11, 13, 16
OBR 363, 475 N.E.2d 1264. In this case, the Board of Tax Appeals reviewed all
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the evidence before it, including testimony of the qualified appraisers used by
both parties. Based on that review, the BTA concluded that neither the appraisal
offered by Colonial Village nor the appraisal offered by the BOR accurately
reflected the value of the various parcels for the various tax years. Accordingly,
the BTA made specific reasonable adjustments to the appraisals, including
adjusting expense ratios, vacancy rates, and credit-loss rates to reflect market
averages, and arrived at its own valuation. As in Colonial Village I, “[t]he record
contains ample information for the BTA to ‘determine the taxable value of the
property,’ ” and I would defer to the conclusions reached by the BTA. Id. at ¶ 24,
quoting R.C. 5717.03.
{¶ 34} Furthermore, the majority opinion states that the county’s
valuation is presumptively valid. I would not go that far. In many instances,
including here, the county auditor does nothing more than make a percentage
adjustment to the property record card. In many instances, including here, that
property record card has a valuation that was not the result of an appraisal by a
qualified appraiser. When the county auditor has not conducted a reasonable
appraisal, its valuation should not be entitled to deference.
{¶ 35} Because the BTA properly applied the relevant case law, including
Colonial Village I, it did not commit error in independently valuing the properties,
and I would affirm the decisions of the BTA in all four cases before us.
LANZINGER, J., concurs in the foregoing opinion.
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Karen H. Bauernschmidt Co., L.P.A., and Karen H. Bauernschmidt, for
appellants and cross-appellees.
James R. Gorry, for appellees and cross-appellants.
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