[Cite as Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revison, 2013-Ohio-2892.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


BOARD OF EDUCATION OF THE                         :            JUDGES
OLENTANGY LOCAL SCHOOLS                           :            Hon. W. Scott Gwin, P.J.
                                                  :            Hon. Sheila G. Farmer, J
        Appellant-Appellee                        :            Hon. Craig R. Baldwin, J.
                                                  :
-vs-                                              :
                                                  :
DELAWARE COUNTY BOARD                             :            Case No. 12-CAH-09-0067
OF REVISON, ET AL.                                :
                                                  :
        Appellees-Appellees                       :            OPINION
                                                  :
-vs-                                              :
                                                  :
CHESHIRE DEVELOPERS, LLC                          :
                                                  :
        Appellee-Appellant                        :


CHARACTER OF PROCEEDING:                                       Appeal from the Ohio Board of Tax
                                                               Appeals, Case No. 2010-Q-1291

JUDGMENT:                                                      Affirmed


DATE OF JUDGMENT:                                              July 2, 2013


APPEARANCES:

For Appellant Cheshire Developers, LLC                         For Olentangy Board of Education

MICHAEL R. SHADE                                               MARK H. GILLIS
41 North Sandusky Street, Suite 410                            KELLEY A. GORRY
P.O. Box 438                                                   6400 Riverside Drive, Suite D
Delaware, OH 43015-0438                                        Dublin, OH 43017

For Delaware Cty. Auditor/Bd. of Revision                      For Ohio Tax Commissioner

Mark W. Fowler                                                 Ohio Attorney General
140 North Sandusky Street, 3rd Floor                           30 East Broad Street, 25th Floor
Delaware, OH 43015                                             Columbus, OH 43215
Delaware County, Case No. 12-CAH-09-0067                                             2

Farmer, J.

      {¶1}   In March of 2009, appellant, Cheshire Developers, LLC, filed a complaint

against the valuation of two parcels located in Delaware County, seeking a reduction in

valuation for tax year 2008. Hearings before appellee, Board of Revision, were held on

October 9, 2009 and May 5, 2010. On June 10, 2010, appellee Board of Revision

granted a reduction in valuation.     Appellee, Olentangy Local Schools Board of

Education, filed an appeal with the Board of Tax Appeals. A hearing was held on May

9, 2012. By decision and order entered August 21, 2012, the Board of Tax Appeals

reversed the Board of Revision and reinstated the valuations as originally set by

appellee, Delaware County Auditor.

      {¶2}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶3}   "THE DECISION OF THE BOARD OF TAX APPEALS (HEREINAFTER

'BTA') IS UNREASONABLE AND UNLAWFUL BECAUSE IT ERRED BY FAILING TO

FIND THAT THE VALUE OF THE PROPERTY IS THE SAME AS IDENTICAL

PROPERTY LOCATED ADJACENT TO THE SUBJECT PROPERTY WHEN BOTH

THE ADJACENT PROPERTY AND THE SUBJECT PROPERTY WILL BE USED

SOLELY FOR ROADWAY PURPOSES."

                                           II

      {¶4}   "THE DECISION OF THE BTA IS UNREASONABLE AND UNLAWFUL

BECAUSE IT FAILED TO CONSIDER THE EVIDENCE OF VALUE SUBMITTED BY

CHESHIRE DEVELOPERS, LLC."
Delaware County, Case No. 12-CAH-09-0067                                             3

                                             III

      {¶5}   "THE DECISION OF THE BTA IS UNREASONABLE AND UNLAWFUL

BECAUSE THE BOARD OF EDUCATION OF THE OLENTANGY LOCAL SCHOOLS

(HEREINAFTER       'OLENTANGY'),       FAILED        TO   PRODUCE   ANY    EVIDENCE

WHATSOEVER AS TO THE VALUE OF THE SUBJECT PROPERTY."

                                             IV

      {¶6}   "THE DECISION OF THE BTA IS UNREASONABLE AND UNLAWFUL

BECAUSE OLENTANGY FAILED TO CARRY ITS BURDEN OF PROOF."

                                             V

      {¶7}   "THE DECISION OF THE BTA TO REINSTATE THE DELAWARE

COUNTY AUDITOR'S INITIAL ASSESSMENT OF THE SUBJECT PARCELS IS

UNREASONABLE AND UNLAWFUL BECAUSE THE BTA HAD NO EVIDENCE TO

SUPPORT THE DELAWARE COUNTY AUDITOR'S VALUE."

                                      I, II, III, IV, V

      {¶8}   Appellant claims the decision of the Board of Tax Appeals was

unreasonable and unlawful because it failed to accept evidence of an adjacent tax

parcel, and appellee School Board failed to carry forth its burden of proof and produce

any evidence as to the value of the subject parcel. Appellant also claims the Board of

Tax Appeals erred in reinstating the Delaware County Auditor's initial valuations. We

disagree.

      {¶9}   This case originated as a complaint against the valuation of real property

under R.C. Chapter 5715. This court's standard of review is found in R.C. 5717.04

which states the following at paragraph eight:
Delaware County, Case No. 12-CAH-09-0067                                             4

             If upon hearing and consideration of such record and evidence the

      court decides that the decision of the board appealed from is reasonable

      and lawful it shall affirm the same, but if the court decides that such

      decision of the board is unreasonable or unlawful, the court shall reverse

      and vacate the decision or modify it and enter final judgment in

      accordance with such modification.



      {¶10} In WJJK Investments, Inc. v. Licking County Board of Revision, 76 Ohio

St. 3d 29, 32, 1996-Ohio-437, the Supreme Court of Ohio explained the following:



             The BTA as the trier of fact "has wide discretion to determine the

      weight given to evidence and the credibility of witnesses before it." R.R.Z.

      Assoc. v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St.3d 198, 201,

      527 N.E.2d 874, 877.       In this case the BTA reviewed the evidence

      presented by WJJK and found it to be insufficient to support a lower

      valuation.   This court is not a " 'super' Board of Tax Appeals."

      Youngstown Sheet & Tube Co. v. Mahoning Cty. Bd. of Revision (1981),

      66 Ohio St.2d 398, 400, 20 O.O.3d 349, 351, 422 N.E.2d 846, 848. In

      Witt Co. v. Hamilton Cty. Bd. of Revision (1991), 61 Ohio St.3d 155, 157,

      573 N.E.2d 661, 663, we stated that "[a]bsent a showing of an abuse of

      discretion, the BTA's determination as to the credibility of witnesses and

      the weight to be given their testimony will not be reversed by this court."
Delaware County, Case No. 12-CAH-09-0067                                                 5

       {¶11} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶12} It is appellant's position that the evidence presented to the auditor with the

filing of the complaint was sufficient to complete its burden. Appellant argues the Board

of Tax Appeals erred in rejecting evidence of a comparison parcel.

       {¶13} The parcels at issue are included in a piece of land, part of which is

plotted for the development of a dedicated public roadway. Appellant argued the value

of the dedicated public roadway portion should be zero, and presented evidence of

another parcel that also had a purposed dedicated public roadway. October 9, 2009 T.

at 27-30.   The Board of Revision accepted appellant's arguments and lowered the

valuations on June 10, 2010. Appellee School Board appealed the decision to the

Board of Tax Appeals. After hearing, the Board of Tax Appeals reinstated the Delaware

County Auditor's initial valuations.

       {¶14} As set forth in the decision and order entered August 21, 2012, during the

hearings before the Board of Tax Appeals, appellant made the same arguments as it

made to the Board of Revision:



              At this board's hearing, Cheshire's counsel essentially reiterated

       the arguments made before the board of revision.          He indicated that

       Cheshire's requested decreases were based on the removal of

       improvement value from one parcel, and the valuation of existing and

       proposed roadways on both parcels in accordance with the valuation of
Delaware County, Case No. 12-CAH-09-0067                                                 6

         another, similar parcel. H.R. at 9. We find both arguments are without

         merit.



         {¶15} In rejecting these arguments, the Board of Tax Appeals found no value

was attributed to the improvements for tax year 2008, and rejected appellant's like and

similar property valuation comparison, quoting the following from Benit v. Delaware

County Board of Revision, BTA No. 1993-B-722 (March 18, 1994):



                  "The appellant has attempted to show a lower value than assessed

         by the BOR. However, appellant's presentation of evidence fails to carry

         the burden of proof as to what the property is actually worth.          The

         appellant has submitted a comparative analysis of the tax valuation of

         certain neighboring land.     However, we have often stated that such

         information is not particularly helpful. 'Tax valuations are not sales, and a

         comparative analysis thereof is always subject to the objection that the tax

         valuations of the compared properties are not themselves market value.'

         Henry W. Haydu v. Portage Cty. Bd. of Revision (June 18, 1993), BTA No.

         1992-H-576, unreported. Paul L. and M. Courtney Caron v. Hamilton Cty.

         Bd. Of Revision (August 27, 1993), BTA No. 1992-B-879, unreported." Id.

         at 6.



         {¶16} As noted by the Board of Tax Appeals, the mere comparison of one

parcel's valuation vis-á-vis another without more is insufficient.      WJJK Investments,

supra.
Delaware County, Case No. 12-CAH-09-0067                                                7

       {¶17} Simply stated, appellant sought to lower the valuation of its parcels using

a parcel similarly situated absent any fair market value assessment or other factors to

justify the use of the other parcel's valuation. Absent any corroborating evidence of

other like or similar factors, we concur that appellant failed to meet its burden.

       {¶18} Appellant also argues it was not its burden to dispute the decision of the

Board of Revision, but it was appellee's burden which they failed to meet. We disagree.

"[A] taxpayer has the duty to prove his right to a reduction in value." Cleveland Board of

Education v. Cuyahoga County Board of Revision, 68 Ohio St.3d 336, 337, 1994-Ohio-

498, quoting Zindle v. Summit County Board of Revision, 44 Ohio St.3d 202, 203

(1989).

       {¶19} The methods for determining valuation may be arrived at by the market

data approach, the cost approach, or the income approach. Villa Park Ltd. v. Clark

County Board of Revision, BTA No. 90-H-558 (June 26, 1992). Appellant presented

none of the accepted approaches to the Board of Revision, but maintained the other

undeveloped purposed dedicated roadway parcel was a good measure of value. As we

noted above, no other factors were presented to substantiate the use of the other

parcel.   As our brethren from the Eighth District rejected the use of surrounding

properties, we too reject appellant's arguments herein.         Sherman v. Board of Tax

Appeals, 8th Dist. No. 7597, 2000 WL 263277 (March 9, 2000).

       {¶20} No other valuations were presented by appellee School Board as it sought

to rely on the auditor's valuations. Appellee School Board argues it has met its burden

by disproving the validity of appellant's approach to valuation as flawed by using the

"other parcel" argument. We concur with this argument. Appellee School Board sought

the reversal of the revaluation and prayed for the original assessed value to be
Delaware County, Case No. 12-CAH-09-0067                                              8

reinstated. Once the Board of Tax Appeals rejected appellant's valuation approach, the

only valuation left was the Delaware County Auditor's original assessment.

      {¶21} Upon review, we hereby find appellee School Board met its burden and

the Board of Tax Appeals did not abuse its discretion in rejecting appellant's valuation

approach.

      {¶22} Assignments of Error I, II, III, IV, and V are denied.

      {¶23} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




                                             _______________________________



                                             _______________________________



                                             _______________________________

                                                           JUDGES

SGF/sg 524
[Cite as Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revison, 2013-Ohio-2892.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



BOARD OF EDUCATION OF THE                              :
OLENTANGY LOCAL SCHOOLS                                :
                                                       :
        Appellant-Appellee                             :
                                                       :
-vs-                                                   :
                                                       :
DELAWARE COUNTY BOARD                                  :           JUDGMENT ENTRY
OF REVISON, ET AL.                                     :
                                                       :
        Appellees-Appellees                            :
                                                       :
-vs-                                                   :           CASE NO. 12-CAH-09-0067
                                                       :
CHESHIRE DEVELOPERS, LLC                               :
                                                       :
        Appellee-Appellant                             :



        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                                       _______________________________



                                                       _______________________________



                                                       _______________________________

                                                                         JUDGES
