[Cite as Maralgate, L.L.C. v. Greene Cty. Bd. of Revision, 130 Ohio St.3d 316, 2011-Ohio-
5448.]




        MARALGATE, L.L.C., APPELLEE, v. GREENE COUNTY BOARD OF
                           REVISION ET AL., APPELLANTS.
            [Cite as Maralgate, L.L.C. v. Greene Cty. Bd. of Revision,
                       130 Ohio St.3d 316, 2011-Ohio-5448.]
Real property taxation—Valuation for current agricultural use—Transfer of part
        of property to related entity—Common ownership and contiguity of
        parcels—R.C. 5713.30(A)—Noncommercial timber.
  (No. 2010-1769—Submitted October 18, 2011—Decided October 26, 2011.)
            APPEAL from the Board of Tax Appeals, No. 2008-M-644.
                                __________________
        Per Curiam.
        {¶ 1} This is an appeal by the Greene County auditor and the Greene
County Board of Revision (“BOR”) from a decision of the Board of Tax Appeals
(“BTA”) that reversed the decision of the BOR and granted current-agricultural-
use-valuation (“CAUV”) status to a 70.959-acre parcel owned by Maralgate,
L.L.C. The parcel was purchased by the Turner Family Partnership as part of a
749-acre farm in March 2005. Apparently, the entire farm enjoyed CAUV status
until the parcel at issue was transferred from the family partnership to the
Maralgate entity on July 28, 2006. Thereafter, the Greene County auditor denied
the CAUV application for tax year 2007, and Maralgate filed a complaint with the
BOR, which held a hearing and denied the application. Maralgate then filed an
appeal to the BTA, which held a hearing of its own and issued a decision
reversing the BOR and granting the CAUV status. The county has appealed.
        {¶ 2} Central to all the county’s arguments is its contention that because
of the transfer of the one parcel from Turner Family Partnership to Maralgate, the
tax status of that parcel had to be determined in isolation, without regard to the
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use of adjacent parcels still directly owned by the partnership. Because almost 60
percent of the parcel has trees that are not grown for commercial purposes, the
most important consideration is whether the parcel was, for purposes of R.C.
5713.30(A)(1), under “common ownership” with the rest of the farm.
       {¶ 3} We hold that the parcel was under common ownership with the
rest of the farm.    Guided by that central holding, we reject two additional
arguments advanced by the county. First, contrary to the county’s assertion, the
phrase “growth of timber for a noncommercial purpose” in R.C. 5713.30(A)(1)
does not require that the trees in question be grown as a crop. Second, the county
is mistaken when it contends that Maralgate could receive the tax preference only
for that portion of the parcel that was being actively cultivated; as a result,
Maralgate did not have the burden to present a land survey showing how much of
the parcel was devoted to different uses. Contrary to the county’s argument, the
case law requires such a survey only if there is a commercial use of part of a
parcel that is not an agricultural use. In the present case, those portions of the
parcel not actively cultivated were not used for any commercial purpose.
       {¶ 4} Because we reject the arguments advanced by the appellants, we
affirm the decision of the BTA.
                                      I. Facts
       {¶ 5} In March 2005, the Turner Family Partnership acquired a 749-acre
farm consisting of more than one parcel in a single transaction. One component
of that farm was the 70.959-acre parcel that is at issue.        In July 2006, the
partnership assigned that parcel to Maralgate, L.L.C., in order to limit liability in
case of a drowning in one of the quarry ponds on the property.
       {¶ 6} Because of the change of ownership, the auditor declined to treat
the parcel as part of the larger farm. Instead, she reviewed the application solely
in light of the uses of the parcel itself. Pursuant to that review, the auditor and




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subsequently the BOR determined that the parcel did not qualify for CAUV
treatment for 2007.
        {¶ 7} Maralgate appealed to the BTA, which held a hearing on October
15, 2009. At that hearing, Maralgate offered the testimony of Albert J. Turner III,
a principal and the general partner of the Turner Family Partnership.
        {¶ 8} Turner testified that the partnership acquired the “Noble Farm,” a
749-acre tract that included the property at issue, through auction in February
2005.   In July 2006, the partnership transferred the parcel to Maralgate for
liability reasons relating to the ponds. Maralgate is a single-member limited-
liability company wholly owned by the Turner Family Partnership.
        {¶ 9} Turner himself farmed the larger farm, including the parcel at
issue, and testified that the cultivation involved the field crops soybeans and corn.
Turner stated that there were about 20 acres of “agricultural land” on the parcel.
But he amended that testimony to 19.7310 based on reviewing the property record
card, which sets forth “tillable,” “woodland,” and “right of way” acreage. As for
the portion of the parcel actually under cultivation, approximately 2.2 acres were
farmed in the northwest corner of the parcel, and Turner’s testimony indicated
(with very little precision) that additional land in the eastern and southeastern part
of the parcel had been cleared and farmed. Turner additionally testified that the
parcel generated at least $2,500 per year.
        {¶ 10} The record does not contain Maralgate’s 2007 CAUV application,
but at the BOR hearing, the auditor explained her grounds for denying the
preferred tax status: “[Y]ou have to [actually farm] at least 25 percent [of the
parcel] * * * and you are not meeting the 25 percent for farming purposes” as to
the parcel. As for the integration of the parcel into the whole 749-acre farm, the
auditor stated her position that “[e]ven though it’s owned by the same family it’s
not the same name” and that as a result of the partnership having “transferred it
into an LLC,” the parcel’s tax status must be determined in isolation from the



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remainder of the farm. The BOR denied Maralgate’s complaint on the grounds of
“no documentation provided and no proof of income.”
         {¶ 11} After Maralgate appealed to the BTA, the board held a hearing at
which it reviewed an aerial photograph of the parcel and heard testimony of
Turner. The BTA issued its decision on September 21, 2010. 1 The BTA first
found that “the property, as a part of the larger farm, had been continuously
farmed during the relevant time period.” (Sept. 21, 2010), BTA No. 2008-M-644,
at 6. Second, the BTA cited an earlier decision for the proposition that in R.C.
5713.30(A)’s reference to exclusive agricultural use, “exclusively” means
“primarily.”2      In this context, the BTA acknowledged the BOR’s view that
because “a single parcel of land may be divided into separate economic units, all
or some of which may qualify for CAUV and others of which may not,” the
property owner should “specify the boundaries of the economic units.” Id. at 7.
But the BTA rejected the application of that doctrine in the present case on the
grounds that the parcel “has not been divided into separate economic units,”
inasmuch as “[n]o income, other than farm income, devolves from any portion of
the property.” (Emphasis sic.) Id. The BTA determined that the wooded portion
of the parcel enjoyed the preferred tax status because it was under common
ownership with the surrounding Turner Family Partnership parcels pursuant to


1. At page 8 of its decision, the BTA notes that “the tillable land * * * comprises 19 acres,” and
on page 9, the BTA states that “[t]he 19-20 acres that have been and continue to be planted each
year are also entitled to CAUV status.” The county points out that land determined to be suited
for agricultural use is not necessarily under actual cultivation. To the extent that there is any
factual mistake on the BTA’s part, however, it is inconsequential: the BTA predicated its decision
on considering the parcel as part of the 749-acre farm, and the county does not claim that the
agricultural use is insubstantial in relation to the entire farm.

2. The county contends that the BTA erred by stating that exclusive use under R.C. 5713.30(A)
means primary use. The county is correct to the extent that any commercial use of a portion of a
parcel that is not agricultural will defeat the claimant’s right to obtain CAUV status, at least as to
that nonagricultural portion. But as discussed below, the BTA’s decision does not fall into error,
because the BTA correctly distinguished the incidental uses in this case as noncommercial and
found that they did not defeat the CAUV claim.




                                                  4
                                January Term, 2011




R.C. 5713.30(A)(1). Id. at 7-8. The BTA also found that the portion of the parcel
that was being tilled should enjoy CAUV status and declined to require
detachment of the other portions of the parcel. Id. at 8. Accordingly, the BTA
reversed the BOR’s denial of CAUV status and ordered that it be granted.
       {¶ 12} The BOR and the auditor have appealed, and we now affirm.
                                    II. Analysis
       {¶ 13} By a 1973 amendment to the state Constitution, Ohio voters
authorized the General Assembly to depart from uniformity in valuing real
property by permitting farms to be valued in accordance with their current
agricultural use rather than their market value.       Section 36, Article II, Ohio
Constitution; 1973 House Joint Resolution 13, 135 Ohio Laws, Part I, 2043; see
Fife v. Greene Cty. Bd. of Revision, 120 Ohio St.3d 442, 2008-Ohio-6786, 900
N.E.2d 177, ¶ 3.     “Under the authorizing amendment and the implementing
statutes, ‘the auditor disregards the highest and best use of the property and values
the property according to its current agricultural use,’ a procedure that ‘usually
results in a lower valuation and a lower real property tax.’ ” Id., ¶ 4, quoting
Renner v. Tuscarawas Cty. Bd. of Revision (1991), 59 Ohio St.3d 142, 143, 572
N.E.2d 56.
       {¶ 14} The implementing legislation is set forth at R.C. 5713.30 et seq.
Central to the resolution of the case before us is the definition of “land devoted
exclusively to agricultural use” at R.C. 5713.30(A). Division (A)(1) offers a
definition applicable to “[t]racts, lots, or parcels of land totaling not less than ten
acres,” while division (A)(2) states a definition applicable to tracts of less than ten
acres. Because we affirm the BTA’s grant of CAUV status under division (A)(1),
we do not reach and do not address the applicability of division (A)(2).




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   A. The parcel is under “common ownership” with the 749-acre Turner
          family farm because the family partnership owns Maralgate
        {¶ 15} Under R.C. 5713.30(A)(1), “[t]racts, lots, or parcels of land”
qualify for CAUV treatment to the extent that during the requisite period, they are
“devoted exclusively to commercial animal or poultry husbandry, aquaculture,
apiculture, the production for a commercial purpose of timber, field crops,
tobacco, fruits, vegetables, nursery stock, ornamental trees, sod, or flowers.”
Additionally, the statute provides that tracts, lots, or parcels devoted exclusively
to the “growth of timber for a noncommercial purpose” may qualify “if the land
on which the timber is grown is contiguous to or part of a parcel of land under
common ownership that is otherwise devoted exclusively to agricultural use.”3
We hold that to the extent that it is wooded, the parcel qualifies for CAUV status
under R.C. 5713.30(A)(1).
        {¶ 16} Three uses of property described in division (A)(1) occurred on the
parcel. First, field crops were cultivated on approximately three acres in the
northwest corner of the parcel and an indeterminate portion in the south and east
of the parcel. Second, a portion of the parcel is covered with ponds that are
vestiges of earlier quarrying conducted on the parcel, while another portion is
devoted to a landfill that the owner permits the county to use without charge.
        {¶ 17} Third and most significantly, more than 40 of the 70 acres of the
parcel were wooded, but the trees were not cultivated as a crop. Thus, the stand
of trees covered some 57 percent of the parcel, and its presence raises the question
whether the parcel constitutes land “contiguous to or part of a parcel of land under
common ownership that is otherwise devoted exclusively to agricultural use” for
purposes of R.C. 5713.30(A)(1).


3. A stand of noncommercial timber may also qualify as part of a federal land-retirement or
conservation program, but that provision is not at issue here.




                                            6
                                   January Term, 2011




         {¶ 18} The county contends that the parcel cannot be treated as part of the
larger farm under R.C. 5713.30(A)(1) because Maralgate is not identical to the
Turner Family Partnership, i.e., it is a different entity that owns the property. The
county cites an administrative rule of the tax commissioner that defines “[t]racts,
lots, or parcels” as “all distinct portions or pieces of land (not necessarily
contiguous) where the title is held by one owner, as listed on the tax list and
duplicate of the county, which are actively farmed as a unit if together the total
acreage meets the requirements of section 5713.30(A)(1) or (A)(2), of the Revised
Code.”     (Emphasis added.)        Ohio Adm.Code 5703-25-30(B)(25).              That rule
plainly contemplates an identity of owners. Contrary to the county’s contention,
however, the rule does not apply to the situation before us.
         {¶ 19} As noted, the relevant statutory language is in R.C. 5713.30(A)(1):
land devoted to “the growth of timber for a noncommercial purpose” may qualify
for CAUV status if it is contiguous to and under common ownership with land
that is otherwise devoted to agricultural use. The applicable statutory language is
“common ownership,” which connotes a wider scope than that contemplated by
the administrative rule.      Different corporate entities—such as Turner Family
Partnership and Maralgate—are said to be under common ownership when they
are parent and subsidiary, or when they each have the same members or
shareholders. See, e.g., Union Bldg. & Constr. Corp. v. Bowers (1958), 110 Ohio
App. 81, 86-87, 12 O.O.2d 254, 158 N.E.2d 386 (fact of “common ownership” of
the two parties to a transaction did not avoid sales-tax obligation where the sales-
tax vendor was a wholly owned subsidiary of the sales-tax purchaser).
         {¶ 20} The county argues that the tax commissioner’s rule, which requires
the same entity to be listed as owner of the different parcels, controls the scope of
“common ownership” under R.C. 5713.30(A)(1). We disagree. 4

4. We recognize that requiring parcels to be titled to the very same owner has the substantial
advantage of making the common ownership immediately evident to the auditor. That




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        {¶ 21} It is elemental that an administrative rule such as Ohio Adm.Code
5703-25-30 is “ ‘designed to accomplish the ends sought by the legislation
enacted by the General Assembly,’ ” and an administrative rule “ ‘does not
conflict with a statute to the extent that it provides a reasonable, supportable
interpretation of it.’ ” Rich’s Dept. Stores, Inc. v. Levin, 125 Ohio St.3d 15, 2010-
Ohio-957, 925 N.E.2d 951, ¶ 17, quoting Hoffman v. State Med. Bd. of Ohio, 113
Ohio St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶ 17, and Chicago Pacific
Corp. v. Limbach (1992), 65 Ohio St.3d 432, 435, 605 N.E.2d 8. Moreover, “ ‘an
administrative rule that is issued pursuant to statutory authority has the force of
law unless it is unreasonable or conflicts with a statute covering the same subject
matter.’ ” Nestle R&D Ctr., Inc. v. Levin, 122 Ohio St.3d 22, 2009-Ohio-1929,
907 N.E.2d 714, ¶ 40, quoting State ex rel. Celebrezze v. Natl. Lime & Stone Co.
(1994), 68 Ohio St.3d 377, 382, 627 N.E.2d 538.
        {¶ 22} R.C. 5715.29 authorizes the tax commissioner to prescribe rules
concerning “the exercise of the powers and the discharge of the duties” of the
auditor in relation to “the assessment of property and the levy * * * of taxes.” As
R.C. 5713.31 acknowledges, this authority extends to prescribing rules for valuing
land that has been determined to be “devoted exclusively to agricultural use.”
Moreover, the authority by its terms encompasses the eligibility of land for
CAUV. Thus, the administrative rules at issue fall generally within a grant of
rule-making authority to the commissioner.
        {¶ 23} Nonetheless, we do not read Ohio Adm.Code 5703-25-30(B)(25)
as imposing the same-owner limitation on the language of R.C. 5713.30(A)(1).
The main reason is that the reference to “common ownership” was enacted into
R.C. 5713.30(A)(1) many years after the administrative rule was promulgated.


consideration is not decisive, however, given that the board of revision proceedings pursuant to
R.C. 5715.19 permit the introduction of evidence of common ownership when the owners are not
identical.




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                               January Term, 2011




See Castillo v. Jackson (1992), 149 Ill.2d 165, 178, 171 Ill.Dec. 471, 594 N.E.2d
323 (attaching little interpretative significance to a Labor Department program
letter because the letter was promulgated “well before” the passage of the relevant
statute).
        {¶ 24} Specifically, the text that is currently the tax commissioner’s rule
at Ohio Adm.Code 5703-25-30 was originally a BTA rule promulgated in 1973
that was codified in the Ohio Administrative Code on November 11, 1977, as a
rule of the former commissioner of tax equalization at Ohio Adm.Code 5705-5-
01. 1977 Ohio Monthly Record 3-652. Subsequently, the rules codified at Ohio
Adm.Code Title 5705 were recodified as Chapter 5703-25, at which time the
language became part of current Ohio Adm.Code 5703-25-30. 2003-2004 Ohio
Monthly Record 784, 795.
        {¶ 25} Meanwhile, the General Assembly amended R.C. 5713.30(A)
twice in a manner pertinent to the issue before us. See Dircksen v. Greene Cty.
Bd. of Revision, 109 Ohio St.3d 470, 2006-Ohio-2990, 849 N.E.2d 20, ¶ 16-21
(discussing the history of R.C. 5713.30(A)). Originally, the statute listed timber
among the agricultural products that, when cultivated for commercial purposes,
could qualify land for the preferred tax treatment. Am.Sub.S.B. No. 423, 135
Ohio Laws, Part II, 341, 344. Effective March 1993, the legislature removed
division (A)(1)’s reference to timber produced for commercial purposes and
substituted a provision that qualified timber “whether or not it is produced for a
commercial purpose.” 1992 Sub.H.B. No. 95, 144 Ohio Laws, Part II, 2994,
3001. Later in 1993, the statute was amended again so as to read as it currently
does—namely, land devoted to commercial timber production qualifies as well as
land devoted to “growth of timber for a noncommercial purpose, if the land on
which the timber is grown is contiguous to or part of a parcel of land under
common ownership that is otherwise devoted exclusively to agricultural use.”
1993 Am.Sub.H.B. No. 281, 145 Ohio Laws, Part III, 5281. Thus, the reference



                                         9
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to “common ownership” did not become part of the statute until almost 20 years
after the original promulgation of the rule.
       {¶ 26} Because the rule was promulgated long before the statutory
language at issue was enacted, we do not view the rule as an administrative
construction of that language. Moreover, a rule that would require the same entity
to be the owner of two parcels is arguably inconsistent with the statutory
requirement that land be under “common ownership,” as already indicated.
Simply put, the latter term indicates that once the information is in their
possession, the taxing authorities should look behind the person or entity named
on a deed to determine the ultimate ownership of two properties.
       {¶ 27} For the foregoing reasons, we reject the county’s contention that
Ohio Adm.Code 5703-25-30(B)(25) forecloses consideration of the parcel in
conjunction with the contiguous Turner family parcels.
         B. R.C. 5713.30(A)(1) explicitly allows the tax preference for
     noncommercial timber based on contiguity and common ownership
       {¶ 28} The county argues that noncommercial timber under R.C.
5713.30(A)(1) must still constitute a “crop” in order to qualify the wooded area of
the parcel for the tax preference. We disagree. As already discussed, the history
of R.C. 5713.30(A)(1)’s reference to timber demonstrates that the county is
mistaken. See Dircksen, 109 Ohio St.3d 470, 2006-Ohio-2990, 849 N.E.2d 20,
¶ 20-21. Originally, the statute referred to timber produced “for commercial
purposes.” Next, the statute was amended to include timber whether or not grown
for a commercial purpose. Finally, the current language limited the tax break for
noncommercial timber by requiring contiguity and common ownership.
       {¶ 29} This sequence of amendments shows that the General Assembly
intended to permit the tax break to apply to the wooded portions of a farm even if
the timber in those areas was not harvested as a crop. The county’s citation of
Rocky Fork Hunt & Country Club v. Testa (1995), 100 Ohio App.3d 570, 654




                                         10
                                January Term, 2011




N.E.2d 429, is unavailing. In that case, the parties disputed whether the wooded
portion of a parcel was devoted exclusively to agricultural use in 1992, before the
1993 amendments that permitted noncommercial timber to qualify for the tax
preference.     Thus, the Tenth District’s decision simply did not address the
provision of law at issue here, because it was not in effect at the time at issue in
that case.
   C. Granting CAUV status is not unreasonable when a parcel is part of
     and under common ownership with a larger farm and has a sizeable
             wooded area but no commercial use other than agriculture
        {¶ 30} Section 36, Article II of the Ohio Constitution authorizes the
legislature to provide preferential tax treatment where land is “devoted
exclusively to agricultural use.” R.C. 5713.30(A) implements the constitutional
authorization, setting forth when land is “devoted exclusively to agricultural use,”
and it does so by stating those agricultural uses that qualify for the tax preference.
        {¶ 31} The county argues that the tax preference must be granted on an
acre-by-acre basis and that the owner has the burden to demonstrate by land
survey precisely which portions of any particular parcel are subject to agricultural
use as defined. In support, the county cites Renner, 59 Ohio St.3d 142, 572
N.E.2d 56.
        {¶ 32} In both Renner and the later case, Furbay v. Tuscarawas Cty. Bd.
of Revision (1991), 61 Ohio St.3d 64, 572 N.E.2d 660, land that had previously
qualified for CAUV treatment was subject to a conversion, i.e., a loss of CAUV
status, pursuant to R.C. 5713.34. In each case, the owner had leased a portion of
the parcel to another entity for mining. When called upon to render a recoupment
of tax savings from earlier years, the owner in each case sought to reduce the
amount of recoupment by arguing that only some, not all, of the land had been
leased for a nonagricultural, commercial use.




                                          11
                             SUPREME COURT OF OHIO




        {¶ 33} The court held that an owner may reduce the amount of
recoupment by proving that a portion of the land continued to enjoy CAUV status.
But the court placed the burden firmly on the owner to demonstrate, by land
survey if necessary, the precise area devoted to agricultural and nonagricultural
use. Absent such proof, the recoupment must equal the tax savings that relate to
the entire parcel.
        {¶ 34} In this case, the BTA correctly concluded that Renner and Furbay
are not apposite. What was different in Renner and Furbay was the existence of a
new commercial use of the property that was not agricultural. Simply put, Renner
and Furbay underscore the proposition that when a portion of a parcel of real
estate is used for a commercial purpose that is not agricultural, the parcel itself
cannot be said to be “devoted exclusively to agricultural use.” It follows that if an
owner nonetheless desires to qualify some portion of the parcel that is still subject
to the agricultural use, the owner must show precisely what acreage is agricultural
and what acreage is subject to the other commercial use. But as the BTA stated,
the doctrine of Renner and Furbay does not apply here, because there is no
commercial use other than the agricultural. BTA No. 2008-M-644, at 7 (the
noncommercial uses of the parcel did not involve “economic units” that had to be
excluded from CAUV status).
        {¶ 35} The county also points to an administrative rule of the tax
commissioner to support its position. In particular, the rule requires that “[o]ne
acre for each residence on a parcel shall be valued as a homesite in the same
manner as similar homesites in the area on a market value basis.” (Emphasis
added.) Ohio Adm.Code 5703-25-34(I). On the basis of this pronouncement, the
county infers that “[w]hat applies to a homesite would, of course, equally apply to
a landfill or an abandoned quarry, none of which are used for an agricultural
purpose.” In other words, the county postulates that any acreage not directly




                                         12
                                  January Term, 2011




farmed must be separated and subjected to market valuation, even if it has no
separate commercial use.
          {¶ 36} We disagree. The administrative rule expressly creates a one-acre
carve-out for the farm home but remains silent on other uses incidental to
agricultural use.    Contrary to the county’s reasoning, we construe the rule’s
silence on other uses—such as the vestigial quarry ponds and the county’s
permissive and noncommercial use of a corner of the parcel as a landfill—as not
requiring a carve-out.      The conditions are merely that such uses be purely
incidental to the overall agricultural use and that they not be commercial in
nature.
          {¶ 37} In sum, the present case involves a 749-acre farm consisting of
contiguous parcels and, with respect to the parcel at issue, only one commercial
use—the growing of field crops, which is agricultural under R.C. 5713.30(A). As
discussed, there are about 40 acres of noncommercial timber on the parcel, and
they qualify for tax preference by virtue of their contiguity and common
ownership with the farm. With regard to the entire 749-acre tract (that being the
relevant unit), the county does not contend that agricultural use is insubstantial.
All that remains is at most 27 acres of the quarry ponds along with the area that
Maralgate allows the county to use, free of charge, as a landfill. This area
constitutes a mere 3.6 percent of the area of the entire Turner farm, and nothing in
the record suggests that its use is anything other than incidental to the farm as a
whole.
          {¶ 38} Under all these circumstances, we conclude that the BTA acted
reasonably and lawfully when it granted CAUV status to the entire parcel. We
therefore affirm the BTA’s decision.
                                     Conclusion
          {¶ 39} For the reasons set forth, the decision of the BTA is reasonable and
lawful. We therefore affirm it.



                                          13
                           SUPREME COURT OF OHIO




                                                          Decision affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                             __________________
       Rogers & Greenberg, L.L.P., James G. Kordik, and David M. Pixley, for
appellee.
       James R. Gorry, for appellants.
                          ______________________




                                         14
