[Cite as Devan v. Cuyahoga Cty. Bd. of Revision, 2015-Ohio-4279.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102945



                                     MARK R. DEVAN
                                                          PLAINTIFF-APPELLANT

                                                    vs.


                    CUYAHOGA COUNTY BOARD OF
                         REVISION, ET AL.
                                                          DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-831761

        BEFORE: Kilbane, J., Keough, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                         October 15, 2015
ATTORNEY FOR APPELLANT

William Livingston
Berkman, Gordon, Murray & Devan
55 Public Square - Suite 2200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Mark R. Greenfield
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Appellant, Mark R. DeVan (“DeVan”), appeals from the trial court’s

judgment affirming appellee, Cuyahoga County Board of Revision’s (“BOR”), denial of

his application for the homestead exemption. For the reasons set forth below, we reverse

and remand.

       {¶2} In January 2014, DeVan filed a “late” application for a homestead exemption

for the tax year 2013 with the Cuyahoga County Fiscal Officer (“Fiscal Officer”) for

property located at 233 Prestwick Drive, Broadview Heights, Ohio 44147.1 He took title

to this residence on August 30, 2013. On the application, it asked the applicant to

declare under the penalty of perjury that:

       (1) I occupied this property as my principal place of residence on Jan. 1 of
       the year(s) for which I am requesting the homestead exemption, (2) I
       currently occupy this property as my principal place of residence, (3) I did
       not acquire this homestead from a relative or in-law, other than my spouse,
       for the purpose of qualifying for the homestead exemption, and (4) I have
       examined this application, and to the best of my knowledge and belief, this
       application is true, correct and complete.

       {¶3} DeVan’s application was denied by the Fiscal Officer in April 2014 because

his “income exceed[ed] threshold,” apparently applying the new income threshold limits

effective for the tax year 2014. DeVan appealed the denial to the BOR and appeared

before the board on July 5, 2014. He argued that he was entitled to the homestead


       1DeVan’s
              application is considered “late” because he applied for the tax year
2013 homestead exemption in 2014, rather than in 2013.
exemption because he turned 65 years of age in 2013 and was not subject to any income

requirement to receive the benefit for the tax year 2013. On August 7, 2014, the BOR

denied his application because DeVan’s “income exceeds threshold for means test,” also

apparently applying the new income threshold limits effective for the tax year 2014.

      {¶4} DeVan then filed a notice of appeal with the Cuyahoga County Court of

Common Pleas on August 25, 2014. On March 31, 2015, the trial court affirmed the

BOR’s denial of DeVan’s application for a homestead exemption, not because of the

income threshold, but rather because “he did not own and occupy his property on January

1, 2013.”

      {¶5} It is from this order that DeVan now appeals, raising the following single

assignment of error for review.

                                  Assignment of Error

      The court below erred in affirming the [BOR’s] denial of [DeVan’s]

      application for a homestead exemption.

                                   Standard of Review

      {¶6} With respect to the standard of review, we recognize that the common pleas

court has a duty on an appeal from a decision by the BOR to independently weigh and

evaluate all evidence properly before it.      The court is then required to make an

independent determination concerning the valuation of the property at issue. The court’s

review of the evidence should be thorough and comprehensive and should ensure that its

final determination is more than a mere rubber stamping of the board of revision’s
determination. Black v. Cuyahoga Cty. Bd. of Revision, 16 Ohio St.3d 11, 13-14, 475

N.E.2d 1264 (1985).

       {¶7} This court may not reverse the decision of the common pleas court absent an

abuse of discretion. Id. at 14, citing Jennings & Churella Constr. Co. v. Lindley, 10

Ohio St.3d 67, 461 N.E.2d 897 (1984).         See Powell v. Bd. of Revision, 8th Dist.

Cuyahoga No. 98681, 2013-Ohio-2460. In Lorain City School Dist. Bd. of Edn. v. State

Emp. Relations Bd., 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988), the Ohio

Supreme Court set forth the standard of review of this court as follows:

       In reviewing an order of an administrative agency, an appellate court’s role
       is more limited than that of a trial court reviewing the same order. * * *
       The appellate court is to determine only if the trial court has abused its
       discretion. An abuse of discretion * * * implies not merely error of
       judgment, but perversity of will, passion, prejudice, partiality, or moral
       delinquency. * * * Absent an abuse of discretion on the part of the trial
       court, a court of appeals must affirm the trial court’s judgment.

       {¶8} In his sole assignment of error, DeVan argues he would have been entitled to

the homestead exemption if he never moved to a new residence because he turned 65 in

May 2013. DeVan contends the trial court’s finding — that he is not entitled to the

exemption because he did not live in his current residence on January 1, 2013 — “lacks a

rational basis and amounts to an abuse of discretion” because he would have been entitled

to the exemption had he not moved in August 2013.

       {¶9} It appears that DeVan’s reference to “rational basis” is a challenge to the

constitutionality of the homestead exemption. The first mention of a rational basis is in

DeVan’s reply brief to the BOR’s motion to affirm the BOR’s denial of his application.
The “failure to raise at the trial court level the issue of the constitutionality of a statute or

its application, which is apparent at the time of trial, constitutes a waiver of such issue

and a deviation from this state’s orderly procedure, and therefore need not be heard for

the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),

syllabus.   We retain the discretion, however, to consider a waived constitutional

argument under a plain error analysis or where the rights and interests involved may

warrant it. In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988).

       {¶10} Longstanding precedent provides, however, that courts should avoid

reaching constitutional issues if they can decide the case on other grounds. See In re

Miller, 63 Ohio St.3d 99, 110, 585 N.E.2d 396 (1992); Hall China Co. v. Pub. Util.

Comm., 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977); State ex rel. Hofstetter v. Kronk,

20 Ohio St.2d 117, 119, 254 N.E.2d 15 (1969) (constitutional questions are not to be

decided unless “absolutely necessary”); Payphone Assoc. v. Cleveland, 146 Ohio App.3d

319, 331, 766 N.E.2d 167 (8th Dist.2001). In the instant case, we need not reach the

constitutional question because DeVan’s assignment of error is dispositive. See also

Gates Mills v. Mace, 8th Dist. Cuyahoga No. 84826, 2005-Ohio-2191.

       {¶11} Before addressing DeVan’s assignment of error, a brief history of the

homestead exemption, as set forth by the Ohio Supreme Court in Gilman v. Hamilton Cty.

Bd. of Revision, 127 Ohio St.3d 154, 2010-Ohio-4992, 937 N.E.2d 109, is in order.

Beginning in 1971, the General Assembly provided real property tax relief to residential

property owned and occupied by persons 65 and over. Id. at ¶ 9. This tax relief,
referred to as the homestead exemption, took the form of a credit against real property

taxes that was tied to the income of the owner-occupants of the property. Id., citing

Am.Sub.H.B. No. 475, 134 Ohio Laws, Part II, 1485, 1490-1494. This tax reduction was

originally available only because of the age of the owner-occupants; however the General

Assembly later extended the tax reduction to permanently and totally disabled

homeowners, certain surviving spouses who did not independently qualify for the

reduction, mobile and manufactured homes, and units in a housing cooperative. Id. ¶

9-10, citing Am.Sub.H.B. No. 23, 136 Ohio Laws, Part I, 1409-1413; Am.Sub.H.B. No.

66, 144 Ohio Laws, Part II, 2877; Am.Sub.S.B. No. 142, 147 Ohio Laws, Part IV, 7986,

8002; Am.Sub.H.B. No. 595, 148 Ohio Laws, Part III, 6422.

      {¶12} In 2007, the General Assembly broadened the availability of the tax credit

by eliminating the income test as a restriction on its availability.    Id.   With this

modification, the homestead exemption afforded tax relief on $25,000 of a property’s

value whenever the owner-occupants satisfied the age or disability criteria. Id., citing

R.C. 323.151 to 323.153, as amended, 127th General Assembly, Am.Sub.H.B. No. 119.

      {¶13} In September 2013, Am.Sub. H.B. 59 was enacted, effective for the tax year

2014. This new law amended the homestead exemption by limiting future homestead

                                                                              2
exemptions to applicants whose income did not exceed $30,000.00.                   R.C.

323.152(A)(1)(b)(iii). The legislature enacted a provision that allowed for individuals

who turned 65 years of age in 2013 to obtain the benefits of the homestead exemption


      2This   amount is to be indexed by inflation each year. R.C. 323.152(A)(1)(d).
regardless of their income by filing a “late application” as set forth in R.C. 323.153(B).

See R.C. 323.152(A)(1)(b)(ii). R.C. 323.153(B) provides that if the information within

the late application is correct, the auditor shall determine the amount of the reduction in

taxes to which the applicant would have been entitled for the preceding tax year had the

applicant’s application been timely filed and approved in that year.

       {¶14} We note that when interpreting statutes, a court’s principal concern is the

legislative intent in enacting the statutes.     Carnes v. Kemp, 104 Ohio St.3d 629,

2004-Ohio-7107, 821 N.E.2d 180, ¶ 16, citing State ex rel. Francis v. Sours, 143 Ohio St.

120, 53 N.E.2d 1021 (1944). To determine that intent, a court must first look at the

words of the statutes themselves. Id. We are also mindful that all statutes relating to the

same general subject matter must be read in pari materia. Johnson’s Markets, Inc. v.

New Carlisle Dept. of Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1991). In

construing statutes together, a court must give them “a reasonable construction as to give

proper force and effect to each and all such statutes.” Id., citing Maxfield v. Brooks, 110

Ohio St. 566, 144 N.E. 725 (1924). The interpretation and application of statutes must

be viewed in a manner to carry out the legislative intent of the sections. Id.

       {¶15} We now apply these principles to the statutory scheme governing the

homestead exemption found, as relevant here, in R.C. 323.151 through R.C. 323.154.3




       3The statutory scheme governing the homestead exemption includes
R.C. 323.151 through 323.159.
       {¶16} The homestead exemption applies to real property taxes imposed on various

types of dwellings owned and occupied as a home by an individual whose domicile is in

this state.     R.C. 323.151(A)(1).         Effective for the tax year 2014, R.C.

323.152(A)(1)(a)(iii) and (b)(iii) qualify persons 65 years of age or older, with a total

income of less than $30,000, for the homestead exemption.

       {¶17} R.C. 323.153 sets forth the process by which qualified individuals may

obtain the tax reduction. “To obtain a reduction in real property taxes under division

[R.C. 323.152 (A)], the owner shall file an application with the county auditor of the

county in which the owner’s homestead is located.” R.C. 323.153(A). “The * * *

application * * * shall be in the form of a signed statement[,] * * * shall be filed after the

first Monday in January and not later than the first Monday in June. The application * *

* shall be filed in the year for which the reduction is sought.” R.C. 323.153(A)(3). This

section further provides that

       [t]he statement shall be on a form, devised and supplied by the tax
       commissioner, which shall require no more information than is necessary to
       establish the applicant’s eligibility for the reduction in taxes and the amount
       of the reduction, and * * * shall include an affirmation by the applicant that
       ownership of the homestead was not acquired from a person, other than the
       applicant’s spouse, related to the owner by consanguinity or affinity for the
       purpose of qualifying for the real property * * * tax reduction provided for
       in [R.C. 323.152(A)].

Id.

       {¶18} R.C. 323.153(B) provides that if the information within a late application is

correct, the auditor shall determine the amount of the reduction in taxes to which the
applicant would have been entitled for the preceding tax year had the applicant’s

application been timely filed and approved in that year.

       {¶19} R.C. 323.154, which governs the approval or denial of the homestead

application by the county auditor, provides in pertinent:

       The county auditor shall approve or deny an application for reduction under
       [R.C. 323.152] and shall so notify the applicant not later than the first
       Monday in October. Notification shall be provided on a form prescribed
       by the tax commissioner. If the application is approved, upon issuance of
       the notification the county auditor shall record the amount of reduction in
       taxes in the appropriate column on the general tax list and duplicate of real
       and public utility property and on the manufactured home tax list. If the
       application is denied, the notification shall inform the applicant of the
       reasons for the denial.

       {¶20} DeVan contends that the legislature did not intend to reject an otherwise

qualifying applicant from receiving the homestead exemption simply because the

applicant purchased a new home. He further contends that when the legislature amended

the homestead exemption statutes, it did not specifically require in R.C. 323.153(A)(3),

which governs the homestead application, that the applicant must own the property on

January 1 of the tax lien year. On the other hand, the BOR argues DeVan is not entitled

to the exemption because he did not own and occupy the Broadview Heights residence on

January 1, 2013. In support of its argument, the BOR relies on Dugan v. Franklin Cty.

Bd. of Revision, 10th Dist. Franklin No. 14AP-351, 2014-Ohio-4491, discretionary

appeal not allowed, 142 Ohio St.3d 1411, 2015-Ohio-1099.             Dugan, however, is

distinguishable from the matter before us.
        {¶21} In Dugan, the appellants, who were 65 years of age, owned and occupied a

residence in Upper Arlington on January 1, 2007. In May 2007, the appellants purchased

and moved into a newly built condominium home in Hilliard. The Hilliard parcel had

been subdivided on February 22, 2007, from a larger parcel owned by the condominium

developer. The Hilliard parcel did not exist as a stand-alone parcel on January 1, 2007.

Id. at ¶ 2.

        {¶22} In May 2007, the appellants applied for a homestead exemption for the

Hilliard parcel for tax year 2007.      Approximately one month after submitting their

application, the appellants sold their Upper Arlington residence. In October 2007, the

Franklin County auditor denied appellants’ application for homestead exemption because

the “‘Applicant’s name [was] not on [the] deed [for the Hilliard parcel] as of January 1,

2007.’” Id. at ¶ 3. Appellants appealed the denial to the board of revision. Following

a hearing, the board dismissed appellants’ complaint for want of jurisdiction because

“‘[the Hilliard parcel] did not appear on the tax list and duplicate for tax lien date January

1, 2007.”’ Id. Appellants appealed to the board of tax appeals (“BTA”), and following

a hearing, the BTA affirmed the board’s dismissal of appellants’ complaint for the same

reasons as the board. Id.

        {¶23} Appellants then appealed to the Tenth District Court of Appeals. The court,

in looking at R.C. 323.151 through 323.154 and 323.11, found that the denial of

appellants’ application was proper, because the parcel did not exist as a stand-alone parcel

on January 1, 2007, and the plain language of R.C. 323.11 did not establish a new tax lien
date for newly platted parcels.     Id. at ¶ 24.     Rather, R.C. 323.11 permitted the

apportionment of taxes between portions of a parcel that existed as of January 1, based

upon the value as of January 1. Id. at ¶ 25. The court stated:

      R.C. 323.151 through 323.154, read in pari materia, belie appellants’ claims
      that the January 1, 2007 tax lien date and their ownership of the Hilliard
      parcel on that date are irrelevant to a determination of their entitlement to
      the homestead exemption. First, in compliance with R.C. 323.153(A)(3)
      and under the authority of R.C. 5715.30, the tax commissioner promulgated
      the homestead application form, DTE 105A, which specifically requires the
      applicant to “declare under the penalty of perjury that (1) I occupied this
      property as my principal place of residence on Jan. 1 of the year(s) for
      which I am requesting the homestead exemption, (2) I currently occupy this
      property as my principal place of residence, (3) I did not acquire this
      homestead from a relative or in-law, other than my spouse, for the purpose
      of qualifying for the homestead exemption, and (4) I have examined this
      application, and to the best of my knowledge and belief, this application is
      true, correct and complete.” Thus, contrary to appellants’ assertion that the
      application “does not inquire of an applicant where he lived on January 1 of
      the application year,” the application clearly delineates that the applicant
      must occupy the property for which the homestead exemption is sought as
      the applicant’s principal place of residence on January 1 of the relevant tax
      year.

      ***

      Secondly, R.C. 323.154 also references the January 1 tax lien date. The
      statute provides that, upon approval of an application for the homestead
      exemption, the auditor must issue a certificate of reduction in taxes which
      states “the taxable value of the homestead on the first day of January of that
      year.”

      ***

      Further, R.C. 323.151(A)(1) mandates that the dwelling for which the tax
      reduction is sought must be “owned and occupied as a home.” R.C.
      323.152(A)(2) similarly limits the tax reduction to “a homestead owned and
      occupied” by a qualified applicant. The application form referenced in
      R.C. 323.153(A)(3) requires the applicant to identify specific characteristics
      of the dwelling for which the tax reduction is sought, including the type of
       dwelling, the address of the dwelling, and the applicant’s ownership interest
       in the dwelling. The application also requires identification of any
       “additional home(s)” owned by the applicant. In addition, the application
       requires the applicant to declare under penalty of perjury that the applicant
       occupied the property as the applicant’s principal place of residence, and
       the instructions for completing the application define principal place of
       residence.

       R.C. 323.154 also ties the homestead exemption to real property. The
       statute twice references entitlement of the “homestead” to the reduction in
       real estate taxes. R.C. 323.154 directs the auditor to issue a certificate of
       reduction to a person who has complied with R.C. 323.153 and “whose
       homestead * * * the auditor finds is entitled to a reduction.” The statute
       then addresses the contents of a certificate of reduction issued “in the case
       of a homestead entitled to a reduction.”            Contrary to appellants’
       contentions, the statutes governing the procedures for administering the
       homestead exemption program clearly contemplate application of the tax
       reduction to a particular homestead owned and occupied by a qualified
       applicant on January 1 of the relevant tax year.

Id. at ¶ 18, 20, 22-23.

       {¶24}    Dugan is distinguishable in two respects.      First, the Dugans did not

occupy the homestead (their condo) at the time of their application, rather they were

claiming an exemption for a parcel of land; and second, the applicable statutes relied on

by the Dugan court were the versions prior to the latest amendment by the legislature.

Unlike the instant case, where both parties are in agreement that DeVan would have been

entitled to the homestead exemption had he filed his application before he purchased his

Broadview Heights residence in August 2013.          Furthermore, DeVan occupied the

homestead (a house) at the time of the application, and the current version of R.C.

323.154 no longer references the January 1 tax lien date relied on by the Dugan court.
       {¶25} Indeed, the General Assembly modified the requirements for the approval or

denial of the homestead exemption in the current version of R.C. 323.154 by deleting any

reference to the January 1 tax lien date. Had the legislature intended for the applicant to

reside in the homestead at the time of the application, it would have included such a

requirement in R.C. 323.151 through 323.154.           Rather, the legislature specifically

deleted the January 1 language from the current version of R.C. 323.154. Moreover, had

the legislature intended to carve out an exception to the benefit of a late application for

applicants who moved during the tax year 2013, it would have done so.

       {¶26} Therefore, an interpretation of R.C. 323.151 through 323.154 that requires

the applicant to occupy the residence as of January 1, 2013, for the tax year 2013

homestead exemption is inappropriate. As a result, the denial of DeVan’s homestead

application for the tax year 2013 on the basis that he did not own the Broadview Heights

residence as of January 1, 2013, is unreasonable.

       {¶27} Accordingly, the sole assignment of error is sustained.

       {¶28} Judgment is reversed. The matter is remanded with instructions for the trial

court to approve DeVan’s homestead exemption application for tax year 2013.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
