[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Innkeeper Ministries, Inc. v. Testa, Slip Opinion No. 2016-Ohio-5104.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-5104
INNKEEPER MINISTRIES, INC., APPELLEE, v. TESTA, TAX COMMR., APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Innkeeper Ministries, Inc. v. Testa, Slip Opinion No.
                                   2016-Ohio-5104.]
Taxation―Real property―Charitable-use exemption―R.C. 5709.121(A)(2)―
        Recreational religious retreat designed for Christian leaders― Use
        restricted by religion―Property not eligible for exemption because use
        not made available on nondiscriminatory basis.
   (No. 2014-0490—Submitted December 15, 2015—Decided July 27, 2016.)
              APPEAL from the Board of Tax Appeals, No. 2010-2803.
                               ____________________
        Per Curiam.
        {¶ 1} This is an appeal from a decision of the Board of Tax Appeals
(“BTA”), which reversed the tax commissioner’s denial of a charitable-use
exemption to property owned by Innkeeper Ministries, Inc., and ordered that the
exemption be granted.         The property is extensive and contains two large
                              SUPREME COURT OF OHIO




residential buildings along with various recreational amenities.        Innkeeper’s
mission is to invite religious leaders to stay at the property at no charge and enjoy
the amenities, as well as free meals, as a type of spiritual retreat.
        {¶ 2} The tax commissioner has appealed, setting forth five propositions
of law. Among other things, the tax commissioner contends that the use of the
property as a residence by a caretaker couple and the lack of quantitive evidence
of its use in connection with their ministry defeats the claim for exemption. We
agree, and we therefore reverse on those grounds. Because we conclude that
these points are dispositive of the appeal, we do not reach the tax commissioner’s
other arguments.
                              FACTUAL BACKGROUND
                                   The organization
        {¶ 3} Innkeeper Ministries, Inc., is an Ohio nonprofit with 501(c)(3)
federal tax status. Robert Hartenstein is secretary/treasurer, Hartenstein’s son is
president, and Don Kline is a member-at-large of the board.
                                The property at issue
        {¶ 4} The property consists of 71.066 acres improved with two main
buildings, the Chesed Inn and the Eagle’s Wing Manor. The Chesed Inn has
seven bedrooms, the Manor an unspecified number; both buildings are used to
accommodate guests.
        {¶ 5} There is a swimming pool, basketball court, fishing ponds, and a
“prayer walk” through the wooded property. The properties were donated to the
ministry in four increments from 2002 through 2006. In December 2007, the
parcels were combined into a single tract for tax purposes.
                       Residential use, ministry, and mission
        {¶ 6} Robert and Janet Hartenstein, the caretakers, reside permanently in
part of the Chesed Inn. Two other relatives have lived there for lengthy periods as
well.




                                           2
                                 January Term, 2016




          {¶ 7} Innkeeper takes its mission from the parable of the Good Samaritan,
Luke 10:29-37, in which a Samaritan takes pity on a wounded traveler, binds his
wounds, and takes him to an inn, paying the innkeeper to look after him.
Innkeeper makes its amenities available free of charge to any full-time pastor,
parachurch leader, Christian school educator, or missionary, and their spouses as a
retreat and place of “Sabbath rest” restorative to the spirit. In addition to the
recreational amenities already discussed, there is also a cabin converted into a
chapel.
          {¶ 8} Robert Hartenstein offers counseling in the form of listening to
guests’ spiritual concerns and helping them to discern God’s will; he has no
formal training and there are no formal sessions. The Hartensteins cook meals for
all guests and take care of the premises; they accept their lodging there in lieu of
monetary compensation. No charge is made for the services, but unsolicited
donations are accepted.
          {¶ 9} The Hartensteins advertise the services offered at the property and
make them available generally on a year-round basis.           But they have not
succeeded in filling all the rooms at any one time.          The record contains
testimonial letters in support of the understanding that worship occurs on the
premises.
          {¶ 10} Although there is testimony and documentation relating to the
mission and the hospitality offered at the property, the record does not contain
financial statements or documentation of the numbers of persons served. The
only mention of a number occurs when Mr. Hartenstein was asked, “Do you know
how many have come seeking that type of need since the inception of the
ministry?” Hartenstein replied, “We quit counseling [sic] at 11,000.” In context,
it is not clear whether this number refers to the number of guests who stayed or
the number of persons who inquired about the services.           In any event, no
supporting documentation was submitted.




                                          3
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                       Proceedings before the tax commissioner
       {¶ 11} Innkeeper filed the exemption application in 2008, seeking
exemption for that year.      The application cites three statutes as grounds for
exemption: R.C. 5709.07(A), 5709.12(B), and 5709.121(A).
       {¶ 12} The tax commissioner issued his determination on August 9, 2010,
considering and denying exemption under R.C. 5709.07(A)(2), which exempts
houses used exclusively for public worship; R.C. 5709.07(A)(3), which exempts
church-owned property used primarily for church retreats and camps; and R.C.
5709.12(B) and 5709.121(A), which exempt property used exclusively for
charitable purposes.
       {¶ 13} As for R.C. 5709.07(A)(2), the commissioner found that the
property was not used to “facilitate public worship in a principal, primary and
essential way.” Instead, the property offered only an indirect support of worship
that did not qualify the property to be viewed as “used exclusively for public
worship.” As for R.C. 5709.07(A)(3), the commissioner found that the property
did not qualify as a church retreat because it was not owned by a church and it
was not used for church retreats but for “sabbaticals” for pastors and church
leaders.
       {¶ 14} As for charitable use, the commissioner cited the charity standard
from two cases, Highland Park Owners, Inc. v. Tracy, 71 Ohio St.3d 405, 644
N.E.2d 284 (1994), and Planned Parenthood Assn. v. Tax Commr., 5 Ohio St.2d
117, 214 N.E.2d 222 (1966). The commissioner stated that the activity at issue
here did not meet the standard because Innkeeper used the property “as a home
site,” its facilities were “not open or available to the general public,” and “any
benefit to the public or mankind generally is an indirect result of the applicant’s
activity of providing pastors and other church leaders with a place for
sabbaticals.”




                                          4
                                January Term, 2016




                            Proceedings before the BTA
       {¶ 15} Innkeeper appealed to the BTA. At the hearing the BTA held on
March 25, 2013, Innkeeper presented the testimony of Robert Hartenstein, the
applicant for the exemption, a principal of Innkeeper, and permanent on-site
resident on the property. In its brief at the BTA, Innkeeper abandoned its claims
under R.C. 5709.07 and focused exclusively on obtaining an exemption for
charitable use.
       {¶ 16} The BTA issued its decision on February 28, 2014. The BTA first
found that “Innkeeper’s year round use of the subject property, in providing a
place of respite for the physical and spiritual renewal of Christian leaders, without
charge, [is] sufficiently charitable in nature to fall within the definition of charity
set forth in Planned Parenthood [5 Ohio St.2d 117, 214 N.E.2d 222].” BTA No.
2010-2803, 2014 Ohio Tax LEXIS 1305, 6-7 (Feb. 28, 2014). This finding was
made in a paragraph discussing the standard for determining status of the owner
as a “charitable institution,” and the BTA’s finding equates to a finding that
Innkeeper so qualified.
       {¶ 17} Next, the BTA stated that “as a charitable institution, Innkeeper
must qualify for exemption pursuant to the provisions of R.C. 5709.121(A)(2)
* * *.” Quoting Cincinnati Community Kollel v. Testa, 135 Ohio St.3d 219,
2013-Ohio-396, 985 N.E.2d 1236, ¶ 28, for the proposition that “ ‘the focus of the
inquiry should be on the relationship between the actual use of the property and
the purpose of the institution,’ ” the BTA concluded that the property qualified for
exemption. The BTA found that Innkeeper used its property “in furtherance of or
incidental to its charitable * * * purposes and not with the view to profit” within
the meaning of R.C. 5709.121(A)(2).




                                          5
                             SUPREME COURT OF OHIO




 THE RESIDENTIAL USE OF THE PROPERTY AND THE LACK OF QUANTITATIVE
       EVIDENCE OF CHARITABLE USE MILITATE AGAINST EXEMPTION
         1.      Ohio law provides a specific exemption for church retreats, but
                            Innkeeper does not qualify
       {¶ 18} Earlier in these proceedings, the tax commissioner carefully
considered and denied exemption under R.C. 5709.07(A)(3), which exempts
“[r]eal property owned and operated by a church that is used primarily for church
retreats or church camping, and that is not used as a permanent residence.”
Innkeeper’s property at issue does not qualify under the plain terms of (A)(3) both
because it is not owned by a church and because it is subject to substantial
residential use by the Hartensteins. Indeed, at the hearing, Robert Hartenstein
stated, “[W]e are not a church.”
       {¶ 19} Innkeeper’s claim and the BTA’s decision reflect a reading of the
exemption for charitable use, R.C. 5709.12(B) and 5709.121, that is so expansive
that it in effect grants an exemption for a residential property opened to guests
with the goal of providing a spiritual retreat. The fact that an exemption exists for
such retreats but only when owned by churches suggests that recognizing a
charitable-use exemption here should be approached with caution. See Church of
God in N. Ohio, Inc. v. Levin, 124 Ohio St.3d 36, 2009-Ohio-5939, 918 N.E.2d
981, ¶ 30 (“we have recognized a general principle that a property owner may not
evade the limitations imposed with respect to a specific tax exemption by
claiming exemption under a broad reading of other exemption statutes”).
      2. Personal and permanent residential use militates against a finding of
                                       charitable use
       {¶ 20} The record demonstrates that the Hartensteins permanently reside
on the property at issue.      The tax commissioner correctly points out that
“ ‘[r]esidence in a dwelling with a family must necessarily be a private use of the
premises,’ ” and “ ‘[w]here the exercise of such private rights constitutes the




                                         6
                               January Term, 2016




primary use of the property, [that] property is no longer used exclusively for
charitable purposes.’ ” First Baptist Church of Milford v. Wilkins, 110 Ohio St.3d
496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 21, quoting W. Res. Academy v. Bd. of
Tax Appeals, 153 Ohio St. 133, 136, 91 N.E.2d 497 (1950). That logic has more
recently been extended to the denial of an exemption for low-income housing
furnished to tenants by a 501(c)(3) nonprofit organization, on the theory that the
tenants’ residential use means that the property use cannot be characterized as
“exclusively” charitable. See NBC-USA Hous., Inc.—Five v. Levin, 125 Ohio
St.3d 394, 2010-Ohio-1553, 928 N.E.2d 715, ¶ 6-9.
       {¶ 21} In opposition, Innkeeper faults the tax commissioner’s reliance on
First Baptist Church of Milford on the grounds that the exemption claim in that
case was advanced solely under R.C. 5709.12(B) directly, without recourse to
R.C. 5709.121. Under the expanded definition of “exclusive charitable use”
provided by R.C. 5709.121, Innkeeper contends, residential use does not defeat
exemption so long as such use qualifies as purely incidental to the charitable
purposes of the property owner. See R.C. 5709.121(A)(2); Cincinnati Nature Ctr.
Assn. v. Bd. of Tax Appeals, 48 Ohio St.2d 122, 357 N.E.2d 381 (1976);
Cincinnati Community Kollel v. Testa, 135 Ohio St.3d 219, 2013-Ohio-396, 985
N.E.2d 1236. While this argument is well grounded in the law, it sidesteps the
most fundamental issue in this case: whether Innkeeper could qualify as a
“charitable institution,” a prerequisite to applying R.C. 5709.121.
       {¶ 22} The flaw in Innkeeper’s argument, and in the BTA’s decision, is
that Innkeeper cannot qualify as a “charitable institution” in this case unless its
use of the property at issue, which is its only activity, can itself qualify as
charitable. “The determination whether a property owner qualifies as a charitable
institution under R.C. 5709.121 requires examination of the ‘core activity’ of the
institution and determining whether that activity qualifies as charitable for
property-tax purposes.” Rural Health Collaborative of S. Ohio, Inc. v. Testa, 145




                                         7
                             SUPREME COURT OF OHIO




Ohio St.3d 430, 2016-Ohio-508, 50 N.E.3d 486, ¶ 23, citing Dialysis Clinic, Inc.
v. Levin, 127 Ohio St.3d 215, 2010-Ohio-5071, 938 N.E.2d 329, ¶ 28-30; see also
Northeast Ohio Psych. Inst. v. Levin, 121 Ohio St.3d 292, 2009-Ohio-583, 903
N.E.2d 1188, ¶ 14-15. This circumstance distinguishes Innkeeper’s situation
decisively from that of the claimants in Cincinnati Nature Ctr. and Cincinnati
Community Kollel.
       {¶ 23} In Cincinnati Nature Ctr., the institution maintained a conservation
center and working farm encompassing some 750 acres, and it educated thousands
of students and teachers annually about ecology and the natural environment.
Two houses on the property were used as residences by two naturalists who were
full-time employees of the institution and as such were on call 24 hours a day to
prevent damage to the property. Under the circumstances of that case, it was clear
both that the institution through its activities could qualify as charitable and that
the provision of housing was merely incidental to the overriding charitable
purposes.
       {¶ 24} In Cincinnati Community Kollel, 135 Ohio St.3d 219, 2013-Ohio-
396, 985 N.E.2d 1236, we had in an earlier appeal determined that the Kollel
qualified as an educational institution for purposes of applying R.C. 5709.121.
See Cincinnati Community Kollel v. Levin, 113 Ohio St.3d 138, 2007-Ohio-1249,
863 N.E.2d 147. The remaining issue was whether the use of the property as
residences for the Kollel’s students should be regarded as a use “in furtherance of
or incidental to” the Kollel’s educational purposes within the meaning of R.C.
5709.121(A)(2). Because the BTA had imported additional standards beyond
those prescribed by the statute, we remanded for further proceedings.
       {¶ 25} Again we emphasize that Innkeeper cannot bootstrap itself into
charitable status merely by claiming exemption under R.C. 5709.121 as well as
under R.C. 5709.12(B) directly.




                                         8
                                January Term, 2016




       3. Given the residential use of the property, the BTA erred by failing to
                   require proof of the primacy of charitable hospitality
       {¶ 26} Like exemption applicants generally, Innkeeper bore the onus of
showing that “the language of the statute ‘clearly express[es] the exemption’ in
relation to the facts of the claim.” Anderson/Maltbie Partnership v. Levin, 127
Ohio St.3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16, quoting Ares, Inc. v.
Limbach, 51 Ohio St.3d 102, 104, 554 N.E.2d 1310 (1990). That burden extended
to demonstrating that its use of property lay within the ambit of what has been
deemed charitable by the case law. See id. at ¶ 22 (property used by its lessee as a
community school not within the scope of exemption permissible under Gerke v.
Purcell, 25 Ohio St. 229 (1874), because of the for-profit nature of the lease).
The case-law authority already discussed is inimical to viewing residential use as
charitable because that use is a private one not devoted to the good of the broader
public, and “[w]here the exercise of such private rights constitutes the primary use
of property,” the latter is “no longer used exclusively for a charitable purpose.”
W. Res. Academy, 153 Ohio St. at 136, 91 N.E.2d 497. Thus, Innkeeper’s burden
of proof required a clear demonstration of the primacy of the hospitality that is
extended to others over the personal, familial, and residential use made of the
property.
       {¶ 27} The BTA erred as a matter of law by failing to require the
discharge of that burden of proof. Quite simply, any family can create a corporate
entity and title the family residence to the corporation. But to entitle the property
to exemption, an applicant must negate the inference that personal residence
constitutes the primary use. The record here shows ownership by a 501(c)(3)
entity, but that entity is controlled by the Hartensteins.           Moreover, the
accommodation of guests at no cost in a spacious residence cannot by itself turn
the residence into a charity.




                                         9
                             SUPREME COURT OF OHIO




        {¶ 28} The record in this case falls well short of supporting the exemption
claim because it does not quantify the hospitality extended by the Hartensteins.
The record is silent on certain salient points.       While there is evidence that
Innkeeper advertised for guests in accordance with its spiritual mission, we are
not informed how many answered that call, how many were accommodated, and
how many were turned away. This kind of documentation would be expected of
Innkeeper as part of its ordinary diligence as a 501(c)(3) entity and an alleged
charitable institution; the documentation could then have been submitted in
support of its claim for exemption in this case. Its absence means that Innkeeper
cannot discharge its burden of proof.
                                   CONCLUSION
        {¶ 29} For the foregoing reasons, we reverse the decision of the BTA.
                                                                  Decision reversed.
        O’CONNOR, C.J., and PFEIFER, LANZINGER, and O’NEILL, JJ., concur.
        O’DONNELL, J., dissents in an opinion that KENNEDY and FRENCH, JJ.,
join.
                               _________________
        O’DONNELL, J., dissenting.
        {¶ 30} Respectfully, I dissent.
        {¶ 31} R.C. 5709.12(B) states that “[r]eal and tangible personal property
belonging to institutions that is used exclusively for charitable purposes shall be
exempt from taxation * * *.” And pursuant to R.C. 5709.121(A)(2), real property
belonging to a charitable institution “shall be considered as used exclusively for
charitable or public purposes by such institution” if it is “made available under the
direction or control of such institution * * * for use in furtherance of or incidental
to its charitable, educational, or public purposes and not with the view to profit.”
We have stated that “[s]o long as an institution is operated without any view to




                                          10
                                January Term, 2016




profit and exclusively for a charitable purpose, it is a charitable institution.” Herb
Soc. of Am., Inc. v. Tracy, 71 Ohio St.3d 374, 376, 643 N.E.2d 1132 (1994).
       {¶ 32} Although the General Assembly has not defined what activities
constitute “charitable purposes” for purposes of R.C. Chapter 5709, we explained
in Bethesda Healthcare, Inc. v. Wilkins, 101 Ohio St.3d 420, 2004-Ohio-1749,
806 N.E.2d 142:


               “In the absence of a legislative definition, ‘charity,’ in the
       legal sense, is the attempt in good faith, spiritually, physically,
       intellectually, socially and economically to advance and benefit
       mankind in general, or those in need of advancement and benefit in
       particular, without regard to their ability to supply that need from
       other sources, and without hope or expectation, if not with positive
       abnegation, of gain or profit by the donor or by the instrumentality
       of the charity.”


(Emphasis added.) Id. at ¶ 32, quoting Planned Parenthood Assn. v. Tax Commr.,
5 Ohio St.2d 117, 214 N.E.2d 222 (1966), paragraph one of the syllabus.
       {¶ 33} Applying that definition, we have recognized that advancing
religion is a charitable purpose. See, e.g., True Christianity Evangelism v. Zaino,
91 Ohio St.3d 117, 120, 742 N.E.2d 638 (2001); Am. Commt. of Rabbinical
College of Telshe, Inc., v. Bd. of Tax Appeals, 156 Ohio St. 376, 378, 102 N.E.2d
589 (1951).
       {¶ 34} In Rabbinical College, we considered the predecessor statute to
R.C. 5709.12(B)—Section 5353 of the General Code—which stated: “Real and
tangible personal property belonging to institutions used exclusively for charitable
purposes, shall be exempt from taxation.”         121 Ohio Laws 241, 242.         We
observed that the statute reflected a change from the prior law, because “the




                                         11
                             SUPREME COURT OF OHIO




words ‘institutions of purely public charity’ have now been replaced by the words
‘institutions used exclusively for charitable purposes,’ ” and we concluded that “it
is no longer necessary that an institution used exclusively for the lawful
advancement of education and of religion be open generally to the public in order
to have tax exemption of property owned and used by it exclusively for lawful
educational or religious purposes.” (Emphasis added.) Id.
       {¶ 35} We therefore rejected the proposition that the charitable use
exemption did not apply to an institution’s property that was “ ‘operated for those
of the Jewish faith and race’ and was not ‘open to the public.’ ” Id. at 378. Thus,
Ohio does not mandate that property be open generally to the public in order to be
exempt from taxation. This has been the law in Ohio for more than six decades.
       {¶ 36} More recently, in Herb Soc. of Am., 71 Ohio St.3d at 376, 643
N.E.2d 1132, we rejected the view that an organization is not charitable “because
it restricts membership to selected individuals.” Following Rabbinical College,
we explained that a charitable institution “need not be open generally to the public
if it promotes the lawful advancement of the charitable purpose.” Id.
       {¶ 37} Notwithstanding long-standing precedent from this court, the
majority concludes that the core activities of Innkeeper Ministries, Inc., are not
charitable because its property is not open to the public generally. This analysis,
however, is not only inconsistent with the General Assembly’s decision to
broaden the charitable use exemption beyond “public charities” to include both
“charitable institutions” and property “used exclusively for charitable purposes,”
but also is contrary to the distinction we previously acknowledged in Herb Soc. of
Am. and Rabbinical College.       The change in statutory language reflects the
legislative intent that a charitable organization is not required to be open to the
public in general but rather can seek to benefit discrete groups in particular based
on a specific need for charity.




                                        12
                                January Term, 2016




       {¶ 38} In fact, making charity available only to a specific group may be
essential to the core activity of the charitable institution, or it may be unavoidable
due to the charity’s lack of resources. A decision by the Girl Scouts of America,
for example, to restrict membership to females would not lead us to question its
status as a charitable institution, see Girl Scouts-Great Trail Council v. Levin, 113
Ohio St.3d 24, 2007-Ohio-972, 862 N.E.2d 493, ¶ 20; nor does a food pantry such
as the Mid-Ohio Foodbank lose its charitable exemption because it limits its
charity to the poor and needy rather than opening its doors to the general public.
       {¶ 39} The majority reasons that residential use of property is necessarily
a private, noncharitable use. This view, however, overlooks the fact that there are
residential uses of property that are unquestionably charitable. For instance,
homeless shelters and battered women shelters such as those run by the Friends of
the Homeless in Columbus and the City Mission in Cleveland have received
charitable exemptions notwithstanding the residential use of the property.
Offering an individual a safe place to stay is an attempt to advance and benefit
those in need of advancement and benefit and therefore is charity as defined by
our decision in Bethesda Healthcare, 101 Ohio St.3d 420, 2004-Ohio-1749, 806
N.E.2d 142, at ¶ 32.
       {¶ 40} Thus, reliance on cases involving subsidized low-cost housing or
residences provided for the personal use of employees and their families is
misplaced. Those cases are factually distinguishable, because those receiving a
subsidy or housing as a benefit of employment are in effect paying a share of the
rent for the private use of the property, and the exclusive use of the property is not
charitable. See W. Res. Academy v. Bd. of Tax Appeals, 153 Ohio St. 133, 136, 91
N.E.2d 497 (1950) (explaining that property used for residences of faculty of a
nonprofit academy was not tax exempt, because the housing was, in effect,
provided in lieu of salary). But here, the property is used exclusively for a




                                         13
                              SUPREME COURT OF OHIO




charitable purpose, and its incidental use as a residence for its caretakers serves to
facilitate that purpose.
        {¶ 41} The accommodations for Innkeeper Ministries’ guests are provided
at no cost—thereby meeting one part of the test for charity that we articulated in
Bethesda Healthcare, i.e., that the service is provided without expectation of gain
or profit, and the residential use of the property is charitable.
        {¶ 42} Moreover, in this case, the BTA noted that the charitable mission
of Innkeeper Ministries is to advance religion by offering a place of “Sabbath
rest” for the physical and spiritual renewal of church leaders through personal
worship, prayer, meditation, reflection, and Bible study at no cost to guests and
participants. BTA No. 2010-2803, 2014 Ohio Tax LEXIS 1305, 4-5 (Feb. 28,
2014). The BTA credited Innkeeper Ministries’ belief that “ ‘Sabbath rest is most
effectively achieved in a reclusive atmosphere such as that provided by
Innkeeper’s 71 acres located in a remote rural setting.’ ”          Id. at 5, quoting
Innkeeper Ministries’ brief at 2. Sabbath rest cannot be achieved by opening the
property to the general public or to those not in need of Sabbath rest. Thus, the
fact that Innkeeper Ministries offers its facilities to church leaders is not indicative
of a private use, but rather advances its goal of providing “ ‘services that
encourage, support and edify Christian leadership, weary and, at times, wounded
from their godly pursuits.’ ” Id. at 4-5, quoting the statutory transcript at 73.
        {¶ 43} The majority confuses the core use of the property—the mission to
advance religion by offering a place for Sabbath rest—with its incidental use as a
residence for the caretakers, the Hartensteins. Providing a place for Sabbath rest
necessarily includes giving the guests a place to rest and sleep, which is the
primary use of the property, and therefore, having the Hartensteins reside on site
serves Innkeeper’s core purposes, because they cook meals for all guests, provide
counseling, maintain the premises, and donate their time and energy to ensure that
residents can achieve physical and spiritual renewal. More than 11,000 people




                                           14
                                 January Term, 2016




have come to Innkeeper Ministries seeking Sabbath rest; the mission is a 24 hour
a day, seven day a week ministry to ensure the opportunity for rest and spiritual
renewal of the guests, and the Hartensteins’ residence on the premises is
incidental to that mission.
        {¶ 44} In my view, this issue is enlightened by Cincinnati Nature Ctr.
Assn. v. Bd. of Tax Appeals, 48 Ohio St.2d 122, 357 N.E.2d 381 (1976), where we
held that providing naturalists housing on property used as a nature center was
incidental to the institution’s overriding charitable purposes and therefore did not
preclude the property from being tax exempt. In that case, employees lived on
site to prevent damage to the property. But while allowing employees to live at a
nature center that is closed to visitors after hours is only incidental to its charitable
purpose of providing educational and nature experiences when it is open, the
Hartensteins’ residence on the property is not only incidental to Innkeeper’s core
purpose of advancing religion but also is essential to its purpose, because they
tend to the needs of those seeking Sabbath rest, and unlike the nature center,
Innkeeper is never closed.
        {¶ 45} Our caselaw has recognized that property is “used exclusively” for
charitable purposes if the “primary use” is charitable. Girl Scouts-Great Trail
Council, 113 Ohio St.3d 24, 2007-Ohio-972, 862 N.E.2d 493, at ¶ 19, citing True
Christianity Evangelism, 91 Ohio St.3d at 120, 742 N.E.2d 638, and Moraine Hts.
Baptist Church v. Kinney, 12 Ohio St.3d 134, 135, 465 N.E.2d 1281 (1984). And
whether property is used for charitable purposes is a question of fact to be decided
by the BTA, not this court. See Rural Health Collaborative of S. Ohio, Inc. v.
Testa, 145 Ohio St.3d 430, 2016-Ohio-508, 50 N.E.3d 486, ¶ 24.
        {¶ 46} Although the majority recognizes that the property includes guest
rooms, a chapel, and a prayer walk and does not dispute that the property serves
spiritual objectives without a view to profit, it nonetheless substitutes its judgment
for the BTA, disregarding the BTA’s factual finding that “providing a place of




                                           15
                             SUPREME COURT OF OHIO




respite for the physical and spiritual renewal of Christian leaders * * * fall[s]
within the definition of charity * * *.” 2014 Ohio Tax LEXIS 1305, 6-7. And in
doing so, it also trivializes the value of Sabbath rest by suggesting that the
property is in essence a place of recreation because recreational facilities are
available for guests. In fact, Innkeeper Ministries provides not only recreation,
but also spiritual opportunities for its guests.      This is in keeping with our
explanation of charity in Bethesda Healthcare, 101 Ohio St.3d 420, 2004-Ohio-
1749, 806 N.E.2d 142, at ¶ 32—the attempt in good faith spiritually and
physically to advance and benefit those in need of advancement and benefit
without expectation of gain or profit. By providing both religious and athletic
facilities for its guests, Innkeeper Ministries meets our definition of charity.
       {¶ 47} Pursuant to R.C. 5717.04, our role in reviewing the BTA is to
determine whether its decisions are reasonable and lawful. As we acknowledged
in HealthSouth Corp. v. Levin, 121 Ohio St.3d 282, 2009-Ohio-584, 903 N.E.2d
1179, “we do not sit as a ‘super BTA,’ ” id. at ¶ 35, but rather “we defer to the
BTA’s factual findings if they are supported by reliable and probative evidence in
the record,” Warrensville Hts. City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd.
of Revision, 145 Ohio St.3d 115, 2016-Ohio-78, 47 N.E.3d 144, ¶ 16. The BTA
in this case found that Innkeeper Ministries is a charitable institution and that its
property is primarily used for charitable purposes and, therefore, it is exempt from
real property taxes. In my view, reliable and probative evidence in the record
supports these findings.     Accordingly, I dissent and would affirm the sound
decision of the BTA.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                                _________________
       Jay C. Bennett, for appellee.
       Michael DeWine, Attorney General, and David D. Ebersole and Barton
Hubbard, Assistant Attorneys General, for appellant.




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