[Cite as Eastbrook Farms, Inc. v. Warren Cty. Bd. of Revision, 2018-Ohio-2886.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




EASTBROOK FARMS, INC.,                                  :

        Plaintiff-Appellant,                            :          CASE NO. CA2017-12-171

                                                        :                   OPINION
    - vs -                                                                   7/23/2018
                                                        :

WARREN COUNTY BOARD OF                                  :
REVISION, et al.,
                                                        :
        Defendants-Appellees.
                                                        :



        ADMINISTRATIVE APPEAL FROM THE OHIO BOARD OF TAX APPEALS
                            Case No. 2016-1790



Coolidge Wall Co., L.P.A., Jonas J. Gruenberg, W. Chip Herin III, 33 West First Street, Suite
200, Dayton, Ohio 45402, for appellant

David P. Fornshell, Warren County Prosecuting Attorney, Christopher A. Watkins, 520
Justice Drive, Lebanon, Ohio 45036, for appellees, Warren County Board of Revision and
Warren County Auditor

David C. DiMuzio, Matthew C. DiMuzio, 810 Sycamore Street, Sixth Floor, Cincinnati, Ohio
45202, for appellee, Springboro Community City Schools Board of Education



        PIPER, J.

        {¶ 1} Plaintiff-appellant, Eastbrook Farms, Inc. appeals from the decision of the

Board of Tax Appeals concerning the valuation of Eastbrook's real property. For the reasons

discussed below, this court affirms the board's decision.
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       {¶ 2} Eastbrook owns approximately 83 acres of vacant land located on State Route

73 in Springboro, Ohio. Twenty acres are zoned residential with the remaining 63 acres

zoned "O" for office development. For the 2015 tax year, the Warren County Auditor valued

the property at $3,191,620. Eastbrook filed a complaint with the Warren County Board of

Revision (BOR) and asked for a reduction in value. Springboro Community City Schools

Board of Education (Springboro), filed a counter-complaint asking the BOR to maintain the

appraised value.

       {¶ 3} At the BOR hearing, Eastbrook presented the report and testimony of its

appraiser, Stephen Weis. Weis valued the property at $1,792,000. Weis opined that the

residential land had a value of $40,000 per acre. Weis determined that 13.5 acres of the

office-zoned acreage was in a flood zone and was unusable and he assigned this portion of

the property no value. Weis valued the remaining office land at $20,000 per acre, which he

based on a comparison to other property sales.

       {¶ 4} The Auditor's appraiser testified at the hearing and was critical of various

aspects of Weis' appraisal. The Auditor's appraiser also testified about the methodology

used to derive the Auditor's appraised value. The BOR found that the Auditor's valuation was

justified and denied Eastbrook's complaint. Eastbrook then appealed to the Board of Tax

Appeals (BTA).

       {¶ 5} At the BTA hearing, Springboro presented the report and testimony of its

appraiser, James Burt. Burt valued the property at $3,325,000. Burt agreed that the

residential portion of the land should be valued at $40,000 per acre. However, Burt valued

the office portion at $42,000 per acre, including the acreage located in the flood zone. Burt

opined that the flood zone was useable as "green space, storm water management,

amenities, etc."

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       {¶ 6} Eastbrook's counsel cross-examined Burt concerning a portion of his report that

indicated that the office-zoned acreage could be improved with up to 75,000 square feet of

"supporting retail." The issue of whether retail was a permitted use under the applicable

zoning and whether Burt appraised the property for retail development became a point of

contention during the BTA hearing. Eastbrook repeatedly sought to establish, through

testimony and argument, that the "O" office zoning for the property did not permit retail

development.

       {¶ 7} Eastbrook called Weis for rebuttal testimony. Weis explained that the land use

plan for the area in which the property was located envisioned 75,000 square feet of retail

development. In other words, the property was located in an area in which the city planners

of Springboro anticipated developing some retail, but Eastbrook could not develop retail

without a zoning change. Other evidence adduced at the hearing indicated that a zoning

change was unlikely given Eastbrook's earlier unsuccessful attempts to have the property re-

zoned by the city of Springboro to permit retail development. See Eastbrook Farms, Inc. v.

City of Springboro, Warren App. No. CA2003-08-080, 2004-Ohio-1377.

       {¶ 8} Springboro called Burt for rebuttal testimony. Burt testified that he did not value

the property based on retail development and that his sales comparisons consisted of office

and or institutional-type developments.

       {¶ 9} After the evidentiary portion of the hearing, Eastbrook sought leave to submit a

document containing a table of permitted uses for the different zoning districts in Springboro.

This chart is part of the Springboro zoning code.1 The BTA attorney examiner indicated that

the parties could submit additional evidence if both parties agreed.

       {¶ 10} The BTA issued a decision finding Burt's appraisal more competent and


1. City of Springboro Codified Ordinance 1263.04
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probative than Weis' appraisal and found that the property was worth $3,325,000. With

respect to the chart Eastbrook sought to submit, the BTA concluded that the parties had not

agreed on submitting additional evidence and therefore it would not consider the chart.

Regarding the zoning issue, the BTA found that while there had been much discussion during

the hearing as to whether retail development was permitted, the issue was unnecessary for

consideration because "neither appraisers nor any of the parties advocated for retail use" of

the property. In this appeal, Eastbrook raises three assignments of error, which we address

out of order for ease of analysis.

       {¶ 11} Assignment of Error No. 2:

       {¶ 12} THE BTA ACTED UNREASONABLY AND UNLAWFULLY IN CONCLUDING

THAT THE BOE'S APPRAISAL WAS MORE PROBATIVE THAN EASTBROOK'S

APPRAISAL.

       {¶ 13} Eastbrook argues that the BTA acted unreasonably in finding Burt's appraisal

more probative of the value of the property than Weis' appraisal because Burt appraised the

property as if it was zoned for up to 75,000 square feet of retail development. Springboro

contends that Burt did not value the property for retail development but properly valued it for

office development.

       {¶ 14} The standard of review of a BTA decision is whether the decision was

reasonable and lawful. R.C. 5717.04; Herr v. Tracy, 12th Dist. Butler No. CA96-10-212, 1997

Ohio App. LEXIS 1697 (Apr. 28, 1997). Questions of law are reviewed de novo. Dublin City

Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 193, 2013-Ohio-4543, ¶

13. The BTA's valuation of real property – its determination of fair market value – is a

question of fact. Strongsville Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 112 Ohio St.3d

309, 2007-Ohio-6, ¶ 22. The BTA's factual decisions are upheld "if the record contains

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reliable and probative evidence supporting the BTA's determination." Dublin at ¶ 13, citing

Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, ¶ 14.

       {¶ 15} The standard for reviewing the BTA's determination of the credibility of

witnesses and the weight to be given their testimony is abuse of discretion. NWD 300

Spring, L.L.C. v. Franklin Cty. Bd. of Revision, 151 Ohio St. 3d 193, 197, 2017-Ohio-7579, ¶

14. To find an abuse of discretion would require us to find an arbitrary or unconscionable

attitude below. Id., citing Renacci v. Testa, 148 Ohio St.3d 470, 2016-Ohio-3394, ¶ 32.

       {¶ 16} Eastbrook cites an Ohio Supreme Court case in which the court held that the

BTA acted unreasonably in relying on an appraiser who valued a property based on for its

highest and best use – office development – even though it was zoned residential and

appeared unlikely to be re-zoned to office. Porter v. Cuyahoga Cty. Bd. of Revision, 50 Ohio

St.2d 307 (1977). The court held that "[i]n determining the value of property for tax

assessment purposes, the taxing authority may not consider an appraisal of property in which

the appraiser, believing the property to be more valuable than its permitted uses under

current zoning laws indicate, values the property as if it were already zoned for its most

profitable use." Id. at syllabus.

       {¶ 17} Burt's report summarized his conclusions concerning the highest and best uses

of the property. In so doing, Burt examined the "legally permissible," "financially feasible,"

and "maximally productive," uses of the property. With respect to the legally permissible

uses, Burt noted that "[u]nder the land use plan the O-Office portion of the site can be

developed with up to 75,000 square feet of supporting retail uses."

       {¶ 18} Burt further opined that the financially feasible use of the property was "to hold

for development of one larger office/institutional use or subdivide the site into smaller tracks

for several larger office or institutional users to reduce carrying costs of infrastructure

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improvements. Supporting retail would be constructed at the entrances along W Central

Avenue and Clearcreek-Franklin Road."            Finally, Burt concluded that the maximally

productive use of the property was "immediate development of the [residential] zoned sites

with a single-family residential use and larger office/medical office or institutional uses [at the

office] site."

        {¶ 19} The mention of supporting retail in Burt's report became a focal point of

Eastbrook's hearing strategy before the BTA. During his testimony Burt appeared confused

as to whether retail development was permitted by the zoning or merely envisioned by the

area's land use plan. However, in his rebuttal testimony, Burt stated that he did not appraise

the property for retail development. In this regard, Burt testified that the comparable

properties he used to determine his appraised value were those where the highest and best

use of the properties was office and institutional developments and not retail.

        {¶ 20} This court finds that the BTA did not act unreasonably in relying on Burt's

appraisal. Burt's report noted that the land use plan for the area included retail development,

a fact that Weis agreed with and expanded upon during his testimony. Both agreed that the

land use plan called for up to 75,000 square feet of retail development in the area. Burt may

have misunderstood whether retail development was currently permitted at the property.

However, any confusion on this issue is irrelevant because there is no credible evidence that

any alleged misunderstanding affected Burt's appraisal. The four properties Burt used to

form an opinion as to the appraised value did not have retail development and there is no

indication that Burt made an upward adjustment to the appraisal figure because of supporting

retail. The report stated that no adjustments were necessary for zoning. Moreover, Burt's

valuation of the property was on the lower range of the four comparable sales.

        {¶ 21} This case is not like Porter because Burt properly based his valuation on

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comparisons to other similarly zoned office or institutional developments. This is not a case

where Burt erroneously speculated that the city had or would approve a retail zoning change

and then used retail development sales comparisons to provide Springboro with an inflated

valuation. This court further notes that Burt's appraisal was substantially the same as the

Auditor's earlier appraisal. Accordingly, this court overrules Eastbrook's second assignment

of error.

       {¶ 22} Assignment of Error No. 3:

       {¶ 23} THE DECISION OF THE BTA IS UNREASONABLE AND UNLAWFUL

BECAUSE IT IS CONTRARY TO THE WEIGHT OF EVIDENCE IN THE RECORD.

       {¶ 24} Eastbrook argues that the decision to value the property based on Burt's

appraisal was against the weight of the evidence.       Eastbrook contends that the sale

comparisons chosen by Burt were either unique transactions by institutional purchasers or

special-use properties that were not comparable to the anticipated use of Eastbrook's

property. Again, this court defers to the BTA on its determination of factual issues and

choice of appraisal if supported by the record. Strongsville, 112 Ohio St.3d 309, 2007-Ohio-

6, at ¶ 22; Dublin, 139 Ohio St.3d 193, 2013-Ohio-4543, at ¶ 13.

       {¶ 25} This court does not find that the greater weight of the evidence supported the

conclusion that Weis' appraisal was more probative of value than Burt's appraisal. The BTA

reviewed, in detail, the comparable sales chosen by Burt and Weiss. Weis' appraisal

primarily relied on sales of properties zoned for industrial use, which were significantly

smaller than Eastbrook's property. However, Burt's comparable sales could be developed for

office use and were similar in size. Finally, the BTA noted the most obvious concern with

Weis' appraisal, which was that he attributed no value to 13.5 acres of land. In addition,

Weis also made negative adjustments to four comparable sales to account for the

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topography issues at Eastbrook's property. Substantial credible evidence supported the

BTA's decision to find Burt's appraisal more probative and reliable than Weis' appraisal. This

court overrules Eastbrook's third assignment of error.

       {¶ 26} Assignment of Error No. 1:

       {¶ 27} THE BTA ERRED BY DECIDING NOT TO CONSIDER A CHART OF

PERMITTED AND PROHIBITED USES CONTAINED IN A ZONING LAW ON THE BASIS

THAT THE CHART CONSTITUTED THE SUBMISSION OF ADDITIONAL EVIDENCE NOT

ALREADY IN THE RECORD.

       {¶ 28} Eastbrook argues that the BTA erred in declining to consider the zoning chart it

submitted following the hearing. Eastbrook contends that the BTA erroneously considered

the chart untimely evidence when it was relevant law. Eastbrook further argues that the error

caused it prejudice because the chart demonstrated that the property was not zoned for retail

development.

       {¶ 29} After the BTA hearing, Eastbrook offered to provide the board with a chart of

permitted uses for various zoning designations in Springboro. The BTA's attorney examiner

stated that because the hearing ended the record was closed and therefore the parties would

have to agree to supplement the record. However, the parties did not agree.

       {¶ 30} Eastbrook and Springboro then filed post-hearing briefs. Each party appended

documents to their briefs that had not been submitted into evidence at the hearing, with

Eastbrook submitting the zoning chart and Springboro submitting documents related to the

Springboro land use plan and the Springboro municipal code.

       {¶ 31} In its decision, the BTA noted that these documents had not been provided at

the hearing and neither party had agreed at the hearing to submit additional evidence.

Accordingly, the BTA declined to consider any of the post-hearing documents submitted.

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       {¶ 32} Based on the BTA's determination that neither appraiser appraised the property

for retail development and the lack of evidence that Burt's appraisal was affected by the issue

of limited retail use, this issue is moot and unnecessary to address. App.R. 12(A)(1)(c). This

court overrules Eastbrook's first assignment of error.

       {¶ 33} Judgment affirmed.

       S. POWELL, P.J., and M. POWELL, J., concur.




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