[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Geneva Area Recreational, Educational & Athletic Trust v. Testa, Slip Opinion No. 2016-Ohio-
2695.]




                                        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-2695
      GENEVA AREA RECREATIONAL, EDUCATIONAL & ATHLETIC TRUST,
                 APPELLANT, v. TESTA, TAX COMMR., APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Geneva Area Recreational, Educational & Athletic Trust v.
                      Testa, Slip Opinion No. 2016-Ohio-2695.]
Taxation—Real property—Charitable-use exemption—R.C. 5709.12(B) and
        5709.121—Property owned by for-profit entity and used for leasing is not
        exempt—Prospective-use doctrine does not apply.
    (No. 2014-1778—Submitted February 9, 2016—Decided April 27, 2016.)
               APPEAL from the Board of Tax Appeals, No. 2012-841.
                             _______________________
        PFEIFER, J.
        {¶ 1} In 2009, appellant, the Geneva Area Recreational, Educational and
Athletic Trust, a nonprofit 501(c)(3) corporation d.b.a. Spire Institute (“Spire”),
entered into an agreement to lease more than 160 acres of land in Geneva, Ohio,
from Roni Lee, L.L.C. (“Roni Lee”), a for-profit company. By 2012, Spire had
                            SUPREME COURT OF OHIO




constructed Olympic-grade athletic facilities and related improvements on about
one fourth of the property.    In tax year 2010, Spire sought a real-estate-tax
exemption for the entire property under the charitable-use exemption, citing R.C.
5709.12 and 5709.121. The commissioner denied the request, and the Board of Tax
Appeals (“BTA”) affirmed.
       {¶ 2} Spire appealed, arguing that the exemption applies because the
property belongs to it (not Roni Lee) and because Spire uses the property
exclusively for charitable purposes. We reject Spire’s arguments and affirm the
BTA’s decision.
                                      FACTS
                         The property and its ownership
       {¶ 3} Roni Lee owns the subject property, a 163.09-acre tract in Geneva.
On March 31, 2009, Roni Lee leased the property to Spire for a renewable term of
99 years. Under the lease, Spire agreed to pay Roni Lee $1 annually and assumed
responsibility for all maintenance and improvements. The record reveals a close
connection between Roni Lee and Spire. Spire’s chief executive officer, Ron
Clutter, is the primary owner and managing member of Roni Lee. Clutter owns a
95 percent interest in Roni Lee; his wife owns the remaining interest.
       {¶ 4} Consistent with the lease terms, Spire has constructed Olympic-grade
athletic facilities and ancillary improvements, collectively known as the Spire
Complex, on the property. The facilities include the following:
          The Fields and Courts Building, which houses a full-size synthetic turf
           field and a large multipurpose court area. All-Star Physical Therapy and
           Wellness, a for-profit company, pays $4,473 monthly to lease 4,000
           square feet in the building and provides Spire with trainers.
          The Aquatics Center, which includes two pools (recreational and
           Olympic-sized), diving areas, a restaurant, and the Michael Johnson




                                         2
                                 January Term, 2016




             Performance Training Center (a training and fitness center). Spire pays
             the center $150,000 annually to operate on the premises.
            The Indoor Track and Field Building, which accommodates football,
             baseball, track-and-field events, and a 25,000-square-foot banquet area.
             It also houses Spire Fit, a fitness center that offers public memberships.
            A nine-acre outdoor stadium, which accommodates football, soccer, and
             track-and-field events. The stadium seats 10,000 and includes ten
             enclosed luxury suites.
       {¶ 5} Spire has developed only about 45 acres of the property so far, but it
has plans for future development. It has contemplated, among other things, a tennis
complex, broadcast facilities, a spa and wellness center, a hotel and conference
center, freestanding restaurants, commercial development, a retail village, and a
residential sports academy. In the meantime, Spire partners with a private school
near Mentor to operate “Spire Academy,” a residential program that allows students
to train at Spire while they live and study at Andrews Osborne Academy.
                              Application for exemption
       {¶ 6} In tax year 2009, the county auditor valued the subject property at
$2,660,220. Spire filed an application requesting exemption for tax year 2010
under R.C. 5709.12(B) and 5709.121.
       {¶ 7} Before the tax commissioner, Spire presented evidence that the Spire
Complex serves unmet community needs. For example, the local high school uses
Spire’s fields for a cost comparable to what it would pay to maintain its own fields.
Spire has also agreed to let the school retain the amount of gate revenues from
football games that it would have earned at its own facilities; Spire takes the
remainder.
       {¶ 8} Spire also asserted that its services are available regardless of ability
to pay. In its exemption application, Spire explained that it would set fees at an




                                           3
                             SUPREME COURT OF OHIO




affordable rate for local residents and noted that fees “may be waived in special
circumstances, especially for underprivileged youth.”
       {¶ 9} As to the undeveloped property, Spire’s application stated, “In the
future, it is possible that any excess real estate in the Complex may be sold to
businesses for commercial development.”
       {¶ 10} On January 23, 2012, the tax commissioner denied exemption. The
commissioner found that Roni Lee uses the property for “land development and
commercial leasing.”     The commissioner found “no evidence that [Spire] is
engaged in charitable activity in any substantial way, even though it is a non-profit
entity.” Ultimately, the commissioner concluded,


       the owner’s primary use of the subject property is leasing it for
       development as an elite sports training facility to develop Olympic
       and professional caliber athletes, together with the appreciation and
       development of the surrounding property controlled by the owner
       and not subject to the lease.


       {¶ 11} The commissioner also denied exemption of the undeveloped
property under the prospective-use doctrine—which can exempt real property
acquired with the intention of devoting it to a use that would exempt it from taxation
but that has not yet begun—explaining that Spire’s own exemption application
stated that this land may be sold to developers for commercial use.
                                  BTA proceedings
       {¶ 12} Spire appealed to the BTA, arguing that it is a charitable institution
and that it uses the subject property exclusively for charitable purposes. In addition,
Spire argued that the property “belongs to” it—rather than to Roni Lee—for
purposes of R.C. 5709.12(B) and 5709.121.




                                          4
                                  January Term, 2016




        {¶ 13} The BTA held a hearing on July 29, 2013. Spire presented extensive
testimony from Jeffrey Orloff, Spire’s chief operating officer, about Spire’s
operations and charitable activities. Orloff testified that Ron Clutter created Spire
to give the local community access to athletic facilities that did not otherwise exist
in the region. Spire’s mission is to “unlock the full potential of the human spirit
through athletics, academics, and service.” According to Orloff, the goal of Spire
is “not to make money but to provide * * * services.” He testified that Spire
provides many services for free or at a reduced rate. Orloff emphasized that the
policy is well known to both employees and patrons.
        {¶ 14} In support of this testimony, Spire introduced a copy of a board
resolution indicating that it “will offer its services at its own expense, or on a sliding
scale of cost, based on any individual’s or organization’s ability to pay” and will
“make a special effort to offer [its] services, programs and facilities” to individuals
in need of that assistance. Orloff explained that this was Spire’s intent “from day
one,” although he was uncertain when the board adopted this policy or when similar
language appeared on Spire’s website. Orloff conceded that Spire does not have a
published sliding fee scale or any written policy for reduced rates, even for tuition
at Spire Academy. Instead, Spire awards discounts on a case-by-case basis, relying
on the “honor system.”
        {¶ 15} As to the undeveloped portions of the property, Orloff testified that
Spire has yet to make final plans or secure funds for future projects. He indicated
that Spire intends to build dormitories and possibly other sporting complexes.
Orloff asserted that any future uses of the property would be consistent with Spire’s
mission, but on cross-examination he conceded that “it is possible any excess real
estate in the Complex may be sold to businesses for commercial development.” In
fact, one projection for Spire in “2011 and beyond” specifically mentions a
“Commercial Development/Retail Village.” Ultimately, Orloff stated that Spire
hopes to keep a high percentage of the property, perhaps 80 percent.




                                            5
                             SUPREME COURT OF OHIO




       {¶ 16} At the hearing, counsel for the tax commissioner inquired about
Spire’s 2010 tax returns. Although the returns reported $15,243,518 in net income,
Orloff insisted that Spire “[broke]-even at best.” He explained that the tax figures
did not account for capital expenditures and noted that Ron Clutter donated $19
million to Spire in 2010.
       {¶ 17} On September 16, 2014, the BTA issued a decision affirming the
denial of exemption. The BTA found that Roni Lee did not use the property for
charitable purposes; the only activity there was evidence that the company
undertook was leasing the property to Spire. The BTA also found that Spire does
not use the property solely for charitable purposes. It described Spire’s “main goal”
as “creat[ing] an elite athletic training facility” for professional and Olympic-
caliber athletes. The BTA concluded that most Spire patrons pay for services; it
saw no concrete evidence that Spire offers many services for a reduced rate, and it
was unconvinced that Spire has a formal policy to provide services without regard
to ability to pay. Finally, the BTA held that Spire failed to satisfy its burden with
respect to the unused portions of the property under the prospective-use doctrine.
                                     ANALYSIS
       {¶ 18} On appeal, Spire asserts six propositions of law:


               PROPOSITION OF LAW NO. 1: Real property a charitable
       institution leases pursuant to a 99-year renewable ground lease
       agreement “belongs to” that charitable institution for purposes of
       applying R.C. 5709.12 and R.C. 5709.121.
               PROPOSITION OF LAW NO. 2: An institution operated
       without any view to profit and exclusively for charitable purposes is
       a charitable institution.




                                         6
                               January Term, 2016




              PROPOSITION OF LAW NO. 3: Real property that is used
       exclusively for charitable purposes is exempt from taxation under
       R.C. 5709.12(B).
              PROPOSITION OF LAW NO. 4: A charitable institution’s
       real property is exempt from taxation under R.C. 5709.121(A)(2) if
       it is made available under the direction or control of the charitable
       institution for use in furtherance of or incidental to the charitable
       institution’s charitable, educational or public purposes and not with
       a view to profit.
              PROPOSITION OF LAW NO. 5: R.C. 5709.12 and R.C.
       5709.121 do not preclude the collection of fees for services nor do
       they require a certain percentage of free or discounted services.
              PROPOSITION OF LAW NO. 6: Engaging in extensive
       planning to develop real property for activities consistent with a
       charitable institution’s charitable purposes satisfies this court’s
       “prospective use” standard.


                               Standard of review
       {¶ 19} We review the decisions of the BTA to determine whether they are
reasonable and lawful. R.C. 5717.04. We will defer to the BTA’s factual findings
as long as they are supported by reliable and probative evidence in the record.
Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14. By
contrast, the BTA’s legal determinations are subject to de novo review. Crown
Communication, Inc. v. Testa, 136 Ohio St.3d 209, 2013-Ohio-3126, 992 N.E.2d
1135, ¶ 16.
       {¶ 20} Tax exemption statutes are strictly construed under Ohio law. See
Cincinnati Community Kollel v. Testa, 135 Ohio St.3d 219, 2013-Ohio-396, 985
N.E.2d 1236, ¶ 17. Accordingly, Spire bore “the burden of proof * * * to show that




                                         7
                             SUPREME COURT OF OHIO




the property is entitled to exemption.” R.C. 5715.271; see also Anderson/Maltbie
Partnership v. Levin, 127 Ohio St.3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16
(“the onus is on the taxpayer to show that the language of the statute ‘clearly
express[es] the exemption’ in relation to the facts of the claim” [brackets sic]),
quoting Ares, Inc. v. Limbach, 51 Ohio St.3d 102, 104, 554 N.E.2d 1310 (1990).
         The charitable-use exemption: R.C. 5709.12(B) and 5709.121
       {¶ 21} The outcome of Spire’s appeal turns on the application of two
statutory provisions—R.C. 5709.12(B) and 5709.121—that set forth aspects of
Ohio’s charitable-use exemption.
       {¶ 22} R.C. 5709.12(B) states that “[r]eal * * * property belonging to
institutions that is used exclusively for charitable purposes shall be exempt from
taxation * * *.” For purposes of this section, “institutions” includes both charitable
and noncharitable organizations. First Baptist Church of Milford, Inc. v. Wilkins,
110 Ohio St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 15. If a property belongs
to a charitable institution, however, it is also necessary to look to R.C. 5709.121.
This provision “does not itself grant any exemption.” Id. at ¶ 16. Instead, it
“constitutes a refinement of R.C. 5709.12(B)” that broadens the meaning of “used
exclusively for charitable purposes” for property that belongs to a charitable
institution. See Dialysis Clinic, Inc. v. Levin, 127 Ohio St.3d 215, 2010-Ohio-5071,
938 N.E.2d 329, ¶ 22, 24.
       {¶ 23} R.C. 5709.121(A) states:


               Real property and tangible personal property belonging to a
       charitable or educational institution * * * shall be considered as used
       exclusively for charitable or public purposes by such institution * *
       * if it meets one of the following requirements:
               (1) It is used by such institution * * * under a lease, sublease,
       or other contractual arrangement:




                                          8
                                   January Term, 2016




                  (a) As a community or area center in which presentations in
        music, dramatics, the arts, and related fields are made in order to
        foster public interest and education therein;
                  (b) For other charitable, educational, or public purposes.
                  (2) 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.


        {¶ 24} R.C. 5709.121 was enacted to address situations where ownership
and use of property do not coincide. Traditionally, the existence of a lease defeated
exemption under R.C. 5709.12; that is, exemption was not available if the property
“owner had leased the property to another, even if that lessee was using the property
for charitable purposes.” Dialysis Clinic at ¶ 23. When the General Assembly
enacted R.C. 5709.121 in 1969, Am.Sub.H.B. No. 817, 133 Ohio Laws, Part III,
2646, it “expanded the charitable-use exemption to encompass * * * the situation
in which an entity that qualifies as a ‘charitable institution’ itself leases property to
another charitable institution for charitable purposes,” Northeast Ohio Psych. Inst.
v. Levin, 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, ¶ 12.
        {¶ 25} R.C. 5709.121 does not apply when exemption is sought for property
that belongs to a noncharitable institution. See First Baptist Church, 110 Ohio
St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, at ¶ 13-15, citing White Cross Hosp.
Assn. v. Bd. of Tax Appeals, 38 Ohio St.2d 199, 203, 311 N.E.2d 862 (1974) (Stern,
J., concurring). It “applies only to property ‘belonging to’ i.e., owned by, a
charitable or educational institution, or the state or a political subdivision.”
(Emphasis sic.) Highland Park Owners, Inc. v. Tracy, 71 Ohio St.3d 405, 406, 644
N.E.2d 284 (1994); see also Dialysis Clinic, 127 Ohio St.3d 215, 2010-Ohio-5071,
938 N.E.2d 329, at ¶ 22 (when the owner is a charitable or educational institution,




                                             9
                             SUPREME COURT OF OHIO




R.C. 5709.121 “links certain property uses to R.C. 5709.12(B)’s exclusive-
charitable-use exemption”). Thus, to trigger this definition of exclusive charitable
use, “an entity that leases property to another must establish its charitable status
based on the range of its own activities and may not rely upon the activities of a
particular lessee.” (Emphasis sic.) Northeast Ohio Psych. Inst. at ¶ 14.
              The BTA reasonably and lawfully determined that the
                      property belongs to Roni Lee, not Spire
       {¶ 26} To analyze Spire’s exemption request, the BTA first had to
determine which entity the subject property belongs to for purposes of R.C.
5709.12(B) and 5709.121. Spire argues that the BTA erred by holding that the
property belongs to Roni Lee, the titleholder, rather than to Spire, which has a long-
term leasehold interest in the property. As a starting point, we have equated
“belonging to” with “owned by” in the charitable-exemption context.               See
Humphries v. Little Sisters of the Poor, 29 Ohio St. 201, 207 (1876) (explaining
that as used throughout an earlier version of the charitable-use exemption, “[t]he
word ‘belonging’ * * * means ownership”); Episcopal Parish of Christ Church v.
Kinney, 58 Ohio St.2d 199, 201, 389 N.E.2d 847 (1979) (“ ‘The legislative
definition of exclusive charitable use found in R.C. 5709.121, however, applies
only to property ‘belonging to,’ i.e., owned by, a charitable or educational
institution’ ” [emphasis sic]), quoting White Cross, 38 Ohio St.2d at 203, 311
N.E.2d 862 (Stern, J., concurring). And recently we stated in the context of
analyzing a 30-year lease with a purchase option that “[p]ossessing a leasehold
interest, even under a long-term lease, is not ownership.” ShadoArt Prods., Inc. v.
Testa, ___ Ohio St.3d ___, 2016-Ohio-511, ___ N.E.3d ___, ¶ 5, 34. But notably,
ShadoArt did not involve a renewable 99-year lease, which arguably presents a
different question.
       {¶ 27} Spire now contends that it qualifies as the entity to which the
property belongs because its renewable 99-year leasehold interest amounts to




                                         10
                                January Term, 2016




ownership. See Ralston Steel Car Co. v. Ralston, 112 Ohio St. 306, 309, 319, 147
N.E. 513 (1925) (holding that 99-year lease, renewable forever, amounted to a
permanent fee-simple estate for purposes of evaluating a widow’s right to dower);
Carney v. Cleveland City School Dist. Pub. Library of Cuyahoga Cty., 169 Ohio
St. 65, 69-70, 157 N.E.2d 311 (1959) (permitting public-property exemption under
R.C. 5709.08 when public library spanned two parcels, the smaller of which was
held under a long-term lease). But even assuming, without deciding, that property
can belong to the holder of a renewable 99-year lease for purposes of analyzing the
charitable-use exemption, there remains a factual question whether the lessee
qualifies as an owner in a particular case.
       {¶ 28} Having reviewed the record, we cannot conclude that the BTA
abused its discretion by concluding that Roni Lee’s contract and relationship with
Spire did not effectively transfer ownership of the property to Spire. The close
relationship between the lessor and lessee—Ron Clutter is the primary owner and
managing member of Roni Lee, and he is also the president, founder, and director
of Spire—makes it unclear how much control the lease transferred to Spire. The
lease states that both parties can modify its terms by a signed writing; over time,
the president of Spire could benefit himself as principal of Roni Lee by creating
new lease terms. Finally, Spire has limited control over its use of the property; for
example, the lease permits Spire to improve the property only as specifically
contemplated by the agreement. Under these circumstances, it is not unreasonable
to conclude that the property continues to belong to Roni Lee.
       {¶ 29} In short, the BTA did not err by finding that the property belongs to
Roni Lee, the titleholder, for purposes of analyzing the charitable-use exemption.
     The BTA properly denied exemption under R.C. 5709.12 and 5709.121
       {¶ 30} We next analyze whether the property is exempt under R.C. 5709.12
or 5709.121.




                                         11
                              SUPREME COURT OF OHIO




           R.C. 5709.121 does not apply because the property belongs to
                   Roni Lee, which is not a charitable institution
        {¶ 31} As explained above, R.C. 5709.121 applies only when property
belongs to a “charitable or educational institution or to the state or a political
subdivision.” Accordingly, we may look to 5709.121 only if Roni Lee qualifies as
a charitable or educational institution.
        {¶ 32} Here, the BTA concluded that Roni Lee is not a charitable or
educational institution. As the BTA explained, “[i]t is clear from the record that
Roni Lee, LLC is not a charitable institution. The only evidence of its activities
indicates that it solely leases the subject property to [Spire].” Spire does not contest
this finding on appeal; to the contrary, Spire’s own brief states that Roni Lee is a
“for-profit limited liability company” and describes it as “a non-charitable
institution.”
        {¶ 33} Because the subject property does not belong to a charitable or
educational institution, we turn to R.C. 5709.12.
         The BTA properly denied exemption under R.C. 5709.12 because
         it reasonably and lawfully concluded that Roni Lee does not use
            the property “exclusively for charitable or public purposes”
        {¶ 34} The availability of exemption under R.C. 5709.12 turns on whether
Roni Lee is using the property “exclusively for charitable purposes.” For purposes
of this analysis, Spire’s use of the property is irrelevant. See Northeast Ohio Psych.
Inst., 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, at ¶ 11 (“under the
general exemption for ‘exclusive charitable use’ of property set forth at R.C.
5709.12(B), it is the owner’s use of the property, not a lessee’s use, that determines
whether the property should be exempted” [emphasis sic]).
        {¶ 35} We have held that “a private profit-making venture does not use
property exclusively for charitable purposes.” Highland Park Owners, 71 Ohio
St.3d at 406-407, 644 N.E.2d 284, citing Cullitan v. Cunningham Sanitarium, 134




                                           12
                               January Term, 2016




Ohio 99, 16 N.E.2d 205 (1938), Cleveland Osteopathic Hosp. v. Zangerle, 153
Ohio St. 222, 91 N.E.2d 261 (1950), and Lincoln Mem. Hosp., Inc. v. Warren, 13
Ohio St.2d 109, 235 N.E.2d 129 (1968). Thus, exemption under R.C. 5709.12 is
not appropriate when an owner uses property “for leasing.” Northeast Ohio Psych.
Inst. at ¶ 11; see also Community Health Professionals v. Levin, 113 Ohio St.3d
432, 2007-Ohio-2336, 866 N.E.2d 478, ¶ 8. Indeed, the case law has long rejected
a finding of exclusive charitable use under R.C. 5709.12(B) when a for-profit entity
owns the property and allows a nonprofit to use it—and the BTA has adhered to
that authority. See Lincoln Mem. Hosp. at 110; Evans Invest. Co. v. Limbach, 51
Ohio App.3d 104, 106, 554 N.E.2d 941 (10th Dist.1988).
       {¶ 36} Here, the record supports the tax commissioner’s and the BTA’s
findings that Roni Lee did not use the property exclusively for charitable purposes.
The commissioner found that Roni Lee’s “use of the property is that of land
development and commercial leasing” and that Roni Lee used the property to lease
it and also to contribute to “the appreciation and development of the surrounding
property” owned by Roni Lee that is not subject to the lease. Roni Lee does not
significantly profit from rental payments under the lease, which requires payment
of only $1 per year. See Bexley Village, Ltd. v. Limbach, 68 Ohio App.3d 306, 310,
588 N.E.2d 246 (10th Dist.1990) (“$1 per year rental does not qualify as profit”
under R.C. 5709.07). But Roni Lee stands to profit from the lease in other ways.
As the tax commissioner’s final determination explained, public records indicate
that Roni Lee owns 445 acres of property adjacent to the subject parcels whose
value is affected by Spire’s improvement of the parcels it rents. In addition, Roni
Lee will retain Spire’s improvements to the property when Spire’s interest reverts
to Roni Lee.
       {¶ 37} Given these facts, the BTA did not act unlawfully or unreasonably
when it found that Roni Lee does not use the property exclusively for charitable




                                        13
                             SUPREME COURT OF OHIO




purposes. Accordingly, we affirm the BTA’s denial of exemption under R.C.
5709.12.
                   The prospective-use doctrine does not apply
       {¶ 38} Finally, Spire contends that the undeveloped portions of the property
qualify for exemption under the prospective-use doctrine.
       {¶ 39} The prospective-use doctrine states:


               Where an entity, which under the law is entitled to have
           its property exempted from taxation, acquires real property
           with the intention of devoting it to a use exempting it from
           taxation, such property is entitled to be exempted from
           taxation, as long as it is not devoted to nonexempt or
           commercial use, even though actual physical use of the
           property for the exempt purpose has not yet begun.


Carney, 169 Ohio St. 65, 157 N.E.2d 311, at paragraph one of the syllabus.
       {¶ 40} To establish a right to exemption for a prospective use, a private
property owner must show that it is “actively working toward [an] actual use for
the public benefit.” Holy Trinity Protestant Episcopal Church of Kenwood v.
Bowers, 172 Ohio St. 103, 107, 173 N.E.2d 682 (1961). “Evidence that surveys
have been made and plans drawn or that active fund-raising campaigns are being
carried on is indicative that the exempting use will be made of the property within
a reasonable time.” Id. A property’s ability to satisfy this standard turns on whether
its “owner is developing the property for [an] exempt use” as of the tax-lien date of
the tax year at issue. Episcopal School of Cincinnati v. Levin, 117 Ohio St.3d 412,
2008-Ohio-939, 884 N.E.2d 561, ¶ 1, 25.
       {¶ 41} The prospective-use doctrine does not apply to the undeveloped
property here for two reasons. First, the same reasoning that leads us to affirm the




                                         14
                                  January Term, 2016




BTA’s decision that the developed property at issue is not exempt under R.C.
5709.12 or 5709.121 compels us to conclude that the undeveloped property is not
exempt. It is, after all, only the prospect of an exempting use that justifies
exemption under the prospective-use doctrine. Episcopal School at ¶ 10, citing
Carney at paragraph one of the syllabus. Second, although Spire introduced some
evidence of plans for future development, it is unclear how much of the
undeveloped property those plans account for. Indeed, Spire’s witness conceded
that some of the property might be sold to developers for commercial use, which
precludes application of the prospective-use doctrine to that land. See Carney at
paragraph one of the syllabus.
          {¶ 42} We affirm the BTA’s holding that the prospective-use doctrine does
not apply.
                                     CONCLUSION
          {¶ 43} Because Spire has not established that any portion of the subject
property qualifies for a charitable-use exemption, we affirm the BTA’s decision.
                                                                Decision affirmed.
          O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’NEILL, J., not participating.
                                 _________________
          Warren & Young, P.L.L., Ryan M. Ellis, and Stuart W. Cordell; and
Thrasher, Dinsmore & Dolan, L.P.A., and Mary Jane Trapp, for appellant.
          Michael DeWine, Attorney General, and David D. Ebersole, Assistant
Attorney General, for appellee.
                                 _________________




                                            15
