[Cite as Fife v. Greene Cty. Bd. of Revision, 120 Ohio St.3d 442, 2008-Ohio-6786.]




                FIFE ET AL., APPELLEES, v. GREENE COUNTY BOARD
                          OF REVISION ET AL., APPELLANTS.

                     [Cite as Fife v. Greene Cty. Bd. of Revision,
                        120 Ohio St.3d 442, 2008-Ohio-6786.]
R.C. 5713.30 and 5713.31 – Current agricultural-use value – Commercial timber
        production – Board of Tax Appeals’ decision affirmed.
           (No. 2007-2213 — Submitted December 17, 2008 — Decided
                                   December 30, 2008.)
              APPEAL from the Board of Tax Appeals, No. 2006-V-783.
                                  __________________
        Per Curiam.
        {¶ 1} Appellants, Greene County Auditor and Greene County Board of
Revision (“the county”), appeal from a decision of the Board of Tax Appeals
(“BTA”) in which the BTA reversed the board of revision and found that two
parcels owned by the appellees, D. Mark Fife and Patricia Fife, qualified for
current agricultural-use valuation (“CAUV”) pursuant to R.C. 5713.30 and
5713.31. The two parcels at issue comprise 18.7 acres. Of these, the owners
devote approximately one acre to their house and grounds and about three acres to
pasture for grazing cattle.
        {¶ 2} About 14.2 acres at the site are wooded, and the use of this land
presents the central issue in this case: the Fifes insist over the county’s objections
that they devote the wooded area to the “production for a commercial purpose of
timber” within the meaning of R.C. 5713.30(A)(1).                  The BTA agreed and
reversed the board of revision’s denial of CAUV status. On appeal, the county
contends that the BTA erred by granting the preferred tax status where no recent
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harvesting of timber has occurred. Because it is reasonable and lawful, we affirm
the decision of the BTA.
                                    Background
       {¶ 3} In 1973, Ohio voters approved an amendment to Section 36,
Article II of the Ohio Constitution that authorized the General Assembly to make
an exception to the constitutional requirement of uniform property taxation. The
amendment provided that “laws may be passed to provide that land devoted
exclusively to agricultural use be valued for real property tax purposes at the
current value such land has for such agricultural use.” Am.H.J.R. No. 13, 135
Ohio Laws, Part I, 2043. The General Assembly implemented the amendment by
enacting R.C. 5713.30 through 5713.37.
       {¶ 4} Under the authorizing amendment and the implementing statutes,
“the auditor disregards the highest and best use of the property and values the
property according to its current agricultural use,” a procedure that “usually
results in a lower valuation and a lower real property tax.” Renner v. Tuscarawas
Cty. Bd. of Revision (1991), 59 Ohio St.3d 142, 572 N.E.2d 56. Once land has
been determined to be “devoted exclusively to agricultural use,” R.C. 5713.31
requires the county auditor to appraise the land in accordance with administrative
rules adopted by the Tax Commissioner that prescribe the method for performing
agricultural-use valuation.
       {¶ 5} But this case involves the threshold determination: Did the Fifes
demonstrate that their property was devoted exclusively to agricultural use for the
2005 application year?        R.C. 5713.30(A) describes several paths by which
property might attain CAUV status.            Most directly pertinent is R.C.
5713.30(A)(1), under which land qualifies for the tax break if, during the last
three calendar years and through May 31 of the application year, the property was
“devoted exclusively to commercial animal * * * husbandry [or] * * * the
production for a commercial purpose of timber * * *.” The BTA concluded that




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the continuous grazing on the open land and the activity in relation to the wooded
portion qualified the property for the preferred tax status under this provision.
The county contends that the Fifes, as a matter of law, failed to demonstrate the
requisite “commercial purpose” in maintaining the woodland.
                                       Facts
       {¶ 6} The Fifes acquired the two parcels at issue from Mr. Fife’s father
in 2003 and 2004. Mr. Fife testified that his grandfather had used the wooded
portion for timber production. That use continued over the decades when Mr.
Fife’s father owned the property; the last harvest of trees occurred in 1998, in
which Fife’s father took down 85 trees, with a value of $8,000.
       {¶ 7} The property had previously enjoyed CAUV status during the elder
Mr. Fife’s ownership. On February 10, 2005, the county auditor sent a notice to
the Fifes stating that their purchase of the land triggered a redetermination
whether the land still qualified for CAUV status.
       {¶ 8} The testimony before the board of revision and the BTA detailed
extensive activity by the Fifes to maintain access to the trees, to cull timber, and
to girdle undesirable trees. The Fifes also met with a state forester and received a
forestry plan specifically for their property. The Fifes permitted a neighboring
farmer to graze cattle on a three-acre fenced-in portion of the property for a fee of
$500 annually. The farmer had been renting the grazing rights for four years at
the time of the May 17, 2006 hearing at the board of revision.
       {¶ 9} The BTA found that “there is ample, and unrebutted, evidence of
activity taken to grow timber for commercial production for the three years prior
to the 2005 application.” Fife v. Greene Cty. Bd. of Revision (Nov. 2, 2007), BTA
No. 2006-V-783, at 10. Additionally, “the testimony and evidence support that
the three acres of pasture have been actively and exclusively used for the grazing
of cattle for more than three years prior to application.” Id. Based on these




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findings, the BTA found that the land use satisfied the criteria of R.C.
5713.30(A)(1) and granted CAUV status.1
                                         Analysis
         {¶ 10} In reviewing a decision of the BTA, we determine whether it is
“reasonable and lawful.” Columbus City School Dist. Bd. of Edn. v. Zaino (2001),
90 Ohio St.3d 496, 497, 739 N.E.2d 783. While we will not hesitate to reverse a
decision that is based on an incorrect legal conclusion, we defer to the BTA’s
factual determinations if the record contains reliable and probative evidence to
support them. Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-
Ohio-511, 882 N.E.2d 400, ¶ 10, citing Gahanna-Jefferson Local School Dist. Bd.
of Edn. v. Zaino (2001), 93 Ohio St.3d 231, 232, 754 N.E.2d 789, and Am. Natl.
Can Co. v. Tracy (1995), 72 Ohio St.3d 150, 152, 648 N.E.2d 483.
         {¶ 11} On appeal, the county advances three main contentions. However,
these contentions are not well taken.
         {¶ 12} First, the county asserts that the infrequency of harvesting of
timber on the land bars the claim for CAUV status as a matter of law.
Specifically, the county cites testimony showing that the last harvest occurred in
1998 and the next major harvest would not likely occur for another ten years from
the time of the BTA hearing – a gap of 19 years between harvests. The county
argues that this lapse of time without a harvest of trees ought to defeat the Fifes’
claim.
         {¶ 13} Citing previous decisions, the BTA acknowledged “[t]he difficulty
in determining whether the land in question is being used for the commercial
production of timber” because “it may take decades for a timber crop to mature to


1. As noted, the Fifes’ house is on one of the parcels. In some instances, the portion of an
agricultural parcel containing the farmhouse has been split from the land actually farmed. See
Lavery v. Summit Cty. Bd. of Revision (Sept. 30, 2005), BTA No. 2004-K-578, 2005 WL 2600947,
fn. 1. The BTA makes no mention of the effect of the house on CAUV status, and the county has
not asserted any error in this regard.




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a size and nature that can be commercially harvested.” Fife, BTA No. 2006-V-
783, at 7. Accordingly, the BTA applied its previous holding that “a modicum of
activity designed to further the growth of timber for commercial purposes” must
be discernible. Id. at 10. Moreover, the record supports the BTA’s finding that
the Fifes satisfied that standard through activity on the property that established
the “commercial purpose” harbored by the owners.
       {¶ 14} Second, the county points to the ambiguity of woodland
maintenance: Does such activity indicate a “commercial purpose” or does it
merely constitute sound conservation practice? The county advocates a bright-
line test, whereby an owner would have to show a recent timber harvest or
existing contracts to cut timber to qualify the property for CAUV status. This
position is not well taken. The determination of commercial purpose constitutes a
factual inquiry that the BTA must conduct on a case-by-case basis. The statute
does not specify a bright-line test, and we decline the county’s invitation to adopt
one here. The county’s remedy lies not in voicing its concerns to this court but
rather in petitioning the General Assembly for a change in the applicable statutes.
       {¶ 15} Third, the county asserts that even if the evidence sufficed to
establish agricultural use as of the application year 2005, there is allegedly no
evidence establishing the use during the requisite period of three prior years.
Again, this position is not well taken. Although the Fifes acquired the property
within the three-year period, their use merely continued the prior use of the
property by Mr. Fife’s father and grandfather. The statutes as currently written do
not prohibit the continuation of agricultural-use status when a new generation
takes over the operation of the family farm.
       {¶ 16} Nor are we persuaded by the county’s citation of other cases that
have addressed CAUV issues. In Rocky Fork Hunt & Country Club v. Testa
(1995), 100 Ohio App.3d 570, 654 N.E.2d 429, testimony of the landscape
architect established that certain woodland acres owned by a country club were




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not being developed for the “merchantable value of the woods, but for its health
and vigor and the aesthetic value for club members.” Id. at 576. No such
testimony negates the owners’ case here; indeed, the forestry stewardship plan in
this case specifically recites the purpose of “commercial production of the timber
resourses [sic].”
       {¶ 17} Likewise, our recent decision in Dircksen v. Greene Cty. Bd. of
Revision, 109 Ohio St.3d 470, 2006-Ohio-2990, 849 N.E.2d 20, provides no
assistance to the county in this case, because Dircksen addressed a claim in which
the bulk of the tract at issue was admittedly devoted to noncommercial timber.
The owners in Dircksen attempted to obtain the tax break for the large wooded
area on account of its contiguity with other agricultural land, but that other land
(taken without regard to the adjacent woodland) comprised less than ten acres. In
the present case, the BTA’s findings establish that property consisting of more
than ten contiguous acres satisfies the CAUV standards set forth in R.C.
5713.30(A)(1). As a result, Dircksen is simply not apposite.
                                      Conclusion
       {¶ 18} For all the foregoing reasons, the BTA acted reasonably and
lawfully when it reversed the board of revision and ordered that CAUV tax status
be granted to the Fifes. We therefore affirm the BTA’s decision.
                                                                  Decision affirmed.
       MOYER,       C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                  __________________
       Lester L. Ferguson, for appellees.
       James R. Gorry, for appellants.
                             ______________________




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