[Cite as Rancho Cincinnati Rivers, L.L.C. v. Warren Cty. Bd. of Revision, 2020-Ohio-1319.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 RANCHO CINCINNATI RIVERS, LLC,                         :

        Appellant,                                      :           CASE NO. CA2019-07-075

                                                        :                    OPINION
     - vs -                                                                   4/6/2020
                                                        :

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




 ADMINISTRATIVE APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                         Case No. 17CV090441


The Gibbs Firm, LPA, Ryan J. Gibbs, 2355 Auburn Avenue, Cincinnati, Ohio 45219, for
appellant

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

David C. DiMuzio, Inc., David C. DiMuzio, Matthew C. DiMuzio, 810 Sycamore Street, Sixth
Floor, Cincinnati, Ohio 45202, for appellee, Kings Local School District Board of Education



        RINGLAND, J.

        {¶ 1} Appellant, Rancho Cincinnati Rivers, LLC ("Rancho"), appeals from a

decision of the Warren County Court of Common Pleas upholding a decision of the Warren

County Board of Revision ("BOR") declining to decrease the value of certain real property
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located at 575 Corwin Nixon Blvd., South Lebanon, Ohio ("Property").

      {¶ 2} The Property consists of two parcels including a 141,100 square foot "big box"

structure built in 2008, which is currently leased by Lowe's Companies, LLC ("Lowe's"). For

the 2015 tax year, the Warren County Auditor valued the property at $8,500,000.

      {¶ 3} Rancho filed a complaint with the BOR seeking a reduction in value for the

Property as of January 1, 2016. Kings Local School District Board of Education ("Kings")

contested Rancho's complaint and asked the BOR to maintain the appraised value. In

support of the reduction, Rancho presented the report and testimony of its appraiser,

Richard Racek. The BOR rejected Racek's appraisal and retained the Auditor's valuation

of $8,500,000. Rancho appealed to the Warren County Court of Common Pleas and an

evidentiary hearing was held before a magistrate.

      {¶ 4} At the hearing before the magistrate, Rancho presented Racek's report and

testimony while Kings presented the report and testimony of its appraiser, James Burt. The

appraisers differ in their fundamental views of how to appraise property in its "fee simple

estate, as if unencumbered" as required by R.C. 5713.03. Racek appraised the property

under the theory that "fee simple unencumbered" requires that a property be vacant on the

tax lien date and assumes a hypothetical sale of the property without a tenant in place.

      {¶ 5} Burt, on the other hand, appraised the Property as if it could be purchased

with a lease in place at market rate. Rather than a purchaser acquiring a possessory

interest in the property, the purchaser could exchange such right for the income generated

from leasing the property. Burt therefore utilized comparable sales sold with leases in place

and would enter adjustments for any non-market terms.

      {¶ 6} Racek performed two appraisals on the Property. For the sales comparison

approach, Racek evaluated 11 transactions involving big box stores throughout Ohio. Five

of those transactions involved stores sold or listed for sale between 2013 and 2016 without

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an existing lease. Six of the transactions involved stores sold between 2014 and 2015 that

had existing leases. For the properties with an existing lease, Racek adjusted the sales

prices downward to reflect the absence of a lease. Again, this downward adjustment was

based on Racek's belief that in order to find a comparable, relevant sale for appraisal

purposes, there can be no lease in place at the tax lien date. Utilizing this approach, Racek

concluded the Property had a fair market value of $5,660,000 as of January 1, 2016.

      {¶ 7} For the income approach, Racek evaluated 14 properties, seven of which had

existing leases and seven of which did not. Racek determined a gross potential income on

the Property of $565,600 and then subtracted the cost of vacancy and credit loss, and

management and administrative reserves, to find the net operating income as $450,500,

capitalized at 7.5%. Racek determined the value as $6,000,000. After reconciling these

two approaches, Racek concluded that the value of the Property was $5,800,000.

      {¶ 8} To the contrary, Burt performed three different appraisals utilizing a cost

approach, a sales comparison approach, and an income approach. For the cost approach,

Burt examined four sales of vacant land and added the replacement cost of the building for

a total cost approach value of $9,010.000.

      {¶ 9} For the sales comparison approach, Burt evaluated four transactions between

2013 and 2015 involving big box stores, three of which were occupied by a Lowe's and sold

with existing leases. The fourth sale involved a big box structure occupied by a Dillard's

that had been split into two units and extensively remodeled. Burt reviewed but did not

adjust for the leases involved in these sales because, according to him, the terms of the

leases were market rate and no adjustment was required. Burt did, however, perform

location adjustments to the comparable properties based upon increased rent garnered

from the leases. Considering these sales, Burt concluded the Property had a fair market

value of $8,480,000.

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       {¶ 10} For the income approach, Burt evaluated four properties. Burt estimated the

Property's net operating income to be $674,452 with a 7.87% capitalization rate. Burt

determined under this approach that the Property had a fair market value of $8,570,000.

       {¶ 11} Burt explained that his sales comparison approach should be utilized to

provide the most accurate fair market value for the Property as $8,480,000.

       {¶ 12} Following the evidentiary hearing, the magistrate issued its decision finding in

favor of Rancho. In so doing, the magistrate found that Burt's valuations could not be relied

upon because Burt failed to adjust for the leases at issue as "fee simple estate, as if

unencumbered" as required by R.C. 5713.03. As such, the magistrate concluded it was

"constrained" to reverse the decision of the BOR and adopted Rancho's proposed valuation

of $5,800,000.

       {¶ 13} Kings and Warren County timely objected to the magistrate's decision.

Following review, the common pleas court sustained the objections. In so doing, the court

found the magistrate placed an improper burden on Kings to prove its valuation without first

determining whether Rancho was entitled to a decrease in valuation as required by law.

The common pleas court then considered the record in its entirety and determined Racek's

appraisal was competent, probative evidence, but found that the Burt appraisal provided

the most competent and probative evidence of the Property. Therefore, the court set the

Property's value as $8,480,000. Rancho now appeals, raising three assignments of error

for review.

       {¶ 14} Assignment of Error No. 1:

       {¶ 15} THE COURT ERRED BY DETERMINING THAT THE DECISION OF

MAGISTRATE ANDREW HASSELBACH DID NOT FIND THE RACEK APPRAISAL TO BE

COMPETENT AND PROBATIVE EVIDENCE OF VALUE.

       {¶ 16} In its first assignment of error, Rancho alleges the common pleas court erred

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by finding that the Racek appraisal was not competent and probative evidence of value.

Rancho's argument is without merit.

       {¶ 17} Under R.C. 5717.05, an appeal from a county board of revision may be taken

directly to the court of common pleas. Determining the true value of property on appeal

from a board-of-revision decision is a question of fact for the common pleas court after

performing an independent investigation and reevaluation of the board's value

determination. SSN II, Ltd. v. Warren Cty. Bd. of Revision, 12th Dist. Warren No. CA2012-

04-037, 2013-Ohio-1112, ¶ 10.       Nevertheless, a taxpayer has the initial burden and

obligation to prove the right to a reduction. Eastbrook Farms, Inc. v. Warren Cty. Bd. of

Revision, 194 Ohio App.3d 193, 2011-Ohio-2103, ¶ 18 (12th Dist.).

       {¶ 18} Rancho suggests that the common pleas court disregarded Racek's appraisal

as not constituting competent and probative evidence. However, Rancho's argument is

rebutted by the record, as the court clearly considered that evidence and, in fact, found

Racek's appraisal to meet Rancho's initial burden of proof. As noted in the common pleas

court's final judgment entry:

              Upon review of Racek's appraisal report, as well as his
              testimony explaining that report, the Court finds Rancho
              produced competent, credible, and probative evidence
              supporting its desired reduction in valuation. The parties
              stipulated that Racek was an expert in his field and qualified to
              give an appraisal in this case. His report was clear and provided
              appropriate explanation of why he came to his valuation of the
              Property. Thus, Rancho has met its initial burden to present
              competent and credible evidence warranting a reduction in
              valuation. Now the burden shifts to those opposing this
              reduction in valuation to present evidence to the contrary. As
              Kings and Warren County chose to present their own expert
              appraiser, this Court must determine the credibility of the
              competing experts and weigh the evidence before it to
              determine which side presents the most competent, credible,
              and probative evidence of the valuation.

       {¶ 19} Thus, contrary to Rancho's suggestion, the common pleas court did find


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Racek's appraisal was competent and probative.         However, the common pleas court

reviewed the additional evidence presented by Kings and Warren County and found that

their evidence was more credible. It is well-established that a "common pleas court has

broad discretion to weigh the evidence and judge the credibility of witnesses." Amsdell v.

Cuyahoga Cty. Bd. of Revision, 69 Ohio St.3d 572, 574 (1994). Once a common pleas

court makes its determination, it will not be disturbed on appeal absent an abuse of

discretion. Black v. Cuyahoga Cty. Bd. of Revision, 16 Ohio St.3d 11, 14 (1985); Eastbrook,

2011-Ohio-2103 at ¶ 17.

        {¶ 20} In this case, the common pleas court simply found Burt's appraisal to be more

competent and probative than Racek's appraisal. As noted in the court's final judgment

entry

              Based on a thorough review of the record, the relevant law, and
              the arguments of the parties, the Court finds that Rancho
              satisfied its initial burden of presenting competent evidence
              entitling it to a reduction in valuation as of the tax lien date,
              January 1, 2016, Kings and Warren County have presented the
              most competent and probative evidence of the Property's
              decision.

(Emphasis sic.) Thus, Rancho's argument that the common pleas court did not find Racek's

appraisal to constitute competent and credible evidence is rebutted by the record.

Furthermore, it is clear the court appropriately weighed the competing reports and

testimonies and entered judgment accordingly. The common pleas court, as trier of fact,

was in the best position to weigh the conflicting evidence.       Therefore, Rancho's first

assignment of error is overruled.

        {¶ 21} Assignment of Error No. 2:

        {¶ 22} THE COURT ERRED BY OVERRULING THE FINDINGS OF MAGISTRATE

ANDREW HASSELBACH, WHO CORRECTLY DETERMINED THE BURT APPRAISAL

DID NOT VALUE THE SUBJECT PROPERTY'S MARKET VALUE IN THE FEE SIMPLE

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INTEREST, AS IF ENCUMBERED.

       {¶ 23} Assignment of Error No. 3:

       {¶ 24} THE COURT'S DECISION VIOLATES THE OHIO CONSTITUTION'S

MANDATE OF UNIFORM ASSESSMENT UNDER ARTICLE XII, SECTION 2 OF THE

OHIO CONSTITUTION AND THE EQUAL PROTECTION CLAUSES UNDER ARTICLE I,

SECTION 2 OF THE OHIO STATE CONSTITUTION AND THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTITUTION BY APPLYING THE

DEFINITION OF FEE SIMPLE, AND INTERPRETING §5713.03 OF THE OHIO REVISED

CODE, IN A MANNER THAT DISCRIMINATES AGAINST CERTAIN TAXPAYERS.

       {¶ 25} Rancho's second and third assignments of error address the same concept.

As noted earlier, the two appraisers have a fundamental disagreement of how to appraise

property in its "fee simple estate, as if unencumbered" as required by R.C. 5713.03. Racek

ascribes to the theory that an estate "fee simple unencumbered" requires that a property

be vacant on the tax lien date and assumes a hypothetical sale of the property without a

tenant in place. Burt does not ascribe to this theory because the theory assumes a

hypothetical condition that undervalues properties, such as this one, where the property is

operated as the highest and best use.

       {¶ 26} Rancho's second assignment of error argues the common pleas court erred

by accepting Burt's valuation, alleging he adopted a "leased at market" valuation in violation

of R.C. 5713.03. In its third assignment of error, Rancho argues the court's interpretation

of R.C. 5713.03 discriminates against it and is punitive. We find Rancho's arguments are

without merit.

       {¶ 27} It has long been the law in Ohio that, "[f]or real property tax purposes, the fee

simple estate is to be valued as if it were unencumbered." Alliance Towers v. Stark Cty.

Bd. of Revision, 37 Ohio St.3d 16 (1988), paragraph one of the syllabus. When that rule

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was only established by caselaw, not statute, some decisions of the Supreme Court also

found an exception: in the case of a recent sale of the subject property, the sale price could

be taken as conclusive of value and did not need to be adjusted to take account of existing

encumbrances. See, e.g., Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision,

117 Ohio St.3d 516, 2008-Ohio-1473, ¶ 19-26; Berea City School Dist. Bd. of Edn. v.

Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 269, 2005-Ohio-4979, ¶ 5-16.

       {¶ 28} In 2012, the legislature adopted statutory language in R.C. 5713.03 that

required the auditor to assess the "true value of the fee simple estate, as if unencumbered."

With that addition to the statutory text, it became clear that, without exception, the estate to

be valued when considering the value of a subject property is the fee simple estate, as if

unencumbered. See Lowe's Home Ctrs., Inc. v. Washington Cty. Bd. of Revision, 154 Ohio

St.3d 463, 2018-Ohio-1974, ¶ 19 (stating, "it is plain that a lease is an encumbrance and

that R.C. 5713.03's directive to value the realty 'as if unencumbered' means to value the

realty as if it were free of encumbrances such as leases").

       {¶ 29} Rancho interprets R.C. 5713.03 to mean that an occupied property should be

valued as if it were vacant and available for sale or rent to a future hypothetical user, rather

than its current use, which is a functioning, occupied store. Stated another way, Rancho

and its appraiser would value an occupied property, like the property in this case, as if it

were vacant on the tax lien date, rather than occupied and rented at market rent. The

Supreme Court has rejected this interpretation:

              Although the subject property is owner-occupied, [the school
              board's appraiser] appraised it as if it were generating income
              under a hypothetical lease, under what he believes would be
              current market rates. Finding that owner-occupied property
              cannot be valued this way, the BTA declined to consider [the
              school board]'s appraisal. The BTA found that [the school
              board's appraiser]'s methodology represented a leased-fee
              valuation that "'taint[ed] the validity of the entire report.'"
              (Citation omitted).    Continuing, the BTA stated that "by

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              performing a leased fee appraisal analysis of the owner
              occupied subject, [the school board's appraiser] has overstated
              the total value of the subject property; accordingly, we will not
              consider [the school board's appraiser]'s conclusions to value
              under his leased fee analysis." Id.

              The BTA's refusal to consider [the school board]'s appraisal was
              legal error. We addressed the propriety of appraising owner-
              occupied property as if it were leased in Meijer Stores Ltd.
              Partnership v. Franklin Cty. Bd. of Revision, 122 Ohio St.3d 447,
              2009-Ohio-3479, 912 N.E.2d 560, ¶ 21-23. After recognizing
              that a property owner may be able to realize the value of its
              property by encumbering it with a lease, we concluded that an
              appraiser may take that possibility into account when valuing it.
              Id. at ¶ 23; see also Saratoga Harness Racing, Inc. v. Williams,
              697 N.E.2d 164, 166-167, 91 N.Y.2d 639, 674 N.Y.S.2d 263
              (1998) (approving the same approach in the valuation of a
              horse-racing facility). Appraising property in this way is
              consistent with R.C. 5713.03's directive to determine "the true
              value of the fee simple estate, as if unencumbered," so long as
              the appraisal assumes a lease that reflects the relevant real-
              estate market. See Appraisal Institute, The Appraisal of Real
              Estate 441 (14th Ed.2013) ("When the fee simple interest is
              valued, the presumption is that the property is available to be
              leased at market rates"); Ohio Adm.Code 5703-25-07(D)(2)
              (authorizing use of income-capitalization approach in valuing
              real estate). Although the BTA ultimately may disagree with [the
              school board's appraiser]'s factual assumptions about the lease
              terms, his methodology was not defective as a matter of law,
              and the BTA should have considered it.

Harrah's Ohio Acquisition Co., L.L.C. v. Cuyahoga Cty. Bd. of Revision, 154 Ohio St.3d

340, 2018-Ohio-4370, ¶ 26-27. In other words, "as if unencumbered," means that if the

subject property is encumbered, the appraiser adjusts for the effects of those

encumbrances. It does not mean, however, that the appraiser must assume that the

property is vacant or ignore the fact that the property is leased at a market rate.

       {¶ 30} Similar arguments have been rejected by the Tenth District Court of Appeals

in Lowe's Home Ctrs., L.L.C. v. Brooklyn City Schools Bd. of Edn., 10th Dist. Franklin No.

19AP-179, 2020-Ohio-464. In that decision, the Tenth District also noted that the Ohio

Supreme Court's decision in Harrah's had been repeatedly relied on by the Board of Tax


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Appeals ("BTA") to reject arguments identical arguments, none of which have been

reversed. For example, in Lowe's Home Ctrs., L.L.C. v. Lorain Cty. Bd. of Revision, BTA

No. 2017-T-1023, 2019 Ohio Tax LEXIS 1900, (Aug. 12, 2019), the BTA stated "[w]e first

address Lowe's argument that R.C. 5713.03 that requires that we accept its view that real

property in Ohio must be valued as if it were vacant on tax lien date. This board confronted

a similar argument * * * [and] rejected the argument, citing to the Supreme Court's recent

decision in [Harrah's] * * * where it found no error in an appraiser valuing an owner-occupied

property as it were generating market rate income under a hypothetical lease." (Emphasis

sic.) Id. at *4; see also Lowe's Home Ctrs., L.L.C. v. Cuyahoga Cty. Bd. of Revision, BTA

No. 2017-T-39, 2019 Ohio Tax LEXIS 342, *11-13 (Feb. 26, 2019) ("Under this valuation

standard, Lowe's argues, a property must be assumed to be vacant on tax lien date[.] * * *

The Supreme Court specifically rejected such argument in [Harrah's]."); Lowe's Home Ctrs.,

Inc. v. Washington Cty. Bd. of Revision, BTA No. 2014-T-4606, 2019 Ohio Tax LEXIS 2125,

*13 (Sept. 10, 2019).

       {¶ 31} As a result, and in accordance with the Ohio Supreme Court's decision in

Harrah's, we find Rancho's arguments are without merit.          We further agree with the

conclusion set forth by the Tenth District in its recent Lowe's decision:

              For over 30 years it has been the law in Ohio that for real
              property tax purposes, a property is to be valued as a fee simple
              estate as if it were unencumbered. It has also been understood
              for some years that "as if unencumbered" does not mean that
              one is to assume the subject property is vacant or distressed
              but, instead, means an adjustment in value to simulate market
              rent and occupancy is appropriate. The "unencumbered"
              language added to the Ohio Revised Code in 2012 implied
              some changes to the precedent previously set by caselaw but
              not to such principle.

Lowe's Home Ctrs., L.L.C., 2020-Ohio-464 at ¶ 28. The common pleas court did not err by

accepting Burt's appraisal, nor did it deprive Rancho of equal protection under the law or


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otherwise discriminate against it by applying the law.   Rancho's second and third

assignments of error are overruled.

      {¶ 32} Judgment affirmed.


      HENDRICKSON, P.J., and PIPER, J., concur.




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