         [Cite as Vinyard Ministries, L.L.C. v. Levin, 2014-Ohio-1911.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



VINEYARD MINISTRIES, LLC,                          :          APPEAL NO. C-130381
                                                              BTA NO. 2010-Q-2959
        Plaintiff-Appellant,                       :

                                                   :              O P I N I O N.
  vs.
                                                   :
RICHARD A. LEVIN, TAX
COMMISSIONER OF OHIO,                              :

    Defendant-Appellee.                            :




Appeal From: Board of Tax Appeals

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: May 7, 2014


Kohnen & Patton, LLP, and Kimberly A. Pramaggiore, for Plaintiff-Appellant,

Michael DeWine, Attorney General of Ohio, and Thomas N. Anger, Assistant
Attorney General, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}   Appellant, Vineyard Ministries, LLC (“Vineyard”), a subsidiary of the

Vineyard Community Church, appeals from a Board of Tax Appeals (“BTA”) decision

affirming the appellee tax commissioner’s denial of a tax exemption for a 5,612-

square-foot area located in the church’s student ministries center.       The BTA

determined that the area was primarily used for recreation and not for public

worship. Therefore, it did not qualify for the house of public worship exemption set

forth in R.C. 5709.07(A)(2).     Because the BTA’s decision upholding the tax

commissioner’s denial of the exemption is both reasonable and lawful, we affirm.

                      Background Facts and Procedure

       {¶2}   In 2007, Vineyard acquired an 8.352-acre parcel in Springdale that

was adjacent to exempt property owned and used by the church.            Thereafter,

Vineyard sought a tax exemption for the entire parcel, including an almost 100,000-

square-foot building containing the church’s student ministries center that had been

constructed on the parcel.

       {¶3}   The student ministries center includes a lobby and separate

auditoriums and classroom areas for high school and middle school students. The

auditoriums, or sanctuaries as they are sometimes referred to, are used for the

worship services, and the classrooms are used for Bible study, group prayer, and

ministry training.

       {¶4}   The student ministries center also houses the 5,612-square-foot area

that is the subject of this appeal. Located in that space are half-court basketball

courts, surrounded by an area of recessed seats, and an open recreational area with

concrete floors, video gaming stations, foosball tables, and moveable casual




                                         2
                      OHIO FIRST DISTRICT COURT OF APPEALS



furniture. The high-school side is separated from the middle-school side by a floor-

to-ceiling “playground style chain link fence.” A kitchen/snack shop with a soda

fountain and vending machines is additionally found within the disputed area.

       {¶5}   The tax commissioner found that the majority of Vineyard’s parcel was

used “exclusively for public worship” and, therefore, was exempt from taxation under

R.C. 5709.07(A)(2).    The tax commissioner, however, denied the exemption with

respect to the subject 5,612-square-foot area within the student ministries center,

after finding that the area was used primarily for recreation and concluding that this

use was merely supportive of public worship. Consistent with R.C. 5713.04, the tax

commissioner split the property, exempting from taxation all but the 5,612-square-

foot area.

       {¶6}   Vineyard appealed the tax commissioner’s decision partially denying

its application for the real-property exemption to the BTA. Upon review of the notice

of appeal, the statutory transcript, and the testimony and evidence submitted at a

hearing, the BTA affirmed the tax commissioner’s decision. Vineyard now appeals to

this court as provided by R.C. 5717.04.

                              Assignment of Error

       {¶7}   In its sole assignment of error, Vineyard argues that the BTA erred in

affirming the denial of the exemption because the record demonstrated that the

contested area was primarily used for public worship as contemplated by R.C.

5709.07(A)(2).

       {¶8}   Standard of Review. Our standard of review of the BTA’s decision is

set forth in R.C. 5717.04. We must determine whether the BTA’s decision was

“reasonable and lawful.” Under this standard, we will reverse a BTA decision that is

based on an incorrect legal conclusion. Cincinnati Community Kollel v. Testa, 135



                                          3
                    OHIO FIRST DISTRICT COURT OF APPEALS



Ohio St.3d 219, 2013-Ohio-396, 985 N.E.2d 1236, ¶ 16. But we will uphold the BTA’s

factual determinations if the record contains reliable and probative evidence to

support them. Id.

       {¶9}   In applying this standard of review, we must be mindful that Vineyard

had the burden of demonstrating that the property qualified for exemption and that

statutes governing tax exemptions should be strictly construed against the claim of

exemption. Id. at ¶ 17; Faith Fellowship Ministries, Inc. v. Limbach, 32 Ohio St.3d

432, 434, 513 N.E.2d 1340 (1987).

       {¶10} Public-Worship Exemption under R.C. 5709.07(A)(2). Vineyard

sought an exemption under R.C. 5709.07(A)(2), which exempts from taxation

“[h]ouses used exclusively for public worship, the books and furniture in them, and

the ground attached to them that is not leased or otherwise used with a view to profit

and that is necessary for their proper occupancy, use and enjoyment.”              As

contemplated by this statute, “ ‘public worship’ means the open and free celebration

or observance of the rites and ordinances of a religious organization.”         Faith

Fellowship Ministries at paragraph one of the syllabus.

       {¶11} Primary-Use Test. To qualify for the exemption set forth in R.C.

5709.07(A)(2), an applicant must demonstrate that property is used “to facilitate the

public worship” in a “principal, primary, and essential way.” Id. at paragraph two of

the syllabus. This “primary-use test” is not an “exclusive-use test.” Bishop of Roman

Catholic Diocese v. Kinney, 2 Ohio St.3d 52, 442 N.E.2d 764 (1982); Moraine Hts.

Baptist Church v. Kinney, 12 Ohio St.3d 134, 465 N.E.2d 1281 (1984). It requires an

examination of the quantity and quality of the use. Faith Fellowship Ministries at

437-438. Although incidental uses are not controlling, the exemption will be denied




                                          4
                     OHIO FIRST DISTRICT COURT OF APPEALS



for a building or a room that is primarily used for a nonexempt purpose. Bishop of

Roman Catholic Diocese at 53-54.

       {¶12} Evidence of Primary Use. At the hearing before the BTA, Vineyard

presented testimony from Jim Cochran, the Senior Associate Pastor of the church,

and Matthew Milthaler, the Senior Director of Student Ministries at the church.

According to these witnesses, the recreational area is not open for people to come in

off the street to shoot free throws or to play video games. Youths who belong to the

church or who are guests are invited to use the recreational and athletic equipment

before and after the worship services and bible-study sessions that take place in the

auditorium and the classrooms on Saturdays and Sundays. The recreational area is

also the location of regular Friday night events, including dance parties with “DJs”

and basketball-related competitions, which youths can attend for a small fee.

Trained volunteers and staff serving out the ministry of the church are present

during the recreational and sporting activities to interact with the youths.

       {¶13} The recreational area is used for a week each summer during a large

student conference involving worship, biblical teaching, and community service, and

periodically throughout the year for student retreats on issues such as sexuality.

Additionally, after the weekly worship service in the auditorium, youths in the junior

high program meet in small groups with an adult leader for 20 minutes in the open

recreational area.   A photograph introduced into evidence depicting junior high

youths meeting in a small group, however, showed other youths playing basketball in

the recreational area at the same time.

       {¶14} BTA’s Decision. The BTA found that the import of this testimony

demonstrated, as summarized by Vineyard, that the church uses this area and its

recreation activities “ ‘to invite [youth] to a cool and fun setting where the youth



                                           5
                    OHIO FIRST DISTRICT COURT OF APPEALS



pastors and the students who are already church members can meet them, relate to

them, have fun with them, and invite them into communal worship.’ ” The BTA did

not reject the claimed value of the facilities in accomplishing this purpose, but it

determined that the use was merely supportive of public worship.

                                     Analysis

       {¶15} Vineyard argues that the primary use of the area is public worship

because the recreational area brings the youths to the property for public worship

and it is therefore necessary for the use of the property for public worship. Vineyard

also contends that the recreational area, which is in the same building as exempt

areas and is used for weekly small group meetings, ministry work, and summer

retreats, is not like a separate recreational facility where the public can watch a

church sponsored team perform.

       {¶16} Recreational activity for the purpose of church recruitment or to

promote religious values is not primarily for public worship. We first address

Vineyard’s contention that recreational areas qualify for the tax exemption under

R.C. 5709.07(A)(2) because the recreational opportunities are necessary to the

creation of an atmosphere where students can be effectively encouraged to

participate in the public worship that takes place elsewhere on the property. This is

not a novel argument.

       {¶17} The BTA rejected this argument applying the analysis of the Supreme

Court in Moraine Hts. Baptist Church, 12 Ohio St.3d 134, 465 N.E.2d 1281, and the

numerous cases following Moraine Hts., including the BTA’s own decision, Grace

Chapel v. Levin, BTA No. 2007-K-835, 2010 Ohio Tax LEXIS 616 (May 4, 2010).

       {¶18} In Moraine Heights, the Supreme Court upheld the division of

property operated as a church camp into exempt and nonexempt sections. The



                                          6
                     OHIO FIRST DISTRICT COURT OF APPEALS



section containing the church’s chapel was exempted. Moraine Hts., 12 Ohio St.3d.

at 134, 465 N.E.2d 1281. The nonexempt section contained a dormitory, cabins, a

cafeteria with kitchen and dining facilities, a shower and restroom facility, a

swimming pool, a basketball court, a shuffleboard court, a shelter house, and open

recreation fields. Id. The property was used for camping programs during the week

and for retreats, picnics, and other social functions during the weekend. Id.

       {¶19} The church, much like Vineyard in this case, argued that the primary

use of the camp and its facilities was for public worship because the camp “create[d]

an atmosphere conducive to the worship of God.” Id. at 136. Despite the church’s

claim that the areas were “vital to the camp for the purpose of entertaining youth in

an atmosphere in which worship is the primary goal,” id. at 137, the Supreme Court

ultimately concluded that the BTA’s denial of the exemption was both reasonable

and lawful “[i]n view of the fact that the swimming pool, basketball and shuffleboard

courts, as well as the remainder of the appellant’s unimproved property constituting

the vast majority of the forty-nine acre church camp, are neither buildings used

exclusively for public worship, nor necessary for the proper occupancy, use and

enjoyment of the tax-exempt chapel.” Id.

       {¶20} The BTA followed Moraine Hts. in Grace Chapel to affirm the

commissioner’s denial of an exemption for facilities used for social and recreation

purposes even though the board accepted that those purposes provided the church

with “an alternative means by which to reach out to the individuals and draw them

into its ministry.” Grace Chapel, BTA No. 2007-K-835, 2010 Ohio Tax LEXIS 616 at

*17.

       {¶21} In Grace Chapel, the church’s facilities were to include areas for

recreation and athletics such as a volleyball court, a rock climbing wall, batting cages,



                                           7
                    OHIO FIRST DISTRICT COURT OF APPEALS



and a basketball court, as well as a game room, lounge, and computer lab. The BTA

recognized that the facilities were capable of a variety of types of uses and that the

facilities “may, at times, be used by [the church] to engage in worship.” Id. at *24.

But the board concluded that that “the design, function, and primary purpose of

these facilities” would “remain recreational/athletic” and not for public worship. Id.

at *24-25.

       {¶22} In sum, a recreational facility or area that is used for purposes of

church recruitment or to promote religious values is merely supportive of or

incidental to a church’s goal to promote worship. And an area used primarily for

recreational purposes does not meet the primary-use test for exemption under R.C.

5709.07(A)(2), even when that recreational use is supportive of religious purposes.

See Moraine Hts., supra; Grace Chapel, supra; Columbus Christian Ctr. v. Zaino,

10th Dist. Franklin No. 02AP-563, 2002-Ohio-7033, ¶ 15.

       {¶23} Evidence Supports BTA’s Primary-Use Determination. The record in

this case supports the BTA’s determination that the nonexempt area in the student

ministries building is used primarily for recreation and not for public worship. Part

of the area is designed exclusively for recreation, as the basketball posts and the

fencing around the basketball courts are not removable.        Moreover, the area is

regularly used for recreational purposes. The fact that this recreational area is

located within the same building as exempt property and that the area is at times

used for small group sessions, youth retreats, and the like, does not, as Vineyard

suggests, alter the application of the primary-use test.   See, e.g., Faith Fellowship

Ministries, 32 Ohio St.3d at 437, 513 N.E.2d 1340 (a cafeteria, sleeping rooms for

retreats, and a gymnasium were not exempt even though those areas were supportive

of public worship conducted in exempt portions of the same building).



                                          8
                    OHIO FIRST DISTRICT COURT OF APPEALS



                                     Conclusion

       {¶24} The BTA applied the correct legal analysis and, after weighing the

relevant evidence, determined that the nonexempt area was primarily used for

recreation and was merely supportive of public worship. In urging this court to

reverse, Vineyard is essentially asking this court to impermissibly reweigh the

evidence in the record. See Moraine Hts., 12 Ohio St.3d at 136, 465 N.E.2d 1281.

Because the BTA’s decision upholding the tax commissioner’s decision is both

reasonable and lawful, we overrule the assignment of error, and we affirm the BTA’s

decision.

                                                                    Judgment affirmed.


HILDEBRANDT and HENDON, JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                           9
