[Cite as Ohio Apt. Assn. v. Levin, 122 Ohio St.3d 1231, 2009-Ohio-3477.]




         OHIO APARTMENT ASSOCIATION ET AL., APPELLANTS, v. LEVIN,
                               TAX COMMR., APPELLEE.
   [Cite as Ohio Apt. Assn. v. Levin, 122 Ohio St.3d 1231, 2009-Ohio-3477.]
Taxation — Real property — Ohio Adm.Code 5703-25-10 and 5703-25-18 —
        Zangerle v. Evatt superseded by statute — Motion to dismiss denied.
      (No. 2009-0213 — Submitted June 2, 2009 — Decided July 22, 2009.)
             APPEAL from the Board of Tax Appeals, No. 2006-A-861.
                                ON MOTION TO DISMISS.
                                  __________________
        {¶ 1} This cause is pending before the court as an appeal from a decision
of the Board of Tax Appeals (“BTA”) issued in a rule-review proceeding brought
pursuant to R.C. 5703.14(C). The appellants challenge the constitutionality of a
classification of uses of real property set forth in Ohio Adm.Code 5703-25-18 and
5703-25-10. In adopting that classification, those rules incorporate an amendment
enacted by the General Assembly as part of comprehensive tax reform in 2005.
Am.Sub.H.B. No. 66, 126th General Assembly. Specifically, R.C. 319.302 as
amended limits the ten percent property-tax reduction to property that is “not
intended primarily for use in a business activity.” As they affect residential
apartments, the statute and the administrative rules distinguish between properties
improved with one- to three-family dwellings and properties improved with
dwellings for four or more families: the former enjoy the tax reduction, the latter
do not. The appellants allege that this distinction violates tax uniformity pursuant
to Section 2, Article XII of the Ohio Constitution and/or the Ohio Constitution’s
equal protection guarantee at Section 2, Article I.
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       {¶ 2} The Tax Commissioner has filed a motion to dismiss, which raises
four grounds for dismissing the appeal. We reject each contention and deny the
motion.
       {¶ 3} First, the commissioner relies on Zangerle v. Evatt (1942), 139
Ohio St. 563, 23 O.O. 52, 41 N.E.2d 369, to argue that the BTA’s decision may
not be appealed pursuant to R.C. 5717.04, because the BTA’s rule review is
quasi-legislative rather than quasi-judicial in character. We disagree. Although
the commissioner correctly recites the holding of Zangerle, he ignores the
amendments enacted by the General Assembly in 1976 that changed the nature of
rule review. Am.Sub.H.B. No. 920, 136 Ohio Laws, Part II, 3182. H.B. 920
superseded the holding of Zangerle because that bill (1) made the BTA a separate
state agency from the Tax Commissioner and the Department of Taxation, see
former R.C. 5703.02, id. at 3215-3216; (2) removed the former duties of property-
tax administration from the BTA, id. at 3215-3217, and vested them in a new
Department of Tax Equalization, see former R.C. 5715.01 et seq., id. at 3251-
3264; and (3) amended what is now R.C. 5703.14(C) to require that the party who
challenges the rule show injury and bear the burden of proving the rule to be
unreasonable. Id. at 3222. See Roosevelt Properties Co. v. Kinney (1984), 12
Ohio St.3d 7, 12 OBR 6, 465 N.E.2d 421 (entertaining an appeal from a BTA
decision in a rule-review proceeding without objection from the state). Because
Zangerle has been superseded by statute, it does not furnish grounds for dismissal.
       {¶ 4} Second, the commissioner contends that a claimant may not use
the rule-review proceeding at the BTA to challenge the constitutionality of a
statutory classification, particularly where no other claim is presented.     That
contention is mistaken because an unconstitutional classification in an
administrative rule makes that rule unreasonable. See Roosevelt Properties, 12
Ohio St.3d at 12-13, 12 OBR 6, 465 N.E.2d 421. We reject the commissioner’s
attempt to distinguish Roosevelt Properties, because we decline to endorse the




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view that an administrative rule could be constitutionally unreasonable but still
qualify as reasonable for purposes of R.C. 5703.14(C).
       {¶ 5} Third, the commissioner argues that a rule-review proceeding is
not ripe until a statutory classification has already been declared unconstitutional.
This contention is premised on the view that the constitutional issue itself may not
properly be the subject of the rule-review proceeding. We have just decided the
contrary, and that disposition forecloses the ripeness argument.
       {¶ 6} Fourth, the commissioner urges that the notice of appeal to this
court does not satisfy the standard for specifying constitutional error. See Castle
Aviation, Inc. v. Wilkins, 109 Ohio St.3d 290, 2006-Ohio-2420, 847 N.E.2d 420, ¶
33–41. We disagree. Unlike the notice in Castle Aviation, the notice of appeal in
this case explicitly identifies Ohio Adm.Code 5703-25-18 and 5703-25-10 as the
subject of its challenge and identifies the relevant provisions of the Ohio
Constitution by citing the article and section. Moreover, Ohio Adm.Code 5703-
25-18 explicitly sets forth the classification which is the subject of challenge
under both the Uniformity and Equal Protection Clauses. We hold that the notice
contains a sufficient specification of the uniformity claim, and accordingly there
is no basis for dismissing the appeal for failure to specify error. Because the
notice advances at least one cognizable claim, we need not decide at this time
whether the scope of the appeal encompasses equal protection claims as well.
       {¶ 7} For the reasons set forth, we deny the Tax Commissioner’s motion
to dismiss.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,    O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Calfee, Halter & Griswold, L.L.P., Mark I. Wallach, James F. Lang, and
Laura C. McBride, for appellants.




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       Richard Cordray, Attorney General, and Lawrence D. Pratt and Alan P.
Schwepe, Assistant Attorneys General, for appellee.
                          ______________________




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