concurring. I concur in the judgment. This is a classic case. The owner of the property sought a zoning change to a more valuable use than that permitted under present zoning law. The local governmental authority denied the change. At the same time, the local governmental taxing authority is seeking a tax valuation which is based upon the zoning use sought by the owner and denied to him by the zoning decision.
Section 2, Article XII of the Ohio Constitution, provides that land shall be “taxed by uniform rule according to- value.” In Cardinal Federal S. & L. Assn. v. Bd. of Revision (1975), 44 Ohio St. 2d 13, 18, 19, 336 N. E. 2d 433, Ohio law with respect to valuation of property for tax purposes was summarized as follows:
“In determining the value of property for the purpose of taxation, the tax assessor must take into consideration all factors which affect the value of the property. B. F. Keith Columbus Co. v. Bd. of Revision (1947), 148 Ohio St. 253, paragraph one of the syllabus; Western Industries v. Bd. of Revision (1960), 170 Ohio St. 340, 342; American Steel & Wire Co. of New Jersey v. Bd. of Revision (1942), 139 Ohio St. 388, 392.”
The question raised in the instant cause is whether the tax assessor may consider as a factor in appraising property evidence of a highest and best use, which use, under existing zoning regulations, is not lawfully permitted.
This is a case of first impression in this court. It can hardly be contended that it is fair, just or equitable for a property owner to be taxed upon a property use which is of greater value than that use which he can legally make of his property.
It is argued by the appellee that true value is market value and the test of market value is what a willing buyer is willing to pay to a willing seller. Thus the best evidence of the value of land, it has been said, is a sale price in an open market. This position is supported by the court’s holding in Masheter v. Kebe (1976), 49 Ohio St. 2d 148, 359 N.E. 2d 74, that:
*315“If, in the opinion of an expert appraisal witness, an informed, willing purchaser would be presently agreeable to pay more than an amount justified under existing zoning, such evidence is admissible because it reflects upon the fair market value of the property.”
A strong argument can be made for such rule when the issue is the amount of money to be paid by a political subdivision which is exercising its right of eminent domain over the property for a public use. Such a rule gives ail advantage to the landowner who is being compelled to give up his land involuntarily to the public agency. However, the reasoning and logic behind the rule in that kind of case are not persuasive in a case where the property owner is using his land for the highest use which is lawful and is being asked by the government to pay taxes on that same land at a value based upon a more valuable use which the government itself has denied to the landowner.
In Bd. of County Commrs. v. Thormyer (1959), 169 Ohio St. 291, 159 N. E. 2d 612, an appropriation case, which was distinguished in Masheter v. Kebe, supra, the court held in paragraph one of the syllabus that:
“In determining the value of land in an appropriation proceeding, the question to be determined is the worth of the property for any and all uses for which it may be suitable, including the most valuable uses to which the land can lawfully, reasonably and practically be adapted.” (Emphasis added.)
As noted above, there is a crucial difference between eminent domain cases and tax valuation cases. However, the principle expressed in Thormyer that, in determining the worth of property, uses to which the land can lawfully be adapted should be considered, is particularly fitting in determining the value of property for tax purposes where governmental subdivisions, by their actions, limit the uses which a property owner can make of his property and, thus, affect its value.
I concur in the judgment of the court herein. Any *316other result, in my opinion, would constitute a deprivation of .property without due process of law.
Hbbbert, J., concurs in the foregoing concurring opinion.