Canton Towers, Ltd. v. Board of Revision

Locher, J.,

dissenting. “The BTA is allowed ‘wide discretion in determining the weight to be given to evidence and the credibility of witnesses * * *.’ Cardinal Federal S. & L. Assn. v. Bd. of Revision (1975), 44 Ohio St. 2d 13 [73 O.O.2d 83], paragraph three of the syllabus. Nevertheless, R.C. 5717.04 permits reversal of a BTA decision when it is ‘unreasonable or unlawful.’ On direct appeal, this court has consistently reviewed the record before the BTA in order to determine whether there is evidence supporting the BTA’s decision. See, e.g., Cardinal Federal S. & L. Assn., supra; Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St. 2d 53, 58 [54 O.O.2d 191]; Ace Steel Baling v. Porterfield (1969), 19 Ohio St. 2d 137, 139 [48 O.O.2d 169]; Bd. of Revision v. One Euclid Co. (1968), 16 Ohio St. 2d 43, 46 [45 O.O.2d 325]; L. E. Shunk Latex Products, Inc., v. Evatt (1942), 140 Ohio St. 289, 292 [23 O.O.3d 495]; Bd. of Education v. Evatt (1940), 136 Ohio St. 283, 286 [16 O.O.3d 408]. Accordingly, the evidence before the BTA deserves a closer examination.” Youngstown Sheet & Tube Co. v. Bd. of Revision (1981), 66 Ohio St. 2d 398, 406 [20 O.O.3d 349] (Locher, J., dissenting).

My review of the facts in this case leads me to a conclusion opposite to that of the majority. Therefore, I dissent.

Both appraisers, Lemmon and Van Curen, agreed that this building was unique and would not have been built without a government subsidy. They also agreed that the “income approach” was the best method of appraisal. (See Ohio Adm. Code 5705-3-03[D] for this kind of investment property.)

The majority notes that both appraisers deemed the market data approach, which compares the appraised property with recent sales, to be unavailable. Nevertheless, Van Curen used market information and comparisons in order to make his income approach appraisal. In particular, he used market data to arrive at values for rental income and mortgage terms — including percent borrowed, duration and interest rate. The lower rental income decreased the cash flow; the higher interest rate decreased the present value of future income. The net effect of this was to decrease Van Curen’s valuation of the property.

Unfortunately, Van Curen’s result does not meet the constitutional “true value in money” standard, Section 2, Article XII of the Ohio Constitution, and its administrative definition. Ohio Adm. Code 5705-3-01 provides, in part:

“As used in rules 5705-3-01 to 5705-3-13 of the Administrative Code:

“(A) ‘True value in money’ or ‘true value’ means one of the following:

“(1) The fair market value or current market value of property and is the price at which property should change hands on the open market between *9a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having a knowledge of all the relevant facts;

“(2) The price at which property did change hands under the conditions described in section 5713.03 of the Revised Code, within a reasonable length of time either before or after the tax lien date, unless subsequent to the sale the property loses value due to some casualty or an improvement is added to the property.” (Emphasis added.)

At the heart of the “true value in money” standard is the consideration of what price an economically rational buyer would pay in the market place. “The best evidence of ‘true value in money’ of real property is an actual, recent sale of the property in an arm’s-length transaction. (State, ex rel. Park Investment Co., v. Bd. of Tax Appeals, 175 Ohio St. 410 [25 O.O.2d 432], approved and followed.)” Conalco v. Bd. of Revision (1977), 50 Ohio St. 2d 129 [4 O.O.3d 309], paragraph one of the syllabus. In the absence of the best evidence, however, an appraisal is an effective means of estimating true value. See Ohio Adm. Code 5705-3-03(D).

The BTA erred, therefore, by adopting Van Curen’s appraised value. He admitted, for example, that Canton Towers would not have been built if its income were limited to market or “economic” rents. It is self-contradictory, then, to compare this facility with non-subsidized apartments whose rents do not include all utilities and which are both larger and in better locations.

The majority’s reliance on Wynwood Apartments, Inc. v. Bd. of Revision (1979), 59 Ohio St. 2d 34 [13 O.O.3d 19], therefore, is misplaced. It is worth noting that in Wynwood and the cases on which this court based that decision, using the contract rent would have led to a lower valuation. See 59 Ohio St. 2d, at 36-38, footnote. Furthermore, this court described economic rent as “the rental warranted to be paid in the open real estate market based upon current rentals being paid for comparable space.” (Emphasis added.) 59 Ohio St. 2d, at 35. As mentioned above, this building is unique in its area. There is no “comparable space.” It is, therefore, impossible to calculate economic rent. Rather, the contract rent, which is practically guaranteed, and the actual mortgage terms, which specify interest less than the market because the risk is less, are the better means for estimating true value in money.

The decision of the BTA is, therefore, both unreasonable and unlawful. It is unreasonable because the board accepted a valuation based on an appraisal derived from comparisons in spite of the fact that the building is unique. The decision is unlawful because Van Curen’s appraisal failed to consider all relevant facts as required by the Ohio Administrative Code and the Constitution in order to determine the true value in money. In this case, the relevant facts are the actual values.

Accordingly, I would reverse the decision of the BTA.

Celebrezze, C.J., concurs in the foregoing dissenting opinion.