Olentangy Local School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision

[Cite as Olentangy Local School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2023-Ohio-3984.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

OLENTANGY LOCAL SCHOOL : JUDGES:
BOARD OF EDUCATION : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Appellant : Hon. Andrew J. King, J.
:
-vs- :
:
DELAWARE COUNTY BOARD OF : Case Nos. 23 CAH 01 0003
REVISION, ET AL. : 23 CAH 01 0004
:
Appellees : OPINION

CHARACTER OF PROCEEDING: Appeals from the Ohio Board of Tax
Appeals, Case Nos. 2022-1277 and
2022-1661

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: November 2, 2023

APPEARANCES:

For Appellant For Board of Revision and Auditor

MARK H. GILLIS MICHAEL P. CAVENAUGH
KELLEY A. GORRY 145 North Union Street, 3rd Floor
5747 Perimeter Drive, Suite 150 P.O. Box 8006
Dublin, OH 43017 Delaware, OH 43015

For Caldera House For Hidden Springs & Dooley's

MATTHEW S. ZEIGER GARY B. GITLITZ
LAUREN P. RUBIN 5003 Horizons Drive, Suite 100
3500 Huntington Center Columbus, OH 43220
41 South High Street
Columbus, OH 43215 SHERI BURKE
3895 Stoneridge Lane
For Ohio Tax Commissioner Dublin, OH 43017

DAVID A. YOST
30 East Broad Street, 17th Floor
Columbus, OH 43215
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 2

King, J.

{¶ 1} Appellant, Olentangy Local School District Board of Education, appeals the

December 29, 2022 decision and order (Case No. 2022-1661) and the January 4, 2023

decision and order (Case No. 2022-1277) of the Ohio Board of Tax Appeals ("BTA"),

dismissing its appeals. Appellees are the Delaware County Board of Revision, the County

Auditor, and the Ohio Tax Commissioner, and Caldera House, LLC (Case No. 2022-1661)

and Hidden Springs Development and Dooley's Orchard Limited Partnership (Case No.

2022-1277). We reverse the Board of Tax Appeals in each case.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2022, Hidden Springs filed a complaint with the board of revision seeking

a reduction of its property value to $2,900,000 (Case No. 2022-1277) for tax year 2021.

The school board sought to retain the original value of $3,422,800. A hearing was held

on June 21, 2022. On July 26, 2022, the board of revision reduced the property's value

to $2,900,000.

{¶ 3} Also in 2022, the school board filed a complaint with the board of revision

seeking an increase in the value of property owned by Caldera House (Case No. 2022-

1661) for tax year 2021. The school board sought a $27,500,000 valuation. A hearing

was held on August 29, 2022. On September 15, 2022, the board of revision increased

the value to the requested amount for tax year 2021. On September 21, 2022, the board

of revision issued a "corrected" decision and retained the property's original valuation of

$14,100,000 for tax year 2021.

{¶ 4} While these cases were pending, the General Assembly passed 2022

Am.Sub.H.B. No. 126 ("H.B. 126"), amending R.C. 5717.01 which now precludes a school
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 3

board's ability to appeal a property valuation decision on property it does not own or lease.

The effective date of the act was July 21, 2022.

{¶ 5} The school board appealed both decisions to the BTA after July 21, 2022.

By decisions and orders filed December 29, 2022 (Case No. 2022-1661) and January 4,

2023 (Case No. 2022-1277), the BTA dismissed the appeals under its prior decision in

North Ridgeville City Schools Board of Education v. Lorain County Board of Revision,

BTA No. 2022-1152, 2022 WL 16725740 (Oct. 31, 2022). In North Ridgeville, the BTA

concluded R.C. 5717.01, as amended by H.B. 126, effective July 21, 2022, precluded a

board of education from appealing a board of revision's decision on the valuation of

property the board of education did not own or lease. Because North Ridgeville filed the

appeals after July 21, 2022 and did not own or lease the subject properties, the BTA

found it lacked jurisdiction to entertain the appeals filed by the school board.

{¶ 6} The school board filed an appeal in each case with the following identical

assignments of error:

I

{¶ 7} "THE DECISION IS UNREASONABLE AND UNLAWFUL BECAUSE THE

BTA RELIED SOLELY UPON ITS ERRONEOUS DECISION IN NORTH RIDGEVILLE

CITY SCHOOLS BOARD OF EDUCATION V. LORAIN CTY. BD. OF REVISION, ET AL.,

BTA NO. 2022-1152, 2022 OHIO TAX LEXIS 2518 (OCT. 31, 2022) ("NORTH

RIDGEVILLE")."

II
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 4

{¶ 8} "THE DECISION IS UNREASONABLE AND UNLAWFUL BECAUSE IN

NORTH RIDGEVILLE, THE BTA IGNORED THE PLAIN MEANING OF UNAMBIGUOUS

WORDS THE GENERAL ASSEMBLY USED IN THE REVISIONS TO R.C. 5717.01."

III

{¶ 9} "THE BTA COMMITTED LEGAL ERROR IN NORTH RIDGEVILLE BY

FAILING TO RECOGNIZE THAT THE GENERAL ASSEMBLY'S USE OF THE PHRASE

'A SUBDIVISION THAT FILES' IN R.C. 5717.01 AS THE OPERATIVE LANGUAGE IN

PRESENT TENSE APPLIES PROSPECTIVELY ONLY [TO] PRESENT AND FUTURE

ACTIONS AND DOES NOT INCLUDE PAST ACTIONS."

IV

{¶ 10} "THE DECISION IS UNREASONABLE AND UNLAWFUL BECAUSE THE

BTA FAILED TO APPLY THE RULES OF GRAMMAR AND VIOLATED THE RULES OF

STATUTORY CONSTRUCTION IN NORTH RIDGEVILLE IN INTERPRETING THE

PRESENT TENSE LANGUAGE IN R.C. 5717.01 AS INCLUDING ANY COMPLAINTS

FILED PRIOR TO THE EFFECTIVE DATE OF THE LEGISLATION."

V

{¶ 11} "THE BTA COMMITTED LEGAL ERROR IN NORTH RIDGEVILLE AFTER

CORRECTLY DETERMINING THAT THE REVISIONS TO R.C. 5717.01 ARE CLEAR

AND UNAMBIGUOUS BUT THEN UTILIZING THE GENERAL ASSEMBLY'S

PERCEIVED LEGISLATIVE INTENT AS SUPPORT FOR ITS INTERPRETATION OF

THE REVISIONS DIRECTLY INCONSISTENT WITH THE ACTUAL WORDS USED BY

THE GENERAL ASSEMBLY."

VI
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 5

{¶ 12} "THE BTA COMMITTED LEGAL ERROR IN NORTH RIDGEVILLE BY

REWRITING THE LANGUAGE OF THE REVISIONS TO R.C. 5717.01 AS FOLLOWS:

'EXCEPT THAT A SUBDIVISION WITH RESPECT TO PROPERTY THE SUBDIVISION

DOES NOT OWN OR LEASE MAY NOT APPEAL THE DECISION OF THE BOARD OF

REVISION.' "

VII

{¶ 13} "THE DECISION IS UNREASONABLE AND UNLAWFUL AS THE BTA

FAILED TO RECOGNIZE IN NORTH RIDGEVILLE THAT THE GENERAL ASSEMBLY'S

RETENTION OF THE FORMER APPEAL RIGHT IN R.C. 5717.01 FOR ANY 'BOARD,

LEGISLATIVE AUTHORITY, PUBLIC OFFICIAL' AUTHORIZED TO FILE COMPLAINTS

PURSUANT TO R.C. 5715.19 IN THE REVISIONS TO R.C. 5717.01 PRESERVES THE

EXISTING APPEAL RIGHTS OF THOSE ENTITIES FOR ANY COMPLAINT FILED

PRIOR TO THE EFFECTIVE DATE OF THE REVISIONS."

VIII

{¶ 14} "THE BTA COMMITTED LEGAL ERROR IN NORTH RIDGEVILLE BY

CONCLUDING THAT THE REVISIONS TO R.C. 5717.01 DID NOT INCORPORATE

THE NEW DEFINITIONS OF 'SUBDIVISION' [OR RATHER 'LEGISLATIVE AUTHORITY

OF A SUBDIVISION'], 'ORIGINAL COMPLAINT' AND 'COUNTER-COMPLAINT' FROM

REVISED R.C. 5715.19, EFFECTIVE FOR TAX YEAR 2022, WHEN THE PLAIN

MEANING OF THE LANGUAGE USED BY THE GENERAL ASSEMBLY IN THE

REVISIONS TO R.C. 5717.01 CLEARLY AND UNAMBIGUOUSLY INCORPORATES

THESE DEFINITIONS."

IX
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 6

{¶ 15} "THE DECISION IS UNREASONABLE AND UNLAWFUL BECAUSE THE

BTA HELD IN NORTH RIDGEVILLE THAT THE NEW DEFINITIONS IN R.C. 5715.19,

EFFECTIVE FOR TAX YEAR 2022, HAD NO NEW MEANING WHEN THE GENERAL

ASSEMBLY RETAINED THE TERMS 'BOARD', 'LEGISLATIVE AUTHORITY', 'PUBLIC

OFFICIAL', AND 'COMPLAINTS' FROM FORMER R.C. 5717.01 IN THE REVISIONS TO

R.C. 5717.01."

X

{¶ 16} "THE BTA ERRED IN NORTH RIDGEVILLE IN CONCLUDING THAT

'JURISDICTION IS NOT CONFERRED ON APPEAL MERELY BECAUSE THE

UNDERLYING CAUSE OF ACTION WAS VALIDLY FILED' WHEN APPELLANT BOARD

OF EDUCATION NEVER ARGUED THAT THE RIGHT TO APPEAL WAS VESTED IN A

VALIDLY FILED COMPLAINT."

XI

{¶ 17} "THE BTA ERRED IN NORTH RIDGEVILLE BY COMPARING THE

REVISIONS TO R.C. 5717.01 TO THE REVISIONS TO 5717.04 BECAUSE THE

LANGUAGE THE GENERAL ASSEMBLY USED IN THE REVISIONS TO 5717.04 IS

NOT EVEN REMOTELY COMPARABLE TO THE WORDS THE GENERAL ASSEMBLY

USED IN THE REVISIONS TO R.C. 5717.01."

{¶ 18} All of the assignments of error reduce down to a single issue: Did the BTA

properly apply the amended version of R.C. 5717.01 in finding the effective date, July 21,

2022, precluded school boards from filing appeals to the BTA involving property it did not

own or lease after that date even though the original complaint and/or counter-complaint

was filed prior to the effective date? We answer in the negative. We note that our
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 7

colleagues from the Third and Tenth District have reviewed this issue. They too have

determined that the BTA erred in its decision. Marysville Exempted Village School Board

of Education v. Union County Board of Revision, 3d Dist. Union No. 14-23-03, 2023-Ohio-

2020, 218 N.E.3d 217; New Albany-Plain Local Schools Boards of Education v. Franklin

County Board of Revision, 10th Dist. Franklin Nos. 22AP-732, 22AP-733, 22AP-738,

22AP-743, 22AP-744, 22AP-746, 22AP-747, 22AP-748, 22AP-749, 22AP-750, 22AP-

751, 2023-Ohio-3806.

{¶ 19} We now turn to our analysis.

{¶ 20} In O'Keeffe v. McClain, 166 Ohio St.3d 25, 2021-Ohio-2186, 182 N.E.3d

1108, ¶ 12, the Supreme Court explained the applicable standard of review as follows:

We review BTA decisions to "determine whether they are reasonable

and lawful." Grace Cathedral, Inc. v. Testa, 143 Ohio St.3d 212, 2015-Ohio-

2067, 36 N.E.3d 136, ¶ 16, citing R.C. 5717.04. "The standard for

conducting that review ranges from abuse of discretion, which applies when

we are asked to reverse the BTA's determination regarding the credibility of

witnesses, to de novo review of legal issues." Id.

{¶ 21} Because these appeals turn on the statutory interpretation of amended R.C.

5717.01, our review is de novo. Progressive Plastics, Inc. v. Testa, 133 Ohio St.3d 490,

2012-Ohio-4759, 979 N.E.2d 280, ¶ 15 ("A dispute over the meaning of statutes presents

a question of law, and our review in that regard is not deferential but de novo"). If we find

the BTA's decision to be "reasonable and lawful" we shall affirm, if we find the decision to
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 8

be "unreasonable or unlawful" we shall reverse and vacate the decision or modify it. R.C.

5717.04.

{¶ 22} We begin by recalling that when evaluating the meaning of a statute, our

task is to determine the legislative intent. State v. Hollingshead, 5th Dist. Muskingum No.

CT2022-0032, 2023-Ohio-1714, 214 N.E.3d 1233, ⁋ 15, quoting Electronic Classroom of

Tomorrow v. Ohio Department of Education, 154 Ohio St.3d 584, 2018-Ohio-3126, 118

N.E.3d 907. ⁋ 11. The best way to determine this intent is to examine the text passed by

the legislature. To avoid misconstruing the legislature, we usually consider the enactment

or statute as a whole, rather than piecemeal. Look Ahead America v. Stark County Board

of Elections, 5th Dist. Stark No. 2022-CA-00152, 2023-Ohio-249, ¶ 21. And when

evaluating the legislation at issue, we seek to give the text its ordinary meaning. Id. We

now to turn to the statute and the act amending it.

{¶ 23} H.B. 126, effective July 21, 2022, contained three sections. Section 1

amended three statutes: R.C. 4503.06, R.C. 5715.19, and R.C. 5717.01; Section 2

repealed the existing versions of those statutes; and Section 3 provided a time for when

certain amendments to R.C. 5715.19 were to be applied. The amendment to R.C.

5715.19, except for subsection (I), "applies to any original complaint or countercomplaint,

as those terms are defined in that section, filed for tax year 2022 or any tax year

thereafter." 2022 Am.Sub.H.B. No. 126, Section 3(A).

{¶ 24} The statute at issue is R.C. 5717.01. Original valuation complaints are filed

with the board of revision under R.C. 5715.19; R.C. 5717.01 governs appeals from the

board of revision to the BTA. It is undisputed the amendments became effective on July

21, 2022, and the appeals in these cases were filed after the effective date. The issue is
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 9

whether the amendments preclude the school board from filing the appeals to the BTA,

given that the original complaints and counter-complaints were filed before July 21, 2022,

but the appeals to the BTA were filed after the effective date.

{¶ 25} Prior to July 21, 2022, R.C. 5717.01 stated: "Such an appeal may be taken

by the county auditor, the tax commissioner, or any board, legislative authority, public

official, or taxpayer authorized by section 5715.19 of the Revised Code to file complaints

against valuations or assessments with the auditor." The amendment placed a comma

after "auditor" and added: "except that a subdivision that files an original complaint or

counter-complaint under that section with respect to property the subdivision does not

own or lease may not appeal the decision of the board of revision with respect to that

original complaint or counter-complaint." Therefore, a school board, as a subdivision,

who does not own or lease the property in question, can no longer lawfully file an appeal

with the BTA.

{¶ 26} In the appeals sub judice, the school board argues the BTA's decision in

North Ridgeville, the basis of the decisions, was an erroneous interpretation and a

misapplication of amended R.C. 5715.19 and 5717.01. We agree.

{¶ 27} In North Ridgefield, the original valuation complaint was filed before July 21,

2022, on property the school board did not own or lease. Following a decision by the

board of revision, the school board filed an appeal, but after the effective date of the

amendment. The BTA dismissed the appeal for lack of jurisdiction because the school

board did not own or lease the property and was therefore precluded from filing an appeal

by operation of the amended language. The BTA examined the legislative history of the

amended language and concluded the effective date was July 21, 2022, stressing "our
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 10

holding is entirely based on the straightforward application of an unambiguous law."

North Ridgefield at *3. The BTA noted, "strict compliance with R.C. 5717.01 is essential

to vest jurisdiction with this board, and since the record demonstrates that this appeal

was filed by a party not authorized to do so, we must conclude that the Board of Tax

Appeals does not have jurisdiction to consider the merits of the instant matter."

(Emphasis sic.) Id. at *5.

{¶ 28} Upon a de novo review, we find the BTA's decision to be erroneous. The

Tenth District observed that the right to appeal under R.C. 5717.01 was no longer

unqualified. New Albany-Plain Local Schools Boards of Education v. Franklin County

Board of Revision, 10th Dist. Franklin Nos. 22AP-732, 22AP-733, 22AP-738, 22AP-743,

22AP-744, 22AP-746, 22AP-747, 22AP-748, 22AP-749, 22AP-750, 22AP-751, 2023-

Ohio-3806, ¶ 28-30. After the repeal and re-enactment of R.C. 5717.01, school boards

are prohibited from filing appeals on original complaints or counter-complaints regarding

property the boards neither own or rent. Id.

{¶ 29} In analyzing this change, the Tenth District quoted and considered this

principle at ¶ 32: " ' "When an existing statute is repealed and a new statute upon the

same subject enacted to include an amendment, as in this case, it is presumed the

Legislature intended to change the effect and operation of law to the extent of change in

the language thereof." ' " Greenville Law Library Association v. Village of Ansonia, 33

Ohio St.2d 3, 6, 292 N.E.2d 880 (1973), quoting Malone v. Industrial Commission, 140

Ohio St. 292, 299, 43 N.E.2d 266, 270 (1942). Because the General Assembly removed

the right to appeal from a school board that "files an original complaint or counter-

complaint * * * with respect to that original complaint or counter-complaint," the Tenth
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 11

District concluded the right to appeal from complaints filed under the prior enactment was

unaffected by the revision. New Albany at ¶ 35.

{¶ 30} That analysis leads to the same result here. The complaints from which the

appeals were sought were filed under the prior version of R.C. 5715.19. Neither the

codified nor the uncodified language deemed complaints filed under the prior version of

the statute as either an "original complaint" or a "counter-complaint." Consequently, the

new limiting language in R.C. 5717.01 does not apply to those previously filed cases.

{¶ 31} The Third District reached the same result, but through a different analysis.

It concluded that the "BTA misinterpreted the plain language of the statute and overlooked

certain principles of statutory interpretation that impact the applicability of the new R.C.

5717.01" to the school board's appeals. Marysville Exempted Village School Board of

Education v. Union County Board of Revision, 3d Dist. Union No. 14-23-03, 2023-Ohio-

2020, 218 N.E.3d 217, ¶ 28.

{¶ 32} The Marysville panel noted the amended language was written in the

present tense. Id. at ¶ 29. The amendment's limiting language states: "except that a

subdivision that files an original complaint or counter-complaint under that section with

respect to property the subdivision does not own or lease may not appeal the decision of

the board of revision with respect to that original complaint or counter-complaint."

(Emphasis added.) Under R.C. 1.42: "Words and phrases shall be read in context and

construed according to the rules of grammar and common usage." We concur with the

Marysville panel's analysis at ¶ 30-31:
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 12

If the language used in the newly enacted prohibition on appeals was

phrased in the past tense, such as "filed" or "has filed", that may have

demonstrated a legislative intent that the amended statute be applied to

appeals stemming from complaints or counter-complaints filed prior to the

effective date of the statute. In the absence of such past-tense verbiage,

however, the use of the present tense "files" indicates an intention that

statute only be applied prospectively.

It is also critical to note that the indisputably present-tense phrasing

used in the amendment (i.e. "a subdivision that files") is specifically tied by

the terms of the statute to the filing of a complaint or counter-complaint, not

to the filing of an appeal. Had the amended statute made the filing of an

appeal the operative act upon which the new prohibition on appeals was

conditioned, the BTA's decision might have had merit. (Emphasis sic.)

{¶ 33} The Marysville panel then looked "to established legal principles for

guidance on the issue of the statute's applicability to the instant case." Id. at ¶ 32. Under

R.C. 1.48: "A statute is presumed to be prospective in its operation unless expressly made

retrospective." Again, we concur with the Marysville panel's analysis at ¶ 35-36:

In the case before us, the H.B. 126 version of R.C. 5717.01 does not

expressly mention retroactivity. Put another way, there is no plain reference

whatsoever in the amended statute to its applicability to appeals filed prior

to the effective date of the statute or, as is the case here, to appeals in
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 13

pending actions. The General Assembly's failure to include such language

means, pursuant to the authority cited above, that the amended version of

R.C. 5717.01 can only be applied prospectively.

Accordingly, given the use of the present tense in the statute and

absent any express evidence of intended retroactivity and/or applicability to

previously pending complaints, we find that the use of the language "a

subdivision that files an original complaint or counter-complaint" signifies a

legislative intent that the amended statute be applied prospectively to

appeals stemming from complaints filed after the July 21, 2022 effective

date of the new statute, as opposed to prohibiting appeals from complaints

that were filed prior to that date. (Emphasis sic.)

{¶ 34} This conclusion is also bolstered by R.C. 1.48, which requires us to

presume that statutes apply prospectively. If we were to disregard both the manner in

which the General Assembly repealed and replaced R.C. 5717.01 and the language it

used in its amendments, then we must construe the act as to avoid improper retroactivity.

Absent a legislative statement to the contrary, we are required to presume prospective

application. State v. Cook, 83 Ohio St.3d 404, 410, 700 N.E.2d 570. Here, there is no

legislative statement that would indicate retroactivity.

{¶ 35} In North Ridgefield, the BTA noted under Section 3 of H.B. 126, the General

Assembly provided a different effective date for some of the amendments to R.C.

5715.19, and then reasoned the following: "If the General Assembly sought for the

enactment to affect appeals beginning with tax year 2022, it could have done so. The
Delaware County, Case Nos. 23 CAH 01 0003 & 23 CAH 01 0004 14

General Assembly's exclusion of R.C. 5717.01 from Section 3 demonstrates the intent for

the changes to be operational on the effective date of the legislation." North Ridgefield

at *3. But the General Assembly would have no reason to provide an alternative start

date for R.C. 5717.01 given that the amended language refers to present tense filings,

i.e., anything filed after the effective date.

{¶ 36} Upon review, we find the BTA's decisions to be unlawful. The amended

language in R.C. 5717.01 does not apply to the school board's appeals filed in these

cases. The valuation complaints and counter-complaints were filed prior to the effective

date of July 21, 2022; therefore, the school board is not precluded from appealing the

decisions on those valuations.

{¶ 37} Assignments of Error I, II, III, IV, VIII, and IX are granted. The remaining

assignments or error are moot.

{¶ 38} The decisions and orders of the Ohio Board of Tax Appeals are hereby

reversed, and the matters are remanded for further proceedings.

By King, J.

Gwin, P.J. and

Wise, J. concur.