Westerville City School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision

[Cite as Westerville City School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1567.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

WESTERVILLE CITY SCHOOL JUDGES:
DISTRICT BOARD OF EDUCATION Hon. John W. Wise, P.J.
Hon. Craig R. Baldwin, J.
Plaintiff-Appellant Hon. Andrew J. King, J.

-vs- Case No. 23 CAE 09 0053

DELAWARE COUNTY BOARD OF
REVISION, ET AL. OPINION

Defendants-Appellees

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 23 CV F 06 0361

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 23, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MARK H. GILLIS Advenir MOB @ Westerville LLC
KELLEY A. GORRY c/o CT Corporation System
Rich & Gillis Law Group, LLC 4400 Easton Commons Way, Ste. 125
5747 Perimeter Drive, Suite 150 Columbus, Ohio 43219
Dublin, Ohio 43017

For Appellees BOR and Auditor

MICHAEL P. CAVANAUGH
Assistant County Prosecutor
145 North Union Street, 3rd Floor
P. O. Box 8006
Delaware, Ohio 43015

Baldwin, J.
Delaware County, Case Nos. 23 CAE 09 0053 2

{¶1} Plaintiff-Appellant Westerville City School District Board of Education

appeals the decision of the Delaware County Court of Common Pleas dismissing its

Complaint challenging the 2022 tax value of certain real property.

{¶2} Defendants-Appellees are Delaware County Auditor, Delaware County

Board of Revision, and Advenir MOB @ Westerville LLC (“Property Owner”).

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} In 2022, Westerville City School District Board of Education filed an original

valuation Complaint with the Delaware County Board of Revision for tax year 2022,

challenging the true value of certain real property and seeking an increase in the value of

properties owned by the Property Owner Appellee herein.

{¶5} The Board of Revision did not hold a hearing on the Board of Education's

Complaint and issued a decision dismissing the Board of Education's complaint “due to

lack of subject matter jurisdiction” for noncompliance with R.C. §5715.19(A)(6)(a)(i).

{¶6} The Board of Education appealed this decision to the Delaware County

Common Pleas Court as an administrative appeal pursuant to R.C. §2506.01.

{¶7} Shortly after commencing its appeal to the Common Pleas Court, the Board

of Education moved the court to stay its appeal based on an action pending before the

Board of Tax Authority in a related appeal by a third-party taxpayer complainant, and a

declaratory judgment action pursuant to R.C. Chapter 2721 pending in the Franklin

County Common Pleas Court.

{¶8} Appellee Property Owner filed a Motion to Dismiss, arguing a lack of

jurisdiction.
Delaware County, Case Nos. 23 CAE 09 0053 3

{¶9} The trial court denied Appellant's motion for a stay and granted the Property

Owner’s motion to dismiss, finding that Appellant lacks statutory standing to file an appeal

with the Common Pleas Court under R.C. §2506.01.

{¶10} Appellant Westerville City School District Board of Education filed an appeal

with the following assignments of error:

ASSIGNMENTS OF ERROR

{¶11} “I. THE DELAWARE COUNTY COMMON PLEAS COURT ERRED IN

HOLDING THAT R.C. 2506.01 DOES NOT CREATE AN INDEPENDENT RIGHT OF

APPEAL IN DIRECT CONTRAVENTION OF THE PLAIN LANGUAGE OF THE

STATUTE AND SUPREME COURT PRECEDENT.

{¶12} “II. THE DELAWARE COUNTY COMMON PLEAS COURT COMMITTED

LEGAL ERROR IN CITING JRB HOLDINGS, HAMER, AND NKANGINIEME AS

SUPPORT FOR ITS HOLDING THAT R.C. 2506.01 DOES NOT CREATE AN

INDEPENDENT STATUTORY RIGHT OF APPEAL.

{¶13} “III. THE DELAWARE COUNTY COMMON PLEAS COURT ERRED IN

HOLDING THAT THE BOARD OF EDUCATION LACKED STATUTORY STANDING TO

APPEAL PURSUANT TO R.C. 2506.01.”

I., II., III.

{¶14} The issue before this Court is whether the Delaware County Common Pleas

Court erred in holding that a board of education lacks statutory authority to appeal a

decision of a county board of revision to the common pleas court as an administrative

appeal pursuant to R.C. §2506.01.

Statutory Background
Delaware County, Case Nos. 23 CAE 09 0053 4

{¶15} This appeal presents an issue of statutory construction occasioned by the

passage of H.B.126, which took effect on July 21, 2022. H.B. 126 imposed severe

restrictions on the participation of boards of education in ad valorem real property tax

proceedings and enacted a series of new procedural and substantive requirements for

boards of education filing valuation complaints. See R.C. §5715.19(A)(6). Among the

most severe of the new restrictions, the General Assembly eliminated the right of boards

of education (and other public entities and political subdivisions authorized to participate

in board of revision cases) to appeal decisions of boards of revision to the Board of Tax

Appeals (“BTA”) pursuant to R.C. §5717.01.

{¶16} Previously, R.C. §5717.01 allowed boards of education to appeal board of

revision decisions to the BTA:

An appeal from a decision of a county board of revision may be

taken to the board of tax appeals .... 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.

{¶17} In its relevant part, the revisions to R.C. §5717.01 read:

An appeal from a decision of a county board of revision may be taken

to the board of tax appeals *** 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 again valuation or assessments with the auditor, except that
Delaware County, Case Nos. 23 CAE 09 0053 5

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. R.C. §5717.01, amended by H.B. 126.

{¶18} It is undisputed that H.B. 126's elimination of a board of education's right to

appeal to the BTA applies to boards of education filing "original complaints" and "counter-

complaints" as those terms are now defined by newly enacted R.C. §5715.19 after the

effective date of H.B. 126.

{¶19} It is also undisputed that H.B. 126 did not amend R.C. §5717.05 which

provides an additional avenue for an appeal of a board of revision decision to the county

common pleas court "as an alternative to the appeal provided for in section 5717.01" to

the BTA "by the person in whose name the property is listed or sought to be listed for

taxation" (i.e. the property owner). See R.C. §5717.05. The General Assembly has not

amended R.C. §5715.05 since its enactment in 1989. See R.C. §5717.05.

{¶20} Appellant herein concedes that prior to the amendment of R.C. §5717.01

by H.B. 126, the Board of Education did not have a statutory right to appeal a decision of

a board of revision to the common pleas court pursuant to R.C. §2506.01 because R.C.

§2506.01(C) specifically provides that an appeal is not available from a "decision from

which an appeal is granted by *** statute to a higher administrative authority if a right to

a hearing on appeal is provided ***” and because an appeal to the BTA pursuant to R.C.

§5717.01 routinely provides for a hearing on appeal, R.C. §5717.01 precluded an appeal

under R.C. §2506.01. Appellant argues, however, that when H.B. 126 removed the Board

of Education's right of appeal to the BTA pursuant to R.C. §5717.01, it opened up an
Delaware County, Case Nos. 23 CAE 09 0053 6

avenue for the Board of Education to appeal to the Common Pleas Court pursuant to R.C.

§2506.01.

Standing

{¶21} It is well established that before an Ohio court can consider the merits of a

legal claim, the person seeking relief must establish standing to sue. Ohio Contractors

Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994).

{¶22} “The right to appeal an administrative decision is neither inherent nor

inalienable; to the contrary, it must be conferred by statute.” Midwest Fireworks Mfg. Co.

v. Deerfield Twp. Bd. of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894, 897

(2001), citing Roper v. Bd. of Zoning Appeals, Richfield Tp., Summit Cty., 173 Ohio St.

168, 173, 180 N.E.2d 591 (1962).

{¶23} “Because one cannot appeal an administrative order absent statutory

authority, the trial court has no jurisdiction to hear a case unless authority to appeal is

granted by statute.” Alesi v. Warren Cty. Bd. of Commrs, 12th Dist. Warren Nos. CA2013-

12-123, CA2013-12-124, CA2013-12-127, CA2013-12-128, CA2013-12-131, and

CA2013-12-132, 2014-Ohio-5192, 24 N.E.3d 667, ¶17. Therefore, standing is a

jurisdictional prerequisite that cannot be waived. Id.

{¶24} “The burden of proof to establish standing lies with the party seeking to

appeal and therefore that party must ensure that the record supports his or her claim of

standing.” Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist. Athens

Nos. 12CA32 thru 12CA35, 2013-Ohio-5610, ¶ 20; Kurtock v. Cleveland Bd. of Zoning

Appeals, 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, ¶10; Alexis Entertainment,

L.L.C. v. Toledo, 6th Dist. Lucas No. L-13-1028, 2013-Ohio-3946, 2013 WL 5210309, ¶
Delaware County, Case Nos. 23 CAE 09 0053 7

9, citing Kraus v. Put-In-Bay Tp. Bd. of Zoning & Appeals, 6th Dist. Ottawa No. OT-04-

011, 2004-Ohio-4678, 2004 WL 1949428, ¶12.

{¶25} Whether a party has established standing to bring an action before the court

is a question of law, which we review de novo. Moore v. Middletown, 133 Ohio St.3d 55,

2012-Ohio-3897, 975 N.E.2d 977, ¶ 20, citing Cuyahoga Cty. Bd. of Commrs. v. State,

112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

Analysis

{¶26} The cardinal rule of statutory construction requires a court to first look at

the specific language of the statute itself and, if the meaning of the statute is unambiguous

and definite, further interpretation is not necessary and a court must apply the statute as

written. State v. Jordan, 89 Ohio St.3d 488, 492, 733 N.E.2d 601 (2000), quoting State

ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660

N.E.2d 463 (1996). Ambiguity exists only if the language of a statute is susceptible of

more than one reasonable interpretation, and the facts and circumstances of a case do

not permit a court to read ambiguity into a statute. Dunbar v. State, 136 Ohio St.3d 181,

2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16. “ ‘[W]here the language of a statute is clear and

unambiguous, it is the duty of the court to enforce the statute as written, making neither

additions to the statute nor subtractions therefrom.’ ” State v. Knoble, 9th Dist. Lorain No.

08CA009359, 2008–Ohio–5004, ¶ 12, quoting Hubbard v. Canton City School Bd. of

Edn., 97 Ohio St.3d 451, 2002–Ohio–6718, 780 N.E.2d 543, ¶ 14. “Thus, inquiry into

legislative intent, legislative history, public policy, the consequences of an interpretation,

or any other factors identified in R.C. 1.49 is inappropriate absent an initial finding that
Delaware County, Case Nos. 23 CAE 09 0053 8

the language of the statute is, itself, capable of bearing more than one meaning.” Dunbar

at ¶ 16.

{¶27} “It is a basic tenet of statutory construction that ‘the General Assembly is

not presumed to do a vain or useless thing, and that when language is inserted in a statute

it is inserted to accomplish some definite purpose.’ ” State v. Wilson, 77 Ohio St.3d 334,

336, 673 N.E.2d 1347 (1997), quoting State ex rel. Cleveland Elec. Illum. Co. v. Euclid,

169 Ohio St. 476, 479, 159 N.E.2d 756 (1959); See also New Albany-Plain Local Schools

Bd. of Education v. Franklin Cnty. Bd. of Revision, 10th Dist. No. 22AP-732, 2023-Ohio-

3806, 226 N.E.3d 1035, ¶ 35.

{¶28} As set forth above, revised R.C. §5717.01 provides that school boards of

education are prohibited from filing appeals from a decision by the board of revision with

the BTA regarding property the school boards neither own nor lease. Further, the

legislature made no changes to R.C. §5717.05 which allows an appeal by the property

owner from the board of revision to the common pleas court.

{¶29} We find no ambiguity in either R.C. §5717.01 or R.C. §5717.05.

{¶30} Appellants concede that they no longer have a right to appeal to the BTA,

but argue instead that because of said changes, they now have a right to appeal to the

common pleas court under R.C. §2506.01.

{¶31} R.C. Chapter 5717 does provide a right to appeal to the common pleas

court under R.C. §5717.05, however this right is granted only to property owners, not

boards of education.
Delaware County, Case Nos. 23 CAE 09 0053 9

{¶32} R.C. Chapter 5717 could not be clearer in expressing the intent that the

right to appeal to the common pleas court under R.C. §5717.05 resides solely with the

property owner.

{¶33} “All statutes relating to the same subject matter must be read in pari materia,

and construed together, so as to give the proper force and effect to each and all such

statutes.” (Emphasis sic.) In re K.J., 10th Dist. No. 13AP-1050, 2014-Ohio-3472, 2014

WL 3936867, ¶ 21, citing State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d

357, ¶ 45.

{¶34} Upon review, we find that the General Assembly expressed its intent to deny

boards of education a right to appeal a decision of a board of revision by removing said

right under R.C. §5717.01 and by not modifying R.C. §5717.05 to include said boards of

education.

R.C. §2506.01

{¶35} Appellant herein argues that it now has a right to appeal under R.C.

§2506.01.

{¶36} R.C. §2506.01 establishes the right to appeal an administrative decision of

a political subdivision that determines “rights, duties, privileges, benefits or legal

relationships of a person * * *.” R.C. §2506.01(C).

{¶37} We look to the language of Revised Code §2506.01, which provides:

(A) Except as otherwise provided in sections 2506.05 to 2506.08 of

the Revised Code, and except as modified by this section and sections

2506.02 to 2506.04 of the Revised Code, every final order, adjudication, or

decision of any officer, tribunal, authority, board, bureau, commission,
Delaware County, Case Nos. 23 CAE 09 0053 10

department, or other division of any political subdivision of the state may be

reviewed by the court of common pleas of the county in which the principal

office of the political subdivision is located as provided in Chapter 2505. of

the Revised Code.

(B) The appeal provided in this section is in addition to any other

remedy of appeal provided by law.

(C) As used in this chapter, “final order, adjudication, or decision”

means an order, adjudication, or decision that determines rights, duties,

privileges, benefits, or legal relationships of a person, but does not include

any order, adjudication, or decision from which an appeal is granted by rule,

ordinance, or statute to a higher administrative authority if a right to a

hearing on such appeal is provided, or any order, adjudication, or decision

that is issued preliminary to or as a result of a criminal proceeding.

{¶38} This Court recognizes that R.C. §2506.01 “ ‘does not address the question

of who has standing to bring such an appeal.’ ” (Emphasis sic.) Myers v. Clinebell, 6th

Dist. Sandusky No. S-98-048, 1999 WL 300620, (May 14, 1999), quoting Willoughby Hills

v. C. C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). We construe

the plain, clear and unambiguous language of R.C. §2506.01 its usual and customary

meanings. Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-

Ohio-2058, 906 N.E.2d 1125, ¶ 9. “ ‘[I]t is the duty of the court to give effect to the words

used, not to delete words used or insert words not used.’ ” Westgate Shopping Village v.

Toledo, 93 Ohio App.3d 507, 517-18, 639 N.E.2d 126 (6th Dist.1994), quoting Cline v.

Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991).
Delaware County, Case Nos. 23 CAE 09 0053 11

{¶39} R.C. §2506.01 does not create a cause of action where none otherwise

exists. Regarding administrative appeals under R.C. §2506.01, Ohio courts require a

party to identify a statutory provision that expressly authorizes the filing of an appeal.

Yanega v. Cuyahoga Cty. Bd. of Revision, 156 Ohio St.3d 203, 2018-Ohio-5208, 124

N.E.3d 806, '¶ 10 ("there is no inherent right to appeal an administrative decision; rather,

the right must be conferred by statute"). This statutory permission cannot come from R.C.

§2506.01 itself. JRB Holdings, LLC v. Stark Cty. Bd. of Revision, 5th Dist. Stark No.

2021CA00144, 2022-Ohio-1646, ¶11-18, (looking beyond R.C. Chapter 2506 to

determine whether an appeal from a board of revision is permitted).

{¶40} Rather, that authority must arise from another statutory provision. See also

Hamer v. Danbury Twp. Bd. of Zoning Appeals, 6th Dist. Lucas No. L-19-1210, 2020-

Ohio-3209, 155 N.E.3d 218, 155 N.E.3d 218, ¶10 (“jurisdiction over an administrative

appeal is improper unless granted by R.C. 119.12 or other specific statutory authority”),

quoting Nkanginieme v. Ohio Dept. of Medicaid, 10th Dist. Franklin No. 14AP-596, 2015-

Ohio-656, 29 N.E.3d 281, ¶ 15.

{¶41} R.C. §2506.01 is a general statute dealing with appeals from various

bodies. R.C. §5717.01, on the other hand, is a special statute specifically dealing with

board of revision property valuations and rights of appeal therefrom. Under such

circumstances, R.C. §5717.01 prevails and is exclusively applicable. As set forth by the

Ohio Supreme Court in Acme Engineering Co. v. Jones (1948), 150 Ohio St. 423, 83

N.E.2d 202:

A special statutory provision which applies to a specific subject

matter constitutes an exception to a general statutory provision covering
Delaware County, Case Nos. 23 CAE 09 0053 12

other subjects as well as the specific subject matter which might otherwise

be included under the general provision. (State, ex rel. Steller et al.,

Trustees, v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413, and paragraph

one of the syllabus in State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio

St. 310, 175 N.E. 200, approved and followed.)

{¶42} See also Ruprecht v. City of Cincinnati, 64 Ohio App.2d 90, 92–93, 411

N.E.2d 504, 507 (1st Dist.1979).

{¶43} We further find that the Supreme Court of Ohio's holdings in Nuspl v. City

of Akron and Anderson v. City of Akron, 61 Ohio St.3d 511, 575 N.E.2d 447 (1991),

Sutherland–Wagner v. Brook Park Civil Service Commission, 32 Ohio St.3d 323, 512

N.E.2d 1170 (1987) and Walker v. Eastlake (1980), 61 Ohio St.2d 273, 275, 400 N.E.2d

908, 909-910, provide that “an appeal is available from a final order of a commission of a

political subdivision of the state unless another statute, enacted subsequent to the

enactment of R.C. 2506.01, clearly prohibits the use of this section.” The Nuspl court

specifically held R.C. §2506.01 “provides an aggrieved party an additional avenue of relief

that is not expressly prohibited by a subsequently enacted statute.” Id. at 515.

{¶44} Here, we find that R.C. §5717.01 (and R.C. §5717.05) was enacted

subsequent to R.C. §2506.01 and that such statute, through its newly enacted revisions,

prohibits an appeal from a decision of the board of revision by a board of education to

either the BTA or the common pleas court.

{¶45} Having found Appellant is without standing to appeal pursuant to R.C.

§2506.01, we find no error by the lower court in granting Appellees’ motions to dismiss.
Delaware County, Case Nos. 23 CAE 09 0053 13

{¶46} Accordingly, the judgment of the Court of Common Pleas of Delaware

County, Ohio, is affirmed.

By: Baldwin, J.

Wise, P. J., and

King, J., concur.